080731ED

Page 24474

1 JUDGE AGIUS: All right. Thank you, Mr. Lazarevic.

2 I take it there are no further cross-examinations from the

3 Defence teams, which means I can now ask Madam Soljan from the

4 Prosecution to cross-examine the witness.

5 Go ahead.

6 MS. SOLJAN: Good morning, Your Honours.

7 JUDGE AGIUS: Good morning.

8 Cross-examination by Ms. Soljan:

9 Q. Good afternoon, Madam.

10 A. Good morning.

11 JUDGE AGIUS: Good morning to us and good afternoon to the

12 witness.

13 MS. SOLJAN: Feels like the afternoon, Your Honours, already.

14 Q. Good morning. My name is Lada Soljan, for the record. I am a

15 member of the Prosecution team in this case.

16 Now, we haven't met before, that's right, and we haven't

17 discussed this case in the past?

18 A. No, we haven't, no.

19 Q. Now, just before we get into the subject matter and the questions

20 I have for you, I wanted to double-check something.

21 In your report, you listed on the last two pages of it the 22

22 sources, reports, that you looked at in compiling your report; is that

23 right?

24 A. Yes.

25 Q. And among those documents that I saw there, there were -- you

Page 24475

1 listed the six sources that had been used by the OTP demographers, the

2 OTP experts. They were the seven sources that you also list in your

3 report, six reports that were issued by Helge Brunborg and other

4 demographers, two articles, and a report by Dean Manning; is that

5 correct?

6 A. I suppose it's correct. As soon as I have listed them, it must

7 be correct.

8 Q. Okay. And just a clarification, please. Under number 7, you had

9 listed a document called "List of Exhumed and Identified Persons,

10 Srebrenica Region, ICMP Identified DNA List." Could you just clarify for

11 me what that list was, exactly?

12 A. In the course of my work, on several occasions I received seven

13 or eight versions of these lists, and that's why I did not list the

14 versions precisely. The versions were very different. I had an occasion

15 to see versions that were disclosed by the OTP, i.e., letters that were

16 sent by individuals from the International Commission for the

17 Identification of Persons sent to the demography department. In other

18 words, I saw versions relative and ranging in numbers from 4.000

19 something, and I can't tell you the exact numbers, 5.000 something, 8.000

20 something, and even 10.000 something. I can't give you the precise

21 numbers to give you at the moment, but I have those in the witness room.

22 I have two versions that I can show you in hard copy.

23 To sum it up, I've seen several versions of the same document.

24 Q. And just to clarify, when you were looking at them, were they in

25 Excel spreadsheet format or did you get hard copies of them, or Excel

Page 24476

1 spreadsheets that were on a CD?

2 A. No, nothing was in hard copy. However, what I do, everything is

3 in hard copy. I did my all -- all printing in order to be able to carry

4 out some comparisons and in order to arrive at a complete picture. In

5 other words, I never received anything in hard copy. Whatever I have in

6 hard copy is the printed versions of the material disclosed by the OTP

7 which I printed by myself. When I work, I always use -- I always

8 scribble on the margins, make my little notes, and that makes my work

9 easier for me.

10 Q. Okay. And you understood where this data, the one that you call

11 list of exhumed and identified persons, where it originated?

12 A. Absolutely. The origin is the demographic department of the OTP,

13 that's the origin. I don't have any other sources of lists that I might

14 have received from the Commission. All the documents originated from the

15 OTP. But based on some note of correspondence, I could see where they

16 had come from. There was correspondence about corrections, about

17 possible numbers, possible suggestions, and so on and so forth. That's

18 part of the correspondence attached to those lists.

19 Q. I think I may not have been clear enough when I was asking the

20 question. What I meant was: This document that you list as

21 ICMP-identified DNA lists, do you know what that source of that data is?

22 Who created that list or those lists?

23 A. According to what I could conclude from reading different

24 documents, this was done by the International Commission for

25 Identification, and the lists contain certain interventions, and I don't

Page 24477

1 mean corrections, but certain conclusions about people who were

2 identified, who were not, who were still missing, and this was done by

3 the expert demographers of the OTP in The Hague.

4 There are several lists. There's one which provides the names of

5 the persons and the DNA identification. You can see those. There's a

6 lot of duplicates because a lot of re-association was done.

7 Later on, you have the same lists, but then the demographic

8 department had compared them with the lists of missing and dead and

9 conclude that some persons are still missing, some were identified, and

10 so on and so forth.

11 The way I understood it is that the authors of those lists were

12 from the International Commission for Identification.

13 Q. Okay. And you're aware, Madam, that OTP experts considered it as

14 a primary source to be used together with the ICRC and the PHR lists in

15 the establishment of this -- of the new progress report?

16 A. You would have to define or clarify the meaning of a primary

17 source. In what terms can something be a primary source? What did they

18 use in order to establish who was identified? Is that the meaning of a

19 primary source, as you use it?

20 Q. "Primary source" in the sense in which, I think they -- they also

21 used it -- in which Helge Brunborg used it when he was testifying as

22 well, in the sense that the ICRC and the PHR lists were his primary

23 source, and he was now considering ICMP as a third primary source in

24 putting together the list of missing unidentified persons.

25 MR. OSTOJIC: Excuse me.

Page 24478

1 JUDGE AGIUS: Mr. Ostojic.

2 MR. OSTOJIC: I'm objecting only because I don't think my learned

3 friend answered the doctor's question as to how she defines "primary

4 source." She just said Dr. Brunborg utilised it as a primary source, but

5 I think the witness is asking for clarification as to what constitutes a

6 primary source.

7 JUDGE AGIUS: Yes, Ms. Soljan.

8 MS. SOLJAN: Your Honours, I don't actually -- I don't think I

9 need to be clarifying this. I just -- I think "primary source" is a

10 pretty clear -- it's being discussed in all of Mr. Brunborg's reports.

11 JUDGE AGIUS: Yes, I think everyone knows what a primary source

12 is, as distinct from a secondary one.

13 MS. SOLJAN: But I can move on.

14 THE WITNESS: [Interpretation] If you will allow me, I would like

15 to say something.

16 Irrespective of the interpretation of the term "primary," in my

17 report I say under item 6 that I also use data on the exhumed

18 unidentified persons, and they can be obtained only from the

19 International Commission of the Red Cross. Whether Mr. Brunborg used

20 those directly or not, I can't say, but I know that one of the

21 co-authors, Ms. Ewa Tabeau, compiled her list of 7.661 persons, and on

22 the margin or on the side she made her remark -- she put her remark:

23 "Identified," "still missing," and so on and so forth. I can't claim

24 that this was done by Mr. Brunborg and that he had requested that, but he

25 does mention that source in his report and that's why I listed it.

Page 24479

1 Whether it was a primary source to Mr. Brunborg or not, I wouldn't know,

2 because he did not dwell upon it, and he did not go into the greatest of

3 details in that respect.

4 MS. SOLJAN:

5 Q. In fact, I would beg to differ, in his direct examination he

6 actually specifically referred to it as his primary source, but I'll move

7 on.

8 When you were preparing your expert report and your testimony for

9 this week, did you review any other testimony beyond Mr. Brunborg's?

10 A. Again, I don't understand "any other testimony about that."

11 About what?

12 Q. Any other related testimony in this case, any other testimony

13 related to demography, related to graves, related to the events of

14 Srebrenica, any testimony in the Popovic case.

15 A. I observed Dr. Brunborg's testimony. I was present at his

16 cross-examination. I observed Dr. Ewa Tabeau's testimony and also the

17 testimony of Dr. Mladen Kovacevic.

18 Q. Did you also have a chance to review the report of Mr. Kovacevic?

19 A. Yes.

20 Q. But you haven't seen or followed or read the testimony of

21 Dr. Thomas Parsons?

22 A. Dr. Thomas Parsons and the recording of his testimony I did not

23 see, but I read his letters to Ewa Tabeau about identification and about

24 reaching a certain number of identified persons eventually.

25 Q. And you didn't follow the testimony of Mr. Dean Manning, either,

Page 24480

1 did you, or read it?

2 A. I only read Mr. Dean Manning's reports. I did not read the

3 transcript of his testimony, nor did I watch him providing his testimony.

4 I read both reports by Dean Manning.

5 Q. Sorry, I cut you off. What you meant was, I presume, the June

6 and November 2007 reports of Mr. Manning.

7 A. To be really precise, I have them on me and I can tell you which

8 reports these are. One is June 2007, and the other is November 2007.

9 Q. And just additionally, did you listen to or read any of the

10 testimony of the forensics experts, such as Jose Baraybar, John [sic]

11 Haglund, John Clark, Richard Wright, or Christopher Lawrence, all of whom

12 testified in 2007?

13 A. I did not listen to them, but I listened to some other forensic

14 experts who did not testify in The Hague at this Tribunal, but rather at

15 the court in Sarajevo. Again, the subject matter was the Srebrenica

16 case.

17 Q. Therefore, since you didn't review the testimonies of these

18 individuals testifying in this current case, you also wouldn't have

19 reviewed any of the documents they had produced, any of their experts

20 reports, forensic expert reports; right?

