1 Friday, 14 July 2006

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 8.58 a.m.

6 JUDGE BONOMY: Good morning. Judge Nosworthy is sitting in the

7 Martic trial. We're satisfied that it's in the interests of justice to

8 continue in her absence today, so we will be sitting as a Bench of three

9 this morning.

10 Good morning, Mr. Abrahams. Your evidence will now continue.

11 Mr. Stamp.

12 MR. STAMP: Thank you, Your Honour. Before I proceed, may I just

13 take the opportunity of introducing to the Court and to the parties

14 Mr. Keith Scully, who is sitting to my right. I should have done that

15 yesterday, but ...

16 JUDGE BONOMY: Thank you, Mr. Stamp.

17 WITNESS: FREDERICK ABRAHAMS [Resumed]

18 Examination by Mr. Stamp: [Continued]

19 Q. Good morning, Mr. Abrahams. When we broke off last we were

20 discussing the method of research for the preparation of the different

21 parts of the report As Seen, As Told -- Under Orders. And you had

22 discussed the first section of the book which you described as the

23 background and historical section of the book. The staff involved in

24 that, in the preparation of that part of the book, did they have any

25 special skills in regard to the background and the history that they

1 wrote about?

2 A. Yes, they did.

3 Q. Briefly tell us about that.

4 A. Researchers in the organisation are specialised in the countries

5 that they cover. They often know the languages, are familiar with the

6 history and the politics, and, most importantly, they undertake what we

7 call missions to the field, in other words, fact-finding trips to

8 investigate the situation on the ground. So this was the case for all of

9 the reports that Human Rights Watch produced in relation to Kosovo and

10 with regards to this background section in particular.

11 Q. Now, you say the second part of the report focussed on the period

12 from February 1998 until the commencement of the NATO bombing in March

13 1999. Can you again describe the method of research to gather the

14 material for that part.

15 A. The primary source of information for all of our reports and this

16 section in particular is the -- the field missions, the investigative

17 trips. Between the period of February 1998 and March 1999, we conducted

18 four separate research missions.

19 Q. In Kosovo?

20 A. Into Kosovo -- in Kosovo, to interview the witnesses and victims

21 of abuses, to meet with lawyers and also obtain information from

22 government sources, when possible. So this section of the report is the

23 result of those efforts.

24 Q. And could you tell us about the research methodology in respect to

25 the third section, which deals with the period of the NATO bombing from

1 March to June 1999.

2 A. When the NATO bombing of Yugoslavia commenced, we deployed

3 researchers to the borders and had someone on the ground in Kosovo and

4 Macedonia -- excuse me, in Albania and Macedonia throughout the period of

5 the air campaign. These individuals were Human Rights Watch researchers

6 who had experience, both -- most of them in the Balkans, but all of them

7 in -- at least in other places if not the Balkans, in conducting human

8 rights investigations.

9 Their main task was to interview the individuals who were leaving

10 Kosovo, to obtain information from them about the situation inside Kosovo.

11 The main source -- the main technique is the one-on-one interview, which

12 is standard procedure for the organisation. These are done in quiet

13 settings whenever possible. There were times when these interviews in a

14 few cases were quick because somebody was literally coming across the

15 border in their tractor and we only had time to ask: Where are you from

16 and why are you leaving? But the vast majority of these interviews were

17 done in a private and quiet setting. They last sometimes many hours,

18 sometimes more than one session, to obtain detailed information. We do

19 not use questionnaires. We conduct interviews in an open format, an open

20 narrative format, that allow the witness to speak about what they want to

21 speak about. We refrain from asking leading questions. And we probe,

22 very deeply, what I would call a -- a cynical understanding. We try to be

23 sympathetic but also doubt every piece of information that is given to us

24 so that we can confirm it, either through that interview or other

25 interviews or other investigative means.

1 So the results of those interviews are what we produced in the

2 flashes that you mentioned yesterday, and they also form the basis for the

3 section of the report in Under Orders that you are referring to now. I

4 would only add that we supplemented that material after June 12th when we

5 entered Kosovo. We had an individual -- a researcher in the province from

6 June 14th, if I'm not mistaken, and we maintained a presence in Kosovo

7 until -- for the next six months, very often more than one person. I went

8 two, possibly three, times in the second half of 1999. And we attempted

9 to visit the places that we had heard about from refugees during the NATO

10 bombing.

11 So we visited the villages in which these individuals had told us

12 that crimes had occurred. And I -- as I have written in the report and I

13 will state it today, I was surprised by the level of consistency in their

14 testimonies. In other words, the details that refugees gave us during the

15 bombing to a great extent matched with what we found on the ground. Names

16 and places that were told to us, we were able to confirm from other

17 interviewees or our visits to the specific sites.

18 Q. Thank you. About how many interviewers did you have in that

19 period from March to June when you were gathering the information for that

20 part of the report?

21 A. On the borders, you mean?

22 Q. Yes.

23 A. During that -- I would have to consult the report to be sure, but

24 it was definitely at least six -- at different times. Not all at the same

25 time, a rotation.

1 Q. And again, where your statement indicates that you participated as

2 well --

3 A. Yes, I did.

4 Q. -- in those interviews, about how many persons were interviewed?

5 A. I cannot tell you how many people were interviewed only in the

6 period March to June. I could obtain that information if it's of interest

7 to the Court. But I do know that from the period March 1999 through

8 December 1999 we interviewed more than 600 different individuals.

9 Q. Could I take it from that that there were more than 600 different

10 interviews or 600 persons were interviewed for the purposes of the report

11 in respect to that period, the period March to June?

12 A. That's correct.

13 Q. Again, briefly, you said earlier that the methodology in writing

14 the report itself now was the same in respect to all the sections. Can

15 you tell us a little bit about that methodology in writing the report, and

16 I would like you to focus also on quality-control procedures.

17 A. The report -- the -- I was the primary author of the report and I

18 wrote a per cent -- a large percentage of the chapters, but some of my

19 colleagues also -- they wrote the sections that they in particular

20 researched. So I would have to go through the report to tell you exactly

21 which ones I wrote based on my personal research versus what they wrote

22 based on theirs.

23 However, in all cases the -- I edited and reviewed the sections

24 that they wrote, and in most cases they edited and reviewed the sections I

25 wrote. At the same time, all of our reports go through a rigorous editing

1 process. In this case, with Under Orders, everything was reviewed by one

2 outside reviewer, by our programme office and, thirdly, by our counsel's

3 office, our legal office. In addition, the chapter on statistical

4 analysis had a professional review by three statisticians, but that's

5 another matter.

6 Q. Okay. I was going to ask you about the statistical section. Who

7 are the three statisticians; can you remember?

8 A. Yes. The primary collaboration was with Dr. Patrick Ball,

9 which -- who is from the American Association for the Advancement of

10 Science, AAAS. And we had cooperation then from -- actually, three other

11 statisticians, so four in total. We worked with Dr. Herb Spirer, who was

12 teaching at Columbia University, and we had a professional review by two

13 outside statisticians, Dr. Ray Smith, and -- I apologise, but I am now

14 forgetting the name of the fourth. I could refer to the report if --

15 Q. It's in the report?

16 A. It is in the report, yes.

17 Q. Lastly, in respect to the report, what criteria, if any, was used

18 in selecting the persons to be interviewed?

19 A. We chose individuals who we thought had stories to tell. Either

20 we discovered them through our own canvassing or they were referred to us,

21 for example, by journalists or by -- by other Albanians, humanitarian aid

22 workers who said: Here's a person I think you should interview. So we

23 would sit down this those people.

24 And it is true, and we mentioned this in the chapter on

25 statistical analysis, that our data cannot be extrapolated to all of

1 Kosovo because we did seek out individuals whom we thought had knowledge

2 of crimes. So we are very clear on the limitations of the data in that

3 sense to make sure nobody makes conclusions beyond what the data speaks

4 to.

5 Q. For the purposes of this case, the -- the report discusses events

6 in the Drenica region, the Djakovica region, the Istok region, the

7 Orahovac region, the Pec region, the Prizren region, the Djakovica

8 region, and the Suva Reka region, and the Vucitrn region. Can you comment

9 briefly on -- or summarise the reports that you received in respect to the

10 exodus of people from those regions.

11 A. The overwhelming majority of interviewees told us that they had

12 been forcibly expelled from their villages, towns, or cities.

13 Q. By?

14 A. By --

15 MR. SEPENUK: Excuse me, Your Honour, again -- excuse me. We're

16 getting into conclusions now. He's testifying to conclusions from the

17 data that was amassed, and I would object to it.

18 JUDGE BONOMY: No, I think, Mr. Sepenuk, we are being told not

19 what the conclusion is but what the overwhelming majority of interviewees

20 said. And I think that is admissible in the context in which we have

21 reserved, until we've heard this evidence, the question of admissibility.

22 And therefore, I will repel your objection.

23 MR. STAMP:

24 Q. Yes, you're telling us the reasons they told you for their

25 departure, and it was that they were expelled from their villages, towns,

1 or cities. Did they tell you by who?

2 A. Yes. Many of the villagers could not identify the specific

3 forces, whether the special police, the police, in a detailed manner, but

4 they were very clear that it was government forces, either Serbian police,

5 Yugoslav army, or, in some cases, local militias or paramilitaries.

6 Q. Thank you very much, Mr. Abrahams.

7 MR. STAMP: Thank you, Your Honour. That concludes the

8 examination-in-chief.

9 JUDGE BONOMY: Mr. O'Sullivan.

10 MR. O'SULLIVAN: Yes, Your Honour. We'll follow the order of the

11 indictment for cross-examination.

12 Cross-examination by Mr. O'Sullivan:

13 Q. Good morning, sir.

14 A. Good morning.

15 Q. The first point I'd like to ask you about is something you just

16 mentioned a few moments ago, where you said that between March and June,

17 when you were -- had your people in Albania and Macedonia, six people at

18 different times, you interviewed people. Then you added that between

19 March and December, going beyond June to December, is when you amassed the

20 vast majority of your interviews, the 600.

21 A. Well, I cannot tell you now exactly how many were done in the

22 first period versus the second. That information can be obtained if it's

23 of interest to you, but I'm not sure that the latter part was the

24 majority. I just don't know.

25 JUDGE BONOMY: If something like this arises that probably isn't

1 controversial but is material that you feel it would be useful to have,

2 then arrangements can be made for communication after the witness has

3 concluded his evidence. I'm happy for you to relay to court staff

4 something that you think ought to be obtained from a witness and try to

5 make arrangements informally or try to ask the Bench to arrange it if you

6 feel that's necessary.

7 MR. O'SULLIVAN:

8 Q. Well, would you have that information?

9 A. Yes. The database we compiled in preparation of the chapter on

10 statistics is public. We have left it as an open source so others may

11 utilise it, and that database would record the date and place of

12 interview.

13 Q. Well, how many interviewers did you have between June and December

14 1999?

15 A. If you'll give me a moment to recall. It's --

16 Q. My point is this: You only had six people, you said, on a

17 rotating basis during the NATO campaign.

18 A. Correct.

19 Q. And you continued interviews between June and December. Did you

20 have many more people in that latter period?

21 A. All right. We definitely had -- I'm aware right now of five

22 individuals. There may have been more, but there were at least that,

23 again not all at the same time, but coming in and out. And we had at

24 least one person at all times.

25 Q. Now, Under Orders, which is for the record P438, we've seen and

1 we've heard that it was published in 2001; correct?

2 A. Correct.

3 Q. Do you know which month it was published in 2001?

4 A. I believe it was October.

5 Q. And you've just finished telling us that you have direct

6 involvement, both as an author and as an editor and the project manager, I

7 think, or overseer of that publication. Is that fair and correct?

8 A. That's correct, yes.

9 Q. Okay. So the work in drafting Under Orders, would that have taken

10 place in the first half of 2001 and the latter part of 2000? Would that

11 be correct?

12 A. Yes, I -- that's correct.

13 Q. All right. Now, you were employed by the Office of the Prosecutor

14 of this Tribunal in -- for periods of 2000 and 2001, weren't you?

15 A. Yes. I was here April, May, and June of two thousand and -- of

16 2000 and in August 2001.

17 Q. One of your tasks, I believe, was to collect materials for the

18 Office of the Prosecutor; correct?

19 A. That is correct.

20 Q. And you were also -- another one of your tasks in that period was

21 that you were an investigator for the OTP, weren't you?

22 A. My title was research analyst.

23 Q. But you were also an investigator, weren't you?

24 A. No, I didn't -- my tasks were to do analysis and collect

25 documents, but the investigators were doing more of the -- of the crime

1 scene analysis, so ...

2 Q. So is it your position that you were not an investigator with the

3 OTP?

4 A. My position is I was a research analyst.

5 Q. All right. In 2001 you interviewed a man named Batan Haxhiu;

6 correct?

7 A. That's correct, yes.

8 Q. And for the record, this Albanian surname in English is spelled

9 H-a-x-h-i-u.

10 Now, Mr. Haxhiu was a journalist; correct?

11 A. Yes, he was.

12 Q. And he gave a written statement which he signed and which you

13 signed; correct?

14 A. That's correct.

15 Q. And that was an ICTY witness statement; correct?

16 A. That's correct.

17 Q. Now, Mr. Haxhiu testified in the Milosevic trial on the 23rd of

18 May, 2002, at page 5385, and he was asked this question. Mr. Haxhiu was

19 asked: "You spoke to an investigator, whose name is Fred Abrahams. Is

20 that correct?

21 "A. Yes, yes, apart from him there was also someone else present

22 at the meeting."

23 Then the accused said: "I did not" -- says to the Judge: "I did

24 not ask him about the presence of others but only about Fred Abrahams.

25 His answer is yes, so can I move on?"

1 Judge May says: "Yes. Bear that in mind, if you would,

2 Mr. Haxhiu.

3 "Q. Did that person introduce himself as an investigator of the

4 OTP?

5 "A. Yes."

6 Now, tell me: Why did you tell this Court you were not an

7 investigator when in fact you were, and you introduced yourself to

8 Mr. Haxhiu as an investigator?

9 MR. STAMP: The question assumes facts which are not in evidence.

10 I think he first needs to ask the witness whether he accepts and the

11 extent to which he accepts the witness's -- the other witness's answer in

12 a previous case.

13 JUDGE BONOMY: We're -- yeah, thank you, Mr. Stamp.

14 We're into this technical area of how you put a prior,

15 inconsistent statement, Mr. O'Sullivan. I think, strictly speaking, the

16 point made by Mr. Stamp are right. There are two questions in there and

17 you have to take them one at a time.

18 MR. O'SULLIVAN:

19 Q. Mr. Haxhiu has testified under oath that you introduced yourself

20 to him as an investigator. That's correct, isn't it?

21 A. I haven't seen Mr. Haxhiu's testimony, but I take your word for

22 it.

23 Q. All right. Well, why did you introduce yourself as an

24 investigator?

25 JUDGE BONOMY: Well, it's not. We're talking here, Mr. Stamp,

1 about something that's in a transcript. Are you questioning the

2 transcript?

3 MR. STAMP: No, I'm not questioning the transcript. This is -- to

4 ask the question: Why did you introduce yourself as an investigator

5 assumes that the witness accepts what that previous witness said. I think

6 we have to get over that hurdle first. Do you accept that you introduced

7 yourself as an investigator?

