1 Tuesday, 13 March 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.21 p.m.

6 JUDGE ROBINSON: Mr. Waespi, had you concluded your

7 examination-in-chief?

8 MR. WAESPI: No, Mr. President. There will be an additional, I

9 think, 15 minutes which includes one document and five photos.

10 JUDGE ROBINSON: Yes. Well, let's begin.

11 MR. WAESPI: Thank you, Mr. President.

12 WITNESS: HARRY KONINGS [Resumed]

13 Examination by Mr. Waespi: [Continued]

14 Q. Good afternoon, Mr. Konings.

15 MR. WAESPI: If we could retrieve 65 ter number 0323, please, and

16 I'm interested in the second and third page.

17 Q. And while that's being retrieved, yes, we see it already.

18 Lieutenant-Colonel, do you recognise this document, the cover page

19 of it?

20 A. Yes, I recognise it.

21 Q. And --

22 JUDGE ROBINSON: Mr. Waespi, I neglected to say that in the

23 absence of Judge Mindua, Judge Harhoff and I sit pursuant to the

24 provisions of Rule 15 bis.

25 MR. WAESPI: Thank you, Mr. President.

1 Q. Lieutenant-Colonel, if we can go to the second page of this

2 document, which is the third page altogether.

3 MR. WAESPI: Yes. Can we please move to the next page, the third

4 page. Yes.

5 Q. And do you see, Lieutenant-Colonel, at the top of the page under

6 paragraph 3, a few lines about impact analysis?

7 A. Yes, I do see them.

8 Q. If you can briefly familiarise yourself with this paragraph.

9 Now, the paragraph talks about an investigation into -- into this

10 shell, that the firing of that shell that you investigated, and it talks

11 about this UNMO report, 170 degrees.

12 Is that your report? Is that your conclusion?

13 A. That was our conclusion, yes.

14 Q. And it also talks about the French engineers' report. To what is

15 that a reference to?

16 A. I think that is a reference to a group of French engineers that

17 did an investigation on the same moment as we did the investigation, and I

18 think it refers to the French soldiers we saw on the movie -- on the video

19 movie, yesterday.

20 Q. And do you know roughly how much 2.850 mills equals in normal

21 degrees?

22 A. That is roughly the same as 170.

23 Q. And then the paragraph also talks about the other four impacts

24 which had a -- 220 to 240 degree firing point. Was that the conclusion

25 you arrived to as you testified yesterday?

1 A. Sorry. Can you restate that question once more.

2 Q. Yes. You told us yesterday that you investigated the other four

3 rounds, and you came to a conclusion as to the direction of fire.

4 A. Yes. That the 220 to 240 degrees of the other four rounds is our

5 conclusion from our investigation.

6 Q. Now, apparently these paragraphs now seeks to talk about the

7 difference between the two directions, one being 170 degrees and the other

8 being 220 to 240 degrees; and mind you, they talk about two different

9 instances; the first shell and the other four shells. And it gives an

10 explanation at the end.

11 The last sentence says, "There are several reasons for this

12 apparent anomaly," and it goes on to say, "The most probable explanation

13 is that the tail or body of the mortar struck a building on its flight

14 path, which caused a different crater displacement pattern."

15 Do you find this explanation correct in your opinion?

16 A. To my opinion, that is a theoretical explanation, and I don't

17 believe that this is possible in practice. Of course, it's possible in

18 practice that the mortar shell struck the roof or a part of the roof and

19 gets other trajectory; but, in my opinion, if it struck the roof, it's

20 thrown out of its trajectory in a quite severe way, in such a way that it

21 will land on the ground in -- and can end up as a -- as a non-exploded

22 device. In other words, it's a possibility, but in my opinion it's a

23 theoretical possibility.

24 Q. If you look at the crater that was behind you yesterday, the --

25 the impact on the ground, is that consistent with what you just heard; the

1 projectile hitting the roof?

2 A. Well, the crater we saw, and the crater was which was on the

3 photograph yesterday, was a, let me put it this way, a regular, normal

4 mortar crater; a crater caused by a mortar projectile as we had seen many

5 more before in Sarajevo.

6 And if the projectile has hit the roof, then it only can be very,

7 very slight hit, which didn't cause any change or hardly any change in the

8 trajectory. That's to put it in another way.

9 JUDGE HARHOFF: Excuse me.

10 Does this mean that if it hit something like, for instance, a

11 roof, then what I understand you're saying is that then it is really

12 impossible to determine with any accuracy where it came from?

13 THE WITNESS: What I'm saying is what I tried to explain is that

14 when it hits the roof severely, it will -- then the last part of the

15 trajectory, the last metres of the trajectory, will be a total --

16 different from before, which will throw the projectile to another

17 direction, with the possibility that it will even not explode. That's the

18 point. And having seen the crater, which was a normal crater, I doubt

19 that the projectile hit the roof at all.

20 JUDGE HARHOFF: Thank you.

21 [Trial Chamber confers]

22 JUDGE ROBINSON: Lieutenant-Colonel, would you be able to tell us

23 what forces would be -- would have been occupying the area of 220/240

24 degrees?

25 THE WITNESS: I don't think I understand your question with the

1 forces occupying.

2 JUDGE ROBINSON: Assuming -- well, there is a reference there

3 paragraph 3 to a discrepancy. On the one hand, we have the first reports

4 recording the bearing to the firing point at 170 degrees. So that

5 presumably would -- would give an indication of the direction from which

6 the firing came. And so I would be interested to know, if you do know, if

7 have you the information, as to what forces would have been present in

8 that area if one pinpointed 170 degrees; similarly, I would be interested

9 to know, if you have the information, what forces would have been present

10 in the area in relation to a firing point of 220 to 240 degrees.

11 THE WITNESS: Today, I don't have the specific information

12 anymore. I cannot recall about who was exactly in what area. What I can

13 say is that no matter you take 170 degrees or you take 220, it's all a

14 rough southern direction; 180 degrees is south. That equals with the

15 south part of the city of Sarajevo.

16 And since the whole city, the biggest part of the city was

17 surrounded by Serb troops and also in the in the biggest part around

18 Sarajevo Bosnian army troops were opposing Serb troops in trenches and in

19 other military emplacements, there were numerous troops from both sides in

20 the area between 170 degrees and 220 up to 240.

21 And to say exactly who was where, I cannot tell you about that.

22 We had some of the information during our stay in Sarajevo. We, of

23 course, had contacts with the UNPROFOR HQ in Sarajevo. We knew who was

24 where; but exact detailed information, I cannot give you anymore today.

25 JUDGE ROBINSON: Because, as I recall, your evidence yesterday was

1 that the -- it's difficult to determine the specific origin of the fire,

2 and you had told us why. I think it had something to do with the lack of

3 information about the charge.

4 THE WITNESS: That is absolutely correct. If you don't know the

5 charge, you don't know the place of origin. If you know the charge and if

6 you know the angle of impact -- the estimated angle ever impact, then you

7 can trace back the point of origin. And in the case of the round of 170

8 degrees, we have connected that with the reports of our OP1; and in the

9 case of the four rounds, I cannot recall without studying the documents

10 whether we had another report on that, from other OP, yes or no.

11 JUDGE ROBINSON: If I understand you correctly, your evidence is

12 that whether you talk 170 degrees or 220, 240, the area covered by that

13 range is the southern area of Sarajevo; and in that area, generally one

14 would find troops of both sides.

15 THE WITNESS: As far as my information recalls today, in that

16 complete area were -- were troops from both sides involved. There were

17 confrontation lines running south of the city, as they were also north of

18 the city. And without knowing the charge the five rounds were fired with

19 , you cannot determine the point of origin. You need other proofs for

20 that.

21 JUDGE HARHOFF: Thank you, Lieutenant-Colonel. Just one last

22 question.

23 Is your testimony that you will find it unlikely that the first

24 and the four other shells came from the same place? Is that what you're

25 saying?

1 THE WITNESS: I disagree with the report of G2 of UNPROFOR. To

2 my opinion, the two -- the first round and the later four of the other

3 four, it's a very good possibility that they came from -- from different

4 points of origin. You can speculate a lot about that, but I still stick

5 to what the investigation we did on the spot. That's the only thing I can

6 reasonably say, because I was there. I saw what my people did. I saw

7 what I saw, and I still stick to the conclusion that it's 170 degrees; and

8 for that -- for that reason, I only can say that to my opinion the five

9 rounds came from two different gun positions, which is not very specific,

10 because in the months before we had rounds in the city, mortar rounds from

11 every direction, from south, but also from north.

12 So they came from every direction. So the pattern was for us

13 evaluating what happened that day quite normal. So there was for us no

14 discussion whatsoever that it could have been two different gun positions.

15 JUDGE HARHOFF: Thank you.

16 MR. WAESPI: Thank you, Your Honours.

17 If we could move to the next -- to page 6 of this document,

18 please.

19 Q. If you look at the left side of your screen, Lieutenant-Colonel,

20 do you see this document?

21 A. Yes, I see it.

22 Q. Can you tell us what it is?

23 A. It's an a document from the -- the engineers cell from the Sector

24 Sarajevo of UNPROFOR, and it gives the results, I think, from the engineer

25 group which did an investigation on the same spot as we did.

1 MR. WAESPI: And if we move to the next page, please, which is a

2 chart. It will be helpful if we can turn the chart around. Yes. Thank

3 you very much.

4 Q. Do you recognise this chart, Lieutenant-Colonel?

5 A. Yes, I recognise it. I have seen it before this day, yes.

6 Q. And can you explain to Your Honours the -- the line that goes from

7 what's called "impact" towards the bottom, slightly to the right of the

8 page.

9 A. Well, that's the established line of fire by the French engineers,

10 which is 2.850 mills or that equals 170 degrees.

11 Q. I think it says, "160 degrees?"

12 A. Sorry, 160. Yes, it says 1-6-0 degrees, yes.

13 Q. Thank you very much.

14 MR. WAESPI: If, Mr. President, that could be exhibited.

15 A. We admit it.

16 THE REGISTRAR: As Exhibit P357, Your Honours.

17 MR. WAESPI:

18 Q. Now, to conclude this, and just to make it clear, in the course of

19 your investigation - and you have talked about that mainly yesterday and

20 also briefly today - based on the various elements you had at your

21 position, did you come to the conclusion as to who, which side of the

22 conflict, fired the deadly shot that you investigated at Markale?

23 A. Taking all the facts together, and especially the fact that nobody

24 on OP1, neither Knustad or Major Paul Conway, did see or hear that morning

25 any outgoing round, 120-millimetre; even stronger, there was no fire

1 whatsoever to what I could establish, we came to the conclusion that the

2 killing round must have come from the other side of the mountains, from a

3 distance at least above, let's say, one and a half or two kilometres,

4 which is behind the mountain range in the south part of Sarajevo.

5 Q. And who, Lieutenant-Colonel, occupied those positions behind the

6 mountain range in the south part of Sarajevo?

7 A. To my knowledge, at that period, it were the Serb forces.

8 Q. Thank you, Lieutenant-Colonel.

9 Now, that day, on the 28th or on the 29th of August, did you

10 investigate the killing of a girl? Do you remember that?

11 A. Yes, I did.

12 Q. And where did that incident occur?

13 A. It happened in central part of the old city in a living block, a

14 flat apartment block, and three girls were playing on the inner yard. And

15 one rocket was hit that inner yard, and one young girl of four years old

16 was killed and two others were injured.

17 Q. Do you remember the calibre of the weapon that killed that girl?

18 A. That was a 128-millimetre rocket.

19 Q. And do you remember the source of fire?

20 A. Yes. In combination with, and observing, an observation from our

21 own team base, the rocket was fired from behind the ridge we called

22 Sharpstone, which is the north part of Sarajevo.

23 Q. And who occupied that positions behind the ridge, which you called

24 Sharpstone?

25 A. That ridge was occupied by Serb forces.

1 Q. Let me come to last two short topics. The first one is sniping.

2 You told us yesterday that there was sniping towards the team base in

3 Sedrenik. Do you remember that?

4 A. I remember that I told you that.

5 Q. Now, how often did sniping occur in that area, and I'm talking

6 about sniping against UNPROFOR or, indeed, civilians.

7 A. I cannot give any numbers on that because, well, we didn't get all

8 the information; and in other cases, it was nearly not to count, and it

9 must have been numerous, numerous times, as well, again, civilians as

10 against at least our -- our team. So I cannot give an answer. It

11 happened especially in the period up to the beginning of July. It

12 happened nearly every day.

13 Q. And what was the source of fire?

14 A. We -- we were not able in 100 per cent of the cases to establish

15 that; but in a number of cases - and I cannot give you any percentage; I

16 cannot recall anymore - the fires came from, again, from that ridge,

17 Sharpstone.

18 Q. And my last issue, Mr. President, Your Honours, is I would like to

19 show you five photographs.

20 Lieutenant-Colonel, did you give to the OTP recently, I think it's

21 30 photographs which you took during your duty in Sarajevo in 1995?

22 A. Yes. I gave the OTP some photographs, yes.

23 MR. WAESPI: This is 65 ter number 03034, please, and if we could

24 go to the second photo.

25 Q. Yes. Can you tell Their Honours what this photo depicts.

1 A. This photo depicts a -- the biggest part of the old city, the old

2 part of the city of Sarajevo, and the picture is taken from OP1.

3 Q. And can you identify a few features on this photograph, if you

4 can?

5 A. One feature was very easy to recognise. In the central, left part

6 is the old, burned library, the famous library, which was a very known

7 marking point for us as UNMOs being on OP1.

8 Q. Do you see it on -- on your screen?

9 A. Yes, I do.

10 Q. Can you please mark it.

11 A. [Marks]

12 Q. And please attach letter A next to it.

13 A. [Marks]

14 Q. And do you see other features in this photograph?

15 A. Well, it is not so clear as I thought. But in this area, here,

16 somewhere here in this area - I draw it a bit the rough because I cannot

17 give the exact location - there was my team base located; the north part

18 of the city.

19 Q. Thank you. Can you please attach a letter B next to it.

20 A. [Marks]

21 Q. Thank you.

22 MR. WAESPI: If we could move to the next photo, which is number 5

23 in this range.

24 Yes. I think it need to be saved. Mr. President, I would like to

25 tender all the 30 photographs, so Your Honours can look at them. But I

1 will only discuss five of them, so I don't know whether we need to

2 individually --

3 [Trial Chamber confers]

4 JUDGE ROBINSON: Well, I'm beginning to get a little wary of the

5 practice of admitting things without seeing them.