21 A. If you are referring to the forensic experts that you mentioned

22 just a while ago, no, I really did not peruse any of their expert

23 reports. But I have to tell you something. The fact that I did not

24 review their reports is nothing that I deemed very important or

25 significant. I am interested in the possible number, and what the

Page 24481

1 forensic experts think, it is not up to me to be the judge of what they

2 think. What I did read was the detailed methodology for the

3 identification of bodies, which includes DNA analysis and some bone

4 analysis. I just wanted to have a rather broad picture of the methods

5 used in the process of identifying missing persons.

6 Q. Now, as you testified in the last few days here, your task was to

7 study all the reports that were prepared by the OTP experts, to look at

8 the sources that they used, to also consider other sources, and to come

9 up with your own report, analysing all that data; is that correct?

10 A. Yes.

11 Q. And you take issue with the results reached by the OTP experts

12 due to the sources that they use; is that right?

13 A. I contest the methodology that the OTP experts used to arrive at

14 the results that they have offered to this Court. I believe that the

15 methodology is completely wrong, non-scientific, that it is not used

16 anywhere else in the world but here at the Hague Tribunal, and I fully

17 believe that such methodology is not capable of delivering reliable

18 results.

19 Q. But your conclusion during your testimony, as well as how you lay

20 it out in your report, isn't it, is that a part of the methodology is

21 also the sources that you used, and you're saying more sources should

22 have been used; the six sources that they'd been considering in their

23 analysis were not sufficient?

24 A. You probably did not understand me correctly. The first step in

25 the system called "methodology" is sources. Sources are part of any

Page 24482

1 methodology and cannot be separated from it.

2 The first step in methodology is the system of procedures to

3 arrive at results. If your first step is wrong, you can be as good a

4 methodologist as you may, but the result will always be problematic

5 because of the erroneous first step.

6 JUDGE AGIUS: All right. Whenever it's convenient to you,

7 Ms. Soljan, we'll have the break.

8 MS. SOLJAN: Your Honours, I can stop now and take it up in the

9 next -- after the break.

10 JUDGE AGIUS: We'll have a 25-minute break now. Thank you.

11 --- Recess taken at 10.30 a.m.

12 --- On resuming at 11.00 a.m.

13 JUDGE AGIUS: Yes, Ms. Soljan.

14 MS. SOLJAN: Thank you, Your Honours.

15 MR. McCLOSKEY: Excuse me, Mr. President.

16 If we could get maybe five minutes before the next break, and

17 Mr. Nicholls -- and we'll be able to deal with a couple of the issues

18 very briefly that you brought up before.

19 JUDGE AGIUS: All right. My idea, Mr. McCloskey, was to finish

20 today's sitting during the next break, if Ms. Soljan can promise us to do

21 that, leaving us five minutes or ten minutes.

22 Do you think you can do that, Ms. Soljan?

23 MS. SOLJAN: I will do my utmost, Your Honours.

24 JUDGE AGIUS: All right, thank you.

25 MS. SOLJAN:

Page 24483

1 Q. Hi, again. So we were just speaking about the work you were

2 doing and the work you were tasked to do by the Defence counsel. Just

3 briefly, using your own criteria and the sources you analysed, what would

4 your number of missing persons from Srebrenica be?

5 A. I don't know that. In order to be able to say -- to give the

6 accurate figure for the missing persons in Srebrenica, a lot of things

7 have to be done. You have to be able to inspect some other sources. You

8 have to know what Srebrenica is. You have to be sure that your sources

9 are reliable. So I would not dare at all to say what, in my opinion, is

10 the accurate figure for Srebrenica.

11 Q. Okay. So you, yourself, did not try to put together a list of

12 missing persons for Srebrenica?

13 A. No. That was not my task, and that was not a task that I would

14 accept in the current situation at this time. I would not be able to do

15 it properly.

16 Q. Have you -- while disputing the methodology of the demographics

17 experts of the OTP, have you taken any steps to confirm whether any

18 individuals on the missing and dead list are, in fact, alive?

19 A. Well, that was not my task, either. But your expert was able to

20 determine, as early as in 2000, that there are nine such persons, and in

21 2005, well, I can't give you the exact information, but I think he

22 determined that there were 20 something. And he used the

23 strictest-possible method, and your expert did not present a probability,

24 how many persons might still be determined to be alive had he used the

25 41st criterion.

Page 24484

1 Q. And, Madam, in the course of your testimony in the last few days,

2 you've made a few highly-critical remarks about Mr. Brunborg and the work

3 methodology of his team; is that not correct?

4 A. Well, I have to stress that this has nothing to do with

5 Mr. Brunborg as a person. I was critical of the expert and professional

6 who applied the methodology that is improper in this manner. And let me

7 underscore once again, Mr. Brunborg stated in his research -- he,

8 himself, said in his study that this was unique methodology. This means

9 that it has never been -- it had never been used before in any kind of

10 scientific research.

11 Q. So when you are calling the work being done as result driven,

12 stating terms like "manipulation," "statistical exhibitionism," saying

13 that he's looking for elements that suit his end result, that he would

14 really like at any cost to find as many missing and dead as possible,

15 doing something like that seems to imply dishonesty, that you're saying

16 that he's dishonest; is that not correct?

17 A. Well, I wouldn't agree with you. I don't know Mr. Brunborg, and

18 I don't know whether he is an honest or a dishonest man. But I read his

19 CV, and Mr. Brunborg graduated from great schools, highly-esteemed

20 schools. He has been working in statistics bureau of Norway for years,

21 and their statistics is one of the highly developed in Europe. So I

22 really can't comprehend how Mr. Brunborg can apply certain methods in the

23 way that he's done, and that's what I'm critical of. And now whether

24 Mr. Brunborg is honest or dishonest, that has nothing to do with what I'm

25 saying. He's just not doing this in a professionally-proper manner.

Page 24485

1 Now, as to the reasons why he is doing that, I don't know that either.

2 Q. Madam, at the end of the day, what this is all about is simply

3 figuring out how many persons went missing or died after the fall of

4 Srebrenica in 1995; is that correct?

5 A. According to what Mr. Brunborg writes in his reports, he says

6 that he was tasked by the Prosecution to determine the number of persons

7 that went missing, and in the paper, The Genocide Count, he says that his

8 task is to determine the number of persons killed by the army of

9 Republika Srpska. So I'm just quoting from what Mr. Brunborg wrote,

10 himself. So it was his task to determine the number of the missing and

11 to confirm that they are, indeed, all of them dead, or at least to find

12 some evidence to support the claim that they are all dead. And you can

13 see that in the first report, the 2000 report, in the second report that

14 he wrote in 2003, in the paper that he published and that is attached to

15 the second report, and you can see that in 2005, he does not define the

16 task, merely saying that he is updating the list.

17 Now, in the list that Dr. Brunborg published in -- it's

18 co-authored by Mr. Urdal, you can see the missing related to Srebrenica,

19 that -- the army and so on, so from the forward to the 2000 list, you can

20 see what Mr. Brunborg's task is, except on what you can conclude on the

21 basis of the explanations he provides in the report.

22 Q. And the starting point for Dr. Brunborg's analysis, as you were

23 able to find, was an analysis of the ICRC list of missing persons; that's

24 correct?

25 A. If I understand you correctly, I don't know what the starting

Page 24486

1 point is. The term that was used in B/C/S --

2 Q. He looked at the ICRC missing list in order to determine how many

3 individuals from this list are missing persons from Srebrenica in 1995?

4 A. To be quite precise, Dr. Brunborg did not analyse the ICRC list.

5 Dr. Brunborg states that there is such a list and that missing persons

6 are recorded there, the date when this work started, and he also states

7 the number of persons on that list at the time when he is doing his first

8 report, and he indicates how many versions of the list there were at the

9 time when he started doing his job. So he did not analyse the ICRC list

10 in the sense in which we, in our profession, understand an analysis to

11 be. Dr. Brunborg analysed, to a limited extent, from my point of view,

12 the data that he extracted from the ICRC list, on the basis of the date

13 of disappearance, and regarding this analysis which is rather unilateral,

14 because he analyses only his own data. You cannot have a comparative

15 list when you're only comparing one thing with the same thing, so in this

16 sense Dr. Brunborg did analyse the ICRC list, but only in this way that I

17 just described.

18 And I would just like to add, if I may - I apologise - that

19 Dr. Brunborg, had he analysed this, he would have listed all the

20 attributes that exist in the ICRC list that are not shown as attributes

21 that Dr. Brunborg uses. In my opinion, if you analyse something, that

22 means that you have to show everything that you have, everything that you

23 can obtain from the ICRC raw material, to make an assessment and

24 evaluation of the data that the ICRC has, and to emphasise some

25 statistical deficiencies, indicating that you as a statistician, as a

Page 24487

1 demographer, will do on -- will work on some of that, complying with all

2 the statistical procedures, because the Red Cross is not bound by those

3 procedures.

