080922ED

Page 2013

1 Monday, 22 September 2008

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.15 p.m.

5 JUDGE ROBINSON: I understand both parties have matters to raise.

6 The Chamber has a couple of matters, and the first one is that the

7 Defence teams, both Defence teams are ordered to file the list of

8 witnesses to be called on behalf of the Defence should the Rule 98 bis

9 judgement establish that there is a case to answer, and this list is to

10 contain all the information required pursuant to Rule 65 ter (G)(i) and

11 is to be filed together with a list of exhibits pursuant to Rule 65 ter

12 (G)(ii). In view of scheduling of the breaks in this case as already

13 announced, the Trial Chamber requires this information to be provided no

14 later than Friday, 17th October 2008.

15 The Chamber is in the process now of filing its decision in

16 relation to the motion of 8th September to substitute VG-42 for VG-85 and

17 VG-64 for VG-71. That motion is granted, but the Prosecution should note

18 that according to its terms, the earliest date for testimony is the 27th

19 of October, and the reason for that is to give the Defence time to

20 prepare.

21 Now, who is first, Mr. Groome or -- Mr. Groome, you have matters.

22 MR. GROOME: Your Honour, as the case has progressed I see one of

23 my responsibilities as trying to in view of prosecuting the case most

24 efficiently is always re-evaluating the witnesses that are on the list.

25 One of the witnesses we sought to add on the 8th of September 2008 is

Page 2014

1 Witness VG-137. He's a convicted Serb perpetrator. A statement was

2 recorded on video over the summer, but it was not until last week that we

3 actually had the transcript. Now after reviewing the full transcript and

4 fully considering the security implications that this witness's family

5 may face as a result of testifying in a case that -- and these security

6 implications have nothing to do with the Defence of the particular

7 accused in this case but just the general security concerns that they

8 have, I believe it is in the interest of justice that I not call the

9 witness at this stage. So I will be withdrawing the -- our request to

10 add VG-137.

11 Of course I apologise to Defence counsel and court staff, legal

12 officers that may have expended efforts in this regard already, but I

13 believe it's consistent with my duties to keep re-evaluating the witness

14 list and reducing it where possible.

15 Your Honour, last week when I filed the -- the witness schedule

16 for this week I mentioned the witness Zehra Turjacanin, and there was a

17 question mark about whether she would be available to testify this

18 Thursday. She has arrived in The Hague and it is our intention to call

19 her this Thursday. I do have one request of the Chamber and that is I

20 think it is preferable for her if her testimony begins and concludes on a

21 single day. I think it may cause her some problems to be worrying

22 overnight.

23 I know that we originally had requested and were granted three

24 hours to examine her. It would be my request and my intention to reduce

25 my examination of her to an hour and 45 minutes, and I would request if

Page 2015

1 we could begin her testimony on Thursday morning and conclude it Thursday

2 afternoon. So I'd ask the Chamber to consider that, that even if we

3 should be ahead of schedule on Wednesday that we do allow her just to

4 begin her testimony on Thursday -- Thursday morning.

5 Now, Your Honour, this week we are scheduled to call two experts

6 and they have they devoted a significant portion of their professional

7 pursuits to what happened in Visegrad. Pursuant to the Chamber's earlier

8 ruling we are intending this week to produce these witnesses, tender

9 their prior testimony and reports and make them available for

10 cross-examination. In preparing them for their testimony, it appears

11 that there may be some benefit to asking them some brief additional

12 evidence. For example, as a result of the assertion of an alibi defence,

13 we have called several witnesses to rebut that alibi. Some of those

14 witnesses in their evidence refer to killings of other named people.

15 Ms. Tabeau examined the available data sources for these names and is

16 able to provide information regarding the date which has been recorded as

17 their death.

18 Now, the dates are often approximate and are determined by

19 information provided by family members as to when they last saw the

20 victim. However, given this caveat, they do provide corroboration of the

21 fact that these victims were killed as well as an approximate date.

22 She has also examined her underlying data sources and generated a

23 table of victims named in the indictment and is able to provide similar

24 information about when they are believed to have been reported missing.

25 She has also in preparation for her testimony prepared a

Page 2016

1 PowerPoint presentation that succinctly summarises her report and shows

2 in graphic format her primary conclusions. Among these is a graph that

3 shows the dates when there was a statistical spike in the killings in

4 Visegrad. I believe it would be useful for the Chamber to see this

5 presentation and hear her explanation. I anticipate that both of these

6 matters could be dealt with in approximately 50 minutes, so I'd ask the

7 Chamber to consider whether the Prosecution would be allowed to -- to

8 spend approximately 50 minutes inquiring from Ms. Tabeau on these other

9 matters.

10 Similarly, Dr. John Clark, who with his colleagues performed the

11 examination of the remains found in Slap arrived in The Hague over the

12 weekend. His Vasiljevic testimony has been -- will be admitted pursuant

13 to a decision of the Chamber. Many of the remains that he examined have

14 now been identified. Three of them are named victims in the indictment.

15 The Prosecution is therefore requesting approximately 10 minutes to

16 examine Dr. Clark and have him talk about the specific files, the

17 specific autopsy reports with respect to three cases that he conducted

18 that have to do with named victims in the indictment.

19 Thank you, Your Honour.

20 JUDGE ROBINSON: Thank you, Mr. Groome.

21 MR. GROOME: Your Honour, your mike.

22 [Trial Chamber confers]

23 JUDGE ROBINSON: Would you please clarify, Mr. Groome, the

24 position of Ms. Tabeau. Is she down to testify it the same day as -- as

25 Zehra Turjacanin?

Page 2017

1 MR. GROOME: Your Honour, as I had indicated an earlier time

2 because she works in the building I've identified her a person who can be

3 called on short notice should a gap arise. In the filing that we made

4 last Thursday, we identified that we would call her today because we

5 anticipated that even we would be ahead of schedule today because of the

6 Chamber's deferral of the decision of the VG-42 who was originally

7 intended to be today. So she is available to give her evidence today,

8 and she would be the second witness that we would call this week.

9 JUDGE ROBINSON: Thank you.

10 Mr. Cepic.

11 MR. CEPIC: Thank you, Your Honour. First to respond to the

12 issues which is raised by my learned friend Mr. Groome. We do not

13 object, of course, that witness Zehra Turjacanin will appear in one day

14 so no objection related to that.

15 We kindly request the whole material from OTP related to the

16 VG-137. Maybe could be useful for Defence. We don't know yet that. And

17 I would like to raise some other issues. One of that is admission of

18 exhibit which we used with last witness, Nurko Dervisevic. That is the

19 pseudonym sheet. We forgot to request admission of that exhibit.

20 JUDGE ROBINSON: We'll admit that.

21 MR. CEPIC: Thank you. Thank you very much.

22 THE REGISTRAR: As Exhibit 2D18 under seal, Your Honours.

23 MR. CEPIC: And what I would like to raise is as follows as the

24 main, main issue is related to upcoming witnesses, namely on Friday late

25 afternoon we were informed from the OTP that in our lockers are the new

Page 2018

1 disclosure related to the witnesses for this week, so on Saturday we

2 checked and we received 1.304 pages related to the witness Ewa Tabeau,

3 1.004 pages related to John Clark, and 284 pages related to Witness

4 Mirsad Tokaca.

5 On Sunday afternoon we received additional disclosure material

6 and in that disclosure we found exhibit which the OTP intends to use with

7 that witness, that is the CV, updated CV of Ewa Tabeau, but in all this

8 material and in the previous material we haven't got received data

9 sources for the Ewa Tabeau expert report related to Visegrad. That means

10 population census from 1991 and from 1997 voters register mainly because

11 Ms. Tabeau quoted in her expertise that these sources are reliable and

12 relevant to our objectives.

13 On Friday morning we were invited from OTP to -- by e-mail to

14 contact them and to review all material related to that witness, but this

15 morning when we requested that material, the basic material for that

16 report, we received information that this material is under the Rule 70.

17 It is quite confusing for us, because in our opinion that material cannot

18 fall under that Rule because Rule 70(a) specifies that reports, memoranda

19 or other internal documents prepared by a party, its assistants or

20 representatives in connection with the investigation or the preparation

21 of the case are not subject to disclosure or notification under those

22 rules, but the present situation we did not request any previously

23 mentioned documents. We simply requested material requested by public

24 institution which is essential and forms the basis of the expert report.

25 We cannot be prepared for cross-examination without that material because

Page 2019

1 it is clearly quoted in that material that is the base for that report.

2 We needed that material for effective preparation.

3 Thank you very much.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: Mr. -- Mr. Alarid.

6 MR. ALARID: Your Honour, did I want to inform the Court that of

7 course doubling with Mr. Cepic, that was one of our main concerns and we

8 did file a motion to bar the testimony of the Prosecution expert based on

9 the late disclosure and the refusal to tender the Rule 70 materials in

10 accordance with the Rules and the procedures of the court.

11 I don't think the motion has come out yet because we filed it --

12 we were writing it this morning, Your Honour, and so that's what

13 basically we focused on this morning.

14 JUDGE ROBINSON: No, I want to say one thing. I don't intend to

15 devote a lot of time on this because there are other ways of settling

16 these issues. For example, Mr. Cepic, if you believe something is not

17 Rule 70, then you can file a motion to that effect and it will be

18 determined.

19 But I would like to hear Mr. Groome on the late disclosures of

20 documentation which appears to be very voluminous, over a thousand pages,

21 and briefly also on the other matter raised by Mr. Cepic.

22 MR. GROOME: Your Honour, I'm asking Mr. Van Hooydonk to get the

23 precise numbers. At the end of last week both of these experts had done

24 work in the former Yugoslavia. We disclosed material that was

25 disclosable under Rule 66 and Rule 68. We then sent a letter towards the

Page 2020

1 end of last week saying look, there's this whole other body of material,

2 it's not disclosable under Rule 66 in that it's not a prior statement of

3 this witness related to anything, to Visegrad or anything to do with this

4 case and there's nothing in that's exculpatory, but they have worked in

5 this area and they've done much work in other parts of Bosnia and Croatia

6 and the former Yugoslavia. So we said to them there's no -- there's no

7 confidentiality in those documents. If you want access to those

8 documents we will provide that access to those documents, and I believe

9 Defence counsel did want access to those documents. I'm asking Mr. Van

10 Hooydonk now to get me the precise figures about what, if any, portion of

11 this was material that we were required to disclose and what portion of

12 it was material we offered as a courtesy to Defence counsel even though

13 it was not disclosable under the Rules and as soon as I have that

14 information I can report that to the Chamber.

15 With respect to the other matter raised by Mr. Cepic, what's in

16 issue are a very large database or two databases of voter registration

17 records of entire country of Bosnia and Herzegovina. It actually refers

18 to 9.5 million individuals records, each of those records containing 50

19 to 60 different variables or data points within it. So it's in the

20 billions of -- of -- on the magnitude of the information that's contained

21 in there.

22 Ewa Tabeau has never provided this before in another case. She

23 received this pursuant to some Rule 70 agreement. I'm not sure who that

24 is with and I can investigate that for Your Honours. She has stated that

25 it has happened in the past where Defence teams have hired their own

Page 2021

1 demographer and she has made available the database up in our office

2 where they can look and do checks on the database. If that is what

3 Defence counsel is requesting, that is something that could be arranged.

4 I think it's a bet tangential to this issue in that this case, unlike the

5 other cases where Ewa Tabeau has testified such as the Srebrenica cases

6 where the actual victims that the accused were charged with where part of

7 that proof is established with her records, the Prosecution in this

8 particular case is not seeking to establish that any of the individuals

9 killed here were killed as a result or relying -- or we're not relying on

10 Ewa Tabeau's assessment of this database but we can make it available to

11 the Defence. If they want, Ms. Tabeau tells us that it would take about

12 a week to set up a room, the computers, and again I'm not sure if Defence

13 counsel appreciate exactly what they're asking, but it's not the type of

14 material that those of us who are untrained in demography can sit down

15 and make use of. It's something that does require a demographic expert.

16 JUDGE ROBINSON: Mr. Cepic, just briefly.

17 MR. CEPIC: Yes, Your Honour, just briefly. Thank you very much

18 for this opportunity. We just requested material related to Visegrad

19 municipality which was the base for this -- for this report, nothing more

20 than that. Thank you very much.

21 [Trial Chamber confers]

22 JUDGE ROBINSON: I don't intend to determine any of these matters

23 now. If a party has an application to make to the Chamber then it can

24 make that application.

25 Please call the witnesses.

Page 2022

1 MR. ALARID: Your Honour, I still have a preliminary matter

2 separate from --

3 JUDGE ROBINSON: You have another preliminary matter.

4 MR. ALARID: Please, sir, please.

5 JUDGE ROBINSON: Okay.

6 MR. ALARID: To be honest I don't know where to begin, Your

7 Honour.

8 JUDGE ROBINSON: That sounds very ominous, Mr. Alarid.

9 MR. ALARID: Well, it is, because I'm raising right now an

10 effective assistance of counsel and I do that because I had to become

11 introspective but the comment you gave me on Friday, the reputation of

12 misrepresenting the facts or the evidence cut very deeply. I took it

13 very seriously, because the last thing I want is this Tribunal to somehow

14 not respect my integrity.

15 I took it very seriously because I take this process very

16 seriously. I entered into this process very seriously, and when you do

17 public defender work at any time, you don't get to choose your client,

18 you don't get to choose your case, and you don't make up the facts but

19 you do the best you can every time, and what I'd like to think is that

20 this process -- and we have raised submissions to the counsel with

21 regards to how difficult it has been to prepare this case in the

22 time-frame ordered by the Court, and I hate to complain all the time so

23 we don't complain every time we can, but what you said cut me very

24 deeply, Your Honour, and I want to first explain to you in a bit what it

25 takes for us to do what we do every day and what we've been asked to do

Page 2023

1 despite the fact that I've only been lead counsel since June and I didn't

2 get any help before this point in time. So basically I've been the lone

3 counsel, even as co-counsel since February of this case and there were 50

4 submissions in this case in July when we should be just tearing apart

5 these witnesses and putting them back together again. The witness list

6 has been remade and retwisted around and now reformulated. New witnesses

7 who've never been heard of before are being added. 42 is being

8 substituted. We spent the weekend writing our responses, Your Honour,

9 and you've made your decision first thing in the morning on Monday, even

10 though our decision to -- our option to reply to that is not even done.

