1 Tuesday, 6 March 2007

2 [Open session]

3 [The accused entered court]

4 [The accused Milutinovic not present]

5 --- Upon commencing at 9.02 a.m.

6 JUDGE BONOMY: Good morning, everyone. Judge Kamenova has the

7 same problem as caused her absence on Friday afternoon, but we hope that

8 she'll be able to join us later this morning. Meanwhile, we've decided

9 that it is in the interests of justice to continue in her absence. We'll

10 review the position obviously if that absence extends longer than

11 anticipated.

12 The next witness, Ms. Kravetz.

13 MS. KRAVETZ: Good morning, Your Honours, the next prosecution

14 witness is Jose-Pablo Baraybar.

15 MR. VISNJIC: Your Honour, there is a mistake in the transcript.

16 Mr. Ojdanic is present in the courtroom.

17 JUDGE BONOMY: Thank you, that's noted.

18 [The witness entered court]

19 JUDGE BONOMY: Good morning, Mr. Baraybar.

20 THE WITNESS: Good morning.

21 JUDGE BONOMY: Would you please make the solemn declaration to

22 speak the truth by reading aloud the document which will now be placed

23 before you.

24 THE WITNESS: Certainly.

25 I solemnly declare that I will speak the truth, the whole truth,

1 and nothing but the truth.

2 JUDGE BONOMY: Thank you. Please be seated.

3 THE WITNESS: Thank you.

4 JUDGE BONOMY: Ms. Kravetz.

5 MS. KRAVETZ: Thank you, Your Honour.

6 WITNESS: JOSE-PABLO BARAYBAR

7 Examination by Ms. Kravetz:

8 Q. Good morning, sir, could you please state your full name for the

9 record.

10 A. My name is Jose-Pablo Baraybar, doctorum [phoen].

11 Q. Thank you. Where are you currently employed, Mr. Baraybar?

12 A. I am currently employed in the United Nations Mission in Kosovo,

13 UNMIK. I'm the head of the Office of Missing Persons and Forensics, the

14 Department of Justice.

15 Q. Since when have you held that position?

16 A. June 2002.

17 Q. I understand, Mr. Baraybar, that you are a forensic anthropologist

18 by profession?

19 A. That is correct.

20 Q. Could you very briefly describe your educational background for

21 the Court.

22 A. Sure. I obtained a first degree in archaeology back in Peru. I

23 did a master's in science at the University of London combining

24 bioarchaeology, physical anthropology, and forensics. I spent a year in

25 the doctoral programme at the University of Champaigne-Urbana in the

1 states, and I shortly ago started my doctorate at the University of

2 Strasbourg in France.

3 Q. Prior to working for OMPF in Kosovo, where else had you carried

4 out work as a forensic anthropologist?

5 A. I spent a number of years in this Tribunal working for the Office

6 of the Prosecutor as forensic anthropologist. Prior to that, I worked for

7 the International Criminal Tribunal for Rwanda as well, doing the same

8 thing. Prior to that, I worked for the United Nations in Haiti doing the

9 same thing, and before that and in between I also was part of a number of

10 commissions of inquiry in which my expertise was required in other

11 countries in Africa, central America and south America.

12 Q. Thank you. Your CV --

13 MS. KRAVETZ: Which is were Your Honours, appendix A to Exhibit

14 2794 --

15 Q. -- contains further details as to your professional background and

16 related activities and I'm not to go through all this document since the

17 document speaks for itself.

18 JUDGE BONOMY: Thank you.

19 MS. KRAVETZ:

20 Q. You provided this document to the Office of the Prosecution in

21 October -- your CV in October 2006. Are there any updates or additional

22 information you would like to provide which is not contained in the CV?

23 A. The only one I would say is that my office in Kosovo was awarded

24 last November the UN 21 awards for the best field-based project in the UN

25 system. And there are a couple of other publications that are not here

1 but did not really -- did not change the whole CV as it stands at the

2 moment.

3 Q. And the UN 21 awards that are given to UN staff members for

4 outstanding achievements in the performance of their duties within the UN,

5 system, is that --

6 A. That is correct.

7 Q. Thank you. Mr. Baraybar, did you provide a statement to the

8 Office of the Prosecution in late October/early November 2006 in relation

9 to the mandate and structure of OMPF?

10 A. That is correct.

11 Q. Have you recently had the chance to review your statement?

12 A. Yes, I have.

13 Q. Having reviewed your statement, are you satisfied that the

14 information contained in this statement is accurate and true to the best

15 of your knowledge and belief?

16 A. Yes, it is.

17 MS. KRAVETZ: Your Honours, this witness statement is Exhibit

18 P2794, and I wish to tender it at this stage.

19 JUDGE BONOMY: Thank you.

20 MS. KRAVETZ:

21 Q. Did you also provide or prepare a report for the Office of the

22 Prosecution in October of last year regarding findings of OMPF forensic

23 inspections on human remains found in three mass grave sites in Serbia

24 after their transfer to Kosovo?

25 A. That is correct.

1 MS. KRAVETZ: This is, Your Honours, appendix C to Exhibit P2794.

2 Q. And in November did you prepare a one-page corrigendum --

3 THE INTERPRETER: Kindly slow down, please.

4 MS. KRAVETZ:

5 Q. I'm being asked to slow down. I know we're speaking the same

6 language, so we have to pause between question and answer.

7 Mr. Baraybar, in November of 2006 did you provide a corrigendum to

8 your report, specifically to page 11 of your report?

9 A. Yes, that is correct.

10 MS. KRAVETZ: Your Honours, this is P2795, which I seek to tender

11 at this stage.

12 JUDGE BONOMY: It belongs to one particular point in the -- oh,

13 yeah, page 11 --

14 MS. KRAVETZ: It's page 11 of the report.

15 JUDGE BONOMY: Thank you.

16 MS. KRAVETZ: Just a correction to a graph that's on that page.

17 Q. Now, I would like to focus on your report of October 2006. Your

18 report concerns three mass grave sites found in Serbia. This would be

19 Batajnica, Petrovo Selo, and Lake Perucac. Is that correct?

20 A. Yes, that's correct.

21 Q. And I understand from your report and also from your written

22 statement that prior to the establishment of OMPF in 2002 Serbian forensic

23 teams carried out exhumations and forensic examination on the remains

24 found in these mass graves. Is that correct?

25 A. Yes, it is.

1 Q. When did the transfer or repatriation of the remains found in

2 these mass graves to Kosovo begin to take place?

3 A. Between November 2002 and July last year.

4 Q. So the transfer concluded in July of last year, the transfer of

5 remains back to Kosovo?

6 A. That's correct.

7 Q. And I understand that this repatriation of remains began once DNA

8 analysis established that the persons -- that these remains belonged to

9 individuals who had gone missing during the conflict in Kosovo in 1999?

10 A. Generally speaking, yes, although the first group of remains

11 transferred in November 2002 were done so without DNA results. DNA

12 results became available after the transfer, not prior to the transfer, as

13 was the case in the other transfers.

14 Q. And OMPF --

15 THE INTERPRETER: Could you please make a pause between questions

16 and answers. Thank you.

17 MS. KRAVETZ:

18 Q. I'm reminded again that we have to pause because we're speaking

19 the same language. I'll start my question again. You said that the

20 transfer began in November 2002. Would this be when OMPF took custody of

21 the remains?

22 A. Yes. Just to clarify, OMPF was opened in June 2002. In November

23 2002 we organised the first transfer of remains from Serbia. At the time

24 there were no DNA results as such available for the remains we

25 transferred. After that transfer, the subsequent transfers did have DNA

1 results prior to the transfer.

2 Q. Okay.

3 JUDGE BONOMY: To complete that, are you saying that for the

4 November 2002 transfer, you subsequently got DNA results or did you never

5 get DNA results for those ones?

6 THE WITNESS: We did get DNA results after we have transferred the

7 bodies.

8 JUDGE BONOMY: Yeah.

9 THE WITNESS: Just, Your Honour, if I may, just to complete what

10 I'm trying to explain, because otherwise, it will be left in the air. The

11 November transfer was organised after an exhibition of photographs of

12 clothing that families did identify as belonging to the relatives and

13 based on that, a preliminary identification was carried out and based on

14 that the transfer was arranged.

15 JUDGE BONOMY: Thank you.

16 MS. KRAVETZ: Thank you.

17 Q. You explain in your statement how the hand-over takes place in

18 practice and I don't want to deal with that at this stage, because it's

19 sufficiently clear in your statement. Could you explain, what is the

20 purpose of the OMPF forensic inspections which are performed on the

21 remains that are transferred from Serbia proper to Kosovo?

22 A. A forensic inspection is very much a -- or should be as a matter

23 of fact a verification of what we have received, meaning when we receive

24 the body-bags physically at gate 3, the administrative border between

25 Kosovo and Serbia, we cannot certainly carry out an inventory of what is

1 in the bag. We have families, media, officials. It's quite complicated.

2 Therefore, this inventory, if you wish, is carried out when we get to the

3 mortuary where we keep the custody of the remains. So we do have a report

4 from the Serbian authorities saying what they have found and allegedly

5 what is in the bag, and we just try to corroborate. So the inspection was

6 devised in that fashion, although it became something else but it was

7 devised in that fashion. So just to answer to your question, that is a

8 forensic inspection.

9 Q. You say that you carry out this forensic inspection in the

10 mortuary. Where is this mortuary located?

11 A. At the time the mortuary was located in the -- in the village of

12 Orahovac/Rahovec, in the western part of Kosovo. It's a place where

13 actually ICTY carried out their own operations in the year 2000. Now --

14 sorry, now it is located in Pristina in a new facility.

15 Q. Thank you. And you said that they were devised in that fashion

16 but they became something else. Could you elaborate on that.

17 A. What I mean by that is that while the objective was to try to

18 corroborate -- just to inspect, to have a look, if you wish, of what was

19 in the bag, at the very beginning it became apparent that there were some

20 contradictions between what was in the bag and what was in the report.

21 For example, in some occasions you could find multiple body parts that

22 belonged to more than one individual in the bag, although the report

23 stated that there was only one person with a name. Obviously, in that

24 situation you could not just simply give the remains back to the alleged

25 family, knowing that they were more than one person and you did not know

1 who the other person was; that was one instance.

2 The second instance was when it became obvious that in some cases

3 we had obvious injuries observed in the remains, and these injuries were

4 not mentioned in the report or if they were mentioned in the report, they

5 were attributed to different mechanisms. For example, just to give you a

6 practical example, a gun-shot wound to the head being attributed to blunt

7 force injury mechanism.

8 And the third instance was that if injuries were recorded, they

9 were not used to ascertain the most probable cause of death in that case

10 we were dealing with. So the inspection became sort of a second autopsy,

11 although with a much more cursory autopsy, if you wish, that was also a

12 second autopsy with a much more in-depth verification, if you wish, of

13 what was contained in that bag.

14 Q. When you say that there were some contradictions between what was

15 in the bag and the report, by report you're referring to the reports

16 prepared by the Serbian forensic teams?

17 A. That is correct. That is a documentation we received among other

18 documents.

19 Q. Could you tell us who usually takes part in these forensic

20 inspections.

21 A. From our team we had a team of pathologists, anthropologists,

22 identification officers, police officers to take custody of any exhibits

23 that may be still associated to the remains like bullets. Was extremely

24 common to find bullets still with the remains. In some other occasions

25 other artefacts that were maybe forgotten or left by mistake, like knives,

1 I mean, autopsy knives and surgical equipment that came actually from the

2 previous autopsy.

3 Q. Have you yourself performed any of these forensic inspections or

4 attended any of the forensic inspections when they have been carried out?

5 A. Yes. A large number, I would say, I have either participated or

6 been in a sort of supervisory role while they were being carried out, yes.

7 Q. And do the forensic inspections conclude with the drafting of a

8 forensic inspection report where the findings are -- of the inspection are

9 indicated?

10 A. That is correct.

11 Q. Once this forensic inspection report is prepared, does OMPF issue

12 a death certificate for the individual whose remains have been inspected?

13 A. That is correct too.

14 Q. And the cause of death that is contained in that death certificate

15 when one is mentioned, would that be the cause of death that was found

16 during the forensic inspection report?

17 A. Yes.

18 Q. During the forensic inspection?

19 A. Yes.

20 Q. Now, the remains that were returned from Serbia from these mass

21 graves, were they for the most part skeletalised remains, that is, remains

22 with very little or no soft tissue on them?

23 A. Well, not all of them. I would say primarily -- if we have three

24 sites, the three sides from which remains were transferred, meaning

25 Batajnica, Perucac, and Petrovo Selo, the first two were primarily

1 skeletalised with very little or no soft tissue or very, very decomposed

2 beyond recognition soft tissue. But in Petrovo Selo they were saponified,

3 primarily saponified, meaning saturation of body fat, so the body looked

4 pretty much like a body, like a cadaver, so there were a striking

5 difference between those two sets of sites.

6 Q. And is it normally the role of the forensic anthropologist to

7 establish the cause of death during a forensic inspection?

8 A. Yes, that is correct.

9 Q. In the case of these remains where you have such a large number of

10 skeletalised remains, does a forensic anthropologist play any role in

11 assisting to establish the cause of death based on the examination of the

12 remains?

13 A. A forensic anthropologist plays a role in both situations,

14 primarily in the reconstruction of broken bones, if I may say it crudely,

15 and also ascertaining the mechanism by which those bones are broken,

16 primarily because forensic anthropologists do work with bones and broken

17 bones. And I understand how bones break, what are the mechanisms behind

18 those. And based on that, it discusses its findings with the pathologist,

19 who certainly has a prerogative to ascertain based on that evidence the

20 most probable cause of death.

21 Q. And what is the practice of ascertaining the most probable cause

22 of death during this forensic inspection?

23 A. It was clearly understood from OMPF standpoint that we would have

24 the duty to use whatever evidence available to us - and I mean objective

25 evidence, recorded evidence - to ascertain the cause of death whenever

1 possible. In other words, if I had in a given autopsy with a pathologist

2 a skeleton, a complete skeleton that has no broken bones, no visible

3 injuries of any kind, the cause of death would definitely be

4 unascertained. Meaning it is not possible to ascertain it based on what I

5 had on the table. However, if you have the same skeleton that has a

6 number of holes in the head that have been defined as being gun-shot

7 wounds to the head based on a number of characteristics, the -- the

8 causative element or phenomena that would have unleashed, if you wish, the

9 process of death would be the gun-shot fired to this individual.

10 Therefore, the cause of death would be found by the pathologist as

11 multiple gun-shot wounds to the head.

12 Q. And how are you able to distinguish when examining these remains

13 between what would be a gun-shot wound trauma and any other type of trauma

14 that might have been sustained by the individual prior to his death?

15 A. If I may, I will put it in the simplest of terms, but please, Your

16 Honour, do interrupt me to clarify things. There are major differences --

17 JUDGE BONOMY: The simpler the better, Mr. --

18 THE WITNESS: I'll try my best.

19 There are major differences between blunt force and gun-shot wound

20 trauma on bone. Blunt force trauma is damage caused over a large area of

21 the bone, primarily by a slow load, meaning a force applied slowly over a

22 large surface. There is some exceptions in which the velocity or the

23 force can be applied much more faster, such as, for example, a car crash

24 in which the body has been accelerated and is impacting against the

25 steering wheel or some part of the car over a large area.

1 As a norm, blunt force is slow-loading, low-velocity. I hit

2 somebody on the head with a hammer. The velocity of the hammer hitting

3 the head would be a few metres per second, so that is slow-loading and a

4 low-velocity. Gun-shot wound trauma is exactly the reverse. It is very

5 high velocity, hundreds of metres per second energy transfers through a

6 very small area. A small area perforates the bone and it dissipates a lot

7 of energy through fracturing. In other words, if somebody is shot in the

8 same head we just hit with a hammer a moment ago, if we just shot it, we

9 will have a hole that is a concentrated energy of the projectile

10 perforating that bone and a lot of fracturing being caused by the energy

11 dispersed, the energy that the projectile contained that passes through

12 the bone and disperses, breaking it in a number of fragments.

13 Is that satisfying, Your Honour?

14 JUDGE BONOMY: Yes. You're simply confirming what I think I

15 already read in your report, which is helpful. Thank you.

16 THE WITNESS: Yes.

17 MS. KRAVETZ:

18 Q. Now, how can you distinguish when you're examining these remains

19 between fractures that were caused before or at the time of death and post

20 mortem trauma?

21 A. Primarily -- the primary differences you are looking at fractures

22 caused by high velocity or fractures caused by a low velocity. Depending

23 on that and the location of those fractures, you can establish whether

24 these fractures were caused during the peri-mortem, meaning interval

25 around death or after death. For example, transverse fractures of long

1 bones, meaning severed members, have been seen and examined by us during

2 our work as a matter of fact over the years. For the Srebrenica case in

3 which a number of bodies were placed in mass graves and then removed from

4 those graves to secondary graves, causing a lot of damage by the

5 excavators, so this is a very classical example of post mortem fracturing,

6 transverse fractures of long bones. That is one characteristic.

7 Another characteristic is crushing of body parts with plastic

8 deformation, meaning let's take as an example this plastic pen here. If I

9 bend it, I may bend it a bit and the plastic will yield and deform, but if

10 I try to put it back to its original shape, I won't be able to. That's a

11 plastic deformation. Bones do deform in that way as well. That is

12 equivalent to a slow load, most likely crushing from the pressure of the

13 earth on the grave and things of the kind; while other type of fracturing,

14 such as that caused by bullets, for example, might break a bone in a

15 number of pieces, but you can easily reconstruct it together and then see

16 the -- the specific damage that was caused to it, for example, by a

17 bullet, you will see the bullet-hole in it.

18 Q. Okay. Thank you.

19 MS. KRAVETZ: Could we have now Exhibit P2795 in e-court.

20 Q. This is the corrigendum that you prepared to the graph on page 11

21 of your report.

22 MS. KRAVETZ: If we could focus on the graph that's there.

23 Q. Could you very briefly explain what is depicted in this graph on

24 this page 11 or the corrected page 11 of your report.

25 A. This graph shows you -- this graph shows you the cases that were

1 received by OMPF and were examined by OMPF and had been previously

2 examined by the Serbian authorities. We have been indicating in this

3 graph -- or I, rather, have indicated in this graph the number of cases

4 for which cause of death was ascertained and the number of cases for which

5 cause of death was unascertained. So on the first column of 744 to your

6 left, that is a number of cases examined by OMPF when we received them, of

7 which we were able to determine or ascertain cause of death in 508 cases,

8 and then in 238 cases we were not able to ascertain cause of death. And

9 then the same calculation continues for the two other sites.

10 Q. And just for the sake of clarity, at the bottom of this graph you

11 have a BA, that would stand for Batajnica?

12 A. That is correct.

13 Q. And the B, Lake Perucac?

14 A. That is correct.

15 Q. P for Petrovo Selo?

16 A. Yes.

17 Q. In your report on page 10 you have also done a summary of the

18 findings of the Serbian forensic reports or forensic exhumation reports.

19 How do these findings by OMPF compare to the previous findings of the

20 Serbian forensic teams?

21 A. Well, when we received the remains from Batajnica, we noticed that

22 for the 744 cases we report in page 11 on the corrigenda on page 11, cause

23 of death had been unascertained for the whole of 744 cases in the case of

24 Batajnica. The same thing for the site D, as Lake Perucac. However, in

25 Petrovo Selo cause of death had been ascertained for 32 cases. So what

1 you see in the corrigenda on page 11 is very much the difference between

2 the ascertainment of cause of death after the forensic inspection. So if

3 744 cases in the first autopsy were not -- did not yield a cause of death,

4 after forensic inspection 506 of those cases did yield a cause of death,

5 so it's roughly 66 per cent of the cases did yield a cause of death and so

6 on in the other site.

7 MS. KRAVETZ: Could we now have page 34 of Exhibit P2794 up on

8 e-court.

9 Q. This is page 11 of your report. You provide in your report three

10 examples where you compare the findings of the Serbian forensic teams with

11 the findings of the OMPF forensic inspections, and I would like to

12 concentrate on this first case Ba-12 which is on page 11 or page 34 of

13 this exhibit in e-court. If you will notice, it's already up on your

14 screen.

15 A. Yes, it is.

16 MS. KRAVETZ: Could we --

17 Q. Could you just wait. I don't have it up here.

18 MS. KRAVETZ: Could we focus on the bottom half of the page, if we

19 could zoom in. Thank you.

20 Q. In the code here Ba-12 that is referred to in this case, it would

21 be the code that was given by the Serbian forensic teams?

22 A. Yes, it is.

23 Q. And you kept the same code for the forensic inspection reports and

24 later in the death certificates for this individual. Is that correct?

25 A. Yes, we did.

1 Q. Could you explain looking here at the photographs that we have on

2 the screen how the OMPF forensic team was able to establish the cause of

3 death for this individual.

4 A. Certainly. What we see on page 11 at the bottom on these three

5 shots are three different views of a skull, of a human skull, that show a

6 large cavity on the top of the skull and some erosion of the bone and some

7 blackening of the bone around it. This was caused by fire, not by any

8 gun-shot. This is burning of the bone, of the remains; however, if we go

9 to the next page, on page number 12 of my report --

10 Q. I believe it's in the report.

11 A. On the picture on the right you can see this elongated defect,

12 hole, if we use a more popular term, that is what we will define as a

13 keyhole injury, that is a gun-shot injury that hits the skull in a

14 tangential fashion that has two elements combining an entrance and an exit

15 at the same time. Upon review of this photograph I have a minor

16 disagreement with the anthropologist who examined this case regarding the

17 direction of the shot. In the report it is stated that it is from above

18 to below; however, at least on the picture, I would say that it is above

19 to below on the picture, that would be below to above on the person. If

20 you -- how can I point?

21 Q. There is a pen at the --

22 MS. KRAVETZ: If the usher could please assist the witness.

23 Q. -- At this side of the screen.

24 A. Technology always helps. Thank you.

25 If you see this element here, that little round -- you may see on

1 the left side a little round edge, that would be the entrance component of

2 the defect, and if you see in this area here, you see a slight bevelling

3 of the -- of the edges, that would be the exit component there. This

4 fracture here would be the entrance fracture, and this fracture here and

5 there, like a Y, like an inverted Y, would be the exit fractures that are

6 associated to this bevelling. So this is a tangential gun-shot wound to

7 the head, also known as a keyhole. Such injury would be the one causing

8 death to the person, as defined by the pathologist.

9 Q. So if I understand you correctly, this type of fracture would be

10 characteristic of a gun-shot wound?

11 A. Is that correct.

12 Q. Now --

13 MS. KRAVETZ: Could we get -- have this page be assigned an IC

14 number just for reference?

15 THE REGISTRAR: That will be IC127, Your Honours.

16 MS. KRAVETZ: If we move back to the previous page, page 34, you

17 had indicated to --

18 JUDGE BONOMY: I think just to -- before you do move on that the

19 first circular mark made by the witness was the upper-most one and then he

20 made the horseshoe-shaped one further down and he then pointed to the top

21 part of the fracture when he made the straight line and then proceeded to

22 make the line towards the left of the picture and finally the one on the

23 right. I think that was the order in which he marked it. Thank you.

24 MS. KRAVETZ: Thank you, Your Honour.

25 Could we now go back to page 34 of this exhibit.

1 Q. When you were referring to this photograph, you indicated that

2 this skull showed signs of being exposed to fire. Are you referring to

3 the big hole that we see here on the top of the skull?

4 A. Yes, that is correct, and I will make a circle. That is that.

5 This one here. And this one there.

6 MS. KRAVETZ: For the clarity of the transcript the witness has

7 marked the bottom left-hand picture, then the centre one, and then the one

8 to the right.

