Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5855

1 Thursday, 30 May 2002

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE MAY: Yes, Mr. Ryneveld.

7 MR. RYNEVELD: Yes, Your Honours. As you can see, General

8 Maisonneuve has rearranged his schedule in order to convenience the Court,

9 and will be available for continuation, but -- that was, of course, on the

10 basis of Your Honours' indication of an hour and a half remaining for

11 cross-examination. He does have a tight schedule. Regardless, we've got

12 the flights arranged for an early afternoon departure.

13 JUDGE MAY: Very well. Yes, Mr. Milosevic.


15 Cross-examined by Mr. Milosevic: [Continued]

16 Q. [Interpretation] What is your information and knowledge as a

17 functionary of the mission with respect to the situation in Racak prior to

18 the incident of the 15th of January that you're talking about?

19 A. We were told -- my verifiers actually had knowledge that the

20 village of Racak was very lightly held, and the word we received was that

21 it was a few scouts here and there, individual personnel, and it was not a

22 -- a large concentration of KLA.

23 Q. According to the data that is contained in the material provided

24 by the opposite side, the numerical state of armed persons, as they say

25 soldiers, in the area was between -- well, he speaks about two brigades,

Page 5856

1 one thousand men in the whole zone, perhaps 1.400 men. Did you have those

2 figures and that information?

3 A. No, I did not.

4 Q. And do you know that those figures and that data on the military

5 situation were provided to the OSCE and that Walker had a meeting on the

6 16th at 1300 hours in Petrovo with the commanders of the KLA?

7 A. As I mentioned yesterday, I was aware that Mr. Walker had had a

8 meeting but I was not aware of the -- that he had been provided with

9 numbers. And also, of course, this is the 16th, so it would not have been

10 helpful to us at any case.

11 Q. And did you have occasion, when visiting Racak, to become

12 acquainted with all those facilities, the bunkers, the trenches, the

13 machine-gun nests around Racak, above Racak, and so on and so forth which

14 were built already at the beginning of December 1998, according to the

15 information that we have?

16 A. I visited Racak on the day -- on the 16th, actually, and not

17 before that. So I had not been -- been in the area of Racak before then

18 or in the village itself. On the day, on the 16th, when I did go up to

19 the area called the gully, I did see some preparations and some earth

20 works around -- above the gully. I did not go into -- into those

21 fortifications, or I didn't get a chance to actually see the

22 fortifications in detail.

23 Q. That means that on the 15th, a day earlier when you were there,

24 you saw nothing of that. It was only on the 16th that you saw some of

25 what was actually going on in Racak.

Page 5857

1 Now, do you know that the command of the unit in Racak was Afet

2 Bilalli? Did you happen to meet him?

3 A. No, I did not.

4 Q. And did you know anything about the fact that up until the

5 beginning of January 1999, bunkers were dug up and trenches in Bela and

6 that similar defence positions began to be dug in in the area? They were

7 dug by civilians and members of the KLA. Did you know anything about

8 these activities?

9 A. No, I did not.

10 Q. And later on, or perhaps at that time but at least later on, did

11 you become acquainted with what they put out as information later on, that

12 they distributed automatic weapons to the soldiers as well as mortars, 7.9

13 millimetres and 12.7 millimetres machine-guns, recoilless guns, two

14 mortars of 60 millimetres? All this is to be found in the data. Now, are

15 you aware of all this?

16 A. I became -- I was told by the Serb police during my meeting on the

17 17th -- correction, on the 16th, and they produced a 12.7 millimetre

18 machine-gun as well as a mortar or a grenade launcher at that point, 40

19 millimetre grenade launcher, I believe it was, but that is the only

20 awareness I had of any weapons that may have come from that area.

21 Q. I'm not talking about the facts and figures from our police, but I

22 spoke of information that they put forward, that the other side presented,

23 in fact, in the documents as to what had been distributed. So you say you

24 know nothing about that nor did you know anything about that at that time

25 nor did you learn of it later.

Page 5858

1 Now, do you know where the village of Rance is located?

2 A. No, I don't.

3 Q. It's right near Racak.

4 A. What did you call it again, Rance?

5 Q. Rance. All right, and do you know where the headquarters of that

6 so-called 161st Brigade of theirs was located?

7 A. No, I don't. This was outside of my area so I did not ever have

8 any meetings or any reason to go into Racak before that time.

9 Q. All right. But did you learn that it was from that place where

10 the headquarters was of the 161st Brigade, near Racak, was where a

11 counter-attack was launched and in the afternoon they took control of

12 Racak once again?

13 A. No, I did not learn of that.

14 Q. All right. But when you managed to collect together all these

15 elements that your verifiers had or, rather, the verifiers of this

16 Regional Centre which does not belong -- did not belong to you, wasn't

17 under you but as you said, for those three days, you were in charge of

18 them, did you receive this information on the trenches, the bunkers, the

19 number of soldiers, the presence -- their presence in Racak, et cetera?

20 When did you actually receive that information and those figures?

21 A. I didn't receive it, in fact. It must have gone up the other --

22 the other Regional Centre, because once the actual operation was over on

23 the 17th, once the presiding judge went in, I then left and went back to

24 my Regional Centre. I had my own area to command and to look after so I

25 didn't receive any other information after that point.

Page 5859

1 Q. Now, as you're a soldier and a professional and expert, and when

2 you bear in mind trenches, bunkers, machine-gun nests, et cetera, and the

3 information that they speak about - not our police but theirs - they

4 mention a figure of 1.400 soldiers in that area, do you consider that they

5 were figures that were negligible, negligible forces that did not in fact

6 jeopardise either the territory or the population or the police force or

7 the army or anybody else? Were they that negligible in the area?

8 A. Well, if there were 1.400 soldiers there, that is definitely not a

9 negligible number.

10 Q. Now, if you bear in mind what we were discussing yesterday, that

11 in the bunkers they had soldiers who opened fire as soon as the police

12 force appeared, first as a warning, as a caution to the soldiers in Racak,

13 as they say, and then at the police itself, what in that case, in your

14 mind, in your opinion, would be a proportional application and use of

15 force if we're targeting bunkers, machine-gun nests, trenches and the

16 like?

17 A. These are, I guess, questions of speculation, and I -- you know,

18 I'm happy to answer them, Your Honour. I don't know what --

19 JUDGE MAY: Perhaps you could do the best you think you can.

20 THE WITNESS: So the question is -- what is the question exactly?

21 If somebody's firing at the police and they want to go in and investigate

22 what kind of response they require? I mean, I -- what's your question

23 exactly?

24 MR. MILOSEVIC: [Interpretation]

25 Q. Well, without a doubt when the police entered Racak - this could

Page 5860

1 be seen on the tapes too - there was no attack. It entered Racak when

2 fire was opened on it.

3 A. Okay.

4 Q. So you have bunkers, you have machine-gun nests, you have

5 trenches. According to their statement only in the Racak unit you have

6 1.400 soldiers. In three villages, there is fighting going on around

7 about. You knew about that, didn't you? In Petrovo, Malopoljac and Racak

8 in fact, in those three villages --

9 JUDGE MAY: Pause there. This is another additional point that is

10 being made to the general.

11 Did you know that there was fighting going on in various villages

12 roundabout?

13 THE WITNESS: [Interpretation] No, I did not, Your Honour.

14 JUDGE MAY: If there was, of course. It's only the accused who's

15 suggesting it.

16 MR. MILOSEVIC: [Interpretation]

17 Q. And you knew nothing of the fighting going on in the three

18 villages, right?

19 A. No, I did not.

20 Q. In all that area, in all that region, in fact.

21 A. No.

22 Q. All right. Now, from the information that you knew about, were

23 you able to assess that as there was shooting being done against the

24 police, what would be a proportional use of force then, according to you?

25 JUDGE MAY: Can you answer that or not?

Page 5861

1 THE WITNESS: Well, if somebody is shooting at you, I guess your

2 proportional response is to fire back in proportion until the shooting

3 stops and then continue your advance and enter the village or secure the

4 area, I guess. If you're being fired on, I guess you fire back. That's

5 for sure. That's what a military person would do, yeah.

6 MR. MILOSEVIC: [Interpretation]

7 Q. General, you spoke about the fire of artillery and tanks, if I

8 understood you correctly yesterday; is that right?

9 A. That's correct, yes.

10 Q. And you also spoke about the people who were killed whom you saw.

11 Now, did a single person -- was a single of those persons who were killed

12 killed from the fire of artillery and tanks?

13 A. No. I would not -- from my observation, those that I saw, I don't

14 think any of them were killed by tanks or -- or artillery, no.

15 Q. So all of them died by light infantry weapons; is that right? And

16 anyway, those are the findings of the forensics -- forensic professionals

17 who examined this. There were no other causes of death, in fact, were

18 there?

19 A. From my observation, no.

20 Q. You wish to say something?

21 A. I was going to say from my observation, no. You're right.

22 Q. Very well. And do you know that 13 individuals out of the 40 who

23 are listed as killed in Racak - and you spoke about this figure yesterday,

24 and those are the figures that have been recorded in all the forensic

25 reports - don't have their graves at the cemetery in Racak. Thirteen of

Page 5862

1 them, 13 out of the 40.

2 A. I'm not aware of that, no.

3 Q. Is it incontestable, therefore, that at the time, in the

4 afternoon, from 1600 hours onwards, let's say, on the 15th of January,

5 1999, that Racak was in the hands of the KLA?

6 A. It's certainly -- there -- we do not remember to see -- seeing any

7 presence. About 1600 or shortly thereafter, all the Serb authorities did

8 move back and left the village, and it's at that point that may verifiers

9 were in the village and actually brought out some of the wounded. I

10 believe at that time they also had contact with some - some, I would say a

11 few - like two or three KLA fighters in the village.

12 Q. All right. Now, is it clear, therefore, that in Racak there was

13 fighting going on on that particular day from the facts that your

14 verifiers observed, from what your verifiers were able to observe and from

15 their reports on the gunshots and shooting that was coming from the

16 different sides? Is it clear that there was fighting going on in Racak on

17 that day and that after 1600 hours, let's say 1700 hours, Racak once again

18 fell into the hands of the KLA?

19 A. As far as fighting, I don't know how much fighting was going on.

20 I see it more as there was very little fire being returned from Racak

21 towards the security forces. My verifiers did not see any large weapons

22 being used or fired at the Serb forces. And this is why, when I met with

23 the Serb brigade commander, I was wondering why his tanks -- and to me

24 again as a professional tank officer, I would never allow my troops to

25 fire into civilian houses when there's no fire being returned, the whole

Page 5863

1 idea being proportionality. If you're not being fired at with large

2 calibre weapons, then you don't return fire with large calibre weapons and

3 certainly not against houses where you realise or you know that there are

4 civilians occupying them.

5 So -- so my verifiers did not report any kind of heavy fighting.

6 It was -- there was only, from what they said, small-arms fire being

7 returned very sporadically from the village at that time towards the Serb

8 forces.

9 Q. Yes. But we're clear on the fact that this firing from the tanks

10 is something that can be challenged, because nobody was killed from

11 artillery fire. We observed that a moment ago. And you yourself spoke

12 about this yesterday and said that, according to your knowledge, there was

13 some artillery fire just around Racak, the outskirts, and not targeting

14 the houses themselves.

15 Now, can we assume --

16 JUDGE MAY: Let the witness deal with that.

17 THE WITNESS: Well, again, this question of what the outskirts are

18 and what it means and so on, what I can tell you is my verifiers reported

19 to me personally that they had observed personally tanks firing into a

20 house that was occupied - because they could see the smoke coming out of

21 the chimney - and that they subsequently went into -- up to that house and

22 of course no one was killed because they were all in the basement, hiding,

23 and they got them out of the house at that point. So these are the

24 reports that I received personally from my verifiers.

25 MR. MILOSEVIC: [Interpretation]

Page 5864

1 Q. And you received that for that one house that they fired at?

2 A. That one house.

3 Q. And who could have shot with a tank at that house when the army

4 did not take part in that operation?

5 A. Well, the army did take part in the operation because the tanks

6 were up on the hill, and my verifiers were with the tanks up there, trying

7 to get them to stop.

8 Q. The commander of the police forces told you, and you said this

9 yesterday, that it was a police operation. Is that right?

10 A. That's what he told me.

11 Q. And on the other hand, or, rather, from the opposite side we

12 heard, as Mr. Ryneveld explained, that a member of the army accused the

13 police, which is something you did not say. I didn't hear you say that.

14 I didn't hear you say that an army member accused the police. That was

15 his conclusion.

16 Now, did somebody from the army who talked to you accuse the

17 police for what had happened there?

18 A. The army --

19 Q. Or blame the police?

20 A. The army did say that the police had been involved in Racak. It

21 was obvious to them. They could see them as they were up on the hill

22 supporting, to my mind supporting the police. And in one of the -- at one

23 of the meetings on the 16th with Petrovic, the liaison officer from 243

24 Brigade, the lieutenant colonel, he did say that the MUP had done the

25 operation with support of the VJ with at least one tank and some Praga

Page 5865

1 vehicles.

2 Q. That is, how shall I put it, one clear explanation. The police

3 commander told you that it was a police operation. The liaison officer

4 from the army told you that it was a police operation or possibly with

5 some support from the army. So where -- or, rather, from your statement

6 and from what you observed, where can we deduce the conclusion deduced by

7 Mr. Ryneveld that the officer blamed the police for what had happened? He

8 just informed you about the fact that it was a police operation, and the

9 police in fact informed them -- informed you of that themselves.

10 A. I believe it's contained in one of the statements where I mention

11 to the police that the VJ were saying that the police actually carried out

12 the operation. I don't know if it was put in the way of a blame.

13 JUDGE MAY: Yes. It's our Exhibit 179. It is the minutes of the

14 meeting. Let the witness have it. He has it.

15 THE WITNESS: I've got it, Your Honour.

16 JUDGE MAY: It's the minutes of a meeting of the 16th of January

17 with the police. And on page 2, towards the bottom, the witness says to

18 the colonel of the MUP, "You were in charge of 100 policemen." "If it is

19 of your concern, yes," was the answer. And the other officer, the other

20 verifier, "But we just left the VJ, they put all the blame on the you.

21 Were they with you or not?" And the reply was, "We were not with the VJ."

22 THE WITNESS: Right. I see that, Your Honour. In fact, that was

23 Gil Gilbertson who was the deputy head of Regional Centre 5 who was with

24 me at that meeting.

25 MR. MILOSEVIC: [Interpretation]

Page 5866

1 Q. So it was no army officer that blamed the police. Is that correct

2 or not?

3 A. I don't know where Gil got this information that the VJ had blamed

4 the police. I don't, to my mind, remember the VJ saying, you know, "We

5 had nothing to do with it. It was strictly a police operation." The VJ

6 could not deny that they were there and that they were firing, because my

7 verifiers, as I say, were with them and had seen them fire into houses and

8 had gone to actually let the people out of the basement.

9 Q. Now, I'd like you to understand the point of my question, because

10 the point is not in the fact whether it was a police operation, because

11 that is what the commander of the police force said himself, so that is

12 not being challenged, but what is being challenged, how shall I put that,

13 is this ugly detail that is trying to be imposed by the other side, the

14 opposite side, that the soldier who talked to you accused and blamed the

15 police. Why should anybody accuse or blame the police for a legitimate

16 action on the part of the police force? This presents an ugly picture had

17 an officer done that. And I claim that it wasn't any officer who blamed

18 the police, and that's the point I wanted to clarify with you. So you

19 have no actual information about that. Is that correct or not?

20 A. That's correct.

21 Q. I'm happy to have clarified that point.

22 Now, in view of the fact that Walker had a meeting on the 16th

23 with the commander of the area and that you knew about the fighting in

24 Racak and about the people killed, as they say, the KLA soldiers killed in

25 Racak, because he goes on to enumerate all their names, their first and

Page 5867

1 last names, et cetera, and they knew -- you knew about the positions and

2 all that kind of thing, what do you think? Why did the mission hide those

3 facts and information? Was that a fabrication of an alibi for the later

4 steps that were taken against our country? Why were all these facts and

5 all this information hidden from the eyes of the world public?

6 A. I did not hide any facts from the public.

7 Q. You explained that the information that reached you went to the

8 mission's headquarters and that it was the mission's headquarters that was

9 the sole -- that had the sole authority of giving out information. Was

10 that your explanation, if I understood you correctly?

11 A. Yes.

12 Q. And now I'm asking you for your opinion. What do you think?

13 Because you're not -- you weren't just there as the head of the Regional

14 Centre, you were a general, an important figure in the mission itself.

15 Now, do you now assess from this point in time, with all the passage of

16 time and all that we know in the meantime, why the command of the mission

17 concealed these fighting in Racak, the presence of these last forces, the

18 weapons, the machine-gun nests, the trenches, the bunkers, and all the

19 rest of it? Why did -- and the fighting, the combat.

20 JUDGE MAY: Mr. Milosevic, you put these questions, you see, which

21 is your case, and allege concealment and the like and conspiracy and all

22 this sort of thing. There is really no reason for it.

23 In any event, are we going to hear from Mr. Walker?

24 MR. RYNEVELD: Your Honour, it is hoped so --

25 THE ACCUSED: [Interpretation] I'm not hearing the interpretation.

Page 5868












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Page 5869

1 Can I have the volume put up?

2 MR. RYNEVELD: It is hoped so. There is still something that I

3 understand is -- he is part of the Rule 70 proceedings, but I believe

4 Walker is coming. That is to the best of my knowledge at this point.

5 JUDGE MAY: But it's not certain; is that right?

6 MR. RYNEVELD: I can't say that it's certain, but I believe there

7 is a very distinct likelihood.