11 And it makes me feel like I'm wasting my time because to be

12 honest, Your Honour, if you've convicted my client based on 63 we should

13 go home. We should go home, because at that point in time I think this

14 Court has enough at least in the State of Florida to kill the man. And

15 so the fact is, Your Honour, is I have 21 counts all involving individual

16 murders or atrocities of one kind or another and then they're

17 back-dooring persecution through rape victims under the auspice of

18 alibis? I'm sorry, Your Honour, it's not an alibi unless the witness

19 comments on the date in question. I want to make an oral argument not to

20 allow the witness today because they tender them under alibi; yet this is

21 a back-door argument about the Passat and Behija Zukic today and this

22 witness was not present to know whether or not Milan Lukic was in town

23 for any of the enumerated counts in the indictment at all.

24 JUDGE ROBINSON: When the witness comes make that argument --

25 MR. ALARID: Well, but --

Page 2024

1 JUDGE ROBINSON: -- we'll consider it.

2 MR. ALARID: But here is what I'd like to prove to you, Your

3 Honour, is I've made a copy, I have five copies of my binder for this

4 Witness 63 and, see, all I've been able to do with the time-frame this

5 Court has given me is I read it once all the way through, six statements,

6 six statements for the single witness over the course of 15 years. And

7 then we try and highlight the next time and then outline in the margins

8 the third time and then do an outline of which I can -- I'm dissatisfied

9 with myself so if you're dissatisfied with me, then it's all on the

10 table. I'm on the table.

11 So you can understand what it takes to do a witness of this

12 horrible thing. This woman was a victim. I have no doubt in my mind and

13 I have to make her cry to prove a point? I have to put it to the

14 witness? The fact of the matter is is I did misspeak because you're

15 right. In the -- but in the statement to the ICTY, that witness said

16 Milan Lukic held a head. In a statement to -- in anticipation of the

17 Boban Simsic trial she said Milan Lukic head a held and in the statement

18 of the Boban Simsic trial he held a head had. Yet in fact in three

19 opposite statements he didn't, an unknown Serbian, and so I misspeak

20 because I don't have an assistant scrolling through the testimony every

21 time. You allow them to double team me in objections. They split a

22 witness, every day I come they take a new witness. If I had a law firm

23 with eight lawyers I'd be doing gang busters with this case. So I'd like

24 to tell the Court right now because the states been asking me for updates

25 for my defence and what it is and you tell me today I've got to have a

Page 2025

1 full list of witnesses on October 17th and I'm telling you I can't under

2 any set of circumstances with a competent lawyer's ability unless you

3 just believe we're here wasting our time.

4 That's the only way I can do it.

5 JUDGE ROBINSON: Mr. Alarid, let me consider what you have --

6 MR. ALARID: But, no, I need to show you something, one more

7 thing, because it's important that you see what's happened to our thing.

8 Can we pull up our photo, please. I'd like to pull up 1D10-1620 for the

9 Court.

10 JUDGE ROBINSON: What is this --

11 MR. ALARID: It's demonstrative aid, Your Honour, so you can see

12 what I'm telling you is true.

13 JUDGE ROBINSON: We don't wish to see it. I think we can

14 determine this matter without looking at your exhibits.

15 MR. ALARID: Well, because I --

16 JUDGE ROBINSON: What --

17 MR. ALARID: I want to tell the position --

18 JUDGE ROBINSON: [Overlapping speakers] in relation to

19 co-counsel? Why don't you have a co-counsel?

20 MR. ALARID: Well, see, Your Honour, despite the fact that all 21

21 counts are against us and we have to answer every count every day, 92 ter

22 gives them 15 minutes and then I have two hours of which to annoy this

23 Court with my questions and the fact of the matter is, Your Honour, is

24 they assess us as a level 1, we're a level 1 case, so I'm supposed to do

25 a 300-victim mass murder case with multiple rapes for a level 1, and

Page 2026

1 because the rules in this somewhere way back when people were probably

2 abusing the process came up and decided that these Rules are what set the

3 guidelines for case preparation regardless of when a lawyer's dropped

4 into the process and said you better be ready or else, and I took that

5 very seriously --

6 JUDGE ROBINSON: Just a minute, Mr. Alarid.

7 [Trial Chamber confers]

8 JUDGE ROBINSON: I just wanted to make an inquiry into relation

9 to Sredoje Lukic. Mr. Cepic is the counsel, and Mr. Dieckmann is

10 co-counsel. So in that case I don't understand why Mr. Milan Lukic's

11 case is more voluminous and doesn't have a co-counsel.

12 MR. ALARID: Well, Your Honour, what it is is this: It's the

13 practical application of some backwards rules that don't apply to facts

14 of an individual case. It's an attempt by the registry to cookie cutter

15 this process despite the fact that in and of itself the execution of that

16 violates the processes of due process. The fact the matter is, Your

17 Honour, is that I cannot speak publicly over the registry's issues

18 because some of those issues do involve my client's interactions with

19 previous counsel and the problems that manifested from that. Also the

20 problems involved with my previous lead counsel who deferred to me and

21 then left me holding the bag so the fact of the matter is is I have this

22 case and I've done the best I can but I've had to do with it more grunt

23 workers as opposed to lawyers, and so now I'm in a position being forced

24 on this fast track to get this job done, and this case is not a level 1

25 because what a level 1 allows for is co-counsel, lead counsel, and a

Page 2027

1 single assistant. You've seen Jelena Rasic here. She is my right hand

2 in terms of handling Mr. Lukic --

3 JUDGE ROBINSON: Just a minute. I'm trying to think of a

4 practical way to resolve it.

5 [Trial Chamber confers]

6 JUDGE ROBINSON: Mr. Alarid, all of the arguments that you are

7 raising about the lack of co-counsel have been put to the registrar?

8 MR. ALARID: All the way up to the point of where they tell me my

9 best bet is to appeal to the President, and the fact of the matter is,

10 Your Honours, we'll be done by that point and they bait and switched the

11 whole process at that juncture.

12 JUDGE ROBINSON: But you haven't -- you haven't followed --

13 MR. ALARID: Your Honour --

14 JUDGE ROBINSON: -- the process by appealing.

15 MR. ALARID: When do I have time, really, I mean, I want you to

16 be honest, I mean tell me I'm working, I need a bone here, but the fact

17 of the matter is we come to work every day and it's actually up now,

18 1D10-1620, please 8, 8, excuse me.

19 JUDGE ROBINSON: I don't want to look at it now. I'm listening

20 to your argument which I consider to be a substantial argument that

21 affects the fairness of the trial. That's why I'm attending to it.

22 MR. ALARID: Well, and so here's --

23 JUDGE ROBINSON: [Overlapping speakers]

24 MR. ALARID: So here is the process, Your Honour, is when I left

25 this case I asked this Court, the Tribunal and everyone else. I gave my

Page 2028

1 calendars. I had to go work on this electronically back home while Marie

2 and a couple law students put this case together on paper. We come back

3 here and we start witnesses. That's the way it works and then they don't

4 give enough funding because I have an investigator, a translator and my

5 legal assistant and they want me to hire a co-counsel, but here's what

6 they tell you to do, see if they'll take less money, so I got to talk to

7 people that live in this community and pay their rent out of this budget

8 and I got to start jockeying around. Why? Because the registry doesn't

9 want to account what a real case takes to work it out.

10 JUDGE ROBINSON: Okay. Mr. Alarid, this is what we'll do. We'll

11 take the matter under consideration. The Trial Chamber has to be very

12 careful. Of course when an issue of the fairness of the trial is

13 involved, the Trial Chamber does have jurisdiction, but as you yourself

14 have pointed out, the normal route for challenging a decision of the

15 registrar is to go to the -- to the President. But we are going to look

16 at the matter, and we'll tell you what decision we have come to.

17 In the meantime, I should bring it to your attention that we have

18 responded in some way to the pressure which you obviously are under by

19 granting the reduction from five days to four days. So we haven't been

20 insensitive to your position, and I'd like you to note that.

21 MR. ALARID: And I did, Your Honour, and I did, but I'll tell you

22 what hurt my feelings because actually that did make me feel good because

23 I did feel respected, but then you took it away at the break. And so it

24 kind of gave me the feeling like, okay, when am I supposed to do this.

25 JUDGE ROBINSON: Took what away?

Page 2029

1 MR. ALARID: The time. The time, Judge. It's all about time.

2 When you did the two weeks and then the one week off and then start and

3 you tell me I got to have a full witness list on the 17th. I mean, when

4 are we supposed to be ready for a Defence case. And, Your Honour, I'd

5 like to think that in any case where a rape victim comes up and says a

6 couple different things in each statement, that is a case. You know, we

7 have the young gentleman that said his friend was killed, pot shot in the

8 water. That disgusts me. Jeez. Who is going to throw a boy over the

9 railing and take a pot shot in the water. But his dad comes on and says

10 he put his twin on the bus before it ever happened even though the one

11 witness said the twin watched him leave in that red Passat that we are

12 also famously chasing. The fact is I believe we have a case here. And

13 how am I supposed to --

14 JUDGE ROBINSON: Mr. Alarid.

15 MR. ALARID: How am I supposed to chase down leads? I haven't

16 been to Bosnia yet, Your Honour. I was hoping you have granted the thing

17 so I can go too, the site visit.

18 JUDGE ROBINSON: Mr. Alarid, as I said, we will take what you

19 have said under consideration, and tomorrow we'll give -- express our

20 views on it, but of course the Chamber has its own jurisdiction to

21 consider in this matter. I mean, this is an institution where various

22 bodies have various institutions, and we'll have to take that into

23 consideration as well.

24 Mr. Groome.

25 MR. GROOME: Your Honour, just briefly. And of course the

Page 2030

1 Prosecution's concerned with the fairness of proceedings as well.

2 If I'm not mistaken, Mr. Ivetic who has arrived here last week

3 is -- has acted ably as a co-counsel in other cases, if I'm not mistaken,

4 so perhaps when the Chamber's considering a possible options, it might

5 want to explore Mr. Alarid and Mr. Ivetic if that were a possibility

6 since he is already working on the case in some capacity and he has

7 appeared before this Tribunal as co-counsel, it might be one sensible

8 solution.

9 JUDGE ROBINSON: Yes, we will, bearing in mind of course it is

10 not the Chamber who actually --

11 MR. ALARID: To be honest, Your Honour, that's what I was doing

12 and that was the whole point and I've already submitted the paperwork to

13 the appoint Mr. Ivetic is a legal assistant so he can kind of wade in,

14 you know, get on the treadmill so you're not -- and catch up to speed and

15 I can't get a response on that because I think what they're afraid of is

16 exactly the situation which is becoming clear, which is at the point I

17 hire him as a legal assistant, we're maxed out on the budget, so the fact

18 is is I have to fire people today despite the fact that Mr. Ivetic has to

19 come up to speed and it's not going to come up in a week. It's going to

20 be longer than that to come up to speed. That's the ultimate quandary,

21 the rock and the hard place that we're fighting with here.

22 JUDGE ROBINSON: Thank you. As I said, we will consider the

23 matter.

24 MR. ALARID: And there is one important issue that I can't forget

25 to say and it kind of goes to the stress of things is Jelena Rasic, that

Page 2031

1 young lady that you've seen here during trial, she's doing legwork

2 investigation right now in Bosnia and she's being threatened. She's

3 getting text messages that are threatening her life right now. So

4 there's this point of time where I got to bring her back here to sign an

5 affidavit to say how dangerous this process is to defend Milan Lukic and

6 try and go get some county court type records and those kind of things.

7 It's really difficult to get things done. And -- and -- you know, but

8 I'm at a point where I have no choice but to send a young girl into the

9 field to do what I think is dangerous work.

10 JUDGE ROBINSON: Well, that's -- that's another matter. I don't

11 say it is insignificant, but as I indicated, we'll consider the matter

12 and to the extent that we can we'll let you know what our position is

13 tomorrow.

14 Let the witness be called. Thank you very much.

15 I wanted to say, Mr. Alarid, that I did say that you were

16 developing this reputation for misstating the evidence, and that was just

17 a factual statement. I never intended to suggest that it was being done

18 maliciously or with any intent.

19 MR. ALARID: Well, I would just state that that is the level of

20 my preparedness and I don't like it because I actually think you deserve

21 a crisper, cleaner more focussed cross-examination for each and every

22 witness that gets the point and does it. But of course, these are

23 beautiful people that come in front of us, and they don't want to answer

24 my questions because they know who I represent, and so we go around the

25 pole some -- way too many times and I don't want to hurt them. That is a

Page 2036

1 right they are the second and the third person.

2 MR. WEBER: May the record reflect the in-court identifications

3 of Milan Lukic as the second person from the left and Sredoje Lukic as

4 the third person from the left.

5 JUDGE ROBINSON: Yes.

6 MR. WEBER: No further questions.

7 JUDGE ROBINSON: Thank you.

8 Mr. Alarid.

9 Cross-examination by Mr. Alarid:

10 Q. Mr. VG-82, my name is Jason Alarid and I'm the lawyer for Milan

11 Lukic. Can we ask you a few questions, please?

12 A. Yes.

13 Q. Now, you did review your statement of 1994, as well as your

14 statement to the ICTY in 2001 and 1997; correct?