6 MR. WAESPI: If Your Honours want it's --

7 JUDGE ROBINSON: But how many do you really need?

8 MR. WAESPI: -- it's just an illustration of --

9 JUDGE ROBINSON: Well, just do four or five.

10 But Mr. Tapuskovic has a point.

11 MR. TAPUSKOVIC: [Interpretation] Your Honours, I also noticed

12 that, but I didn't have time to take a look at it either today or

13 yesterday and I check with my colleague. I also received some other

14 photographs, but they were taken away from me so I don't have a chance to

15 complete my examination. Therefore, it is difficult to analyse these

16 things if one doesn't receive the material in time, and I hardly ever

17 manage to do that.

18 JUDGE ROBINSON: Well, when did you receive them?

19 MR. TAPUSKOVIC: [Interpretation] There were 11 or 12 photographs.

20 I looked at them yesterday. These were the photographs from Spicasta

21 Stijena. But after 20 minutes, they were taken away from me; therefore, I

22 didn't have an opportunity to look at them closely. I just glanced at

23 them and then Mr. Waespi took them away from me.

24 JUDGE ROBINSON: Mr. Waespi, what is going on?

25 MR. WAESPI: Mr. President, that calls for an explanation.

1 The photos were disclosed on a CD on Saturday, and I just gave my

2 colleague, yesterday, the originals which I had with me, just to -- as a

3 complimentary from my side. But we needed them because, as you see, the

4 picture themselves are not that clear on the screen. So in case the

5 witness wouldn't be able to recognise it on the screen, I have the

6 originals. I am happy to give the originals back to counsel but the

7 photos have been disclosed.

8 JUDGE ROBINSON: Yes. So it seems as though the photos were

9 disclosed to you on a CD, on Saturday, Mr. Tapuskovic.

10 MR. TAPUSKOVIC: [Interpretation] Even if that is the case, I

11 didn't have a chance at all to confer with the accused since Saturday.

12 After having looked at these photograph, it is totally impossible for me

13 to deal with this, because I have more important matters to deal with than

14 the photographs. My duty is to focus on more important issues, and I

15 didn't have enough time for this.

16 JUDGE ROBINSON: Mr. Waespi.

17 MR. WAESPI: I only show five photographs. The photographs are

18 from very easily distinguishable positions like OP1, like the team base in

19 Sedrenik, like "Sniper Alley," features we're all very familiar and

20 certainly the Defence.

21 JUDGE ROBINSON: Yes. We'll just show four or five, so we'll deal

22 with it in that way, Mr. Tapuskovic. He will only show four or five.

23 MR. WAESPI: Thank you, Mr. President.

24 If we can move on to the next photo which is number 5, yes,

25 please, the previous one which was the second of that range.

1 JUDGE ROBINSON: To be admitted.

2 THE REGISTRAR: As Exhibit P358, Your Honours.

3 MR. WAESPI:

4 Q. What does this photo depict, Lieutenant-Colonel?

5 A. This picture is, again, taken from the surrounds of OP1. It,

6 again, pictures the city of Sarajevo, but with a look more to the west of

7 the city.

8 Q. Thank you. Lieutenant-Colonel.

9 MR. WAESPI: If that could be admitted, Mr. President.

10 JUDGE ROBINSON: Yes.

11 THE REGISTRAR: As Exhibit P359, Your Honours.

12 MR. WAESPI: The next exhibit is number 12 in this range, and I

13 will give the originals again to the Defence of these five photos after my

14 examination.

15 Q. What is depicted here, Lieutenant-Colonel?

16 A. This is the actual OP1 in the time that we were trying to -- to

17 build some protection for ourselves, and it, again, give as view on the

18 even more western part of the city of Sarajevo. You can see just right of

19 my head - I'm the person on the left - you can see the twin towers. And

20 close to that in every circumstance, you can see the Holiday Inn hotel,

21 which was quite a known feature in those days on every news screen in the

22 world.

23 Q. And can you please circle the twin towers. And while that is it

24 being done, can you remind us, again, the location of your colleague

25 Knustad, when he informed you about the -- what he heard or not heard on

1 the 28th of August.

2 A. Twin towers are here, and Mr. Knustad -- Major Knustad and Major

3 Conway were on this exact location, where I am standing now on this

4 picture.

5 Q. Thank you. Can you please attach letter A depicting the twin

6 towers.

7 MR. WAESPI: If that could be an exhibit, Mr. President.

8 JUDGE ROBINSON: Yes.

9 THE REGISTRAR: As Exhibit P360, Your Honours.

10 MR. WAESPI: The next and second-to-last picture is number 15.

11 Q. Can you --

12 JUDGE ROBINSON: Mr. Tapuskovic, I give you 15 minutes at the

13 break to consult.

14 THE INTERPRETER: Microphone for the President, please.

15 JUDGE ROBINSON: I'll give you 15 minutes at the break to consult

16 with the accused on these photographs, so that we'll take an extended

17 break so that you have an additional 15 minutes.

18 MR. TAPUSKOVIC: [Interpretation] Thank you.

19 MR. WAESPI:

20 Q. Lieutenant-Colonel Konings, do you recognize this photograph?

21 A. Yes, I recognize that.

22 Q. What does it depict?

23 A. It is taken from our team base in the Sedrenik area, and the hill

24 you see on the back is the hill where the confrontation line was running.

25 And when you follow the hill to the right, where the forest are starting,

1 around the edge is the so-called Sharpstone area.

2 Q. Thank you, Lieutenant-Colonel. And the last photo I would like to

3 show to you --

4 MR. WAESPI: Yes, that needs to be tendered, Mr. President.

5 JUDGE ROBINSON: We admit it.

6 THE REGISTRAR: As Exhibit P361, Your Honours.

7 MR. WAESPI: If we can go to number 21, please.

8 Q. Can you tell us what that photo depicts?

9 A. It is a photo driving in east direction on "Sniper Alley" inside

10 Sarajevo, and on the left-hand side, the building with the yellow-brown

11 colour on it is the Holiday Inn hotel.

12 MR. WAESPI: Can it be exhibited, please, Mr. President.

13 JUDGE ROBINSON: We admit it.

14 THE REGISTRAR: As Exhibit P362, Your Honours.

15 MR. SACHDEVA: Thank you, Mr. President. I don't have any further

16 questions. And here are the originals of the photos for the Defence.

17 JUDGE ROBINSON: Yes. Mr. Tapuskovic to cross-examine.

18 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. I have

19 or will have sufficient time today to examine Mr. Konings.

20 Cross-examination by Mr. Tapuskovic:

21 Q. [Interpretation] Good afternoon, Mr. Konings. My name is

22 Branislav Tapuskovic. I'm Defence counsel for General Dragomir

23 Milosevic. I would like to ask you a few questions with a view to

24 clarifying certain matters that were discussed yesterday and today. In

25 order to save time as much as possible, can we shed some light on a few

1 issues.

2 First of all, we have just seen these photographs. We saw the

3 place where you and your observation team were. Can you tell me: From

4 that position to this location, how long or how big a distance was it to

5 the separation line?

6 A. From the OP1 I think it roughly was about 1.000 metres, maybe

7 less, and from the team base, about the same distances.

8 Q. Therefore, it is fair to say that both armies were up in the

9 hills.

10 A. Yes. The confrontation line was running on a changing matter with

11 a lot of curves through all the hills and mountains. Yes, that's correct.

12 Q. Were you ever in a position to measure the distance between the BH

13 army forces and the forces of the army of Republika Srpska expressed in

14 metres or whatever? Can you be specific on that?

15 A. I can be very specific. We had no means and no possibilities

16 whatsoever to measure the distance between the two forces.

17 Q. According to information that I have on file, I would like to ask

18 you the following: Are you aware that on several occasions UNPROFOR had

19 submitted a request to the BH army for your observation post to be located

20 on the separation line, and that the BH army did not allow that to happen?

21 A. I have no knowledge of these UNPROFOR requests to -- to the BH

22 army.

23 Q. Thank you. The OP1 had a direct view of Colina Kapa, which is

24 situated on Trebevic on the opposite side. There was another observation

25 post there, an UNPROFOR observation post. Yes or no?

1 A. I'm not -- you should have to show me that on a map. I'm not

2 familiar anymore -- enough anymore with the names of Colina Kapa and

3 Trebevic to say exact -- to give you an exact answer. So if you could --

4 if we could have a map with the positions on it, I can say. But I'm not

5 familiar anymore with the names of Colina Kapa and Trebevic.

6 Q. Do you have any idea at all, if you don't know where Colina Kapa

7 was, then you were not able to tell me who occupied the positions there,

8 whether the BH army or the VRS. It's a hill that is 940 metres high.

9 A. Again, I told already that I cannot recall today the detailed

10 information about the positions of the BH army and the VRS as we had it

11 then, during that period.

12 Q. So you are claiming that all the hills surrounding Sarajevo were

13 held by the VRS.

14 A. No, that's not what I'm saying, and I didn't say that at all. I

15 was saying that the hills and the mountains around Sarajevo were occupied

16 by both parties - I can recall that I said that before - and that the

17 confrontation line was running on the hills and mountains around

18 Sarajevo. That's what I was saying. And I have no -- today I have no

19 exact detailed memory anymore about who was exactly where because the

20 positions changed every day. That's what we knew. And again, I don't

21 have the exact date anymore available today.

22 Q. Can you tell me, is it correct that the confrontation line that

23 you mentioned, in case of Sedrenik, ran elsewhere at the foot of the hills

24 around Sarajevo?

25 A. There were certain parts that the confrontation line came to the

1 foot of the hills. In Sedrenik, it runs across the hills, and we were

2 especially focussing on the ridge Sharpstone, which we knew was in the

3 hands of the Serb army.

4 Q. However, the distance between the positions of the two armies was

5 not a big one at this particular location; is that correct?

6 A. The fact that there was a confrontation line means that the two

7 armies were quite close together. But as I told you, I have no

8 information and we had no information during that period on exactly how

9 far they were from each other. So I cannot -- I cannot and I will not

10 speculate on any distance today.

11 Q. On this topic, Mr. Konings, let me ask you this: Concerning the

12 hills to the north, such as Zuc and Hum, which were easily visible because

13 one of them had a TV tower on that, did those hills overlook Sarajevo and

14 had a commanding view from that side?

15 A. I can't recall the hill with the TV tower on it. That was outside

16 my area of responsibility, but it had a commanding view, as far as I know,

17 on Sarajevo.

18 Q. You know that this is where the BH army positions were. Yes or

19 no?

20 A. As I can recall, there were BH army positions; and somewhere below

21 the TV tower, there was also an UNMO team.

22 Q. Thank you. Lieutenant-Colonel, can we go back for a moment to the

23 two documents shown to you a while ago by Mr. Waespi. The Baxter report

24 dated the 8th of September; is that correct?

25 That was as many as ten days after the Markale incident. If is it

1 dated 8th of September, that means it was compiled ten days after the

2 incident. Is that correct?

3 A. If you are pointing to the G2 UNPROFOR report, because I don't

4 have the report here in front of me, so if it has been dated the 8th of

5 September, but I have not seen that report either in Sarajevo. I have

6 seen that report only the first time when I came here in the office of

7 Mr. Waespi. So, if it says 8 September, it says 8 September. That is

8 very simple. I cannot give you any extra information on that date

9 whatsoever.

10 Q. This will suffice, Lieutenant-Colonel. Equally, we can say that

11 about the document prepared by engineers and dated the 6th of September.

12 So you're saying, again, that you first saw it the other day when you were

13 examining it with Mr. Waespi?

14 A. That's correct. I have not seen these reports in my period in

15 Sarajevo, but that was quite normal - I have to add that to my

16 declaration - since UNMOs were supposed to work impartially. So we never

17 received that report on our level, maybe on the higher UNMO level in

18 Zagreb or in Sarajevo.

19 But on the teams, we were only confronted with our own reports and

20 the summarized reports which our senior military observer made every day

21 which he sent to Zagreb. That is the only reports that we were seeing, so

22 it was quite normal that I didn't have a view on every other report which

23 was written by either UNPROFOR or by the French sector commander.

24 Q. Mr. Konings, I will now deal with a few documents that you worked

25 on and that were prepared on the 28th of August, 1995 and another one

1 compiled on the 29th of August, 1995, as well as a report compiled by

2 Lieutenant-Colonel Janvier addressed to the UN Secretary-General Mr. Kofi

3 Annan.

4 Can we please look together at document 65 ter number 198, P85.

5 Yesterday, you analysed this document with the Prosecutor, Mr. Waespi.

6 MR. TAPUSKOVIC: [Interpretation] Can we please have this document

7 displayed on our monitors.

8 Q. I have this report in B/C/S; but in order not to spend too much

9 time on it, let's first look at the date. It says, "the 28th of August."

10 Is that correct?

11 A. That's correct.

12 Q. "Patrol leader, Colonel Konings;" is that right?

13 A. That's correct.

14 Q. There's the general part of this report and your tasks. And under

15 item 2, where you mention the bearings or the azimuth, I will read to

16 check whether you abide by that. "The bearings in combination with the

17 estimate angle of impact could not provide evidence of the origin of fire

18 since it is not known with which charge the projectile had been fired."

19 Do you abide by what you said on that day up to this date?

20 A. I would like to ask the interpreters to use another word for

21 "abide," because I cannot place that correctly.

22 JUDGE ROBINSON: Do you "stand by." That's what it means.

23 THE WITNESS: I understand. I still abide or I still stand by

24 what I said or what I wrote in that part of my report.

25 MR. TAPUSKOVIC: [Interpretation]

1 Q. I'm not going to read the whole document. On that date, you were

2 in touch with an investigation team of the Ministry of the Interior of

3 Bosnia and Herzegovina. So if we look at the very end of your report,

4 i.e., item 3, that's the last paragraph of your report dated 28th of

5 August, 1995, and it read as follows --

6 THE INTERPRETER: Interpreters note: This is not item 3.

7 JUDGE ROBINSON: Just a minute. Please identify the correct item.

8 Mr. Waespi to the rescue.

9 MR. WAESPI: It's on the last page -- the second page. It is

10 called, "5 Patrol leader's remarks," and it's subsection 3 of that.