8 JUDGE BONOMY: Well, I suppose technically, Mr. O'Sullivan, that's

9 not the question you asked him. So perhaps you should ask him that

10 question just for the avoidance of doubt.

11 JUDGE CHOWHAN: Excuse me, one thing must be clear that what would

12 be this big difference between an investigator and a researcher?

13 JUDGE BONOMY: I don't think you need to answer that question for

14 the moment. Let's proceed to deal with the evidence that we're exploring.

15 And I think the question you have to ask first of all, Mr. O'Sullivan, is

16 whether the witness accepts that that's how he introduced himself.

17 MR. O'SULLIVAN:

18 Q. Well, can you answer the Judge's question?

19 A. Sure. I do not recall how I introduced myself to Mr. Haxhiu.

20 There may also be some misunderstanding because Mr. Haxhiu and I speak in

21 both English and Albanian, so there could be a language complication. And

22 there could also be a misunderstanding on Mr. Haxhiu's part or -- in not

23 knowing the distinction between the two. But I do not recall precisely

24 how I presented myself.

25 MR. O'SULLIVAN: No further questions.

1 JUDGE BONOMY: You're not pressing the other question then on the

2 assumption that he did introduce himself as an investigator?

3 MR. O'SULLIVAN: Well, I believe he's already accepted that.

4 JUDGE BONOMY: Mr. Petrovic.

5 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

6 Cross-examination by Mr. Petrovic:

7 Q. [Interpretation] Good morning, Mr. Abrahams. I have a few

8 questions for you, to follow up the questions put by my colleague.

9 Today and in some of your statements you've described your work

10 for the OTP of this Tribunal. In those statements you mentioned the

11 analysis you prepared for the OTP. What is contained in those analyses?

12 What issues did you deal with and are those analyses concluded with

13 conclusions?

14 A. My -- I had two primary tasks during my time with the Prosecutor's

15 office. The first was to collect documents in Kosovo after the war left

16 behind by either the MUP or VJ, the police or army. The second task was

17 to identify Kosovar Albanian political negotiators, individuals who had

18 contact during or prior to the war with Serbian government officials or

19 Yugoslav government officials in the various phases of negotiations that

20 took place in 1998 and 1999, to determine from these individuals

21 information they had about the negotiation process. Those were my two

22 primary jobs.

23 Q. While you were employed by the Prosecutor of this Tribunal, did

24 you also work with your home organisation, the Human Rights Watch?

25 A. No, I did not. I kept the two distinctly separate. And I will

1 elaborate very briefly based on the previous question.

2 While I was working here at the Tribunal, the report Under Orders

3 was in the phase of editing. And as I mentioned yesterday, the editing

4 process is lengthy and rigorous, especially with a report of that

5 magnitude. So it took many months for the various reviewers to complete

6 their reading. And it was during that time that I was here at the

7 Tribunal.

8 Q. Thank you. Could we try to keep your answers as brief as possible

9 so as to economise. Perhaps you can clearly focus on what my question

10 was.

11 In some of your public appearances, and can I remind you if need

12 be which those are, you also questioned the mode or the way used by the

13 investigators of this Tribunal to approach the events in Kosovo. Is that

14 correct?

15 A. Can you refer me to the statement or --

16 Q. Yes, of course.

17 MR. PETROVIC: [Interpretation] Could we please have P385. Could

18 that be shown to the witness, please?

19 Q. It is your report, or your article, I don't know what exactly I

20 would call it. You authored that for the War & Peace Reporting?

21 MR. STAMP: I'm sorry, I think the one shown here is in B/C/S. I

22 think the copy should be in English for the Court and B/C/S for the

23 accused.

24 MR. PETROVIC: [Interpretation] Of course.

25 Could we have the English version on e-court, please. The last

1 two pages of this document, please. I would kindly ask that the witness

2 be shown those.

3 JUDGE BONOMY: I suspect that if you've got numbers for these last

4 two pages, you should give these to assist. I don't mean an ERN number, I

5 mean numbers in e-court.

6 MR. PETROVIC: [Interpretation] Pages 9 and 10, Your Honour.

7 JUDGE BONOMY: Thank you. Is that page 9?

8 MR. PETROVIC: [Interpretation] It's page 10. This is page 10,

9 Your Honour.

10 Can we have the previous page, number 9, please? Actually,

11 number 8, please. Page number 8.

12 I do apologise, Your Honour. These are just teething problems

13 with this new system.

14 Q. Is this your article, Mr. Abrahams?

15 JUDGE BONOMY: I suspect we'll be at the dentist until the trial's

16 over, Mr. Petrovic.

17 MR. PETROVIC: [Interpretation] Yes, Your Honour, it does seem to

18 me that that is the case, but we are doing our very best.

19 Q. Can you tell us, Mr. Abrahams, what is this, what is this article

20 about? Who was it written for?

21 A. I don't recall the specifics of this article, but based on the

22 document it is something that I wrote for the Institute for War & Peace

23 Reporting.

24 Q. As we don't have it on the screen, I don't want us to waste any

25 more time and to scroll down -- or perhaps if you would be so kind as to

1 scroll this page down a bit.

2 MR. PETROVIC: [Interpretation] I apologise once again. Can we

3 have the next page, namely page number 9, please. The fourth paragraph on

4 page number 9.

5 Q. Here you refer to new enthusiasm of western governments and

6 commitment to international justice, the enthusiasm of western governments

7 which happened to emerge all of a sudden from the beginning of the NATO

8 bombing campaign and did not exist before that. Wherefrom in your

9 judgement did that enthusiasm spring? Why did you write this -- and in

10 fact this is some sort of a criticism of the attitude of those governments

11 before that period?

12 A. This is very much a criticism of those governments. Human Rights

13 Watch had been advocating on governments to provide the necessary

14 resources to this Tribunal to allow it to perform its mandated task. And

15 we were -- we welcomed the attention the Tribunal received in 1999 and

16 wished that it had come, well, prior to that point.

17 Q. In that context you are calling in question the fact that the

18 majority of the investigators of the International Tribunal who were

19 active in Kosovo after the NATO forces entered Kosovo were precisely the

20 investigators from NATO member states. Is that correct?

21 A. No. My -- this article does not refer to that in particular. It

22 refers to western governments, financial support for -- to fund the Office

23 of the Prosecutor and the Tribunal in general.

24 MR. PETROVIC: [Interpretation] Can we scroll this page down a bit

25 further, please, and take a look at the third paragraph from the bottom,

1 where you say: The use of investigators from countries who were parties

2 to the conflicts such as the US and the UK risks undermining the

3 Tribunal's credibility as an objective judicial organ and even creating a

4 sense of victor's justice.

5 A. Yes, and I stand corrected, I did not recall this article well

6 enough to remember that paragraph, but I stand by what I've written here.

7 In my view, the Tribunal's credibility in the Balkan region in Yugoslavia

8 is of utmost importance. It must make all efforts to appear balanced and

9 independent. And having investigators from non-NATO countries would have,

10 in my view, improved that image.

11 Q. Very well. Then, as you were actively involved in the different

12 stages of the work, I can really say on this case, can you tell me who

13 were the people who were in charge of the investigation on behalf of the

14 Tribunal in the Kosovo case? What were they by nationality? What

15 countries did they come from? I'm sure that you know that.

16 A. The Kosovo team was large and changed over time, but I recall that

17 it was run by a Brit, but it had participation of -- of police

18 investigators from numerous countries such as Italy, Australia, Pakistan,

19 Great Britain, and I would have to think longer about other countries that

20 were involved.

21 Q. What was the name of this Brit? What were the names of his

22 assistant, of his deputy? What countries did they come from, if you can

23 help us with that, please?

24 THE WITNESS: Your Honour, just as a matter of clarification, I

25 assume this is not confidential information of the Tribunal. I'm not

1 aware of what I'm allowed to reveal if --

2 JUDGE BONOMY: Well, I think if it was you would have a Prosecutor

3 on his feet objecting to the evidence. So I think you can assume that

4 there's nothing confidential in the question that you're being asked.

5 THE WITNESS: Okay.

6 The director of the Kosovo research was Dennis Milner, and his

7 deputy, who I believe assumed chief responsibility in the second -- in my

8 second period with the Tribunal was Kevin Curtis.

9 MR. PETROVIC: [Interpretation]

10 Q. And these two gentlemen are both British, right?

11 A. That's correct, yes.

12 Q. All right. Then in the light of this observation of yours, which

13 I think is quite appropriate, don't you think that this is indeed victor's

14 justice, where you have justice being investigated by people who are

15 actively involved in the matter which they seek to investigate on behalf

16 of their countries? This is precisely what you state in your article. Is

17 that not correct?

18 A. No, I don't believe that at all. My article is referring to the

19 image and repetition of the Tribunal as an independent body, which would

20 have been promoted by a more diverse staff. However, in my view both

21 Mr. Milner and Mr. Curtis, as well as the other investigators, performed

22 their role in a very professional manner.

23 Q. Please just give me a brief answer then. Why do you think then

24 that the bringing of such people to such positions actually is risking

25 undermining the credibility of the International Tribunal?

1 A. Because in the eyes of Yugoslav citizens, they could view the

2 Tribunal as a partisan institution.

3 Q. Very well. Let us now move on to a different topic.

4 MR. PETROVIC: [Interpretation] I apologise, Your Honour, I have a

5 problem with the computer. The image seems to have been lost.

6 JUDGE BONOMY: Help should be at hand.

7 MR. PETROVIC: [Interpretation] No, it is all right now. Thank

8 you.

9 Can the witness please be shown document P2228. This is a set --

10 a batch of his statements that he gave in several instances, because we

11 are going to be discussing those so that they should be at hand.

12 JUDGE BONOMY: Do you want him to have a hard copy of these?

13 MR. PETROVIC: [Interpretation] Your Honour, if view of the nature

14 of my questions, I don't think that will be necessary.

15 Q. In your second statement, the one from 2002, you have an entire

16 series of facts that you adduce from the history of Kosovo and Metohija.

17 What are these sources on the basis of which in this second statement of

18 yours, i.e., in the documents that you were preparing, that you used to

19 produce those documents?

20 A. Just to clarify, you're referring to the statements on Kosovo's

21 history specifically?

22 Q. Yes.

23 A. There were numerous sources, public records such as speeches or

24 the memorandum from the Academy of Science, for example, plus articles and

25 analysis written by Yugoslav citizens and foreigners, as well as my

1 interviews and knowledge from multiple visits to the country.

2 Q. So if you consulted such numerous sources, how is it then possible

3 that on page 12 of this document that I indicated you state that the

4 constitution from 1974 gave Kosovo the status of an autonomous province

5 within the SFRY? What was the source that you consulted? Where did you

6 find that particular bit of information?

7 MR. STAMP: Can we just find precisely where in the document that

8 is said.

9 JUDGE BONOMY: Well, page 12 --

10 MR. PETROVIC: [Interpretation] Page 12.

11 MR. STAMP: The ERN page number -- I beg your pardon, the e-court

12 page number?

13 MR. PETROVIC: [Interpretation] E-court number 12 in this document

14 that I referred to earlier, P2228.

15 Unfortunately that's not it, Your Honour.

16 MR. STAMP: I think it's page 13 he's referring to.

17 MR. PETROVIC: [Interpretation] Yes, I accept that and I do

18 apologise.

19 Q. So the first sentence in the second paragraph that we can see on

20 the e-court screen.

21 A. Yes. I'm sorry that I do not recall the precise source from which

22 this information was derived, but the changes of the 1974 constitution,

23 namely granting autonomous status to both Kosovo and Vojvodina, is a

24 publicly known and widely documented fact.

25 Q. My question had to do with a notoriously false claim that is

1 contained in paragraph 2 in this. It is not true that Kosovo became an

2 autonomous province in 1974, and it was not within Yugoslavia that it

3 became a province; it was in the Republic of Serbia. And that is where

4 the problem is. If you can comment on that; if not, we can move on.

5 A. I believe you are correct. It was a province within Serbia. I

6 know you are correct. I think the phrasing of this paragraph is open to

7 that interpretation. It was autonomous within the SFRY.

8 Q. All right. Are you aware of the fact that Kosovo's autonomy

9 within -- that Kosovo had been autonomous within Serbia as of 1946? At

10 that particular point in time it had been autonomous for a full 30 years.

11 It was nothing new that was granted to Kosovo in relation to its status

12 that it had throughout the post-Second World War period?

13 A. No, I am not knowledgeable about the pre-1974 constitutional

14 arrangements.

15 Q. All right then. When you talk about the alleged abolishment of

16 its autonomy by the 1989 constitutional amendments, you are not aware of

17 the true and substantive nature of the constitutional amendments that you

18 referred to?

19 A. No, I am not aware of the particularities in the constitutional

20 amendments, no.

21 Q. I'm not asking you about the details of the amendments; I'm

22 talking about -- I'm asking you about the constitutional concept of the

23 abolishment of the autonomy. Of course I don't expect you to know the

24 particulars of the constitutional changes, when and where and how they

25 took place. I'm just asking you about the key fact, the abolishment, the

1 emergence of something -- the granting of something that you say was done

2 in 1974 and was abolished in 1989. I'm just asking you about the general

3 concept.

4 A. I'm sorry, but what would you like me to answer?

5 Q. Do you accept that all your allegations in this context are

6 incomplete, incorrect, and superficial?

7 A. No, I do not accept that. I believe this -- my statement

8 accurately reflects the broad strokes of constitutional developments.

9 Q. Well, I submit to you that that is not true, but in view of the

10 nature of your testimony we are not going to dwell on this.

11 In your statements you also refer to the fact that in the period

12 from the 1970s to the 1990s of the past century, a large number of Serbs

13 moved out from the territory of Kosovo and Metohija. You say that they

14 were exposed to maltreatment, that not always steps were taken to protect

15 them, and so on and so forth.

16 So my question is: Did your organisation ever investigate that

17 particular phenomenon which so dramatically marked an entire epoch in

18 Serbia and the former Yugoslavia?

19 A. My organisation came into existence in 1977 with a very limited

20 activity due to small size, primarily focussed at first on the Soviet

21 Union. And our first work in Yugoslavia was, if I'm not mistaken, in

22 1990. However, the period of discrimination against Serbs that you

23 mention is covered subsequently in the reports as background.

24 Q. So, for instance, in the 1980s when your organisation was very

25 active in the countries of the former eastern bloc and in other countries

1 with a socialist system, you were not interested in the position and the

2 human rights status of the Kosovo Serbs which obviously were dramatically

3 jeopardised in the period under review?

4 A. There are dozens of countries and issues that we would like to

5 investigate around the world at any time, and I could list them currently,

6 but we do not have the resources or ability to conduct investigations in

7 them all.

8 I will say that we did engage ourselves, to some extent, in

9 Yugoslavia by protesting the arrests of political prisoners. Of

10 particular note is -- I recall a protest letter on behalf of Vojislav

11 Seselj, who was put in prison in the 1980s for political reasons, which we

12 protested. So we were involved, to some extent, but not in in-depth

13 investigations.

14 Q. To conclude, to wrap up this particular topic, the moving out of

15 several hundreds of thousands of people was not a topic which you thought

16 worthy of your activity in the 1980s, right?