8 JUDGE MAY: Because if he is coming, clearly the question should

9 be put to him and these suggestions. But if there's some doubt about it,

10 we will allow them to be put to this witness.

11 General, it's suggested that there was a concealment, a cover-up,

12 a conspiracy. Perhaps you could deal with it.

13 THE WITNESS: Well, Your Honour, I -- what I can -- sorry.

14 MR. RYNEVELD: If I may, my information is that we're trying to

15 get Walker here the week after next.

16 JUDGE MAY: Very well. Let the witness answer, yes.

17 THE WITNESS: Right. Your Honour, certainly I can tell you about

18 my dealings with both sides. We never tried to conceal anything. Any

19 time -- any time I came in possession of any -- any misbehaviour, if you

20 wish, by the Albanian side, I was just as hard on them as I was on the

21 Serb side, and I believe that this -- this approach was one that was used

22 by the entire mission. Certainly I operated under that -- under that

23 premise that everyone there was impartial.

24 JUDGE ROBINSON: Before you continue, Mr. Milosevic.

25 Mr. Ryneveld, may I ask if we're going to hear from any of these

Page 5870

1 persons called verifiers? These are the people who were there and who saw

2 what was happening. The general wasn't there.

3 MR. RYNEVELD: No, Your Honour. I might say that the purpose of

4 calling the person in charge by way -- this is by way of summary. They

5 report to him. I appreciate that this is a form of hearsay, but it's the

6 kind of hearsay that is based on personal observations on a reporting

7 structure, information upon which this general is entitled to rely. Now,

8 if we call all the -- we have a very limited time period within which to

9 present this evidence.

10 JUDGE ROBINSON: But for my own part, I would find the evidence

11 far more credible if we heard from at least one verifier, and I, frankly,

12 would be prepared to urge the Chamber to make that kind of arrangement.

13 MR. RYNEVELD: We can certainly get verifiers here. That's not

14 the problem. But it encroaches on our already extremely tight schedule,

15 and it may have to be the subject for further time in order to accommodate

16 that, absolutely. But we will certainly look into that and see whether we

17 can -- now that the Court has expressed a decided interest in that

18 particular issue, we'll make every effort to have one or two verifiers

19 here. There are some that I know are available. It's just a matter of if

20 we call those witnesses, it leaves us less time to call other witnesses,

21 that's the problem.

22 JUDGE ROBINSON: As I said, for my own part, I think it's

23 absolutely important in light of the defence that is being run.

24 MR. RYNEVELD: We will certainly take Your Honour's comments into

25 consideration and do our utmost in order to bring those witnesses forward

Page 5871

1 as soon as possible.

2 JUDGE ROBINSON: Of course I'm not encouraging you to inundate us

3 with verifiers, but I think it would be helpful, if not vital, to hear

4 from at least one.

5 MR. RYNEVELD: Yes. We are planning to call at least one who is

6 actually on our witness list now.

7 JUDGE ROBINSON: Thanks. Thanks.

8 JUDGE MAY: General, can I understand this: What is being

9 suggested is that the mission as a whole, or at least the head of it,

10 produced false information as propaganda. It's suggested he had some

11 ulterior purpose for this and that the information which was put out about

12 Racak was misleading and simply amounted to propaganda.

13 Did the mission have an interest in putting forward propaganda or

14 in favouring one side above another?

15 THE WITNESS: Again, Your Honour, that's a very good question, and

16 I -- I can only tell you from my -- from my experience and my dealings

17 with the mission, both within my Regional Centre and with those times when

18 I replaced General DZ up at the main headquarters in Pristina that, in my

19 view, the mission did its job in a totally impartial manner and had no --

20 had no kind of didactique for one side or the other within the mission.

21 And I can tell you, in fact, a good example is in my Regional Centre I was

22 very worried about the Serb community which was in certain pockets within

23 the Prizren district surrounded by Albanians, by the Albanian population.

24 And I met with representatives of the Serb community on several occasions.

25 I went on Serb television, Belgrade TV and radio, to express some of those

Page 5872

1 concerns and to negotiate with the Serb -- the Serb responsible persons in

2 those areas to open up field offices of the OSCE, in particular in case

3 there was an agreement in Rambouillet so that we would have a field office

4 right in the middle of the Serb community to ensure that there would be no

5 backlash, which was obviously a possibility, against the Serb community.

6 So certainly in my -- in my heart, in my actions, and in my

7 approach, there was absolutely no partiality to one side or the other. I

8 did not condone any of the actions that were taken by either the Serb side

9 or the Albanian side in hurting the other community. To my mind, our

10 mission there was to try to preserve the status quo and ensure that the

11 behaviour of both sides would be in accordance with what I saw was the

12 international community's approach to human rights and to everything else,

13 to allow the political negotiations to go on and to find a final

14 solution.

15 So my sense is that there was no much partiality or hiding of

16 information or that kind of action from the mission.

17 JUDGE MAY: Yes, Mr. Milosevic.

18 MR. MILOSEVIC: [Interpretation]

19 Q. It is not disputed at all that the majority of the members of the

20 Verification Mission -- that the majority of the members of the

21 Verification Mission would say exactly what you just said. At any rate,

22 we saw statements of some of the members of the mission who regretted that

23 certain steps had been taken. What I'm referring to are simply the facts

24 that indicate that an alibi had been fabricated in Racak for further

25 steps.

Page 5873

1 Let us just look into three facts. First, is it well known and is

2 it completely undisputed that Walker had announced that a massacre of

3 innocent civilians had been committed in Racak? That's a fact, that's

4 right, isn't that so?

5 The second fact, is it clear --

6 JUDGE MAY: Let the witness deal with these things one by one. Do

7 you agree with that, General?

8 THE WITNESS: I heard that Ambassador Walker did make that

9 statement, yes.

10 MR. MILOSEVIC: [Interpretation]

11 Q. That a massacre of innocent civilians had been carried out -- had

12 been carried out in Racak. Isn't that right?

13 A. Yes. I heard him say that, yes.

14 Q. The second fact: Is it contested that a number of KLA members had

15 been killed in Racak and a number of those people cannot be considered

16 civilians in any case. Is that challenged or not?

17 A. Well, I can only challenge it from the point of view of what I saw

18 on the ground. I did not see --

19 Q. I'm not now referring to what you said on the 15th. I presented

20 you yesterday your own report dated the 16th, which contains the minimum

21 that you already knew on the 16th, which means on the day when Walker

22 announced that there had been a massacre of innocent civilians, and that

23 report stated that there were eight soldiers of the KLA killed.

24 So on the day when the massacre of innocent civilians was

25 announced, your report said that eight members of the KLA had been killed.

Page 5874

1 You had monitors there from the very morning, and you know that there had

2 been fighting going on. So these two facts are not contested.

3 JUDGE MAY: Mr. Milosevic, you must let the witness answer. You

4 are cross-examining at the moment, not making -- not making speeches. Let

5 the witness answer.

6 No.

7 THE ACCUSED: [Interpretation] [Microphone not activated]

8 JUDGE MAY: Mr. Milosevic, I'm stopping you. I am stopping you

9 because you are making speeches. You were told not to yesterday. You

10 were told to ask questions. Now, you have a proposition which you have

11 put to the witness. He must be able to answer it.

12 General, what was put to you was that you knew or you reported on

13 the 16th that a number of soldiers of the KLA were killed. Do you agree

14 with that proposition?

15 THE WITNESS: I did -- I did report that in my report on the 16th;

16 correct. And what I said was that a number of KLA were killed. That was

17 in the assessment. And I put eight and with a question mark. And also --

18 but this was, as I say, was reported to me, and there is no doubt it was

19 reported in good faith so I take it as correct information. But what I

20 saw on the ground, I did not see any members of the KLA that had been

21 killed at that point.

22 JUDGE ROBINSON: The question mark, General, was to indicate that

23 the number could be lower or higher.

24 THE WITNESS: It could be lower or higher, yeah.

25 MR. MILOSEVIC: [Interpretation]

Page 5875

1 Q. So, therefore, we concluded that Walker reported that there had

2 been a massacre of innocent civilians. That was fact number one. And

3 then we also concluded that at the time when he made that statement, he

4 knew that members of the KLA had been killed. Therefore, isn't it clear

5 that he purposefully --

6 JUDGE MAY: No. I'm going to stop you. You are putting a

7 proposition to this witness about somebody else's state of mind. Now, you

8 could put that to Ambassador Walker. You could put it to him. But

9 putting it to this witness is a complete waste of time.

10 Now, you've put your argument. Now, have you got any other points

11 to put to him?

12 THE ACCUSED: [Interpretation] I certainly do. I took it that

13 General Maisonneuve was giving sincere answers that pertained to what he

14 had seen himself.

15 JUDGE MAY: Yes. Yes, you could take that.

16 MR. MILOSEVIC: [Interpretation]

17 Q. In view of these two facts - one was Walker's statement and the

18 other one was the reality that you reported on - are you aware of the fact

19 that that reality had been concealed by the headquarters? I'm not going

20 to use the name Walker, that's not important now, but the reality had been

21 concealed and the only statement that was announced to the world was the

22 statement about the massacre of innocent civilians. Nothing leaked to the

23 international community about the killed KLA soldiers, that there had been

24 fighting. The only thing that they learned about was the innocent of the

25 mass -- the massacre of the innocent civilians. Are you aware of this?

Page 5876

1 A. I'm aware that Ambassador Walker did make a statement about

2 innocent civilians being killed in Racak, yes.

3 Q. All right. Thank you. I'm not going to put any more questions to

4 you regarding this.

5 In your statement, on page 10, paragraph 1, you refer to an event

6 that preceded Racak and that was the killing of a policeman. I presume

7 that you remember that event, that that is not contested.

8 In your statement, on page 11, you also state that on the main

9 road between Suva Reka and Stimlje, the KLA carefully selected that as a

10 place of provocation because they knew that the police patrolled that

11 area.

12 Did the police patrol that area because a route had been agreed

13 based on the agreement between the authorities of FRY and OSCE, this route

14 been agreed prior?

15 A. Yes, they did.

16 Q. Therefore, on the agreed route which had been agreed between the

17 authorities of FRY and OSCE, they, the KLA, because you said that the KLA

18 carefully selected that spot as a spot where they would kill a policeman,

19 and it was known that that was a spot agreed to be -- to be patrolled;

20 isn't that so?

21 A. The OSCE and the Serb authorities had agreed that that would be

22 the patrol route. The OSCE was not aware that the KLA were preparing an

23 ambush and had selected that area as an ambush area.

24 Q. I am not accusing OSCE about knowing that the KLA was going to

25 ambush the police. I'm not saying that. What I'm saying is that you

Page 5877

1 state yourself that they had carefully selected the spot on the very route

2 that had been agreed between the authorities of FRY and OSCE as the area

3 to be patrolled and committed a murder on that route.

4 A. That's correct. That's the way I saw it on -- on investigation.

5 I actually visited the area from where the ambush was launched, and it

6 seemed to me and to my verifiers that they had been preparing the ambush

7 for some days.

8 Q. When you contacted the representatives of the army, you were given

9 an explanation - and this is contained on page 7, paragraph 7 of your

10 statement - that none of the soldiers had contact with civilians. Isn't

11 that so?

12 A. You're back to Racak now?

13 Q. Yes. Yes. All I'm saying is that you were told that none of the

14 soldiers had contact with civilians. Did you determine this as well?

15 A. This -- this is what I was told for sure, yes.

16 Q. So therefore, despite this statement of the police commander that

17 it was a pure police action, your assessment on the army participation is

18 based on the fact that one of the verifiers had informed you about this;

19 isn't that right?

20 A. Based on the fact that the VJ had been seen to be supporting the

21 attack by the MUP from the high ground around -- around Racak and the

22 villages close to it.

23 Q. Very well.

24 JUDGE MAY: And it should not be forgotten in this evidence that

25 when you spoke to Lieutenant Colonel Petrovic on the 16th of --

Page 5878

1 THE WITNESS: January.

2 JUDGE MAY: -- January, he told you Stimlje - which I take to be

3 Racak - was done by the MUP with Praga armoured vehicles and a tank, and

4 you told us that you took the tank to mean that there was VJ involvement.

5 THE WITNESS: Absolutely, because the -- the MUP did not have

6 tanks.

7 MR. MILOSEVIC: [Interpretation]

8 Q. That's not the point. I simply wanted to clarify the fact that

9 the army did not accuse the police of anything, because it was a

10 legitimate operation. And the Prosecutor wanted to distort the facts and

11 claim that the army had accused the police. But we have cleared this now.

12 Yesterday, you --

13 MR. RYNEVELD: With respect, Your Honour, I can't just stand idly

14 by. I'm not accusing or distorting any facts. The quote that I put to

15 the witness came from the document he prepared and that was referred to by

16 Your Honour about a quote about another individual saying to the MUP that

17 they're putting the blame on you. The words I used came from that

18 document. I'm not distorting anything.

19 JUDGE MAY: Mr. Ryneveld, you can take it that the accusations

20 levelled by the accused at the Prosecution and the allegations made about

21 them are not taken by the Trial Chamber as to be anything other than

22 allegations.

23 MR. RYNEVELD: Thank you, Your Honour.

24 JUDGE MAY: If there were serious queries about suggestions by the

25 Prosecution that it was manipulating the evidence or misrepresenting it,

Page 5879

1 then the Chamber would take it up with them. For the rest, these are mere

2 accusations by him.

3 MR. RYNEVELD: Thank you, Your Honour.

4 THE ACCUSED: [Interpretation] In that case, I'm suggesting to you,

5 Mr. May, to look into this, because the witness spoke about information he

6 had received and not about any accusations by police directed --

7 accusations by army directed at the police. The army informed that it was

8 a pure police operation, the police informed him of the same, and that's

9 all there is to it. And Mr. Ryneveld explained that the army had accused

10 the police, which is not true. So this is a manipulation, and I would

11 like you to look into that.

12 JUDGE MAY: Let us -- we have the evidence, Mr. Milosevic. We

13 have it before us. Now, let us move on.

14 THE ACCUSED: [Interpretation] Mr. Maisonneuve did not claim that

15 the army blamed the police. He simply said that they had given him

16 information.

17 JUDGE MAY: We're not wasting further time on this.

18 MR. MILOSEVIC: [Interpretation]

19 Q. Mr. Maisonneuve, yesterday, you quite expertly explained the logic

20 behind the coordination and when it was needed; when there are operations

21 conducted in the field and when steps need to be taken to ensure that

22 nobody is killed by friendly fire. So this is the essence of what you

23 were saying. Isn't that right?

24 A. That's correct.

25 Q. Therefore, I am especially grateful to you for that explanation,

Page 5880

1 because up to now, here in various circumstances, any kind of coordination

2 between the army and police was treated as some kind of an illegal

3 conspiracy or some kind of a criminal misbehaviour. So I'm very pleased

4 that a person such as yourself, a military person, gave an explanation of

5 that nature.

6 Do you know how deep were the trenches, the ones in Racak?

7 A. No, I don't.

8 Q. Your colleague or your subordinate, I'm not quite sure what he is,

9 Mr. Ian Hendrie, who is coming here to testify, in his statement claims

10 that they were 1 metre -- 1.20 metres deep. Now, in few of that, I'm

11 asking you, and since you yourself stated that those who were killed had

12 been hit in the area of torso and head, and if the trenches were 1.2

13 metres deep, was it logical for them to have these type of injuries in the

14 area that you describe?

15 A. You -- I guess you were asking me if somebody is in a trench and

16 they're firing at someone coming -- I don't quite -- I don't understand

17 the question.

18 Q. Is it logical for somebody who is in the trench and who is killed,

19 is it logical for that person to be hit in the upper body, in torso and

20 head, and not in the legs? Because you said yourself that the majority of

21 them had injuries in their torsos and in their heads. Is it logical for

22 somebody who is in a 1.2 metre deep trench to have injuries in that area?

23 A. If the person is in a trench, yes --

24 Q. I can see that you are giving an affirmative answer, you are doing

25 it with your head, but since we need an audible answer, this is why I

Page 5881

1 insisted on this.

2 Yesterday, you said that you were familiar with the information

3 that was subsequently determined by the so-called experts. Yesterday, you

4 said that the majority of people had been fired at from a short distance.

5 That's what you said yesterday. And I would like to ask you the following

6 now: Do you know that in according to the forensic experts, both

7 Yugoslav, Belorussian, and Finnish ones, that is not true, and that all of

8 the people except for one person who had been indeed hit from a short

9 range, all the others were hit from a long range, as they were moving?

10 Are you aware of that or did you become aware of this subsequently?

11 A. I'm not aware of that. I did not see the forensic report by the

12 Finnish team. All I was saying, and in fact it's with no -- no particular

13 training in that area, that it appeared to me that they had been hit from

14 close range when I saw the bodies from up close.

15 The other thing I, of course, take it from is my experience as a

16 military officer that it's very difficult to hit someone in the head from

17 a long distance. When we aim with a small arm weapon, we aim at the

18 centre of mass of what is available, what you can see. So it would be

19 very difficult. You would not aim at somebody's head when you're actually

20 shooting at a distance, you would aim at the body. There's a chance you

21 might hit the head, obviously, but would you aim at the centre of mass of

22 what is visible of the target.

