Page 18874
1 Thursday, 7 November 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.34 a.m.
5 JUDGE ORIE: Good morning to everyone in and around this
6 courtroom.
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours.
9 This is the case IT-09-92-T, the Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 I see that Mr. Mladic is back in court.
12 Before we continue the -- hearing the evidence of the present
13 witness, I'd like to deal with two procedural matters.
14 The first is that I'd like to deliver the Chamber's decision on
15 the Defence Rule 94 bis notice objection and motion to bar Ewa Tabeau
16 from testifying for the Prosecution as an expert, which was filed on the
17 31st of October, 2013.
18 The Prosecution filed its notice of disclosure of expert report
19 of Ewa Tabeau pursuant to Rule 94 bis on the 31st of July, 2013.
20 With respect to the applicable law concerning expert evidence,
21 the Chamber recalls and refers to its 19th of October, 2012, decision
22 concerning Richard Butler.
23 The Defence submits that Tabeau should be disqualified as an
24 expert and that the Prosecution should be barred from presenting her
25 evidence. While the Defence does not dispute her knowledge and expertise
Page 18875
1 in the field of demographics, it contends that her reports exceed the
2 scope of her expertise and it also takes issue with her methodology. On
3 the basis of Tabeau's curriculum vitae, which lists her extensive work
4 experience and academic specialisation in the field of demographics, the
5 Chamber is satisfied that she is an expert who can assist it in relation
6 to proof of death of individuals identified in the scheduled victim lists
7 of the indictment on the basis of demographic information.
8 In relation to the Defence objections to the content and
9 methodology of Tabeau's reports, the Chamber considers that such matters
10 should be addressed during the examination of the witness. The Chamber
11 defers its decision on the admission of the reports to the time of the
12 witness's testimony. With regard to the Defence request to cross-examine
13 Tabeau, the Chamber notes that it will be able to do so as she will be
14 called to testify.
15 As regards the apparently inability of the Defence to access a
16 database containing documents cited as sources in the witness's reports,
17 the Chamber expects there to be full disclosure of such source documents.
18 Any contentious issues in this regard should be brought to the Chamber's
19 attention in a timely manner.
20 Based on the foregoing, the Chamber decides that Witness Tabeau
21 may testify as an expert witness and denies the Defence request to bar
22 the Prosecution from presenting her evidence.
23 And this concludes the Chamber's decision.
24 The other matter I would like to raise also concerns the
25 testimony of Ewa Tabeau.
Page 18876
1 On the 23rd of September, 2013, the Prosecution requested leave
2 to reply to the Defence response to its 11th motion to amend the
3 Rule 65 ter exhibit list and filed its reply.
4 The Chamber hereby grants the request to reply.
5 On the 1st of November of this year, the Prosecution indicated
6 that the process of uploading missing English translations for the
7 documents subject to this motion would be finished on that same day. In
8 its informal communication of the 25th of October, 2013, the Prosecution
9 indicated that it would notify the Chamber once the missing translations
10 have been uploaded. However, the Chamber has still not received such a
11 notification. As noted by the Chamber on the 25th of October, the
12 Prosecution cannot be granted leave to add documents which are not
13 available in an official language of the Tribunal. Considering that the
14 Prosecution has nevertheless scheduled Witness Ewa Tabeau to begin her
15 testimony this week, the Chamber hereby instructs the Prosecution to seek
16 addition for each document in court, at a time when it wishes to use that
17 document with Witness Tabeau. After hearing the Defence, the Chamber
18 will then decide on the addition of the documents in court.
19 Having dealt with those matters, could the witness be escorted
20 into the courtroom.
21 [The witness takes the stand]
22 JUDGE ORIE: Good morning, Mr. Higgs.
23 THE WITNESS: Good morning, Your Honour.
24 JUDGE ORIE: I would like to remind you that you're still bound
25 by the solemn declaration you have given at the beginning of your
Page 18877
1 testimony.
2 WITNESS: RICHARD HIGGS [Resumed]
3 JUDGE ORIE: And Mr. Lukic will now continue his
4 cross-examination.
5 Mr. Lukic, please proceed.
6 MR. LUKIC: Good morning, Your Honours.
7 Cross-examination by Mr. Lukic: [Continued]
8 Q. Good morning, Mr. Higgs.
9 MR. LUKIC: I just want to ask one clarification, Your Honour.
10 JUDGE ORIE: Please do so.
11 MR. LUKIC: Would you like me first to answer your questions from
12 Tuesday, or I should continue with the cross-examination?
13 JUDGE ORIE: It depends on the answers.
14 Mr. Weber.
15 MR. WEBER: Your Honour, because I know what Mr. Lukic is going
16 to be addressing, I think it would be best to actually address it outside
17 the presence of the witness, just because then there might be later
18 question put by the parties to the witness on the matter.
