150907ED

Page 38686

1 Some days after the explosion, Major Russell accompanied some

2 UN personnel to the basement of a building in Sarajevo where the Bosniak

3 side kept ammunition. One of the UN personnel had the tail fin recovered

4 from the Markale explosion with him. One of the group found a box of

5 hand-manufactured 120-millimetre mortar rounds that appeared to be welded

6 in the same way as the welding on the tail fin from the market.

7 And this completes the summary.

8 Q. Now, Major, I'd like to get some more information about parts of

9 your statement from you.

10 First if we can look together at paragraph 3 on the first page.

11 Here you talk of your deployment as an UN Military Observer first at

12 Zadar and then at Visoko. What was your position in relation to the UNMO

13 structure at each location?

14 A. Initially in Zadar, I was a new Military Observer, and then

15 within a month I became the deputy team leader, and within that same

16 month I became the team leader of 21 UNMOs from different countries in

17 Team Zadar.

18 When I was assigned in Visoko, in Visoko I was there for one

19 month and I was the OPS officer of Team Visoko.

20 Q. And if we stay on this page and look at paragraph 4, here you

21 describe your transfer to the role of military assistant to

22 Sergio de Mello. What kind of duties did Mr. de Mello fulfil within his

23 role?

24 A. Mr. de Mello was the assistant to the delegate of the Special

25 Representative of the Secretary-General in the former Yugoslavia.

Page 38687

1 Q. And now in relation to your own duties while at this position,

2 what did they generally entail?

3 A. As this was a new position, I received direction from

4 Mr. Sergio Vieira de Mello that I would assist him at the highest levels

5 in issues of protection of diplomats or heads of states that would visit

6 Sarajevo, and also assist him in moving deserving people or assisting

7 people that needed maybe medical attention or some other type of

8 attention outside of Sarajevo.

9 Q. Now if we look at paragraph 8 of the statement, still on the

10 first page, here you talk about the crater analysis and training course

11 in -- while -- while in Knin, I think it is. Can you tell us your

12 recollection of who instructed that course or taught that course.

13 A. The course in Knin was conducted at -- in Sector South there.

14 The person conducting the course was a major in the Canadian artillery,

15 and he worked either in Sector South headquarters in Knin or out of

16 Zagreb. I'm not sure which one.

17 Q. And did anyone else attend this training course?

18 A. Yes. There were at least a dozen - and 12 is the minimum that I

19 can remember - of the other UNMOs in Sector South and also of the

20 battalions that were there, members of the battalions. And I can

21 certainly remember there were at least, as an example, three warrant

22 officers from a Canadian battalion that also participated in that, all of

23 which would find themselves periodically at the front line.

24 Q. Okay. Now in this paragraph, you state that the course included

25 one half day of actual crater analysis in the field. Could you tell us

Page 38688

1 how this functioned or operated?

2 A. Well, at the time, that sector was quite active and after the

3 one-day training, the next day we were able to go to actual craters that

4 had hit the ground fresh, I would say fresh, some of them were within

5 three hours.

6 Q. And in paragraph 9 at the bottom of the page, you identify that

7 you did several crater analyses in addition to the one at Markale market.

8 Can you first tell us the total number of such incidents you had to

9 perform analysis for, and chronologically, did they occur before or after

10 the Markale I?

11 A. To the best of my recollection, I did five crater analyses and I

12 believe four of them were before the market one.

13 Q. And by whom would you normally be tasked to do that -- those

14 prior crater analyses?

15 A. In -- initially it was with BH command forward in Sarajevo. The

16 Force Commander then would direct his staff to get me to go do some

17 crater analysis. And in the particular case of the market shelling, it

18 was directed from BH command in Kiseljak.

19 Q. And these prior crater analyses that you performed, were they

20 before or after you were assigned as military assistant to Mr. de Mello?

21 A. It was at the same time.

22 Q. Okay. Now if we turn to the next page of your statement --

23 JUDGE ORIE: Could I ask one clarifying question --

24 MR. IVETIC: Yes.

25 JUDGE ORIE: You said you did all together some five crater

Page 38689

1 analyses. Is that correctly understood?

2 THE WITNESS: There, yes, sir.

3 JUDGE ORIE: I'm looking at your statement paragraph 9 it says:

4 "I was called upon to do a crater analysis on several occasions.

5 In addition to the Markale market," so Markale market is one, "I recall

6 doing one crater analysis at the Egyptian Battalion," that makes two,

7 "one at the French Battalion," that makes three, "then a few at the

8 airport," which makes at least two, which makes five, "and a few," and I

9 do understand that also to be plural, at least two, "in the streets of

10 Sarajevo."

11 So my total counting brings me to seven. I'm therefore seeking

12 clarification as to why you say five. Or is any of the streets of

13 Sarajevo included -- is Markale market included in that or ... I'm a bit

14 puzzled by the five against the minimum number of seven I count in your

15 statement.

16 THE WITNESS: Your Honour, I can only remember five.

17 JUDGE ORIE: Okay. Thank you.

18 Please proceed.

19 MR. IVETIC:

20 Q. If we could turn to the next page in your statement and

21 paragraph 10, here you talk of a few crater analyses in southern Lebanon

22 in 2000 through 2001. Can you tell us -- what can you tell us about

23 these analyses that you performed?

24 A. One specific incident that I remember was a group of craters that

25 were fired by a 155 battery into an area in south Lebanon to cut off a

Page 38690

1 road for withdrawal type, and those craters were in the field minus of

2 the road, a few were on the road, and a few were plus of the road in the

3 other field. So I saw those as a good opportunity, since they were

4 really good imprints, to teach some of the fellow UNMOs that I was with

5 some crater analysis.

6 Q. Okay. And in the very next paragraph, paragraph 11, you state

7 that you had some role in providing advice to the preparation of training

8 scenarios for personnel to be deployed as UNMOs. What exactly was that

9 role and what kind of advice?

10 A. When I left UNTSO, I was posted back in Canada at the Peace

11 Support Training Centre and there I talked to my commanding officer and I

12 convinced him that one of the things that was lacking in our training was

13 crater analysis. I therefore produced training analysis scenario and

14 displays to show that issue and we introduced that into part of the

15 Military Observer training to this day.

16 Q. And now I would like to spend some time talking about your

17 involvement in the Markale market analysis in February of 1994.

18 In paragraph number 12 on this page, you say that you were tasked

19 to go to the scene of the explosion by UN Deputy Commander Ramsey. What

20 precisely were you told had happened prior to going to perform your work

21 at the site?

22 A. When I was -- when I found out that I was tasked to go to the

23 market, which I received through a Motorola communication, I was at that

24 time at the Sarajevo airport. I was not aware -- I was aware that an

25 incident had occurred in town but the specifics were not clear to me

Page 38691

1 until I was specifically tasked to go down there and conduct a crater

2 analysis by myself.

3 Q. At the time you were given the assignment, were you told anything

4 about the activity of other UN teams at the marketplace?

5 A. I was totally unaware of any other activity. When I got there, I

6 assumed I was the UN representative doing the crater analysis.

7 Q. Now, in paragraph 14 of the statement that we have in front of

8 us, you say that you got down on one knee to conduct a quick crater

9 analysis. Can you tell us in some more detail what kind of methodology

10 you used to perform this analysis and what kinds of things you were

11 looking for.

12 A. When initially arriving at the site, the first thing I did was I

13 overlooked the site to see if it was safe to go into the site. I then

14 went to the spot where there was the imprint of a round -- a mortar round

15 on the ground. I then conducted a crater analysis first by doing --

16 trying to determine the direction and I did that by inserting a stake in

17 the middle of the imprint and then in the -- another stake towards the

18 nose furrow. And those two, once they were aligned, I took a bearing on

19 those two and that gave me the general direction from which the round was

20 fired. I measured that, I'd say, about three times to confirm that I was

21 on the right track on the measurements because you're dealing with mils

22 or degrees, in this particular case was mils, and you had to be as

23 precise as you could on that.

24 I then determined the angle of descent, and there is when I found

25 quite interesting that it was the -- the imprint was not that big and

Page 38692

1 that when I was looking at the imprint and I was looking at the direction

2 of where the imprint -- where the indication of the round came from, I

3 kept looking up and up until I reached the top of the -- quite a high

4 building, and I found it quite interesting that only one round had been

5 fired and that it had to be in a steep angle to clear that building to

6 where it landed.

7 Q. And this method that you utilized at the Markale market on that

8 day in February of 1994, how did it compare to the method that you would

9 normally use to examine mortar craters to determine bearing and angle of

10 descent?

11 A. I did it based on what I learnt in Knin.

12 Q. And now looking at page 3 of your statement and paragraph

13 number 20, you state here that you no longer have the measurements you

14 took but you have no reason to doubt those that are recorded in the UN

15 report of 450 mils. I'd like to -- and then you have a footnote for that

16 report.

17 MR. IVETIC: I'd like to take a look at P538 in e-court briefly.

18 And once we get to that document, I'd like to turn to page 9 in the

19 English and page 11 in the B/C/S.

20 Q. And, sir, here we have a table of results of various UN personnel

21 that measured the crater. Have you seen this before?

22 A. I've seen the one on the right, but I've never seen the one on

23 the left.

24 Q. Okay. And that would be the one --

25 A. The English one.

Page 38693

1 Q. Yeah, okay. And is this -- how does this relate to the report

2 that is referenced in your statement here in paragraph number 20 and 21?

3 A. To the best of my recollection, those are the measurements that I

4 found at the site but I've never seen them in this format until I looked

5 at that particular page.

6 Q. Okay.

7 MR. IVETIC: And now I'd like to take look at another part of

8 this document that we have on our screens now, P538. I think it will be

9 page 30 in the English and page 39 in the B/C/S.

10 Q. And first of all, to clarify here, under number 7, we see

11 testimony, Sergeant Chief Bouquet, headquarters Sector Sarajevo, and it

12 describes that he led a detachment of soldiers from Sector Sarajevo

13 headquarters tasked to assist in cleaning up the market late on the

14 afternoon of 5 February. His description of the site matches that of

15 other witnesses. He confirmed seeing only one wooden stall surface that

16 showed major effects of the blast and fragmentation.

17 First of all, sir, is this individual's activities at the

18 Markale marketplace at all related with what you were doing?

19 A. No, they are not.

20 Q. And if we go to the next page in B/C/S and stay on the same page

21 in English, we see the next entry, number 8, testimony: Major Russell,

22 BH command forward. And you can read here:

23 "During the afternoon of 5 February, Major Russell was at the

24 residency. He was ordered to visit the site by Brigadier Ramsey, COS BH

25 command HQ, and arrived at the market between 1615 and 1630 hours. He

Page 38694

1 walked directly to the site of the crater. There were many reporters in

2 the area, some tables were upset, and he noticed tools - a chisel and a

3 red pipe wrench - within 1 metre of the crater. He saw no shrapnel in

4 the area and concluded that the entire area had been swept thoroughly.

5 He noted that most of the tables (stalls) were intact."

6 Now, do you recall being interviewed and providing this

7 information to someone at the UN?

8 A. Yes. May -- am I allowed to comment, Your Honour, on that

9 statement?

10 JUDGE ORIE: If Mr. Ivetic invites you to do so, you can do it

11 but --

12 THE WITNESS: May I comment on that, sir?

13 MR. IVETIC: Yes, you may, sir.

14 THE WITNESS: Thank you. It says in the first sentence "was at

15 the residency." That is my -- where I worked from. On that particular

16 day when I got notified to do this, I was at the airport.

17 Q. Okay. And apart from that one correction, does this accurately

18 record the information that you provided to someone at the UN?

19 A. Yes, this was a report that was subsequently generated.

20 Q. Do you recall who it would have been who interviewed you to

21 obtain this information?

22 A. It was at the time, Colonel ...

23 Q. If I can assist, was he a fellow Canadian --

24 A. He was a Canadian, I just can't remember his name.

25 Q. Okay. Fair enough. Was he a colonel?

Page 38695

1 A. Yeah, he was a colonel at the time and -- I can't remember his

2 name. I've got a --

3 Q. Fair enough. We'll move on. It's not that big of an issue.

4 Now if we could turn to page 50 in English and page --

5 A. Excuse me, Joudry. The colonel's name was Colonel Joudry.

6 Q. Thank, sir.

7 A. I think.

8 Q. I think you're right. Now if we could turn to page 50 in English

9 and page 69 in the B/C/S, there is another part of this document that

10 bears your name. This fax cover sheet lists you in the upper right and

11 has a signature. First of all, do you recognise the signature?

12 A. Yes, I do, sir. It is my signature.

13 Q. And now it lists you as the drafter, and then we see some text at

14 the bottom half of the page that says: "Attached please find," and then

15 the rest. Are you the author of this portion of the document as well?

16 A. No, sir, I'm not the author of the portion below the box, but I

17 am the author of the statement that accompanied it.

18 Q. Do you have any idea as to who may have prepared the portion that

19 is below the box?

20 A. I believe that it was the releasing officer, Major Chretien.

21 Q. Okay. And if we can go to the next page in both languages, and

22 looking now at the English original, the second paragraph looks identical

23 to the second -- to the paragraph that you cited in paragraph 15 of your

24 statement as being the memorandum to Mr. de Mello. Is this, in fact, the

25 memorandum that is referenced in paragraph 15 of your statement?

Page 38696

1 A. Yes, it is.

2 Q. And now in the paragraph marked number 1, you comment that a

3 minimum of three craters will give a better chance of identifying the

4 source than just one.

5 Can you please explain that for us.

6 A. When you fire just one round, normally mortars register their

7 targets. If it's not a registered target, when you fire just one round,

8 then the mortar beds itself or gets in deeper in the ground when it's

9 fired, the mortar base plate. And if you fire a few more rounds, then

10 the base plate gets embedded a bit more, and since mortars are aerial

11 weapons as opposed to precision right-on-the-spot weapons, they have a

12 zone of dispersion. And in this particular case I found that quite

13 unusual to have one round hit a target when I was not aware or found that

14 there was any registration to that particular site and that one round --

15 three rounds would have been better for more information.

16 JUDGE MOLOTO: If I can just ask for clarification, you're saying

17 one round hit a target. What was the target? Do you know?