11 JUDGE ROBINSON: Yes, I see it now.

12 MR. TAPUSKOVIC: [Interpretation] Yes, Your Honours. I omitted to

13 mention that we should have moved to another page. Page 2, last paragraph

14 on this page, which reads, item number 3 -- These are patrol leader's

15 remarks, and this is you, Mr. Konings. Is that correct?

16 A. That's still correct.

17 Q. It reads as follows: "The investigation team tried very hard to

18 prove that the attack came from the Bosnian Serb side."

19 Is this -- does this mean that it was the Muslim investigators who

20 tried very hard to convince you that the shot came from the Serbian side?

21 A. With the investigation team meant in point 3 of this point -- I

22 mean, the team from the Ministry of the Interior, yes.

23 Q. And to round this up, it goes on to say: "Due to the normal use

24 of heavy mortars," and this is now your view; is that correct?

25 A. Which point are you aiming at now? Oh, the next sentence. I see.

1 Yes. That is my view, yes.

2 Q. And then you concluded: "But there is no hard proof on this

3 fact."

4 Is that correct?

5 A. That is -- that is correct on the time that I stated that there

6 was no hard proof, since we didn't know the charge that was used.

7 Q. Did your views coincide with the position of Lieutenant-Colonel

8 Janvier, conveyed to Mr. Annan, Secretary-General of the UN, which says --

9 it's document DDD-10 [as interpreted], also dated the 28th of August, so

10 the same date when you prepared your report.

11 MR. TAPUSKOVIC: [Interpretation] Can we have that document called

12 up so that Mr. Konings can have a look at it. That's page 1.

13 Q. This is being sent by General Janvier addressed to Mr. Annan. Is

14 that right?

15 A. You're asking this to me?

16 JUDGE ROBINSON: Yes. He is asking to you confirm.

17 THE WITNESS: I think so. I have also not seen this report when I

18 was in Sarajevo, so I'm not a person whether you should ask the question

19 whether this report was sent by General Janvier to Mr. Kofi Annan. I

20 cannot give you any -- if the report is here, I think it has been sent.

21 But I'm not the guy to tell you exactly what has happened with this

22 document.

23 JUDGE ROBINSON: Very well. Let's see to what extent you can

24 help.

25 MR. TAPUSKOVIC: [Interpretation] Your Honours, can we look at page

1 3 of the English version of this document, and I have a question for

2 Mr. Konings in that respect.

3 Q. It talks about UNPROFOR, Sector Sarajevo, the date is the 28th of

4 August, 1995. If you need time, please go ahead and read the whole

5 paragraph; however, further down, there's a sentence that speaks about

6 mortar shells and it says that it is very difficult to -- it is impossible

7 to determine the level of charge used to fire the projectiles.

8 Can you see that sentence, sir? And is this your position as well

9 that you expressed in your reports, dated also the 28th of August? That

10 was my question.

11 A. I'm still reading the paragraph, so if you grant me some extra

12 minute, I will be grateful.

13 Q. Yes, yes.

14 A. Yes. This point of view on the fact that you have to know the

15 charge of the mortar to establish a fixed position where the mortar was

16 fired is at the same -- the same point of view as we wrote in our patrol

17 report.

18 Q. Thank you.

19 MR. TAPUSKOVIC: [Interpretation] Can we now show Mr. Konings

20 document 65 ter 02605, dated --

21 THE INTERPRETER: Can the counsel please repeat the date.

22 JUDGE HARHOFF: Mr. Tapuskovic, can you repeat the date?

23 MR. TAPUSKOVIC: [Interpretation] 29th of August, which means the

24 day after the report we've just seen, which was dated the 28th of August.

25 Q. Do you see it, sir? So you have this report in front of you.

1 It's another report compiled by your patrol, only now it's dated the 28th

2 of August, and again Lieutenant-Colonel Konings is cited here as the

3 patrol leader. Is that correct?

4 A. That's correct.

5 Q. It has its general part which reads that the task was assigned by

6 the UNMO headquarters in Sarajevo; is that correct?

7 A. That is correct, since every task we did was -- was given us by

8 the UNMO HQ.

9 Q. The next sentence reads: "This report is related to the UNMO

10 patrol report issued on the 28th of August, 1995."

11 Is that correct?

12 A. That is correct.

13 Q. Then you mentioned some meetings. But under item 4, there are two

14 paragraphs. Item 4 talks about meetings and the goals of the meetings,

15 and you also mention some aspect from the previous report. And under

16 lower case A, you say, "In the time when the five impacts happened, UNMOs

17 working at OPS --

18 THE INTERPRETER: Interpreters note: The English version is

19 completely illegible.

20 JUDGE ROBINSON: Mr. Tapuskovic, the English version is illegible,

21 so read slowly.

22 MR. TAPUSKOVIC: [Interpretation] It's page 2, I forgot to mention

23 that. I will read it slowly.

24 "At the time when five impacts happened, UNMOs and ICZ,"

25 abbreviation unknown, "team working at OP, neither," then this section is

1 illegible, "neither from Bosnian army territory," illegible, "Bistrik and

2 Colina Kapa."

3 It means at that stage you knew where Colina Kapa was. So when

4 you wrote this report, you knew very well where Bistrik and Colina Kapa

5 were; is that true?

6 A. If I stated it there, then I knew and I have not said that I

7 didn't know it at the time. I cannot recall the exact location today, 12

8 years after the date. So the specific details of the complete area around

9 Sarajevo, to mention the names, I can only designate if you need me to do

10 that on a map, not from recollection. Everything that I wrote here in

11 this report, with names and suffice to say it was done on that day and was

12 correct on that day, and I signed it.

13 Q. This paragraph ends with your stating that you were unable to

14 establish that this projectile had been fired from the Bosnian Serb

15 positions either. That's how this paragraph ends, with this statement of

16 yours.

17 A. Well, the paragraph is very hard to read on the screen, so if

18 we -- if somebody could enlarge it a bit, because some of the words I

19 cannot see.

20 Q. This document has been disclosed to me by the Prosecution, and it

21 says: "Neither from the territory of the BH army, nor from the territory

22 of the Bosnian Serb army."

23 Is that what it says?

24 A. It says --

25 JUDGE ROBINSON: What paragraph is that, Mr. Tapuskovic?

1 MR. TAPUSKOVIC: [Interpretation] 2 lower case A.

2 THE WITNESS: It says that the UNMOs on OP1 did not hear outgoing

3 rounds either from the territory of the Bosnian Serb army terrain or from

4 the Bosnian Serb army terrain. It doesn't say anything further. It just

5 said they didn't any outgoing round from their vicinity from Bosnian army

6 territory either from Serb army territory, and that's just stating the

7 simple fact that they didn't hear anything on outgoing rounds.

8 MR. TAPUSKOVIC: [Interpretation] .

9 Q. But it also says that they didn't see either. Were you referring

10 to radar operation at that time?

11 A. They were not referring to -- to a radar operation because we had

12 no radars. The radar which available inside Sarajevo was acting under the

13 command of UNPROFOR and completely independent from our operations.

14 Q. We'll go back to this, but let's finish this document first.

15 In the remarks made by the patrol leader, item 3, last sentence,

16 reads: "That all the reports as stated in the first report remain

17 unchanged and valid."

18 Is that correct?

19 A. I'm not -- I'm not able to see this sentence on the screen. So

20 before I will say anything about that, I need to see that sentence on the

21 screen.

22 Q. That's a technical matter. I have this here, underneath it's your

23 signature, Lieutenant-Colonel Konings. Patrol leader?

24 A. I fully believe what you are saying, but I don't see that specific

25 sentence and I don't see my signature.

1 Now I think I see something. Yeah, I wrote that during that day,

2 and I signed it as well. Yes, that is correct.

3 Q. So, you stand by your findings in all points, and this report that

4 augments your findings that nothing was heard convinced you further that

5 your first report was accurate. Is that correct?

6 A. Yes. The second report supports the first report, and the second

7 report includes also the opinion of the two UNMOs on OP1, that they

8 neither heard or saw outgoing rounds, and that were the pure facts what we

9 as an UNMO team could gather on that two days; nothing more and nothing

10 less.

11 MR. TAPUSKOVIC: [Interpretation] Your Honours, first of all, I

12 would like to have document 65 ter 02065, and I would like that document

13 to be marked as a Defence exhibit. The document has not been tendered by

14 the Prosecution, and I would like to have this document entered as a

15 Defence exhibit. It's the document dated the 29th of August.

16 JUDGE ROBINSON: Yes, we admit it.

17 THE REGISTRAR: As Exhibit D118, Your Honours -- Sorry.

18 Registry's correction: D117.

19 MR. TAPUSKOVIC: [Interpretation]

20 Q. Mr. Konings, not to loose any time now, I would like to read once

21 again the basic position from the document of the 28th, which states:

22 "The azimuth combined with the impact angles do not prove the origin of

23 the fire, because --

24 THE INTERPRETER: The interpreters are not reading from the

25 original.

1 MR. TAPUSKOVIC: [Interpretation]

2 Q. No, no, not that. I apologise. The last sentence, where you said

3 that you set off from the fact that probably because of the usual use of

4 heavy mortars, it probably came from the Serb side. Is that what you said

5 a little bit earlier?

6 The investigation team put in a lot of effort to indicate or to

7 show that the attack came from the Serbian side, which probably, due to

8 the usual use of heavy mortars. Is that what you said earlier?

9 JUDGE ROBINSON: Mr. Tapuskovic, it's not clear to me what you are

10 putting to the witness. Are you putting something that is in the report?

11 MR. TAPUSKOVIC: [Interpretation] Yes, yes. It's the first report.

12 I asked the witness about this earlier, and he said that that was his

13 position, that it was probably fired from the Serb side since there was

14 use of heavy mortars. But there was no firm proof of that. That is the

15 document of the 28th.

16 Q. Is that how it was, Mr. Konings? Because we don't want to waist

17 any more time?

18 JUDGE ROBINSON: Let me hear Mr. Waespi.

19 MR. WAESPI: Just to be helpful, it's the earlier document, P85,

20 and again second page, the third point on the second page, just before the

21 body.

22 JUDGE ROBINSON: Yes. Thank you.

23 Yes, Lieutenant-Colonel, what is your response to that.

24 THE WITNESS: My response is the following: On one hand, there was

25 on that day, and also the day after, new hard proof that the round came

1 from came from Serb-held territory, just because of the fact that we

2 didn't know with which charge the round was fired. I'm talking about the

3 kill round, the one which landed in Markale. That's the first point.

4 The second point I want to make is that after talking to my UNMOs,

5 who were working on OP1, and hearing their statements, which are in the

6 second report, they didn't hear or see any outgoing round from neither

7 Serb territory or Bosnian army territory.

8 And the third part of my statement is being there already for

9 nearly five months in Sarajevo, and having seen the way that

10 120-millimetre mortars were used, I came to the conclusion that to the

11 analysis that there was nothing different from what we had witnessed

12 already months before, in all the months before, which was purely, very

13 simple, the use of a single mortar rounds shot anywhere in the city; not

14 aimed against military target, but in a way that I called in another

15 report as a harassing fire against civilian people.

16 But, again, I stated that in both reports there was no hard proof,

17 no hard evidence whatsoever. The fact that I stated that this, to my

18 opinion, came from the Serb side was an analysis to my report which went

19 up to in the chain of command.

20 MR. TAPUSKOVIC: [Interpretation]

21 Q. Your assertion was that the these had to have been mortars because

22 you had never heard 120-millimetre mortars being fired from the territory

23 of the army of Bosnia and Herzegovina; is that the gist of you're

24 assertion?

25 A. There are of course many, many things to say about this question.

1 There are many factors to influence everything what happens; and the fact

2 that we never or hardly ever saw Bosnian army troops using 120-millimetre

3 mortars inside the territory of the city of Sarajevo, so of the inside of

4 the confrontation line, I never have seen it or heard myself personally,

5 neither did my personnel see it.

6 There is, in one occasion, a report that was not of my own team

7 but from another team that a Bosnian army team fired a mortar from inside

8 the city to the outside of the city. So we had never any proof, visual

9 proof from my team, either OP1, either during patrols, either from the

10 team base that the Bosnian army used 120s from the inside of the city to

11 fire at Serb positions outside the city.

12 MR. TAPUSKOVIC: [Interpretation] Your Honours, I would like your

13 permission regarding this problem that we are facing right now, and that

14 is with the aid of the interpreters - we're not going to need more than a

15 minute or two - I would like to present a document which shows that

16 only -- or just on the 4th of July, 1995, the army of Bosnia-Herzegovina

17 fired 120-millimetre shells, and this is according to the report by the

18 BiH army, the commander of the 12th Division.

19 I have a lot of these documents, but it indicates that a month and

20 a half before the 28th in one day, or over several days, one hundred

21 120-millimetre mortar shells were fired. This is a document of the 4th of

22 July, 1995, signed by the brigade commander; the commander of the 12th

23 Division, Fikret Prevljak, in active combat, considerable quantities of

24 MTS were spent; and then it is said 60 -- that 80 to 200 mines [as

25 interpreted]; and 120-millimetre, one hundred items. So according to this

1 one document, alone, on the 7th --

2 JUDGE ROBINSON: Instead of a speech, just put a question. What

3 is the question? You want to show that document? Is it to go on the

4 ELMO? Is it an e-court document?

5 MR. TAPUSKOVIC: [Interpretation] Your Honours, it's a document of

6 the B and H army, an order that was issued by the commander of the forces

7 in Sarajevo, Fikret Prevljak. It is not translated. And in view of what

8 I heard yesterday from Mr. Konings, I would like to place this document --

9 to be given an ID number, because I see, judging by this document, that on

10 the 7th of July, according to the document of the army of

11 Bosnia-Herzegovina - and it's a document that I received from the archives

12 of the army of Bosnia-Herzegovina - in one day 100 such mortar shells were

13 fired. It can be marked for identification. I'm just showing Mr. Konings

14 the following.

15 Q. Did you hear on the 7th of July from Sarajevo --

16 JUDGE ROBINSON: Thank you.

17 Mr. Waespi is on his feet.

18 MR. WAESPI: Yes. I'm not doubting that my friend, Mr. Tapuskovic

19 is quoting correctly. But before a document is shown, and in fact read

20 out to the witness, I would love to see the document, even if it's not

21 translated, so I can see what is read from so there is a record of what is

22 put to the witness.