19 JUDGE ORIE: Okay. Let's do it just before the -- before the
20 first break. You know how much time would you need for it, Mr. Lukic,
21 more or less --
22 MR. LUKIC: More or less.
23 JUDGE ORIE: -- and then you indicate when we should prepare for
24 the break.
25 MR. LUKIC: Thank you, Your Honour.
Page 18878
1 JUDGE ORIE: Please proceed.
2 MR. LUKIC: [Interpretation]
3 Q. Mr. Higgs, in that case, we shall continue.
4 I will now briefly discuss the four other shells for which it is
5 claimed that they were fired on that same day.
6 You, yourself, in your report state that there's no proof of
7 that, that the four shells were fired from the same location as the one
8 that exploded in front of the Markale market-place. And you said that
9 the purpose of such activity is to kill as many people in the area.
10 How did you know that those projectiles were fired on that same
11 day? What you did base your conclusion on?
12 A. The other four rounds were mentioned in one of the reports with
13 dates of firing, which I believe was on the same day but slightly later
14 in the day. So it's based on one of the reports that I referenced to --
15 for this case.
16 Q. Did you have at your disposal the registrations of the patients
17 that were admitted into the hospital on that day? And, based on that,
18 were you establish -- were you able to establish that somebody was
19 wounded by those rounds on that day?
20 A. Not from any data regarding the hospital. I was basing my
21 reports just on those pieces of evidence I relate to. I think it was
22 mentioned in one of the UNPROFOR report, if I remember correctly.
23 Q. Did you have in your hands a report known as UNPROFOR G2 report,
24 which claims that these rounds were fired from the same location?
25 A. I can't remember which report that is. But I do remember some
Page 18879
1 speculation that they were fired possibly from the same location.
2 Q. Would you agree that that could not be established on the basis
3 of the descent angles that were ascertained?
4 A. Not the descent angles, but the -- the approximate bearings at
5 which the rounds came from.
6 Q. Did you come across a statement by any of the witnesses who heard
7 the explosions on that day?
8 JUDGE ORIE: Mr. Lukic, the witness says: I was mentioned in one
9 of the reports. And then you say: Do you have a report which is known
10 by that name? Can't remember what report it is. And then you start
11 discussing what is to be found in that report. Then I'm lost already. I
12 would very much like you to take it step by step so that we know what the
13 witness used, if so, and what angles were measured by whom, so as to
14 systematically approach the matter rather than on this general -- in this
15 rather general way.
16 MR. LUKIC: [Interpretation]
17 Q. The four explosions came from the direction of
18 240 [as interpreted] to 240 degrees. That was established; whereas the
19 explosion at the Markale market-place had a totally different angle and
20 direction; right?
21 A. That's correct.
22 MR. WEBER: Judge, it also assists the Prosecution if we could
23 know what data exactly Mr. Lukic is referring to. My understanding is
24 that he is referring to information from P797, e-court page 18 and 19
25 possibly.
Page 18880
1 JUDGE ORIE: Or perhaps 21.
2 MR. WEBER: Or perhaps 21. Thank you.
3 JUDGE ORIE: Could we have a look at it so that we know what we
4 are talking about, Mr. Lukic.
5 MR. LUKIC: Do you want to have it in the e-court, Your Honour?
6 JUDGE ORIE: Yes, so that we know --
7 MR. LUKIC: Let's have P797. I just wanted to check with this
8 witness if he was aware of this claim, so I didn't want to go into any
9 further details with him now. But if you want to check it --
10 JUDGE ORIE: But he expresses himself on it.
11 JUDGE FLUEGGE: The most important answer of the witness is not
12 recorded. Your last question on line 15, that the explosion of the
13 market-place had a totally different angle in direction; right?
14 And in my recollection, the witness said "yes."
15 This is not recorded.
16 MR. LUKIC: Thank you.
17 Q. [Interpretation] You nodded, but it has to be said aloud.
18 Do you agree with Judge Fluegge that you said yes to my previous
19 question?
20 A. Correct.
21 Q. Thank you. So you do remember this UNPROFOR report?
22 A. If this is one of the UNPROFOR reports I relate to in my
23 evidence, then -- then, yes, it will be.
24 MR. LUKIC: [Interpretation] I would like to call up page 18,
25 please.
Page 18881
1 Q. Look at pages 18, 19 and 20.
2 MR. LUKIC: [Interpretation] Actually, for the benefit of the
3 witness, I would like these pages to be displayed.
4 [In English] Can we have the next one.
