Tribunal Criminal Tribunal for the Former Yugoslavia

Page 42136

 1                           Thursday, 3 December 2015

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.04 p.m.

 5             JUDGE ORIE:  Good afternoon, or whatever time it may be for you,

 6     for anyone in and around this courtroom and the videolink room.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

 9     IT-09-92-T, The Prosecutor versus Ratko Mladic.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             We hear the testimony of the next witness to be called by the

12     Defence through videolink.  Let's first establish whether the videolink

13     is functioning well.

14             Could the representative of the Registry at the other side of the

15     videolink first confirm whether he can hear us and whether he can see us.

16             THE REGISTRAR: [Via videolink] Good morning, Your Honours.  We

17     can hear you and see you well.  I hope you can do the same.

18             JUDGE ORIE:  We can hear you and see you as well.  Thank you for

19     this information.  We see that you are present in the videolink room

20     together with a person which I assume will be the witness.  Is there

21     anyone else present?

22             THE REGISTRAR: [Via videolink] There is no one else present in

23     the videolink room.  This is only me and Mr. Del Pino.

24             JUDGE ORIE:  Yes.  And then I take it that you have a fixed

25     camera and a fixed audio-recording system.

Page 42137

 1             THE REGISTRAR: [Via videolink] That is correct.  And we have a

 2     technician right next door in case there is a glitch but, for now, we're

 3     all alone in this room.

 4             JUDGE ORIE:  Yes.  Then may I take it that with you is the

 5     witness, Mr. Del Pino.

 6             THE REGISTRAR: [Via videolink] That is correct, Your Honour.

 7             JUDGE ORIE:  Mr. Del Pino, before you give evidence, the Rules

 8     require that you make a solemn declaration.  Could I invite you to stand

 9     and to make the solemn declaration of which the text is handed out to you

10     by the representative of the Registry.

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

12     whole truth, and nothing but the truth.

13                           WITNESS:  DAVID DEL PINO

14                           Examination by Mr. Ivetic:

15             JUDGE ORIE:  Thank you, Mr. Del Pino.  Please be seated.

16             Mr. Del Pino, you'll be first examined by the -- by Mr. Ivetic.

17     Mr. Ivetic is a member of the Defence team of Mr. Mladic, and you'll see

18     him soon our your screen.

19             Mr. Ivetic, please proceed.

20             MR. IVETIC:  Thank you, Your Honour.

21        Q.   Good day, Mr. Del Pino.  I'm glad to finally meet you, albeit

22     over the TV screen.  Could I ask you to please state your full name for

23     the record.

24        A.   My name is David Del Pino Kloques.

25             MR. IVETIC:  Your Honours, one preliminary matter.  The original

Page 42138

 1     Rule 65 ter summary for this witness incorrectly noted that he was part

 2     of the oversight committee when in fact he was interviewed by the

 3     oversight committee.  We did address -- fix that in the second filing,

 4     but I'm told that the original filing is still on record and so I did

 5     want to point that out so that everyone is on the same page as to that.

 6        Q.   Sir, could I ask you to please tell us what is your current

 7     occupation and employment.

 8        A.   I'm a educational technologist.  I'm the Assistant Director for

 9     Business and Economic Systems at the University of Texas Medical Branch

10     in Galveston.

11             JUDGE ORIE:  Could I already invite you to slow down because with

12     your speed of speech the interpreters will not be able to translate -- to

13     interpret your words so that we can consider them.

14             THE WITNESS:  All right.  I will repeat my answer then.  I'm an

15     educational technologist.  I work for the University of Texas Medical

16     Branch.  My title is Assistant Director for Business and Economic

17     Systems.

18             MR. IVETIC:

19        Q.   And, sir, what educational degrees do you hold?

20        A.   I'm an anthropologist.  I do have computer certification in a few

21     different areas, and I have a masters degree in educational technologist.

22        Q.   Thank you.  And prior to today, have you ever had occasion to

23     testify as a witness in any court proceeding?

24        A.   No.

25        Q.   Okay.  And were you ever in Bosnia-Herzegovina for purposes of

Page 42139

 1     any of your previous employments?

 2        A.   No, I never was a witness before.

 3        Q.   Let me repeat my question.  Were you ever present in

 4     Bosnia-Herzegovina for purposes of any of your previous employments?

 5        A.   Yes, I was in Bosnia working for Physicians for Human Rights.

 6        Q.   And what was your specific position or title at the time that you

 7     were in Bosnia?

 8        A.   I was a forensic expert.  I done field-work, assisting the

 9     archaeological phases of the work, and I was involved in the laboratory

10     work, too.

11        Q.   Okay.  And what had been your specific job or occupation prior to

12     going to Bosnia as part of Physicians for Human Rights?

13        A.   I was a forensic anthropologist since 1989, working in human

14     rights violations, missing persons cases in my country, in Chile.  And

15     I'm the founding member of our forensic team, which was the DAF Chilean

16     forensic team.

17        Q.   And apart from the Chilean anthropological forensic team, were

18     you ever a member of any other professional associations dealing with

19     anthropology?

20        A.   Not really.  I worked with Dr. Glasno [phoen] and he is my

21     master, my mentor in forensics.

22        Q.   Okay.  And do you recall what year it was that you were in Bosnia

23     and Herzegovina performing the work that you've just described?

24        A.   Yes.  1996.

25        Q.   Do you recall how long in 1996 you were in Bosnia-Herzegovina?

Page 42140

 1        A.   I think it was from June to November, late June to early

 2     November, something like that.  I'm not exactly clear about the exact

 3     dates.  But from summer to the beginning of winter or the ending of fall

 4     season.

 5        Q.   That's fair enough.  Do you recall the names of any other

 6     anthropologist whom you may have worked with while in Bosnia-Herzegovina?

 7        A.   Yes.  Jose Baraybar, I think is the last name.  I perhaps not

 8     recall the names but I recall the people.  Gallagher, a student, Kliakov

 9     [phoen] another young anthropologist at the time, and Moscosko, an

10     archaeologist.  There was a wealth of people that I remember in personal

11     ways but not clearly the names.  There was an anthropologist from the

12     USA -- archaeologist from the USA.  I'm trying to recall his name but I

13     cannot.

14        Q.   Let me see if I can assist you.

15        A.   I know the people.  I can recognise the people.

16        Q.   Okay.  Do you know anyone by the name of C. Elliot Moore also

17     known by the nickname Hass?

18        A.   Yes.  He was working for -- I think he was related to the army

19     here in the USA, looking for missing soldiers.

20        Q.   And what was his profession, if you recall?

21        A.   Archaeologist.

22        Q.   Okay.  And do you recall anyone by the name of Clyde Snow?

23        A.   Dr. Clyde Snow is my mentor.  He passed away but I do remember

24     very well.  He's part of my life.

25        Q.   I understand.  Now, do you recall which specific sites --

Page 42141

 1             JUDGE ORIE:  If you're done with the names.  You mentioned the

 2     name of Gallagher.  You said it was a student.  Was it a male or a

 3     female, and do you remember any first name?

 4             THE WITNESS:  Dorothy Gallagher.  Yes, sir.  Dorothy Gallagher

 5     was a lady, a female.

 6             JUDGE ORIE:  Yes.  It's Dorothy Gallagher.

 7             THE WITNESS:  Correct.

 8             JUDGE ORIE:  Thank you.  Please proceed.

 9             MR. IVETIC:

10        Q.   Sir, do you recall any of the specific sites that you were asked

11     to work on as part of the mission in Bosnia-Herzegovina?

12        A.   I do recall all the sites.  I don't recall the name of the sites.

13     And names and pictures in my mind are a little mixed up, so I would need

14     some of your help to identify.  But I do remember exactly the work in

15     every single site.

16        Q.   So is it fair to say that you worked on a number of sites, not

17     just one?

18        A.   That would be correct.

19        Q.   Okay.  That's enough for our purposes.  What, if anything, were

20     you told about who or what was at the sites that were being excavated?

21        A.   I don't understand the question.  What do you mean by "who or

22     what"?

23        Q.   Were what were you told to expect at the sites that were being

24     excavated?

25        A.   We were --

Page 42142

 1             JUDGE ORIE:  One second, please.

 2             Mr. McCloskey.

 3             THE WITNESS:  It was --

 4             JUDGE ORIE:  One second, please.  One second.

 5             Mr. McCloskey.

 6             MR. McCLOSKEY:  I apologise, but could we get who he is being

 7     told anything by so we can get that right up front and perhaps when.

 8             MR. IVETIC:  That's my second question.

 9             JUDGE ORIE:  I don't think there was any reason to intervene.

10             Would you please continue your answer.  You started by saying --

11     no, not anything yet.  Could you tell us what you were told to expect at

12     the sites that were being excavated?

13             THE WITNESS:  Yes, I was told to expect mass graves.  And I was

14     before working for the International Tribunal for the former Yugoslavia

15     with a similar team, so I was told to expect a similar excavation

16     situation with a mass grave, semi-decomposed bodies, and so forth.  So I

17     had the mindset for what I was going to encounter.

18             MR. IVETIC:

19        Q.   And now if could I ask you to address the question raised by

20     Mr. McCloskey.  Do you recall by whom you were told to expect this?

21        A.   We got some documentation in print form by Physicians for Human

22     Rights, and I briefly talked to Haglund, Bill Haglund, and that's how I

23     got information to be prepared for.

24        Q.   Now, you said that you had previously worked with a similar team

25     working for the International Tribunal.  Were you ever directed by anyone

Page 42143

 1     from the Office of the Prosecutor of the Tribunal during either of your

 2     engagements?

 3        A.   What do you mean by "directed"?

 4        Q.   Given directions.

 5        A.   No.  I was a member of the forensic team.  The Tribunal -- I

 6     wasn't aware of the presence of the Tribunal at the sites, but perhaps

 7     they were there.  And we had guards.  I think they made us feel secure.

 8        Q.   Okay.  Whom did you consider to be in charge of the operation

 9     from your perspective?

10        A.   Haglund, Bill Haglund.

11        Q.   And what exactly was your job; that is to say, how did you

12     understand your role within the operation?

13        A.   At the time I was a little older than the rest of the crew, and

14     so I had a -- Haglund would put me in different jobs as needed because I

15     was able to perform most of the duties required in excavation, and so I

16     had done a wealth of different tasks as needed per site.  For example,

17     photographer, for example, direct excavation, for example, taking

18     measurements.  And then I work at the laboratory in my capacity as an

19     anthropologist, and that's -- I cleaned bones, I reassembled broken

20     bones, and so forth.

21        Q.   Okay.  Did anyone talk about determining if a set of remains

22     belonged to a combatant or a civilian?

23        A.   We were -- I think that question wasn't part of the forensic

24     research we were doing.  We were in a discovery mode, in my mind at

25     least; we were going to find out.  Having that question before was not

Page 42144

 1     proper.  For example, digging in Europe, you can find grave-sites from

 2     any war you guys involved yourselves like, say, 40 years.  So it was a

 3     discovery process, a scientific approach.

