Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20986

 1                          Tuesday, 5th February 2008

 2                          [Open session]

 3                          [The accused entered court]

 4                          --- Upon commencing at 2.20 p.m.

 5            JUDGE AGIUS:  Good afternoon.

 6            Madam Registrar, could you call the case, please.

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

 8    number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

 9            JUDGE AGIUS:  Thank you, ma'am.

10            All the accused are present.  I notice the absence of Mr. Meek.

11    And the prosecution, it's Mr. McCloskey and Mr. Mitchell and Mr. Thayer.

12            Yes.  You would have noticed the absence of Judge Kwon.  He's on

13    official business which I authorised, because we had planned to finish the

14    Prosecution case on the 1st and then it was a point of no return, and so

15    he won't be with us for the rest of the week.  So we are sitting pursuant

16    to Rule 15 bis.

17            Any preliminaries?

18            Yes, Mr. Josse.

19            MR. JOSSE:  Your Honour, on Friday, after the Court's oral

20    decision in relation to the calling of Witness 195, I indicated, on behalf

21    of my client, that we needed some time to consider the issue of

22    certification.  We do wish to apply for certification of that decision.

23    My oral submission will take no more than five minutes.  I will make it at

24    whatever juncture today the Court feels is convenient.

25            JUDGE AGIUS:  Thank you, Mr. Josse.  Let me consult with my

Page 20987

 1    colleagues.

 2                          [Trial Chamber confers]

 3            JUDGE AGIUS:  Yes, Mr. Josse, you may proceed now.

 4            MR. JOSSE:  Your Honour, before I turn to the criteria under the

 5    Rule itself, in effect these are the matters that we would wish to pursue

 6    on appeal in relation to this matter:

 7            Firstly, the failure of the Trial Chamber to give proper time to

 8    the Defence of General Gvero to reply to the Prosecution motion in the

 9    first place.  In particular, by reason of that failure, the fact that it

10    prevented the Defence researching fully and properly factual and legal

11    matters that arose, in particular the issue of prejudice to the accused by

12    reason of the lateness of the motion and the lateness of the addition of

13    the name to the 65 ter witness list.

14            So far as the decision itself is concerned, the failure by the

15    Trial Chamber to apply the law properly in relation to the issue of

16    prejudice and, in any event, in other words, in the alternative, the wrong

17    use of discretion in relation to the same issue, namely, prejudice.

18            Thirdly, the failure of the Trial Chamber to allow the Defence

19    proper time to prepare for the witness prior to her testimony,

20    particularly bearing in mind the practice applied in this case hitherto in

21    relation to all or virtually all previous witnesses who have given their

22    evidence.  And, finally, the over-slavish adherence by the Trial Chamber

23    to the existing schedule, to the grave potential detriment to my client.

24            So far as the Rule itself is concerned, as is well-known - and I'm

25    not going to spend very long on this at all - there are two hurdles that

Page 20988

 1    an applicant needs to overcome.  So far as the first hurdle is concerned,

 2    it's either that the issue would affect significantly the fair and

 3    expeditious conduct of the proceedings or the outcome of the trial.  It's

 4    really the words "outcome of the trial" that we rely upon here.  As has

 5    been accepted by both the Prosecution and the Defence, and indeed the

 6    decision itself used the words "important point," this is an important

 7    issue, and as such it is beyond doubt one which we submit would

 8    significantly affect the outcome of the trial, and therefore would benefit

 9    from a resolution by the Appeals Chamber.

10            Of course, there's a second limb that we also need to overcome,

11    and that is in relation to an immediate resolution by the Appeals Chamber

12    may materially advance the proceedings.  Firstly, we emphasise the rule

13    "may" in the Rule, so far as that is concerned.  Secondly, so far as the

14    immediate resolution is concerned, it's important because it clearly is

15    going to affect how the Defence intends and will address the issue when it

16    comes to our turn.  Our consideration would be completely different,

17    depending on whether or not this particular witness gives her evidence.

18    And we can test this another way, and that is in relation to our

19    application for the recall of certain Prosecution witnesses.

20            The Defence have stated categorically and have demonstrated, in

21    fact, that they weren't going to seek the recall of the witnesses on the

22    evidence on this point hitherto.  However, the Defence have now said they

23    will seek the recall of these witnesses.

24            An immediate resolution by the Appeals Chamber would materially

25    advance the proceedings in that regard, because it would clarify whether

Page 20989

 1    those witnesses need to be recalled, and therefore the proceedings would

 2    be much clearer.  And in particular, in short, we say that if this

 3    important issue was ruled upon at this particular juncture, namely,

 4    whether this important piece of corroborative evidence should be called or

 5    not, it would clearly affect the outcome of the trial and may undoubtedly

 6    materially affect -- advance the proceedings.

 7            In conclusion, could we submit this, Your Honour, and I know I've

 8    said it before and I'm going to sound like a broken gramophone here, but I

 9    make no apologies for it, extraneous considerations in relation to

10    scheduling and time restraints are exactly that, extraneous, and they

11    should play no part in the Trial Chamber's decision under Rule 73, which

12    makes no reference to scheduling considerations.

13            Those are our submissions.

14            JUDGE AGIUS:  I thank you so much, Mr. Josse.

15            Mr. McCloskey or Mr. Thayer, would you like to respond?  Very

16    briefly, please, not much longer than Mr. Josse.

17            MR. THAYER:  Certainly, Mr. President.

18            Good afternoon to you and Your Honours.  Good afternoon to

19    everyone.  It will certainly be brief, because I wasn't aware that we

20    would be orally addressing this this afternoon.

21            Nevertheless, suffice it to say that it's the Prosecution's

22    position that the Defence has met neither prong of Rule 73, and in

23    particular I note the absence of any reference to the Trial Chamber's fair

24    and reasonable approach to this new evidence, which entails permitting the

25    technical reopening of the Prosecution's case prior to any Defence case

Page 20990

 1    presented by the Gvero team, ultimately of course depending on the outcome

 2    of the 98 bis proceedings.  That measure -- that measure that the Trial

 3    Chamber imposed in its oral decision of last Friday, I think, satisfies

 4    all of these concerns.  It permits this investigation to be concluded,

 5    should the Defence in the end think that that testimony is even worth for

 6    it to bring out.  That avenue that the Court laid open, I think, defeats

 7    any of the grounds upon which my friend is seeking certification under

 8    Rule 73.

 9            And once again, despite the prior notice of this issue, dating all

10    the way back to the first week of November, my friend has not presented

11    one wit of evidence either or authority in law or in fact about how he is

12    going to be prejudiced.  It is speculative.  He referred to grave

13    potential detriment.  There has been no -- no authority cited to this

14    Court at all at any point on that issue.  For that reason, I think the

15    certification motion, respectfully, should be denied.

16            JUDGE AGIUS:  Thank you, Mr. Thayer.

17            We'll come back to you with our decision at the earliest.

18            Yes, Mr. Bourgon.

19            MR. BOURGON:  Thank you, Mr. President.

20            Good afternoon.  Good afternoon, Judges.  Good afternoon,

21    colleagues.

22            Mr. President, there are two issues I would like to briefly

23    address the Trial Chamber.  The first one relates to the admissibility of

24    Exhibits 685 and 686, which are the narratives prepared by the witness

25    Richard Butler to which I referred last Friday.  Mr. President, some of

Page 20991

 1    the Defence team and possibly all Defence teams will be filing a joint

 2    motion challenging the admissibility of the narratives prepared by Richard

 3    Butler, and due to the fact that -- or due to the duration of his

 4    testimony and the need to refer to this testimony in our motion, I hereby

 5    apply and seek leave from the Trial Chamber to exceed the normal word

 6    limit and to file a motion not exceeding 6.000 words.

 7            Thank you, Mr. President.

 8            JUDGE AGIUS:  Do you wish to respond to that, Mr. McCloskey?

 9            MR. McCLOSKEY:  I would object to the exceeding the word limit.

10                          [Trial Chamber confers]

11            JUDGE AGIUS:  Okay.  Permission is granted, Mr. Bourgon. However,

12    I'm sure Mr. Josse will agree with us, this is certainly not an extraneous

13    matter.  It's in your own interest, considering the proximity of the Rule

14    98 bis to file this with the utmost clarity so that we can do our utmost

15    to decide it in good time for you to know whether these reports or

16    findings would be taken into consideration in the course of the Rule 98

17    bis exercise.

18            MR. BOURGON:  Thank you, Mr. President.

19            We have been coordinating over the weekend, and this motion can be

20    filed today, probably, but we wanted to be sure about the asking

21    permission to exceed the word limit before the motion is filed, in

22    accordance with the practice direction.

23            JUDGE AGIUS:  That permission is granted.  That's the first one.

24            You had a second one?

25            MR. BOURGON:  The second topic, Mr. President, deals with what the

Page 20992

 1    Trial Chamber ruled last week concerning the Prosecution's 92 quater

 2    motion, that the impact thereof would not be considered for the Rule 98

 3    bis purposes.  I would just like to know, Mr. President, is:  Can we

 4    expect a ruling in writing on this issue?  And the reason I ask is simply

 5    because there might be the need to call some further witnesses for further

 6    cross-examination, and this has not been addressed in the oral decision

 7    that was given by the Chamber on Friday.

 8            Thank you, Mr. President.

 9            JUDGE AGIUS:  I think we made our position clear.  For the purpose

10    of Rule 98 bis, it's as if we don't have on our table that motion at all.

11    In other words, there is no 92 quater evidence that are in the record and

12    that will be referred to by the Trial Chamber in reaching its decision.

13    However, yes, of course there will be a decision later on.  I mean, this

14    decision that we are taking now, in other words, to keep that material out

15    of the records for the purpose of Rule 98 bis, we have decided it.  I

16    don't think we need to put that in writing.  You have our word.  But then

17    there will be a written decision on the motion itself, after of course

18    having received your responses which you will take the normal time.

19            I mean, we are not restricting the time limits for the filing of

20    those motions.  File them within the time limit and then we will decide

21    it.  We will obviously not decide it before the Rule 98 bis exercise,

22    because the purpose of our previous decision was precisely that, that we

23    will give this matter, which is of importance, our absolute attention, and

24    then we'll decide it later on, when we are ready.  Okay?

25            MR. BOURGON:  Thank you, Mr. President.

Page 20993

 1            JUDGE AGIUS:  Thank you.

 2            Before we bring in the witness, Mr. McCloskey and members of the

 3    Defence teams, I refer you to Prosecution motion of the 31st of January,

 4    seeking leave to amend the 65 ter exhibit list with two exhibits

 5    pertaining to this witness.  There are not going to be any protective

 6    measures for this witness, are there?

 7            Mr. Thayer.

 8            MR. THAYER:  No, there are not, Mr. President.

 9            JUDGE AGIUS:  Okay.  So Witness 192, Tomic, anyway.

10            Is there any objection on the part of any of the Defence teams?

11    All right, thank you.

12            So the motion is granted, Mr. McCloskey or Mr. Thayer.  Who will

13    be leading this witness?  I take it Mr. Thayer.

14            MR. THAYER:  Yes, Mr. President.

15            JUDGE AGIUS:  Okay.

16                          [Trial Chamber and registrar confer]

17            JUDGE AGIUS:  Before we bring in the witness ...

18                          [Trial Chamber confers]

19            JUDGE AGIUS:  Yes.  In relation to the documents arising from

20    Butler's testimony, my original idea was to ask you, very briefly, whether

21    you anticipate a long debate or not, in the absence of which my intention

22    was to proceed today with the tendering process.  I was not anticipating,

23    of course, what Mr. Bourgon stated earlier on, and that brings us to the

24    conclusion that it's better if we delayed the issue of the Butler

25    documents until we're finished with these three witnesses, which would

Page 20994

 1    leave us then with the motion and any other matters that may be raised by

 2    way of objection to the tendering of documents from both sides.

 3            Yes, Mr. McCloskey.

 4            MR. McCLOSKEY:  Thank you, Mr. President, and that sounds fine.

 5            But just to make it clear, especially if there's a motion filed,

 6    we have our big list of Butler exhibits.  We also have his narratives and

 7    his command reports on CD that are hyperlinked to the cited documents in

 8    them, and so we always offer Mr. Butler's reports as well as his various

 9    footnotes and citations, because without them the report doesn't make as

10    much sense.  And so that's the matter at hand.

11            JUDGE AGIUS:  Yes, thank you, Mr. McCloskey.  But considering the

12    procedure that we have adopted from the beginning of this case, there

13    should be no problems, because where there are objections that cannot be

14    resolved or which are tied, intrinsically tied to the motion that we are

15    expecting, then we can always MIF -- or MFI and admit the rest and we can

16    proceed, and then for the purpose of the Rule 98 bis exercise you will

17    know exactly where you stand.  So we will deal with it in the practical

18    way that we have adopted so far.  So you don't -- please don't expect any

19    particular complications or problems.

20            Yes, Mr. Bourgon.

21            MR. BOURGON:  Thank you, Mr. President.

22            I would just like to confirm that the joint motion being prepared

23    addresses solely Exhibit 685 and 686, which are the narratives, and not

24    the other documents.

25            However, regarding the issue just raised by my colleague, we will

Page 20995

 1    object to the handing over of such a CD assistance unless my colleague can

 2    establish a clear link between every document used -- or that the links

 3    with that CD with a Rule 65 ter number.

 4            Thank you, Mr. President.

 5            JUDGE AGIUS:  Yes, Mr. McCloskey.

 6            MR. McCLOSKEY:  The 65 ter number that links these documents is

 7    the 65 ter number for the narrative and the command reports.  They are

 8    clearly on notice, have been on notice forever.  These documents have

 9    always been put into the evidence in the other trial.  It's not an issue

10    of notice.

11            JUDGE AGIUS:  All right, let's not lose more time on this.

12            MR. McCLOSKEY:  Just one other thing.

13            We had the large-size maps related to the small size that we had

14    provided you, and we have those now.  I don't know if you want those, or

15    we can always bring them back, if need be.