23 Q. Yes, I understand that, but you as a soldier probably have in mind

24 that not only one bullet is fired to ensure that you would hit the target

25 but, rather, that a large number of bullets is fired in order to hit the

Page 5882












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 5883

1 target. If every bullet hit the target, then there wouldn't be any living

2 people on this planet. You know this better than I do.

3 Yesterday, you said that that person had a hat, a cap on his head

4 and you know -- and the person had been hit in the head. You know that

5 these Albanian caps are quite small and they resemble an eggshell, so do

6 you believe that a person can be hit in the head without the cap falling

7 off their head? And it's not a military cap, it's a very small cap

8 resembling the eggshell.

9 A. I would imagine that if somebody gets hit in the head --

10 Q. [In English] Highly unlikely?

11 A. It's highly unlikely the cap would stay on.

12 Q. [In English] Yes.

13 JUDGE KWON: Just a minute, Mr. Milosevic.

14 General Maisonneuve, it's about your speculation that the victims

15 were shot at close range. Is that based upon the fact that they were hit

16 on the head, not -- it's nothing to do with the -- I'm sorry.

17 THE WITNESS: The wound you mean, the entry and the exit of the

18 wound?


20 THE WITNESS: I don't have any training in that regard so I could

21 not tell you how it looks when it's a long distance or a short distance

22 away. What I could tell you --

23 JUDGE KWON: So you are not in a position to tell the difference.

24 THE WITNESS: I could not, but I could see that some of them came

25 in the back and others in the front, and it seemed to me that to be hit

Page 5884

1 from a long distance and have this kind of a wound would be very

2 difficult, so my observation was that it was very close, from very close

3 range.

4 JUDGE KWON: Thank you.

5 MR. MILOSEVIC: [Interpretation]

6 Q. General, you said that based on your observation - and I wrote

7 down this word of yours, "your observation" - the people who were killed

8 were not members of the KLA. Was that observation of yours based on the

9 fact that they did not have uniforms?

10 A. Based on the fact that they did not have uniforms; their age also.

11 All the -- the majority of the KLA members that I had dealt with and seen

12 as fighters were of younger, much younger age. These were a number of

13 more older gentlemen. They looked -- they looked like they were farmers,

14 to me, and did not look like members of the KLA.

15 Q. You said that in the gully, in the valley, there were some 20 of

16 them and they were lined in one line. Now, here's my question: Bearing

17 in mind what you said, that they were lined, and if we link this to this

18 other fact that the KLA had the place under its control from the 15th of

19 January, let's say after 1600 or 1700 hours, until the time you came, when

20 Walker came and saw that, does this speak in favour of the fact that

21 somebody had brought those bodies there and lined them up there, or could

22 somebody have brought these bodies from the afternoon of one day and

23 before the morning of the following day? Is there anything to speak in

24 favour of that?

25 A. There probably are a number of -- a number of options that could

Page 5885

1 have happened in this case. When I saw the bodies, they were disposed in

2 a bit of a line. There were a number that were spaced out at the -- at

3 the bottom of the ravine, and then a little further up there were about,

4 I'd say eight, maybe five, eight, ten bodies that were kind of together

5 in a little bit more of a group. It almost seemed as if they had been

6 walking up the trail, but again that's got to be probably from the

7 photographs and from the actual forensic investigation. In fact, Mr.

8 Hendrie, who was one of the human rights verifiers who had a look

9 specifically at the bodies would be best able to tell you. But it looked

10 to me like they were -- they may have been marching up. I guess there are

11 perhaps other possibilities there, but I did not speculate on how they had

12 gotten there, certainly. But it seemed to me that's the first thing I

13 thought of, is that it looked like they had been marching up.

14 Q. Yes. And did you happen to think and did you ask yourself how

15 come there were no casings around anywhere, bullet casings?

16 A. No, I did not.

17 Q. You said yesterday yourself that you cannot give an opinion as to

18 whether the bodies had been brought into the ravine or not; is that right?

19 A. Yes.

20 Q. Yes. I understood you to say the affirmative. Now, General, here

21 we have seen some photographs of those bodies on which we can see some

22 bodies with their arms in the air, raised up in the air, in positions that

23 they could not have been had they been killed on that spot rather than

24 being brought in from some other place, because it is impossible for a

25 dead person to keep his hands held up in the air and be in that particular

Page 5886

1 position, et cetera.

2 Now, did you notice these - how shall I put it? - these signs,

3 these indications of the fact that the bodies had in fact been brought in

4 and lined up there, aligned there after death?

5 A. No, I didn't -- I didn't notice that any of their arms or limbs

6 were up in the air. I must say I guess I didn't -- wasn't really paying

7 attention to that at the time.

8 Q. Just tell me this: At what time did they discover the bodies in

9 the ravine, your verifiers? What time was it when they discovered the

10 bodies?

11 A. I believe it was in the morning. I probably would say before --

12 before 10.00 on the morning of the 16th.

13 Q. You say around 10.00.

14 A. Before -- I think before 10.00. Somewhere around there.

15 Q. Very well. So before 10.00. That means from sometime around, let

16 us say, 1700 hours on the 15th and then at least until 9.00 in the morning

17 of the 16th, and they could have exclusively -- it was only the KLA that

18 could have manipulated this exclusively. There were no verifiers there,

19 there were no police and no army there; is that right? Or did some of the

20 verifiers perhaps spend the night there, stay and spend the night there?

21 A. I believe that -- that there was no -- that there were no

22 verifiers in that area on the evening of the 15th, that I know of.

23 Q. All right. Thank you very much. I have to shorten my

24 questioning. Now, you mentioned yesterday that some howitzers were

25 directed towards the village. Did you just say that they were directed

Page 5887

1 towards the village or did you say that they opened fire on the village?

2 A. My understanding is that they were pointed -- mortars and

3 howitzers were pointed towards the village. One of my verifiers did

4 report that at one point.

5 Q. Yesterday, you said -- you put it this way: That the men were

6 taken off but that the verifiers didn't tell you that. Who told you that?

7 Who told you that the males had been taken away?

8 A. This is a report I became aware of later. I did not get that

9 report on the day of, and it was reported, I believe it must have been by

10 the other Regional Centre up to -- up to Pristina, but I subsequently read

11 they had been told, and I believe it was the locals who mentioned that to

12 the verifiers, that the men had been segregated from the women and taken

13 away.

14 Q. Yesterday you spoke about the attempt on the part of the

15 investigating judge, Mrs. Marinkovic, to carry out an on-site

16 investigation. That was when Judge Kwon asked you a question about

17 sovereignty, that is to say, whether a judge, in his or her own country

18 and in conformity with the law, is carrying out an investigation, you know

19 that in conformity with the law governing investigating judges, that the

20 spot and position is secured by the police. And you said that it was --

21 that from the KLA, they reported too late that there would be no problems

22 and that that is when an independent investigation took place, although

23 this is the right that an investigating judge has.

24 Now, is there anything that you reproach the investigating judge

25 for in that regard? I didn't quite get the point of your -- of Mr.

Page 5888

1 Ryneveld's questioning and examination. Is there anything that you

2 reproached the investigating judge, Mrs. Marinkovic, for in that regard?

3 A. The only thing I guess I could say is that, in my view, in light

4 of what had happened in Racak and the very high tension that was reigning

5 at that time with all the dead bodies that we had found and with the

6 fighting that had gone on, the house-to-house searches by the Serb

7 authorities and the deaths of some of the locals, that this was not a good

8 time perhaps to be very -- to have a very overt and large Serb presence go

9 in the village. And I guess if -- we were trying to -- to lower tensions

10 and to ensure that there would be no further fighting, and so I think the

11 approach of OSCE, General DZ, and myself and everyone were hoping that the

12 investigation would take place but perhaps with a less overt police

13 presence. When she decided to go in, it was accompanied by a whole

14 company of police, probably a hundred, with armoured vehicles and were

15 leaving from the road heading towards Racak and it was, to our mind,

16 certainly much too large a presence to go in with.

17 I don't think anyone would disagree with the need for the

18 investigation to go on and for her right to go in to investigate, but I

19 believe that the approach of the OSCE was to try and convince her to go in

20 under OSCE escort, perhaps with some personal protection, but not with an

21 entire company of MUP at that time. It was just -- the tensions were just

22 too high and there was the danger of -- of fighting breaking out.

23 Q. All right. You are aware that during that investigation that the

24 KLA targeted with mortars the investigating judge and her team and that

25 some were even killed there on that occasion. Isn't that right?

Page 5889

1 A. I'm not aware of anyone being killed, but this is possible. The

2 OSCE --

3 Q. So what we have is an investigating judge going out to perform her

4 duty and carry out an investigation. They're not doing this for their own

5 pleasure, to go to a village under such conditions and to carry out an

6 on-site investigation. She was going out to her duty, to conduct the

7 investigation, terrorists targeted them with mortars and the conclusion is

8 that it is the investigating judge to be blamed for doing this to the --

9 provoking the terrorists; is that right?

10 A. Well, it's undoubted -- it's -- certainly in my own mind, having a

11 complete company of MUP going into a village that has just been, you know,

12 the day before house-to-house searches and 45 people are killed, I think

13 that is provoking, but that is my personal opinion.

14 Q. Well, all right, but do you consider that the authorities, the

15 legal authorities of a country should ask permission from terrorists

16 whether or not they can do their duty or not?

17 A. I would say obviously not.

18 Q. Where's the problem then?

19 A. Well, I explained to you, Mr. Milosevic, that my view of things is

20 that - and certainly I believe the OSCE's view at that point - was that

21 there was no problem with the investigating judge going in to do the

22 investigation but we were trying to lower tensions, and having a complete

23 company of MUP accompany her was not the approach to take. If she had

24 been accompanied by the KVM - General DZ himself was prepared to accompany

25 her - and perhaps some personal protection would have been sufficient and

Page 5890

1 kept tensions down to a minimum, and it would not have been seen as

2 another assault on the village which had just been assaulted with 45

3 people being killed the day before.

4 JUDGE KWON: General, could you clarify the meaning of "minimum"?

5 Was it agreed at that time that she is accompanied by some members of the

6 MUP? Not the whole company.

7 THE WITNESS: As I said, Your Honour, we would have had no problem

8 with her being accompanied by a small group perhaps of personal

9 protection, perhaps a section of five or something like that at that point

10 would have been -- but you see, the approach that was taken was that the

11 -- the MUP company lined up as if they were doing another assault and a

12 clearance through the village, as opposed to the way we saw it where she

13 could have gone in a vehicle accompanied by a couple of members of the

14 OSCE, General DZ himself, and she could have gone with a small party and

15 driven into the -- into the village. There's no doubt that that would

16 have kept tensions, to our mind, a lot lower than having the entire

17 company walk through the village.

18 JUDGE KWON: Wasn't the condition at that time that there should

19 be no MUP officer at the time?

20 THE WITNESS: I don't know exactly what General DZ was trying to

21 negotiate with her, but I'm telling you the way I would certainly have

22 seen things. To have an entire company of MUP there was very provocative,

23 that tensions were running -- as you can just imagine. The local

24 population was up in arms. Well, up in arms is not a good term to use,

25 but was very, very nervous, very worried, very angry. So this was the

Page 5891

1 time to really try to lower tensions to the maximum. That was our

2 concern.

3 JUDGE KWON: Thank you.

4 MR. MILOSEVIC: [Interpretation]

5 Q. In order to save time, General, I'm not going to ask any of the

6 questions that I have -- that I asked General Drewienkiewicz or to play

7 tapes and other things. We haven't got time really. But let me ask you

8 one more question in connection with Racak. You personally, and I'm

9 asking you personally now: Do you personally, after everything, after all

10 the information that you have about the events in Racak, so all the

11 information, the overall comprehensive information about Racak, can you

12 say that in Racak a massacre was performed over civilians?

13 JUDGE MAY: That is not for the witness to answer. His personal

14 beliefs are irrelevant. It's his -- it's his evidence which counts, and

15 that is the matter which we are going to have to determine.

16 Now, move on to another topic.

17 THE ACCUSED: [Interpretation] Why shouldn't he be allowed to

18 answer? If he doesn't wish to answer, he can say that. The witness can

19 say he doesn't wish to.

20 JUDGE MAY: No. He is not to answer the question. It's not a

21 matter for him, it is a matter which the Trial Chamber are going to have

22 to determine.

23 THE ACCUSED: [Interpretation] But he'll be honest and he'll tell

24 the truth.

25 JUDGE MAY: It doesn't matter what his belief is now. It's

Page 5892

1 something which the Trial Chamber is going to have to determine on the

2 evidence as to what happened. Now, move on to something else.

3 THE ACCUSED: [Interpretation] Ah, well, Mr. May, it's quite clear

4 to me, and I hope the public too.

5 JUDGE MAY: Just move on.

6 MR. MILOSEVIC: [Interpretation]

7 Q. We have very little time left, so I'm going to ask you very

8 briefly about the other things that I wanted to ask.

9 In your statement on page 9, you mention the incident in Rogovo

10 and say that you were -- that you toured the crime spot. Which crime spot

11 did you tour? What crime happened in Rogovo?

12 A. Well, in Rogovo, a group of probably 25 Albanians were killed in a

13 farmhouse, in the area surrounding a farmhouse in Rogovo. In fact, the

14 dates and so on are in the evidence.

15 Q. I must save time so let me just ask you this: Do you know that in

16 the monthly report of the OSCE of the 20th of February, 1999, for the

17 period from mid-January to mid-February 1995 [as interpreted], it states

18 that one of the commanders of the KLA sector in Pec recognised and stated

19 that 18

20 -- acknowledged that 18 of the 25 were members of the KLA in Rogovo?

21 A. I'm not aware of his -- his assessment. I can tell you that our

22 assessment and our information from the KLA commander that I dealt with

23 was about the same, that the vast majority were members of the KLA that

24 had been killed at that time. And that's the way we reported it as well.

25 Q. And do you know that at the time, because you were there on that

Page 5893

1 29th of January, 1999, at 6.30 in Rogovo, at a police patrol, an attack

2 was launched and, on the occasion, policeman Predrag Rakovic was killed?

3 He was born in 1976. So that's how Rogovo started, with the killing of a

4 policeman and attack on the patrol. Is that a crime? Is that the crime

5 that you make mention of or do you consider the crime to be the response

6 of the policemen to the killing of that police officer?

7 A. Well, I see any killing as a crime, first of all, and I received

8 the information from the brigade commander from Prizren who actually

9 described to me how he had seen and had taken part in the Rogovo action.

10 In fact, in his view, it had been an infiltration by members of the KLA

11 and others who -- who he had followed right from the border into Rogovo

12 and then had -- had taken action and killed them.

13 Q. Without a doubt, Rogovo and that particular house was the place

14 where they gathered together and from which they launched operations.

15 They killed the policeman from that house. That's where they started out

16 from. Now, did you notice on the list of persons killed - because I'm

17 sure you received a report to that effect - that half of them were not

18 from that area at all, from the region at all, and that it was a unit and

19 not villagers living there, not the locals? And you yourself have just

20 confirmed that your information confirmed those facts, that most of these

21 people were members of the KLA; is that right?

22 A. Right. My information confirmed that most of the people were from

23 the KLA. I was not aware that they were from another region. There is no

24 doubt in my mind, though, that the action by the Serb authorities there

25 again, some of the questions I asked myself were why were there no

Page 5894

1 prisoners taken? Why were they all killed? Did they all fight? You

2 know, these are some of the questions that I was asking when I came on the

3 scene.

4 Q. Yes. But I'm interested in this: As it is quite clear from what

5 you're saying now that you too know that this was another clash between

6 the police and a group of KLA members, why then are you calling this a

7 crime? Isn't it not a legitimate clash by -- between a legitimate police

8 force with a band of terrorists in one particular place? Why should that

9 be a crime? How can you call that a crime?

10 A. Did I call it a crime?

11 Q. Well, you say here -- and I'm happy to see that you're wondering

12 whether you said it or not, because in your statement, on page 9, you

13 mention the incident in Rogovo, and you say that you toured the crime

14 scene, and I'm very happy that you're asking yourself that now and

15 relativising it in one way, rendering it more relative in a way.

16 JUDGE KWON: According to the English version, he only said, "I

17 visited the scene," not "the crime scene." Could it be clarified?

18 THE WITNESS: I think we're playing on words here. The point

19 being that I definitely toured the scene on that day and I explained to

20 you some of the questions that I was asking myself. I saw where the

21 bodies were. Well, when I arrived, the Serb authorities had already

22 started to clean up the scene and had lined up the bodies, but there were

23 some in some areas that I wondered why they had been -- they had been

24 killed. But again, this is not for me to determine whether this was a

25 crime or not. What I can tell you is what I saw. For example, one person

Page 5895

1 inside a bathroom being shot, to me, I just wondered why that person was

2 not taken prisoner. There's no doubt that some of the members, or most of

3 the members were members of the KLA. This was acknowledged by the

4 Commander Drini that I dealt with within my area.

5 MR. MILOSEVIC: [Interpretation]

6 Q. All right. So that is not being challenged. Now, is it correct

7 that the representatives of the Commission for Cooperation with the OSCE,

8 that is to say the Yugoslav Commission for Cooperation with the OSCE,

9 which in Pristina was led by General Loncar, is it true that they agreed

10 that there should be a joint investigation into this affair?

11 A. That's possible. I know that General Loncar was on the ground at

12 the time, as I was, and General Drewienkiewicz was as well.

