1 Tuesday, 25 February 2003

2 [Closed session]

3 [The accused entered court]

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17 [Open session]

18 THE REGISTRAR: We're in open session.

19 JUDGE MAY: We are in open session, very briefly. The witness, I

20 take it, should be back --

21 THE INTERPRETER: Microphone, please.

22 JUDGE MAY: Very well --

23 THE INTERPRETER: Microphone for Judge May.

24 JUDGE MAY: How long do you anticipate being with him?

25 MR. NICE: Myself, 20 minutes probably.

1 JUDGE MAY: I think that will be 20 minutes.

2 THE INTERPRETER: Microphone for the Presiding Judge, please.

3 MR. NICE: -- hopeful that the cross-examination may not take us

4 even in the third session, but that's a matter for the Court --

5 MR. KAY: You've been asked for a microphone, Judge May. There's

6 been no recording of the --

7 JUDGE MAY: Well, the last comment need not have been recorded

8 anyway.

9 Now let us deal with any other matters. We've got Torkildsen

10 still to do, the argument about that.

11 MR. NICE: General procedural issues, and I really must bring you

12 up-to-date sooner rather than later.

13 JUDGE MAY: Do you want to deal with that first when we finish

14 with the witness?

15 MR. NICE: No, for preference I'd rather -- let me look at the

16 view of the week as a whole. General Mangan has to be heard on Thursday.

17 It's the only day he's available. We're going to seek to wrap round him

18 Ambassador Okun. He has to be away at the weekend. He's already spent an

19 enormous amount of time here and wasn't called because of reasons of the

20 accused's ill health. So it really is a priority to get both of those

21 witnesses dealt with by Friday lunch-time.

22 It's possible that simply starting Okun tomorrow would achieve

23 that. I don't know if my learned friend Mr. Groome thinks that that's

24 cutting it fine or --

25 JUDGE MAY: Sorry. Let me interrupt with one other piece of news,

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1 which is that tomorrow is going to be foreshortened. We have to make way

2 for an initial appearance, requires us to break at -- adjourn at 12.45.

3 What we propose, with the indulgence of the interpreters, is that we would

4 have two sessions; 9.00 to 10.35, we would then take a half an hour break

5 and come back from 11.05 to 12.45. So it's slightly longer than the usual

6 period, but we'll save having two breaks.

7 MR. NICE: Thank you very much. Your Honour, can I reconsider the

8 position with Mr. Groome over the break to see really what's the latest

9 starting point for Ambassador Okun tomorrow to ensure that Okun and the

10 general are concluded by Friday. I almost certainly won't be here on

11 Friday myself, but that's not a problem.

12 It may be prudent, frankly, to put the financial argument first,

13 because it's a concise argument and also because an exhibit list, really a

14 sort of final planning list, that I want you to have available won't be

15 available tomorrow -- until tomorrow really in any event. At least won't

16 be available tomorrow in a form that I'm happy with. But I must address

17 you soon - really Monday would be the latest, I would hope - on procedural

18 issues so that I can explain to you where I think we are and what I'm

19 going to seek from you by way of assistance.

20 JUDGE MAY: May I remind you also outstanding are 60 or so 92 bis

21 witnesses which we have to rule on. And that has to be done, obviously,

22 sooner rather than later.

23 Well, perhaps you can, by the end of the day or by the end of the

24 witness's evidence, address us on what is going to be the most convenient

25 course for the rest of the week because everybody else should obviously

1 know what we're going to do.

2 MR. NICE: Yes. I think it's likely to be finance, Okun, Mangan,

3 Okun, and then that will exhaust the week.

4 JUDGE MAY: Very well. We will adjourn now. Twenty minutes.

5 --- Recess taken at 10.37 a.m.

6 --- On resuming at 11.02 a.m.

7 [The witness entered court]

8 JUDGE MAY: Yes, Mr. Nice.

9 WITNESS: PAUL DAVIES [Resumed]

10 Examined by Mr. Nice: [Continued]

11 Q. Mr. Davies, we are dealing with your evidence from your statement.

12 MR. NICE: Your Honours, we're at paragraph 34.

13 Q. In the November shelling, can you name some of the hotels that

14 were hit, please, and may the usher very kindly have available the two

15 maps, tabs 23 and 24.

16 A. Right. The hotels that I remember being shelled included a hotel

17 called the Libertas, a hotel called Belvedere, Excelsior, and another that

18 was either called Grand Imperial or Grand. It was very close to the walls

19 of the old city.

20 Q. Very well. Any other hotels you can recollect, and what, if any,

21 knowledge did you have of the Hotel Argentina?

22 A. The Argentina was also hit though not to the degree of the ones I

23 mentioned. The Hotel Argentina was the base for what international press

24 was there but also for the European Community monitors, and it appeared

25 for a period of time that it was protected or sacrosanct, but it was

1 shelled during the very intensive shelling in the period of the 9th to

2 12th of November of that year.

3 Q. Can you say of any of these hotels whether there was or was not

4 military defence positions within them?

5 A. I didn't see military defence positions inside any of these

6 hotels. I was living in the Hotel Argentina, and I believe I would have

7 seen military positions if they were there.

8 I visited the Hotel Libertas immediately after it had been

9 shelled. It had a lot of refugees there but I didn't see any military.

10 The Grand Imperial Hotel I witnessed being shelled and on fire. I didn't

11 see military positions there. The Hotel Belvedere, which was very badly

12 damaged, was the one nearest to the JNA positions. It was further up the

13 coast than the Hotel Argentina, away from the old city, and we were told

14 there were many refugees there, and certainly we saw some refugees, after

15 it had been hit, at the Hotel Argentina which we were told had been

16 brought in from that hotel.

17 All I would say, in fairness, is that that hotel was the closest

18 position of the territory still occupied by the Croatian forces to the

19 mountain called Zarkovica, which had the JNA guns on it, and certainly

20 there were times when we witnessed gunfire from the Croatian positions

21 going up towards that -- that mountain-top position, and that fire was

22 coming from very close to the coast and was somewhere between the Hotel

23 Argentina and the Hotel Belvedere.

24 Q. As to the Hotel Excelsior, did you visit that? Did you see any

25 defence positions there?

1 A. I did not see any defence positions there.

2 Q. How often did you visit there?

3 A. I visited it two or three times to visit it, but I passed it every

4 day, sometimes several times, because it was on my direct route in and out

5 of the Hotel Argentina.

6 Q. The old town, in the early part of November, was it attacked? Did

7 the position change, and if so, in very short summary, what happened?

8 A. My view from what I saw was that the old town was not shelled for

9 the majority of the time that the rest of the town appeared to be under

10 siege, and that policy appeared to change during the intensive attack in

11 the period I've mentioned, 9th to 12th, and then there was a very heavy

12 sustained attack particularly on the 11th and 12th.

13 Q. What was damaged? Had you seen anything to provoke such an

14 attack?

15 A. I had not seen anything to provoke such an attack. What was

16 damaged, certainly a lot of the old buildings inside were damaged. I

17 visited the Franciscan monastery and saw damage there. I saw a number of

18 other buildings and monuments and some dwellings inside that were damaged

19 as well.

20 Q. We've seen that on the film, of course. So the status of the old

21 town as revealed by flags?

22 A. Yes. The flags - and they were huge flags - were flying over most

23 of the larger buildings inside the old city. You couldn't miss it. They

24 were everywhere.

25 Q. What sort of flags?

1 A. They were UNESCO flags, I believe. They were flags that said that

2 it was protected, that the entire old city was a protected monument.

3 Q. Croatians, so far as you judge from what you were told and what

4 they said to you, thought what of the prospects of the old town being

5 attacked?

6 A. They thought that it would be the last thing to be attacked. They

7 did have a -- they did have some sort of faith that the new areas would be

8 attacked before the old city was attacked, and people talked in general

9 terms of congregating, at the end, in the old city. The old city would be

10 their last place of refuge.

11 Q. Any defence positions in the old city, any outgoing fire, any

12 weapons in or near to it?

13 A. I was there for three weeks. I visited the old city most days and

14 many days I spent all day on the ramparts of the old city. It was a very,

15 very good filming position with its height. I never saw any gun

16 positions, any mortars, any armed men on the ramparts of the old city or

17 in anything that you could call even defensive positions. I never saw any

18 outgoing fire from the old city. There were occasional times when I heard

19 mortars being fired from close to the old city. It's harder to be any --

20 it's difficult to be any more specific than that.

21 Q. And don't guess if you don't feel you can, but if by reference to

22 any of our maps you can estimate how close, tell us. If you'd rather not

23 and would rather put it in some other way, make your own choice.

24 A. It's very difficult. I would be guessing. I can say certain

25 things accurately, like I know that mortars were fired from the gardens

1 that were on the coast quite close to the Hotel Argentina. I know that as

2 a fact. I heard some outgoing fire from close to the old city on a small

3 number of occasions. I can't be any more specific than that.

4 Q. Your observations -- or did your observations exclude or allow for

5 the possibility of people in the old town, old city, being observation

6 positions?

7 A. I believe that might have been happening. I saw people on the

8 ramparts who were men of, I suppose, what you would call fighting age. I

9 didn't know -- I didn't see radio contact or anything like that, but

10 certainly there were people from time to time on the ramparts of the old

11 city. They weren't -- they didn't have weapons, but they did have

12 binoculars.

13 Q. Any justification that you could see for attacking the old town,

14 provoked or --

15 A. No, not at all.

16 Q. The mortar position you were aware of I think was in the city's

17 woodlands. Can you just point on the map where that was.

18 A. Yes, I can try.

19 Q. Other map, I suppose.

20 A. The different map.

21 Q. Thank you. Tab 23.

22 A. Right. I believe that there were mortar positions in this rough

23 area here.

24 Q. The south and west of Hotel Libertas?

25 A. Yes. Yes. The other area that I've referred to that I know as a

1 fact was near the Argentina.

2 Q. Sorry, not the south and west. The map is not or oriented

3 north/south. The position you've marked will actually be to the north of

4 the Hotel Libertas, yes.

5 And you would -- well, you've put in your witness statement that

6 the time it would take to drive from the old town to this position is how

7 many minutes?

8 A. Fifteen minutes possibly, maybe ten, but it's a short drive, and

9 with no traffic on the roads, it wouldn't be any more than 15 minutes.

10 Q. Proximity of that mortar to the water?

11 A. Close. A hundred yards. The trouble with answering questions

12 specifically like that is the nature of the defences, both with small

13 artillery pieces - and there were one or two - as there were with the

14 mortars, was they were very mobile. Nothing stayed in one position for

15 any length of time because it became a target. So it -- they would be

16 fired around -- a volley of rounds would be fired and then they'd be

17 moved. It made it very difficult for us to actually film them because

18 they were constantly on the move.

19 Q. I think you actually observed one cameraman not from the ITN

20 trying to cover the position of the mortar in the woodlands; is that

21 right?

22 A. I did indeed. And he got very close to it, so close that the --

23 the incoming shells became a hazard to him.

24 Q. And a number of incoming shells missed the mortar and fell into

25 the water, I think; is that right?

1 A. That was a very regular feature. Whenever there was any firing

2 from that area, this area, shells were landing in the water around here

3 spectacularly.

4 Q. Quality and quantity of Croatian defenders' weapons, please, in

5 general.

