1 Wednesday, 5 November 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.07 a.m.
6 JUDGE AGIUS: Good morning, Madam Registrar. Could you call the
7 case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is the case
9 number IT-05-88-T, The Prosecutor versus Vujadin Popovic, et al.
10 JUDGE AGIUS: Thank you. All the accused are present.
11 Prosecution is Mr. McCloskey and Mr. Mitchell. Absent amongst the
12 Defence teams are the following: Mr. Nikolic, Mr. Bourgon, Mr. Krgovic,
13 and that's it. The witness is here.
14 Professor Dunjic, good morning to you. Welcome back.
15 THE WITNESS: [Interpretation] Good morning.
16 JUDGE AGIUS: Hopefully we'll finish with your testimony today.
17 I don't know. I don't promise, but we'll try.
18 Mr. Gosnell. You've finished? Yes. We had finished
19 Mr. Gosnell. We had finished Ms. Nikolic. So it's Ms. Fauveau.
20 MS. FAUVEAU: [Interpretation] President, I have a couple of short
22 WITNESS: DUSAN DUNJIC [Resumed]
23 [Witness answered through interpretation]
24 Cross-examination by Ms. Fauveau:
25 Q. My name is Natacha Fauveau Ivanovic, and I represent General
1 Miletic. I would now like to ask you a few questions on Potocari.
2 Yesterday, you stated that on the basis of the report it was
3 impossible to establish the moment of death. I am interested in the
4 following: During the autopsy, was it possible to establish the time of
5 death using methods?
6 A. No. No, during the autopsy that was not possible to establish
7 nor was it possible during the exhumation, but during the exhumation and
8 during the autopsy it was necessary to describe various elements which
9 would have helped us to determine more precisely the time of death such
10 as the changes on the corpse, et cetera. These are the elements missing
11 in these autopsy reports, and it's from these elements that we indirectly
12 find out approximately the time of death or the time of burial. Those
13 are two things, the time of burial and the time of death.
14 Q. Today, on the basis of the elements which you have and which are
15 in these reports, you cannot tell us at all when -- if it was in 1992,
16 1993, 1995, the people died, the moment of death?
17 A. No, no. No, based on this I cannot make that determination.
18 JUDGE AGIUS: Thank you, Ms. Fauveau. Mr. Josse.
19 MR. JOSSE: Nothing from us, Your Honour.
20 JUDGE AGIUS: Thank you. Mr. Haynes.
21 MR. HAYNES: No, thank you, Mr. President.
22 JUDGE AGIUS: Thank you, Mr. Haynes. Mr. Mitchell. How long do
23 you expect your cross-examination to last?
24 MR. MITCHELL: I hope less than an hour, Your Honour.
25 JUDGE AGIUS: All right. Go ahead. Then, please make sure that
1 the next witness is here as soon as we finish. Thank you.
2 Cross-examination by Mr. Mitchell:
3 Q. Good morning, Professor.
4 A. Good morning.
5 Q. I'd like to start out and ask you a couple of questions about the
6 examination from my friend from the Nikolic team yesterday.
7 MR. MITCHELL: Can I go into private session, Your Honour?
8 JUDGE AGIUS: Sure. Let's go into private session.
9 [Private session]
11 Pages 27843-27845 redacted. Private session.
4 [Open session]
5 JUDGE AGIUS: We are back in open session, and if you need to --
6 the gentleman you've been referring to and others that we need to be in
7 private session, please be careful. Draw our attention, and we'll go
8 back in private session.
9 [Trial Chamber and registrar confer]
10 MR. MITCHELL:
11 Q. Professor, I want to read you a paragraph on this page and then
12 get your comments on it. Under the second bullet point, it says: "ICMP
13 anthropologists do not engage in identification of human remains. They
14 assist local authorities with exhumations and prepare remains for DNA
15 testing. ICMP would like to ensure that remains are buried only once DNA
16 testing has been completed. Especially in the early days, however, ICMP
17 and local authorities were not always able to ensure that remains are
18 buried following DNA
19 become necessary, in particular where a missing person is recovered and
20 identified as someone whom family members believe they have already
22 Now, Professor, are you familiar with this situation described
23 here where an error is made in the anthropological identification and
24 it's then later corrected through DNA
25 A. Yes. That is mentioned in that text several times, only I have a
1 comment about this in case you care to hear it. Anthropologists have a
2 very significant role in the verification, not only in the preparation of
3 samples for DNA
4 now: Identification is a complex process in which the DNA analysis is
5 the crown of all that must be done. But it is not an untouchable,
6 undoubtable proof because errors can be made in the extraction and the
7 storage, et cetera, and also in the interpretation of the DNA profile.
8 So in order to make a complete analysis, you need the forensic aspect,
9 the anthropological aspect, and the genetic aspect, so that I do not
10 fully agree with the ICMP in that sentence about anthropologists.
11 Q. Okay. Professor, in 1998 you supervised exhumations at Lake
12 Radonjic, correct?
13 A. Yes.
14 Q. And you and three of your colleagues -- well, 39 bodies were
15 recovered from this site, correct -- I mean, a minimum of 39 bodies?
16 A. Yes.
17 Q. And you and your colleagues identified 12 of these bodies by
18 anthropological methods, correct?
19 A. Yes.
20 Q. And the DNA
21 identifications were incorrect?
22 A. Yes, indeed. Can I comment, though, and reply to that --
23 Q. Yes.
24 A. -- since I'm the living proof of the fact that incomplete
25 identification can lead to wrong conclusions. I was head of the team
1 making an anthropological analysis and other analyses, but we had still
2 to do DNA
3 was all in the summer of 1998. If you apply the classical identification
4 method, apart from anthropological and forensic aspects, you need to take
5 samples from the nearest of kin. So you need ante-mortem data that go to
6 show what kind of person that was, how he or she was dressed, how tall he
7 or she was, and other anthropological characteristics, which information
8 must be matched to what you find in the field. But the problem with the
9 remains of the clothes was that the relatives gave wrong information, or
10 they misidentified some clothes; and the greatest problems was with
11 Albanians who wouldn't and weren't allowed to testify as to some of their
12 near relative died.
13 So based on the information that some relative recognized a piece
14 of clothing, we identified an individual as being X or Y, but it turned
15 out that we made some mistakes, and we were aware of it at the time.
16 So -- and I repeat that identification based on anthropological
17 information is very sensitive. We made no forensic mistakes. We were
18 very precise. But some details that were essential - in this case it was
20 possibility of making mistakes.
21 So why am I telling you that? I went to Madrid with the
22 representative of the Prosecution to transport some samples, and what is
23 mentioned in this letter - I mean the personnel we referred to - we were
24 taking samples to Madrid
25 that were found in Batajnica, for those we got profiles right away. The
1 samples from the case that you referred to, they were stored in plastic
2 bags and refrigerated, and so they decayed, and -- so there was
3 accelerated decay due to the circumstance in Belgrade at the time. And
4 in Madrid
5 samples from Madrid
6 the corpses that were found in Kosovo, and only then was a correct
7 profile made. That was the whole story why a mistake was made in the
8 identification. So that I'm very familiar with that.
9 The DNA
10 from the electropherogram, and that is very important. The
11 electropherogram enables you to make an accurate DNA profile. You now
12 remember those peaks I pointed out to you.
13 Q. So based on your experience, you'd agree that DNA-matching is an
14 integral part of the identification process that started with the
15 anthropological and forensic examination of the remains?
16 A. Yes.
17 Q. Thank you.
18 A. You're right. That's the right thing to do. That would be the
19 true identification.
20 Q. Now, let's move to a different area. I'd like to talk to you
21 about the graves in Potocari that you were asked some questions about
22 yesterday. There are three known graves in Potocari, correct?
23 A. Yes.
24 Q. There is one behind the zinc factory, which was assumed in 2004;
25 there's one which was exhumed in the Rabin field in 2005; and a second
1 grave exhumed in the Rabin field in 2006, correct?
2 A. Yes, yes.
3 MR. MITCHELL: Can we go into private session briefly, Your
5 JUDGE AGIUS: Let's go into private session, please.
6 [Private session]
1 [Open session]
2 JUDGE AGIUS: Okay, you can go ahead now. Thank you.
3 MR. MITCHELL:
4 Q. I'd now like to clarify with you the exact location of these
6 MR. MITCHELL: And can I please have in e-court 65 ter 3894.
7 That's page 2.
8 Q. Now, Professor, what you're about to see is a sketch done by an
9 RS MUP crime technician of the 2005 exhumation site in the Rabin field.
10 If we can just scroll down a little bit. As you can see on the sketch,
11 the site is located approximately 27 metres from the Budak road and 3
12 metres away from the stream on the left-hand side of the field.
13 Now, yesterday you confirmed that there were three bodies exhumed
14 from this grave in 2005, correct?
15 A. Yes.
16 Q. Okay. And these bodies are labeled SR-POT-01/1, 2, and 3?
17 A. Yes.
18 MR. MITCHELL: Can I please have in e-court 65 ter 3895?
19 Q. Now, Professor, what you're going to see here is another sketch
20 done by an RS MUP crime technician which shows the site of the 2006
21 exhumation in the Rabin field.
22 Now, the exhumation report for this site which you reviewed for
23 your report actually had the incorrect coordinates written on it. The
24 correct coordinates are written on the sketch, and these have been
25 verified by a Prosecution investigator who went to that site. So looking
1 at this sketch, you can see that the second grave is 29 metres from the
2 road and 6 metres in from the stream. Can you see that? So you can tell
3 from these measurements that this grave is within a couple of metres of
4 the one that was exhumed in 2005, correct?
5 A. A bit more to the north, I would say. I actually don't know
6 where east is, where north is. This is 29 and this is 27, so it would be
7 one on top of the other or one above the other if -- that's how they were
8 positioned, one on top of the other.
9 Q. Okay. Now, there were ten sets of remains exhumed from this site
10 in 2006, correct?
11 A. Those were not ten bodies --
12 Q. Ten sets of --
13 A. -- and there were six men and one woman [Realtime transcript read
14 in error, "six women"]. Yes.
15 Q. Okay. And you testified yesterday that only one of these sets of
16 remains mentioned any evidence of injury in the autopsy report, correct?
17 That was case number 7.
18 A. Yes. I said that there was only such an expression -- a
19 description, i.e., of the presence of an injury that might but only might
20 correspond to a wound inflicted by a firearm. We are talking about
21 number 7, aren't we?
22 Q. Correct.
23 MR. MITCHELL: Can I please have in e-court --
24 JUDGE AGIUS: One moment. Yes, Madam Fauveau, please.
25 MS. FAUVEAU: [Interpretation] Mr. President, it's just to correct
1 the transcript. Page 13, line 8, one reads, "there were six men and six
2 women", and this is not exactly what the witness said. Could the witness
3 perhaps repeat his answer concerning the number of bodies?
4 JUDGE AGIUS: All right. Professor -- thank you, Ms. Fauveau.
5 Can you follow-up on that, please?
6 THE WITNESS: [Interpretation] Six men. Thank you. Six men, one
7 woman. That's what I said, and that's how it was recorded.
8 JUDGE AGIUS: Thank you.
9 MR. MITCHELL: Can we please look at 65 ter number 4D00540.
10 Q. Now, Professor, this is your report.
11 MR. MITCHELL: If we can go to page 38 in the English and page 20
12 in the B/C/S.
13 Q. Professor, this is the autopsy report for the remains labeled POT
14 01 SRE
15 reports significant trauma to this body, including damage to the
16 supraspinatus and infraspinatus fossa of the right scapula. Now, that
17 damage isn't identified as post-mortem damage, is it?
18 A. No, no. Please, when we're talking about D, it says evidence of
19 injury, and it says none under that, which means that there is no
20 evidence of injury.