13 Q. I'm going to give here the transcript of a conversation given by

14 General -- I think it was General Drewienkiewicz that supplied it, but at

15 any rate, the other side has it under 03045420. It is the conversation

16 between General Loncar and General Drewienkiewicz, and towards the end of

17 that cooperation there is a marker sign here and it says General DZ, who

18 says, "I can confirm that you agree to a joint investigation." General

19 Loncar says, "Yes, of course."

20 THE INTERPRETER: Or words to that effect, interpreter's note.

21 MR. MILOSEVIC: [Interpretation]

22 Q. That is your tape of the conversation, and I think that General

23 Drewienkiewicz supplied it, or perhaps the opposite side included it on

24 its side for reasons that are not understandable to me, but this is not

25 something that is challenged.

Page 5896












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13 English transcripts.













Page 5897

1 Now, is it true that the KLA, or, rather, their commanders,

2 because you had regular meetings with them, held the position that if an

3 agreement was signed in Rambouillet, that guerilla actions would be

4 launched and that there was public readiness on the part KLA to continue

5 the fighting? Is that true?

6 A. I'm not aware of that.

7 Q. Then I have to inform you that in a document supplied by the

8 opposite side, it was disclosed under the title of questions that emerge

9 from the meeting with the liaison officers of the KLA on the 10th of

10 March, that particular document, it is 03045428, in which this is stated,

11 what I just read out.

12 JUDGE MAY: The witness has said he's not aware of it. So what's

13 the point of going on? Now, ask him something else.

14 THE ACCUSED: [Interpretation] Well, the witness was with them.

15 JUDGE MAY: He says he wasn't aware of it. So there's no point

16 going on arguing about it.

17 THE ACCUSED: [Interpretation] I'm not arguing with the general at

18 all.

19 MR. MILOSEVIC: [Interpretation]

20 Q. I don't know, General, are you understanding me to be arguing with

21 you?

22 JUDGE MAY: No. Get on with it.

23 MR. MILOSEVIC: [Interpretation]

24 Q. Please. This is your document --

25 JUDGE MAY: Mr. Milosevic, there is no point going on putting to

Page 5898

1 the witness something which he is not aware of. You've been told this a

2 number of times during your examination of witnesses. You can produce it

3 in due course, but it's no good wasting time by going on with it with the

4 witness.

5 THE ACCUSED: [Interpretation] So you do not accept to introduce

6 this as an exhibit, Mr. May?

7 JUDGE MAY: No, I don't, because he's not aware of it, he knows

8 nothing about it.

9 THE ACCUSED: [Interpretation] Perhaps he would remember if I were

10 to read it out. He's a general, he read all the reports, his memory might

11 be refreshed if I read it out to him.

12 JUDGE MAY: Let him see the document. There's no point reading it

13 out, he can't follow it. Let him see the document.

14 MR. RYNEVELD: If it's in the big --

15 THE ACCUSED: [Interpretation] All right. Let's not waste time

16 because my time is trickling out.

17 MR. RYNEVELD: [Previous translation continues]... which were

18 filed with General Drewienkiewicz, we're going through that binder because

19 we don't have an exhibit number.

20 JUDGE MAY: All right. It's been translated. We'll look at this.

21 Continue with the cross-examination and you can return to this after the

22 witness has finished.

23 MR. MILOSEVIC: [Interpretation]

24 Q. All right. Anyway, you indicate, in paragraph 2 on page 3 of your

25 statement, that you talked at a meeting about the withdrawal of MUP in

Page 5899

1 Podujevo and the MUP, after that meeting, did in fact withdraw; is that

2 correct?

3 A. Yes.

4 Q. That means that you had good cooperation with MUP; right?

5 A. Yes.

6 Q. You presented here a document under the title of "The History of

7 Kosovo." Now, what is the importance of that document? And you state

8 that the document does not express your own opinion but that it should be

9 treated as confidential. Now why do you have this type of attitude

10 towards that document? I'm not clear on that point.

11 A. This is a document that was produced -- I believe you're referring

12 to the one produced by David Wilson, who was one of my verifiers, who

13 produced that. It was his own opinion and I was not using it -- I used it

14 without his permission, essentially, but I thought it was a document that

15 -- that was a good representation of -- of his -- of his opinion and

16 certainly of the opinion of many people who were serving in Kosovo at the

17 time.

18 Q. In the Canadian Military Journal, you published, among other

19 things, the fact that the KLA, the Albanians, used violent means in order

20 to achieve their political goals, that they resorted to violent means.

21 Now, does this reflect your opinion that they did not use terrorism or

22 that they did use terrorism? Which? What you call the use of violent

23 means in order to achieve political goals, that term.

24 A. Unfortunately, both sides were using violent means to achieve

25 their goals at the time, and I did not condone any side using violent

Page 5900

1 means to achieve gains in Kosovo.

2 Q. Mr. Maisonneuve, how can you speak about two sides, both sides, if

3 on the one side you have the legitimate authority and power of a sovereign

4 state and on the other side you have terrorists, and when you have 50

5 years or 100 years back in history, some sporadic terrorist act and then

6 an explosion in 1998 and reactions on the part of these legitimate organs

7 to that terrorism in 1998, how can you speak of two sides?

8 A. Well, there's no doubt in my mind that in the case of the time

9 when I was in Kosovo, there were two sides: There was the Albanian side

10 and there was the authority's side. Both sides were using violent means.

11 One side was disproportionally more violent than the other side but,

12 nevertheless, the other side was also violent.

13 Now, I don't know if you can attribute a weight factor to

14 violence. I can't, just like I can't attribute a weight to dead bodies.

15 Whether you tell me it's a thousand or 45, to me they're just dead bodies

16 and they're dead people, and so I would not condone violence by either

17 side the entire time I was there, and I still don't.

18 Q. And do you assume that it is the duty of a state and its organs to

19 protect themselves from terrorism?

20 A. Absolutely.

21 Q. Do you believe that it is the duty of the state and its state

22 organs to protect the territorial integrity of the country if that

23 terrorism has as its political goal separatism?

24 A. Protection is the correct term, yes.

25 Q. Now, if this is used in order to achieve these and such political

Page 5901

1 goals, that is to say secession, the killing of official representatives

2 and so on and so forth, that the state must resort to force or not? If

3 violence is being used in order to achieve those goals.

4 A. These are -- you know, these are kind of hypothetical questions.

5 I can tell you there's no doubt that if violence is being perpetrated by

6 -- by elements, that a state has a right to protect itself and to defend

7 itself. I don't know --

8 JUDGE MAY: Yes. General, I think you could probably take it no

9 further than that.

10 Mr. Milosevic, those are the very questions which this Trial

11 Chamber will have to resolve in due course and not matters for a witness.

12 And your time is now up. You've had your hour and a half.

13 THE ACCUSED: [Interpretation] One more question. Can I ask him

14 one more question, at least, please?

15 JUDGE MAY: Yes, one more question.

16 MR. MILOSEVIC: [Interpretation]

17 Q. You spoke about the conduct of the police, generally speaking, at

18 the checkpoints, and you said that it was proper and moderate while you

19 were present, when you were present; is that right?

20 A. That's what I said.

21 Q. When I say "you," I don't mean you personally, I mean your

22 verifiers. I think we understand each other, don't we? How, then, did

23 you know that the conduct was not moderate and proper when you weren't

24 there if you weren't there? How were you able to determine that?

25 A. Because we received information from the locals who had been

Page 5902

1 stopped and who provided us with evidence at times, you know, some of the

2 members of the local population being beaten and would show -- show us

3 that they had been beaten, and we -- we at times also stayed away from the

4 direct scene but stayed behind or far enough away to be able to observe

5 and then saw the actions of the police from that distance.

6 So there were instances where we weren't there directly on the

7 side, but we did observe the police being very brutal and arrogant.

8 JUDGE MAY: That is the question. Yes. That brings that to an

9 end.

10 Now, are there some questions from the amicus?

11 MR. TAPUSKOVIC: [Interpretation] Yes, Your Honour.

12 JUDGE MAY: Very well. After the adjournment.

13 MR. RYNEVELD: In complete fairness, perhaps during the

14 adjournment, we believe we have located the English translation of the

15 document to which Mr. Milosevic referred. This is Exhibit 94, tab 54.

16 Unfortunately, that's as close as we can come. We believe that's the one.

17 JUDGE MAY: Well, if -- Mr. Milosevic, if you would hand over the

18 Serbian version, we'll ensure that that is the document. Otherwise, we'll

19 have it exhibited.

20 THE ACCUSED: [Interpretation] Here you are.

21 JUDGE MAY: Very well. We'll deal with that during the

22 adjournment.

23 After the adjournment, we'll come back, we'll finish this

24 witness's evidence, examination and re-examination, and then I take it

25 we'll have Drita Emini back?

Page 5903

1 MR. RYNEVELD: Yes, Your Honour, that's my understanding.

2 JUDGE MAY: We will then deal with Mr. Kelly and our ruling in

3 relation to his evidence.

4 THE ACCUSED: [In English] After Drita Emini, Avdiu Bilall

5 [Interpretation] according to my list.

6 JUDGE MAY: No, Mr. Milosevic, we're going to deal next with Mr.

7 Kelly because we haven't yet finished him.

8 But let's adjourn now. Twenty minutes.

9 --- Recess taken at 10.35 a.m.

10 --- On resuming at 10.58 a.m.

11 JUDGE MAY: Yes, Mr. Tapuskovic.

12 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

13 Questioned by Mr. Tapuskovic:

14 Q. [Interpretation] General, yesterday you said that there was a

15 strong presence of the KLA in the region under your control and also in

16 other areas in Kosovo. My question is as follows: Did you, as the

17 Verification Mission, have some kind of an assessment of how many members

18 of the KLA there were in the entire area of Kosovo?

19 A. The -- I believe that information was available to the mission in

20 Pristina.

21 Q. Well, do you know that figure?

22 A. No, I don't personally, no.

23 Q. Thank you. You also said that on the 15th, in the afternoon, at

24 1630, you were in Racak and that you saw several wounded people. Were

25 they members of the KLA?

Page 5904

1 A. No, they were not. It was a lady and a young girl.

2 Q. Thank you. The following day, you were there once again in the

3 morning; isn't that right?

4 A. I was.

5 Q. As you approached Racak that morning, did you meet any members of

6 the KLA? Did they have their checkpoints on the access routes to Racak?

7 A. No. No, they did not, no.

8 Q. And what about within the village itself? How many members of the

9 KLA did you see?

10 A. One or two only on that -- on that morning.

11 Q. And on that morning, you saw three lifeless bodies, only three; is

12 that right?

13 A. No. On that morning, I saw many more than that. I actually did

14 see the -- I went to the ravine and saw the ravine. You're talking about

15 the 16th right now?

16 Q. I'm asking on the morning of the 16th, what did you see then?

17 Were you in the ravine in the morning?

18 A. Yes, I was. Before Mr. Walker came, I actually had gone to the

19 ravine to see -- to see the bodies up there, yes.

20 Q. And what time was it?

21 A. It would have been after -- after I held my two meetings with the

22 police and with the VJ brigade liaison officer. So it must have been

23 after 11.30. I don't know exactly what time it was, but ...

24 Q. Well, this is why I'm asking you, because the first meeting with

25 Petrovic commenced at -- I'm sorry. At 10.37, you had a meeting with

Page 5905

1 Petrovic. At 11.14, you had a meeting with Janicijevic. And if you were

2 in Racak after 11.00 and saw what you say you saw, how could you at 10.37

3 report what you say here? I'm going to read this to you. You said here:

4 "We saw atrocities in Racak. We believe that the army of Yugoslavia and

5 MUP are responsible for this. The army carried this out. Over 50

6 people were killed. They were not combatants."

7 That means that during the meeting at 10.30, you said what you say

8 here, and you were at the scene after 11.00. And then you also go ahead

9 and say that the Tribunal for international war crimes should look into

10 this. So how do you explain this?

11 A. Well, you see, as I was -- as I mentioned, as I was travelling on

12 the road from Prizren to -- to Racak on the morning of the 16th, I was

13 receiving reports of my verifiers who were in the village doing the

14 investigation and finding the bodies, and as I mentioned, as I was going

15 -- arriving, I was hearing reports of, you know, 25 -- you know, the body

16 count was going up and up. When I actually went into Racak, I did not

17 have time at that point to go to the ravine before I had the meeting

18 scheduled, so I only personally looked at a couple of bodies at that

19 point. But of course I was speaking to my verifiers who had been to the

20 ravine and had reported to me that there were a number of bodies.

21 We hadn't got an exact number by then, but we thought it might be

22 as high as 50, because of course when you're finding numbers, you don't

23 know, there might be some double counting and so on. So when I actually

24 met with the brigade liaison officer, I used the number 50.

25 We also had seen, of course, the firing into the houses the day

Page 5906

1 before, so that's the basis in which we said we had witnessed the VJ and

2 MUP being involved in the operation.

3 Q. And when did you learn during the day the exact number of victims?

4 When did you learn the exact number of them?

5 A. I don't know whether I even learned it during that day. As I say,

6 it's always difficult to figure out which bodies are which and so on. We

7 know there were approximately between 40 and 50 bodies on the day, and of

8 course midday the 16th, or just after midday, Ambassador Walker and a

9 whole team of investigators from Pristina arrived to do the specific body

10 count and investigation of numbers specifically, and so that's when, of

11 course, the numbers came out.

12 Q. However, at 10.37, you said something which in a way represented

13 your definitive assessment concerning what had happened there, and you

14 even gave a qualification. You qualified it as a war crime and

15 atrocities, that these people were not combatants and, at that time, you

16 still didn't have all this information.

17 A. Oh, I didn't have all the information, but I could tell you that

18 my verifiers had seen that they were not combatants by our assessment.

19 And I must tell you that on the basis of information, that is what you do

20 when you're in the heat of the moment, you certainly meet and have to

21 speak to these people on that basis. So that's what I did. And I'm sure

22 you would have done the same.

23 Q. Well, I would just like to ask one more thing. You can give us

24 information who these verifiers were who saw this prior to Walker and you

25 and prior to anybody else. Can you give us a name? Who told you this?

Page 5907

1 A. I have some names. Rufus Dawkins, who was one of my verifiers,

2 and the people within his team. He was the -- pardon me?

3 Q. Is he Albanian?

4 A. No. Rufus Dawkins, he's an American, actually. I've provided his

5 name already to the Court.

6 Q. All right. I'll conclude with this topic. I think this was

7 sufficient for our purposes.

8 Did you try, that morning, and since you already talked to the

9 members -- to the representatives of the official authorities, but did you

10 also talk to the representatives of the KLA on the 15th in the afternoon

11 and the 16th in the morning? Did you get any information from them?

12 A. I personally did not. I was -- I was trying to meet, actually,

13 with my KLA equivalent, the person that I dealt with all the time, Drini,

14 and I requested a meeting, and I never ended up meeting him until the

15 17th, but my verifiers in the village were speaking to the KLA members

16 there.

17 Q. Prior to your meeting with the representatives of the army and

18 police?

19 A. Prior? No, after. Because I met the representative of the army

20 and the police on the 16th. And on the 17th, I met with Drini. And the

21 meeting reports are in the evidence.

22 Q. Did you try at all to get permission from the representatives of

23 the KLA to see what victims they had, what people were killed on their

24 side, to at least establish whether they were wearing civilian or military

25 clothes?

Page 5908

1 A. No, I did not.

2 Q. I'm also interested in the following: There was no on-site

3 investigation carried out, was it, where there were numerous victims up in

4 the hills? There was no on-site investigation there, was it? The way it

5 is normally done in accordance with the rules of police investigation and

6 so on.

7 A. Well, the only investigation of which I am aware is the one that

8 was carried out by Pristina and the headquarters, Ian Hendrie as one of

9 the investigators. And there were a number of people crawling all over

10 the site on the 16th and I believe on the 17th as well. And, of course,

11 there was also the investigation by the presiding judge accompanied by

12 that company of MUP. Presumably it was a proper investigation.

13 Q. I'm interested in the on-site investigation on the site where

14 numerous bodies were found. Do you know whether that particular spot was

15 investigated?

16 A. Well, this is what I mean. You're talking about spot in the gully

17 where the bodies were? Is that the spot that you're talking about? Well,

18 in fact, yes, as I said, on the 16th the place was crawling with

19 investigators, and Mr. Hendrie is going to be reporting to you here, I

20 believe, on that investigation.

21 Q. Do you know at all how the bodies were transferred to the mosque?

22 A. No, I don't.

23 Q. Did the KLA have any interest in preventing access to those bodies

24 and preventing information from being brought into the open about them?

25 Did they have an interest in that?

Page 5909

1 A. I wouldn't see why they would have an interest, no.

2 Q. And the final topic, General, has to do with Mr. Kelly's report

3 and some facts that are contained there. It is being said there that --

4 JUDGE MAY: Just a moment. Mr. Tapuskovic, before you go into

5 that report, we are going to rule on that in a moment. It may well be

6 that we shall be excluding it, so I don't think it would be right to ask

7 any questions about it.

8 MR. TAPUSKOVIC: [Interpretation] I would just like to ask the

9 following: Is General Maisonneuve aware of the fact that 17 Serbs were

10 killed in front of the mosque at a time when they tried to pick up the

11 bodies and take them to the morgue in Pristina?

12 Q. Do you know that 17 people were killed there? This was determined

13 by OSCE, and it is stated in their report. Do you know of this or not?

14 A. I'm not aware of that, no.

15 Q. Do you know if anyone was killed?

16 A. Not that I know of. And certainly not in the context of picking

17 up the bodies. I think I would have heard about that. But I never heard

18 about that, no.