9 Q. Is -- other than this case that we're looking at here, had you --

10 did you see any other human remains from Batajnica that showed signs of

11 having been exposed to fire?

12 A. Yes, there was a number. I mean, I couldn't tell you right now

13 how many, but yes, I have seen many remains that were burned or partially

14 burned or show any kind of burning.

15 Q. Thank you.

16 MS. KRAVETZ: Could we now move to page -- I guess this has to be

17 assigned an IC number also.

18 THE REGISTRAR: That would be IC128, Your Honours.

19 MS. KRAVETZ: Could we move now to page 38 of this exhibit.

20 Q. This is page 15 of the report. On this page you have presented a

21 graph where you show the distribution of injuries per anatomical area. I

22 don't know if it's already up on the screen.

23 MS. KRAVETZ: Thank you.

24 Q. Could you briefly explain what is depicted here on this graph and

25 tell us which conclusions, if any, can be drawn from this pattern of

1 injury.

2 A. Well, as you see here we discuss the minimal number of gun-shot

3 injuries. This means that one -- not every individual was shot once.

4 Many people showed gun-shot wounds to the head and trunk and limbs and --

5 or just simply on the head or simply on the trunk, so therefore, it is the

6 minimal number. So at least 300 people were shot in the head, at least

7 323 on the trunk, but certainly some of the people were shot on the trunk

8 were also shot on the head and vice versa.

9 Now, there's a number of conclusions that can be drawn from this.

10 The first one is that the number of people who did not sustain gun-shot

11 injuries but that sustained shrapnel injuries was very, very low, meaning

12 four, to be more precise. As a matter of fact, three of them, if I've not

13 mistaken, combined both and only one had shrapnel alone without - and I'm

14 looking on my notes --

15 Q. I believe it's the other way around from what is up on the

16 screen.

17 A. Right. So let me just see here. It shows -- certainly. So

18 three individuals sustained shrapnel and one both. That's what I'm

19 saying. Fine. So all in all, four people sustained shrapnel of some kind

20 in combination or not. Now, what is extremely strange. Now, why would I

21 say "strange?" According to available information on war epidemiology, if

22 we wish to call it this way, meaning how many people are wounded or

23 killed by certain kinds of ammunition in more than combat or non-combat

24 situations, being Afghanistan in the gulf, in the Balkans, or whatever

25 else, the interesting pattern that emerges is the following.

1 In combat situations most of the killed or wounded are done so by

2 fragmenting ammunition, meaning by shrapnel, while the number of people

3 killed or injured by fire-arms is much less. So, for example, we have a

4 quote here from a study done in 1999 in Afghanistan and we've got 73 per

5 cent of the people were killed or wounded by fragmenting ammunition, while

6 26 per cent by bullets, by fire-arms. These are combat situations. If we

7 go to a non-combat-situation, using a quote in the same study, we have the

8 reverse. The number of people killed/wounded by fragmented ammunition is

9 30 per cent, while those by fire-arms is 65 per cent. So that is a first

10 situation we have to take into account, and now we can go to this graph.

11 In combat situations, again using other studies, if we look at the

12 people either killed or injured by fire-arms, in a combat situation,

13 people that are wearing full military gear will show injuries in areas

14 unprotected by -- by body armour, meaning the neck, the face, the groin.

15 But in non-combat situations where people obviously are not wearing on

16 them every day body armour, most of injuries caused by, for example,

17 fragmenting ammunition would be in the extremities, in the limbs. The

18 data for fire-arm injuries or the distribution of fire-arm injuries

19 varies. It's very variable. However, in this situation - and we refer to

20 the graph in page number 15 - we see that the highest number of injuries

21 is located in the trunk, followed by the head, and then trailed by a

22 third, by really a third of the total by the limbs.

23 So it is a very strange, to say the least, distribution of

24 gun-shot injuries, primarily because - referring again to these studies -

25 fire-arms, unlike fragmenting ammunition, are what we would call weapons

1 of volition. You are not -- when you throw a mortar, a shell, or

2 whatever, you are not aiming at a person, you are aiming at something, at

3 a target. When you are firing a fire-arm, you are obviously aiming at

4 somebody. You're not firing to the air or to -- or whatever. You're

5 trying to hit somebody. Therefore, these numbers should be taken into

6 that context.

7 Q. And can any conclusions be drawn as to the circumstances that

8 these individuals whose remains you examined met their deaths?

9 A. The opinion -- the opinion I have stated in this report, based

10 again on the sources I have been quoting, is that these injuries represent

11 a way inflicted, rather, on a population unable to defend itself, meaning

12 in a non-combat situation. This is not the type of injuries you would

13 expect to find in a combat situation, but exactly in the opposite. In

14 other words, the ones receiving or sustaining these injuries are not

15 combatants, not by condition, but they're not, let's say, participating in

16 a combat action as such.

17 Q. And what would be the type of injuries you would expect to find in

18 a combat situation?

19 A. First of all, shrapnel. I mean, as the leading -- the leading

20 type of injury, we should have found is shrapnel; there's exactly the

21 reverse, and not fire-arms. What we said is we have only -- I mean, some

22 0.6 per cent of shrapnel injuries based on a universe of 889 cases. So we

23 have the reverse pattern to begin with. We have then fire-arms, and then

24 we have an abnormal location of fire-arm injuries among the ones that

25 showed those injuries.

1 Q. These findings that we're seeing here on this page that you have

2 summarised on this graph refer to Batajnica and Perucac mass grave sites.

3 Do the same conclusions apply for Petrovo Selo, the findings for Petrovo

4 Selo?

5 A. In Petrovo Selo as a matter of fact, it is the same, yes. I mean,

6 the same pattern applies to all sites, no matter -- I mean, no matter how

7 we look at it, 40 individuals showing some kind of shrapnel injuries over

8 889 is quite substantial in terms of proportions. It's 0.6 per cent of

9 the total has shrapnel in three sites, all the three sites combined.

10 Q. And if I understand correctly from your report for Petrovo Selo,

11 there were no individuals whose remains you examined that had any type of

12 shrapnel injury?

13 A. That is correct. And if I may add an important detail, now that

14 you raise Petrovo Selo, that's very important. One could argue, and it's a

15 valid argument, that the skeleton, because it lacks soft tissues, gives

16 you only a fraction of the injuries sustained by the individual, what is

17 true. For example, somebody shot in the abdomen, the bullet comes through

18 and through the abdomen and doesn't touch any bone. When you have the

19 skeleton, you would not know this person was shot; it is completely fair

20 to say that.

21 However, in Petrovo Selo, unlike the other two sites, these were

22 cadavers; they were fully fleshed. And in those fully fleshed cadavers

23 that have a total of -- I don't have the total with me here --

24 Q. I think it's on the next page --

25 MS. KRAVETZ: If we go to page 39.

1 THE WITNESS: Let me see. Yes, that is the distribution of injuries

2 in Petrovo Selo, but I was looking for the absolute number of 61 cases. On

3 the 61 cases of Petrovo Selo, there's still, I mean, 7 -- roughly 7 per

4 cent of the total of all the cases examined here that were fully fleshed.

5 In none of those cases we recovered shrapnel injuries; again, only

6 gun-shot injuries.

7 So what I'm trying to say is that even if we argue that shrapnel

8 may be lost because they were skeletons and it was not recovered or

9 whatever, and there were a much, much larger proportion of people that

10 suffered shrapnel injuries instead of gun-shot injuries, that would not, I

11 mean, fit. Still we have a problem.

12 Q. Thank you.

13 MS. KRAVETZ: Your Honour, there are a number of forensic inspection

14 reports and death certificates which are referred to in this witness

15 statement which I would like to tender. I'm not going to show them to him.

16 Some examples are, in fact, attached to his witness statement. These are

17 Exhibits P943, 944, 2394, and 2454. There is also Exhibit 2798, which is

18 the list of missing persons prepared by OMPF, which is referred to in his

19 statement which I seek to tender at this stage. I think the statement

20 sufficiently describes how this list is compiled. So I would not repeat

21 this during the oral testimony of this witness.

22 JUDGE BONOMY: The exhibit list, then, for this witness, is it

23 confined to just the examples you've given?

24 MS. KRAVETZ: There were more exhibits that were originally listed

25 in this witness notification. We're seeking to tender the exhibits that I

1 have just noted. Exhibit P2798 is the OMPF consolidated list of October,

2 and it incorporates Exhibit P2797. So I just seek to tender the more

3 updated list.

4 There are also --

5 JUDGE BONOMY: Sorry, it incorporates which? The number hasn't come

6 up on the --

7 MS. KRAVETZ: It incorporates Exhibit P2797, which is the list

8 dated December 2004. We had originally listed both of them; we're only

9 seeking to tender the most recent list.

10 JUDGE BONOMY: Let me be clear. That's the list of people

11 identified through this process?

12 MS. KRAVETZ: Yes.

13 JUDGE BONOMY: 943 and 944 are what?

14 MS. KRAVETZ: They're copies of forensic inspection reports and

15 death certificates that were issued by OMPF through this process.

16 JUDGE BONOMY: So is that a -- these are a long list, are they?

17 MS. KRAVETZ: They're very -- they're very -- there's a very large

18 number of exhibits -- I mean, of documentation. So I'm not going to go

19 through these exhibits in detail.

20 JUDGE BONOMY: And what are 2394 and 2454?

21 MS. KRAVETZ: They're also copies of forensic inspection reports

22 and death certificates. These are bundles, therefore, of exhibits. They

23 contain all the forensic inspection reports and death certificates that we

24 have been provided by OMPF.

25 JUDGE BONOMY: So are they the complete set of which we have three

1 examples in the report?

2 MS. KRAVETZ: They're the set that we have received so far. I

3 understand that the process is still ongoing. There are additional ones

4 that we have not received, but at this stage these are the ones that

5 concern our scheduled victims and they are the ones that we are seeking to

6 have admitted in evidence.

7 JUDGE BONOMY: So there are -- remind me. The total number of

8 bodies examined was 866 was it?

9 MS. KRAVETZ: -89, I believe.

10 JUDGE BONOMY: -89. And you don't have the reports for all of

11 them but most of them. Is that right?

12 MS. KRAVETZ: I believe we have around - I'm giving a very rough

13 number - around 600. The last time we received these were sometime last

14 year, towards the middle of last year. I believe this has been updated

15 now, but we have not requested additional ones because these are the ones

16 that relate to our victims.

17 JUDGE BONOMY: So these various exhibits that you've just asked us

18 to admit are the comprehensive exhibits behind the figures here, so far as

19 you now have them?

20 MS. KRAVETZ: Yes, that's correct.

21 I would like to also indicate, Your Honour, that we intend, in the

22 coming weeks, to re-send to the Court some sort of chart or table where

23 all the forensic documentation for these three mass grave sites is

24 collected and linked to our scheduled victims in order to facilitate

25 reference and review of this documentation, because we are aware that all

1 these exhibits are quite huge and contain a lot of documentation.

2 JUDGE BONOMY: The coming weeks are two, I think.

3 MS. KRAVETZ: Yes. Hopefully next week. I don't want to give a

4 date, but, yeah, before the close of our case.

5 JUDGE BONOMY: No, but you have a target for tying all loose ends

6 up.

7 MS. KRAVETZ: Yeah.

8 JUDGE BONOMY: In any event, there's no opposition being taken to

9 any of these exhibits, and it is our -- it's clearly appropriate that they

10 should be part of the process.

11 MS. KRAVETZ: Thank you, Your Honour. At this stage I have no

12 further questions for this witness.

13 JUDGE BONOMY: Thank you.

14 Just one thing I want to be clear about, Mr. Zecevic, before we

15 move on.

16 Mr. Mrkic, you are here, I think, on the assumption that the first

17 witness would not be this witness but probably would be Mr. Maisonneuve,

18 or am I wrong on that?

19 MR. MRKIC: No, Your Honour, you're right. You're absolutely

20 right.

21 JUDGE BONOMY: Now, the fact that it's this witness, perhaps a

22 little unexpectedly today, does that create any difficulty for your

23 position?

24 MR. MRKIC: No. At this point none whatsoever.

25 JUDGE BONOMY: And you will draw it to my attention if it does

1 cause any difficulty?

2 MR. MRKIC: Certainly.

3 JUDGE BONOMY: Thank you.

4 Mr. Zecevic.

5 MR. ZECEVIC: Your Honours, it is my understanding that none of the

6 Defence teams has any questions for this witness.

7 JUDGE BONOMY: Is this a first?

8 MR. ZECEVIC: There's always a first time for everything, Your

9 Honour.

10 JUDGE BONOMY: Well, I don't know what credit you want to take

11 from this, Mr. Baraybar, but I think you're the only witness who's come

12 here and not been cross-examined. But perhaps we shouldn't read too much

13 into that.

14 JUDGE CHOWHAN: Or whether you might mention an award for that.

15 JUDGE BONOMY: Well, yes, indeed. There may be a competition, an

16 aware for the most successful witness at the ICTY. However, that's not

17 meant to be a comment on the value of your evidence at this stage, but

18 simply an expression of understanding as to why the position should be as

19 it is, because you've presented in writing a very thorough account of the

20 position and therefore expanding it orally has obviously raised no

21 particular controversy. Your evidence today has been helpful to us. We're

22 grateful to you for coming here to give it. That brings it to an end and

23 you're now free to leave.

24 THE WITNESS: Thank you. Thank you very much, Your Honour.

25 [The witness withdrew]

1 JUDGE BONOMY: Mr. Stamp, your next witness?

2 MR. STAMP: The next witness is Lieutenant-General Maisonneuve --

3 JUDGE BONOMY: Thank you.

4 MR. STAMP: -- Who is on his way and Mr. Marcussen is going to be

5 leading his evidence.

6 JUDGE BONOMY: Thank you.

7 [Trial Chamber and legal officer confer]

8 [The witness entered court]

9 JUDGE BONOMY: Good morning, Mr. Maisonneuve.

10 THE WITNESS: Good morning, Your Honour.

11 JUDGE BONOMY: Would you please make the solemn declaration to

12 speak the truth by reading aloud the document now before you.

13 THE WITNESS: I solemnly declare that I will speak the truth, the

14 whole truth, and nothing but the truth.

15 JUDGE BONOMY: Thank you. Please be seated.

16 Mr. Ivetic.

17 MR. IVETIC: Your Honour, I apologise, we had not thought the

18 witness would get here before the pause, but I was mentioning there's a

19 joint motion or objection relating to some of the evidence that's being

20 proffered/tendered for this witness that was filed by my team and the

21 Lazarevic team, and then I also have a further objection. I don't know

22 whether we want to raise it at this point or wait until the documents

23 themselves or the topics themselves are being presented by the

24 Prosecution, to raise these matters and to have oral submissions on the

25 same.

1 The matters set forth in the motion are fairly clearly delineated

2 in the motion, so I don't think we would need to have much additional said

3 about those. But the one point that I have in addition to the motion,

4 which is purely on behalf of the Lukic Defence, would be to have an oral

5 submission. But it's limited to one document and therefore could be done

6 at the appropriate time when the exhibit is tendered by the Prosecution.

7 JUDGE BONOMY: Mr. Ivetic, I have not seen a motion. When is it

8 dated?

9 MR. IVETIC: It was done last night, but I believe it probably

10 wasn't filed until this morning, is my --

11 JUDGE BONOMY: None of us have seen it here, including the legal

12 support staff, so we are in the dark. Do you have a copy?

13 MR. IVETIC: I have one copy, Your Honour, that I was just able to

14 get. Again, we thought the prior witness was going to go most of the

15 session, given the estimate of 90 minutes that had been given by the

16 Office of the Prosecutor.

17 JUDGE BONOMY: How lengthy is this?

18 MR. IVETIC: It's four pages and a wherefore clause. It's

19 actually three pages, most of which is a chart listing the exhibits. So

20 it's not too lengthy.

21 JUDGE BONOMY: I take it some of it relates to Racak.

22 MR. IVETIC: That's correct.

23 JUDGE BONOMY: Does it all relate to Racak?

24 MR. IVETIC: No.

25 JUDGE BONOMY: It may be that the best plan, then, is to progress

1 for the moment. It may be also that Mr. Marcussen, if he's seen a copy of

2 this objection, may navigate his way around the problem and he may already

3 have plans to navigate his way around the problem. So I think we'll

4 start. That means that you have to alert me if something arises early in

5 the evidence that needs attention. I don't expect anything on this subject

6 to be debated at any great length. And a copy of that should be available

7 for the Bench to look at during the break.

8 MR. IVETIC: We'll do that, Your Honour. And essentially it would

9 -- the objections would relate only to specific attachments and parts of

10 the witness statements, so obviously I can just state that I will have an

11 objection to certain parts of those, so that it's received with

12 reservation of the resolution of the issue of the objections once it's

13 tendered, obviously.

14 JUDGE BONOMY: Thank you.

15 Mr. Marcussen, can I suggest you get a copy of this. It doesn't

16 surprise me that there are objections to some of this evidence for

17 reasons, obviously, unconnected with the witness but connected with other

18 developments in this trial, and you should obviously accommodate them

19 insofar as they seem sensible and argue about them insofar as you take

20 exception to them. And we can deal with that when necessary. But please

21 embark now on your examination.

22 MR. MARCUSSEN: Thank you, Your Honour. I will embark on my

23 examination. The only thing I would mention, and I think -- as I haven't

24 seen the filing myself, as we indicated in our witness notification, we

25 were going to propose this witness as a 92 ter witness with a little bit

1 of live testimony to just cover some additional points, which would mean

2 that we would be seeking the admission of the witness's statement from

3 2002 plus his transcript from the Milosevic case. Now --

4 JUDGE BONOMY: Well, you see, a lot of the Milosevic transcript is

5 about Racak and it's about the detail of Racak that we have excluded. And

6 it's a pity, perhaps, that that hasn't been excised. There are elements,

7 obviously, that are admissible.

8 MR. MARCUSSEN: Okay. Maybe what we should do is we should -- I

9 can move on with the examination of the witness. Once I have a chance to

10 look at the motion --

11 JUDGE BONOMY: Yes.

12 MR. MARCUSSEN: -- I have -- I mean, I have, of course, reviewed

13 the transcript --

14 JUDGE BONOMY: Will you have finished your examination by the

15 break, which will be 35 minutes?

16 MR. MARCUSSEN: Probably not quite, but I can review it over the

17 break nonetheless.

18 JUDGE BONOMY: All right. Thank you.

19 WITNESS: JOSEPH OMER MICHEL MAISONNEUVE

20 Examination by Mr. Marcussen:

21 Q. Good morning, General.

22 A. Good morning.

23 Q. Would you state your full name for the record, please.

24 A. Joseph Omer Michel Maisonneuve.

25 Q. And what rank do you have?

1 A. I'm a lieutenant-general in the Canadian Forces.

2 Q. So you were promoted since you testified in the Milosevic case?

3 A. Yes, I was.

4 Q. When were you promoted?

5 A. In March of 2003.

6 Q. And are you still a serving member of the army?

7 A. Yes, I am, for a few more months.

8 Q. And then you will retire?

9 A. I will retire.

10 Q. Since you testified in the Milosevic case, what functions have

11 you had?

12 A. I've just finished being the Chief of Staff of NATO's Allied

13 Command Transformation Headquarters in Norfolk, Virginia, in the United

14 States.

15 Q. But you are a member of the Canadian Army?

16 A. I'm a Canadian officer, yes. And, of course, that's a

17 multi-national headquarters in Norfolk.

18 Q. And what were your functions in these headquarters?

19 A. I was the Chief of Staff and third in command of the Strategic

20 Command.

21 Q. And is that a new headquarters or was that --

22 A. In fact, it is a new headquarters that we set up in the summer of

23 2003, and it's a transformational headquarters, a change-of-management

24 headquarters for NATO.

25 JUDGE BONOMY: What does that mean?

1 THE WITNESS: Well, that means that all operations are done by the

2 other Strategic Command and this Strategic Command is in charge of

3 innovation, looking to the future, doing experimentation, developing

4 concepts and doctrine, training and education as well.

5 JUDGE BONOMY: That's very helpful. Thank you.

6 Mr. Marcussen.

7 MR. MARCUSSEN: Thank you, Your Honour.

8 Q. General, did you give a statement to the Office of the Prosecutor

9 in 2002?

10 A. Yes, I did --

11 Q. Excuse me, in 2000.

12 A. In 2000, yes, I did.

13 Q. And before coming here today, have you had a chance to review

14 that statement?

15 A. Yes, I have.

16 Q. And when you reviewed the statement, did you discover certain

17 things that needed clarification and maybe correction?

18 A. Yes. As a matter of fact, I reviewed it in 2002 before testifying

19 and made some changes then that -- that still should be held up today.

20 Q. Now, General, do you have -- you don't have a copy of your

21 statement --

22 A. No, I didn't bring it in, actually.

23 Q. So if I could give you a copy.

24 A. Things went a bit quicker for me as well this morning.

25 MR. MARCUSSEN: And, Your Honours, the statement has been uploaded

1 into e-court as Exhibit number P2772. And at this stage I should mention

2 that what has been uploaded is the witness statement plus all the

3 attachments to the statement.

4 Q. General --

5 JUDGE BONOMY: Well, what we'll do is suspend any decision on the

6 admission of all this documentation until we get to a stage in the

7 evidence where we can make a final decision.

8 MR. MARCUSSEN: Yes. It was only in light of this objection that

9 I thought I should make clear what the exhibit actually includes.

10 Q. General, in paragraph 22, after the second sentence, after the

11 reference to an attachment MM/6, am I correct that you also handed over a

12 second set of minutes of a meeting that you had with Delic on the 1st of

13 February, 1999?

14 A. Yes, I did.

15 Q. And that is the attachment that's actually referred to in the

16 subsequent paragraphs?

17 A. I believe so, yes.

18 Q. And then on the next page of the statement, paragraphs 28 and 29,

19 I believe there are two other mistakes. Am I correct that the reference

20 to the attachment M6A should actually have been M6B?

21 A. That's right.

22 Q. And in paragraph 29 the reference to attachment MM/8 should have

23 been MM/7?

24 A. That's correct, yes.

25 Q. Apart from these -- once these corrections are made to your

1 statement, does the statement accurately reflects, as our rules say, your

2 declaration and what you would say today if examined on the issues covered

3 by the statement?

4 A. Yes, it does.

5 Q. Thank you.

6 MR. MARCUSSEN: Well, I will seek to tender this statement but not

7 the attachments. Maybe that would be the best way to do it and then we

8 will sort out the attachments afterwards. Or should we simply -- sorry, I

9 don't want to confuse matters. Is it better that I propose to tender the

10 statement but we will get back to this later.

11 JUDGE BONOMY: Indeed. Thank you.

12 MR. MARCUSSEN:

13 Q. General, you already mentioned that you testified in the Milosevic

14 case. I believe that was on the 29th and 30th of May, 2002?

15 A. That's correct.

16 Q. Have you had a chance to review the transcript of the testimony?

17 A. Yes, I have.

18 Q. And does that, again, reflect what you would declare and say if

19 you were asked about the same events today?

20 A. Absolutely.

21 Q. Thank you very much.

22 MR. MARCUSSEN: Okay. So -- in due course I will seek to tender

23 this -- these transcripts, and for the record, they have exhibit number in

24 e-court P2815.

25 Q. General, in paragraph 9 of your statement you mention that you on

1 one occasion had a meeting with Mr. Sainovic. And you say in your

2 statement that you had no doubt that he was well-apprised of what was

3 happening in Kosovo. What made you think that? What gave you that

4 impression?

5 A. Well, I found certainly Mr. Sainovic -- especially since I had the

6 chance of -- it was Ambassador Keller who was actually running -- leading

7 the meeting, so I had to chance to just sit back and watch his behaviour

8 and I thought he was a confident, polished gentleman, who seemed very

9 well-aware of the activities that were going on in Kosovo at the time.