6 A. Not many and very poor. I was privy to a distribution of weapons

7 at one time at a police station, and they were handing out pistols and

8 rifles to people who had to prove various -- had documentation that they

9 were entitled to receive them, and they were small calibre pistols, very

10 old rifles. Even the rifles that I saw in some of their frontline

11 positions looked as though they could have dated back to the Second World

12 War.

13 In terms of bigger weaponry, I was aware of at least two small

14 artillery pieces, at least two, although I believe there were probably

15 more, smaller mortars. I saw a machine -- an anti-aircraft gun, a very

16 old anti-aircraft gun that had been positioned on the back of a truck so

17 that it could be moved around, and it was being used not to shoot against

18 planes but they were attempting to use it to defend themselves against the

19 guns on the hill, not very successfully.

20 Apart from that, one heavy machine-gun I saw on the top of Mount

21 Srdj where the Napoleonic fort is where I spent a little time. The rest

22 was small arms and not very -- not very powerful small arms. And their

23 biggest problem appeared to be a chronic shortage of ammunition.

24 Q. You've spoken of the position taken by the Serb forces at

25 Zarkovica and also of the attack from the sea, from boats, ships. Did the

1 defenders have weapons able to reach either Zarkovica or the vessels at

2 sea?

3 THE ACCUSED: [Interpretation] Mr. May.

4 JUDGE MAY: Just one moment. Before you answer, Mr. Davies. Yes,

5 Mr. Milosevic, what is it?

6 THE ACCUSED: [Interpretation] Mr. Nice was using the term "Serb

7 forces," whereas the witness uses the JNA as a term and the federal

8 forces.

9 JUDGE MAY: Thank you very much.

10 THE ACCUSED: [Interpretation] So --

11 JUDGE MAY: He will have noticed that. It's what the witness says

12 which matters, it doesn't matter what counsel says.

13 Yes, Mr. Nice.

14 MR. NICE:

15 Q. Can you help us, please, with the range of weapons available to

16 the defenders.

17 A. Certainly they had nothing that could reach the warships. In

18 fact, they -- after a very short time, as far as I was aware, they gave up

19 any attempt to hit the ships. The ships could just sit off the coast and

20 fire at will with no risk at all. There was nothing to threaten planes;

21 they could come in at will and bomb.

22 As far as the artillery positions, and particularly the position

23 on Mount Zarkovica, many, many attempts were made over a period of time to

24 hit back at that position, and the vast majority of them fell short, far

25 short, but I did witness at least one hit where they'd managed, the

1 Croatians, had managed to get their mortars close enough to make a hit on

2 the top of the mountain, and we saw an explosion on the top of the

3 mountain. I think the pictures are included in the report.

4 Q. Just the one?

5 A. Just the one that we witnessed. That doesn't mean it only

6 happened the once.

7 Q. Those defending the city, did you see them sometimes in the Hotel

8 Argentina? What sort of people were they?

9 A. That was one of the most striking parts of this experience for me.

10 The -- many of the people that I saw up on the top of the mountain at the

11 fort in the frontline, I would also see later in the day, serving

12 breakfast at the hotels or with jobs around the hotels. When I spoke to

13 them, almost all the people I met were involved in the tourist industry.

14 They were barmen, tour guides, people who worked in restaurants; very,

15 very ordinary people with, as far as I could see, very little in the way

16 of military training.

17 Q. Defending their towns on an organised or an ad hoc or what basis?

18 A. Semi-organised. Certainly there were shifts. You would see

19 people go up to the fort to spend time up there - the fort I refer to is

20 up here --

21 Q. Srdj.

22 A. -- Mount Srdj - and then coming back and doing their ordinary

23 jobs.

24 Q. As to the JNA weaponry and forces, what can you say about that?

25 A. Well, overwhelming. From what I could see, there were planes that

1 were able to come in at will, and did, and attacked specific targets like

2 the fort and radio masts and other targets. They were the ships that

3 could sit at will out in the bay and shell wherever they wanted. There

4 were big guns and tanks on two mountain positions. The one at Zarkovica

5 was the one that I could actually see and you could see from time to time

6 the barrels of the big guns firing down. I didn't get close enough to

7 actually be able to say what calibre of weapon they were, but they were

8 obviously, from their size and how far they were able to fire, they were

9 very heavy.

10 Q. Was it a war? Was it a balanced event? How would you describe

11 it?

12 A. It was an extremely imbalanced event. It wasn't a war. It was an

13 onslaught with the people on the receiving end occasionally using what

14 little they had to fight back. But it wasn't like a two-way traffic in

15 any way. It would be one-way traffic, and very occasionally there would

16 be an attempt to hit back at something, but that would be very sporadic.

17 Most of the time it was simply one-way.

18 Q. Apart from the couple of or few weapons you've described, was this

19 a civilian place, as we've heard, a civilian population?

20 A. It was a civilian population, yes.

21 Q. Did you see any justification for the quantity of firepower

22 directed at it?

23 A. I'm not a military expert, but no, apart from to terrify and, if

24 they wanted to, to capture it.

25 MR. NICE: Your Honour, the balance of the evidence of this

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1 witness is in his witness statement. I think we've already produced it.

2 I'm not sure if we have.

3 JUDGE MAY: Yes, it's been exhibited.

4 MR. NICE: I should, of course, get the witness to confirm, if he

5 didn't do this on the last occasion, that he signed his statement, he

6 signed an addendum correcting it of the 5th of February 2003.

7 THE WITNESS: I did, yes.

8 Q. And with those corrections, subject to any odd things that may

9 have slipped through, one or two I've detected, those statements are

10 accurate?

11 MR. NICE: The only thing I've found that slipped through, Your

12 Honours, is a reference to December on the first page which I suspect is

13 inaccurate. That's December, the first statement.

14 From the witness's summary, with the Court's leave, there may just

15 be one or two other things that I would like to touch on but I think

16 they've nearly all been covered now. Nothing there. Thank you very much.

17 Oh, yes. There's one thing: I think this witness went to

18 Mokosica and saw the JNA had occupied the village. This is paragraph 14

19 of the summary, as Your Honour -- and he saw there soldiers with long

20 beards referred to as Chetniks who roamed the village.

21 Q. Is that correct?

22 A. Some of them. Some of them. I also saw some very -- very well

23 organised, what looked to be what I would call regular army units, but the

24 people that I saw rounding up the inhabitants and forcing them out of the

25 cellars where they'd taken shelter were the ones that I described there.

1 Q. The witness also saw, following the November attacks, people dying

2 and injured because they'd been hit by shrapnel and saw people in the

3 hospital, most of them civilians, many of them elderly. Would that be

4 correct?

5 A. That's right, yes.

6 Q. On the 11th of November, the witness stopped counting when he

7 registered a thousand shells falling on Dubrovnik. Would that be correct?

8 A. Yes. That's a thousand, a total from land, sea and air.

9 Q. On the 14th of November, when the ECMM mission left Dubrovnik by

10 ferry, as you explained on the last occasion, you and your cameraman were

11 the only presence in Dubrovnik, and there were a lot of civilians then

12 from surrounding villages who had left with a contingent of

13 internationals; is that right?

14 A. Yes. It appeared as if some sort of cease-fire had been

15 negotiated to allow women and children and I suppose what you would call

16 neutrals to leave.

17 Q. Because there was a sense of doom in the city?

18 A. There was a terrible sense of doom. People were fighting to try

19 and get their children on the boat that weren't on the list.

20 Q. Thank you very much. Wait there, please. You'll be asked some

21 more questions.

22 JUDGE MAY: Yes, Mr. Milosevic.

23 Cross-examined by Mr. Milosevic:

24 Q. [Interpretation] You claim that up until the 30th of September,

25 when the siege of Dubrovnik started, that you were in Zagreb and that that

1 is how you covered the development -- developments in different parts of

2 Croatia; is that right?

3 A. For a period of time, I had been based in Zagreb and, yes, that's

4 how I'd been covering the -- I'd been travelling from Zagreb to places

5 like Osijek and Vukovar to cover it. My company had another correspondent

6 who was based in Belgrade who was doing the same but from the other side.

7 Q. And your reporting during that period of time, did it come down to

8 immediate reporting from the spot? Did you report about events developing

9 on the ground, or did you use some other sources of information?

10 A. It was mostly from developed -- from material we filmed ourselves

11 on the ground where I'd been present. Occasionally we would add to that

12 an agency picture which would be incorporated into the report. But it

13 would be agencies to which we were affiliated and have a trust and a

14 relationship. By that I mean Reuters and WTN, as it was.

15 Q. So your reporting from Dubrovnik, or link to Dubrovnik, began on

16 the 31st of October 1991 when you sent out a report about travelling to

17 Dubrovnik and how the ship was searched; is that right?

18 A. That's correct, yes.

19 Q. Is it also correct that you travelled in a convoy to Dubrovnik

20 which was led by Mesic and that next to you or by you there were 200 or

21 300 other people, singers, musicians, and others who accompanied you?

22 A. Yes. It was a flotilla. It was led by the large ferry the

23 Slavija, but there were a lots of small boats as well, and there were a

24 number of well-known people, some politicians and other artists and

25 singers amongst the people. It was a -- appeared to be some sort of a

1 movement to protest against any damage to Dubrovnik.

2 Q. Were you acquainted with the contents that the convoy was

3 carrying?

4 A. I wouldn't have had a complete knowledge, but I was our -- our

5 equipment was in the hold of the main ferry, so I could see quite a lot of

6 what was there, and what I did see included a lot of food and medical

7 equipment.

8 Q. All right. In view of the fact that as one of the travellers in

9 this convoy you didn't know what the convoy was actually transporting, do

10 you think that the navy that searched the convoy, and you reported on

11 that, could have known about that without having searched it?

12 A. No, they couldn't have known what was in the hold without having a

13 look.

14 Q. When did you write your first report about the first shelling of

15 the city?

16 A. I believe it would have been the 1st or 2nd of November. It would

17 have been within a day of arriving. The very first report that we sent

18 out was the report which had all the pictures of the convoy, the ship

19 sailing in and being stopped and searched and being allowed in. The

20 second report that we sent out would have been showing the first shelling,

21 though the shelling was very light, by comparison, during those early

22 days.

23 Q. Well, the topic of your first report was the effect of the

24 blockade of Dubrovnik, is that right, what effects that had?

25 A. Yes.

1 Q. However, in your statement you say that there was an exchange of

2 fire; is that right?

3 A. I believe that's right, yes.

4 Q. Do you remember, then, how the conflict actually started at the

5 beginning of November? Who was the first to shoot?

6 A. I'm not sure I would have been in a position to know that. I

7 certainly wasn't aware of being somewhere where suddenly, from a position

8 of relative peace, somebody started shooting. Rather, it was -- I was in

9 the city with my crew, filming, and we heard gunfire and went as close as

10 we were able to -- in order to film it, and the exchange was already

11 happening.

12 Q. But you do not know the answer to the question who was the first

13 to open fire?

14 A. No. I would not have been in a position to know who started the

15 shooting.

16 Q. And from which positions did the Croatian forces open fire?

17 JUDGE MAY: Can you answer that, Mr. Davies, or not?

18 THE WITNESS: I can answer it but I can't answer it. I wouldn't

19 have known from which positions either side started the initial exchange

20 of fire. All I would have known was that there was -- there was fire. I

21 would have heard the shooting and then I would have made my way to

22 somewhere where I could see what was happening, but certainly I -- it

23 would have been quite a freak if I'd have been in the actual position to

24 witness the very first shots being fired.

25 MR. MILOSEVIC: [Interpretation]

1 Q. But, Mr. Davies, your first report shows undeniably as a fact that

2 in Dubrovnik there was the presence of armed formations that were shooting

3 at the JNA. Is that right or is that not right?

4 A. I can't -- I can't remember the exact content of the first

5 report. There were many reports. But certainly there were -- there was

6 an exchange of fire. The Croatians were taking part in that exchange of

7 fire, and they would obviously have had to be armed to take part in that

8 exchange of fire. So to that degree, the answer to the question is yes.