21 Q. Professor --
22 A. Please, and then it says "Other Observations." Under that, it
23 says PM damage to the distal ends of the left clavicle; damage and
24 effects to the supraspinatus and infraspinatus scapula fossa, P; and
25 damage to the anterior and posterial ends of the ribs bilaterally; and
1 let me not go on reading the rest of the observations. So the other
2 observations marked as PM is just a list of the things that were observed
3 and that could be explained or accounted for as post-mortem injuries,
4 e.g., after the death. These were not considered proofs of injury, and
5 they could not establish even with a lesser extent of reliability what
6 the cause of death was, and let me just finish. When you read this under
7 "Other Observations," and if we go back to the previous case of which you
8 have asked me and for which you have witnesses that the person had
9 committed suicide - and I won't mention the name of the person who hanged
10 himself - in the same paragraph of the post-mortem record under "Other
11 Observations," you will see very similar descriptions of damages and
12 defects, which means that it was done by one and the same person in the
13 same way and that damages and defects were described very inconsistently.
14 That's why we are unable to draw any conclusions, any final conclusions,
15 and that's what I've been claiming all this time.
16 Q. Professor, it was a simple question. That damage to the
17 supraspinatus and infraspinatus fossa isn't listed as post-mortem damage,
18 is it?
19 A. That's very possible. However, I'm not aware of the nature of
20 the damage. I am not aware of the nature of the defect.
21 Q. There is no indication there, is there, Professor? There is
22 no -- nothing there that says post-mortem?
23 A. It says PM. PM.
24 Q. But it doesn't say PM on the line that describes damage to the
25 right scapula, does it, Professor?
1 A. Please, this PM, I provided a comment on that in my written
2 report. There is nothing to describe here as being ante-mortem or
3 post-mortem if you're dealing with a skeleton. I will accept this as it
4 has been written, as PM. However, the line that you have just read out
5 where the abbreviation PM is missing, this abbreviation, PM, does not
6 accompany every sentence. However, this is a description that means
7 nothing. Just the word "damage" doesn't mean a thing. It's as if I were
8 to say, for example, that we all have pencils on our tables as -- and you
9 are supposed to take that as a fact. However, I have a ballpoint pen,
10 some have other things, and some don't have pencils at all. So this is a
11 general term which this person used and was not supposed to use. This is
12 something that should not be used in forensic science.
13 If you consider the word "defect," how would you explain that to
14 the judges? I know what a defect is. It can be a skin defect. It can
15 be a bone defect. It has its surface. It has its borders.
16 JUDGE AGIUS: Stop, stop, stop. I think the essence of any
17 testimony, examination-in-chief and cross-examination is to make sure
18 that we stick to what is relevant and we do it in a concise way and that
19 we are all able to distinguish the wheat from the chaff. I don't think
20 we have been doing this, so from now on - especially Professor, I am
21 addressing myself to you in particular - if you expand beyond what is
22 barely necessary or if you, Mr. Mitchell, together with the witness
23 concentrate on matters that we feel are not that important or relevant,
24 we will be drawing your attention and directing you to cut it short. So
25 let's proceed.
1 MR. MITCHELL:
2 Q. Professor, I just have one more question about this autopsy
3 report. Under the heading "Samples Taken," it lists a projectile,
5 A. No. It says "projectiles," plural.
6 Q. Okay. Now, I don't want to go through all the other reports from
7 this site, but I want to briefly summarise some of the findings for you.
8 The autopsy reports for POT
9 trauma under the heading "Other Observations" in the autopsy report, and
10 they all describe at least some trauma that is not listed as post-mortem.
11 In addition, under the heading "Samples Taken," projectiles are
12 listed in each of those autopsy reports that I've just named. So,
13 Professor, isn't it fair to say that each of these autopsy reports
14 actually does describe significant trauma to the remains; it's just not
15 listed under the heading "Evidence of Injury"?
16 JUDGE AGIUS: Yes. One moment, Professor, before you answer.
17 Ms. Fauveau.
18 MS. FAUVEAU: [Interpretation] Mr. President, I have an
19 observation to make. I'm not sure that the witness should stay here
20 while we are discussing this aspect.
21 JUDGE AGIUS: All right. If I recall, Professor Dunjic does
22 understand English. Is that correct? Yes, he did does. So I think you
23 need to leave the courtroom for a short while, please.
24 [Witness stands down]
25 JUDGE AGIUS: Yes, Madam.
1 MS. FAUVEAU: [Interpretation] Mr. President, here one starts from
2 the presumption that the projectile was -- if you look at the autopsy
3 report, one sees, indeed, that the samples taken, colon, and then the
4 projectiles, colon, hyphen, it means I think there were none; and then
5 after that, you got again -- it says here "ADN has been taken," and then
6 the rest will -- I'm not at all sure that the projectiles have been found
7 and taken on the site.
8 JUDGE AGIUS: All right. Thank you, Madam. Do you wish to
10 MR. MITCHELL: Very briefly.
11 JUDGE AGIUS: Yes, please. Thank you.
12 MR. MITCHELL: Your Honour, it's under the heading "Samples
13 Taken." I think the clear implication is that this is a sample that's
14 taken from the body. In any event, the question I put to Professor
15 Dunjic was just asking him to confirm that that was actually written
16 under the heading.
17 JUDGE AGIUS: Okay. I think we can leave it at that, and then we
18 see, basically. Don't you agree?
19 [Trial Chamber confers]
20 JUDGE AGIUS: Okay. Let's bring Professor Dunjic back, please.
21 Thank you.
22 [The witness takes the stand]
23 JUDGE AGIUS: Thank you for your patience and understanding,
24 Professor. We are proceeding, thank you.
25 MR. MITCHELL:
1 Q. Professor, my last question was: Isn't it fair to say that in
2 each of the autopsy reports that I just described, it actually does
3 describe significant trauma to the remains; it's just not listed under
4 the heading "Evidence of Injury." Isn't that correct?
5 A. No, it's not correct, first of all. Not completely. You can't
6 say that they sustained those injuries. In the chapter evidence of
7 injury it says, loud and clear, none. And then after that, there is a
8 sub-chapter entitled "Other Observations," so there is no evidence of
9 injury on the one hand and there are injuries on the other hand, and the
10 person lists fractures, defects, on various bones. They were -- are not
11 described according to any standards. There is no mechanism of injury,
12 and he doesn't put them in the group entitled "Evidence of Injury."
13 These are merely his observations, the things that he saw; and from that,
14 he arrived at a conclusion that the cause of death cannot be established.
15 This is the consistency between the conclusion and the findings that I've
16 already spoken about.
17 And as for the samples taken, and it says "Projectiles,"
18 semi-colon, dash, I've already explained that. It doesn't say whether 1,
19 2, 3, 4, or more projectiles were found in which part of the body, in
20 which of the bones, and there is no evidence of the projectile
21 penetration either on the clothes or on the bones. This is nothing but a
22 form which is printed and copied, one of the entries is "Samples Taken,"
23 "Projectiles," so if you find them as a doctor, you just say that
24 projectiles were found, and you may even add to that how many were found.
25 And this is the way you should understand this report or findings.
1 Q. Okay. There were ten sets of remains that were found at this
2 site in 2006, and yesterday you testified that the autopsy reports showed
3 seven actual bodies, correct?
4 A. Yes.
5 MR. MITCHELL: Can we go into private session, Your Honour.
6 JUDGE AGIUS: Yes, of course, Mr. Mitchell.
7 [Private session]
1 [Open session]
2 MR. MITCHELL:
3 Q. So just to summarise this information on the Rabin field graves,
4 Professor: We had three graves exhumed in 2005, and in 2006 an
5 additional six bodies have been identified. So that's a total of nine
6 bodies from this area of the Rabin field, correct?
7 A. I would have to go back to that to see whether there were six or
8 nine. In addition to the six identifications, the other two would make
9 up seven, seven and eight were reassociated, so I suppose it was nine.
10 Your Honours, I've never had this document when I prepared my
11 analysis, this document showing DNA
12 reports which state that the skull marked by number 5 is a female skull,
13 and that was all. However, if the DNA
14 reassociation with the bones and the case is taken as 003, then it is
15 just person. And this only confirms something that I've already said,
16 and that is that the information in the post-mortem reports are totally
17 non-transparent; and for me as pathologist, forensic pathologist, I can't
18 confirm that. I have to reject this. And then you give me a DNA
19 matching report, which says that it was not two bodies but just one, so
20 the whole process of exhumations and identification is now being
21 questioned. I don't know what else to say.
22 Q. Professor, I just want to confirm the numbers with you. It was
23 three bodies exhumed in 2005, and after you've seen this DNA matching
24 report, we now know there were six individuals exhumed in 2006. And
25 that's a total of nine bodies, correct?
1 A. In 2006, there was a total of ten skeletal remains; and in 2005,
2 there were three skeletal remains. In 2004, there was just one skeletal
3 remains in the Potocari location.
4 Q. Professor, yesterday my friend from the Borovcanin Defence team
5 told you about six individuals who died or were killed in the DutchBat
6 compound and whose remains are unaccounted for. He then asked you if
7 there was anything in the forensic material that would exclude the
8 possibility that those six individuals were buried in the Rabin field
9 graves. Do you remember that, Professor?
10 A. Yes.
11 Q. Okay. Well, I'd like to put a different situation before you
12 based on facts in this case, and we discussed this briefly last time you
13 were here, but I want to give you a little bit -- a few more details this
14 time. Now, we've heard testimony in this case from two United Nations
15 officers, Koster and Rutten, who saw nine bodies with gunshot wounds next
16 to a stream in Potocari on 13 July 1995
17 PW114, described seeing nine to ten bodies in the same area on the same
19 Now, all three of these officers gave evidence that the
20 individuals had been shot in the back. Now, Professor, an injury to one
21 or both scapula or to the ribs, that would be consistent with that
22 testimony, wouldn't it?
23 A. That such injuries were found during the autopsy of the bodies or
24 if these were found, that would be consistent with that statement. But
25 there simply are no injuries to those body parts that could stem from
1 gunshot wounds. There are no such injuries, and therefore ...
2 MR. MITCHELL: Can I please have in e-court 65 ter 3482.
3 Q. Professor, what we're about to see is an area of the Rabin field
4 which was taken on 17 July 1995
5 MR. MITCHELL: It might actually make more sense if we turn the
6 picture upside down.
7 Q. Now, Professor, if you recall the sketches of the Rabin field
8 graves that we looked at earlier, you can recognise the Budak road
9 running along the bottom of the picture. The stream is concealed in that
10 line of trees, just to the left of centre, and that's the Rabin field
11 itself in the centre of the picture. Can you see that?
12 A. Yes, yes.
13 MR. MITCHELL: Can I please have 65 ter 3483 in e-court, please.
14 Now, if we can turn this one upside down as well.
15 Q. Now, Professor, this is an aerial of the Rabin field from 27 July
16 1995 --
17 MR. MITCHELL: Sorry, can we turn it upside down.
18 Q. Now, sometime between 17 and 27 July, two areas of disturbed
19 earth appeared in the Rabin field. Now, if you remember where the
20 sketches of those two graves were located, you will see that that one
21 area to the left of your screen is the same area where the nine bodies
22 were exhumed in 2005 and 2006.
23 MR. MITCHELL: Now, can I please in e-court 65 ter number 3897,
24 and I actually have hard copies of these. If I can give one to the
25 witness and four to the Bench. It's also in e-court.
1 Q. Now, Professor, this is a compilation of aerials of the Rabin
2 field which were put together by a Prosecution investigator. Now, the
3 larger image shows that area of disturbed earth which appeared between 17
4 and 27 July. The three smaller images were taken from aerials marked by
5 those three DutchBat witnesses to show the spot where they saw nine or
6 ten bodies on 13 July; and just to clarify, on the larger image the
7 investigator placed those marks there just to highlight the spot, the
8 places marked by those DutchBat witnesses.