23 JUDGE ROBINSON: Do you have -- how many copies do you have?

24 MR. TAPUSKOVIC: [Interpretation] Since the break will be with us

25 soon, I'm going to give it to Mr. Waespi to look at over the break, and

1 then ...

2 JUDGE ROBINSON: Yes. Very well. We'll take the break now and

3 the break is 20 minutes, and I will give you an additional 15 minutes.

4 And I make it clear that that is to allow you to consult with your client,

5 because you were not able to consult with him before on the -- the

6 photographs.

7 We are adjourned.

8 --- Recess taken at 3.43 p.m.

9 --- On resuming at 4.21 p.m.

10 JUDGE ROBINSON: Yes, please continue, Mr. Tapuskovic.

11 MR. TAPUSKOVIC: [Interpretation] Your Honours, this document that

12 we discussed before the break, can we please have it on the ELMO and then

13 the interpreters can translate it. It's just a few sentences. I'm going

14 to read very slowly.

15 Q. "Army of Bosnia-Herzegovina the command of the 12th Division,

16 STR/number 022-2-182, Sarajevo, the 4th of July, 1995." And relating to

17 that, I would like to ask Mr. Konings if on the 4th of July and

18 thereabouts he was in Sarajevo?

19 A. I would have to check my records, but I cannot say precisely

20 whether I was specifically on that day in Sarajevo, because on two

21 occasions I was on leave. So, I cannot say yes, or I cannot say no.

22 Q. In the statements of yours that I read, and that I'm going to deal

23 with later, there are five of your statements. You did not once mention

24 that you left Sarajevo between the 5th of May and October, when you

25 actually left Sarajevo for good?

1 A. Yeah, that's correct, because that was never asked of me. And

2 since I was questioned specifically about the Markale incident, 28th of

3 August, and in that period I was present in the city, so have I been on

4 leave during -- twice, a short period in my -- in my time in Sarajevo,

5 that's correct. But I cannot recall the exact timings anymore.

6 Q. But I have this report, and I have 30 more such reports, but I

7 picked this one and now I'm going to read. It's the combat report of the

8 1st Corps for that day, and under item 2: "Our forces," and then 2.4, it

9 says: "Logistics."

10 MR. WAESPI: Mr. President.

11 JUDGE ROBINSON: Mr. Waespi.

12 MR. WAESPI: Yes. Of course, I can do it in re-examination,

13 although I still only have the B/C/S version. But in all fairness, maybe

14 it should be into context, the first sentence starts that the Serbian army

15 started to attack with artillery civilian objects, that's number one; and

16 later in that paragraph, he talks about that UNPROFOR headquarters were

17 engaged by the Bosnian Serb army. So I think it's fair to put it on to

18 the record before going to the bottom of the page.

19 JUDGE ROBINSON: Yes, Mr. Tapuskovic. It's a short document.

20 Let's have everything in context.

21 MR. TAPUSKOVIC: [Interpretation] Your Honours, absolutely, all of

22 this, yes. This is a document that will be used by the Prosecution and by

23 the Defence. I'm asking this in the context of the claim by the witness

24 that he had never heard a single mortar shell of 120-millimetres being

25 fired from Sarajevo. This is a document that speaks of how on the 4th of

1 July, 1995, 100 such shells were fired of 120-millimetres.

2 JUDGE ROBINSON: Proceed.

3 Mr. Waespi, you may re-examine on this, if you wish.

4 MR. WAESPI: Yes, Mr. President. Also, as a point of caution,

5 nowhere it say this is document that these shells were fired from

6 Sarajevo. I don't see that in this document. It talks about the 12th

7 Division. It talks about some brigades, but I'm not familiar and I wonder

8 whether the witness is familiar where these brigades and divisions were

9 located.

10 THE WITNESS: If I may react, Your Honour. I can clarify this

11 very simple. If can I recall, I have stated that I haven't seen or heard

12 120-millimetre mortars fired from my part of Sarajevo, from my area of

13 operations, where my team was operating. That area of operations was very

14 small. It was a very small part of the city of Sarajevo, which stretches

15 in length of kilometres between the mountains. My area of responsibility

16 was the central, old part of the city, excluding the confrontation lines.

17 So when I say that I never heard or saw a 120-millimetre mortar

18 being fired by the Bosnian army, it is from that specific area of

19 responsibility; and, of course, in times during many days that there were

20 heavy fightings in the confrontation line, we have witness that. We have

21 filed reports on that. But the fire exchange during that days was so

22 heavy that it was impossible for to us to say who was doing what,

23 especially, and I have to stress that, with the very, very limited

24 technical means UNMOs have available for doing their job.

25 If you are from a distance, let's say one and a half kilometres or

1 two kilometres, from an area where fighting is going on, and if you only

2 have available a poor binocular and a very simple compass, then you are

3 not capable, no matter how good your basic military skills are, to

4 establish who is doing what.

5 I cannot stress enough that I stay with what I stated before. I

6 didn't see or didn't hear, neither did my team, 120 rounds coming out of

7 my part of the city of Sarajevo. So it can be very well that the Bosnian

8 army itself claimed that they fired 100 or maybe 200 rounds, but that has

9 happened in another part of Sarajevo where none of my responsibility was

10 and where I had no view of what was happening there.

11 JUDGE ROBINSON: Thank you.

12 Yes, Mr. Tapuskovic.

13 MR. TAPUSKOVIC: [Interpretation] Your Honours, I take note of

14 these remarks. This was signed by Commander Fikret Prevljak who was

15 commanding units of the 12th Division that were entirely in Sarajevo.

16 This was signed by the commander of the 12th Division who was acting from

17 Sarajevo. So, please, I would like to read that he claims that in active

18 combat, considerable quantities of MTS material and equipment was sent and

19 spent and then he says: "100 pieces of 120-millimetre shells."

20 So I would like to ask the witness how is it possible that you did

21 not hear in one day so many shells of this type being fired.

22 THE WITNESS: Again, I can only stress what I said. We were not --

23 from my part of the city were no -- we didn't hear or see rounds be fired.

24 Again, I didn't say we didn't hear the fighting around Sarajevo. Of

25 course, you cannot overhear when there is a big fire exchange going on in

1 the confrontation line or further away in the city.

2 But we were ordered, specifically by our commanders, to watch our

3 own area, to operate in our own area, and we were ordered not to speculate

4 on anything else. So what we reported was that there was a big fire

5 exchange going on in the confrontation line from grid X to grid Y during

6 time A to time B. Not specifying --

7 JUDGE ROBINSON: Thank you, thank you, thank you.

8 Mr. Tapuskovic, I think we have -- you have dealt with this now

9 sufficiently. Please move on to another topic.

10 MR. TAPUSKOVIC: [Interpretation] No, no.

11 Q. My last question on this is: How did they then manage to identify

12 on the 28th precisely by sound and other elements that 120-millimetre

13 shell was fired on the 28th of August in 1995? How did they manage to

14 determine that? Can they explain that when they did not identify any

15 previously fired shells? How can they explain that?

16 MR. WAESPI: Mr. President, if I--

17 THE WITNESS: I am sorry. Let me give an answer.

18 JUDGE ROBINSON: Yes.

19 THE WITNESS: I think the facts you are now stating are not

20 correct. We were previously able to identify 120 rounds, especially when

21 it -- most of the times when we were able to identify it, it concerned

22 single rounds. And a single round you can identify, especially when the

23 area is more quiet. And now I'm coming to the point I want to make. On

24 the 28th of August, there was no single shot fired during the whole day,

25 only in the morning. Very early in the morning, at 8.00, there was a fire

1 exchange from an another area in the say. It was quiet. It was a bright

2 day, so sounds carry very far.

3 Until the moment that this round was fired, the killing round,

4 there was no fire exchange whatsoever. So there was -- we were not

5 distracted by any other noise from fire exchanges from both sides. And

6 that gives the explanation that in this case we could very clearly

7 determine whether we heard something, yes or no.

8 JUDGE ROBINSON: Yes. Thank you.

9 Mr. Tapuskovic.

10 MR. TAPUSKOVIC: [Interpretation] Your Honours, you said that we

11 have exhausted the topic, I would just like to ask for this document to be

12 a given an ID number as a Defence exhibit. I could keep asking more, but,

13 of course, I'm going to abide by your instructions. But I would like to

14 have there tendered and given an ID number.

15 JUDGE ROBINSON: The Chamber has heard enough. We have to make up

16 our minds about the evidence.

17 [Trial Chamber confers]

18 JUDGE ROBINSON: Okay. It's marked for identification pending

19 translation.

20 THE REGISTRAR: Your Honours, this will be marked for

21 identification as D118.

22 MR. TAPUSKOVIC: [Interpretation] Your Honours, thank you for the

23 time given to me to look at the photographs. After an analysis of the

24 photographs, I would like to show the witness only one photograph; that's

25 the 65 ter number 03034, page 21.

1 No -- yes.

2 Q. This photograph that we see in front of us, if I recall correctly,

3 you said this is "Sniper Alley"; is that correct?

4 A. That is correct.

5 Q. This building at the end, do you know that that used to be a

6 government building -- the government building?

7 A. I'm not -- I cannot recall that, what the original purpose of the

8 building was.

9 Q. Yes, understandable. But when we look at that building, does it

10 not dominate -- isn't it a dominate feature in this street named "Sniper

11 Alley"?

12 A. Yes, it's a quite dominant feature.

13 Q. And you know that on the left-hand side, although you cannot see

14 it in the photographs, there were even two higher buildings, the so-called

15 Unis buildings. Do you remember that there were two higher buildings to

16 the left of the ones that we see to the left in the photograph?

17 A. Yes, I recall these buildings.

18 Q. I'm not sure if the Prosecutor had tendered this for -- to

19 evidence; and if not, I would like to tender it as a Defence exhibit,

20 please.

21 [In English] Yes?

22 THE REGISTRAR: Your Honours, this is in evidence as Prosecution

23 Exhibit 362.

24 JUDGE ROBINSON: Thank you.

25 MR. TAPUSKOVIC: [Interpretation]

1 Q. Mr. Konings, one more thing lest I should forget. A while ago you

2 said that the 50 [as interpreted] shells had been fired from two different

3 positions; four from one position and one from another position. Is that

4 correct?

5 A. I suspect that you mean that you point that the five shells. The

6 translation says 50 shells, but I think you mean the five projectiles that

7 were fired on the 28th of August, that day. My opinion was they were

8 fired from two locations. If that is the idea, then my opinion on that

9 day was that they were fired from two positions.

10 Q. The one that hit Markale 2 was enough to hit the target; is that

11 correct?

12 A. I do not know, first of all, what the exact target was because I

13 was not at the -- at the firing location from the mortar. So it hit a

14 target, but I don't know what the target was.

15 Q. Maybe it wasn't clear enough. It was sufficient for one mortar to

16 be fired for it to land at this specific location; is that correct?

17 A. I cannot say that. I only can state the fact that one mortar

18 round landed in the street, at Markale, and four other rounds landed

19 someone hundred metres from there. So I cannot state anything more

20 than -- than what I have seen there. I cannot speculate about the -- the

21 orders the mortars -- the one mortars or the two mortars had to fire at.

22 I don't know anything about the grids. They were ordered or the way they

23 were fired. So I stick to the point that there was one mortar round

24 falling into the street doing the killing work, and there were four others

25 falling in another place a few hundred metres from there.

1 Q. Yesterday, when you spoke about the number of projectiles that

2 have to be fired in order to engage a target and achieve something, on

3 page 64, you said that at least two or more shots were required for at

4 least one shell to hit a specific target. That's what -- what you

5 explained yesterday on the page in the transcript that I quoted.

6 A. If it's in the transcript, I possibly have said it or I'm sure I

7 staid. But I think I referred -- yesterday, we were referring to the

8 regular military use of 120-millimetre mortars. But before I go into

9 anything further, I would like to read what I said yesterday before --

10 because otherwise I start -- we start discussing about something what I

11 first would like to know myself again.

12 Q. I'm reading from the paper that I have in front of me. "In most

13 cases, a specific procedure is being followed and" --

14 JUDGE HARHOFF: Which page, Mr. Tapuskovic?

15 MR. TAPUSKOVIC: [Interpretation] Page 60, line 4 of the working

16 order --

17 THE INTERPRETER: Interpreter's correction: Draft transcript.

18 JUDGE ROBINSON: Of yesterday's evidence.

19 MR. TAPUSKOVIC: Yes.

20 JUDGE HARHOFF: I apologise. I have pages starting 3.505 and

21 going on.

22 MR. TAPUSKOVIC: [Interpretation] This is what has been provided by

23 my colleague. All I can say is that it's page 60, line 4 of the draft

24 version; otherwise, I don't know how I can help the Chamber.

25 JUDGE HARHOFF: I have on my screen page 3.560, starting with the

1 witness: "No, Your Honour, the firings we could not designate to a

2 certain source," and so on and so forth.

3 MR. TAPUSKOVIC: [Interpretation] Your Honours, I'm not going to

4 waste any more time. I have exhausted this subject, and I will not go

5 back to it.

6 Q. I'd like to ask the witness in order for a certain result to be

7 achieved by firing from mortars, 120 millimetres-- 122 millimetres, how

8 many shots need to be fired in order to hit a desired target?

9 A. That depends on a lot of factors which will take at least an hour

10 to explain the ballistics background. Let's put it this way, one round

11 can hit a target. When you have sufficient data from the target you want

12 to hit and from -- to influence your ballistic data like weather reports,

13 like winter reports, et cetera, you are able to fire a round more or less

14 in the area you want to have it. And if you have a grid from the target,

15 you can use one round to try to hit it. You can be lucky; you can be

16 unlucky.

17 So to my opinion, the killing round, because that's where we are

18 all talking about - let's not full around - the killing round can have

19 been a lucky shot. But that, again, that fit into the pattern we saw for

20 the months before; just firing single rounds into the city knowing that

21 you were hitting always something. Well, and in this case, people were --

22 well, the round hit the street where a lot of people were around.

23 And in other case it is hit the roof and did only some superficial

24 damage. That's my opinion on that. So a single round when it hits the

25 target, then it can do a lot of damage in this case; and for the same

1 reason, it is would have -- that specific round would have landed 50 metre

2 further away and hit the roof of a building.

3 Q. You claim, therefore, that this was a randomly fired round that

4 hit this specific location completely accidently?