9 Q. And where were you on that first day, at which position, the first

10 day when the shelling took place, the one that you reported on?

11 A. I would have been -- initially I was -- is that me?

12 Initially I was in the old city. Well, initially I was in the

13 Hotel Argentina, then later in the old city. And we travelled down to the

14 port area.

15 Q. All right. In your report from that day, you say that the JNA was

16 shelling in order to break the will of the defenders. Doesn't this report

17 undeniably show that later, on the 3rd of November, there was still

18 exchange -- there were still exchanges of gunfire? Where did the shooting

19 come from? You were there.

20 A. It's very difficult to answer exactly where the shooting came

21 from. On the occasions that you could actually see guns being fired, then

22 we filmed them and it was in the report, along with a description of from

23 where the shooting came from. Much of the time you heard incoming shells

24 without necessarily knowing where they'd been fired from. It's certainly

25 not possible to exactly identify where every, or indeed many, of the

1 shells were being fired from, apart from to say though that they were

2 coming from outside the city and being fired into the city.

3 Q. All right. Could you identify where the shellings were coming

4 from from town and what the targets were that were engaged from the old

5 town?

6 A. If by "engaged from the old town" you're saying that there was

7 shooting from the old town going out, in other words Croatian shooting, I

8 didn't witness any gunfire from the old town ever.

9 Q. Mr. Davies, you mentioned that there were -- old city walls that

10 were built to stop arrows cannot resist the military equipment of the

11 twentieth century. Well, what are the walls that were damaged by this

12 equipment?

13 A. They were the walls of the old city. In fact, the words I used

14 were that, "Walls built to withstand arrows and spears were now being

15 subjected to --" I didn't say they were being destroyed by, I said they

16 were being subjected to -- "twentieth century weaponry." And it is true

17 that the walls built to withstand spears and arrows in many cases also

18 withstood the missiles that were fired at them, although some damage was

19 done to the outside of the city. There was, of course, worse damage

20 caused when the missiles went over the walls and into the city itself.

21 Q. All right. In your report, you call exchanges of gunfire as

22 "breaking the will of defenders." As an experienced war reporter, as an

23 experienced journalist, what is the kind of impression that your readers

24 can gain if you use this kind of window dressing?

25 JUDGE MAY: Not for the first time it is you who is

1 misrepresenting the evidence. The evidence is not that it was an exchange

2 of gunfire which was breaking the will or intended to break the will of

3 the defenders, it was the assaults of the shelling of the JNA. That is

4 what the witness plainly says.

5 Now, you're trying to misrepresent it, as I say, not for the first

6 time. We will ask the witness to clarify the point.

7 What the accused is putting, Mr. Davies, so you can deal with it,

8 is that this was no more than an exchange of gunfire, and if it was an

9 exchange of gunfire, it would be a mischaracterisation as describing it as

10 intended to break the will of the defenders. That's the point which he

11 seeks to make.

12 Now, perhaps you could answer that very shortly.

13 THE WITNESS: It certainly wasn't an exchange of gunfire in terms

14 of there being any sharing of it. It was an extremely one-sided business,

15 and the firing that did come from the defensive positions was occasional,

16 was sporadic, was not very effective because of the weaponry they had, and

17 it was an altogether one-sided business. And if I characterised the

18 constant bombardment of what was largely a civilian population as an

19 attempt to break the will of the defenders, then I think that's quite an

20 accurate description, and certainly it was my opinion at the time, and I

21 was in the centre of it and I think well qualified to make that judgement.

22 MR. MILOSEVIC: [Interpretation]

23 Q. A short while ago, Mr. Davies, we clarified one thing that was not

24 being contested?

25 THE ACCUSED: [Interpretation] Mr. May, I'm referring to the

1 reports that this witness sent from Dubrovnik. I'm not only referring to

2 his testimony here. So please bear that in mind. Let's not create any

3 confusion between what he said here just now and what he reported on as a

4 journalist previously.

5 Q. So already from the first statement we concluded as a fact, as an

6 irrefutable fact that there was a presence of armed units in Dubrovnik who

7 were opening fire from the town itself. Did I hear you well? Is there a

8 report of yours to that effect or are you denying it now?

9 A. There were armed people inside Dubrovnik, not necessarily, in the

10 vast majority of cases, what you would call an organised unit. Most of

11 them appeared to be just ordinary citizens.

12 And yes, at times they did attempt to fire back, having come under

13 very, very heavy fire. At no time that I was there did I ever witness the

14 people or the defenders, or however you would like to characterise the

15 Croatian forces that were there, opening fire first. Their attempts at

16 taking part in the conflict, if you like, were minimal and very

17 ineffective, but even so, they only happened after they'd been subjected

18 to heavy bombardment.

19 Q. All right. Did I hear you well when you answered a short while

20 ago that you did not know who was the first to shoot?

21 A. You did.

22 Q. I'm talking about the fourth day of the shelling when you reported

23 that two persons were killed. Who were these two persons? Was that

24 contained in your report, who those two persons were, that is?

25 A. It was not, and the reason it was not contained in the report was

1 that I don't think at that time I was aware. All I knew from talking to

2 the hospital was that two people had been killed; a number of people had

3 been injured and that two had been killed at that time. That was the

4 amount of the information I had at the time I had to send the report out.

5 Q. Did you establish later on whether these two persons had been

6 armed persons, members of the Croatian Guards Corps, foreign mercenaries,

7 or were they ordinary civilians? Because you referred to two persons

8 only; isn't that right?

9 A. I did refer to two persons only. I did not establish the

10 identities of those two. Events moved on very quickly from then onwards.

11 If it is in some way an answer to what you're saying, at times I was aware

12 of exactly who people were who died. I saw civilians who died, old man

13 knocked off his bicycle, children. I also saw a small number of people

14 who had been fighting, who had been killed in the fighting, and I was

15 aware of one person in particular who I'd met on one day who died later

16 that day who had been involved in the fighting. So the answer to your

17 question is that both civilians and people who had been involved in the

18 fighting died.

19 Q. So both soldiers and civilians.

20 A. Both soldiers and civilians died, yes.

21 Q. When describing that fourth day, you said that the JNA targeted

22 Croatian artillery positions that were hidden in the city forest. I

23 assume that you are referring to the city park. Isn't that right?

24 A. I believe so, yes.

25 Q. So the JNA targeted the Croatian artillery because it was hidden

1 in the city park, and that is from where they were shooting at the JNA.

2 Was that your conclusion?

3 A. If the city park is the area that I was referring to before, which

4 is the area sort of around here, then that would be the -- that would be

5 my conclusion.

6 Q. Why didn't you mention that in your report?

7 A. I thought we just agreed that I did, that they were targeting guns

8 that had been in the woodland. I thought I said that.

9 Q. But you did not mention that this artillery was shooting at the

10 JNA. That's what I'm asking you. We did agree a short while ago that

11 that is from where fire had been opened at the JNA.

12 A. I would think that -- I would think that it's fairly obvious if

13 there were -- very difficult to remember the exact phrase I used when it's

14 not in front of me. Certainly by saying that the guns that were hidden in

15 the woodland were being targeted would seem to me to be giving the

16 impression that those guns were there to be used.

17 Q. So, Mr. Davies, on the fourth day of the blockade we actually

18 still have an exchange of gunfire, don't we; isn't that right?

19 A. Well, it would seem to me that that really depends on how you

20 define an exchange of gunfire. If an exchange of gunfire means that two

21 sides fire at each other and one doesn't take into account the

22 overwhelming amount of firing that's being done by one side and the

23 defensive minimal amount that's being done by the other, then, yes, you

24 could say it's an exchange of gunfire, a very one-sided exchange but

25 nevertheless an exchange.

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1 Q. All right. But as a journalist, I assume that you were informed

2 in detail that the JNA was broadcasting radio messages saying that there

3 should be no shooting at the JNA and that not a single bullet would be

4 fired at anyone if shooting against the JNA ceased. Do you remember these

5 messages?

6 A. I do not remember those messages, no. They didn't -- they didn't

7 reach me.

8 Q. All right. The main targets of the JNA, according to your report,

9 were positions of the Croatian defenders, as you had put it, on the

10 fortress of Srdj. Is that right?

11 A. It appeared to be. I can only describe what I saw, but I did see

12 it for a period of time, and it certainly seemed to be the main target for

13 a long period of time, yes.

14 Q. All right. Is this also the position from where the JNA members

15 were shot at or are you denying that as well?

16 A. I'm not denying it. They may well have been shot at from there.

17 Certainly there were people -- there were Croatians with guns up there. I

18 didn't actually see any gunfire coming from the Croatian side on top of

19 the fort, and when I went to up to the fort - and I did go up to the fort

20 a number of times - what I saw mostly was the Croatians under very strict

21 orders not to fire, not to fire unless they actually thought there was a

22 great danger of the fort falling, and certainly not to fire unless they

23 were fired at first, and not to use the ammunition which was very, very --

24 in very short supply.

25 But most of the time they were spending in -- there were cellars

1 underneath the fort, and they were having to come down from the open

2 positions on top of the fort into the cellars to take shelter because the

3 bombardment was so strong that you wouldn't have survived if you stayed up

4 on the top position.

5 So getting back to the answer to your question, I didn't actually

6 see guns being fired from the defensive positions at any of the times that

7 I was there, but yes, they did have guns.

8 Q. So you claim that they had received orders not to shoot, but you

9 are not saying that they actually did not shoot; right?

10 A. I'm saying I was told they had orders not to shoot, and during the

11 times that I was there and the times that I witnessed, they didn't shoot.

12 What I can't say is what they did during the times that I wasn't there or

13 wasn't witnessing what was happening.

14 Q. While you were there, did they shoot at you? Were you shot at

15 from JNA positions?

16 A. Not at the time that I was on the fort. Not on Srdj. I was not

17 shot at.

18 Q. So when you were at Srdj, the forces from Srdj did not shoot at

19 the JNA, and the JNA forces did not shoot at Srdj. So let us strike a

20 balance there. Is that right?

21 A. That is true. There was an occasion, however, when I was up there

22 when we had to take shelter because the -- if the fort was bombed. And we

23 went into the cellars, spent some time there.

24 Q. Is it correct, Mr. Davies, that in the immediate vicinity of the

25 Dubrovnik hospital there were also Croatian forces positioned there and

1 that from these positions fire was opened at the JNA too?

2 A. I don't know that for sure. I didn't see it. All I can answer is

3 that I do know that there was a lot of fire emanating from around the

4 hospital position, and I didn't -- I didn't see outgoing fire, but I did

5 hear that there had been a time when the mobile mortar positions had

6 operated close to there and that that might have been in some way involved

7 in some of the fire.

8 A colleague of mine spent a lot of time at the hospital, and he

9 was certainly aware of the grounds of the hospital coming under fire on

10 several days.

11 Q. All right. But now we've come to the next day. We've come

12 already to the 7th of November. And as regards every particular day, we

13 come to the conclusion that there were exchanges of gunfire, that there

14 was shooting from Dubrovnik against the JNA. You were testifying to the

15 effect that the JNA was targeting Dubrovnik, but we have established that

16 the JNA was being targeted every day from Dubrovnik too.

17 JUDGE MAY: Do you accept that characterisation of your evidence?

18 Is that what happened?

19 THE WITNESS: No, not really. If he makes the point that -- he

20 keeps going back to that there was an exchange, but it really comes down

21 to the definition of what an exchange is. At certain times there was a

22 small amount of what I would characterise as defensive gunfire going out

23 from Dubrovnik, but to my mind, that isn't an exchange.