5 JUDGE ORIE: Mr. Weber.
6 MR. WEBER: Your Honours, to assist, Ms. Stewart has been kind
7 enough to print hard copy of pages 17 through 21. If that would
8 facilitate Mr. Lukic working with the document, we have it for the
9 witness.
10 JUDGE FLUEGGE: I'm not sure if the B/C/S version corresponds
11 with the English page on the screen.
12 MR. LUKIC: Most important is that the witness understands so I'm
13 also looking at the right-hand side, the English version.
14 JUDGE MOLOTO: And what would Mr. Mladic look at?
15 JUDGE ORIE: Try to get the -- the B/C/S version there as well.
16 I -- your microphone was not activated. You're supposed not to
17 speak at this moment, but if there's anything which it seems that ...
18 that it was an expression of some humour.
19 No loud speaking, please.
20 Mr. Mladic, there will be no communication if what you say is not
21 translated. But if it is an answer what you look at and that you
22 referred -- perhaps that you were looking at me, then it's understood
23 even without translation. I would advise you to, rather, look at your
24 screen.
25 Please proceed.
Page 18882
1 MR. LUKIC: Has the witness been provided with those pages?
2 JUDGE ORIE: Could the usher assist.
3 You want to inspect them, Mr. Lukic --
4 MR. LUKIC: No.
5 JUDGE ORIE: -- or there is no need?
6 They can be given directly to the witness.
7 JUDGE FLUEGGE: Can we go to the next page in B/C/S.
8 JUDGE ORIE: It's still apparently not what appears. Let's have
9 a look.
10 [Trial Chamber and Registrar confer]
11 JUDGE ORIE: It seems that the text is -- is the same as what we
12 have now. Yes.
13 Please proceed. The problem is that we don't see the 4 on the
14 right-hand page.
15 Please proceed, Mr. Lukic.
16 MR. LUKIC: Thank you.
17 Q. [Interpretation] Let's just confirm that you have read that.
18 This report claims that all of the rounds were fired from the same place;
19 right?
20 A. I can't see in the report where it says they were fired from the
21 same place.
22 Q. But do you remember that you read something like that when you
23 were preparing your report for this case?
24 JUDGE ORIE: What about going to page 21 in e-court?
25 MR. WEBER: Your Honour, I believe that corresponds to B/C/S
Page 18883
1 translation page 23.
2 JUDGE ORIE: Yes. There we find: Impact analysis (a) four
3 rounds fired from a bearing of 220 to 240 degrees. One round assessed to
4 be fired from a bearing of 170 degrees, based on angle of impact.
5 Is that what you were seeking, Mr. Lukic?
6 MR. LUKIC: Yes.
7 THE WITNESS: Yes, I believe that I have seen the report.
8 MR. LUKIC:
9 Q. Okay. [Interpretation] The four rounds that we're talking about,
10 they were not fired from that same location from which it is claimed that
11 the round that caused massacre at the Markale market-place was fired.
12 Did you check the probability for one mortar shell to hit the
13 place which caused the massacre at Markale on the 28th of August, 1995,
14 as well as on the 5th of February, 1994, which is when the incident known
15 as Markale I happened. Allegedly that first time, only one mortar round
16 was fired and caused the havoc.
17 A. Could you just clarify the question, please.
18 Q. First of all, would you agree with me that, according to the
19 report, the massacre was caused both in the incidents Markale I and
20 Markale II by means of a single mortar round?
21 A. That's correct.
22 JUDGE ORIE: Yes. But that seems not to be the question. Of
23 course, there was one hit. I mean, otherwise there would have been two
24 craters.
25 But what you intended to ask, Mr. Lukic, apparently is, how
Page 18884
1 likely do you consider it to be that by the first projectile fired, the
2 Markale market I, 5th of February or the Markale II, 28th of August,
3 would have been hit without further adjusting fire.
4 That's, Mr. Lukic, what you intended to ask, I take it.
5 MR. LUKIC: Yes, Your Honour.
6 JUDGE ORIE: Could you please answer that question.
7 THE WITNESS: Yeah. Because the city layout with its roads,
8 identifiable points, and that the mortars possibly have been in location
9 for some considerable time had the opportunity to record targets.
10 Therefore, the possibility of hitting what they wished to shoot at with
11 the first round is vastly increased. The accuracy is highly increased.
12 So hitting a target with the first round, in this case, did not come as a
13 surprise.
14 MR. LUKIC: [Interpretation]
15 Q. In your work, you had a statement of Thomas Knustad, who was one
16 of the observers from the OP-1. Do you remember that being one of the
17 references that you used? And I'm talking about the references mentioned
18 in UNPROFOR report.