18 THE WITNESS: I don't know, sir. It's --

19 JUDGE MOLOTO: So we don't know whether this was the target.

20 THE WITNESS: I don't know.

21 JUDGE MOLOTO: Absolutely. So we can't say it hit the target.

22 THE WITNESS: Okay, well, it hit the ground.

23 JUDGE MOLOTO: It hit the ground.

24 THE WITNESS: Yes, sir -- yes, Your Honour.

25 JUDGE MOLOTO: But you don't know whether it was the target?

Page 38697

1 THE WITNESS: No, I --

2 JUDGE MOLOTO: Thank you -- thank you so much.

3 THE WITNESS: Yes, Your Honour, thank you.

4 JUDGE ORIE: I also would like to ask one question to clarify.

5 You said you were not aware or found there was any registration

6 to that particular site. What did you do to find out whether there was

7 any such registration?

8 THE WITNESS: If there would have been any previous registration,

9 Your Honour, the UNMO teams on both sides of the confrontation line

10 normally keep track of rounds fired out and the receiving side gets

11 rounds fired in.

12 JUDGE ORIE: My question was: What did you do to find out? Did

13 you check with all of them? Did you --

14 THE WITNESS: I -- I --

15 JUDGE ORIE: -- seek access to any target lists or ... what did

16 you do?

17 THE WITNESS: The --

18 JUDGE ORIE: Apart from establishing what we find here that you

19 were not aware.

20 THE WITNESS: Well, first of all, there were no strikes in the

21 area, no imprints --

22 JUDGE ORIE: Yes, but again, I'm asking you what you did.

23 THE WITNESS: Well, that's what -- Your Honour, that's what I'm

24 telling you. When I was there, I was aware there were no other, you

25 know, prints in the general vicinity.

Page 38698

1 JUDGE ORIE: You mean fired on recently or ...

2 THE WITNESS: Yes, correct, Your Honour.

3 JUDGE ORIE: You didn't find any imprints on the market or at

4 least near to the marketplace and -- so what you did, is you looked

5 around to see whether there were any other imprints.

6 THE WITNESS: And also, sir, reports from previous firings.

7 There were no such reports on -- available.

8 JUDGE ORIE: You inspected them systematically?

9 THE WITNESS: No, I did not, Your Honour.

10 JUDGE ORIE: What's then the basis for saying that?

11 THE WITNESS: Well, in my opinion, I was living in Sarajevo, I

12 went up and down those streets all the time. I had a general awareness

13 of what was going on inside the city.

14 JUDGE ORIE: Thank you.

15 Please proceed, Mr. Ivetic.

16 MR. IVETIC:

17 Q. And just so that we are clear, you've used the term "registered"

18 or "registering." How does an army operating an indirect fire piece of

19 equipment register a target?

20 A. Although I'm not an artillery officer, we worked closely with

21 artillery and the procedure is basically deciding on what target to be

22 hit and then you fire a number of ranging rounds to it, and once you have

23 achieved the desired effect and the closeness to that particular target,

24 you log in your firing log the line and elevation that you used to fire

25 it. And therefore if you need to fire that particular target, it has a

Page 38699

1 number, and you just look at the number, lay down the information, and

2 fire.

3 Q. And now if we could return to your statement, D1219, and once we

4 get there, if we could look at page 6, paragraph number 38, and here,

5 sir, you say:

6 "Sometime during the week after the explosion, I was interviewed

7 by the UN team commissioned to investigate the Markale shelling."

8 Which interview is at issue here? Is it the one we talked about

9 previously or is it in addition to the one we talked about previously?

10 A. I don't understand what you're saying. What number are you

11 looking at here, please?

12 Q. 38. Here you talk about an interview by the UN team commissioned

13 to investigate the Markale shelling. You previously told us were

14 interviewed by Colonel Joudry. Is this interview in addition to the

15 interview that you had with Colonel Joudry or is it that same interview?

16 A. That is the same interview.

17 Q. Okay. And at the time did the members of the UN team

18 commissioned to investigate the shelling tell you if their conclusions

19 about the potential origin of the round differed from yours?

20 A. I don't recall --

21 MR. WEBER: Your Honours, I'm just going to express a little

22 concern right now. The question's been asked, just it's the leading

23 nature. If he talked to them, what did they say, what happened. There's

24 introduction of information.

25 JUDGE ORIE: Mr. Ivetic, would you keep that in mind. Perhaps

Page 38700

1 you rephrase the question.

2 MR. IVETIC: Okay.

3 Q. Well, sir, the last sentence of your statement says:

4 "I recall being told during the interview that my calculations

5 were closest to the calculations that their team had done."

6 Did they tell you anything else, or what does that mean?

7 A. No, that's all that I was told.

8 Q. Okay. And --

9 JUDGE MOLOTO: Were you given any figures that were perhaps close

10 to your figures or --

11 THE WITNESS: I didn't know -- there was a time where I didn't

12 know that anybody else had been on the site, and the figures, I saw them

13 when they were in that chart for the first time for comparison.

14 JUDGE MOLOTO: But during the interview, you didn't see any

15 figures?

16 THE WITNESS: No, Your Honour.

17 JUDGE MOLOTO: Thank you.

18 MR. IVETIC:

19 Q. And now I want to turn back to page 3 in your statement and

20 paragraph number 18. In this paragraph, you state that you observed a

21 smaller imprint than you would have expected which led to you believe

22 that the round may have struck a table before hitting the ground. And

23 then in the very next paragraph, paragraph 19, you say based on

24 information that you discovered later, namely that the tail fin had been

25 embedded in the ground, caused you to change that assessment.

Page 38701

1 Now given all that, do you have any other information that would

2 account for the imprint being smaller than you would have expected?

3 A. The -- I believed initially that the round had started its

4 initiation of explosion before it hit the ground because the imprint was

5 smaller than normal. But it was bigger, the imprint was bigger than an

6 82-millimetre mortar that I had done before on some of the other crater

7 analysis. Having found out there was a fin that had been embedded in the

8 grouped and removed, I then determined that I was wrong in that initial

9 assessment and believe that the round actually hit the ground. The size

10 of the crater may have been a result of the steepness of the angle of

11 descent.

12 Q. And now --

13 JUDGE ORIE: Could I ask you -- what do you exactly understand by

14 imprint? The pattern of damage around the precise point of impact, or

15 the point of impact itself, the size of any -- a hole that may be dug

16 into the ground? What exactly do you understand by imprint?

17 THE WITNESS: Your Honour, I'm talking now about the exact

18 imprint, the footprint of that round in the ground.

19 JUDGE ORIE: Do you -- in terms of size approximately, so it's

20 not the pattern of damage around the impact but the impact itself. But

21 would that include, for example, the small hole that it may dig on

22 impacting?

23 THE WITNESS: Yes, Your Honour. It's the pattern of that

24 particular round. I'm just talking about when the round hit the ground

25 it makes a print.

Page 38702

1 JUDGE ORIE: Yes, but --

2 THE WITNESS: Splashing and ...

3 JUDGE ORIE: Yes. And that is all included in what you say is

4 the imprint.

5 THE WITNESS: Yes, but I'm not talking about the material around

6 the market. I'm talking about the round lands and shrapnel escapes the

7 round and makes imprints on the ground.

8 JUDGE ORIE: Yes. So it's the whole of the picture that is

9 created by the particles of the projectile visibly later on the ground.

10 Is that --

11 THE WITNESS: That is correct, sir -- Your Honour.

12 JUDGE ORIE: And then approximately for a 120-millimetre mortar,

13 what is the -- what do you consider to be the usual imprint and what do

14 you consider to be a smaller than usual imprint?

15 THE WITNESS: It depends, Your Honour, on how the round hits the

16 ground. At a lower angle, it spreads more. At a higher angle, it

17 becomes smaller. So the lower the angle, the spread is longer. As you

18 increase the angle this way, the spot on the ground becomes smaller.

19 That's what I'm talking about.

20 JUDGE ORIE: Yes. Let's leave it to that for the time being. I

21 mainly was interested to know exactly what you considered to be the

22 imprint.

23 Please proceed.

24 MR. IVETIC: Your Honours, we're at the time for the first break.

25 JUDGE ORIE: It is time for the first break.

Page 38703

1 Mr. Russell, we'd like to see you back in 20 minutes. You may

2 now follow the usher.

3 THE WITNESS: Thank you, Your Honour.

4 [The witness stands down]

5 JUDGE ORIE: We resume at ten minutes to 11.00.

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

7 --- On resuming at 10.52 a.m.

8 JUDGE ORIE: While we are waiting for the witness to enter the

9 courtroom, I'd like to briefly address the following matter.

10 The Defence has recently filed a safe conduct motion in which it,

11 again, requested blanket immunity for its witness and asked that the

12 Chamber orders the Prosecution to refrain from contacting the witness

13 prior to the commencement or after the completion of his testimony. The

14 Chamber has repeatedly reminded the Defence both in court and in its safe

15 conduct orders that there's no basis for these two requests and that the

16 Defence should amend its future safe conduct requests accordingly.

17 The Chamber again invites the Defence to make these changes going

18 forward. Perhaps the copying and pasting should be done very carefully.

19 [The witness takes the stand]

20 JUDGE ORIE: Please proceed, Mr. Ivetic.

21 MR. IVETIC:

22 Q. Sir, I'd like to now take a look at 1D03949 in e-court.

23 MR. IVETIC: While we wait for that, I also have a hard copy,

24 with the assistance of the usher, that could be provided to the witness.

25 Q. And, sir, this document is very similar to the memorandum that we

Page 38704

1 just looked at which was part of P538 except that this one has some

2 handwriting in the paragraph 1 that we just looked at in the other

3 document. Can you please tell us the author or source of this

4 handwritten material?

5 A. These -- that is my writing.

6 Q. And are you able to, first of all, read for us what is

7 handwritten on this first page, using either the monitor or the hard

8 copy, whichever is easier for you to view.

9 A. It says:

10 "This may no longer be true, but if they came from teams of

11 inspectors. If fin was stuck in the ground, then no above-ground

12 explosion occurred."

13 Q. Okay.

14 A. And on the back --

15 MR. IVETIC: If we can go to the second page.

16 THE WITNESS: On the back, I also wrote:

17 "This would happen anyway."

18 MR. IVETIC:

19 Q. Okay. And do you recall -- first of all, in your statement at

20 paragraph number 19, you talk about revising your assessment and making

21 notations on that document. Is this the document that you referenced in

22 paragraph number 19 of your statement?

23 A. Yes, it is, sir.

24 Q. Okay. And apart from these written modifications you have made

25 to your memorandum, do you still stand behind the conclusion that either

Page 38705

1 side could have been responsible for the mortar that landed that day in

2 Markale market?

3 A. Yes, I do, sir.

4 Q. Okay.

5 MR. IVETIC: And at this time, Your Honours, we would tender this

6 document, 1D03949, as the next exhibit.

7 MR. WEBER: No objection.

8 JUDGE ORIE: That's the handwritten version.

9 MR. IVETIC: The version with handwritten notations, yes.

10 JUDGE ORIE: Is it true there is no B/C/S translation?

11 MR. IVETIC: That is correct.

12 JUDGE ORIE: Yes. Of course, B/C/S translation would serve us to

13 have on paper also the text which was read by the witness. Now, usually

14 I don't have great concerns about the B/C/S translation, but here where

15 it may not be too easy to read it, perhaps we should insist on a B/C/S

16 translation, Mr. Ivetic. I hope you understand that it's mainly to avoid

17 whatever misunderstandings in the future, especially in terms of the

18 handwriting.

19 MR. IVETIC: I appreciate that, Your Honours. And as I

20 understand CLSS's position, I can only seek a B/C/S translation of a

21 document once Your Honours order me to get one, so that's --

22 JUDGE ORIE: Yes, I think under the present circumstances that

23 would be -- the Chamber would insist on having a translation in B/C/S.

24 Not that much in relation to the typewritten text but mainly in relation

25 to the handwriting.

Page 38706

1 Madam Registrar, would you please give a number under which this

2 document will be MFI'd.

3 THE REGISTRAR: 1D3949 receives Exhibit Number D1221,

4 Your Honours.

5 JUDGE ORIE: And is marked for identification. You'll inform the

6 Chamber once the B/C/S translation is uploaded, Mr. Ivetic, after you

7 have verified that the handwritten portions are appropriately dealt with.

8 Please proceed.

9 MR. IVETIC: Thank you.

10 Now, if we can briefly look at 65 ter number 19771 and page 5 of

11 the same.

12 Q. While we wait for that, this comes from a series of documents --

13 photographs, pardon me --

14 MR. WEBER: Judge, I would have some objection to the counsel

15 educating the witness as to what is depicted.

16 JUDGE ORIE: Perhaps you ask the witness what he thinks he sees

17 on the photograph, Mr. Ivetic.

18 MR. IVETIC: Okay. Let me ask this way.

19 Q. Have you ever seen this photo before I showed to you yesterday?

20 A. No, I have not.

21 Q. Okay. And did you see anything at Markale market similar to

22 this?

23 MR. WEBER: Your Honours.

24 JUDGE ORIE: Is this a bit leading, or very leading, or the most

25 leading, Mr. Ivetic? Would you please refrain from doing that.

Page 38707

1 MR. IVETIC:

2 Q. Was there any marking around the imprint of the crater shell that

3 you analysed at the Markale market?

4 A. Well, first, Your Honour, I don't recognise this picture. Second

5 of all, when I did my crater analysis, there was a lot of blood, a lot of

6 garbage, a lot of stuff around there, and there were no white marks like

7 that.

8 Q. Was there anything embedded in the furrow tunnel of the imprint

9 that you looked at on the day that you examined the Markale market

10 crater?

11 JUDGE MOLOTO: I suspect, Mr. Ivetic, the correct way to ask the

12 question is: What did you find? Not: Was there anything embedded?

13 Otherwise you're suggesting that there was something embedded.

14 MR. IVETIC: Well, Your Honours, we're dealing with a witness who

15 has given a statement as to --

16 JUDGE MOLOTO: That is true and he told us what he found.

17 MR. IVETIC: Yes.

18 JUDGE MOLOTO: So to further say to him something was embedded is

19 to introduce something to his mind which he hasn't commented upon on his

20 own free will.

21 MR. IVETIC: And I don't think that I'm suggesting that anything

22 was embedded. I'm asking him --

23 JUDGE MOLOTO: But you asked the question: Was there anything

24 embedded? That's the question you put.

25 MR. IVETIC:

Page 38708

1 Q. What did you find in the furrow tunnel of the imprint that you

2 examined on Markale market on -- in February of 1994?

3 A. When I looked at the imprint, I found disturbed ground, the

4 imprint itself, and then I proceeded to conduct a crater analysis.