15 A. Correct.

16 Q. Now, the one thing I didn't understand is how could a statement

17 be both from 1997 and 2001 but written in one statement. Can you explain

18 that?

19 A. From what I know, there are two separate statements. One was

20 given on the subject of Behija Zukic, and the second statement was given

21 about me and the execution I survived. So in total, there should be two

22 statements.

23 Q. And that's two statements to the ICTY; correct? Which would make

24 three statements total. And the reason I say that is because what I have

25 in my folder that's been disclosed by the Prosecution is a 1994 statement

Page 2037

1 to the MUP in Gorazde, and then I have a statement to the ICTY that says

2 that there were interviews in the 31st of October, 1997, and the 26th of

3 January, 2001, a four-year differential. Can you explain that?

4 A. Maybe we did not understand each other really. I said I gave two

5 statements, one about Behija Zukic and another concerning me personally.

6 I gave one statement in Gorazde, that's true, and the second statement I

7 gave subsequently to the investigator. So one statement was made in

8 Gorazde, and there's another one given to the investigator. There are

9 two different subjects in two different statements.

10 Q. And so was there an actual statement produced in 1997 that you

11 reviewed and signed, whether it was about yourself or Behija Zukic? Did

12 you review and sign anything in 1997?

13 A. I had the opportunity to review each of the statements I've

14 given.

15 Q. Do you remember giving a statement in 1997 to an investigator

16 from the ICTY?

17 JUDGE ROBINSON: Mr. Weber.

18 MR. WEBER: Your Honour, that is objection just right now. I

19 believe the question is a little unclear. There's only two statements

20 that the ICTY has disclosed. There's only two statements that exist.

21 One of the statements, the ICTY statement, was -- this witness was

22 interviewed in 1997, then I believe the witness signed the statement in

23 2001. I believe Mr. Alarid would like to direct the witness's attention

24 relating to that. This witness has clearly indicated at this time

25 there's only two statements.

Page 2038

1 MR. ALARID: That sort of did clarify things, Your Honour, from

2 Mr. Weber, although I'd kind of like it to come from the witness.

3 Q. Do you remember -- so you were interviewed in 1997? Is that

4 true?

5 A. I think it was in 1997 when I gave that statement in Gorazde, and

6 later, in 2001, if I'm not mistaken, I gave another statement to the

7 investigators.

8 Q. And in 2001 -- but I mean -- actually, back that up. In 1997 was

9 any piece of paper prepared as a result of that first interview to the

10 ICTY investigator for you to review?

11 A. Maybe you should clarify, because I haven't quite understood what

12 you mean.

13 Q. Well, I have a statement that says that there were two

14 interviews, in 1997 and 2001. My query is did anyone prepare a

15 preliminary statement in 1997 for you to review and possibly sign?

16 A. I know that I signed a statement, and I believe it was in 2001,

17 the statement that I gave to the investigators. So that's the 2001

18 statement.

19 Q. And so my next question is though if you didn't sign anything in

20 1997, was at least something prepared for you that memorialised the

21 investigation that you reviewed for accuracy even if you didn't sign it?

22 A. You see, from the events in Visegrad, so even in those times of

23 war when some people thought it was impossible to document certain

24 things, we had already started, actually, putting the facts on paper,

25 even before the war was over. And after the Dayton Accords, it became

Page 2039

1 much easier, but even during the war we had been trying to document the

2 events and facts and everything that happened in Visegrad.

3 Q. Now, isn't it true that from a time period standpoint, your

4 statements involving Milan Lukic or your knowledge of Milan Lukic precede

5 the 1st of June, 1992, don't they?

6 A. As for my knowledge of Milan Lukic the statement was about the

7 war and what happened during the war. I provided a statement on what

8 happened during the war.

9 JUDGE ROBINSON: Just a minute. Mr. -- I'm not sure I understand

10 the question. Is the question whether he gave statements --

11 MR. ALARID: Regarding --

12 JUDGE ROBINSON: -- Milan Lukic before the 1st of June 1992 --

13 MR. ALARID: Then it was a very bad question if that's where it

14 is. I'll try and clarify it then.

15 JUDGE ROBINSON: Yes.

16 MR. ALARID:

17 Q. No, sir, what I'm actually asking you is isn't it true in your

18 statement you testified about what you believed happened between Behija

19 Zukic, the red Passat, and Milan Lukic's involvement in that? Isn't that

20 true?

21 A. It's not what I believed, it's what I saw. I eyewitnessed that,

22 and I also heard things about it, both. It's about what happened in 1991

23 and 1992 over there during the war.

24 Q. But would it be fair to say that as your statement relates to

25 Milan Lukic, your involvement or what you saw all occurred before the 1st

Page 2040

1 of June, 1992? Isn't that true?

2 A. What happened with Behija Zukic was in May 1992. My own case

3 happened in June, the 11th of June 1992. So we're talking about May and

4 June 1992.

5 Q. And what happened to you in June of 1992 is when you were taken

6 away and arrested by some Serbians whom you did not know and were almost

7 executed. Isn't that true?

8 A. That's true.

9 Q. So whatever you knew about Milan Lukic or observed about Milan

10 Lukic preceded the 1st of June and is related to the death of Behija

11 Zukic. Isn't that true?

12 A. That's true. Prior to the 1st of June Behija Zukic's death

13 occurred. It was back in May. That, however, does not mean that Milan

14 Lukic did not continue his activities over the following months, although

15 that doesn't necessarily apply to my own case in June.

16 Q. Well, and it also doesn't apply to what you would be able to

17 observe and testify under oath about. Isn't that true?

18 A. Can you please clarify that for me?

19 Q. Meaning you can't testify from personal knowledge of any

20 witnessing of Milan Lukic or doing anything after what you saw

21 surrounding Behija Zukic occurred.

22 A. I was still following everything that was happening even after

23 what occurred to Behija Zukic, because I was still in the Visegrad

24 municipal area. I remained in the area.

25 Q. And so your interest after that was more curiosity and following

Page 2041

1 the news as opposed to actually witnessing any part of what Milan Lukic

2 may or may not have done after the end of May 1992. Isn't that true?

3 A. After the end of May 1992 and June. Up until the 11th of June,

4 1992 I was an eyewitness in Visegrad because I was in Visegrad itself, in

5 the centre of Visegrad. After the 11th of June, I could no longer follow

6 any developments or indeed what Milan Lukic was doing simply because the

7 town by this point in time had been cleansed already.

8 Q. But you were -- but the last time that you believe you saw Milan

9 Lukic was before the end of June 1992. Isn't that true?

10 A. Well, yes. The 11th of June is the time up until which I was

11 able to see him around town but not after that date.

12 Q. And so are you testifying today that you saw him around town

13 between of 1st of June, let's say, and the 11th of June?

14 A. That's right.

15 Q. And have you testified to this before?

16 A. Yes.

17 Q. And where did you see him specifically on the 1st of June, let's

18 say?

19 A. Let me tell you. It has been 17 years since. You're asking me

20 about the 1st of June specifically. Who on earth could possibly remember

21 such a thing? But he was seen around town every day with this Passat,

22 the car, cherry red, and sometimes he would walk around town with no car,

23 but he was also known for walking around Visegrad barefoot with no shoes

24 on so that no one could hear him as he approached certain homes and

25 certain facilities.

Page 2042

1 JUDGE ROBINSON: Witness, you say that he was seen around town

2 every day with this Passat. Did you actually see him? Were you one of

3 those persons who saw him?

4 THE WITNESS: [Interpretation] I was able to see him around town,

5 yes. Sometimes during the day we would need to go out and get some bread

6 or some supplies in the centre. Movement, however, was quite restricted

7 simply because movement was not always possible. There were always

8 situations in which somebody would say, "Here comes Lukic. Here comes

9 the Passat." And that was a sign for anyone who happened to be around to

10 try to get off the street as quickly as possible.

11 MR. ALARID:

12 Q. And do you realise that you didn't state any of that in your

13 1997/2000 report?

14 JUDGE ROBINSON: Statement you mean.

15 MR. ALARID:

16 Q. Isn't that true?

17 JUDGE ROBINSON: Is that what you call a report or is it a

18 statement?

19 MR. ALARID: I'm sorry. The statement, yes. I'm sorry.

20 Q. Isn't it true, sir, that in your statement of 1997 or 2001 you

21 did not mention seeing Milan Lukic in a Passat or barefoot or walking

22 around between the day Behija Zukic's body was taken from her house and

23 June 11th when you left?

24 A. Well, let me tell you, in my statement the only reference to

25 Milan Lukic is in connection with the Behija Zukic situation. This is

Page 2043

1 not something that I mentioned in my statement. The only thing I mention

2 in my statement is what happened to Behija Zukic, which is also what I

3 saw and also what I heard from other people over the phone or when

4 talking to them.

5 Q. I want to know what you saw, when you were, where you were, when

6 you saw him, was a barefoot, was he driving or was he walking, what you

7 saw?

8 MR. WEBER: Objection, Your Honour.

9 JUDGE ROBINSON: Yes, Mr. Weber.

10 MR. WEBER: Those are a series of compound questions.

11 JUDGE ROBINSON: Ask them singly.

12 MR. ALARID:

13 Q. Let's just say after May 31st, [Realtime transcript read in error

14 "July 1st"] 1992, where was the first place you saw Milan Lukic and

15 where?

16 MR. WEBER: Your Honour --

17 THE WITNESS: [Interpretation] The first place I saw Milan Lukic

18 after the 1st of July was --

19 JUDGE ROBINSON: I'm allowing that question. I don't consider it

20 sufficiently compound.

21 MR. WEBER: Your Honour, I just want to correct the transcript,

22 actually. It says July 1st. I believe counsel intended June 1st.

23 MR. ALARID: I did.

24 MR. WEBER: I just wanted to --

25 MR. ALARID: Actually, I meant May 31st.

Page 2044

1 MR. WEBER: Okay. I was just correcting the transcript, Your

2 Honour.

3 JUDGE ROBINSON: I see. Thanks.

4 MR. ALARID:

5 Q. And, sir, could you repeat yourself? The transcript did not pick

6 up the translation. After May 31st, 1992, where was the first place you

7 saw Milan Lukic?

8 A. The first place I saw Milan Lukic was a cafe along a street in

9 Visegrad close to a building that was known as number 8. That's what we

10 called the building. It was a very famous building. It had eight

11 floors. There was this cafe behind that building and Milan used to go

12 there a lot. I'm not sure if he actually owned the cafe, but it's just

13 behind the building that we refer to as number 8. This is a street that

14 takes you from the centre of town to Prelovo and his native area of

15 Rujiste.

16 Q. Was he in the cafe?

17 A. Yes. Yes, he was.

18 Q. Where were you?

19 A. After the murder of Behija Zukic I and other people who lived in

20 that neighbourhood moved closer to the town itself because they had told

21 us that the is Serb police did not have sufficient manpower to make sure

22 everybody was safe and there were killings occurring. They told us that

23 we should move closer to the town itself and they would thus be better

24 able to better establish some effective control over what was going on.

25 This is when I arrived in the building that we refer to as number 8,

Page 2045

1 because that's where my son-in-law lived, and he put us up. That means

2 me, my wife, and my child.

3 Q. Now, just a few days earlier you had hidden in an attic and, I

4 believe, saw the body of Behija Zukic through a hole you had made in the

5 roof tiles. Is that true?

6 A. Yes, that's true.

7 Q. And -- but before that night you didn't know she had died until

8 someone told you because you were again hiding under a bridge avoiding

9 capture. Isn't that true?

10 A. You see, we were hiding under the bridge. We started hiding the

11 moment Behija Zukic informed us that her husband, Dzemo Zukic, her son

12 Faruk Zukic, Fehim Tabakovic and his two sons, Izet Tabakovic and Ferid

13 Tabakovic, and Fahrudin Cocalic had been taken away on her lorry. There

14 was this pick-up truck, a TAM truck that Behija Zukic owned, and these

15 people were put onto that truck and taken away.

16 Q. Now, what I'd asked you was is you were hiding under the bridge

17 the night of. Isn't that true? I know you want to say more, but I'd

18 like to get you home.

19 So you'd just been hided under a bridge; correct?

20 A. That night and after what had happened I was under the bridge

21 that had been destroyed. When the hydroelectric plant started operating

22 the bridge was blown up and that's where I was.

23 Q. And I'm assuming that you had to make it to your -- is it your

24 brother-in-law's home? Is that where you stayed after that? Sorry?

25 A. I was at Dusce because the hydroelectric power plant was not

Page 2046

1 functioning properly anymore and the water wreaked a lot of destruction

2 so I was staying in my brother Hilmo's place.

3 Q. And that's in building number 8; correct?

4 A. No. Just to make sure we're perfectly clear about this. After

5 all of this happened, after the murder of Behija Zukic, I moved to the

6 number 8 to stay with my son-in-law. And what happened earlier on, what

7 happened in connection with Behija Zukic, during that time I was staying

8 with my brother in the neighbourhood in which I lived. That was after

9 Behija Zukic.

10 Q. Okay. And so when you're in -- when you're in building number 8

11 you're having to hide; correct?

12 A. Yes.

13 Q. And I'm assume you're keeping the windows shuttered and the

14 curtains closed; correct?

15 A. Well, yes. It was like that for the most part. It's just that

16 the windows weren't facing the cafe but, rather, the other way, the

17 Elektrodistribucija company, which was another street, the street

18 opposite, so that's the way the windows were facing, but anyway, we

19 weren't really able to look out. We had to lie underneath our beds and

20 sofas, for example, when someone came knocking at our door.

21 Q. And so how were you able to see this Milan Lukic at the cafe from

22 number 8 and can you tell me what day of the 11 days you were there that

23 you were able to see him at the cafe?