17 JUDGE BONOMY: That question's been answered. I do not think

18 that's on appropriate further question to --

19 MR. PETROVIC: [Interpretation] Thank you. Thank you, Your Honour.

20 Thank you, Your Honour. I'm moving on.

21 Q. Would you please tell this Honourable Court who Robert Gelbard

22 is.

23 A. Robert Gelbard is a top -- or was in the late 1990s, a top

24 American diplomat. I don't recall his precise position. And I don't know

25 what he's doing today.

1 Q. Could you please tell us what was the assessment of the activity

2 of the so-called liberation army of Kosovo given by Robert Gelbard in

3 March 1998?

4 A. Mr. Gelbard made two statements that I am aware of in late

5 February 1998, and maybe also early March, in which he said the Kosovo

6 Liberation Army was a terrorist group. This was about one week -- this

7 was about one week prior to the first series of events in the Drenica

8 valley --

9 Q. Please confine yourself to what my question is. I'm not asking

10 you about the wider context; I'm just asking you about what his assessment

11 was and what his attitude was in respect of the Kosovo Liberation Army.

12 And do you agree with that assessment?

13 A. We were very careful to avoid use of the term "terrorist."

14 Instead, we referred to the Kosovo Liberation Army as an insurgent group,

15 an insurgent army, a guerilla force, and we used those classifications

16 when evaluating their respect for international humanitarian law.

17 Q. All right. Then -- but when we are talking about an organisation

18 that -- which, as you state in numerous of your statements, kills,

19 kidnaps, abducts, imprisoned people, plants bombs, why cannot it be called

20 its right name? Why is not this practice given its right name? Why are

21 euphemisms being used throughout a series of your statements and

22 documents? Because all these are features of terroristic actions, an

23 activity as referred to by Diplomat Gelbard.

24 A. Well, my job and our job as an organisation is to document

25 violations of IHL. We did that with regards to the KLA and used the

1 appropriate terms that, in my view, do not impose interpretations and have

2 connotations the way the term "terrorist" does.

3 Q. How is it -- how do you interpret then this difference between

4 your own attitudes and those which were the official assessment of the US

5 government at a certain point?

6 MR. STAMP: There are assumptions which are not warranted by the

7 evidence. I don't think that's been accepted that these were official

8 assessments. And secondly, the question asks him to read into the

9 intentions and meanings of other persons.

10 MR. PETROVIC: [Interpretation] Your Honour --

11 JUDGE BONOMY: I don't accept that objection. The ambassador in

12 office at the time can be said to be expressing an official viewpoint, and

13 therefore I will repel that objection.

14 THE WITNESS: Well, firstly, I would note that despite Ambassador

15 Gelbard's comments, the Kosovo Liberation Army was never added to the

16 state department's list of terrorist organisations, so it never had the

17 official designation. But even if it did, there were numerous times

18 throughout the conflict when Human Rights Watch's views and the United

19 States government's views were different. In fact, we criticised the

20 United States government on numerous occasions. So the inconsistency that

21 you are mentioning is consistent with our independent work.

22 MR. PETROVIC: [Interpretation]

23 Q. So is there a difference in assessments, in assessing someone who

24 kills and kidnaps and plants bombs, and is it in that particular respect

25 that you disagree with the US government? Can I understand your answer

1 like that? I'm not talking about numerous other issues where differences

2 are quite possible. I'm asking you about specifically this particular

3 issue.

4 A. The US government's role is to make political decisions, and my

5 organisation's role is to document and publicise violations of IHL. So it

6 was international law that guided our work in this regard.

7 Q. With all due respect, I don't think that was the answer to my

8 question. Perhaps you could try answering it. If the US government deems

9 certain actions to be of terrorist nature and if your views differ, do you

10 accept then that your position is different from the position of the US

11 government, which calls someone terrorist when they plant bombs, kill, and

12 abduct, whereas you did not accept that? Perhaps you have another name

13 for such activities. If this is so, what is that name?

14 A. We refrained from using the term or the word "terrorist"

15 or "terrorism." I think the US government on numerous occasions vocally

16 criticised the IHL violations by the Kosovo Liberation Army -- by all

17 forces in the conflict. I do not believe they used the word "terrorist"

18 after Ambassador Gelbard did. But again, we refrain from using a term

19 that we consider loaded.

20 JUDGE BONOMY: Mr. Petrovic, I -- I accept that this is a

21 perfectly valid line of inquiry and a perfectly proper submission will be

22 made in due course, no doubt, about the use of language reflecting

23 attitude. But I note that to the same question earlier the witness said

24 that the answer was that they were referred to as insurgent groups, which

25 is an interesting expression in view of the use of that expression

1 currently, and guerilla forces.

2 Now, is there really much more mileage in this line of examination

3 at this stage with this witness?

4 MR. PETROVIC: [Interpretation] Your Honour, I fully accept your

5 comment and I will move on to my next question.

6 Q. Ambassador Gelbard in March expressed his attitude as to the -- as

7 concerns the activities of the KLA. Later on you write the US government

8 changed its assessment of the KLA, although the KLA modus operandi did not

9 change. It even became more drastic. First of all, do you know of that

10 change of designation for that group in the official statements of the US

11 government?

12 A. My only knowledge to that effect is the comments made by

13 Ambassador Gelbard and the subsequent fact that the KLA was not added to

14 the statement department's list of terrorist organisations.

15 Q. The fact that only several months after the statement by the

16 Ambassador Gelbard another highly positioned American diplomat,

17 Mr. Holbrooke, visited a headquarters of the KLA, legitimising their

18 modus operandi and their organisation. What do you think that impact --

19 what impact that had on the situation in the field? How would you term

20 such a change? What impact did it have on the ground, particularly

21 concerning the events that took place?

22 A. I could give you my interpretation or my analysis of how that

23 event impacted Kosovo. Is that what you're asking me?

24 Q. Yes.

25 A. Well, in my opinion the US government, and Ambassador Holbrooke in

1 particular, were searching for ways to resolve the conflict through

2 political negotiations, and there was reluctance at first to contact the

3 Kosovo Liberation Army - in my view, my interpretation of the government's

4 actions - out of fear of legitimising them. However, at some point the US

5 government apparently realised that the KLA was a relevant factor, that

6 the KLA was not going to go away, and that no political solution could be

7 achieved by relying only on Ibrahim Rugova and his LDK party, therefore

8 leading Holbrooke to establish contact at that time in the village of

9 Junik, as you mentioned.

10 Q. My last question concerning the topic will be the following. How

11 do you assess the fact that someone who did not change their modus

12 operandi, not moving away from the essentially terrorist way of action,

13 all of a sudden turned into a legitimate collocutor, partner? What would

14 be your view of legitimising such an organisation which used clearly

15 terrorist methods in its work?

16 A. Well, again we refrain from using the word "terrorist," but in my

17 view there are two distinct processes. There are political negotiations

18 and there is due process. So the crimes committed by the Kosovo

19 Liberation Army, which we have also documented, the abductions, the

20 expulsions, the murders, should be punished either in a Kosovo court or an

21 international tribunal, without any question. What happens politically

22 and who engages in negotiations is another matter. And in our view, those

23 two are separate and distinct.

24 Q. I have a question, or perhaps it might be deemed a comment, but

25 perhaps nevertheless you could comment. It seems that if you are numerous

1 enough and persistent enough you may become a legitimate collocutor.

2 Would you assess US policy towards organisations in that way?

3 A. I apologise, I don't understand the question.

4 Q. Perhaps it was poorly interpreted. If one uses violence for a

5 sufficiently long time and intensively enough, that organisation or person

6 would be a legitimate partner in a political process. Is that correct?

7 A. I can't answer that question generally. In the Kosovo case, it

8 became clear to me, personally, based on work in the field, that the KLA

9 was a relatively large organisation and an armed force, a structured and

10 functioning armed force, and that no solution to the crisis could be found

11 without their involvement in some way.

12 Q. Irrespective of the means used to attain that goal?

13 A. I'm sorry, I don't understand. You mean the goal of engaging the

14 KLA?

15 Q. No, sir. We are talking about the process of legitimising the

16 activities of the KLA. Such a status is accorded, provided one uses

17 violence persistently and systematically enough.

18 A. I can only speak from the perspective of my organisation on this,

19 which is our job is not to legitimise or delegitimise anyone. Our job is

20 to research the facts on the ground. So we engage with all relevant

21 actors, governmental and non-governmental.

22 Q. Thank you. I will move on. We are still with the P2228 document.

23 Page 18 in e-court, that's page 18 of the statement.

24 MR. PETROVIC: [Interpretation] I don't see it before me yet. I

25 hope I'm correct about the numbers. Page 18, please. Yes, thank you.

1 Q. The last paragraph, as it was on the screen before you scrolled

2 down. This is fine. Now the last paragraph.

3 [In English] "During the second quarter of 1998 ..."

4 [Interpretation] There you state that: "During the second quarter

5 of 1998, the KLA took control of an estimated 40 per cent of Kosovo's

6 territory."

7 Then: "Serb civilians in areas under KLA control were harassed or

8 terrorised into leaving their homes, by assaults, kidnapping, and sporadic

9 killing."

10 This is what you stated then, if I'm not mistaken.

11 A. Yes.

12 Q. Do you have an estimate of the total percentage -- of the

13 percentage of the total population living in that particular part of

14 Kosovo where we see the 40 per cent mentioned here?

15 A. I do not. However, the areas of control -- the areas under KLA

16 control were largely rural areas with the exception of the town of

17 Malisevo. So I would -- I would expect the percentage of Kosovo's

18 population to be relatively small. Or at least less than 40 per cent.

19 Q. Therefore, you don't have a precise estimate, and I accept that.

20 A. No, I do not, no.

21 Q. By occupying 40 per cent of Kosovo's territory during the relevant

22 time, being --

23 [In English] "Second quarter of 1998 ..."

24 [Interpretation] The second quarter of 1998, as stated, would the

25 40 per cent encompass those parts of Kosovo through which the main

1 arteries, the main roads go connecting the east and the west of Kosovo?

2 A. In some areas, yes. However, I used the term "loose control"

3 because to the best of my knowledge the government still maintained

4 control of the main arteries. The KLA may have had them for brief periods

5 or during the evenings or night-times, but the roads were throughout this

6 period open and under the control of government forces.

7 Q. Do you know whether the main roads from Pristina to Pec or from

8 Pristina to Prizren were open? Was any traffic possible? Could civilians

9 or food be transported along those roads?

10 A. Yes. I believe for most of that time the roads were open,

11 although it is possible they were closed for specific periods.

12 Q. Do you know how many attacks were conducted along those roads in

13 the relevant period, the attacks by the KLA on military, police, and

14 civilian vehicles?

15 A. I do not know. We requested that information from the authorities

16 but received no reply.

17 Q. Can you tell us from where or from whom you sought such

18 information and who denied you an answer?

19 A. Following my research mission in Kosovo in spring, May/June, of

20 1998, in July I sent letters to various government authorities asking for

21 information about attacks on Serbian civilians. I believe those letters

22 also include a question about police and Yugoslav casualties during that

23 time. But I would have to check the letters to be certain.

24 Q. You are talking here about road communication, about whether roads

25 were open. Did you address anyone with that question? Because those

1 roads, the ability to communicate along those roads meant the free

2 movement of people, transportation of goods, and essentially survival.

3 A. Those letters I referred to did not ask specific questions about

4 roads, and I do not recall if I otherwise inquired particularly about

5 traffic communication.

6 Q. All right. Let us move on. Did you know that two large towns in

7 Kosovo were completely besieged at that time, the two being Decani and

8 Djakovica, without any means or ability to communicate with the outside

9 world? Of course, they were encircled by the KLA units.

10 A. I am aware that KLA was active in and around Decan. They were

11 also active around Djakovica, but I am not aware of -- of Djakovica being

12 besieged, as you say. There may have been individual incidents in

13 Djakovica, but to my knowledge the town was largely opening and

14 functioning throughout the period in question.

15 Q. Do you know how many attacks were there in late spring and early

16 fall against the Republic of Serbia and Yugoslav police and military?

17 A. Again, the precise number I do not know.

18 Q. Do you have any framework data at least, approximately? And if

19 not, why -- why didn't you bother to gather those? Why didn't you turn to

20 the authorities? Why didn't you use your personnel to gather data which

21 in turn was important for the research you were doing?

22 A. We requested that data from the various authorities in Belgrade

23 but received no reply. So we were forced to rely on secondary sources,

24 such as media reports for that period.

25 Q. And concerning those secondary sources, I presume you consulted

1 the press in Pristina and Belgrade. If indeed you researched and you used

2 those sources, what were your conclusions? How many attacks? How many

3 victims? Where?

4 A. That's correct. We referred to the sources you mention as well as

5 international press. And we have written in our report that at least 100

6 ethnic Serbs -- ethnic Serb civilians went missing, went missing during

7 the first half of 1998 -- or to be more precise, throughout 1998. These

8 were civilians who lived in areas that the KLA had under their control.

9 Q. Mr. Abrahams, I thank you for that piece of information, but I

10 wanted to ask you something else. The research you did, what was the data

11 you gathered? How many attacks against the police? How many attacks on

12 the police -- on the military? How many attacks on civilians and civilian

13 trucks or vehicles and where? It was in the media daily, since you say

14 you did not have any other source apart from the media. What results did

15 your research come up with?

16 A. Attacks on the media -- excuse me. Attacks on the military are of

17 interest to us to better understand the conflict, but they are not of

18 concern in -- in our evaluations because military and police are

19 legitimate military targets.

20 I would qualify that a little bit by saying that the method and

21 means of attack is very important to determine if it was proportionate and

22 discriminate. But we, in the Kosovo case, focussed our attention on the

23 impact of the war on civilians.

24 Q. Mr. Abrahams, we do speak different languages, but it appears to

25 me what I'm asking you is interpreted correctly. Perhaps you were not

1 interested in the police and the army, but what was the number of attacks

2 on civilians and civilian vehicles in the relevant time? There were

3 people, women, children who were moving from Djakovica to Pristina. How

4 many attacks were there against those? Do you know that? Were you

5 interested in that? And does that include incidents that may be of

6 interest to your organisation?

7 A. I cannot give you summary statistics. I do not know how many

8 attacks took place at the time.

9 I can give you some specific incidents that we investigated. For

10 example, the abduction by the KLA of approximately 80, I believe 85,

11 Serbian civilians in the town of Orahovac. Subsequently, they released

12 approximately 40 of them. 35 of them are still missing today and are

13 presumed dead. I can mention the abduction of ten Serbian employees of

14 the Belacevac mine who are still missing today and who are presumed dead.

15 I can mention the abduction of various individuals and families throughout

16 Kosovo. So I can give you that information, but I don't have a total

17 figure to present you.

18 Q. Will you agree that the attacks I mentioned came in dozens or in

19 hundreds perhaps? Would you agree with that?

20 A. Can you be more precise. Attacks on civilians or on armed

21 forces --

22 Q. Attacks on civilian vehicles, civilian means of transport, attacks

23 on the military which was not in action, attacking police patrols, or

24 attacking other state bodies and people employed by the state, such as

25 forest rangers, mailmen. Would you agree with me if I said that such

1 attacks came in hundreds?