5 Q. Okay.

6 JUDGE MOLOTO: Did you make any drawing of the shape of the

7 crater?

8 THE WITNESS: No, Your Honour, I did not.

9 JUDGE MOLOTO: Okay. Thank you.

10 MR. IVETIC: Okay.

11 Q. And when you proceeded to conduct your crater analysis, did you

12 have to examine the fuse furrow tunnel created by the impact of the

13 mortar round on the ground?

14 A. Yes, I did. I, first of all, looked for a fuse nose cone and I

15 didn't see any, and then I proceeded in conducting the crater analysis.

16 Q. Okay.

17 MR. IVETIC: And, Your Honours, at this time we would mark this

18 photograph for identification. I think we only need this one in relation

19 to the testimony of the witness.

20 MR. WEBER: Your Honours, I don't think the witness has offered

21 any comments of substance that necessitate even marking this exhibit at

22 this time. If counsel intends to use it with another witness that might

23 have more knowledge, they can be -- feel free to do so at that time.

24 JUDGE ORIE: Mr. Ivetic.

25 MR. IVETIC: Well, Your Honours, this is a Prosecution document

Page 38709

1 that has been represented as pertaining to the site and it's for

2 illustrative purposes only. When we say: Did you see something marked

3 this way, the only way we can know that is by looking at the photograph

4 to depict what is marked.

5 [Trial Chamber confers]

6 JUDGE ORIE: The objection is denied. The Chamber considers that

7 we would better understand the testimony of this witness if this document

8 would be in evidence. He said what he didn't see, for example, and then

9 it's always good to know what was shown to him. Therefore, and for --

10 and I have one additional question.

11 Mr. Weber, you -- Mr. Ivetic claimed that this is a photograph

12 provided by the Prosecution and is related to the Markale market

13 incident.

14 MR. WEBER: I'm trying to avoid any confusion on the record and I

15 understand Your Honours' ruling. If that's the case, then actually we do

16 have obviously a lot of other evidence admitted related this event. I'd

17 actually ask that all photographs be admitted, then, so we could properly

18 associate it to the rest of the materials and the timing and sequence of

19 the various investigations that happened, and not just an individual

20 photo.

21 JUDGE ORIE: Yes. Of course, a problem would be that if the

22 witness then tells us that he doesn't recognise all that, then it doesn't

23 bring us much further, but ...

24 MR. IVETIC: That's correct, Your Honours. And I can tell you in

25 relation to this Prosecution 65 ter number, it's --

Page 38710

1 JUDGE ORIE: One second, please, Mr. Ivetic.

2 MR. IVETIC: Oh.

3 [Trial Chamber confers]

4 JUDGE ORIE: Mr. Weber, if you think it would assist the Chamber

5 where the link as established now between the knowledge of the witness

6 and the photograph shown to him is sufficient to -- for us to admit, then

7 you can tender all of the other documents in cross, if you wish to do so.

8 MR. WEBER: Your Honours, I'll proceed as the Chamber wishes. I

9 believe this witness has been clear about his absence of knowledge and

10 having seeing these before. But we do have, for example, videos in

11 evidence so that's --

12 JUDGE ORIE: Yes, but that's a different matter. But in order to

13 know what the witness doesn't recognise, it's -- we need to have it

14 either marked for identification or in evidence. There is no dispute

15 about this being related to the 5th of February incident at the

16 Markale market.

17 MR. WEBER: Yes, although I think it is unclear as to the

18 chronology of when this was --

19 JUDGE ORIE: Okay.

20 MR. WEBER: -- so I understand Your Honour --

21 JUDGE ORIE: Okay. I take it that the witness can't help us with

22 that any further, Mr. Ivetic --

23 MR. IVETIC: No, I don't think he can, Your Honours.

24 JUDGE ORIE: Well, I leave it to you to -- otherwise the link, of

25 course, is not the strongest you could imagine.

Page 38711

1 Please proceed.

2 JUDGE MOLOTO: Can I just ask a question for clarification.

3 Mr. Russell, do you, as you sit here, have a recollection of the

4 shape of the crater as you found it?

5 THE WITNESS: Not in detail, Your Honour, but I remember it was

6 just a bloody hole.

7 JUDGE MOLOTO: I understand the blood. But -- I mean, I'm

8 talking about the shame.

9 THE WITNESS: Well, Your Honour, there's -- it was the shape that

10 I would have expected from a mortar round, you know, with the splattering

11 marks of shrapnel on the -- on the pieces of -- on the ground, but that's

12 it, Your Honour.

13 JUDGE MOLOTO: I'm really talking about the hole itself.

14 THE WITNESS: Well, there's always a hole and there's always

15 stuff in it.

16 JUDGE MOLOTO: Yeah. Can you remember the shape of that hole?

17 THE WITNESS: No, I don't remember that.

18 JUDGE MOLOTO: All right. Thank you so much.

19 JUDGE ORIE: Madam Registrar, the number would be?

20 THE REGISTRAR: D1222, Your Honours.

21 JUDGE ORIE: D1222 is admitted into evidence.

22 Please proceed, Mr. Ivetic.

23 MR. IVETIC: I thought it was MFI so we could --

24 JUDGE ORIE: Oh, yes.

25 MR. IVETIC: -- get only that picture.

Page 38712

1 JUDGE ORIE: Yes, then it's marked for identification awaiting

2 for the upload of this one and only picture.

3 Mr. Weber, if you want to tender them all, then rather say it now

4 that we keep them together, but apparently you are not.

5 Please proceed.

6 MR. IVETIC:

7 Q. Sir, if we could turn to your written statement, which has been

8 marked now as D1219, and look at paragraph 24 and 25 of the same to be

9 found on page 4, and here you are talking about the depth of the hole and

10 the effect of reinsertion of the tail-fin. In relation to this part of

11 your statement, you were asked in the Karadzic case about this, and I'm

12 about to read a selection from that transcript to you that starts at

13 transcript page 29392, line 4 --

14 JUDGE ORIE: Mr. Weber.

15 MR. WEBER: Your Honours, I don't see the Karadzic transcript as

16 part of the 92 ter materials, and I think that it's just been the

17 practice. We have elicited the evidence anew when matters that were in

18 other transcripts were not being offered as part of the 92 ter materials,

19 we've just a led it in court.

20 JUDGE ORIE: Of course, it's --

21 MR. WEBER: [Microphone not activated]

22 JUDGE ORIE: It's not part of the 92 ter materials, Mr. Ivetic?

23 MR. IVETIC: That's correct. I don't think we've ever tendered

24 transcripts from other proceedings unless they're pursuant to Rule 92 ter

25 or 92 bis. The Prosecution has used Sanction. I don't have Sanction,

Page 38713

1 but I do have the ability to show it if we could turn on the Defence

2 monitor. I do have the relevant transcripts on the screen and you can

3 follow along as we have done in the court for other witnesses.

4 JUDGE FLUEGGE: Mr. Ivetic, Mr. Weber mentioned something else,

5 that was that the Prosecution was not notified that you would use it.

6 The Prosecution uploaded a part of the transcript from another case as a

7 new 65 ter document.

8 MR. IVETIC: I beg to differ with counsel. If he looks at the

9 bottom of the list, he will see that the transcript is indeed listed as

10 prior testimony for this witness.

11 MR. WEBER: I do understand it's a part of my list. My concern

12 even more --

13 MR. IVETIC: It's part of my list.

14 MR. WEBER: -- more beyond this is that it -- I'm concerned about

15 where we're going here. It's a form of leading and proceeding this way

16 where we're bringing up the transcript in this manner. I understand I

17 can do that on cross-examination, but it's counsel's obligation, I

18 believe, at this time, to open-ended ask the witness questions if it

19 stems from the statement that tendered pursuant to 92 ter.

20 JUDGE ORIE: Mr. Ivetic.

21 MR. IVETIC: Your Honours, I can be fairly open with what I'm

22 going to do. I am going to present what was discussed with Prosecution

23 counsel in the Karadzic case, and I'm going to ask an open-ended question

24 in relation to that which he testified about in that case in this

25 paragraph, that will be completely open-ended.

Page 38714

1 JUDGE ORIE: Now, I think new for me is that you wanted to quote

2 parts of the cross-examination or was that ... I think it was not clear

3 to me -- does that change in any way your mind, Mr. Weber, that it will

4 be the OTP questions that will be put to the witness, and then I take it

5 that you'll seek either confirmation or denial of the accuracy of those

6 answers.

7 MR. IVETIC: That's correct.

8 MR. WEBER: One, right now I don't actually know what is going to

9 be asked but I don't think that would be proper to do because he's

10 leading the witness at that time. Counsel is leading the witness.

11 JUDGE ORIE: Well, if you want a witness to either confirm or

12 deny a previous statement, then it's good that he knows -- or a testimony

13 about what kind of questions put to you. But if you insist, the Chamber

14 has been relatively liberal in allowing the parties to put to a witness

15 what he testified in other cases. I also tend to agree with you that

16 that is -- more often was done in cross-examination, although not

17 exclusively, I think. If you insist, then we'll ask Mr. Ivetic, he can

18 read the questions that were put by you and seek an answer from the

19 witness.

20 MR. WEBER: Your Honour, I've stated our position and I defer to

21 you.

22 [Trial Chamber confers]

23 JUDGE ORIE: Mr. Ivetic, you're perfectly free to put a question

24 which is the same or similar to a question put by the OTP in another case

25 to the witness. But in view of the objections, you are supposed not to

Page 38715

1 give the witness an opportunity to look at his answers or read them to

2 him.

3 Please proceed.

4 MR. IVETIC: Okay. Then let me do the open-ended question I was

5 going to ask.

6 Q. Sir, after being cross-examined by the Prosecution as to

7 paragraphs 24 and 25 of your statement, do you have anything that you

8 wish to change as to paragraph 24 and 25 of your statement?

9 JUDGE ORIE: If you would need time to read them, Witness, please

10 do so.

11 THE WITNESS: I believe that the statements on 24 and 25 are the

12 ones that I have stated.

13 MR. IVETIC:

14 Q. Okay. And you stand by -- and do you stand by those?

15 A. Yes, I do, sir.

16 Q. Okay. Now, moving along to paragraph 27 of your statement, and

17 this is to be found on the same page, page 4, you say that speed that a

18 round hits the ground has never been an issue.

19 Can you tell us, sir, what does it's training in crater analysis

20 that is provided by the UN or the Canadian army have to say about taking

21 into account the speed of a round hitting the ground?

22 A. It was the UN, not the Canadian army that I took the training

23 from.

24 Q. Okay.

25 A. And in that training, the speed at which the round hits the

Page 38716

1 ground was not considered. We were just considering the direction and

2 angle of descent. And in my previous example of the crater analysis I

3 did in Lebanon, all the rounds that landed in the field were deeper in

4 the ground than the rounds that landed on the road. That's all I have to

5 say about that.

6 JUDGE ORIE: Could I ask you what triggered you to make this

7 observation in paragraph 27?

8 THE WITNESS: It was based on the Prosecution asking about the

9 depth, did I measure it, and I said no.

10 JUDGE ORIE: When you gave your statement, you had been

11 interviewed already by the Prosecution?

12 THE WITNESS: Yes, sir, I was. I was proofed by the Prosecution

13 in the other trial.

14 JUDGE ORIE: Yes. Let me see, you gave this statement, if I see

15 it well, on the 17th of October, 2011.

16 THE WITNESS: That's when I wrote it, yes.

17 JUDGE ORIE: Yes. You had been proofed by the Prosecution --

18 THE WITNESS: When I came in October of 2012.

19 JUDGE ORIE: Yes. I see:

20 "Prior to being interviewed by Peter Robinson on the 12th of

21 October, I had never been contacted by anyone from the ICTY. The

22 interview with Mr. Robinson was conducted in the presence of Major Marla

23 Dow of the Canadian Armed Forces."

24 Where were you interviewed by Mr. Robinson?

25 THE WITNESS: In Kingston, Ontario, sir, in Canada.

Page 38717

1 JUDGE ORIE: And when then -- you said you were proofed by the

2 Prosecution prior to giving this statement.

3 THE WITNESS: No. I was -- this statement existed and when I

4 came in 2012, the day before I testified, the Prosecution proofed me.

5 JUDGE ORIE: Yes.

6 THE WITNESS: And we had a discussion about the crater analysis.

7 JUDGE ORIE: Yes, okay, that's all fine. But I asked you what

8 triggered paragraph 27 in your statement. And you said: I was asked by

9 the Prosecution, but you had no spoken with the Prosecution yet when you

10 gave that statement.

11 So, again, my question is: What triggered you to say something

12 about the speed and that in your experience it had never been an issue?

13 What triggered that observation?

14 THE WITNESS: I can't remember. It could be Mr. Robinson asking

15 me: Did you consider the speed? I don't remember.

16 JUDGE ORIE: Yes. Thank you.

17 Please proceed.

18 MR. IVETIC:

19 Q. If we can take a look together at paragraph 32 on page 5 of your

20 statement, here you talk of hearing on CNN the evening of 5 February 1994

21 that the Bosnian Serbs had shelled the market. Do you know if anyone on

22 the UN side had made such a determination by that date?

23 A. To the best of my knowledge, no.

24 Q. In the remainder of this paragraph of your statement, you state

25 you believed this was the result of propaganda and that from then on, it

Page 38718

1 would be widely believed the Bosnian Serbs had fired the shell regardless

2 of the true facts. Whose propaganda did you have in mind?

3 A. Whoever had the most to gain from the particular comment.

4 Q. Okay.

5 JUDGE ORIE: Mr. Ivetic, would not be the first question: What

6 is the basis of your belief, to have a foundation for what is presented

7 here as belief rather than a personal observation.

8 MR. IVETIC: Okay.

9 Q. Sir, you've heard the question offered by the Honourable Judge.

10 Are you able to answer that question? What is the basis for your belief

11 that this was the result of propaganda? The statement on CNN.

12 A. There's always a -- everyone's in a hurry to find out who did it,

13 Your Honour. And the UN had not yet passed on the information they

14 received on those crater analysis to make it official, but the news media

15 was saying something and I don't know where they got it. So that's all

16 I'm saying based on that is, the -- to the best of my knowledge, at that

17 time, that evening, the reports from the crater analysis from all of us

18 was in the hands of the UN chain of command and had not been released to

19 the public.