24 MR. MILOSEVIC: [Interpretation]

25 Q. All right, that's your judgement, but let's not deal with your

1 judgements at this point. The fact remains that the JNA was shot at every

2 day from Dubrovnik. Are you denying that fact?

3 A. No. If I could just go back a little bit. No, I'm not denying

4 it. In fairness, I think there were probably odd days when there was

5 barely any shooting on either side. So just -- it would be wrong to say

6 that both sides were shooting at each other every day. I think there were

7 probably odd days where, for various reasons and what appeared to be talks

8 going on, that there wasn't firing.

9 Q. And is it true that there was never any firing from the JNA on the

10 day when there was no shooting from the Croatian National Guard Corps,

11 from Dubrovnik?

12 A. I wouldn't say that, no. No. But again, it's very difficult for

13 me to say who fired the first shot of any exchange. It's easy for me to

14 say, from taking an elevated position for a day, that Dubrovnik suffered X

15 hundred or over a thousand shells fired at it and probably fired a dozen

16 or so going back. That's easy. What's impossible for me to say is who

17 fired the first shot on any given day. I don't think anybody can say that

18 other than the military commander responsible.

19 Q. In your report of the 7th, you say that five shells fell on one

20 house, five mortars. Now, are you saying this on the assumption that you

21 were reporting exactly? And if you were, was that selective shelling or

22 ad hoc shooting of projectiles?

23 A. I don't know if it was selective or ad hoc. It certainly all

24 seemed to land in the same area. Again, all I can really say is that it

25 was what we witnessed. It was --

1 Q. All right. Well, were you able to establish what was in that

2 house, the house that was selectively shot with the five mortars or

3 shells? Did you ascertain whether fire had in fact been coming from that

4 particular house on the opposite side's positions?

5 A. I don't believe that fire -- I don't believe that fire had been

6 coming out from that house or, judging from its position, that it would

7 have been in any -- any sort of position to inflict any damage on the JNA

8 forces. But again, I couldn't be a hundred per cent sure. We were

9 filming from some distance away at the time of the impact. We would go to

10 investigate immediately after the shelling stopped. You would never be a

11 hundred per cent sure that something wasn't happening before you started

12 filming. It would have been the first incoming shell that would have

13 attracted our attention to it and then you would have very soon noticed

14 that this particular area was being given a particularly bad treatment.

15 Q. All right. Let's move on with our questions, a few more. Let's

16 just ascertain one point: On the 8th of November, you were at Mount Srdj,

17 were you not?

18 A. Yes, I believe I was.

19 Q. And you saw members of the Croatian forces there, and according to

20 what you yourself say, they were armed with rifles, heavy machine-guns,

21 and mortars; is that right? Just yes or no, please.

22 A. No, but I can -- I can qualify that no answer for you, if you'd

23 like. I didn't see heavy machine-guns and I didn't see mortars. I saw a

24 heavy machine-gun. I saw a mortar.

25 JUDGE KWON: Mr. Davies, you have your statement in front of you?

1 THE WITNESS: I don't, no.

2 MR. MILOSEVIC: [Interpretation]

3 Q. All right. So you say you saw one machine-gun and one mortar.

4 JUDGE MAY: Let the witness have his statement. Page 4.

5 THE WITNESS: Thank you.

6 JUDGE KWON: Could you locate the paragraph number 14.

7 JUDGE MAY: It seems to be page 6 on your copy.

8 THE WITNESS: Right. I have it. Right. My statement seems to

9 fit in with my memory. I saw one heavy machine-gun, and I also saw a

10 mortar being moved.

11 MR. MILOSEVIC: [Interpretation]

12 Q. All right. That means they had rifles. How many of them there?

13 That is to say, members of the Croatian forces, how many?

14 A. I think during the course of the day, I saw around two dozen.

15 They constituted two shifts. There appeared to be about a dozen in each

16 shift.

17 Q. All right. The fact that you saw one heavy machine-gun and one

18 mortar does not mean that you necessarily had to see all of them, or do

19 you assume that what you saw was all there was?

20 A. No. I've learnt not to make assumptions. I saw what I saw. That

21 doesn't necessarily mean that they had more or less.

22 Q. Well, they couldn't have had less than what you saw. They could

23 just have had more. But tell me, is it true that they said whoever

24 controls Srdj controls Dubrovnik? Is that what was said?

25 A. I think I said it. It was one of those sort of flowery

1 journalistic phrases that you use.

2 Q. Well, is it true that in your daily report of the 8th of November

3 you listed that the targets of attack were the most important positions,

4 as you yourself say, of the Croatian defenders on Napoleon's fortress; is

5 that right?

6 A. That's right.

7 Q. That means that the JNA was shooting the fire positions, the

8 firing positions of the Croatian forces themselves. Isn't that right,

9 Mr. Davies?

10 A. They were certainly shooting against the positions where the

11 Croatian armed men were. I wouldn't characterise them as being firing

12 positions. I didn't see them firing, and they didn't appear to have

13 anything that was big enough or heavy enough to fire from those positions

14 at the nearest JNA positions. In fact, I remember seeing one mortar that

15 I did see being moved away down the mountain so that it could be moved

16 close enough to be used if it was going to be used.

17 Q. All right. Let's sum up the 9th of November, just like the

18 previous days. Is it true that on the 9th of November as well there was

19 an exchange of gunfire between the federal forces, as you call them, and

20 these other forces concentrated around Dubrovnik?

21 A. The 9th of November was when what seemed to be the heaviest

22 attacks started, and yes, the people defending the city will have fired

23 back. But this was the start of an incredibly one-sided attack coming

24 into the city of Dubrovnik.

25 Q. So one-sided, although there was an exchange of fire. And is it

1 true that fire was opened precisely from the Napoleonic fort that you

2 mentioned?

3 A. I didn't see fire being opened up from the fort, no. It may well

4 have happened, although the fort was taking a terrible battering that day.

5 From my memory, I think it was being bombed by planes and being shelled,

6 and it was around that time that they actually pulled their people back

7 down off the fort because it was impossible to survive staying up there.

8 Q. And is it true that you say that with artillery fire they weren't

9 able to hit the top of Mount Zarkovica and the gun battery there? I'm

10 talking about your report, referring to that.

11 A. Certainly that's what we saw. We saw some rounds of some

12 description being fired up Zarkovica and falling short of the JNA

13 positions, yes.

14 Q. Weren't hitting them; right. And at the end of your statement you

15 say that there was fighting in the hills as well. Is that right?

16 A. We could see rounds being fired in the hills, yes. It was getting

17 dark. It was impossible to characterise who was doing what to who, but

18 there was gunfire up there, and you could see the glowing tracer rounds

19 going through the trees.

20 Q. All right. And tell me this: Can we, on the basis of that,

21 conclude that apart from the town and its environs, the fighting also took

22 place in the hills?

23 A. There was times when the fighting took place in the hills, yes.

24 Q. And do you happen to know that from this village called Bosanka

25 which you mentioned between Srdj and Zarkovica, that sniper fire was

1 opened targeting JNA positions? Do you know about that fact, and was that

2 something that you knew about then?

3 A. I didn't know it as a fact, but that was the direction that this

4 gunfire that we were hearing at night was coming from.

5 Q. All right. Now, as far as I can see, as the JNA was to have taken

6 over the village within the space of 24 hours, who did they fight against

7 to take control of the village for those 24 hours? Who were they

8 fighting?

9 A. Again, I didn't witness it. There was fighting up in those hills,

10 and that's as much as I can say. I heard it. I didn't witness it. I

11 certainly can't say who they were fighting without guessing.

12 Q. All right. And in your report of the 9th of November, did you

13 state that the JNA shelled the Napoleonic fort as one of the strongest --

14 as one of the strongholds of the Croatian forces and the mightiest

15 stronghold, in fact? In your 9th of November report. That's what I'm

16 referring to. You said that the JNA attacked the Napoleonic fort which

17 was one of the most vital positions of the Croatian forces, the strongest.

18 A. Yes, I think I called it a stronghold or something like that.

19 Yes, I would have said that. I did say that.

20 Q. So we've already established that on the 8th and 9th of November,

21 there was an indeed an exchange of gunfire; right?

22 A. I think we're back to that same dispute --

23 JUDGE MAY: There's no point again. Mr. Milosevic, just making

24 the same point over and over again doesn't assist. No doubt you think it

25 does. It doesn't.

1 THE ACCUSED: [Interpretation] I am not repeating at all. I am

2 taking things day by day, Mr. May, because there was an exchange of fire

3 on every single day. So does that mean that there was an exchange of

4 gunfire on the 10th of November as well?

5 JUDGE MAY: No. And the point is this: The witness says that you

6 misrepresent things when you describe it as an exchange. So we go round

7 and round the same point. You can call your own evidence in due course.

8 Let's move on.

9 MR. MILOSEVIC: [Interpretation]

10 Q. Very well. Mr. Davies, I'm not going to dwell on this. There is

11 enough material and footage taken by you. All I would like to ask you is

12 for you yourself to read out what I have noted in red, that one paragraph,

13 and then would you return the copy to me. It says Paul Davies, ITN. I

14 have marked it in red, and you can see the footage of the explosion at

15 Zarkovica and what you yourself said.

16 THE ACCUSED: [Interpretation] Could I ask the usher to hand this

17 document over to Mr. Davies for him to read out what he himself has

18 written. Could you put it on the ELMO, please, as well. The passage

19 marked in red.

20 JUDGE MAY: Mr. Davies, you are going to be handed a document.

21 First of all, identify it. It is asserted that it is a report of what you

22 said. I don't know if we have the date of it, but perhaps you could tell

23 us if you recognise the document and what it is and whether it represents

24 what you've said.

25 THE WITNESS: Yes. I recognise this. This is part of -- I think

1 it's part of the long report that we saw part of in court last week.

2 JUDGE MAY: Could you tell us what day that was, if it's dated.

3 THE WITNESS: I'm not sure that it is dated. I certainly can't

4 see it.

5 JUDGE MAY: Well, if it's not apparent. So you're able to

6 identify it, and it does accord with what you've said; is that right?

7 THE WITNESS: It does indeed. And I think I've referred to it

8 earlier today as well. I at no time have been trying to say that gunfire

9 did not come out of the old city.

10 MR. MILOSEVIC: [Interpretation]

11 Q. Mr. Davies, please, would you be so kind as to read out your own

12 words there on the document. And I've marked the passage out in red. The

13 photograph and the text. Would you read it out loud, please, your own

14 text.

15 A. Indeed. "There was a notable success for the Croatian defenders

16 when their guns hit the nearest federal artillery battery on Mount

17 Zarkovica, igniting an ammunition dump, but their celebration was cut

18 short as stray bullets ricocheted around the ramparts of the hold city.

19 Shells falling into Dubrovnik's main harbour hit one of the ferries that

20 had been unable to leave port because of the naval blockade."

21 Q. Mr. Davies, you used the expression, if I have understood you

22 correctly, "ricocheted." That's the expression you use in that passage.

23 A. Indeed.

24 Q. Is that right?

25 A. It is. It's -- that's what it says here, and I have no reason to

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1 believe that that's not right.

2 Q. Well, all right then. That means that when that ammunition dump

3 was hit, then different projectiles dispersed all over the place and over

4 the old town as well; isn't that right?

5 A. Not necessarily. That's not my memory of it. I don't think it

6 was close enough for -- for that to be what was happening.