16            JUDGE AGIUS:  All right.  Mr. Tomic.

17                          [The witness entered court]

18            JUDGE AGIUS:  Good afternoon to you, Mr. Tomic.

19            THE WITNESS: [Interpretation] Good afternoon.

20            JUDGE AGIUS:  And welcome to this Tribunal.  You're about to start

21    giving evidence.  Before you do so, our Rules require that you solemnly

22    declare that you will be speaking the truth.

23            Madam Usher is going to hand you the text of the solemn

24    declaration.  Please read it out aloud, and that will be your solemn

25    undertaking with us.  I solemnly declare that I will speak the truth, the

Page 20996

 1    whole truth, and nothing but the truth.

 2                          WITNESS:  MILENKO TOMIC

 3                          [The witness answered through interpreter].

 4            JUDGE AGIUS:  I thank you, sir.  Please make yourself comfortable.

 5            THE WITNESS: [Interpretation] You're welcome.

 6            JUDGE AGIUS:  Now, I am hopeful that we will finish with you

 7    today.  Mr. Thayer will go first, and then he will be followed by all or

 8    some of the Defence teams on cross-examination.  Your duty is not to make

 9    a distinction between Prosecution and Defence and to answer each question

10    that is put to you as precisely and as truthfully as possible.

11            Mr. Thayer.

12            MR. THAYER:  Thank you, Mr. President.

13                          Examination by Mr. Thayer:

14       Q.   Good afternoon, sir.

15       A.   Good afternoon.

16       Q.   I just ask you, if you could, just move your chair just a little

17    bit closer to the microphone, and that way it will pick up everything you

18    say.

19       A.   Thank you.

20       Q.   Sir, would you please state your name for the record.

21       A.   Milenko Tomic, son of Djordje.

22       Q.   And how old are you, sir?

23       A.   On the 30th of July, 1948.

24       Q.   And would you please tell the Trial Chamber where you were born

25    and raised?

Page 20997

 1       A.   I was born in Tuzla, and I live in Zvornik.

 2       Q.   And how long have you lived in Zvornik, sir?

 3       A.   Sixty years.

 4       Q.   And you identify yourself as a Bosnian Serb; is that correct?

 5       A.   Yes.

 6       Q.   Please tell the Trial Chamber what you do for a living.

 7       A.   I'm a driver of trucks.

 8       Q.   And do you work for a particular company, sir?

 9       A.   I work for the company of Metalno in Zvornik.

10       Q.   And how long have you been a driver for the Metalno company in

11    Zvornik?

12       A.   Thirty-nine years.

13       Q.   Now, I want to turn your attention to the war and ask you what

14    kind of duties you performed during the war.

15       A.   I was a driver, and for a while I was at the front line.

16       Q.   And as a driver, sir, and, for that matter, when you were at the

17    front line, do you recall which battalion you were a member of?

18       A.   While I was at the front line, I don't know.  I was periodically a

19    driver, too.

20       Q.   And when you were driving, as part of your military duties, do you

21    recall which battalion you were attached to?

22       A.   That was the Standard barracks.  That's where I belonged.

23       Q.   Okay.  And just to clarify this one point, sir, may we have 65 ter

24    3227 on e-court, please.

25            Do you see a document in front of you, sir, on the computer?

Page 20998

 1       A.   I do.

 2       Q.   And if we could scroll down just a little bit, you told us your

 3    father's name was Djordje?

 4       A.   Yes.

 5       Q.   There's an entry at line 24 --

 6       A.   Yes.

 7       Q.   -- that refers to a Milenko Tomic, son of Djordje, and do you see

 8    the name "Metalno" there?

 9       A.   Yes.

10            MR. THAYER:  Now if we could scroll back up to the top of the

11    document, please.

12       Q.   Do you see that there's a reference to the R Battalion in the

13    heading there, near the date of December 15th?

14       A.   Yes, that's what it says, yes, in the top part of the document, at

15    0800 hours, and above that it says "The R Company."

16       Q.   Or "The R Battalion."  Do you see that, sir?  It may be a

17    translation issue.

18       A.   Yes.

19       Q.   My question is very simple, sir.  During your military service,

20    did you ever hear a reference to the R Battalion?  And if so, do you know

21    what that "R" stood for?

22       A.   When we were under work obligation, we would be assigned to the

23    barracks there to work for the army.  That was the R Battalion.

24       Q.   Okay.  And just one last question on this.  Do you recall what

25    that letter "R" stood for?  What did that abbreviation refer to, if you

Page 20999

 1    remember?

 2       A.   I think that whenever we were under work obligation and working

 3    for a company, we would be asked to report to the barracks to the R

 4    Battalion.

 5       Q.   Okay.  Let's move on.

 6            THE INTERPRETER:  The interpreter adds the witness said "to the

 7    military post there."

 8            MR. THAYER:  Okay.

 9       Q.   Could you describe for the Trial Chamber, please, the procedure or

10    how you would receive assignments from the Standard barracks?

11       A.   When we were at the barracks, in the morning, if a trip had to be

12    made, one received a travel order and fuel.  The boss, meaning the person

13    charged with these tasks, would issue us this assignment and we'd be off.

14       Q.   Okay.  And let's just back up for one second.  Most of the time,

15    it's fair to say, you were permitted to work at your company, Metalno; is

16    that correct?

17       A.   Well, yes, depending on the times, depending on the needs.

18       Q.   And how were you notified, when you were at your company, that

19    your presence was required at the Standard barracks?

20       A.   For the most part, it was either by a telephone or a courier would

21    come to the company, and then the bosses, who would be in touch with them,

22    would let us know that we had to report to the barracks, to the Standard

23    barracks.

24       Q.   And when you arrived at the Standard barracks, sir, to whom would

25    you report?

Page 21000

 1       A.   We'd report to the office of Radislav Pantic, where the drivers

 2    would normally stay.

 3       Q.   And did you know Mr. Pantic before the war, sir?

 4       A.   Yes, I knew him.  He worked with me in the same company.

 5       Q.   And do you know what position he held in the army, sir?

 6       A.   I don't know.  I think he was the head of transports.  He'd assign

 7    different vehicles.

 8       Q.   Now, when you reported to Mr. Pantic at Standard, was there any

 9    particular form or document which he would give you before you set out on

10    your assignment?

11       A.   Only a travel order, nothing else.

12       Q.   And during the war, sir, when you arrived at Standard to receive

13    your orders, did anyone other than Mr. Pantic issue these travel orders to

14    you?

15       A.   Sometimes somebody else would issue them, but most of the time it

16    was Pantic who did.

17       Q.   Okay, sir.  I want to turn your attention to a particular day and

18    to a particular assignment you received, and it's no surprise to anyone

19    here what that was.  And I know and I can see that this isn't easy for

20    you, and I just want to ask you to, if you can, take your time when you

21    tell the Court what happened that day.  And, sir, if at any time you feel

22    like you need a break for any reason, please do not hesitate to say so.

23    Okay?  And I'll start my questions in a moment.  I just want to make sure

24    you understand that.

25       A.   Yes.

Page 21001

 1       Q.   Okay.  Please, sir, tell the Court about this assignment you

 2    received on this particular day.  And if you remember the day, please tell

 3    the Court, and just take us from the very beginning.

 4       A.   Truth to tell, I don't recall the date.  But based on what you --

 5    what I received, the travel order, I was able to see.  It was on that day

 6    that I received my travel order from Radislav Pantic and I set off.

 7            When I arrived in the place called Pilica, I didn't come across

 8    anyone at the centre there.  I set off toward Kula, another small

 9    settlement not far away from there.  I was supposed to report to somebody

10    else there, but I -- again I found no one.  I returned to Pilica.

11            On the way out of Pilica, along the main road, that's some 100

12    metres away from downtown Pilica, I came across a soldier who pulled me

13    over and told me that I should report outside the dom there.  I followed

14    him and reached the dom.  He told me to park the vehicle next to a side

15    door that was just there by the dom.  Having parked there, I went with him

16    to a nearby house, where there was a lady who offered us a cup of coffee.

17    In fact, he had told me that we should have a cup of coffee there.  I had

18    a cup of coffee and a couple of shots of rakija, of brandy, as well.

19            After a while, the man joined me again and said that we would be

20    able to set off in half an hour's time.  I joined him without noticing

21    anything in particular.  I saw that the sides of the truck, the tarpaulin

22    had been lowered without having been tied, in fact, and he said, "We're

23    going up there."  I asked him what it was that we were driving there, and

24    he, after some hesitation, said that we were driving dead bodies.

25            Once we reached that place up there, what's it called, Branjevo,

Page 21002

 1    he said that we should park there.  As I was approaching that area, I

 2    observed some individuals in civilian clothes.  I parked there.  He then

 3    told me that there were some cattle barns there, that we should spend a

 4    while there.

 5            We came upon some workers who were feeding the cattle there.  I

 6    lingered with them for a while, had a couple of shots of brandy, and

 7    talked to them.

 8            Later on, on my way back, I didn't notice anything in particular.

 9    I got into the truck, and he said that we should leave.  I returned to the

10    very same spot where I was earlier on, parked the vehicle there, and he

11    took me once more to that lady, to sit there for a while and have some

12    more brandy.  I engaged in a conversation with her, but she never said

13    anything about what was going on.

14            Roughly half an hour later, the man rejoined us and said that we

15    should leave once more.  As we were on our way up there, I asked him

16    again, "Well, how much of it is there?"  He really didn't tell me

17    anything.

18            As we reached the area up there and approached a site, I saw some

19    corpses lying farther away.  I parked the vehicle in the reverse and went

20    to the barn again where I was earlier on.  Around a half hour passed, and

21    in the meanwhile I had a couple of shots of brandy again.

22            We went back down there, and as we approached an intersection, we

23    were stopped.  A soldier standing there told us, "You're off the hook.

24    You're not needed anymore."  And at that point, he told me one, "One of

25    the sides at the back of your truck has not been lowered."  I got out of

Page 21003

 1    the truck, lowered the side, and then headed for Zvornik, leaving them

 2    behind.

 3            That's it.

 4       Q.   Okay, sir.  I just want to follow up with a couple of questions

 5    about what you've just told us.

 6            When Mr. Pantic gave you the travel order this day, did he tell

 7    you where you were to go?

 8       A.   Yes, he said that I should set out for Pilica and then Kula, and

 9    that I was going to pick up the military.

10       Q.   Now, when you encountered this soldier, you stated that you had

11    gone to Kula and then to Pilica, and when you were stopped by this

12    particular soldier, sir, can you describe anything to the Trial Chamber

13    about this soldier's appearance, his uniform, his age, anything at all

14    about this soldier that you recall?

15       A.   Well, I think the soldier had the old uniform on of the former

16    Yugoslav People's Army.  He was perhaps some 30 years of age.  I didn't

17    know him.

18            JUDGE AGIUS:  I think the purpose of -- the ultimate purpose of

19    the question put to you by Mr. Thayer was intended to elicit from you

20    anything this soldier was wearing on his uniform that could identify his

21    rank or the unit to which he belonged.  Did he have any insignia on the

22    uniform that you recognised?

23            THE WITNESS: [Interpretation] No, he didn't have any insignia or

24    ranks on the uniform.

25            JUDGE AGIUS:  And during these times, did you ever or had you ever

Page 21004

 1    seen other soldiers wearing the same kind of uniform, that is, the old JNA

 2    uniform, or was it this -- was this the first time that you saw someone

 3    wearing that kind of uniform?

 4            THE WITNESS: [Interpretation] I think -- well, I had that old

 5    uniform on whenever I was doing a job of work or something like that.

 6            JUDGE AGIUS:  All right.

 7            Yes, Mr. Thayer.

 8            MR. THAYER:

 9       Q.   So just to follow up on His Honour's question, how would you

10    describe, if at all, if you can, the purpose of the uniform that you saw?

11    Was there some special purpose that you associate with the type of uniform

12    that you saw this soldier wearing?

13       A.   Well, probably these were uniforms one would wear when doing

14    physical work on construction sites, whilst carrying construction

15    materials and stuff like that.

16       Q.   Now, during this first trip to the dom at Pilica, sir, or during

17    your second trip, did you see any other soldiers present in the area, in

18    addition to this one that you've just described?

19       A.   There were some perhaps six soldiers wearing the same uniform,

20    without any insignia, who were working.  I didn't see anybody else.

21       Q.   And you described this one soldier who accompanied you on these

22    trips as being perhaps in his 30s.  Do you recall the general age of the

23    other soldiers that you saw around the Pilica dom when you were there?

24       A.   The other ones were older than him, between 50 and 52 years of

25    age.  He was the youngest among them.

Page 21005

 1       Q.   You described this door at which you parked your truck at the dom

 2    as being a side door, sir.  Do you remember how you physically parked your

 3    truck at that door?  In what direction?

 4       A.   I parked it slant-wise, and I drew a sketch of it, slant-wise with

 5    the back side facing the door.

 6       Q.   Now, sir, on this second trip that you took to Branjevo, when you

 7    saw the bodies, can you describe in just a little bit more detail how it

 8    was that you came to see these bodies, and can you describe for the Trial

 9    Chamber approximately how many you saw?  We know that you weren't counting

10    them, but can you describe, in general terms, how many bodies you saw

11    there at Branjevo?

12       A.   When I got out of the vehicle, I saw them lying on the ground next

13    to the back side.  I don't know how many of them there were; five or ten.

14    I didn't count them.  When I saw those civilians eating there, holding a

15    slice of bread and sausage in their hands, I just couldn't bear to watch

16    that.  I felt sick and had to get away.

17       Q.   When you were told that you weren't needed anymore or that your

18    services weren't needed, where did you go next with your truck?

19       A.   I drove toward the barracks, and on the way I dropped by some

20    bars, had a couple of shots more, and then finally drove to the barracks.

21       Q.   Where did you leave the truck, sir?

22       A.   I left the truck on the parking lot where the trucks were normally

23    left.  I left the keys and the travel order in the cab of the truck and

24    went home.

25       Q.   And do you recall being told to do anything with your truck after

Page 21006

 1    you had transported these bodies?

 2       A.   When I closed one of the sides at the intersection there, I

 3    realised that the back side of the truck had been all muddied and bloodied

 4    over, and I knew I should do something about it.  But with all the alcohol

 5    that I had drunk earlier on, I wasn't able to do it.  I went home.