20 JUDGE ORIE: Yes. So it was a conclusion of yours.

21 THE WITNESS: Well, I could see the TV said someone did it --

22 JUDGE ORIE: Yes, yes -- I see that. But that it was propaganda

23 was [overlapping speakers] --

24 THE WITNESS: It's a conclusion, yes, sir.

25 JUDGE ORIE: It's a conclusion. And then perhaps the next

Page 38719

1 question, whose propaganda it was, did you form any opinion about that?

2 Was it CNN making propaganda or someone who fed the CNN with that

3 information or any idea?

4 THE WITNESS: My answer to that, Your Honour, is whoever had the

5 most to gain from it.

6 JUDGE ORIE: Please proceed.

7 MR. IVETIC:

8 Q. Now, in relation to paragraphs 33 through 35 of your statement,

9 you reference a diary. Before we get to those specific parts of your

10 statement, I'd like to ask you about the diary. Was there a specific

11 reason that you had for keeping a diary?

12 A. In the Canadian Peace Support Operations training, one of the

13 things we train is to keep a diary.

14 MR. IVETIC: And now if we could take look at 1D03948 in e-court.

15 Q. And, sir, what we have on the screen now, do you recognise this

16 document?

17 A. Yes, this is my handwriting, and that's the pages in my diary.

18 Q. Okay. And when you say "that's the pages in my diary," in

19 relation to the selections identified in paragraph 33 and 35 of your

20 statement, how do these pages correlate to those selections?

21 A. They are an accurate reflection of what my opinion was, what I

22 thought of when I wrote it, based on those numbers you just --

23 paragraphs you just mentioned.

24 MR. IVETIC: Your Honours, we would tender this and leave it up

25 to Your Honours if we need a B/C/S translation of this. We can do it the

Page 38720

1 same way as the last document if you so order.

2 JUDGE ORIE: Well, if the parties would agree on what is written

3 here, then -- and that might even be a solution for the other matter as

4 well, perhaps a more simple one, without the need to have CLSS prepare a

5 translation. And, Mr. Ivetic, irrespective of what I said earlier,

6 perhaps you could seek an agreement with Mr. Weber on the accuracy of the

7 handwritten text at the UN report.

8 Is there any way the parties could agree on the content of what's

9 written here in the English language?

10 MR. WEBER: Your Honours, I believe that we can on both matters.

11 I do find that this document is legible, and I believe the witness did

12 correctly read in the handwriting from the earlier document into the

13 record.

14 With respect to the tendering of this particular document, we did

15 agree to proceed today with respect to the diary. We had asked for the

16 more complete version, but I believe this is just a matter of potential

17 weight for the document. And we do have a concern that this -- these

18 diary entries are potentially incomplete. For example, on page 164 it

19 doesn't appear to be the complete page, nor from page 165. So with that

20 being said, we just express that reservation and not articulate any

21 further specific objection to the admission of the document.

22 JUDGE ORIE: Yes. Mr. Ivetic, the incompleteness of the pages

23 seems not to be the major concern of the Prosecution, but the Chamber

24 would like to know what portions of a page it receives. If it is all

25 about the same day. I mean, what's the reason for perhaps not presenting

Page 38721

1 the full pages, if these are not the full pages.

2 MR. IVETIC: Your Honours, I can answer that. I'm presenting

3 what was presented in the Karadzic case and which I have access to. I

4 don't have access to the full diary. This witness has been presented to

5 us by the Rule 70 provider and the Rule 70 provider has not granted me

6 access to the whole diary.

7 JUDGE ORIE: Have you asked for it?

8 MR. IVETIC: I communicated the Prosecution's request for the

9 whole diary to them, yes, I have.

10 JUDGE ORIE: Mr. Weber, is it Rule 70 procedure which deprives of

11 us looking at the full pages?

12 MR. WEBER: Your Honour, it's the Defence that is the proponent

13 of the material and I properly made a Rule 67 request. And I believe it

14 is incumbent upon them as the tendering party to produce material that

15 they're seeking to provide, and I think that in that context there is no

16 Rule 70 aspect with respect to us. And yes, last Thursday, I was

17 informed by Mr. Ivetic that our Rule 67 request to the Defence related to

18 a document they're seeking to tender into evidence was forwarded to the

19 Canadian authorities.

20 JUDGE ORIE: I'm a bit puzzled by the present situation. There

21 are Rule 70 restrictions that do apply? Not as far as you are aware?

22 MR. WEBER: Correct.

23 JUDGE ORIE: Who received the material from the Canadian

24 authorities?

25 MR. WEBER: I believe it's the Defence.

Page 38722

1 JUDGE ORIE: It's the Defence.

2 MR. IVETIC: The Karadzic Defence.

3 JUDGE ORIE: Well, Mr. Ivetic, you're presenting it here.

4 MR. IVETIC: Yes.

5 JUDGE ORIE: So -- and what exactly are the Rule 70 restrictions

6 imposed on the Karadzic Defence?

7 MR. IVETIC: The excerpted diary that was presented and used

8 without any objection to the Prosecution in the Karadzic case is the same

9 document that we have now on our screen. In talking with the Canadian

10 authorities, they reminded me that I don't have a complete version of the

11 diary and that I -- that they were not in a position to give it to me,

12 but they invited the Prosecution to make a formal request of them and

13 they would consider it.

14 JUDGE ORIE: Have you asked the Karadzic Defence whether they

15 received a full copy of the pages 163, 164, and 165?

16 MR. IVETIC: Prior to this testimony, no. But I believe

17 previously when I did discuss -- this is a document that we obviously

18 received in disclosure from the Karadzic case. This is the associate

19 exhibit to this Karadzic statement that we're using with this witness, so

20 we did not create anything new or upload anything new. We just

21 transferred the exact same documents to our e-court and they obtained new

22 numbers in our system at this point in time.

23 JUDGE ORIE: Yes. Apparently you were satisfied by incomplete

24 pages. Let's see whether the Chamber also is.

25 [Trial Chamber confers]

Page 38723

1 JUDGE ORIE: There's in itself the reason not admit. Therefore,

2 we'll admit it. But the Chamber is seeking the full pages to the extent

3 relevant and invites the parties to see to what extent and where they can

4 get it. And if they need the assistance of the Chamber, the Chamber will

5 certainly assist.

6 MR. IVETIC: Then we'll need to involve the UN headquarters in

7 New York and the Canadian authorities who have been the ones that are --

8 that provided the permissions to bring this witness.

9 JUDGE ORIE: Mr. Ivetic, is that the reason not to be interested

10 into the totality of it? You seem to be desperate already. As I said,

11 the Chamber --

12 MR. IVETIC: I'm far from desperate, Your Honours. I'm just

13 providing helpful information to the Chamber so you have the full

14 picture.

15 JUDGE ORIE: We said the Chamber would assist the parties in

16 getting access to the entire pages --

17 MR. IVETIC: And I note that with Prosecution witnesses -- RM507,

18 Your Honours did not make any efforts to make those Rule 70 providers

19 provide material to us that they did not deem that we should have, so I'm

20 a little concerned about inequalities of treatment.

21 JUDGE ORIE: Forgive me for not remembering exactly what you are

22 referring to. I will do that after this court session.

23 What I see here and our attention was drawn to the fact that on

24 the three pages apparently covering that one date, that parts of the

25 pages are missing, and the Chamber is always interested in context. But

Page 38724

1 I'll -- the Chamber will verify the references you made and to see to

2 what extent they are helpful for us in drawing the same lines for both

3 parties.

4 JUDGE FLUEGGE: Mr. Ivetic, do you have any information whether

5 or not the Karadzic Defence had the entire or -- diary or even some more

6 pages?

7 MR. IVETIC: I do, but think the witness has the better knowledge

8 of that and so I'll let the witness answer Your Honour's question, if you

9 would permit.

10 JUDGE FLUEGGE: Can you give us information, what did the

11 Karadzic Defence receive? Do you know that?

12 THE WITNESS: Yes, Your Honours. I was asked to look in my

13 diaries to see if I had any entries. These are the only entries that

14 deal with the issue that I'm here today. You can see in one of the pages

15 that stuff is blacked out. It has nothing to do with why I'm here. The

16 other parts are parts of pages, Your Honours, that deal specifically,

17 underlined in yellow, with this issue here. The rest of it has nothing

18 do -- the whole rest of the diary has nothing do with the issue here at

19 hand.

20 JUDGE FLUEGGE: Did you make this selection personally?

21 THE WITNESS: Yes, I did. I underlined in yellow so I would be

22 able to refer to it fast, and then photocopied them, and then provided

23 them to the Defence at that time.

24 JUDGE ORIE: You provided --

25 THE WITNESS: Yeah, I -- that's --

Page 38725

1 JUDGE ORIE: -- those portions and you made the selection

2 yourself?

3 THE WITNESS: Yes, because I knew where they were.

4 JUDGE ORIE: Was any instruction given to you as what to include

5 and what not include by your government or any other agency?

6 THE WITNESS: No, Your Honour.

7 JUDGE ORIE: You had -- it was your --

8 THE WITNESS: I did this myself. I looked, okay, at 2/09, that

9 day, 7th of February, on page 164, that's the only thing that has

10 anything to do with why I'm here.

11 JUDGE ORIE: Well, I hope you'll understand that these are --

12 what is relevant and what is not relevant is often determined by the

13 Chamber and, of course, we carefully listen to what witnesses tell us but

14 finally it's our determination.

15 Now, it may be for the full 100 per cent true, you say, but

16 perhaps you're not entirely in a position to -- to know exactly what is

17 relevant or not.

18 THE WITNESS: I agree, Your Honour. But I received the piece of

19 paper that said there is other things in my diary that could be sensitive

20 information that no other people should know based on what I did, whether

21 for Mr. de Mello or from my own personal family. Therefore, my

22 understanding is that my diary is my diary. And when I provided the

23 information, I was asked to provide anything I knew or had and that's

24 what I did.

25 JUDGE ORIE: And you directly provided it to the Karadzic

Page 38726

1 Defence?

2 THE WITNESS: Yes, I did, sir. Directly -- I had to go through

3 my country, right? I had to go through all those requests.

4 JUDGE ORIE: Okay. Then we know where we are. Do you still have

5 the full diary in your possession?

6 THE WITNESS: At home, yes.

7 JUDGE ORIE: Yes. Would you please keep it carefully so that if

8 there's any need to provide any further pages that -- that it's there.

9 THE WITNESS: Yes, Your Honour.

10 JUDGE ORIE: I leave it to that for the time being.

11 Madam Registrar, the number would be?

12 THE REGISTRAR: Document 1D3948 receives Exhibit Number D1223,

13 Your Honours.

14 JUDGE ORIE: D1223 is admitted into evidence.

15 MR. IVETIC:

16 Q. Now if we could return to your statement, which is D1219, page 5,

17 and I'd like to focus on the last half of paragraph 33 -- or I should

18 say, the last half of the entry from 5 February 1994 from your diary that

19 is recorded in this paragraph, where it says:

20 "I was at the site to do a quick crater analysis and although I

21 agree with the direction that the round came from, I disagree with the

22 distance, believing that the BiH shot at themselves.

23 "Many here don't want to think of this as there are a lot of

24 casualties, but I think otherwise."

25 To whom were you referring when you said "many here don't want to

Page 38727

1 think of this as there are a lot of casualties"?

2 A. My colleagues in general at BH command. They found it unusual.

3 Q. And --

4 JUDGE MOLOTO: Sorry, what is it actually you disagree with?

5 Because you're talking of believing that the BiH -- what is it that you

6 disagree with?

7 THE WITNESS: I disagreed with my -- this is my personal opinion

8 in my diary, Your Honour.

9 JUDGE MOLOTO: Yes, but what is it you are disagreeing --

10 THE WITNESS: I disagreed with the -- in my diary, in the

11 minimum/maximum range. I believe that the range was within the

12 confrontation line on the BiH side.

13 JUDGE ORIE: Now, could I then ask you, you said saying on the

14 5th of February in the evening that the shell was fired from the Serb

15 side is propaganda because -- and that's what you elsewhere say in your

16 statement as well, you're unable to make up whether it was from the one

17 side of the confrontation line or the other side.

18 Now, apparently on the 5th of February, you had made up your mind

19 as that it did not come from the Serb side but did come from the BH side.

20 THE WITNESS: Yes, Your Honour, that's what I wrote in my diary.

21 JUDGE ORIE: Yes. Now, at the same time, you say that you

22 couldn't know whether it was fired from the one side or the other side.

23 Do you have any explanation as to -- and perhaps I take you to the ...

24 You quoted in paragraph 29 a report saying that:

25 "The crater analysis carried out showed that the shell could have

Page 38728

1 been fired from either BiH or Serb positions."

2 And then in paragraph 30 you say:

3 "This accurately reflects the official conclusions that I

4 reported to my superiors on the 5th of February, 1994."

5 And a little bit further down you say:

6 "It's therefore impossible to determine with certainty on which

7 side of the confrontation line the round was fired."

8 Now in paragraph 32 you say CNN, that's propaganda, because

9 you -- they couldn't know. And then in your own diary, you come to

10 believe that it was BiH who shot at themselves.

11 Could you explain to us why in all your reporting you say you

12 can't know, why you say if you -- if it comes from the Serb side, that's

13 propaganda, and then tell us that on the 5th of February, you believed

14 that it came from within the confrontation line and not from the BiH

15 side?

16 THE WITNESS: The official crater analysis report that I did and

17 the findings that I had determined that I could not prove who did it.

18 And based on the direction and the angle of descent that I had, that I

19 thought was it, I still was not convinced on which side did it.

20 JUDGE ORIE: Yes.

21 THE WITNESS: And, therefore, in my conclusion, I concluded that

22 between charge 1 and 6 covered the whole of the confrontation line to

23 which the two fighting factions were involved, and, therefore, I could

24 not in my investigation say who did it.

25 JUDGE ORIE: Yes. But why then do you write in your diary on

Page 38729

1 that same day that you believed that the BiH shot at themselves? Or is

2 this just a kind of a --

3 THE WITNESS: Because in my personal opinion, when I was at the

4 site and I looked at the angle of descent personally, I looked at that,

5 and I believed in my own opinion that said that that round came from a

6 shorter range than a longer range.

7 JUDGE ORIE: And you did that on the basis of the -- of the

8 buildings or just kind of an overall impression --

9 THE WITNESS: No, no, because the angle was steep. The angle was

10 not like this, it was like this. It was steep and I felt personally, in

11 my diary, and I wrote it only in my diary, that this is what I felt. But

12 in the official UN documentation, Your Honours, I could not determine who

13 did it and therefore my official answer was that I could not determine

14 who fired this round because from the minimum to the maximum range, it

15 could have been on any side.