5 A. No. You take my words wrong. All the fire which was done, to my

6 opinion, was done randomly but with a certain pattern, and everybody knew

7 that certain parts in the city - and I'm quite sure that the Serb army

8 knew that as well - certain parts of the city were more interesting than

9 the others. I yesterday referred to cross roads, to water collection

10 points, so the use of the street where the Markale incident took place,

11 which was a main, a main street, must have been known by both parties

12 involved in the conflict then, in that period.

13 So that information belongs to the intelligence gathering of any

14 army in the world. So if you know that something is going on there or

15 that a lot of people are gathered there, which was a normal pattern also

16 in the days and months before, you can try to hit that area with one or

17 more rounds, which happened that morning.

18 Q. We'll get back to that later. Now I'm going to follow my sequence

19 of questions.

20 First of all, is it fair to say that you have absolutely no

21 medical knowledge, that you know nothing at all about any issues relating

22 to medicine?

23 A. I have some basic military medical knowledge. We have some

24 medical training, but I'm definitely not a medicitian [sic] or a medical

25 soldier, no.

1 Q. Yesterday, you said that after some 50 minutes you arrived at the

2 scene, that you spent sometime there, and after that you went to the

3 morgue. Would it be fair to say that that was about after an hour or one

4 hour and a half?

5 A. I think that is correct.

6 Q. You examined 40 people in the morgue. Can you tell me how long

7 did the examination of these bodies take, and there were approximately 40

8 bodies?

9 A. I'm not quite sure how long exactly, but it took a period of,

10 let's say, about 15 minutes. We didn't examine the bodies one by one.

11 What we always did was a general idea, a general view of what we saw to --

12 to bring that into our report.

13 Q. You know nothing about how long it takes for a person to lose all

14 the blood from his or her body, a person who eventually died?

15 A. No. I can give you no figures about that.

16 Q. Also you know nothing about how the time of death is established.

17 At that time, you knew nothing about that?

18 A. No. As I stated, I have been trained in basic military medical

19 skills.

20 Q. You never received a report on -- which would show the time of

21 death of the persons who were already dead at that time?

22 A. I have never seen -- I have never received a report with times of

23 deaths of people involved in that -- in that explosion, no.

24 Q. In any case, after what we heard from you yesterday, would it be

25 fair to say that not even then did you see dead bodies, nor did you do

1 that ever when you visited the scenes and conducted on-site

2 investigations?

3 A. I do not think I understand the question well, so could you

4 rephrase it.

5 Q. On the 28th of August, 1995, I understand that the wounded had to

6 be evacuated very speedily. But would it be fair to say that you didn't

7 see any of those dead bodies, the 40 dead bodies, at the scene, except for

8 body parts?

9 A. That is correct. That is what we stated yesterday, so that's

10 correct, yes.

11 Q. Yesterday, you said that the effect that you observed was much

12 more powerful than any among you including yourself had ever seen before.

13 Is that what you said yesterday?

14 A. I'm not quite sure that I used the word "powerful," but the scene

15 I saw on that date was the most, how shall I put it? I cannot find the

16 right English word for that. It was the most impressive scene that I saw

17 in my period in Sarajevo.

18 Q. I don't know if I got the right translation. Instead of saying

19 the "most impressive," I suppose you meant the most horrendous. The

20 translation that I received said "most impressive." I would describe it

21 as a terrifying sight.

22 A. Yes, that's correct. Again, it's a bit tricky for me to -- to

23 refer to what was said yesterday, because I don't have that text before

24 me. The scene was horrendous, was terrifying, and, as I also told, was

25 very tense. And that made it the most specific situation that I

1 encountered and also my colleagues encountered so far in my period in

2 Sarajevo.

3 Q. Given that so many casualties were there, around 120 of them, were

4 you surprised that a 120-millimetre mortar shell could produce an

5 overwhelming effect. Nowadays, we're seeing that this number of people

6 are being killed in Iraq by 120 kilograms of explosives. Were you

7 surprised to see 120 casualties as a result of a single round, mortar

8 shell round?

9 A. When I arrived at the scene, at the first moment, of course, you

10 are surprised by the sheer number of people involved in that. But when

11 you are starting to work in the collection of the data and you see the

12 area it happened, the environment, because that is of very big importance,

13 you realise that one single projectile from that calibre can do the work.

14 That is a combination of factors, as it is always in the -- in the

15 use of artillery -- of mortar ammunition. The projectile exploded in the

16 street between high buildings. That's the first factor, which means that

17 the pressure of the projectile cannot get away.

18 It's comprised in a smaller area. There were a lot of glass still

19 in the buildings, so a lot of the buildings still had windows, and glass

20 which is destroyed can do a lot of nasty things. And also the shrapnels

21 of the projectiles, which are many thousands, could affect the people, and

22 one extra factor is that it was very busy on the street. There were lots

23 and lots of people on the street that morning.

24 So when you count these factors together, then I think it's -- and

25 looking to the power, the explosive power of 120 shell, which in our case

1 in the Netherlands army, at least has five or I think even seven

2 kilogrammes of TNT, concealed in a -- in a small area with high buildings

3 around it, it's my conclusion that one projectile of that calibre can do

4 the work.

5 Q. Yesterday, you said that you were surprised both by the political

6 and military effects of this incident. Can you elaborate on that?

7 A. I certainly could, but I don't see whether that is important for

8 the further explanation of this point, so I -- I rather prefer not to

9 answer this question.

10 JUDGE ROBINSON: Well, it's not for you to determine. I will

11 determine that.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Mr. Tapuskovic, what do you mean "by the

14 political and military effects of the incident," and explain how they are

15 relevant to the issues?

16 MR. TAPUSKOVIC: [Interpretation] Since the witness himself said

17 that he is unable to give me an answer to this, what I meant was this:

18 Was he surprised in view of the fact what he found at the scene, that it

19 was impossible to determine --

20 JUDGE ROBINSON: Well, are you --

21 MR. TAPUSKOVIC: [Interpretation] Your Honours.

22 Q. Sir, you established that it was impossible to determine the

23 origin of fire on the 28th of August. Does that correspond to your

24 reports that we have been dealing with here?

25 A. I don't follow your question. I have stated many more times, many

1 times during my explanation, yesterday and today, that we were not able to

2 determine the origin of fire. You have seen that in the reports coming

3 back, so that is what I can state.

4 JUDGE ROBINSON: You determined the direction from which the fire

5 came.

6 THE WITNESS: We determined, that's correct, the direction from

7 the fire came.

8 JUDGE ROBINSON: The azimuth.

9 THE WITNESS: But that is something different than the origin of

10 fire.

11 JUDGE ROBINSON: Yes, Mr. Tapuskovic, move on.

12 MR. TAPUSKOVIC: [Interpretation]

13 Q. But were you surprised that on that same evening all the world

14 media said that this was done by the Serbian side? Were you surprised by

15 that, in view of the fact that it was impossible to determine the origin,

16 both by you and by General Janvier? Were you surprised to hear that?

17 A. I can be very short in my answer. I was not surprised at all that

18 evening, because I did not know anything about the international news and

19 the international view. I was busy that evening dealing with this

20 investigation team of the Bosnian Ministry of the Interior. I was busy

21 commanding my team. And the most simple reason is that I did not know.

22 So I could not be surprised by the international reaction, because

23 we had no radio or television communication in our house since we had no

24 electricity. I was completely shut off from information from the outside

25 world, so I could not be surprised, yes or no.

1 Q. Mr. Konings, during your investigation of all of this to date, you

2 have provided five statements on this topic to the Prosecutors and

3 investigators. Do you recall providing five statements to the

4 investigators and several directly to the Prosecutors. Do you remember

5 that?

6 A. It were numerous. So if you say it are seven, then probably it

7 will be seven.

8 Q. I said five; I don't know how it was translated.

9 A. Sorry. You said five, correct.

10 Q. Do you recall, and that way I don't have to look for that in the

11 transcript, you said yesterday that there were rumours in Sarajevo that

12 sometimes bodies were planted in places where they actually did not

13 perish. Do you remember saying that yesterday, that there were such

14 rumours?

15 A. Yes, I remember that I said that yesterday.

16 Q. These were rumours that you heard in Sarajevo itself; is that

17 correct?

18 A. That is correct, yes.

19 MR. TAPUSKOVIC: [Interpretation] Could the witness please be shown

20 his statement that you gave on the 31st of May, 2006. That is document

21 DD00-0621. Can we look at the first page, please.

22 Q. Do you recall that that is the statement that you gave? I must go

23 to this statement first. Is that your statement? Please look at the

24 signature. Is that the statement of the 31st of May, 2006?

25 A. Yes. That is my statement, that's correct.

1 MR. TAPUSKOVIC: [Interpretation] Can we now look at paragraph 7 on

2 page 3, the end of the paragraph; thus, paragraph 7.

3 Q. Look at the end you said there, the last two sentences: "I never

4 saw any evidence that bodies had been planted." Is that correct?

5 A. Yes, that's correct. I stated that.

6 Q. And then the next sentence: "I had been briefed upon arrival with

7 UNPROFOR to be alert to the possibility of bodies being planted at

8 scenes."

9 Is that correct, that you were warned about this?

10 A. Yes, I stated that, so that's correct.

11 Q. So these were not rumours, but UNPROFOR, of which you were a

12 member, warned you that this was possible. So can we say, then, that

13 these were not rumours?

14 A. That's up to you to conclude that. To my opinion, even if

15 UNPROFOR warned us of that, you can still call it rumours. So no matter

16 what word you give it, we were warned for that.

17 Q. And General Nicolai, was he your superior since he was the Chief

18 of Staff of General Smith? You know who General Nicolai is?

19 A. I know General Nicolai, but he was not my superior.

20 Q. On page 1039, lines 7 to 10, I asked General Nicolai the

21 following: "Does this fit into what Van Baal told you that when talking

22 about the highest state interest, ones own people could be sacrificed?"

23 And Nicolai said that he did not rule out that possibility, that he does

24 not rule that possibility that bodies could have been planted and that

25 this could have been done for military and political interests of Bosnia

1 and Herzegovina, and this is what General Nicolai stated here.

2 Did you hear anything like that from the supreme commanders?"

3 A. No. I did not hear anything in this way, as you state -- or as

4 General Nicolai has formulated there, from my direct commanders.

5 Q. Even General Smith on page 3.414, lines 15 to 23, the UNPROFOR

6 supreme commander for that region, stated that this was possible. This

7 didn't reach you either, did it?

8 A. The orders from -- or the specific orders from either General

9 Smith or General Nicolai were not given to us straight away. It has to be

10 clear that UNMOs were in a separate chain of command. So the only people

11 we were dealing with, especially on the level of the team leader, as I

12 was, was my senior military observer.

13 We had no contacts, and I repeat, no contacts with the UNPROFOR

14 organisation, which we were basically no part of. UNMOs were not

15 integrated in UNPROFOR in the chain of command. They had their own

16 organisation with the chief military observer in Zagreb. Our reports and

17 our orders went to Zagreb and came from Zagreb through the chain of

18 command of the UNMOs. So anything General Smith or General Nicolai has

19 stated or said in that period, I have never seen that or have seen it in a

20 written --

21 JUDGE ROBINSON: Mr. Waespi.

22 MR. WAESPI: Yes. I'm grateful for the Defence to point out the

23 exact location of what General Smith said, and just to quote him correctly

24 he said, and I quote him, "In theoretical fashion, it was possible." That

25 is what General Smith said, which is slightly different to how he was

1 quoted.

2 JUDGE ROBINSON: Yes. We take note of that, yes.

3 Mr. Tapuskovic, the Prosecutor spent two hours and 9 minutes; and

4 at the end of this session, which is at 5.35, you would have had about two

5 hours and 15 minutes. It's not my intention to allow you to go beyond

6 that time, and you're not obliged to use all of that time.

7 MR. TAPUSKOVIC: [Interpretation] Your Honours, I was just dealing

8 with documents. I have five statements of this witness. If I do not put

9 the most important things from these witness statements to the witness, I

10 will absolutely not be in a position to point out all that you need to

11 consider.

12 The Prosecutor had the time that he was allowed and he was also

13 granted an extension, so I most sincerely would like to request that you

14 allow me a little by the more time so that I can put to the witness things

15 from the statements. I think that it would be not be all right. I don't

16 want to use the word "just," for me not to be allowed to complete my

17 cross-examination. I kindly ask.

18 JUDGE ROBINSON: Proceed, and we will see how --

19 THE INTERPRETER: Microphone, please, Your Honour.

20 JUDGE ROBINSON: Proceed, and we will see how you get on at 5.35.

21 MR. TAPUSKOVIC: [Interpretation]

22 Q. Regarding this question, I don't want to be going back to that,

23 and any way these are the pages that I cited, so you will be able to refer

24 to them. But your superior was a Danish man, Thomas Hansen, when he

25 arrived. Is that correct?

1 A. As far as I recall he was not Thomas Hansen but Torben Hansen, but

2 the last name is Hansen and he was Danish, yes.

3 Q. These are two different Hansens, is that what you're claiming?

4 A. I'm not claiming anything. I just state when arrived in Sarajevo,

5 the team leader of the team I was posted was a Danish captain; and to my

6 recollection, his name was Torben Hansen and not Thomas Hansen, but the

7 last name was definitely Hansen. I even have a picture of him so I know

8 what I'm talking about.

9 Q. Very well. Well, let's, then, take it -- well, I don't know which

10 Hansen to talk about now. Did you hear about Hansen' report, a Danish

11 person -- now I'm not sure if that is a person who -- did you hear about

12 that report, that according to their findings according to what the UNMO

13 observers -- did you hear about that, that the television building a month

14 before the 28th June, so that was two months before, was hit by an aerial

15 bomb by representatives of the army of Bosnia and Herzegovina. Do you

16 know about that?

17 A. I do not know about that.

18 JUDGE ROBINSON: Mr. Waespi.

19 MR. WAESPI: Everybody is fully familiar with this document, but

20 the objection is it is not correct to say that it was hit by

21 representatives of the ABiH. The document says that Mr. Hansen heard from

22 somebody else that that person saw something happening.

23 JUDGE ROBINSON: Yes. Mr. Hansen received a report from an UNMO

24 officer to that effect -- an UNMO observer.