 6       Q.   Just a few more questions, sir.

 7            You referred to a sketch that you drew, and you drew that sketch

 8    back in November, when the investigators first met with you; is that

 9    correct?

10       A.   Yes.

11       Q.   And we'll look at the sketch in a moment, but before we do:  Do

12    you remember generally what you drew on that sketch?

13       A.   I drew the main road, the dom, the nearby houses, the entrance,

14    and the parked vehicle.

15            MR. THAYER:  Okay.  May we have 65 ter 3226, please.  And if we

16    could magnify it just a little bit, please.  Great, thank you.

17       Q.   Sir, do you see this document in front of you on your screen?

18       A.   I do.

19       Q.   You recognise what that is?

20       A.   It's the main road between Zvornik and Bijeljina and the side road

21    which takes you up to the village, the memorial site, and the cultural

22    hall or the dom, as well as the truck, TAM 130.

23       Q.   Okay.  I'm just going to ask you to explain these just a little

24    bit.

25            You mentioned the Zvornik-Bijeljina road.  Is that what's depicted

Page 21007

 1    at the bottom of the sketch with the arrow leading from Zvornik, sir?

 2       A.   Yes.

 3       Q.   And if we look at the left-hand portion of the sketch, you've

 4    marked a large rectangle with the initials "DK."  What does that stand

 5    for, sir?

 6       A.   Dom Kultur or Culture Hall.

 7       Q.   And below that there is a little sort of circle or smaller area

 8    you've indicated right below the rectangle of the Dom Kultur.  Can you

 9    tell us what that is?  It looks like --

10       A.   The memorial site.

11       Q.   Okay.  And you've already told us you wrote in "TAM 130" next to

12    where your truck was parked; is that correct?

13            We need an audible -- a "yes" or "no" just so we can pick it up on

14    the transcript, sir.

15       A.   Yes.

16       Q.   Okay.  And I see there's a little "V" with a period on this sketch

17    of the Dom Kultur that you drew.  What does that "V" stand for?

18       A.   I don't see that.

19       Q.   Okay.  Do you see where you've drawn the truck?

20       A.   Yes, I do.

21       Q.   Just to the left of the truck --

22            JUDGE AGIUS:  Can't we show it to him?  Yes, there.

23            MR. THAYER:

24       Q.   Do you see the little --

25            JUDGE AGIUS:  No, no.

Page 21008

 1            MR. THAYER:

 2       Q.   Right there, sir, there's a little "V" and a period.  Can you just

 3    tell us what that "V." stands for?

 4       A.   I think I wanted to mark a door there, and I put a "V" with a dot.

 5       Q.   Okay.  And if we just move across this little sketch, to the right

 6    you've drawn another rectangle with the letter "K," "U," and a "C."  What

 7    is that, sir?

 8       A.   "Kuca," "house."

 9       Q.   Okay.  And which house is that, sir?

10       A.   Where I went to have coffee and brandy.

11       Q.   And right below that, sir, you drew another rectangle with a

12    couple of initials in there.  What is that?

13       A.   A store.

14            MR. THAYER:  Okay, thank you.  I think we're done with this

15    exhibit.  Oh, and if we could just scroll up a little bit.  A little bit

16    more.

17       Q.   Do you see some writing in the lower right-hand corner there, a

18    date of November 15th, 2007?  Can you tell us what that is there in the

19    corner?

20       A.   I wrote that, and my signature is there.

21            MR. THAYER:  Okay.  Just one more document to show you, sir.

22            If we could have P00295 on e-court, please.  And we'll be looking

23    at page 581 of the original B/C/S, and that would be page 583 of the

24    English translation.  But I'd like to work with the B/C/S original, as

25    it's an original document.

Page 21009

 1            JUDGE AGIUS:  So no broadcasts.  This document is under seal.

 2            MR. THAYER:  Okay.

 3       Q.   Sir, do you see the document in front of you on your computer?

 4       A.   Yes, I do.

 5       Q.   Can you just tell the Trial Chamber, generally, what is this type

 6    of document that you're looking at?

 7       A.   It's a travel log.  You receive that with the vehicle when you're

 8    supposed to carry out some work.

 9       Q.   And do you see, on the right-hand portion of this document, where

10    it says:  "Vehicle work log" and then the number "221667;" do you see

11    that, sir?  I just want to orient you on the document.

12       A.   Yes.

13       Q.   Okay.  I just want to ask you some questions as we move down, line

14    by line, on this page.  Okay?

15            Oh, I'm sorry, can we scroll back up?  Not that fast.

16            There is an entry, if we scroll to the right, please, and now

17    we're looking at the very top of the screen on the right-hand side,

18    there's an entry of 15 July until 31 July 1995.  Do you see that, sir?

19       A.   Yes, I do.  The first date is the date of my arrival in the

20    barracks, and this vehicle log was valid until the 31st of July.

21       Q.   And if we look at the line right underneath that, there's a

22    reference to a TAM 130.  What is that, sir?

23       A.   It is the type of vehicle.

24       Q.   And can you just describe what kind of vehicle that is, please?

25       A.   It's a freight vehicle, six metres in length, metal chassis, 2.3

Page 21010

 1    metres in width, with a tarpaulin.

 2       Q.   And if we go down a couple more lines, there is a little box that

 3    refers to the rank, first name and last name.  Do you see your name there,

 4    sir?

 5       A.   I do.  It says "Tomic, Milenko."

 6       Q.   And let's move down a little bit to this larger box with a number

 7    of columns.  And do you see a column that is headed "Date," with a series

 8    of dates underneath it?

 9       A.   I do.  Those are the dates when the vehicle is being refueled.

10    Also specified is the amount of fuel, and then you sign.

11       Q.   And do you see the entry for the 17th of July, 1995, sir?

12       A.   I do.

13       Q.   And if we go all the way to the right, to the last column, there

14    is an entry headed:  "Manager's Signature."  Do you see that?

15       A.   Yes, I do.

16       Q.   Okay.  Now, if we can, let's scroll to the left of this document.

17    I want to show you the left-hand side.  And if we can scroll up just a

18    little bit, please, to capture the top.  There we go, okay.

19            Now, do you see, on this left-hand portion, an entry for the 17th?

20       A.   Yes, I do.

21       Q.   And if we look in that middle column, where it says: "Condition,"

22    what does it say there?

23       A.   The middle column?

24       Q.   Yes.  If you're looking at the line that's number 17, and do you

25    see the column --

Page 21011

 1       A.   Yes.

 2       Q.   -- Okay, that says:   "Condition" at the very top, do you see the

 3    entry on that line 17?  Can you read that?

 4       A.   I can't.  I can't read that.  However, I can read where it

 5    says: "Signature."

 6       Q.   Okay.  And do you recognise any of those signatures there?

 7       A.   I recognise that signature as that of Radislav Pantic.

 8       Q.   Okay.  If you would, sir, with Madam Usher's help, I would just

 9    ask you to take this pen that's attached to your computer, and if you

10    would circle where you see Mr. Pantic's signature in this column.  If you

11    see it more than once, please circle those entries as well.

12       A.   [Marks]

13       Q.   Okay.  Thank you, sir.

14            JUDGE AGIUS:  Does he recognise the other signature?

15            MR. THAYER:

16       Q.   Sir, did you understand His Honour's question?  Do you recognise

17    the other signatures there?

18       A.   No, I don't.

19       Q.   Okay.  Sir, if you would just, on the lower left-hand corner of

20    this document, if you would just place your initials and today's date,

21    which is the 5th of February, 2008.

22       A.   [Marks]

23       Q.   And then we'll save the document and be done with it.  And just

24    your initials, too, sir, is fine.

25       A.   [Marks]

Page 21012

 1            MR. THAYER:  Thank you, sir.

 2            If we could save that, please.  Okay, thank you.

 3            Let's move to the next page of this document, and it will be the

 4    next page in both B/C/S and English.  And if we could again work with the

 5    B/C/S, please.

 6       Q.   Sir, this is my last series of questions for you.

 7            MR. THAYER:  And if we could -- that's fine, actually, just where

 8    it is. Thank you.

 9       Q.   Sir, I just want to ask you first:  Working from left to right --

10    well, let me back up for a second.  Just to orient yourself, this is the

11    flip side of the document we just looked at; is that correct?

12       A.   Yes.

13       Q.   And if we look at the first column, do you see where it

14    says: "Date"?

15       A.   The 17th of July, 1995.

16       Q.   Okay.  The third column in from the left indicates what, sir?

17       A.   The route I drove.

18       Q.   Okay.  Well, let's talk about that, as long as you're -- we're on

19    there.  What does it say there, sir, under:  "Route" for the 17th of July?

20       A.   The first one was for military purposes, Zvornik-Pilica-

21    Kula-Pilica-Zvornik.

22       Q.   And do you recognise the handwriting in this column number 4

23    under:   "Route"?

24       A.   Column 4 route, that is my handwriting.

25       Q.   And is it your handwriting for every entry there, sir?

Page 21013

 1       A.   All of it is mine, all of the routes and kilometres, that is.

 2            MR. THAYER:  Now, if we could scroll over to the -- all the way to

 3    the right.

 4       Q.   Do you see the final column all the way to the right, sir?

 5       A.   I do.

 6       Q.   And do you recognise any of the signatures there in that column?

 7       A.   I only recognise Radislav Pantic's signature.

 8       Q.   Okay.  And I just ask you again, if you would, to take that pen,

 9    and if you would, sir, please circle where you see Mr. Pantic's signature.

10       A.   [Marks]

11       Q.   And what does this column indicate?  What is its heading, sir?

12       A.   "User signature."

13            MR. THAYER:  And if we could scroll back over all the way to the

14    left, please.

15            We have to sign it.  Okay.

16       Q.   Sir, if you would please, again put today's date, 5 February 2008,

17    and your initials.  Anywhere on the document is fine.

18       A.   [Marks]

19            MR. THAYER:  And if we can save it, we'll be done with it, and

20    then we'll have to scroll over to the left.

21       Q.   Now, sir, looking back at the column to the far left of this

22    document - thank you, Madam Usher, I think that's it for now - again

23    focusing your attention on that left column where it says:   "Date" --

24       A.   Yes.

25       Q.   -- under the date of 17 July 1995, what is the next entry that

Page 21014

 1    you've put in there?  What is the date of the next --

 2       A.   The 20th.

 3       Q.   And what does that indicate to you, sir?

 4       A.   The 20th of July, it means that I drove on that day as well.

 5       Q.   And after this day on the 17th, when you drove to Pilica and Kula,

 6    do you recall when it was that you saw Mr. Pantic next?

 7       A.   Three days later, I think.

 8       Q.   When you saw him the next time, did you say anything to him about

 9    this assignment that he'd given you on the 17th?

10       A.   I asked him why he had sent me to do that.  He never replied or,

11    rather, he said, "Well, I didn't know about it either."

12       Q.   Okay.  Now, sir, my last couple of questions here, and I want to

13    just test your recollection a little bit on this.

14            MR. THAYER:  Your Honours, I think in following the Appellate

15    Chamber's most recent decision on working with a witness's recollection

16    and challenging the recollection, I'm going to ask the Court to permit me

17    to refresh this witness's recollection with a prior statement to test his

18    memory on this issue.

19                          [Trial Chamber confers]

20            JUDGE AGIUS:  Okay.  Let's keep this short, Mr. Bourgon, please.

21            MR. THAYER:  And, Mr. President, any further -- I would just

22    suggest that any further discussion may be outside -- may need to be

23    outside the presence of the witness.

24            JUDGE AGIUS:  Then I think the witness can leave the courtroom.

25    We'll hear the submission, and then we'll have the break soon after.

Page 21015

 1                          [The witness stands down]

 2                          [Trial Chamber confers]

 3            JUDGE AGIUS:  Yes, Mr. Bourgon.  Briefly, please.

 4            MR. BOURGON:  Thank you, Mr. President.

 5            I would just like to know which decision of the Appeals Chamber my

 6    colleague is referring to.  If it's the decision that I have in mind,

 7    there's a procedure set in that decision, which is that he must first ask

 8    the witness whether the witness remembers what he wants to talk about.  It

 9    would be useful if we would know exactly the question my colleague intends

10    to ask the witness, as well as the answer he intends to get, and that will

11    allow us to know if the procedure is being followed.

12            Thank you, Mr. President.

13            JUDGE AGIUS:  You are perfectly right.  Basically, I think he's

14    referring to the decision, last week's decision of the Appeals Chamber

15    with regard to impeaching one's own witness, but at this stage I don't

16    think we have arrived at that.  We're just dealing, as I see it, at least

17    so far, unless I'm convinced of the contrary or of anything else, that

18    counsel would like to inquire into the possibility of getting the

19    witness -- refreshing the witness's memory in relation to this last answer

20    that he has given, if I understand you well.

21            MR. THAYER:  Mr. President, you do understand me well.  However, I

22    do intend, depending on what the answer is, to challenge the credibility,

23    but --

24            JUDGE AGIUS:  We come to that at the right stage, I mean, not now.

25    Now, I don't think you need the Trial Chamber's permission to put to the

Page 21016

 1    witness a prior statement of his, if the sole purpose of that is to try

 2    and refresh his memory.

 3            MR. THAYER:  Understood.  I just wanted to raise it before we went

 4    down too far.

 5            JUDGE AGIUS:  The Appeals Chamber decision doesn't come at this

 6    stage.

 7            Anyway, shall we have the break now, and in the meantime perhaps

 8    even discuss amongst yourselves, because I don't know what your question

 9    is going to be, and maybe if you discuss it with counsel, things can work

10    out easier.

11            MR. BOURGON:  Mr. President, if he can tell us the question, it

12    will be much easier.

13            JUDGE AGIUS:  Yes.  Anyway, we'll have a 25-minute break, and your

14    time is soon over in any case.

15            MR. THAYER:  Absolutely, Mr. President.  It's my last question.

16                          --- Recess taken at 3.39 p.m.

17                          --- On resuming at 4.07 p.m.