 4        Q.   Now, generally speaking, when someone is engaging in scientific

 5     approach excavating a potential grave-site, are there normally protocols

 6     that are established; and if, so, what we would be?

 7        A.   Yes.  Forensic archaeology is extremely conscientious about

 8     keeping the relationships in between the elements you are going to

 9     take -- lifting from the grave.  We're supposed to know that every time

10     you intervene in a grave you are rescuing information and destroying

11     information at the same time.  So that's why it's so important, the

12     graphical record of elements you are getting from the grave, how they are

13     related to each other.

14             For example, if you found a body and its clothing, is the body

15     inside the clothing or not?  Or if you find a key chain next to a body,

16     how far it was, where it goes, and so forth.  Or in a mass grave, the

17     position of the bodies, how they are co-mingled together.  So all those

18     relationships are extremely important at the time of bringing about a

19     reconstruction of how these bodies were put together in that

20     archaeological site.  So relationships for us is really important.

21        Q.   Now, in relation --

22        A.   Did I answer what you were asking?

23        Q.   I think so.  I have a follow-up.

24             In relation to what you have talked about in relation to forensic

25     archaeology and anthropology, when doing excavation of graves, what is

Page 42145

 1     the normal procedure for clothing and artefacts found with the human

 2     remains?

 3        A.   You try to keep them together.  If they are not -- because of the

 4     construction of the grave, usually they -- the grave-site is constructed

 5     in a way that in the case of human rights violation, it's constructed in

 6     a very quick way.  Usually criminals are trying to hide what they've

 7     done.  And so sometimes the bodies are very well preserved and all

 8     together with the clothing and documents and so forth.  But sometimes you

 9     get a grave-site in which clothing or the cultural elements are separated

10     from the dead bodies, implying a sort of activity before the burial.  And

11     that's important, too.  To me as an archaeologist, I need to see and I

12     need to evaluate even if the elements are separated.  It's evidence to

13     me.

14        Q.   And you say that it's important to you.  What kinds of

15     information as an anthropologist or archaeologist can be established from

16     clothing and other artefacts found with human remains?

17        A.   Without even looking at the clothing and artefacts, you can --

18     you get information by knowing how they were around the body, how the

19     grave-site was constructed.  Now, if you -- if you establish a proper

20     relationship in between the clothing and the bodies that own the clothing

21     or are related to the clothing, then you can dig a little deeper.  If

22     there are cultural objects together with the clothing, like photo IDs,

23     keys, and so forth, then you can think about establishing a relationship

24     in those extra elements that will come with your -- as an evidence and

25     the relationship to the original individual you are digging out will give

Page 42146

 1     you a good clue of what's the relationship between the rest of the

 2     evidence and the body.  So, yeah.  Do you have any follow-up?

 3        Q.   Yes, I do.  Apart from the excavations that you took part in in

 4     Bosnia-Herzegovina which you've just described, do you have an estimate

 5     as to how many total excavations you have been involved in throughout

 6     your career?

 7        A.   Oh, my Lord.   A lot.  In my country, I've done several forensic

 8     digs and in different situations, but I -- the number is -- is -- I think

 9     it's below 500.  Below 500 individuals.  But above 250 -- no, no, above

10     300.

11        Q.   Okay.

12        A.   That's a rough number.  I'm sorry, but I never counted.

13             JUDGE MOLOTO:  Sir, you say about 500 individuals.  The question

14     was how many excavation sites, if I understand your question.

15             THE WITNESS:  Oh, sites.

16             JUDGE MOLOTO:  Yes.

17             THE WITNESS:  Okay.  I'll say about 15 or 20.

18             MR. IVETIC:

19        Q.   Okay.  That's fair enough.  Now, in anthropological field

20     recovery, first of all, is that term that are you familiar with, "field

21     recovery"?

22        A.   Yeah.

23        Q.   Okay.

24        A.   It's what you do.

25        Q.   In field recovery, what is considered to be associated evidence?

Page 42147

 1        A.   I mean, this is a -- it depends on your research.  But from the

 2     beginning, the whole grave-site is a -- it gives you evidence.  When you

 3     just -- even before getting anything from the ground, you are recovering

 4     the activities of producing the burial.  So the wealth of information is

 5     started when you get to the site.

 6             Is that a good answer?

 7        Q.   It's the answer that you've given.  That's all I am requiring

 8     from you, sir, is the answers as you know them.  I'm not here to qualify

 9     or judge them.

10             And in relation to the examination of associated evidence in

11     field recovery, is there a procedure for preserving such associated

12     evidence that is commonly followed?

13        A.   Yes, yes.  You normally produce a -- you're supposed to have

14     paperwork in which you are writing down the evidence.  You're going

15     around the body.  You're supposed to draw a rough draw of the

16     circumstances of the body and the elements surrounding it.  Then you're

17     supposed to picture it.  You will see a wealth of photography being taken

18     around any forensic dig.

19        Q.   Okay.

20        A.   And sometimes people choose to do videos of the whole burial at

21     the time of recovering the evidence so no relationships are going to be

22     lost.

23        Q.   Now, in relation to the work that you took part in in

24     Bosnia-Herzegovina which we have been talking about, who was in charge of

25     removing and documenting the bodies, the artefacts, and the associated

Page 42148

 1     evidence?

 2        A.   The sites were so big that we split in teams, and small teams in

 3     different segments of graves.  And one person was taking notes and two

 4     other people were cleaning up the body and taking -- getting the

 5     photographs to get a graphical -- the graphical evidence.  That's

 6     what's -- normally we shoot to do.  We target to do it that way.

 7        Q.   Do you know if any guidelines or protocols were established and

 8     followed for the excavation of those sites in Bosnia-Herzegovina?

 9        A.   Yes.  We had a form to fill and we tried to -- we set some

10     parametres of the work.  For example, we were -- I think that's the

11     answer.  We have our little small team:  Somebody taking notes, somebody

12     covering the photographer, somebody cleaning the body, two people getting

13     the body out.  That's the method.

14        Q.   Okay.  In your opinion -- what is your opinion of the level of

15     communication in the field between the various other specialties that

16     were working alongside anthropologists?

17        A.   In the -- in the grave-sites, the communication was rather okay,

18     but sometimes we did not have a -- Dr. Haglund would be absent sometimes,

19     and that will make the work more difficult because we -- basically there

20     was not a chain of command properly organised.

21        Q.   Okay.  And in the field of anthropology, what is the process

22     known as trauma analysis?

23        A.   You're bringing me now to the laboratory work.  Yeah.  For trauma

24     analysis, you clean the body the best you can to look at the morphology

25     of the bones, and then you can isolate, for example, all injuries early

Page 42149

 1     fractures and with a -- the bone will clearly reveal the life history of

 2     the trauma of the person.  And there are certain markings on the bone

 3     that will clearly indicate sometimes injuries that are not healed or the

 4     body wasn't able to react to it, so we established perimortem or recent.

 5             JUDGE MOLOTO:  I just have a question --

 6             THE WITNESS:  Those -- I'm sorry.

 7             JUDGE MOLOTO:  Finish your answer.  Please finish your answer,

 8     sir.

 9             THE REGISTRAR: [Via videolink] Finish the answer.

10             THE WITNESS:  Oh, I'm sorry, I thought somebody was saying

11     something there.

12             So perimortem, you can identify the type of trauma, sometimes

13     blunt trauma, sometimes they are projectiles of different velocities and

14     you can sort it out by looking at the types of entrance and exit wounds,

15     if they are marking the bones, and cut marks, that that's very clearly

16     isolated -- easy to isolate.  So that's something that will go into an

17     anthropological forensic report.

18             Together with that we can do a lot of other things, for example,

19     laterality, to see if the person used to use more the left or the right

20     side of the body, and we can see statistically with certain/uncertainty

21     the height and sometimes very clearly the sex of the person.  On top

22     that, it's easy at a certain age to estimate the biological age of the

23     skeleton and so there's a lot of things you can do, really, depending on

24     your skill level, how can you listen to the skeleton, the life history

25     and how he died.

Page 42150

 1             JUDGE MOLOTO:  Earlier you said, sir, that Dr. Haglund would be

 2     absent sometimes and the chain of command would not be in place.  Was

 3     Dr. Haglund the leader of the team?

 4             THE WITNESS:  Yes, he was the leader of the team, but he split

 5     his time at several sites.

 6             JUDGE MOLOTO:  And in his absence did he not have a deputy to

 7     deputise for him?

 8             THE WITNESS:  No.  I mean, not to my knowledge, and I was working

 9     for him.  So a few people trying to take over the second on board but it

10     was not -- to me, at least, it was not very clear.

11             JUDGE MOLOTO:  Thank you.

12             MR. IVETIC:

13        Q.   And, sir, for the process that you have described for trauma

14     analysis in the lab, can clothing worn by a body have a role assisting in

15     that examination?

16        A.   Yes, indeed.  This is no different to what I say about

17     archaeology.  That's why you recover the relationships between the

18     elements at the grave.  The clothing is one of your components of

19     analysis.  Yes, it's important.

20        Q.   And, sir, in your experience at the sites in Bosnia-Herzegovina

21     where you were involved in doing the work, were all clothing and

22     artefacts found during the excavation preserved and kept with the bodies?

23        A.   I would say in most of the case, yes.  But I was in one of the

24     grave-sites in which some of the clothing were discarded.

25        Q.   You've mentioned a Mr. Baraybar.  What was the role of

Page 42151

 1     Mr. Baraybar in the work that you were involved in?

 2        A.   I don't really know.  He was joining with us as a team member,

 3     working for Haglund, but then I understood that he was working for UN as

 4     a forensic team of UN, and he had a different role and responsibilities.

 5        Q.   Did you have an understanding what his different role and

 6     responsibility were as opposed to the work that you were doing?

 7        A.   Sometimes Jose Pablo Baraybar will join as a team member, as a

 8     peer of us, and we worked together okay and -- but I don't know any --

 9     any other than that.

10        Q.   Okay.  Moving on.  At an excavation site, what is the importance,

11     if any, of protecting human remains and artefacts from the elements, such

12     as rain?

13        A.   Oh, it's of extreme importance because any foreign intrusion,

14     like rain, on the grave-site can remove the liaison in between the

15     elements you are seeing in the grave, and you can lose -- even though can

16     you recover everything, you lose the connections, and the connections is

17     evidence you need to gather in order to produce information.

18        Q.   In your experience, were the human remains and artefacts in

19     Bosnia-Herzegovina at the sites that you have knowledge of, were they

20     always adequately protected from the elements such as rain?

21        A.   I say most of the time but not all the time.

22        Q.   Okay.  Now, after you completed your work in Bosnia-Herzegovina,

23     were you interviewed by anybody about the work that was performed in

24     Bosnia-Herzegovina?

25        A.   Yes, but the San Antonio group of analysis, I mean, I was part of

Page 42152

 1     the San Antonio report, as you know.  That was in 1997, after the sites.

 2        Q.   Do you recall if you were told the purpose of why you were being

 3     interviewed by this San Antonio Analysis Group?