19 MR. TAPUSKOVIC: [Interpretation] Thank you.

20 MR. RYNEVELD: Your Honours, given the time constraints, I'm going

21 to forego any re-examination.

22 JUDGE MAY: Thank you. The document we tracked down to Exhibit

23 94.

24 MR. RYNEVELD: Yes. I believe that the accused wanted to have it

25 marked as an exhibit. It already is an exhibit, and it's Exhibit 94, tab

Page 5910












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 5911

1 54. So that's the document.

2 JUDGE MAY: Thank you. Yes. It's in evidence.

3 JUDGE KWON: And 42 for the transcript, between the conversation

4 between General Loncar and DZ.

5 MR. RYNEVELD: Yes. We found that as well, and that is Exhibit

6 94, already in, tab 42.


8 JUDGE MAY: Yes. General, thank you for giving evidence and thank

9 you for making time this morning and making different arrangements.

10 You're free to go.

11 THE WITNESS: Thank you, Your Honour.

12 [The witness withdrew]

13 MR. RYNEVELD: I understand Your Honours indicated that you would

14 hear Drita Emini now for the balance of cross-examination.

15 JUDGE MAY: Yes.

16 MR. RYNEVELD: Thank you.

17 [The witness entered court]

18 JUDGE MAY: Ms. Emini, you can take a seat. You are subject to

19 the declaration which you made the other day, and we'll conclude your

20 evidence now.


22 [Witness answered through interpreter]

23 JUDGE MAY: Yes, Mr. Milosevic.

24 Cross-examined by Mr. Milosevic: [Continued]

25 Q. [Interpretation] You said that you were able to see Bebushit hill

Page 5912

1 from the basement. How far is it from the place where you were?

2 A. Two hundred metres from my house. About 200 metres.

3 Q. Did the policemen who you say you saw on the hill through a hole

4 in the basement, did they stand or were they hiding behind a shelter?

5 A. I saw three or four, I don't remember exactly, and they were

6 standing, Accused.

7 Q. So you saw only three or four policemen on the hill some 200

8 metres away from you from a basement in which, as you say, you were lying

9 on the floor; is that right?

10 A. Which policemen do you mean? The Serbian police? Are you talking

11 about the Serbian police?

12 Q. Well, I took it that you were referring of them.

13 A. I saw the Serbian police. I couldn't say how many there were on

14 the Bebushit hill, but I know we were surrounded by Serbian police and

15 soldiers.

16 Q. Well, now you're saying that you can't say how many were there,

17 and previously, without me asking you so, you said there were three or

18 four. A minute ago, you said there were three or four of them on the hill

19 200 metres from the basement on which you were lying on the floor.

20 A. I don't know what police or army you're asking about exactly.

21 Q. Well, the one that you mentioned in your reply. I asked you about

22 policemen you saw on the Bebushit hill. Even though I didn't ask you how

23 many there were, you said that there were three or four policemen standing

24 there.

25 A. I saw Serbian police and soldiers from the cellar where I was, and

Page 5913

1 I don't know how many there were, but I know that we were surrounded by

2 Serbian police and soldiers on orders that were given by you, Accused.

3 Q. Very well. If you saw three or four, as you said yourself, three

4 or four, how did you then conclude that you were surrounded? Did these

5 three or four policemen that you saw on the hill, as you say, 200 metres

6 from the basement, actually surround you?

7 A. This question is not clear to me, Accused.

8 JUDGE MAY: Now, will you stop addressing him as "Accused."

9 There's no need for you to address him at all. Ms. Emini, you are giving

10 evidence to the Court.

11 Yes. Mr. Milosevic, find another question.

12 THE ACCUSED: [Interpretation] Well, it's quite obvious that we

13 need to move to another question.

14 MR. MILOSEVIC: [Interpretation]

15 Q. In your statement, on page 8, you state that in the hills above

16 Lozhak, you spent six days in a cave called Imer Devetak. Is that true or

17 not?

18 A. I didn't stay in a cave above the hills of Recak. I stayed in

19 Lozhak. It's called shpella, the cave of Imer Devetak.

20 Q. All right. So you were in this other cave that you're mentioning

21 now for six days; isn't that right?

22 A. We were one week in the cave. It was in the mountains.

23 Q. Do you know that in your statement, it says that you spent six

24 days in a cave. You said that you had a wood-burning stove in front of

25 the cave. Isn't that right?

Page 5914

1 A. My family and I who stayed in the cave of Imer Devetaku, like

2 Lozhak, didn't have stoves because we were in the hills. I also have

3 photographs taken by Barney Kelly. There were no houses up there.

4 Q. I'm not asking you about houses, I'm asking you about a cave. And

5 what did Barney Kelly photograph?

6 A. Barney Kelly photographed the place where my family and I stayed

7 in the cave during the war, as well as other families.

8 Q. So did you spend six days in that cave?

9 JUDGE MAY: Six or seven days, it doesn't really matter,

10 Mr. Milosevic.

11 MR. MILOSEVIC: [Interpretation]

12 Q. Why did you stay there for that many days when it was quiet in the

13 village? Why did you stay there?

14 A. We had no peace in our village because of the Serbian police and

15 army, because of your orders. We were forced by the shelling to go and

16 stay in a cave.

17 Q. And when did that shelling take place? Do you remember the date?

18 A. In 1998.

19 Q. So you're saying that you spent time in the cave in 1998, not in

20 1999; isn't that right?

21 A. Starting from 1998.

22 Q. So you were in the cave in early 1998; is that right?

23 A. I said before.

24 Q. So you were in the cave in early 1998 because the Serbs shelled

25 your village; is that right?

Page 5915

1 JUDGE MAY: She did not say early 1998. She merely said starting

2 in 1998. There's a distinction.

3 Can you help us as to when, roughly, in 1998 it was, what time of

4 year?

5 THE WITNESS: [Interpretation] Yes, I can tell you, Your Honour.

6 It was in 1998. I can't remember the exact date, but we were in that cave

7 when the Serbian army and the police were shelling from the Cesta Hill and

8 from Geshtenja. We weren't safe staying in the village and were forced to

9 take shelter somewhere quieter.

10 JUDGE MAY: Can you help us as to what time of year it was? Not

11 the exact date, but roughly.

12 THE WITNESS: [Interpretation] When -- when the village was burned

13 on the 23rd of August, 1998. It was a Sunday.

14 JUDGE MAY: Thank you. Yes, Mr. Milosevic.

15 MR. MILOSEVIC: [Interpretation]

16 Q. What village are you talking about now, please?

17 A. I'm talking about the village of Recak and also where we went to

18 near Lozhak, in the hills.

19 Q. So you claim that the village of Racak was set fire to in 1998.

20 Is that it?

21 A. On 23rd of August, 1998.

22 THE ACCUSED: [Interpretation] Mr. May, I don't understand the

23 difference between starting with -- starting from 1998 or from the

24 beginning of 1998. It would seem to me that this was the same in

25 determining -- in terms of determining the time. Now, I'm going to ask

Page 5916

1 the witness now how can August be the beginning of 1998.

2 JUDGE MAY: No. I take "starting in 1998" is beginning then, that

3 it was beginning in 1998 that they were in the cave rather than at the

4 beginning of 1998. Now, I think she's clarified it, as far as possible,

5 the time they were in the cave. Shall we move on to something else now?

6 THE ACCUSED: [Interpretation] All right.

7 MR. MILOSEVIC: [Interpretation]

8 Q. So according to you, the village was set fire to in August 1998;

9 right? Is that right or is it not? Just say yes or no.

10 A. On the 23rd of August, 1998 - it was a Sunday - when our village

11 was burnt.

12 Q. And was it built up again by 1999? The village, I mean.

13 A. After the war was over.

14 Q. Well, did the village exist at the beginning of 1999? Because you

15 say it was set fire to in 1998.

16 A. When the Serbian police and army burnt the village on your

17 orders.

18 Q. I'm not asking you that. You say that the village was burnt in

19 August 1998. What I'm asking you is that it didn't exist until after the

20 war. That's what you said a moment ago.

21 A. Your Honour, I don't understand. It's not clear to me what he's

22 saying.

23 JUDGE MAY: How much of the village was burnt in August 1998?

24 THE WITNESS: [Interpretation] I said then approximately -- I can't

25 say. It might be 56 houses or might -- or it might be more. I don't

Page 5917

1 know.

2 JUDGE MAY: But it wasn't the whole village; is that right?

3 THE WITNESS: [Interpretation] Half the village was burnt. It

4 might have been more, but I didn't really know. I'm not really sure.

5 MR. MILOSEVIC: [Interpretation]

6 Q. You're talking about the village of Racak, aren't you?

7 A. That's right.

8 Q. That means that up until 1999, more than half the village had been

9 burnt. That's what you claim; right?

10 A. I said. I don't need to repeat it.

11 Q. All right. We've already taken note of that. But at the time,

12 then, in August, as you say, when the village was burnt and you fled to

13 the cave, you go on to say that you became ill from all the damp and cold.

14 And then you say that during the night, you would make sure that your

15 family was okay and then that you would be happy. So you would make sure

16 that your family was all right at night. You would go there to see that

17 they were all right at night.

18 A. My family and I stayed there a week, but we went home every now

19 and then to fetch food, because we had nowhere to get bread in the hills.

20 And my two brothers were ill from the cold, from staying in the cave. It

21 was like in a fridge. I said before that's how it was. Not even wild

22 animals could live there let alone children.

23 I have photographs. I stayed in that cave with my family.

24 Q. And tell me, how come it was that cold in the month of August?

25 Was that some exceptional thing?

Page 5918

1 A. That cave is in the hills. It is deep inside, and it's cold.

2 Q. As you say that at night you would make sure that your family was

3 okay and that then you would be happy, which is logical, you would be

4 happy to see that, does that mean that during the day you were not with

5 your family?

6 A. I was with my family all the time. Sometimes I went home to fetch

7 food. And I was not happy, because it was cold in there where we were

8 staying. It was very cold indeed. We went there because of your

9 shelling. We didn't go there because we wanted to. The Serbian police

10 and army, your police and army, forced me -- forced us to go to that cave.

11 We fled from the shelling.

12 Q. All right. When, then, did you go back home from the cave? Give

13 me a date. So you went on the 23rd of August, on a Sunday when the

14 village was burnt, as you claim. Now, when did you go home, get back

15 home?

16 A. I don't remember the date. I'm not sure when we went back,

17 because we went back for a week and then we went back to Lozhak. We were

18 never safe to stay in the village because the Serbian police and army were

19 on the Cesta hills by Geshtenja, and they were firing. We were never

20 safe.

21 Q. I apologise. I'm reading from the transcript because I can't hear

22 the interpretation. It's very weak today, the volume on the speaker.

23 All right. So does that mean that you didn't go home or you did

24 go home after a certain amount of time had gone by? And if so, when did

25 you go home?

Page 5919

1 A. I don't remember the date.

2 Q. Well, do you at least know approximately, roughly how long you

3 were away from home; a week, two weeks, a month, a year? How long did you

4 spend away from home?

5 A. From 1998, we were never safe staying at home because of the

6 police and army. Because of the Serbian police and army, on your orders,

7 they were firing non-stop at the village of Recak from the Cesta hills.

8 And we had to go to the hills and other places to find some sort of

9 safety. Because the Serbian police and army, if they found us in the

10 village, they would massacre as -- they would massacre us as they did on

11 15th of January, because 42 people were killed, and we can say what they

12 did in the village of Recak on the 15th of January.

13 This is the truth, Your Honour.

14 JUDGE MAY: Mr. Milosevic, you've now had the 20 minutes allotted

15 to you for this examination.

16 THE ACCUSED: [Interpretation] How much more time do I have?

17 JUDGE MAY: You've had the 20 minutes allotted. You can ask one

18 more question, if you want.

19 THE ACCUSED: [Interpretation] All right. Well, this isn't news to

20 me.

21 MR. MILOSEVIC: [Interpretation]

22 Q. On page 13, you have a list of people who were killed in Racak on

23 the 15th of January. Do you know that the names that you gave do not

24 correspond to the minutes about the identification that was conducted? Do

25 you know that the names that you gave, which I'm going to quote now.

Page 5920

1 Muhamet Imeri, Kadri Syla, Arif Syla, Fahida Syla, Banush Azemi, Ahmet

2 Zenuni, Muhamet last name unknown, Shaq Berisha, Njazi Imeri, et cetera?

3 JUDGE MAY: We can read this ourselves in the statement. The

4 question -- the question is -- just a moment.

5 The question is related to the minutes of the investigation. How

6 did you -- how did you make up this particular list? Do you remember the

7 list which you made in your statement?

8 THE WITNESS: [Interpretation] Your Honour, could you repeat the

9 question, please?

10 JUDGE MAY: Yes. You listed in your statement a number of people

11 who were killed in Recak.

12 THE WITNESS: [Interpretation] Your Honour, if you allow me, I can

13 give the names of the people who were massacred. Forty-two people in the

14 village of Recak on the 15th of January.

15 JUDGE MAY: Yes. You've given the names and they appear in the

16 statement. The question is: How did you know the names? How did you

17 come to make up the list?

18 THE WITNESS: [Interpretation] On the 16th of January, I went to

19 the hills myself and saw them. Some of them I saw myself. But because of

20 the grief, I couldn't identify them all. They were mutilated.

21 JUDGE MAY: Very well. I'm going to call this to a halt.

22 Mr. Tapuskovic, have you got questions for this witness?

23 THE ACCUSED: [Interpretation] May I just complete my question,

24 please?

25 JUDGE MAY: Very well, but this is the very last question. You

Page 5921

1 can ask it.

2 MR. MILOSEVIC: [Interpretation]

3 Q. How do you explain the fact that your statement differs with

4 respect to 15 persons from that which was established?

5 A. There are no -- there is no difference. If the accused wishes, I

6 can give their names. On the 15th of January, 42 people were massacred.

7 Allow me, Your Honour.

8 JUDGE MAY: No. You've given the answer.

9 Mr. Tapuskovic.

10 MR. TAPUSKOVIC: [Interpretation] Your Honours, I just have one

11 area to cover, and I should like to draw your attention to the following:

12 It is page 14, and the last two paragraphs of the English version of the

13 second statement.

14 Questioned by Mr. Tapuskovic:

15 Q. [Interpretation] Ms. Drita, your father, later on, did he tell you

16 that the men were ordered to walk towards Bebushit hill, and if so, when?

17 My question is, actually, when?

18 A. This was on the 15th of January.

19 Q. Did he tell you then that they had moved off there, headed in that

20 direction without a police or army escort?

21 A. The Serb police was in ambush, was waiting for them. And the

22 people didn't go in that direction because they could have been massacred

23 like all the others. They went in different directions. They separated.

24 They didn't go in that direction which the police said they should go,

25 which the Serb police said they should go.

Page 5922

1 Hiding behind a wall, the Serb police were there.

2 Q. Therefore, all of them avoided the massacre, as you say here, that

3 perhaps they survived the massacre in this way, that they managed to save

4 their lives in that way, as you say.

5 A. The Serb police and army told the men to go up towards Bebushit

6 hill. And so they set off in that direction, but they were lucky because

7 there was a turn-off there, and they went in different directions. They

8 hid in the ravines for five or six hours, I don't know how long, and then

9 we were saved. They survived. Because the police, Serb, and army were up

10 on the hill, waiting for them. But fortunately, they survived. That is

11 the truth.

12 That is the truth, Your Honours.

13 Q. How many of them were there who were saved in that way?

14 A. I don't remember how many there were.

15 MR. TAPUSKOVIC: [Interpretation] And I should also like, Your

16 Honours, in this connection, to ask the following question, one more

17 question for Ms. Drita. And this refers to page 7. The end of the

18 paragraph on page 7, the end of the last paragraph in the English

19 version.

20 Q. In which you state, but it's not quite clear, that some members of

21 the KLA from Racak were active in other villages as well and that in this

22 way -- that that's how it functioned. That's how it went. That's how it

23 was done. Is that right?

24 A. I don't really understand your question.

25 Q. All right. I won't insist. But I'm interested in knowing, Ms.

Page 5923

1 Drita, the following: You say on the hill Kodra e Bebushit, which is the

2 place where the massacre occurred, there were KLA soldiers there. That's

3 what you state.

4 A. On Bebushit hill, there was a massacre on the 15th. When the

5 massacre took place, I didn't see any KLA soldiers at all. There were

6 only civilians there.

7 JUDGE KWON: I would like to assist the people here. If the

8 witness could be given an Albanian translation, Albanian version. This

9 seems to be page K0217209 and 10.

10 Ms. Emini, do you remember your answers to the question as to

11 whether your father helped to dig the trenches which are on the hill? You

12 said you don't know or whether you were not there at the time. So could

13 you find the paragraph dealing with that? It's bottom of the page, front

14 page, and it continues to the next page. I will quote: "On the hill,

15 Kodra e Bebushit, which is the place where the massacre occurred, there

16 were KLA soldiers there. They had trenches on the hill where they

17 observed the activity in the village and on the other hills. The

18 villagers helped to dig the trenches for the KLA two or three months

19 before the massacre. I don't know how many KLAs were in the hills. They

20 worked during the night, so I could not see them. My father and brother

21 helped dig the trenches."

22 You wrote like this in your statement. Is it right or not?

23 THE WITNESS: [Interpretation] Yes, Your Honour. I maybe helped my

24 father, but I didn't see exactly what they were doing. I may have helped

25 him but I didn't see exactly what they were doing. Perhaps they were

Page 5924












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 5925

1 helping the army, but I didn't see. I wasn't there. I do not know

2 exactly what they were doing up there.