9 So to summarise this information, we have witnesses -- three
10 witnesses who saw nine to ten bodies next to a stream in Potocari on 13
11 July 1995. They all testified that the bodies had gunshot wounds to the
12 back. Now, sometime between 17 and 27 July, an area of disturbed earth
13 appeared in the Rabin field within metres of where those DutchBat
14 witnesses saw the nine or ten bodies. Then in 2005 and 2006, we have
15 nine bodies exhumed from the same area.
16 Professor, could this information assist you in determining what
17 happened to the nine individuals who were exhumed from the Rabin field
18 graves in 2005 and 2006?
19 A. I apologise again. The DNA
20 private session, how many bodies were identified there as a total?
21 Because I have the identification of six persons, and I don't know if
22 those are bones of the arm, but that doesn't amount to a total of nine by
23 any means.
24 Q. Professor, there were six bodies identified in 2006, and as
25 you'll recall, in 2005 there were a further three bodies exhumed from a
1 site right next to that one. So it's the three plus the six equals nine.
2 A. All right. So you are adding up what was exhumed in 2006 and
3 2005. All right. So could you please put your question again with
4 regard to these sketches.
5 Q. Certainly. As I said, we have three witnesses who saw nine or
6 ten bodies in this area. They testified that the bodies had gunshot
7 wounds to the back; an area of disturbed earth appeared between 17 and 27
8 July; and then in 2005 and 2006, a total of nine bodies is exhumed from
9 that area. And my question was: Could this information assist you in
10 determining what happened to those nine individuals who were exhumed in
11 2005 and 2006?
12 A. The statement they made can point to nine persons who suffered
13 gunshot wounds. That is a realistic assumption. For that realistic
14 assumption to be considered evidence in court, it must be accompanied
15 with autopsy reports to corroborate that; and we are talking about two
16 things, three persons and six persons found at two different sites,
17 albeit close, but two sites nonetheless, which points toward two
18 inhumations or burials. Out of these persons that I haven't seen the
19 autopsy reports for three, but I reviewed in detail the reports for the
20 other six, in none but one case, number 7, I have found the description
21 of an injury that would be consistent with inflicting a gunshot wound,
22 inflicting a gunshot wound. That is reason for me to doubt things in my
23 witness statement. And the clothing remains for -- on these bodies and
24 from 2005 and 2006, so the description of that clothing does not include
25 damage done by a projectile. And then, obviously, the anthropological
1 analysis here is highly suspect because an error was made, for example,
2 in determining the gender of an individual whose skull was found. And
3 this, in my observation, when I say that this was completely
4 untransparent and actually unusable and superficially drafted, is now
5 again confirmed. And the statements of the witnesses who saw that cannot
6 be matched with the forensic findings. So the forensic findings cannot
7 confirm their statements. I have nothing here to confirm the statements
8 of those witnesses.
9 MR. MITCHELL: Your Honours, just to clarify. There's a second
10 area of disturbed earth you can see on that image. My information is
11 that that area has been probed and nothing has been found, so just to
13 JUDGE AGIUS: Thank you very much, Mr. Mitchell.
14 MR. MITCHELL:
15 Q. Professor, I would like to move to a different area now and talk
16 about the Sandici grave, which you analysed in your report.
17 Now, as you told us in 2004, a grave was exhumed at Sandici which
18 contained 17 sets of remains, correct?
19 A. Yes, in 2004.
20 MR. MITCHELL: Can we go into private session, please.
21 JUDGE AGIUS: Can we go into private session, please.
22 [Private session]
11 Page 27866 redacted. Private session.
14 [Open session]
15 JUDGE AGIUS: We are in open session.
16 MR. MITCHELL: And I am finished with this document, too.
17 Q. Just a couple of more questions about your analysis of the
18 Sandici grave. Professor, the Trial Chamber has heard evidence in this
19 case that on the evening of 13 July 1995
20 were executed at the Sandici meadow, executed by members of the RS
21 Special Police brigade from the Jahorina training centre.
22 Now, the witness who testified about this execution stated that
23 some of these witnesses were executed with bursts of fire and others with
24 a shot to the head. Now, last time you testified here, you told us that
25 this kind of information could be very important for your analysis. Do
1 you remember that testimony?
2 A. Yes, I remember. That is para -- medical information that can
3 help me in choosing a direction for establishing the manner of inflicting
4 injury. When I got that information, I look for data in the autopsy
5 report confirming that there were injuries as sustained from bursts of
6 fire or shots to the head.
7 Q. And were you provided with this information when you were asked
8 to analyse the autopsy reports from the Sandici grave?
9 A. In the autopsy reports, I didn't find such information except in
10 three cases --
11 Q. Sorry, Professor. You misunderstood my question. I'm asking,
12 were you provided with the information about this the witness's testimony
13 when you were asked to analyse the autopsy reports?
14 A. No.
15 Q. Thank you.
16 A. No, no.
17 Q. Now, in addition to the grave we've just discussed, there are six
18 sets of surface remains that were found in the Sandici area, correct?
19 There were three sets in 2000, one set in 2001, one in 2002, and then one
20 in 2005, and that's in your report, correct?
21 A. [In English] Uh-huh. [Interpretation] And that was contained in
22 the documents that I reviewed.
23 Q. Well, we're about to look at that document.
24 MR. MITCHELL: Can I please have 65 ter number 3609 in e-court.
25 Q. Now, what we're about to see, Professor, it's that document from
1 the Federal Commission for Missing Persons dated 28 December 2007, which
2 contains information on all the surface remains found between 1996.
3 MR. MITCHELL: Is there an English translation?
4 THE REGISTRAR: It's not released.
5 THE WITNESS: [Interpretation] I can't find that document.
6 MR. MITCHELL:
7 Q. Now, Professor, this -- yes, you'll recall from your review that
8 this contains information on all the surface remains --
9 A. Yes.
10 Q. -- between 1996 --
11 A. Yes, this is it.
12 Q. -- and 2007?
13 MR. MITCHELL: Now, if we can go to page 3 of this letter, and
14 there should be a translation in e-court now.
15 Q. Now, this letter shows that between 1996 and 2007, a total of 929
16 sets of surface remains were collected in the area from Ravni Bujan to
17 Nezuk and the surrounding areas, correct? I just need an answer for the
18 transcript, Professor.
19 A. Yes, I know about this. I know. I know exactly. I know this
20 document exactly.
21 Q. And there's 484 of these remains have been identified, correct?
22 A. Were identified, yes.
23 Q. Now, in the surface remains update there were three people who
24 were reported missing in 1993, correct?
25 A. Yes.
1 Q. And we can agree that the death of those three individuals is not
2 related to the fall of Srebrenica in 1995?
3 A. Yes.
4 Q. Now, in --
5 A. They went missing in 1993, and they are on this list of surface
7 Q. Now, in your report you've identified a further 19 individuals
8 who went missing in August 1995, 3 in September 1995, and 2 in October
9 1995; and you suggested that these are not connected with the fall of
10 Srebrenica in July 1995. Is that correct?
11 A. Yes, that is my opinion.
12 Q. Professor, are you aware that following the fall of Srebrenica,
13 groups of Muslim men remained for weeks and sometimes months in the woods
14 in Serbian territory while they were attempting to get to Muslim-held
16 A. I can only assume as much.
17 Q. And are you --
18 A. I can't say I know it.
19 Q. Okay. Well, so you're not aware that specific evidence in this
20 case that Muslim men that were still being captured by Bosnian Serb
21 forces until at least mid-November 1995?
22 A. That information is not known to me. I'm a forensic expert. I
23 did not have an opportunity to read anything of the kind. I quoted the
24 statements to which I referred in my previous reports -- report submitted
25 here, and I referred to events that took place in that period, no more
1 than that. I don't know about any other statements.
2 Q. Professor, I just have one more quick area I'd like to cover in
3 respect of surface remains.
4 MR. MITCHELL: Can I please 65 ter 3902 in e-court, and it's
5 under seal.
6 Q. Unfortunately, Professor, there's not a translation of this
7 document. It was a short information report that was prepared yesterday
8 by a Prosecution investigator, just to update this information in the
9 surface remains document. Now, it's the Prosecution's position that to
10 date, 620 Srebrenica-related individuals have been identified from that
11 total of 929 surface remains cases that were collected between 1996 and
13 JUDGE AGIUS: Yes, Mr. Zivanovic.
14 MR. ZIVANOVIC: May I ask just clarification of the term
15 "Srebrenica-related"? What does it mean?
16 JUDGE AGIUS: Yes, Mr. Mitchell.
17 MR. MITCHELL: Referring to people who went missing in July,
18 August, September, October, 1995.
19 JUDGE AGIUS: All right. Thank you, let's proceed now, and it's
20 time for the break. As soon as Professor Dunjic answers this question,
21 we'll go.
22 MR. MITCHELL: I have just a couple of minutes, Your Honour.
23 JUDGE AGIUS: All right. Thank you.
24 MR. MITCHELL:
25 Q. Professor, I just wanted to very quickly work through this number
1 of 620 with you just so the Court and everybody understands where it came
2 from. Now, in the surface remains update that we just looked at, there
3 were 484 individuals. We subtracted the three individuals who were
4 reported missing in 1993, which leaves us with 481. The investigator who
5 drafted this report then identified 139 individuals in the ICMP's 2008
6 update, and he identified them as surface remains based on their case ID,
7 which corresponded with data in that surface remains update.
8 So the 481 individuals in the update plus the 139 individuals
9 from the ICMP update equals 620 identified individuals out of that total
10 of 929 surface remains cases. In your view, does that help clarify this
11 issue of surface remains and the numbers of Srebrenica-related
13 A. It is logical that the bodies would be scattered all over the
14 place, on the surface, in the woods, in the fields during war. It's only
15 logical, as I say, and I can fully appreciate that, why they were
16 scattered and found like that. The circumstances which led to their
17 death is something that can only be shown by forensic pathology findings,
18 and without that you cannot establish the time of death without an
19 autopsy. I don't know who these people are. You're showing me the
20 extended list, i.e., the document with that list, and I can only say that
21 these persons were found under various circumstances. Now, whether these
22 circumstances were tied to Srebrenica or some other cases that took place
23 before the 11th of July around Srebrenica which is very significant,
24 before the 11th of July or after the 11th of July, I can't say that
25 without an autopsy, i.e., without the time of death being at least
1 approximately established; and this is what I can tell you from my
2 standpoint, from the forensic pathology standpoint.
3 Q. Thank you, Professor.
4 MR. MITCHELL: I'll have about maybe ten minutes after the break.
5 That will be all.
6 JUDGE AGIUS: Yes. We'll have a 25-minute break now. Thank you.
7 --- Recess taken at 10.33 a.m.
8 --- On resuming at 11.02 a.m.
9 JUDGE AGIUS: Yes, Mr. Mitchell.
10 MR. MITCHELL: Thank you, Mr. President.
11 Q. Professor, there's one final area which I'd like to talk to you
13 MR. MITCHELL: Can I please have in e-court 65 ter number
14 4D00540. That's Professor Dunjic's report, and it's page 140 in the
15 English and page 73 in the B/C/S.
16 Q. Professor, I want to read you just a small part of your report
17 and then ask you a couple of questions about it. Now, under the heading
18 "Clothes," you say: "At the site in Potocari and the site in Sandici,
19 winter clothes were found on some individuals, which points to the fact
20 that these people died in the winter period before/after the fall of
21 Srebrenica. Another possible conclusion pertaining to the winter clothes
22 discovered at both sites could be a different time of death than stated
23 of persons at the same site and also burial at the same site on several
25 Now, earlier in your report you described these winter clothes as
1 things such as woollen socks, sweaters, jackets, and leather boots,
3 A. Yes. But it was not me saying this. I just quoted from the
4 findings of the physicians who were involved in exhumations and
6 Q. I want to show you a few pictures from videos that were taken in
7 Potocari and Sandici on 13 July 1995
8 MR. MITCHELL: Can I please have in e-court 65 ter 2992. If we
9 can go to page 6.