24 A. I think I was quite clear when I said that. I could see him when

25 I left the number 8 and I told you a while ago that we would sometimes go

Page 2047

1 out to get our supplies such as bread and milk, because we had left our

2 own homes, and I had to get some food. I couldn't get by without food,

3 and I was certainly in no position to use anyone else's food. We would

4 go out and get supplies.

5 Q. But isn't it true at this time Visegrad was crawling with Serbian

6 extremists?

7 A. Yes, but I told you how it was, roughly speaking. One would

8 leave and go out as quickly as possible but nip over to a shop or grocery

9 to get some milk or other supplies, and as quickly as you could you would

10 just walk back.

11 At a later stage even that no longer worked, so we would just

12 send our wives for them to go and get supplies just in order to make sure

13 that no men were out in the street.

14 Q. And what day between June 1st and June 11th did you see Milan

15 Lukic at the cafe?

16 A. It might have been the first days of June, the 1st or the 2nd,

17 perhaps, but it's difficult to be very specific because he spent a lot of

18 time in that cafe.

19 Q. Was he there every day and you saw him there every day?

20 A. The days that I left the house, whenever I was actually out to

21 get some supplies. If I never left the house, as the case was on certain

22 days, I wasn't able to see him, was I?

23 Q. Well, sir, you've been brought here to rebut an alibi testimony

24 it, so it's very important that you're able to pinpoint with certainty of

25 date the date you saw him.

Page 2048

1 A. As I said, it's very difficult now, 17 years later. You're

2 asking me about the exact date. The next thing I know you'll be asking

3 me about the hour of the day, but it has been a long time. However, up

4 until the 11th of June, the beginning of the Bajram holiday, I was trying

5 to leave, to get out. Whenever I thought it was safe to get out of the

6 house, I would go and get some basic supplies. Those were the basic

7 necessities. That's why I would go out of the house.

8 Q. And so you're saying despite needing to hide in attics and under

9 a bridge, you could walk out in broad daylight and go shopping?

10 A. I told you we would just nip out in a manner of speaking and try

11 to keep it as quick and as short as possible, and there were shops

12 nearby. The neighbourhood is called Mezalin. There were shops nearby.

13 You could just go in and out in no time at all, get your supplies and be

14 gone.

15 Q. How many times did you go out versus sending your wives?

16 A. Well, let's say once a day. I was in no position to risk more

17 than that.

18 Q. So you're saying you went outside every day between June 1st and

19 June 11th?

20 A. Yes.

21 Q. During the daylight?

22 A. Yes. Daytime, of course --

23 Q. Just to shop for the --

24 A. -- because of the business hours of the shops. Yes, yes.

25 Q. Well, if men are being taken away never to be seen again don't

Page 2049

1 you think it would be more prudent to gather enough supplies to last for

2 a while?

3 A. Well, let me tell you, things had not yet begun to happen in the

4 same intense way that they started happening later on. By this time only

5 two murders had occurred, no more than two. The first involved the

6 Smajic family, the wife and the husband, Medo Smajic and his wife. That

7 was the first murder. And then there was Behija Zukic, which was the

8 next murder. Maybe at this time people were not yet fully aware of how

9 the whole thing would end and what it would eventually lead to.

10 Q. Sir, before this date the Uzice Corps had already come to town,

11 hadn't they?

12 A. Before when?

13 Q. Before the death of Behija Zukic.

14 A. Yes. Yes. The Uzice Corps came in on the 14th of April.

15 Q. And the Uzice Corps, while they were in town many crimes were

16 committed against Muslims, weren't they?

17 A. Well, they were more like putting in their measuring rod and then

18 checking, but the murders really started occurring in any serious way

19 once the Uzice Corps had withdrawn.

20 Q. And the Uzice Corps disarmed the Muslim people, didn't they?

21 A. Well, let me tell you. I don't think what there was to take away

22 in terms of disarming and who in Visegrad could be disarmed in terms of

23 owning weapons. When the hydroelectric power plant was abandoned, all

24 the Muslims left Visegrad. When they were returning, no one was allowed

25 to carry any weapons while returning. Therefore, there was no one and

Page 2050

1 nothing to disarm.

2 Q. And during the Uzice Corps Muslim men disappeared, didn't they?

3 A. Well, I told you it was mostly about people being taken away and

4 people being checked. The Uzice Corps was headquartered at Bikavac.

5 Mostly there were interviews that were being conducted during the

6 presence of the Uzice Corps in town.

7 Q. Sir, in your statement of 1997 and 2001, you indicated that the

8 White Eagles participated in the attack on Dobrun on the 6th of April,

9 1992. Isn't that true?

10 A. Yes, that's true, the 6th of April, 1992. The White Eagles

11 attacked the local commune of Dobrun. This local commune straddles the

12 border with Serbia. I'm talking about Serbia the country.

13 On the 6th of April, the White Eagles attacked Dobrun. There are

14 documents showing that that were seized, those documents, the White

15 Eagles documents, with all their first names, last names, personal

16 detail, as well as their rules of conduct. But they had tags on them

17 that said Eagles, and then also a flag was seized as well as some other

18 material.

19 Q. And you heard about the entire population, the Muslim population,

20 as many as they could gather were taken to the soccer stadium, the

21 football stadium in Visegrad and addressed by Colonel Jovanovic. Isn't

22 that true?

23 A. Yes. I heard that people had been taken to the stadium.

24 Probably the objective was to take them away, cleansing. The aim was to

25 use buses to ferry them across to other countries and other areas.

Page 2051

1 Q. And isn't it true that in that stadium Colonel Jovanovic claimed

2 he controlled the White Eagles? Isn't that true?

3 A. I wasn't at the stadium myself. Did I hear this, did I not hear

4 this, frankly I don't remember. Nevertheless, as long as the Uzice Corps

5 was still around, the situation was more or less bearable. Once it left,

6 everything changed.

7 Q. Or quite possibly it was a calculated attempt at disarming the

8 Muslim people, then luring them back to their homes to be victimised and

9 unarmed by a well-organised police action.

10 A. Let me tell you this: All of the people who returned, returned

11 unarmed. There was no resistance at all on their part. That was out of

12 the question. You could say the aim of the whole thing was to bring

13 people back into town, and then we know what happened later.

14 Q. Now, let's talk about how you know Milan Lukic. You remember him

15 specifically being in your class?

16 A. Yes, I do, specifically. And I told you what his class was, the

17 number, the department, and what the vocational speciality was that they

18 were studying. If required, I can provide further explanations as well.

19 Q. Well, but isn't it true that in your statement you didn't

20 necessarily recognise Milan Lukic and it was a Mr. Tabakovic who told you

21 or reminded you that he was somehow in your class?

22 A. You see, when Milan Lukic came from Obrenovac, Serbia, to

23 Visegrad his behaviour drew a lot of attention from many of us. As an

24 individual, as a human being, what he did drew some interest. We

25 actually tried to find out more about him because of that. This is just

Page 2052

1 a single source. Izet Tabakovic who was his classmate and Tesalic

2 [phoen], they were classmates. But this is just a single source that

3 sort of filled in whatever information I had.

4 JUDGE ROBINSON: Mr. Alarid, we're going to take the break now.

5 --- Recess taken at 3.44 p.m.

6 --- On resuming at 4.08 p.m.

7 JUDGE ROBINSON: Yes, Mr. Alarid.

8 MR. ALARID:

9 Q. Mr. Tabakovic is the one that you said was a schoolmate or

10 classmate with Milan Lukic? Is that true?

11 A. Yes.

12 Q. And which year was he a classmate with him?

13 A. I think it was the school year 1982, '83. And they were in the

14 second year of secondary school.

15 Q. And the -- but the reality is you couldn't remember him. You

16 needed this other young man to tell -- or remind you, rather, that he was

17 in your class. Is that what you're saying?

18 A. That young man is just one of the sources I told you a moment

19 ago. Izet Tabakovic and Fahrudin Cocalic were his classmates. And there

20 is another source that I checked and indeed was convinced that it was a

21 former student of mine.

22 Q. What was the other source, please?

23 A. One is my own inquiries that I made into him, because for a while

24 he was absent from Visegrad, having continued his studies in Belgrade

25 before coming back to our area. So for a while I wasn't seeing him, and

Page 2053

1 then I tried to gather more information to put the whole picture

2 together, which I did, and the other source are those two young men.

3 Q. Where did you make those inquiries?

4 A. In town, in contacts with people of both Bosniak and Serb

5 ethnicity. The two communities were still communicating.

6 Q. How about school records?

7 A. School records exist. There are yearbooks that are kept in the

8 school and archived for a number of years, and they can be checked.

9 Q. And so you're positive that this Milan Lukic in his second year

10 of secondary school was in your class, personally taught by you. Is that

11 true?

12 A. Yes.

13 Q. You're certain of this to a hundred per cent. Is that true?

14 A. I'm quite certain.

15 Q. And you believe school records and yearbooks will verify this.

16 Is that what you're saying?

17 A. Yes, because these yearbooks, books kept for every class, exist.

18 They are archived.

19 Q. And if I were to tell you that this Milan Lukic was in fact not

20 your student and attended a different curriculum, would that change your

21 testimony?

22 A. I'll tell you, I'm convinced that he was in that particular

23 course at school, and I taught all classes from year 1 to year 4 of that

24 school, and there were a total of 11 different courses given -- giving

25 different vocational training leading to different professions.

Page 2054

1 Q. How about metallurgy?

2 A. There was a course in metallurgy, and I taught that course too.

3 Those were locksmiths, metal grinders, lathe operators, metallurgical

4 technicians. All these were different vocations at school and I taught

5 them as well.

6 Q. Well --

7 JUDGE ROBINSON: How many students did you teach in all?

8 THE WITNESS: [Interpretation] That secondary school centre had

9 around 1.500 students, and it worked in two shifts. So there is a

10 likelihood that I taught around half of that total, around 700 to 800

11 students following different courses in different years.

12 JUDGE ROBINSON: Now, the class in which you say Milan was, how

13 many students would it have had?

14 THE WITNESS: [Interpretation] Well, the classes were up to 30

15 students. Up to 30 students were in one classroom.

16 JUDGE ROBINSON: Is there anything specific about Milan Lukic

17 that you remember as a student?

18 THE WITNESS: [Interpretation] In that period he didn't stand out.

19 He was young. He was around 17. At that time he didn't stand out

20 because he didn't know himself at the time what would happen in ten

21 years. If he had known, maybe his conduct would have been different even

22 then.

23 JUDGE ROBINSON: Yes, Mr. Alarid.

24 MR. ALARID:

25 Q. But in fact in your statement of 1997, 2001, you stated that:

Page 2064

1 MR. ALARID: 42 and 65 were separated, Your Honour.

2 THE INTERPRETER: Microphone, please.

3 MR. ALARID: We separated those, considering you were clearly

4 dealing with the issues of those two separate from the ones that are

5 actually due today, I believe.

6 JUDGE ROBINSON: Yes, so I just wanted to have it clarified that

7 the Trial Chamber did not give a decision in relation to any witness in

8 respect of whom you have not yet responded.

9 MR. ALARID: Thank you, Judge.

10 I just have a final matter with regard to this witness. I think

11 considering the fact that he was tendered only under the alibi exception

12 following the final 65 ter list and witness list, the witness was not

13 able to give any relevant testimony against the alibi testimony. He was

14 not able to give any specific dates for the relevant counts in June, and

15 specifically he was best able to comment both in his statement, as well

16 as today as to times before the relevant conduct is in issue. If all he

17 was brought in to was to do alibi, I would move that his testimony be

18 stricken. If the Court considers it otherwise, then we would like his

19 MUP statement introduced into evidence.

20 JUDGE ROBINSON: Mr. Groome, have you heard that submission?

21 Mr. Weber, the submission is that the witness whom we just heard

22 did not give evidence to rebut the alibi. The witness gave evidence on

23 other matters.

24 MR. WEBER: Your Honour, I'd refer the Chamber's attention to the

25 decision that was rendered on the 29th of August, 2008, when this Chamber

Page 2065

1 allowed this witness -- specifically paragraphs 28 and 29. This witness

2 was allowed by the Chamber to present evidence relating to three specific

3 Defence alibi witnesses MLD 5, MLD 6 and MLD 8. It fell within the scope

4 of rebuttal evidence because it rebuts factual assertions that were

5 offered by these Defence witnesses. Believe this witness's testimony

6 should be weighed in context of those witnesses that will appear before

7 the Chamber. The Chamber found that this evidence of this witness is

8 relevant to rebut Defence alibi evidence, not just specifically an alibi.

9 So it -- the Chamber deemed this witness appropriate and relevant to

10 rebut Defence alibi evidence specifically coming from three witnesses, as

11 indicated by the Prosecution.

12 JUDGE ROBINSON: No, I know the Chamber allowed it, but that's

13 not the point. The point is whether the evidence that we actually heard

14 is properly classifiable as alibi rebuttal evidence.

15 MR. WEBER: Your Honour, the evidence that the Prosecution

16 indicated in its motion which the Chamber allow was admitted today

17 pursuant to 92 ter. The Prosecution because of the five-minute time

18 limit that was allotted by the Chamber to not lead this evidence, we do

19 not have any objection to counsel's request to admit also the 1994

20 statement and this was the evidence that this witness was intended to

21 give before the Chamber and the evidence that the witness did provide

22 today in the form of 92 ter.

23 JUDGE ROBINSON: Ultimately -- Mr. Alarid, ultimately these are

24 all matters that the Trial Chamber as the trier of fact will have to

25 determine, to determine what weight to attach to the evidence.