7 What I do remember - and again it's just straight from my memory -

8 is that we were filming from the ramparts of the city, we saw this -- this

9 hit, we saw the explosion and then a number of smaller explosions which is

10 why - and it is an assumption - that it was an ammunition dump that went

11 up, but it looked exactly like other ammunition dumps that I've seen being

12 hit, and a short time later there were some rounds hitting the rampart. I

13 didn't know what they were, but I know we were ducking down because

14 something -- something was hitting close to where we were. And indeed,

15 the pictures that we broadcast showed that. But I wasn't of the

16 impression that they were coming directly from the top of the -- from the

17 mountain and from this explosion. I would -- it's possible, I suppose,

18 but I didn't make that link at the time.

19 Q. Yes, but doesn't your text speak about the event? As I understood

20 it -- read it to yourself once more, please -- what happened was they hit

21 the Croatian forces, the warehouse or, rather, the ammunition dump at

22 Zarkovica, and once it had exploded, there were stray bullets and

23 dispersed bullets all over the place, all over town, mortars flying up

24 from this ammunition dump which had been hit, and that is how these

25 numerous but small-scale damages on the roofs, et cetera, took place and

1 occurred. They're not artillery hits, in fact, but you used the term

2 "ricocheted," so it was the ricocheting of these bullets that caused the

3 small damages; not the bombing and not the shelling.

4 A. No. That's absolutely not the case. This incident that's

5 described here, of ricocheting, was a small-scale thing that happened

6 quite soon after the explosion on top of Zarkovica. The larger explosions

7 and the damage that was done that day happened before this and happened

8 after this. That wasn't the incident that caused all of the damage at

9 all. I'd be quite surprised if it caused any real damage. It's quite a

10 way, from the top of that mountain, for things to be dropping in the parts

11 of Dubrovnik that were damaged. I just don't think that could have been

12 the case.

13 Q. Mr. Davies, all I was trying to do was to have you yourself read

14 out your own words. I'm not saying anything one way or another, but you

15 were there and that's what you wrote. But let's not waste time. Let's

16 move on. You say, and this refers to the 10th of November, and I'm

17 quoting the last paragraph of page 5 of your statement: "In addition to

18 that, the frigate of the federal navy -- moreover, the federal navy

19 frigates fired from the sea but these naval frigates were totally out of

20 range of Croatian defenders' guns," as you call them. "The day ended with

21 pitched battles at the hilltop."

22 So fire was opened from the sea. Those who were on land were not

23 able to reach these positions, the range of the guns were not long enough,

24 of the frigates as you call them, although they weren't frigates in actual

25 fact. They were patrol boats along the blockade. And the day ended and

1 I'm quoting you here, with "pitched battles" as you yourself state, at the

2 hilltop, or decisive battles. Do you say that on the 10th of November

3 there was no exchange of gunfire between the forces in Dubrovnik and the

4 JNA?

5 A. Do I say there was no exchange of gunfire? There was gunfire.

6 There was gunfire from one side coming in in large quantities. There was

7 some gunfire going out, and again if we want to go back to what

8 constitutes an exchange, then we can do, but I just wouldn't want to

9 characterise it as any sort of this is two sides slugging it out on any

10 sort of equal terms. It was an onslaught from outside with occasional

11 resistance from inside.

12 And when I talked about "pitched battles," this was not decisive

13 battles or whatever. It was gunfire, and again, night-time gunfire where

14 you could see hundreds of tracer rounds being fired through the trees.

15 JUDGE MAY: We're going to adjourn now. It's time for the break.

16 Mr. Milosevic, we will give you another 20 minutes, if you require it, to

17 cross-examine after the adjournment.

18 THE ACCUSED: [Interpretation] Well, I need a little more time than

19 that, Mr. May, more than 20 minutes.

20 JUDGE MAY: It will give you more than the hour which we usually

21 give for these Rule 92 bis witnesses. It will give you 70 minutes to the

22 40 or so minutes the Prosecution had. Yes.

23 MR. NICE: Your Honour, it's a question of how to use the balance

24 of the morning. I'm anxious to get on with the financial argument. I

25 don't know if you have time for that. I hope so. It's been very fully

1 argued.

2 JUDGE MAY: Let's begin that after.

3 MR. NICE: And then we'll start Ambassador Okun first thing

4 tomorrow morning.

5 JUDGE MAY: Very well.

6 MR. NICE: He has a university class he has to make, if at all

7 possible, next Monday, in America.

8 JUDGE MAY: You said he was an ambassador.

9 MR. NICE: But he's now in retirement and he teaches.

10 JUDGE MAY: We'll adjourn.

11 --- Recess taken at 12.19 p.m.

12 --- On resuming at 12.42 p.m.

13 JUDGE MAY: Yes, Mr. Milosevic.

14 THE ACCUSED: [Interpretation] Mr. May, before I continue, may I

15 just say one thing? This report whose authenticity was confirmed by the

16 witness was one that I received in accordance with Rule 68, and the page

17 is 0042783. And I don't want to challenge this sentence - we have it

18 here, we also have it on videotape - but it says: "When this ammunition

19 dump was hit, it says, [In English] [Previous translation continues]...

20 were cut short as stray bullets ricocheted around the ramparts of the old

21 city." [Interpretation] That is why I want to have this admitted into

22 evidence, this particular page that I quoted which I received earlier.

23 JUDGE MAY: If we admit anything, we'll have to admit the whole

24 report.

25 MR. NICE: Can I help? This passage comes from a part of the film

1 which was edited for reasons of brevity. I've got the whole video

2 available, and I was going to offer it to the Chamber in re-examination.

3 I think it would involve probably listening to about another five minutes

4 if we took all the lead-up to the part of the film which has been played

5 so far.

6 JUDGE MAY: Very well. And would -- the report of it then could

7 conveniently be exhibited, attached to the tape?

8 MR. NICE: Your Honour, I think the position is that there are no

9 -- this passage has gone as Rule 68. The rest of the video will come

10 without a transcript because it's in English. But of course if it's

11 played over the machinery here, there will be effectively a transcript of

12 the whole report from LiveNote.

13 JUDGE MAY: Well, why don't we have this one too? It's 395A.

14 MR. NICE: Absolutely.

15 JUDGE MAY: Give it that number, please, if that's the appropriate

16 number. I'll check with the Registry.

17 THE REGISTRAR: Yes, Your Honour.

18 JUDGE MAY: Yes. We will admit that.

19 THE ACCUSED: [Interpretation] I just wish to note that I quoted it

20 as I received it according to Rule 68. I did not shorten anything. I

21 quoted the exact wording that accompanied the images of the explosion at

22 Zarkovica.

23 MR. MILOSEVIC: [Interpretation]

24 Q. Now, tell me, the recording we saw here on Friday the 25th of --

25 the 21st of February, when was it actually done, Mr. Davies?

1 A. The -- the recording that we saw in court last week, that was put

2 together over a period of days that started, I believe, on the -- either

3 the 8th or the 9th of November, and it ends on the 12th of November. It's

4 in chronological order. We were unable to get our news reports out at the

5 time. All the television transmitters and masts and the other various

6 routes we had of getting material out had been stopped. So we were

7 compiling the story of each day and then adding to it on the following

8 days. What effectively went out was the diary of four or five days.

9 Q. All right. I understand that. My question was just when you

10 actually made this. I have to save time, and please bear that in mind.

11 The ITN recording, was it shown in its entirety?

12 A. Yes, it was.

13 Q. What we saw the other day is your entire recording?

14 A. No, it's not. That was -- I think we saw three minutes, four

15 minutes, something like that. The entire recording is about 11, 12

16 minutes long.

17 Q. All right. Is it correct that in your original recording you did

18 record the artillery attacks of Croatian forces against the JNA, inter

19 alia, Zarkovica and the others?

20 A. Certainly the episode that showed the position on the top of

21 Zarkovica being hit was in the recording.

22 Q. Later on, what we see around the city walls of Dubrovnik, is that

23 what fell all around the walls after the ammunition dump was blown up?

24 A. No.

25 Q. Tell me, from which position did the Croatian forces hit the

1 ammunition dump that you referred to?

2 A. I can't be sure. I could guess, but I certainly can't be sure.

3 Q. Can the Croatian artillery positions be seen on any of your

4 footage, either that that was broadcast or that that remained unbroadcast?

5 A. No. No.

6 Q. Were you in a position to film that?

7 A. No, never. Occasionally in a position. It didn't happen very

8 often that there was fire. When it did happen, occasionally we were able

9 to film the fire and the explosions and the damage, as in the case of this

10 one particular hit. We were not in a position to film the actual guns

11 firing. As I believe I explained earlier, they were very mobile, moving

12 around, firing, and then going somewhere else.

13 Q. Tell me, did somebody forbid you to film that?

14 A. No. No.

15 Q. In your original recording, in the integral footage, that is, are

16 there any uniformed, armed Croatian forces within the old city walls? Is

17 that on that footage?

18 A. I don't believe so. It's very difficult to remember everything

19 that we filmed that wasn't broadcast so many years ago, but I don't

20 believe that we did film any uniformed in the old city. We certainly

21 never saw, or we would have used it, anybody in gun positions or firing,

22 or even uniformed people on the parapets. There were no restrictions on

23 us filming, and if we'd have seen that, we would have filmed it and used

24 it.

25 Q. All right. I have the impression, having seen all the footage you

1 made, that the camera when you were actually doing the filming of these

2 alleged hits of the old city walls was fixed. So was the camera fixed?

3 A. No. The camera was moving around all the time, on different days,

4 different places. Obviously, there were certain times when something was

5 happening and you were in a good vantage point to film it that you didn't

6 move very far for a while. The best example of that was when the wire

7 guided missiles were hitting the walls of the old city. We were in fact

8 somewhere just outside the Hotel Argentina, by the coast, and we had a

9 very good view of the missiles actually travelling across the bay and

10 hitting the walls of the city, and it might appear that that's a fixed

11 position but it's only fixed in that it was a good position and we stayed

12 there for a little while.

13 Q. Did you know in advance that the old city would be shelled?

14 A. No. It came as a surprise.

15 Q. The camera is not following the missiles that are allegedly

16 hitting the city walls. Just give me a yes or no answer. Can this be

17 seen or can that not be seen -- could it have been seen?

18 A. I'm sorry, you'll have to ask me that question again.

19 Q. On all the footage, nowhere can it be seen that the camera is

20 following the missiles that are allegedly hitting the city walls. I'm

21 just asking you whether this route that the missiles traversed can be seen

22 anywhere. I'm asking you about the missiles that were hitting, allegedly,

23 the old city walls.

24 A. Well, you can see very clearly that they're being fired -- the

25 camera picks them up as they're coming across the water and follows them

1 as they go over the old port area, and some of them hit the boats in the

2 old port, they don't reach the walls, and some of them hit the walls and

3 explode, and the camera follows that all very clearly and I don't think

4 there's any "allegedly" about whether they hit the walls or not because

5 it's there on the footage that we've seen in the court.

6 Q. All right. You have got some smoke on the footage, but tell me,

7 since you're an experienced war correspondent, what did the JNA use?

8 Which particular artillery piece did it use to hit the old city walls?

9 A. I don't know. I wouldn't be qualified to say exactly what sort of

10 weaponry was being used. I could see with my eyes that some of them were

11 wire guided because I could see it with my eyes and the camera could also

12 see it. And there were others that were not wire guided as well. I

13 couldn't tell exactly what sort they were.

14 Some of the missiles that were being fired didn't explode, and on

15 later days when we went into the port, we saw them embedded in the walls

16 of the -- of the city and the port. That's about as much as I can tell

17 you, I think.

18 Q. Did I perhaps overlook something if I say that after filming this

19 targeting of the old city, as you put it, you did not film any of the

20 damage done by these shells to the old city walls?