10 Q. Now, Professor, this footage was taken in Potocari on 13 July
11 1995. As you can see, a number of men wearing jackets, sweaters, and
12 what look like woollen hats.
13 MR. MITCHELL: And if we can go to page 9.
14 JUDGE AGIUS: Before we proceed, my attention is being drawn to
15 the fact that there are some names indicated. I don't know whether those
16 should be protected or not. Out of an abundance of caution, I suppose we
17 proceed out broadcasting. It will be safe enough. So no broadcast of --
18 and if you are going to make use of names, then we need to check whether
19 we need to be in private session. Thank you.
20 MR. MITCHELL: Thank you, Mr. President.
21 Q. Professor, this is also Potocari on 13 July. Again, you can see
22 men wearing jackets, sweaters, and hats.
23 MR. MITCHELL: If we can go to page 14.
24 Q. This footage was taken in Sandici on the 13th of July. You can
25 see the heavy jacket that's being worn by this man.
1 MR. MITCHELL: If we can go to page 16.
2 Q. We can see this man is wearing a jacket and also what appears to
3 be a sweater.
4 MR. MITCHELL: If we can go back to one final photo of Potocari
5 on page 8.
6 Q. Now, Professor, you can see that the man on the left of this
7 image is holding what appears to be a jacket and he's wearing a red vest.
8 MR. MITCHELL: Mr. President, can we go into private session for
9 a minute.
10 JUDGE AGIUS: Let's go into private session.
11 [Private session]
11 Page 27876 redacted. Private session.
11 [Open session]
12 MR. MITCHELL: If I can just have one moment, please.
13 JUDGE AGIUS: We are in open session. Yes, of course,
14 Mr. Mitchell.
15 MR. MITCHELL: Thank you, Professor. I have no further
17 JUDGE AGIUS: Thank you, Mr. Mitchell. Is there a
18 re-examination, Mr. Gosnell?
19 MR. GOSNELL: Very briefly, Mr. President.
20 JUDGE AGIUS: Yes, go ahead.
21 MR. GOSNELL: Could we please have P3485 placed on e-court,
23 Re-examination by Mr. Gosnell:
24 Q. While that's coming up, Professor, do you remember being asked
25 some questions --
1 MR. GOSNELL: Let me just repeat the exhibit I'm asking for.
3 Q. Professor Dunjic, do you recall being asked some questions about
4 the findings marked on the Potocari autopsy reports that you reviewed?
5 A. Yes.
6 Q. All right. I'd now like to have you take a look at the document
7 on the screen, and this appears to be the autopsy report for POT 01 SRE
8 006. Can you confirm that?
9 A. 001, not 006.
10 Q. I'm sorry. Let me direct --
11 MR. GOSNELL: Could we please have page 12 of the B/C/S version.
12 Q. Do you see it now, Professor?
13 A. Yes.
14 Q. All right.
15 MR. GOSNELL: Could we now move to page 4 of the English and page
16 14 of the B/C/S, please.
17 Q. Now, what do you see there under Section F?
18 A. Yes.
19 Q. Well, how would you -- looking at this, how would you interpret
20 the marking "projectile"? Does it indicate that projectiles were found
21 in or near the remains?
22 A. In my written report, I've already said that I wasn't clear on
23 this. Under F where it says "Samples Taken," one would imply and one
24 should enter the evidence that was taken during the autopsy, something
25 that was found in the body or on the body during the autopsy. Usually,
1 these would be projectiles or parts thereof or something to that effect.
2 The way things are written here says there were a number of
3 projectiles, plural, with a dash, which means that the form had already
4 contained projectiles as pieces of evidence. So if they are to be found,
5 their number should be listed together with the place where they were
6 found. But this doesn't mean either in this case or in a number of other
7 cases that were projectiles were indeed found. This is just a form of an
8 autopsy report as was prepared in advance.
9 Q. All right. And to the right of the DNA marking, do you see
10 details which actually describe something relevant to DNA?
11 A. Yes. It says that a sample taken from the body was not a
12 projectile. What was taken was a section of the middle part of the right
13 femur and a tooth. That was what was taken by way of DNA evidence, and
14 then it says "Other Things," nothing was taken. So where it says
15 "projectiles," this is part of the form, but it does not refer to
16 anything that has actually been found either on the body or in the body.
17 That would be my answer to your question, sir.
18 Q. And if nine individuals had been killed by gunshots, if all of
19 them according to the hypothesis had been killed by gunshots, would you
20 expect to find projectile traces in or near the remains?
21 A. On the assumption that there had been execution by a burst of
22 fire, as it says here, at a least some fragments of the projectiles would
23 have been found in the tissue, in the bones, in the clothes. At least
24 some of the clothes would have been damaged, and the damages would have
25 been described, but this is missing from these autopsy reports. It
1 hasn't been described. It has not been listed in this report or on the
2 reports describing the nine bodies found in Potocari.
3 And let me digress a little bit further. When you look at the
4 description of the injuries on the bodies who are assumed to have been
5 executed, and if you look at the description of the observations in case
6 Potocari 1/1 whom the witnesses had said that he had hanged himself, you
7 will see that the description is [Realtime transcript read in error,
8 "isn't] identical in all of these cases.
9 MR. GOSNELL: I understand there is a transcription problem at
10 line 15, "is identical."
11 JUDGE AGIUS: I thank you, Mr. Gosnell, instead of "isn't."
12 MR. GOSNELL: Mr. President, we have no more questions. Thank
14 JUDGE AGIUS: Thank you, Mr. Gosnell.
15 Professor, it's over. We don't have any further questions for
16 you. I see how pleased you are, being able to return home. Once more, I
17 have the pleasure of thanking you for having come over; and once more, I
18 wish you a safe journey back home.
19 THE WITNESS: [Interpretation] I thank you too. I may have gone
20 on for a bit long, but I would like to thank you for allowing me to
21 express my expert opinion.
22 [The witness withdrew]
23 JUDGE AGIUS: So let's proceed. Mr. Gosnell, documents? I see
24 you have only got one.
25 MR. GOSNELL: That's correct, Mr. President.
1 JUDGE AGIUS: Any objections, comments, Mr. Mitchell?
2 MR. MITCHELL: No objection, Your Honour.
3 JUDGE AGIUS: Thank you. Other Defence teams? I hear no
4 comments. Document is admitted. Ms. Nikolic, you have two documents,
5 515 and 516. Any objections, Mr. Mitchell?
6 MR. MITCHELL: Your Honour, there is no objection to 515, and we
7 have no objection to 516 coming in provided that the ICMP response also
8 comes in.
9 JUDGE AGIUS: Ms. Nikolic, do you have any problems with that?
10 MS. NIKOLIC: [Interpretation] No, Your Honour.
11 JUDGE AGIUS: All right. So that's problem solved. Any remarks
12 from any of the other Defence teams, Mr. Gosnell or Mr. Lazarevic?
13 MR. GOSNELL: No comment from us, Mr. President.
14 JUDGE AGIUS: Okay. So these two documents in addition to the
15 one referred to by Mr. Mitchell, that would -- will accompany 3D00516,
16 forming an integral part of it, are being admitted.
17 Yes, Mr. Mitchell. Prosecution documents? You have 12.
18 MR. MITCHELL: That's correct, Your Honour.
19 JUDGE AGIUS: Any objections from the Borovcanin Defence team?
20 MR. GOSNELL: Before I answer that question, first of all,
21 Mr. President, if I could just tell you that after looking more closely
22 at the Markovic exhibits, we have no objection.
23 JUDGE AGIUS: The four that you mentioned yesterday?
24 MR. GOSNELL: Precisely.
25 JUDGE AGIUS: All right.
1 MR. GOSNELL: And I wish to tell you that first because I would
2 again would request your indulgence to review these documents. There are
3 one or two in particular we may have some concerns with, and I would just
4 -- I need to go back and look and see what's been previously admitted.
5 JUDGE AGIUS: All right. We'll call on you again after the next
6 break. Ms. Nikolic?
7 MS. NIKOLIC: [Interpretation] Your Honour, with regard to 3902
8 from the OTP list proposed with Professor Dunjic - that's the last
9 document, yes - this is a report that the OTP investigators drafted with
10 an additional list of the identified bodies. I believe that the document
11 in question can -- cannot be admitted through this witness since this is
12 just an information report which compiles the work of the OTP and the
13 demographic department because the compilations are carried out by the
14 demographic department of the OTP based on the ICMP data. That's why I
15 believe that this document should not be admitted through this witness
16 that we have just heard.
17 JUDGE AGIUS: Before giving you the floor, Mr. Mitchell, let's
18 hear Mr. Haynes, if it's about the same thing.
19 MR. HAYNES: It is about the same thing, but can I just crave
20 your indulgence for one second to say on my own behalf and perhaps on
21 behalf of everybody here, to offer my to offer Judge Kwon for his
22 ascension to high office.
23 But I do join that objection. This is a document that was
24 drafted yesterday by somebody called Jans, who hasn't even given it the
25 authority of putting his signature on it. It wasn't addressed with the
1 witness at all. It was simply put on the screen, and then a proposition
2 was put to him.
3 It is debatable whether it has any evidential status whatsoever.
4 If it does have evidential states, then we'll all be running off to ask
5 the court staff, getting them to write short documents stating what our
6 position is on any particular issue in the case, putting them into
7 e-court, and then having them admitted into evidence. It simply has no
8 evidential status whatsoever, and it shouldn't be admitted into evidence.
9 That's P3902 for the avoidance of doubt.
10 JUDGE AGIUS: Thank you, Mr. Haynes. Mr. Mitchell, do you insist
11 on this document?
12 MR. MITCHELL: We do, Your Honour.
13 JUDGE AGIUS: Then could you respond to the objection, please.
14 MR. MITCHELL: Yes. It was clearly relevant to Professor
15 Dunjic's testimony and his expert report, and the whole aim of this
16 document was to clarify the issue for the Trial Chamber and the Defence,
17 and I think the evidential value of this document is clear on its face.
18 Sorry. It's organising information that's already in evidence
19 and simply clarifying it for the Chamber.
20 JUDGE AGIUS: All right. But the point made -- the main point
21 made as far as I am concerned - at least, of course, I need to consult
22 with my colleagues - is that it could be best or better introduced or
23 tendered by or through another witness and not through Professor Dunjic.
24 That's -- because otherwise, the probative value that one attaches is
25 something that will come to -- in due course. In other words, does the
1 testimony of Professor Dunjic give it probative value, make it stronger,
3 MR. MITCHELL: Mr. President, I submit that it clarifies
4 Professor Dunjic's report and his testimony. That's why we showed him
5 this document and --
6 JUDGE AGIUS: All right.
7 MR. MITCHELL: -- admitting it through Professor Dunjic will save
8 us from calling Investigator Jans.
9 [Trial Chamber confers]
10 JUDGE AGIUS: All right. Are there objections in the meantime?
11 We hear none, except that you will come later, of course. So what we are
12 going to do is we will postpone the issue until after the break. In the
13 meantime, we'll check whether indeed we do need this document at all in
14 the records, and we'll come to you after the break.
15 Yes, Mr. McCloskey.
16 MR. McCLOSKEY: Could I just briefly add, this was my idea, this
17 document, and I just might be able to provide you some helpful
18 information about why we're offering it, or not.