18            JUDGE AGIUS:  Yes, Mr. Thayer.

19            MR. THAYER:  Thank you, Mr. President.

20       Q.   Good afternoon again, sir.

21       A.   Good afternoon.

22       Q.   Before we took the break, you told us that when you next saw

23    Mr. Pantic, that you complained to him about the assignment, and you said

24    that he told you that he didn't know, either, what you were going to be

25    doing up there.  I want to ask you first, sir:  Do you recall, back in

Page 21017

 1    November, just this past November, when you met with the OTP

 2    investigators, do you recall being asked about when you saw Mr. Pantic a

 3    few days after the 17th of July; do you recall being asked those

 4    questions?

 5       A.   Yes, I do.

 6       Q.   Now, do you recall what you told the investigators, back in

 7    November, Mr. Pantic's response to you was when you complained to him

 8    about the assignment he had given you?

 9       A.   I think that during that conversation, he told me, "I didn't

10    know," and then he turned around and left.

11       Q.   Okay.  But my question to you right now, sir, is, and please focus

12    on the meeting you had with the investigators back in November:  Do you

13    remember now exactly what you told the investigators, back in November,

14    Mr. Pantic telling you?

15       A.   I do think that -- well, I think he turned around and left.  I

16    can't say exactly.

17       Q.   Okay.  Well, what I'd like to do, sir, is -- we don't have this on

18    e-court, but I have the two pages from your witness interview from back in

19    November, and I'd like to, if we could, maybe put this on the ELMO.

20            Can you see that on your screen, sir?

21            JUDGE AGIUS:  One moment, because I don't know about you folks,

22    but I can't see anything on my screen.

23            MR. THAYER:  Yeah, we have a blank screen here, too.

24            JUDGE AGIUS:  I still can't see anything.

25            MR. THAYER:  Okay.  Well, to save time, maybe I'll just ask the

Page 21018

 1    witness to read what's in front of him into the record.  That way --

 2            JUDGE AGIUS:  Did you give him the statement in B/C/S?

 3            MR. THAYER:  He has the B/C/S in front of him.

 4            JUDGE AGIUS:  Okay.

 5            MR. THAYER:  Just to save time, if the witness could just read

 6    what's marked there.

 7       Q.   Sir, do you see a little orange highlighting at line -- I believe

 8    it's --

 9            JUDGE AGIUS:  Mr. Thayer, I will feel more serene if you show it

10    at least to one or two of the Defence team counsel before --

11            MR. THAYER:  Okay.  I've indicated to my friends what the cite is.

12    It's page 24, line 11, through page 25, line 8.

13            JUDGE AGIUS:  In the meantime, the --

14            MR. THAYER:  There we go.

15            JUDGE AGIUS:  Yes.  I think you have to raise it up a little bit.

16    Scroll up.  Okay, okay, okay, that's fine.

17            MR. THAYER:

18       Q.   Sir, do you see that on your screen?  The "TB" is the initials of

19    the investigator who was asking you questions, and the "MT" is you

20    answering the questions?

21       A.   Yes, I understand.

22       Q.   Okay.  And do you see where you say -- you told him:   "Why did

23    you send me there?"  And you were asked what was his response.  That's at

24    line 16?

25       A.   Yes, yes.

Page 21019

 1       Q.   And do you see your answer?

 2       A.   I do.  "Why did you send me there?"  And then his answer.  What

 3    can I tell you, what else can I tell you?  He turned his back to me and

 4    then left.  That's what I said.

 5       Q.   And then the next question is:  "Did he even say one word?"  And

 6    your response was --

 7       A.   He said nothing.

 8       Q.   Then you were asked again, a couple of lines later:   "Did he

 9    comment somehow?"  And do you see your answer:  "He just turned and left"?

10       A.   Yes, he turned and left.

11       Q.   And do you see, further down, where the question is:  "Did he ask

12    you any questions regarding his task?"  And your answer was:  "He didn't

13    ask anything."  Do you see that, sir?

14       A.   What number is that, 27?

15            MR. THAYER:  If you can scroll down just a little bit more.

16            THE WITNESS:  I said:  "Why did you send me there?"

17            MR. THAYER:  And if we could turn to the next page.  Just a little

18    bit further to the top.  There we go.

19       Q.   There's a question:   "Did he ask you any questions regarding his

20    task?"  Your answer was:   "He didn't ask anything."

21       A.   Nothing.

22       Q.   The question is:  "Just turned around and left?"  Yes?

23       A.   Yes.

24       Q.   And your answer was:  "And then the next order was just -- issued

25    the order and you take it, and he -- that's it.  No comment."

Page 21020

 1       A.   Yes.

 2       Q.   Okay.

 3       A.   Yes.

 4            MR. THAYER:  We're done with this.  Thank you, Madam Usher.

 5       Q.   Now, sir, when was the last time you saw or spoke with Mr. Pantic?

 6       A.   Before I was to leave for here.

 7       Q.   Approximately how many days before you were to leave for The

 8    Hague, sir?

 9       A.   A day or two, perhaps.  I can't be specific.

10       Q.   And when you spoke with Mr. Pantic on this occasion, did you tell

11    him about the fact that you were coming to The Hague soon to give evidence

12    here?

13       A.   Yes, I told him that I was going to go to The Hague.

14       Q.   During this conversation, sir, did he tell you anything or say

15    anything to you about the order he gave to you on the 17th of July?

16       A.   Well, yes.  He told me that he had not known about it, either.

17            MR. THAYER:  Okay, sir, thank you.  I don't have any further

18    questions for you at this time.

19            JUDGE AGIUS:  Thank you.

20            Mr. Haynes.

21            MR. HAYNES:  I'll say, so that we can save a little time, with the

22    possible exception of Madam Nikolic, I know that nobody else has any

23    questions, bar me, so I will go first, and it may well be that Madam

24    Nikolic has no questions either.

25            JUDGE AGIUS:  Go ahead, Mr. Haynes.

Page 21021

 1                          Cross-examination by Mr. Haynes:

 2       Q.   Good afternoon, Mr. Tomic.  My name is Peter Haynes, and I

 3    represent Vinko Pandurevic.

 4       A.   Yes.

 5       Q.   I'm going to see if my mathematics is correct.  At the time the

 6    war started in Bosnia and Herzegovina, you would have been about 44 years

 7    of age; is that correct?

 8       A.   Possible.

 9       Q.   And by July of 1995, you'd have been just short of your 47th

10    birthday; am I correct about that?

11       A.   No.

12       Q.   Very well.  Well, you've given us your date of birth as the 30th

13    of July of 1948.  We can perhaps all work it out.  But from what you tell

14    us, had you by then spent in excess of 20 years working for the same

15    company, Metalno?

16       A.   Well, I don't know.  I started working for Metalno in 1974, I

17    believe.

18       Q.   For how long of that period of time did you work with Radislav

19    Pantic?

20       A.   I must have worked for at least ten years before that, I believe.

21       Q.   And what was your --

22            JUDGE AGIUS:  Because it's not clear, before what?  Ten years

23    before what?  You said "for at least ten years before that."  Before what?

24            Mr. Tomic, look at me.  It's me who's asking you the question.

25    Maybe it's the transcript, maybe I didn't understand you well, but

Page 21022

 1    Mr. Haynes asked you for how long of that period, that 20-odd years, in

 2    other words, did you work with Radislav Pantic, and you said, at least

 3    according to our transcript:   "I must have worked for at least ten years

 4    before that."  Before what?

 5            THE WITNESS: [Interpretation] Before the start of the war.

 6            JUDGE AGIUS:  All right, okay, that's clearer.

 7            Yes, thank you, Mr. Haynes.

 8            MR. HAYNES:  Thank you, Mr. President, and thank you, Mr. Tomic.

 9       Q.   And what was your working relationship with Mr. Pantic?  Was he,

10    like you, just a driver, or was he your boss in some way?

11       A.   He was my boss.  He was my superior.

12       Q.   Now, I want to ask you just a couple of questions about Metalno.

13    Metalno is a company that makes metal construction objects, isn't it, like

14    bridges?

15       A.   Yes.

16       Q.   But as part of its operations, it has a fleet or had a fleet of

17    about 17 lorries in 1995, didn't it?

18       A.   Yes.

19       Q.   And just so we can clear this up, the lorry that is described, the

20    TAM 130 that you were driving in Pilica and Kula, was a lorry that

21    belonged to Metalno, wasn't it?

22       A.   Yes.

23       Q.   Now, I just want to clarify a few things about your war history.

24            You were actually a mobilised soldier for about six months between

25    1992 and 1995, weren't you?

Page 21023

 1       A.   But of course.  I was mobilised, yes.

 2       Q.   But the rest of the time, you were demobilised, you were working

 3    for Metalno as a driver throughout the whole of that three-year period,

 4    weren't you?

 5       A.   I was working for Metalno, and that was part of my work

 6    obligation.  I was occasionally called away when needed.

 7       Q.   Thank you very much.  Well, I'll come back to that.  Can we get to

 8    the day that you've told us about.  Is it your recollection now that

 9    Radislav Pantic did not tell you the purpose for which you were sent to

10    Pilica?

11       A.   He assigned me to go to Pilica.  He gave me a travel order and

12    told me to drive soldiers.

13       Q.   Thank you.  And just so that we're clear, the days prior to that,

14    had you been working for Metalno?

15       A.   Yes.  I believe I was at the barracks as of the 15th.

16       Q.   Now, were you the only lorry driver that was sent to Pilica on

17    that day?

18       A.   Yes.

19       Q.   You've told us about some men in military uniforms you saw near to

20    the Pilica cultural dom.  I want to ask you this:  They were unarmed,

21    weren't they?

22       A.   Yes.

23       Q.   And during the course of that day, and I fully understand why, you

24    had a lot of alcohol to drink, didn't you?

25       A.   Well, not that much, really, at the beginning.  But later on, I

Page 21024

 1    drank.

 2       Q.   Did anybody tell you you couldn't do that during the course of the

 3    day?

 4       A.   No, nobody told me anything.

 5       Q.   And I want to clarify one thing you said in your interview back in

 6    November.  You said at one stage you ran away.  Did you mean you ran away

 7    from the cultural dom at some stage during the day?

 8       A.   No.  I never entered the cultural hall, the dom, at any point. I

 9    didn't know what was in there.

10            JUDGE AGIUS:  Mr. McCloskey -- Mr. Haynes, if you could please

11    repeat your question, because I don't think it got to the witness as it

12    should.  He's answered a different question.

13            MR. THAYER:  And, Mr. President, if I may, if there's -- if

14    there's a specific cite to the interview transcript where there is a

15    discussion of him running away, that might help as well.

16            JUDGE AGIUS:  Yes, Mr. Haynes.

17            MR. HAYNES:  Well, I'll move on for that -- from that.  I may come

18    back to it.  It's not a particularly significant point.

19            JUDGE AGIUS:  Okay.

20            MR. HAYNES:

21       Q.   You were shown a document, and I'll show it to you again, by

22    Mr. Thayer.  It's P3227.

23            Could we have that in e-court, please.

24            Do you remember seeing that document a few minutes ago, when

25    Mr. Thayer was asking you questions?

Page 21025

 1       A.   Yes.

 2       Q.   Do you understand what that document is and how it comes to be?

 3       A.   Well, these were probably the drivers who were part of the reserve

 4    force.

 5       Q.   But it's a document ordering your mobilisation, isn't it, on the

 6    15th of December of 1994?  Do you remember how long the task was you had

 7    to perform on the 15th of December of 1994; a day, two days, something

 8    like that?

 9       A.   Believe me when I tell you that I don't know.

10       Q.   But apart from the periods when you were lawfully mobilised, you

11    worked for Metalno, didn't you?  You were under their direction?  The

12    purpose of this order is to place you under somebody else's direction or

13    command.  Do you understand that?

14       A.   I don't understand.

15       Q.   Well, let's have a look at another document of precisely the same

16    nature, a bit more relevant; 7D722, please.

17            Do you see this is a precisely similar document, dated the 15th of

18    July of 1995?

19       A.   Yes.

20            MR. HAYNES:  Can we go to page 5, please.

21       Q.   Can you see there are a list of people from your company, Metalno,

22    at page 5, apparently mobilized on the 15th of July of 1995?

23            Can it be --

24            JUDGE AGIUS:  Yes, exactly.

25            MR. HAYNES:  Can it be scrolled down so he can see this, and the

Page 21026

 1    top of the next page, please.

 2            JUDGE AGIUS:  Yes, Mr. Thayer.

 3            MR. THAYER:  Just for the record, when I briefly saw that first

 4    page, I think the date is actually the 17th of July.  I stand to be

 5    corrected, but I saw something that said "17 July," not "15 July."

 6            JUDGE AGIUS:  It was both, both dates.

 7            MR. HAYNES:  It was both.  It's an order confirming those who are

 8    mobilised on the 15th.

 9       Q.   So can you read those numbered 127 to 142?

10       A.   Am I supposed to read it out?

11       Q.   No.  Just tell me if you see your name there.

12       A.   I don't.

13       Q.   So it appears that whatever your former boss might have asked you

14    to do, he didn't do it with any lawful authority, did he, Mr. Tomic?

15       A.   Well, I don't know how it came about that he issued me this

16    assignment, but from what I can see, the people listed under "Metalno" are

17    not drivers, so I don't know.

18            MR. HAYNES:  Thank you, Mr. Tomic.  I have no further questions

19    for you.

20            JUDGE AGIUS:  I thank you, Mr. Haynes.

21            Ms. Nikolic, do you have any questions?

22            MS. NIKOLIC: [Interpretation] Two or three questions, Your Honour.

23            JUDGE AGIUS:  Go ahead.

24                          Cross-examination by Ms. Nikolic:

25       Q.   [Interpretation] Good afternoon, Mr. Tomic.  My name is Jelena

Page 21027

 1    Nikolic, and I represent the Defence for Mr. Drago Nikolic.

 2            I have two or three questions to put to you in relation to the

 3    17th of July 1995 and in relation to the events you've told us about

 4    today.