10 Q. And you also say that he had the power -- the power to act was in

11 his hands to a great degree. How did --

12 A. Well, my sense was that on other occasions I had been -- obviously

13 in several meetings with all the folks in Kosovo, and there were times

14 when people referred -- would refer to higher authority or would -- would

15 not be able to make decisions immediately. And in this case I don't

16 believe -- certainly from my recollection, I do not remember any instance

17 of Mr. Sainovic saying: "Well, I have to refer this back to my authorities

18 or I'm not in a position to agree or disagree a certain issue or

19 decision."

20 Q. Thank you. Now, as -- the hope is that the Court will have your

21 statement and transcript before them. I'll jump around in your material a

22 little bit just to add some value to the evidence that will already be

23 before the Court.

24 MR. MARCUSSEN: So I would like if we can call up exhibit P2772,

25 which is the statement, and go to page 20 of that exhibit.

1 JUDGE BONOMY: Paragraph number? Is this --

2 MR. MARCUSSEN: This is one of these attachments.

3 JUDGE BONOMY: I see.

4 MR. MARCUSSEN: It's attachment M/2A.

5 JUDGE BONOMY: Thank you.

6 MR. MARCUSSEN: Called "Guidance for the Conduct of Operations."

7 Q. General, do you have it on the screen?

8 A. On the screen, yes.

9 Q. Do you recognise this document?

10 A. I certainly do.

11 Q. What is this?

12 A. In fact, what this is is -- on my arrival on the middle of

13 December to the regional centre in Prizren, there were no -- there were no

14 instructions to my subordinates on how to conduct themselves in the

15 mission. You know, as you know, this mission was set up very quickly and

16 I felt that there was a requirement to issue some orders and some, if you

17 wish, rules for the -- for the behaviour of my people in the regional

18 centre. And so that is the -- that's the document that I issued as the

19 head of the regional centre. I developed it with my subordinates using

20 some of the -- as well some of the experience of the UK KDOM on which my

21 regional centre was based and which absorbed the UK KDOM on start-up of

22 the mission. So these were, if you wish, orders or certainly guidance and

23 direction on my behalf as the head of the regional centre to my

24 subordinates for their behaviour and actions in the regional centre.

25 Q. Was this document given out to the verifiers that came and worked

1 in your regional centre?

2 A. It was given actually to the entire chain of command and with

3 certainly direction that this was to be passed to every one of the

4 verifiers.

5 Q. In addition to receiving this document, was any kind of training

6 given to verifiers that worked for the KVM?

7 A. Yes, every verifier that came into the KVM would receive a course

8 at the KVM induction centre in Brezovica, that was run by the Italians

9 actually at the time.

10 Q. Now, I'd like to ask you about paragraph 3 of this -- of this

11 document. Could you explain to us what is it you are describing under the

12 heading "Other Forces."

13 A. Well, in the usually NATO format for orders and guidance, there's

14 a paragraph that talks about other forces that may be around in the area

15 of operations. In this case, I -- I divided up into those that are within

16 the Kosovo theatre and those that were outside, and of course NATO had the

17 mission of providing support if there was a requirement to evacuate, and

18 so there were forces outside of Kosovo that were of interest to us, and

19 that's -- that was -- the aim was to describe those forces in paragraph B,

20 3B, and the fact that these would be coordinated through the Kosovo

21 verification coordination centre in Skopije.

22 Q. And just to make clear, when there's a reference to certain

23 circumstances, what were they, were they evacuation?

24 A. That's right, yeah.

25 Q. Now, I'd like if we could move on to paragraph 22 of this exhibit

1 which is in e-court at page 29.

2 MR. MARCUSSEN: Is it more helpful to the court staff if I give

3 the -- our ERN number, the longer number that begins with a K for you to

4 find the page?

5 JUDGE BONOMY: [Microphone not activated]

6 THE INTERPRETER: Microphone, please.

7 JUDGE BONOMY: For me it's easiest if I'm given the number in the

8 MM series that you have, since that's how it's been numbered.

9 MR. MARCUSSEN: We're within the same document. We're still in

10 MM/2A, but now we are --

11 JUDGE BONOMY: There are paragraph numbers, so you can give us the

12 paragraph.

13 MR. MARCUSSEN: Paragraph 22.

14 JUDGE BONOMY: Thank you.

15 MR. MARCUSSEN: And obviously -- I think we're having another page

16 there, aren't we. We need to go backwards a number -- a couple of pages,

17 six pages I think. The court staff have the right ERN number up at the

18 top. Oh, sorry, we need to go to page 23. I think we're at page 29.

19 Good. Thank you. There we are.

20 Q. General, here in paragraph 22 you talk about daily sitreps being

21 prepared by your regional centre. Who approved the sitreps before they

22 were sent off?

23 A. Well, I had taken the -- in fact, the sitrep was developed by the

24 chief of operations, who would gather the -- and collate the information

25 from the subordinate coordination centres, and I had taken the habit, as I

1 believe is important, as the commander, as the head of the regional centre

2 to review the sitrep every day and to add my own comments where pertinent

3 on the overall situation, as I believe that the head of a regional centre

4 has perhaps a better overall view and a strategic picture of what's going

5 on in the other areas as well. So essentially, I would write that comment,

6 would review the sitrep, make sure that it was accurate as far as I was --

7 as I knew. Obviously, I didn't know every detail, but I would certainly

8 try to get as much as I could. And then if I was not there my -- the

9 deputy would do it, and if he wasn't there, then obviously the chief of

10 operations would do it himself.

11 Q. Thank you.

12 MR. MARCUSSEN: And if we could move to the next page of this

13 exhibit, please.

14 Q. General, I will -- I would like to ask you about paragraph 23.

15 Here you set out the approach to be adopted by your verifiers when they

16 are in the field. Now, I will talk about -- you mentioned that this

17 document was prepared by you for your regional centre. Were these kind of

18 principles adopted by other region stall centres, to your knowledge?

19 A. Well, I certainly was of the hope that they would be, and my --

20 because, of course, this direction, which -- if things had been in the

21 perfect world would have come from above, from the KVM headquarters down

22 to the regional centres. They had not had a chance to actually sit down

23 and do this kind of document. So I actually produced it and gave a copy

24 to the other regional centres and I passed a copy up to the -- of course,

25 up to KVM headquarters. I don't believe that I saw anywhere a -- you

1 know, as detailed a document from the KVM, although these principles were

2 ones that I elaborated with my -- with my folks, of course, in the mind of

3 the way the KVM was approaching the mission itself, i.e., General DZ and

4 Ambassador Walker wished to behave with impartiality to all parties, unity

5 of effort, et cetera, et cetera.

6 Q. Thank you.

7 MR. MARCUSSEN: Now I'd like to move on two pages ahead again in

8 this exhibit. We're now moving to an attachment which is numbered MM/2B.

9 Q. General, do you have it on your screen?

10 A. I do.

11 Q. Yeah. What is this document?

12 A. I was -- well, in the military, of course, we try to be ahead of

13 whatever's going to happen next. And at the time of the Rambouillet

14 negotiations, there was a -- we hoped that it was going to yield a

15 positive outcome and to be prepared for that opportunity or that

16 eventuality I sat down with my folks and looked at how we might implement

17 a future accord. And so what this is a kind of a leaning-forward document

18 that talked about the -- in the event of a successful negotiation in

19 Rambouillet, that we would be prepared to implement some measures in terms

20 of, you know, the future of Kosovo itself. And certainly within -- within

21 the regional centre trying to identify areas where we might put folks in

22 what we called shadow positions, liaison positions, those were primarily

23 the areas that we thought would be the first thing that would required if

24 there was an agreement. These liaison and shadow folks would be there

25 as -- if you wish, to keep very close connection with the parties, all the

1 parties and be able to certainly offer an information system for the

2 international community to see how the implementation of the accord would

3 take place.

4 Q. Could you explain to us the difference between a liaison officer

5 and a shadow person?

6 A. Well, I guess they're closely -- you could almost say they're

7 almost the same thing where a liaison officer would perhaps be more to an

8 organisation and a shadow person would be more to an individual.

9 Q. And, General, this document is dated on the 23rd of February, so

10 this is towards the end of the Rambouillet negotiations. Is that --

11 A. That's correct.

12 Q. And just to clarify, you have op success, does that mean operation

13 success?

14 A. Operation success. For obvious reasons, we were hoping it would

15 be successful.

16 Q. But what were -- did you have an operation or is this a reference

17 to this particular process of preparing and --

18 A. This was a reference to the -- you know, we called it operations

19 success because we thought it might be successful. No more smart than

20 that, really.

21 Q. Now, General, the next document I'd like to have a look at is a

22 document that's found still in the same exhibit at page -- e-court page

23 47. And it is attachment MM/4.

24 MR. MARCUSSEN: I guess it's probably one of the documents that my

25 learned friend has an objection to. I haven't looked at the file yet, but

1 I see he's on his feet. If it is, I will not be seeking to tender this

2 document, but there's a reference to it in the Milosevic transcript and

3 therefore I just want to clarify two points about this, so maybe I should

4 just quit.

5 JUDGE BONOMY: You've played all your cards in advance, Mr. --

6 MR. MARCUSSEN: You know how we are from the side of the

7 Prosecutor.

8 JUDGE BONOMY: Mr. Ivetic.

9 MR. IVETIC: That is indeed one of the documents that my Defence

10 team had an objection to that is not contained in the motion. That is the

11 one that I was going to have a short oral submission on. If it's not

12 coming in, I just want to make sure that, although it's referenced in the

13 Milosevic transcript, it's not coming in through the backdoor, either,

14 because I believe this document would be a violation of Rule 92 bis and

15 ter insofar as it's a statement of a non-declarant who's not in court, not

16 under oath, et cetera, and is a purely personal document rather than a

17 business document, which is perhaps the reason why it's not being

18 tendered. I don't know.

19 JUDGE BONOMY: Your position then, Mr. Marcussen.

20 MR. MARCUSSEN: If none of my colleagues are going to rely on this

21 document, I don't have any questions about the document. That's my

22 position on that.

23 JUDGE BONOMY: But are you tendering it?

24 MR. MARCUSSEN: No, but if I need to, I would tender it, but with

25 two questions about each one of the -- the nature of the two parts of this

1 document only. We will not be relying on the content of this.

2 JUDGE BONOMY: The objection taken is that it's a device to get

3 around the requirements of Rule 92 ter to produce this document in this

4 way. Do you accept or contest that?

5 MR. MARCUSSEN: Well, I think -- I mean we can get into a whole

6 legal issue whether we can tender hearsay evidence and stuff like that.

7 My position on the use of this document for the Prosecution's case is,

8 we're not going to rely on the contents of this document to prove any

9 matters in the Prosecution case. So there isn't a real issue --

10 JUDGE BONOMY: So why are you tendering it, then?

11 MR. MARCUSSEN: Well, I think it's because -- well, it is because

12 we are seeking to have this transcript from the Milosevic case admitted to

13 where there is a reference to this, so it's going to come in with that --

14 JUDGE BONOMY: Is it used in cross-examination or

15 examination-in-chief in Milosevic?

16 MR. MARCUSSEN: It's used in cross-examination for a limited

17 purpose, and anticipating that the Defence might want to rely on the

18 document in due course, or some of the accused, I had two questions about

19 the document only to put to the general.

20 JUDGE BONOMY: Mr. Sepenuk, do you have a separate point to make?

21 MR. SEPENUK: Perhaps we can wait for these questions, Your

22 Honour, might answer what I had in mind.

23 JUDGE BONOMY: Well, Mr. Ivetic's objection is to the document per

24 say, as I understand it.

25 MR. IVETIC: That is correct, Your Honour.

1 JUDGE BONOMY: So we have to make a ruling here.

2 MR. SEPENUK: I certainly don't rely on the document, as

3 Mr. Marcussen said, if any of the Defence lawyers rely on it. We do not

4 rely on the document, but the witness has said that he believes -- he

5 believes that the document's an accurate assessment of what was going on

6 in Kosovo at the time. And I had one or two very brief questions that I

7 had planned to ask him about that document, but again, we do not rely on

8 the document. It is one person's opinion, but to the extent that the

9 general said he agreed with the assessment contained therein, I had one or

10 two very brief questions to ask him about it.

11 JUDGE BONOMY: And that's something he said in the Milosevic

12 trial, is it?

13 MR. SEPENUK: It's actually something he said right in his

14 statement, Your Honour.

15 JUDGE BONOMY: Right.

16 You maintain your position then, Mr. Ivetic, do you?

17 MR. IVETIC: Yes, Your Honour, I do.

18 JUDGE BONOMY: Well, I think in view of the position we've taken

19 so far on this, we'll ask the two questions to be asked under reservation

20 and we'll make a decision on this along with the others.

21 Mr. Marcussen.

22 MR. MARCUSSEN: Thank you, Your Honour.

23 Q. General, this is a document that has two parts. The first part is

24 a document that was updated on the 27th of December, 1998, which -- you

25 have the first page of the document on your screen before you. Was this

1 document distributed to verifiers in the same way as the -- your

2 guide-line was distributed?

3 A. No, this was more of a -- had more of a restricted distribution,

4 but it was available to the chain of command and I would not say that

5 every verifier read it. But it was available to the chain of command.

6 Q. Now, if we can go to e-court page -- e-court page 62, please.

7 There we have the second part of this attachment to your statement, but

8 it's a separate document also prepared by Mr. Wilson dated the 6th of

9 February, 1999. What is this document?

10 A. Again, this is a -- more of a leaning-forward document. And

11 again, you have to remember these two documents were prepared by an

12 individual and were, you know, his personal view of what was going on.

13 And the second one called "Intervention Forces in Kosovo," to which you

14 refer now is one that was prepared at the outset of the Rambouillet

15 Accords or the Rambouillet discussions and negotiations, and again talks

16 about the possible requirement for an intervention or an implementation

17 force in Kosovo should there be an accord, an agreement, in Rambouillet.

18 Q. And am I understanding you correctly that this is a document that

19 described what the KVM's role would be if such an intervention force was

20 agreed on?

21 A. Right, right.

22 Q. I guess that ended up being three questions, but I'll move off the

23 exhibit now.

24 Now, General, moving to sort of a broader topic, the KLA. How

25 would you describe the KLA force during the time you were in Kosovo?

1 A. I guess I would describe it as not a -- not particularly

2 well-organised; nevertheless, having a semblance of a chain of command. A

3 group of folks, I guess, with what they perceived as good intentions,

4 so-called freedom fighters, I guess you could call them and -- but that

5 wished to be taken seriously.

6 Q. And did you have an opportunity to assess their strategy and

7 tactics?

8 A. Well, the -- certainly, the one thing that -- in certainly my

9 dealing with them they -- they seemed -- and I was dealing with one

10 particular individual most of the time, that they -- who kept telling me

11 that they had an overall strategy and that they were preparing activities

12 and so on. So it seemed that certainly from what he was saying, they

13 had -- they had an agreed strategy and seemed to be coordinated. Now,

14 that -- you know, that's -- didn't prove to be the case on several

15 occasions on the ground.

16 JUDGE BONOMY: What was that individual?

17 THE WITNESS: That was Drini, his nom de guerre was Drini, that

18 was the individual with whom I negotiated most of the time.

19 JUDGE BONOMY: Yeah.

20 MR. MARCUSSEN:

21 Q. And is it possible for you to describe sort of the capabilities

22 that the KLA had in your view as a --

23 A. I would say they were a very, very lightly equipped, usually

24 small-arms, perhaps some machine-guns but no heavy vehicles, no armour,

25 certainly, you know, transported in soft-skinned vehicles, trucks, buses,

1 mini-buses, and so not certainly a military force as you would -- you

2 would find in organised -- you know, in a country, for example.

3 Q. In this case we have been using sort of a range of various terms

4 that I'd like to ask you about, based on your experience as a senior

5 officer. Could you describe to us your understanding between the

6 distinction between terrorists, guerillas, militaries, and maybe

7 paramilitaries, too, to try to cover the whole set of terms that's been

8 used here?

9 A. Well, if I start off with what certainly I see as a terrorist, as

10 an officer, as a military professional officer, a terrorist to me is not

11 necessarily an organised group of people who are waging war against an

12 enemy other than by using -- using events and activities that make a big

13 splash for media purposes. That would be I guess to the left-hand of the

14 scale. You could call it a -- maybe a political movement or a -- a --

15 sometimes I guess religious movement as well. On the right-hand side,

16 military forces structured with uniforms and with a hierarchy and a chain

17 of command from the top to the bottom with, perhaps, a political authority

18 or -- yeah, a political authority of some kind at the top. And that's the

19 right-hand of the scale.

20 In the middle I guess you could look at perhaps guerillas as

21 people who organise themselves in a kind of an uprising and are looking to

22 change -- to change a particular situation in kind of a well-meaning

23 freedom kind of desire. So it's -- it's kind of a -- it's not absolute,

24 of course, but I guess in my simple military mind that's the way I divide

25 them up.

1 Q. And -- the term "paramilitary," what does that mean to you?

2 A. Well, paramilitary I guess would be forces that had not -- that

3 are not fully military and designed and organised to go and fight against

4 opposing militaries. Paramilitary would be forces that have perhaps

5 hierarchy and a chain of command and some military skills but not all of

6 them but that are more designed to support civilian action, I guess. Much

7 as a gendarmerie, for example, in some countries.

8 Q. Thank you. Would that be like the ISS in France, if you're

9 familiar with that?

10 A. Yes, the gendarme, I guess is what you're talking about yeah.

11 Q. Now, in paragraph 12 of your statement --

12 JUDGE BONOMY: What was the purpose of that question?

13 MR. MARCUSSEN: Well, we have been having the term --

14 JUDGE BONOMY: Because it could lead to an interminable debate

15 here. Do you have a specific purpose?

16 MR. MARCUSSEN: I do have a specific purpose. There have been

17 already a fair amount of debate about what witnesses have meant when they

18 have referred to paramilitaries, what it means when a statement says

19 paramilitary and things like that. I think the Defence have suggested

20 that that means random people running around on the ground, so I'm asking

21 what in a military -- senior military officer --

22 JUDGE BONOMY: Well, it doesn't really matter what the senior

23 military officer thinks a paramilitary is; it depends what the witness who

24 used the expression thought the paramilitary was, surely.

25 MR. MARCUSSEN: Right, but --

1 JUDGE BONOMY: And that's something we alone can judge since we

2 alone have heard all this.

3 MR. MARCUSSEN: Certainly.

4 JUDGE BONOMY: Yes. So I just wouldn't like us to get into a

5 debate on this subject which does nothing but increase tension rather than

6 help to resolve problems in the case.

7 MR. MARCUSSEN: But it is a fairly important point for the

8 Prosecution whether, for example, armed units -- the civilians that have

9 been armed by the authorities of the FRY and Serbia qualify as a

10 paramilitary organisation. It's a legal -- now I'm getting into a legal

11 debate, but there is an issue about the classification of some of these

12 different armed groupings that were around in Kosovo --

13 JUDGE BONOMY: Well, yes, I understand that and if Mr. Maisonneuve

14 had the personal experience of groupings that fell into the category you

15 have described, then it would be good to hear his evidence but not his

16 general views on how you define terrorists, guerillas, and paramilitary.

17 That, I don't think is going to assist us here. Anyway, proceed.

18 MR. MARCUSSEN:

19 Q. General, in paragraph 12 of your statement you -- you say that the

20 military hardware and equipment went beyond bounds of any reasonable

21 anti-terrorist action. And you make reference to similar sort of things

22 in paragraph 18, 35, and 36 of your statement. Now, what equipment did

23 you have in mind?

24 A. Well, in my experience as an army officer and as an armoured

25 officer, a tanker, the approach to -- you try as much as possible to match

1 the threat with the equipment and the approach that you're going to take.

2 For example, tanks and heavy vehicles and motorised -- mechanised forces

3 would be used in open conflict against other tanks in fairly open -- open

4 ground in manoeuvre warfare, if you wish. If you're fighting against a

5 lightly armed force, most likely you would try to match that by lightly

6 armed and perhaps special forces in countering them.

7 Q. There's mention in --

8 JUDGE BONOMY: Now, could you find a suitable point to interrupt?

9 MR. MARCUSSEN: Let's simply take it here. Thank you.

10 JUDGE BONOMY: Mr. Maisonneuve, we have to break at this stage,

11 and that break will be for half an hour. Could you please go with the

12 usher; he'll show you where to wait meanwhile.

13 THE WITNESS: Thank you very much.

14 [The witness stands down]

15 JUDGE BONOMY: And we'll resume at 11.15.

16 --- Recess taken at 10.46 a.m.

17 --- On resuming at 11.19 a.m.

18 JUDGE BONOMY: Now, Mr. Marcussen, have you had a chance now to

19 consider the terms of this notice to exclude testimony?

20 MR. MARCUSSEN: I have, Your Honour. I have --

21 JUDGE BONOMY: Well, let me ask you some questions about it. So

22 far as the transcript is concerned, the reference to pages 5855 to 5892

23 and 5903 to 5909 are to cross-examination. Do you insist on these pages

24 being part of the record?

25 MR. MARCUSSEN: There are a few points that are actually clarified

1 in those passages, but as they are covered also in the direct so it's

2 not -- there are little bits that I would have liked in but --

3 JUDGE BONOMY: Well, if you identify them --

4 MR. MARCUSSEN: But to --

5 JUDGE BONOMY: If you identify them, we'll consider them.

6 MR. MARCUSSEN: Would you like me to address the motion?

7 JUDGE BONOMY: If that can be done just now, yes. If that is the

8 position, let's do the whole thing in order, then.

9 MR. MARCUSSEN: Yes.

10 JUDGE BONOMY: 5768 is neither here nor there, so we'll exclude

11 it. 5778 to 5805, what do you have to say about that?

12 MR. MARCUSSEN: In my submission, this is relevant to -- it is

13 relevant to the linkage -- there -- basically with all of this evidence

14 there are two main points. The first point is that the Prosecution is

15 alleging that there was a general campaign in Kosovo where -- during which

16 a number of instances occurred where excessive force was used. This is

17 one of them, Racak is one of them, so to that extent we are seeking to

18 have the evidence in --

19 JUDGE BONOMY: You know we've made a decision about that. We

20 can't re-visit that decision here, so end of story. We are not

21 investigating Racak. You haven't asked us to review that and we're not

22 doing it.

23 MR. MARCUSSEN: Evidence has been allowed in through other

24 witnesses - let me address the point - about the kind of forces that were

25 involved, about the chain of command, those kind of issues. They are --

1 JUDGE BONOMY: Give me an example of the evidence of the kind of

2 forces involved.

3 MR. MARCUSSEN: Well, what this evidence is showing in parts of --

4 JUDGE BONOMY: No, no, in the past. What evidence have we

5 admitted about the kinds of forces involved?

6 MR. MARCUSSEN: We've had, for example, General Drewienkiewicz

7 talking about whether or not there was VJ forces on the rim up above Racak

8 village.

9 JUDGE BONOMY: On the 15th of January?

10 MR. MARCUSSEN: Yes, I believe so. And we have had -- so these

11 kind of things are covered by this witness as saying that observers -- KVM

12 observers on the ground on the 15th were with the tank units on the rim

13 and that he was -- he was informed by these people that a house -- a tank

14 fired at a house in Racak village. Now, I'm fully aware that we're not --

15 I'm not trying to get into the underlying crime base evidence where this

16 is relevant to the cases, the level of coordination that this witness say

17 was required in order for something like this to happen. He's basically

18 saying: If you have police and army operating in this kind of fashion, in

19 his view the coordination would have taken place at least at the brigade

20 and MUP staff level.

21 So that's why I'm seeking to rely on this. This part of the

22 transcript also includes discussions of some of these exhibits that are

23 also objected to such as MM/7 and MM/8.