19 JUDGE AGIUS: Go ahead.
20 MR. McCLOSKEY: Thank you. Yes, Mr. President. It's our view
21 that Mr. Dunjic's report was somewhat confusing as was his testimony
22 regarding this issue, of bodies and who was who, and the
23 cross-examination was designed to unravel that. Now, the simplest way
24 for you to see the results from ICMP and the others is through this
25 one-page reorientation of the evidence. This can, of course, be argued
1 by us, can be attached by -- you know, in any brief; but really, it's
2 much like the reorganisation or the organisation of the material that
3 Dean Manning put in just so it can help you make sense of this -- this
4 evidence. This is the kind of thing that by looking at one page you can
5 sort out what this stuff means from the Prosecution's perspective and
6 make a judgment on the issue as opposed to trying to read only the
7 transcript and look for arguments.
8 So it's just a pure simple thing to help your job be easier,
9 which is just based on the evidence that's already in, much like Dean
10 Manning but without having to call the investigator and go over all the
11 material. I don't think there's anything that's contested in there.
12 It's just a brief one-page reorganisation of these key issues related to
13 the bodies, and that's it. Thank you.
14 JUDGE AGIUS: Thank you. So just to go back to Markovic's
15 documents, did I confirm that the documents on the lists, now having
16 heard Mr. Gosnell, are all admitted or not? No, I haven't, so I'm doing
17 so now. Those documents are admitted. Thank you.
18 Next witness.
19 JUDGE KWON: I would like to thank Mr. Haynes for your warm
20 congratulations. Thank you.
21 JUDGE AGIUS: For the record, Mr. Vanderpuye now has joined the
22 team for the Prosecution.
23 [The witness entered court]
24 JUDGE AGIUS: Good morning to you, Mr. Ristivojevic.
25 THE WITNESS: [Interpretation] Good morning, Your Honours.
1 JUDGE AGIUS: Welcome at this Tribunal.
2 THE WITNESS: [Interpretation] Thank you.
3 JUDGE AGIUS: Before you start your expert testimony, you are
4 required under our rules to make a solemn declaration that you will be
5 stating the truth and the whole truth. Please read out that text, and
6 that will be your solemn commitment with us.
7 THE WITNESS: [Interpretation] I solemnly declare that I will
8 speak the truth, the whole truth, and nothing but the truth.
9 JUDGE AGIUS: Thank you. Please make yourself comfortable.
10 Mr. Lazarevic will be putting questions to you. He will then be
11 followed by others on cross-examination. I don't see your testimony
12 finishing today, probably not even tomorrow. But -- tomorrow we don't
13 have a sitting, anyway, but probably not even on Friday, although we are
14 having an extended sitting on Friday, although I am going to make an
15 appeal to all parties here to finish by Friday afternoon.
16 Mr. Lazarevic.
17 MR. LAZAREVIC: Thank you, Your Honour, and good morning. Good
18 morning, everyone.
19 WITNESS: BRANISLAV RISTIVOJEVIC
20 [Witness answered through interpretation]
21 Examination by Mr. Lazarevic:
22 Q. [Interpretation] Good morning, Mr. Ristivojevic.
23 A. Good morning.
24 Q. We have already had the opportunity to meet, but still for the
25 transcript I must introduce myself to you. I am Aleksandar Lazarevic,
1 and with my colleagues I defend Ljubomir Borovcanin before this Tribunal.
2 A piece of warning -- a warning that I have to give to each
3 witness that speaks the same language as I, after each question please
4 wait for a short while and -- before answering so that there is no
5 overlapping for the transcript; and thus, you will make the interpreter's
6 life easier.
7 A. All right.
8 Q. Can you tell us your full name for the transcript?
9 A. My name is Branislav Ristivojevic.
10 Q. When and where were you born?
11 A. I was born on the 10th of October, 1982, in Novi Sad.
12 THE INTERPRETER: A correction: The year is 1972 and not 1982.
13 MR. LAZAREVIC: [Interpretation]
14 Q. All right. It has been corrected in the transcript. Can you
15 tell me briefly about your education?
16 A. Primary school and secondary school, I graduated from Novi Sad
17 and I completed my law studies at the university in Novi Sad in 1996. I
18 got my masters degree at the same university; and in 2006, I got my
19 doctoral degree at Belgrade
20 Q. We have slight problems with the transcript. I believe that this
21 will be resolved. It is probably not necessary to repeat the question.
22 Tell us, please, to which academic positions were you appointed,
23 if any?
24 A. I was appointed assistant professor in 2007 within Novi Sad
25 university. That is the lowest level academic degree in Serbia
1 Q. All right. Except in teaching and the scholarship, did you also
2 engage in research?
3 A. Yes, at Novi Sad
4 Q. I apologise, but it seems to me that you reply to my questions
5 too fast, too soon, so that the transcript cannot follow the pace of your
6 reply. So I would just ask you to slow down.
7 You have already told us that you have a doctor's degree, and can
8 you tell us the topic of your dissertation?
9 A. The topic was crimes against humanity.
10 Q. Can you tell me, for example, some of -- some of your more
11 significant papers?
12 A. My specific field of interest is command responsibility, joint
13 criminal enterprise. That's what I wrote about, and lately I have dealt
14 with the confrontation of legal concepts from the Anglo-saxon tradition
15 and the European continental tradition and their influence on the
16 development of international criminal law and the outcomes of
18 Q. Tell me, please, during your professional work, have you ever
19 been a guest teacher at any other faculties? If so, which? But please
20 wait for this to be recorded in the transcript. You can see it in front
21 of you, so you can adapt the pace of your response.
22 A. Yes. Last year, I held a short course at the law school of
23 Zagreb University
24 Q. What was the topic of that course?
25 A. Joint criminal enterprise.
1 Q. All right. Did you take part earlier in proceedings before this
2 Tribunal, or were you ever summoned to the international Tribunal in The
4 A. I was a hired by -- as legal assistant by the Defence team of
5 Mr. Krajisnik a number of years ago. Four years ago, I was a member of
6 the state delegation that was here in the procedure for the -- for the
7 extradition of the Kara term 4, so it was an extradition procedure.
8 MR. LAZAREVIC: Your Honours, I think we have a problem with the
9 transcript. It was a referral procedure.
10 JUDGE AGIUS: All right. Thank you. That's line 8 on page 49,
11 by the way.
12 MR. LAZAREVIC: [Interpretation]
13 Q. I believe we have corrected this in the transcript. And the next
14 thing I want to ask you, are you active in politics? Were you at any
15 given moment a member of Serbian parliament?
16 A. Yes, I used to engage in politics. I was member of Serbian
17 parliament in 2004; and in 2006 and 2007, I was an advisor to the prime
19 Q. All right. Now that you have said that you were advisor of the
20 Serbian prime minister, in which fields did you advise him?
21 A. I was his legal advisor.
22 Q. Apart from being a member of parliament, did you at the time hold
23 another position with the parliament of Serbia?
24 A. Yes. I was the head of the justice committee of the Serbian
1 Q. What did your work in that committee include?
2 A. I had -- it included several things, but mostly the -- it was
3 about the opinions to the appointments of judges.
4 Q. Your curriculum vitae is enclosed. This is Exhibit number 4D504
5 [Realtime transcript read in error, "4504"]. I will not dwell upon these
6 issues any longer.
7 Tell us now, please, when you -- I apologise, there seems to be a
8 problem with the transcript again.
9 MR. LAZAREVIC: It is page 50, line 4. It should be 4D504.
10 Q. [Interpretation] I apologise. I will now repeat the question.
11 These problems with the transcript are frequent.
12 When did you first set up contact with the Borovcanin Defence
14 A. It was about a year ago. I must add that the Defence team
15 contacted me and not the other way around.
16 Q. What was said to you at the time about the subject matter of your
17 expertise? What was supposed to be the subject?
18 A. It was said to me then that the subject of my expertise was the
19 issue of the legal system in force in the Republika Srpska at the time to
20 which the indictment in this case refers. Then, the issues with regard
21 to the changes to that system, when -- when the state of war was
22 declared, and --
23 THE INTERPRETER: Could the witness please repeat the latter part
24 of his answer?
25 JUDGE AGIUS: The interpreters didn't catch the last part of your
1 answer. I'll read what we have here.
2 You said: "Then the issue with regard to the changes to that
3 system, when a state of war was declared ..." and from then onwards they
4 don't have -- they didn't catch what you said. If you could repeat it,
6 THE WITNESS: [Interpretation] Yes, I understand. Furthermore,
7 the issue of the remit for trying persons for violations of international
8 martial war and the remit with regard to prisoners of war.
9 THE INTERPRETER: Microphone, please. Microphone for the
11 JUDGE AGIUS: Microphone.
12 MR. LAZAREVIC: I apologise.
13 Q. [Interpretation] When you accepted to be an expert and when you
14 were appointed, did you have any further contacts with the Defence team
15 of Mr. Borovcanin?
16 A. Yes. We met a couple of times in Belgrade after that, and I
17 accepted to draft the expert opinion, and I was provided with all the
18 documents and maybe two or three times after that when I wanted some
19 additional documents from the Defence team.
20 Q. And did you receive the necessary documents which you deemed
21 important for your expert opinion?
22 A. Yes, save for some exceptions that I myself could not locate and
23 I could not obtain them from you, either.
24 Q. Very well. Did any members of the Borovcanin Defence team
25 influence you in terms of the contents of your expert opinion or your
2 A. No.
3 Q. Did you have an occasion to meet Mr. Borovcanin personally, and
4 if you did, could you tell us when and under what circumstances?
5 A. Yes. That was towards the end of spring or beginning of summer
6 this year in Bijeljina. That's when I met with the Defence team, and I
7 met Mr. Borovcanin in person. We may have spent five or ten minutes in a
8 conversation at the time.
9 Q. And just one more question about this. At the moment when you
10 met and saw Mr. Borovcanin, was your expert opinion already drafted and
11 handed in?
12 A. Yes.
13 Q. In addition to the encounter with Mr. Borovcanin that you have
14 just described for us, did you have another occasion to see
15 Mr. Borovcanin, to talk to him? Did you have any other contacts with him
16 after that?
17 A. No.
18 Q. And now I would kindly ask you to tell us, what is it that you
19 have in front of you in the courtroom?
20 A. I have my own expert opinion, I have documents - those that I
21 used in drafting the opinion - and that is that.
22 Q. Very well. Can we now talk just briefly about the structure of
23 your expert opinion?
24 MR. LAZAREVIC: [Interpretation] Can the Court please produce
1 THE WITNESS: [Interpretation] Yes. At the beginning of my expert
2 opinion, you will find the contents, a brief introduction, the
3 indictment, its temporal and spatial framework. I had to investigate the
4 legal system at the time and in the area as defined by the indictment.
5 After that, there is a second part dealing with the relationship between
6 the army of Republika Srpska and the MUP; i.e., the command relationship,
7 i.e., when the MUP of Republika Srpska became part of the armed forces,
8 the way it acted in combat activities. And then there is the third part,
9 the overview and analysis of relevant regulations of the Republika Srpska
10 with a special overview of the change of these regulations in the state
11 of war --
12 THE INTERPRETER: Could this witness please slow down because
13 this is becoming a bit impossible.
14 JUDGE AGIUS: Exactly. Stop one moment because we were letting
15 you finish. We had the intention to intervene and ask you to slow down,
16 but the interpreters very likely are finding the answers too quick.
17 THE WITNESS: [Interpretation] Apologies once again.
18 JUDGE AGIUS: Please slow down. Let's continue. Now, if I may
19 ask the interpreters, do you think you've missed something apart from --
20 THE INTERPRETER: No, nothing was missed.
21 JUDGE AGIUS: All right. Okay. "Then we had arrived here, and
22 then there is the third part of the interview, analysis with the special
23 overview of the change of these regulations in the state of war ..."