25 You heard about that?

1 THE WITNESS: I can clarify that quite easily. Since the date of

2 the 28th of June now is appearing, I didn't hear that before. There was

3 no way that we can talk about my Captain Torben Hansen, because he had

4 left the mission already. And I don't know anything about this report

5 whatsoever.

6 [Trial Chamber confers]

7 JUDGE ROBINSON: Well, the plot thickens.

8 So your Captain Hansen, you say Torben Hansen, he had left by the

9 28th.

10 THE WITNESS: I came in at the 4th of May; and as I recall roughly

11 after a week or six, I took over the team. So you can count that as

12 before the 28th of June, and he was definitely called Torben Hansen and

13 not Thomas Hansen.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: It doesn't appear, in any event, Mr. Tapuskovic,

16 that the witness can -- can help you, even if there is a second Hansen.

17 MR. TAPUSKOVIC: [Interpretation] Very well. Yes, all right. I

18 acknowledge that.

19 Q. But at least then let me ask if he ever heard that representatives

20 of the army of Bosnia-Herzegovina, either by sniper or shells, fired on

21 their own people inside Sarajevo. Did he hear that from anyone during the

22 five or six months that he was there, or not?

23 A. I didn't hear that.

24 Q. Thank you.

25 MR. TAPUSKOVIC: [Interpretation] Let us move to the statement that

1 you provided. First of all, that is correct was on the 25th of April,

2 1996 and then on the 5th and 14th of November here. That is document

3 DD00-0584.

4 Q. Let us look at the first page, first, just to see if you can

5 confirm that is indeed your statement. It's your statement, right?

6 A. It's my statement, yes, that's correct.

7 MR. TAPUSKOVIC: [Interpretation] And we need to pay attention to

8 the time, so we will move immediately to the third page of the statement.

9 Q. "It's not disputed that I arrived at the position on the 4th or the

10 5th of May." Here it says the 5th of May, but yesterday you said the 4th

11 of May. But, anyway, it doesn't change things. You were at the post on

12 the 5th of May, or the 4th. Yesterday, you said the 5th. It doesn't

13 change the situation. Just confirm that for me, please.

14 A. I arrived on the 4th of May.

15 Q. Yesterday, you said that already on the first day you were in

16 danger in a way that you were missed -- that a sniper missed you by a mere

17 30 centimetres; is that correct?

18 A. That's correct.

19 Q. So in view of the positions where the two sides were, are you able

20 to tell at all which side actually fired at you?

21 A. I personal am not capable of telling you that, because it was my

22 first hour or second hour in Sarajevo, and I was completely surprised by

23 being shot at by somebody. So I didn't care who did do it. I don't

24 recall that either. I couldn't establish that. So I fully trusted my --

25 my team commander, Captain Hansen, who was there for nearly six months,

1 when he came up with the conclusion that this was a Serb sniper rifle,

2 and I left it at that. I was lucky that I escaped.

3 Q. Well, let's not waste time on this. How was he able to say that

4 it was a Serb sniper, since they were all up there on the hills separated

5 by a few metres?

6 A. I don't know. He mentioned that, and I don't recall the

7 discussion or the exchange of information we had on that moment. Again, I

8 said I was happy to be -- to escape, and we went on with the business.

9 Q. Let's move to the statement, Mr. Konings. On page 3, and there --

10 it begins with the words "when I arrived" -- "on my arrival in Sarajevo."

11 Do you see that paragraph on page 3?

12 A. Yes.

13 Q. At the beginning?

14 A. I see that.

15 Q. And you say here: "On my arrival in Sarajevo, the situation was

16 very tense. It was shortly after the end of the cease-fire on the 1st of

17 May, 1995."

18 Is that correct?

19 A. Yes.

20 Q. Two paragraphs lower: "The situation deteriorated at the end of

21 May and in June because of attacks by the Bosnian army."

22 A. Yes, I read that.

23 Q. And that's how it was, right?

24 A. That's how it was, yes.

25 Q. And then it goes on to say: "On the 16th or the 17th of May, and

1 then another time in June" --

2 JUDGE ROBINSON: Mr. Waespi.

3 MR. WAESPI: Yes, again, in fairness to the context, it said, "The

4 situation got worse, end of May and June, due to Bosnian army attacks on

5 16th and 17th May and another time in June and retaliation fire by the

6 VRS."

7 JUDGE ROBINSON: Yes, let's proceed.

8 MR. TAPUSKOVIC: [Interpretation]

9 Q. Please, reprisal is not mentioned here, but it says - I don't know

10 if it is translated correctly - "against attacks by the army of Republika

11 Srpska and counter-attack of the army of Republika Srpska." So first they

12 were attacked in May and June, and then there was a counter-attack.

13 That's what it says here. I don't know if it says "retaliation" or

14 "counter-attack" in the English version. Perhaps the interpreters can

15 help.

16 MR. TAPUSKOVIC: [Interpretation] Your Honour, you have an English

17 version in front of you.

18 JUDGE ROBINSON: It says "retaliation."

19 MR. TAPUSKOVIC: [Interpretation]

20 Q. Witness, is it always retaliation when somebody responds to an

21 attack, or is it one defending oneself from attack. There were attacks,

22 and then it says "retaliation" from your side. Is it always retaliation

23 if somebody is defending themselves?

24 A. Well, now we are fighting about words, either defending or

25 retaliation. In my statement then, apparently, I have used the word

1 "retaliation." But you must be -- bear with me, I cannot remember every

2 single word that I used, let's say, about 11 years ago. I know the whole

3 scenery very well, what happened. And I can recall on the 16th and 17th

4 of May, the Bosnian army started attacks to open ways out of Sarajevo.

5 That is what they intended to do, what we learned later on. We couldn't

6 conclude that on that day that there was heavy fighting going on.

7 When an attack is going on, the guy you are attacking is

8 retaliating. You can call it defending, whatever you like. The end

9 result is that the two armies were shooting at each other in a massive

10 way. The Bosnian army started this specific attacks on the 16th and 17th

11 of May, and the Serb army responded to that in the same heavy way as the

12 attacker did. The attacks failed, and the situation around Sarajevo only

13 got more tense, and ended with the hostage taking of the Serb sides of the

14 UNMOs and other people.

15 JUDGE ROBINSON: Thank you. We have the explanation now of what

16 was meant by "retaliation."

17 MR. TAPUSKOVIC: [Interpretation]

18 Q. Yesterday, at the beginning, you explained that you received the

19 essential training necessary to examine impact craters and that several

20 times you did go to investigate these craters. Is that correct?

21 A. That is correct.

22 Q. Did you ever examine any craters on the Serb side, and do you know

23 if they were any victims on the Serb side from attacks that took place in

24 May and June, 1995?

25 A. I myself did no crater analysis on the Serb side because we

1 were -- I was posted on the Bosnian army side.

2 The UNMO organisation was such that there were also UNMOs posted

3 at the Serb side of the confrontation line. There were several UNMO teams

4 in the Sarajevo sector operational during May and June and also the period

5 before, but I can only, of course, tell about the period when I arrived

6 there.

7 Two of my -- two of my Dutch colleagues coming in on the 4th of

8 May, on the same date and same plane, went to the Serb side, and I still

9 am in contact with them today. And I know that they did various crater

10 analysis at the other side, and all there results were, as well as our

11 results, sent to the UNMO HQ in Sarajevo and from there to Zagreb. I have

12 no inside in these reports at that period, but we had numerous contacts

13 with each other on the on the radio, and that situation stopped in June or

14 at the end of May - I cannot recall that previously - when on the Serb

15 side all the UNMOs were taken hostages, including my Dutch colleagues, and

16 were taken out of order.

17 So after, I think it was the end of May or the beginning of June,

18 there were no UNMOs operational anymore at the Serb side.

19 Q. Thank you. In the same paragraph, you go on to say in the course

20 of July and August, they were still firing but not that much until the

21 Markale shelling. After this incident and the NATO air-strikes, the

22 situation calmed down in Sarajevo.

23 Is that how it was?

24 A. That's exactly how it was.

25 Q. It was tense for four months because all of this and then after

1 the NATO air-strikes the situation calmed down. NATO mostly targeted the

2 Serb positions. Is that correct?

3 A. What I -- what I know from the perspective that I had, and that is

4 a very limited one being restricted to a team base. Because after the --

5 when the NATO air-strikes began, all UNMOs were restricted to their team

6 bases so we were not allowed to move around anymore. And from my team

7 base, I could see that NATO planes were attacking targets and the targets

8 were outside of the confrontation lines, so in Serb territory.

9 Q. Then we're going back to the events of the 28th. This is the next

10 paragraph: "The next morning I drove to the UNMO HQ in the morning; after

11 that I drove back, and when I arrived in my sector I heard on the radio

12 that there had been an incident in the city."

13 Is that correct?

14 A. That's correct.

15 Q. You say: "The exact location of the incident was not known to me.

16 I didn't know it, but there were casualties."

17 A. Yes, that was what was stated at that moment Yes.

18 Q. You knew that right away?

19 A. Yes. We were in radio contact for a -- for example, also with

20 OP1, and with my team base, and so the word had already been on the radio

21 net that -- and by telephone, that there was an incident in the city with

22 casualties and that was the only thing that we had heard so far. And

23 being the team leader, I had ordered, especially my team base, that when

24 any incident occurred - and they heard that by telephone - I would like to

25 be informed by radio, so that's what they did.

1 Q. Yes. Yes, but look further on. What it says here is that you

2 arrived home "and five minutes later I got a telephone from the Bosnian

3 police who informed me about what had happened, and they asked us to come

4 to the town."

5 Therefore, you first received a telephone call from the Bosnian

6 police. Is that true? Why did they call you specifically?

7 A. That is a normal procedure that the Bosnian police phoned one of

8 the UNMO teams. And in this case the incident had happened in the AOR of

9 my team, so they informed us that this had happened and asked us to come

10 over to the -- to the site of the explosion.

11 Q. So you went there, didn't you?

12 A. No. Yes, I went there, but you should read the following sentence

13 to keep the picture complete. "I first contacted the HQ who agreed on our

14 assistance in the investigation." Also that was standard operating

15 procedure. Before we did business with anyone in the city, especially

16 with the Bosnian police, we had to have permission from our HQ in the PTT

17 building.

18 Q. That is precisely what I wanted to ask you about. The first

19 contact, your superiors, expecting your superiors to pass on the orders,

20 or was it standard procedure for to you receive a call from the police and

21 then you would contact your superiors. Was that the standard procedure?

22 A. Between us and the Bosnian police there was no official standard

23 procedure. The only standard procedure I can refer to was the with the

24 commander at the HQ, but normally the Bosnian police phoned us, and in

25 most cases they also phoned the HQ.

1 Secondly, that was the standard procedure that no matter what

2 happened we always, the team, always contacted the UNMO HQ in order to

3 clarify what was said by the Bosnian police, who had called, what had

4 happened, what had reported, and then we got either yes or no permission

5 from the HQ to go on site and to do the investigation. There have been

6 examples that the UNMO HQ refused us permission to go somewhere.

7 Q. Further down on this page, you said that you found the tail of the

8 mortar 50 metres away from the place of impact. Is that correct?

9 A. We found the tail of the mortar some metres -- yes. When I said

10 the 50 metres, that must have been the 50 metres, yes.

11 Q. In the next paragraph, it reads as follows: "On the basis of this

12 sign on the pavement, it was clearly the sign of a mortar explosion. On

13 the basis of these signs, we determined the direction of fire. Our

14 results were the same as the results of the Bosnian police and the results

15 of French specialists on site."

16 I know that it coincided with the results of the French

17 specialists, but it did not coincide at all with the Bosnian findings.

18 And you persisted in --

19 JUDGE ROBINSON: Yes, Mr. Waespi.

20 MR. WAESPI: Could we please have the reference on the screen so

21 everybody, especially the witness, can follow. What part are we now

22 talking about? Which page are we --

23 MR. TAPUSKOVIC: [Interpretation] We're still on page 3. I'm

24 looking at the English version now.

25 JUDGE ROBINSON: Will you just scroll down, I think, then we'll

1 see it.

2 MR. TAPUSKOVIC: [Interpretation] Here you see 50 metres and

3 immediately the paragraph after that. Towards the bottom of the page

4 first it says where the tail was found and the next passage reads as

5 follows: "On the basis of these signs we determined the direction of

6 fire. Our results were the same as the results of the Bosnian police and

7 it's results of French specialist."

8 You said that the report addressed to Mr. Annan and your report

9 coincided in full but that you did the want to accept the Bosnian police

10 report which they tried to impose upon you that is correct the round came

11 from the Serbian side. How do you account for that.

12 A. You are now comparing pears and apples together so I have to

13 clarify that once more. What we have -- what we compared on the scene on

14 the site itself were the -- independently taken bearings the. We talk a

15 bearing with our compass of 170 so we compare with the French specialist

16 on side, first of all the engineers they came to 160 and we compare that

17 with the results of the Bosnian police team. Also that we did always. We

18 just compared it we not changed our measures because our measures we kept.

19 Secondly, the bearing is something different than the discussion I

20 had later on in the investigation team on the place of the origin of fire

21 so the bearing was no secret. The bearing everybody could read on his own

22 compass. What the Bosnian Committee of the Ministry of the Interior

23 wanted me to say was that the fire came from Serb origin. And I reef

24 fused that because I did not have -- I have not have the evidence to say

25 that so there were two different things we are talking about. The bearing

1 which is very clear, which you with measure on the spot, and the origin of

2 fire which I could not say anything about.

3 Q. On page 4 you say that you visited the scene where the other

4 shells had landed. Let us find this particular paragraph. Also mention

5 of the bearing. And you said that you visited the scene of the other four

6 shell impacts and that there were casualties there as well. Is that

7 correct?

8 A. Yes, have I visited that other scene as well and did the

9 investigation together with the same two colleagues as -- as on the other

10 scene, yes.

11 Q. Let us for a moment leave this document aside, and let us look at

12 the document produced on the 6th of October, 2003, as a result of your

13 meeting with Mr. Sachdeva.

14 MR. TAPUSKOVIC: [Interpretation] It's document DD00-0608.

15 Q. Let me refer you to the passage where there's mention of the

16 tail-fin of the shell. I think it's page 2 or 3 of the B/C/S version, or

17 I should say the English version.

18 So page 3, paragraph 4 in the English version. There's reference

19 to the tail-fin of the shell. Can you see that?

20 A. Yeah, I saw it, but now it's gone. But I saw it. Now I see it

21 again.