2 A. I'm not prepared to give you a number, but I will agree that the

3 KLA was active during that time in both attacking military targets as well

4 as engaging in IHL violations like expelling, abducting, or killing some

5 Serbian civilians.

6 Q. And you would agree that their activities were very widespread.

7 Such attacks appeared on almost one-half of the territory of Kosovo.

8 A. At that time the KLA was -- was an active insurgent force, yes.

9 Q. Thank you.

10 MR. PETROVIC: [Interpretation] Your Honour, by your leave we could

11 have a break now because I am about to move to another topic.

12 JUDGE BONOMY: Well, thank you, Mr. Petrovic.

13 We'll resume at ten to 11.00.

14 --- Recess taken at 10.27 a.m.

15 --- On resuming at 10.50 a.m.

16 JUDGE BONOMY: Mr. Petrovic.

17 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

18 Q. Mr. Abrahams, I have a question which stems from the previous part

19 which we were discussing before the recess. If you can give me an answer,

20 please, to my question regarding attacks on the military, on the army, and

21 on the police in the period under consideration, you responded that it was

22 not a matter of your interest, that you did not deal with that, and that

23 attacks on the army and police were legitimate targets and therefore not a

24 subject of your own investigations. Can you explain to me, please, how is

25 it possible that an attack --

1 JUDGE BONOMY: I don't think -- I don't think that's an accurate

2 reflection of the evidence. The witness explained that they were

3 interested in any disproportionate conduct against the military.

4 MR. PETROVIC: [Interpretation] Your Honour, I accept that.

5 Q. How is it at all possible to legitimately attack the army and the

6 police in conditions of an absence of a state of war when there does not

7 exist a state of war, when there were no overt armed conflicts? How is it

8 possible to do that in a legitimate way under such circumstances?

9 A. In our analysis as an organisation, we determined that a state of

10 armed conflict existed in Kosovo from late February/beginning of March

11 1998. This was based on our analysis of the facts on the ground and the

12 existence of the KLA as an adequately organised armed force. So given

13 that fact, we conducted our analysis with a focus on the war's impact on

14 civilians. Does that answer your question adequately?

15 Q. I just want to understand your attitude, your position. So it is

16 your position that in an organised state one may legitimately attack the

17 army and the police, and that can even be legally characterised as an

18 armed conflict. Is that your position on this issue?

19 A. My understanding of international humanitarian law is that such

20 attacks are not forbidden. It is the manner of attack which is evaluated

21 under the law. However, however, however, my understanding is also that

22 in what's known as an internal armed conflict, attacks by an insurgent

23 group can be prosecuted under domestic law. So the Serbian and Yugoslav

24 authorities were legally able to arrest and prosecute individuals who they

25 believed had committed criminal acts, such as the illegal possession of

1 arms, kidnappings, or murder.

2 Q. Or an attack on members of the army or of the police as well?

3 A. Yes.

4 Q. Thank you. Do you have any information - and we are still in

5 1998 - about the strength of the KLA, how many members did it have? How

6 were they organised?

7 A. What month in 1998?

8 Q. We are talking about June, July, August 1998.

9 A. At that time the KLA was still a disparately organised armed

10 group. My understanding from that time and from subsequent research is

11 that it was highly decentralised so that there was a central command, but

12 authority rested, to a great extent, with the regional commanders in the

13 field. We did notice some unified policies. For example, by September of

14 1998 it was necessary to obtain what I believe they call the media pass,

15 but it was essentially a document that allowed individuals to travel into

16 the territory controlled by the KLA. And individuals were checking at --

17 there were check-points that controlled these documents. So this

18 suggested to us an extent of coordination and control at that time.

19 Q. How many members did the KLA have at that time?

20 A. I don't know.

21 Q. If you don't know how many members the KLA had, how then do you

22 derive your conclusions about the adequacy of the response of the state

23 defence forces throughout your report; namely, you have allegations about

24 the disproportionate response of these forces. What is proportionate in

25 your book if you do not have a number to compare it to in terms of the

1 strength of the units of the KLA?

2 JUDGE BONOMY: I think the answer that was given earlier was about

3 disproportionate action by the KLA, was it not?

4 THE WITNESS: That's correct.

5 JUDGE BONOMY: So don't read it into the earlier answer that this

6 has been -- that it was necessary for there to be knowledge about their

7 numbers. I think this is a separate question, Mr. Petrovic.

8 MR. PETROVIC: [Interpretation] Your Honour, I will rephrase my

9 question.

10 Q. Mr. Abrahams, was the response, the reaction, of the defence --

11 state defence forces of Serbia and of Yugoslavia proportionate to the

12 threat which was posed to it by KLA forces in at least 40 per cent of

13 Kosovo territory?

14 A. In my opinion, based on the investigations on the ground, the

15 response of the government forces was highly disproportionate and had a

16 indiscriminate method that impacted civilians --

17 Q. No, this is not what I'm asking you. Mr. Abrahams, I'm not asking

18 you that. What I am asking you is that can you conclude that the

19 reaction, the response, of the forces of the army and the police was

20 adequate to the existing threat? I'm not asking you about anything which

21 encroaches upon the domain of international humanitarian law. I'm talking

22 about legitimate military and police action. Was it proportionate to the

23 existing threat?

24 A. My interest is not if a government responds to a security threat

25 that it perceives; my interest is how that government responds to the

1 security threat. That was the focus of my work.

2 Q. So in your work and in your statements, in your documents, there

3 is nothing about whether the reaction to the security threat was adequate

4 or not. Am I right?

5 A. Adequate in what sense?

6 Q. Adequate I explained in the previous question. Adequacy in the

7 sense of the threat posed to the security of the state which is reflected

8 in the fact that someone has occupied, for instance, 40 per cent of the

9 territory of one of its provinces.

10 A. There was an active armed insurgency in Kosovo. From the

11 perspective of the Serb and Yugoslav authorities, that was a threat to

12 their security. We acknowledge that, I acknowledge that, and my interest

13 was in how the state responded to that perceived threat.

14 Q. All right. Let us move on. In this same statement from 2002 of

15 yours from July, we are talking about the period immediately after these

16 events in June, July, and August, and there on page 20 --

17 MR. PETROVIC: [Interpretation] And can we see page 20 in e-court,

18 please. Can you scroll down a bit, please.

19 Just bear with me for a minute, Your Honour, please.

20 Q. As unfortunately I cannot find it here, I'm going to read it out,

21 a part of your statement. I hope you will be able to recognise it and

22 immediately respond to my question which will follow --

23 MR. PETROVIC: [Interpretation] Of course by leave to the Court, if

24 they will allow me to do so.

25 Q. "In August the Serbian government opened 11 humanitarian centres

1 in Kosovo for the rendition of aid. A very small number of Albanians came

2 to receive aid. I met many Albanians who were afraid to approach

3 representatives of the Serbian government in view of the vehements of the

4 violence they had been exposed to."

5 Do you remember this paragraph from your statement?

6 A. Yes, I do.

7 Q. Do you know what this humanitarian relief which the Yugoslav

8 authorities wanted to provide the population with contained?

9 A. Concretely, no, but I understood it to be food and possibly health

10 supplies.

11 Q. Does it stem from what I've read out to you that this aid was

12 intended for all needy inhabitants, irrespective of their ethnicity?

13 A. That was the stated aim of this project, but in my opinion it was

14 not a sincere effort on the part of the government.

15 Q. What is it that brings you -- leads you to the conclusion that it

16 was not a sincere effort on the part of the government, since in your

17 statement you go on to say, and I can read it also out for you that: "A

18 multitude of the inhabitants of Albanian ethnicity did not want to take

19 that aid precisely for fear of the reaction of KLA members."

20 A. No, that's a misrepresentation.

21 MR. STAMP: Could we just find what part of the statement that

22 apparent quote is taken from.

23 MR. PETROVIC: [Interpretation] Yes, we can find it. Just a

24 minute, please. Just one minute, Your Honour.

25 [Defence counsel confer]

1 MR. PETROVIC: [Interpretation]

2 Q. It seems to me that it is easier to read this in B/C/S than try to

3 find it in English, which I will certainly bear in mind during my next

4 stint of questioning. And I shall certainly have the English version.

5 So, with your permission, I shall read the 2002 statement. The

6 first paragraph is the one I just read, and immediately following is this

7 paragraph.

8 "During that period the KLA, as well as in the beginning of 1999,

9 committed grave violations of humanitarian law, including -- including the

10 taking of hostages and summary executions. Their victims were Albanians

11 and Serbs who -- Serbs and Albanians who were thought to have been

12 collaborating."

13 THE INTERPRETER: Can counsel please slow down when he's reading.

14 JUDGE BONOMY: You're being asked to slow down when you read,

15 Mr. Petrovic.

16 But that paragraph doesn't bear the statement which was in your

17 question, that the Albanians did not resort to the aid centres because of

18 fear of reaction of KLA members.

19 MR. PETROVIC: [Interpretation] Your Honour, that is of course

20 true, but that is the following paragraph. Now I'm talking about the

21 first paragraph, the first paragraph which talks about humanitarian relief

22 centres, but already in the next paragraph shows what fate awaits an

23 Albanian if he cooperates with the Serbian state in any way whatsoever.

24 So I have linked the two paragraphs, in view of the fact that they are

25 simply parts of the one and same context. So I hope that the witness will

1 be able to answer my question.

2 JUDGE BONOMY: Let me ask Mr. Abrahams, when you say: "I met many

3 Albanians who were afraid to approach the Serbian authorities given the

4 level of violence they had experienced," what was the violence to which

5 you were referring?

6 THE WITNESS: They were referring to the violence inflicted upon

7 them by Serbian and Yugoslav forces, which -- in other words, they were

8 being offered help in their eyes from the people who evicted them from

9 their homes in the first place.

10 JUDGE BONOMY: Mr. Petrovic, carry on, please.

11 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

12 Q. Mr. Abrahams, can you now reply to the question which I put to

13 you, and I can repeat it. What was the influence of the fact that the KLA

14 was maltreating and killing Albanians who were cooperating with the

15 Serbian state on the possibility for those people who of course needed

16 help, Albanians in need of help, to indeed accept such help from the

17 Serbian state?

18 A. The individuals I interviewed expressed concern and fear from the

19 state authorities. However, I do accept your point that there was

20 intimidation in general on the ethnic Albanian population from the KLA.

21 And it is possible that some villagers or some individuals were instructed

22 not to participate in this humanitarian aid effort. Nobody testified to

23 me to that effect, but I accept that it is possible.

24 Q. Tell me, what kind of an organisation is World Vision?

25 A. To the best of my knowledge, World Vision is a US-based

1 humanitarian organisation with ties to the church, although which church

2 in particular I do not know.

3 Q. Did this organisation provide any assistance in February 1999 in

4 Kosovo in terms of the reconstruction of houses and things like that?

5 A. World Vision was definitely active in Kosovo, also in house --

6 home reconstruction, but I do not know what date they began their

7 operations.

8 Q. Was this activity of theirs and this assistance in home

9 reconstruction, was it possible without the consent and the cooperation of

10 the authorities in Serbia?

11 A. That is a question for World Vision. My assumption is such

12 cooperation is required.

13 MR. PETROVIC: [Interpretation] Your Honour, and please bear with

14 me for a minute.

15 [Defence counsel confer]

16 MR. PETROVIC: [Interpretation] Can the witness be shown

17 document P386, Kosovo: Rape as a Weapon of 'Ethnic Cleansing.'

18 Just one minute, Your Honour, I'm looking for the right page.

19 Q. Can you tell us, please -- this is a book which contains your

20 analysis of instances of rape in Kosovo alleged to have taken place in the

21 period we are considering, right? Do you remember the statement by the

22 foreign secretary of Britain at the time, Mr. Robin Cook, about the

23 existence of some camps, as he referred to them, for raped women in March

24 and April 1999?

25 A. Yes, I remember those statements, in general. I don't recall the

1 specifics.

2 Q. I shall ask you now to look at page -- page 10 in e-court. In the

3 document itself it is page 8, but in e-court it is page 10.

4 So here -- actually -- actually, the next page, the ERN number of

5 which is 828, please, not this one, which is 827. The following page,

6 please. Yes. Well, here you see the first paragraph.

7 Can you tell us, please, when was it that Robin Cook gave this

8 statement, made this claim?

9 A. According to this report, it was April 13th, 1999.

10 Q. So we're talking about your report, that was your report prepared

11 on behalf of the organisation that you belonged to, right?

12 A. Correct.

13 Q. So on the 13th of April, 1999, Robin Cook, the British foreign

14 secretary, claimed that Serbian forces had opened a rape hotel or a rape

15 camp near Djakovica. Is that correct?

16 A. That's correct.

17 Q. Can you please tell me what were the conclusions of your

18 organisation in connection with this specific claim of Mr. Cook's?

19 A. We did not collect information or evidence to confirm this

20 allegation.

21 Q. Did you investigate these allegations?

22 A. Yes, we did.

23 Q. And the conclusion was that what Robin Cook had said was untrue?

24 A. We were not able to find the evidence to support his claim.

25 Q. Thank you. What ...

1 [Defence counsel confer]

2 MR. PETROVIC: [Interpretation]

3 Q. What was the impact of the rumours about rapes on these -- on the

4 inhabitants of a certain portion of territory? How is it that you

5 describe that in your reports?

6 A. Our view was and is that there were very serious incidents of

7 sexual violence and rape committed against ethnic Albanian civilians at

8 that time, based on our information --

9 Q. Sir, sorry to interrupt.

10 MR. PETROVIC: [Interpretation] Your Honour, I would kindly ask the

11 witness to respond to my question. I wanted to know what the impact of

12 rumours was. Perhaps the witness could contain his answer to what I asked

13 him, and the rest was contained in examination-in-chief and it can be

14 found in the report, which may or may not be later admitted. I don't want

15 to waste our time; therefore, I would like to stay focussed.

16 MR. STAMP: I have to object to the question as it was first put

17 and as it is now put. A question, what is the impact of rumours is

18 impermissibly vague and it leaves the witness at large. The question

19 should be a little more focussed, it is my submission.

20 JUDGE BONOMY: Mr. Petrovic.

21 MR. PETROVIC: [Interpretation] Your Honour, that question is

22 something which is -- that is encompassed in the reports we are discussing

23 and stems directly from my previous question. Mr. Robin Cook stated --

24 JUDGE BONOMY: Is your question confined to what Cook said, being

25 unfounded on the face of it? Is that what you're describing as a rumour?

1 MR. PETROVIC: [Interpretation] Yes, Your Honour. It is

2 obviously --

3 JUDGE BONOMY: If that's the rumour, then that's what the question

4 relates to, and the -- the point that's being made is no more than that.

5 So the question is: What was the effect of this allegation which

6 turned out to be, following Mr. Abrahams's investigation, apparently

7 unfounded on the community. Is that your question?

8 [Defence counsel confer]

9 MR. PETROVIC: [Interpretation] Yes, Your Honour.

10 JUDGE BONOMY: Mr. Abrahams.

11 THE WITNESS: Yes, Your Honour. I was in the process of answering

12 that very question.

13 Because of the serious crimes of sexual violence we documented, we

14 were then very concerned, troubled, by allegations from political actors

15 that appeared unfounded or not based on fact because it then eroded the

16 credibility of the actual crimes that were committed.