24 Please continue from there.
25 THE WITNESS: [Interpretation] Yes. And then there is the fourth
1 part, the issue of the responsibilities of the members of the armed
2 forces for the violations of the humanitarian law and the treatment of
3 prisoners of war; and the fifth part would be the responsibilities and
4 procedures to establish disciplinary and criminal responsibility of the
5 MUP members in war conflicts; and the sixth part would be the conclusions
6 that I drew.
7 MR. LAZAREVIC: [Interpretation]
8 Q. Very well. And can we now go to the next page, which is page 2
9 of your expert opinion. It is the same exhibit that we already have in
10 front of us. You have provided us with --
11 MR. LAZAREVIC: [Interpretation] I apologise. Just a moment.
12 Could you please bear with me. Two pages further from here, which is
13 page 4.
14 Q. In your copy, it is page 2. You have provided us with a temporal
15 framework as well as spatial framework which consists with the
17 A. Yes.
18 Q. What did you determine as the temporal and spatial frameworks of
19 your expert opinion?
20 A. The period between March 1995 and November 1995 was my temporal
21 framework. This is the broadest temporal scope that I found in the
22 indictment in paragraphs number 26 and 49.
23 Q. And in terms of the spatial scope of the indictment --
24 A. When it comes to the spatial scope of the indictment, we are
25 talking about eastern Bosnia
1 Birca [phoen] region -- or Birac region.
2 Q. Let's continue with the next chapter in your expert report, which
3 is the command relationship between the VRS and the MUP as the components
4 of the armed forces of Republika Srpska.
5 MR. LAZAREVIC: [Interpretation] I would kindly ask the Court to
6 produce exhibit number 4D413. This is the law on the -- application of
7 the Law on Internal Affairs during an imminent threat of war or the state
8 of war.
9 Q. In your case, in your binder, it is under tab 1.
10 MR. LAZAREVIC: [Interpretation] And can we please look at page 4
11 in B/C/S and page 12 in the English version of this document.
12 THE WITNESS: [Interpretation] Yes.
13 MR. LAZAREVIC: [Interpretation]
14 Q. Very well. The first article of this law that I would like us to
15 look at is Article 12. Could you please tell us what Article 12
17 A. The Article 12 of this law says that the Ministry of the Interior
18 shall establish special police units to carry out combat tasks, which
19 will complement the special purpose police units.
20 Q. Very well. So we're talking about two types of police units
21 here, and they're both engaged in combat; wouldn't that be correct?
22 A. Yes.
23 Q. Let us now look at the next article, Article 13, which is on the
24 following page of the B/C/S version, and in the English version we can
25 stay on the same page. What I would like to ask you about Article 13 is
1 this: Who is it who issues a -- the order on the use of police units in
3 A. Such an order is issued by the Minister [Realtime transcript read
4 in error, "Ministry"] of the Interior pursuant to the order of the
5 Supreme Commander of the armed forces.
6 Q. Could you please repeat your answer because I can see we are
7 having problems with the transcript. Who is it who issues the order on
8 the use of police units in combat?
9 A. Such an order is issued by the Ministry of the Interior pursuant
10 to an order issued by the Supreme Commander.
11 Q. I think it would be good if we corrected the transcript at one
12 point, page 56, line 5 [as interpreted]. You said "the Minister," not
13 the "Ministry"?
14 A. Yes, you're right.
15 Q. Very well. Let's now look at paragraph 2 of the same Article 3.
16 Pursuant to this paragraph, who is in charge of the police units and
17 through which bodies? Who is in command of such units, in other words?
18 A. The Minister of the Interior does it through the staff of the
19 police forces command.
20 Q. Very well.
21 MR. LAZAREVIC: [Interpretation] And now let's --
22 Q. Could you please read that paragraph very slowly to help us have
23 a clear record.
24 A. "The Minister of the Interior shall control the police units
25 through the ministry police forces command staff."
1 Q. It seems that we have a clear record, that everything has been
2 recorded as it should have been. And now, let's move to Article 14 in
3 the same law.
4 First of all, let's look at paragraph 1. Could you please tell
5 me what paragraph 1 provides for and how do you understand it?
6 A. According to paragraph 1, the police units which are deployed in
7 combat are resubordinated to the commander of the military unit in whose
8 area of responsibility they will be engaged in combat.
9 Q. And now just briefly, I would like us to move on to another law
10 that you analysed, and we will come back to this one. Let's look what
11 you have under tab 2. That's the Law on Internal Affairs. I would like
12 us to the focus on the part dealing with the use of firearms. This is
13 Article 53 on page 6 in B/C/S and page 14 in the English translation,
14 Article 53, please.
15 THE REGISTRAR: I'm sorry, and the 65 ter number --
16 MR. LAZAREVIC: 4D212. [Interpretation] We need page 6 in B/C/S
17 and page 14 in English.
18 Q. Very well. We have both versions in e-court. Could you tell us,
19 please, what Article 53 of the Law on Internal Affairs prescribes?
20 A. According to Article 53, the legality and regularity of the use
21 of coercive means or firearms is being evaluated by authorised officials.
22 Q. Could you please tell me, who is it who evaluates the
23 justifiability of the use of means of coercion?
24 A. Pursuant to this article, it would be the minister within seven
1 Q. When we are talking about this regulation, i.e., the Law on
2 Internal Affairs, are we talking about regular police duties and whether
3 Article 53 applies to such situations?
4 A. Yes. This is about the legality of the use of firearms during
5 normal police work. [Realtime transcript read in error, "Q."]
6 Q. And now, let's go back to 4D413, which is under your tab 1, the
7 Law on the Implication of the Law on Internal Affairs during an imminent
8 threat of war and the state of war, and let's look at --
9 THE INTERPRETER: Could the counsel please repeat the number of
10 the article.
11 JUDGE AGIUS: You have been asked to repeat the number of
12 article, please.
13 MR. LAZAREVIC: [Interpretation] Number 15.
14 JUDGE AGIUS: Thank you.
15 MR. LAZAREVIC: [Interpretation] This is on page 5 in B/C/S and
16 on page 12 in the English version of the text.
17 Q. What is your comment, or how do you understand the provisions of
18 Article 15 of this law? Is this about the usual procedure that we were
19 able to see in the proceeding regulation or not?
20 A. Under the law on the application of the Law on Internal Affairs
21 in the state of war or, in fact, under Article 15, the assessment of the
22 legality and correctness of the use of firearms is not done.
23 Q. So, the provision that we have just been able to see differs
24 essentially from that which is enforced in normal conditions and in the
25 carrying out of normal tasks of the police of the Ministry of the
2 A. Yes, but I want to add that Article 15 clearly stipulates that
3 this refers to the use of firearms and means of coercion in combat
5 Q. Now that we have seen how the issue of the use of firearms by --
6 MR. LAZAREVIC: [Interpretation] There seems to be some problems
7 with transcript again. There has been a confusion between question and
8 answer. I'm referring to page 58, line 23 [as interpreted]. This should
9 be the answer rather than the question.
10 JUDGE AGIUS: All right. All they need to change is the A for a
11 Q, and that will be okay. Thank you.
12 MR. LAZAREVIC: [Interpretation]
13 Q. All right. I will repeat this last question because I believe
14 you haven't answered it yet. Now that we've had the chance to compare
15 the two regulations regulating the same matter, one in normal conditions
16 and the other in combat operations, can you tell us whether the MUP units
17 that take part in combat operations are still within the regular system
18 of command of the MUP, or are they as part of the armed forces exempt
19 from that system and belong to the other system?
20 A. Yes. Under Article 14, they are resubordinated - I mean the
21 police units - when they engage in combat operations, resubordinated to
22 the commander of the military unit in the area of which they are carrying
23 out a combat task.
24 MR. LAZAREVIC: [Interpretation] Let us now look at Article 16 of
25 this law. It says that members of police units in combat operations have
1 the right to use all weapons and equipment used by the units of the VRS.
2 Q. How do you understand Article 16? What is its essence? What
3 does it regulate?
4 A. Article 16, its purpose is for police units when they take part
5 in combat operations to be equal in efficiency to military units and
6 to -- or for that to be possible, they must be enabled to use the same
7 kind of weapons as the military.
8 Q. In a situation when a unit of the MUP was resubordinated to the
9 commander of the VRS in whose area of responsibility it's carrying out
10 combat tasks, do the rights and authorities of members of the MUP that
11 they normally have change in any way?
12 A. Yes. Under the Law on Internal Affairs, authorised official --
13 authorised officials of the ministry are those who directly carry out
14 tasks related to public safety and state security. The law on the
15 application of the Law on Internal Affairs in wartime conditions, in the
16 state of war, makes it possible for police units to carry out combat
17 operations, which means that they no longer carry out tasks of public
18 security and state security. Therefore, they no longer have the status
19 granted to authorised officials under the Law on Internal Affairs.
20 Q. Just one more question. When you speak about the law, you mean
21 the law on the application of the Law on Internal Affairs during imminent
22 threat of war or during state of war?
23 A. When we speak about combat tasks and when we speak about
24 authorities --
25 JUDGE AGIUS: One moment. Mr. Vanderpuye.
1 MR. VANDERPUYE: Thank you, Mr. President. I just wonder if we
2 could clarify for the record what specific provision of the law we are
3 talking about because there are have been a number of questions just put
4 speaking about the law generally, and I want to know what specific
5 provision the witness is referring to.
6 JUDGE AGIUS: Yes. Mr. Lazarevic.
7 MR. LAZAREVIC: I must say I am not quite sure what my learned
8 colleague referred to, whether he speaks about law of implementation
9 of --
10 MR. VANDERPUYE: What I see in the record is the witness
11 answering that under the Law on Internal Affairs, authorised officials in
12 the ministry are those that directly carry out tasks related to public
13 safety and state security. In the following testimony, I don't see a
14 specific reference to the article to which he's referring to in that law.
15 The last we left it was Article 16, which doesn't speak about that.
16 THE WITNESS: [Interpretation] Just a moment. That's Article 35.
17 Here it is. The Law on Internal Affairs, Article 35, paragraph 2.
18 "Those personnel working on operational" -- "carrying out operational
19 tasks and duties related to public and state security are considered
20 authorised officials." I don't think I need to go on reading.
21 MR. VANDERPUYE: Thank you for that clarification.
22 MR. LAZAREVIC: [Interpretation]
23 Q. All right. Let us now look at the following document, 4D337.
24 It's under tab 3 in your binder. This is about an order issued by the
25 commander of the staff of police units in Pale, 64/95, dated July the
1 10th, 1995.
2 Let us first look at the part above "I hereby order..." Can you
3 tell me what it says?
4 A. First, there is a reference to the legal basis. It says:
5 "Pursuant to the order of the Supreme Commander..." That is, the
6 Minister of the Interior issues the following order.
7 Q. And just one question before we continue with this document. A
8 short while ago, we were able to see the provisions of Article 13 of the
9 law on the implementation of the Law on Internal Affairs during imminent
10 threat of war and in the state of war. If you remember, it regulated --
11 or it provided for the participation of police units based on the order
12 issued by the Supreme Commander. If we take a look at this order, is it
13 based on the provisions of Article 13 of the said law?
14 A. Yes. There is a reference in the initial part to the order of
15 the Supreme Commander.
16 Q. Yes. And you spoke about this in more detail in paragraph 2,
17 item 12, of your expert opinion. I don't want to dwell upon that any
18 longer, but let us continue with item 1 of this order where the -- the
19 units are being listed and the word "independent" is mentioned. Tell me
20 how you understand this phrase "independent unit." Independent of who?
21 A. I believe that the word "independent" used in item 1 of this
22 order means that the unit is independent from the other units belonging
23 to the Ministry of the Interior. It is now detached.