 4        A.   Yes.  They were trying to -- they were trying to research about

 5     the method we had done at the grave-sites and -- that's what I remember.

 6        Q.   Do you happen to recall who interviewed you?

 7        A.   I don't remember the names, but I know Dr. DiMaio was there,

 8     which was one of the forensic authors I followed the most when I was

 9     studying forensics.

10        Q.   And during your interview did you identify any concerns to those

11     that interviewed you about the manner in which the work was done at

12     grave-sites in Bosnia-Herzegovina?

13        A.   Yes, I did.  Exactly what I shared with you.

14        Q.   Okay.  I'd now take a look at Exhibit D329 with you.  There

15     should be a hard copy there with Mr. Registrar.  And this should be a

16     report of the oversight committee.

17        A.   Is this the San Antonio report?

18        Q.   Yes, I believe so.  That's what I was going to ask you.  Sir, is

19     this the report that you mentioned that you call the San Antonio report?

20        A.   Correct, indeed.

21        Q.   Okay.

22        A.   Yes.

23        Q.   I'd like to turn to page 2 of the report with you, and at the

24     bottom it says:

25             "Part 3, Interviewing Process.  Following a briefing by an ICTY

Page 42153

 1     attorney on Saturday, November 15, 1997, interviews of the team members

 2     were conducted on an individual basis in the office, beginning on Sunday,

 3     November 16, 1997.  During the first two days, the interviewees were:

 4     Connor, Curran, Gallagher, Hoffmann, Koff, Del Pino, Snow and Saunders."

 5             Does what is written here accord with your recollection of how

 6     the interview process took place?

 7        A.   I don't recall the event so much but this is very sound to me.  I

 8     think it is what happened.

 9        Q.   Okay.  If we could now turn to page 5 of this document and if we

10     could focus on item number 14 here, there appears to be some language

11     next to your name that I'd like to ask you about.  It says:

12             "David Del Pino (Chilean Anthropologist):  Operations were halted

13     when Dr. Haglund was away.  Clothing was discarded at Haglund's command,

14     even though some contained identifications.  Forms were not always used.

15     There was no delegation of authority."

16             Do you believe that this language accurately reflects the

17     comments you made when you were interviewed in 1997 by the San Antonio

18     committee?

19        A.   That's precise.  It is indeed what I said.

20        Q.   Okay.  And did you tell the truth to the members of the committee

21     that interviewed you?

22        A.   Yes, sir.

23        Q.   And in relation to clothing being discarded at Mr. Haglund's

24     command, do you recall if any reason was given for this?

25        A.   He believed that the clothing was not related with the bodies and

Page 42154

 1     to me that was a research question, not something that you can see at the

 2     site.  You need to lift all the evidence.  I think I told Dr. Haglund

 3     that at the time of the site.  We have a disagreement.

 4        Q.   Did anyone else voice objection to the discarding of clothing at

 5     the site?

 6        A.   I don't know.

 7        Q.   Do you recall the quantity of such clothing that was discarded?

 8        A.   This is 18 years ago, so it was -- it was not a huge amount of

 9     clothing, but it was a volume, say, of about 50 litres maybe.

10        Q.   And do you recall if any of the clothing discarded was military

11     or civilian in nature?

12        A.   The clothing, that will be a research question.  You cannot say

13     that on the site.  You need to clean the clothing.  And it will be

14     imprecise if I answered that one way or another.

15        Q.   Fair enough, sir.  I thank you for that answer.

16             Do you know who actually discarded the clothing after Dr. Haglund

17     commanded it?

18        A.   I don't know.

19        Q.   And here you say "even though some contained identification."

20     What happened to the identification?

21        A.   That part of the sentence is not precise.  I should have -- it

22     should have been written there "some may contain."

23        Q.   And if they did --

24        A.   It's part of the research.

25        Q.   Go ahead.  I'm sorry.

Page 42155

 1        A.   It's part of the research.  It's a question.  That's why I will

 2     never discard stuff from the grave-site.

 3        Q.   Okay.  And you say that you had a disagreement with Dr. Haglund.

 4     In your opinion, was the discarding of clothing potentially with

 5     identifications in accord with the generally accepted practices

 6     applicable to excavations, as you understood it?

 7        A.   It's not am acceptable practice.

 8        Q.   Okay.  Now, do you know if anyone made a determination if the

 9     clothing had any identification before it was discarded?

10        A.   No, I don't know about that.

11        Q.   Okay.  And if we could turn to page 7 in the document, I'd like

12     to focus your attention at the top of the page where we have some text

13     which reads:

14             "Several anthropologists believed and had alleged that the

15     scientific integrity of the exhumations had been jeopardized because

16     Dr. Haglund spent too much time playing up to the news media and driving

17     around the country-side.  Several believed he had capriciously and

18     arbitrarily speeded up or slowed down the exhumations to accommodate the

19     news media or to frustrate photographers."

20             Sir, do you recall if you were one of the anthropologists who

21     made such comments to the San Antonio Group?

22        A.   Yes, I do recall that.

23        Q.   And do you -- go ahead.

24        A.   That was a perception of not only me but the rest of -- some

25     other members of the crew.  But I need to say that -- that you can reduce

Page 42156

 1     the precision level of the information you get from the site but not to

 2     zero.  I mean, there are some very valuable information getting from

 3     these grave-sites, even in these conditions.

 4        Q.   Understood.  Now, if we could turn to page 9 of this document,

 5     and --

 6             MR. IVETIC:  It's the next page, I apologise.

 7        Q.   At the bottom we see at item number 9, "Discussion and

 8     Conclusion," and on the next page, we have a list going from 1 to 14 --

 9             THE REGISTRAR: [Via videolink] That will be page 10, if I'm

10     correct.

11             MR. IVETIC:  It should be page 10.  That's correct.

12        Q.   And it says, "There is mutual agreement on management problems on

13     the part of supervisors."  And I'd like to ask you about a few of these.

14     If we could focus on number 7, which says --

15             THE REGISTRAR: [Via videolink] That's the next page.

16             MR. IVETIC:

17        Q.   Let me read it and see if we're on the same page.  Number 7

18     should read:  "There was little need for rapidity of some grave-site

19     exhumations" --

20             JUDGE ORIE:  We now had a -- yes, could you please restart

21     because a different page was shown to us a minute ago when you started

22     reading, Mr. Ivetic.

23             MR. IVETIC:

24        Q.   Number 7:

25             "There was little need for rapidity of some grave-site

Page 42157

 1     exhumations and only one exhumation should have been performed at one

 2     time."

 3             Do you agree with this statement?

 4        A.   Not really.  This statement is a little unfair and imprecise.

 5        Q.   Okay.

 6        A.   If you rephrase it in the following manner, that only one

 7     grave-site should be open at any given time, considering the size of the

 8     team, I would say that.  But he had more than one grave-site running at

 9     the same time.  But the rapidity of each exhumation in a mass grave is

10     really, really a factor of how the bodies are co-mingled.

11             So, for example, in a mass grave, where the construction of the

12     site involved machinery, you can see that the bodies are all twisted

13     around, so you will have to exhumate more than one body at the same time,

14     making the archaeological phases a little more difficult but not

15     impossible.  I mean, if you rephrase this conclusion that way, I will

16     totally agree that.

17        Q.   Fair enough.  Now, if we could look at number 10 together, which

18     reads:  "There was no attempt to schedule or co-ordinate anthropological

19     and pathological investigations."

20             Do you have any comments as to this statement?

21        A.   I was not high enough in the chain of command to see whether --

22     how the organisation was going on.  It was being implemented.

23        Q.   Okay.

24        A.   So I cannot confirm.  But, yeah, it's difficult for me to

25     estimate.

Page 42158

 1        Q.   Fair enough.  And the last part of this list I want to look at is

 2     number 11, which reads:  "There was too much concern with regard to media

 3     involvement."

 4             Do you agree with this --

 5        A.   Yes, that was a -- yes, I would agree with that.

 6        Q.   Okay.  And if we can turn to the next page in the document, which

 7     is entitled, "Section 7, Committee Recommendations," I think I would like

 8     to ask you about number 4 at the top of the page, which reads as follows:

 9             "Develop a standard operating procedure for the collection and

10     handling of evidence (pathological, anthropological, and criminal)."

11             Do you agree with this recommendation?

12        A.   I'm sorry?

13        Q.   Do you agree with this recommendation?

14        A.   Yeah, I agree.

15        Q.   Was the operating procedure standardized in Bosnia-Herzegovina in

16     relation to the work that others were doing alongside yourself?

17        A.   In the sites I was involved with, we were consistent in following

18     the same pattern of collection -- collecting information.  I'm not a --

19     we didn't know what the other sites were doing.

20        Q.   Fair enough.  And one last area for you, sir.  In our trial, at

21     transcript page 14496 through 14498, the Prosecution presented a textile

22     expert, Ms. Susan Meyers, who said that "videotaping fabric and then not

23     preserving the fabric makes it impossible to run further tests on the

24     fabric because you need the material itself."

25             Do you agree with the comments of Ms. Meyers?

Page 42159

 1        A.   Partially.  I'm not an expert in fabric, of course, but I do

 2     forensic research -- I used to do forensic research.  And even though the

 3     fabric is required, you are still having a lot of information from a

 4     decent image collection.  For example, you can estimate the make of the

 5     fabric, you can research the colour of the fabric, you can count the

 6     thread of the fabric, and so forth, even though you may not have the

 7     actual fabric.  But that is not my domain of expertise.  I'm just -- if

 8     I'm producing a document about a mass grave or so and I don't have the

 9     fabric, I will go with the pictures.  I would be able to describe some

10     meaningful items for the court.

11        Q.   And then, sir, my last question in relation to the clothing items

12     that were discarded upon the command of Dr. Haglund, were those

13     photographed?

14        A.   I don't know.

15        Q.   Sir, I thank you for your time.

16             MR. IVETIC:  Your Honours, that concludes my direct examination.

17             JUDGE ORIE:  Thank you, Mr. Ivetic.  We're close to the time

18     where we take a break.  Perhaps it would be better not to start with the

19     cross-examination for a couple of minutes.

20             But I would have one follow-up question, Mr. Del Pino.  Just for

21     my understanding, when you said that the volume or the quantity, I think

22     the question was about the quantity of the discarded clothing was 50

23     litres, just to make sure that we understand each other well, that would

24     be approximately a box of 40 centimetres by 40 centimetres and then a

25     little bit over 30 centimetres high?  Is that well understood?

Page 42160

 1             THE WITNESS:  Yes, sir.  That's a proper understanding of what I

 2     said.

 3             JUDGE ORIE:  Yes.  Now, could you tell us, the clothing of how

 4     many persons, if you can establish that or assess that, the number -- the

 5     clothing of how many persons would fit into a box of such size?

 6             THE WITNESS:  I cannot really because you see the mud in Europe,

 7     especially in Bosnia, is a type of -- obviously, mud will stick with the

 8     clothing unless you wash it so -- enlarge the volume of each piece.  So I

 9     have no clue.