17 JUDGE BONOMY: But that doesn't answer the question that's being

18 put to you, which is: What impact did it have in the community in

19 general?

20 THE WITNESS: Well, in part, it may have had that impact, to

21 dilute the facts that were proved in the course of investigations.

22 In addition, there may have been a -- in my opinion, there was a

23 political impact, and I can only -- I can only suppose Robin Cook's

24 intention, which at that time was to muster support, political support,

25 for the NATO endeavour. And I can only assume that his comments in this

1 regard were intended in that direction.

2 [Defence counsel confer]

3 MR. PETROVIC: [Interpretation] I have no further questions, Your

4 Honour.

5 JUDGE BONOMY: Thank you, Mr. Petrovic.

6 Mr. Sepenuk.

7 MR. SEPENUK: Thank you, Your Honour.

8 Cross-examination by Mr. Sepenuk:

9 Q. Good morning, Mr. Abrahams. I'm Norman Sepenuk, and I'm one of

10 the attorneys for General Ojdanic.

11 MR. SEPENUK: If the usher would put on the screen the Prosecution

12 Exhibit 544, page 2.

13 I take it it's on your screen, Your Honour?

14 JUDGE BONOMY: I have it.

15 MR. SEPENUK: Thank you.

16 Q. And, Mr. Abrahams, you have it on the screen?

17 A. I do.

18 Q. Thank you. And you'll recognise that, sir, as a letter of

19 July 20, 1998, by Holly Cartner, the executive director for Human Rights

20 Watch for Europe and Central Asia. And as I understand it from your

21 testimony, you actually drafted this letter?

22 A. That's correct.

23 Q. And it was signed by Ms. Cartner.

24 A. If you scroll down to the signature, I can respond to that.

25 Q. Okay. Can we do that, please.

1 A. I do not recall, but based on the -- my personal analysis of my

2 own handwriting that I signed this letter in the name of Ms. Cartner as

3 she deputised me to do.

4 Q. So that's actually your signature?

5 A. That is I believe my signature, but we would have to perform an

6 analysis of the handwriting to --

7 Q. We don't need an expert, I can assure you.

8 And this letter, was it your idea to send this letter?

9 A. This letter is standard operating procedure following missions to

10 request information from the government.

11 Q. And I believe you said yesterday you would characterise it as a

12 letter of inquiry?

13 A. I suppose that's a proper -- proper description, yes.

14 Q. That was your testimony yesterday. Fair enough? Letter of

15 inquiry.

16 A. Fair enough.

17 Q. So there's nothing in this letter, I take it, which you would

18 characterise in -- at all as any kind of a charge or -- an implicit charge

19 of violations of international humanitarian law?

20 A. You mean directing to the authorities specific --

21 Q. Anything in this letter.

22 Let's just take an example. The first question is: "How many VJ

23 soldiers have died in Kosovo since January 1998? How many have been

24 wounded?"

25 Okay. These are requesting -- these are factual matters. You

1 want answers --

2 A. That's correct.

3 Q. -- correct? Okay. And if you would just assist us just for a

4 moment in putting this matter in context, the letter was dated July 20,

5 1998, and if we can just back up a little bit and go to the end of the

6 second quarter of 1998, which is right in that ballpark, it was in that

7 period that the KLA took loose control, at least, of an estimated

8 40 per cent of Kosovo's territory. Is that correct?

9 A. That's correct.

10 Q. And further during that period Serb civilians in areas under KLA

11 control were harassed or terrorised into leaving their homes by assaults,

12 kidnappings, and sporadic killings. That's also correct, isn't it?

13 A. That's correct.

14 Q. And it's further correct, is it not, that the day before this

15 letter was sent on July 19th, 1998, the KLA's first major offensive began

16 when it attempted to capture the town of Orahovac; correct?

17 A. That is correct.

18 Q. Okay. So the letter is dated July 20, 1998. An awful lot was

19 going on, wasn't it, at that period?

20 A. It was in that period, yes.

21 Q. Yes. The day before the attack on Orahovac, right, and then again

22 40 per cent of the territory being controlled by the KLA?

23 A. That's correct.

24 Q. So Serb authorities had a lot to do during that period?

25 A. Assumedly, yes.

1 Q. And yet you gave them a ten-day limit to reply to their letter.

2 You sent it during the vacation period, July 20, and then gave them a

3 ten-day limit to reply. Is that a fair statement?

4 A. I'm not able to see the precise date on the end of the paragraph.

5 Q. It's right there, actually.

6 A. Does that say "July"?

7 Q. Just leave it right there. Right.

8 A. Can you scroll to the right? It's cut off, but I assume it is

9 July, yes. Yes, that's correct, then we gave them a ten-day time-frame.

10 Q. Ten-day time-frame to respond; correct?

11 A. That's correct.

12 Q. And did you e-mail the letter?

13 A. My recollection is this letter was faxed.

14 Q. It was faxed?

15 A. Mm-hmm.

16 Q. And again, as I understand it, there was no response?

17 A. That's correct.

18 Q. Okay. And did you then ask -- what's the closest human rights

19 office to Belgrade?

20 A. Geographically probably Brussels at that time.

21 Q. And you're confident that the fax arrived?

22 A. I am confident, yes.

23 Q. You have a record of that? Are you testifying to that, that you

24 have a record that exists that shows that the fax arrived?

25 A. To answer your question, I should explain the procedure of

1 distributing these letters.

2 Q. All right.

3 A. They are sent through a fax server on a computer, which dials the

4 number and does not stop dialing until the fax is successfully delivered.

5 Q. And when you didn't get an answer within a few days, was there any

6 thought given to perhaps hand-delivering the letter?

7 A. I don't recall if there was thought given to it, but my

8 recollection is that it was never delivered physically.

9 Q. Okay. And you didn't make any phone calls about it to anybody in

10 the army, I take it?

11 A. I don't recall at that time. However, many of these issues were

12 also raised in person when I had a meeting with Mr. Bosko Drobnjak in

13 Pristina during my research mission. And I requested specific information

14 from him, which he said he was not authorised to provide.

15 Q. So you'd already discussed a number of the matters contained in

16 this letter?

17 A. I would have to go through the specifics of the letter to

18 determine precisely what I had discussed with Mr. Drobnjak or not.

19 Q. Well, you met with Mr. Drobnjak on June 11th, 1998; correct?

20 A. I would have to check my records, but that sounds correct, yes.

21 Q. I represent that to you. I'm reading from your statement.

22 A. Okay. I accept that.

23 Q. And he was with the Serb -- Serbian Ministry of Information in

24 Pristina; correct?

25 A. Correct.

1 Q. And he didn't refuse to talk to you?

2 A. He accepted to speak with me, yes.

3 Q. And you had a rather wide-ranging conversation?

4 A. As I recall, it was a 30- to 45-minute conversation on current

5 affairs in Kosovo.

6 Q. And he talked to you about a number of topics; correct?

7 A. We spoke about -- would you like to know specifically if I can

8 recall?

9 Q. Sure. Whatever your recollection is, absolutely.

10 A. I recall that Mr. Drobnjak referred to the KLA as a terrorist

11 organisation, as terrorists. I recall that he said the Serbian and

12 Yugoslav forces were responding appropriately. And I asked in particular

13 two questions. One was reports about the state authorities blocking the

14 delivery of humanitarian aid to ethnic Albanian populations, and he

15 replied that the government had done so because some of these

16 organisations were delivering supplies to the -- to the KLA, although he

17 was not able to provide any specifics. And secondly, if my memory serves

18 me correctly, I submitted to him a list of ethnic Albanians that were

19 missing and asked for his -- any information he had about those cases.

20 Q. So Mr. Drobnjak essentially defended the government position. Is

21 that an fair statement?

22 A. That is an accurate representation of his position, yes.

23 Q. And he claimed that the Serb authorities were fighting terrorists

24 and their actions were justified?

25 A. That's correct, yes.

1 Q. And then further in this letter you asked the army -- I'll call it

2 the army, again you never had any discussions with any specific person,

3 did you, at the time this letter was sent?

4 A. No.

5 Q. Okay. All right. You just sent it to the army; correct?

6 A. I believe it's sent to the information service of the army.

7 Q. Oh, and that's -- I'm sorry, where is that listed?

8 A. I believe that's on the cover sheet of the fax.

9 Q. Okay.

10 MR. SEPENUK: Could we just see that for a moment, please.

11 Q. That would be page 1?

12 A. Yeah.

13 Q. Information service; correct?

14 A. Yes, that's correct.

15 Q. Okay. And Mr. Drobnjak was the -- with the Serbian Ministry of

16 Information; correct?

17 A. That is correct.

18 Q. So, I mean, he's authorised to speak to you about these matters.

19 And you had spoken to him in June?

20 A. That is correct.

21 Q. Okay. And one of the questions was: "Can you provide us with any

22 military reports about the actions of the army in Kosovo since January

23 1998?"

24 Did you really expect, I ask seriously not frivolously, did you

25 really expect to get military reports from the government? Don't you

1 think there's some element of confidentiality there that the government

2 might not be willing to share with Human Rights Watch?

3 A. It's my job to ask questions and the government's job to determine

4 what it answers.

5 Q. But confidentiality within any organisation, particularly where

6 lives are at stake, particularly given this -- this warfare between the

7 KLA and Yugoslav forces, would be very important; correct?

8 A. I would have been surprised had the military replied to us with

9 internal documents.

10 Q. All right. So you asked the question, but you really, as a

11 practical matter, didn't expect to get a response, did you, sir?

12 A. On that specific question, I would have been surprised to obtain

13 military documents.

14 Q. All right. And -- and that same confidentiality, I take it, is

15 something that is very important to your organisation, Human Rights Watch?

16 A. Confidentiality in what regard?

17 Q. Well, for example, of reports, of interviews.

18 A. Well, there's a difference between reports and interviews.

19 Q. Right. Let me say interviews. As I understand it, the book Under

20 Orders was essentially based on interviews of some 600 Kosovar Albanians.

21 Is that correct?

22 A. For the period in that report that covers March to June 1999, that

23 is correct.

24 Q. And that's what I'm talking about.

25 A. Yes.

1 Q. And you stated that you chose individuals who you thought had

2 stories to tell?

3 A. That is correct.

4 Q. All right. And then you amended that just a few seconds later and

5 said you were "seeking out individuals who had knowledge of crimes."

6 Correct?

7 A. That is correct.

8 Q. You weren't seeking out anybody with exculpatory information; you

9 were seeking out people with inculpatory information?

10 A. We sought people who had stories to tell, and where those stories

11 led we reported. And there are examples in Under Orders of Serbian police

12 and Yugoslav army who responded properly, legally, morally. We included

13 that.

14 Q. Yes.

15 A. There is an example in the evidence presented before where we

16 refuted information presented by Robin Cook. So we were very carefully to

17 present also exculpatory information. And if we learned -- and maybe I

18 can clarify my previous testimony to be absolutely clear on this. If we

19 learned that an individual had exculpatory information, we would have also

20 sought that person out. We actively sought individuals with knowledge of

21 events on the ground.

22 Q. If you learn by chance, more or less, that there were individuals

23 who had exculpatory information, then you would seek them out. Is that

24 correct?

25 A. That is correct. Or if those individuals were brought to our

1 attention.

2 Q. But you weren't seeking out individuals who had exculpatory

3 information. To the contrary, as I understand your testimony, you were

4 seeking out individuals who had knowledge of crimes?

5 A. Knowledge of crimes should -- maybe I will clarify. Knowledge of

6 reported crimes. So that when we conduct an investigation in a specific

7 village, we will cast a wide net, so to speak, to interview individuals,

8 to collect documents, to visit the alleged crime scene, to obtain as broad

9 a spectrum of information as possible, inculpatory or exculpatory.

10 Q. And as you stated in answer to a question from His Honour

11 yesterday, you -- strike that. Strike that.

12 No, don't strike it.

13 You were seeking leads, were you not? Judge Bonomy said you were

14 seeking leads to further investigation, at the very least?

15 A. In the course of our investigations, we, like journalists,

16 would -- would seek leads, would follow leads, would pursue all tidbits of

17 information.

18 Q. And then you worked for the Prosecutor for a period of time;

19 correct? You've testified to that. 2000/2001?

20 A. Correct.

21 Q. And I think it's fair to say -- or is it fair to say that you

22 shared these leads with the Prosecutor's office?

23 A. Some of them we did, yes.

24 Q. I mean, any -- I take it any that were inculpatory you saw fit to

25 share with the OTP?

1 A. That is correct.

2 Q. And did you turn over your 600 reports of interview to the OTP?

3 A. No, we did not.

4 Q. And why not?

5 A. The written testimony, the written statements or notes from our

6 interviews are the property of Human Rights Watch, and we do not share

7 them outside the organisation without specific request. We provided to

8 the Tribunal names of individuals upon that individual's approval as

9 someone who might be of interest to them with knowledge of a particular

10 incident. And we presented to the Tribunal our summary findings; namely,

11 the reports that have been presented here today and yesterday.

12 Q. Has any member of the OTP at any time ever requested you - "you"

13 being Human Rights Watch or any representative thereof - for copies of

14 these 600 interview statements?

15 A. Not that I'm aware of.

16 Q. There's been no request by Mr. Stamp or Mr. Hannis or anyone in

17 connection with the OTP about turning over these forms? Are you sure

18 about that, sir?

19 A. Request -- you mean a request for us to provide the Prosecutor

20 office --

21 Q. That's correct.

22 A. I'm not aware of any request, no.

23 MR. SEPENUK: Well, Mr. Stamp, maybe -- can you clarify something

24 that we discussed yesterday? I thought such a request had indeed been

25 made.

1 MR. STAMP: No, no. We have had -- and I don't know if we should

2 do this in front of the witness.

3 MR. SEPENUK: Well --

4 MR. STAMP: We have inquired of the witness as to the whereabouts

5 of the documents, and the witness has told us how we can get the documents

6 and we are in the process of doing that. We have not asked the witness

7 for the documents.

8 MR. SEPENUK: Thank you, sir. Thank you.

9 Q. There have been discussions with Mr. Stamp at least as to the

10 procedure to obtain these documents?

11 A. That's correct.

12 Q. And given all the work of the OTP in securing indictments and

13 building evidence in the case, you're saying that at no time did they want

14 from you what could be a very valuable work product, 600 interview

15 statements, upon which your book, Under Orders, was based?

16 A. What is available is the data set, which is the coded information

17 from those interviews, but the specific written statements I was not

18 requested to provide.

19 Q. Have you now provided the so-called data set to the OTP?

20 A. My understanding, but I have to confirm this information, is that

21 this data set is publicly available. I believe it is on the internet, but

22 I have to confirm that fact. So whether the OTP has accessed it or

23 utilised it, I don't know.

24 MR. SEPENUK: Well, I would certainly make a request at this time

25 from the Prosecution to make that available as well as all the interview

1 statements.

2 Q. Do you happen to know what the position of your organisation or

3 your former organisation is, sir, on releasing this information?

4 A. I do.

5 Q. And what is that position?

6 A. As a matter of policy, the notes are the private property of the

7 organisation, but individuals or organisations can make specific requests

8 to our legal office for release, which will be reviewed on a case-by-case

9 basis.