24 Q. If we continue looking at this order, we see that Mr. Borovcanin
25 was appointed commander of this unit and he was ordered to establish
1 contact with General Krstic, chief of staff of the Drina Corps, upon
2 arriving at his destination. You were able to analyse the document from
3 which it follows that at the time General Krstic commanded the operation
4 for which Mr. Borovcanin was deployed there. How do you understand the
5 obligation of Mr. Borovcanin to report to General Krstic, the commander
6 of the operation?
7 A. I understand it in line with Article 14 of the law on the
8 implementation of the Law on Internal Affairs in a state of war. That
9 means, as we have already said, that a police unit is resubordinated to
10 the commander of the unit in whose area of responsibility it will engage
11 in combat operations.
12 MR. LAZAREVIC: Maybe we should have a break now.
13 JUDGE AGIUS: Okay. Before we break, just so that -- it's a
14 small housekeeping matter. On Friday, since we will be sitting an
15 extended sitting, the schedule that we are proposing - and Yaiza, you
16 will liaise with the staff to make sure that it is okay with everyone and
17 with the parties - is as follows: We start at 9.00 in the morning and
18 sit for a hundred minutes until 10.40. Then we will resume at 11.10, in
19 other words, after a 30-minute break, until 12.50. That's, again, a
20 hundred minutes. Then a break of one hour, restarting at 13.50 and
21 finishing at 15.30. So look around you a little bit and see whether that
22 is agreeable to everyone, particularly to the staff that have to stay
23 with us until ten past. If it's okay, we'll proceed along those lines.
24 We'll have a 25-minute break. Time now is 12.25.
25 --- Recess taken at 12.25 p.m.
1 --- On resuming at 12.58 p.m.
2 JUDGE AGIUS: We've been told there is some preliminary? Yes,
3 Mr. Gosnell.
4 MR. GOSNELL: Yes, Mr. President. Concerning the exhibits
5 proposed by the Prosecution in respect of Professor Dunjic, we have
6 comments or objections in respect of six of the documents, and they fall
7 into three categories.
8 First, P2992 --
9 JUDGE AGIUS: One moment. Yes, okay, the first one.
10 MR. GOSNELL: P2992. We have no objection to the photographs
11 that were shown to the witness being admitted, but the remainder of the
12 document we would object to. It's very long. It's 60 or 70 pages in
13 length, and I believe -- I'm now told, informed that it's in evidence, in
14 which case I guess it didn't need to be on the tender list.
15 Moving on to the --
16 JUDGE AGIUS: One moment, I think -- yes, it's on. Let's take
17 this and dispose of it first. Do you wish to comment -- first of all, is
18 it already a document -- an exhibit?
19 MR. VANDERPUYE: Mr. President, I believe there were two versions
20 of it. There was an original version, which is 65 ter 1938, that is in
21 evidence. There was a second version --
22 JUDGE AGIUS: And is it identical to it, in other words? Is it
24 MR. VANDERPUYE: It was slightly revised. It was nearly
25 identical, and we reached an understanding, I believe, with Defence
1 counsel. In fact, that document actually contains even a stipulated
2 statement, as it were, of Pasiga Mesic [phoen], and to that extent I
3 believe we had reached an agreement with respect to that document as
5 JUDGE AGIUS: And this is precisely what I was going to say.
6 Given what you've just said, do you need it once more under a different
8 MR. VANDERPUYE: I believe we do because I don't believe -- I
9 don't believe it's actually in evidence at this moment with --
10 JUDGE AGIUS: 1938 is --
11 MR. VANDERPUYE: -- with a separate 65 ter number, and it was
12 supposed to have been in evidence.
13 JUDGE AGIUS: Yeah, but if you -- there is a stipulation that
14 2992 is essentially the same as 1938. Do you need anything further than
16 MR. VANDERPUYE: We do, Mr. President. There are actual
17 differences between the documents. There are corrections that are
18 contained in the second iteration of the document that aren't in the
19 first and so on and so forth.
20 JUDGE AGIUS: Yes. So let's concentrate now on the objection
21 itself. No objection in relation to the photos, but there is an
22 objection in relation to the identification of Bosnian Muslim images. Do
23 I read you well, correctly, Mr. Gosnell, or not?
24 MR. GOSNELL: Well, for the time being, Mr. President, we do
25 maintain the objection. If there is a stipulation, I must tell you, as I
1 stand here on the my feet, I don't know the contents of that stipulation,
2 if there is one; but in respect of this witness, I suggest it's
3 appropriate that only the portions that were used with the witness are
4 tendered in a separate number.
5 JUDGE AGIUS: All right.
6 MR. GOSNELL: And then the document can be dealt with separately.
7 That's what I would propose.
8 JUDGE AGIUS: Okay. But you've coloured it differently now.
9 It's a little bit different than the way you put it in the first place.
10 Can you live with that?
11 MR. VANDERPUYE: Mr. President, I don't think we can live with
12 that. I think that the document is -- it is an integral document. It is
13 a single piece of evidence. I believe if -- if I have a few minutes at
14 some point because I didn't know they were going to raise an objection, I
15 can find in the record where the stipulation is discussed.
16 JUDGE AGIUS: All right. Let's postpone 2992.
17 MR. GOSNELL: Thank you, Mr. President. The second objection is
18 to the two sketches of Potocari, P3894 and P3895.
19 JUDGE AGIUS: And what's the basis?
20 MR. GOSNELL: These are the sketches of the Potocari grave
22 JUDGE AGIUS: And what's the basis of your objection?
23 MR. GOSNELL: We would object on the same basis that we objected
24 to P2210 in our 27th of October filing. These documents should have been
25 part of the Prosecution case and tendered there as part of the
1 Prosecution case.
2 JUDGE AGIUS: To be honest with you, as far as I am concerned,
3 but I need to consult with my colleagues, I don't even require an
4 explanation from the Prosecution.
5 [Trial Chamber confers]
6 JUDGE AGIUS: Mr. McCloskey.
7 MR. McCLOSKEY: I don't know if you need to hear from me on this
8 or not. It may be depending on what your ruling has been, but I've just
9 -- to try to clarify some of this, we have an expert that is dealing with
10 Bosnian exhumation materials that are closely related to the Bosnian
11 investigative materials and some of the ICMP data. He doesn't refer to
12 all of it. He doesn't incorporate all of it. Even though the Defence
13 has it, he doesn't ask about it. It becomes very relevant for
14 cross-examination given what they have brought up and put forward. And
15 so for you to have a full picture of the Bosnian investigation where
16 these graves are and in rebutting what they're suggesting in their
17 direct, you need to have the whole picture, and you need to have it for
18 any purposes that you that you feel comfortable with. And this is the
19 course, the practice that we have been going on for the whole trial both
20 with the Defence and with the Prosecution.
21 So it's a very important issue that has arisen, and I see no
22 reason why after this many months we would change course and suggest that
23 this kind of important material that we are using in response to specific
24 issues. You're not seeing rawed volumes of material that have been
25 hidden away to be used on cross-examination. These are things that are
1 used specifically to respond to issues that come up, such as the SDS
2 issue. This is not some kind of a mystery material that we are holding
3 back on, and I think it's important that you are able to see this
4 material and accept it for whatever value you think it's worth.
5 JUDGE AGIUS: Yes, please keep yourself as --
6 MR. GOSNELL: I'll keep this very short, Mr. President.
7 JUDGE AGIUS: Yes, exactly, please.
8 MR. GOSNELL: The essence of having the expert come here and
9 testify is not to comment upon the entire universe of information that
10 may have been disclosed. It's to comment upon the evidence in the case
11 that's been presented by the Prosecution. If that is fluid or open to
12 change, then that poses serious difficulties for us, and it poses in our
13 view a certain unfairness that we -- so therefore, that's why we would
14 object these documents coming into evidence.
15 JUDGE AGIUS: And now how this sketch --
16 MR. GOSNELL: And furthermore, Mr. President, the documents were
17 shown to the witness, and he was given an opportunity to respond. That's
18 on the record. So that's a sufficient testing of his opinions, and then
19 now to put these sketches in as evidence, we suggest, is improper.
20 MR. McCLOSKEY: Mr. President, can I make one small comment and
21 it'll be done?
22 JUDGE AGIUS: Yes, go ahead.
23 MR. McCLOSKEY: The Defence strives to bring out through their
24 witness that the graves and the bodies are not associated with the Dutch
25 evidence that saw bodies. We have specific evidence to show you that
1 these two little pits are right next to each other and fit right in with
2 the aerial image. We in the court should hear that evidence to respond
3 to this so the whole picture can be seen. We can't possibly anticipate
4 every tiny detail that comes up, so we need to be able to respond so you
5 can see the truth.
6 JUDGE AGIUS: Enough, enough. Sorry to be so abrupt, but enough.
7 [Trial Chamber confers]
8 JUDGE AGIUS: That's enough heard on this. We'll decide it soon.
9 Your next objection, Mr. Gosnell.
10 MR. GOSNELL: The third and last objection is to three documents,
11 P3517D. [Realtime transcript read in error]
12 JUDGE AGIUS: 3...
13 MR. GOSNELL: 517D.
14 JUDGE AGIUS: Can you repeat, please, because -- yeah, but it's
15 wrong here. That's why I ask him to repeat.
16 MR. GOSNELL: It's P3517D.
17 JUDGE AGIUS: Yes.
18 MR. GOSNELL: P3898D. Sorry, let me take that again. 3898
19 without a D at the end, just 3898. And then the third one is 3902, to
20 which objection has already been made, but now this is going to be a
21 separate ground of objection.
22 Now, these three documents are all based on another document, or
23 they are extracts or compilations that are drawn from another document,
24 which is P3517. Now, this document has actually not been admitted on
25 e-court; however, I went back and checked the transcript, and it actually
1 had been admitted, or at least that was the ruling of the Chamber, but
2 there were no comments from counsel.
3 And I would just need to put in context what happened during when
4 that document was admitted. One line from that document was shown to a
5 fact witness in respect of an identification, and it was a Beara witness.
6 And then there was a -- that one line was shown to the witness, and then
7 the entire document of 3517, which is an updated ICMP list, was then
8 admitted without any objection from Defence counsel.
9 Now, the document that is in evidence is 3159A. Now, that's the
10 January ICMP update. That's what we relied on when we were providing
11 information to Professor Dunjic, and as far as I understand it, that's
12 the report that he relied upon. So now what's happened is six months
13 later there's an update to the ICMP list, which now apparently has come
14 into evidence in its entirety. I hope Your Honours can understand the
15 difficulty that that puts us in. If the witness is commenting upon a
16 certain set of materials and a certain set of data, and then that data
17 changes and is admitted into evidence, first of all, what is the witness
18 supposed to be responding to? And more importantly, secondly, what are
19 we responding to? Of course, it's appropriate for the Prosecution to be
20 disclosing this material for us. We need to review it in order to
21 determine whether there's anything in there that might be exculpatory,
22 but I think there's a serious danger here of something inculpatory,
23 something incriminating, coming into evidence at this late stage halfway
24 through our cases.
25 So we object on that ground in addition to the grounds that were
1 stated by my colleague, which only exacerbates the problems. In order,
2 you have a commentary coming from an employee of the Office of the
3 Prosecutor on data that has changed from the data that was viewed by the
5 Now, I do understand the difficulties here, but I hope that the
6 Chamber can understand the difficulties that it poses for the Defence as
8 JUDGE AGIUS: Yes, Mr. McCloskey.
9 MR. McCLOSKEY: It's alarming to me to the hear that argument.
10 It's the same argument I saw in a written submission. Somehow making a
11 complaint months later after a document has been received into evidence
12 pursuant to the Court's ruling, we have to be able to stand by those
13 Court's rulings and not come back months later and try to unravel them,
14 unless there is a specific request to ask leave for the Court to
15 reconsider. Anything but that is chaos, and the rule of law goes out the
16 window. We have to be able to rely on the Court's rulings, no matter
17 what the context of what someone said when it came in. I can't tell from
18 his discussion whether it came in through the Defence or the Prosecution,
19 but everything he is talking about is in evidence, I am told. Every one
20 of those things, I am told, is in evidence already. So I don't know what
21 the complaint is, and any suggestion that we have to revisit your
22 previous rulings is outrageous.