10             JUDGE ORIE:  So you also have no clue as to the clothing of how

11     many persons would have been discarded --

12             THE WITNESS:  The volume I remember in my mind, but it's a volume

13     of dirty clothing, with mud and materials.  So it would be impossible for

14     me to recall -- to make you an approximation.

15             JUDGE ORIE:  Not even in terms of whether it would be five or 30

16     or 80 or ...

17             THE WITNESS:  If the clothing were co-mingled and packed together

18     and the mud and the accumulation of material was around the clothing, in

19     this 50 litres, it would clothing for, like, a lot of people.  But if mud

20     is intrusive and occupying layers in between the pack of clothing, it

21     would be very few people.

22             JUDGE ORIE:  Yes.  Don't force yourself to draw any

23     conclusions --

24             THE WITNESS:  I really --

25             JUDGE ORIE:  -- you think you couldn't draw.  Thank you for

Page 42161

 1     having answered this question.

 2             We'll take a break, and we'd like to continue in 20 minutes from

 3     now.  For our local time, that would be 20 minutes past 3.00.

 4             We take a break.

 5                           --- Recess taken at 2.57 p.m.

 6                           --- On resuming at 3.20 p.m.

 7             JUDGE ORIE:  Could I first establish whether the videolink is

 8     still functioning well?  Can you hear me at the videolink room and see

 9     us?

10             THE REGISTRAR: [Via videolink] Your Honour, we can still see and

11     hear you well.

12             JUDGE ORIE:  Yes.  And we can hear and see you also.

13             Mr. Del Pino, you'll now be cross-examined by Mr. McCloskey.

14     Mr. McCloskey is counsel for the Prosecution.  And as he will do, you're

15     also invited to make a short break between question and answer and answer

16     and question.

17             Mr. McCloskey, we have high expectations in that respect of your

18     performance.

19             Please proceed.

20             MR. McCLOSKEY:  Thank you, Mr. President.

21                           Cross-examination by Mr. McCloskey:

22        Q.   And hello, Mr. Del Pino.

23        A.   Hello.

24        Q.   I won't take too much of your time today.  Don't hold that

25     against us.  This Court has heard weeks of evidence about forensic

Page 42162

 1     anthropology and archaeology and the work.

 2             I would like to see if I can help refresh your recollection about

 3     one particular grave and ask you some questions about it.  I believe at

 4     the time it was called the Pilica grave.  It should have been probably

 5     the biggest grave you worked on.  And let me show you a couple of

 6     pictures, just to help to see if that refreshes your recollection.  If we

 7     could start with 65 ter 335826 and it will be page 8 of that.

 8             MR. IVETIC:  Check the number.  I think there's too many digits.

 9             MR. McCLOSKEY:  Sorry, 65 ter 33526, page 8, which is -- it's one

10     exhibit in the 65 ter with several pages to it.

11             THE WITNESS:  Yes, I remember this.

12             MR. McCLOSKEY:

13        Q.   Okay.  Now, we're not looking at you anymore but hopefully we're

14     looking at this big picture.  Does that bring back any memories?

15        A.   Yes.

16        Q.   Okay.  Let's go to page 7, same 65 ter number.

17        A.   Eleven, you said?

18        Q.   Seven.

19        A.   Yes.

20        Q.   And does this look like the same grave to you?

21        A.   Can you go back and forth, please.  I don't ...

22             JUDGE ORIE:  The witness invites us to go back one page as well

23     on our screens so that we know what he's --

24             THE WITNESS:  Yeah, this is a different view of the same grave, I

25     think.

Page 42163

 1             MR. McCLOSKEY:

 2        Q.   Okay.  Well, let's just stay on this number 7 for a minute, and I

 3     know it may be hard, but do you recognise anybody in that photograph?

 4        A.   Yes.  The person looking down with the hat is Jose Pablo

 5     Baraybar.  The person standing with the shirt with lines is, if you --

 6     the name doesn't come to me but I recognise him as an American forensic

 7     archaeologist working for the military in the recovery of missing

 8     soldiers.  And the other people is French security guards.  And the blond

 9     person in the picture I think is an UN deminer, a member of the team, the

10     deminer team, I think so.

11        Q.   Okay.  And let's go to another picture --

12             MR. McCLOSKEY:  65 ter 33527.

13        Q.   And, sir, this is the -- this is another picture of the Pilica

14     grave.  Do you recognise it?

15        A.   Yes.

16        Q.   And can you briefly describe to us what's going on here.

17        A.   Yes, we're cleaning up the bodies without removing them so we

18     would see relationships of how they were placed in the grave, and this is

19     a process of cleaning up so you reveal all the information in the grave,

20     how the bodies are placed, what elements are related to each other.

21     These are very detailed work and hard tools are only used in the

22     loosening up of the dirt in between the bodies.  But then it's very

23     detailed work on removing the material so you don't remove cultural

24     elements in association.  You try to recover exactly that, the

25     associations.

Page 42164

 1        Q.   Understood.  And can you tell if you're in this picture?

 2        A.   Yes, I am in the picture, at the left of it.  And next to me is

 3     assisting is one of the French security guards.  The rest of the people

 4     are -- they are on top, looking down.  You can only see her hair

 5     basically.  It's an anthropologist from Florida.  It's an oriental last

 6     name.  I don't recall her last name.

 7        Q.   Okay --

 8             JUDGE ORIE:  Mr. --

 9             THE WITNESS:  And then at the bottom of the picture is an

10     archaeologist, last name Moscosko and the lady that is -- with her back

11     to the camera is Horena.  I don't recall her last name, but she is an

12     archaeologist, a forensic anthropologist, from the USA.  I think she's

13     from one of the -- a state in the centre of the US.

14             MR. McCLOSKEY:

15        Q.   Okay.

16        A.   Do you need any more details?

17        Q.   Just if you could be clear about which one you is.  You said the

18     left side of the picture.

19        A.   The left side of the picture.  It's the only face you can see

20     here, with a beard, of course.

21        Q.   Okay.  I think I see the only person with a beard.  Thank you.

22             Now, in Dr. Haglund's report on this particular grave which, in

23     our case, is P1833, he notes that the minimum number of individuals found

24     in that grave was 132.  And is that roughly what you reflect about the

25     number of -- minimum number of individuals that was in this grave?

Page 42165

 1        A.   Yeah, I think that number was -- well, I -- I concur.  This is a

 2     number -- with estimation, field estimation, of the minimum amount of

 3     bodies.  In this particular site, the recovery was precise and well done.

 4        Q.   Okay.  And you also worked in the morgue or what I believe you

 5     called the laboratory that examined these bodies along with the forensic

 6     pathologists; is that right?

 7        A.   That would be correct.

 8        Q.   And from both your work in this excavation and in the lab, do you

 9     remember finding cloth ligatures around the wrists of any of these

10     victims from this grave?

11        A.   I don't remember exactly from this grave but I do remember seeing

12     the cloth on the -- on the section that you will call the eyes of the

13     body as -- what we would call a blindfold.  Also, I do remember seeing

14     wrist, wire wrist, improvised handcuff, with a sort of wire that you

15     would use to hang your clothing for drying, I don't know.

16        Q.   And just to try to be clear, the wire handcuffs, could that have

17     been at the Cerska grave where people were just shot over the edge of a

18     road and dirt poured on top of them?

19        A.   When you say "Cerska," are you talking about the side road that

20     was extended?

21        Q.   Just the location and the name that you call the grave, if you

22     can recall.

23        A.   Yeah, I think so.

24        Q.   Okay.  And in Dr. Haglund's report, going back to the Pilica, the

25     grave we have in front of us, he notes that ligatures were recovered from

Page 42166

 1     82 individuals, and the wrists of 77 were bound and that ligatures were

 2     associated with some additional remains.

 3             Now, would those cloth ligature have been -- or were they saved

 4     as part of the evidence in your work?

 5        A.   Yes, yes.  This grave is well dug.  As you can see, it's a lot of

 6     detailed work on it.  So the relationship of elements is going to be

 7     much -- is going to be precise.  Perhaps there is a lot of photographs

 8     showing exactly what you're asking for.

 9        Q.   Yes.  And do you --

10        A.   Go ahead.

11        Q.   Do you also recall in the lab or the morgue the doctors and/or

12     the anthropologists takes samples of the bones for potential DNA testing?

13        A.   We cut a segment of the tibia about 1 centimetre by 1 and a half

14     centimetres of most of the bodies.

15        Q.   So --

16        A.   It was a protocol we tried to follow, to cut at the same site,

17     the same height of the shaft of the bone.  But sometimes we have isolated

18     bones and so forth, so I don't believe that the protocol applied to all

19     the cases.

20        Q.   All right.  And the investigation has revealed in this case that

21     from five graves associated with this Pilica grave, associated by DNA

22     connections between the five graves and this Pilica grave, as well as

23     matching of cloth from ligatures in some of the five graves matching with

24     the Pilica grave, the evidence here is that 1.611 people were identified

25     through DNA in those five secondary graves, I'll call them, and that each

Page 42167

 1     of those five graves was associated, either through a DNA match or a

 2     cloth match, to your Pilica grave.  If good DNA matches or good DNA was

 3     taken from the secondary graves and cloth was found in those secondary

 4     graves, from your experience, could that be tested up against the DNA

 5     found in the primary grave that you did, where you took DNA?

 6             JUDGE ORIE:  Mr. Ivetic.

 7             MR. IVETIC:  Your Honours, I don't think that the witness has

 8     been qualified on an expert on DNA.  He has previously testified as to

 9     his inability to be an expert as to textiles.  So cloth, I believe, is sa

10     textile, so I think we're asking the witness to go beyond areas that he

11     might be able to comment upon.

12             THE WITNESS:  Actually --

13             JUDGE ORIE:  One second.  One second.  One second, Please.

14             Mr. McCloskey.

15             MR. McCLOSKEY:  Yes, Mr. President.  I don't think a doctor that

16     sends a test out, some microscopic test, needs to be an expert in that

17     test to know if can he use the result of that test in his work, and

18     that's simply the question.

19             JUDGE ORIE:  Let me just re-read the question.

20                           [Trial Chamber confers]

21             JUDGE ORIE:  The objection is denied.

22             The question doesn't require DNA expertise.  The question started

23     with, "if DNA was taken, what then could be done," and that is within the

24     knowledge of this witness's experience.

25             Therefore, you may answer the question.

Page 42168

 1             Perhaps, Mr. McCloskey, it was a very long introduction.  Perhaps

 2     if you repeat but then the question only.

 3             JUDGE MOLOTO:  Just the question.

 4             MR. McCLOSKEY:  Yes.

 5        Q.   Mr. Del Pino, if good DNA was obtained from your work at the

 6     Pilica grave and good DNA was obtained in the five associated graves that

 7     I'm talking about, could that DNA be compared and potentially match and

 8     make a connection between the secondary grave and the primary grave?