16 JUDGE ORIE: Yes. So it was a subjective feeling, looking

17 around --

18 THE WITNESS: Yes, it's my opinion, in my diary.

19 JUDGE ORIE: Yes, thank you. Please proceed.

20 [Trial Chamber confers]

21 MR. IVETIC:

22 Q. Now I want to look at paragraph number 36 of the statement. In

23 the footnote to paragraph 36, you say that you are not listed as part of

24 the delegation but you were invited and went along.

25 Could you please tell us how it was that you became a part of

Page 38730

1 this visit or how you accompanied this delegation that performed this

2 visit?

3 A. So when Sector Sarajevo decided to do this particular

4 investigation, one of the members of that team was the team leader of the

5 UNMOs in Sector Sarajevo, a Canadian, a major. He knew I worked in BH

6 command forward. He knew I had done a crater analysis, and so I was

7 invited, and the leader of that team apparently had no objection. I am

8 not -- excuse me. I am not marked as one of the investigation teams in

9 that particular group.

10 Q. And do you recall in what kind of building that basement was that

11 we are talking about that was located on the Bosniak side in Sarajevo

12 that is discussed in paragraph 36?

13 A. I recall we went to a high-rise building in the middle of

14 Sarajevo. It was a civilian-occupied building with a military component,

15 I believe, on the first bottom three floors. And from there, we went to

16 the basement. Well, after -- after interviewing the person in charge

17 there by that team.

18 Q. And if we could turn to the next page of your statement and look

19 at paragraph 37 of the same, and here you describe interviewing the

20 person in charge and then how you -- how one of the group opened a box

21 and found 120-millimetre mortars.

22 How did you examine these 120-millimetre mortars that were found?

23 A. Now, here we're talking about the 100-millimetre rounds, not the

24 mortar -- not the firing --

25 Q. You're correct, sir. I meant rounds.

Page 38731

1 A. Okay. Now, I held one in my hands and I was particularly

2 interested in the -- in the fin part, how it was manufactured, and so I

3 looked at the complete round. And then the fin was there and we looked

4 at it, and I found that the welding on the fins appeared to be the same.

5 And that's what I concluded.

6 Q. Do you recall anything about the colour or appearance of this

7 mortar round which in your statement you say were hand manufactured?

8 A. They were like polished -- you know, like silver or chrome -- not

9 chrome. Polished metal and, you know, made on a lathe or whatever, to

10 make it.

11 Q. Did you discuss your observations as to the similarity in welding

12 with any of the other persons from the UN that were present?

13 A. I just pointed it out to my colleague, the Canadian UNMO chief in

14 Sector Sarajevo.

15 MR. IVETIC: Now I'd like to take a look briefly at P797 in

16 e-court. And if we can turn to page 6 in both languages.

17 JUDGE ORIE: Mr. Weber.

18 MR. WEBER: Your Honours, I guess do have an objection related to

19 the use of this document.

20 The witness, according to the statement, left and went back to

21 Canada in July 1994 and this material and investigation relates to

22 something that he was just not part of -- or that related to Markale II,

23 so at this point in time I would object to the use of this. It's also

24 outside the notice in terms of the time-period in which counsel put us on

25 notice for prior to the testimony.

Page 38732

1 JUDGE ORIE: Mr. Ivetic.

2 MR. IVETIC: I believe everyone received a proofing note

3 yesterday that I sent out after meeting with the witness that identified

4 this document. I'm -- I haven't even asked the question yet, so I don't

5 know to what extent there can be an objection before I phrased the

6 question. I'm not --

7 JUDGE ORIE: The objection is against the use of the document

8 before the witness, Mr. Ivetic. It's not an objection against the

9 question but against the use of the document.

10 MR. IVETIC: I have notified the party that I was going to use

11 the document and I believe it has some relevance to assist the Chamber if

12 I were to ask one question about it that doesn't go to the truth of the

13 document or any of the facts as to this particular time-period, but

14 rather a description in the document. And again it's already in

15 evidence.

16 JUDGE ORIE: Mr. Weber.

17 MR. WEBER: Your Honours, I would just add that the only comment

18 that is in the proofing note is:

19 "The Defence amends the exhibit list and adds to the exhibit for

20 this witness the document P797."

21 That doesn't place us on notice of anything in terms of substance

22 that might be led through the witness or what the witness may know in

23 relation to this document or may comment upon.

24 JUDGE ORIE: Well, now --

25 MR. IVETIC: Well, Your Honours, the way the Prosecution --

Page 38733

1 JUDGE ORIE: One --

2 MR. IVETIC: -- does this all the time, I can pull up 15

3 e-mails --

4 JUDGE ORIE: Mr. Ivetic -- Mr. --

5 MR. IVETIC: -- where they just list numbers.

6 JUDGE ORIE: Mr. Ivetic.

7 MR. IVETIC: Okay, I apologise.

8 JUDGE ORIE: Accepted. Let's wait for the question, Mr. Weber.

9 But, Mr. Ivetic, if the question can be put to the witness first

10 on any subject matter without showing the document to him, that's what

11 you're supposed to do. And only in second instance, if there's no way to

12 ask what you would like to elicit from the witness other than by showing

13 him the document, then in the second round you can do so. That's the --

14 I think, the standard which was mainly applied --

15 MR. IVETIC: I agree, Your Honours. And considering that he was

16 not in Sarajevo at the time of this document's generation, the only way I

17 can ask him about something in the document is by showing it to him since

18 I can't elicit -- I can't ask him out of the blue --

19 JUDGE ORIE: Well, this is -- of course you can't. I've not

20 heard the question yet. But the idea that you can't -- if a witness

21 wasn't there, that you can't put a question to him which is relevant

22 without showing a document is, of course, not -- in its general sense not

23 true. But let's first hear your question to the witness.

24 MR. IVETIC:

25 Q. Sir, in this document that we have before us, Lieutenant-Colonel

Page 38734

1 Mougey, writing for Sector Sarajevo, has recorded for this particular

2 instance in the last full paragraph:

3 "This munition is of Serb manufacture, being unmarked and

4 unpainted with a brushed steel finish, which matches current Bosno-Serb

5 war design."

6 How does this description of this round in this report compare to

7 your recollection of the round you just described to us which you held in

8 your hands in the basement of the building in Sarajevo in 1994?

9 JUDGE ORIE: Before you answer that question, Witness.

10 Mr. Weber.

11 MR. WEBER: Objection. Foundation. Basis of knowledge. The

12 counsel is asking the witness to compare something that is a part of

13 another investigation. There's much more detail and information

14 obviously about the round, what it was, how it was marked and finished,

15 with respect to this incident. And right now there's just no foundation

16 for this witness even knowing about this other incident for which -- him

17 to give any type of comparison or at this point just out-right opinion

18 about the shells.

19 JUDGE ORIE: The witness may answer the question.

20 THE WITNESS: The only thing I can say is based on my description

21 of the round that I held in my hands and when I said it looked like a

22 silver coating or whatever, is that it was unmarked and unpainted, and

23 the brushed steel finish that is mentioned in that document is another

24 way of saying what I said. That's all I have to comment on that

25 particular thing, Your Honour.

Page 38735

1 JUDGE MOLOTO: Can I ask a question, sir. The one that you --

2 that you're talking about in your -- in your statement, do you know where

3 it came from, the origin of that one?

4 THE WITNESS: It came from the basement --

5 JUDGE MOLOTO: Yes, but --

6 THE WITNESS: -- on the BiH side in a wooden box. That's all I

7 know, Your Honour.

8 JUDGE MOLOTO: That's all you know.

9 THE WITNESS: Yeah.

10 JUDGE MOLOTO: Okay. It is not alleged to be what was found at

11 Markale?

12 THE WITNESS: I don't know ...

13 JUDGE MOLOTO: Okay. Thank you so much.

14 MR. IVETIC:

15 Q. Sir --

16 JUDGE ORIE: Yes, please proceed.

17 MR. IVETIC:

18 Q. -- in the years since you first performed your crater analysis

19 has anything caused you to change your conclusions about the possible

20 origin of the mortar round that struck the market in February 1994, or do

21 you still believe it is not possible to confirm with certainty which side

22 of the confrontation line that round came from as stated in your report?

23 A. My position has not changed from the statement in my report.

24 Q. Major, I thank you for your patience.

25 MR. IVETIC: Your Honours, that's all the questions I had for the

Page 38736

1 witness. I do think we're at the time for a break.

2 JUDGE ORIE: Yes, we are at the time for a break.

3 Witness, we'd like to see you back in 20 minutes. You'll then be

4 cross-examined by Mr. Weber. Therefore, you may follow the usher.

5 THE WITNESS: Thank you, Your Honour.

6 [The witness stands down]

7 JUDGE ORIE: We resume at quarter past 12.00.

8 --- Recess taken at 11.56 a.m.

9 --- On resuming at 12.17 p.m.

10 [The witness takes the stand]

11 JUDGE ORIE: Mr. Russell, you'll now be cross-examined by

12 Mr. Weber. You'll find Mr. Weber to your right. Mr. Weber is counsel

13 for the Prosecution.

14 Please proceed.

15 MR. WEBER: Thank you, Your Honours.

16 Cross-examination by Mr. Weber:

17 Q. Good afternoon, Major Russell.

18 A. Good afternoon, sir.

19 Q. We've heard that you previously testified in the Karadzic case.

20 Did you tell the truth during your previous testimony?

21 A. Yes, I told the truth.

22 Q. In regards to paragraph 37 of your statement, is it your

23 suggestion that these mortar shells that you found in the basement were

24 from the same lot of mortars that were fired upon the Markale market on

25 5th of February?

Page 38737

1 A. No, it is not, sir.

2 Q. That is not your suggestion?

3 A. I'm not suggesting that at all.

4 Q. You believed --

5 A. I only commented on I thought that the welding of the fin of that

6 round looked like the welding of that famous fin that people found there.

7 JUDGE FLUEGGE: Mr. Russell, when Mr. Ivetic started your

8 examination, he reminded you to pause between question and answer. This

9 applies to Mr. Weber as well.

10 THE WITNESS: Please excuse me.

11 JUDGE ORIE: Yes, no problem.

12 Mr. Weber, I don't know whether the welding will be something you

13 would like to continue in.

14 MR. WEBER: I'm going to ask a couple of more questions.

15 JUDGE ORIE: Okay. Then I leave it to you.

16 JUDGE MOLOTO: In answer to your last question I'm not quite sure

17 I heard it properly and it doesn't look like it's correctly recorded:

18 "The only thought that the welding of the fin of that round

19 looked like that famous fin that people found there."

20 Is that what you said, Mr. Russell?

21 THE WITNESS: Yes, it is, Your Honour.

22 JUDGE MOLOTO: Okay. Famous.

23 MR. WEBER:

24 Q. Major Russell, I'm going to try to slow down a little bit too.

25 You believe the shells in the basement were handmade because, one, they

Page 38738

1 had no identification marks; two, they appeared roughly made on a lathe;

2 three, they had a free-floating firing pin at the front?

3 A. That is correct.

4 Q. You knew that the shells were roughly made on a lathe because

5 when you picked it up, it had all the rough edges on it, unlike a

6 manufactured round; correct?

7 A. That is correct. It had -- you know how it had little lines all

8 around it? You know how it goes through a lathe and --

9 Q. You are aware that the stabilizer found at the market-place on

10 the 5th of February did have identification marks on it?

11 A. From the reports I read on it, I understand that there was

12 numbers on the back of the fin.

13 Q. Okay. And just to be clear, and I know you're not familiar with

14 the other investigation you were just shown, you're also not suggesting

15 that there was some similarity between the mortar that you looked at in

16 the basement and ones that might have been recovered a year, year and a

17 half after your departure from -- from the former Yugoslavia?

18 A. That is correct. I'm only talking about words. You know,

19 descriptions.

20 Q. Thank you for those clarifications.

21 I'm going to eventually come back to events on the 5th of

22 February, but I'd like to go through some things more generally first.

23 You were in Sarajevo from the 20th of December, 1993, until the

24 28th of April, 1994; right?

25 A. I was there three and a half months, in Sarajevo.

Page 38739

1 Q. Have I accurately stated those dates?

2 A. If they're stated in this particular piece of paper, you are

3 correct, those are the dates.

4 Q. Okay. Now with respect to your duties in relation to

5 Mr. de Mello, you would attend meetings with him; correct?

6 A. Sometimes I would, and sometimes I'd be away arranging logistics

7 for future meetings or the same meeting or as a result of those meetings.

8 Q. Okay.

9 MR. WEBER: Could the Prosecution please have 65 ter 03437 for

10 the witness.

11 Q. Sir, before you is a memorandum from Mr. de Mello to Mr. Akashi,

12 dated 4 January 1994, related to a meeting with Radovan Karadzic. In the

13 first paragraph of the memo, it refers to a meeting on 3 January in Pale

14 with Dr. Karadzic and Mr. de Mello indicates he was accompanied by you.

15 This is an example of the types of meetings you would attend with

16 Mr. de Mello; correct?

17 A. This is the one meeting there that I attended and specifically

18 there. It was over a lunch, a working lunch.

19 Q. Was anyone else present at this meeting?

20 A. No -- just the three of us.

21 JUDGE FLUEGGE: Please pause before you start answering.

22 MR. WEBER:

23 Q. In paragraph number 2, Mr. de Mello indicates he listed a series

24 of incidents which that very morning had brought UNPROFOR to near

25 paralysis. And then there is reference to cumulative petty harassment in

Page 38740

1 contravention of agreements concluded or signed with Karadzic,

2 General Mladic or General Milovanovic. Could you tell us about these

3 particular incidents that were mentioned on this occasion.

4 A. No, I cannot. I was there at the lunch for the purpose of

5 Mr. de Mello introducing me to the key players in the region and to

6 observe how things operated.

7 Q. Okay.

8 MR. WEBER: Could the Prosecution please have page 3 of both

9 versions.

10 Q. And, Major Russell, I'm going to focus your attention on

11 paragraph 7.

12 In paragraph number 7, under the section entitled: "Shelling in

13 retaliation to firing from BiH area of Sarajevo," Mr. de Mello states in

14 the first sentence:

15 "I again pointed out to Karadzic that UNPROFOR monitors all

16 shooting in and out of Sarajevo, that there are records kept as to who

17 fired first, and that we have been very objective in our reporting,

18 including to the press, which he again acknowledged."