4 Q. Well, Madam, actually, since you mentioned the raw material, a

5 few days ago you mentioned -- you were saying that you didn't know

6 whether the OTP Demographics Unit ever attempted to get the raw data from

7 the ICRC, and therefore that a major error was made precisely because

8 we're not in possession of the raw material. But, in fact,

9 Mr. Brunborg's testimony on May 9th, which you personally attended, he

10 delineated precisely what data was made available and the fact that a

11 request had been made, but that the ICRC, for neutrality purposes, was

12 not able to honour that request, and therefore that the data that was

13 possible was the basic data of names, father's name, last name, date of

14 disappearance and place of disappearance, as reported by concerned family

15 members. Isn't that correct?

16 JUDGE AGIUS: Yes, Mr. --

17 MR. HAYNES: Making a ten-line statement and just putting "isn't

18 that correct" at the end of it doesn't make it a question. That isn't a

19 question at all. It's quite simply a comment, and I don't know how the

20 witness can be expected to answer it.

21 JUDGE AGIUS: Yes, Ms. Soljan, I think Mr. Haynes could be right

22 this time.

23 Do you think -- Doctor, do you think you can answer the question

24 as phrased?

25 THE WITNESS: [Interpretation] Well, the question, if it was a

Page 24488

1 question, was rather lengthy, but it is a fact that Dr. Brunborg, in the

2 course of his examination - I don't know whether it was in chief or in

3 cross - did say that from the ICRC raw material, the only thing that he

4 saw was the questionnaire. There is a record of it. You can check. All

5 the other attributes that Dr. Brunborg notes and all the things that he

6 gathered that was in the cross-examination, it's just some of the

7 attributes that are made public by the Red Cross. And I say that -- I

8 state that with full responsibility.

9 Now, is there raw material in the ICRC? Well, you can -- it is

10 reasonable to conclude that if something was transferred from magnetic

11 storage media, well, certainly there is raw material, because you

12 couldn't do that just like that. Now, whether the Demographic Unit asked

13 for those materials, I don't know. I don't have -- I didn't see any

14 memos indicating that they wanted to get something and were not given it.

15 But if the lead researcher says that the only thing that he saw was a

16 blank questionnaire form, then I believe that those materials were never

17 even sought.

18 MS. SOLJAN:

19 Q. Well, Madam, on 9th of May, 2007, in testimony - and this is at

20 pages 1184 and 1185 - he was asked by Madam Nikolic: "Did you ask to get

21 an insight into the questionnaire of the ICRC that served as basis for

22 the ICRC list on their web site? Did you use the raw information from

23 those questionnaires or did you just use the data from list?"

24 "Yes, I think I've the questionnaire, an empty blank

25 questionnaire, but as I told you just now, we did not get that other

Page 24489

1 information. ICRC is very" --

2 THE INTERPRETER: Would you mind slowing down.

3 MS. SOLJAN:

4 Q. " ... very protective about the information they are releasing,

5 to preserve the neutrality so they have access to all sides in a

6 conflict."

7 Then Madam Nikolic continued to ask: "But did you ask for such

8 information? Did you ask for that particular information in regard to

9 every person reported as missing?"

10 And Mr. Brunborg answered: "We made general requests for

11 information, and I believe it was denied, but we could only get the

12 information that had already been provided in electronic format. For

13 example, there was also on the questionnaire they asked about ethnicity,

14 which was not provided to us."

15 So did you not hear this testimony, Madam?

16 A. Yes, I heard it, and precisely on the basis of this question I

17 based my conclusion that Dr. Brunborg may have asked for this material,

18 but that he did not see a single questionnaire that had been filled in,

19 and that Dr. Brunborg was happy with the electronic format that was given

20 to him, and that perhaps he did not persist enough in his efforts to get

21 it. But on the basis of what Dr. Brunborg said, that the justification

22 that the ICRC decided to treat this material as confidential, is not

23 logical enough.

24 If the Red Cross places on the internet the first name, second

25 name, date of birth, place of birth, father's name, and all the other --

Page 24490

1 or various other attributes, why would they conceal ethnicity or

2 professional background? And if they thought that this material could

3 not be posted on the internet, even if that were true, I can find it hard

4 to believe that they would refuse to place this material at the disposal

5 of an institution such as the ICTY.

6 Q. Madam, just to read back the answer you just gave before giving

7 me this rather long response, you said to my question regarding whether

8 the raw material had been sought, you said:

9 "Now, whether the Demographic Unit asked for those materials, I

10 don't know. I don't see any memos indicating they wanted to get

11 something. But if the lead researcher says that the only thing that he

12 saw was" --

13 THE INTERPRETER: Counsel, please slow down.

14 JUDGE AGIUS: Slow down, Ms. Soljan, please.

15 MS. SOLJAN: " ... and I believe that those materials were never

16 even sought."

17 Q. Now, Madam, which is it of those two?

18 A. Again, I'm not sure if I understand you correctly. You quote

19 Mr. --

20 Q. Just to make it clear, you said that you believed that the

21 materials were never sought. Did you or did you not hear his testimony

22 saying that he sought the raw materials and did not receive them?

23 JUDGE AGIUS: Yes, Mr. Ostojic.

24 MR. OSTOJIC: I object to the form of the question, Your Honour.

25 Without saying more in front of the witness, I think it mis-characterizes

Page 24491

1 the testimony of Dr. Brunborg. And I think the witness did hear as it

2 was given to her, and she's providing her answer based on that question.

3 Now, my learned friend may have a different interpretation when

4 Mr. Brunborg said that he generally asked for it, whether he generally

5 assumed that because of neutrality, they may not give it. But if they

6 have a document, and this cross-examination that any of the OTP experts,

7 including Brunborg, asked for that specifically, they've never tendered

8 it that I'm aware of, show it to the witness and we can move on on this

9 issue rather quickly.

10 JUDGE AGIUS: Thank you, Mr. Ostojic.

11 [Trial Chamber confers]

12 JUDGE AGIUS: We've been carefully following what was going on,

13 what the previous questions were, what the witness's previous answer was.

14 Amongst other things that she said, that in her mind perhaps Mr. Brunborg

15 was not persistent enough, but she continued to explain how, in her mind,

16 also there seems to be a contradiction between what she knows and what he

17 has stated. I think we can move ahead. We can move forward with your

18 next question.

19 MS. SOLJAN: Thank you, Your Honours.

20 Q. Madam, are you really suggesting that the ICRC should be giving

21 up this highly-sensitive data to any party that requests it?

22 A. I'm not trying to suggest anything, Madam. I'm just trying to

23 say that a lot of sensitive data was obtained at the request of the ICTY.

24 Now, I really can't tell you, I don't whether the ICRC would be willing

25 to give it or not, but I think that there is a lot of sensitive

Page 24492

1 information right here, and you know that probably better than I do.

2 Q. I don't think I quite understood that, but are you really -- are

3 you basically saying that the ICRC should compromise its neutrality,

4 especially in wartime situations such as these, out of which this kind of

5 data arises?

6 MR. OSTOJIC: I object to the form --

7 JUDGE AGIUS: You're assuming that -- yes, Mr. Ostojic.

8 MR. OSTOJIC: Go ahead.

9 JUDGE AGIUS: No, no, you go ahead.

10 MR. OSTOJIC: I object to the form of the question, and I think

11 that the requests were made several years, if not many years after -- or

12 should have been after the investigation of this case and during the

13 trial. If they have a document that they asked for this documentation,

14 they should show it to her. If they looked at the raw material, they

15 should give us the documents that we asked for and were required to

16 provide to us. Show it to the witness. It's cross-examination.

17 It's not for this witness to say that Dr. Brunborg, based on his

18 testimony, didn't look at that raw data. If she has evidence to counter

19 that, they should bring it forth, and it's quite straight forward.

20 MS. SOLJAN: Your Honours, if I may, Mr. Brunborg testified under

21 oath about this issue. This was on cross-examination, and the Defence

22 counsel had every opportunity at that time to ask for that raw data, if

23 they were not satisfied.

24 MR. OSTOJIC: With all due respect, we do not carry the burden of

25 proof. If they had that information pursuant to these Rules, they're

Page 24493

1 required to provide it to us. If they're telling us now that

2 Dr. Brunborg has that raw material, we invite them to produce it to us

3 immediately. I don't think that's going to be their position, but this

4 cat-and-mouse game really of shifting the burden of proof to us has got

5 to stop. They're required to meet their burden. They are not doing it

6 in this regard at all. If they don't have the documents to show this

7 witness, I respectfully request that they move on on another topic.

8 JUDGE AGIUS: Mr. Haynes.

9 MR. HAYNES: Really, what does it matter, what opinion this lady

10 has as to whether the ICRC should disclose this material? Is it going to

11 help you one bit with your judgement in this case? It's an utterly

12 irrelevant question.

13 JUDGE AGIUS: Yes, thank you, Mr. Haynes.

14 Ms. Soljan, will you move to your next area and question.

15 MS. SOLJAN: I will move to my next question, Your Honours.

16 Q. Now, a part of the analysis that Dr. Brunborg used, that the OTP

17 experts used, in order to assemble their list of missing persons, was by

18 taking the ICRC list and then, first of all, comparing it to the 1991

19 census; isn't that right?

20 A. Yes, that's what we said yesterday. That's how Dr. Brunborg

21 tried to prove that persons on his list were real people who actually

22 existed.

23 Q. And you've already said that the 1991 census, the official, is

24 not a perfect document; it contains errors?