 9        A.   I need to -- yes.  The answer is yes.  And I need to remark that

10     the DNA technology is -- we tried to implement it in Chile in 1989 in

11     cases of missing people.  So I'm very familiar with the reasoning behind

12     the DNA, even though I'm not a biochemist.  But, yes, it can be related.

13        Q.   So does it surprise you that now, some 18 or 19 years after you

14     were taking DNA samples, that 1.751 people from these graves I've

15     described to you have been identified through DNA?

16        A.   I am not surprised.  DNA is a modern technology to help to match

17     genetic characteristics.  I'm not surprised.  This is good information.

18     Glad to hear it.

19        Q.   And did you ever hear after your work there that a Serbian

20     soldier named Drazen Erdemovic estimated that 1.200 Muslims were killed

21     near this grave and that another 500 were to be killed in the town of

22     Pilica for a total of about 1.700 people?  Did you ever hear about that?

23        A.   No.  I was trying to be a very cut-and-dry scientist.  I didn't

24     want to involve myself with that information.  I wanted to discover it.

25             JUDGE ORIE:  Mr. McCloskey, there's no need to go through all the

Page 42169

 1     evidence and ask this witness whether he's aware of all that.  That's not

 2     something which is related to his testimony.  And, of course, although

 3     you may elicit evidence from a witness which supports your case, it's not

 4     supposed not to be either repetitive evidence or -- there should be at

 5     least some kind of a link.  You are moving too far away and that's the

 6     opinion of this Chamber.

 7             Please proceed.

 8             MR. McCLOSKEY:  I have no further questions.

 9             JUDGE ORIE:  Thank you, Mr. McCloskey.

10             Mr. Ivetic, any further questions?  But often I would have

11     questions and perhaps it's better for me to put them first --

12             MR. IVETIC:  Yes.

13             JUDGE ORIE:  Mr. Del Pino, you explained us that Mr. Haglund was

14     absent with some frequency.  Did it ever happen that you needed his

15     guidance as the team leader where, due to his unavailability, you had any

16     problems in performing your task?

17             THE WITNESS:  Yes.  It happened.

18             JUDGE ORIE:  Could you --

19             THE WITNESS:  I don't --

20             JUDGE ORIE:  Could you give us an example of how that happened

21     and how you resolved that.

22             THE WITNESS:  Actually, the end result stalled the dig because

23     there was no direction.  We stopped digging the grave.

24             JUDGE ORIE:  Yes.  What was your problem, what you couldn't

25     resolve without his presence?

Page 42170

 1             THE WITNESS:  I don't exactly recall.  Perhaps it might have been

 2     the need for equipment, covering the grave, rain protection.  I don't

 3     exactly recall but I recall being stalled because there was no -- nobody

 4     to speak about.  We have no -- our boss wasn't there.

 5             JUDGE ORIE:  Yes.  And once he returned, did you then continue

 6     where you had stopped or what happened?

 7             THE WITNESS:  We normally continue with -- we stopped and --

 8     yeah, that was what happened.

 9             JUDGE ORIE:  Yes.  Now, the elements you told us about, the

10     absence of Mr. Haglund -- no.  Let me strike that.

11             Could you tell us, the discarded clothing, did that have any

12     effect on the results, such as that you considered them to be wrong

13     conclusions?

14             THE WITNESS:  No wrong conclusion.  I don't think so.  But

15     incomplete conclusions.

16             JUDGE ORIE:  Yes.  You think it could have been better but what

17     you found is not wrong.  Is that ...

18             THE WITNESS:  Yes, sir.

19             JUDGE ORIE:  Now, the same for the time Mr. Haglund spent in his

20     media attention.  Did this have any consequences as far as the outcome of

21     your work is concerned?

22             THE WITNESS:  I think so.  The consequences I cannot -- this is

23     unpredictable.  I really don't know the depth of the consequences, but

24     sometimes you have to speed up the work because media or slow down the

25     work.  I don't know.  It's not good for archaeology to be following the

Page 42171

 1     pace of external elements.  An archaeological dig needs to follow its own

 2     dynamics, not waiting for -- accelerating the work.

 3             JUDGE ORIE:  Do you think that in accelerating the work for those

 4     reasons that inappropriate risks were taken to reach wrong conclusions?

 5             THE WITNESS:  In archaeology I don't think wrong conclusions but

 6     incomplete conclusions.  You lose evidence.  When you touch -- when you

 7     touch your grave-site, you are at the moment of collection of evidence,

 8     collection of elements.  If you don't collect the most you can, you

 9     collect incomplete evidence, hardly wrong evidence.

10             JUDGE ORIE:  No.  But even if you have incomplete evidence, that

11     could result in wrong conclusions, isn't it?

12             THE WITNESS:  Oh, yes.  Yes, indeed.

13             JUDGE ORIE:  And are you aware of any -- could you give us an

14     instance of where the lack of completeness led you to conclusions which

15     you consider not to be sound?

16             THE WITNESS:  In the case of -- we have a very clear unknown when

17     we discard clothing because Dr. Haglund believed that the clothing

18     were -- he saw, actually, that the clothing were not on the bodies but

19     adjacent to the grave.  He discarded a whole group of elements that we

20     could have analysed, and now we don't know whether it has value or not.

21     Now it's a big unknown.  To me that's not sound procedure.

22             JUDGE ORIE:  Yes.  Now, you've told us about the quantity of

23     clothing that was discarded in this way.  Could you also tell us -- I

24     think you told us that you attended or participated in exhumations in 15

25     to 20 sites.  In how many of these 15 or 20 sites did this discarding of

Page 42172

 1     clothing happened?

 2             THE WITNESS:  Never.  Never before to me.  I always collect all

 3     the information from my site, unless it is impossible.  But I never

 4     encountered that.  I even work in a minefield, 500 metres below the

 5     ground, and we spent three months picking every fragment of evidence.

 6             JUDGE ORIE:  Yes, but you told us about the quantity of clothing

 7     that, I think at the instruction of Mr. Haglund, was not considered and

 8     discarded.  At how many sites did such instructions or such events of

 9     discarding the clothing happen?

10             THE WITNESS:  When I was working with Haglund, in my team, once.

11             JUDGE ORIE:  Once.  Thank you.

12             THE WITNESS:  Yes.

13             JUDGE ORIE:  Mr. Ivetic, any further questions for the witness --

14     Judge Moloto has one or more questions for the witness.

15             JUDGE MOLOTO:  I have one question for you, sir.  Could we please

16     have D329 on the screen.

17             THE REGISTRAR: [Via videolink] Excuse me, Your Honour.  Could you

18     repeat the number, please.

19             JUDGE MOLOTO:  D329.  I think that's a document that the Defence

20     showed to the witness in-chief.

21             THE REGISTRAR: [Via videolink] Oh yes.  Thank you.

22             JUDGE MOLOTO:  I think it's page 7.

23             I think Mr. Ivetic read that first paragraph to you.  I would

24     like to read to you the next paragraph headed "Findings" and ask your

25     comment on it.  It says:

Page 42173

 1             "The responses from the witnesses did not indicate any actual

 2     wrong-doing on the part of Dr. Haglund, nor anything regarding the

 3     exhumations that jeopardized their scientific validity."

 4             Do you have any comment to make on that statement?

 5             THE WITNESS:  I think this is a good conclusion.  Perhaps if I

 6     was going to conduct this research, I would be more detailed.  You would

 7     have more evidence on your table.  But, yeah, in gross lines, the

 8     research represents what happened.  Not to the detail I would like to see

 9     it, but it is in there.  As you see, for example, the picture I was shown

10     recently, the last evidence I was presented with, that site was very

11     well -- precisely done.

12             JUDGE MOLOTO:  Let me --

13             THE WITNESS:  So ...

14             JUDGE MOLOTO:  Let me try to rephrase my question.

15             Do you agree with this comment?  Is it fair comment or not, as

16     far as you're concerned?

17             THE WITNESS:  Yeah, it's a fair comment.

18             JUDGE MOLOTO:  Thank you so much.  That's what I wanted to know.

19             JUDGE ORIE:  Mr. Ivetic, any further questions for the witness?

20             MR. IVETIC:  Yes.  If we could first return to 65 ter number

21     33526.

22             JUDGE MOLOTO:  27 or 26.

23             MR. IVETIC:  27.  The second picture that was shown.

24             Thank you.

25                           Re-examination by Mr. Ivetic:

Page 42174

 1        Q.   Sir, in cross-examination you mentioned the lady in the back

 2     whose hair can only be seen, and you said she was from Florida and you

 3     did not remember the name.  I'm going to read two names to you and see if

 4     they jog your memory:  Dr. Deborah Komare or Kliakov.

 5        A.   No.  I think she is Shawala Martin [phoen].  I just remembered.

 6        Q.   Okay.  Fair enough.  Then we've gotten the result that we were

 7     looking for one way or another.

 8             JUDGE ORIE:  One second.  If you're talking about the lady, is

 9     that the only one with the white shirt?

10             THE WITNESS:  No, no, no.  That's Horena.  Horena.  I don't

11     remember her last name.

12             JUDGE ORIE:  Yes.  And then the lady you had on your mind?

13             THE WITNESS:  The lady -- I'm sorry?

14             JUDGE ORIE:  Yes.  Could I guide you.  If you look at the picture

15     as if it were a clock, at what hour, approximately, is the person you

16     refer to?

17             THE WITNESS:  At about 11.

18             JUDGE ORIE:  At about 11.

19             THE WITNESS:  At about 11, yes.

20             JUDGE ORIE:  Well, that would then be -- I beg your pardon.

21             THE WITNESS:  That's Shawala Martin.

22             JUDGE ORIE:  Pardon?

23             THE WITNESS:  Shawala Martin.

24             JUDGE ORIE:  Yes.  I'm a bit confused, to be quite honest.  If we

25     take them one by one, we have -- and I start with the lady with the white

Page 42175

 1     T-shirt, or at least a person with a white T-shirt and a white cap.  I

 2     now move to the right.  I see a greenish person with a hat is almost not

 3     visible.  That's not the person you referred to, is it?

 4             THE WITNESS:  I couldn't hear you.

 5             JUDGE ORIE:  That's not the person you said was the lady by the

 6     name of --

 7             THE WITNESS:  Shawala Martin.  Let me go clockwise, starting with

 8     me.

 9             JUDGE ORIE:  Starting with you, going clockwise.  The person very

10     close to you would be?

11             THE WITNESS: [Interpretation] He is a French security guard.

12     He's not an anthropologist or archaeologist.  He's a security guard.

13             JUDGE ORIE:  Yes.  Then a little bit further clockwise --

14             THE WITNESS:  Somebody to me, maybe it's Shawala Martin because

15     of the hairstyle.  It could very well be Kliakov, too.  But Kliakov, I

16     think, was curly hair.  And it's not really clear but it looks like

17     straight hair.