 5            You knew Mr. Drago Nikolic by sight from Zvornik?

 6       A.   Yes, I knew him, but not that well.

 7       Q.   You knew what he looked like?

 8       A.   Yes.

 9       Q.   In the course of the 17th of July, when you were issued with the

10    assignment at Standard, and later on in Pilica and in Branjevo, did you at

11    any point see Drago Nikolic in any of these places?

12       A.   No.

13       Q.   Did you have any contacts with him?

14       A.   No.

15            MS. NIKOLIC: [Interpretation] Thank you.

16            Your Honours, I have no further questions of this witness.

17            JUDGE AGIUS:  I thank you, ma'am.

18            Just to confirm that none of the other Defence teams have any

19    cross-examination.  All right.

20            Mr. Thayer, is there re-examination?

21            MR. THAYER:  No, Mr. President.

22            JUDGE AGIUS:  Okay, thank you.

23            Mr. Tomic, I told you in the beginning that we would finish with

24    your testimony.  We have even finished earlier than I expected, so you're

25    free to go.  On behalf of the Trial Chamber, I wish to thank you for

Page 21028

 1    having come over to give testimony, and on behalf of everyone, we wish you

 2    a safe journey back home.

 3            THE WITNESS: [Interpretation] Thank you.

 4                          [The witness withdrew]

 5            JUDGE AGIUS:  Exhibits.  Mr. Thayer.

 6            MR. THAYER:  Mr. President, in addition to the three exhibits

 7    which were listed on our list of exhibits distributed a couple of days

 8    ago, I note first that 65 ter 295 is already in evidence, so we won't be

 9    offering that.  But 3226 and 3227, PIC00200 and PIC00199, the latter two

10    being pages from the transportation records, these do not need to be under

11    seal, although the whole document previously was placed under seal.  These

12    particular selections can be made public, Mr. President.

13            JUDGE AGIUS:  Thank you.

14            Any objections?  Mr. Haynes.

15            MR. HAYNES:  I'll speak vicariously.  No objection to that, and I

16    don't imagine anybody else does.  No.

17            JUDGE AGIUS:  Okay, thank you.

18            So these documents are admitted.

19            Mr. Haynes.

20            MR. HAYNES:  7D722, the mobilisation list for the 17th, relating

21    to the 15th of July.

22            JUDGE AGIUS:  Do you have --

23            MR. THAYER:  No objection, Mr. President.

24            JUDGE AGIUS:  No objection, so that is admitted too.

25                          [Trial Chamber and registrar confer]

Page 21029

 1            JUDGE AGIUS:  All right.  So it will be MFI'd for the time being,

 2    pending translation thereof.

 3            MR. HAYNES:  I do wonder whether that is really necessary.  It's

 4    only a list of names.

 5            JUDGE AGIUS:  But why did you agree on the substance of the

 6    document, in other words, what kind of a document it is?  I see no

 7    objection.  I have no problem.  Do you have a problem with MFI'ing it or,

 8    rather, admitting it rather than MFI'ing it?

 9            MR. THAYER:  No, I don't, Mr. President.  I'd always rather be

10    safer than sorry and see the English translation, but I really have no

11    objection to it coming in now.

12            JUDGE AGIUS:  All right, we'll admit the document.  If there are

13    problems later on, will you please bring them to our notice and we can

14    reverse the order and MFI it until a proper translation has been carried

15    out.

16            Okay.  The next witness, Ewa Tabeau.

17            Now, Defence counsel, please, going through your estimates, I

18    notice that you have asked for an hour and 55 minutes.  In reality, we had

19    only considered an hour and a half, so you need to restrict yourselves to

20    that.  And then if there is justification for going beyond by a few

21    minutes, we'll do what we did last time.

22            Mr. Soljan, you have 30 minutes, and I hope you will keep within

23    that.

24                          [The witness entered court]

25                          [Trial Chamber confers]

Page 21030

 1            JUDGE AGIUS:  Good afternoon, madam.

 2            THE WITNESS:  Good afternoon.

 3            JUDGE AGIUS:  I'm the Presiding Judge, and I wish to welcome you

 4    to this Tribunal.  It's very kind of you to come here at such short

 5    notice.  We will be proceeding with your testimony straightaway and

 6    hopefully try and finish -- conclude today so that you can go home.

 7            Ms. Soljan will go first.  She will be followed by the various

 8    Defence teams.  But before you start giving evidence, you need to make the

 9    sacramental, solemn declaration that we have here, which you are being

10    handed now.  Please read it out aloud, and that will be your solemn

11    undertaking with us that you will be testifying the truth.

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

13    whole truth, and nothing but the truth.

14                          WITNESS:  EWA TABEAU

15            JUDGE AGIUS:  I thank you, ma'am.  Please make yourself

16    comfortable.

17            Ms. Soljan.

18            MS. SOLJAN:  Thank you, Your Honours.  Given the time constraint

19    we have in presenting this witness's testimony, I just ask you for

20    permission to just lead her on a few preliminary matters.

21            JUDGE AGIUS:  Permission granted under the usual conditions. If

22    there is an objection, we'll go back on our permission.

23            MS. SOLJAN:  Thank you, Your Honours.

24            THE WITNESS:  Excuse me.  I need a little help with the

25    transcript.  I can see it now, thank you.  I didn't have the transcript.

Page 21031

 1    Now I have it.

 2            JUDGE AGIUS:  Thank you, madam.  And if there are any problems

 3    with your headphones or anything else, please don't hesitate to let us

 4    know.

 5            Ms. Soljan.

 6            MS. SOLJAN:  Thank you, Your Honours.

 7                          Examination by Ms. Soljan:

 8       Q.   Madam, please state your full name for the record.

 9       A.   I'm Ewa Tabeau.

10       Q.   Now, you have submitted a CV titled "Professional Qualifications

11    of Ewa Tabeau."  Is this information in your CV up to date?

12       A.   Not that I see it in front of me, but I'm speaking about the

13    document I submitted together with the report, then yes it is.

14       Q.   This the document dated 17th of December, 2007, and it's Exhibit

15    65 ter 3158.

16            Now, you have a Ph.D. in mathematical demography from Warsaw

17    School of Economics in Poland; is that correct?

18       A.   Yes, it's correct.

19       Q.   And you are a demographer by profession?

20       A.   That's right.

21       Q.   Since 2000, you've been working at the ICTY as project leader of

22    the Demographics Unit?

23       A.   That's correct.

24       Q.   And, briefly, what does your work in the OTP, in the Demographics

25    Unit, entail?

Page 21032

 1       A.   My work and the work of the unit is related to studying

 2    demographic consequences of the conflict -- 1990s conflicts in the former

 3    Yugoslavia, in particular in Bosnia and Herzegovina.  As part of our

 4    responsibilities, we make -- I personally make expert reports for use in

 5    court, but there are also other responsibilities; for instance,

 6    maintaining information system on victims of the conflict, killed persons,

 7    missing persons, displaced persons, et cetera.

 8       Q.   Thank you.  Now, you mentioned the writing of reports.  Did you

 9    produce a report on 11 January 2008?

10       A.   Yes, I did.

11            MS. SOLJAN:  And if the usher could please place on e-court

12    Exhibit 65 ter 3159.

13       Q.   Do you recognise this document, Dr. Tabeau?

14       A.   Yes.

15       Q.   Can you tell us what this is?

16       A.   This is the January 2008 report.  This is the Srebrenica Missing

17    2007 Progress Report on the DNA-Based Identification by ICMP.  That's the

18    title of it.

19       Q.   And can you tell us what the purpose of this report was, please?

20       A.   This report is an updated version of the report that was initially

21    presented in November 2005.  I'm referring to the report dated 21st of

22    November, 2005.  Similarly to the first report, this report as well

23    summarises the statistics on the DNA-based identified persons related to

24    the fall of Srebrenica in 1995.  The report is made based on information

25    provided by the International Commission for Missing Persons in Sarajevo,

Page 21033

 1    and that was the main source for this report.

 2            Well, this was perhaps the major goals, summarising the statistics

 3    on the identified persons.  The second goal was, as well,

 4    cross-referencing the list of identified individuals provided by the ICMP

 5    in October 2007 with our OTP list of Srebrenica missing persons.  By

 6    saying "our OTP list," I mean the list that was provided to this Trial

 7    Chamber and to Defence counsels in 2005, and Helge Brunborg testified in

 8    the beginning of 2007 about this list and the report.

 9       Q.   Thank you.  Now, you noted that you were cross-referencing the

10    ICMP October 2007 list with our OTP list of Srebrenica missing persons.

11    Were these your only sources in producing the report?

12       A.   Well, we basically used three lists for making the 2008 report.

13    One was the 2005 OTP list of missing.  The second was the 2007 ICMP list

14    of the identified individuals.  And in addition to this, we also studied a

15    third list, the list of unique DNA profiles, also provided by ICMP.

16            MS. SOLJAN:  Okay.  Now, if we could show on e-court, please,

17    page -- or, rather, P03002A.  And if there could be no broadcasting of

18    this, please.

19       Q.   Do you recognise this list, Dr. Tabeau?

20       A.   Yes.  This is the ICMP list of identified individuals, the main

21    list which includes names of identified persons.

22            MS. SOLJAN:  Thank you.  If we could just briefly move on to

23    P03004A.

24       Q.   Do you recognise this list, Dr. Tabeau?

25       A.   Yes.  This is the second list, the list of unique DNA profiles,

Page 21034

 1    also provided by ICMP.

 2       Q.   And did you use this second list in the production of your most

 3    recent report?

 4       A.   We didn't.  There are no names included in this list, so there is

 5    nothing that we could use in cross-referencing with other sources.

 6       Q.   Thank you.  Now, before we go on to summarising of the results of

 7    your report, could you please provide us with a brief summary -- or of the

 8    methodology used in producing your report?

 9       A.   The report -- the methodology used for producing this report is

10    our standard methodology which was also used for our previous report, the

11    2005 report.  Details of this methodology are discussed in the 2005

12    report.  Basically, the methodology relates to, first of all, studying and

13    assessing the quality of information that we used for our report and,

14    secondly, in using the matching methodology for cross-referencing the

15    lists.

16            Well, matching methodology is basically comparing records from two

17    lists using names of individuals and the date of birth, and by doing so,

18    seeing whether there is a satisfactory degree of consistency between the

19    compact records, and if there is so, there is a satisfactory degree of

20    consistency, two records from two different lists can be declared as

21    representing one and the same person.

22       Q.   So specifically referring to the sources you were using to produce

23    the report, what were the records you were actually using in your matching

24    methodology?

25       A.   We were cross-referencing two lists; on one hand, the OTP list of

Page 21035

 1    2005, the list of Srebrenica missing individuals, and, on the other hand,

 2    we were using the ICMP list of identified individuals.  We were comparing

 3    some parts of information available in both lists in declaring matched

 4    records.

 5       Q.   And, specifically, what type of information was this?

 6       A.   As I said earlier, these were names, first name, father's name,

 7    family name of these individuals, and in addition to the names, also the

 8    date of birth.

 9       Q.   Now, how did you control for duplications or how would you make

10    sure that a person identified on one of your lists was not appearing

11    multiple times?

12       A.   Well, checking for duplicates is part of our standard procedure

13    for assessment of sources.  With regard to the 2005 OTP list of missing

14    persons, we have done several thorough checks before the 2005 report was

15    completed.  With regard to the ICMP list, we have run several criteria.

16    There is a list of this criteria, there were eight criteria used for

17    running checks, duplicate checks.

18            This list is discussed in the 2005 report, and so also in this

19    case we used exactly the same criteria. One of the criteria was comparing

20    duplicated names without looking at the date of birth, and of course later

21    studying all available information about candidate duplicates.  And having

22    done this, we concluded there were no duplicated records in the ICMP file.

23       Q.   Were you also in contact with the ICMP regarding the information

24    you obtained in October 2007 from the ICMP?

25       A.   Yes.  We saw that there were a number of deficiencies in the ICMP

Page 21036

 1    records.  One of the deficiencies, perhaps the major one, was that a

 2    number of records reported by the ICMP represented three associations

 3    without the main case associated with them, so this was one of the

 4    problems.  There were also other problems.  Some deficiency protocols

 5    numbers, for instance, were seen.  We contacted the ICMP and requested a

 6    clarification with regard to the deficient records and such a

 7    clarification was obtained shortly afterwards.  Using the clarification,

 8    we were able to correct the affected records and to proceed with good

 9    data.

10       Q.   Thank you.  Now, Dr. Tabeau, let me direct your attention to some

11    of the major conclusions reached in your report, and this is at -- in your

12    report, so 65 ter 3159, at page 3, ERN 0626-5767.

13            In your report, Dr. Tabeau, you state that the total number of

14    records in the ICMP update is 6.609.  What does this number refer to?

15       A.   This is the overall total of all records in the ICMP file, one

16    record representing one case, ICMP case.  However, the 6.609 records don't

17    represent the same number of individuals.  This is related to the fact

18    that the ICMP file contains two types of cases.  The first type are main

19    cases, representing different individuals.  The second type are

20    re-associations, that is, bone-to-bone matches.  The main cases are, of

21    course, positive DNA identifications that can be documented with

22    associated protocol which -- whose number is available in the ICMP file.

23       Q.   Okay.  And can you tell us what the number of main cases was,

24    according to your analysis?

25       A.   The number of main cases is 4.263.  This number represents

Page 21037

 1    different individuals in the ICMP file.  This number should be seen as the

 2    number of individuals identified through the DNA analysis as of 4th of

 3    October, 2007.  And the other records, the remaining records, that is

 4    2.346, is the number of re-associations.  These are records related to the

 5    main cases.

 6       Q.   Now, the next number you mention is 3.837.  Can you explain to us

 7    what this number means?

 8       A.   This number should be seen in the context of the 2005 OTP list of

 9    Srebrenica missing.  On this list, we reported 7.661 individuals.  The

10    number of 3.837 names are records of identified persons reported by the

11    ICMP, that at the same time also reported on the OTP list, 2005 OTP list

12    of missing.  This is simply the overlap of these two lists.

13       Q.   And what percentage of the ICMP list were you able to match

14    therefore with the OTP missing list?