21 A. In the report that you saw, there was not -- because the report

22 ends on the day that the city is attacked, and that in fact is the end of

23 the four days of the report. On subsequent occasions there was filming of

24 the damage to the old city and to the interior of the old city. But

25 certainly the report that you have seen ends with the attack on the old

1 city and that particular day, which I believe was the 12th of November.

2 Q. All right, Mr. Davies. Just briefly. In the footage that you

3 played for us last week, this brief clip that we saw, in one place we see

4 thick, dark smoke coming from that -- from one particular spot. Were

5 those the automobile tyres that were set on fire so that it would look as

6 if Dubrovnik were on fire? Do you know anything about this? Just give me

7 a yes or no answer, please.

8 A. No, I don't know whether that was or whether that's true or false.

9 I don't know.

10 Q. You did not wonder? You did not even ask where this thick black

11 smoke came from, that intensive? You couldn't establish that?

12 A. I could see many boats on fire, and that area of the port there

13 were also a large number of parked vehicles there, but there were many,

14 many boats that had been set on fire. The film we saw actually shows you

15 boats being hit and igniting. That in itself would have been an

16 explanation for thick, dark smoke, along with vehicles on fire in the

17 port, which was outside the city walls.

18 Q. All right. I'm just asking you kindly to give brief answers

19 because of the time.

20 You say that shells were falling around the Argentina Hotel, even

21 right next to the hotel. I think you said something to that effect;

22 right?

23 A. Indeed, yes.

24 Q. And near the Hotel Argentina, were there any positions from which

25 the JNA was fired at?

1 A. There were times, certainly, when mortars were fired from the area

2 between the Hotel Argentina and the Belvedere Hotel. I didn't see it. On

3 a number of occasions I went to look, but always the people who had fired

4 the mortars would be on their way away or already leaving, but certainly

5 it did happen.

6 Q. All right. So the answer is yes. And you claim that on the 12th

7 of November, a premeditated, incessant attack took place against the city.

8 Is that what you said? This is on page 3 -- page 6, paragraph 3.

9 A. Yes. It sounds like something I would have said.

10 Q. How long did this incessant attack last?

11 A. Several hours. It's difficult to -- difficult to be that precise

12 now, but for several hours. It was for a long time.

13 Q. A few hours. How many hours; two, three, five, 20?

14 A. You'll have to forgive me if I'm starting to -- to guess a little.

15 My memory tells me it would have been five, six, not 20 and not one, two,

16 or three, but nevertheless, a very long period of time.

17 Q. Well, since these city walls were built to withstand spears and

18 arrows, how many missiles actually hit it during that attack? What did

19 you establish?

20 A. I didn't establish. All I know is what I saw, and I saw something

21 up to two dozen missiles actually hitting the walls. That's what I saw.

22 I heard lots of other explosions, but with my eyes and with my camera, I

23 captured about two dozen hitting the old city.

24 Q. All right. Tell me, now. On the 13th of November, nothing

25 happened. You haven't got a report dated the 13th of November; is that

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1 right?

2 A. Yes, that's right.

3 Q. On the 14th of November, as far as I can see from your report, is

4 only important due to the fact that that is when the ECMM monitors left

5 Dubrovnik. Nothing else really happened on that day.

6 A. That's my belief. And I believe it was the negotiations to allow

7 that to happen that may well have explained very little happening on the

8 13th.

9 Q. The 15th, the 16th, the 17th, 18th, 19th, 20th, again nothing

10 happened on those days since you haven't got any reports that refer to

11 those particular days.

12 A. Difficult for me to remember at this stage. I do remember that

13 there were some humanitarian missions came in under negotiated cease-fires

14 and some eminent politicians came in to try to arrange for some more

15 children and wounded people to leave. I remember I was filming, involved

16 in filming that, and also in filming damage that had been caused during

17 the heavy days of the shelling. But certainly the sustained assault

18 seemed to finish on the 12th.

19 Q. All right, Mr. Davies. You claim on page 6, last paragraph, and

20 page 7, paragraph 1 - I'm referring to your statement - that with Bernard

21 Kouchner on the 21st of November, you visited Mokosica and that the

22 inhabitants of that village were in a terrible state because they didn't

23 know what their fate would be when the members of the JNA take them out of

24 the cellars; right?

25 A. That's right, yes. They'd spent some days down in the cellars.

1 Q. Yes. So just answer me -- you say yes. Well, what was their

2 fate, Mr. Davies? Was anybody perhaps killed, beaten up, mistreated or

3 anything like of that kind?

4 A. I don't know because we only had access to them for a very limited

5 time. What I saw was them being brought out of the cellars. I saw some

6 of them being terrified with guns fired alongside them to encourage them

7 to come out from the cellars. They were, as I've said, extremely worried

8 about what would be their fate. They were brought up to see Bernard

9 Kouchner, and it was arranged for a small group of children to leave with

10 Mr. Kouchner, to go into Dubrovnik and from then onwards, to be taken out

11 of the conflict zone. We left with Bernard Kouchner under this agreement

12 of a cease-fire that allowed to us make the visit, and I can't say

13 reliably what happened afterwards to the people who we left behind.

14 Q. All right. And with respect to the 11th of November about which

15 you say that it was the heaviest day of shelling, the most intensive

16 shooting took place on that day, and you even mentioned some 1.000 shells.

17 Tell me, of those 1.000 shells, how many were fired by the JNA and how

18 many by the Croatian forces?

19 A. The 1.000 I mentioned - and the 1.000 was a figure at which we

20 stopped counting and it was certainly not the total - was all incoming

21 from the JNA. It doesn't include anything that might have been fired out.

22 It was a total of shells, bombs, whatever, coming in from land, sea, and

23 air.

24 Q. All right. Now, tell me this: On page 7, paragraph 3, for

25 instance, third line, if I have read it correctly - and you can check it

1 out because you have your statement in front of you - you say that: "On

2 this occasion the shelling was so unilateral that we were not able to

3 distinguish the order. It was evenly spaced out." Is that what you said,

4 or words to that effect?

5 JUDGE KWON: Since the pages numbers are different, if you can

6 tell the date, Mr. Milosevic. What's the date?

7 THE ACCUSED: [Interpretation] I'm talking about the 11th of

8 November. And it's on page 7, paragraph 3, line 3. It says: "On this

9 occasion, the shelling was well spaced -- evenly spaced out, that we were

10 not able to ascertain the order."

11 MR. MILOSEVIC: [Interpretation]

12 Q. Is that what you said?

13 A. I can't find that.

14 MR. NICE: I'm somewhat confused by the accused's reference to

15 paragraphs because of course in the version served under the 92 bis

16 provisions, the paragraphs have been numbered in hand and it would be

17 easier to use those.

18 JUDGE KWON: I think it's paragraph 30 or 31. I'm trying to find

19 it. If you take a look at that.

20 JUDGE MAY: And this must be the last question, but you can ask

21 one more when we've got the answer to this.

22 We can't find this, Mr. Milosevic, about being evenly spaced out,

23 and we couldn't distinguish the order. Find another reference, if you

24 can, where it comes.

25 THE ACCUSED: [Interpretation] It's page 0301848, and it is page 7

1 of the Serbian version, and it is paragraph 3, which goes on to the next

2 page. It says: "Without doubt -- no doubt federal forces were shelling

3 from land, sea, and air, but the biggest part was coming from the hills.

4 Normally, it is not possible to film the moment a shell explodes," et

5 cetera.

6 JUDGE MAY: Yes, got it. 31.

7 THE WITNESS: Right. I have that.

8 JUDGE MAY: Now, what was the question you asked, Mr. Milosevic?

9 MR. MILOSEVIC: [Interpretation]

10 Q. Well, how do you know what the JNA -- when the JNA shot and when

11 the other side shot when the shelling was, as you say, so constant?

12 A. Just the difference in noise. You become aware after a very short

13 time what's coming in and what's going out. I explained later on in that

14 paragraph. I mean, it was so sustained, and we were able to know where it

15 was coming from, that we could actually film the shells exploding, which

16 is a very rare thing. In war footage, you usually see a big puff of smoke

17 and a lot of damage. You don't often hear a whoosh and see a building or

18 a vehicle disintegrate. And the reason we were able to do that is you

19 could hear the pop of it being fired from the mountain, recognise where

20 it's coming from and know the trajectory it's going to follow and roughly

21 where it's going to impact, and actually have the camera trained on the

22 point it's going to impact. It's an extremely rare occurrence and one

23 that only happens when you have such a sustained bombardment that you can

24 start to predict it.

25 JUDGE MAY: Your last question, Mr. Milosevic.

1 THE ACCUSED: [Interpretation] I have several more questions,

2 Mr. May, but --

3 JUDGE MAY: Ask the last one.

4 MR. MILOSEVIC: [Interpretation]

5 Q. Would you agree with me, Mr. Davies, that the JNA, which made it

6 possible for Dubrovnik to be demilitarised for a whole series of years,

7 could have taken control of it or destroyed it at all had it had the

8 intention to do so? Because you yourself claim that the JNA did not wish

9 to take control of Dubrovnik. Do you therefore claim that it wished to

10 destroy it and do you actually state that Dubrovnik was destroyed? It

11 didn't want to control it, it didn't want to destroy it; what did the JNA

12 want, in your opinion?

13 A. Well, you're talking opinion. I certainly thought if the JNA

14 wanted to take, or indeed to destroy, completely destroy Dubrovnik, they

15 could do so. And obviously they didn't do so. As for their reasons to do

16 that, that really is going down the road of opinion, and my own personal

17 opinion was that possibly by putting that sort of pressure onto such an

18 important economic target, as far as Croatia is concerned, other

19 concessions might have been extracted in other parts of the conflict where

20 possibly there were larger Serbian populations as there was practically no

21 Serbian population in Dubrovnik. But that's going down the road of

22 speculation and opinion. But the main point that you make and the

23 question that you ask, could they have taken it or could they have

24 destroyed it completely if that was their desire, yes, I think they almost

25 certainly could.

1 JUDGE MAY: Mr. Kay.

2 MR. KAY: No questions, Your Honour.

3 MR. NICE: Your Honour, several questions do arise, but first of

4 all, the more extended video. The position is that the passage dealing

5 with the firing on the dump immediately precedes the passage you viewed

6 and it comes at the end of a total of about five minutes of footage that's

7 in the booth at the moment. The commentary was served Rule 68, but it may

8 now be sensible, as it's been asked about it, if the Chamber views the

9 whole of the video. We may be able to fast forward passages that are

10 domestic in content, I think.

11 JUDGE MAY: Yes.

12 MR. NICE: If the video booth could play the original full video

13 that's been provided to them, starting at the beginning, and I may ask

14 them to fast forward from time to time.

15 [Videotape played]

16 "It was early Saturday morning when the battle for Dubrovnik

17 intensified. Tanks and heavy guns of the Serbian dominated federal army

18 pouring in fire from their positions in the surrounding mountains. The

19 majority of the city's population took to the underground shelters. But

20 those who ventured outside witnessed a coordinated land, sea, and air

21 attack on their city.

22 "Once again, the main target for the federal army guns was the

23 Napoleonic fort on Mount Srdj, above Dubrovnik, the Croatian defenders'

24 most vital position. Federal navy ships appeared offshore to join the

25 attack.

1 "It was not a totally one-sided exchange. Here mortars fired out

2 from the city falling just short of federal gun batteries hidden in trees

3 on top of Mount Zarkovica. But the federal forces were able to use

4 helicopters to spot targets for their superior firepower.

5 "Dubrovnik under fire from the sea, and from the air. Big jets

6 now trying to knock the Croatians from their perch on top of Mount Srdj.