Page 2066

1 MR. ALARID: Well, I mean on one hand, Your Honour, I would agree

2 had they listed this witness in their case in chief. I think from that

3 perspective it -- what can I say? But from the perspective of

4 specifically stating that this witness has information that rebuts an

5 alibi, and an alibi is "I was not here, I was somewhere else." This guy

6 did not say, "No, Milan was here instead of somewhere else." Given that

7 fact, during the 11 days he may have seen him at a cafe, that still

8 doesn't necessarily negate alibi. And I understand where they're going

9 is because one of the submissions that my predecessor put in his initial

10 alibi statement way back in January was that Milan says he wasn't always

11 in the Passat, and therefore I think this is still chasing that cherry

12 red Passat, but it doesn't necessarily go to the meat and bones of what

13 an alibi is, which is, "I wasn't there when they say I was," and if he

14 was another witness who said, "Oh, I saw him on June 7th," I would

15 understand if he was another witness who said that, but he didn't say

16 that. So that's why I make my submission.

17 [Trial Chamber confers]

18 JUDGE ROBINSON: Mr. Weber.

19 MR. WEBER: The three witnesses which were submitted by Defence

20 counsel who is before the now are MLD 5, MLD 6 and MLD 8. All three of

21 these witnesses indicate that others besides Milan Lukic drove the red

22 Passat and also call into question about whether or not he killed Behija

23 Zukic. These -- then during this case the very first witness, actually,

24 counsel made quite an issue and has continued to make an issue over the

25 ownership and possession of this red Passat. This witness was called for

Page 2067

1 a specific purpose relating to rebuttal evidence of facts that contradict

2 the facts which may or may not be offered by the three Defence witnesses

3 MLD 5, MLD 6, or MLD 8.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: We heard the submissions made by Mr. Alarid, and

6 we'll take them into consideration.

7 Mr. Groome.

8 MR. GROOME: Your Honour, I said to the Court that I would

9 investigate the matter of disclosure last Friday and I do have some

10 additional information for the Chamber.

11 With respect to Ewa Tabeau, 955 pages in total were provided

12 Defence counsel. Nearly half of that, 466 pages, are her reports from

13 completely unrelated cases. They were provided as a courtesy upon the

14 request of the Defence and not because they were disclosable. And these

15 are cases having to do with the events in Srebrenica in 1995, the Prlic

16 case, cases arising out of the Krajina. So they are cases that clearly

17 have no bearing on this case but again were provided at the request of

18 the Defence counsel.

19 Also disclosed were 200 pages of her report for the Vasiljevic

20 case. That was previously disclosed, Your Honour. All that was

21 disclosed Friday was an ERNed copy because that's the copy that would be

22 used in court with her if she was referring to her report. So that's 200

23 pages that had been previously disclosed.

24 Also disclosed were 175 pages of her report for the Milosevic

25 case, and this was the B/C/S translation of that report. The English

Page 2068

1 version of the Milosevic report was disclosed in March of 2007.

2 So in summary, Your Honour, out of the 955 pages referred to, 840

3 of those pages were either provided as a courtesy to Defence upon their

4 request or were previously disclosed documents.

5 With respect to Dr. John Clark, our IT people conducted a search

6 of records having John Clark's name and identified several thousands of

7 documents. Approximately 900 of these documents arise out of forensic

8 examinations that he was involved with in some capacity arising out of

9 Slap, and the Chamber has already heard of Slap as the communal grave

10 site where many of the victims of what happened in Visegrad were buried.

11 Nine hundred and four documents were disclosed. Out of these 904 pages,

12 approximately 100 pages are text and 800 pages are diagrams of bodies

13 showing the location where the body was recovered and/or diagrams of the

14 bodies showing where injuries were sustained. These documents represent

15 the records of 131 forensic examinations, not all personally performed by

16 Clark. Out of these 131, only 3 have direct relevance to this case, and

17 these have been identified to Defence counsel. These are approximately 9

18 pages of text.

19 As a final note, Your Honour, as the Court is well aware, these

20 cases do generate a lot of -- a large number of documents, and it's for

21 that reason that I had asked my staff to disclose what was properly

22 disclosable under Rule 66 and Rule 68 and then make Defence counsel aware

23 of any other documents that they may also be interested in and as a

24 courtesy to them provide them if they so wished, and that is why so many

25 documents were provided on Friday.

Page 2071

1 this 9.5 million populated database of voter registration, again

2 Ms. Tabeau is here at the beck and call of the Chamber to assist in any

3 way she can.

4 JUDGE ROBINSON: Yes. But we'll certainly proceed with the

5 examination-in-chief.

6 MS. MARCUS: Thank you, Your Honours.

7 Examination by Ms. Marcus:

8 Q. Good afternoon, Dr. Tabeau.

9 A. Good afternoon.

10 Q. You have been called to testify as an expert in these

11 proceedings. Could you please inform the Court of what your area of

12 expertise is.

13 A. I am a demographer. My recent expertise is in the studies of

14 conflict, victims of conflict, the so-called demography of conflict, but

15 from education I am a statistician. I studied statistics and

16 econometrics, obtained my master degree in this area. Later I obtained

17 my Ph.D. in mathematical demography.

18 MS. MARCUS: As the Trial Chamber decided in -- on the 23rd of

19 July, 2008, that Dr. Tabeau does qualify as an expert I will -- am not

20 intending to dwell on her professional qualifications. May I just simply

21 request the court officer to pull up ERN that's document ID 0641-6000.

22 THE WITNESS: Excuse me. May I have some assistant here? I

23 actually pushed some buttons and incorrectly, I believe. I lost my

24 transcript. And if I have something from the e-court it's coming here.

25 MS. MARCUS: Your Honours, I've just been informed by the court

Page 2072

1 usher that the document can't be found. May I just have a moment,

2 please, and I'll pull up the hard copy.

3 JUDGE ROBINSON: Yes.

4 MS. MARCUS: Your Honours, I have a hard copy in English of

5 Dr. Tabeau's curriculum vitae.

6 JUDGE ROBINSON: Mr. Cepic.

7 MR. CEPIC: [Interpretation] Your Honours, if I may, this is the

8 document that was disclosed to us this morning, isn't it? Thank you.

9 MS. MARCUS: Your Honours, this is an updated version --

10 JUDGE ROBINSON: Was that disclosed this morning, Ms. Marcus,

11 only this morning?

12 MS. MARCUS: Your Honours, that is an updated version of

13 Dr. Tabeau's curriculum vitae. It's -- as Dr. Tabeau was already

14 qualified as an expert the Prosecution did not see this as an issue.

15 We're merely tendering it for the record. If the Chamber prefers us not

16 to tender it, that will be fine with us. Whatever you decide, Your

17 Honours.

18 JUDGE ROBINSON: Yes, I see. She's already qualified, so there

19 is not an issue. But it doesn't mean, of course, that the Defence can't

20 ask questions about it.

21 MS. MARCUS: Understood, Your Honours.

22 JUDGE ROBINSON: Yes.

23 MS. MARCUS:

24 Q. Dr. Tabeau, could you confirm that the document in front of you

25 is your updated curriculum vitae?

Page 2073

1 A. Yes, it is a brief version of it. Only the major points of my

2 career and major publications are mentioned, latest ones.

3 Q. Should the Trial Chamber require further information with regard

4 to your qualifications, can that information be found in this document?

5 A. Yes, it can.

6 MS. MARCUS: Your Honours, I tender into evidence the curriculum

7 vitae of Dr. Eve Tabeau.

8 JUDGE ROBINSON: Yes.

9 THE REGISTRAR: Your Honours, it is admitted as Exhibit number

10 P117.

11 MS. MARCUS: Your Honours, as explained by Mr. Groome earlier

12 today, Dr. Tabeau has kindly prepared a demonstrative exhibit containing

13 brief excerpts from her expert report to facilitate her summarising her

14 findings for us. I'd like to ask the court officer to assist by

15 broadcasting from Mr. Van Hooydonk's computer the PowerPoint.

16 JUDGE ROBINSON: Mr. Cepic.

17 MR. CEPIC: [Interpretation] Your Honours, if these are the lists

18 that we received yesterday by e-mail, I see no relevance and I don't

19 think the documents are founded or reliable. I don't see the source

20 either. Thank you.

21 MS. MARCUS: Your Honours, I believe learned counsel is referring

22 to two charts which -- which is not what I was pulling up now but which I

23 would be seeking to ask Dr. Tabeau to comment on later. These charts are

24 an abbreviated way of asking Dr. Tabeau to use her skills of her

25 demographics unit to tell us what can be found about missing persons

Page 2074

1 whose names are related to the indictment and whose names have come up in

2 the evidence. I could either ask her names one by one, or I could

3 prepare a chart or ask Dr. Tabeau more accurately to prepare a chart in

4 which her unit has performed what it does, which is an analysis based on

5 their databases of records in relation to those individual victims.

6 Those are the tools that have been prepared by Dr. Tabeau also as

7 demonstrative exhibits for the efficient and -- efficient presentation of

8 that information.

9 JUDGE ROBINSON: Mr. Cepic.

10 MR. CEPIC: [Interpretation] Your Honours, by your leave I don't

11 think these questions are essential, at least not from where we stand.

12 However, what I wish to ask my learned friend is have we received what is

13 about to be shown and what the witness will comment on. Thank you.

14 MS. MARCUS: What is about to be shown is --

15 JUDGE ROBINSON: Mr. Alarid.

16 MS. MARCUS: Sorry.

17 MR. ALARID: From our perspective, Your Honour, it's not just

18 that we have not received the PowerPoint which includes excerpts from the

19 updated report, but the Prosecution filed the motion to file an updated

20 expert report just the 8th of September, which the due date of our

21 response is today, which we've got to draft and preparation would filing

22 in a timely manner, and of course we do not have the PowerPoint

23 presentation of which to object to that.

24 JUDGE ROBINSON: So your position then is what, Mr. Alarid?

25 You're not in a position now to give your response?

Page 2075

1 MR. ALARID: Well, no. It just renders our -- our -- the whole

2 issue moot by simply presenting the updated portion of the report in a

3 PowerPoint presentation of which now is before the Court and of course

4 why should we even respond at that point?

5 JUDGE ROBINSON: No, but you have a right to respond, and --

6 MR. ALARID: But aren't we essentially admitting it before the

7 deadline's --

8 JUDGE ROBINSON: I have not yet admitted it.

9 MR. ALARID: No, well, I guess -- I guess --

10 JUDGE ROBINSON: I'm asking what your response is now. You must

11 tell us what your position is.

12 MR. ALARID: We would object, Your Honour.

13 JUDGE ROBINSON: Yes.

14 MS. MARCUS: Your Honours, what -- what I was intending to do is

15 in fact it's true, it's correct what counsel is saying, that these

16 excerpts are from the -- the updated expert report which is in a pending

17 application before the Chamber. Perhaps if I might propose a way to -- a

18 way to resolve it, we could present the PowerPoint. There's nothing in

19 the PowerPoint which is not contained in the reports. It's just that the

20 report contains a lost text and the PowerPoint excerpts certain tables

21 which makes it easier to present to the Chamber and more -- more speedy.

22 In each -- in each reference you will see the connection to what page it

23 is in the expert report. And perhaps what the -- it's up to the Chamber,

24 of course, but what could be done is to mark the expert report for

25 identification and then later, depending on the decision, it could be

Page 2076

1 admitted. I would have been seeking to admit the updated expert report

2 following the presentation of the PowerPoint.

3 JUDGE ROBINSON: Mr. Cepic.

4 MR. CEPIC: [Interpretation] Thank you. [Interpretation]

5 [Previous translation continues] ... this exhibit is -- is from 21st of

6 September, 2008, according to the information which we received from OTP.

7 That means yesterday, exhibit from yesterday. Thank you.

8 MS. MARCUS: Your Honours, it's correct. Both the charts that I

9 would be referring to later and the PowerPoint were prepared over the

10 weekend. As Your Honours know, this was a calling on Dr. Tabeau as a

11 substitute for the -- what would have been VG-42.

12 JUDGE ROBINSON: Very well. We'll -- we'll not admit the updated

13 report now. We'll mark it for identification, and you can present the

14 PowerPoint.

15 MS. MARCUS: Thank you, Your Honours.

16 THE REGISTRAR: The report will become Exhibit P118 marked for

17 identification.

18 Q. Dr. Tabeau, can you see the slide on the screen in front you?

19 Okay. Your Honours, I have hard copies of the PowerPoint presentation.

20 As this was not something I was intending to tender, it -- I will not be

21 seeking to present the entirety of it. I will tell everyone what page

22 we're on, and I will not be tendering it. It's merely excerpts, as I

23 said before, of the expert report. Perhaps this would be a way to

24 resolve the technical problems we appear to be having.

25 THE INTERPRETER: Could the interpreters possibly be provided

Page 2077

1 with copies too? Thank you.

2 MS. MARCUS: We're starting on slide 5, page 5.

3 Q. Dr. Tabeau, could you please tell us in general terms what your

4 expert report is about?

5 A. There are two main subjects discussed in this report. The first

6 subject is the changes in the ethnic composition in the period between

7 the outbreak of the conflict and after the conflict ended and related to

8 these numbers of IDPs and refugees from the Visegrad region in Bosnia,

9 and the second subject is an analysis of missing persons from the

10 Visegrad region and Visegrad municipality itself.

11 Q. Pages 6. Does this list represent the other cases before this

12 Tribunal in which this methodology has been used?

13 A. We are now talking about the first subject I have just mentioned,

14 the analysis of ethnic composition and IDPs and refugees. Yes indeed,

15 this list represents the ICTY cases where this method and this kind of

16 study was presented. Our major study was done for the case of Slobodan

17 Milosevic where the area that we presented was far larger than what we

18 present in this report. It was 47 municipalities in Bosnia then. The

19 results presented in this report originated from this study completed for

20 Slobodan Milosevic.

21 Q. Page 7. Turning to the first issue --

22 MR. CEPIC: I'm sorry, I'm sorry. I think that the interpreters

23 have a very difficult job because the both witness and my friend

24 Ms. Marcus speak the same language and it is I believe quite difficult to

25 translate everything at times. Thank you very much.