3 JUDGE KWON: Thank you.

4 MR. TAPUSKOVIC: [Interpretation] Judge Kwon, that was precisely

5 what I wanted to read out. Thank you very much. I have no further

6 questions.

7 JUDGE MAY: Any re-examination?

8 MR. RYNEVELD: Just on that point, if I may.

9 Re-examined by Mr. Ryneveld:

10 Q. Ms. Emini, in order to give that information to the investigators

11 of the ICTY and confirm it in your statement, if you didn't see that, is

12 that what you were told that happened? Did someone tell you that that's

13 what they were doing?

14 A. I just heard about it. And my father told me that we have to help

15 the army.

16 Q. Thank you, Ms. Emini.

17 JUDGE MAY: That concludes your evidence, Ms. Emini. Thank you

18 for coming to the Tribunal to give it. You are free to go.

19 THE WITNESS: [Interpretation] Thank you very much for the

20 invitation, Your Honours. Everything I told you was the truth.

21 [The witness withdrew]

22 JUDGE MAY: Yes.

23 MR. NICE: Your Honour, I think I was going to turn to the issues

24 concerning the witness Barney Kelly next. When we parted a couple of days

25 ago for want of more time, I distributed some law that I wanted to refer

Page 5926

1 to and I had a few more points to make.


3 MR. NICE: So far as the law is concerned, I don't know if the

4 Chamber has had an opportunity to consider the matters I handed in.

5 JUDGE MAY: We have, yes.

6 MR. NICE: For the record, and indeed when the usher's around I

7 can even put it on the overhead projector, and in addition to other

8 authorities with which I think the Chamber is familiar -- overhead

9 projector, please. I was able to, with the assistance of Mr. Guariglia in

10 particular, not surprisingly, I was able to draw to your attention a

11 report from the Juntas trial which -- and dealing with the passages on the

12 first sheet in reverse order, shows first how a commission report which

13 preceded the trial proper, the CONADEP report, which we can see from the

14 bottom of that page was admitted, and in the judgement of the Appeal

15 Chamber, which was actually the Trial Chamber, the admissibility of that

16 commission's report was dealt with in this way: "The information contained

17 in the reports drafted by members of CONADEP on the basis of statements

18 made by victims ... do not amount to testimonial evidence, because those

19 statements do not meet the requirements established by military law for

20 the declaration of witnesses. It is therefore unnecessary to the oath

21 required by law [...]. However, the fact that these statements were not

22 made under oath does not deprive them of their value as evidence, nor does

23 the law prohibit their consideration. If appropriately introduced

24 evidence [...], the influence of those statements in the outcome of the

25 case, its potential for creating a sense of certainty in the trier of the

Page 5927

1 fact, will depend on a careful weighing of these statements within an

2 entire set of factors of different and diverse natures. Furthermore, it

3 should be pointed out that the Court is not going to consider a fact as

4 proven on the exclusive basis of the evidence furnished by the CONADEP..."

5 That of course, entirely fits with the proposition I've been

6 advancing generally, proposition two of my three, that the sort of

7 material that may be produced by witnesses such as Mr. Kelly can provide

8 certainty, or indeed can show reason for doubt, which is why it is so

9 valuable.

10 JUDGE ROBINSON: Mr. Nice, there is a big difference, as I see it,

11 between the CONADEP report and Mr. Kelly's report. The CONADEP report

12 actually contains statements from witnesses, whereas all that Mr. Kelly

13 does is to give a summary of what the witnesses told him. There are no

14 statements as such.

15 MR. NICE: But, Your Honour, the statements are there for

16 production and reading and indeed we would urge the Chamber to take all

17 the material, if it had the time to do so, and to pursue the course that

18 other Chambers in this Tribunal are doing which is of reading these

19 statements. The summary is there as a guide, and of course any of those

20 statements can be called up and referred to. So in our respectful

21 submission, there is no distinction.

22 It is not, of course, the very short statement that we're really

23 relying on. It's the longer report and, footnoted as it is to the

24 statements, they can all be produced.

25 On the top half of the same page, which is a part of the judgement

Page 5928

1 of the Appeals Chamber itself rejects an objection against the admission

2 into evidence of the preliminary investigation dossier. I'm reading from

3 the paragraph now from the parentheses at the bottom: Rejecting an

4 objection against the admission into evidence of the preliminary

5 investigation dossier containing statements of numerous witnesses based on

6 lack of adequate opportunity for cross-examination, and it sets out above

7 how the reasoning of the Court went.

8 So that's again very similar.

9 I've drawn to your attention, and I can now deal with this in

10 summary, that in Dutch criminal proceedings - and that's over the page but

11 we needn't look at it on the overhead projector - officers' reports

12 constituting effectively expert evidence may be admitted and how, under

13 Spanish law, the -- there is a general provision, third line down --

14 fourth line down on the second sheet before Your Honours, that a court is

15 entitled to admit as evidence and examine a police report in toto,

16 including documents contained therein.

17 I've drawn your attention to passages in the Rutaganda and

18 Bagilishema cases, and I hope that they will be of assistance. And the

19 Chamber knows that summarising witnesses have appeared before Chambers

20 here in the Jelisic case in particular and the Krstic case, giving

21 summaries of material contained in the statements of witnesses.

22 Can I turn from that brief addition to the law before you to make

23 just a few more points?

24 His Honour Judge May raised as a proposition for consideration

25 that there was a difference between what Mr. Kelly was doing in his

Page 5929

1 summary and what was being done, for example, in the OSCE's exhibited

2 document As Seen As Told, or indeed, in the Human Rights Watch document

3 Under Orders. Incidentally, both documents which don't themselves produce

4 the whole statements of the witnesses to whom on which they're built but

5 refer to them in the way that Mr. Kelly has done.

6 And I think Your Honour raised this possibility, and I'm afraid I

7 haven't been able to draw up the precise words on the transcript, but

8 there was a difference because the investigators were in some way a party

9 to the litigation and that would distinguish the position. I fear I must

10 reject that proposition completely and make the following points: The

11 investigators of this Tribunal, appointed under the same process that

12 appointed the Registrar, I think Judges, the Prosecutor herself, and the

13 lawyers, are professional men doing a professional job. And absent good

14 cause, there is no more reason to impugn their work --

15 JUDGE MAY: It's not a question of impugning them, Mr. Nice, or

16 questioning their professionalism. Of course not. But the fact is they

17 are a part of your team. It would be something like one of your lawyers

18 going off and summarising some evidence. I don't see the distinction.

19 There is -- there is no aspersion to be cast on them, but it's a question

20 of the evidence being collected for a purpose by an employee of the

21 Prosecutor, and one which, in the case of the OSCE, is not being produced

22 for any particular purpose but simply as a report on events. It seems to

23 me that there's a distinction between the two.

24 MR. NICE: Well, Your Honour, I'm grateful for that clarification.

25 Of course, the parties to the litigation, if there are parties to the

Page 5930

1 litigation, are not the officers but the Prosecutor herself and/or the

2 lead lawyers, and the Court should know that of course the conventional

3 boundaries between what lawyers do and what policemen do in certain

4 countries are simply not reflected here. There's a much greater merging

5 of roles, and the integrity of one is probably the integrity of all.

6 And it seems to us, with respect, that the position of the

7 statements taken by these investigators matches entirely, for example,

8 what we see where the Spanish law permits in the dossier, or other

9 countries do. Other countries, of course, with the civil tradition where

10 I think the proximity of the Prosecutor to the Bench is closer and more

11 readily understood. But certainly there is no reason whatsoever evidenced

12 or guessed at for doubting the independence and integrity of the work of

13 the investigators in the same way there is no reason to doubt the

14 independence and integrity of the Prosecutor herself or those of us who

15 conduct these cases. And accordingly, the material that those

16 investigators produce, statements, are entirely as acceptable, in our

17 submission, or should be, as statements taken by non-professionals --

18 JUDGE MAY: Why don't you go into the witness box and make the --

19 make the same statements? No one is going to question your integrity, but

20 it's your case that's being produced. And it doesn't seem to me to have

21 any probative value.

22 MR. NICE: Your Honour, I'm entirely -- I'm afraid I can't follow

23 that point. Here there are investigators. They take statements on

24 behalf, frankly, of this court. They take them independently and with

25 integrity, and they present them. And let's just see exactly how valuable

Page 5931

1 they are. There's a sort of -- I see the accused is amused.

2 The underlying proposition must be, from Your Honour's

3 observations of a couple of days ago, that there is somehow less integrity

4 or something less satisfactory about statements taken by these witnesses

5 and statements taken by human rights workers for different organisations.

6 Well, now, however masked the underlying proposition must be that

7 there's something -- or there's potential for wrongdoing by the

8 investigators - I suppose in the ultimate analysis that somebody is not

9 telling the truth, there's been quite a lot of evidence in this trial

10 already that people aren't telling the truth. Everybody's observed that

11 the early Albanian witnesses seemed rather shy about acknowledging the

12 presence of the KLA. Maybe it's going to go on. Maybe it's

13 understandable. It certainly doesn't invalidate the rest of their

14 evidence. And where is found the material to show that they may not have

15 been telling the truth? Why, it's to be found in the statements taken by

16 the investigators time and again. That's where integrity has been found,

17 and so far there hasn't been any sustainable allegation -- we are not even

18 aware of any allegation of lack of integrity in those statements. So

19 that --

20 JUDGE KWON: May I? But, Mr. Nice, what is important is that we

21 have to do the right things, or just things. But also what is important

22 is that what we are doing should be seen or appear to others or to third

23 parties to be just. We do not at all doubt the integrity of the

24 investigators, but they are part of your -- the Prosecutor's team, and

25 simply the third parties will not see them as an independent from the

Page 5932

1 Prosecutor. That's the one issue.

2 So take -- so to speak for myself, the Chamber is not against

3 accepting any hearsay or summarising witnesses. Take Fred Abrahams. He

4 is a man from Human Rights Watch who made some intensive interviews with a

5 lot of victims. So what we rejected with regarding to his evidence is

6 only the redaction of the identities of the source of information. But to

7 speak for myself, we are ready to accept him. But this Mr. Barney Kelly

8 is quite different. He is a part of the Prosecution's team. That's the

9 only reason we are thinking of.

10 MR. NICE: I'm helped again to know how the thinking of the

11 Chamber is taking shape. I would not necessarily accept at all that the

12 wider audience would regard it as surprising for a Chamber to accept

13 statements taken conscientiously by investigators. I think a wider

14 audience might regard it as surprising that a Chamber would be prepared to

15 operate on a very limited sampling of material and not even consider, for

16 the three quite carefully defined purposes I proposed, the available body

17 of written and signed statements of people who have been willing to be

18 witnesses in this case.

19 JUDGE MAY: What we're ruling on is the probative value of a

20 summary of evidence made by a member of the staff of the Office of the

21 Prosecutor. We do not for a moment question his integrity or his

22 professionalism. None of that. That's not the point.

23 The point is: What is the probative value of a summary which is

24 little more than an outline of the Prosecution case? I revert to the

25 point: It is of no more probative value than the statements which you

Page 5933

1 make - or counsel makes, not to personalise it - from his or her place.

2 It's merely a summary of the Prosecution case, and of course, this witness

3 goes further and produces the conclusions.

4 Now, it may be that if in due course you're going to invite us to

5 look at the statements, it may be that we would have to consider that.

6 That's a different proposition. At the moment, what we're concerned with

7 is looking at the statement of Mr. Kelly.

8 MR. NICE: Of course, the particular conclusions are not what I've

9 ever been particularly aiming to have. I'm much more concerned not to

10 have, as Your Honour characterises it, a summary of our case but a

11 synthesis of the material, which is what he provides and indeed is pretty

12 much what the other documents that we've been considering, the independent

13 documents, as the Court would perhaps characterise them, provide. But if

14 one looks at Mr. Kelly's document when he synthesises and to that degree

15 summarises what is said, he advances particular propositions, footnotes

16 the witness or number of witnesses who sustain that proposition, and moves

17 on to the next part of the narrative. But it's not in any sense our case,

18 it's simply a summary or analysis of what the witness statements say.

19 Now, if the Court is disposed to take all the witness statements

20 and to read them, which it hasn't been willing to do so far --

21 JUDGE MAY: No, we haven't.

22 MR. NICE: -- then an entirely different position arises because

23 we will then be in a position, and basically it will be almost certainly

24 Mr. Kelly in the case of Racak because he's the chap who knows most about

25 it, but we would be then in the position, given adequate, given adequate

Page 5934

1 resources, to summarise what the witness statements say, advance them with

2 the witness statements to the Court, and then they can be all subject to

3 challenge in exactly the same way as Mr. Kelly's would have been. So that

4 if the Court is prepared to take witness statements and read them all -

5 and there are a very large number of them, 60 for Racak - then to that

6 extent, the problem would be overcome.

7 Can I just make my last few points and then I'll close? It's an

8 important point, though. I've dealt with the fact that in fact this sort

9 of material is valuable because it shows lies, or untruths, shall we say.

10 The statements are probably -- the underlying statements are taken by

11 professionals. They are longer and more detailed typically, we were told,

12 than the statements taken for As Seen As Told, and I hope the Court will

13 remember that the third of my points of the value of this sort of material

14 is that it provides the Court with a ready reckonor of where to go when

15 the Court's concerned that it needs more evidence. I noticed this

16 morning, because I was following the proceedings elsewhere, the Court was

17 interested to know perhaps where it could find out a bit more from

18 verifiers. It may not be dealt with in this report but that's the sort of

19 issue that will occur to the Court and the Court will need to know where

20 to look for it.

21 Summarised, analysed, synthesised material, however you describe

22 it, of this kind is invaluable to it and that's always been one of the

23 reasons I've advanced as to why this will help.

24 Of course its principal, or one of its principal values in a trial

25 like this is that it's going to save time. When we listed witnesses down,

Page 5935

1 as you've heard in the case of Racak, from the 30 to 20 to 12 to 9 to five

2 and then from five to one live and the other four to be fully subject to

3 the provisions of 92 bis, it was on the basis that the Chamber could be

4 provided with some other material, the summarising material, that would

5 enable you to have a complete view of what other material would suggest,

6 to fit in the limited amounts of live evidence material you could have.

7 Now, if there is no other way of getting the full material before

8 you, as the witness explained and as is probably now absolutely clear, on

9 five witnesses with this number of scenes and with this number of issues

10 that the accused is raising, it simply wouldn't be possible to form a

11 comprehensive view and to give a comprehensive view in judgement of what

12 happened in Racak because you simply won't have evidence for the largest

13 number of scenes. You won't be able to deal with the order of events it

14 may be. We will have to review the evidence at the end of exercise, but

15 that's a concern.

16 And we're coming to the two other indictments which, of course,

17 are larger, each of them, probably in scale and we've got, for example,

18 Vukovar or Dubrovnik, and I've asked my learned friend Ms. Uertz-Retzlaff,

19 how many is the minimum number of live witnesses that would be required to

20 give broadly comprehensive accounts of those events.

21 JUDGE MAY: This is -- this brings us to the heart of the problem.

22 What you are setting out to do is to prove a case in detail. This is

23 essentially a command responsibility case. I use that term generally.

24 But you are setting out to prove extremely detailed events and a large

25 number of them.

Page 5936

1 Now, clearly there's a limit to the amount of evidence which the

2 Prosecution can bring or the Trial Chamber can receive. There is a finite

3 amount, as you yourself accept. And this is very much at the heart of the

4 difficulty of this case.


6 MR. NICE: I entirely agree.

7 JUDGE ROBINSON: Can I just say that I entirely agree with Judge

8 May that that is really at the heart of this issue. It's the scope of the

9 Prosecution case.

10 I think if any lesson is to be learned from the experience of this

11 Tribunal - and I hope the International Criminal Court will learn it - is

12 that there will have to be a limit to the evidence that is led in cases

13 of this kind involving mass violations of international human rights law.

14 You may indict as much as you wish, but there will have to be a limit as

15 to the evidence that is actually led in court. Otherwise, courts will not

16 finish. The prestige of tribunals of this kind will be at risk, because

17 we will not get through the work.

18 Now, to get back to the particular issue. The remarks that I made

19 earlier were really within the context of Barney Kelly's report, which is

20 a summary of what he heard from witnesses. There are no statements

21 attached to it. And I pointed to that as a distinction between his report

22 and the report in the Argentina Juntas case.

23 Now, you say the individual witness statements are there for us to

24 read, and there are many; 60. It may be that -- and I'm speaking for

25 myself -- it may be that we could look at those statements which relate to

Page 5937

1 the incidents covered by the five witnesses, and one may be able to -- to

2 assess whether they corroborate -- they are potentially corroborative, but

3 I don't insist on the word "corroborative." I would just put it no higher

4 than to say we might be able to look at those statements which relate to

5 the same incidents because they may be relevant to it.

6 But as for the other statements which do not relate to the five

7 live witnesses, I would tend to the view that there wouldn't be any

8 possibility of admitting them. That would clearly fall within the -- the

9 bounds of what this Chamber held in the Tulica decision. But so much of

10 the statements as relate to the five live witnesses' evidence, we may be

11 able to look at that and to see to what extent those could be admitted.

12 I'm speaking for myself. But again, I stress that at the heart of

13 the issue, really, is the scope of the Prosecution's case. And the lesson

14 to be learned, I see, from this Tribunal's experience is that not every

15 case of admittedly serious violations of international humanitarian law

16 can be prosecuted. Otherwise, we'll never finish our work.