18             JUDGE ORIE:  Okay.  And that's the person highest on this

19     picture.  Now we move to the right where we see the whole of the -- a

20     person with --

21             THE WITNESS:  That's -- I think it is an American anthropologist,

22     Chris, Christopher, or Chris -- it starts with an M.

23             JUDGE ORIE:  If you don't remember --

24             THE WITNESS:  Huh?

25             JUDGE ORIE:  If you don't remember, then I leave it further in

Page 42176

 1     the hands of --

 2             THE WITNESS:  Meyers.  Meyers is last name.

 3             JUDGE ORIE:  Yes, I think we've seen that name in the San Antonio

 4     report as one of the interviewed persons.

 5             I leave it now further in the hands of Mr. Ivetic, whether he

 6     needs any further persons to be identified or that he is satisfied with

 7     what we have now.

 8             THE WITNESS:  Sure.

 9             MR. IVETIC:

10        Q.   In relation to the American archaeologist, there are -- well, let

11     me ask it this way:  Do you recall if the individual had a nickname?

12        A.   No, I don't recall a nickname.  Meyers.  Perhaps he had a

13     nickname but I don't know it.

14        Q.   Let me give you two names and then we'll see which one you're

15     talking about.  The first name that we have in the San Antonio report is

16     Patrick Meyers and then --

17        A.   Yes, Patrick Meyers.

18        Q.   Is it?

19        A.   That's the person I referred to here.

20        Q.   Okay.  Fair enough, then.

21             And now if we could look at 65 ter number 33526, page 7 of the

22     same.  That was the first photograph or one of the first photographs that

23     was shown to you.  And in relation to the --

24             THE REGISTRAR: [Via videolink] Could counsel please say the page

25     number.

Page 42177

 1             MR. IVETIC:  Page 7.  It should be a --

 2             JUDGE ORIE:  Yes.  Could you clearly identify that we are having

 3     the right one, perhaps by the number in the picture itself or on top in

 4     red.

 5             MR. IVETIC:

 6        Q.   We are looking at a photograph with a yellow number, looks like

 7     138 in the middle of the pit, and at the top we have the numbers in red,

 8     F0666399-09.  Is that what we are looking at on that end as well?

 9        A.   Yes.

10        Q.   Okay.  And I believe you identified the gentleman in the striped

11     shirt as an American forensic archaeologist looking for missing soldiers.

12     You earlier had mentioned that you recognised the name C. Elliot Moore,

13     nicknamed Hass.

14        A.   Yes.

15        Q.   Is this the same person?

16        A.   Yes.  That's him.

17        Q.   Can you repeat your answer?  I'm sorry.

18        A.   Yes.  It's the same person you say, the last name Moore.

19        Q.   Okay.  Mr. Del Pino, I thank you again for your time and your

20     co-operation.

21             MR. IVETIC:  Your Honours, I have no further questions for the

22     witness.

23             JUDGE ORIE:  Thank you.

24             Any further questions, Mr. McCloskey, which relate to the

25     evidence as given?

Page 42178

 1             MR. McCLOSKEY:  Yes, just one last question related briefly to a

 2     question that Judge Moloto asked.

 3             JUDGE ORIE:  Yes, please.

 4                           Further Cross-examination by Mr. McCloskey:

 5        Q.   You were asked about the findings and I think you noted earlier

 6     and we see on the front page --

 7             MR. McCLOSKEY:  Let's go to D329 --

 8        Q.   -- the members of the committee for the San Antonio report, and I

 9     think you mentioned his name briefly.  But is it fair to say that Vincent

10     DiMaio, MD, forensic pathologist, is one of the top people in his field?

11        A.   Yes, sir.  I think he is one of the top people in his field.  I

12     study with his publications.  He is really the top researcher and

13     professional in his field.

14        Q.   Do you recall a book - I think they called it the Bible in the

15     United States - on gun-shot wounds by Vincent DiMaio?

16        A.   Yes.  Yes.  That's the first thing I -- I talked to him when I

17     met him because I was honoured to talk to him.  And -- yeah, this is one

18     of those authors you really want to meet, and I had a chance to meet him

19     this time.  Together with Dr. Glasno, I think they were the mother of

20     forensics here in the USA.

21        Q.   Yes.  And just to be clear, Clyde Snow, an equally well-known

22     person, was not involved in the actual exhumations in Bosnia, was he?

23        A.   He was briefly overlooking, I think, a site in Croatia.

24        Q.   Yes.  The Vukovar case --

25        A.   Yes.

Page 42179

 1        Q.   Okay.  Thank you very much for your work those years.

 2             MR. McCLOSKEY:  Nothing further.

 3             JUDGE ORIE:  Thank you, Mr. McCloskey.

 4             JUDGE FLUEGGE:  Mr. McCloskey, are you tendering the photographs

 5     you have shown?

 6             MR. McCLOSKEY:  I had not planned.  Many of these workers, their

 7     names are throughout the reports, but they were not always happy to have

 8     their face and names in the materials.  And I haven't spoken to them for

 9     years so I'm not sure.  And we have many similar photographs.

10             JUDGE ORIE:  Are we supposed to work on the basis of our memory,

11     if someone is identified, that we have to think about what we saw once?

12     Because if it's not in evidence, then -- apart from what the relevance

13     of knowing exactly who is where in the pit is, but --

14             MR. McCLOSKEY:  Mr. President, if you would like it into

15     evidence, it's not a problem.  We'll get it into evidence.  It was mostly

16     done to help refresh the witness's recollection on the site.  There's so

17     many pictures like this, and I'm conscious of your desires to reduce the

18     pictures.

19             MR. IVETIC:  Your Honours, I think the pictures we've looked at,

20     we're not talking about a number of pictures; we're talking about two.

21             MR. McCLOSKEY:  Well, I have no problem of them coming in.  Out

22     of an abundance of caution, they can be under seal.

23             JUDGE ORIE:  The names are mentioned in the public transcripts,

24     Mr. McCloskey.  So I don't know what it would -- unless you say that by

25     seeing half of their heads 20 years ago, that's all -- perhaps a little

Page 42180

 1     bit less, but that would expose them, that would make them unhappy,

 2     whereas their name and their qualities are -- even the books they

 3     authored are all in public --

 4             MR. McCLOSKEY:  It's a question of the face, Mr. President.

 5             JUDGE ORIE:  It's a question of the face.

 6             MR. McCLOSKEY:  It's a question of the face.  I mean, it is 99

 7     per cent sure they're not a problem.  But it was at the time, and of

 8     course they were very close to a war at that time.  So it's probably not

 9     a problem.

10             JUDGE ORIE:  We provisionally put them under seal.  You tendered

11     them.

12             Mr. Ivetic, do you have any concerns?

13             MR. IVETIC:  No, I do not.

14                           [Trial Chamber confers]

15             MR. IVETIC:  If it's just the two that we've looked at, that

16     we've talked about, I don't have a problem.

17             JUDGE ORIE:  You don't have a problem.  But I take it that we're

18     talking about page 7, so there's more.  Would you then, please -- we'll

19     ask Mr. Registrar to reserve of a number for the excerpt of the

20     photographs of the 65 ter number you mentioned, and that number will be

21     reserved.  Once you have uploaded these two photographs, they'll be

22     admitted under seal.

23             Mr. Registrar, the number to be reserved would be?

24             THE REGISTRAR:  It will be P7754, under seal, Your Honours.

25             JUDGE ORIE:  Yes, that's the number reserved.  But, no, I think

Page 42181

 1     the two photographs will be -- that's the excerpt.  There are two series.

 2     Yes, I missed that.  It's good to have colleague that correct me.

 3             MR. McCLOSKEY:  I can clear it up.  There was 65 ter 33528, at

 4     pages 7 and 8 -- sorry 6 - I can't see - 33526, and that's 7 and 8, and

 5     then the other one had its own 65 ter, and that was 33527.

 6             JUDGE ORIE:  Yes.  Before we continue, you agreed on protective

 7     measures for two, but was it three photographs taken from two 65 ter

 8     numbers.

 9             MR. IVETIC:  You have understood me correctly.

10             JUDGE ORIE:  Yes.  Thank you.  Then we need another number.

11             THE REGISTRAR:  Just to clear the record, Your Honours.  65 ter

12     number 33526 will be MFI P7754, under seal, and 65 ter number 33527 will

13     be Exhibit P7755, under seal.

14             JUDGE ORIE:  Yes.  And we're waiting for the upload of the

15     excerpts.

16                           [Trial Chamber confers]

17             JUDGE ORIE:  Mr. Registrar, just to proceed.  The last one, that

18     65 ter number that is 33527, that's only one photograph?

19             THE REGISTRAR:  That's correct, Your Honour.

20             JUDGE ORIE:  Then P7755 is admitted under seal.  And once the new

21     excerpt of 33526 is uploaded, that will be then admitted as P7754.

22             Mr. Del Pino, this concludes your testimony in this court.  We'd

23     like to thank you very much for having come to the videolink location and

24     for having answered all the questions that were put to you by the parties

25     and put to you by the Bench.  I wish you a safe return home again.

Page 42182

 1             THE WITNESS:  Thank you.  May I add something to the Court?

 2             JUDGE ORIE:  Well, yes.  Yes, please do so.  I don't know what it

 3     is, so it will depend on the content, whether I will interrupt you, yes

 4     or no.

 5             THE WITNESS:  Of course.  Sort of an appreciation because when we

 6     express a concern about our work, the court, your court was better

 7     reacting in protecting the research, and started an immediate

 8     investigation.  So that --

 9             JUDGE ORIE:  Okay.  Yes.  As a matter of fact, Mr. Ivetic, in all

10     fairness, if this would lead you to put any further questions to the

11     witness because he said something about, I would say, the substance of

12     what was done.  If you leave it to that, that's, of course, fine as well.

13     You leave it to that.

14             Then we thank you again.

15             And the representative of the Registry at the videolink location,

16     we can now conclude the videolink.  Thank you for your assistance.

17             THE REGISTRAR: [Via videolink] Thank you, Your Honours.

18                           [The witness's testimony via videolink concluded]

19             JUDGE ORIE:  Then we are at a point where we usually take a

20     break, and now I have a few procedural matters remaining.  I would like

21     to deal with them to clean up the court agenda, but perhaps to do it

22     after the break, to deliver a few decisions, to deal with a few matters,

23     use it as a housekeeping session.

24             We'll take break, and we'll resume at 25 minutes past 4.00.

25                           --- Recess taken at 4.05 p.m.

Page 42183

 1                           --- On resuming at 4.23 p.m.

 2             JUDGE ORIE:  I have a few matters which -- yes, Mr. McCloskey.

 3             MR. McCLOSKEY:  Yes, Mr. President.  As you requested, we've been

 4     able to upload the two photographs from 65 ter --

 5             JUDGE ORIE:  If you do not mind, I would like to move into

 6     private session for that at this moment.

 7             MR. McCLOSKEY:  Okay.

 8             JUDGE ORIE:  Could we move into private session.

 9                           [Private session]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 42184

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10                           [Open session]

11             THE REGISTRAR:  We're back in open session, Your Honours.

12             JUDGE ORIE:  Thank you, Mr. Registrar.

13             Then it means that the status of P7755, which was already

14     admitted, now is a public exhibit.