Page 2078

1 JUDGE ROBINSON: Yes, please observe a pause between question and

2 answer, both witness and counsel.

3 MS. MARCUS: Thank you.

4 Q. Turning to the first issue. Could you kindly explain what is the

5 objective of this portion of your analysis?

6 A. The main objective we had in mind was to present -- to obtain,

7 produce reliable statistics on genders in the ethnic composition and on

8 the numbers of internally displaced persons and refugees who originated

9 from the Visegrad region. Sources that would -- could be used for this

10 kind of analysis are limited, practically non-existence when particular

11 conflict periods need to be analysed. So this is a challenge, and we

12 identified the necessary sources in proposed methodology, suitable

13 methodology to work on this objective.

14 Well, the region that we analysed in this particular report, I'm

15 speaking we because the initial report was made with a co-author, with

16 Jakub Bijak. Now I updated myself the Visegrad study. Well, when the

17 area is considered then we -- I have to say the analysis is not only made

18 for the Visegrad municipality but also a number of neighbouring

19 municipalities in the Visegrad region were included in the study, and

20 among the most important were of course Srebrenica, Bratunac, Vlasenica,

21 and other municipalities. I would like at some point to show this region

22 on a map.

23 Q. Yes. We can turn to page 8. Does this map represent the

24 geographic scope of your study?

25 A. Yes. In the upper right corner there is a square in which the

Page 2079

1 Visegrad region is shown. It is located at the eastern border of Bosnia

2 and Herzegovina with Serbia. So the Visegrad municipality was the

3 central area in our study. And surrounding municipalities included

4 Srebrenica, Bratunac, Vlasenica, Han Pijesak, Sokolac, Rogatica, Cajnice

5 and Rudo. We excluded Gorazde as this municipality was split by the

6 Dayton line and in all split municipalities there were very, very intense

7 population movements across the border of the political entities, so

8 these changes wouldn't be directly comparable with all the changes in all

9 remaining municipalities.

10 Q. We've placed the PowerPoint presentation on the ELMO so that will

11 also enable Dr. Tabeau to point with her pen as she -- as she speaks.

12 Turning to page 9. Turning back to your sources, Dr. Tabeau,

13 which you referred to before, could you please explain briefly what

14 sources were used for this portion of your study.

15 A. We used two major sources. One was the 1991 population census

16 conducted in March '91 in the entire country in Bosnia-Herzegovina and

17 also for the rest of the former Yugoslavia. And the second source that

18 we used for the post-conflict period were the voters registrations from

19 1997 and 1998. But as for the starting point of the analysis, the '91

20 census was the only and major source, and one of a better if not the best

21 source one can imagine to be used in such a study as this one.

22 Q. Can you -- can you explain, elaborate on why the census is, as

23 you say, one of the best sources which can be used in this study?

24 A. The population census is the complete population survey in every

25 country. So it is conducted only every approximately ten years as it is

Page 2080

1 a huge effort for statistical authority to conduct the census. It

2 covers, as I said, the entire population in a country, and many aspects

3 of the population. In Bosnia the '91 census covered issues related to

4 the population itself, and as a well other issues related to agriculture.

5 We didn't use the agricultural part of the census. We used the data

6 describing the population of Bosnia and Herzegovina.

7 Q. What was the methodology for dealing with any deficiencies which

8 may exist in a census?

9 A. Well, perhaps first of all I will mention the deficiencies. The

10 major deficiency of the census data is that data was moved from paper

11 copies of the questionnaires used during the census to the computer files

12 by OCRing, optical character recognition techniques were used in order to

13 computerise this material, and during this process errors were made

14 related to -- to the scanning. So these errors can be seen on the first

15 place in the names of the individuals listed in the census. These are

16 spelling mistakes that we had to deal with, and some other mistakes.

17 Recorded categories were far less affected by the misread characters than

18 the names.

19 In order to eliminate the mistakes from the names, names were

20 important for us from the point of view of the methodology used in this

21 study, we applied several techniques. There were at least three major

22 projects in which we corrected the mistakes -- spelling mistakes in the

23 names. First project was basically running a computer programme to

24 detect impossible combinations of letters in the Bosnian language. There

25 were native speakers who defined -- linguists who defined these

Page 2081

1 impossible combination. So these combinations of letters were identified

2 and replaced by the most likely right combinations.

3 The second method was making lists of names as reported and

4 asking native B/C/S speakers to correct the names, to make from their own

5 names misspelled names the right names.

6 And the third method was we applied a household approach in which

7 in every household in the census we tried to identify the right spelling

8 of name -- of the name within this household. Once such a name was

9 identified all other members with misspelled names within the same

10 household received the correct name.

11 JUDGE ROBINSON: Ms. Marcus, what is the time estimate for this

12 witness?

13 MS. MARCUS: Your Honours, as Mr. Groome submitted this morning,

14 we were trying to get through this within a reasonable period of time.

15 His estimate was 50 minutes. I will do my very utmost to -- to get

16 through it in that time or very close to that time.

17 JUDGE ROBINSON: Very well.

18 MS. MARCUS:

19 Q. Dr. Tabeau, we're moving to page 10 of the PowerPoint. Please

20 briefly could you tell us who is included in the voter registers.

21 A. In the voters registers are included eligible voters who

22 registered to vote in the '97 and '98 elections, local elections, in

23 Bosnia-Herzegovina. Those who didn't register are not there and those

24 not eligible to vote, too young, are not included in the registers as

25 well.

Page 2082

1 Q. Now moving to page 11. Could you briefly describe the methods

2 you used in your study?

3 A. Well, basically we -- our purpose was to produce reliable

4 statistics, and we used original sources, that is the census and the

5 voters registers in order to produce those statistics from individual

6 level data. Ethnicity was, however, an important characteristic of the

7 population, and in order to include ethnicity in our study it was

8 necessary to match the census data with the voters registers. So the

9 basic methodology, the most important part of the methodology is the

10 matching of the two sources. We also applied the matching later to the

11 missing persons list that was matched with the census as well for the

12 same purpose as ethnicity was not reported in the voters and not in the

13 missing persons list.

14 Q. Page 12. Could you tell us what definition of ethnicity was

15 used?

16 A. The ethnicity definition used was the one from the population

17 census --

18 JUDGE ROBINSON: Mr. Cepic.

19 MR. CEPIC: I'm sorry, I just thought that I heard a leading

20 question, but it's okay. Thank you.

21 THE WITNESS: May I --

22 JUDGE ROBINSON: Yes.

23 THE WITNESS: -- continue?

24 JUDGE ROBINSON: Please continue, yes.

25 THE WITNESS: Ethnicity was coming from the census records. This

Page 2083

1 means in the census questionnaire there was a question related to

2 ethnicity. Every respondent had the right to identify himself or herself

3 by giving an answer the person felt was right. It was an open-ended

4 question. All together there were approximately 100 categories reported

5 in the census data. We regrouped these 100 categories with -- into four

6 major groups. We took all those who reported themselves as Serbs to be

7 the Serbs, all those reported as Muslims or Bosniaks as the Muslims,

8 Croats as Croats, and all other ethnicities, including Yugoslavs, in the

9 final last category that we called others.

10 It's important to say that it wasn't so difficult to work with

11 ethnicity from the census because of the matching of the census data with

12 voters and with ICRC records of the missing persons. So once these

13 records -- I am speaking records, individual level records describing

14 cases were matched, it was possible to transfer information from the

15 census records onto either voters records or missing persons records. So

16 that was the major thing in our methodology, using, one, the same

17 definition of ethnicity for pre and post-war period, and using the

18 definition that was coming from this open-ended question from the

19 population census.

20 MS. MARCUS:

21 Q. Page 13. Could you please explain how you identified who was an

22 internally displaced person, an IDP, and who was a refugee, briefly if

23 possible?

24 A. Identifying IDPs and refugees was based on a statistical approach

25 and not on a legal approach, so our statistical -- in our statistical

Page 2084

1 approach an IDP, internally displaced person, was a person who resided in

2 the post-conflict period at a different municipality than was reported

3 for the person in the population census. So in order to decide who is

4 displaced, who is not, we simply compared the place of residence of

5 individuals as reported before the conflict in '91 population census on

6 one hand and voters registers for the post-conflict period as a proxy for

7 the residents, post-war residents, the municipality of registration was

8 taken.

9 And the same with refugees with the difference that refugees were

10 not the persons who moved within the borders of Bosnia and Herzegovina

11 but left the country and moved abroad.

12 Q. Page 14. In your expert report you refer to minimum numbers.

13 Could you explain briefly, please, what is meant by the term "minimum

14 numbers"?

15 A. So minimum numbers are the numbers that were produced based on

16 the matched records. So whoever was reported in the voters and was back

17 traced in '91 records in the census is a matched record and using these

18 matched records it was possible to produce the so-called minimum numbers,

19 the minimum or at least numbers. All these numbers can be documented

20 individually, that means by attaching lists of persons with names and

21 other details, but we know for sure these lists are an underestimation,

22 undercount. I shouldn't say estimation, because it is not an estimate,

23 it is a count, a count, a statistic produced from data, individual data.

24 So in order to work with these numbers of course these are good

25 statistics based on solid data from large sample, but we know they are

Page 2085

1 not complete, they are incomplete, and we can explain why by using other

2 sources, for instance, UNHCR for instance reported many more internally

3 displaced than what we show in this report.

4 Q. I'd like to please skip page 15 and go to page 16. Dr. Tabeau,

5 could you please explain what the chart on the top of this page

6 represents.

7 A. This is a table coming from the report, table 3A from page 30

8 English version. This table is showing ethnic composition in the

9 Visegrad municipality. Both absolute numbers and percentages are shown.

10 The '91 census column contains statistics, counts coming from the census

11 data. This is the population of those eligible to vote in the 1997 and

12 1998 elections so this is why this number, the overall total is smaller

13 than the general total for Visegrad as published in official sources.

14 The next column is a sample data coming from the voters

15 registration. So this is the overall total 9.241 is not the size,

16 overall size of the 1997 population. It is just a large sample from this

17 population. We show these numbers by ethnicity, major findings in terms

18 of percentages which are good and reliable measures. Disregarding

19 whether they were obtained from the census data or voters registration

20 that is sample data so the percentages can be safely taken as reliable

21 measures of ethnic composition, and we see for instance, that the per

22 cent of Serbs in 1991 was about 32.6 per cent and increased according to

23 the voters registration in 1997 to approximately 95.9 per cent. For

24 Muslims it was a slightly different situation. From a 62.5 per cent it

25 dropped to almost 0, less than 1 per cent. And so on for every ethnic

Page 2086

1 group.

2 Q. Can you look at the bottom of the page, please, and tell us what

3 conclusions can be drawn from this chart at the bottom of the page?

4 A. This bar chart illustrates the percentages from the table 3A

5 shown on the same page. Each ethnic group is shown separately. For the

6 Serbs we see a huge increase of the fraction of Serbs in the

7 municipality. For the Muslims a dramatic drop from about 63 per cent to

8 practically 0. So the Muslim population shown in this chart is almost

9 entirely gone from Visegrad. This is what this bar chart is showing.

10 Q. Page 17. Dr. Tabeau, could you briefly tell us what this chart

11 represents and what conclusions we can draw from it?

12 A. Well, this table again comes from the report. This is table 3B.

13 The table 3B from page 13 in the report consists of two parts. I'm only

14 showing the part with percentages. I'm not showing absolute numbers, but

15 the 3B with absolute numbers is in the report.

16 The table shown here should be read by rows. For each ethnicity

17 a distribution is shown of the post-conflict place of residence of this

18 ethnic group. The first group, the Serbs, are shown in the post-conflict

19 period as mainly residing still in the municipality of Visegrad. So I'm

20 speaking of 96.9 per cent in the first row. Given under the name this

21 municipality. So this municipality means that these are those from the

22 initial population, 1991 population reported in the census who didn't

23 move anywhere but just stayed in Visegrad.

24 So according to this table, 96.9 per cent stayed, of Serbs stayed

25 in Visegrad. So automatically the percentages of those who have been

Page 2087

1 reported in other municipalities in Bosnia or other countries are

2 extremely small. Other municipalities is less than 1 per cent, and the

3 out of country 2.2 per cent.

4 For Muslims the picture is quite opposite. In these

5 municipalities it is negligible value of 0.01 per cent reported in

6 Visegrad in the post-conflict period, and the rest, that is 99.9 per cent

7 of the Muslim population originating from Visegrad is reported either in

8 other municipalities in Bosnia or generally out of country.

9 And similarly the percentage of other groups is shown according

10 to the distribution by place of residence being the Visegrad or outside

11 Visegrad, but to generalise, to summarise this picture I can say that

12 generally 65 per cent of the pre-war population of Visegrad had become

13 displaced or left the country, 65 per cent, all ethnicities jointly.

14 Of all ethnicities, Muslims practically entirely left the

15 municipality. Of other non-Serbs, some Croats and others stayed, some

16 left. Generally about 63 per cent of non-Serbs left Visegrad as well.

17 That would be a majority. And of course the first issue -- the first

18 result I discussed, the Serbs, 97 per cent of Serbs stayed in Visegrad.

19 This had, of course, impact on the post-war ethnic composition in

20 the municipality. Those Serbs who stayed plus some newcomers, obviously

21 Serbs, resulted in the fact that in 1997 the municipality was dominated

22 by Serbs, had an absolute majority, large majority of the Serb

23 population.

24 JUDGE ROBINSON: Okay. Thanks very much, Dr. Tabeau. We have to

25 take the break now.

Page 2088

1 --- Recess taken at 5.35 p.m.

2 --- On resuming at 6.10 p.m.