24 JUDGE BONOMY: Let's deal with one thing at a time. We're looking

25 at the transcript. Now, where is it you say in these passages we find

1 something about the level of coordination required for something like this

2 to happen?

3 MR. MARCUSSEN: Your Honour, I'm not able to take you to every

4 single -- what I've down is outlined the points that arise from these

5 general chunks of transcript. I have two small points that I thought the

6 Defence would be objecting to that I was going to agree to exclude, but

7 obviously much smaller parts than what the Defence is seeking to have

8 excluded. We have -- there's also a passage in this -- in this evidence

9 about -- generally about MUP conduct in Kosovo. The witness is saying

10 that the MUP was acting, they are overreaching --

11 JUDGE BONOMY: That's in page four -- 5794 and that sort of thing

12 may well be admissible. There's another passage on 5782 about the use of

13 heavy armaments in circumstances which don't merit it, and these are

14 general expressions of his view as a person who can express such a view.

15 There are passages you can clearly justify having admitted in this area,

16 and we need your guidance on it. You seem to want to go further than

17 would fall into that -- into these categories.

18 MR. MARCUSSEN: If Your Honours would like me to address the

19 specific points with specific page references within these hundred pages

20 that are there, I'm not in a position to do that at this stage. In that

21 case I would like to seek leave to file a written submission identifying

22 the specific areas where these points arise.

23 JUDGE BONOMY: No, I think -- I think somebody can surely do that

24 in the course of the day today and we can hear your oral submissions and

25 get this dealt with today. We're not going to build up a backlog of

1 written determinations that remain outstanding. We're getting too close

2 to the end of this now.

3 MR. MARCUSSEN: I must say, I do feel a bit ambushed by my

4 learned colleagues on the other side, which is --

5 JUDGE BONOMY: This was entirely predictable, Mr. Marcussen,

6 entirely predictable.

7 MR. MARCUSSEN: Now, there's another part of this objection

8 which -- for example, pages 5821, lines 17 through 23, the issue

9 addressed there is whether or not the commander of combat teams, the

10 combat teams that were up on the rim above Racak, was cooperating with the

11 KVM or not. Now --

12 JUDGE BONOMY: Now, that's not the part that's objected to.

13 MR. MARCUSSEN: Yes. 5821, lines 17 through 23.

14 JUDGE BONOMY: What does that say about being on the rim?

15 MR. MARCUSSEN: No. What this is saying is this is -- this goes

16 to the issue of whether or not the VJ was cooperating with the KVM. And

17 the witness is saying, whereas the brigade commander that he was --

18 Delic, that he was normally dealing with was accepting to have meetings

19 with him when there were issues they could discuss --

20 JUDGE BONOMY: That may well be admissible, but it's got nothing

21 to do with whether they're up on the rim, which is how you introduced

22 this passage.

23 MR. MARCUSSEN: I'm sorry, I moved on. I thought --

24 JUDGE BONOMY: Well, that's not what the transcript reflects.

25 MR. MARCUSSEN: I think the problem is with the big chunks that

1 the Defence is seeking to get excluded, there are a lot of different

2 issues arising from --

3 JUDGE BONOMY: Well, we'll allow you to --

4 MR. MARCUSSEN: -- from those specific parts.

5 JUDGE BONOMY: We'll allow you to address us later on the

6 specific parts you think should be saved from the transcript, and

7 somebody hopefully can be working on that while you're dealing with the

8 examination. And you will, I expect, have a break at lunchtime when you

9 can look yourself at some of this.

10 So far as the exhibits are concerned, you said that some of

11 these --

12 MR. MARCUSSEN: Yes, these exhibits -- Exhibit MM/7 --

13 JUDGE BONOMY: Sorry, just before you go to that. There's

14 paragraphs from the statement and one of them -- paragraph 36 seemed okay

15 to me. I'm speaking off the cuff at the moment. The others possibly

16 fall within the objection. And then MM/7 was the first of the documents.

17 Has MM/7 been exhibited already?

18 MR. MARCUSSEN: No.

19 JUDGE BONOMY: No. Even with Colonel Kotur, no?

20 MR. MARCUSSEN: I could be mistaken, but I don't think it is. But

21 we will check on that straight away.

22 JUDGE BONOMY: Now, why did you say it was admissible?

23 MR. MARCUSSEN: Sorry, do you want me to address the paragraph in

24 the statement or the exhibit --

25 JUDGE BONOMY: No, no, forget the statement. Move to these

1 exhibits because we need to know how to control the rest of the

2 examination and cross-examination.

3 MR. MARCUSSEN: MM/7, in my submission, is relevant because it,

4 again, addresses the issue of VJ involvement in Racak. Jelic, in this

5 exhibit --

6 JUDGE BONOMY: That's your basis. What about number 8?

7 MR. MARCUSSEN: Number 8, it, again, is the same issue. It

8 confirms -- yet another confirmation by another officer that the VJ was

9 involved in Racak.

10 Number 13, again we have Jelic saying that his headquarters had

11 given the order to the operation. He's, again, confirming VJ

12 involvement. And 13A and 13B essentially all go to the same issue about

13 the VJ being involved. These are -- these are records of meetings with

14 different MUP and VJ officers, recordings of their different answers to,

15 well, a number of questions but including questions about whether or not

16 the VJ was involved, whether tanks were involved.

17 In our submission, all these documents show that the VJ was,

18 indeed, involved in this operation, which, in my submission, as I said,

19 go to the issue of the level of coordination in the operation, which

20 ultimately is one of these linkage points that we are trying to

21 concentrate on in this case.

22 JUDGE BONOMY: All right. Thank you.

23 [Trial Chamber and legal officer confer]

24 JUDGE BONOMY: Well, that is helpful at this stage to have

25 explored these areas. There obviously is a difficult line to draw

1 between what's admissible in relation to demonstrating the command

2 structure and coordination between the VJ and MUP in general, and indeed

3 on the day of the 15th of January, and the detail of the event itself.

4 What is clear, as we're not exploring the detail of the event

5 itself - so there needs to be no cross-examination of documents on

6 material in relation to that - and we will in fact go through the

7 documents to which objection has been taken and we'll excise portions, if

8 necessary, if that is necessary, to make it absolutely clear what is

9 being considered and what is not being considered. And we will be guided

10 to some extent by what we have done previously in the case in relation to

11 this area so that there's consistency in our approach.

12 We will expect the Prosecution to address us further before we

13 finalise this exercise, hopefully first thing this afternoon, and we'll

14 give the Defence an opportunity to respond at that time, if it's

15 necessary to respond in light of the indications we're giving anyway. It

16 should be clear to you that we see force in significant parts of this

17 submission and debate -- and that some parts are debatable.

18 So we shall now return to the evidence of the witness.

19 [The witness takes the stand]

20 JUDGE BONOMY: Thank you for your patience, Mr. Maisonneuve. We

21 have been trying to at least resolve in part the issues that are

22 outstanding as legal matters for us. They're not entirely resolved and

23 there might be another interruption to your evidence for that purpose,

24 but meanwhile we shall proceed to hear more of your own evidence.

25 Mr. Marcussen.

1 MR. MARCUSSEN: Thank you, Your Honour.

2 Q. General, we took off at a point where you were describing various

3 kinds of military equipment and how that kind of heavier equipment would

4 normally be used. Now, there's reference ...

5 [Trial Chamber and legal officer confer]

6 JUDGE BONOMY: Sorry, Mr. Marcussen. Please continue.

7 MR. MARCUSSEN: No, no. Thank you.

8 Q. There is reference in parts of your evidence to a howitzer. What

9 kind of a weapon is that?

10 A. To which, I'm sorry.

11 Q. A howitzer.

12 A. Howitzer?

13 Q. Howitzer.

14 A. Howitzer, yes. Those are artillery weapons of different calibres

15 and they are usually used in the indirect role; that is, you know,

16 they'll be behind a hill and they'll fire over a hill to support their

17 artillery pieces that support infantry on the ground.

18 Q. Thank you. Now, what kind of an effect would these kind of

19 weapons have if you shoot at a normal house, dwelling? A house can be

20 different in nature, but are you able to assist on that?

21 A. Well, certainly, they have different types of ammunition. They

22 have high-explosive ammunition; they also have, you know, air-bursts, and

23 so on, they can fire; all the way up to nuclear weapons, obviously,

24 howitzers can to that. But say on a house, a weapon such as a howitzer

25 would undoubtedly penetrate the house and explode, perhaps not knock the

1 entire house down, but would do a lot of damage to the inside and to the

2 outside structure of the house as well.

3 Q. What about if you fire a tank round into a house?

4 A. Well, tank rounds also have ammunition which has high-explosive

5 capability, and the effect there would be the same as what I've

6 described. They also have anti-tank ammunition, which is more of a very

7 hard projectile that is -- makes holes in tanks, essentially, through

8 armour.

9 Q. And if anybody were, for some reason, to shoot something like

10 that at a house, what would it do?

11 A. Well, again, an anti-tank weapon would make a hole in the outside

12 structure, probably not cause too much damage inside, although, you

13 know, certainly the person would feel it that it came through the walls,

14 whereas a high-explosive burst would probably go through a wall and

15 explode.

16 Q. In paragraph 37 of your statement, there's a reference to a

17 vehicle called a BMP. What is that?

18 A. A BMP is a tracked air -- armoured personnel carrier.

19 Q. And what is the difference between that and a BRMP that you refer

20 to in paragraph 44 of your statement?

21 A. BRDM, I think -- let me just see here.

22 Q. BRM -- is it P --

23 A. BRDM is essentially an air and also an armoured personnel

24 carrier, but it's wheeled.

25 Q. Thank you. Now, while we are on the topic of military equipment,

1 although maybe slightly different, but to your knowledge, do night-vision

2 binoculars have a range?

3 A. Much like a day binocular, they would have a range of several

4 kilometres, probably.

5 Q. Now, you say in your statement that generally when provoked, or

6 perceived to be provoked -- sorry, I'm moving off the equipment, as such.

7 You say in your statement that the movement of the VJ generally, when

8 perceived to be provoked or being provoked, would respond in a

9 disproportionate manner. Could you explain what you mean by that.

10 A. Well, I guess in several incidents that I saw, there would be no

11 -- they would not stand for provocation and provocation could be a very

12 simple activity or could be, obviously, an act by the KLA, by the

13 Albanian forces that would -- you know, might go as far as killing

14 soldiers. And then the response seemed to me to be at all times much

15 greater than the actual act that had taken place.

16 Q. Can you mention any specific examples of that?

17 A. Well, you know, I can certainly -- I think it was on the 8th of

18 January when a convoy of MUP police was ambushed by the KLA and two --

19 two MUP policemen were killed. The response was that some tanks came out

20 of the Dulje position, VJ tanks, and started firing into a village that

21 conceivably had no part in that ambush. And it just seemed to be an

22 irrational but overwhelmingly greater response to that incident.

23 Q. Thank you. Now, I think I'll couple that, in light of the

24 objections we have. You state in your statement that the VJ and the MUP

25 appeared to have a high level of coordination and collaboration in some

1 operations. What is the basis for that assessment?

2 A. Well, first of all, the incident I just described here, obviously

3 the MUP were the ones that were attacked, that were ambushed by the KLA

4 and lost individuals; and the reaction was from the VJ. So somehow

5 information was passed and coordination took place to react to the

6 incident, certainly by my reading. And, of course, in other cases I can

7 say, for example, the Rogovo incident, where the VJ was tracking, I

8 believe, and actually at the border our assessment was what they -- is

9 that they had seen the border intrusion by the KLA and the movement of

10 the KLA across the border, and the VJ had tracked these folks along the

11 way; but then the actual action in the Rogovo village was done by the

12 MUP. So this is -- this certainly pointed to me that there was a level

13 of coordination between the two forces.

14 Q. And on this -- the Rogova incident, you say that the VJ was

15 tracking some KLA members and then the MUP took over. Were you informed

16 that -- by anyone that it was the same unit, that it was the same KLA

17 group that had crossed the border and then eventually was taken --

18 A. Well, in fact in my meeting with Colonel Delic, I believe it's on

19 the 1st of February, he refers to that, and his view was that it was the

20 same -- it was the same group. In fact, he had -- his forces had

21 actually killed three of the intruders in Pastrik as well.

22 MR. MARCUSSEN: And, Your Honours, just for your reference, this

23 meeting is recorded in Exhibit MM/6 -- sorry, MM/6A.

24 JUDGE BONOMY: You're tendering that sort of exhibit as appended

25 to this statement rather than giving it a separate exhibit number, are

1 you?

2 MR. MARCUSSEN: My intention was that we would put in the whole

3 bundle because every document, except for one, has been specifically

4 referred to in --

5 JUDGE BONOMY: But that's the --

6 MR. MARCUSSEN: I'll refer to the Milosevic case --

7 JUDGE BONOMY: Listen to my question. You're not asking for

8 separate exhibit numbers. These are just part of the statement, annexes

9 to the statement, as it were.

10 MR. MARCUSSEN: That is my --

11 JUDGE BONOMY: That's all I need to know.

12 MR. MARCUSSEN: One exhibit --

13 JUDGE BONOMY: I don't need to know how you're doing it. I don't

14 need to know any more. Thank you.

15 MR. MARCUSSEN:

16 Q. Now, as you told us, you were earlier in a -- you come out of a

17 tank unit, if I understand you correctly. Based on your experience,

18 would use of ammunition by a unit be reported up through the chain of

19 command?

20 A. Absolutely. I mean, any time -- certainly in any militaries that

21 I've served with, and that includes the French and the Canadian and the

22 American military, alongside those other militaries, as soon as a round

23 is expended, they are very tightly controlled, and so as soon as

24 ammunition is used, there's a report done. And certainly when you're in

25 an action as well, there is a contact report and a whole procedure that

1 takes place when, actually, real weapons are used.

2 Q. And why do you have that kind of mechanism in place?

3 A. Well, it's to ensure that there's control of the ammunition and

4 control of its use, particularly, and whether it's on a range or whether

5 it's an actual operation. There's a very tight control so the ammunition

6 doesn't get lost, first of all, and go into the wrong hands, and also

7 that it's used appropriately, in accordance with the rules of engagement.

8 Q. I don't know if you can answer this, but would it sort of be

9 possible to have tank ammunition and the like used at sort of private

10 initiative, without people further up the chain knowing?

11 A. Not in a disciplined military.

12 Q. Now, sort of flowing from this notion of rogue elements or

13 private initiative, how would an officer, in your experience, react if he

14 became aware that he had rogue elements among his subordinates?

15 JUDGE BONOMY: Before you answer that -- before you answer that

16 question, which is moving on to a different subject, is your comment

17 about the recording of the use of ammunition confined to heavy weaponry?

18 THE WITNESS: No, Your Honour. It would be confined to any use

19 of live ammunition. Live ammunition --

20 JUDGE BONOMY: At all --

21 THE WITNESS: -- In most militaries is very carefully controlled

22 for the reasons I mentioned earlier.

23 JUDGE BONOMY: Thank you.

24 MR. MARCUSSEN: Thank you.

25 Q. So if an officer becomes aware that among his subordinates he

1 have rogue elements, either units or individuals, what would an officer

2 do?

3 A. Well, certainly any officer, I believe, any professional officer,

4 would deal very seriously and quickly and with a great deal of

5 seriousness with -- you know, about this. And it could go as far as

6 removing the rogue elements themselves, a rogue unit, but usually it's

7 individuals, and all the way to disciplinary procedures that would be --

8 that would take place. But the first thing that undoubtedly would happen

9 would be the removal of the person or unit.

10 Q. And when you say "removal," what do you mean by that?

11 A. Well, I mean pulling it back, taking it out of contact, taking it

12 out of its mission, and moving it back, replacing it by other individuals

13 or units.

14 Q. Is that something that's -- is that just sort of commonly known

15 practice or are these kinds of things taught at military academies as to

16 how you should react?

17 A. Well, obviously, we used to think that it was a commonly known

18 practice, but we found out very quickly that you need to even go

19 further; and that is, not only do you teach it at basic training, both

20 for enlisted soldiers and officers, but we also now -- we actually write

21 it out in terms of the proper rules of engagement. We give every

22 soldier, sailor, and airman a card that lays out his -- the rules of

23 engagement card, that says, you know, that this is how you're going to

24 behave in terms of behaviour with the threat, with the enemy, with the

25 opposing forces as required. So this is a very tightly controlled,

1 again, aspect of military operations.

2 Q. General, you also described something -- you refer in paragraph

3 18 of your statement to frequent intimidations. What kind of actions are

4 you referring to there, frequent intimidations on the part of the MUP and

5 the VJ?

6 A. Well, we had numerous reports of Albanians being beaten, being --

7 shoved around. For example, at check-points, examples of ID cards and

8 other identification, driver's licences being taken away for no -- for no

9 obvious reason and not returned. And, you know, people then were asked to

10 show up and were asked for receipts that were never given. This kind of

11 intimidation. In fact, I was personally -- I personally saw -- I went to

12 a MUP station once where Albanian folks were lined up to receive -- to --

13 for administration purposes, for papers, et cetera. And the MUP policemen

14 who were, you know, outside the station, you know, the -- none of the

15 Albanians were looking up at them. They were -- you know, they were in a

16 -- kind of almost a sheepish kind of a role there, and so certainly

17 seemed to me to be intimidated by the authority -- the authority forces.

18 Q. And Have you any experience with any VJ or MUP, how the VJ and MUP

19 were respecting local customs as to how you would behave in social

20 settings or traditions?

21 A. Well, I specifically remember going to visit an Albanian family

22 with a Serb policeman -- or a Serb officer. And as you know, the custom

23 in Albanian families was when you walk into the house you would remove

24 your footwear. And of course as a -- you know, as an officer and a

25 brigadier general at the time, even I took my footwear off. I used to

1 always do it. It was just a common politeness and practice to walk into

2 the house, and this Serb officer did not remove his footwear. He just

3 walked in with his big boots and -- you know, to the consternation of the

4 Albanian people.

5 Q. Do you know the name of the officer?

6 A. Colonel Kotur.

7 Q. Where did this happen?

8 A. It was a visit -- I don't remember exactly the location, but I

9 was -- I remember visiting with him at this particular house and what

10 happened.

11 Q. Do you remember whether it was up in the border area or was it --

12 A. Yeah, I believe it was in the border area and we were looking at

13 mechanisms for controlling the border and whether -- we had been pressing

14 to have freedom of movement in the border area and we were discussing this

15 with Colonel Kotur.

16 Q. Thank you. I'd like now to show you a bit of -- well, it's the

17 same exhibit so it's P2772.

18 MR. MARCUSSEN: And what I'd like to show to the witness is page

19 73 of this exhibit. It is marked as MM/6 is the attachment to the

20 statement.

21 Can we spin this around so it's ...

22 Could we zoom in on the lower half of the exhibit.

23 Q. General, I don't know if you can read what's there right now. I

24 see on my, screen there's a sentence beginning: "My family -- my family

25 is now in Belgrade" --

1 A. "My family is now in Belgrade. I have emotional connection to

2 these territories. We all (Serbs) will protect Kosovo with our lives,

3 historical monuments, and heritage."

4 Q. Now, this is Delic saying this at a meeting on the 26th of

5 December --

6 A. Right.

7 Q. -- 1998? Would other Serb officers or people you interacted with

8 express the same kind of views?

9 A. I believe this reflects the views of most of the, if not all of

10 the Serbs that I dealt with in Kosovo.

11 Q. In your -- in different parts of your evidence, both in your

12 statement and in your -- in the transcript of the Milosevic case, you

13 discuss the border area and this 5-kilometre-wide border areas. Were

14 restrictions placed on the movement of KVM in that area?

15 A. Oh, yes, very heavy restrictions. We were not allowed to -- the

16 arrangement was that we were not allowed to have freedom of movement --

17 the arrangement -- I should say the arrangement that we were told by the

18 Serbs was that we would require a liaison officer, that we would plan

19 ahead and have this liaison officer accompany us to the border areas. So

20 we had totally restricted access.

21 Q. And I believe you described that in paragraph 24 of your

22 statement. Now, how did those restrictions affect the ability of the KVM

23 to carry out its mandate?

24 A. Well, it affected it a great deal, and of course when we would

25 receive reports from the Serb side that there were infiltrations across

1 the border, there was no way for us to verify that or, for that matter, to

2 verify the actions of the Serbs to counter those incursions. So that

3 was -- you know, it was a very difficult way for us -- we were not in a

4 position to do our job with respect to the border.

5 Q. In your region -- you're responsible for the Prizren region?

6 A. Yes.

7 Q. Are you able to give an approximate sort of ratio between the area

8 where you had unrestricted movement and how much was actually taken up by

9 the border?

10 A. Maybe 10, 15 per cent of my area -- but I had one of the two

11 areas -- two regions that had a border with Albania there. So it was a --

12 you know, a very serious and delicate -- sensitive area of Kosovo because

13 of the border with Albania.

14 Q. In paragraph 25 of your statement you -- there's a quote from

15 Exhibit MM/6A.

16 A. Yeah.

17 Q. And it -- that says that "Loncar is not my commander," Loncar

18 being the overall coordination liaison officer in Prizren, I believe.

19 What -- can you -- what does that mean, "he's not my commander," if you

20 understand that statement.

21 A. Yeah, this was a discussion with Delic. I was trying to get -- I

22 was trying to open up a field office in Planeja, which was in the

23 5-kilometre border area, and I was pressing him and trying to get this

24 field office opened and he was saying at this point that he did not have

25 the authority to decide that on his own. And I was telling him that

1 General Loncar in Pristina had agreed to this and was, you know -- it had

2 been negotiated with KVM headquarters itself and that he -- you know, he

3 agreed with this. Now, at this point Colonel Delic told me that Loncar is

4 not his commander, he's just a liaison officer, which kind of surprised

5 me, because of course, I would have expected that General Loncar would

6 have had the necessary authority to speak on behalf of the commander. If

7 he's not the commander himself, that he would have had the necessary

8 authority to speak on his behalf.

9 Q. And did that affect your ability to carry out the mandate?

10 A. Oh, absolutely, yeah. We continued to press to try this -- to

11 have this office opened in Planeja. And the approach that I took and I

12 think that the KVM generally approached, but I must say my regional centre

13 had a chance to actually put this into effect more than the others, was to

14 have decentralised locations where we could protect the populations and

15 look after them and that is not just the Albanian populations but also the

16 Serb populations in certain areas where they must be isolated within a

17 pool of Albanians. So I was trying to really protect the people. In

18 fact, I was quite worried that if there was eventually an agreement, there

19 would be a heavy back-lash against the Serb population, so I was trying to

20 open field offices in mainly Serb areas, went on Serb television, et

21 cetera, and so trying to be impartial.

22 Q. Thank you.

23 MR. MARCUSSEN: Now, if we can go to page 85 of the exhibit we

24 have up on the screen.

25 Q. I'd like, General, if you can help us decipher a map.

1 MR. MARCUSSEN: And can we spin this a bit.

2 Q. On your screen can you see this map?

3 A. I have it, yeah.

4 Q. Now, this is a map that you provided to -- with your statement,

5 it's MM/9. And it shows out-of-barrack locations of the VJ, places where

6 the VJ has deployed outside of barracks. What I would like to seek your

7 help on is to understand the different flags or boxes that we see on the

8 map. Some of the boxes have three dots above them. What does that

9 indicate?

10 A. That indicates a platoon organisation.

11 Q. And if there's a vertical line?

12 A. One line is a company and two lines is a battalion.

13 Q. And Some of these ones have a small bracket with a minus --

14 A. With a minus, and it's just slightly less than a battalion but not

15 quite, so it's not quite a battalion.

16 Q. And then inside these -- what is the right term for this, are they

17 flags or are they boxes?