25 A. I said that first names and last names were never checked. But

Page 24494

1 generally speaking, the census in Bosnia and Herzegovina was evaluated as

2 a success. This was not done by me. There is a procedure that is

3 carried out when you want to declare whether a census is a success or

4 not. So apart from the first and the last names that are not used as raw

5 material for the census, and they're never checked, this census was a

6 success. Of course, there are some questions where answers can be taken

7 with some -- with a grain of salt because they're perhaps more or less

8 reliable. And I would like to say something else.

9 The moment you publish the census book, it means that the census

10 was a success. There is not an institution dealing in statistics, the

11 national statistics bureau, that would publish the census books with the

12 results that are not considered to be good. If some attributes are

13 considered to be bad, for instance, occupation, then no book is published

14 regarding that attribute. So once the census books are published, it

15 signals that the census was a success. Of course, we always have to look

16 at what attribute this particular book is dealing with.

17 Q. But you'll agree with me that the 1991 census was not a

18 100 per cent complete document, listing all the individuals living in the

19 former Yugoslavia at that time, or guest workers?

20 A. I will not agree with you. What you say now, it's really

21 something new for me. I wouldn't say that. In particular, if you're

22 talking about the former Yugoslavia, the 1991 census was carried out in

23 all the republics of the former Yugoslavia. All the republics in the

24 former Yugoslavia published some results based on the census.

25 As far as I know, there is not a single republic in the former

Page 24495

1 Yugoslavia that stated, "We are not going to publish this because it has

2 not been a success." Of course, there are some attributes. Now, I don't

3 know whether there's a census book for occupation in Bosnia-Herzegovina.

4 Maybe there is, but I haven't seen it. So there are some attributes that

5 are not dealt with in books because they are not considered to be a

6 success.

7 Q. What I'm asking is: Not every single individual is listed in

8 that list, not every person from every village has made it into the

9 census?

10 A. Madam, I don't know where you get this information from, I really

11 don't. There is a precise definition of the population, and if persons

12 do not fall under the definition, they will not be entered. The

13 population implies permanent residence, people who have a permanent

14 address in the place where the census is taking place, irrespective of

15 the fact whether the person is there or not at the moment when census is

16 taken.

17 There were a lot of people who were guest workers abroad, and

18 they had been there for 5, 10, or 20 years. They were still part of the

19 population of the former Yugoslavia, and during the moment of the census

20 they were absent. And when I'm talking about the 1991, a lot of people

21 arrived in different places to study there, work there, but they were not

22 compromised in the census because they were not the permanent residents.

23 Whether every single villager of every single village was compromised in

24 the census, I can't tell you, but there is a check and double-check of

25 the census subsequent to the census, in addition to all the checking that

Page 24496

1 was done during the census-taking itself. And then it is this control

2 that will tell you whether the census was, itself, successful or not.

3 Who is it who can tell you whether every single person is

4 accounted for? There may be major problems arising from totally

5 illogical situations. For example, in one village you may have a

6 thousand inhabitants and still you accounted for only 100 of them, but

7 this is double-checked on the ground. Something else is then found as

8 the reason for such an illogical thing. But in statistics, there is

9 nothing illogical.

10 Second of all, when you embark on a census, you don't just do it

11 randomly, without any previous information. You have your estimates that

12 are provided by the statistics, by a scientific methodology. You take

13 into account natural flows in migrations.

14 To cut a long story short, I can't claim that every single

15 villager of every single village was accounted for, but I claim with full

16 responsibility that the census in Bosnia-Herzegovina was successful

17 because there was no single official institution in Bosnia and

18 Herzegovina that issued a statement to the effect that what is being

19 published is actually rubbish and should be taken with reservations.

20 When I say that a census was successful, this does not mean that

21 I should agree with the method and with the way things were done, but the

22 statistics of the State of Bosnia-Herzegovina are firmly behind the data,

23 and this data therefore is official. I may criticise them as much as

24 I can, taking certain features and characteristics into account, but I

25 cannot -- I simply cannot ignore this reliable source of data.

Page 24497

1 Q. And, Madam, the OTP experts found that 87 per cent of the names

2 on the ICRC list matched against or were found on the 1991 census. You

3 can agree with me on that?

4 A. Yes, this was established using a lot of keys, and that's what

5 they put in their report.

6 Q. Thank you. And as was discussed yesterday, 1.030 persons did not

7 match the 1991 census, were not found on the census?

8 A. That is stated in the report, yes.

9 Q. And you're suggesting that these 1.030 persons are fictitious, or

10 you've even called them non-existent?

11 A. Dr. Brunborg says that when he defines his methodological

12 procedure, and he says, and I quote: "In order for me to check whether

13 certain persons are real or fictitious," because there had been

14 objections about the published lists, "I matched the list" --

15 Q. What I was actually asking you -- I'm sorry to interrupt you, but

16 what I was asking you was what you were saying yesterday, and you

17 certainly had certainly mentioned non-existent persons.

18 A. I did, because the methodology used by Dr. Brunborg says whoever

19 is not identified in the census does not exist. I may be paraphrasing it

20 a bit wrongly, but I can quote, and he says to prove that somebody does

21 exist, that he's not fictitious, "we matched with the census." And if

22 your match result is 87 per cent, according to that methodology, then the

23 remainder of the persons are not matched, so why should you keep them on

24 the list? If that is your method for you to prove that somebody is alive

25 or that they existed, then why would you still keep on your list

Page 24498

1 something that you could not match and, thus, prove as ever having

2 existed?

3 Q. And your suggestion, indeed, as you were saying yesterday, is it

4 would be professionally correct to exclude these 1.030 persons from the

5 OTP list of missing and dead persons?

6 A. It would be professionally correct, to say the least, to

7 emphasise -- to highlight that now you are dealing with certain

8 individuals of whom you're not sure that they exist, rather than

9 distribute these people mostly onto the territory of Srebrenica. There's

10 no single statistical proof, according to Dr. Brunborg's methodology, for

11 these people, so how does he know that most of them hail from Srebrenica,

12 fewer of them from other places? How can he tell?

13 Q. Madam, are you basically suggesting, then, that all these Muslim

14 families who were reporting these 1.030 persons as missing were lying to

15 the ICRC?

16 A. No, Madam, not for a single moment did I say that Muslim families

17 lied to the ICRC. What I'm saying is that Dr. Brunborg does not perform

18 his job in a methodologically-proper way. The fact that he was not able

19 to match about 1.030 persons doesn't mean that these people do not exist,

20 these Muslims and their families. And what does it have to do with them,

21 after all?

22 In his table 5 or 6, Dr. Brunborg, in his report, he is not aware

23 of the national background or ethnic background for 999 male. How does

24 then, Madam Prosecutor, know that these were Muslims? And let me tell

25 you exactly what table that is. It is on page -- on page 27 of the

Page 24499

1 Serbian version. I wouldn't be able to point you to the English page.

2 And please allow me to finish. Page 27 of Dr. Brunborg's report,

3 drafted in 2005, table 7, he says "National and Sex Distribution of the

4 Missing and Dead Person Related to Srebrenica."

5 MR. OSTOJIC: I'm sorry. It's page 23 of the report, if you want

6 to follow along.

7 THE WITNESS: [Interpretation] Dr. Brunborg provides a table with

8 national and sex distribution. You will see there is 6.531 Muslim males,

9 37 females, and 6.568 in total. There are also Croats, Serbs and other

10 ethnic backgrounds, but I would like to draw your attention to those

11 whose ethnic background is not known. There's 999 of them, males, 31

12 females, or 1.031 persons in total whose ethnicity is unknown.

13 Q. Thank you, Madam. Well, one point I'd like to make is after you

14 testified yesterday, I consulted with the Demographic Unit and asked them

15 to just assemble the list of those 1.030 so-called fictitious persons and

16 match it against the July list that we have just received from the ICMP,

17 and it was disclosed to all the Defence and, I presume, to you, and the

18 is that result 527 of the individuals you have called non-existent can be

19 found in Srebrenica-related graves, according to this DNA data. What do

20 you have to say to that?

21 A. I can't say a thing, because I, myself, did not see the list.

22 I can trust your words, but I would need to take a look, I would need to

23 have the time to do that, and then I could tell you. And if Dr. Brunborg

24 did that in time for 7.661 persons, and if he said, "These are the ones

25 that I found on the list," "These are the ones that I did not find on the

Page 24500

1 list for various reasons," if he had done that in time, then I would be

2 in a position to tell you what I think about that.

3 Q. Thank you. Now, yesterday you stated that the more sources you

4 have, the higher degree of reliability there is for your statistical

5 research; correct?

6 A. Well, this is not exactly how I said it, Madam.

7 In any profession, it is very important to be very precise. I

8 did not say that it is important to have many sources. You can have a

9 thousand of them, but they don't have to be good. But if you have good

10 and reliable sources which will provide good-quality data, then obviously

11 it is good to have more of them because your job is to produce the most

12 reliable data possible. It is up to a professional to evaluate a source

13 as good or not, and it's very important.

14 The sources that I used were the ones that I considered relevant

15 in order to obtain reliable results and data.

16 Q. In asking this question, Madam, I was actually referring

17 precisely to your words at page 47, lines 23 and 24, but I'll go on.