10 Q. While you were serving as a consultant and/or investigator for the

11 OTP, did it ever occur to you at any time to say to any of the

12 Prosecutors, any of the investigators of the OTP: Gee, we have these 600

13 interview statements, you ought to take a look at it.

14 Did that ever occur to you, sir?

15 A. Frankly it did not. I felt -- for two reasons. First I felt that

16 our findings, as presented in Under Orders and other reports, were

17 adequate to give a proper indication of the evidence we collected. And

18 secondly, that the -- the investigators of the OTP needed to conduct their

19 own interviews, gather their own information so that they could use our

20 reports as a guide, if you will, to determine the pattern of abuses, what

21 villages might be of interest and which may not, but that ultimately those

22 investigations needed to be done by their own investigators.

23 Q. So there was a preference then in favour of the OTP using your

24 reports rather than the raw material itself, which were the interviews.

25 Is that a fair statement?

1 A. That is how it played out. Also because we, as a matter of

2 principle, do not release the statement themselves.

3 Q. And at the time that you were writing these reports, let's say

4 from -- let's just take the period August 1998 on when you were writing

5 various reports and right through till the end, I take it it's fair to say

6 that you -- we really can't call you a disinterested observer of the

7 process, can we?

8 A. That depends on your understanding of the term "disinterested."

9 Q. Well, isn't it fair to say that you had already concluded as early

10 as August 1998 that the first priority for United States policy should be

11 the indictment of Mr. Milosevic. You concluded that as early as August

12 1998, didn't you, sir?

13 A. I believe that is correct, yes. I mean, I would have to know to

14 what you are precisely referring.

15 Q. Well, I think -- I think you do, don't you, sir? Your article on

16 the August 5th, 1998 Herald Tribune in which you say precisely that and

17 which you were asked about at the Milosevic trial?

18 A. Yes, I do recall that argument -- that article.

19 Q. That article. And that's what you said: "The first priority" --

20 on August 5th, 1998, "the first priority of US policy should be the

21 indictment of Milosevic."

22 A. Yes, I did write that.

23 Q. And that's the mind-set you had throughout -- from that time on at

24 least when you were assembling information, writing reports, dealing with

25 the OTP, and doing all of the processes, going through all the processes,

1 that you have testified about.

2 A. I would not describe it as a mind-set. I would describe it as my

3 opinion based on investigations in the field up to that point.

4 Q. Thank you, sir.

5 JUDGE BONOMY: Mr. Aleksic.

6 MR. ALEKSIC: [Interpretation] Thank you, Your Honour.

7 Cross-examination by Mr. Aleksic:

8 Q. Good afternoon, Mr. Abrahams. My name is Aleksander Aleksic,

9 attorney-at-law from Belgrade, appearing on behalf of General Pavkovic.

10 I have a few questions for you. First of all, I'd like to follow up on

11 Mr. Sepenuk's questions.

12 MR. ALEKSIC: [Interpretation] Could we please show P544 to the

13 witness again.

14 Q. In responding to these questions you stated that as far as the

15 other side was concerned, you basically authored the letter and upon --

16 and you co-signed that, together with Ms. Holly.

17 THE INTERPRETER: Interpreter's correction.

18 MR. ALEKSIC: [Interpretation]

19 Q. You were authorised to sign it by her.

20 MR. ALEKSIC: [Interpretation] It's on the other side of the

21 document, the other page.

22 JUDGE BONOMY: We need to see page 2.

23 THE WITNESS: Yes, that is correct, yes.

24 MR. ALEKSIC: [Interpretation]

25 Q. I apologise.

1 MR. ALEKSIC: [Interpretation] Could we go back to the front page

2 or the first page of the document.

3 Q. Mr. Abrahams, this seems to be a fax form. Can you tell us whose

4 handwriting this is. It says "the armed forces of Yugoslav, Kosovo

5 command, information service," and under that the information service in

6 B/C/S.

7 A. That is my handwriting.

8 Q. Did you notice that there was also a number of the facsimile to be

9 entered there -- or actually the number to which the facsimile is being

10 sent?

11 A. Yes, there is a space for that.

12 Q. Since you addressed the letter, so to say, wouldn't it have been

13 usual for you or one of the people who worked with you to fill in the

14 number to which you were supposed to send this?

15 A. Sometimes the number is added and sometimes it is not. In this

16 case it was not.

17 Q. So how are we to know what number received this facsimile? Do you

18 have any proof of that?

19 A. To answer that question, I would have to check our contact lists

20 in New York to tell you which number this fax was sent to.

21 Q. I apologise. Maybe I didn't follow the transcript closely enough,

22 but didn't you say today that your closest office was in Brussels and that

23 this was sent from Brussels? Perhaps I'm wrong, and in that case I

24 apologise.

25 A. The question was our closest office, which is Brussels, but this

1 fax and the other faxes were sent from New York.

2 Q. I apologise. I accept your explanation. Since you wrote this

3 yourself, it says "the armed forces of Yugoslavia, Kosovo command

4 information service." Is that correct? Do you know whether there was

5 such a thing as Kosovo command within the armed forces of Yugoslavia?

6 A. Knowing what I know today, I would have labelled it differently.

7 I would have labelled it either information service of the 3rd Army or of

8 the Pristina Corps. But based on my understanding and knowledge at that

9 time, I addressed it as such.

10 Q. Thank you. According to what you know today, where is the command

11 of the 3rd Army and where is the command of the Pristina Corps and their

12 respective information services? Perhaps where they were at the time.

13 A. I don't know, I don't know. My assumption is that there are

14 offices both in Belgrade and in Pristina. Perhaps the 3rd Army is based

15 in Nis, but I'm not -- I'm not aware of that precisely.

16 Q. My last question concerning this topic.

17 MR. ALEKSIC: [Interpretation] Let us go to the second page of the

18 document again, and its title -- or rather, to whom the letter was sent.

19 If we go to the top left corner it says: "The armed forces of Yugoslavia,

20 Kneza Milosa 33 Street, Belgrade 11000, Yugoslav." Is there a difference

21 between the first and the second page as to who the letter was addressed

22 to.

23 A. I don't know, I don't know.

24 Q. I do seem to have another question concerning this document and

25 several others which are identical to this one, being the letter of the

1 20th of July, 1998. I don't think it is in dispute - and perhaps I

2 needn't go into the other two documents and to show them here, but the

3 other two letters were addressed to a certain person. Perhaps you

4 remember that, minister of information, and so on and so forth?

5 A. That's correct, yes.

6 Q. In this letter, however, on its second page, the only thing we

7 find is the armed forces of Yugoslavia, Kneza Milosa Street, number 33?

8 A. That is correct, yes.

9 Q. Do you allow for a possibility then that this letter was never

10 received at the appropriate address because of the way it was addressed?

11 Perhaps I was -- I hope I was clear enough.

12 A. My belief and my assumption is that this letter arrived. But can

13 I confirm that it got to the Kosovo command, no, I cannot.

14 Q. Thank you, Mr. Abrahams. I have only one more question pertaining

15 to your report, Under Orders. It is a general question; hence, we needn't

16 have that put on the screen.

17 In replying to one of the questions posed by Mr. Sepenuk you

18 stated that the main source of the report were the interviews you

19 conducted at a certain time with the Kosovar Albanians?

20 A. That's correct.

21 Q. And I wish to repeat that this is a general question, but I've

22 read the Serb version -- the Serbian version, and in the footnotes there

23 is no mention of any source. There is a mention of a date and place of

24 interview -- or rather, when the statement was taken. And on some pages

25 there are only initials.

1 A. We provide a footnote for every interview, and in many, if not

2 most, of the interviews we provide the name of the interviewee, the date

3 and place of the interview. But there are cases in Under Orders where the

4 interviewee requested some form of protection out of fear for retaliation,

5 because at the time in the period March through June 1999, the war was

6 ongoing, the resolution of the conflict was unclear, and the interviewees

7 had, in my opinion, a reasonable fear for retaliation, should we provide

8 their name in full. That fear dissipated to an extent after June when

9 Kosovo Albanians returned to their homes and had more reason to feel

10 secure. So fewer individuals were concerned about providing their full

11 identity. When they did request such protection, we provided it to them

12 because harming or putting in danger any witness or victim is a matter of

13 serious concern to us.

14 Q. All right. Thank you. That is regards that period, I accept what

15 you stated, although we cannot verify that information, since in the

16 footnotes to your report there are no other things, apart from the place

17 and date. Therefore, we can't verify that information for the very same

18 reason.

19 A. I can testify that those interviews took place and were recorded

20 accurately, based on what those individuals told us.

21 Q. I have just one more question, Mr. Abrahams. In the footnotes of

22 your report, to a great extent, you stated that you relied mainly --

23 mainly on the OSCE report called As Seen, As Told. Is that correct?

24 A. No, that is not correct. Could you refer me to the precise

25 footnote you mention?

1 Q. In numerous footnotes. For example, page 102, footnote 10, "see

2 OSCE Kosovo: As Seen, As Told." There was something before that as well.

3 Page 160, footnote 3, "see OSCE Kosovo: As Seen, As Told, Part I," then

4 page 163, footnote 9, "see OSCE Kosovo: As Seen, As Told, first

5 chapter, parts 21 to 30."

6 MR. ALEKSIC: [Interpretation] I apologise, Your Honours, I am

7 going through the B/C/S version, but that should tally as well.

8 Q. Then pages 216 to 226 of the OSCE report As Seen, As Told as

9 mentioned in the following footnote and so on and so forth.

10 A. I would need to review Under Orders precisely to answer your

11 question specifically, but I can provide a general response, which is the

12 primary and essential source of material in that report is our interviews.

13 We do cite secondary material such as the OSCE document, but primarily

14 when it has a corroborative value. So we would not rely on it as the sole

15 source of information or if there are any cases where we mention that, an

16 OSCE report, we would specify that we had not conducted our own

17 investigation.

18 Q. Thank you. I have my reasons for posing this question. They're

19 procedurally linked to some other evidence and other witnesses and

20 statements.

21 MR. ALEKSIC: [Interpretation] Thank you, Your Honour, I have no

22 further questions.

23 JUDGE BONOMY: Mr. Bakrac.

24 MR. BAKRAC: [Interpretation] Thank you, Your Honour.

25 Cross-examination by Mr. Bakrac:

1 Q. Good afternoon, Mr. Abrahams. First of all, I should like to ask

2 you, to the best of your recollection, in 1998 how many times did you

3 visit the Federal Republic of Yugoslavia -- or rather, Kosovo?

4 A. I believe it was four times.

5 Q. So you went to Kosovo four times, right?

6 A. I went to Kosovo four times, and in each of those times, maybe

7 three of the four, I also visited Belgrade. I would fly into Belgrade,

8 travel to Kosovo, return to Belgrade, and fly home.

9 Q. Can you tell me please in what period were you in Kosovo and how

10 much time did you spend there each time?

11 A. The first trip was in May/June of 1998. I returned in September.

12 Again, I believe in November. And if I'm not mistaken, again in December.

13 I may be confusing the December trip with a February 1999 trip. I

14 apologise for not being precise on that, on those dates.

15 Q. So if I understood you well, you actually allow that perhaps you

16 had only made three trips in 1998 and not four?

17 A. That is possible. I may -- it may have been four trips in the

18 period 1998 and early 1999 leading up to the NATO bombing. I'm not sure

19 of that fourth trip -- the timing of that fourth trip.

20 Q. The first time that you came, you spent the entire month of May

21 and June, right, or perhaps it was different?

22 A. That trip was approximately three weeks.

23 Q. If my memory serves me well, yesterday you said that you had come

24 in mid-September 1998, that you went there in mid-September, 1998. How

25 long did you stay that time?

1 A. Again, that trip was approximately three weeks. I can obtain the

2 exact dates for you, if that's of relevance.

3 Q. No, no, it is okay. Just roughly. So three weeks. And the last

4 time in 1998, your last trip, did that also last three weeks or was it

5 shorter?

6 A. It was -- yes, also approximately three weeks.

7 Q. Can you tell me, these three trips, during these three trips --

8 three-week trips, how many communes, how many municipalities in Kosovo did

9 you visit?

10 A. It's not possible for me to answer, but dozens.

11 Q. Do you know first and foremost how many municipalities there are

12 in Kosovo and that municipalities encompass a large number of small

13 places, of villages? Do you make this distinction between municipalities

14 and villages?

15 A. Yes, I did.

16 Q. So you do know how many municipalities there are in Kosovo?

17 A. Off the top of my head I do not recall the precise number, but I

18 believe it's somewhere around 14.

19 Q. And you toured ten of them, ten municipalities?

20 A. Again, I could answer that question with time and reviewing my

21 records, but I do not recall accurately the precise number. I could

22 mention for you some of the municipalities I do remember visiting, if

23 that's of interest.

24 Q. Yes, please do.

25 A. Well, obviously Pristina; Djakovica; the Drenica region, which is

1 actually two municipalities, Srbica and Glogovac, and I was in both; the

2 Pec municipality; the Suva Reka municipality; Prizren municipality; I know

3 that I visited Podujevo and Vucitrn. I'm not sure which municipalities

4 those towns are in. And the Orahovac municipality.

5 Q. Would you agree with me that it was mostly border municipalities,

6 towards the border with Albania and partially with Macedonia that you

7 visited, apart from Pristina municipality?

8 A. No. I spent substantial time in the Glogovac and Srbica area, and

9 both of those are in the interior of Kosovo.

10 Q. So we can say then that you mainly visited the border

11 municipalities?

12 A. I don't think that's accurate because an important focus of our

13 work was in Drenica, so I spent substantial time in, for example, the

14 Gornje Obrinje village and area, which is in the Glogovac municipality.

15 Q. In these three instances of your three-week visits to Kosovo, who

16 were you with? Who accompanied you on your mission?

17 A. For the first visit in May/June, I was alone. For the September

18 and November visits, I was with my colleague, Peter Bouckaert. And for

19 the fourth visit, which I apologise I'm not recalling if it was December

20 or February, I was with another colleague, Gordana Igric.

21 Q. Did you move around with some sort of an ID, a pass? Were you

22 issued any permit by the Yugoslav authorities or the Serbian organs of

23 authority to enable you to freely move in the territory that you were

24 visiting?

25 A. Yes, yes. I recall receiving accreditation from the Serbian

1 Ministry or perhaps it's a Secretary of Information in Pristina.

2 Q. And with that accreditation you could move freely around all these

3 areas that we referred to?

4 A. The accreditation was intended to allow that free movement, but at

5 times we were blocked by government forces from obtaining access to

6 particular areas.

7 Q. In these three instances, the first time when you were on your own

8 and the second time with your colleague and the third time with yet

9 another colleague, how many interviews did you take and in how many places

10 and in respect of how many incidents, if you can remember that?

11 A. It's a difficult question which could be answered by referencing

12 my records.

13 On the first trip, where I was alone, for sure I interviewed at

14 least 40 individuals with regards to our investigations. In the

15 subsequent two visits with Mr. Bouckaert, that number is surely twice

16 that, given the -- given that my colleague also conducted interviews. And

17 in the final trip I recall doing extensive research on abuse and detention

18 and the destruction of civilian property, which also involved extensive

19 interviews, certainly more than two dozen. But to give you a precise

20 number, I'm not able at this point.