18 A. They're, you know, symbols, I guess we'd call them.

19 Q. Call them symbols.

20 A. Yeah, symbols.

21 Q. Now, inside the square symbols we have sort of an oval shape?

22 A. Right. That indicates a battalion unit -- sorry, a tank unit.

23 The ones that have just a cross indicates infantry. The ones that have a

24 cross and a circle, an oval, indicates mechanised infantry. And the one

25 that has a bridge or an E sideways is an engineering unit. And when

1 there's no symbol above the little box, it's because there's an unknown

2 size.

3 Q. Thank you. And if you look at Djakovica --

4 A. Right.

5 Q. You have two small dots --

6 A. Right.

7 Q. -- below. Is that --

8 A. That's motorised infantry. That would be on trucks, et cetera.

9 Q. Thank you.

10 MR. MARCUSSEN: Now, I would like if we could now move to the next

11 page of this exhibit. If you could move it upright again. Thank you.

12 Q. Now, this is MM/10 attached to your statement, and it's the notes

13 of a meeting on the 5th of February with the head of the MUP in Prizren

14 who was also the deputy prefect. Now, could you place this document in

15 context. What else was going on? Was there any significant events going

16 on around this time, the 5th of April, 1999?

17 A. The 5th of February, right.

18 Q. Sorry, yes, of course, sorry.

19 A. There was -- of course we had had the Rogovo incident just before

20 that, and there was a check-point in Rastane that was -- by our reading

21 was oppressive or was checking more vehicles than it should have, and so I

22 was trying to meet with the chief of police to try to get him to relax

23 that -- to slow down and to reduce, I guess, the number of -- the number

24 of checks, vehicle checks that were taking place.

25 Q. And on the international level, am I right, this is also around

1 the time of the beginning of the Rambouillet negotiations?

2 A. That's correct, yes, it is.

3 Q. Now, down in paragraph 6 at the bottom of the page there is

4 mention of a MUP patrol going between Orahovac and Studencane. Am I

5 correct that the MUP -- sorry -- the KVM had been following this patrol

6 regularly. Is that --

7 A. Yes, this was an agreed patrol. It was within the agreement, and

8 so it was a regular patrol and it was -- we would not really escort but we

9 would follow the patrol to ensure that nothing happened or if something

10 happened we would be -- we would be in a position to see it. Of course

11 this was meant to be a regular patrol that would use regular -- a regular

12 route, and the route had changed, and this was causing some frustration

13 and -- to the KLA.

14 Q. Why had the route changed?

15 A. I don't know.

16 MR. MARCUSSEN: Now, I'd like us now to look at page 98 of the

17 same exhibit, and this is MM/13.

18 Q. General, when -- during proofing did you have a chance to look at

19 this document?

20 A. Yes, I did.

21 Q. And this is a document. There are three different versions of the

22 document.

23 A. That's correct. Of course --

24 Q. Why is that?

25 A. Well, when we -- of course, when we developed records of

1 discussion, I had taken some notes, the note-taker had, and if any other

2 persons were in the room, they had also taken notes, so would try to put

3 everything together to have an accurate read-out --

4 JUDGE BONOMY: Could I interrupt you just for a moment.

5 THE WITNESS: Yes.

6 JUDGE BONOMY: Mr. Cepic.

7 MR. CEPIC: [Interpretation] Thank you, Your Honour. By your

8 leave, in our submission, written submission we objected to MM/13 and all

9 the documents attached thereto. As far as I can see my learned friend

10 Mr. Marcussen is examining based on that document.

11 JUDGE BONOMY: And I think that's consistent with the decision

12 we've made that we'll allow the examination and then we'll deal with the

13 issues of objections once everyone's had a chance to review the position

14 clearly. Sometime this afternoon this will all be resolved.

15 MR. CEPIC: Thank you, Your Honour.

16 JUDGE BONOMY: Thank you.

17 Please carry on, Mr. Marcussen.

18 MR. MARCUSSEN: Thank you, Your Honour.

19 Q. General, just so we now what is the correct version, am I correct

20 then that then the last of the three versions --

21 A. The signed --

22 Q. -- the one that's signed --

23 A. The signed version is the correct one.

24 Q. Thank you.

25 MR. MARCUSSEN: And if we could go to -- to page 106 of this

1 exhibit, please. This is MM/13A.

2 Q. There is a reference here -- this is -- you described this in your

3 evidence, but this is a report you made I believe on the 16th about the

4 events on the 15th and 16th --

5 A. Right.

6 Q. -- at Racak. The thing I wanted to clarify with you is about --

7 well, the first line on -- no, sorry. About two-thirds down on the page

8 there is a sentence -- a bullet point beginning: "One team from CC3 is

9 near 122-millimetre position (3)."

10 What is a 122-millimetre position?

11 A. That was a howitzer position, presumably of three howitzers which

12 were -- appeared getting ready to fire.

13 Q. And this is on the 16th, on the day when the investigation

14 judge -- there's a debate about the -- the modalities of the

15 investigation judge going in and investigating Racak.

16 A. No, I think this is the day before --

17 Q. On the 16th?

18 A. Yeah.

19 Q. Oh, sorry, yes. My question actually was this: Is -- were those

20 weapons, to your knowledge, actually fired on that day?

21 A. I can't say whether they were or not. I cannot say for sure

22 whether they were or not.

23 JUDGE BONOMY: I'm still trying to find this reference. I'm

24 sorry.

25 MR. MARCUSSEN: It's --

1 JUDGE BONOMY: On the first page, is it?

2 MR. MARCUSSEN: The first page of the document which have -- is

3 attachment number MM/13A.

4 JUDGE BONOMY: 13?

5 MR. MARCUSSEN: 13A.

6 JUDGE BONOMY: 13A, sorry. Just a second.

7 Did you say there are three versions of this?

8 MR. MARCUSSEN: Oh, no, sorry. There are three versions of

9 attachment MM/13.

10 JUDGE BONOMY: Yes.

11 MR. MARCUSSEN: A two-page version, a three-page version, and then

12 another three-page version that's signed.

13 JUDGE BONOMY: And is that the one I should be looking at?

14 MR. MARCUSSEN: Yes.

15 JUDGE BONOMY: And this is two --

16 MR. MARCUSSEN: If ultimate --

17 JUDGE BONOMY: Sorry?

18 MR. MARCUSSEN: If ultimately we are going to work off attachment

19 P2772, then the third version is beginning at e-court page 103.

20 JUDGE BONOMY: I just want to know what page of the documents I've

21 got in front of me this is on. Everything's so complicated. Who actually

22 signed the document did you say?

23 MR. MARCUSSEN: CP Weisflogg.

24 JUDGE BONOMY: Weisflogg.

25 MR. MARCUSSEN: Weisflogg.

1 JUDGE BONOMY: And the passage begins with what words?

2 MR. MARCUSSEN: No, sir. That's something -- we then moved on to

3 the next attachment which is 13A which is where I made reference to the

4 122-millimetre weapon. Now, if it's of assistance --

5 JUDGE BONOMY: And what is 13A in relation to 13?

6 MR. MARCUSSEN: 13A is the witness's report about the incidents in

7 Racak on 15th and 16 January. It's a different document. I might have

8 been moving too fast. I was just trying to sort out which document we

9 should be referring to when we look at attachment 13. And just wanted to

10 clarify why it is there are three versions of that. And then I moved on

11 to another attachment, and what I was trying to get clarification on there

12 is the kind of weapon that's referred to. I'm sorry if I've confused

13 matters by moving through this.

14 JUDGE BONOMY: All right.

15 MR. MARCUSSEN: Thank you.

16 Q. General, when did you leave Kosovo?

17 A. I left Kosovo -- I believe it was about the 15th of March on my

18 leave, yes.

19 Q. Did -- were you part of -- were you back so that you were part of

20 the evacuation of the KVM mission?

21 A. No, I was not. The mission was evacuated before I returned.

22 Q. Did you return to the mission?

23 A. I did return to the mission and met with my verifiers in Ohrid.

24 Q. And where is that, what country?

25 A. In FYROM.

1 Q. And where did you -- what function did you have in the KVM after

2 that?

3 A. Well, after a period of discussion, the Permanent Council of the

4 OSCE decided to organise a mission to go into Albania to deal with the

5 refugee -- the refugee crisis that was going on. And so they asked me to

6 organise a force, the OSCE-KVM Refugee Task Force in Albania, which I did,

7 and we deployed to Albania shortly after the 1st of April.

8 Q. And what kind of functions did you carry out there?

9 A. The mission had three distinct functions. First, it was a fairly

10 wide mandate to assist the Government of Albania with the refugee crisis;

11 the second was to take statements on the atmosphere and the treatment of

12 the refugees before their departure from Kosovo and the reasons why they

13 were leaving Kosovo and coming across; and the third was to prepare for a

14 possible registration of the refugees in the future.

15 Q. Did you carry out all three functions?

16 A. Certainly in the time that I was there -- I left in the middle of

17 May. By the time I left, we had certainly, I believe, assisted a great

18 deal the Albanian government in dealing with the refugee crisis. We

19 deployed teams throughout the entire country in every prefecture to

20 provide support, assistance, counselling, and communications

21 coordination. But also, the second mission of taking statements, we took

22 a great number of statements, in the hundreds, from different refugees

23 that had come across. And the third mission, certainly by the time I left

24 we had not yet got to -- the registration piece had not yet been filled.

25 Q. Could you briefly describe how these statements were taken. Now,

1 first of all, how were the people who were --

2 MR. MARCUSSEN: Sorry, I see my colleague is on his feet.

3 MR. IVETIC: By all means, finish the question.

4 JUDGE BONOMY: Just -- please sit down just now, Mr. Ivetic.

5 I have a question I want to ask. What was your personal

6 involvement with the refugees in the exercise of taking statements?

7 THE WITNESS: I, as the head of the Refugee Task Force, I

8 travelled every day and met with refugees in different places, either in

9 refugee camps, in make-shift gathering locations, such as the local sports

10 complex in Tirana, and on the road I went to the border on several

11 occasions with -- the border with Kosovo. And so I was -- I met with

12 refugees every single day. As well, many of them came to my office,

13 because of course they would recognise the orange vehicles that we were

14 using as the ones that had been in Kosovo and there was certainly a

15 connection there. And many of them certainly -- many of our local

16 employees that we had employed in Kosovo, you know, tried to find us and

17 would come to our office and make contact.

18 JUDGE BONOMY: Over what period of time did you have daily

19 meetings with refugees?

20 THE WITNESS: From the moment we got there, I personally got

21 there, I believe about the 3rd of April until the moment I left on the

22 12th of May.

23 JUDGE BONOMY: Mr. Ivetic.

24 MR. IVETIC: Well, Your Honour, I believe that the area that

25 counsel has embarked upon is an area that we've already covered. We've

1 made reference to it in our motion but it's something that Your Honour has

2 already ruled on previously, the inadmissibility of certain evidence

3 relating to interviews conducted by the OSCE outside of the boundaries of

4 Yugoslavia, and I believe that we need to address this matter, then,

5 because this type of material has previously been excluded and for the

6 same reasons that we set forth previously, continual reference to such

7 material and talking in general terms that cannot be verified where

8 statements were not under oath, the declarants are not identified, et

9 cetera, causes, we believe -- infringes greatly upon the rights of the

10 accused in this case to be able to confront the evidence against them and

11 in that sense would infringe upon the proceedings of things. So I have to

12 bring this up at this time, because up until now I think the questions

13 have been permissible but now this line of questioning goes into the areas

14 that have already been -- ad nauseam I believe been dealt with in prior

15 hearings on this matter.

16 JUDGE BONOMY: Mr. Marcussen.

17 MR. MARCUSSEN: Your Honour, two points. The so-called Blue Book

18 of the KVM was admitted into evidence, and we had a specific debate about

19 the parts of the Blue Book that summarises what some of these refugees

20 told the KVM had happened to them in Kosovo. Those parts were allowed

21 in. You might recall we had in that context a discussion about how these

22 statements -- facts were ranked pursuant to a standard intelligence

23 ranking system where information was sort of given A1, A2, A3 depending on

24 its reliability and credibility. Those parts were allowed in. So

25 evidence of this nature is admissible and has been admitted already in

1 this case.

2 Now, secondly, what I was going to come to and Your Honour already

3 picked up on it, this witness spoke to numerous persons who had --

4 JUDGE BONOMY: Well, before we go into that.

5 Mr. Maisonneuve, there is a matter here I think which should be

6 debated without you being in the courtroom, so the usher will escort you

7 out briefly while we deal with this.

8 [The witness stands down]

9 JUDGE BONOMY: Yes, Mr. Marcussen.

10 MR. MARCUSSEN: Thank you.

11 The witness himself spoke to numerous witnesses, witnesses that he

12 himself went up and, so to speak, picked and had conversations with

13 through an interpreter. So this witness is able to give -- it's hearsay

14 but it's first-hand hearsay evidence summarising what he was told about

15 the conditions under which the refugees he spoke to left Kosovo. And what

16 I intended to do, just to let Your Honours in on what's going to happen

17 next is, I intended to show two KVM reports, MM/15 and MM/16 to the

18 witness which basically are a summary of what refugees had told the KVM in

19 these questionnaires. And I think the witness's personal experience

20 confirming what is in these documents supports the reliability of these

21 documents that I'm going to put to the witness. Basically they say that

22 the KVM spoke to several hundred refugees from Kosovo. They -- they had

23 been exposed to extreme violence and brutality, they were forced out of

24 their homes and told to leave Kosovo.

25 Now, the issue all this goes to is, of course -- the issue all

1 this goes to is the issue of whether -- of the reasons why these hundreds

2 of thousands of refugees left Kosovo. So it goes to an important issue in

3 the Prosecution's case, obviously. And we submit that if there are issues

4 about the hearsay nature of this evidence, those would be things that goes

5 to weight rather than admissibility. Thank you.

6 JUDGE BONOMY: Something additional, Mr. Sepenuk, is it?

7 MR. SEPENUK: Yes, Your Honour, if you don't mind. The MM/15, I

8 don't know if the Tribunal's had a chance to look at it yet -- whether

9 Chamber's had a chance to look at it, but it is a mini-As Seen, As Told --

10 JUDGE BONOMY: I have it in front of me. I know the nature of the

11 document.

12 MR. SEPENUK: Thank you. There's one thing, just for ease of

13 reading, and I think I'm right on this. The first page is K0075721, if

14 that's true on Your Honour's, and then the next page is actually

15 K0075726. The next page is the last page, for ease of reading.

16 JUDGE BONOMY: Not in my copy. I have 22 as the next page.

17 MR. SEPENUK: Yes, but it says: "During the first few days of the

18 NATO bombing which began on March 24th," down at the bottom of 5721, if

19 Your Honour sees that.

20 JUDGE BONOMY: Yes.

21 MR. SEPENUK: And it says: "The." And then you turn to the next

22 page and suddenly there are these bullet points. Is that correct on

23 yours, Your Honour?

24 JUDGE BONOMY: Yes.

25 MR. SEPENUK: Okay. That's just not correct. You should go to

1 K0075726, that's actually the next page. It's just the OTP simply got it

2 out of order. It just makes for much easier reading. That's all I want

3 to point out.

4 JUDGE BONOMY: Thank you.

5 [Trial Chamber and legal officer confer]

6 JUDGE BONOMY: The difference between this and what has happened

7 before is that the witness appears to have personal knowledge of

8 interviewing refugees, and counsel will remember that some of the material

9 that Abrahams could speak to directly was admitted. In addition, in the

10 decision that we made in relation to As Seen, As Told and Under Orders, we

11 made it clear that the documents themselves or the evidence contained in

12 the documents themselves was admissible in respect that it was compiled by

13 an outside body. We chose not to admit it because of our dissatisfaction

14 with what had been established about its reliability.

15 Whether the position is any different in relation to the exhibits

16 here which Mr. Marcussen wishes to associate with the witness's own

17 personal evidence remains to be determined once we've heard what we can

18 say, not only about his own personal experience in interviewing refugees,

19 but also about the compilation of these two documents. So again we will

20 reserve our decision in relation to these until we've heard examination

21 and cross-examination. This is rather different from the Racak point. We

22 might be able to decide it after lunchtime. But this one will depend on

23 hearing the whole of the evidence.

24 MR. IVETIC: I appreciate that, Your Honour. One other point that

25 I wanted to just point out --

1 JUDGE BONOMY: Just a moment, Mr. Ivetic, please.

2 [Trial Chamber confers]

3 JUDGE BONOMY: Mr. Ivetic.

4 MR. IVETIC: Yes, Your Honour. I only wanted to add that the

5 page -- the second page of the exhibit and which I can focus on where the

6 bullet points start at the bottom of the page, the -- one of the main

7 problems we have is that we cannot even tie necessarily all of the

8 observations or discussions that General Maisonneuve had with refugees to

9 incidents from the indictment. Here we have reference to various

10 allegations of crimes in places such as Vranisht, Gjeshko, Trnje, Lesha,

11 et cetera, which are not in the indictment or at least --

12 JUDGE BONOMY: Some of these we've heard evidence about --

13 MR. IVETIC: Some we have, right, and some we have not, so that's

14 my concluding point to point out to Your Honours, as I'm sure you'll

15 consider all the objections at the proper time.

16 JUDGE BONOMY: Thank you. Let's have the witness back, please.

17 MR. MARCUSSEN: May I just point out that the allegation in the

18 indictment that 800.000 people were expelled from Kosovo is not limited to

19 800.000 people from the locations of the specific crime sites. So the

20 Kosovo transfer and deportation count is broader than --

21 JUDGE BONOMY: Mr. Marcussen, that may be so. The issue here is a

22 rather different one from simply relying on that broad general averment,

23 as you know.

24 [The witness takes the stand]

25 JUDGE BONOMY: We will continue with the evidence,

1 Mr. Maisonneuve. Thank you for your patience.

2 Mr. Marcussen.

3 MR. MARCUSSEN:

4 Q. General, I think I was about to ask you about how the interviews

5 that were made by -- no, sorry, that was not -- I was about to ask you how

6 the refugees that were interviewed by the KVM were selected.

7 A. Well, what we tried to do was when we'd speak to the refugees we

8 would try to pick out of a crowd or find out from the crowd any of the

9 refugees that had specific information and had, if you wish, specific

10 evidence of what they had witnessed personal -- personally witnessed. And

11 then we would take them apart from the rest of the group and speak to them

12 with an interpreter.

13 Q. And how would those interviews be recorded?

14 A. We had a form that we filled out, that the verifiers filled out,

15 after discussing, you know -- this form, this was a regular form with all

16 the necessary information with a specific statement. And then the

17 verifier would sign at the bottom and usually the witness as well, the

18 refugee as well.

19 Q. Did you yourself take any statements?

20 A. Actually, I did. I took one statement just to get a feel for what

21 my verifiers were going through.

22 Q. And you mentioned this --

23 JUDGE BONOMY: Can I clarify something. When we dealt with As

24 Seen, As Told, one of our findings was that the information was anonymous.

25 MR. MARCUSSEN: I think -- anonymous not in the sense that the

1 name of the source was not recorded in the questionnaires. In As Seen, As

2 Told there is no reference to the name of the witness.

3 JUDGE BONOMY: And all these documents have now been disclosed,

4 have they?

5 MR. MARCUSSEN: I believe so. Unless something else -- what has

6 been disclosed is these print-outs from this database we have have been

7 disclosed in redacted form.

8 JUDGE BONOMY: But do they identify the personnel -- the refugees

9 who were giving the statements?

10 MR. MARCUSSEN: No, because they are redacted. What has been

11 disclosed is redacted for the most part.

12 JUDGE BONOMY: What's the significance of the signing of a

13 statement with a name on it? Was this just to do with the reliability of

14 the information?

15 MR. MARCUSSEN: This witness only did one statement himself and we

16 have plenty more evidence about how that was generated.

17 JUDGE BONOMY: Do we have that statement?

18 MR. MARCUSSEN: Not in evidence. We do have it. It's just for

19 the Court to know that this witness --

20 JUDGE BONOMY: Why don't you do these basic things like give him

21 the statement that he actually compiled and let him at least verify it.

22 It's progress long the road. It's this lack of concentration on the sorts

23 of things that you expect to be proved in a court that is so frustrating

24 in this case.

25 Anyway, carry on with what you have.

1 MR. MARCUSSEN:

2 Q. General -- so you mentioned that you spoke to other refugees. So

3 am I correct that that was not in the context of taking actual statements

4 as such?

5 A. That's right.

6 Q. You spoke to --

7 A. I would speak to them, find out how they were, how they were

8 treated. And I had, as I say, daily contact with refugees.

9 Q. And were there any selection process there or how did your contact

10 with these people --

11 A. No. I would just walk around and speak to them and meet with them

12 and I just generally asked how they were and how they had been treated and

13 what they had and what their condition was.

14 Q. Did -- from those discussions you had with these refugees, were

15 there certain -- were there patterns emerging from those as to the

16 condition under which the refugees had left Kosovo?

17 A. Yes, there were. First of all, they had left not for their own

18 reasons. They had been forcibly forced to leave --

19 JUDGE BONOMY: Can I interrupt you.

20 THE WITNESS: Sure.

21 JUDGE BONOMY: You may find this a very difficult exercise and I'm

22 sorry if it may seem unrealistic to you, but there are sound reasons why

23 I'm asking you to do this. Can you distinguish conclusions you arrived at

24 from your own personal inquiries from those that you might have reached by

25 reading summaries of the accumulated statements?

1 THE WITNESS: Yes, I can, Your Honour.

2 JUDGE BONOMY: I wonder if you understand -- I hope you do

3 understand the point --

4 THE WITNESS: I do once --

5 JUDGE BONOMY: -- that is concerning us, and that is the anonymity

6 of so much of the material that might be presented which is different --

7 although you don't know the names of the refugees you spoke to, the way in

8 which you did it might give the evidence a different weight from evidence

9 that we think really can't be challenged at all. So could you try in your

10 answer to distinguish what you learned personally --

11 THE WITNESS: Yes, Your Honour.

12 JUDGE BONOMY: -- from what you discovered from looking at other

13 people's recorded statements.

14 THE WITNESS: I can give you two specific examples. In Tirana

15 there's a sports complex, an interior sports complex in which I went and

16 actually spoke to a number of refugees there. For example, at this one --

17 in this particular sports complex I met a young man probably 15-years-old,

18 an Albanian who had lost contact with his family and told stories of him

19 being pushed out and having to walk from his home across the border and,

20 you know, joining a group of refugees.

21 Then specifically in my office in Tirana I had two young men come

22 and call on me, young men who had actually been -- who were Albanian and

23 who had been my security -- part of my security personnel local employees

24 in Kosovo, in Prizren, and they walked in and told me of their -- what had

25 happened with them. They had gone across -- had been pushed across,

1 forced across the border. One of them had a young -- a young wife and a

2 young baby, and both of them were in -- currently in a refugee

3 accommodation in Tirana. And in fact, those two young men were coming to

4 tell me that they were going to join the KLA. I mean, both of those

5 specific incidents that I personally of course am privy to had a real

6 emotional effect on me and that's why I remember them very specific.

7 JUDGE BONOMY: We are, though, willing to hear evidence,

8 Mr. Marcussen, of a more general nature based on personal experience, if

9 you do want to pursue that.

10 MR. MARCUSSEN: Thank you. That was my intention, to try to --

11 JUDGE BONOMY: But do you accept that in relation to the forms,

12 you've advanced the matter no further than it was the state of play when

13 we made our earlier decision?

14 MR. MARCUSSEN: My intention was not to try to change that

15 decision; it was just to put in context what the general had been involved

16 in. It was not to try to change anything.

17 JUDGE BONOMY: Thank you.

18 MR. MARCUSSEN:

19 Q. General, now from -- if -- as Judge Bonomy said, if it's possible

20 for you to try to disregard the different aggregated information you saw

21 in reports, but just thinking about the people you actually spoke to

22 yourself. From those interactions and discussions with people, could you

23 give a general description of what they told you about the conditions

24 under which they left.