19 If you wish, we can show it in e-court. It's 65 ter 30280.
20 A. Yes. I believe that was -- sorry.
21 Q. If you can -- if you don't need me to show it to you then answer.
22 THE REGISTRAR: For the record, 30280 is now MFI'd as P2605.
23 JUDGE ORIE: And could we have a look at it.
24 MR. LUKIC: We need page 11 in B/C/S -- in English, and 17 in
25 B/C/S.
Page 18885
1 Q. Under (d), can you see the name of Mr. Thomas Knustad.
2 A. Yes, that's correct.
3 Q. [Interpretation] At the time, when the incident occurred, he was
4 on duty at OP-1 and this is how he describes this in his statement of the
5 26th [as interpreted] May --
6 THE INTERPRETER: Could Mr. Lukic please read the numbers slowly.
7 Thank you.
8 JUDGE ORIE: Mr. Lukic, you're invited to read the numbers
9 slowly.
10 MR. LUKIC: 1D1395.
11 JUDGE MOLOTO: Mr. Lukic, in your previous question, you stopped
12 at 26th of May. You didn't mention the year.
13 MR. LUKIC: It was 21st of May, 1996.
14 And, in this statement given by Mr. Knustad to the OTP, we need
15 page 3 in both versions. It's the fourth paragraph.
16 Q. [Interpretation] I'm not going to read the whole paragraph.
17 Somewhere in the middle, Mr. Knustad says:
18 "It was then that I heard the sound of an impact explosion
19 somewhere in the city, and from my experience, my first thoughts were
20 that it sounded like a mortar impact."
21 In the second paragraph from the bottom of the page, it reads:
22 "I only heard one impact and I know that the mortar had not
23 passed close to our positions because I would have heard it. I can also
24 say that if the mortar had been fired from within the confrontation line,
25 I would have heard that too. All the areas surrounding the confrontation
Page 18886
1 line was Serb controlled."
2 In your analysis, did you take into consideration the statement
3 of this witness who was at OP-1 and who only heard detonation inside the
4 city? He didn't hear the firing of the four shells, nor any explosions
5 of any of the four shells.
6 A. It says that he didn't hear that. But I believe in this
7 statement he is referring to the single round. He gives a specific time
8 of 10.00 to 12.00, so I'm not sure from what he has written here whether
9 he is just talking about the single round that was fired earlier or if he
10 is talking about the four rounds that landed later in the day. That is
11 unclear from reading this.
12 Q. Very well. In a daily report issued by UNMOs on the
13 28th of August at 1954, it was stated that at 1110 hours only one
14 explosion of a shell was registered.
15 MR. LUKIC: [Interpretation] And in order that to see that, we
16 need again Exhibit P797. We need page 11 in English and the end of
17 page 11, and then we need to turn over to page 12. Page 3 on top, OP-1,
18 it says one explosion.
19 Q. So it is evident that it was stated in the report that by 1954
20 hours, the OP-1 reported only one explosion. Did you take this report
21 into consideration?
22 A. Yes, I believe this was one of the reports that I viewed.
23 Q. In this same report, later on, we see that OP-1 had registered
24 one firing of a shell coming from the east, the Barjak position, which
25 was the command of the 105th Brigade of the BH army.
Page 18887
1 JUDGE ORIE: Mr. Lukic, I'm a bit lost. You started with one
2 explosion reported. And then you said further down, or further on --
3 MR. LUKIC: No, it's the extension of the same report, the same
4 line on the right-hand side. It says 105 Brigade, B and H.
5 JUDGE ORIE: Yes, that's clear.
6 JUDGE FLUEGGE: But what is your question?
7 MR. LUKIC: Does this gentleman took into account this report?
8 JUDGE ORIE: Mr. Weber.
9 MR. WEBER: Your Honour, maybe Mr. Lukic can clarify for me but
10 I'm a little concerned that we are possibly not referring to the same
11 entries. I see that the grids and numbers that are referenced in the
12 entry that the attention of the witness is being drawn to are possibly
13 different than the ones that are indicated in the following pages related
14 to the shells that hit the market. And what I'm specifically comparing
15 is that in the second column from the right, which I read this report to
16 say impact area or the location where it impacted. I'm just trying to
17 cross-compare those because I see the one that we are drawn to says
18 924597. And the one for the -- analysed for the Markale in the following
19 page says 927594.
20 MR. LUKIC: That is exactly the point we are trying to make.
21 That is the only explosion reported by OP-1 on that day. Actually fired.
22 MR. WEBER: Your Honour, on the previous page I believe it says
23 that there's -- that their impacts reported were coincident -- if more
24 impacts on central city details of investigation below in this sitrep.