15       A.   This number represents 90 per cent of the ICMP records, and at the

16    same time it represents about 50 per cent of the records of the missing

17    persons.

18       Q.   And can you explain to us what happened with the remaining 10 per

19    cent of the ICMP list?

20       A.   The remaining 10 per cent, that is 426 records, are composed of

21    two types of records.  One type is a group of matches that we call

22    "less-certain matches."  That we call these matches less certain is

23    related to the fact that what could be matched actually were only the

24    names.  The date of birth was unavailable to most of these records, either

25    on the ICRC part or the ICMP part.  So even though we saw the names

Page 21038

 1    appearing on the OTP list, we were unable to declare these matches as

 2    final matches.  We -- in the future, perhaps, when the date of birth will

 3    become available for these individuals, we will be able perhaps to

 4    finalise the match matching.

 5            There were 261 such matches.  It's perhaps important to note that

 6    the date of birth in the ICMP file is usually unavailable for records with

 7    multiple names.  These names -- what I mean by that is in one record, for

 8    instance, three different first names, with the same father's name, for

 9    instance, and the same surname, and this simply means that ICMP, based on

10    the information they have available, was unable to distinguish between

11    these three individuals. The ICMP has, in many cases, three or two or four

12    different DNA profiles, but is unable to associate the profiles with

13    particular persons.  In such cases, the date of birth is not reported.

14            And in the ICRC data, also some dates of birth are unavailable, so

15    in such cases the matching was not possible.

16       Q.   Okay.  And can you tell us about the remainder of the 10 per cent

17    of the ICMP list?

18       A.   The last group is 165 records.  These are records that remain

19    unmatched.  We couldn't find these individuals on our OTP list of missing

20    persons, and therefore we list them separately in our report, in our annex

21    to our report.  We consider these records as new and additional to the OTP

22    list of Srebrenica missing.

23       Q.   Okay, thank you.  Are there any other numbers in the executive

24    summary that you refer to?

25       A.   Well, there are a few other numbers.  For instance, we refer to

Page 21039

 1    the statistics that were produced at some point in 2007 by Dean Manning.

 2    He also, in his report, gives some statistics on the identified persons.

 3    For instance, his number of individuals identified, and whose remains were

 4    exhumed from the sites he included in his report, is 3.252, and this is a

 5    number that is lower from the number we presented in our report.  Well,

 6    there are certain differences in the approaches, his approach and our

 7    approach, and these can be explained.  Basically, he has been very

 8    conservative, and he only worked with a number of gravesites related to

 9    Srebrenica, and to -- actually our approach was based on studying data,

10    all data that were provided by the ICMP.

11       Q.   Now, you mentioned that your report contained two annexes.  Can we

12    please have 65 ter 3159A on e-court, and if -- it's under seal.  And, in

13    particular, page 5 of this report -- of this annex.  If there's a problem

14    calling it up, I also have a hard copy.

15            Dr. Tabeau, can you explain what this annex is, what this list

16    represents?

17       A.   This is annex 2 of our report from January 2008.  In annex 2,

18    there are two parts.  This particular page comes from part 1.  Part 1

19    contains basically the records listed on the 2005 OTP list of Srebrenica

20    missing.  A large portion of information on this page is exactly as

21    reported on the 2005 list of missing.  By saying "large part," I mean all

22    data items except for the two last columns.  The two last columns are

23    called protocol number of ICMP and the gravesite, and these two columns

24    come from the ICMP data set provided to us in October 2007.  Basically,

25    this is what we see on this page.  The rest is as reported in the 2005 OTP

Page 21040

 1    list of missing.

 2       Q.   And can you please explain what it means when the last two columns

 3    do not have anything in them, in other words, when there is no protocol

 4    number and no gravesite indicated?

 5       A.   The blank cells mean that, in most cases, the persons have not yet

 6    been identified by the ICMP.  In some cases, this also means that the

 7    persons might have been identified, but we were unable to match these

 8    records as definite matches and present the results on this list.

 9            MS. SOLJAN:  Thank you.  Could we please have page 191 of this

10    same exhibit.

11       Q.   Dr. Tabeau, can you explain briefly what this part of the annex

12    represents?

13       A.   This is also annex 2 to our report, part 2 of the annex.  This

14    particular page lists -- includes records of additional individuals not

15    reported on the OTP list of 2005, and this can be seen from the last

16    column, where the status is indicated as a new name.

17       Q.   And do you know why this name would not have appeared on the

18    OTP -- 2005 OTP missing list, which for the record is P02414?

19       A.   Well, it is possible that certain families reported their missing

20    relatives to the ICMP and didn't report them to the ICRC.  Well, from

21    experience we know that there is no one-to-one relationship between

22    different lists of missing persons.  There is always a large -- a large

23    common part, and none of the overlapping parts of these records would be

24    no overlapping records reported only to the ICMP.

25       Q.   Thank you.  Now, Dr. Tabeau, you made reference to Mr. Manning's

Page 21041

 1    work, and did you participate in any way in the creation of his report?

 2       A.   Well, I wouldn't say we participated, but we were involved in this

 3    project.  Our involvement was related mainly to reviewing the annexes to

 4    Dean Manning's report.  As I said earlier today, there were a number of

 5    deficient records in the ICMP file that we clarified with ICMP and

 6    corrected later in our databases, so we were reviewing -- we had reviewed

 7    annexes to Dean Manning's report by checking whether the information he

 8    included in his report is all correct and doesn't contain any errors.

 9       Q.   Okay.  And as a last question to you:  Do you have an explanation

10    as to why his number of total individuals found in ICTY gravesites of

11    3.252 together with 758 no-name profiles is different from your overlap of

12    3.837 individuals?

13       A.   Well, it is different because his analysis is designed based on

14    certain gravesites that he includes in his report.  He only looks at

15    gravesites that contained human remains exclusively related to Srebrenica.

16    There were no mixed remains in these sites.  These are sites known to ICTY

17    and accepted by ICTY as such.  And this is why his number is lower than

18    the number we present in our report.

19            I think it is from the ICMP data we can see that there were also a

20    number of additional gravesites reported for identified individuals.  It

21    is possible that in some of them, the remains were mixed also from other

22    episodes or incidents of the conflict.  But we accepted all the ICMP data

23    and used all of the data in our analysis in cross-referencing with the OTP

24    list of missing.  That's the difference.

25            MS. SOLJAN:  Thank you.

Page 21042

 1            Your Honours, I have no more questions.

 2            JUDGE AGIUS:  I thank you, ma'am.

 3            Who is going first?  Ms. Nikolic.

 4            MS. NIKOLIC: [Interpretation] Good afternoon.  Thank you, Your

 5    Honour.

 6                          Cross-examination by Ms. Nikolic:

 7       Q.   [Interpretation] Good afternoon, Ms. Tabeau.  My make is Jelena

 8    Nikolic, and I appear on behalf of Mr. Drago Nikolic.  I have a few

 9    questions for you, which I hope will make it easier for me to understand

10    your approach to this report of 2005 and 2007.

11            If I understood your testimony today well, the only source you

12    used for your new report of the 11th of January of 2008 is the ICMP list

13    which had been forwarded to you in October 2007.  Is that correct?

14       A.   Yes, it is the only new source that was used.

15       Q.   Can you confirm that the ICMP list is an official document which

16    can be used to ascertain the identity of persons and to ascertain data on

17    the death of those persons?

18       A.   Well, I don't know what you mean by "an official," but it is

19    certainly a document that is at some point shared with legal authorities

20    in Bosnia and Herzegovina.

21            MS. NIKOLIC: [Interpretation] Could we please show P3002B, or

22    3D269.  I think we have it in e-court under both of these designations.

23    3D269.  I would ask that this document not be broadcast.

24       Q.   Ms. Tabeau, I believe you are familiar with this letter.  It was

25    sent to the OTP by the ICMP.

Page 21043

 1       A.   Yes, I am.

 2       Q.   Does it state clearly that the list of October, the list of

 3    missing compiled by the ICMP, is secret, since there are still cases

 4    pending, awaiting confirmation by local authorities?

 5       A.   Yes, this is what it says.

 6       Q.   If I understood Mr. Parsons' testimony well -- excuse me.  When a

 7    process of identification by DNA methods is concluded, such results are

 8    checked by anthropologists, pathologists, and other team members.  At what

 9    point in time is the final death certificate issued ascertaining the

10    identity of that person, the cause, manner and time of death?

11       A.   It's a question, if he --

12       Q.   Are you familiar with the procedure?

13       A.   Yes, I am familiar with this procedure.

14       Q.   Only after the procedure has been completed, it is only then that

15    we can consider a file or a case closed, and it is only then that we can

16    receive the final death certificate ascertaining the fact that the person

17    is deceased and the person's identity.

18       A.   Well, I believe you are right, but -- okay.

19       Q.   As a demographics expert, did you have any means to check the

20    reliability of data and DNA analysis results from the ICMP lists?

21       A.   Well, if you -- you're asking about me checking the quality of DNA

22    matching and the methodology the ICMP uses for this, then the answer, is

23    of course, no, this is not my area of responsibility and expertise, but I

24    did check the quality of the statistical information of the -- reported in

25    the ICMP file, and I can comment on this.

Page 21044

 1       Q.   Thank you.  When going through the proofing that was done with you

 2    for this testimony, on the initial list compiled by the OTP of missing

 3    persons in Srebrenica in 2000, in your demographics office you used many

 4    more sources to come up with the final number of those who went missing

 5    that went beyond the sources mentioned to us now?

 6       A.   Well, first of all, I wasn't involved in compiling the 2000 end

 7    list, but I'm aware of the 2000 report by Helge Brunborg and Henrik Urdal,

 8    and they just used the ICRC list of missing persons for compiling the list

 9    of missing.

10       Q.   As far as I know, they used both the census of Bosnia-Herzegovina

11    from 1991, as did you for your report of 2005.  They used voters' lists

12    from 1997 and 1998, the PHR base, database, and so on and so forth.  Do

13    you agree with me that those sources were used as well to make the reports

14    of Helge Brunborg in 2005?

15       A.   Yes, these sources were also used, but the list, as such, was

16    compiled mainly based on the ICRC lists of missing persons, several

17    versions of the ICRC lists.  The census, the voters' registers, were used

18    so as to validate certain records selected, Srebrenica missing, and to

19    eliminate possible survivors from the list of missing.

20            And I should have mentioned PHR as the source of the list of

21    missing.  This list was used together with the ICRC list, indeed.

22       Q.   Or, rather, to determine the identity and to make sure that, to

23    use the term "phantoms," did not appear on the list, people who actually

24    never existed?

25       A.   Yes, this is what I just said.  The census, voters' list, were

Page 21045

 1    used to eliminate survivors, if there were any, but from this point of

 2    view I don't think the approach we used for the 2005 list was different.

 3       Q.   Concerning your report of the 21st of November, 2000 --

 4            THE INTERPRETER:  Could Ms. Nikolic please repeat the exhibit

 5    number and the date.

 6            JUDGE AGIUS:  Ms. Nikolic, the interpreters would like the exhibit

 7    number and the date.  Thank you.

 8            MS. NIKOLIC: [Interpretation] I apologise.  Thank you.  The report

 9    of the 21st of November, 2005, Exhibit P2416, pages 9 and 10 in the B/C/S.

10    In the English, it is pages 9 and 10.  Exhibit 2416, that is fine.

11       Q.   You quoted the criteria -- you mentioned the criteria that you

12    used for matching the names of individuals.  I can wait for the entire

13    text to appear.  I think we have page 10 in the B/C/S.  Can we go to the

14    next page and to page 10 in the English version so that we could arrive at

15    that part of the report.  It is table 4.  This is what I want to discuss.

16            I wanted to ask you this:  The five criteria are mentioned there,

17    when it comes to matching, is that correct, or rather five keys, five

18    criteria you used?  First of all, if the names are similar.  You had five

19    autographic criteria; is that correct?

20       A.   Yes, we used five criteria for matching, yes indeed.

21       Q.   Out of which -- or let's say the fourth criterion is the first

22    four letters --

23            THE INTERPRETER:  Could Ms. Nikolic please quote at a slower pace.

24            MS. NIKOLIC: [Interpretation] I will read out the criterion number

25    4 from your report.  The first three -- first four letters, the first

Page 21046

 1    letter of father's name, year of birth, plus/minus five years.

 2       Q.   Is that one of the criteria you used?

 3       A.   Yes, it is, yes, for selecting candidate matches.  It is not a

 4    criterion for declaring the true matches.  It's a selection of candidates,

 5    potential possible matches.

 6       Q.   According to table 4, the number of possible and accepted matches,

 7    according to that criterion, out of 252 candidates, you have 249 accepted

 8    matches?

 9       A.   Yes, this is -- this is what we read in table 4, and I would like

10    to comment on this.

11            For all these potential matches, we checked the records back in

12    the census and compared whether there were more candidates -- more

13    individuals with the same names and similar date of birth.  And if there

14    were not, we proceeded to declare a match.  If there were more than one,

15    we didn't declare a match.  That was the procedure, first selecting

16    candidate matches, assessing the matches by linking the records with the

17    census information, and studying all available information about missing

18    persons, and only then, after completing this procedure, making decisions

19    about whether or not a potential match can be seen as a true match.

20       Q.   And so we have table number 4 in your report of the 21st November

21    2005; is that correct?

22       A.   Yes, this is table number 4 in the report.

23       Q.   Did you apply the other criteria for matching up to 71, which uses

24    only initials of certain people to establish any possible matches?

25            Perhaps we could show 3D142 to Ms. Tabeau so as to make my point

Page 21047

 1    clear, so that she could understand my question.

 2            Ms. Tabeau, are you familiar with this document?

 3       A.   Yes, I believe I am.  This is, as the title says "Examples of

 4    Linking Criteria" for the census records with the list of missing persons.

 5       Q.   Those are the same criteria used by the OTP when matching names

 6    and data for individuals?

 7       A.   Well, these are particular criteria that were used in the matching

 8    of the census with the list of missing persons.  I believe -- I don't

 9    remember which version of the missing persons list was it, but, well,

10    these criteria were used.  And of course similar criteria are used in

11    matching other sources.