25 A. Right. The general context was that all the ones that I spoke to

1 told me that they had been forced to pick up whatever they could carry on

2 their person or in their vehicle and would have come across -- had been

3 pushed cross the border, forced to come across the border with Albania.

4 This was a generalised -- every time I spoke to them -- and this is not

5 from any aggregated report, this is the story I got -- that generally that

6 they would come across, that their papers had been taken from them,

7 sometimes their licence plate removed from their vehicle and had been told

8 to carry on down the road towards Albania. And of course, Prizren had a

9 direct line or a direct road into Albania, so I knew exactly, you know,

10 the road that they had been forced to take, but that was the general

11 information I received from all the refugees that I spoke to, all of them.

12 Q. Did -- were you told who had told the refugees to leave?

13 A. It wasn't specific in terms of, you know, people, but it was

14 most -- I would qualify it as Serb authorities.

15 Q. And were you told about other things than just being -- people

16 being told that they had to leave and go to Kosovo [sic]. Were you told

17 about --

18 A. Well, this is the place I guess where I -- I have a hard time

19 distinguishing between what I heard in -- what I read in my reports and

20 what I was told personally, and I would not venture there but of course, I

21 have -- we were told many times of some of the treatment that they

22 suffered.

23 Q. Right.

24 MR. MARCUSSEN: Now, if we could see now exhibit -- sorry, the

25 same exhibit, so P2772, page 115, please, and this is this attachment

1 MM/15. And I thank my learned colleague, Mr. Sepenuk, for finding out

2 that there's indeed been an unfortunate shuffling of the pages when this

3 was initially scanned into the system.

4 Q. This document, you provided it to the Office of the Prosecutor, so

5 I take it that I am going to be correct to say that you are familiar with

6 the document.

7 A. Yes, I am.

8 Q. Could you tell us how this document was compiled.

9 A. This document was compiled by my staff in the Refugee Task Force

10 based on the statements that we had been taking and our assessment of the

11 situation in Kosovo at the time the refugees were forced to leave.

12 Q. Is this a document that at the time you approved? I see it's a

13 Human Rights Biweekly Report. Is that said something --

14 A. Yes, I did.

15 Q. So in your view, does this express -- reflects -- sorry. Is this

16 a correct reflection of what the KVM was being told by refugees in

17 Albania --

18 A. It's an exact reflection of that.

19 Q. Now, this is from sort of the beginning of the period, from the

20 2nd through the 15th of April.

21 MR. MARCUSSEN: Now, if we can look now, staying on the same

22 exhibit, page 121, please. And this is attachment M/16.

23 Q. What is this document?

24 A. This was -- as I mentioned before, I departed the mission on the

25 12th of May, so I wanted to -- before I left, I wanted to provide a

1 progress report on the mission, the overall mission that the Refugee Task

2 Force had been undertaking and this was the progress report that I

3 provided to the OSCE headquarters in Vienna. So this was unfiltered, this

4 was a report that was compiled by my staff and which I approved before it

5 was sent up to Vienna.

6 Q. And so this report, is that correct to say, that it covers the

7 period from early April and up through the first --

8 A. That's correct, that's correct. And the way we tried to divide it

9 up is to have a kind of general section at the beginning and then try to

10 cover every province of Albania specifically in the annexes.

11 Q. And so the information included in this document has the

12 information we had in the first document plus additional information you

13 had gathered for another month?

14 A. That's correct.

15 MR. MARCUSSEN: And if we can look at page 129, please.

16 JUDGE BONOMY: Which page of the document is that?

17 MR. MARCUSSEN: That is page 8 of the document.

18 JUDGE BONOMY: Thank you.

19 MR. MARCUSSEN:

20 Q. There you describe in the second section B, the human rights

21 situation in Kosovo. Now, again, does this reflect your view of the

22 situation in Kosovo based on what you had been informed by the refugees

23 that you and KVM was in contact with?

24 MR. IVETIC: Well, I think I'll have to object to the question.

25 He's using "you." I think he has to specify between what the general

1 himself heard and what his team may have heard, because I think it makes a

2 difference in the long run as to how this is viewed.

3 JUDGE BONOMY: What is meant to be the foundation for the answer

4 to that question?

5 MR. MARCUSSEN: What we have is we have the head of the task force

6 receiving information from his staff that had been asking witnesses

7 questions plus himself speaking to refugees all over Albania in refugee

8 camps and wherever they were. So the question is whether this exhibit

9 reflects his understanding of how the events had been in Kosovo when the

10 refugees left.

11 JUDGE BONOMY: Well, he's already answered that question because

12 he's told you that's his report on leaving, his report to Vienna, compiled

13 by his staff but expressing the position as it was then. So you have the

14 answer, and beyond that I don't think it's appropriate to go.

15 It's a suitable time to interrupt, if it's convenient to you.

16 MR. MARCUSSEN: Actually, this finishes my examination of the

17 witness, so it is indeed. I have -- I had prepared -- sorry, this is an

18 administrative matter just -- it can wait.

19 JUDGE BONOMY: Well, we have to break at this stage for an hour

20 for lunchtime. Again, please, Mr. Maisonneuve, the usher will show you

21 where to go in the interim. Thank you.

22 THE WITNESS: Thank you.

23 [The witness stands down]

24 MR. MARCUSSEN: Your Honour, I had prepared before coming today an

25 overview of where in the Maisonneuve statements and in the Milosevic

1 transcript the different exhibits that I attached to the statement are

2 referred as I guess a lot of people would be working on these sort of

3 issues maybe over the break in the context I was prepared to hand out

4 copies to the Defence and Your Honours if it would assist.

5 JUDGE BONOMY: Thank you.

6 MR. MARCUSSEN: The usher has left. I'll make sure that it gets

7 to you afterwards.

8 JUDGE BONOMY: Very well. We'll resume at quarter to 2.00.

9 --- Luncheon recess taken at 12.48 p.m.

10 --- On resuming at 1.46 p.m.

11 JUDGE BONOMY: Mr. Marcussen, can you assist us now more

12 specifically?

13 MR. MARCUSSEN: I shall do my best, Your Honour. I'll address the

14 transcript references in the order that they appear in the motion,

15 paragraph 3 of the motion. I believe Your Honours have already dealt with

16 the first objection, that will be to page 5780 -- sorry, 68.

17 JUDGE BONOMY: Yeah.

18 MR. MARCUSSEN: Now, there's a big chunk of the transcript being

19 objected to in the second row of the table, pages 5778 to 5805.

20 JUDGE BONOMY: Yes.

21 MR. MARCUSSEN: Now, in my submission, all of those pages should

22 go in, they're all relevant, and I'll set out the specific topics that I

23 think I addressed in various parts of this section of the transcript. For

24 example, at paragraph -- at page 5779 we have the issue of tanks at Racak

25 firing into houses where there were people and the fact that the verifiers

1 saw that. That run over a couple of pages. Then --

2 JUDGE BONOMY: That's specifically looking the events of Racak.

3 MR. MARCUSSEN: Right. What we -- it is --

4 JUDGE BONOMY: There is no evidence presently before the Trial

5 Chamber of that nature.

6 MR. MARCUSSEN: What we are relying on is the fact that there was

7 a VJ tank involved in the operation and that it fired during the

8 operation. And I don't know how we can lead that evidence without getting

9 into what happened in Racak. There were tanks; they were involved in the

10 operation. That's what this evidence shows or that we rely on it for.

11 JUDGE BONOMY: We're not going to look at the Racak operation, so

12 end of story on that.

13 MR. MARCUSSEN: Well, in our submission it's relevant to --

14 JUDGE BONOMY: Maybe it is, but it's out of this indictment.

15 MR. MARCUSSEN: But there's another issue in the case, which is

16 who were in control of the operations that carried out in Kosovo from

17 March 1998 --

18 JUDGE BONOMY: And you're going to invite us to consider hearsay

19 evidence of this nature about the presence of these tanks firing into

20 houses?

21 MR. MARCUSSEN: Well, not only hearsay evidence, evidence from

22 various officers found in attachments 13, 13A, 13B, and these other

23 exhibits, MM/8 and MM/7 that there were tanks involved in the operation in

24 Racak. Now, I'm fully aware that we're -- and we're not trying to engage

25 in an exercise where we want the Trial Chamber to make findings whether

1 there were 40 or 50 people killed and whether they were KLA or not and all

2 that. We're aware of the fact that the count is out of the indictment,

3 but there are other issues arising from what happened in Racak.

4 This is the first big event in 1999, and it shows the continued

5 pattern of VJ and MUP cooperation. And this instance -- it shows

6 cooperation, it shows excessive use of force, this witness is saying

7 firing a tank into a civilian house is not proportionate force in these

8 kind of circumstances. The verifiers that were at Racak saw this tank

9 fire and subsequently went down to the house and helped -- the people who

10 were in the house had been hiding in the basement and he -- they went down

11 and helped them out of the basement.

12 Now, what does that evidence go to? It only goes to the fact that

13 there was a VJ involvement in Racak. But that would, according to this

14 witness, have been something that would have had to have been coordinated

15 at at least the brigade level, maybe higher, on military side and at MUP

16 headquarters in Pristina. That's why we are putting forward this

17 evidence.

18 JUDGE BONOMY: All right. Well, continue if you wish, but I

19 certainly am not persuaded by that.

20 MR. MARCUSSEN: Well, I'll make my submissions and then we'll see

21 where it takes us.

22 Paragraph 5782, the witness explained that firing a tank at a

23 house is excessive use of force. Paragraph 5786 --

24 JUDGE BONOMY: Well, before you move further, from line 24 on 5781

25 to line 8 on -- line 9 on 5783 seems to me to be perfectly general

1 evidence that this witness can give.

2 MR. MARCUSSEN: Yes, but if -- my submission on this chunk of

3 evidence is that if there's anything that should go out here, we wouldn't

4 object to taking out pages 5795, line 8, to the following page, line 10,

5 which is this thing about where the bodies were lying, in the gully and

6 these sorts of things. This -- we understand this is getting into the

7 nitty-gritty of what happened and things like that and that should go

8 out. All the other parts of this evidence -- although there's some

9 descriptions of what happened at Racak, they all go to these coordination

10 issues, who were involved, how many forces were involved, and I can go

11 through, I mean, all the --

12 JUDGE BONOMY: You see, I have to say I thought your problem was

13 resolved by if you go to the page of -- the foot of 5783, line 19 -- or,

14 in fact, line 20: "During the remainder of your stay in Kosovo were there

15 other times when you saw Serb forces direct heavy weapons against civilian

16 structures?"

17 And he answers that. Now, why do you need any more than that?

18 MR. MARCUSSEN: Sorry, just checking the precise reference.

19 JUDGE BONOMY: It seemed to be the modus -- he said this in his

20 evidence anyway. "It seemed to be the modus operandi of the Serb security

21 forces that any type of provocation, no matter how small, would result in

22 an overwhelming use of force disproportionate to the actions of the KLA or

23 other perpetrators, and this was constantly one of the things that I

24 reinforced to the Serbs but also to the KLA when I met them, saying 'I

25 don't know why you're provoking them' because you know that it always

1 results in disproportionate use of force."

2 MR. MARCUSSEN: Yes, yes.

3 JUDGE BONOMY: He then gives an example which he's also given

4 today in his evidence. This next part is already in evidence today.

5 MR. MARCUSSEN: Right, I led that today obviously because I wasn't

6 sure how -- what was going to get in. It's difficult when you present a

7 witness under 92 ter and --

8 JUDGE BONOMY: And then you see it goes wrong again because it

9 says "returning to the 15th of January for a moment."

10 MR. MARCUSSEN: Well, my submission about that again is -- it is

11 the context in which this operation was carried out -- yeah, my part is

12 simply the same. This evidence -- there are a few pages that we submit

13 should be taken out; the rest of it is all relevant to the issues that

14 I've mentioned. And what I intended to do was to give some headlines to

15 different pages where different issues in our submission begin --

16 JUDGE BONOMY: Okay.

17 MR. MARCUSSEN: -- and explain the relevance of those ones.

18 JUDGE BONOMY: Yes, on you go.

19 MR. MARCUSSEN: So at -- just to be clear, I'm giving headings and

20 then normally the issue will run over a couple of pages. So at page 5786

21 we have a discussion of the attachment MM/8 in which Petrovic confirms VJ

22 involvement. At page 578 --

23 JUDGE BONOMY: Just a second, just a second. Where line on 5786?

24 MR. MARCUSSEN: It's -- begins at line 15. One of the problems

25 with the transcript is there's no reference to the specific attachments,

1 which is why I handed outline this overview just before the break. But

2 what is being discussed there at paragraph -- from paragraph -- sorry,

3 line 15 or 16 is MM/8. Now, Petrovic confirms VJ involvement. On page

4 5789 we have reference to -- at line 8 to --

5 JUDGE BONOMY: Who is Petrovic? Sorry.

6 MR. MARCUSSEN: Petrovic was the liaison officer for the -- for

7 the combat team, the tank teams that were at Racak.

8 JUDGE BONOMY: Thank you.

9 MR. MARCUSSEN: At page 5789, line 8, Jelesic, and that is the

10 commander of the combat team, is explaining that -- well, what is in the

11 underlying document is that he is saying, well, we were conducting our

12 training operations up on the rim, the MUP was doing something down in the

13 gully -- down in Racak and this was unconnected. And the witness offered

14 the explanation at page 5790, beginning at line 14, that this is such a

15 far-fetched suggestion that things would have happened that way, that he

16 simply finds that utterly unbelievable. It would be such a risk of, as he

17 called it, blue-on-blue, people shot by their own people if you did

18 something like that and that's utterly unbelievable.

19 He then offers on the next page at page -- at line 9 the opinion

20 that an operation involving around a hundred MUP officers and tanks would

21 have been something that's coordinated at the brigade level. Subsequent

22 page we have discussions about the basis for the witness's knowledge that

23 VJ did actually fire at a house at Racak. At page 5793, line 4, we have a

24 discussion of attachment MM/13 where it's being confirmed by one of the

25 officers involved that there were a hundred MUP plus VJ involvement. At

1 paragraph -- that goes for some pages.

2 Then at paragraph -- sorry, at page 5796 the witness says that he

3 was told -- was that he recalls that men and women were being separated by

4 the forces that operated in Racak. Now, some of this is underlying

5 material for attachment MM/13A, which is the witness's assessment -- the

6 report he drafted on the events at Racak and on the 15th and 16th of

7 January, 1999, in which he offers the view that the VJ had, indeed,

8 offered a long-range support for the MUP operation. And he describes this

9 further at page 5798.

10 Then at page 5800 we have a description of what happened on the

11 17th of March when the investigating judge Marinkovic moved in with a MUP

12 team into Racak to carry out this investigation. Now, the Court has

13 already heard evidence about this from other witnesses, Drewienkiewicz and

14 I believe also Richard Ciaglinski. This evidence is allowed and this

15 evidence is corroborating what we've already heard from these witnesses

16 but --

17 JUDGE BONOMY: Sorry, what's the significance of that?

18 MR. MARCUSSEN: Well, this witness says that there was an act of

19 provocation when the MUP -- the manner in which the MUP went into Racak to

20 carry out the investigation. The MUP did not -- and the investigating

21 judge did not accept the offer that the KVM could try to facilitate the

22 investigation process by going in with the KVM and maybe a small

23 protection team. The witness is saying moving in with -- a few days after

24 the event at Racak moving in again with a heavy MUP presence was bound to

25 draw shooting from the KLA, and true enough, did.

1 Now, this tie-in with this issue of whether or not the forces of

2 FRY and Serbia were acting in a provocative active way, and we've heard

3 evidence from Drewienkiewicz that in his view, both the VJ and the MUP

4 went looking for trouble and found it. He was, for example, talking about

5 Podujevo.

6 At paragraph -- at page 5804 there's an objection to a discussion

7 of MM -- attachment MM/14 which contains a reference to the witness's

8 complaints to Drinic at the KLA site about the way they conduct --

9 conducted themselves at Racak. This just goes to -- in our view, to the

10 unbiased nature of the way the KVM was acting, if -- that's all we put

11 that forward for. We are not proposing anything else.

12 So that deals with the first big batch of objections. I believe

13 Your Honour's also dealt with a second smaller one, namely the objection

14 to page 5821, lines 17 through 23. But just to repeat our submission on

15 this, this -- the evidence that's been discussed -- the issue that's been

16 discussed at this part of the transcript is about the coordination -- it's

17 about the cooperation of the commander of this combat team that was up on

18 the rim of Racak. It has nothing to do with the specific events at Racak.

19 Then there is an objection to another larger chunk of evidence,

20 which is pages 5821 through 5853. And, now, here we would agree to

21 leaving out page 5840, line 16, through 5844, line 7, and also 5844, line

22 24, to 5850, line 17. The rest in our submission is all relevant evidence

23 for the following reasons: At page 5834 we get details about the

24 verifiers that were on the ground and their ability to observe this tank

25 unit and the firing at the house. We get evidence at page 5840 about the

1 tanks actually shooting at the house. At page 5844 there's discussion of

2 whether or not the victims were KLA. Now, it's not something that we as

3 the Prosecution necessarily want to get into because we understand this is

4 getting very close to the actual crime base evidence.

5 The reason why we at this stage do object to the objection of this

6 evidence is that we don't yet know what the Defence case is going to be.

7 If the Defence case is going to be that all those who were killed at Racak

8 were all KLA fighters, well then, we would like to have our evidence in

9 from this witness as to what he saw about the victims but --

10 JUDGE BONOMY: Why would the Defence have evidence that everyone

11 who was killed at Racak was a KLA fighter?

12 MR. MARCUSSEN: I don't know the Defence case yet. It was

13 Milosevic's suggestion that that was the case.

14 JUDGE BONOMY: Yeah, but it was a big issue in the Milosevic

15 trial. Why would the Defence want to lead that evidence?

16 MR. MARCUSSEN: Well, they want to -- I'm speculating. My guess

17 would be that they would be saying: Look, this was an entirely legitimate

18 operation. The KVM went out there screaming and yelling that this was all

19 a massacre, it wasn't true, there was a political motive behind it, these

20 kind of issues.

21 JUDGE BONOMY: Don't these very points just answer your submission

22 completely that you can't actually address the Racak issue by looking at

23 one tank that may have fired at a house and have to look at everything

24 before you can do justice to it?

25 MR. MARCUSSEN: Well, on the specific tank issue this witness is

1 saying that when you receive light-arm fire, you do not deploy a tank and

2 shoot into a house. That's not how you do that.

3 JUDGE BONOMY: We don't need to hear about Racak to know that.

4 He's told us that. What we're -- you're talking about now is a specific

5 example of that being done, and that immediately opens the door to

6 assessing or listening to all the evidence about how strong the KLA were

7 in the locality and what the risks were for the Serb forces who might be

8 carrying out the operation.

9 MR. MARCUSSEN: We --

10 JUDGE BONOMY: Does it not? So you might be happy with that. As

11 far as you're concerned, this looks to me like a backdoor attempt to

12 introduce Racak. And if you wanted to introduce it, you should have

13 applied to introduce it.

14 MR. MARCUSSEN: We're not attempting to try to revive the charges

15 of murder in relation to Racak. I'm explaining why it is that we think

16 there is a basis at this stage to allow in the evidence about -- the

17 evidence as to why the witness say that in his view, the victims were not

18 members of the KLA. We're anticipating the Defence's case. I think we

19 have an obligation to do that. We're trying to do that. But if Your

20 Honours think at this point that is pointless, then of course we will have

21 to accept that. And the same may very well be the case with the next bit

22 from this section of the transcript that I'm going to mention, namely,

23 5850, line 18, where the issue is whether or not Walker had a good-faith

24 basis for saying that there was a massacre at Racak. There's some issues

25 about what time different information was available to Walker and when he

1 made his statement. Again, this is mainly evidence we want to anticipate

2 what the Defence might be bringing in their case.

3 JUDGE BONOMY: On what basis, though, could that be an issue here?

4 You can't just say: I'm frightened what the Defence will do, let me

5 introduce everything I want. On what basis could you anticipate this as

6 part of the Defence case?

7 MR. MARCUSSEN: Well, there have been --

8 JUDGE BONOMY: Would you not be objecting to it?

9 MR. MARCUSSEN: The objection to a whole range of -- as I'm trying

10 to show --

11 JUDGE BONOMY: No, no, would you not be objecting to them trying

12 to explore that issue.

13 MR. MARCUSSEN: If they can establish a basis that's relevant to

14 their case, such as, for example, whether or not there was actually bias

15 on the part of the KVM, I suspect that will probably be allowed. Now we

16 think it's -- there's no basis, as a matter of fact, for those

17 propositions but we've seen cross-examination of a number of KVM

18 officers -- senior officers being challenged on what you were just

19 supporting the KLA, you were biased, you were not reporting. If those

20 issues don't come up, then this kind of evidence is of no use. If they do

21 come up, I guess the only other option would be to present it in the

22 rebuttal case.

23 The third row in this table is an objection to transcript pages

24 5855 through 5892. I think we are here in the part of the

25 cross-examination, and having reviewed the evidence, there I think we're

1 mainly having in this part of the transcript fightings between Milosevic

2 and the Bench and repetitions of issues that have already been covered.

3 So we would be amenable to agree to leaving that passage of the

4 exhibits -- sorry, of the transcript out.

5 And finally there's an objection to page 5903 through 5909. There

6 I just have to look. I would -- this is, again, the issue of at what

7 point in time Walker had -- there are different things, but we would still

8 ask that pages 5904, line 16, through 5907, line 7, be allowed in. It's

9 the same issue about at what time Walker had what information. My

10 submissions are the same as I made on that point. The other parts of the

11 objection to this particular section of the transcript we don't have any

12 problems with.

13 So that concludes my submission on the transcript. I'm sorry if

14 it has been somewhat nitty-gritty and detailed, but there were a lot of

15 different issues --

16 JUDGE BONOMY: No, you have to deal with all the issues that were

17 raised.

18 MR. MARCUSSEN: Now, as to the statement -- I don't know whether

19 you would like me to address that again.

20 JUDGE BONOMY: Yes, I do.

21 MR. MARCUSSEN: The objection to paragraphs 30 through 36, well,

22 we're really covering the same points that I've just been making in

23 relation to the transcripts. The key point being made here is the --

24 whether or not the VJ was involved in the operation at Racak and in what

25 function. There's a paragraph, like paragraph 36 -- 34, sorry, which

1 really rather concerns the assistance rendered by KVM staff to people that

2 had been injured in Racak is not something we should -- we are relying on

3 for the purpose of our case. Something like that could -- could go out.

4 Yeah. The rest I think goes to the issues that I've set out before.

5 Paragraph 45 to 50, it's again the same issue and it's covering

6 some of these same attachments, attachments 13, 13A, and 13B to the

7 statement, and again, the issue here is whether or not there was VJ and

8 MUP cooperation at Racak and whether or not excessive force was used. And

9 I don't think there's any point in me repeating myself on this. We submit

10 this as relevant to the Prosecution's case and should be allowed in.

11 I want to reassure the Court we are not trying to get Racak in

12 through the backdoor. We are seeing a different purpose for this evidence

13 which goes to linkage, the existence of a joint criminal enterprise, the

14 involvement of the accused in what we say was a coordinated campaign in

15 Kosovo from at least March 1998 all the way through to the end of the

16 indictment period. So I just want to re-emphasise that point again.

17 Thank you.

18 JUDGE BONOMY: What about the other -- the final two exhibits in

19 paragraph 7 and 8?

20 MR. MARCUSSEN: I thought I had -- I don't think I have anything

21 to add to what I already submitted. I think I went through each of these

22 exhibits and explained why they are relevant.