25 And then the details -- I mean, that's how I read this. I'm not sure if
Page 18888
1 it's the same. Maybe the witness is the best to explain or not.
2 JUDGE ORIE: It is all becoming rather chaotic. I invite the
3 parties to systemically deal with any matter they wish to deal with and
4 not to say do you see this, do you see that, have you taken that into
5 consideration without for the Chamber knowing what exactly was taken into
6 consideration and in what way it was taken into consideration. That's
7 what we need.
8 Please proceed, Mr. Lukic.
9 MR. LUKIC: Thank you, Your Honour.
10 JUDGE ORIE: And please keep in mind that if Mr. Weber has a
11 different way of reading the document, you should at least consider the
12 possibility that not everyone, including the Chamber, is reading the
13 document in the same way as you do.
14 MR. LUKIC: [Interpretation]
15 Q. Sir, we saw today that you did not have access to any medical
16 records in order to establish whether there were any casualties on the
17 day. You never checked witness statements because this is shown by the
18 evidence and this is our position, and that is that not a single witness
19 who was questioned on that day did not hear any other explosion other
20 than this one. In other words, they had never heard additional four
21 explosions apart from the one.
22 Now, on what basis did you reach a conclusion that the four
23 explosions occurred on the same day when the shell exploded at the
24 Markale market-place?
25 A. My conclusions were drawn from the UNPROFOR reports which reports
Page 18889
1 that we had the single round fired, which landed just outside the market
2 and in the road, and then later in the same day, we had four other rounds
3 that were fired at a different location. And that is in the UNPROFOR
4 report.
5 Q. Can you please tell us which page so that we can all have a look,
6 the place where you found this?
7 Maybe I can be of assistance. We need again, P797, English page
8 10; page 12 in the B/C/S.
9 We see here a report from Mali Hum. Do you know where the
10 observation post Mali Hum was situated? 89961 is the co-ordinate which
11 coincides with the western slope of the Mali Hum hill. Would you agree
12 that it was actually them who were overlooking Lukavica and --
13 THE INTERPRETER: Interpreter's correction: Grbavica and the
14 centre of the town.
15 THE WITNESS: I don't know where that place is on the -- on the
16 map, sorry.
17 JUDGE ORIE: Mr. Weber.
18 MR. WEBER: Your Honour, just for the record, I would express the
19 same concern about the entry. Just in comparison, the grid references
20 between this entry and the ones that relate to the explanation that
21 follows for the other four impacts.
22 JUDGE ORIE: Yes, well, the only thing Mr. Lukic has asked is
23 where the Hum observation post is located. That's ...
24 MR. LUKIC: But the witness says that he does not know.
25 JUDGE ORIE: Yes. So any concern about either question or
Page 18890
1 answer, seems to be no reason for that.
2 MR. LUKIC: Maybe it's good time for us now to go to explanations
3 that I owe you, Your Honours, from yesterday -- from Tuesday --
4 JUDGE ORIE: Yes. Then we already ask the witness to leave the
5 courtroom. Follow the usher.
6 We'd like to see you back in approximately half an hour,
7 Mr. Higgs.
8 [The witness stands down]
9 JUDGE ORIE: Mr. Lukic.
10 MR. LUKIC: [Interpretation] First of all, I owe you an answer
11 regarding the tables that haven't been translated. We hope that this
12 will take place very soon and that it will make it more clear. In those
13 tables, it is always shown that graphs are provided before any tables are
14 provided which are of use for those who planned the firing. The graphs
15 of firing shown to you were the firing tables for --
16 THE INTERPRETER: Could Mr. Lukic please read slowly.
17 JUDGE ORIE: Mr. Lukic, you're invited to read slowly.
18 JUDGE FLUEGGE: And it would assist if you could give the
19 document number we are talking about.
20 MR. LUKIC: Mm-hm. Give me one second.
21 I think it became D402.
22 JUDGE FLUEGGE: D402 is a sketch with markings of the witness.
23 MR. LUKIC: Oh, a sketch. Then it's 1D1293.
24 JUDGE FLUEGGE: Could it be 1D1393?
25 MR. LUKIC: I have 1293. It's 1293.
Page 18891
1 [Trial Chamber and Registrar confer]
2 JUDGE ORIE: Could we just have it on our screen for a second.
3 It is ... the marked version is D402.
4 MR. LUKIC: And before we move -- before we move to page 57 - I'm
5 sorry - I just want you to see that it's on the cover page, M74, written.
6 So -- and it's maybe better now to go to page 57, because we were working
7 with that one on Tuesday.