22 Q. At the top you said: "Immediately Konings recalls observing the

23 tail-fin which was laying on the ground only 5 to 10 metres from the

24 impact."

25 First you said 50 metres and now in this interview with the

1 Prosecutors you said 5 to 10 metres from the impact. Which of the two is

2 correct?

3 A. Well, I can make an easy shot and make an average but that's not

4 the -- not the idea to do. To be honest, it was at a certain distance

5 from the place of impact and I cannot recall an exact distance, so I -- I

6 cannot gives the right answer.

7 Q. Thank you. The next paragraph says -- it talks about the

8 investigation of the other four rounds, and you said that there were

9 casualties there.

10 "According to Konings, investigation of the other four rounds took

11 place more than four hours after they investigated Markale. The other

12 four rounds were reported to have only caused damage to buildings and no

13 deaths, so the killing round was focussed upon immediately."

14 How do you explain that? You said that there had been casualties

15 where these four rounds had fallen and that there were casualties.

16 However, now you say that there were no casualties.

17 A. I think that the first statement when I -- in 1996, which was the

18 closest to my return, that was less than a year afterwards, that was

19 correct. So there were some casualties, but there were not many only

20 wounded people. But, again, then I start to go in the area of guessing

21 and that's not right. So I would prefer, then, to stick to my first

22 statement, which is in 1996, which is the closest to my appearance in

23 Sarajevo, which said that there were certain victims.

24 JUDGE ROBINSON: Mr. Tapuskovic, we'll take the break now. I have

25 to say that I have been corrected by the court deputy as to your time.

1 When I said that you would have used 2 hours and 15 minutes by this break,

2 in fact, according to the court deputy, you would have used 1 hour and 57

3 minutes. So much for my time-keeping.

4 We'll resume in 20 minutes.

5 --- Recess taken at 5.44 p.m.

6 --- On resuming at 6.07 p.m.

7 JUDGE ROBINSON: Yes, Mr. Tapuskovic.

8 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

9 After the break, in order to gain time, I'm going to ask a few

10 questions about these statements. So can we please have document

11 DD00-0584, that's the statement dated the 26th of -- 22nd of April, be

12 tendered as a Defence exhibit, please. I don't know if you heard me, Your

13 Honours.

14 JUDGE ROBINSON: Yes. We admit it.

15 THE REGISTRAR: As Exhibit D119, Your Honours.

16 MR. TAPUSKOVIC: [Interpretation] Also document DD00-0608, that's a

17 statement dated the 6th of October, 2003, I would also like to tender it

18 as a Defence exhibit, please.

19 JUDGE ROBINSON: Yes, we admit it.

20 THE REGISTRAR: As Exhibit D120, Your Honours.

21 MR. TAPUSKOVIC: [Interpretation] Your Honours, here I have a

22 document, a report of the 3rd of September, 2003. That's a note of a

23 telephone conversation between Colonel Konings and Mark Ierace, Jonathan

24 Harris and Chester Stamp. That's DD00-0612. And I would like to ask the

25 witness a few questions about it. The witness has, of course, the English

1 version of this note, of this report.

2 Q. Mr. Konings, did you have this telephone conversation on the 3rd

3 of September, 2003 with members of the Prosecution whose names I have

4 given you?

5 A. I know that I had a telephone conversation in 2003 with

6 representatives of the ICTY. I cannot recall exactly whether it was the

7 3rd or the 4th or the 5th of September. But I definitely had this

8 telephone call.

9 Q. And as it says here, the subject of this conversation was the

10 shelling of the Markale market of the 28th of August. Yes or no?

11 A. That's correct.

12 Q. In this telephone conversation, in paragraph 3, you said the

13 following to the interviewers: "I never met Powers or any other American

14 while I was in Sarajevo, although about a year later I heard mention of an

15 American investigation."

16 Is that what you learned?

17 A. Yes, it is correct, what I stated here. So about a year after I

18 came back, there were some -- I heard some telling, and I think that was

19 in the earlier investigation done by Belgium that there was also an

20 American report on the incident. But I didn't know about it and I still

21 don't know about it.

22 Q. But that's something that you learned, i.e., that a year later

23 they investigated the Markale incident. Is it fair to say that?

24 A. I heard, again, one year later that apparently the Americans

25 did -- some Americans or one American did an investigation on the Markale

1 incident. That's all I can state.

2 Q. Thank you. Two paragraphs down it reads as follows. You

3 said: "I sent my findings up the command chain. I knew from the media it

4 had been decided that the Serbs did it."

5 Is it true that only from the media did you find out that the

6 incident in Markale had been caused by the Serbs?

7 A. No. But in relation to the questioning on 2000 and 2003, it has

8 to be seen in relation with the former sentence: "I sent my findings up

9 the command chain." So somewhere later, not on the same day as I told you

10 before, since we had no possibility to watch TV or listen to the radio, a

11 few days later, I think, I heard through the UNMO HQ that all the world

12 was talking about this incident and accusing the Serbs of having done

13 that. So that's up to the media, what they conclude, and not to me.

14 Q. Could it be that the media were more important and that their

15 findings override the findings of expert bodies? What did you yourself

16 think about this information?

17 A. I only can say what I said many times before, that I saw what I

18 saw. I wrote that down in a report; you have seen them. You have seen my

19 ideas about that, that in combination with the fact that the OP1 had not

20 heard or seen any outgoing round from Bosnian or Serb territory close to

21 the vicinity of the OP, that my conclusion was that it must have come from

22 Serb territory.

23 But that's not inflicted by any media, so whatever the media say

24 or whatever the media have for meaning on this, it doesn't matter to me in

25 this case. The same is that I -- and I stated that here as well, is

1 General Smith -- whatever General Smith decided, he was the highest

2 ranking commander in UNPROFOR, but I did not know that at that time, I had

3 no insight into his reports. I saw that -- all those things I saw later

4 when I was contacted by the ICTY when they showed me that kind of letters

5 or that kind of information.

6 But on the spot, in the field, I never have seen this kind of

7 relation -- this kind of reports from our commanders. The only thing I

8 saw was my own report, my own handwritten report, and the summary our UNMO

9 HQ in Sarajevo made the same evening and the evening afterwards. Those

10 were the reports I have seen.

11 And also what the media have said, I have had no contact with the

12 media whatsoever. That was forbidden. We were not allowed to have any

13 contact at all with any of the media. So that's what I can state to this

14 question.

15 Q. In the next sentence you said the following in this telephone

16 conversation: "The conclusion that this was done by the Serbs was reached

17 by General Smith."

18 On what basis did you say that? Can you tell me that?

19 A. I don't have that sentence on my screen, so ...

20 Q. It's in the same paragraph, paragraph 3 in the English version.

21 No, no, no. One, two -- the fifth paragraph.

22 A. In the fifth paragraph I have in front of me, there is no

23 mentioning of General Smith whatsoever. My fifth paragraph says: "The

24 Bosnians asked me to agree that the Serbs did it. As an UNMO, our job was

25 to be impartial. I wrote down the facts of the explosion. Eventually I

1 came to the conclusion that the Serbs did it."

2 That is what the fifth lines says in mine.

3 JUDGE ROBINSON: The only reference is to General Smith is in the

4 one, two three, fourth paragraph. "I knew from the media that it had been

5 decided that Serbs did it. I'm not aware that the General Smith decided

6 finally that it was the Serbs."

7 Is that what you're referring to, Mr. Tapuskovic? Let's move on,

8 because I'm not sure this is taking us anywhere, quite frankly.

9 MR. TAPUSKOVIC: [Interpretation] Yes. But Mr. Konings read the

10 last paragraph, saying that he himself had reached the conclusion that

11 this was done by the Serbs.

12 Q. Was it according to the media report or did you have any new

13 facts? If you changed your mind later, why did you change it? Was it

14 based on some additional facts subsequently found out?

15 A. No, it was -- there were no change of opinion and there were no

16 extra facts and I was definitely not influenced by the media. As I

17 already stated in the first two reports, that the possibility that Serbs

18 had done it were quite likely, although it was not -- there was no hard

19 evidence of that. And the words I used here in my declaration to the ICTY

20 is: "Eventually I came to the conclusion that the Serbs did it." There's

21 no change of the facts. No other facts came in. I came to this

22 conclusion based upon the facts as already -- as we have been discussing

23 here before. So I don't need to add something to that. There was no

24 extra evidence available when I said this.

25 Q. Mr. Konings, I have to ask you directly: If there were no new

1 facts, then pressure was exerted on you from some side in order to justify

2 the NATO action so -- that is, for you to change your opinion later. Yes

3 or no?

4 A. I do not know --

5 JUDGE ROBINSON: Yes, Mr. Waespi.

6 MR. WAESPI: Yes. There is no change of opinion. The witness

7 exactly explained the way he reached his conclusions. I think he said on

8 that first document, his patrol report, that it was likely or highly

9 likely that the Serbs did it. He referred to additional evidence he got

10 from OP1. It's all consistent. There is no change of opinion.

11 JUDGE ROBINSON: He does say: "Eventually I came to the

12 conclusion that the Serbs did it," so there's the suggestion there of

13 gradation, of movement, in opinion. I think there it's a fair question,

14 because if there are no new facts, then it must be that you gave a

15 different interpretation to the facts.

16 THE WITNESS: Well, you may call it that way, Your Honour; that

17 after the years went over and I got this -- this question around again

18 with the ICTY that you think it over and that I was more firm in my

19 ultimate conclusion than I could do in -- in the time that I was in

20 Sarajevo, that I came to this conclusion that the Serbs did it. And to be

21 frankly, and I was not allowed to say that or to write it down, I think I

22 had the same idea in the back of my mind already when I was in Sarajevo,

23 on the spot when I saw what happened. But that's my personal opinion and

24 that is not of interest for this Court, I think. But later on, the more I

25 thought over the facts, and there were no extra facts and there was no

1 pressure from any NATO body or from SFOR or IFOR or whatever organisation

2 has been in the former Yugoslavia, that I came to this conclusion. It's

3 purely my own thoughts about what I saw and what I wrote on a piece of

4 paper that day, on a patrol report.

5 MR. TAPUSKOVIC: [Interpretation] Yes, I'm very satisfied with that

6 answer.

7 Q. Now I would like to draw your attention to the third page,

8 paragraph 9 in the English version of this conversation, page 3, paragraph

9 9, where a radar system is discussed. This is the Cymbelline system. Are

10 you familiar that or aware that at the time of the event there was a

11 British and Dutch very modern radar system to monitor outgoing and

12 incoming fire?

13 A. I know precisely that there was a Cymbelline radar system, which

14 is the British radar system, that was in my AOR, as I stated that. I

15 visited them sometimes. I had nothing to say on them. They were in the

16 UNPROFOR chain of command. We didn't exchange information with them, so I

17 had no idea what information they had. Of course, I knew, as an artillery

18 man, what they were doing because I'm familiar with that kind of systems,

19 and I knew that somewhere on Mount Igman NATO troops, or at least French,

20 English and Dutch troops, were located and that there was also a Dutch

21 radar operating. But that's all I know. I had no contacts with these

22 people, because it was impossible to get on Mount Igman because we had no

23 radio contact with them. Again, they were in a totally other chain of

24 command than we were.

25 Q. But in the report, the report of the 29th, you wrote that you had

1 information that no one saw or heard a rocket from those places or a

2 mortar projectile, either incoming or outgoing, and you stated that in

3 your report and you did not change your original report in any way. Is

4 that correct or not?

5 A. It's absolutely correct. And when I say that no one heard or saw,

6 then I refer to my own UNMO team. Everything I say and do has nothing to

7 do with all other military organisations part -- being available in

8 Sarajevo or outside Sarajevo. My only responsibility at that time was my

9 UNMO team, the task we had to follow the commander's intent of my direct

10 commander, which was senior military observer, and, if possible, to pay --

11 to take into account what other people reported to us, other UNPROFOR

12 people. But we had to concentrate on our own work and our own team, so

13 when I say no one heard or saw an outgoing round, I only talk about my own

14 UNMOs and about nobody else, because I did not have any information on

15 radar systems. I hardly knew who was on Mount Igman. I hardly knew that

16 there were NATO troops on Mount Igman because we were deprived from any

17 information whatsoever.

18 MR. TAPUSKOVIC: [Interpretation] Your Honours, there is a

19 paragraph. I did not find a translation of that paragraph from this

20 telephone conversation which states -- and that is actually on the basis

21 of what I read earlier. It's on the third page. It should be on the last

22 page, and it begins as follows: "OP ..."

23 Your Honours, I said that I did not find that in the English

24 version. I do have it in the Serbian version. This is on page 3. It's

25 not there in the translation. It's not there in the English version and

1 I'm going to read it.

2 MR. WAESPI: Just to make sure that -- the original is certainly

3 the English because that's the language the telephone interview was

4 conducted, so that would sound very strange, that there is something in

5 the translation which is not in the English original.

6 MR. TAPUSKOVIC: [Interpretation] I cannot explain it, but I'm

7 going to read it. I don't speak English at all. I didn't consult my --

8 but I did look for it and I looked -- I didn't draft this. It has its

9 number, 03039113. So I would like to read it.

10 JUDGE ROBINSON: Let's hear what it is.

11 MR. TAPUSKOVIC: [Interpretation] "OP1, observation posts, recall

12 hearing the strikes but not outgoing shells. I am sure that they would

13 have heard it had it come from the B and H army. That morning it was

14 quiet and bright and they would have heard the firing had it come. I

15 spent time at the observation post. Had the firing come immediately from

16 the other side of the mountain, we would have heard it."

17 And he said that even had the firing come from the other side of

18 the mountain, you would have heard it. It's not there in the

19 translation. I cannot explain it. Actually, it's not there in the

20 English version, but if it is like that, it must have been omitted. I

21 have no other explanation. I kept looking but perhaps I just missed it.

22 JUDGE ROBINSON: I'm trying to find it.

23 Have you found it, Mr. Waespi?

24 MR. WAESPI: Maybe Mr. Sachdeva can find it.

25 Yes. It might be what we see on the screen right now. In the

1 English version, it starts with "OP1. I recall that they heard the

2 impacts ..." and so on.

3 JUDGE ROBINSON: Okay. Yes, we have seen it.

4 What's the question you wish to put about that now? We have to

5 move quickly now, Mr. Tapuskovic. You have gone some minutes now beyond

6 the Prosecutor's time. What's the question that you have to put?