3 JUDGE ROBINSON: Yes, Ms. Marcus.

4 MS. MARCUS: Thank you, Your Honours. Before I commence, there's

5 just one very brief procedural matter in relation to the previous

6 witness. Apparently my colleague Mr. Weber tendered 65 ter number 185

7 and it was admitted as Exhibit P116, but this exhibit was already on the

8 65 ter list with an earlier number. So the earlier number is 65 ter 143.

9 We just wonder whether it might be possible to use the original 65 ter

10 number rather than its duplicate, 185.

11 JUDGE ROBINSON: Yes. That might be less confusing. The court

12 deputy says yes.

13 THE WITNESS: Excuse me. May have transcript back.

14 JUDGE ROBINSON: Mr. Alarid.

15 MR. ALARID: On that same note, Your Honour, I would like to

16 introduce the 1994 MUP statement of the same witness which was uploaded

17 as 2D02-0001.

18 JUDGE ROBINSON: Yes, we admit that.

19 THE REGISTRAR: Your Honours, it will be admitted as 1D52 under

20 seal.

21 MS. MARCUS:

22 Q. Dr. Tabeau, in the interest of efficiency and also because all of

23 your evidence is in your expert report which has been marked for

24 identification, we'd just like to turn to one last page in the PowerPoint

25 presentation. That would be page 24.

Page 2089

1 Could I ask you to please explain what we see on the table on the

2 upper right-hand side, which is figure 3 and 4 from page 19 of your

3 expert report.

4 A. These two charts come from the second part of the report in which

5 the numbers of missing persons from the Visegrad municipality and

6 Visegrad region were studied. The upper chart is showing the

7 distribution of the going missing process in the Visegrad municipality by

8 month of disappearance. I'm speaking of this chart. This chart.

9 Q. I think Dr. Tabeau would like to use the ELMO, and she's pointing

10 with her pen, so ...

11 A. As I said, missing persons reported missing from the Visegrad

12 municipalities are shown here by the month of disappearance for the

13 entire conflict period starting with April 1992 until the last one shown

14 is August 1995. I checked the spreadsheet this morning, and I saw no

15 numbers for the period after August 1995.

16 So obviously the highest numbers of missing persons were reported

17 in three months, May, June, and July 1992. The highest absolute maximum

18 is from June 1992. That would be the first chart, the upper chart.

19 And there is the lower chart. So having shown that the largest

20 number of missing persons was in the spring and summer of 1992, the lower

21 chart is showing the distribution of going missing by date of

22 disappearance from April 1992 until end of June 1992. The 15th of May is

23 somewhere here. So starting from this day the numbers are clearly high,

24 higher and highest. So second half of May is the first period of

25 obviously increased activity of -- of the process of going missing, and

Page 2090

1 then the June until the 20th of June and the last days of June.

2 So sometime around May 25th, June 14th, and June 20th, these

3 three days, are local maxima where the numbers were the highest in this

4 period.

5 MS. MARCUS: Thank you. Could I ask the court officer to please

6 call up document ID number 0641-6041.

7 JUDGE ROBINSON: Mr. Cepic.

8 MR. CEPIC: We haven't got the document on our list under that

9 number, so that is my -- do we know which document is?

10 MS. MARCUS: Yes. This is -- this is a document, it was ERNed

11 this morning. It's the first of two charts which was prepared by

12 Dr. Tabeau. The first chart contains the names of victims named in the

13 indictment. The second chart contains other names.

14 JUDGE ROBINSON: Yes, Mr. Cepic.

15 MR. CEPIC: [Interpretation] Your Honours, with your leave I have

16 already emphasised this objection but let me repeat it. I do not see the

17 base for authenticity and reliability of information presented in this

18 way. We already have the indictment with its annexes. We have the

19 witness's expert report of the 17th August 2001 with certain annexes, and

20 this is something entirely new, a third paper that doesn't fall in either

21 of the previous two. And again, let me repeat, I do not see the

22 foundation for the authenticity of this document.

23 MS. MARCUS: Your Honours, I was just about to lay the foundation

24 for authenticity. This is a list of names from the indictment. It was

25 given to Dr. Tabeau's unit and she and her staff conducted research which

Page 2091

1 resulted in the results of this chart.

2 JUDGE ROBINSON: No, no. You must ask her.

3 MS. MARCUS: Yes.

4 JUDGE ROBINSON: You have to get that evidence from her.

5 MS. MARCUS: Yes, sir. May I pose the question to Dr. Tabeau?

6 JUDGE ROBINSON: Yes.

7 MS. MARCUS:

8 Q. Dr. Tabeau, do you recognise the chart that you see on the screen

9 in front of you?

10 A. Yes, I do.

11 Q. Can you tell us what this chart is?

12 A. This is the list of victims from the schedules in the indictment

13 of Lukic and Lukic case. This list is broader than the information

14 included in the schedules. There are several blocks of variables

15 included which I can explain, but what we see on the screen is a number

16 of data items or variables that are labelled L and L, and these items

17 come partly from the indictment, the names and age -- or approximate age

18 of the victims. In addition to this there is relatives' information

19 included. There are some additional variables in this spreadsheet

20 starting with the census data. A number of variables are called census,

21 and the next component --

22 Q. I'm sorry to interrupt you.

23 A. Yes. The following block is variables called voters and DDPR.

24 These are sources reporting on the surviving population --

25 Q. Dr. Tabeau.

Page 2092

1 A. -- post-conflict and so on. Yes.

2 Q. I apologise for the interruption. Can you confirm that this

3 chart was prepared by you and your staff?

4 A. Yes, I can.

5 Q. Can you confirm that you have reviewed the results and you are

6 satisfied with the accuracy of this product?

7 A. Yes, I did review the results, and I summarised the overlap of

8 the various sources we investigated with the victim lists.

9 Q. I apologise. Can you confirm that if the Trial Chamber or the

10 Defence has any questions about any individual entries on this chart you

11 would be able to provide those clarifications?

12 A. Of course, to the extent that the information from the

13 spreadsheet will be considered.

14 MS. MARCUS: I'd like to now tender this chart into evidence.

15 JUDGE ROBINSON: Mr. Cepic.

16 MR. CEPIC: [Interpretation] Your Honours, we oppose this request

17 until such time as we have analysed the document and checked it. As my

18 learned friend said we got this document this morning and my assistant or

19 indeed I have not had a chance to check and cross-reference this document

20 and see if everything tallies, also in terms of the other sources that

21 the Prosecutor indicates were a foundation of this chart.

22 MS. MARCUS: Your Honours, perhaps it could be marked for

23 identification and then we could tender it into evidence following any

24 questions that the Defence may have.

25 JUDGE ROBINSON: Yes. Marked for identification.

Page 2093

1 THE REGISTRAR: Your Honours, it will become Exhibit number P119

2 marked for identification.

3 MS. MARCUS: Could I now ask the court officer to call up

4 document ID 0641-6040.

5 And for your information, Your Honours, this will be my very last

6 topic.

7 Q. Dr. Tabeau, do you recognise the chart that you see on the screen

8 in front of you?

9 A. Yes, do.

10 JUDGE ROBINSON: Mr. Cepic.

11 MR. CEPIC: [Interpretation] Just briefly, Your Honour. Standing

12 objection as in relation to the previous document.

13 JUDGE ROBINSON: Yes. Okay.

14 MS. MARCUS:

15 Q. Can you tell the Chamber what this chart represents, please.

16 A. This list is the list of victims that -- and the list was

17 provided to us by the Lukic and Lukic trial team. We were requested to

18 cross-reference this list with one major source that we used for our

19 report and could be and should be cross-referenced in this case. This is

20 ICRC list of missing persons.

21 Q. Can you confirm that this is the chart prepared by you and your

22 staff?

23 A. Yes, I confirm.

24 Q. Can you confirm that you have viewed the results and that you are

25 satisfied with the accuracy of this product?

Page 2094

1 A. Yes, I can confirm this.

2 Q. Can you confirm that if the Trial Chamber or the Defence may have

3 any questions about any individual entries on this chart you would be

4 able to provide clarifications?

5 A. Yes.

6 MS. MARCUS: I'd like to tender this also as marked for

7 identification.

8 JUDGE ROBINSON: Yes.

9 THE REGISTRAR: It is admitted as Exhibit P120 marked for

10 identification.

11 MS. MARCUS:

12 Q. Dr. Tabeau, in relation to both these charts that we've just had

13 marked for identification, can you talk briefly about the dates and any

14 accuracy or inaccuracy, reliability of the dates of death or the dates of

15 disappearance?

16 A. Well, dates is a data item that is difficult for the respondent

17 to remember exactly. So it often happens that dates are reported not

18 fully correctly or not fully completely. So with the ICRC list for

19 instance there is a about say 30 per cent in the 2005 edition of date of

20 birth that is not available as a complete item with all components, day

21 and month and year reported, but when it comes to the year of birth then

22 there is only a few in the entire list of 22.000 records that are

23 unavailable, like 10, 12 records don't include year of birth.

24 But generally it is not only the ICRC list. In many sources,

25 especially sources that were compiled without using any ID cards or

Page 2095

1 passports or any documents reporting the date of birth, black on white,

2 dates are not reported correctly. And especially if data is collected in

3 chaotic circumstances or an in a situation just after certain dramatic

4 events, then this has of course impact on the reporting quality and then

5 certain deficiencies can be also seen in the dates.

6 I am speaking of date of birth, but the same actually applies to

7 the date of disappearance or date of death. Many sources with which we

8 have to work were compiled by not non-professionals, not by

9 statisticians, just by NGOs or volunteers who wanted to share the

10 information they had with somebody. These dates are reported simply with

11 deficiencies, either incomplete or with certain errors. So when

12 cross-referencing sources it is often the case that we see small

13 differences in the date of birth or the date of disappearance or death.

14 Q. Thank you, Dr. Tabeau. I have no further questions.

15 JUDGE ROBINSON: Thank you, Ms. Marcus.

16 Well, we've heard the submissions that were made by --

17 THE INTERPRETER: Microphone for the President, please.

18 JUDGE ROBINSON: We've heard the submissions that were made by

19 Mr. Alarid and Mr. Cepic, in particular those by Mr. Alarid. Mr. Alarid

20 complained about lateness in receiving the documentation and not having

21 adequate time to prepare for cross-examination. The Chamber believes

22 there is merit in the submission, and in light of that, we will postpone

23 cross-examination until Wednesday of this week.

24 Now, Mr. Groome, how does that fit into your plans?

25 MR. GROOME: Your Honour, I think our plans can be adjusted since

Page 2096

1 we have not been able to talk to Ms. Tabeau or Dr. Tabeau, could I ask

2 the Court to inquire if -- I know that she had some annual leave planned

3 in the near future, if we could ask, inquire if she's available on

4 Wednesday for cross-examination.

5 JUDGE ROBINSON: Ms. Tabeau, would you be available on Wednesday?

6 THE WITNESS: Yes, yes. I am unavailable on Friday.

7 JUDGE ROBINSON: Your are available on --

8 THE WITNESS: I'm unavailable from Friday --

9 JUDGE ROBINSON: I see.

10 THE WITNESS: -- until Monday, but Wednesday, Thursday I'm in, I

11 am available.

12 JUDGE ROBINSON: Yes. I believe we would complete the

13 cross-examination on Wednesday certainly.

14 MR. GROOME: I will make the necessary adjustments to the

15 schedule.

16 JUDGE ROBINSON: In that case, Dr. Tabeau, we would discharge you

17 for the time being.

18 THE WITNESS: Yes.

19 [The witness stands down]

20 JUDGE ROBINSON: You have another witness, Mr. Groome?

21 MR. GROOME: Yes, Your Honour, Dr. John Clark is in the

22 waiting-room.

23 Your Honour, while we're waiting the witness if I might address

24 the Chamber on a brief matter.

25 JUDGE ROBINSON: Yes.

Page 2098

1 advantage of these couple of minutes and I would like to ask my friends

2 from the OTP to disclose and hand over to us documents in a timelier

3 manner from now on in order to make our work in the courtroom more

4 effective. Thank you.

5 JUDGE ROBINSON: Well, you have been rebuked.

6 MR. GROOME: Yes, Your Honour.

7 [The witness entered court]

8 WITNESS: JOHN CLARK

9 JUDGE ROBINSON: Let the witness make the declaration.

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

11 whole truth, and nothing but the truth.

12 JUDGE ROBINSON: You may sit, and you may begin.

13 MR. GROOME: Ms. Mazzocco will lead the examination in this case.

14 JUDGE ROBINSON: You may begin, Ms. Mazzocco.

15 MS. MAZZOCCO: Thank you, Your Honour.

16 Examination by Ms. Mazzocco:

17 Q. Can I first ask you to say your name, please?

18 A. John Clark.

19 Q. Dr. Clark, can you describe to the Court your education, your

20 profession, in particular the assignment you received in an international

21 context?

22 A. My profession, I'm a forensic pathologist. That means I'm a

23 medical doctor, and I specialise in finding out why people have died by

24 carrying out post-mortem examinations, particularly with a forensic

25 expertise it is interpreting injuries on bodies and dealing with people

Page 2099

1 who have died in perhaps suspicious circumstances. I've been a forensic

2 pathologist for about 25 years working both in -- mainly in -- well, in

3 the United Kingdom, both in Scotland where I'm based at the moment and in

4 England as well.

5 Q. And you have worked in international context, isn't it?

6 A. My main contribution to that has been this work with which I'm

7 here. For three years, 1999, 2000, and 2001 I was the chief pathologist

8 in Bosnia and Croatia for the ICTY carrying out the -- in charge of the

9 mortuary there and carrying out the post-mortem examinations.

10 Q. Thanks.

11 MS. MAZZOCCO: May I ask the court officer to display on the

12 screen the 65 ter number 2.1.