8 [Interpretation] So this is a firing graph sheen to you for
9 charge 1 for M41 -- 49 P1 shell, and one can see that in the right top
10 corner. We have the velocity for charge 1, which is VO equals 113 metres
11 per second. The same velocity can be seen in the numerical tables for
12 this same charge, which is on the next page, should you wish to look at
13 it.
14 JUDGE ORIE: Let's have a look at it.
15 MR. LUKIC: [Interpretation] We see the same velocity in the right
16 top corner, which equals 113 metres per second.
17 A confusion can possibly be created because we see M75. This is
18 a designation for the mortar, not for the shell. So for light
19 120-millimetre M75 mortar.
20 JUDGE ORIE: Would you just take me -- where do I read M75?
21 MR. LUKIC: It was on the cover page.
22 JUDGE ORIE: Okay.
23 MR. LUKIC: And it was on the page before, I think, with those
24 graphics.
25 JUDGE ORIE: Could -- I would like to --
Page 18892
1 MR. LUKIC: If we can -- page 57, please.
2 [Trial Chamber and Legal Officer confer]
3 JUDGE ORIE: Mr. Lukic, the cover page, as far as we remember,
4 says M74.
5 MR. LUKIC: [Overlapping speakers] ... yes, and --
6 JUDGE ORIE: And that's what we find here as well.
7 MR. LUKIC: Yes, 74.
8 JUDGE ORIE: Is that the mortar or the projectile or?
9 MR. LUKIC: It's the mortar.
10 JUDGE ORIE: That's the mortar. That is the tube from which --
11 MR. LUKIC: Yeah.
12 JUDGE ORIE: -- you would fire?
13 Okay. What would then be the --
14 MR. LUKIC: Mine.
15 JUDGE ORIE: -- specifics of the mine or of the projectile?
16 Where do we find that?
17 MR. LUKIC: [Interpretation] It is not specifically mentioned here
18 in this manual at all, but any expert can see that from the velocities
19 and the elevations reached by the shell, and we should try to explain
20 this.
21 So the question raised was: Why the tables for M49 P1 shells
22 were used, since it was established that the mine that exploded was M62,
23 and my esteemed friend, Mr. Weber correctly noticed that. Why was this
24 done? Our experts concluded that the conclusion in the comprehensive
25 UNPROFOR report under item 1 was made on the basis of firing tables
Page 18893
1 M41 P1. And they will demonstrate the method of reaching that
2 conclusion. Our expert will also demonstrate that it was not possible
3 for an M62 shell to go below the radar and to impact the spot on the
4 28th of August, 1995.
5 JUDGE ORIE: You're going much too far. It's not a systematic
6 approach.
7 The first question arises what you're telling us is these tables
8 and these graphs relate to the tube from which you fire a mortar
9 projectile and whatever the make of that projectile is doesn't matter at
10 all.
11 Is that how we have to understand you?
12 MR. LUKIC: It does matter.
13 JUDGE ORIE: It does matter.
14 MR. LUKIC: This is for M49 P1.
15 THE INTERPRETER: Would the speakers kindly not overlap for the
16 sake of interpretation. Thank you.
17 JUDGE ORIE: Yes. I think both Mr. Lukic and I feel guilty for
18 overlapping.
19 Let's take it step by step, Mr. Lukic.
20 You say this is for an M49.
21 MR. LUKIC: Yes.
22 JUDGE ORIE: Where do we find that?
23 MR. LUKIC: We do not find that in this manual. That's the
24 problem.
25 JUDGE ORIE: That is surprising for a --
Page 18894
1 MR. LUKIC: [Overlapping speakers] ... not our mistake.
2 JUDGE ORIE: Could --
3 MR. WEBER: That's not disputed by the Prosecution that this
4 chard corresponds --
5 THE INTERPRETER: Overlapping again.
6 JUDGE ORIE: I try not to overlap. But if the two of you now
7 start overlapping speech, then it doesn't help that I refrain from it.
8 There is no dispute, you said, Mr. Weber, that this is M49 and
9 I -- could we have a look at page 58.
10 There, it says M49 P2 [sic]. So it is indicated, Mr. Lukic.
11 MR. LUKIC: Yeah, on this page. But not on the page with the --
12 JUDGE ORIE: Okay. Then that is not in dispute.
13 One second.
14 [Trial Chamber confers]
15 JUDGE ORIE: If I said "M49 P2," I must have --
16 MR. WEBER: Your Honour.
17 JUDGE ORIE: -- misspoke. Because it says "M49 P1." And
18 apparently there is another indication, if I read it well, OF or CF843.
19 There is no dispute about this.
20 MR. WEBER: Your Honour, that's correct. And just so the basis
21 of this -- the firing table is organised by type of shell for a given
22 time of mortar, in this case, M74.