17 MR. NICE: If I may deal just with the last two observations and

18 one more point, I'm done. I agree with the underlying principle of both

19 Your Honours' observations, although I respectfully differ from His Honour

20 Judge Robinson's last propositions.

21 It is precisely because -- no. Start at the beginning.

22 These are very grave allegations involving massive criminal

23 activity over a wide geography and a large period of time. That is the

24 allegation, and of course, it cannot be cut down so as to be

25 unrecognisable. It can be dealt with, of course, by a proper sampling of

Page 5938












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Page 5939

1 events, providing one can show that they are truly a sample and that one

2 could can prove matters of widespread or systematic, as appropriate.

3 As I said on an earlier occasion addressing timetable issues to

4 this Court, there may be a difference between the Chamber and the Office

5 of the Prosecutor as to what is a sufficient sample, but on any reckoning,

6 you can't go from one or two selected incidents and simply assume, in the

7 absence of concessions or agreement by an accused, that this has been

8 happening on a widespread basis and over a wide geographical area. It

9 can't be done. You have to have, in some way or another, a reasonably

10 sufficient sample. And if it isn't reasonably sufficient, then the

11 Prosecutor might simply not be able, in all conscience, to argue the case

12 that has been indicted and confirmed. And it was with that in mind that

13 our approach was, and we would respectfully say correctly was, to make a

14 selection, which we did, to select further within each allegation being

15 made one or two live witnesses, hoping to have the balance taken fully

16 under the provisions of 92 bis. Of course they're now not fully under 92

17 bis because cross-examination is allowed, with consequences on the

18 timetable. That was our plan. And then to enable the Chamber to see how

19 those allegations fit within the overall narrative for the area and the

20 overall narrative for the wider geographical area by providing summarising

21 witnesses who could quite literally set the scene. But without somebody

22 setting the scene, it will be guesswork or a leap of faith. And Racak, as

23 I said, is the paradigm example. All these different areas where things

24 have undoubtedly happened and with our witnesses, five, which is probably

25 as many as we can possibly justifiably call, given the time constraints,

Page 5940

1 we're only able to cover three of them or four of them. That was our

2 problem and that was our resolution.

3 And my last point, if I can make it, as I can see Your Honour

4 wants me to draw to a close, as do I, where we turn to, for example,

5 Vukovar or Dubrovnik, which as I say, Ms. Uertz-Retzlaff has looked into

6 and suggests would each take 20 plus or 25 plus witnesses, there is no

7 guarantee - I haven't yet investigated it - that there will be, as His

8 Honour Judge Kwon perhaps was describing it, independent documentation of

9 the kind against which the live evidence can be checked. There may be.

10 In some cases, there may not. So if in those cases, Vukovar or Dubrovnik

11 or Sarajevo, we're down to one, two, three live witnesses because there's

12 no provision for setting the scene, how will it be possible, with the best

13 will in the world, for us to offer argument that is comprehensive in its

14 scope and for the Chamber to return judgements that are comprehensive in

15 scope? That's our concern.

16 JUDGE MAY: Thank you. We will adjourn now. Twenty minutes.

17 --- Recess taken at 12.21 p.m.

18 --- On resuming at 12.42 p.m.

19 JUDGE MAY: Mr. Kay, I don't think we need trouble you on this

20 particular issue.

21 The Trial Chamber has considered the submissions made by the

22 Prosecution before the adjournment. They do not affect the ruling which

23 we are about to give. It should be stressed that the ruling is on the

24 narrow issue as to whether we accept the statement and report of

25 Mr. Kelly. It does not concern the rather wider issues which were also

Page 5941

1 canvassed during argument before the adjournment.

2 Analysis of the evidence given, or proposed to be given, shows it

3 to be a compilation of material about the Racak incident, including the

4 witness's summary of the evidence contained in a great many witness

5 statements and documents and his conclusions upon the evidence.

6 The Trial Chamber has earlier ruled that such evidence is not

7 admissible.

8 This related to evidence which it was proposed should be given by

9 Kevin Curtis, which the Trial Chamber excluded, characterising it as the

10 evidence of an investigator who had read a great many statements and come

11 to various conclusions. The Trial Chamber excluded the evidence on the

12 ground that it was hearsay evidence of no probative value, which amounted

13 to no more than a repetition of the Prosecution case. This is in the

14 transcript at pages 672 to 673.

15 I would add that the Chamber was following its own decision in

16 Kordic and Cerkez, the Tulica decision of the 29th of July, 1999, and the

17 Chamber subsequently excluded similar evidence in this case, that is a

18 report of an OTP investigator, John Zdrilic, from the Bela Crkva binder,

19 transcript page 3499.

20 A further reason may be given for excluding this type of evidence,

21 at least in relation to the conclusions of the witnesses. That is that

22 for a witness to give his or her conclusions upon the evidence is to

23 trespass on the function of the Trial Chamber. It is for the Trial

24 Chamber to decide which evidence to accept and which to reject and what

25 conclusions to draw from the evidence. Therefore, any evidence which

Page 5942

1 trespasses on those functions is normally to be excluded.

2 Mr. Nice now submits that we should reconsider these earlier

3 decisions and admit at least those parts of the statement where the

4 investigator summarises the evidence. He points out that this relates to

5 a significant incident in the case about which the field of evidence was

6 too large to be considered in the time available but which could not be

7 dealt with properly by a limited number of witnesses. Therefore, the

8 investigator's summary would have some probative value which the Chamber

9 could determine.

10 Next, he relies on the OSCE report which has been admitted in this

11 case, Exhibit 106, which refers in the summary and in the section on

12 Stimlje to findings about this incident based on interviews with

13 witnesses. This, he said, provides a parallel for the admission of the

14 investigator's statement. He also relies on principles from the Argentine

15 Juntas trial for which extracts have been provided from the Human Rights

16 Law Journal, Volume 8.

17 In that trial, objections were rejected relating to the admission

18 into evidence of the investigation dossier and the report of the

19 Commission on Enforced Disappearances. Both of these contain the

20 statements of numerous witnesses, but it was pointed out that the Defence

21 had access to all documents and could call evidence to rebut them and that

22 the trier of fact would have to decide with care what weight to give to

23 them.

24 We were also referred to provisions of the criminal procedure of

25 the Netherlands and Spain, which allow for the use of investigators' and

Page 5943

1 police reports in evidence. However, these procedures, it must be noted,

2 take a different form to the essentially adversarial proceedings in this

3 Tribunal.

4 Dealing, then, with the submissions of the Prosecution, first the

5 OSCE report. There is a crucial difference, in the view of the Trial

6 Chamber, despite the arguments advanced this morning by Mr. Nice, between

7 that report and the investigator's report; namely that the OSCE report was

8 produced by a body independent of the parties in the case. On the other

9 hand, the investigator's report, in the view of the Trial Chamber, does

10 not have that quality of independence since it was prepared for the very

11 litigation with which we are dealing. As was pointed out in argument, it

12 is as though counsel or a lawyer for the Prosecution had summarised the

13 statements in the form of a case and put them to the Trial Chamber.

14 Therefore, the OSCE report is not a precedent for the admission of

15 this evidence. Likewise, the Spanish and Dutch procedure cannot be relied

16 on.

17 The same cannot be said of the dossier and report admitted in the

18 Argentine Juntas trial. However, the dossier appears to have contained

19 the statements of the witnesses and, therefore, involved a different

20 procedure to that contemplated here while the report appears to have been

21 more akin to the OSCE report.

22 In any event, we are not persuaded by these arguments that we

23 should depart from the previous rulings of the Trial Chamber or the

24 reasoning set out in them. We accept that the incident at Racak was a

25 significant incident. We are also conscious of the constraints placed

Page 5944

1 upon the Prosecution by the limitation of time, but some limitation is

2 inevitable since this incident is not being considered in isolation but as

3 one among a great many which make up the subject matter of this trial.

4 In these circumstances, we think it not unreasonable for the

5 Prosecution to rely upon five witnesses, together with others, who deal

6 with the incident in their evidence. Should significant issues be raised

7 during the Defence case, it will always be open to the Prosecution to call

8 further evidence in rebuttal, not that we are encouraging this course.

9 It follows that this consideration is not one which leads us to

10 depart from the principles referred to earlier. Accordingly, the evidence

11 will not be admitted. And I add for completeness that reference was made

12 to the fact that similar evidence was admitted in Krstic. However, it

13 appears no challenge was made to the admissibility of the evidence in that

14 case, and we have not been referred to or found a recent decision on the

15 topic from which to derive any assistance.

16 Mr. Nice, that is our ruling. Mr. Kelly has given some but very

17 limited evidence.

18 MR. NICE: Yes. I'm not sure that there's any particular purpose

19 in calling him to give further evidence. He may or may not be

20 cross-examined on what he's given already, of course. I wonder whether he

21 might be able to give some material assistance in relation to photographs,

22 some of which he's taken himself, some of which are photographs he's

23 reviewed of others, but on balance and given the pressures of time, I

24 thought it better probably to leave his evidence where it is so far as

25 evidence in chief is concerned, he always being available to assist with

Page 5945

1 documents that are contained in the Racak binder if the Chamber needs

2 assistance.

3 Therefore, it's a matter whether the accused or the amici wish to

4 cross-examine him that will determine whether he's physically brought back

5 to court. But before he is, may I say, as I indicated several weeks ago,

6 that following this application, if it was ruled against, I would invite

7 the Chamber to make appropriate certification for appeal. I think since

8 then the Rules have been changed slightly. I've just had sight of the new

9 Rule, 73(B) which requires certification before an interlocutory appeal

10 can take place. Certification depends on there being: "An issue that

11 would significantly affect the fair and expeditious conduct of the

12 proceedings or the outcome of the trial and to which, in the opinion of

13 the Trial Chamber, an immediate resolution by the Appeals Chamber may

14 materially advance the proceedings."

15 Your Honour, I would observe first, as Your Honours very recently

16 observed, there simply is no binding -- I beg your pardon. There is no

17 articulated decision, apart from that of this Chamber, on this topic and

18 certainly none from the Appeals Chamber. Accordingly, there is need for

19 such guidance.

20 If the position taken by the Prosecution were to be sustained on

21 appeal, this would have a very significant effect on the conduct of the

22 remaining parts of this trial and of other trials and would have a very

23 significant effect on the time that such trials might take. Equally, if

24 the ruling is definitively against us, that determines in a conclusive way

25 the parameters by which the Prosecution can judge how much evidence it

Page 5946

1 needs to call.

2 If the matter is left unresolved and there are convictions

3 returned which in due course are taken on appeal, there is the problem of

4 the sufficiency of evidence which might arise in relation to one or other

5 part of the case, and the Appeals Chamber might then say, "Well, if it had

6 been possible to take summarising evidence, this problem would have been

7 overcome, but it's now too late."

8 So for all those reasons that I've carefully forecast in advance,

9 we invite you to say this is a case suitable for certification, and if so

10 certified, we will press on an appeal to achieve an early answer on the

11 point.

12 JUDGE MAY: Very well. We'll consider that.

13 MR. NICE: Thank you very much. I'm in the Chamber's and my

14 learned friends' and the accused's hands as to Mr. Kelly, but before the

15 next witness comes and after that there are a couple of administrative

16 things that will save time.

17 JUDGE MAY: Mr. Milosevic, we have excluded the report and

18 statement of Mr. Kelly. He has started to give evidence. He gave some

19 evidence, I think, about the map, and that really was the extent of it.

20 Do you want to ask him any questions about that evidence? Any

21 cross-examination will be limited to that since the report has been

22 excluded.

23 THE ACCUSED: [Interpretation] I should like, first of all, to

24 comment on this issue, the issue as we have seen Mr. Nice devote a whole

25 hour to, because quite obviously there is an effort here, an endeavour on

Page 5947

1 the part of the opposite side to both be the Prosecutor and the witness

2 and to testify himself as to the --

3 JUDGE MAY: I'm going to stop you because we've ruled, and we've

4 ruled against them. So there's no need for particular argument on this

5 topic. We will deal -- we will return to the more general issues in due

6 course.

7 Now, the issue at the moment is whether you want to cross-examine

8 Mr. Kelly or not. Is there anything you want to ask him about his

9 evidence? Not about anything else, just about his evidence, or can we get

10 rid of him?

11 THE ACCUSED: [Interpretation] Please. Is it clear to you that

12 along with all the arguments put forward by you and which are without a

13 doubt justified, that is to say to do away with this kind of testimony,

14 that we are talking about a very malicious activity, because --

15 JUDGE MAY: No. We're not prepared to hear argument along this

16 line. We've ruled on the particular matter.

17 Now, we'll hear more general argument about the case tomorrow.

18 Now, do you want to cross-examine Mr. Kelly or not?

19 THE ACCUSED: [Interpretation] Please. Would you answer one

20 question: As Mr. Kelly is here and as he has drawn maps, on those maps he

21 has denoted various places as being places of crimes. Now, is it his job

22 to -- when he shows something at first sight to be very benign on

23 geographic maps, he uses the maps to qualify things as being crimes,

24 although he cannot be called here to qualify whether something is a crime

25 or not, especially when we are dealing with the clash between the legal

Page 5948

1 police forces with terrorist groups. So he's jumping the gun by

2 qualifying them and saying on the map you have here the site of crime,

3 one, two, three, and four, et cetera.

4 So implicitly, he is wishing to impose to the people sitting here

5 and to the public that it is -- we are dealing with a crime. And I must

6 say that I completely agree with Mr. Nice that it is impossible to prove

7 this false indictment and also that it is impossible to prove and to

8 defend Walker's trick with Racak.

9 JUDGE MAY: We are going from the point. I take it, then, that

10 you don't have any questions you want to ask Mr. Kelly. We have in mind

11 your point that you're -- the point that you're making about the map, of

12 course we have it in mind. It is for us to decide whether these were

13 crimes or not. We have that in mind.

14 THE ACCUSED: [Interpretation] Please. Just one more comment. I

15 have one more objection to make and comment. May I expound it, please?

16 JUDGE MAY: Yes.

17 THE ACCUSED: [Interpretation] And it has to do with the testimony

18 of Fred Abrahams that Mr. Kwon mentioned. I think that the testimony of

19 Mr. Fred Abrahams is even more blatant example of somebody being not

20 suited to testify than the case of Mr. Kelly himself. I don't know

21 whether Mr. Kwon read the statement carefully, but from the statement it

22 emerges without any doubt at all that he too is part of the indictment

23 team, prosecuting team.

24 JUDGE MAY: We'll get to that. We haven't got to Mr. Abrahams

25 yet. I take it there are no questions for Mr. Kelly, he can be released,

Page 5949

1 we'll go on to the next witness.

2 MR. NICE: Yes. I said -- a couple of administrative things that

3 we ought to deal with. First of all, there's the outstanding the

4 newspaper contempt issue, and we really can't let that --

5 JUDGE MAY: We have that in mind.

6 MR. NICE: I don't know if you want me to address you about it any

7 further as to your powers. I handed in a copy of the -- of the order in

8 Blaskic, and of course we are very concerned that if steps aren't taken to

9 impede this sort of action, it may be repeated with the effect, if not the

10 purpose, of dissuading other witnesses from giving evidence. That's our

11 concern.

12 JUDGE ROBINSON: Mr. Nice, yes. I think we are all in agreement

13 it's a very serious matter. Do you have anything in writing, any

14 submissions, rather than making them orally?

15 MR. NICE: No, I don't. And I would say that the only power that

16 we can identify that may lie in the Chamber to cause the editor to come

17 directly to this Chamber, which is what would happen, of course, in a

18 domestic jurisdiction, may lie under 77 -- I beg your pardon. Yes.

19 77(C)(iii) if the Chamber initiates proceedings itself because if it were

20 to do that, then it could summon an individual as part of its own

21 proceedings. The alternative, of course, directing us to investigate

22 matters, will, I think, inevitably bring some delay in that sort of

23 action. And in Blaskic, of course, the order operated as a request to the

24 state to take action and provide information.

25 So that looking through the Rules carefully and trying to find the

Page 5950

1 power other than any inherent power to summon the editor to explain this

2 most flagrant breach would appear to lie and only to lie under 77(C)(iii)

3 if the Chamber initiated proceedings itself. But that's about as far as I

4 can go, in addition to what the Blaskic order itself reveals, as a

5 possible way forward. It appears this has not happened too often in the

6 past or not happened too often in a way that has led to court action in a

7 way that we've been able to track down.

8 So that's that, unless there's anything more you want from me on

9 that.

10 JUDGE ROBINSON: We are looking at the matter very carefully. One

11 has to consider not only the legal issues but also the more pragmatic

12 considerations, and we'll take account of all the submissions that you've

13 made.

14 MR. NICE: Thank you very much.

15 K12, we are working on the basis that he is not a witness who may

16 be subject to the provisions of 92 bis, and he, for reasons known to the

17 Chamber, is timetabled for Monday. I have wondered whether I should try

18 and juggle his appearance, his attendance with another day, but I won't.

19 He'll be a Monday witness for particular reasons. I hope that we may be

20 able to start and even finish Mr. Abrahams tomorrow for reasons to which I

21 will come. I think he can stay until Monday and I'll just have to try and

22 persuade him to stay until Tuesday if necessary.