21 JUDGE BONOMY: When you say "twice as many on the second and third

22 visit," do you mean taking the visits together or do you mean twice as

23 many on each occasion?

24 THE WITNESS: Taking the visits together.

25 JUDGE BONOMY: Thank you.

1 MR. BAKRAC: [Interpretation].

2 Q. If I got it right now, so it is 60 interviews in all for all the

3 three visits, right?

4 A. Did you say 60? I -- I'm not able to answer that question because

5 I truly do not recall the precise number. If you were asking me --

6 Q. What I want to know you don't have to remember the exact number,

7 of course. I would like to know whether each of these 60 alleged

8 interviews was associated with a specific incident, or did you discuss

9 a -- one incident with a number of people?

10 JUDGE BONOMY: By my calculation there's at least 144 here. 40

11 plus 80 plus 24.

12 MR. BAKRAC: [Interpretation] You are right. You are right, Your

13 Honour. I lost track of the one with the colleague, but of course I was

14 mistaken in my calculation.

15 Q. Nevertheless, the question remains the same. Were these different

16 incidents or were a number of people associated with a single specific

17 incident?

18 A. These interviews were conducted in connection with a multitude of

19 incidents.

20 JUDGE BONOMY: Now, Mr. Bakrac, we need to interrupt about now.

21 Can you find a suitable moment?

22 MR. BAKRAC: [Interpretation] Well, perhaps it is a suitable moment

23 right now.

24 JUDGE BONOMY: Very well.

25 We'll adjourn and we'll resume at 20 minutes to 1.00.

1 --- Recess taken at 12.18 p.m.

2 --- On resuming at 12.41 p.m.

3 JUDGE BONOMY: Please continue, Mr. Bakrac.

4 MR. BAKRAC: [Interpretation] Thank you, Your Honour.

5 Q. Mr. Abrahams, just before the break we discussed the number of

6 municipalities in Kosovo. I'm interested in the following. What if I

7 told you that there are 29 municipalities in Kosovo instead of 14?

8 A. Then I would believe you.

9 Q. Since you carried out a very thorough research of violations of

10 human rights in a confined area, it sounds to me as if you were not

11 diligent enough not knowing this piece of information, since you stated

12 that the number was 14 instead of 29.

13 A. Then perhaps there is confusion on my part between the

14 municipalities and the districts. I was referring, when I mentioned

15 Glogovac, Srbica, Orahovac, and so on, to administrative districts. It

16 was how we divided the province up when doing our statistical analysis,

17 instead of to the particular municipalities, which apparently you are

18 referring to.

19 Q. And what if I told you in response to that that there are seven

20 districts and not 14?

21 A. To answer your question, maybe I can request to see the relevant

22 section of Under Orders to provide you with a proper answer.

23 Q. There is no need for that. This suffices. I will move on to

24 another topic. I was just trying to offer a comment about what you

25 stated.

1 To go back to your statement, this is P2228. Since it is actually

2 a compilation of three different statements --

3 MR. BAKRAC: [Interpretation] Could we please in e-court see the

4 statement dated the --

5 THE INTERPRETER: Could the counsel please repeat the date.

6 JUDGE BONOMY: Mr. Bakrac, can you repeat the date of the

7 statement?

8 MR. BAKRAC: [Interpretation] The date, Your Honour, is the 8th

9 until the 11th of March, 1993 -- 1999.

10 THE INTERPRETER: Interpreter's correction.

11 MR. BAKRAC: [Interpretation] The third page in both the B/C/S and

12 the English.

13 Q. Can you follow it on your screen?

14 A. I'm afraid not.

15 Q. Perhaps I could ask the questions without it, but perhaps for your

16 reference and use you should have it on the screen.

17 MR. BAKRAC: [Interpretation] This is page 3 of 14. Perhaps the

18 ERN number would be of some help. 225290.

19 This is the page. The fourth paragraph from the top. It

20 begins: "On the 7th of June, 1998 ..."

21 Here you mention an incident in the village of Vasiljevo, which is

22 the village closest to Novi Poklek. The incident you mention in this

23 paragraph, when did it take place?

24 A. The incident took place in the incident of Poklek, not in

25 Vasiljevo. Vasiljevo was where the villagers had -- had fled to because

1 Poklek was not safe at that time.

2 The precise incident in Poklek, I do not recall the exact date,

3 but it would have been in spring of 1998, I assume -- I believe in April

4 or May -- actually, if I'm not mistaken, May 31st, but I would have to

5 check to be precise, but I think it is May 31st.

6 Q. But you also allow for the possibility that it was in April,

7 significantly prior to you being in Vasiljevo.

8 A. The incident definitely took place prior to my arrival in

9 Vasiljevo. When exactly it took place I would have to check the report.

10 Q. If we go back a paragraph, the same page of the same statement,

11 there you mention an incident in Likosane and Cirez. And you state that

12 on the 24th of May, 1998 you were there. Do you know when the incident

13 you discuss here took place, the incident you collected information on

14 the 24th of May, 1998?

15 A. Yes. The incidents in Likosane and Cirez both occurred on

16 February 28th and March 1st of 1998.

17 Q. Therefore, almost two months before you went there and had that

18 interview, would you agree with me?

19 A. That's correct.

20 Q. Yesterday in the transcript - that was my learned friend

21 Mr. Stamp's examination-in-chief - you stated that you came to the area of

22 Drenica as late as September 1998 and that you carried out a detailed

23 investigation in December. Is that correct?

24 A. My first visit to the Drenica region was in May of 1998,

25 specifically May 24th. I subsequently visited Drenica again in late

1 September to conduct the investigations into the Gornje Obrinje killings

2 that we have mentioned before.

3 Q. When you spoke about this detailed investigation, I'm interested

4 in the following. On the 24th of May you were there by yourself; in

5 September you were there with another colleague by the name of Bouckaert.

6 What did this detailed investigation encompass? Did you have any forensic

7 experts with you, forensic pathologists, ballistic experts, and so on and

8 so forth, or did it only encompass interviews with some people?

9 A. Both Mr. Bouckaert and I have extensive experience operating in

10 war zones, and as a part of that we conduct investigations --

11 multi-pronged investigations. The essential element is the interview, as

12 I've mentioned, but in addition we survey the scene, we draw a map of the

13 environment, we look at the physical evidence to determine what took

14 place. We do not conduct extensive forensic examinations because we do

15 not have that expertise. In the Gornje Obrinje case, we advocated for

16 such an investigation but it did not take place. It was blocked. A

17 forensic team was blocked from performing its investigations.

18 Q. Therefore, in the other cases -- well, first I wanted to ask you:

19 What is your profession? What is your degree? Which schools you

20 attended, which universities?

21 A. I have a bachelor's degree in German language and international

22 studies and a master's degree in international affairs, with a

23 concentration in eastern Europe, media, and human rights.

24 Q. Can you explain to me what that has to do with any forensic

25 science, forensic pathology, and ballistics?

1 A. I do not have formal training in forensic science. I have never

2 claimed to have such formal training, but I do have experience in

3 conducting human rights investigations, both in non-conflict and conflict

4 environments, which includes training in tasks -- I would say tasks such

5 as overview assessments of crime scenes and determination of hostilities,

6 determination of whether hostilities occurred.

7 Q. Fine. You've stated now and before as well that you had previous

8 experience from war-affected areas. I'm not asking you about your

9 experience as you -- as it is now, but as it was before 1998. What

10 war-affected areas did you visit prior to that and what investigations did

11 you carry out in those areas?

12 A. The most relevant investigations -- well, human rights

13 investigations were in Czech and Slovak Republics, as well as in Albania.

14 The Albanian example does include an element of armed conflict because of

15 the 1997 violence that took place in the fall -- in March of that year,

16 March throughout the rest of 1997. But in terms of an armed conflict

17 under international law, Kosovo was the first such investigation that I

18 participated in.

19 Q. Thank you. Since we're discussing investigations, perhaps you can

20 tell me something. You probably remember testifying before this Tribunal

21 in the case against Mr. Milosevic. Is it correct that in your answer to

22 one of Mr. Milosevic's questions, this is page 6.113 of the transcript,

23 his question was: "Is bombing civilian targets a crime?" And there you

24 provide an answer. Perhaps you will forgive me for my translating. You

25 stated: "The Human Rights Watch organisation did not conclude that NATO

1 committed war crimes, although the organisation was critical of it because

2 of some targets hit by NATO. We didn't have compelling evidence to show

3 that NATO intentionally targeted civilian targets."

4 Then there was a comment by Mr. Milosevic, where he said that NATO

5 had used cluster bombs on page 6.114.

6 Your reply was that your organisation was critical of the use of

7 cluster bombs because such ordnance does not distinguish between types of

8 target and that you've expressed your concern, but nevertheless that your

9 threshold for evidence is a very -- or the benchmark is a very high one

10 and that it is the same for all your research and investigation. "Without

11 a final compelling proof, we cannot establish the existence of a war

12 crime."

13 Is it correct, and did you indeed state this in the Milosevic

14 case?

15 A. I would really have to see the precise English-language statement

16 to comment in particular on your assertion.

17 MR. BAKRAC: [Interpretation] Your Honour, with the usher's

18 assistance I can have that distributed. But I do have to say that there

19 are some notes of ours there, some scribbling. But the essence is there

20 and I believe it may be of help. Those are pages 6113 and 6114.

21 [Trial Chamber and registrar confer]

22 MR. STAMP: [Microphone not activated].

23 If you don't mind.

24 JUDGE BONOMY: While this is happening, Mr. Bakrac, you may be

25 able to assist me. We've got three-quarters of an hour remaining today.

1 We will have to adjourn at quarter to 2.00. If the witness has to come

2 back, he has to come back. But perhaps you could bear in mind that it

3 would be a pity if he had to come back because we need an extra five

4 minutes. And the same applies to Mr. Lukic. And it may be that the

5 cross is going to be much longer and nothing can be done about it, but I

6 simply draw it to your attention just in case there's a possibility of

7 finishing his evidence today.

8 MR. BAKRAC: [Interpretation] Your Honour.

9 [Trial Chamber confers]

10 MR. BAKRAC: [Interpretation] If I may, Your Honour.

11 [Trial Chamber confers]

12 JUDGE CHOWHAN: Please forgive me if I ask -- if I interrupt and

13 ask you something.

14 Whether something is a crime or not is not to be asked from a

15 witness. We have to discern it ourselves whether something is a crime or

16 not. And if such a statement was made in a counter-part case, that made

17 no difference because I don't know how it -- on what basis that was

18 accepted being a relevant question. But I'm opposing this because you

19 cannot ask such a question from a witness, whether such-and-such thing is

20 a crime or not. It's a legal question, and this sort of question is not

21 asked in cross-examination. This is my respectful view.

22 MR. BAKRAC: [Interpretation] No, Your Honour, I fully understand.

23 The point of my question is the degree and way of proving something, and

24 through these answers we are trying to establish, if I may call it so, the

25 double standard and double criteria used. That's why I asked the witness

1 about the nature of the investigations he carried out. Concerning what he

2 stated in the other case, that relates directly to the way such

3 investigations were carried out and conclusions were made.

4 MR. IVETIC: I'd like to add some points to this as well. I

5 believe --

6 [Trial Chamber confers]

7 JUDGE BONOMY: Carry on with you question, please, Mr. Bakrac.

8 MR. BAKRAC: [Interpretation] Your Honour, before I resume I just

9 wanted to provide an answer I still owe to you. I will do my best to

10 conclude until quarter to 2.00, but even under such circumstances

11 Mr. Lukic would not have had the time. Therefore, the witness will have

12 to return.

13 JUDGE BONOMY: No, I understand that may be necessary, but please

14 carry on.

15 MR. BAKRAC: [Interpretation]

16 Q. Mr. Abrahams, you've had sufficient time to review this. Is it

17 correct that you actually testified to this effect? Don't you see the

18 great discrepancy between what you said and the way you described your

19 detailed investigations, as you call them, in Kosovo?

20 A. Yes, this testimony is correct; but, no, I don't believe there is

21 a discrepancy.

22 Q. You believe, therefore, that three visits of three weeks each and

23 speaking to some people in a limited number of municipalities and speaking

24 only to some people suffice to carry out an investigation and come up with

25 a conclusion?

1 A. The four missions we undertook between May 1998 and March 1999

2 were extensive in nature. And while I am not able to provide an exact

3 number at this moment of interviewees and municipalities visited, I can

4 testify that they were exhaustive and extensive investigations, as was the

5 subsequent investigation of the NATO bombing's impact on civilians.

6 Q. Mr. Abrahams, I don't want to argue with you here. I'm interested

7 in the following only. Did you talk to the other side or did you only get

8 the statements from Albanian civilians? Did you try to obtain a statement

9 concerning a given incident from the other side as well or -- and did your

10 investigation only include taking civilian statements who -- civilians who

11 were Albanian and photographing the sites?

12 A. No. We strove to document abuses on all sides and the report,

13 Humanitarian Law Violations in Kosovo includes substantial information

14 about abuses against Serbian civilians or -- as well as ethnic Albanians

15 by the KLA.

16 Q. Mr. Abrahams, it seems we didn't understand each other. For

17 example, when we discuss the incident in the villages of Likosane and

18 Cirez, by way of example, did you talk to the alleged perpetrators? Did

19 you try to hear out the other side or did you only talk to Albanians?

20 A. In the cases of Likosane and Cirez, we attempted to get

21 information by means of the letters that were sent. We also -- I

22 personally had a meeting with Mr. Drobnjak, as mentioned, although I do

23 not recall the conversation well enough to tell you whether we

24 specifically discussed Likosane and Cirez. But we made efforts to obtain

25 and present the government's view, also by citing public records and media

1 reports that quoted government officials or gave government positions.

2 Q. Mr. Abrahams, you keep saying "we." Didn't you a moment ago tell

3 us that in May and June you were there by yourself?

4 A. You are correct. It is more appropriate for -- to say "me,"

5 personally, although working in an organisation I do have the support and

6 consultation of a large staff. So clearly I was the responsible

7 researcher, but I did have constant discussions with my colleagues and my

8 directors.

9 Q. Mr. Abrahams, further to this topic of detailed investigations, I

10 would like to turn now to P437, page 63 in the English version. In

11 e-court that's page 71.

12 Do you have that before you, that part of your report? This is

13 the report from October 1998.

14 A. I do not have that in front of me, no.

15 JUDGE BONOMY: Is this a different one of the statements or is

16 this the -- are we now going into one of the --

17 MR. BAKRAC: [Interpretation] No, Your Honour -- yes, I said that

18 it is a report dated October 1998 and that is in the English page 63 of

19 the document. In e-court it is page 63 of P437.

20 JUDGE BONOMY: What's the problem?

21 [Trial Chamber and registrar confer]

22 JUDGE BONOMY: You don't happen to have the -- a copy of this

23 report, do you?

24 MR. BAKRAC: [Interpretation] We don't have it, Your Honour.

25 JUDGE BONOMY: [Previous translation continues] ...

1 MR. BAKRAC: [Interpretation] Your Honour, my learned friends

2 helped me out. It seems I do have a hard copy.

3 With the usher's assistance, I've located the page in the

4 meantime.

5 JUDGE BONOMY: Thank you very much. I think -- no, no, we're --

6 is that the page now on the screen, 55?