23 And starting at page 54 of the B/C/S version it indicates the
24 type of shell that the following tables are for, and this falls within
25 the M49 P1 with the OF indication after that, that page.
Page 18895
1 JUDGE MOLOTO: Mr. Lukic, are we looking at the table on the left
2 or on the right? And the reason I ask this question is because a few
3 minutes earlier when you referred to this page you drew our attention to
4 the velocity of 113 metres per second, which is above the table that is
5 on the right and not on the left, and you wanted to say to us that this
6 is similar to the one on the previous page.
7 Now, why I'm asking is because on the table on the right we have
8 an M P49 SA, and then the few letters, and then M62. Sorry, we have M49,
9 M62, as the heading, and I would like to know exactly where we are.
10 JUDGE ORIE: Mr. Lukic, it also appears that the right page seems
11 to be an extension of what we find on the left page, although it has not
12 been translated to us what it says. Because it continues by column 18 or
13 16 - I can't see that correctly - 21, 22. And at the very, very end, it
14 seems that the same number appears which is found in the -- or the first
15 column value seems to be repeated, that is, distance, if I understand it
16 well.
17 You see how difficult it is for us to work without translation?
18 MR. LUKIC: It is very. And I do understand. I cannot cure it
19 now.
20 JUDGE ORIE: Okay. The parties seem to agree that this is about
21 an M49 projectile used with a tube which is identified as M74.
22 MR. WEBER: And just to be clear, what we don't agree about is
23 that this is the relevant type of projectile.
24 JUDGE ORIE: Yes. You do agree that the tables are for that type
25 of projectile, but you disagree on what projectile was -- had landed or
Page 18896
1 was found at impact.
2 Mr. Lukic, at least those matters seem to be clear.
3 MR. LUKIC: Can I continue or [Overlapping speakers]...
4 JUDGE ORIE: Yes, please.
5 MR. LUKIC: [Interpretation] The additional reason why tables are
6 used for M49 P1, is the fact that Mr. Higgs also used the same tables for
7 an M49 P1, which can be seen from the tables; because in graphic tables
8 for the mine M49 P1, for example, here we have the charge 1, according to
9 Mr. Higgs. I would like to see the illustration for charge 2. My
10 example is for charge 2. I don't want to make a mistake. We have to
11 move two pages ahead in the document in order to see the example of
12 charge 2.
13 For charge 2 for the same --
14 JUDGE ORIE: Mr. Weber.
15 MR. WEBER: Your Honour, I guess I'm not following Mr. Lukic in
16 what he is saying here. In Mr. Higgs's report on page 13, under
17 subheading (d), he listed ERN 02167124 which appears to be uploaded as
18 part of this. And read that to not be part of a M49 P1 but a type of M62
19 mortar. So that's what I see Mr. Higgs using in his report.
20 JUDGE ORIE: Now the problem, of course, is that on the top line,
21 we see both M49, but also on the right hand page, we see M62 mentioned.
22 So, therefore, is -- if these are two different types of
23 projectiles, then it needs an explanation whether the table, and
24 Mr. Lukic explained to us that they are projectile sensitive, why this
25 table is about the M49 and not about the M62.
Page 18897
1 It -- we find all of it --
2 MR. WEBER: Your Honour, I was planing to clarify this for the
3 Chamber on a re-direct and just go through the precise sections of the
4 manual. But my reading is that it's an UTU M62 fuse which is the type of
5 fuse being used with an M49 P1 projectile.
6 JUDGE ORIE: Okay.
7 MR. WEBER: So the M62 fuse can be use with different types of
8 shells so the tables are for different types of shells but the fuse,
9 which is why you see UTUM 62, may appear on many different pages for the
10 different forms of shells.
11 JUDGE ORIE: Yes. Does the fuse have any impact on the
12 trajectory? Because we're talking about trajectories. And I always
13 understood that the fuse is relevant to know when the projectile
14 explodes, that is immediately upon impact or with a delay.
15 MR. WEBER: You're totally correct, Your Honour, and I think the
16 witness is best to clarify it, and I was going to seek to do so at the
17 time. But you can see the weights and the differences and the type of
18 fuse corresponding to the weights of the different projectiles would, I
19 think, make -- make minimal or no difference with the trajectory, its
20 actual shell, and how it is constructed is my understanding, but I'm more
21 comfortable with the witness answering that.
22 JUDGE ORIE: Yes. You would say you would ask him whether the
23 weight of the fuse is so small in relation to the overall weight of the
24 projectile, whether it would have any considerable impact on the flight
25 trajectory. Yes.