7 MR. TAPUSKOVIC: [Interpretation]

8 Q. Well, if it's true, what is written here, that had the firing come

9 from the other side of the mountain it would have been heard.

10 MR. WAESPI: Mr. President, we have to be very careful with

11 paraphrasing. If it can be put to the witness, the part what he said in

12 his phone interview, OP1. It can be read to him, and he can confirm it

13 yes or no. But this -- we can read the sentence. I think it's last two

14 lines of that paragraph.

15 JUDGE ROBINSON: Okay. I will read it. It says, "That morning it

16 was clear and quiet, and they must have heard it if they had been fired

17 from within the confrontation lines."

18 What is your response to that.

19 MR. WHITING:

20 THE WITNESS: I still stand with that declaration, and even more

21 importantly is the next sentence. Even if it was fired "just from the

22 other side of the mountain," you would have heard it, since I have done my

23 duty there as well, which means -- and in that telephone conversation, I

24 was not up to make conclusion, but that means that my conclusion was that

25 the round came from further in Serb territory; so from a bigger distance,

1 I would say at least three or four kilometres. That was my conclusion

2 reading, having said that, et cetera, et cetera. So I have nothing more

3 to add to that.

4 MR. TAPUSKOVIC: [Interpretation] But it is being asserted here the

5 whole time that it had it come from the Serb side, it wasn't heard because

6 it was fired from the other side of the mountain. And here there's

7 mentioned specifically that it would have been heard even had it come from

8 the other side of the mountain. It's a very important issue, and this is

9 what I am insisting upon as Defence counsel. Perhaps you didn't hear it,

10 but others in other places would have heard it. Had it come from the

11 other side of the mountain, it could not have happened -- or without it

12 being unnoticed.

13 A. I think we tend to forget the word "just from the other side of

14 the mountain," which means that the observers on OP1 didn't hear anything,

15 not from close, not from the Bosnian army territory, not from the

16 confrontation line, which you cannot overhearing being on OP1, that is

17 absolutely true, and not just from the back of the mountains, which you

18 can also -- which you could you hear.

19 It just means they didn't hear anything, which is for me the

20 conclusion that the round came from the southern direction further away

21 than they could hear, which means that between the impact of the round and

22 the point of origin of fire must have been at least a distance of about

23 three, three and a half kilometres, which placed the origin of fire well

24 into Serb territory. I cannot be more specific. I cannot be more clear.

25 Q. Actually, Mr. Konings, you have just said something completely

1 opposite from what it is said here. You said you did not hear it from

2 your own position, but you said that had the shell been fired from the

3 other side of the mountain, it would have been heard. You didn't hear it,

4 but how do you explain that somebody else could have heard it?

5 A. No. I didn't say I didn't hear it, because I didn't hear it. I

6 was not even close to the vicinity. So my people there, the two people

7 that we were talking about for already two days, Major Paul Conway and

8 Major Thom Knustad, they were on OP1. They didn't hear any outgoing

9 round. That is the first fact. The fact that they didn't hear any

10 outgoing round makes it impossible that a round -- that the killing round

11 was fired from Bosnian army territory because they would have heard it,

12 and they would have seen it.

13 It makes it also very -- very unlogic that it was fired from the

14 confrontation line, because they would have heard it. It makes it also

15 not very logic that it was fired from just behind the mountain ridge,

16 because they would have heard it. The fact that they did not hear it

17 means the only thing I can say about that is that it was fired from the

18 southern direction at a distance from the point of impact of more than

19 three or three and a half kilometre, which muffles the sound so that they

20 could not hear it. So it placed the point of origin of the round well

21 into Serb territory. And that's the most clear way I can explain what I

22 have said here in this point.

23 Q. Mr. Konings, at the place where the crater was, did you find the

24 shell casing left after the impact of the shell? Did you find a groove or

25 something, the scratch left by the shell? Did you find anything like that

1 at that location?

2 A. You don't -- after an explosion, you don't find a shell casing, at

3 least the word I understand casing. The shell explodes and you only find

4 shrapnels. It is very simple. And if you are lucky, you find a piece of

5 the fuse; and if you -- and in all occasions with this type of mortar

6 projectile, you find the tail. So you don't find the casing, you find

7 thousands of parts of the casing if you are looking for them. So

8 shrapnels were found on the location -- on various locations around the

9 impact.

10 Q. When a shell hits, does it leave a trail? Does it leave a

11 channel? Did you find that, the channel that the shell made before

12 impact?

13 A. I think you refer to the fuse furrow, which is the impact area

14 where the fuse hits the ground. First of all, we saw a very clear crater

15 with a very small impact, deeper impact which was the place, to our

16 opinion, where the fuse hit the ground. So we took that as the central

17 part of the crater; and since the crater was very clear - we all saw it on

18 the picture behind me yesterday - we could easily take the bearing from

19 which direction the round came.

20 Q. I don't have time to go back to statements that have already been

21 tendered. You claim that you did it not find a fuse furrow on the site.

22 The third time I'm asking you: Did you find at the location a

23 fuse furrow left by the shell fuse?

24 A. Actually, what I already stated is that we found the spot where

25 we -- that we designated as being the point of impact of the -- the

1 projectile. That was on that moment enough for to us establish, and the

2 French engineers did exactly the same, to take it as the point of impact

3 and not to bother about whether it this was a deeper fuse furrow, yes or

4 no.

5 It was clearly the deepest point in -- in the whole area precisely

6 fitted with the pattern of the -- the crater. So we have taken that as

7 the point of impact, and you can call that the fuse furrow, but we did not

8 call it that way in our report.

9 Q. Please, I'm going to show you from this telephone conversation,

10 last paragraph from page 2. That would be the entire paragraph. Can you

11 please find page 2, the last paragraph, and you say here:

12 "The visual crater analysis on killing round impact, clear

13 impact. It was fresh, and we found the tail close by. We did a compass

14 bearing to determine the bearing. We did not use a stick into the furrow

15 because there was none on the concrete surface of the road. We

16 improvised. It had a distinct crater, and without a stick you are able to

17 measure the bearing. We did not use the stick method. There was a

18 shallow fuse furrow. I cannot recall why we did not use the stick."

19 Thus, you did say that the fuse did make a shallow furrow. Is

20 that correct or not?

21 A. I stated that on -- in September 2003. That is absolutely

22 correct. And the thing I said before, that you have a small impact crater

23 inside the whole pattern, I said you can call it the fuse furrow. On the

24 moment we were there, we just looked for the deepest point inside the

25 crater, which is -- which is apparently the fuse furrow, but we didn't

1 call it that way in our report. And the name furrow, fuse furrow, came

2 later on up in the reports, as it is the technical name nor that deeper

3 point in the crater.

4 JUDGE HARHOFF: Witness, can I just ask you: Where would you

5 expect, under normal circumstances, to find the tail-fin of a

6 120-millimetre mortar grenade, if it had impacted on a tarmac or on the

7 road like it did here?

8 THE WITNESS: I cannot say anything about a specific bearing or

9 distance --

10 JUDGE HARHOFF: No, no. Would you expect to find the tail-fin

11 inside the crater or --

12 THE WITNESS: No, definitely not inside the crater, somewhere in

13 the broader area; and that depends partly on the ground where it explodes,

14 on the angle of impact of the projectile, whether it is in exploding in

15 the open or in a closed area. So there are many factors, but I haven't

16 seen on any occasion that it was found inside the smaller part of the

17 crater.

18 JUDGE HARHOFF: Thank you.

19 MR. TAPUSKOVIC: [Interpretation]

20 Q. Mr. Konings, then go on to say that you cannot explain why you did

21 use the stick, even though you did fine a furrow; and then you continue:

22 "There were angry people and body parts all around, maybe that is why we

23 did not use the stick." Had you used the stick, perhaps you would have

24 obtained more reliable date. Why did you not use the stick when it was

25 your duty to ignore what was happening around you and to do your job

1 properly? Why didn't you use the stick when you had a furrow?

2 A. Well, I can refer to what I said. I cannot recall why we did not

3 use a stick. One argument, which I can place as an extra, is that the

4 fuse furrow was very shallow. It was in concrete or in tarmac. It's not

5 very ease to put a stick in that, so it doesn't work since you don't have

6 equipment for that as well.

7 But since the fuse furrow was clear, since the pattern was very

8 clear, you could divide it in two and a halves, left and right, so could

9 you take the middle line of the pattern. It was enough for us on that

10 moment, seeing the tense situation, that we did our work in that way and

11 that we decided to do it without the stick method, because the stick

12 method didn't work in tarmac or asphalt.

13 And I'm still convinced about the fact that the bearing we took

14 was accurate enough for providing a report that I have been written. If I

15 had used the stick method, if it was possible at all - I doubt that in

16 tarmac - we would not have come to a total different solution. Maybe it

17 would have been a variation of, let's say, between zero and five degrees,

18 but it would still point in the southern direction where the projectile

19 came from.

20 MR. TAPUSKOVIC: [Interpretation] Your Honour, this document

21 DD00-0612 be tendered into evidence as a Defence exhibit.

22 JUDGE ROBINSON: Yes.

23 THE REGISTRAR: As Exhibit D121, Your Honours.

24 JUDGE ROBINSON: And you should be bringing this to an end now,

25 Mr. Tapuskovic.

1 MR. TAPUSKOVIC: [Interpretation] Can I use at least these ten or

2 12 minutes that are be left. Your Honours, I really need to do this. I

3 still have this statement --

4 JUDGE ROBINSON: Are you going to re-examine, Mr. Waespi?

5 MR. WAESPI: Not until now.

6 [Trial Chamber confers]

7 JUDGE ROBINSON: Well, we'll give you another five until 7.00 --

8 eight minutes until five to 7.00.

9 MR. TAPUSKOVIC: [Interpretation] Thank you.

10 Q. I would like to show the witness the statement of the 31st of May

11 2006. This is DD00-0621, statement of the 31st of May of Mr. Konings.

12 You've already seen this, and you've confirmed that. But here it is now,

13 time is passing. DD00-0621. This is your statement. You've already --

14 A. That's correct. That's my statement, yes.

15 Q. Yes.

16 MR. TAPUSKOVIC: [Interpretation] Can with he go right to paragraph

17 13, so I can just briefly ask you. This is the Markale investigation.

18 This is approximately page 4, but it's paragraph 13.

19 Yes.

20 Q. In paragraph 13, in the middle, I don't want to read everything

21 because I don't have time: "At Markale on the 28th of August 1995, I did

22 not see a fuse funnel."

23 How do you explain now that you said that you did not see a fuse

24 funnel?

25 A. Well, what I stated is that we saw a very shallow impact area,

1 which you can hardly call a fuse furrow. We didn't find any remainings of

2 the fuse as well. So the only thing we saw is a very shallow, let's say,

3 area where the -- where the projectile hit -- hit the ground. And there

4 is nothing more to add to that.

5 MR. TAPUSKOVIC: [Interpretation] Your Honour, I may have used

6 another one half-hours in -- on this topic; however, I would just request

7 that this document DD00-0621 be entered as Defence exhibit.

8 JUDGE ROBINSON: Yes.

9 THE REGISTRAR: As D122, Your Honours.

10 JUDGE ROBINSON: You would have spent another hour and a half on

11 this topic, you said. That would have been an abuse, Mr. Tapuskovic.

12 MR. TAPUSKOVIC: [Interpretation] Your Honours, that would only be

13 appropriate time for me to do the proper examination; however, I respect

14 every decision taken by the Chamber. I'm satisfied that this document has

15 been admitted into evidence, and I'm going to use it in the course of

16 these proceedings.

17 Now, briefly, document DD00-1414, dated the 4th of March.

18 Q. You mentioned this information yesterday, and you said that people

19 were on the pavement. First, look here. You said that people were on

20 sidewalks. Pavements were hardly two metres wide. Here you said

21 "pavements." You never mentioned sidewalks.

22 A. Pavements and sidewalks to me belong to the street; and to make it

23 all clear, people were all over the street, including the sidewalks. So

24 if I said "sidewalks" during my investigation with Mr. Waespi on the 9th

25 of March, I have to recollect. I have to -- to maybe to restate that and

1 say the whole street, because people were in the middle of the street, on

2 the pavement, including the sidewalks.

3 Q. My question is: How could they have been on --

4 THE INTERPRETER: Interpreters note: The counsel is using the

5 B/C/S word "plocnik," which means pavement and sidewalk. It seems that he

6 is referring to the road or the lanes where cars drive.

7 THE WITNESS: I'm referring to that as well, so what I mean to say

8 is that there were people on the lanes where normally the cars are

9 driving. So we had trouble to pass by because it was very busy, and

10 people were also on the sidewalks, the two metres on the side of the

11 street, where people were sitting, walking. In fact, the basic thing is

12 there were literally hundreds of people crowded all over the street,

13 including on every sidewalk, sidestep, or how you call it in English.

14 MR. TAPUSKOVIC: [Interpretation]

15 Q. Yesterday, you said an hour or two, but here you said a few hours

16 before the incident you passed there in your car. You didn't walk?

17 A. I never have said that I walked there, at least that I can recall

18 it. I drove in my car, passing along the Markale place, and that was

19 indeed a few hours before. So I was there around 9.00, 9.30, somewhere

20 around that time. That is what I know for sure.

21 Q. Well, if you passed a few hours earlier that would make it 8.00

22 a.m. You said that you didn't see the crater at that time, and the crater

23 wasn't there at the time because the explosion occurred three hours later.

24 A. I was not there at 8.00. As I said just a minute ago, I was there

25 around 9.00 or 9.30; and at that moment, it was very crowded on the

1 streets. There were hundreds of people on the street, completely covering

2 the whole street. I was driving in my car, and again, it was 9.30 and the

3 crater was not there.

4 JUDGE ROBINSON: Mr. Tapuskovic, you have asked the last question.

5 Any re-examination?

6 MR. WAESPI: No, Mr. President.

7 JUDGE ROBINSON: Lieutenant-Colonel, that concludes your evidence.

8 Thank you for coming to the Tribunal to give it, and you may now leave.

9 But we will adjourn and resume tomorrow at 2.15.

10 [The witness withdrew]

11 --- Whereupon the hearing adjourned at 6.56 p.m.,

12 to be reconvened on Wednesday, the 14th day of

13 March, 2007, at 2.15

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