7 The bombs fell wide of their target, the fort, still intact, opened up

8 with anti-aircraft fire. There was a notable success for the Croatian

9 defenders when their guns hit the nearest federal artillery battery on

10 Mount Zarkovica, igniting an ammunition dump, but their celebrations were

11 cut short as stray bullets ricocheted around the ramparts of the old city.

12 "Shells falling into Dubrovnik's main harbour hit one of the

13 ferries that had been unable to leave port because of the naval blockade.

14 It was now impossible for the thousands trapped here to escape the

15 bombardment.

16 "Threats of sanctions have made no difference to the federal army.

17 If anything, the fighting has escalated since the latest European

18 Community ultimatum.

19 "In Dubrovnik hospital, most of the casualties were suffering

20 from wounds caused by flying shrapnel. Doctors say more than half the

21 victims treated here have been civilians. The gunboats appeared to have

22 targeted a Croatian gunpost alongside the seafront Belvedere Hotel. The

23 hotel, which had been a home for hundreds of refugees, was all but

24 destroyed by the shelling.

25 "Saturday ended as it had begun, with the sound of artillery fire

1 echoing around the old city.

2 "Sunday morning in Dubrovnik's Gothic cathedral, they prayed for

3 peace. For many of the congregation this was the first time in days

4 they'd dared to venture out of the bomb shelters. But outside, no respite

5 from the bombardment. Indeed, the cross on top of Mount Srdj almost

6 toppled by an exploding shell. Federal navy frigates appeared off the old

7 city, firing at will safely out of range of the defenders' smaller guns.

8 For hours shells rained on Mount Srdj and its battered fort. But some

9 fell short and others dropped into the old city itself.

10 "Until now, the federal forces have concentrated their attack on

11 areas outside the old city but now their mortars are falling inside the

12 ancient walls."

13 MR. NICE: Stop there. Thank you very much to the booth. May

14 the full video be given a separate exhibit number or, alternatively, a

15 linked exhibit number.

16 JUDGE MAY: It's got a number, 395. We'll stick to that.

17 MR. NICE: A few points arising.

18 Re-examined by Mr. Nice:

19 Q. The ammunition dump hit. You spoke of there being one hit on that

20 site. Was that the only one you ever saw?

21 A. Of it actually being hit, yes, it was the only one I saw. That's

22 why I called it a notable success. It was about the only one we saw.

23 Q. You've been asked questions about your phraseology about breaking

24 the will of those of Dubrovnik. Were they also shelled at night as well

25 as by day?

1 A. There was shelling at night. Not as sustained but there was

2 shelling at night.

3 Q. You've been asked questions about who fired the first ever shot.

4 Was there ever any indication to you of any objective to be fired at by

5 the defenders of Dubrovnik until such time as they were fired on?

6 A. Not at all. Not at all. The complete opposite, in fact. There

7 seemed to be an understanding that opening fire was about the worst thing

8 they could possibly do.

9 Q. You've been asked a number of questions by the accused using the

10 phrase "Croatian artillery" to which you have responded. Have you in fact

11 been referring to the waiters and so on who constituted the force that you

12 described that were simply defending?

13 A. Some of the time I would have been referring to that. As I've

14 said a couple of times, I was aware that there were a couple of small

15 artillery pieces as well as there being at least two small mortars that I

16 saw.

17 Q. As to those defenders, the accused asked you a question about the

18 first two people to die, and in his question asked you whether they were

19 or may have been members of the Croatian Guards Corps or foreign

20 mercenaries. Did you see any evidence of those people in those formal or

21 informal ways in Dubrovnik?

22 A. No, not at all. I saw very, very few people who you could have

23 ever described as being even regular military.

24 Q. You were asked by the accused questions about whether the JNA gave

25 instructions not to fire on the city, and you responded and he picked up

1 on your answers about the defender forces not being -- being instructed

2 not to fire. You may not have given the full answer. What were the terms

3 of the instructions for them not to fire? Not to fire unless ...?

4 A. They were fired on.

5 Q. Was that something you heard once or more than once?

6 A. I heard that repeatedly during the time that we were there.

7 Q. The house that you saw destroyed and that you filmed from a

8 distance but subsequently approached, was it in a position, in your

9 judgement, to be of any use as an armed position?

10 A. No.

11 Q. Was it in the centre of town rather than on the edge?

12 A. Precisely.

13 Q. Was anything said or was anything said to you by neighbours or

14 other people you know about to indicate that it had ever been used as a

15 place of aggression or even of defence?

16 A. No. No. We never found any explanation of that.

17 Q. You've spoken of wire guided missiles. The Chamber may know what

18 they are. But in case they don't, how can they be detected visually?

19 A. You can see the wire as they're flying towards their target.

20 Q. That's probably all. Let's see. Yes. You've spoken about smoke.

21 We've touched on this before, smoke coming from tyres or from cars. What

22 was it you saw?

23 A. I saw a lot of smoke, but I also saw a lot of burning boats that

24 were made of wood and fibreglass and vehicles that had been hit around the

25 old city, and when we did go into the old city, we saw buildings that had

1 been set on fire.

2 Q. Did you see any cars on fire with their tyres also on fire? If

3 you didn't, it doesn't matter. Very well.

4 A. I saw vehicles on fire. I didn't distinguish which parts of them

5 were burning.

6 Q. Then two last questions: You deal with it somewhere in your

7 statement, but there were examples, we saw one on the first bit of

8 footage, of two or three shells just missing a boat and then the third one

9 picking it off directly. Any significance in that and was that a pattern

10 you ever saw repeated?

11 A. As -- as in targeting, as in trying to give -- yes. That's -- I

12 mean, it is what you see when guns are being used, picking up the range of

13 a shot and adjusting to actually hit the target, yes.

14 Q. And the significance then of something like that where we saw one,

15 two, three, and hitting the boat, being that there is or isn't observation

16 of an adequate time?

17 A. I would have thought that there was.

18 Q. Finally, you've been asked about Croat artillery positions, and we

19 know that although those would be the questions used by the accused,

20 you're referring to defenders' artillery positions, but tell us, was the

21 composition of Dubrovnik at this time exclusively Croat or were there any

22 non-Croats there, or don't you know?

23 A. Certainly everybody I came into contact with, apart from the

24 foreigners who were there for various reasons were Croatian. There didn't

25 seem to be even a small, even a tiny Serbian or other minority there.

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1 Q. Thank you very much.

2 MR. NICE: That's all I ask of this witness.

3 JUDGE MAY: Mr. Davies, that concludes your evidence. Thank you

4 for coming to the International Tribunal to give it. I'm sorry you had to

5 come back today.

6 [The witness withdrew]

7 MR. NICE: Your Honour, we have 20 minutes today if we are sitting

8 to the normal time. I don't know if that would be convenient to deal with

9 some part in any event of the outstanding administrative matters.

10 JUDGE MAY: Yes.

11 MR. NICE: I hope we can definitely deal with both Ambassador Okun

12 and the general in the remaining parts of the week.

13 JUDGE MAY: Which means that we must set aside time next week for

14 those other matters.

15 MR. NICE: Yes.

16 JUDGE MAY: Next week being two days.

17 MR. NICE: Yes, Your Honour. The position I can set out will be

18 assisted by the document that will be available by tomorrow which will be

19 a final witness list. Of course, there have been two confidential

20 documents served setting out the matters that are our concern, and I must

21 simply bring you up-to-date and tell you exactly how I see the remainder

22 of the Prosecution case unfolding.

23 But it may be that we can either start, or possibly even conclude

24 discussion, I don't know, about the financial report. This is something

25 that --

1 JUDGE MAY: Yes, we'll make a start on that.

2 MR. NICE: This is something that has extensively argued in

3 writing, and simply to remind the Chamber and for anyone viewing, to make

4 the discussion clear, Mr. Saxon's going to join me on this. There is one

5 question I want to ask him.

6 [Prosecution counsel confer]

7 MR. NICE: Your Honour, there are two reports reflecting the way

8 the case has unfolded. One described as the amended expert report of

9 Morten Torkildsen, dated the 7th of June of last year. That relates

10 substantially to Kosovo, but inevitably it covers matters of background

11 common to all parts of this case.

12 There is then the second expert report of the same Morten

13 Torkildsen, dated the 18th of November, which relates specifically to the

14 earlier period, 1991 to 1995.

15 The Chamber has observations by the amici in respect of the first

16 of those reports, dated the 12th of June, with the Prosecution response of

17 the 21st, and then in relation to the second report, although covering

18 both, a schedule of objections dated the 16th of December, with the

19 Prosecution response coming precisely one month later in calendar terms,

20 on the 16th of January.

21 The position in a nutshell is this: Financial evidence in this

22 case is extremely important. It shows how over the whole period of the

23 indictments with which we are concerned, the accused was able to exercise

24 control and to render assistance to various forces through financial

25 mechanisms that were instituted to deal with the particular activities

1 subject of these indictments as well as, no doubt, to deal with sanctions,

2 problems that the former Yugoslavia faced.

3 The material that needs to be considered to provide a full account

4 of these financial activities is, as in any similar exercise, very

5 substantial. Mr. Torkildsen is an expert, and indeed I suspect, but I'll

6 wait to be delighted by confirmation, that the amici's initial challenge

7 to his expertise may be either muted or now silenced by consideration of

8 the curriculum vitae of Mr. Torkildsen which shows a level of education

9 and focused experience that would be, I think, the envy of many coming to

10 deal with this sort of problem.

11 There was also an objection to his being in some way disabled from

12 giving expert evidence because he was employed by the Prosecution. That

13 point's been --

14 JUDGE MAY: Just help us: Where we would find the CV?

15 MR. NICE: It's in the declaration of Mr. Torkildsen which is

16 attached, I think, to the second of the reports. Unless I've got it

17 wrong. Maybe it's in the first report. Let's just deal with that

18 straight away.

19 JUDGE MAY: Let's see if we can find it.

20 MR. NICE: I'm very grateful to Mr. Saxon. It's attached to our

21 response. That's why I was having trouble finding it. And it's indeed

22 attached to our first response, and it's worth actually looking at it.

23 If you see the declaration, you'll see that he has, of course,

24 appropriate university qualifications as a Master of Science and Bachelor

25 of Science gained in such places as the City University Business School in

1 London, University of Manchester's Institute of Science and Technology.

2 When one casts one's eyes down from those formal training elements

3 in his background to paragraph 4, you can see a senior auditor of the

4 audit department of the City of Oslo, conducting external audit of the

5 accounts of companies that he mentioned.

6 Five, as senior investigation officer with the Norwegian

7 Directorate of Taxes; and if we look to the bottom of the page, conducting

8 detailed tax audits of various of companies' financial accounts to check

9 on their tax returns.

10 Six, 1994 to 2000, special investigator with the Norwegian

11 National Authority of Investigation and Prosecution of Economic and

12 Environmental Crime, where he had to reconstruct financial transactions to

13 verify and audit such transactions. And we see that the company that he

14 was immediately concerned with there, in the middle of this paragraph, had

15 gone bankrupt with 30 million US dollars of money disappearing, that it

16 was his job to trace by reconstruction, he having to identify the money

17 trails.

18 And if one looks at the end of paragraph 6, in his investigations

19 which took him to London, he was, four lines up from the bottom, granted

20 section 2 powers by the United Kingdom's Serious Fraud Office, powers that

21 allowed him to collect evidence from financial institutions.

22 He also, paragraph 7, investigated --

23 THE INTERPRETER: Could the speaker please slow down.

24 MR. NICE: [Previous translation continues]... United Nations

25 agency.

1 JUDGE KWON: Mr. Nice, you're asked to slow down.

2 MR. NICE: I'm so sorry. Apologies. And I not only apologise but

3 I ought to check that the booths have the observations of the amici and

4 the prosecution with this passage attached. Some do. Some don't. A

5 shortcoming that we will correct on the next date this matter is heard if

6 it goes over.