19 I'm just going to stop here before going on to the next

20 sentences. In the sentence there is reference to this again being

21 pointed out. Can you tell us of any previous occasions Mr. de Mello

22 pointed out this information to Radovan Karadzic?

23 A. No, to the best of my knowledge, this was the time that I was

24 with him that he mentioned that.

25 Q. Okay. This information in the sentence is accurate; correct?

Page 38741

1 A. This is Mr. de Mello who wrote this. I didn't write it. And I

2 would assume that it is correct.

3 Q. The next sentence states:

4 "Disproportionate scale of retaliation to small levels of firing,

5 however, served no military purpose, caused tragic civilian casualties,

6 and was highly detrimental to the Serb image and cause."

7 Did you personally observe disproportionate Serb shelling that

8 served no military purpose while you were in Sarajevo? You must have

9 seen that; correct?

10 A. While in Sarajevo I observed a lot of shelling from both sides.

11 Q. Okay. Sir, based on your answer, we're then going to look at a

12 number of other documents. The last part of this paragraph indicates

13 that Karadzic agreed the retaliation was inappropriate and unproductive

14 and said he would discuss the matter with General Galic. He also pointed

15 out that the BiH was launching fierce ground attacks from inside

16 Sarajevo.

17 Could you tell us if you know at any other point in time, did

18 Mr. de Mello convey these same concerns to anyone in the Bosnian Serb

19 army?

20 A. No, Mr. de Mello didn't deal with the army. He dealt with the

21 political level. I can certainly tell you that after this meeting, that

22 Mr. de Mello met Mr. Izetbegovic at the airport and talked to him about

23 the meeting of which I don't know what he said.

24 Q. Okay.

25 JUDGE ORIE: Could -- Mr. Weber, could I take the witness back to

Page 38742

1 one of your previous questions although it's not fully recorded.

2 Mr. Weber asked you about whether you observed -- and perhaps,

3 Mr. Weber, you fill in what you said at page 61, line 24, could you

4 please read what you said there. Just the portion which is left out?

5 "Did you permanently observe ..."

6 MR. WEBER: I don't think that's what I read out. I think I

7 asked "did you personally observe."

8 JUDGE ORIE: Okay. "Did you personally observe," and I take it

9 then it's shelling?

10 MR. WEBER: Disproportionate Serb shelling.

11 JUDGE ORIE: "Did you personally observe disproportionate Serb

12 shelling that served no military purpose while you were in Sarajevo?"

13 Your answer was:

14 "While in Sarajevo, I observed a lot of shelling from both

15 sides."

16 But that wasn't the question. The question was whether you

17 observed, whether you personally observed, disproportionate Serb

18 shelling.

19 THE WITNESS: Then I would say no.

20 JUDGE ORIE: Thank you. That's an answer to the question.

21 MR. IVETIC: And for the record, Mr. Weber actually asked a

22 different question. He said: "You had to have seen that," was the

23 second part of that question [overlapping speakers] --

24 JUDGE ORIE: Yes, that was not a question but it was apparently a

25 statement. That's the reason why I did not repeat that because I prefer

Page 38743

1 to ask questions rather than to make statements.

2 Please proceed, Mr. Weber.

3 MR. WEBER: The Prosecution would tender the document into

4 evidence.

5 JUDGE ORIE: Madam Registrar.

6 THE REGISTRAR: Document 03437 receives Exhibit Number P7534,

7 Your Honours.

8 JUDGE ORIE: Admitted into evidence.

9 MR. WEBER: Your Honours, could the Prosecution please have

10 65 ter 32826 for the witness.

11 [Trial Chamber and Registrar confer]

12 JUDGE ORIE: Could you verify whether it's uploaded, Mr. Weber.

13 MR. WEBER: Thank you to the court officer and to the Chamber.

14 Q. Major Russell, I'm now going to go through the UNMO Sector

15 Sarajevo sitreps coinciding with the arrival -- your arrival in Sarajevo.

16 I would like to draw your attention to the first sitrep that's

17 before you. It is from the 19th to the 20th of December, 1993. The

18 general assessment includes information on fighting in the western part

19 of the city and other residential areas shelled, including the city

20 centre, Sedrenik, Grahoviste, and Hrasnica.

21 There is information on the death of one child. And we see -- I

22 just want to get in the process of looking at these because we're going

23 to look at a number of them. Under section 2 on page 2 of the B/C/S, the

24 UNMOs confirmed 197 mixed impacts incoming and zero outgoing from

25 Bosnian-held areas. They also confirmed 141 mixed rounds outgoing and

Page 38744

1 two incoming to Serb-held areas.

2 Sir, do you recall the fact that this was the level of shelling

3 around the time that you arrived -- first arrived in Sarajevo?

4 A. No.

5 MR. WEBER: Could the Prosecution please have page 2 of the

6 English and page 3 of the B/C/S translation.

7 Q. This is the sitrep for the 20th and -- to 21st December 1993. We

8 see that there is heavy shelling on this date. In section 1, the sitrep

9 indicates artillery and mortar positions on the high ground to the west

10 and north of the city were active. We see the residential areas that

11 were shelled. 26 were wounded, two by sniper, and six killed on the

12 Bosnian side, and four wounded and one killed on the Serb side. We see

13 that they also include a little bit more information on the day before.

14 Overall, on this day, UNMOs confirmed 1.502 mixed impacts

15 incoming and 17 outgoing from Bosnian-held areas, and 1.259 outgoing

16 rounds and 17 mixed impacts in Serb-held areas. This is quite a heavy

17 shelling. Does this help you recall what the level of shelling was like

18 when you arrived in Sarajevo?

19 A. Well, I remember, what I recall is that there was on this

20 particular date there -- and when you mentioned the number, I remember,

21 yes, that was a high number.

22 MR. WEBER: Could the Prosecution please have page 3 of the

23 English and page 5 of the B/C/S.

24 Q. Under section 4 of this same sitrep, we see that UNMOs were

25 restricted in movement in the areas of Rajlovac, Lukavica, and the Pale

Page 38745

1 road. While you were in Sarajevo, Bosnian Serb forces restricted the

2 movement of UNMOs; right?

3 A. Yes, they did.

4 MR. IVETIC: Your Honours.

5 JUDGE ORIE: Yes.

6 MR. IVETIC: I do note this goes beyond the scope of the direct

7 examination.

8 JUDGE ORIE: Yes. Now, Mr. Weber.

9 MR. WEBER: Your Honour, I think I'm permitted pursuant to 90(H)

10 to inquire with respect to this witness, and with respect to the scope of

11 examination, the witness in response to Mr. Ivetic's questions even

12 indicated that his opinions that he was offering this Court were based on

13 his time in Sarajevo. So I think the -- that counsel clearly triggered

14 this and I'd -- anyway it would be fair for me to inquire about it under

15 the Rules.

16 MR. IVETIC: If counsel triggered for it, I'd like for him to

17 cite in the transcript where I asked about anything apart from shellings

18 and the investigation that this witness did and about any kind of --

19 these types of incidents which I did not ask about.

20 [Trial Chamber confers]

21 JUDGE ORIE: Cross-examination, the cross-examining party is

22 limited to issues raised during chief to any matter that may assist its

23 case and credibility issues. And the Chamber considers that the

24 questioning until now does not go beyond that. The objection, therefore,

25 is denied.

Page 38746

1 MR. WEBER:

2 Q. I see you answered the previous question. I'll move on.

3 Under section 14, the sitrep indicates that this period between

4 the 20th and 21st was the highest level of shelling in the past two

5 months. Were you aware that there was a significant increase in Bosnian

6 Serb shelling right when you arrived?

7 A. I was not aware of increased shelling. But that commander's

8 statement 14, I was aware of that.

9 Q. Okay.

10 MR. WEBER: Could the Prosecution please have page 4 of the

11 English original and page 7 of the B/C/S translation.

12 Q. This is the sitrep for the 21st to 22nd of December, 1993. On

13 this date, UNMOs confirmed 1.744 mixed impacts incoming and eight

14 outgoing mortars from Bosnian-held areas, and 1.060 outgoing rounds and

15 244 explosions heard from Serb-held areas.

16 In the first section the sitrep also indicates many residential

17 areas were shelled, including the city centre, Sedrenik, and parts of the

18 old city. We see the UNMOs confirmed one killed and 12 wounded, two

19 critical, with an ongoing investigation into additional killed and

20 wounded.

21 MR. WEBER: Just maybe so we expedite this, could the Prosecution

22 please have page 6 of the English and page 10 of the B/C/S.

23 THE INTERPRETER: Could the counsel please indicate sections from

24 which he is reading for the purposes of interpretation. Thank you.

25 MR. WEBER: Of course.

Page 38747

1 Q. This is the sitrep for the 22nd to the 23rd of December, 1993.

2 On this date, UNMOs confirmed 1.309 mixed impacts incoming and

3 14 outgoing mortars from Bosnian-held areas, and 1.557 outgoing rounds

4 and 95 impacts in Serb-held areas. This can be found in section 2.

5 The sitrep indicates above in section 1 that many residential

6 areas were again shelled along with areas close to the confrontation

7 line, including Dobrinja. We see that there are 68 persons wounded and

8 five killed on the Bosnian side.

9 And now that we've gone through these first three dates after

10 your arrival, I'd really like to ask you what were your impressions like

11 when you experienced this level of shelling when you arrived?

12 A. Hot. There's a lot of shelling. But are you asking me this as a

13 Military Observer or as the MA to Mr. de Mello? Because those are two

14 different jobs.

15 MR. WEBER: Could the Prosecution please have page 7 of the

16 English and page 12 of the B/C/S.

17 JUDGE ORIE: Witness, in order to avoid any misunderstandings, I

18 think that Mr. Weber asked you about your impression when you arrived,

19 irrespective of what --

20 THE WITNESS: There was a lot of shelling.

21 JUDGE ORIE: Yes. But you said: Are you asking this as a

22 Military Observer or as what you observed irrespective of whatever

23 function you were at the time. You said there was a lot of shelling.

24 Please proceed.

25 THE WITNESS: I don't understand what he said ...

Page 38748

1 MR. WEBER:

2 Q. This is a sitrep for the 23rd to the 24th of December, 1993. In

3 the first section, we see that --

4 JUDGE FLUEGGE: Could it be enlarged in the English version,

5 please. Thank you.

6 MR. WEBER:

7 Q. We see in the first section that the residential areas were

8 shelled, includes "the city centre, as always."

9 The UNMOs on this date did not observe any ground fighting.

10 There were 30 persons wounded and two killed on the Bosnian side. UNMOs

11 confirmed 784 mixed impacts incoming and four outgoing mortars from the

12 Bosnian-held areas, and 360 outgoing rounds and 113 impacts in Serb-held

13 areas. This information is in section 2.

14 Based on the sitreps we just looked at, there was a total of

15 5.536 impacts on the Bosnian side between the 19th and 24th of December.

16 Sir, this is, in fact, disproportionate shelling; correct?

17 MR. IVETIC: Objection. Calls for a legal conclusion. This

18 witness is here as a fact witness.

19 JUDGE ORIE: Well, the witness has expressed himself on many,

20 many issues, drawn conclusions, et cetera. The question is whether you

21 considered this disproportionate.

22 THE WITNESS: The answer is yes.

23 JUDGE ORIE: Please proceed.

24 MR. WEBER: At this time the Prosecution would tender 65 ter

25 32826 into evidence. In fairness, the Prosecution has included the last

Page 38749

1 few sitreps from the days towards the end of the month where the shelling

2 subsided for a few days.

3 JUDGE ORIE: Madam Registrar.

4 THE REGISTRAR: 65 ter document 32826 receives Exhibit Number

5 P7535, Your Honours.

6 JUDGE ORIE: Admitted into evidence.

7 MR. WEBER: Could the Prosecution please have 65 ter 32828 for

8 the witness.

9 Q. Major Russell, I now want to look at the few days immediately

10 before your meeting with Radovan Karadzic on the 3rd of January.

11 This is a -- the sitrep from the 31st to the 1st. In section 1,

12 during the day residential areas shelled included Sedrenik, Bare, and the

13 city centre. We see snipers were active. One man was killed and

14 21 wounded, eight of which were children on the Bosnian side, and none on

15 the Serb side.

16 In section 2, UNMOs confirmed 149 mixed impacts incoming and two

17 outgoing mortars from Bosnian-held areas, and 303 outgoing rounds and

18 23 impacts in Serb-held areas.

19 Were you aware that even when this lower level of shelling

20 occurred that it was having an impact on the civilian population of

21 Sarajevo?

22 A. Yes.

23 Q. At the bottom of the page, the sitrep states:

24 "The tragedy of this war as we enter 1994 is illustrated by one

25 family in which the man was killed, his wife critically injured, and

Page 38750

1 17-year-old son wounded."

2 The next part indicates the casualty levels of the last two days

3 were relatively high in relation to the number of impacts when compared

4 to the week leading up to Christmas.

5 Civilians were still dying on a daily basis even with this lower

6 level of shelling; correct?

7 A. That is correct.

8 Q. Since you've said the civilian -- the shelling was still having

9 an impact on civilian population of Sarajevo, what was that impact?

10 A. There was dangers in travelling across open areas of roads from

11 both shelling and snipers. There was an effect on people trying to get

12 food and water and any general movement around the city.

13 JUDGE ORIE: Mr. Weber, the Chamber has growing concerns about

14 the links between what the witness was called and, of course, it's not,

15 and you would agree with that, that you would not spend whole of the time

16 to go through the whole of the conflict again with the witness. I -- the

17 focus of the witness still is on Markale I, credibility, reliability

18 issues. It may be that by putting some of the questions you've touched

19 upon them, but the Chamber does not expect you to go through all of these

20 sitreps and to see how it developed in the war and to ask the witness

21 about whether a hundred against ten he considered this or whether 500

22 against 300 he considered that, that -- so would you please keep that in

23 mind when you continue.

24 MR. WEBER: Yes, Your Honour I do spend -- I plan on spending

25 well over half of my questions related to the Markale --

Page 38751

1 JUDGE ORIE: Why not start with that, I would say. That's the

2 focus of the --

3 MR. WEBER: And I do believe that this does relate directly to

4 the credibility of the witness.

5 Could I tender this exhibit and then I do want to go through one

6 more sitrep in relation to some things he said --

7 JUDGE ORIE: Okay.

8 MR. WEBER: -- in his testimony. The Prosecution tenders

9 65 ter 32828 into evidence.