15             And could you please recite the new 65 ter number for P7754,

16     Mr. McCloskey.

17             MR. McCLOSKEY:  Yes.  The new 65 ter number is 33526A.

18             JUDGE ORIE:  Yes.  Now, this excerpt of two photographs which is

19     now uploaded is now attached to what was MFI P7754 and is now Exhibit

20     P7754, because it is admitted into evidence publicly.

21             MR. McCLOSKEY:  Thank you.

22             JUDGE ORIE:  Then I'm afraid I have to return into private

23     session again.

24                           [Private session]

25   (redacted)

Page 42185











11  Pages 42185-42186 redacted.  Private session.















Page 42187

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  Your Honours, we're back in open session.

 8             JUDGE ORIE:  Thank you, Mr. Registrar.

 9             I'll move on with a few matters.

10             The first is the remaining issue from the testimony of

11     Dragic Gojkovic.  During the testimony of this witness on the 12th of

12     August of this year, D1171 and D1172 were marked for identification

13     pending a revised English translation for the former and a revised B/C/S

14     original and English translation for the latter.  Furthermore, D1183,

15     Gojkovic's expert report, was marked for identification pending agreement

16     between the parties on the parts of the expert report to be tendered.

17             On the 14th of September, the Chamber e-mailed the Defence to ask

18     for an update about these exhibits.

19             On the 8th of October, the Chamber gave the Defence a deadline of

20     one week to update the Chamber.

21             On the 14th of October, the Defence informed the Chamber and the

22     Prosecution via an e-mail that it had uploaded into e-court revised B/C/S

23     and English versions of D1171 and D1172, bearing 65 ter numbers 1D05758a

24     and 1D05759a respectively.

25             Any objections?

Page 42188

 1             MR. TRALDI:  Not that I recall, Your Honour.  We are checking our

 2     records quickly.

 3             JUDGE ORIE:  Yes.  I will proceed, meanwhile, and, without giving

 4     specific reasons, you may revisit the matter if there are any objections.

 5             The Chamber hereby instructs the Registry to replace D1171 and

 6     D1172 with the revised versions and admits them into evidence.  With

 7     regard to D1183, the Chamber encourages the parties to come to an

 8     agreement as to the excerpt to be tendered and inform the Chamber within

 9     two weeks from today.

10             Then the next item would be the delivery of the Chamber's

11     decision on the admission of witness Svetlana Radovanovic's expert

12     report.

13             On the 9th of February 2015, the Defence filed a notice of

14     disclosure of Svetlana Radovanovic's expert report pursuant to Rule 94

15     bis of the Tribunal's Rules of Procedure and Evidence.  The Prosecution

16     responded to the motion on the 11th of March, not challenging the

17     qualifications of the witness or the relevance of the report, but also

18     not accepting the conclusions of the report and requesting

19     cross-examination of the witness.

20             On the 13th of May, the Trial Chamber allowed Radovanovic to be

21     called as a demographics expert in this case and deferred its decision on

22     the admission of her report until she testified.  Radovanovic testified

23     before the Chamber between the 24th and 27th of August.

24             On the 24th of August, her curriculum vitae was admitted into

25     evidence, and her expert report was marked for identification as D1211,

Page 42189

 1     under seal.

 2             On the same day, the Defence indicated that there were some

 3     issues with the English translation of the report.  And this is to be

 4     found at transcript page 38152.

 5             On the 1st of October the Defence informed the Chamber and the

 6     Prosecution via an e-mail that the correct English translation of the

 7     report had been uploaded into e-court under doc ID 1D26-1538.

 8             On the 9th of October, the Prosecution advised via an e-mail that

 9     it did not object to the new translation.  In relation to the confusion

10     with CLSS as raised at transcript pages 40344 to -345, the Defence

11     provided an informal explanation which the Chamber accepts.  The Chamber

12     hereby instructs the Registry to replace the old translation of the

13     report with the new translation.

14             Radovanovic reviewed the conclusions of Prosecution experts

15     Ewa Tabeau and Helge Brunborg.  The report therefore relates to the

16     charges set out in the indictment and is thus relevant.  During

17     cross-examination the Prosecution challenged the witness's methodology

18     and analysis and the scope and accuracy of her sources, the reports

19     conclusions and the arguments used in support of those conclusions.

20             The Chamber considers that these challenges go to the weight that

21     it may ultimately attribute to the witness's evidence, not to its

22     admissibility.  The Chamber considers that Radovanovic's evidence may

23     assist in assessing the conclusions drawn by Brunborg and Tabeau.  The

24     Chamber finds the proffered evidence to be probative for the purposes of

25     its admission into evidence in this case.

Page 42190

 1             Accordingly, the Chamber admits the report of

 2     Svetlana Radovanovic, D1211, into evidence, under seal, and this

 3     concludes the Chamber's decision.

 4             The next oral decision I'll deliver is a decision on the

 5     admission of exhibits associated to D982, the witness statement of

 6     Nikola Erceg.

 7             On 15 September 2014 the Defence filed a Rule 92 ter motion

 8     requesting the admission of Erceg's statement and 54 associated exhibits.

 9     During Erceg's testimony on the 1st of April, the Defence informed the

10     Chamber that it was, in fact, only tendering only 45 associated exhibits.

11     The Prosecution did not object to the admission of these associated

12     exhibits and the Chamber marked the documents for identification as D983

13     up to and including D1027.  D989, D993 and D1027 have since been admitted

14     into evidence.

15             The Chamber recalls that documents can be admitted as associated

16     exhibits if they form an inseparable and indispensable part of the

17     witness's written testimony.  In order to satisfy this test, the

18     tendering party must demonstrate that the witness 's evidence would be

19     incomprehensible or of less probative value without the admission of the

20     associated exhibits into evidence.

21             The Chamber has discussed its interpretation of this case law at

22     transcript pages 530 to 531 and 5601 to 5603, and in its written

23     decisions of the 23rd of July, 2012, and the 7th of February, 2013.

24             The Chamber considers that the information contained in 28 of the

25     tendered documents that the Defence would like to bring to the Chamber's

Page 42191

 1     attention is sufficiently quoted in the witness's statement.  The Chamber

 2     further considers with regard to document D983 that the adjudicated facts

 3     in the Karadzic case are not always identical to the adjudicated facts in

 4     this case, which may lead to confusion rather than a better understanding

 5     of the statement.  The Chamber also finds that document D1012 makes the

 6     statement less comprehensible.

 7             The statement is therefore perfectly comprehensible without these

 8     28 underlying documents.  With regard to the remaining 14 associated

 9     exhibits, the Chamber finds that their admission is necessary in order to

10     properly understand the witness's evidence.

11             The Chamber therefore admits the following 14 documents into

12     evidence as associated exhibits to the written statement of Erceg:  D984

13     up to D987, D992, D994, D995, D1001, D1007, D1008, D1013, D1017, D1019

14     and D1026.  With regard to the remaining associated exhibits tendered by

15     the Defence, the Chamber denies their admission into evidence.

16             This concludes the Chamber's decision.

17                           [Trial Chamber confers]

18             JUDGE ORIE:  I move to the next item which deals with the

19     remaining issues from the testimony of Mile Poparic.

20             First, Exhibit D1334, during Poparic's testimony on the 5th of

21     November, the Chamber asked the Defence to inform the Chamber by the 12th

22     of November of this year whether or not it relies on the dialogue

23     contained in Exhibit D1334, an eight-minute video of Serbian news

24     footage.  This can be found at transcript page 40959.  And as of today's

25     date, the Defence has not responded.

Page 42192

 1             The Defence is hereby instructed to respond within one day, that

 2     is, the response to be -- we will not be in court, is to be received by

 3     the Chamber not any later than Monday, 10.00 in the morning, in the way

 4     the Defence prefers.  Either a short statement Monday morning or by

 5     e-mail, which will then later be put on the record.

 6             Next one is about D1335.  On the 29th of October, 2015, the

 7     Chamber asked the Defence to reduce Exhibit D1335, a video of more than

 8     two hours, to the portions that were shown in court on the 28th of

 9     October.  The Defence was asked to update the Chamber within one week,

10     and this can be found at transcript pages 40514 through -515.  As of

11     today's date, the Defence has not provided the Chamber with an update.

12     The Defence is hereby instructed to provide the Chamber with an update

13     within the same time-limits as for D1334.

14             Next, D1336.  On the 29th of October of this year, D1336, a MUP

15     statement of Huso Palo, was marked for identification pending the

16     verification of its translation.  This can be found at transcript pages

17     40539 through -540 and 40788 through -789.

18             On the 4th of November, the Prosecution pointed out that this

19     statement is part of a larger investigative file uploaded into e-court as

20     document bearing Rule 65 ter number 33373, which subsumes, inter alia,

21     D1336 and Exhibits P614, P615, P617, P618, and P619.  This can be found

22     at transcript page 40788.

23             The Defence was instructed to inform the Chamber by the 5th of

24     November of any objections against the admission of the complete

25     investigative file and whether or not it still tenders D1336.

Page 42193

 1             As of today's date, the Defence has not responded.  The Defence

 2     is hereby instructed to respond in court on Monday by 10.00.

 3             If you could express yourself already on it, whether you have any

 4     objections to the admission of 65 ter number 33373, that is, the whole of

 5     the investigative file, please tell us, because then we could decide on

 6     admission.

 7             MR. IVETIC:  Unfortunately, Your Honours, that was our colleague

 8     Mr. Lukic's witness, so Mr. Stojanovic and I don't have the knowledge to

 9     be able to tell anything useful.

10             JUDGE ORIE:  We'll hear from you by Monday, 10.00 in the morning.

11             Of course, there's always a possibility to introduce the matter

12     already briefly by e-mail so that it can be put on the record.

13             We move on to D1340.  On the 5th of November, D1340 was reserved

14     for an excerpt of a video on shelling and sniping incidents.  This can be

15     found on transcript pages 40892 through -893.

16             On the 9th of November, the Chamber received an e-mail from the

17     Defence advising that the surrogate sheet for the video was uploaded into

18     e-court under Rule 65 ter number 1D05911A.  The Chamber did not receive a

19     DVD containing the excerpts of the video.  Could the Defence please

20     provide the Chamber with this CD by not later than Monday morning, 10.00.

21             I take it that you don't have it with you at this moment,

22     Mr. Ivetic or Mr. Stojanovic.

23             Then still in relation to the evidence of Mile Poparic.  Further

24     documents and videos tendered by the Prosecution.

25             On the 5th of November, 2014 [sic], the Prosecution submitted --

Page 42194

 1                           [Trial Chamber confers]

 2             JUDGE ORIE:  If I said "2014," I made a mistake because I meant

 3     to say on the 5th of November, 2015, the Prosecution submitted via an

 4     e-mail a table of investigative source materials related to the report of

 5     Mile Poparic and requested the admission into evidence of the documents

 6     and videos bearing Rule 65 ter numbers 10020, 10021, 09948, 15704, which

 7     is to replace a partial investigative file admitted as Exhibit P7614.