18 Now, what I'm understanding is that you're suggesting that the

19 data gathered and collected by an internationally-recognised and neutral

20 organisation, such as the ICRC, is possibly less reliable than, for

21 example, the data from Ministries of Defence or offices of former warring

22 parties, such as the ABiH?

23 A. I never said that, Madam. I said something totally different. I

24 said that a source of information coming from the BiH Army, by its

25 quality, is the same if not even better than the sources that the OTP

Page 24501

1 experts have used. I -- the way I worded my answer is not the way you

2 say I worded it.

3 Q. Okay. Well, let's go for a moment to this ABiH list that we

4 discussed -- that you discussed yesterday.

5 Your basic argument for the lack of reliability of the OTP

6 missing and dead list was, in part, based on your analysis of the ABiH

7 list, and one of the things you noted in your report was that more than

8 100 persons found on both the ABiH list and the OTP list were listed as

9 dead or missing prior to July 1995; correct?

10 A. Correct, Madam.

11 Q. And you provided us a few weeks ago with annex 3 to your report,

12 where you listed by name 137 such persons from the ABiH list, that you

13 say were listed as -- or that were listed at dead or missing prior to

14 July 1995 on the ABiH list?

15 A. Correct, Madam.

16 Q. And if we go now to Exhibit 3D457, and for the purposes of what

17 I'd like to show, could we not broadcast this document, please, and if we

18 could please take it to annex 2, which is page 5 of this document.

19 And, Madam, just so you know what we're talking about, this is

20 the 24 July 2008 memo by Ewa Tabeau that you discussed in your testimony,

21 where she matched the OTP missing list with the ABiH list and then with

22 the newest ICMP data that was obtained in July, and indeed she found even

23 a higher number of individuals that on the ABiH list were listed at

24 missing prior to 1995. She actually found 220. And of those 220

25 individuals, if you look all the way to the right, under the rubric "ICMP

Page 24502

1 Grave-site, July 2008," you will see the names of grave-sites listed. In

2 other words, of these same 220 individuals reported to be missing by the

3 ABiH prior to 1995, 140 can be located in Srebrenica-related graves?

4 A. Not for all 220, but for 140. But there is another thing that is

5 very important here.

6 There is a number of certificates issued by the ABiH Army. There

7 is 135 of them which has been disclosed. I will not enter into the

8 reasons why this was done, but it is evident that the date of death was

9 erased and tampered with. And these certificates were sent to The Hague

10 in July of 2004. I controlled the material in February 2007. I will not

11 try to provide any evaluation of these certificates and why they were

12 altered.

13 Among these certificates, I found all the persons that I named as

14 dead, because then the names were not erased. Nothing was changed to say

15 that the ABiH Army had sent a list to the effect that the person did not

16 die in 2004 but in 2005. In other words, the material that I had at my

17 disposal showed fewer persons than listed by Dr. Tabeau, but what I did

18 is not any sort of a revision, and I don't consider that a mistake on my

19 part. If I had had available the certificates at the time, and if I had

20 been aware of the changes in the dates of death, then I would have had a

21 different explanation or I would have sought an explanation. There are

22 various explanations for that possible. For example, this could have

23 been done in order for Mr. Jeffrey Nice to get the confirmation of the

24 names of the soldiers who indeed were killed in 1992, 1993, 1994, or

25 later.

Page 24503

1 The letter that was returned to the demographic department of the

2 OTP says: "At your request, we have revised the list, and we have

3 established that the following persons did not get killed in 1994, but in

4 1995." This is what I saw here over the course of the past few days.

5 There are situations in which, for example, a soldier got a

6 certificate proving that he was a member of the BH Army from 1992 to

7 1994, and then again between 11 July and -- 11th of July, for one day,

8 and that he went missing on the 11th of July. I really can't be the

9 judge of the whole situation. The situation is possible, but what I'm

10 saying is that this information about the revision has been in existence

11 in the demographic department for a long time, and when I was dealing

12 with the BH Army documents, I never knew that they existed. Nobody ever

13 alerted me to their existence.

14 Q. Madam, another source that you discuss was a set of four CDs that

15 you analysed, and they're titled "Data on Displaced Persons from

16 Srebrenica," individual levels with names and other details. Now, do you

17 know who compiled these four CDs?

18 A. What CDs are you talking about? Please be more specific.

19 Q. Yes, Madam, just a moment. In your report, at page 34, you list

20 these documents as D000-2101 all the way to 2104, concerning lists of

21 persons displaced from Srebrenica in 1995.

22 A. Okay. I can't find it. You probably are quoting from the

23 English version. The page is not the same. But when you mention

24 displaced persons, I know what you're talking about. Those are CDs that

25 I have received from the Defence as materials disclosed by the OTP.

Page 24504

1 Q. Okay. Do you know who compiled these lists?

2 A. You mean the list containing names, family names, and so on and

3 so forth? Well, I really couldn't be able to tell you. I don't

4 remember. I really can't remember, as I sit here, who it was. It was a

5 long time ago when I did that, and at this moment I can't remember who

6 the author of the lists is, but I can check. There are CDs, there are

7 lists, and it's easy to establish who the author of those lists is.

8 Q. Okay. Well, basically you -- you find that there are 36.562

9 people you could locate on these four CDs as being displaced from

10 Srebrenica in 1995?

11 A. I misspoke. The version that I enclosed contained 36.000

12 something, but the true figure is 34.457. When I arrived here, I

13 disclosed that to the attorney-at-law, who informed you and provided you

14 with a new CD. So 36.000 is not correct as a figure. The correct figure

15 is 34.457 persons.

16 Q. You provided us with an annex also, indicating that 23 persons

17 that you were able to find in this displaced persons list were also found

18 in the OTP missing list; isn't that right?

19 A. This is just by way of example to show that it is possible, if

20 you have the name and the date and place of birth, you can find dozens of

21 people under the same name and with the same personal data. I have just

22 illustrated this by singling out 23 people, and I'm not claiming that

23 they are the same people. But they could be, according to Dr. Brunborg's

24 methodology. In my report, I even say that specifically, that if we

25 apply Dr. Brunborg's methodology, that we could arrive at the conclusion

Page 24505

1 that they are the same people.

2 MS. SOLJAN: And if we could have Exhibit P0614 also not

3 broadcast, please.

4 Q. Madam, on the left side is the table -- is a copy of the table

5 that you presented to us in your table at annex 5. Do you recognise it?

6 A. Yes.

7 Q. And on the right side is the information showing that 13 of these

8 23 persons you claim overlap between the OTP list and the displaced

9 person list are identified in Srebrenica-related graves?

10 A. And what am I supposed to say? Am I supposed to confirm that

11 these are the same persons who were displaced or should I confirm that

12 the demographic department is sure, 100 per cent sure, that these are the

13 same persons? I really wouldn't be able to do that.

14 What I'm giving you is just an example. Whether they are really

15 the same people, I don't know. It would take some more information for

16 me to be able to tell you. What I see before me are people bearing the

17 same name, the family name, with the same father's name, the same year of

18 birth. Some of these people have been identified. I don't know how many

19 of them are one and the same person.

20 Q. Well, Madam, it's rather similar to the line of questioning that

21 Mr. Lazarevic had with you, where he was having you compare one name to

22 another name on different lists. My question, though, is: Are you

23 basically saying that these four CDs that you were gathering your data

24 from are more reliable than the data collected by the ICMP and the ICRC,

25 as gathered together by the DU or the Demographic Unit?

Page 24506

1 A. I never said that, and this was never my guiding thought. I

2 never assessed the reliability of the information disclosed by the OTP.

3 I only say that there is a lot that you have to take into account if you

4 want it to be professional, because the situation is very complex, it's

5 anything but black and white, and there's no way you can say this is good

6 and this is 100 per cent reliable, and the other thing is not good. So

7 it was not my task to assess the reliability of data. I just reviewed

8 what the OTP used and disclosed, and I just wanted to point to the

9 complexity of the situation and the fact that you cannot adopt a

10 one-sided approach in dealing with such a complex situation.

11 Q. Thank you, Madam. And turning to what I hope is the final topic,

12 do you -- do you know what the ICMP is?

13 A. I know how this term is translated, and I know what this

14 institution is doing. If you were to ask me in detail, I don't know

15 whether I would give you accurate enough answers. So depending on the

16 structure of your question, the brunt of your question as to what they're

17 doing, I wouldn't be able to give you a very precise answer. But I did

18 hear about that organisation, and I saw some of their work.

19 Q. Thank you for that. And you are aware, since you did have access

20 to the data, multiple versions of the data provided to you by the Defence

21 counsel, of the fact that ICMP is in the process of identifying, via DNA

22 matching, identifications of people out of various mass graves?

23 A. I know that.

24 Q. And they have been providing the Prosecution, and as a result the

25 Prosecution the Defence, with updated versions of lists of persons

Page 24507

1 reported as missing in Srebrenica related to the Srebrenica events of

2 July 1995; correct?

3 A. What I do know is that the Red Cross provided some information

4 for the region of Srebrenica. In some documents, you can find

5 information that this region comprises ten municipalities. And then the

6 Demographic Unit did all kinds of comparisons and provided materials

7 where it is indicated that a person has not been identified yet, has been

8 identified, and so on.