7 MR. BAKRAC: [Interpretation] No, Your Honour.

8 JUDGE BONOMY: How about that one?

9 MR. BAKRAC: [Interpretation] Yes. Yes, Your Honour. Could the

10 witness please look at the fourth paragraph beginning with: "Also on

11 July 11th two Mother Theresa Society activists in Djakovica ..."

12 I apologise, Your Honour, the third paragraph beginning

13 with: "The incident was the second reported attack on Mother Theresa

14 activists. On July 11th, three men were fired upon by police believed to

15 be the police while returning from an aid delivery in the village of

16 Sibovac near Obilic. Xhevdet Stulcaku, vice-president of the Mother

17 Theresa Society in Obilic, was struck on the head with a bullet and is

18 currently paralyzed on the right side of his body."

19 Is that the incident described in your statement dated the 8th

20 until the 11th of March, 1999?

21 A. I would have to check this statement to be sure that this refers

22 to the statement, but I do recall this incident and I do recall

23 interviewing Mr. Stulcaku, who was paralyzed.

24 Q. And if you take my word for it, otherwise I can show it to you,

25 you entered this in your statement on violations of -- of international

1 humanitarian law. And in doing that, you thought the investigation was

2 detailed enough because you obviously state that he was shot at by men

3 believed to be members of the police. Do you still believe this is a

4 sufficient degree of proving something or anything?

5 JUDGE BONOMY: Mr. Stamp.

6 MR. STAMP: I'm objecting -- he's asking him to verify to the

7 passage in the statement. And I think the witness did ask if he could

8 see -- he did suggest that if he was shown that passage he could be more

9 precise in his answer.

10 JUDGE BONOMY: You're saying, Mr. Bakrac, that this is

11 specifically referred to in the statement P2228, are you?

12 MR. BAKRAC: [Interpretation] Yes, Your Honour. If you'll allow me

13 just one minute to find it.

14 Your Honours, that is -- that is on page 4. I assume it is page 5

15 of the English version of the statement that we referred to from the 8th

16 to the 11th of March, and we are talking about the fifth paragraph "on the

17 22nd of September, 1998, [deleted] I talked to [deleted] who had been hit

18 in a head by the bullet during the attack of the 11th of June."

19 Is this the incident that you referred to? I believe that that is

20 the incident that the book refers to also.

21 JUDGE BONOMY: The paragraph you may be referring to is actually

22 the striking of a young girl, I think. It starts: "In September 1998 in

23 Pristina hospital," is that --

24 MR. BAKRAC: [Interpretation] No, Your Honour. I apologise for

25 interrupting. In the B/C/S version it is page number 4. And in English

1 it is the fifth page.

2 I apologise, Your Honours, it is also page number 4 in the English

3 text.

4 JUDGE BONOMY: This is 4 of 14?

5 MR. BAKRAC: [Interpretation] Yes, yes, 4 of 14, Your Honour. It

6 begins with -- the second paragraph from the end, the next-to-penultimate

7 paragraph. It starts with paragraph 8 of the report of Human Rights

8 Watch.

9 JUDGE BONOMY: Thank you. Carry on.

10 MR. BAKRAC: [Interpretation]

11 Q. So is this the incident that you refer to in your statement? Do

12 you have your statement before you?

13 MR. BAKRAC: [Interpretation] May I, by your leave, Your Honours,

14 read it out for the witness. At chapter 8 of the HRW, October 1998,

15 titled "attacks and restrictions on medical and relief personnel."

16 "I referred to a number of incidents and witnesses on

17 22 September. I interviewed [deleted] who was struck in the head with a

18 bullet during the attack on 11 July, 1998 and is currently paralysed on

19 the right side of his body. I also interviewed his physical therapist and

20 members of his family."

21 Is that the event?

22 A. Yes, it is.

23 Q. So you will agree with me that your detailed investigation into

24 this incident, which you call an attack, ascertained that some people shot

25 at this person, some people believed to be policemen?

1 A. To answer your question would require me to consult the material

2 more in depth. My recollection is that witnesses saw the police in the

3 area at that time, but I cannot give you precise information. I frankly

4 just don't recall the precision -- the specific details of this case. I

5 can certainly obtain it for you, if necessary.

6 JUDGE BONOMY: Why is it, Mr. Bakrac, that you have a copy of this

7 with parts deleted? You omit -- or did you deliberately omit the name

8 yourself when you were asking a question?

9 MR. BAKRAC: [Interpretation] No, Your Honour, no. I have this

10 version with struck out names right now and I was using that one.

11 JUDGE BONOMY: But you do have one which has the name in it?

12 MR. BAKRAC: [Interpretation] Yes, I do.

13 JUDGE BONOMY: Thank you.

14 MR. BAKRAC: [Interpretation]

15 Q. So if I understood you well, your conclusion is based on the fact

16 that there was police there, some people saw that there was police there,

17 but nobody actually saw them shooting at this person?

18 A. I truly do not know whether one of our witnesses said that they

19 saw the police shooting. I would have to consult the material directly to

20 give you an exact answer on that.

21 Q. Thank you. During a certain period in 1998 you also spent time in

22 the northern parts of Albania, right?

23 A. Correct.

24 Q. What period was that?

25 A. That was in July -- perhaps it was June, late June/early July of

1 1998.

2 Q. When you were staying in north Albania, did you happen to see any

3 KLA training camps?

4 A. Training camps I did not see, but I did encounter individuals from

5 the KLA.

6 Q. And when you say that you encountered individuals, did you have

7 such encounters in their headquarters or were these just chance

8 encounters?

9 A. One encounter I recall was in the hotel of Bajram Curri, where we

10 met a man who said he was a commander, and I do not recall his name. Many

11 people claimed to be commanders when they were not. I also recall the --

12 the KLA had captured two soldiers or men who claimed to be soldiers. They

13 had deserted from the army, so they claimed, and the KLA held a kind of

14 press conference, if you could, to present these men. And these men gave

15 a public statement and were then handed over to the OSCE, which was also

16 present in northern Albania at that time.

17 Q. We shall come to that detail very quickly. But before that could

18 you tell me, please, whether these persons from the KLA wore uniforms,

19 what kind of weapons did they have, what kinds of uniforms they wore, if

20 they had uniforms on and such details, please.

21 A. The individual in the hotel was not wearing uniform, nor was he

22 armed, or perhaps he had a concealed weapon. The individuals who held

23 this so-called press conference I do not recall, but I do believe they

24 were in uniform. I did not recall the weapons that they have. They were

25 certainly not openly visible; in other words, the KLA obviously -- they

1 considered this territory secure, so there were not armed guards in

2 defensive positions. But there may have been weapons in their -- in

3 the -- in their presence. If anything, they would have been automatic

4 rifles, probably AK-47.

5 Q. Mr. Abrahams, please be so kind as to tell me what uniforms do

6 they wear? Were those uniforms of the Albanian army or some other

7 uniforms?

8 A. I do not recall, but I know I subsequently saw in Kosovo and

9 probably -- but I'm not certain if I saw them in northern Albania,

10 although I know they were certainly in northern Albania, KLA members who

11 were in what I would military uniform, green, but distinctly with insignia

12 of the KLA; in particular, it says "UCK," which is the Albanian acronym

13 for Kosovo Liberation Army.

14 Q. Bajram Curri is in the territory of the Republic of Albania, am I

15 correct?

16 A. You are correct.

17 Q. Mr. Abrahams, now we should go back to what you said a while ago,

18 namely in this place Bajram Curri at a press conference you saw two

19 soldiers and Montenegrins, you say in your statement, Montenegrins who had

20 deserted the Yugoslav army. First of all, I should like to ask you

21 whether you talked to them and interviewed them.

22 A. We spoke to them very briefly, but we did not conduct an interview

23 with them. And the reason is that we were not confident about the

24 independence of their statements. Given the fact they were in KLA

25 custody, we were not certain whether these individuals would feel free to

1 give us independent and objective information.

2 Q. I'm very happy with your reply, and more so that's why I'm all the

3 more surprised why the allegations about the statements of these two

4 soldiers actually formed part of your statement because right now you said

5 that you did not conduct an interview with them because it was obviously

6 impossible for them to give you detailed and true information under the

7 circumstances?

8 MR. STAMP: Sorry. That is not a question. That is a comment

9 from counsel. But again, I would ask just to refer us to the point, if

10 it's not too difficult, in the statement that is being cited, please.

11 JUDGE BONOMY: Can you direct your attention, please, Mr. Bakrac,

12 to the part of the statement?

13 MR. BAKRAC: [Interpretation] Yes, Your Honour. Just a minute to

14 find it.

15 That is the same statement from the 8th to the 11th of March,

16 1999, page 8 of 14, paragraph the fifth from the top. It starts "on the

17 21st of June, 1999."

18 Q. In fact, you quote their words which they uttered at the press

19 conference.

20 MR. BAKRAC: [Interpretation] And if you will allow me to respond,

21 I'm not eliciting a comment. The witness has just said that he did not

22 conduct an interview with them because he was doubtful as to the

23 objectivity and validity of such an interview, in view of the fact that

24 they were in custody and have been imprisoned by the Albanians. So it is

25 my question rather than a comment, the witness having said that to us now,

1 why is this a part of his statement in the form that it is a part of it

2 [as interpreted]?

3 JUDGE BONOMY: Yeah.

4 THE WITNESS: Yes. We presented that information -- their words,

5 but also making clear the context in which those statements were made so

6 the reader can deduce and decide how much weight to place on those

7 comments. And I would ask the Court to make the section of that report

8 available to me so that I could respond with more precision whether we had

9 any editorial comment or placed the quotations from these alleged soldiers

10 in context.

11 JUDGE BONOMY: Well, it's P2228. I don't know what the number of

12 the page is, though, for e-court. It's 8 of 14 on the statement, and it's

13 the --

14 MR. STAMP: [Microphone not activated].

15 Sorry, it's page 35 in e-court.

16 JUDGE BONOMY: All right. Thank you.

17 MR. STAMP: I beg your pardon, the exhibit, though, that the

18 counsel is referring to, if I may clear it up --

19 JUDGE BONOMY: Is P2228.

20 MR. STAMP: -- 2228. And that is not the exhibit that's on the

21 screen now. So we need page 35 of P2228.

22 JUDGE BONOMY: Scroll down. It's the next paragraph that we can't

23 see. Now, right down to the bit in italics, which is the bit that counsel

24 is interested in. That's fine. Thank you.

25 Now, there you have the complete context, Mr. Abrahams, but bear

1 in mind when you answer that this is your statement to the Court, it's not

2 a report.

3 THE WITNESS: Yes. And I'm not sure, Your Honour, if we included

4 any of this information in the report itself. In fact, I doubt that we

5 did.

6 JUDGE BONOMY: I appreciate that. The question you're being

7 asked, though, is why did you just present the matter in this way without

8 commenting, as you have in your evidence orally, that you wouldn't rely on

9 this evidence because of the circumstances in which it was obtained?

10 THE WITNESS: Yes. I presented this information in order that it

11 could be known what I had observed and -- well, frankly, with retrospect I

12 would add the qualifying paragraph that I expressed here today; namely,

13 that we did not conduct an in-depth investigation -- interview with these

14 gentlemen because of our concerns about their reliability as witnesses.

15 JUDGE BONOMY: Mr. Bakrac.

16 MR. BAKRAC: [Interpretation] Your Honour, it -- because we are

17 near our break I will ask a question which I consider to be of the

18 essence, and I want to ask it before the break. This is also this

19 statement from the 8th to the 11th of March, 1999. In English the page

20 number is 10 of 14, the third paragraph. In e-court it is page 37.

21 JUDGE BONOMY: [Microphone not activated].

22 MR. HANNIS: Your Honour, I believe the court reporter can't hear

23 you because the interpreter's microphone is still on.

24 JUDGE BONOMY: Sorry.

25 All I was saying is that this gives us the answer to another

1 question that was asked earlier which is the number of times that

2 Mr. Abrahams visited Kosovo during the relevant period, and this statement

3 was the one produced in much nearer -- produced much nearer to the time

4 and indicates five visits.

5 Please carry on, Mr. Bakrac, with your question.

6 THE INTERPRETER: Counsel, turn his microphone on.

7 MR. BAKRAC: [Interpretation] Your Honour, I'm going to read a part

8 of the statement of this witness, and I shall ask him to give me an answer

9 on the basis of what we have been discussing so far about the number of

10 his visits, who he was accompanied by on these visits, and the sentence is

11 as follows.

12 "From May 1998 until February 1999, I witnessed a pattern of

13 destruction throughout the villages in Kosovo which had been caused by

14 offences by Serbian forces through five separate missions to Kosovo."

15 So the question now is: Is it three or four, or is it four or

16 five? And can the witness make such an allegation, given what we have

17 heard from him about the situation in the territory, how -- how they were

18 able to cover the territory in terms of their staff and in view of the

19 fact that he was there with just a colleague, one colleague of his.

20 JUDGE BONOMY: Well, there are two questions there, Mr. Abrahams:

21 How many times you visited; and can you make this assertion based on the

22 visits that you paid? And when you've completed the answer to that, then

23 we'll be adjourning. So could you answer that question, please?

24 THE WITNESS: Yes. Well, I do rely on my sworn statement that it

25 was five missions. Perhaps there was some confusion over whether I was

1 referring to only the visits in 1998, but there definitely was a final

2 visit in early 1999 I recall precisely because it was just in the days

3 prior to the first Rambouillet negotiations. So I certainly was there in

4 1999 and four times then in 1998.

5 As to our coverage of the conflict at that time, I personally

6 undertook those five missions. My colleague, Peter Bouckaert, was with me

7 on two of them. We also had a third individual, Gordana Igric, who was

8 repeatedly frequently in the province. She lived in Belgrade, travelled

9 to Kosovo frequently. I'm distinctly aware of two research missions she

10 undertook there. In February 1999 I was together with her. And if my

11 memory serves me correctly, also in December 1998 I was with her. And

12 there may be other times as well when she was in Kosovo. So those three

13 researchers, myself and two others, were the people who conducted the

14 research on which our conclusions are based.

15 JUDGE BONOMY: And were your investigations sufficient to reach

16 the conclusions that you've set out in the paragraph -- or at least to

17 make the statement, rather, not the conclusion, but the statement?

18 THE WITNESS: I believe that we conducted adequate investigations

19 to reach the conclusions, as published in our reports.

20 JUDGE BONOMY: Thank you.

21 Well, we will have to adjourn there for today.

22 I'm afraid, Mr. Abrahams, that means that you have to come back

23 here, and that will be on the 7th of August for a 9.00 start. Meanwhile,

24 I don't think I need to remind you, but I think it's only right that I

25 should so everyone hears the position clearly being acknowledged by you,

1 that between now and then you should have no communication with anyone at

2 all about the evidence you've given or the evidence you're about to give

3 in the case. Do you understand that?

4 THE WITNESS: I do, Your Honour.

5 JUDGE BONOMY: Thank you very much.

6 Well, the court is now adjourned until the 7th of August

7 at 9.00 a.m.

8 --- Whereupon the hearing adjourned at 1.44 p.m.,

9 to be reconvened on Monday, the 7th day of

10 August, 2006, at 9.00 a.m.

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