12            The table we just discussed only lists five criteria, while the

13    sources that are matched are also different, it is not the census, and

14    only ICMP list, right, with the Srebrenica missing persons records.  So it

15    is not that we always used the same 71 criteria in any matching. This is

16    what I'm saying.

17       Q.   Thank you.  The five criteria we mentioned, can we use a

18    statistical term?  Could we call them keys used to establish matching?

19       A.   Well, I don't know what is the meaning of the word "keys" that you

20    just used.  Just five criteria, matching criteria, that we used to match

21    two lists, the ICMP list and the list of missing persons.

22       Q.   Criteria can be changed using the same sample and same material

23    within the same statistical process.  That is allowed, I presume.

24       A.   Well, ideally, matching should be done on one numeric

25    characteristic which is unavailable in the two lists that we were

Page 21048

 1    matching.  In the absence of this one numerical characteristic, like

 2    personal identification number, there is a need to use alternative

 3    criteria.  Alternative criteria, of course, on the first place must

 4    include names and the date of birth, and this is what we had available in

 5    both lists.  This was the common part in the Srebrenica missing persons

 6    list and in the ICMP list of identified individuals.

 7            These common parts could be compared, and we did compare the parts

 8    by using the five criteria discussed in the 2005 report.  That we didn't

 9    use 71, it can only mean that possibly we under-matched the two lists and

10    "under-matched" means that the overlap of the two lists might be even

11    bigger than we reported.  That means that more identified persons were

12    included in the OTP list, in fact.

13       Q.   I would kindly ask you to tell me this:  Since you used the same

14    criteria in your report of the 11th of January as well, we do not have any

15    insight into what the degree of overlap there was in your latest report of

16    the 11th of January, 2008, and the tables were not drawn up the same way

17    they were in the report of the 21st of November, 2005. Is that correct?

18       A.   There is no such a table in the January 2008 report, but I can

19    assure you that we used the same criteria.  However, we've been more

20    conservative this time in declaring true matches.  That means that the

21    less-certain matches that we included separately in this report might have

22    been declared as final matches, that we did it too.  That is the meaning

23    of "under-matching," actually.

24       Q.   However, we have no figures that would tell us something about the

25    application, as you said yourself.  As regards your report of the 11th of

Page 21049

 1    January, 2008, which is P3159, page 7 - could we please bring that up in

 2    e-court, 7 in B/C/S and 5 in English - it is table 1.  It says:  "Review

 3    of Type of Information" or "Overview of Data Items Provided in the October

 4    2007 Update of ICMP, on DNA-Based Identifications of Srebrenica Victims."

 5    Below the table, I believe you have it in English, you say:

 6             "Date and place of disappearance are both related to the fall of

 7    Srebrenica."

 8            The date of disappearance has one value for all identified persons

 9    related to the fall of Srebrenica. "The 11th of July, 1995," in quotation

10    marks, disregarding the actual date of disappearance or death of victims.

11             "We therefore did not use the date of disappearance in any

12    analysis."

13            Is that correct?

14       A.   When it comes to date of disappearance as reported by ICMP, we

15    didn't, because of -- for the reason that you mentioned.  The ICMP is not

16    interested in things like data of disappearance or place of disappearance.

17    They do the DNA matching and identification, and this is what is the

18    crucial part of information for them.

19       Q.   During Mr. Parsons' testimony, we were told that they entered the

20    date of disappearance as received from the families of those disappeared.

21    Therefore, such data was unreliable.

22       A.   As far as I know, they just created this item based on the

23    information from the relatives, but it doesn't mean that the relatives

24    provided exact date of disappearance.  They provided information about

25    whether or not a person went missing in the fall of Srebrenica of 1995.

Page 21050

 1       Q.   What source did you use based on which you established that the

 2    victims went missing in the duration of 1994 and in relation to the events

 3    in Srebrenica, having in mind your report and what you've just said?

 4       A.   Well, we used the ICRC list of missing persons version of 2005.

 5    This is the source that we used for the compilation of our 2005 list of

 6    Srebrenica missing.  So the date of disappearance that is presented in the

 7    annex, annex 2 to our January report, comes as originally reported by ICRC

 8    in their list and as reported in our report of 16th November 2005.

 9       Q.   And it made its way on to the ICRC list based on the information

10    provided by the families and based on the questionnaires that were filled

11    out for every missing person?

12       A.   I believe that that's the source for the date of disappearance

13    reported by ICRC.

14       Q.   Can you tell me, how many of those who went missing on the OTP

15    list, for whom you claim went missing in 1995, actually had the date of

16    disappearance or death going back to 1992, 1993, or 1994?

17       A.   Well, when it comes to the persons listed on the OTP list, the

18    date of disappearance was the criterion as to whether to include a person

19    in this list or not, so I'm pretty sure that there are no 1992s, 1993s,

20    1994s.  It is all 1995, July to December 1995.

21       Q.   Did you compare this OTP list with the list of ABiH soldiers, such

22    as found in the archives of the demographics department of the OTP?

23       A.   No, we didn't.  This is a list of missing from Srebrenica, so if a

24    soldier would be missing, it would be still a missing person on the list.

25            MS. NIKOLIC: [Interpretation] Could we please show a Defence

Page 21051

 1    exhibit to the witness.  It is 3D -- I'll try to use the shorter version,

 2    Your Honours, since I have two versions, but I'm trying to steer clear of

 3    long lists.  It could be 3D299.  This document contains two pages.

 4            Could we have both documents on the screen at the same time so

 5    that Ms. Tabeau could compare.

 6       Q.   While we're waiting for the document to appear, I think,

 7    Ms. Tabeau, that you are convinced that the demographics team of the

 8    Defence worked at the OTP in 2007, at their premises, and you provided a

 9    number of documents to them which they used in their demographic analyses;

10    is that correct?

11       A.   Yes, there was a Defence team in 2007 working with the sources.

12       Q.   Pursuant to their findings, we now have these two tables.  The

13    upper one is a list of the OTP.  Below, we have a list and examples from

14    ABiH database.

15            I apologise.  I did not ask to go into private session, but in any

16    case this should not be broadcast, and I'll try to avoid mentioning any

17    names.

18            In the first column, according to your OTP list on the 13th of

19    July, we have those who went missing in Kamenica, according to the

20    official data of the Army of B and H that the OTP has in its archives.

21    The same person went missing on the 10th of January, 1994, as a member of

22    the ABiH for unknown -- with an unknown cause of death in Bratunac.

23       A.   Well, is it a question?  This is what it says here in this table.

24       Q.   There are nine such examples here of individuals who are listed on

25    the OTP list as missing, as victims who went missing in Srebrenica in

Page 21052

 1    1995, who, according to the official BH Army records, which you have in

 2    your possession, went missing prior to 1995 in other areas, and to be

 3    precise in the period between 1992 and 1995.  How could you compile a list

 4    without consulting that source first?

 5       A.   Well, you might not know this, but in his 2000 report, Helge

 6    Brunborg wrote that he was asked to compile a list of missing from

 7    Srebrenica.  This was his task, and this is what he did and what we

 8    followed up on.  While we didn't cross-reference this list with fallen

 9    soldiers or other sources unknown, that is because it is not a list of

10    known deaths and missing persons.  Our OTP list is a list of missing

11    persons and exclusively missing persons.

12            In the example you are showing here, I see that the cause of

13    death, at least for the cases that I see on the screen, is unknown or

14    missing.  This might mean that the date of disappearance is the date that

15    these individuals were last seen.  This does not contradict the fact that

16    the persons later died during the fall of Srebrenica, so that is one

17    observation.

18            The second observation is that, well, I believe there were a

19    number of inconsistencies in the lists of military personnel fallen during

20    the war, and I remember at some point we contacted the Ministry of Defence

21    and asked for a clarification on a number of cases, not in the context of

22    our project on the Srebrenica missing list, but in the context of other

23    projects, and corrections were provided to us, and dates of this kind,

24    1993, 1994, were corrected to be 1995.  So this is why I believe it would

25    be necessary to first try to obtain a clarification of these cases from

Page 21053

 1    the authorities in Bosnia and Herzegovina in order to declare the cases as

 2    inconsistent on the OTP list.

 3       Q.   Madam Tabeau, you believe that the OTP list, based on the raw DNA

 4    data, is more reliable than the BH Army records, in terms of the dates of

 5    death and the years of death, which you also ascertain on the basis of an

 6    individual's statement as to the time of disappearance?

 7       A.   Well, I believe that ICMP data is very reliable, and the selection

 8    of the records for the list they provided us was based on studying the

 9    sites, gravesites, whether or not the sites were related to the fall of

10    Srebrenica.  And in addition to this, they also have in their databases

11    information from the relatives of the missing persons, and from this

12    source they can see whether or not individuals were reported as missing

13    during the fall of Srebrenica.  So it is like a double-check they use to

14    compile the list of identified persons related to Srebrenica.  That is the

15    reason for me to believe that this is a very reliable source.

16       Q.   A moment ago, you told us that the ICMP was not interested in the

17    date of disappearance or the date of death, that they were only dealing

18    with DNA analyses?

19       A.   This is very correct.  I don't obtain date of disappearance and

20    place of disappearance from the ICMP, but through linking of sources on

21    the individual level.  The information about the place and time of

22    disappearance is available as reported to the ICRC, also by a reliable

23    source, by the relatives of the missing persons.

24            MS. NIKOLIC: [Interpretation] Your Honours, I believe that it is

25    time for a break, and I'll only have a couple of questions left before I

Page 21054

 1    finish my examination.  Thank you.

 2            JUDGE AGIUS:  May I -- thank you, madam.

 3            May I have an indication from the other Defence teams,

 4    Mr. Zivanovic or Madam Tapuskovic?

 5            MS. TAPUSKOVIC: [Interpretation] Your Honour, I was supposed to

 6    examine Madam Tabeau.  I asked for some 15 minutes.  However, Madam

 7    Nikolic has already exhausted some topics I wanted to deal with, and it is

 8    quite possible I will have no questions of this witness.

 9            JUDGE AGIUS:  Thank you, madam.

10            Mr. Ostojic.

11            MR. OSTOJIC:  Thank you, Mr. President.

12            We adopt the same position.  We've reserved 15 minutes, but we'll

13    look at it and hopefully we'll have no questions of Dr. Tabeau.

14            JUDGE AGIUS:  Thank you.

15            Mr. Lazarevic.

16            MR. LAZAREVIC:  Your Honour, we reserved 15 minutes, but I believe

17    that I'll be able to complete my cross-examination for five to ten

18    minutes.

19            JUDGE AGIUS:  Okay.

20            Ms. Fauveau.

21            MS. FAUVEAU: [Interpretation] Mr. President ...

22            JUDGE AGIUS:  And Gvero and Pandurevic, I take it no

23    cross-examination.

24            MR. SARAPA:  We don't have questions.

25            JUDGE AGIUS:  Thank you.

Page 21055

 1            We shall do our utmost to finish with your testimony, madam,

 2    today.

 3            Thank you.  Twenty-five minutes.

 4                          --- Recess taken at 5.45 p.m.

 5                          --- On resuming at 6.13 p.m.

 6            JUDGE AGIUS:  Ms. Nikolic.

 7            MS. NIKOLIC: [Interpretation] Thank you.

 8            Can we please call up document 3D02 [as interpreted].  And before

 9    Madam Tabeau is shown the document, I have one question.

10       Q.   Are you familiar with the letter that was sent to the Office of

11    the Prosecutor?

12            THE REGISTRAR:  Sorry, could counsel repeat the exhibit number.

13            MS. NIKOLIC: [Interpretation] 3D302, the letter from the Federal

14    Commission on Missing Persons, Mr. Masovic, dated the 28th of December,

15    2007.

16       Q.   Are you familiar with the letter and with the exchange that the

17    OTP had with the Bosnian authorities or, rather, the local authorities in

18    Bosnia?

19       A.   No, I'm not familiar with this letter.  And regarding the

20    exchange, I don't -- I don't know what are you talking about.

21       Q.   "Exchange" is what I said, the exchange of letters and not the

22    extent.  But please look at page 1 of the letter, where Mr. Masovic

23    informs the OTP about the number of victims that were exhumed -- found and

24    exhumed from the service in 2007.  Since your findings partially rely on

25    those of Mr. Manning, I wanted to know if you were aware of this figure of

Page 21056

 1    929 exhumed individuals, 474 of whom were identified in the area where the

 2    column was moving.

 3       A.   Well, I -- first of all, not seeing the entire letter, just the

 4    first few lines of the letter, but from the first lines I already can see

 5    I'm unaware of this letter, I haven't seen the letter.  And if these

 6    statistics you mentioned come from the letter or related materials, that I

 7    must say I'm unaware of them.

 8       Q.   Thank you.  Before the break, whilst we were discussing the

 9    soldiers who were killed and who were listed on the BH Army records, which

10    contains detailed information in relation to each and every one of them,

11    including the personal identification number, you'll agree with me that

12    these lists originate from the files of the Office of the Prosecutor, do

13    they not?

14       A.   Well, the source is the Ministry of Defence of the Federation of

15    Bosnia and Herzegovina, but I think that these records, it was my

16    impression, were extracted from this source.  But you know better than me

17    what was the -- what of the three lists was used.  And we have the list of

18    the Federation of Bosnia and Herzegovina in our office, indeed.

19       Q.   Which refer to 30.000 soldiers killed; is that right?

20       A.   About 28.000 names were reported, with a few duplications, in the

21    federal list.  This is only one of the three lists.  There are two more,

22    VRS and HVO have their own lists.

23       Q.   These lists, in statistical and demographic terms, contain all the

24    data, first and last names, father's name, personal identification

25    numbers, and so on and so forth; is that right?

Page 21057

 1       A.   They do include the data items you mentioned and some information

 2    such as cause of death and place of death or disappearance -- sorry place

 3    is not included.  Date of death is included, not place of death or

 4    disappearance.  And some other items as well.