9 Q. And when you're talking about identifications, I'm assuming

10 you're referring to this document that might have been shown to you by

11 Defence counsel, the progress report, the newest list of missing matched

12 together with the identifications; is that correct?

13 And for the record, this is P003159A.

14 A. If I could just have it for a moment to look at the front page,

15 because I handled several lists. Yes, yes, that's the one.

16 Q. Okay. And just based on their November data, you were aware that

17 there were DNA identifications of approximately 4.300 -- well, to be

18 exact, 4.263 Srebrenica-related victims that is said of in the

19 introduction to that update; is that right?

20 A. Again, there is no definition of Srebrenica. Lists that I am

21 aware of were sent for the Srebrenica cases, I underline "cases." They

22 pertain to the region of Srebrenica comprising ten municipalities. And

23 the last memo, or memo that was disclosed by the Prosecution, does not

24 speak only about identified persons, but also buried persons, and it says

25 "3.554." Out of that 3.299, Potocari, 169 individual cases. So this is

Page 24508

1 the summary, but I don't know, I think this was disclosed on the 24th of

2 July, 2008.

3 Q. And thank you for anticipating my next question. I was just

4 going to bring you to this document.

5 If I could get 3D461, please.

6 Now, Madam, you may be aware that the way that these

7 identifications are done is that the bone DNA samples of persons from

8 graves are matched against blood donor samples that are collected, and

9 there are, as has been to testified to already by Dr. Brunborg, over

10 20.000 such blood samples actually collected.

11 Now, in the third row of this tracking chart for the Srebrenica

12 cases, the number of missing individuals represented by the blood samples

13 collected, as of - and this is an update dated July 18th, 2008 - the

14 number of missing according to the ICMP data is 7.789 persons. Do you

15 see that?

16 A. Yes, I do.

17 Q. And based on just the preliminary analysis of the data that we

18 obtained on 3 July, and this is the Excel spreadsheet data with all the

19 names listed, we were able to just find out, and you can find that

20 information in Dr. Tabeau's memo at 3D457, that there were at least 4.705

21 such individuals who were actually found on the OTP list of missing.

22 Just back to the tracking chart for Srebrenica cases for a

23 moment, you see that it has a DNA reports row, which is the third -- "DNA

24 reports," it's called. It's the third row -- third title row down, and

25 under it, it talks about individuals represented. The number of

Page 24509

1 individuals represented currently, as of July 18th, 2008, according to

2 the ICMP tracking --

3 THE INTERPRETER: Thank you for slowing down when mentioning

4 figures. Thank you.

5 MS. SOLJAN:

6 Q. The number is 5.616 individuals represented. Now, I've read you

7 all these figures rather quickly. One of the points is that based on the

8 October data that you had at your disposal, including the progress

9 report, there we saw that out of the 4.263 individuals that had been

10 identified by the ICMP, 3.837 were also found on the OTP missing and dead

11 list. That's approximately a 50 per cent overlap. And based on the new

12 data and based on the new numbers that we have, there are, as I've

13 already said, 4.705 persons found in the OTP list of missing against the

14 data we received in July from the ICMP.

15 Now, you would agree with me that these numbers are -- indicate

16 growth, that numbers of identifications continue to grow, to rise?

17 A. I didn't understand the question, except if you want me to agree

18 with you that the number is increasing. Well, I have no doubts as to the

19 fact that the number of identified persons is growing, but I think that

20 in the report that Dr. Brunborg and his associates did, it was not the

21 purpose of this report to determine that the number is growing. The

22 purpose was to determine that these were people who were killed in 1995.

23 And there is a certain cut-off date. I think it's the 10th or the 11th

24 of July.

25 The fact is there is statistical indicia that cannot be ignored,

Page 24510

1 that there is a large number of people who were killed before 1995 and

2 are being counted as having died after the 11th of July, 1995. These are

3 the facts, and there is certain indicia, even proof of that.

4 And it is also a fact that the demographers, and it was their

5 duty to do so, and the International Commission for Identification, do

6 not specify what Srebrenica is, whether the people who were identified in

7 the municipalities that Dr. Brunborg shows, the five municipalities,

8 people originally from those areas, whether they are victims of

9 Srebrenica.

10 So from my point of view, I don't doubt that the number of people

11 identified is growing, but the key problem is to determine when or,

12 rather, how many of those persons who have been identified are those who

13 cannot be linked with Srebrenica based on the date of the events in

14 Srebrenica.

15 How many of the people amongst those identified cannot

16 geographically, territorially, be linked with Srebrenica and the events

17 in Srebrenica in July? I think this is the key question. And from where

18 I sit, as I said, there are numerous indicia as to those questions.

19 Q. Madam, is your conclusion here today that there are actually

20 fewer individuals missing related to the fall of Srebrenica than have

21 been identified as dead in Srebrenica by the ICMP up to date?

22 A. I don't know. There seems to be a misunderstanding. What do you

23 base your claim that this is my conclusion on, what reports, what

24 statements I made? Maybe I am not making myself clear, and I would like

25 me to be clear.

Page 24511

1 Q. Madam, it was just a simple question. I want to know whether you

2 find that the ICMP data, the ICMP numbers, are -- don't support -- or,

3 rather, let me start again. The individuals listed as missing by ICMP at

4 this point in time are 7.789. It's actually a larger number than the

5 data compiled by the OTP Demographic Unit; isn't that right?

6 A. In my profession, you have to be precise. I do not challenge the

7 fact that the ICMP quoted those figures. I said a little while ago it is

8 very important for me to know what territory is covered. How do they

9 define Srebrenica? They say "related to Srebrenica," is that how they

10 phrase it? But we can define this courtroom in different ways, and let

11 alone an area that covers several municipalities. So I am not disputing

12 that this is the number put forward by the International Commission for

13 Missing Persons, but I don't know what they mean when they say

14 "Srebrenica."

15 [Prosecution counsel confer]

16 MS. SOLJAN:

17 Q. Madam, you are aware of the fact that there has been testimony

18 and there's been evidence of numbers of graves, both primary and

19 secondary mass graves, related to Srebrenica; isn't that right?

20 A. I am aware of that fact.

21 Q. And, in fact, these graves continue to be exhumed? I don't know

22 if you're aware of that fact.

23 A. I don't know that. This is not my area, so I haven't been

24 following it.

25 Q. And as exhumations continue, more samples -- and more samples are

Page 24512

1 going to the ICMP and are being tested against the 21.327 samples donated

2 by individuals who are reporting to the ICMP that their loved ones went

3 missing sometime after the 11th of July, 1995?

4 JUDGE AGIUS: One moment before you answer the question.

5 Mr. Haynes.

6 MR. HAYNES: Is this a question or a speech? The lady's already

7 said she has no knowledge of this. It doesn't seem to be a fair

8 question.

9 JUDGE AGIUS: Let her continue. We are getting there. I mean,

10 let's hear the question eventually.

11 Go ahead.

12 MS. SOLJAN:

13 Q. Well, Madam, basically does DNA data lie, do you know? Does it

14 misreport?

15 A. Well, Madam, I'm not a doctor, I'm not a physician. This is not

16 my area of expertise. I have no reason to even think that they lie.

17 JUDGE AGIUS: Stop. Next question, Ms. Soljan.

18 MS. SOLJAN: Your Honours, I have no more questions.

19 JUDGE AGIUS: Thank you, Ms. Soljan.

20 Is there re-examination, Mr. Ostojic?

21 MR. OSTOJIC: Not from me, Mr. President.

22 JUDGE AGIUS: Thank you.

23 Ms. Nikolic.

24 THE INTERPRETER: Microphone is not on.

25 JUDGE AGIUS: Yes. Your microphone.

Page 24524

1 of them.

2 Mr. Lazarevic -- sorry, not Mr. Lazarevic. Ms. Nikolic.

3 MS. NIKOLIC: [Interpretation] Your Honour, I am just receiving a

4 message, a mail message from my assistants, that they are just in the

5 process of completing the list. It will take them another ten minutes,

6 if I may ask your indulgence and allow them to complete that.

7 JUDGE AGIUS: Let's do the documents last, then. Let's do the

8 documents last, and let's go through the so-called preliminaries.

9 The Drago Nikolic motion, yesterday's motion seeking leave to add

10 one witness to his Rule 65 ter lists -- yes, okay.

11 MR. NICHOLLS: Sorry, Your Honour, I'm trying to see you both.

12 No objection.

13 JUDGE AGIUS: All right, no objection.

14 Is there any objection from the other Defence teams? No.

15 So permission is granted. We are deciding the motion orally by

16 granting leave, there being no opposition.

17 The Nikolic two motions seeking protective measures. Let's take

18 them one by one, please. One moment until I find ... yes, Mr. Nicholls.

19 MR. NICHOLLS: I can address those, Your Honour, thank you.

20 JUDGE AGIUS: Let's start with the first, one motion requesting

21 protective measures and delayed disclosures of the identity of Witness

22 3DW10.

23 MR. NICHOLLS: Your Honour, we've reached agreement with our

24 friends, no objection to the protective measures sought in that motion.