23 JUDGE AGIUS: One clarification, Mr. McCloskey. There is no
24 doubt that 3159 has already been admitted. Has 3517, that is, the 3rd
25 July, 2008, update also been admitted?
1 MR. McCLOSKEY: Ms. Stuart has written me a yellow sticky that
2 says that 3517 A, B, and C are also in evidence. That's why I say, what
3 is this all about?
4 JUDGE AGIUS: Yes.
5 MR. GOSNELL: Perhaps I can just assist the Chamber. The
6 transcript references 23674. That's from the 11th of July, 2008
7 JUDGE AGIUS: Which dealt with 3517?
8 MR. GOSNELL: Yes. And in fact, it -- what you have there is
9 P3517 A, which is a single line extracted from the long list of data, and
10 that single line was used with the witness.
11 JUDGE AGIUS: Okay. But 3517 as well as 3159, which is the
12 previous -- 3159 have already been admitted.
13 MR. GOSNELL: That is what is indicated in the transcript, but I
14 must tell you, Your Honour, if this is an issue of having to make a
15 motion for reconsideration or to exclude the evidence, we will make that
16 motion because I can tell you in all honesty, I don't think that anyone
17 here realised that what was going into evidence was the full update as
18 evidence rather than simply the source for the single name which was
19 being put to the witness. My own recollection is that that was my
20 understanding at the time. So, you know, I understand we need finality
21 of rulings, but if necessary, we'll make a motion on that.
22 JUDGE AGIUS: All right. Thank you. We've heard enough on this
23 as well. Any other objections? Mr. Gosnell.
24 MR. GOSNELL: No, but I do have one additional piece of
25 information. I understand that the updated version of the revised
1 compilation exhibit was apparently uploaded in place of 65 ter 1938.
2 Now, I stand to be corrected, but we do have an e-mail from the
3 Prosecutor indicating that that's what happened, so I'm not sure if that
4 assists. The date of the memo or the e-mail is the 6th of February,
6 JUDGE AGIUS: I am under the impression, also, that we may have
7 discussed this before and decided which one to have in the e-court, and
8 we may have ourselves contributed to that discussion, if I remember well,
9 but I stand to be corrected.
10 MR. VANDERPUYE: I think I'm looking at a copy of the e-mail, and
11 that is correct, that the updated version was loaded into e-court, and
12 you're right. It was discussed in December, the 6th December, 2007, in
13 the record, and it was followed up by the actual submission of the
14 document later on. You're correct, Mr. President.
15 JUDGE AGIUS: That's my recollection, Mr. Vanderpuye. Sometimes
16 I'm wrong; most of the time, I'm not. So I need to consult with my
17 colleagues, of course.
18 [Trial Chamber confers]
19 JUDGE AGIUS: Okay. Mr. Gosnell, Mr. Zivanovic, Mr. McCloskey,
20 and Mr. Haynes. Yes, and Mr. Haynes, too, because you associated
21 yourself with Mr. Zivanovic.
22 We start with tendered document 3902. Our decision is as
23 follows: While we do, of course, understand the purpose for which the
24 Prosecution offers this document, in our view the summary of the document
25 given by Mr. Mitchell in the course of his cross-examination, which is
1 already on the record, is sufficient for us to understand the evidence
2 given; and therefore, we do not consider this document to be necessary.
3 So we are not admitting it.
4 Document 65 ter number 2992, having heard what you had to submit,
5 particularly what was submitted by the Prosecution, we believe that this
6 document, as numbered 2992, has already been for all intents and purposes
7 been admitted into evidence, replacing 1938; and therefore, it is already
8 there. We don't need it to be introduced again.
9 The documents 3894 and 3895. We come to the conclusion that the
10 use of these documents was -- became necessary or was -- the need for
11 their use was triggered by the further testimony of Professor Dunjic; and
12 as such, the objections or the reasons for the objections failed to
13 convince this Trial Chamber, and both documents are being admitted.
14 As regards 3517D, 3898, and 3902 - it's done - 3898, our position
15 is as follows, or rather, our conclusion, that these four parts of
16 documents or exhibits that are already in the record have been admitted
17 already, and insforas they have excerpts, they consist in excerpts from
18 those documents that have been put to this witness and who has testified
19 in their regard, they are also being admitted.
20 That disposes of the problem. Can we bring in the witness now?
21 Yes, Mr. Ristivojevic.
22 [The witness takes the stand]
23 JUDGE AGIUS: Mr. Lazarevic.
24 MR. LAZAREVIC: Thank you, Your Honour. I'll proceed.
25 Q. [Interpretation] Mr. Ristivojevic, there has been a little delay
1 or somewhat longer break than we expected. We had to discuss some
2 procedural matters. I would like to apologise for keeping you waiting.
3 And now, if that's not a problem, I would like to go on and proceed with
4 my examination-in-chief.
5 Before the break, we discussed order number 64/95. Let's look at
6 the following document now. In your binder, it would be under tab 8 -- I
7 apologise. It is your number 7.
8 MR. LAZAREVIC: [Interpretation] This is exhibit P8.
9 Q. We can see that this is an order by the Supreme Commander of the
10 armed forces of Republika Srpska, dated 22nd April, 1995.
11 A. Yes.
12 Q. Let's look firstly who the addressees of the order are.
13 A. The order was sent to the Main Staff of the army and the MUP of
14 Republika Srpska.
15 Q. And now if you'll look at items 1 and 2 of this order, would you
16 say that there were some problems and ambiguities with regard to the
17 engagement of the units of the MUP in -- and their employment in combat?
18 A. According to the letterhead or the heading of the document, there
19 was indeed such ambiguities. It says, We have been informed about some
20 problems and ambiguities -- or rather, confusions regarding the
21 engagement of the MUP in combat activities.
22 Q. And what was ordered to the Main Staff of the army of Republika
23 Srpska with regard to the engagement of the MUP in combat activities?
24 A. The Main Staff, pursuant to the president's order, has to
25 henceforth define more precisely and concretely their request for the
1 engagement and employment of MUP units in combat.
2 Q. Very well, and now I believe that we will no longer need this
3 document. And now I would like to ask you something about some other
4 things contained in your expert report. Let's look at the paragraphs
5 starting with 3.1 to 3.32 of your expert report.
6 MR. LAZAREVIC: [Interpretation] These are pages 11 through 24 in
7 the e-court system in B/C/S, and in the English those are pages from 9
8 through 18.
9 Q. Can you please tell me now, before the war broke out in the
10 Socialist Federative Republic of Yugoslavia, what was the division of
11 authorities in the matter of criminal law?
12 A. The Former Socialist Federative of the Republic of Yugoslavia
13 a federal state; and when it comes to the matter of criminal law,
14 according to its constitution, the federation had the authority of one
15 part of it, whereas the federal units had authority over a different part
16 of this law. The criminal law of the socialist federative Republic of
18 some groups of the crimes from the special part of the criminal law were
19 also regulated by that. Amongst other things, or rather, this included
20 chapter 16, which referred to crimes against humanity and the
21 international humanitarian law.
22 There was also a special part of the criminal law; i.e., other
23 groups of crimes were left to the federal units, which were the six
24 republics and the two autonomous provinces which had their own special
25 criminal laws. In other words, there were eight criminal laws at the
1 level of the former states, federal units, and there was also one
2 criminal law at the level of the federation itself. Except for the
3 crimes against humanity and the international humanitarian law at the
4 federal level, there were also some other groups of crimes that were
5 provided for by that law. However, these are not important for this
6 expert report.
7 Q. Let me now ask you this: The provisions of the federal criminal
8 law, i.e., the criminal law of the socialist federative Republic of
10 A. Yes. In all the federal units, there was no way to regulate one
11 and the same thing at two levels, i.e., at the level of the federal state
12 and its federal units.
13 Q. And what was the situation with the republican, i.e., the
14 provincial criminal laws? In what territories were those implemented?
15 A. They were in effect only in the territories of those federal
16 units where they were adopted.
17 Q. This is a very relative -- a very short answer; however, it
18 hasn't been recorded properly. This is page 76, line 17. It seems that
19 the transcript has in the meantime been corrected, and now we have just
20 spoken in very general terms about the system of criminal law and the
21 criminal legislation. This system that we have just spoken about, was it
22 homogenous? Was it harmonized in terms of the provisions of republican
23 provincial laws having had to be in consistency with the federal laws?
24 A. Yes. The authorities were divided. I've already said that. One
25 thing could not be regulated differently at two different levels.
1 Q. And now, tell me, please, with regard to the criminal and
2 procedural matters, how were these matters regulated in the former state
3 of Yugoslavia
4 A. In the sphere of criminal and procedural law, or rather, the Law
5 on Criminal Procedure, the constitution did not provide for the split of
6 authorities between the federation and its federal units. So there was
7 just one law on criminal procedure which covered the territory of the
8 entire state.
9 Q. And just one more question about this. In the socialist
10 federative republic of Yugoslavia
11 was the issue of courts regulated?
12 A. There were two types of courts. There were regular courts and
13 military courts.
14 Q. And tell me, please, when the war broke out after the break-up of
15 the socialist federative republic of Yugoslavia
16 have just analysed, were there any changes?
17 A. At the moment when the state broke up and when the new states
18 emerged in that territory, these new states had two choices. One choice
19 was to pass totally new laws, and the second choice was for them to adopt
20 the laws of the former state, the state that no longer existed.
21 In the sphere of criminal law, most of the new states opted for
22 the latter choice or the latter solution because it was more
23 cost-effective; it was more efficient and practicable and faster at the
24 end of the day.
25 In Republika Srpska, the situation was the same. The former
1 criminal law of the SFRY was adopted under the title the criminal law of
2 Republika Srpska.
3 Q. Very well. This may be a good moment for us to look at 4D375.
4 This is under your tab 8. This is the law on the amendments of the
5 criminal law of the SFRY dated 23 July 1993. This was published on the
6 9th of August, 1993. Let's please look at Article 1 of this law.
7 Tell me, please, what does this law regulate? How does this
8 relate to the things that you've just spoken about?
9 A. This is the moment when the former law of the socialist
10 federative republic of Yugoslavia
11 the criminal code of Republika Srpska. At the same time, some amendments
12 were introduced to this new code, and from the point of view of my
13 report, these amendments were not relevant. However, we can say that the
14 monetary fines or pecuniary fines were raised because of the inflation
15 that prevailed at the time.
16 Q. What does that mean? Does it mean that all the crimes that were
17 formally envisaged by the criminal law of the SFRY were adopted by the
18 criminal code of Republika Srpska?
19 A. Yes. Chapter 16 remained in effect in this law.
20 MR. LAZAREVIC: Good time to adjourn.
21 JUDGE AGIUS: All right. We'll do so.
22 We have to stop here today. As I told you, there is still a long
23 way to go. We'll reconvene Friday morning at 9.00. Is the schedule
24 acceptable to everyone?
25 [Trial Chamber and registrar confer]
1 JUDGE AGIUS: If there are problems, let us know. So we stand
2 adjourned until Friday at 9.00 in the morning. Thank you.
3 --- Whereupon the hearing adjourned at 1.42 p.m.
4 to be reconvened on Friday, the 7th day of
5 November, 2008, at 9.00 a.m.