10 JUDGE ORIE: Madam Registrar.

11 THE REGISTRAR: 65 ter number 32828 receives Exhibit Number

12 P7536, Your Honours.

13 JUDGE ORIE: Admitted into evidence.

14 MR. WEBER:

15 Q. Sir, I'd like to go now to Exhibit -- I'm sorry, P511. And, sir,

16 I'd like to go through, just so you understand where I'm going, a sitrep

17 and then I'd like to look at a newspaper article, and the reason I'm

18 doing that is because you've made some comments in terms of information

19 being presented in the media.

20 This is the sitrep for the 2nd to the 3rd of January, 1994. I'm

21 going to specifically focus on a couple of items. In section 2, the

22 UNMOs confirm 203 mixed impacts incoming and nine outgoing rounds from

23 Bosnian-held areas, and 102 outgoing rounds and 37 impacts in Serb-held

24 areas.

25 At the end of the first paragraph, it also notes that a shell

Page 38752

1 landed of the -- excuse me, the first section, that a shell landed

2 500 metres behind the Presidency, killing five members of the same

3 family.

4 Do you see this information before we move on to another

5 document?

6 A. No, I don't see that -- no, I don't see that.

7 Q. I direct your attention back to the general assessment, towards

8 the end of the paragraph --

9 A. Yes, I see it now. Thank you.

10 MR. WEBER: Could the Prosecution please have 65 ter 33011.

11 Q. This is a "New York Times" article entitled: "Sarajevo family's

12 fate: Shell kills 3 generations."

13 This article discusses the death of three generations from one

14 family on Monday, which was the 3rd of January, at about 3.30 in the

15 afternoon, when their apartment was hit by a Howitzer shell from Mount

16 Trebevic. In the fourth paragraph of the article it states:

17 "The Serbian shell that destroyed Mr. Dragnic's family was one of

18 203 that exploded on Monday in Sarajevo, according to a United Nations

19 tally. Beside the Dragnics, nine people were killed. The Bosnian army

20 returned 37 shells."

21 These totals correspond to the number of impacts from the

22 3 January sitrep that we just looked at; right?

23 A. I would think so. I mean, it's the first time I see this, and,

24 yeah, I agree.

25 Q. Okay. We saw earlier in the meeting with Radovan Karadzic that

Page 38753

1 Mr. de Mello told him:

2 "We have been very objective in our reporting, including to the

3 press, which he again acknowledged."

4 You would agree that there was objective information that was

5 provided to the international press; right?

6 A. Well, I would agree that the information provided by the UN comes

7 from that information department to the press. How they do that, I don't

8 know.

9 Q. All right.

10 MR. WEBER: The Prosecution would tender this document into

11 evidence.

12 JUDGE ORIE: Madam Registrar.

13 THE REGISTRAR: 65 ter number 33011 receives Exhibit Number

14 P7537, Your Honours.

15 JUDGE ORIE: P7537 is admitted.

16 MR. WEBER: Could the Prosecution please have 65 ter 32636a for

17 the witness.

18 Q. Sir, I'm now going to turn to the day of the Markale shelling.

19 This is the sitrep for the 5th of February, 1994. Directing your

20 attention to section 2, this sitrep indicating the UNMOs confirmed

21 55 mixed impacts coming into Bosnian areas and zero outgoing rounds.

22 My question: The UNMOs observed no rounds being fired by Bosnian

23 forces on this day; right?

24 A. If that's what the UN observers observed, yes.

25 Q. In the first sentence of section 1, there's reference to one

Page 38754

1 mortar round landing on a market table. Do you understand that this

2 information to be based on Captain Verdy's initial assessment which I

3 think you've agreed to be -- has been shown to be incorrect?

4 A. Could you direct me where that's marked, please, on the --

5 Q. In the very first sentence of the general assessment at the top.

6 A. Yes, that would not be him. That would be a reference to -- must

7 be my information.

8 Q. Under section 5 - and I'm just asking you if you know - the

9 sitrep states that the SMO requested to meet the command of the BSA

10 Sarajevo-Romanija Corps after the market shelling but this meeting was

11 cancelled by the higher BSA authorities. Were you aware of this?

12 A. No, I was not.

13 MR. WEBER: The Prosecution tenders 65 ter 32636a into evidence.

14 JUDGE ORIE: Madam Registrar.

15 THE REGISTRAR: 65 ter number 32636a receives Exhibit Number

16 P7538, Your Honours.

17 JUDGE ORIE: Admitted into evidence.

18 MR. WEBER:

19 Q. I just want to talk briefly about your experience with crater

20 analysis. Prior to your training in October of 1993, you had never

21 personally performed a crater analysis; correct?

22 A. That is correct.

23 Q. And in October 1993, your -- you were taken to locations where

24 others explained to you how a crater analysis should be performed; right?

25 A. Yes, the day before we had the lectures and the day after we went

Page 38755

1 for practical training.

2 Q. All right. On the four previous occasions before the Markale

3 shelling where you attended a crater analysis, were other UNMOs present

4 on those --

5 A. No --

6 Q. -- occasions?

7 A. Excuse me. In para 9 of the piece of paper, my statement --

8 JUDGE ORIE: Would you -- before you start reading from your own

9 statement, if your attention is drawn to a certain part that's okay. But

10 if you need to consult your statement in order to refresh your

11 recollection, the Chamber would like to know that it happens. So I saw

12 you looking at your paper, and you say: I have to look - that's how I

13 understand it - at what I stated to refresh my recollection as to whether

14 there were any others present. Is that --

15 THE WITNESS: Yes, Your Honour.

16 JUDGE ORIE: Then please do so.

17 THE WITNESS: Thank you.

18 The crater analysis at the Egyptian Battalion, I was alone.

19 The one at the French Battalion, I was alone.

20 At the airport, we were normally two or three. And I know -- I

21 can remember of one in the streets of Sarajevo, I was alone.

22 MR. WEBER:

23 Q. Was the one that you attended at the airport from the 5th of

24 January, 1994?

25 A. I have no recollection of that date. The dates are -- I don't

Page 38756

1 know.

2 Q. Do you recall what type of projectile -- or I'll just ask you

3 more broadly. What kind of projectiles caused the craters on these four

4 previous occasions?

5 A. They were mortar rounds. And I think they were 82.

6 Q. That being said, the Markale market was the first time you had

7 looked at a -- or tried to -- done a crater analysis of a larger calibre

8 mortar, 120-millimetre?

9 A. Yeah, I believe so.

10 Q. When you arrived at the marketplace on the 5th of February, were

11 you aware that other analyses of the crater had already been done?

12 A. No, I was not.

13 Q. You then did not know that there was a crater analysis by the

14 Bosnian authorities at 12.30?

15 A. No, I didn't know any of that stuff. I only showed up there

16 around late afternoon.

17 Q. And then you would haven't known about the analysis by FreBat at

18 12.45 or Captain Verdy at 3.00?

19 A. No, I wouldn't know any of those.

20 Q. Okay. Did you later learn about these?

21 A. Yeah, when I went and finished my report, I found out that other

22 people had been there from the UN conducting a crater analysis.

23 JUDGE FLUEGGE: And again, please pause between question and

24 answer and the next question.

25 MR. WEBER:

Page 38757

1 Q. You agree that there was only one explosion at the marketplace on

2 the 5th of February?

3 A. Yes.

4 Q. The crater was caused by a single mortar round?

5 A. Yes.

6 Q. Any shrapnel fragments that would have been found on that day

7 would have been the remnants of only one shell; correct?

8 A. Yes.

9 Q. Shrapnel or shell fragments are important to determine the

10 calibre of a mortar shell; correct?

11 A. More in an artillery shell. In a mortar shell, you're looking

12 for the fin because the size of the fins give you the circumference of

13 the calibre.

14 Q. We've heard that when you arrived that there was no shrapnel or

15 shell fragments. You did not know the exact calibre of the projectile

16 because you had none of these fragments available; correct?

17 A. That is correct.

18 Q. You would agree with me that you need to know the calibre of the

19 shell in order to look at the appropriate range tables to determine

20 distance, the minimum and maximum ranges; correct?

21 A. That is correct.

22 Q. I just want to understand so we have this clearly. I want to

23 talk to about the splash pattern. When you arrived at the market, you

24 looked at the pattern on the ground; right?

25 A. Yes.

Page 38758

1 Q. In paragraph 18 of your statement when you say:

2 "When examining the crater, I observed that the imprint left by

3 the crater was smaller than I would have expected. This led me to

4 believe that the round may have struck an object such as a table before

5 hitting the ground."

6 This is the opinion that you changed once you learned the

7 additional information that it was embedded -- that a mortar had actually

8 embedded into the ground; right?

9 A. That is correct.

10 MR. WEBER: Could we just look quickly at D1221, MFI.

11 And, Your Honours, I had originally indicated to counsel that I

12 might be the full day. I am trying to move through rather quickly and

13 I -- it might be the case that their next witness is needed.

14 JUDGE ORIE: But ... that means that you would need less than

15 35 minutes after the break, the break which we will take in eight minutes

16 from now?

17 MR. WEBER: Correct.

18 JUDGE ORIE: Yes. I don't know how much time Mr. Ivetic would

19 need for his re-examination.

20 MR. IVETIC: Right now I'm looking at perhaps 10 minutes.

21 JUDGE ORIE: Okay. We'll see whether -- now, in order to -- is

22 there any witness waiting at this moment?

23 MR. IVETIC: None were ordered for today to be present through

24 VWS because of the time estimates that were provided.

25 JUDGE ORIE: Which is reasonable, I would think. Mr. Weber, even

Page 38759

1 if we would have five or eight minutes left, then there's no witness

2 waiting and we're not going to organise him to be standby for five or ten

3 minutes.

4 Please proceed.

5 MR. WEBER:

6 Q. We have had some comments on this. This is the report that you

7 wrote after the shelling; correct?

8 A. The amendments in the -- you know, the handwritten ones, correct.

9 Q. Just so we have it clear on the --

10 A. Oh, yeah, the whole thing is after the shelling, yes.

11 Q. You initially wrote the report without the notations on the day

12 after the shelling, on the 6th of February; right?

13 A. Yes, that is correct.

14 Q. In paragraph 19 of your statement, you indicate that you made the

15 notations on your report sometime in the week after the explosion. Do

16 you recall the date?

17 A. No, I do not.

18 Q. Do you recall whether you wrote these notations after reading the

19 report of the UN team of experts that came several days later?

20 A. Yes.

21 Q. In the second paragraph of the report, you analogize to criminal

22 investigations of murder scenes and emphasise the importance of a site

23 not being disturbed. Do you agree that it is best to do a crater

24 analysis shortly after the impact in order to obtain the most reliable

25 results?

Page 38760

1 A. That is correct.

2 MR. WEBER: Your Honour, if we could take the break right now, I

3 think I would be able to reorganise and probably finish relatively

4 efficiently after the break.

5 JUDGE ORIE: Yes. But before we do so, I have one small question

6 to the witness.

7 Earlier we saw a report in which your findings were listed in a

8 table together with other findings. Reference was made to mils there.

9 Now in the past I learned that you have mils which are not exactly the

10 same. Could you tell us exactly what mils you referred to?

11 THE WITNESS: I had, Your Honour, a Silva compass, and it comes

12 in mils.

13 JUDGE ORIE: Yes. But which kind of mils? Because mils are

14 there in various varieties. Do you know which mils were in your compass

15 which you used?

16 THE WITNESS: No, I do not, Your Honour.

17 JUDGE ORIE: Okay. Then the parties are invited to seek whether

18 they can agree on the interpretation of what kind of mils were referred

19 to.

20 We'd like to see you back in 20 minutes, Mr. Russell.

21 [The witness stands down]

22 JUDGE ORIE: We resume at half past 1.00.

23 --- Recess taken at 1.10 p.m.

24 --- On resuming at 1.30 p.m.

25 [The witness takes the stand]

Page 38761

1 JUDGE ORIE: Mr. Weber, you may proceed.

2 MR. WEBER: Thank you, Your Honours.

3 Q. Major Russell, you do not remember measuring the angle of descent

4 on the day of the Markale shelling; correct?

5 A. That is correct.

6 Q. Now, normally, as I understand from your past testimony, you

7 would measure the angle be reinserting a 12-inch nail into the hole of

8 the crater?

9 A. That is correct.

10 Q. This would allow to you obtain a generally reasonably accurate

11 measurement of the angle of descent; right?

12 A. Yes, you'd have a -- yes.

13 Q. In paragraph 25 of your statement, if you could look at it,

14 please, you state --

15 JUDGE FLUEGGE: Which paragraph?

16 MR. WEBER: 25.

17 JUDGE FLUEGGE: Thank you.

18 MR. WEBER:

19 Q. You state:

20 "I do not believe that reinserting the tail-fin into the hole

21 would provide an accurate measurement of the angle of descent since the

22 hole had been disturbed."

23 The fact is, is that the procedure of inserting a tail-fin would

24 be the same as you inserting a nail into the hole; right?

25 A. Yes.

Page 38762

1 Q. If we could go to paragraph 22 of your statement, you comment

2 that you were struck about how steep of an angle that the round must have

3 come in on to clear the large building adjacent to the crater. You then

4 state:

5 "This led me to believe that the round had come from a location

6 closer to the crater than a round fired from further away."

7 I'm now going to go to your past Karadzic testimony.

8 MR. WEBER: If I could please have 65 ter 33074, e-court page 23.

9 If I could please have page 23.

10 Q. In your past Karadzic testimony, you analogize the reasoning in

11 this paragraph to the principles of how a water hose works --

12 A. Oh, yes.

13 Q. -- and stated at transcript page 29396:

14 "In the discussion I used the example of the water hose" --

15 JUDGE FLUEGGE: I think it would be helpful to have the correct

16 line.

17 MR. WEBER: At --

18 JUDGE ORIE: Line 6.

19 MR. WEBER: -- line 6.

20 JUDGE FLUEGGE: Thank you.

21 MR. WEBER: Thank you, Your Honours.

22 Q. You explain this as:

23 "In the discussion I used the example of the water hose, saying

24 placing a water hose at a 45-degree angle with the maximum flow on, you

25 would see the water fly out and then gravity would pull it down to a

Page 38763

1 certain location. If you pull -- if you push the fire hose down, the

2 area where the water lands is closer. If you pull the hose up higher

3 than 45 degrees, the water again starts to come closer. And when I

4 looked at the steepness of the angle of descent, this is what I was

5 reminded of."

6 This is how you explained your observation in the Karadzic case;

7 correct?