25 And we've spoken on the name, they have agreed to disclose to us after

Page 24525

1 the break so that there's no disagreement on this motion. It's the week

2 of the 18th of August the name will be disclosed to us, and no objection

3 to voice and image distortion.

4 JUDGE AGIUS: Okay. So if my colleague agrees with me, the best

5 way to go about it is not to decide it now. We'll wait to see that this

6 has, indeed, taken place, and then we'll declare the motion moot.

7 Okay, is that agreed?

8 MR. NICHOLLS: The other motion, Your Honour --

9 [Trial Chamber confers]

10 JUDGE AGIUS: You agree. And then the protective measures will

11 be issued, then, after the recess. And then there is the other --

12 MR. NICHOLLS: Yes, Your Honour.

13 JUDGE AGIUS: -- motion relating to witnesses W5, W6, W7.

14 MR. NICHOLLS: And I also believe 29 is in there, Your Honour.

15 JUDGE AGIUS: Yes, and 29. Yes, you are correct.

16 MR. NICHOLLS: Your Honour, I think with that one, we're not

17 ready to give a final answer. I can talk to my friends some more after

18 the break, but we will file something before the close of business

19 tomorrow.

20 JUDGE AGIUS: All right. I think there is no urgency, in any

21 case. It can wait until we return. We still have a couple of weeks.

22 MR. NICHOLLS: And we may reach an agreement. I'll talk to my

23 friend. I just didn't have time to talk about all the issues.

24 JUDGE AGIUS: Okay, thank you.

25 That leaves us with the Beara issue. We have gone through the

Page 24526

1 response filed yesterday night by the Beara Defence team. Do you wish to

2 address the Chamber, Mr. Nicholls?

3 MR. NICHOLLS: I can very briefly, Your Honour, although I think

4 the pleadings speak for themselves.

5 JUDGE AGIUS: Exactly. Can I just direct you, as regards the

6 list of exhibits, I think there isn't much --

7 MR. NICHOLLS: I was going to thank my friends for providing that

8 and say that's no longer an issue.

9 JUDGE AGIUS: All right. As regards compliance or otherwise with

10 Rule 67(A)(ii), do you have anything to start after reading what

11 Mr. Beara has stated --

12 MR. NICHOLLS: Yes, yes.

13 JUDGE AGIUS: -- namely, that they don't have any further

14 statements?

15 MR. NICHOLLS: Well, what they say, Your Honour, is that they

16 don't have any further signed witness statements, and what our request

17 would be, if those -- if they have statements which are unsigned of

18 witnesses who they intend to call viva voce that have not been provided,

19 that they be provided to us straight away. I don't think signing or not

20 signing should be a -- I don't want to say a way to get around a rule,

21 but a factor. When the witnesses come and are proofed, if they have --

22 the signed statement can be provided to us, and if there are errors or

23 changes, then that will be in the proofing note. But if we can get the

24 information now, that's what we request.

25 JUDGE AGIUS: Yes, Mr. Ostojic.

Page 24527

1 MR. OSTOJIC: Thank you, Mr. President.

2 I think that we were quite clear, if we had possession of any

3 such statements, we would give them to him, with the exception of several

4 witnesses that the Prosecution has interviewed or have given other

5 testimony in other ICTY proceedings here. We can provide that to them,

6 if that's what they really wish for, but I think they have them, because

7 they've provided them to us from time to time. But we're not in

8 possession of any statements, signed or otherwise.

9 We do have counsel notes. One of our legal assistants had passed

10 away. I do have some of his notes, not all. We are going to the field

11 the entire during the break in order to obtain more information from each

12 of the remaining witnesses that we have. And as I've set forth in my

13 motion, we will, immediately upon obtaining any such statement, send that

14 to them, as well as any other information that they deem relevant.

15 JUDGE AGIUS: Okay. Having heard that, would you be happy with

16 not having a decision at this point in time?

17 MR. NICHOLLS: Yes, Your Honour. I mean, my friend's told me he

18 doesn't have any more statements taken by them of any witnesses, signed

19 or unsigned, and if that's the case --

20 JUDGE AGIUS: Yes, that's what he said.

21 And as regards the first part of his response, namely, the

22 summaries?

23 MR. NICHOLLS: Your Honour, we stand by our motion. We've

24 compared the summaries attached to the filing from last night to the

25 summaries which have previously been provided and they haven't been

Page 24528

1 changed at all from the motion which we submitted a few days ago, so we

2 stand by our pleading.

3 JUDGE AGIUS: Isn't there a possibility that you meet

4 tomorrow - we are not sitting - and you discuss this? When we were

5 having the same problem with the Popovic Defence team --

6 MR. NICHOLLS: Your Honour, if I may --

7 JUDGE AGIUS: -- a meeting which lasted barely half an hour

8 helped solve all the problems to mutual satisfaction.

9 MR. NICHOLLS: Your Honour, frankly, my view is no. I've met

10 with them, I met with him and Mr. Thayer a long time ago. We've been

11 e-mailing. We have sat down and spoken, as Mr. McCloskey said, before we

12 filed this pleading. We have tried. We feel we need a court order. I

13 do not think it would be profitable in the least, frankly, based on past

14 efforts.

15 JUDGE AGIUS: Mr. Ostojic.

16 MR. OSTOJIC: It's a question of that we agree to disagree.

17 We've met not only with Mr. Nicholls and Mr. Thayer, but I think with

18 Mr. Elderkin and Mr. McCloskey for time and time again, and we've met for

19 a very long time. They seem to agree on some points, but it's not enough

20 for them.

21 I think if we read the rule, and I think quite frankly if you

22 look at two, if I can just highlight, or even three of the witnesses out

23 of the remaining 17 and just compared their 65 ter list summaries of that

24 witness with what the witness said in an interview to them, what the

25 witness said during his testimony in another case, and we met with the

Page 24529

1 witness, admittedly, on one occasion to confirm that which he said in an

2 interview to the OTP. If they need more information than that, I truly

3 cannot provide that to them. I think they're really being unreasonable

4 on this point. I strongly believe that our summaries are more than

5 sufficient and in compliance with the Rule, and I would ask the Court to

6 reject -- if they're not even willing to sit down, to reject their

7 requests on these 65 ter summaries that they're requesting.

8 I think that they have more than enough information. It provides

9 them the factual backdrop, it gives them notice of the witnesses.

10 They've clearly not been prejudiced when any of the witness that have

11 come forward. Even Witness who was 2DW007, Mr. Mrkovic, they had his

12 intercepts. They failed to provide that to us in a timely basis.

13 They've had it for a long time.

14 If the Prosecution truly believes they are being prejudiced in

15 any way, they could have, and, in my opinion, should have filed a motion

16 immediately after May 1st 2008, not wait during my Defence case, not wait

17 at the eve of a break. They could have requested and met with us and

18 made that statement well before, as the Court, I think, suggested to them

19 when they were dealing with the Popovic matters.

20 MR. NICHOLLS: Your Honours, if I may, that's just why there's no

21 point in meeting. He thinks his 65 ter summaries are fully adequate,

22 even ones which say things like he'll discuss an even in 1992. He thinks

23 he doesn't need to provide -- tell us what the witness will say, if the

24 witness is given an interview. There is really nothing left to discuss

25 and we just hope for a ruling. And I don't want to take time, but we

Page 24530

1 have been prejudiced by these delayed disclosures or lack of -- complete

2 lack of disclosure.

3 MR. OSTOJIC: Just one last point, if I may, Mr. President.

4 We have amended them and we have provided them additional

5 information. It's just not adequate. We've given them the names that

6 they've requested, the date of birth, the father's name, all the

7 information that they've had in their own database and in the database

8 that we utilise together. We are sticking with our summaries on this

9 issue.

10 If they really want to know what he said about 1992, I'm sure it

11 will draw an objection. I think really what they want, I can go back and

12 call this witness this afternoon. If they want to know what event, I

13 quite frankly don't know what he's going to say about 1992, but I'm sure

14 it involves Bratunac and possibly and Mr. Deronjic, which they're very

15 familiar with.

16 But if they really need that information and they're being

17 prejudiced because of -- a witness is going to say something in 1992

18 [sic], I'll provide it to them.

19 JUDGE AGIUS: I think you are unnecessarily taking a very rigid

20 position, both of you, we have spent hours going through the summaries

21 and the complaints of the Prosecution to see whether they were -- and

22 also because it's not exactly easy to establish criteria on the basis of

23 which you can decide whether a summary is adequate or sufficient or

24 insufficient, but while I say you're taking a very rigid position

25 unnecessarily, I mean it.

Page 24531

1 There is, for example, in relation to Witness C. Majovanovic

2 [phoen] one of the Prosecution complaints was information should have

3 been -- more information on the facts underlying the witness's alibi

4 testimony, such as attending Beara's birthday party and other facts

5 relating to the 1990 episodes of how Beara adhered to JNA policy of

6 calming down ethnic tensions, I'm sure you have more details than this

7 laconic description of what this witness is supposed to be testifying

8 again.

9 Again, in relation to Bojan Subotic, Bojan Subotic, in your

10 summary you have:

11 "Witness will also testify about an event from 1992."