 8             I think I have to -- one second, please.

 9                           [Trial Chamber confers]

10             JUDGE ORIE:  At a later stage, I'll deal with this matter.

11     Please strike from where I said, "On the 5th of November, 2015, the

12     Prosecution submitted via e-mail" because I'll revisit that matter soon.

13             Then I move on to further documents and videos related to

14     Poparic's testimony.

15             On the 5th of November, the Defence circulated a list of 58

16     documents and videos.  The Defence submitted that the number of the

17     documents should be admitted for the purpose of verifying the accuracy of

18     the witness's citations in his report and this can be found on transcript

19     pages 40954 through 40955.

20             The claim recalls its oral decision of the 29th of October, 2012,

21     in which it set out that the Chamber expects the calling party not to

22     tender material underlying proposed expert reports just because a

23     proposed expert referred to or used that document in compiling his or her

24     report.  The Chamber therefore invites the Defence to reconsider its

25     position in relation to these documents.  The Chamber also will await any

Page 42195

 1     formal tendering in relation to documents or videos from the circulated

 2     list.

 3             I now move to the remaining issues from the testimony of

 4     Zorica Subotic.  I start with D1270.

 5             During Subotic's testimony on the 30th of September of this year,

 6     the Defence tendered 1D05545, a MUP report relating to Scheduled Incident

 7     G11.  However, the document has not been translated and forms part of a

 8     larger investigative file which was marked for identification as D1270,

 9     pending a response from the Defence on whether or not it objects to its

10     admission instead of 1D05545.  This can be found on transcript pages

11     39514 through 39515 and 39937 through 39938.

12             Can the Defence advise the Chamber within a short time, the 8th

13     of December, if it objects to the admission of D1270 and if it withdraws

14     the tendering of 1D05545.

15             I move on to D1273.

16             On the 30th of September, 2015, D1273, an SRK command letter was

17     marked for identification pending the provision of a better quality copy

18     of the B/C/S original.

19             Could the parties please advise the Chamber if they have located

20     a better copy.  Most likely not immediately.

21             MR. TRALDI:  Not immediately.

22             JUDGE ORIE:  Could we hear not any later than by close of

23     business Monday, the 8th of December [sic].

24                           [Trial Chamber and Registrar confer]

25             JUDGE ORIE:  Oh, Monday is the 7th.  I apologise.  That's,

Page 42196

 1     indeed, true.  It's not within the competence of this Chamber to change

 2     the calendar.

 3             MR. IVETIC:  And, Your Honours, for the previous D1270, you'd

 4     said 8 December.  Did you mean Monday or 8 December, then?

 5             JUDGE ORIE:  I think I meant the -- let me give you the benefit

 6     of the doubt.  You have until the 8th of December.  If it was a mistake,

 7     you have one day extra.

 8             MR. IVETIC:  Thank you, Your Honours.

 9             JUDGE ORIE:  I think I now move onto D1265 and D1266.

10             On the 30th of September these exhibits, two videos, were marked

11     for identification pending a discussion by the parties to what extent

12     they agree on what is depicted in the videos and to what extent

13     transcripts of the videos should be tendered.  This can be found at

14     transcript pages 39475 through -476.  The parties are invited to inform

15     the Chamber of their progress, if any, on this matter.

16             Parties do not have the right to remain silent, but may I take it

17     that you have not made such progress that it's worthwhile to report to

18     the Chamber.

19                           [Prosecution counsel confer]

20             JUDGE ORIE:  This is the kind interpretation of your silence.

21             MR. IVETIC:  Perhaps I can give time to my colleagues on the

22     other side who probably know better than I do, since I think this was

23     again Mr. Lukic who would have engaged in such discussions.

24             MR. TRALDI:  And what I'm reminded of is that those discussions

25     are ongoing between Mr. Weber and Mr. Lukic, and we expect that they'll

Page 42197

 1     be able to report back more concretely.  But they're in the process and

 2     are assembling the materials.

 3             JUDGE ORIE:  Okay.  That may take a bit more time, so let's be

 4     very generous, that we'd like to hear from the parties not later than the

 5     9th of December.

 6             Next one, D1278.

 7             On 7th of October, D1278, a document containing firing tables,

 8     was marked for identification pending a discussion by the parties as to

 9     which portions of the document should be tendered and which portions

10     should be translated.

11             May I take it that the parties are unable at this moment to

12     inform the Chamber of their progress, if any, on this matter.  And this

13     is not what my text tells me to put to you, but the question was a

14     different one, whether you could update the Chamber.

15             MR. TRALDI:  The Subotic-related documents all fall within the

16     ambit of Mr. Weber and Mr. Lukic's discussions, and so I'd suggest the

17     parties update the Chamber next week on those generally.

18             JUDGE ORIE:  Also not any later than the 9th of December.

19             The same would be true for P7567, which is an excerpt from firing

20     tables for M74 120-millimetre light mortar.  The same discussion was

21     expected to take place between the parties.  The Chamber would like to be

22     updated not later than the 9th of December.

23             I now move on to documents listed as associated exhibits to the

24     65 ter statement of Dragan Kijac.

25             On the 29th of June of this year, the Defence filed a motion

Page 42198

 1     seeking admission of Dragan Kijac's written statement as well as a large

 2     number of associated exhibits.  Amongst them was a document bearing Rule

 3     65 ter 1D5433, for which the Defence additionally requested that it be

 4     added to the Rule 65 ter exhibit list.  The request for its addition to

 5     the Defence exhibit list is hereby granted.

 6             Kijac testified on 19th of October as well as on the 11th and the

 7     12th of November.  On 19th October, the Chamber admitted the witness's

 8     statement and a large number of associated exhibits into evidence.  The

 9     Defence did not tender document 65 ter 1D5433 during Kijac's testimony.

10     The Prosecution submitted this document was not admissible as an

11     associated exhibit and expressed concerns regarding its provenance.  The

12     Defence did not address or provide reasons for admission of the document

13     during Dragan Kijac's testimony or thereafter.

14             The Chamber recalls that documents can be admitted as associated

15     exhibits if they form an inseparable and indispensable part of the

16     witness's written testimony.  It has reviewed the document bearing 65 ter

17     1D5433 and finds that it does not form an inseparable and indispensable

18     part of Kijac's statement as it does not sufficiently relate to the

19     content of the witness's statement.  The Chamber further considers

20     paragraph 12 of the witness's statement to be fully comprehensible and

21     probative without reference to the proposed associated exhibits.

22             Consequently, the Chamber denies its admission into evidence, and

23     this concludes the Chamber's decision in relation to that exhibit.

24             I think a number had not yet been assigned so, therefore, that's

25     everything we'll have to decide.

Page 42199

 1             Then I've got three small items left.  The first one is a

 2     remaining issue from the testimony of Ostoja Marjanovic and it deals with

 3     P7636, which is an article from the Balkan Transitional Justice, which,

 4     on the 10th of November, 2015, was marked for identification pending the

 5     provision of a B/C/S translation.  This can be found at transcript pages

 6     41055 through 41056.

 7             On the 11th of November, the Prosecution advised the Chamber and

 8     the Defence via an e-mail that the translation had been uploaded into

 9     e-court under doc ID 0687-4581-BCST.  That same day, the Defence

10     responded, confirming that it had no objection to the translation.  The

11     Chamber hereby instructs the Registry to attach the B/C/S translation to

12     P7636 and admits it into evidence.

13             The next item also is a remaining issue from the testimony of

14     Ostoja Marjanovic.

15             On the 9th of November, 2015, P7632, an article from Balkan

16     Transitional Justice, was marked for identification pending the provision

17     of a B/C/S translation.  This can be found at transcript page 41034.

18             On the 10th of November, the Prosecution advised the Chamber and

19     the Defence via an e-mail that the translation had been uploaded into

20     e-court under doc ID 0687-4583-BCST.

21             The Chamber hereby instructs the Registry to attach the B/C/S

22     translation to P7632 and admits it into evidence.

23             The Defence has seven days to revisit the matter, if it wishes to

24     do so.

25             The last item on my agenda is a remaining issue from the

Page 42200

 1     testimony of Witness GRM-097.  It is about P7584.

 2             On the 21st of October, 2015, P7584, an excerpt of an UNPROFOR

 3     code cable, was marked for identification pending the provision of a

 4     B/C/S translation and the upload of the entire document.  This can be

 5     found at transcript page 40158.

 6             On the 13th of November, the Prosecution advised the Chamber and

 7     the Defence via an e-mail that the entire document had been uploaded into

 8     e-court under Rule 65 ter number 33311a and that a B/C/S translation had

 9     been attached.

10             The Chamber hereby replaces P7584 with the new version and admits

11     it into evidence, assuming that the Defence does not object.  However, if

12     you would wish to object, you have an opportunity to do so until the 9th

13     of December.

14             Mr. Tieger.

15             MR. TIEGER:  Thank you, Mr. President.

16             Just a quick and small adjustment to what I'll call our concise

17     response to the Court's inquiry about progress on discussions regarding

18     the mortar and firing tables, the Prosecution has, indeed, identified the

19     excerpts for which it will seek admission and provided it to the Defence.

20     Mr. Lukic, in fact, may have already done the same on his part but has

21     been away for this period of time.  So I simply wanted to -- I think the

22     same timetable should apply, but I didn't want the Court to get the

23     misimpression that no progress had been made in the interim.

24             JUDGE ORIE:  Yes.  Nevertheless, we'll not shorten the time

25     available to further report finally to the Chamber.

Page 42201

 1             Any other matter to be raised by the parties?  If --

 2             Yes, Mr. Traldi.

 3             MR. TRALDI:  Just on the two exhibits marked for

 4     identification -- or mentioned that had previously been marked for

 5     identification from Witness Gojkovic, D1171 and 1172.  We have no

 6     objection to the translations.

 7             JUDGE ORIE:  That means -- let me see ...

 8             MR. TRALDI:  My recollection is the Chamber had admitted them and

 9     given us an opportunity to come back, and I was simply putting on the

10     record that we don't be doing so.

11             JUDGE ORIE:  D1171 and D1172 are admitted.  That is -- I think

12     it's with regard to 1183 that the Chamber encouraged the parties then to

13     come to an agreement as to the excerpts to be tendered and inform the

14     Chamber.

15             But D1171 and 72, we now understand that there's no objection and

16     therefore that the decision that it was admitted remains valid.

17             Mr. Ivetic.

18             MR. IVETIC:  One matter.  And we should move into private

19     session.

20             JUDGE ORIE:  We move into private session.

21                           [Private session]

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 42202











11  Page 42202 redacted.  Private session.















Page 42203

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17                           [Open session]

18             THE REGISTRAR:  We're back in open session, Your Honours.

19             JUDGE ORIE:  Thank you, Mr. Registrar.

20             We adjourn for the day and we'll resume Monday, the 7th of

21     December, 9.30 in the morning, in this same courtroom, I.

22                           --- Whereupon the hearing adjourned at 5.19 p.m.,

23                           to be reconvened on Monday, the 7th day of

24                           December, 2015, at 9.30 a.m.