23 JUDGE BONOMY: Well, they may be a problem for you and --

24 MR. MARCUSSEN: Sorry --

25 JUDGE BONOMY: -- with that in mind, if you try to obtain more

1 evidence on this point from the personal knowledge of the witness, you

2 would be well-advised to ask him further questions. You were seeking to

3 ask whether this -- one or both of these documents were consistent with

4 his own impression, and you were not allowed to ask that question. What

5 you could have done, if you wanted to pursue the matter, was ask him what

6 his impression was on circumstances in general under various headings if

7 you feel that that's something you want to clarify.

8 MR. MARCUSSEN: Are we talking about exhibits? Maybe I'm

9 confused. Exhibits or the final to exhibit --

10 JUDGE BONOMY: MM/15 and MM/16.

11 MR. MARCUSSEN: It's me misunderstanding what you're referring to.

12 JUDGE BONOMY: To describe MM/16 as a -- I think it was MM/16 as a

13 mini As Seen, As Told, well certainly the latter part of it is accurate

14 and I think also that description was given to MM/15.

15 MR. MARCUSSEN: Now, I made submissions when there was an

16 objection to the line of questions that were being pursued by me in that

17 regard.

18 JUDGE BONOMY: Well, all I'm saying to you is if you have nothing

19 further to say on that, you may be well-advised to ask further questions

20 to get the witness's personal knowledge and experience in case these are

21 excluded. I mean, you can --

22 MR. MARCUSSEN: No, but I -- yes --

23 JUDGE BONOMY: You can reflect on that while I hear if there's

24 anything else to be said --

25 MR. MARCUSSEN: I think in fairness to the Defence what the

1 witness indicated was that he could say from his own knowledge, he could

2 say that people had been evicted by forces of the FRY and Serbia but he

3 was not in a position to say whether he knew from documents he had read or

4 from his personal discussions with people, whether the more specific acts

5 such as killings and things like that had taken place. So I think I will

6 possibly -- I will have to leave it at this. If it is not a sufficient

7 basis to get the documents in, we can only get in the evidence about

8 people being forced to leave Kosovo.

9 JUDGE BONOMY: Well, MM/16 is a report he supervised the

10 compilation of reporting on the situation as at the 11th of May, when he

11 left. But it's a matter for you, obviously, to decide what course you

12 want to follow.

13 [Trial Chamber confers]

14 JUDGE BONOMY: Mr. Ivetic, do you have anything to add?

15 MR. IVETIC: Your Honour, I think we've said it all, so I think

16 that's -- we'll rest on that.

17 JUDGE BONOMY: Okay.

18 All we're in a position to do at this stage is give parties

19 guidance along the lines that we have -- or I have already tried to do to

20 Mr. Marcussen in relation to the documents that can be compared to As

21 Seen, As Told. And our decision will be consistent with the decision in

22 As Seen, As Told, and therefore when we finalise it, it will exclude the

23 sort of material that is contained in these documents that is of the same

24 nature.

25 So far as Racak is concerned, evidence of -- that goes to show

1 coordination between the forces and the use of excessive force, in the

2 restricted sense, that the Prosecution have referred to, namely, the use

3 of heavy weaponry against domestic -- apparently domestic property, that

4 general evidence we will admit. But so far as evidence going to the crime

5 base, the murders in Racak is concerned, we will not be admitting that.

6 Now, this -- the final actual exercise will require us to go through the

7 various passages and issue an order which makes it clear which passages

8 are -- and exhibits are not being taken into account and which are. And

9 that will be done later today, if possible. It will certainly be done in

10 the context of this witness's evidence so that no one's in any doubt

11 before he finishes what the final position is. But it can't be done at

12 this minute.

13 So the witness will return now for cross-examination.

14 [The witness takes the stand]

15 JUDGE BONOMY: You'll be glad you've only had wars to fight. It

16 looks like Mr. Sepenuk is kicking off for the Defence.

17 Mr. Sepenuk.

18 MR. SEPENUK: Thank you, Your Honour.

19 Cross-examination by Mr. Sepenuk:

20 Q. Good afternoon, General. I'm Norman Sepenuk and I'm an attorney

21 for General Ojdanic, and I'm going to depart from what I thought was going

22 to be sort of the traditional kind of cross-examination because something

23 you said this morning really made me think about a few things. And you

24 said that you were a -- you called yourself -- I think with a smile, you

25 said: "I'm just a simple soldier." And I want to just talk about that

1 for a minute and about the mind of a soldier, whether it be a Canadian

2 soldier, an American soldier, or a Serbian soldier because I think you

3 could give us perhaps unique insight into this subject we've heard little

4 about.

5 You've testified about a meeting you had with General Delic --

6 A. Colonel Delic.

7 Q. Colonel Delic, excuse me. I have a habit of saying general which

8 we don't have to go into it. The Court has already it.

9 JUDGE BONOMY: Is that because he's now General Delic.

10 MR. SEPENUK: As a matter of fact, he is now General Delic.

11 JUDGE BONOMY: I think that's what caused the confusion.

12 MR. SEPENUK:

13 Q. And, of course, you've made rapid strides from a brigadier general

14 to what you say lieutenant-general in just a few years. But in any event,

15 I take it you regarded Colonel Delic as a professional soldier?

16 A. Yes, I did.

17 Q. And is it fair to say, just generally speaking, that the VJ, the

18 army, cooperated with you and behaved, generally speaking, in a

19 satisfactory manner during your three months in Kosovo?

20 A. I would say generally yes, although there was a difference between

21 the way Delic did and the commander of the Urosevac Brigade did.

22 Q. You talk about Colonel Jelic?

23 A. That's correct.

24 Q. And without getting into --

25 [Trial Chamber and legal officer confer]

1 MR. SEPENUK:

2 Q. And without getting into a debate about it because Colonel Jelic

3 said he was out in the field and he couldn't see you -- he eventually did

4 see you with Colonel Kotur a few weeks later. So there was a mix-up on

5 that. But other than that, you were generally satisfied with their

6 behaviour, they reacted in a professional manner and tried to do the right

7 thing?

8 A. Yes.

9 Q. And the meeting you had with Colonel Delic, it's MM/6 at page 73,

10 Mr. Marcussen was asking you about it. And the two of you, you and

11 Colonel Delic, and I think Mr. -- Major -- was it Colonel, Major Morwood.

12 Who else was there?

13 A. Lieuteneant Colonel Morwood.

14 Q. He was also there. I think the two of you were trying to get to

15 know one another. This was 10, 11 days after you got to the field. You

16 started in Vienna then you went to Pristina, and then Prizren, December

17 15th in Prizren, and then you were there for about three months, you left

18 March 15th?

19 A. Right.

20 Q. So you're trying to get to know one another and you start to talk

21 about terrorism and Colonel Delic said that, you know, we just can't

22 tolerate terrorism. And you said, Well, we, too, in Canada don't tolerate

23 armed resistance. Okay. And he says, Well, and we can't accept terrorism

24 but he says, We won't provoke -- we will not provoke any kind of an

25 incident. And then we get to the part that Mr. Marcussen asked you about,

1 and again effort to get to know one another. And you said to the colonel,

2 you said, Where are you from? And he said, Well, my family is now in

3 Belgrade. I have emotional connection to these territories. We all. And

4 it's underlined in the transcript here, we all, and then it says "(Serbs)

5 will protect Kosovo with our lives historical monuments, and heritage."

6 And then Mr. Marcussen went on to another subject. It sort of

7 stopped there. Can you -- what was the significance of that to you,

8 General? I mean, obviously there's a reason why Mr. Marcussen asked you

9 the question, you gave the answer. And so can you just tell us what the

10 significance of that was to you?

11 A. I think that showed me the level of emotional engagement and

12 attachment that certainly Colonel Delic and -- by his implication that all

13 Serbs have to Kosovo.

14 Q. And isn't that sort of a natural thing. I mean, let me give you

15 as an example. It sounds unimportant and it probably is in the general

16 scheme of things. I was struck by your Initial Impressions. You wrote

17 this document called Initial Impressions a week or so after you had gotten

18 to Prizren.

19 A. Mm-hmm.

20 Q. It's MM/2. And in it -- I don't think we have to put it up on the

21 board. This is very informal and I'll just read it to you. And you

22 said: "The next RC," that's regional centre, right, "is due to open

23 tomorrow, Pec, but I can't help feeling that Canada did not get much

24 mileage from having been given the opportunity of taking command of the

25 first," you have first underlined, "first one to open here in Prizren. So

1 far I have given three interviews all to foreign journalists and I have

2 not seen any press release or media advisory. Is there any play in the

3 Canadian media?"

4 Now, isn't this just a very understandable pride that you'd like

5 folks to know that Canada is -- you know, that's the country that opened

6 the first regional centre in Kosovo; correct?

7 A. Yes.

8 Q. And very absolutely understandable. And I take it understandable

9 that Colonel Delic expressed the emotions that he felt about his country?

10 A. Absolutely.

11 Q. And whereas you can, as an outsider coming in, can just call them

12 the -- what was the word you used? You don't want to use the word

13 terrorists. What was the word you were using?

14 A. Guerillas or something.

15 Q. What was it? Liberation -- freedom fighters, that's what you

16 said.

17 A. Freedom fighters.

18 Q. So you understand that the emotional depth of the Serb -- I mean,

19 to a Serb they are indeed terrorists.

20 A. I tried to understand the emotional attachment of all parties to

21 the land, both the Serbs and the Albanians. And in fact I tried not to

22 make a ruling on that as to who was right in the whole thing. I believe,

23 in fact, both are right.

24 Q. And in fact, we had a witness. Do you know John Crosland, Colonal

25 Crosland?

1 A. I don't think so.

2 Q. You don't know the name. He said in his opinion -- he was a

3 military attache to the British Embassy, and he said as far as -- taking

4 Kosovo out of Serbia is like taking Wales out of England. So -- you're

5 nodding your head. So I'm just trying -- do you understand the depth of

6 the attachment?

7 A. Absolutely.

8 Q. Okay. All right. Now, again you were in Kosovo and the

9 Pristina -- Prizren area for about three months. And it's fair to say, is

10 it not, that there was a strong KLA presence in your area as well as other

11 areas of Kosovo?

12 A. Yes.

13 Q. And that under the October 25th, 1998, Clark-Naumann Agreement,

14 and with Mr. Milosevic, VJ and MUP forces were required to decrease their

15 forces in Kosovo to the levels preceding the outbreak of terrorist

16 activities; correct?

17 A. Correct.

18 Q. And again, to save time here, because we have a few people coming

19 after me to ask you some questions, I take it that you would agree with

20 the words of General Naumann, who was the chairman of the NATO military

21 committee, and I'll read you exactly what he had to say about this and

22 he's testified to that effect at this trial several weeks ago.

23 He said: "I think it's fair to say that Milosevic honoured the

24 commitment which he had made to General Clark and myself on 25 October

25 1998. He withdrew the forces and he withdrew the police. There may have

1 been some difference as to whether there were 200 or 400 policemen more or

2 less, but that really does not matter. More or less, he honoured the

3 commitment. Then the UCK or KLA filled the void the withdrawn forces had

4 left, and they escalated. I have stated this in the NATO Council in

5 October and November repeatedly. In most cases the escalation came from

6 the Kosovar side, not from the Serb side."

7 Do you agree with what General Naumann had to say here, General

8 Maisonneuve?

9 A. I would say that during my time there I did not see any increase

10 in either of the Serb or the KLA presence, except towards the end of my

11 time, before I actually left on leave in March, where there seemed to be

12 an increase in, I would say, recruiting by the Albanian side of

13 individuals and so on. But I think the levels up to that time were pretty

14 even, both the Serb and the KLA side.

15 Q. Well, I will try for the next 15 or 20 minutes or so to show you

16 very respectfully that you might be mistaken, because I'm going to show

17 you a series of KVM reports which indicate to the contrary, but again I

18 respect your opinion.

19 A. No, that's fine.

20 Q. And about the same time --

21 THE INTERPRETER: Kindly slow down, please, counsel. Thank you.

22 MR. SEPENUK:

23 Q. Toward the end of December 1998 -- in fact, in November of 1998, a

24 gentlemen named Bislim Zyrapi -- do you know who he is, by the way?

25 A. No.

1 Q. Never heard of him?

2 A. No.

3 Q. Bislim Zyrapi became the Chief of Staff of the KLA General Staff

4 in November of 1998. And he actually testified here several weeks ago.

5 And he said, and this is Prosecution Exhibit 2460, and he's speaking now

6 as of December 28th, 1998, this is a report that he was giving to his zone

7 commanders. He said: "Following the enemy offensive, the re-positioning

8 of forces has been carried out in all the OZs," operating zones, "and we

9 can freely say that the territory controlled by our units is now of a

10 greater percentage than prior to the enemy offensive."

11 Do you feel there's some truth to that from what you know of the

12 situation?

13 A. As I say, for me -- I would say that it was certainly

14 transparent. I was not looking at, you know, how much territory was being

15 held by the KLA at what time. I was looking for the ability to have

16 freedom of movement throughout both the KLA and the Serb areas, for

17 example, the border. So I can't give you a judgement as to whether more

18 areas were being held or not. First of all, I arrived on the 15th of --

19 you know, in Prizren by the 15th of December, so by the 28th of December I

20 could not give you one way or the other whether that was the truth or not.

21 Q. Okay. We'll go on now and show other occupation of territory and

22 provocations, and this is all partially, too, to gauge -- for the Trial

23 Chamber to gauge your comment about Serb forces overreacting, because I'm

24 trying to show what they were reacting against.

25 A. Okay.

1 Q. And so a specific instance is the Podujevo situation in late

2 December 1998. Do you remember that as sort of a troubled area?

3 A. Yeah. I'd have to see a map again and look at my notes, but

4 I'll --

5 Q. It's up there in northern-eastern Kosovo. It's in between

6 Serbia. It's sort of a main road --

7 A. Oh, yes, the Podujevo situation, yes, yes.

8 Q. And the KVM -- there's an interim report period covered 21 to 27

9 December 1998, a KVM report. And it says: "The VJ withdrew from

10 positions in this area in accordance with the agreement, but then watched

11 as those positions were occupied and fortified by the KLA. The area is of

12 particular strategic importance to the Serbs, since the main north-south

13 highway from Belgrade is within it. But the same pattern of KLA occupying

14 areas left by the security forces has been observed elsewhere in Kosovo."

15 So does that get you back into the situation now? Is that

16 beginning to sound very familiar to you?

17 A. Except that, of course, Podujevo was outside of my personal area.

18 Q. Right, but I take it you did try to keep abreast of what was going

19 on?

20 A. To some extent.

21 Q. In fact, I think you even took General DZ's place for a week?

22 A. I did.

23 Q. When he went on vacation or something you took his place?

24 A. Yeah.

25 Q. And on the next page of this report it says: "Measuring KLA

1 defiance is more problematic since it is not a partner to any agreement;

2 however, the reported decision of the KLA to end the unilateral cease-fire

3 it declared in October would be implemented -- it would, if implemented,

4 be a clear contradiction of Resolution 1199, which emphasises that all

5 elements in the Kosovo Albanian community should pursue their goals by

6 peaceful means only. The KLA claims its modified stance results from the

7 attacks of Serb security forces; however, the KLA may see it in their

8 interest to provoke Serb reactions that would increase the chances of NATO

9 military intervention in Kosovo."

10 And my question to you, General: Isn't that more or less what

11 happened over the next few months to the beginning of the war, repeated

12 KLA provocations and reactions to those provocations by Serb forces.

13 Isn't that what happened, more or less?

14 A. In certain instances -- certainly in my area we really tried to

15 keep the lid on these kinds of provocations to try and -- to ensure that

16 the status quo would remain to allow the political situation to be sorted

17 out, but I certainly couldn't take issue with this report from the KVM.

18 Q. And one incident, unfortunately, that you couldn't keep the lid on

19 was an ambush in -- on January 8th, 1999, where a press release issued by

20 OSCE says: "The KLA executed a meticulously planned ambush of a column of

21 MUP vehicles, leading to three deaths and several casualties. These

22 actions are in direct contradiction of solemn promises from the KLA of

23 showing restraint and of maintaining the cease-fire agreement. KVM wishes

24 to make it clear that it finds the reaction by Yugoslavian authorities to

25 these KLA provocations has been up to this point very restrained. The

1 representatives of the Yugoslavian authorities have shone a willingness to

2 cooperate in the present situation."

3 And you probably remember that incident quite well?

4 A. I do. Matter of fact, the reason why this press release was

5 issued is because I pressed for it. I wanted it to be issued to show that

6 there had been, certainly, a good -- a restrained response and that the

7 KLA were violating the agreement in this case.

8 Q. And of course you were in Prizren, but there was an assessment for

9 8 January 1999 and that's P407, Prosecution Exhibit 407, at page 158 where

10 the KVM assessment is: "The KLA appears to be taking advantage of OSCE's

11 presence and becoming more provocative in their actions."

12 Again, I'm trying to get to the point now of it was the KLA that

13 was becoming more and more provocative, not Serb forces. That's why I'm

14 asking you these questions, sir.

15 A. Okay.

16 Q. Now, the --

17 JUDGE BONOMY: Do you accept that?

18 THE WITNESS: Yes, I guess I would accept that this --

19 JUDGE BONOMY: This isn't supposed to be a speech by Mr. Sepenuk.

20 We're looking for your answers on this.

21 THE WITNESS: I think I would accept -- certainly in the case of

22 Podujevo and also in the case of the ambush, it was definitely a

23 provocation.

24 JUDGE BONOMY: [Microphone not activated]

25 THE INTERPRETER: Microphone for the Presiding Judge, please.

1 JUDGE BONOMY: He's making a much more general point that between

2 your arrival and the start of the war, the true picture was increasing

3 provocation by the KLA.

4 THE WITNESS: Again, it would be difficult for me to be categoric

5 and say that there was an increase as time went on. But obviously as you

6 look at these -- some of these points that are being brought up here, some

7 of these reports as a matter of fact, it points to that. I could not

8 argue with that, you know, the written word.

9 JUDGE BONOMY: But we're not here to hear your -- just -- no

10 criticism of you. But we're not here to hear your analysis of a series of

11 documents; we're here to hear your experience. And if you've no

12 experience, I'd like you to say it, because I don't want this to go on --

13 THE WITNESS: Well, that's it, Your Honour --

14 JUDGE BONOMY: -- on the basis that you're going to give the nod

15 to what he says without knowing anything about it.

16 THE WITNESS: Well, this is my point, Your Honour, is that from my

17 point of view, we really tried to keep the lid on things both -- on both

18 sides and in terms of provocation, you know, you could link all these

19 things together but for me the individual incidents that I dealt with when

20 I was on the ground there did not show me that there was a great increase

21 in provocation from either side.

22 MR. SEPENUK: Again, Your Honour, that's why I'm asking these

23 question.

24 Q. And I will attempt to -- I maintain my thesis but we'll see as we

25 go along.

1 There's an assessment, a KVM assessment for 8 January 1999,

2 Prosecution Exhibit 407, page 156, and it again speaks about that ambush

3 that we just talked about. And it says: "It appears the KLA does not

4 acknowledge the cease-fire any more and will most likely strike again

5 using the same tactics."

6 And it goes on to say: "The subsequent assault by the KLA on this

7 check-point indicates the KLA's high level of confidence and willing to

8 attack in multiple locations."

9 Now, I want to move from there to a meeting I don't think you had,

10 sir. I think that you were not at this meeting but you've initialled the

11 record that we have. It's one of the attachments to your statement.

12 Mr. -- Colonel Morwood was there.

13 A. Okay.

14 Q. Cobb-Smith, one of the liaisons, Mr. Lefever, one of the liaisons,

15 and Drini from the KLA. And it's a meeting record with the KLA 23 January

16 1999, and your initials appear at the bottom, and I had a great deal of

17 difficulty trying to figure out what number this document was. Maybe Mr.

18 Marcussen can help. It's virtually unreadable at the top of the document,

19 but it's K0075720. And just for the sake of the record, if Mr. Marcussen

20 can simply give me what the number is, I'd appreciate it. And while --

21 maybe I should wait.

22 Well, let me read from it. I don't think there's any doubt as to

23 what it says, and maybe at the break Mr. Marcussen and I can find the --

24 JUDGE BONOMY: I think he's going to help you, Mr. Sepenuk.

25 MR. MARCUSSEN: It's part of attachment MM/14A --

1 MR. SEPENUK: Thank you.

2 MS. MOELLER: -- which has three documents and it's the last one

3 of those.

4 MR. SEPENUK: Thank you, Mr. Marcussen.

5 Thank you, Your Honour.

6 Q. And in this document it says -- and this is supposedly what Drini

7 told your associates and your colleagues.

8 "KLA" -- 23 January, 1999. "KLA's plan for a more general

9 resumption of hostilities were complete, while they, the KLA, might not be

10 fighting now, this was their choice, they would choose the most suitable

11 time and place for future action. Sufficient latitude was available now

12 to zone commanders to initiate limited attacks as they saw fit."

13 And then later on in the statement it says: "Taking the campaign

14 to the towns was an active element in the next military steps of the KLA."

15 And I take it that that was a report furnished to you by your

16 colleagues, and was there any particular reaction on your part to what

17 appeared to be Drini's plan for the future?

18 A. Yes, absolutely. And in the context of that -- of that meeting

19 this was, of course, after Racak and Drini -- certainly there was -- I

20 felt there was a certain amount of bluster in there about, you know, we're

21 prepared to go and the reason we're not going is because we choose not to

22 do it at this time. But there's no question that everyone was watching

23 what was going on. There's the issue of we're in the middle of winter as

24 well, so perhaps the weather had an influence on what they wanted to do.

25 But as I say, our aim was to say, Fine, don't attack. Try to keep things

1 reasonably steady for the moment and let the political process carry on.

2 And certainly when Rambouillet negotiations began, we really tried to keep

3 the lid on it then.

4 MR. SEPENUK: I can go on, Your Honour -- excuse me. Strike what

5 I just said.

6 JUDGE BONOMY: Sorry?

7 MR. SEPENUK: No, strike what I just said. I was thinking of

8 another break at another time. Thank you.

9 Q. The -- you were saying you were trying to keep the lid on, but it

10 didn't quite happen that way, because the next document we have here is

11 3D374 and this is an assessment for 14 February 1999, which is, you know,

12 a few weeks after that January 23rd meeting with Drini. And it

13 says: "Even with the conduct of small-scale military and terrorist

14 actions in the past several days, Kosovo has remained relatively quiet.

15 The reason for this is probably due to the meeting in Rambouillet, each

16 side wanting to be seen as favouring peace in the region. On the same

17 token, some of these incidents can be viewed as acts of provocation," and

18 it says here "mainly by the KLA, trying to provoke reactionary oppositions

19 by the other which can then be exploited in the international arena."

20 So again, a KVM assessment that the acts of provocation were

21 mainly by the KLA. And you of course know and worked with General DZ;

22 correct?

23 A. Yes, I did.

24 Q. And in his statement to the Office of the Prosecutor, it's P2508,

25 he said in paragraph 189 about this period, he says: "I must say that

1 during the Rambouillet discussions the number of incidents instigated by

2 the Serbs declined significantly, whereas those instigated by the KLA

3 declined much less appreciably. Furthermore, the KLA became more

4 opportunistic during this time."

5 Does that what General DZ said square with your memory now of what

6 went on?

7 A. It certainly does, and that's what I mentioned is that towards the

8 end of my period there, there was a greater, you know, amount of

9 recruitment and kind of a -- I guess I would say -- we assessed it at the

10 time -- I assessed it at the time as a kind of positioning themselves by

11 the KLA for what the future might bring in terms of an accord.