12 And no one knows what this event is. You don't need criteria at

13 this point in time to establish whether the summary, as far as this goes,

14 is sufficient or not.

15 Don't you think that the Prosecution are not entitled to know

16 what event you are talking about or this witness would be talking about?

17 MR. OSTOJIC: Mr. President, you do make a good point with

18 respect to Mr. Subotic.

19 JUDGE AGIUS: I'm just mentioning two -- [Overlapping speakers]

20 MR. OSTOJIC: And I'll clarify that point right there, so they

21 can have a restful vacation. We'll withdraw that aspect. I won't lead

22 any evidence of this witness with respect to events leading to 1992. I

23 did suggest to meet with them. I'm not taking a rigid approach, with all

24 due respect. They refuse to because they're not satisfied with whatever

25 we give them, with respect, other than if I depose and have a court

Page 24532

1 reporter there and if they're present during the sessions with the

2 witnesses.

3 With respect to Mr. Subotic, I think really his testimony will

4 relate to the other aspects other than 1992, so I will orally here amend

5 that 65 ter summary. And if that was their concern, since they cite it,

6 I think we have an agreement that the rest of them should be adequate.

7 MR. NICHOLLS: Your Honours, this is what I mean. It's like

8 pulling teeth. I don't know the amount of times we have asked for that

9 information about 1992. Mr. Ostojic is trying to act as though this has

10 just come up. We've asked for that before. We've asked in e-mails, and

11 we haven't gotten it. You've been able to get something, Your Honours.

12 We're not, on our own. And to be clear, we stand by our pleading, and I

13 ask him to correct his 65 ter summaries and submit them immediately or

14 provide the relief we sought.

15 MR. OSTOJIC: I am sorry, but I was on trial with not nine

16 lawyers or eight lawyers but two lawyers, so with all due respect I did

17 not find in my priority list that this was that critical and that it

18 would prejudice them. Had I known that it was that important, and I do

19 apologise to them, I should have responded to them. But I didn't believe

20 when they requested that an event in 1992 is that important that it may

21 cause the Prosecution prejudice. That was my decision and I take full

22 responsibility for that.

23 But I had witnesses here under some adverse circumstances. We

24 tried to do the best we could. I think accomplished the guidelines that

25 the Court set forth for that. I will address that issue with my learned

Page 24533

1 friend if that's really his concern.

2 JUDGE AGIUS: Yes, Mr. McCloskey, we have to close down within

3 the next three minutes.

4 MR. McCLOSKEY: One last point.

5 I mean, you can see how strongly Mr. Ostojic, I believe, is

6 arguing on behalf of his client, and we understand that. I have been

7 facilitating this process the whole time, and I can tell you it's reached

8 an end. What's happening here is my team and my lawyers are getting tied

9 down by this, and it's taking away time. We're stuck protecting the

10 Srebrenica area, when we want to be in Trnovo, and it's something that we

11 need to get on with the case and not go into this constant reframe that's

12 not going anywhere.

13 He's strongly defending his client. In our view, we need a court

14 order.

15 Thank you.

16 JUDGE AGIUS: All right.

17 [Trial Chamber confers]

18 MR. HAYNES: Can I just say something?

19 JUDGE AGIUS: Yes, Mr. Haynes.

20 MR. HAYNES: I am concerned, because you might recall, when a

21 motion was filed in relation to the Popovic Defence 65 ter summaries, I

22 jumped into the ring on that one, because I feared that this would be a

23 procedure that was used to make even more difficult the process of

24 presenting your case. And we compromised that, and perhaps I and several

25 others here misunderstood the agreement we had, but I perceived there to

Page 24534

1 be an agreement that the Prosecution would not use this procedure again.

2 And there is still, as it were, relief sought in my cross-motion that any

3 further applications for amplified 65 ter summaries was to be made by a

4 date that we have now passed, and so I have some sympathy for Mr. Ostojic

5 in his impassioned plea that this comes --

6 JUDGE AGIUS: But not much.

7 MR. HAYNES: Well, what I really want to know is: Are we to

8 assume that we must press on for you to rule that any further requests

9 must be made within a limited time, or is there an agreement that this

10 turn will not be used against the rest of us who are waiting to present

11 our cases?

12 JUDGE AGIUS: Yes, we have to break. Either bring it to an end

13 here -- let's break for five minutes, until they change the tapes, and

14 conclude this story.

15 Five minutes. You can stay here, actually. I mean, and in the

16 meantime Judge Kwon and myself will have a chance to discuss it.

17 --- Recess taken at 1.01 p.m.

18 --- On resuming at 1.09 p.m.

19 JUDGE AGIUS: So we'll try to be as brief as possible.

20 We primarily feel that you should help us in your own interests,

21 not just the Beara team at the moment but also the others too, to avoid

22 putting us in a position where we have to decide these issues. And I

23 don't need to say much. I think you should all know why.

24 We do understand that everyone is used to his or her own domestic

25 system. In my country, for example, you would only be required, before

Page 24535

1 the trial, to indicate the purpose of the testimony of each particular

2 witness that you intend to bring over, and you have to indicate the

3 entire list of witnesses you intend to bring over, but that's about it.

4 You don't furnish any summaries at all. But we have our system here. I

5 do know what the system is and I can quite understand that sometimes it's

6 difficult to adapt, but we have our own system here, and our own system

7 requires that intelligible summaries which are sufficient on the face of

8 it are to be provided.

9 We think that the best way to go about it at the present moment,

10 also in the hope that the next couple of weeks will help you relax a

11 little bit and approach this matter in a more serene way, is for you to

12 sit down together, identify who the first ten witnesses are going to be

13 after the break, find out whether, in relation to any of those ten

14 witnesses, there is still an outstanding dispute between you as to the

15 sufficiency or otherwise of the summary, and sort out those for the time

16 being.

17 We have gone through all the summaries, and we don't believe that

18 it should be difficult. However, to help you, we also are in a position

19 to indicate to you that although we agree with some of the objections of

20 the Prosecution, in other words, we think that more information is

21 warranted, there are some witnesses where we are satisfied that

22 sufficient information has been given, and we are going to give you the

23 names so that you will have this clear on your table when you meet and

24 discuss.

25 First of all, there were two witnesses that there seemed to be an

Page 24536

1 agreement that the information provided was insufficient, but it's

2 already on record that the Beara team promised to add more information.

3 We are talking of - I will just give numbers - 2DW24, 2DW21, and 2DPW20.

4 [Trial Chamber confers]

5 JUDGE AGIUS: Unless any of these is being dropped, Judge Kwon is

6 telling me that in your latest filing you have indicated that you are

7 dropping 2DW24, but, anyway, that's up to you.

8 Now, we consider that the summaries relating to the following

9 witnesses, 2DW17, 2DW18, 2DW34, 2DW63, 2DWPW1, we are satisfied with the

10 summaries provided.

11 [Trial Chamber confers]

12 JUDGE AGIUS: Yes, that's more or less it. I mean, we had

13 reached these conclusions, although we are not deciding the motion prior

14 to seeing Beara's response, of course, which we will study further.

15 So basically now you know where we wouldn't expect any further

16 developments. But in the case of other summaries, other witnesses, we

17 suggest you deal first in an open manner and in a positive way with the

18 ones that we will be dealing with soon after the recess, and then we

19 decide, if necessary, about the others. But as we don't know exactly who

20 you intend to bring over starting on the 25th of August, now that we are

21 not sitting -- yeah, but we are not sitting now on the 20th, 21st and

22 22nd, so I wouldn't know, Mr. Ostojic, whether you would need to revise

23 your strategy and your list. I will leave that in your hands, because we

24 wouldn't interfere.

25 But having said that, once you know exactly who, it's easy to sit

Page 24537

1 down with Mr. Nicholls or whoever, see exactly what else they do require.

2 At the end of the day, they are not asking for information that is going

3 to compromise your case. I mean, some of it is so neutral, and it only

4 helps. I mean, at the end of the day it could help you as well.

5 Do you wish to comment on this proposed approach or not?

6 MR. McCLOSKEY: No, Mr. President. We'll, of course, follow your

7 instructions.

8 JUDGE AGIUS: When are you leaving town, Mr. Ostojic?

9 MR. OSTOJIC: I -- and I've set my schedule. I'm meeting with

10 various witnesses here Friday and Tuesday, and then I'm leaving for

11 Vienna, and then Dubrovnik to meet a witness that they know about, then

12 Tuzla and Sarajevo. So I will be on -- in the field throughout this

13 entire two and a half weeks. And as I said, I offered that I'd give

14 them -- once I sit down with these witnesses, I'll give them what

15 information they deem appropriate. But I will be here -- Friday night I

16 have a meeting with an expert that's here in the Netherlands, so I could

17 meet Saturday morning as early as they'd like, or Sunday in the evening.

18 JUDGE AGIUS: Our hope is that by the time we meet again on the

19 25th of August, this dispute would have whittled down to nothing or

20 little.

21 All right. So I wish you a nice break.

22 Oh, yes, we still have the exhibits. I forgot those.

23 Ms. Nikolic, thank you for reminding me. We were too anxious to

24 make you come to an agreement.

25 Ms. Nikolic.