 5       Q.   Those were the lists we discussed previously and which you said

 6    Mr. Brunborg did not consult while compiling his November 2005 report?

 7       A.   Well, this is what he didn't use.  He didn't use a number of other

 8    sources that report on the so-called known deaths, the most important ones

 9    being the database on wartime deaths of the Federation of Bosnia and

10    Herzegovina with altogether 75.000 records, and another one of the RS

11    authorities with 65.000 records, and this is related -- the purpose of the

12    Brunborg project and all following projects was compiling the list of

13    missing from Srebrenica.  This list shouldn't be seen as a complete source

14    of information on all individuals that were killed or disappeared in the

15    fall of Srebrenica. It is just the list of missing persons, and of course

16    some dead persons as well, but those dead were first reported as missing

17    to the ICRC.

18       Q.   These sources which you mention were not consulted, had they been

19    consulted, the nine cases we looked at indicate that there is a large

20    number of individuals who died before 1995 and who nevertheless got it on

21    to the OTP list of persons related to Srebrenica?

22       A.   Of course, it is not true that a large number of individuals on

23    the OTP -- any number of individuals on the OTP list are reported as dead

24    in earlier years, not in 1995.  Well, I don't know, how can you draw this

25    conclusion based on nine cases of which you are absolutely uncertain as to

Page 21058

 1    the quality of reporting of information?  And, yeah, this is, I think, a

 2    very misleading conclusion.  You may not do that.

 3       Q.   I agree with you.  Those were only nine illustrations, and there

 4    is over a hundred such cases.  But let me continue with my examination.

 5            When you were drafting your 11 January 2008 report, were you, as a

 6    demographer, duty-bound to use, except for the raw ICMP list, also the

 7    official sources such as the records of death by relevant official bodies?

 8       A.   Well, I don't understand what are relevant official bodies, but

 9    this is perhaps not so important.  The purpose of the whole exercise was

10    to cross-reference the OTP list of missing with the records of the

11    identified persons of the ICMP, and this is what we did in this report,

12    and this is what we present in terms of statistics and some basic

13    demographic distributions in the January 2008 report.  So we didn't have

14    the purpose of including any source available or unavailable, just the

15    list of identified persons.

16       Q.   In other words, you did not use the minutes ascertained in the

17    death of the Cantonal Courts of Tuzla, Zenica, and so on and so forth, all

18    those documents; you only used individual segments that are normally used,

19    but only some of them of those that are normally used to ascertain the

20    death of a given individual?  For instance, a copy of the register, this

21    is something that I would consider an official source.

22       A.   I don't understand the question.  I can only repeat:  We wanted to

23    cross-reference missing list of OTP of 2005 with the DNA-based

24    identifications of the ICMP, and this is what we did and this is what we

25    presented.  Perhaps you can rephrase your question.

Page 21059

 1       Q.   Did you consult the clinical -- the voters' registers of 2006 [as

 2    interpreted], perhaps, to ascertain that the lists match, or was the

 3    purpose of your exercise merely to make the ICMP list an official one?

 4       A.   Well, what is register of 2006, we don't --

 5       Q.   I apologise.  It wasn't entered into the transcript properly. What

 6    I meant was the 2006 voters' registers of Bosnia-Herzegovina.

 7       A.   Well, as you know, from the 2005 report on the list of Srebrenica

 8    missing, we did use, when compiling the list of missing of 2005, the

 9    population census, three voters' registers, 1997, 1998 and the 2000

10    register, and we used SOL records of the internally displaced persons and

11    refugees of 2000, the official register of these individuals, in order to

12    eliminate possible survivors from the OTP list of missing.  But once the

13    list was finished, we didn't do much work on it, any work on it, we just

14    used the list as it was compiled in 2005 for the purpose of

15    cross-referencing the list with the latest ICMP list of identified

16    persons.

17            So, in fact, in some way, these voters' registers, registers of

18    IDPs and refugees, the census, are all there, are all there, through the

19    OTP list of missing, but not that we used these sources in the context of

20    the ICMP data.  Why would we be doing this?  This all has been done

21    already.

22       Q.   Your 11 January 2008 report does not contain a full demographic

23    portrayal of the situation.  It merely serves to make official the ICMP

24    list?

25       A.   Well, there are two things.  The January 2008 report is a full

Page 21060

 1    report, because it discussed what we wanted to and planned to discuss in

 2    this report.  That's one thing.  Second, we don't need to make the ICMP

 3    official -- ICMP data official.  I don't know still what does this mean to

 4    you, "official."  The ICMP list contains cases of identified persons with

 5    important reference numbers to the main identification report.  That would

 6    be the protocol ID number available from this list, with the case number

 7    available, which is the label attached to the remains.  It includes as

 8    well ICMP identification number.  So through all these IDs and the name of

 9    the person, you have a complete record of information about the

10    identified.

11            JUDGE AGIUS:  I think, Ms. Nikolic and witness, we are repeating

12    ourselves over and over again.  I think we can move to your next question.

13            MS. NIKOLIC: [Interpretation] Thank you, Your Honour.

14            This concludes my cross-examination.

15            JUDGE AGIUS:  All right.

16            So Madam Tapuskovic.

17            MS. TAPUSKOVIC: [Interpretation] We have no questions of this

18    witness.

19            JUDGE AGIUS:  Thank you.

20            Mr. Ostojic.

21            MR. OSTOJIC:  Thank you, Mr. President.  I just have a couple of

22    minutes, if the Court allows.

23            JUDGE AGIUS:  Go ahead.

24                          Cross-examination by Mr. Ostojic:

25       Q.   Good afternoon, Dr. Tabeau, again.

Page 21061

 1       A.   Good afternoon.

 2       Q.   Ma'am, today on page 61, line 25, you spoke, in answers to my

 3    colleague, Madam Nikolic, regarding the criteria of plus/minus five.  Do

 4    you remember that, basically?

 5       A.   Well, we discussed the five years limit at some point.

 6       Q.   Can you tell me the source of that standard that you used the

 7    criteria of plus/minus five?

 8       A.   Well, the source should be seen as our expertise in matching and

 9    comparing related records, and another source is the fact that dates of

10    birth are reported not always in a reliable way.  This is what we know

11    from the ICMP, but this is also our observation, our own observation.

12       Q.   Right.  Actually, my question was a bit different, and it was

13    probably my fault.  What my question is:  Is this a standard that's

14    typically utilised internationally or is this a standard that you,

15    yourself, have set, this five plus-or-minus criteria that you mentioned?

16       A.   Well, if you expect that I will give you international guidelines

17    published on these particular five years, then I must disappoint you.

18    There is no such a published standard.

19       Q.   So when I say -- asked you what sources there are, those are just

20    internal sources that you've utilised, and you don't -- they're not used

21    in any other nation, country, which deal with demographics or the study of

22    displaced or missing persons; is that really what you're saying?

23       A.   No, this is not what I'm saying.

24       Q.   Well, help me and describe for me which other entities or

25    organisations use this criteria, specifically.

Page 21062

 1       A.   Well, I think generally the matching as a method is a

 2    well-recognised standard, and in many countries, like, for instance,

 3    Scandinavian countries, who don't have the population census, matching is

 4    an important way of collecting information about the individuals, the

 5    population, and compiling statistics.  Matching, in that case, would be

 6    based on individual identification, numbers, as such.

 7       Q.   Right.  And I'm familiar with that methodology of matching,

 8    Dr. Tabeau.  My specific question is -- and if you can't help us, I'll

 9    move on to another point.  Is the criteria of utilising this plus or minus

10    five?

11       A.   Well, I explained earlier, there are no written published on plus

12    or minus five years.  This limit can be established based on the study of

13    the data and based on your own assessment of deficiencies, in particular,

14    in this case, in the date of birth.

15       Q.   Thank you for that, and I'll move on in the interests of time.

16            I want to know, when you said that you relied on the ICMP reports,

17    if you could qualify that for me.  Did you rely on all their reports or

18    some of them?  And if some of them, which ones, if I can put that compound

19    question in the interest of time to you?

20       A.   Well, I'm not sure what you mean "with the ICMP reports."  We used

21    a list of identified persons that was provided by the ICMP, right, for --

22       Q.   Let me then restate it, if I may, and I apologise for cutting you

23    off, Doctor.  If you utilised the data from the ICMP, as opposed to

24    reports, so we'll just change the word to "data," did you use all their

25    data or part of their data?

Page 21063

 1       A.   Well, they provided us with a subset of data on -- related to the

 2    identified persons related to the fall of Srebrenica, but I also do the

 3    DNA identifications for many other victims that would cover not only

 4    victims of the war in Bosnia and Herzegovina but also Kosovo, for

 5    instance, and in some cases Croatia.

 6       Q.   So you used part of their data; right?

 7       A.   Well, we used part of their data.

 8       Q.   Well, all I'm interested to know, Doctor, is:  What part didn't

 9    you utilise in providing your report of January 2008?  If you could list

10    that out, if you know.

11       A.   Well, what are -- I didn't use the data that were unrelated to

12    Srebrenica.

13       Q.   Anything else that you didn't use from the ICMP?

14       A.   Like what, you mean?

15       Q.   Like all the data that you were provided by them, you took

16    everything that relates to Srebrenica, everything else you didn't utilise.

17    So with respect to Srebrenica, you were provided with all that data, and

18    you used all that data to come up with your report; would that be a fair

19    assessment?

20       A.   They provided a separate list for Srebrenica.  It's a separate

21    data set, a subset of all the data they have.

22       Q.   And that's all you utilised; correct?

23       A.   Well, in this particular report, yes.  In the previous report,

24    we - addition to the Srebrenica list of ICMP - used the notice, the

25    so-called ICMP notice, which is much broader.

Page 21064

 1            MR. OSTOJIC:  Thank you, that's all I have, Doctor.

 2            Thank you, Mr. President.

 3            JUDGE AGIUS:  Thank you, Mr. Ostojic.

 4            Mr. Lazarevic.

 5            MR. LAZAREVIC:  Yes, thank you, Your Honour.

 6                          Cross-examination by Mr. Lazarevic:

 7       Q.   [Interpretation] Good evening, Madam Tabeau.  My name is

 8    Aleksandar Lazarevic, and I will ask some questions of you on behalf of

 9    General Borovcanin.

10            Could we please see 03159A on e-court, and I would kindly ask that

11    the document not be broadcast, since it is under seal.  Let us go to page

12    20 of the document immediately.

13            MR. LAZAREVIC:  [In English] Your Honours, I would kindly ask for

14    some guidelines, because this document is under seal and I, in my

15    cross-examination, I intend to reference to some particular date from this

16    document.  Whether we should revert to private session, it contains

17    particular names.

18            JUDGE AGIUS:  Thank you.  Let's move to private session, because I

19    don't know what document this is, and perhaps -- are we in private

20    session?

21                          [Private session]

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 21065











11    Pages 21065-21067 redacted. Private session















Page 21068

 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  (redacted)

18  (redacted)

19                          [Open session]

20            JUDGE AGIUS:  So we have concluded your cross-examination, Madam

21    Tabeau, which means you're free to go.  Thank you so much for having come

22    over to give testimony.

23            THE WITNESS:  Thank you.

24                          [The witness withdrew]

25            JUDGE AGIUS:  Ms. Soljan, exhibits.

Page 21069

 1            MS. SOLJAN:  Yes, Your Honours.  That would be 65 ter numbers

 2    3158, 3159, as well as 3159A, 3004 and 3004A, and 3006.

 3            JUDGE AGIUS:  Any objections?  We hear none.  Admitted.

 4            Documents for the Drago Nikolic Defence?  Ms. Nikolic, you have

 5    three documents?

 6            MS. NIKOLIC: [Interpretation] Thank you, Your Honour.  Yes, of

 7    according to the list that was forwarded, it was 3D299, 3D142, and 3D302.

 8    The other documents I used have already been put on the Prosecution's

 9    list.

10            JUDGE AGIUS:  Any objection?

11            MS. SOLJAN:  No, Your Honours.

12            JUDGE AGIUS:  Other Defence teams wish to object?  None.  So these

13    three documents are admitted.

14            Mr. Lazarevic, I suppose the ones you used are already in the

15    records, so --

16            MR. LAZAREVIC:  Yes, Your Honour, it's all been tendered into

17    evidence by the Prosecution.

18            JUDGE AGIUS:  So that concludes our business for today.  I wish to

19    thank you for your cooperation.

20            Tomorrow, you have the last witness, Mr. McCloskey.  Don't tell me

21    she's not here.

22            MR. McCLOSKEY:  She's here, and that is the last witness.

23            JUDGE AGIUS:  Yes, all right.

24            So we'll deal with her testimony tomorrow, and then perhaps after

25    that we'll deal with the residues of the Butler exhibit list, of course,

Page 21070

 1    without prejudice to what we discussed earlier on.

 2            MR. McCLOSKEY:  Yes, Mr. President, and we are working on some old

 3    stipulations from long ago and a few other items which we may need to

 4    alert you to.

 5            JUDGE AGIUS:  Yes.

 6                          [Trial Chamber confers]

 7            JUDGE AGIUS:  Incidentally, while we still have some more time, we

 8    would like you to get together, and also with the Registrar, to clean up

 9    for us the slate on which we have put so many documents, marking them for

10    identification.  Then we need you, particularly, Mr. Ostojic, we need you

11    to conclude for us, in a clear way, clear manner, all issues -- pending

12    issues, if there are any left, relating to the aerial images.

13            As I see it, but of course I stand to be corrected, it seems that

14    there is a standing on your part, Mr. Ostojic, but all other issues,

15    pre-existing issues, have been solved, but the objection stands.  But if I

16    am wrong, please correct me tomorrow.

17            Some time back, Mr. McCloskey, you had informed us, in relation to

18    the Skorpion video, that you were having talks, discussions, with the

19    Defence teams and that you were in the process of finalising a

20    stipulation.  I don't know at what stage you have arrived, but if perhaps

21    tomorrow you could articulate this.

22            I think for the time being, that is all.  There are some other

23    issues, but I need to discuss them with my colleagues before I raise them,

24    if at all, tomorrow.

25            Thank you.

Page 21071

 1                          --- Whereupon the hearing adjourned at 6.53 p.m.,

 2                          to be reconvened on Wednesday, the 6th day of

 3                          February, 2008, at 2.15 p.m.