13 JUDGE ROBINSON: Where are you from, doctor? Where are you from?

14 THE WITNESS: Sorry.

15 JUDGE ROBINSON: Where are you from?

16 THE WITNESS: I'm from Glasgow. University of Glasgow.

17 JUDGE ROBINSON: Glasgow. You're Scottish then.

18 THE WITNESS: I'm Scottish, yes.

19 JUDGE ROBINSON: Thanks.

20 MS. MAZZOCCO:

21 Q. Dr. Clark, is this your updated CV, the one that you see on the

22 screen?

23 A. Yes, it is, yes.

24 MS. MAZZOCCO: Your Honours, I'd like to tender the CV into

25 evidence to the purpose to determining the witness former and present

Page 2100

1 position and the professional experience.

2 JUDGE ROBINSON: Yes. We admit it, yes.

3 THE REGISTRAR: It is admitted as P121, Exhibit P121.

4 MS. MAZZOCCO:

5 Q. Dr. Clark, you have said that you participate as chief

6 pathologist to the ICTY operation in Bosnia-Herzegovina. Which were the

7 years?

8 A. 1999, 2000, and 2001.

9 Q. We have heard evidence that many people were killed in Visegrad

10 area. Could you examine all the victims?

11 A. I'm not aware of how many people were killed in the Visegrad

12 area. I understand that there were large numbers. Our -- my only

13 involvement in -- in that region was dealing with a specific site, what

14 we called the Slap site of 131 bodies. This was a specific exercise

15 which we did in 2000 -- late 2000 and again in 2001.

16 Q. Did you work together with a Bosnian commission?

17 A. Yes. Slightly unusually because most of the work that we had

18 been doing, the Tribunal did both the exhumation and the mortuary work in

19 other cases. In this instance, the Slap site, it was people from the

20 Bosnian commission who did the exhumation and they formally handed over

21 the bodies to us and we carried out -- the Tribunal carried out the

22 post-mortem examinations. And following that, we handed the bodies back

23 over to the Bosnian commission.

24 Q. Who signed each autopsy report?

25 A. The -- at any one time there would be three pathologists in the

Page 2101

1 mortuary carrying out the post-mortem examination simultaneously. So we

2 had three tables. And the pathologist carrying out the examination would

3 have signed the autopsy report.

4 Having said that, there was a lot of discussion between us in

5 each cases and we showed each other findings. So although one person may

6 have signed the report, the others will have often have seen the findings

7 as well.

8 Q. You have said that you have -- you found in the -- you studied

9 131 bodies. What was the sex and age of these bodies?

10 A. I don't have my report with me, but the -- I think a

11 hundred and -- about 114 were male. May I have a copy of the report.

12 Q. Yes, yes. If you have -- can I ask --

13 JUDGE ROBINSON: Yes. You may look at the report.

14 THE WITNESS: The majority were male. I can tell you that. Yes.

15 114. This is of 131 bodies, 114 were male, 14 were female, and in three

16 cases we were unable to determine the sex, and these were mostly young

17 people.

18 MS. MAZZOCCO:

19 Q. Were the bodies numbered?

20 A. Yes. The Bosnian commission had numbered the bodies as they

21 exhumed them, and they gave them a number. For some reason they started

22 at number 317. I'm not quite sure the reason for that, but anyway, when

23 they handed the bodies over and during our examination, we continued that

24 numbering system, and we put letters at the beginning and at the end to

25 denote the site we were working on and whether this was a body or --

Page 2102

1 there was only one instance where there was a body part. So the

2 numbering system that we used followed on from the numbering system from

3 the Bosnian commission.

4 Q. Can you describe the main difficulties you related to this type

5 of autopsy work?

6 A. All these bodies were skeletonised. In other words, we were --

7 all the soft tissues of the body had disappeared and all that we were

8 left with were just the skeleton, and the bones were jumbled in together.

9 So there wasn't a straight skeleton, they were mixed in together, in with

10 clothing and sometimes various other items in with the body. So that's

11 what we had to deal with, skeletonised remains.

12 Now, our job was to try and find any injuries on these people and

13 try and establish the cause of death. So all we could work on were any

14 injuries to the bones. That's what we had to work on. So if somebody

15 had been injured in a way which didn't damage the bones, we wouldn't have

16 seen that.

17 Also, we had to bear in mind that injuries can occur to bones of

18 the bodies after death, and it is very difficult just looking at bones

19 themselves to see whether an injury occurred in life or after death. So

20 we had to keep a very open mind, and it was quite likely that there would

21 be injuries to these bodies after death -- to the bones after death

22 because they had been in a grave, just handling, et cetera. But with

23 experience we were able to recognise what was likely to be a post-mortem

24 injury and what was not. Anyway, so that was one of the main problems;

25 we were left with bones and to try and establish whether these injuries

Page 2103

1 on them occurred in life or after death.

2 Secondly was having found an injury, trying to work out what

3 caused it. Was this a bullet injury? Was this caused by blunt force

4 injuries, blunt force trauma, in other words, being hit by something or

5 was it caused by a knife or whatever. So that was the other task we had

6 to do.

7 And thirdly, even having found an injury, even having established

8 that it was due to a gunshot injury or whatever, could we then see that

9 was necessarily the cause of death because people don't die from a broken

10 bone. You die because of the injuries to all the organs round about, the

11 internal tissues. So because we only had bones and even though there was

12 a bone -- an injury in the bone, could we necessarily say that that's

13 what killed that person.

14 So -- so there was lots of -- there were difficulties in the

15 interpretation, and we had to bear that in mind all the time.

16 Q. And so how did you prove an injury as being due to gunshot as

17 opposed to other causes?

18 A. When a bullet hits bone, it causes characteristic damage,

19 particularly with a high velocity rifle. It shatters the bone. It

20 causes a huge amount of damage. So many of the bones that we saw were

21 in -- in lots of pieces, different pieces, but with the aid of the

22 anthropologists, we were able to stick these together and -- and perhaps

23 find actually a hole with lots of fracturing round about it. And if we

24 found that, then we were fairly convinced that this was a gunshot injury.

25 And often there would be bullet fragments in the body as well.

Page 2104

1 Q. Sorry. Was it possible to determine whether it was a

2 high velocity rifle was used or a handgun?

3 A. Nearly all of the cases the pattern of injuries, the nature of

4 the damage to the bones was very typical of high velocity injuries. The

5 reason for that is if you fire a handgun a handgun will damage a bone

6 just simply by the hole it produces. So if you have a bone and a handgun

7 bullet goes through the bone, it just creates a hole. But a high

8 velocity rifle, it creates not just a hole but a huge amount of

9 fracturing round about, and because -- it was because of this extensive

10 fracturing we could say the vast majority of cases were high velocity

11 rifles.

12 We did in two cases find handgun bullets and injuries pointing to

13 that which very much suggested that these people had been killed by

14 handguns rather than high velocity rifles. That was the exception. The

15 vast majority were the high velocity rifles.

16 Q. Thank you. And were you able to determine the direction of fire,

17 the position between the victim and the attacker?

18 A. To some extent but not in all cases. That is based on again if a

19 bullet goes through bone, particularly the skull or a rib it leaves a

20 characteristic pattern or shape from which you can tell the direction

21 it's going. So, for instance, if a bullet entered the back of the head

22 and came out the front, we could tell the direct just by the shape of the

23 bone if you look at the outside and the inside surface, and it's highly

24 typical, well documented.

25 So most times with the skull it was easy to tell that. It's less

Page 2105

1 easy on other bones. And in the end we could only tell direction in a

2 certain proportion, but -- and this is listed in the -- in the report.

3 For instance, of all the shots -- of all the shots to the head, just --

4 the majority were from behind or the side and lesser numbers from the

5 front and occasionally from the top.

6 So I think to answer your question, there was variable -- the

7 bullets were fired in variable directions.

8 Q. In -- in which phase of this process were the bodies shown to the

9 families for possible identification?

10 A. That was after our official involvement. Although our main role

11 was to look at injuries and establish cause of death, we did as much as

12 we could as well to aid identification by taking measurements of the

13 skeleton, seeing it was male or female, all that sort of stuff, looking

14 for documents and photographing the clothing, et cetera, documenting

15 that.

16 With that information we handed that all over to the Bosnian

17 commission, and I'm aware that they then showed the clothing and the

18 remains and documents to relatives to try and seek some identification.

19 Q. And --

20 A. Sorry, just one other thing. We also took from each body a

21 sample of bone for future DNA analysis. DNA analysis on bone in that

22 time, even only seven years ago, was in its infancy and it wasn't really

23 possible or practical to do DNA analysis then. That has changed now and

24 in recent years a lot of analysis, DNA analysis has been done.

25 Q. Thank you.

Page 2106

1 MS. MAZZOCCO: Could I ask the court officer to display the

2 screen the document bearing the 65 ter number 1.

3 Q. Dr. Clark, is this the report that you signed as chief

4 pathologist and that summarises the finding from the Slap grave sites?

5 A. Yes. The -- what happened here was after all the post-mortems,

6 the 131 post-mortems compiled by myself, my colleagues, I extracted the

7 information from them and made this final report which is what you have

8 now.

9 MS. MAZZOCCO: Your Honours, I'd like to tender the report into

10 evidence.

11 JUDGE ROBINSON: Yes.

12 THE REGISTRAR: It is admitted as Exhibit P122, Your Honours.

13 MS. MAZZOCCO: And may I now ask the court officer to display

14 page 10 of this 65 ter number 1, the same. And maybe can figure 6 at the

15 top be enlarged. The one on the left.

16 Q. Can you explain the findings of this photograph that come from

17 autopsy report 361?

18 A. This is -- the bone at the top there is the shoulder blade, the

19 scapula. Down below it we have five ribs laid out like that. Now, this

20 is not the normal anatomical position. This is just for ease of

21 photographing. So you can imagine the ribs effectively lying on top of

22 the shoulder blade. Now, what this does show, however, is a hole in the

23 shoulder blade, in the middle of it. You can just see the blue coming

24 through it where there's an arrow pointing to it. And if you go down a

25 bit further down you will see holes in the ribs, a line of holes.

Page 2107

1 Now, that to us was a typical pattern of a gunshot, of a bullet

2 going through the body, and although I've listed five holes that you can

3 see, that is probably all the same track because of where the ribs are

4 against the shoulder blade. So that's a typical bullet going through the

5 upper part of the trunk.

6 MS. MAZZOCCO: Can the court officer display the document bearing

7 number X008/0291. Should I repeat maybe? X008/0291. This one. Thank

8 you.

9 Q. Is this the autopsy report related to body 361?

10 A. Yes.

11 Q. And the one related to that photo that we have seen now. And in

12 this case was it possible to determine the cause of death?

13 A. The cause of death we attributed was that bullet injury, the

14 gunshot injury to the chest. I explained earlier that all we found there

15 is a bullet to the bone, but I think, you know, as pathologists we know

16 that under the shoulder blade under the ribs you have the major organs.

17 You have the lungs and the heart, et cetera, and I think it's reasonable

18 to suggest that these -- these parts of the body would have been injured

19 and fatally so and that this -- this was the cause of death.

20 Q. And was it possible in this case to determine the direction of

21 fire?

22 A. Perhaps if you went down a page. It's page 2.

23 Q. I read it in this page.

24 A. Oh, yes, sorry, yes. The shot was coming -- seemed to be coming

25 from behind. Sorry. Yes.

Page 2108

1 MS. MAZZOCCO: Your Honour, I would like to tender this document

2 into evidence.

3 And can I now --

4 JUDGE ROBINSON: Thank you.

5 THE REGISTRAR: It is admitted Exhibit P number 123.

6 MS. MAZZOCCO: Can I now ask the court officer to display the

7 document bearing number 0638/3236.

8 Q. Do you recognise the number at the top of the page on the right?

9 A. The number is almost certainly the same numbering system that we

10 used, 361/00. I have no reason to believe that any new numbering system

11 was used, so I think that applies to the body that we saw.

12 Q. So can you explain the process related to this document? Was --

13 A. I -- this -- we handed the bodies over to the Bosnian commission,

14 and that -- that was the end of our involvement. I'm aware, just because

15 I was in the area at the time, that they had an identification process

16 soon afterwards and that relatives were invited to come and look at the

17 clothing and possessions, as I said earlier, and I can only imagine that

18 as relatives did identify to their purposes each body that this form was

19 produced by the Bosnian commission. But it's not an official form from

20 anything that we did, but -- but I just -- I'm aware of the process that

21 went on. I think that's it.

22 Q. Thank you.

23 MS. MAZZOCCO: Your Honours, I'd like to tender this document

24 into evidence.

25 JUDGE ROBINSON: Yes.

Page 2109

1 THE REGISTRAR: As Exhibit P124, Your Honours.

2 MS. MAZZOCCO: Can I now ask the court officer to display the

3 document with number X007/7947.

4 Q. Dr. Clark, can you describe what you see on the screen?

5 A. This is another autopsy report, SP01/378B which was carried out

6 in May 2001.

7 Q. And so is -- which body is related? You said, sorry.

8 A. Yes.

9 Q. And in this case was it possible to determine the cause of death?

10 A. Yes. He again died from a gunshot injury to the chest.

11 MS. MAZZOCCO: Your Honours, I'd like to tender this document

12 into evidence.

13 JUDGE ROBINSON: Yes.

14 THE REGISTRAR: It is admitted as number -- Exhibit number P125.

15 MS. MAZZOCCO: And finally can I ask the court officer to display

16 the document with number X007/9454.

17 Q. Dr. Clark, is this the autopsy report your team drafted concerned

18 the body 328?

19 A. Yes, this is SP01/328B carried out in November 2000, and I felt

20 that this man probably died from a gunshot injury to the chest. This was

21 a little less definite than the previous two but there appeared to be

22 bullet damage to three ribs on the right side of the chest and there were

23 bullet holes in the clothing that he was wearing. So I felt the most

24 probable cause of death was a gunshot injury to the chest.

25 MS. MAZZOCCO: Your Honours, I'd like to tender this document