7 So a corruption case involving a United Nations agency where

8 interviews were conducted over 15 different countries and where the

9 analysis took three years to complete with, of course, the inevitable

10 thousands of pages of documentation.

11 Paragraph 8 deals with his next employment back in Norway, where

12 he was directing county police in financial investigations involving

13 reconstruction of financial accounts and transactions in various frauds,

14 drug related cases and investigations into the money laundering aspects of

15 drug related crimes.

16 He has presented, paragraph 9, forensic analyses and opinions in

17 Norwegian courts during the prosecution of individuals responsible for

18 complex fraud and corruption crimes, with professional expertise lying in

19 his ability to provide forensic analysis that was never challenged.

20 He then turns to his employment here and the range of his

21 functions here, which are manifest from the reports that he's prepared,

22 and at paragraph 11, dealing at this stage with the first report, which is

23 itself in parts A and B, he details how he reviewed over 10.000 pages of

24 documentation describing financial transactions, and he makes the point,

25 in fact, the only people with the necessary training and experience - and

1 I would put in brackets probably also patience - that would be able to

2 deal with such a quantity of specialist material in order to reconstruct

3 financial transactions that have occurred.

4 Now, Your Honour, it's against that background of expertise that

5 there was objection taken but, as I say, muted now and it may be silenced.

6 The point about his being an employee of the OTP is dealt with in the

7 argument, and I think I provided the Chamber not so very many months ago

8 with a recent authority from Factortame which went to show that there is

9 simply no merit, certainly in the English jurisprudence, in such a

10 proposition. And the arguments we've deployed reveal how, inevitably,

11 many experts are either full-time or ad hoc employed by the parties called

12 in any litigation.

13 In summary, the amici who are, of course, here, I think, amongst

14 other things to assist the court, not just the accused, suggest really

15 that either little or no evidence should be given other than comes from

16 the witness box at the primary level, an exercise which would render it

17 quite impossible to put a financial picture before this Chamber in

18 anything like the time that the Chamber has allowed or may allow. I see

19 that this entertains the accused. One of the good things, of course,

20 about this material being dealt with by an expert and in a composite way

21 is that we can be quite sure the accused will be able to deal with it

22 because, amongst his many skills, we know are the skills that come from

23 his having been a banker at an early part of his career.

24 JUDGE MAY: We've heard, of course, evidence in relation to

25 Croatia about financial activities and support for the local government

1 from the Republic of Serbia. So to that extent, that report supports or

2 may be said to support the evidence which has already been given. But in

3 Kosovo, while it's true that there's been some reference - I remember Rade

4 Markovic's evidence and there was evidence about money and suitcases being

5 passed about - the connection isn't quite as plain.

6 The question I'm asking myself, and speaking entirely for myself,

7 is given the amount of evidence that we've had about Kosovo, even if this

8 was admissible, and objection is taken that much of it is summarising

9 evidence which we've ruled against in other matters, but that aside, as a

10 more general point, is this not opening up a very large area of the

11 inquiry into what is already a complicated case, effectively adding a

12 fraud to all the other complexities with which the Trial Chamber, and the

13 accused, of course, has to deal when, of course, there is more direct

14 evidence on which you rely?

15 MR. NICE: There are three points in answer to that. As to the

16 observation about summarising witnesses and the Court's ruling against

17 summarising witnesses on an earlier occasion or occasions, this evidence

18 is of a different category. It is evidence which is typically adduced in

19 exactly this form by experts, and it would, in our submission, be quite

20 wrong even to contemplate excluding it on that basis. This witness is

21 doing no more and no less than an expert from one of the big five, if

22 there still are five, or is it four, accounting firms of the world would

23 do in a piece of straight commercial litigation with which we may be

24 familiar.

25 Coming back to the acknowledgement that there may be confirmation

1 or support for other evidence in this report -- in one of these reports,

2 or vice versa, we would be tempted to say precisely so. Where there is

3 evidence necessarily short in form and content from a witness saying, "I

4 knew that. I was told that. I saw that money was taken in bags and was

5 then used to fund this or that enterprise," that evidence is, of course,

6 very much better than nothing and might, in a less than perfect setting,

7 support findings to the relevant level that that method of financing has

8 occurred in a significant way. But it's evidence that it's all too easy

9 shortly to challenge by the accused or by witnesses called on his behalf,

10 and it is against that that the full structure of the case, the financial

11 case, in our submission, needs to be seen.

12 And so I come to the third point, which is Your Honour's

13 observations on the Kosovo report or the report that was predominantly

14 Kosovo.

15 Before I hand in a slightly amended version of a document that's

16 already there, the Court will recall that there's quite a lot of

17 admissions by the accused relied on within the reports, submissions by the

18 accused, things he said in the domestic court, and this area of the case

19 above all, is one where most of the propositions we advance should,

20 frankly, be admitted as beyond challenge because the documents are

21 overwhelming, and where the accused, however much he might like to say he

22 is not participating in this trial, can be required by the Chamber, before

23 being allowed to take time in cross-examination of witnesses, a topic to

24 which I'll come in relation to financial evidence in a few minutes, can be

25 required to identify what's in issue.

1 Now, if I can just hand in this document which, is a slightly

2 amended version of a chart smaller in format and less easy to see than

3 this one, and the chart comes at the end of Part A of the report on

4 Kosovo, or is referred to as paragraph 54 is my recollection. But I'm

5 wrong -- no, I'm right. I was looking at the wrong report.

6 Now, there was an earlier version. The court may or may not have

7 seen it. It's a document that although superficially fairly detailed --

8 and there is no reason why a copy of it shouldn't go on the overhead

9 projector so that those viewing can understand what we're talking about.

10 Superficially somewhat detailed, it's actually very easy to understand.

11 It speaks, for example, if you look at the top of the chain of command

12 from the accused through -- just let me check one thing. Through Borka

13 Vucic, manager of the bank in Cyprus where money was funneled, it goes

14 down to various accounts that were operated that are named there in the

15 large box on the right-hand side.

16 Now, you'll now see a smaller box, slightly smaller type, to the

17 right of Administered Accounts, and that box identifies the evidence that

18 is relied upon to sustain that particular part of the picture.

19 We come down to the large box that starts with Cyprus Accounts,

20 including Anextol, Browncourt, and so on. We then see three arrows,

21 showing the passage of millions of Deutschmarks to the left, and just

22 above 23 million Deutschmarks - I'm sorry the type is a little hard to

23 read - it speaks of bank records, a statement of Vucic to the MUP, a

24 statement of Raj and two other people. That box actually relates to all

25 three of those left pointing arrows.

1 Then we see Abridge Trading at the bottom of the 23 million, with

2 connections to various individuals and pointing up to delivery of

3 equipment that found its way into the hands of, we would say, the Serbian

4 RDB through Stanisic or Markovic.

5 And again, we have identified what material it is that's relied

6 upon; bank records, witnesses, so on.

7 JUDGE KWON: But, Mr. Nice, what would be the relevance or

8 significance of all this in the Kosovo case? In Kosovo, suppose it is

9 true, it's nothing but funding his own army. Why do we need all this?

10 MR. NICE: Well, two points in answer to that: We need it in

11 order to prove the effective control that he operated, and indeed to show

12 a recognition, it may be, that what was being done was improper and

13 outside the control of proper mechanisms. But we need this forensically

14 for the reason I have just stated. His Honour Judge May was quite correct

15 in his recollection that amongst the live evidence is the evidence of Rade

16 Markovic, and on this topic he wasn't, I think, challenged and didn't in

17 any sense depart from the evidence that he gave. But it is extremely

18 helpful to see and, arguably essential to see, that evidence supported by

19 documentation. But it's not a question simply of one bankbook with an

20 instruction to an arms manufacturer to provide the armament.

21 But this is the point that I want to make perhaps before we part

22 from this, if by chance the Court is going to rise fairly soon: It's very

23 easy -- the reports may look complicated, but it's actually very easy to

24 see, once one spends just a couple of minutes, the degree to which the

25 overall picture of which Mr. Torkildsen speaks very succinctly in his

1 reports, it's very easy to see where these conclusions are drawn from

2 documentation; and where they are dependent on evidence already given - I

3 think you will see Markovic already referred to in one of these boxes --

4 yes, bottom left-hand box, indicating the orders to Kertes. It's easy to

5 discover where the material depends on out-of-court statements of one kind

6 or another. And that means that it's always going to be easy when the

7 Court has, as we would urge it to say it must do when it's considered the

8 financial expert report and considered whatever cross-examination is

9 proper on it, it's easy for the Court to see the route of the detailed

10 conclusion. So that it will be easy for the Court to decide whether any

11 particular aspect of the case is insufficiently proved because it relies

12 on something that it finds unacceptable for that purpose; it will be easy

13 for the Court to know whether it would require more evidence on any

14 particular limb. We would say not, but we're always open, of course, to

15 do the Court's bidding, so that where any out-of-court statement properly

16 the subject of proper cross-examination so requires, the relevant witness

17 could be called. And this gives structure to the very, and inevitably

18 very summary accounts of financial movements given by the people so far.

19 Can I come back to it, if the Court a going to rise, on the next

20 day when we have some moments to proceed, and I will have this part of my

21 address, if it's helpful. I will have it printed for myself.

22 JUDGE MAY: We must make time for these administrative matters.

23 Maybe next week, if you have a day.

24 Mr. Kay, are you in difficulty next week?

25 MR. KAY: No, I'm not in difficulty. We've got the two days. I

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1 was trying to assist the Court because there have been a couple of

2 representations of our role in this trial today which perhaps need

3 clarification. Our job is to take points that are reasonably open to the

4 accused. And just to focus on the objection concerning Mr. Torkildsen,

5 it's his role and his ability to produce the materials that are adduced

6 through him in his reports that we've taken objection to. It's the

7 material itself that the Court is being asked to consider, which is in our

8 second paper we filed with the Court where we've put a schedule detailing

9 our various objections.

10 JUDGE MAY: Thank you. Mr. Milosevic, you've got one minute.

11 THE ACCUSED: [Interpretation] Well, all right. One minute,

12 Mr. May, one minute. I hope that you will allow me at least as many

13 minutes as Mr. Nice had with regard to this particular witness.

14 But Mr. Nice over here is very impressed by the fact that this

15 witness, this expert, dealt with various abuses in England, Norway, the

16 UN, and that this qualifies him for all of this. However, although you

17 are laymen, it seems to me that it would have to be clear to you as well

18 that financial expertise is the study of financial documents.

19 I looked at some 2.000 pages of various papers produced by

20 Mr. Torkildsen, and not -- and there is not a single thing that has

21 anything to do with me on any one of them. This table is a mere

22 construction. It has to do with mere financial transactions, very simple

23 ones.

24 JUDGE MAY: We will hear you, of course, on this before we rule on

25 it, but now is not the time. We are in the middle of hearing the

1 Prosecution. We will hear them when we next return to this. We will then

2 hear the amicus, and we will hear you, I hope by next week.

3 THE ACCUSED: [Interpretation] I'll tell you quite briefly what I

4 have to say, Mr. May. I don't need more than one minute. I don't.

5 JUDGE MAY: You're not going to get a minute at this time. We've

6 got to go. There has to be another hearing in here. You will get your

7 chance on Monday or so.

8 We will adjourn now. Nine o'clock tomorrow.

9 --- Whereupon the hearing adjourned at 1.51 p.m.,

10 to be reconvened on Wednesday, the 26th day of

11 February, 2003, at 9.00 a.m.

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