12 Q. And then by way of another KVM document, the scale of violence

13 initiated by the KLA rose drastically during the period 23 February to 11

14 March 1999. And this document, a KVM document, says: "Unprovoked attacks

15 by the KLA against the police have continued and the number of casualties

16 sustained by the security forces has increased."

17 And then if you go inside the document there's a whole series, and

18 I'm simply not going to go over -- I don't think I should because there's

19 simply not time. But there's a whole series of provocations by the KLA.

20 I will give a few of them if you don't mind. It says first of all on 27

21 February a police patrol was ambushed west of Pristina airfield with one

22 police officer killed and one wounded, apparently by KLA sniper fire.

23 And then it says: "There's a new area of military engagement,"

24 and it goes on to talk about reports of fighting near Kacanik in

25 south-western Kosovo and one police officer, the commander of the Kacanik

1 police station was killed, four policemen wounded, an estimated 2.000

2 people fled villages in the Kacanik area, some trying to cross the border

3 to Macedonia.

4 And the thought here, at least I'm going to express a thought here

5 and see if you agree with it, that the KLA was attempting to provide

6 access for a possible NATO ground invasion through Macedonia. And during

7 any of your three months as head of the Pristina region -- Prizren region,

8 excuse me, General, was that ever in your -- on your radar screen?

9 A. The incidents you talk about, for example, Kacanik and so on,

10 definitely I was aware that this was going on, and in fact I believe that

11 this -- the rising in activity by the KLA and the response by the Serb

12 forces and the increased fighting in that area is what resulted in the

13 mission being evacuated. So I was aware that that was the case, but again

14 certainly in my area I don't remember -- I don't remember any activities

15 that we could have assessed as being preparing the ground for a NATO

16 invasion.

17 Q. Okay. Do you know a gentleman by the name Christopher John Clark,

18 does that name mean anything to you?

19 A. No.

20 Q. He's a warrant officer --

21 A. Okay.

22 Q. -- with 16 years the British army, paratrooper, commando, combat,

23 mountain leader -- he's got all sorts of credentials. And he was the

24 operations officer in Kosovo. And he says, by the way -- I'll just simply

25 ask your opinion. I'm going to guess you're going to disagree with him.

1 He says: "As time went on I became involved with liaison with the KLA,

2 this was due to the fact that the KLA was responsible in most cases,"

3 maybe you won't disagree, "was responsible in most cases for breaking the

4 Holbrooke Agreement." Do you disagree with that?

5 A. Not in my area.

6 Q. Not in your area despite what we've just been hearing, right? Is

7 that your answer?

8 A. That's correct.

9 JUDGE BONOMY: What do you mean by that last reference,

10 Mr. Sepenuk, in spite of what we've been hearing?

11 Is Kacanik in your area?

12 THE WITNESS: No, it's not.

13 JUDGE BONOMY: No, so what are you referring to?

14 MR. SEPENUK: I was referring to overall, Your Honour.

15 JUDGE BONOMY: It's increasingly sounding like a closing argument,

16 Mr. Sepenuk, because it's clear that you're asking the witness about

17 things of which he's got little direct personal knowledge, and it would be

18 helpful, I think, while we've got his valuable time to concentrate on what

19 he can actually deal with personally.

20 MR. SEPENUK: Okay. Thank you, Your Honour.

21 Q. I'll go to one of the last documents I have and that is the

22 document actually authored by David Wilson. I take it it's the same David

23 Wilson who is -- who is he, who was David Wilson?

24 A. David Wilson was an officer from the British army who was working

25 with the UK KDOM before I arrived in Kosovo. And therefore, when I

1 deployed in Prizren and we -- the KVM took over the UK KDOM or absorbed

2 the UK KDOM he became one of my officers, and I employed him as

3 intelligence fusion centre and kind of a future -- he turned out to be an

4 officer who had good knowledge of the ground, of the parties' good kind of

5 political background and one who could think laterally. So I used him a

6 lot to put assessments together, and although they were his own, some of

7 them I thought were pretty accurate, certainly food for thought.

8 Q. So you think he's a fairly astute person?

9 A. I think he's an astute person.

10 Q. And in this exhibit, this is Prosecution Exhibit 641, I believe,

11 yes, he has -- and we've been moving through February, March --

12 MR. SEPENUK: And by the way, Your Honour, I'll just say for the

13 record there were a lot of incidents in this last report 3D179 and I

14 respectfully comment to the Court there are a number of incidents of KLA

15 provocations in this, Your Honour, and just I direct it to the Court.

16 JUDGE BONOMY: Indeed, Mr. Sepenuk. All of these are available

17 for us to consider.

18 MR. SEPENUK: Thank you, Your Honour.

19 Q. And he says -- this is his assessment of KLA attitudes and we're

20 about a week away from the war now in March 15th -- and this is the last

21 document I'll talk to you about. And he says that: "Prior to the first

22 round of peace talks at Rambouillet the KLA presented an apparently

23 unified and disciplined front. Their lines of command and control from

24 the General Staff to the zone commanders and below seemed to be generally

25 effective."

1 That's his assessment. And then he talks about recent events, and

2 again I'll just very briefly summarise them. There's a number of events

3 that he talks about which show KLA provocation like in Kacanik he says

4 that: "During the build-up of this operation in the Kacanik area, the KLA

5 brigade commander in the area refused to let the UNHCR evacuate IDPs from

6 the area. This has been seen as a cynical attempt to use Albanian

7 civilians as a human shield."

8 I take it you knew nothing about this?

9 A. No, I didn't.

10 Q. Okay. And there's several other matters mentioned, the Dulje

11 Heights ambush, Lebane shooting, and one I will mention, that is the

12 kidnapped Albanian police employee. It says: "The KLA General Staff have

13 admitted that the Albanian police employee was arrested by the KLA secret

14 service for being a spy and that he's being held at their information

15 centre. This is the first time that the KLA have admitted to having a

16 region-wide police unit that conducts this type of operation. Again, the

17 General Staff were not willing to acknowledge that this return to

18 terrorist kidnappings was not to their benefit."

19 Now, the whole notion of the abduction and the murder of

20 Albanians, I was a bit disturbed, again I say very respectfully, by your

21 testimony in the Milosevic case where you didn't seem to know about it.

22 Do you know about it now? Do you know that there were many abductions of

23 ethnic Albanians because they had -- did business with the Serbs or

24 because the Serbs [sic] considered them as collaborators?

25 A. I didn't have any direct knowledge at the time --

1 THE INTERPRETER: Can the speakers please make significantly

2 longer pauses between question and answer. Thank you.

3 MR. SEPENUK:

4 Q. I'm sorry. I didn't hear your answer because the interpreter says

5 that we're stepping over each other's lines. I'm sure I'm the prime

6 offender.

7 A. I didn't have direct knowledge at the time.

8 MR. SEPENUK:

9 Q. The interpreter was speaking. I'm sorry. Can you give your

10 answer once more, please. Yes, please.

11 A. Okay. I had no knowledge at the time or little knowledge at the

12 time, and since then of course I've come to understand that that was the

13 case.

14 Q. Okay. All right. And my last question on this document pretty

15 much -- my next-to-last question for you is it says in this document: "If

16 the Serbian government refuses to sign the agreement, the KLA local

17 commanders," and he's talking about a peace agreement now, "will consider

18 the political effort to have been a failure and will return to full-scale

19 violence to fight for independence. Many of the KLA at the zone command

20 level and below are under the misapprehension that the KLA can defeat the

21 Serbian security forces. If this happens, certain parts of the KLA, for

22 example Ramush," and he's referring there obviously to Ramush Haradinaj,

23 correct? It has to be for the record.

24 A. Probably yes.

25 Q. Okay. "Will probably attempt to take the fight into the towns and

1 cities." And of course as we know. There was no peace agreement and the

2 war started about a week later.

3 A. That's correct.

4 Q. And my last question for you, General, is that memo that the same

5 David Wilson, who I think you consider a fairly astute guy prepared. It's

6 attached to your statement and I ask you about it only because in your

7 statement you said you think it's an accurate assessment of the Kosovo

8 situation --

9 A. Generally accurate, generally accurate.

10 Q. I hesitate to use it, because it's one man's opinion and, you

11 know, he could be right he could be wrong, but I'm going to ask you about

12 one small part, and this gets back to the simple soldier, if I might, and

13 here's what he says. He says, talking about the VJ, he says: "The key

14 group obviously are the professional officers" talking about again the

15 army, the VJ, and the SNCOs, the non-commissioned officers --

16 A. Senior NCOs.

17 Q. Right. "From their point of view they are frustrated,

18 contemptuous of the political manoeuvrings, angered at the double

19 humiliation of being scrutinised -- the word 'scrutinised' is in quotes --

20 by foreign observers in their own land and being required to observe a

21 cease-fire against terrorists and skeptical -- skeptical about the

22 prospects of a political settlement while the analogies with western

23 forces can easily be overdone, it is comparatively easy for any soldier to

24 understand their emotions."

25 Now, David Wilson was a soldier, was he not?

1 A. He was.

2 Q. And obviously, sir, you're a very high-ranking and distinguished

3 soldier. Do you think there's truth to what he has to say?

4 A. Absolutely. I think it accurately reflects the feelings from

5 Colonel Delic on down to probably soldiers on the ground of the VJ forces.

6 Q. Thank you, General.

7 JUDGE BONOMY: Which document is that, Mr. Sepenuk, is that MM/15?

8 MR. SEPENUK: No. I'm sorry, Your Honour. I didn't mention it

9 for the record. I apologise for that. It's MM/4.

10 JUDGE BONOMY: MM/4.

11 MR. SEPENUK: Yes.

12 JUDGE BONOMY: Mr. Aleksic.

13 MR. ALEKSIC: [Interpretation] Thank you, Your Honour. We have no

14 questions for this witness.

15 JUDGE BONOMY: Mr. Cepic.

16 MR. CEPIC: Thank you, Your Honour. I do have some questions for

17 this witness.

18 Cross-examination by Mr. Cepic:

19 Q. [Interpretation] Mr. Maisonneuve, my name is Djuro Cepic and I'm

20 one of the Defence counsel for General Vladimir Lazarevic and I have

21 several questions for you. I will start from your arrival in Prizren. In

22 your statement in paragraph 13 you state that you arrived on the 15th of

23 December, 1998, there and immediately you were involved in the border

24 skirmishes involving the death of 35 men who were allegedly members of the

25 KLA.

1 A. Yes.

2 Q. Later on you were able to confirm that these were indeed members

3 of the KLA?

4 A. Yes, for the majority, yes.

5 Q. Would you agree that all those who were killed, wounded, and

6 captured in that action on the other side were, indeed, members of the KLA

7 and that your verifiers, including Jan [as interpreted] Henry and other

8 members of your regional centre, were able to see that for themselves?

9 A. Yes, I would say that the majority were KLA. There may have been

10 one or two accompanying people there but the majority were KLA, we

11 certainly thought that they were KLA.

12 JUDGE BONOMY: Could you clarify the name of the verifier

13 referred to there.

14 THE WITNESS: Jan Henry I think he mentioned.

15 JUDGE BONOMY: That name's familiar to you, is it?

16 THE WITNESS: Yes, Iain Henry.

17 JUDGE BONOMY: Iain Henry. Thank you.

18 MR. CEPIC: Thank you, Your Honour.

19 Q. [Interpretation] I believe later on you learned that this group of

20 the total of 150 KLA soldiers went across the border from Albania into the

21 territory of the FRY and that several KLA members were arrested and a

22 sizeable amount of weapons were confiscated, and these were the latest

23 type of weaponry, as well as a considerable amount of money?

24 A. I don't remember actually hearing --

25 JUDGE BONOMY: One moment, Mr. Maisonneuve.

1 Yes, Mr. Marcussen.

2 MR. MARCUSSEN: I was just going to ask for a reference to what it

3 is my learned colleague is referring to.

4 JUDGE BONOMY: When this sort of situation arises, it would be

5 helpful if you delayed your request for that until the witness answers

6 rather than interrupt the flow.

7 But can you assist, Mr. Cepic.

8 MR. CEPIC: [Interpretation] Your Honour, I even have several

9 video-clips that can confirm the statements I've been putting to the

10 witness. In addition to that, in e-court we have in the document 3470

11 which is Iain Henry's statement. With your leave, I would like for the

12 first video-clip to be played, which shows the presence of the verifiers

13 on the spot as well as --

14 JUDGE BONOMY: Just one moment.

15 What do you know of this incident, Mr. Maisonneuve?

16 THE WITNESS: Well, Your Honour, I arrived, as correctly stated,

17 on the 15th of December and essentially I was brand new to the place and I

18 had arrived and I heard there was of course this -- there was this

19 engagement. And at that point my main task, as I saw it, was to ensure

20 the ordinarily transition of the bodies from one party to the other. And

21 so that's basically what I remember of the event. It was a -- kind of a

22 shocking way to arrive in theatre, but I don't remember in fact seeing

23 Mr. Henry's specific report and I don't remember hearing about a quantity

24 of equipment, et cetera, or weapons that had been brought over at the same

25 time.

1 JUDGE BONOMY: Well, Mr. Cepic, it doesn't look as though the

2 witness can help in any meaningful way on this topic.

3 MR. CEPIC: [Interpretation] Your Honour, the broadcasting of the

4 video-clip, which speaks of the amount of weapons confiscated, might serve

5 to refresh the witness's memory.

6 JUDGE BONOMY: If you think that, then I can't argue with you at

7 the moment. Let's see what happens.

8 MR. CEPIC: [Interpretation] Thank you, Your Honour.

9 Could Defence Exhibit 5D116 be played, please. It's very short.

10 [Videotape played]

11 MR. CEPIC: [Interpretation]

12 Q. Mr. Maisonneuve, were you present at this place where weapons were

13 exhibited?

14 A. No, I was not. No, I was not, but the infamous David Wilson is

15 the person that you see on there, so if you're wondering what he looked

16 like, that was him.

17 JUDGE BONOMY: You got lucky there, Mr. Cepic.

18 MR. CEPIC: [Interpretation] Well, I have a lot of material that

19 could point in that direction, Your Honour.

20 Q. But let us briefly go back to the situation we mentioned. I

21 suppose your verifiers told you that the army behaved very professionally

22 and humanely, both toward those who were captured and toward the bodies of

23 dead KLA members. Isn't that so?

24 A. Yes, it is so.

25 Q. You are aware that on that occasion they allowed your verifiers to

1 speak to the captured KLA members, among whom there were even some women?

2 A. I believe I do remember that. Certainly in the transfer of the

3 bodies, and there was total cooperation by the Serb authorities.

4 Q. Thank you, Mr. Maisonneuve. The conclusion is, therefore, that

5 the army in this incident as well as in all the other incidents in the

6 border area between the FRY and Albania conducted themselves in a

7 professional fashion and humanely. Is that right?

8 JUDGE BONOMY: Mr. Marcussen.

9 MR. MARCUSSEN: I think this calls for complete speculation and

10 cannot be answered by the witness.

11 JUDGE BONOMY: I disagree. The witness can answer the question to

12 the extent that he has experience of the conduct of the army.

13 THE WITNESS: In my experience, Your Honour, yes, the VJ conducted

14 themselves professionally.

15 MR. CEPIC: [Interpretation]

16 Q. Thank you. 549th Brigade, headed by Colonel Delic, also did not

17 use heavy weaponry. Is that right?

18 A. As far as I know, they did not.

19 Q. Thank you. You've already mentioned him today. Let us mention

20 him for the third time in the past 15 minutes and that's Mr. David Wilson

21 and his document MM/4. According to what your verifiers were able to see,

22 the VJ when discussing the period that Mr. Wilson discussed, the VJ

23 behaved professionally, did not go into the villages, and were successful

24 in their action in the border area. This is item 8D of MM/4, wherein

25 Wilson's observation is contained. Do you agree with that?

1 A. That would be an accurate description, I believe, for that period.

2 Q. Thank you, Mr. Maisonneuve. Today the Prosecutor also referred to

3 MM/2B. Just give me a moment to find the document in this binder. This

4 is the document concerning the implementation of liaison measures in

5 response to an agreement on the future status of Kosovo dated the 23rd of

6 February, 1999. This document, among other issues, mentions that within

7 your area of responsibility, that's to say of the regional centre 1 of the

8 Kosovo Verification Mission, 121st, 122nd, and 122nd [as interpreted]

9 Brigades were present in Orahovac and 123rd Brigade in Suva Reka. The

10 commander of the entire area was Mr. Drini, whom you mentioned in several

11 of your notes.

12 A. Yes.

13 Q. And everything that I have just said is consistent with what you

14 reported on?

15 A. That's correct.

16 Q. [In English] Thank you.

17 [Interpretation] In addition to the four brigades we mentioned, do

18 you know whether there was any other brigade operational within the area

19 of your responsibility in -- for the duration of your stay in Kosovo?

20 A. Not specifically. As a matter of fact, I did not deal with the

21 brigades; I dealt with Drini exclusively. And my coordination centre

22 heads were the ones that discussed and worked with the brigades, at the

23 brigade level, their level.

24 Q. Thank you, Mr. Maisonneuve. Let us go back to Mr. David Wilson.

25 Among other things, in item 4 of this document, MM/4, he mentions the

1 existence of village units. I'm interested in hearing about these village

2 units. They were composed of villagers of a given village only who had

3 automatic weaponry, but mostly had no uniforms. Is that right?

4 A. It perhaps is the case again -- I did not go into the great fine

5 details that he was reporting here, but I certainly trust his judgement

6 that he -- because of his knowledge of the UK -- during UK KDOM period as

7 well as the time that we were with the KVM that I would trust his

8 judgement that he's reporting accurately here.

9 Q. Thank you, Mr. Maisonneuve. Do you perhaps recall one of the

10 reports given to you by your subordinates in relation to these village

11 units? Were they part of brigades or independent units? Do you recall?

12 A. I do not recall, I'm sorry.

13 Q. Thank you. I suppose you'll remember my next question. In your

14 meetings with Mr. Drini and the reports as a result of these meetings, you

15 said that you met in a house. Were these meetings always held in one

16 village or would they have several venues? That's what I'd like to know.

17 A. They moved from village to village, in different villages,

18 depending on where Drini was at the time, and they usually took place at

19 night.

20 Q. These meeting houses were, in fact, KLA HQs, weren't they?

21 A. I believe some of them were. I believe some of them were houses

22 where they might have meetings themselves, but I'm not -- you know, I

23 cannot say that they had a headquarters in certain places.

24 Q. Did you perhaps observe on some of your visits that in the other

25 houses there were KLA members billeted, that they did not have

1 classic-type camp facilities, but that they used private homes as their

2 billeting facilities?

3 A. I could not say that I observed specific instances of that, but I

4 think that would accurately describe the times that I went to visit Drini

5 to -- that I went to speak to him, that would accurately describe the kind

6 of approach that the KLA had. They were in the villages and housed in the

7 houses in the villages.

8 Q. These villages were their bases?

9 A. Presumably.

10 Q. In your statement paragraph 53, you state when describing the

11 incident which took place on the 8th of January involving the murder of

12 three police officers, that there were well-fortified trenches from which

13 the police came under attack. I will play a brief video-clip now and will

14 ask you a question at the end of it.

15 MR. CEPIC: [Interpretation] Could we have Defence Exhibit 5D117

16 played, please.

17 [Videotape played]

18 MR. CEPIC: [Interpretation] I'm not interested in the sound.

19 Thank you.

20 Q. Mr. Wilson [sic], in this video-clip we can see trenches in the

21 villages. I suppose that very often when you came into the villages where

22 there were KLA present, you would see trenches on the approach roads to

23 the villages?

24 A. No.

25 Q. Did you see them next to the houses where there were KLA members

1 present or did you also observe them next to homes that were populated by

2 residents?

3 A. I can't say I ever saw trenches in the villages. Just let me

4 think for a moment. I think I -- I think I saw some trenches on an

5 incident of -- in an area very close to Prizren who -- in a small village

6 whose name escapes me now fairly close to the end of my time in the area.

7 But otherwise I don't remember that as a standard procedure that was being

8 used in the villages that I visited.

9 And I'd just like to ask you a question about this video. What

10 was this video supposed to be of? Was this the video that was supposed to

11 be of the incident of the 8th of January?

12 Q. No, no.

13 A. Okay.

14 Q. Just the trenches in villages.

15 The trenches you mentioned, where were they located precisely, if

16 you can remember? Were they within the village or outside the village?

17 A. They were --

18 Q. If you can recall.

19 A. I think they were on the edge of the village in this particular

20 case, and it was like one were two trenches for one or two people.

21 Q. Thank you. I've gone through your transcript carefully. Did you

22 perhaps receive from your associates some sort of an estimation or perhaps

23 do you have an estimation as to the numbers of KLA soldiers who were

24 within the area of responsibility of regional centre 1?

25 A. I don't -- I don't recall a number being given to me.

1 Q. Thank you, Mr. Maisonneuve. Let us briefly go back to Mr. Wilson

2 and his document that's been referred to several times here. You will

3 also agree with all the other observations he made or assessments he made,

4 namely that the KLA achieved great success between March and July of 1998.

5 My question for you is: Can you roughly in terms of percentages tell us

6 the size of the area held by KLA members in the vicinity of your regional

7 centre?

8 A. That would be -- it would be very difficult for me to estimate

9 unless I had a map and was able to point it out. But even that -- it was

10 not -- it was not, I don't think, an absolute area. There were certain

11 areas where we tried to come -- to go on patrol but they would not let

12 us. They were also impeding our freedom of movement, there's no question,

13 and so they would not let us go into areas, but I would have difficulty

14 kind of pinning it to a certain number of kilometres or square

15 kilometres. I think that information's available, though.

16 Q. Now that we are -- that we've mentioned the freedom of movement,

17 let me mention this one matter. This is MM/14A dated the 4th of March,

18 1999, where in paragraph 4 Drini says: "I ordered that a curfew be

19 introduced for civilians in our areas for their own safety."

20 You wouldn't be able to tell us, even in rough terms, to which

21 area this curfew may have applied?

22 A. No, but I would estimate that if Drini was speaking -- when I

23 spoke to Drini I understood that he was talking about his operational

24 zone. So I would imagine that it was within his -- the boundaries of his

25 operational zone, which I think were fairly close to the boundaries of the

1 Prizren province or areas.

2 Q. Thank you. This was operations zone Pastrik on the part of the

3 KLA. Do you know that the KLA had in that area and in the area of

4 Dukagjin special units for rapid action and liquidation of kidnapped

5 persons? Were you aware of the existence of these units at the time of

6 your stay there?

7 A. No, I was not.

8 Q. Mr. Maisonneuve, you stand by the statement that you said in

9 Milosevic case on page 5817 that the KLA is a rebellious organisation

10 consisting of paramilitary forces?

11 A. Yes, I think I -- that's -- I was trying to describe what kind of

12 force I perceived them as, and I think that's as accurate as you can be

13 here.

14 MR. CEPIC: Your Honour, if you allow me, is it the proper time

15 for stopping?

16 JUDGE BONOMY: How much more cross do you have, Mr. Cepic?

17 MR. CEPIC: Roughly 45 minutes or half an hour. Thank you.

18 JUDGE BONOMY: Well, all good things must come to an end every

19 day, so I'm afraid we've run out of time and we have to abandon today's

20 sitting at this stage. However, you will require to return tomorrow.

21 It's important that you don't have any discussion with anybody overnight

22 about your evidence at that -- and that means either the evidence you've

23 given or the evidence you may yet give in the case. Whoever you talk to

24 and whatever you talk about, make sure it's not the evidence. And if you

25 leave with the usher, we'll see you again tomorrow at 9.00.

1 [The witness stands down]

2 --- Whereupon the hearing adjourned at 3.30 p.m.,

3 to be reconvened on Wednesday, the 7th day of

4 March, 2007, at 9.00 a.m.

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