23 That brings me to Mr. Abrahams. His Honour judge Kwon mentioned

24 this morning one or two historical procedural matters, and in short, I

25 think there's no reason not to make this plain: The first of his two

Page 5951

1 statements has some redactions on it which are clear from heavy black

2 obliterations of text. All that has been obliterated is the names of

3 people who provided him with information. It is appropriate for us to

4 try, first of all, to obtain the permission of those obliterated named

5 people to -- to obtain the permission of those people to name them

6 publicly in this trial. Alternatively, to obtain a waiver from Human

7 Rights Watch in respect of their normal procedures. So far we have been

8 successful in that endeavour in all bar two names. So there only two

9 names of passages of evidence we probably would not wish to call in any

10 event. And so in respect of that statement, even if we don't get the

11 other two consents by people working in the field at this very moment, I'm

12 going to ask that the Chamber will hear the evidence. The second

13 statement was served and we have a receipt to this effect, I think, in

14 February of this year, and it's mostly the second statement we would be

15 relying on, in any event.

16 So that's the position about Mr. Abrahams in case that is helpful

17 advance warning.

18 JUDGE MAY: Is this a 92 bis witness you're asking for?

19 MR. NICE: We had asked for him to be 92 bis'd informally. I've

20 been told probably not but I haven't been given a formal answer.

21 JUDGE MAY: We must look at it; I don't know.

22 MR. NICE: Thank you very much. And can I seek your assistance

23 rather delicately in relation to another topic which could be dealt with

24 ex parte but ex parte hearings are to be avoided wherever possible and, in

25 any event, take time to organise.

Page 5952












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Page 5953

1 There was some reference this morning to Rule 70 witnesses. It

2 may be - and if this is too oblique then I'll have to deal with it in

3 another way, possibly by an ex parte hearing - but it may be that the

4 Chamber would feel able to indicate, in light of its known practice in

5 this or in other cases, whether it would grant the following order in the

6 most general terms to a supplier as -- a Rule 70 supplier of evidence.

7 The request, in the most general terms, would be to this effect: That the

8 representative of the supplying country be present in court. I'll set that

9 on one side but that's part of the request. That the Prosecution's

10 questioning be limited to a detailed outline agreed by the providing

11 government. Again that needn't trouble the Chamber but I set it out for

12 completeness. That the scope of the cross-examination be restricted to

13 the scope of direct examination. But more important, that an order be

14 obtained in advance of testimony to that effect.

15 Now, if the Rule 70 agreement between the Office of the Prosecutor

16 and the provider were in place, the issue is would the Chamber be minded

17 to give advance -- an advance order that those measures would be operative

18 or would it want always to deal with such measures on a case-by-case basis

19 when the witness is in court? The answer to that question might enable me

20 to speed up certain procedures.

21 JUDGE MAY: Very well. We'll consider that matter.

22 Yes. We'll have the next witness, please.

23 MS. ROMANO: Your Honour --

24 THE ACCUSED: [Interpretation] May I make a comment, please? In

25 the statement itself, the statement of Abrahams, it says that on two

Page 5954

1 occasions he was engaged by the Prosecution, by the OTP, in the year 2000

2 and 2001 when, as he himself says in his second statement, he worked on

3 the analysis of the indictment and research with respect to the

4 indictment. That means he was professionally engaged by the Prosecution,

5 by the OTP, to work on that matter. So therefore, he is part of the

6 indictment team, and in that respect, this is even more -- a more obvious

7 example of unsuitability, because he worked with the Prosecution on the

8 indictment. He is somebody who took an active part in the drafting of the

9 indictment itself and also then went on to do work on its analysis and

10 research.

11 That means that Mr. Nice here, to all intents and purposes, is

12 testifying about his own observations and his own accusations. It would

13 appear -- it would be like him changing the microphone and asking

14 questions in his place and then going to answer them in the witness's

15 seat. I think it is quite clear that Abrahams, in that respect, as part

16 of the Prosecution team, which he himself confirms professionally in 2000

17 and 2001, he did this work, so this is -- places him in an even worse

18 position, more unsuitable than Kelly whom you rejected a moment ago.

19 And let me also remind you that with the last witness, that is to

20 say with General Maisonneuve, who is a general, who was in Kosovo and

21 Metohija, who was an eyewitness, you did not allow him, permit him to

22 answer my question which had to do with his opinion. And now somebody who

23 is not an eyewitness here and somebody who is neither an eyewitness nor an

24 expert but who is an active participant in the indictment team, you are

25 giving him the possibility of presenting his views here and testifying. I

Page 5955

1 think that is such a blatant and obvious impermissible manipulation which

2 the Prosecution is availing itself of that you would have to react to

3 that. And especially - and this is the last thing that I have to say and

4 the last thing that the Prosecution mentions - he is to testify in keeping

5 with Rule 70, which means that he will be presenting various allegations

6 and quotations and that the persons that gave him these -- told him this,

7 that they are protected and that he cannot say how these sources of

8 information was used. So these secret witnesses and secret information

9 and all the rest of it --

10 JUDGE MAY: Mr. Milosevic, I'm going to cut you off because these

11 are all matters which can be dealt with in due course when he comes to

12 give evidence. We understand from Mr. Nice that in fact the point about

13 the information is to be covered. But let us now have the next witness.

14 MS. ROMANO: The next witness is Avdiu, Bilall Avdiu. I would

15 just like to inform the Court that the witness is a very simple man, and

16 he does not have -- he has difficulties for reading, and he won't be able

17 to read the declaration. And maybe also to inform the accused that the

18 questions also need to be simple, otherwise he will not understand.

19 [The witness entered court]

20 JUDGE MAY: Yes. Mr. Avdiu, can you hear? Can the interpreter

21 read the oath, please. And, Mr. Avdiu, if you would repeat it after the

22 interpreter.

23 Yes. Can the interpreter read the oath, please.

24 THE WITNESS: [Interpretation] I solemnly declare that I will speak

25 the truth, the whole truth, and nothing but the truth.

Page 5956

1 JUDGE MAY: Thank you very much. If you would like to take a

2 seat.


4 [Witness answered through interpreter]

5 Examined by Ms. Romano:

6 Q. Witness, your name is Bilall Avdiu?

7 A. Yes.

8 Q. When were you born?

9 A. In 1947.

10 Q. And were you born in Racak?

11 A. In Recak.

12 Q. Do you live in Racak?

13 A. Yes.

14 Q. Mr. Avdiu, you gave a statement to the Office of the Prosecutor on

15 the 30th of November in 1999. Do you remember?

16 A. Yes.

17 Q. And on the 28th of May, 2002, you attended a meeting with a

18 presiding officer of this Tribunal and a copy of your statement in the

19 Albanian language was read out to you. Do you remember that?

20 A. Yes.

21 Q. At that time, you had an opportunity to review, and do you agree

22 with the content of your testimony?

23 A. Yes.

24 MS. ROMANO: The Prosecution submits the statement and the

25 attachments into evidence.

Page 5957

1 JUDGE MAY: Yes. Exhibit number.

2 THE REGISTRAR: Prosecution Exhibit 187 for the unredacted and

3 187A for the redacted version.

4 MS. ROMANO: As a clarification to the Court, his statement has

5 two attachments -- sorry. His statement has two attachments. Attachment

6 A, the photographs that the witness provided and where he shows his house

7 and several places in Racak. And these photos are the same photos that

8 are contained in the Racak binder, tab 8.

9 And the attachment B is photos of vehicles that were identified by

10 the witness.

11 The summary of -- the summary of witness's testimony is the

12 following: He's a Kosovar Albanian who is a survivor of the incident in

13 the ravine in Racak in the municipality of Stimlje on 15 January, 1999.

14 He states that towards the end of 1998, there were two attacks on Racak by

15 Serbian police who were positioned on the hills surrounding the village.

16 There was no KLA presence in the village at that time. No one was killed

17 during these offensives but two civilians were injured and several houses

18 were destroyed or damaged.

19 The witness states that the police wore blue camouflage and plain

20 blue uniforms and the VJ soldiers wore green uniforms with camouflage.

21 The police and military vehicles, APCs and Pragas that the witness

22 observed at the Cesta Hill prior to and on the 15 January 1999, are

23 identified on the attachment B of his statement.

24 On 15 January 1999, at 7.00 in the morning, the witness woke to

25 the sound of gunfire and explosions in the village. He realised that the

Page 5958

1 village was being attacked and took shelter with his son in Faik Limani's

2 barn. His son was shot in the left leg as he was entering the barn.

3 There were five men there from the village, all of whom were unarmed and

4 in civilian clothing. They all left the barn and went to Sadik Osmani's

5 house where they joined other men from the village. About 25 police

6 arrived, took all the men out of the barn and searched them. Their ID

7 cards were taken and the police commenced beating them with sticks and

8 other instruments. They were cursed and threatened that they would be

9 killed. VJ soldiers were also present.

10 The men were all ordered to climb the hill to the ravine. When

11 they got there to the ravine, the witness saw uniformed Serb police who

12 shouted and cursed at them. The Serb police then opened fire on the men

13 and killed them.

14 The witness fainted for about five hours in order to stay alive.

15 He names the victims and survivors and checked some of the victims for

16 signs of life. He spent the night in the forest with the other survivors.

17 The witness states that all the men in the ravine were civilians and were

18 not wearing anything that could be mistaken for a uniform. Most were

19 either young or elderly.

20 No further questions.

21 JUDGE MAY: Yes, Mr. Milosevic.

22 Cross-examined by Mr. Milosevic:

23 Q. [Interpretation] In your statement, you said that two offensives

24 were carried out against Racak from the end of 1998 until the 15th of

25 January of 1999. Can you tell me, when did these offensives take place?

Page 5959

1 A. At the end of the year 1998, this happened. The Serbian forces

2 and the Serbian army, with the army tried to enter the village, but there

3 were no KLA soldiers, and they didn't --

4 Q. And was there an attack on the village before the end of 1998?

5 A. They came in and burnt the houses, about 65 houses. And there was

6 no KLA, but they burnt the houses. This is what Serbian forces and the

7 police did.

8 Q. I'm asking you -- please pay attention to what I'm asking you and

9 reply only to that. Was there an attack on Racak before the end of 1998?

10 Was there one, for example, in the summer of 1998?

11 A. There was an attack, but I'm not sure of the date.

12 Q. Well, was there an attack in the summertime of 1998?

13 A. Yes.

14 Q. Does that mean that that was the third attack? You said that

15 there were two from the end of 1998 until the 15th of January. So this

16 other third attack took place before these other two?

17 JUDGE MAY: The witness may well be confused by that.

18 Mr. Avdiu, just tell us, if you would, how many attacks in all

19 there were by the Serbs in 1998 and 1999.

20 THE WITNESS: [Interpretation] Twice in 1998 they attacked. And on

21 the 15th of January, they entered the village and surrounded the village

22 at night. And on the morning of the 15th at 7.00, on both sides of the

23 village, in the mosque neighbourhood --

24 MR. MILOSEVIC: [Interpretation]

25 Q. All right. Well, I didn't ask you anything about that. So there

Page 5960

1 were two attacks in 1998; is that right?

2 JUDGE MAY: That's what he said.

3 MR. MILOSEVIC: [Interpretation]

4 Q. When was the first attack in 1998?

5 A. I don't know exactly. I don't know what date.

6 Q. Was it spring, summer, fall, or winter?

7 A. It was in the second part of the summer.

8 Q. And what happened during that first attack about which you say

9 that it was in the second part of the summer?

10 A. Serbian forces attacked the village, the police, but they didn't

11 enter the village. The second time, they did enter the village, from both

12 sides, and they burnt the houses.

13 Q. Well, I'm asking you about the first attack, the one that took

14 place in the summer. So they didn't enter the village then, did they?

15 A. No, they didn't.

16 Q. Was somebody hurt in the village at that time? Was something

17 destroyed or set on fire in the village on that occasion?

18 A. Yes. There were fires in the village, but nobody was killed or

19 wounded.

20 Q. So how come there were fires if they didn't enter the village?

21 A. I don't know the date, but on the first time -- and then the

22 second time they entered and they burnt. They also -- and first time and

23 the second time, they did attack, and they shelled from a distance and

24 then they entered, and then they burned, and then they got us -- woke us

25 from sleep.

Page 5961

1 Q. You said that during, as you called them, offensives, there were

2 no members of the KLA in the village. There were only civilians there.

3 Is that true?

4 A. There were only civilians.

5 Q. So how come they didn't manage to enter, Serb forces, into the

6 village? You said that these offensives were unsuccessful. Who organised

7 resistance from the village, resistance to the police and the army?

8 A. They provoked us. The Serbian police.

9 Q. Does that mean that they did not want to enter the village?

10 A. They provoked us. They provoked us. They fired at us in the

11 village.

12 Q. They fired from the distance but did not enter the village. Is

13 that what you're saying?

14 A. Yes.

15 Q. Were there any victims on that occasion? Do you know of that?

16 A. No. No.

17 Q. There were none in the village. And do you know whether there

18 were victims on the side of the army and the police? Were any soldiers or

19 policemen killed?

20 A. No.

21 Q. Did the residents of your village have some kind of a plan

22 prepared in advance in case there should be an attack on the village?

23 A. I don't know. There was no plan.

24 Q. Can you explain, how is it possible that during those attacks and

25 shellings, as you say, by the army and the police, there were no victims,

Page 5962

1 none at all?

2 A. I don't know.

3 Q. All right. Do you have any information or any idea about why did

4 the army want to enter and take this undefended village of yours in which

5 there was no presence of the KLA whatsoever?

6 JUDGE MAY: That is not for the witness to answer. He can't say

7 why the army did something.

8 THE ACCUSED: [Interpretation] Very well.

9 MR. MILOSEVIC: [Interpretation]

10 Q. Do you know where the place called Rance is located?

11 A. Yes.

12 Q. How far is it from Racak?

13 A. Five kilometres.

14 Q. Were you there at the end of 1998/1999?

15 A. I wasn't in Rance.

16 Q. Do you know, in Racak, that the KLA headquarters was located

17 there?

18 A. I don't know of a headquarters being there. There was a

19 headquarters with KLA people. They were looking at the terrain.

20 Q. And at the end of 1998, how many members of the KLA were present

21 in Racak itself?

22 A. I didn't hear. It wasn't allowed to go to the headquarters. I

23 went.

24 Q. Do you know what was the name of the KLA commander in Racak?

25 A. I don't know.

Page 5963

1 Q. Were they present in the village the entire time or they went back

2 with other members of the KLA and went to Rance or other places?

3 A. They stayed for a short time, and they had their headquarters in

4 Rance.

5 Q. And during their stay in Racak, regardless of the time period, did

6 the members of the KLA have their own premises in which they ate, slept,

7 had medical treatment, and so on?

8 A. I wasn't at the headquarters.

9 Q. Were you in the hospital?

10 A. No. I wasn't in the hospital.

11 Q. Does this mean that you could meet members of the KLA only in the

12 streets?

13 A. I didn't see them. They watched the -- they watched the terrain,

14 and I don't know who they were. I don't know their names. It -- it

15 wasn't done to ask people who they were.

16 Q. Yes. Very well. But you stated that out of those 30-something

17 members of the KLA, ten were your neighbours or relatives. You should

18 know at least names of your relatives and neighbours.

19 A. There was -- there were no members of my family in the KLA. And

20 about other people, I don't know who was in it.

21 Q. All right. But these people that you mentioned as being your

22 neighbours or relatives, you do know them, don't you?

23 A. I know them, uh-huh. They were civilians.

24 Q. Did the residents of Racak assist the members of the KLA, out of

25 which these ten that you mentioned were your relatives and neighbours?

Page 5964

1 Did they assist them when they attacked on the army and the police?

2 A. No. They didn't attack ever.

3 Q. Did any resident of the village have weapons except for the

4 members of the KLA?

5 A. They didn't.

6 Q. So nobody in the village had weapons except for the members of the

7 KLA?

8 A. That's right.

9 Q. In your statement, you said that the house of Faik Limani was

10 right next to yours. And then you go on to say that that is some 50

11 metres away. So is that the first house right next to yours, and how far

12 away from yours is it exactly?

13 A. The next-door house is about ten metres behind my house.

14 Q. So it's not 50, is it?

15 A. No.

16 Q. And is the house of Faik Limani 50 metres from yours or is it the

17 house that you say is ten metres away from yours?

18 A. We have only a path in between, and then the next house is not ten

19 metres away.

20 Q. Well, is it the house of Faik Limani?

21 A. Yes.

22 Q. All right. When the attack on Racak started, you and your son

23 started towards that house. Why did you do that?

24 A. Yes, that's right. The police and the Serbian army surrounded the

25 village in the night, and in the morning there was -- there was firing

Page 5965












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Page 5966

1 from all sides with Pragas and tanks and armed vehicles. And they woke us

2 up, and I went out into the yard, and the shooting was going on.

3 Q. Yes. I understand what you are saying. But my question is: Why

4 did you go to Faik Limani's house? You said it was only ten metres away

5 from yours. So what was there in the house of Faik Limani?

6 A. There were four brothers and a sister in the house, and I got them

7 up and woke them up and took them there. I went to wake them up.

8 JUDGE MAY: It's now quarter to and it's time to adjourn.

9 Mr. Avdiu, could you be back tomorrow morning to continue your

10 evidence at 9.00. Could you remember not to speak to anybody about it

11 until it's over, and that does include the members of the Prosecution

12 team. So could you be back, please, at 9.00 tomorrow morning.

13 We will adjourn until then.

14 --- Whereupon the hearing adjourned at 1.45 p.m.,

15 to be reconvened on Friday, the 31st day of May,

16 2002, at 9.00 a.m.