8 A. That is correct.

9 Q. You wrote in your diary on the night after the shelling that you

10 believed the BiH shot at themselves as a result of believing that a steep

11 angle meant a closer firing range; correct?

12 A. That is correct.

13 MR. WEBER: Could the Prosecution please now go to page 27.

14 Q. This is another part of your Karadzic testimony where you were

15 asked whether you came to an incorrect conclusion. You were asked at

16 line 5:

17 "Q. Do you agree with me that you applied an erroneous principle

18 and you came to an incorrect conclusion?"

19 Your answer:

20 "In that particular case of the diary, yes. In the particular

21 case of the range tables, you can see the minimum and maximum range; and

22 therefore, those minimum and maximum ranges cross the confrontation line

23 and that's the official report that I put in on the crater analysis."

24 Next question:

25 "Okay. But that's not my question. If you had understood this

Page 38764

1 principle to be exactly as it's related on the firing table, and not

2 these exact figures, but the principle that it represents, would you have

3 come to a different conclusion than you came to in your diary? "

4 Your answer was: "Yes."

5 Do you stand by this testimony?

6 A. Yes, I do.

7 Q. Was it during your past testimony when you were shown the range

8 tables that you realised that you applied an incorrect principle?

9 A. The range tables that I saw were not the range tables that I

10 used.

11 Q. Okay. Since we're at this point in the transcript, I just want

12 to confirm with you -- I guess I'll just read it in.

13 When you were asked about paragraph 32 of the statement where it

14 is -- where it was stated in the transcript here at line 18:

15 "'That evening' -- in paragraph 32 you said you recalled hearing

16 it reported on CNN that evening and you believed that this was a result

17 of propaganda and that from then on it would be widely believed that the

18 Serbs had fired the shell regardless of the true facts."

19 "When you heard that report, that was before you wrote in your

20 diary; correct?

21 Your answer was: "Yes."

22 Do you stand by this part of your testimony?

23 A. Yes.

24 MR. WEBER: Could the Prosecution please have 65 ter 33075 for

25 the witness. Page 16 in the B/C/S and page 21 in the English

Page 38765

1 translation.

2 JUDGE MOLOTO: Can you give the number again? What is the

3 number?

4 MR. WEBER: 33075.

5 JUDGE MOLOTO: Thank you.

6 JUDGE ORIE: I'm still a bit confused, perhaps.

7 If you say: I used different tables from the ones shown to me in

8 the Karadzic case, in your statement I find nothing about tables being

9 used. If I'm correct, you said you gained the impression because of the

10 steepness of the -- where -- or were you referring to any tables you may

11 have used when writing your official reports?

12 THE WITNESS: The tables, Your Honour, that I have, or had --

13 JUDGE ORIE: Yes.

14 THE WITNESS: -- were the ones that we used in the crater

15 analysis exercise in Knin. The firing tables that were presented in the

16 Karadzic case were firing tables of 120-millimetre Yugoslavian mortar

17 firing table. The one I had was Soviet. So the firing tables are pretty

18 well close. I mean, I didn't argue the firing table at all.

19 JUDGE ORIE: Okay. But I don't see anywhere in your statement

20 that you used firing tables, or am I wrong? But if I'm missing

21 something.

22 MR. IVETIC: Paragraph 31, Your Honours.

23 JUDGE ORIE: Paragraph 31. Let me see...

24 MR. IVETIC: On page 5. It's the last part.

25 JUDGE ORIE: Yes, there it says:

Page 38766

1 "Based on the evidence available at the site, the minimum and

2 maximum range at which the weapons system could have been fired straddles

3 the confrontation line."

4 It doesn't say anything about having done that, but perhaps it's

5 included in "based on the evidence available," that's where you used the

6 tables, if I understand you well?

7 THE WITNESS: Yes, Your Honour.

8 JUDGE ORIE: Yes. Now, I -- yes. I understood the evidence as

9 being what was found on the ground and not the -- the documentary

10 materials which you used to further analyse. Yes. Did you do all those

11 calculations?

12 THE WITNESS: Yes, that's how I arrived at the angle of descent,

13 the calculations for angle of descent.

14 JUDGE ORIE: In order to do the calculations, and looking at the

15 firing tables, you'd need to know exactly the angle of firing, isn't it?

16 THE WITNESS: The angle of descent.

17 JUDGE ORIE: Well, which is -- may be related to the angle of

18 firing, isn't it? If you fire at a steeper angle, that it falls at a

19 steeper angle as well; whereas if you fire it at a lower angle, that it

20 falls with a lower angle as well? Would you agree with that?

21 THE WITNESS: Well, I would agree in general. But you got to

22 consider too there's wind affecting that round when it's in the air. So,

23 you know --

24 JUDGE ORIE: Have you considered wind, then?

25 THE WITNESS: No.

Page 38767

1 JUDGE ORIE: So I'm just stating the general principle that if

2 you throw a ball high in the air it falls under a similar angle and if

3 would you throw it more in a horizontal direction it also lands in a more

4 horizon -- under a more horizontal angle. Is that a principle you

5 would ...

6 THE WITNESS: I don't get it. I don't understand, sir, what

7 you're trying to get at.

8 JUDGE ORIE: Okay. Then I'm -- well, what I'm getting at --

9 THE WITNESS: I'm confused. I'm confused.

10 JUDGE ORIE: Well, what I say is that if you throw a ball high in

11 the air little bit forward, that is, a steep angle, then it will land,

12 irrespective of whether there will be some wind influence, but as a

13 general rule it will also land on a steep angle. I mean, that what's I

14 learned in sports. And that if you throw it more horizontally, that it

15 would also land under a more smaller angle of descent but farther away.

16 Is that a principle would you have problems in accepting?

17 THE WITNESS: No -- yes, it's okay. I understand it.

18 JUDGE ORIE: Okay. Now when you applied these tables, you had no

19 precise angle of descent, let alone a precise angle of firing.

20 THE WITNESS: I only concentrated, Your Honour, on angle of

21 descent and --

22 JUDGE ORIE: Yes, and do we find that in the --

23 THE WITNESS: It's in the document.

24 JUDGE ORIE: It's in the documents.

25 THE WITNESS: And therefore I applied what I found there to the

Page 38768

1 range table which told me that, based on that, it was between the

2 confrontation lines. So I couldn't determine where -- who fired it.

3 JUDGE ORIE: Did you ever do the same math again once you knew

4 that different tables may be applicable?

5 THE WITNESS: No.

6 JUDGE ORIE: You took into account all the -- as you said in your

7 statement, all the possible charges for firing?

8 THE WITNESS: That is correct. Based on charge 1 to 6.

9 JUDGE ORIE: Yes. Are they the same in all tables? Is the

10 charges, are they --

11 THE WITNESS: I don't know, Your Honour.

12 JUDGE ORIE: You don't know.

13 THE WITNESS: I don't know.

14 JUDGE ORIE: Finally, did you take into account possibly the

15 difference in level of altitude from a firing position to a position

16 where the projectile lands?

17 THE WITNESS: No, Your Honour.

18 JUDGE ORIE: Thank you.

19 Please proceed.

20 MR. WEBER:

21 Q. Just to finish off today, Major Russell, I'm going to go through

22 a similar exercise that you went through last time with the mortar table

23 in front of you.

24 This is the same mortar table that was shown to you during the

25 Karadzic case. It is a firing table that corresponds to the same type of

Page 38769

1 projectile that landed in the market that day, an M62P3 120-millimetre

2 mortar shell. Do you recognise this table?

3 A. I believe that's the table I saw in the other trial.

4 Q. Do you see at the -- and if I could actually -- you have the

5 translation available to you this time. But if I could direct your

6 attention even over to the B/C/S original of the document, do you see the

7 boxes at the top of the table that on the page before you represent

8 charges 1, 2, and 3, and then on the next page, there's going to be

9 charges 4, 5, and 6?

10 A. Yes.

11 Q. Okay.

12 MR. WEBER: If we could then please scroll back over to the left

13 in the B/C/S.

14 Q. I would like to take the angle of descent that is closest to 1200

15 mils as an example. I'm only using it as an example and I'm not

16 suggesting that this was the accurate angle of descent for the mortar on

17 the 5th. But I'm just using it since it was your estimate from that day.

18 Going through each charge, under charge 1 the closest angle of

19 descent is 1.218 mils. And then going across to the left to get the

20 distance, that would be 900 metres.

21 A. Hold on now. I'm not ... the left-hand line is that the range?

22 Q. [Overlapping speakers] ...

23 JUDGE ORIE: Could we first wait until we have the English

24 version back again.

25 [Trial Chamber and Registrar confer]

Page 38770

1 JUDGE ORIE: Witness, could you at least not touch the screen. I

2 don't know whether you did or not. But if so, please refrain from doing

3 it.

4 Okay. Now, slowly, Mr. Weber, and in a speed which enables

5 ordinary people also to follow it.

6 MR. WEBER: Very appreciated, Your Honour. Thank you.

7 Q. Sir, I'm just going to ask you to confirm if I'm reading the

8 first one correctly and then I will read in the other ones for the other

9 charges.

10 Under charge 1, which would be in the -- the left-hand side of

11 the original before you, if you go into the third column in the chart,

12 under angle of descent, the closest angle of descent I see to the one

13 that you estimated was 1.218 mils which then going across to the left to

14 the far left column, that would correspond to a distance of 900 metres?

15 A. Okay.

16 Q. Have you I oriented you --

17 A. Now I got the way it works.

18 Q. Have I read that correctly?

19 A. Well, I think the range on the left side? The distance is on the

20 left-hand --

21 Q. The distance is in metres.

22 A. In metres on the left-hand side.

23 Q. Yes.

24 JUDGE ORIE: What does VD stand for, Mr. -- we have a table with

25 range finder graduation, angle of descent, and VD. And that's all

Page 38771

1 related to a distance. What does VD --

2 MR. WEBER: I'd have to get --

3 JUDGE ORIE: Could you ask the witness --

4 MR. WEBER: Yes.

5 JUDGE ORIE: -- what VD stands for in his view.

6 MR. WEBER:

7 Q. Sir, are you able to assist us at all with what the notation VD

8 stands for?

9 A. No, I cannot.

10 Q. And just so I get to know what your understanding is here, under

11 the first charge we see that there's a Vo 128 M/S. Do you realise that

12 that relates to the velocity in distance metres per second?

13 A. Yes, that's -- I understand that metres per second.

14 Q. All right. And I --

15 JUDGE ORIE: And do we also agree that Vo is the initial, the

16 speed at firing? At time zero?

17 THE WITNESS: Zero.

18 JUDGE ORIE: Yes.

19 Okay, please proceed.

20 MR. WEBER:

21 Q. So we have a complete record, under the second charge, we have

22 the closest one being 1.198 mils. And at that charge for the shell we go

23 over to get the distance and that would be 1700 metres. For the third

24 charge, we have 1.203 mils as being the closest. And for that distance,

25 that would fire the shell at 2500 metres --

Page 38772

1 A. Okay.

2 MR. WEBER: If we could go over to the next page.

3 Q. For the fourth charge, 1.202 mils, that would fire the projectile

4 3.300 metres.

5 A. Okay.

6 Q. The fifth is 1.198 mils, I see is the closest one, which would

7 end up being 4.100 metres. And the sixth charge, the closest measurement

8 in terms of angle of descent to yours would be 1.192 mils. That's 1.192

9 mils which would end up an a distance of 4.800 metres. Have I read this

10 correctly?

11 A. Yes, I -- I'm in agreement.

12 Q. Okay. After seeing this table yet again, your assumption that

13 you made on the evening of the 5th was incorrect because the fact is you

14 can have similar angles of descent for projectiles fired from different

15 ranges based on the number of charges that are used; right?

16 A. That is correct.

17 JUDGE ORIE: I think that you have considered that already in

18 your statement, isn't it? In a general way. You are talking about the

19 charges and that you say that may have an impact. But did you then

20 not -- let me just ... if the parties could assist me whether I do

21 remember that the witness ... I'm sorry that I cannot find it

22 immediately.

23 Okay. I'll try to find it to see whether you had already

24 considered that when you made your assessment.

25 Please proceed.

Page 38773

1 MR. WEBER:

2 JUDGE FLUEGGE: The last answer of the witness was not recorded.

3 Perhaps you can clarify, Mr. Weber.

4 MR. IVETIC: Paragraph 23, I think, Your Honours.

5 MR. WEBER: Thank you, Your Honour. And just so we have clarity

6 I'll repeat the full question.

7 Q. After seeing this table yet again, your assumption that you made

8 on the evening of the 5th was incorrect because the fact is you can have

9 similar angles of descent for projectiles fired from different ranges

10 based on the number of charges that are used; right? That is correct?

11 MR. IVETIC: I'm going to object as it's vague. If he is talking

12 about an assumption, he needs to identify which assumption or which

13 conclusion he's making reference to so the gentleman knows what to

14 answer.

15 JUDGE ORIE: Mr. Weber, if it would -- I think the question was

16 sufficiently clear, but perhaps if Mr. Ivetic would like to have it more

17 precise, then you rephrase it.

18 MR. WEBER:

19 Q. Sir, the assumption that I'm referring to is the assumption you

20 made about the BiH firing on themselves.

21 A. So the assumption in the diary.

22 Q. Yes.

23 A. You are correct, that is a personal opinion.

24 Q. And based on the firing tables, you appreciate that it is

25 incorrect, that assumption?

Page 38774

1 A. Based on the firing tables, I believe that the round could have

2 been fired from any side.

3 Q. Okay. It could have -- right. So are you agreeing that the

4 assumption that you made is incorrect?

5 A. I'm saying that what I personally recorded in my diary is what I

6 believe.

7 Q. Okay.

8 JUDGE ORIE: Is there any room for belief there. I mean, I can

9 believe that -- whatever I want which has got nothing to do with reality.

10 Would you agree with me, then, that what you believed at the time was not

11 based on any calculations or any conclusions that could be verified by

12 other persons?

13 THE WITNESS: In my diary.

14 JUDGE ORIE: Yes --

15 THE WITNESS: Yes --

16 JUDGE ORIE: -- I'm talking about --

17 THE WITNESS: Yes, Your Honour.

18 JUDGE ORIE: Yes. So subject --

19 THE WITNESS: The answer is yes.

20 JUDGE ORIE: Subjective --

21 THE WITNESS: Yes.

22 JUDGE ORIE: -- not objective.

23 THE WITNESS: Yes.

24 JUDGE ORIE: Thank you.

25 Please proceed.