Page 18898
1 Okay. That is a question which is then clearly defined.
2 Mr. Lukic.
3 MR. LUKIC: [Interpretation] According to what I tried to learn
4 yesterday from our own experts, this does impact the trajectory, and
5 that's why they took M49 P1, and that's why, according to them, only
6 M49 P1 with charge 2 and with a descent angle which has been determined
7 and drawn by Mr. Higgs has a trajectory of 1600 metres.
8 JUDGE ORIE: Well, you're now jumping to conclusions. You're now
9 jumping to conclusion on what it is. The first thing we want to know is
10 what exactly are we looking at, and then we'll see whether -- with
11 charge 2 and this angle of descent whether the distance or the altitude
12 is defined in those tables. We'll then have a look at it.
13 But the first thing we have to look is what do these tables apply
14 to?
15 Please proceed, Mr. Lukic.
16 MR. LUKIC: [Interpretation] They refer to Mr. Higgs's report.
17 Mr. Higgs in reports stated that for charge 2 the range is
18 1600 metres. And this is inspired our experts to apply the tables for
19 M49 P1. If they had applied -- applied the information on M62, the range
20 would have been around 300 metres longer. It would be about 1950 metres.
21 All this doesn't say expressly either in the UNPROFOR report or in
22 Mr. Higgs's report, according to the ranges that are stated for charge 1,
23 which is 900; charge 2, 1600; charge 3, 2400 metres --
24 JUDGE ORIE: What you are -- I'm just trying to follow it step by
25 step.
Page 18899
1 What you say is applied the information on M62. If they had
2 applied, who is "they" in this context? Experts?
3 MR. LUKIC: UNPROFOR and Mr. Higgs.
4 JUDGE ORIE: Okay. If they would have applied the M62, that is
5 that type of fuse. Then you say the table is giving a different answer
6 or the table is not accurate for that situation? Because you referred to
7 charge 2, and -- which line, what distance are we looking at? We need
8 the fire -- the angling fire of what, Mr. -- would that be 67 degrees?
9 MR. LUKIC: Yes, Your Honour. We have to have in mind 67 degrees
10 and --
11 JUDGE ORIE: 67 degrees appears in this table with charge 2 as
12 1500 metres distance. Could you agree? I see in column 4, 67.27, which
13 I do understand is the angle of firing. We have charge 2, which gives a
14 distance of 1500 metres. Is that accurate?
15 MR. LUKIC: I was told that it gives 16 -- around 1600.
16 JUDGE ORIE: I see -- in this table for 1600, I see a fire of
17 65.26. So, therefore --
18 MR. LUKIC: It's angle of fire. Not angle of descent.
19 JUDGE ORIE: Okay. Where do we find the angle of descent?
20 MR. LUKIC: We -- that's why we had that exercise yesterday when
21 Mr. Higgs marked 1100 and draw those lines. So that's how it tells us
22 that it's actually 1600.
23 JUDGE ORIE: Usually the angle of descent is slightly higher
24 than -- so I can imagine, if you say at an angle of firing of 65.26, that
25 perhaps the angle of descent is slightly higher and brings us to
Page 18900
1 somewhere in the 66 or 67, that with that angle of descent, you would
2 have a distance of 1600 metres trajectory.
3 MR. LUKIC: Yes.
4 JUDGE ORIE: Yes. That's at least -- now I understand what we
5 are talking about.
6 MR. LUKIC: And we can clarify this with Mr. Higgs.
7 JUDGE ORIE: Okay.
8 MR. LUKIC: I was -- I would rather have him present while we
9 discuss this. But ...
10 JUDGE ORIE: Well, you can put a question --
11 MR. LUKIC: [Overlapping speakers] ...
12 JUDGE ORIE: -- when we discuss it. I would say focussed
13 questions would assist us.
14 Mr. -- are you done or are there any other rounds because I'm
15 looking at the clock.
16 MR. LUKIC: Yeah, we have to answer the radar question, where the
17 radar was located, and we will try our best to [Overlapping speakers] ...
18 JUDGE ORIE: [Overlapping speakers] ... let's -- let's deal with
19 the radar before the next break. Is that a good idea?
20 MR. LUKIC: Yes, Your Honour.
21 JUDGE ORIE: Yes. Then we'll take the break. Apologies to
22 Mr. Mladic for being 15 minutes beyond the usual time.
23 We take a break, and we resume at five minutes past 11.00.
24 --- Recess taken at 10.46 a.m.
25 --- On resuming at 11.07 a.m.
Page 18901
1 JUDGE ORIE: Before we continue, I have a few more matters to
2 deal with.
3 The first one is a decision with regard to Witness Ewan Brown.
4 On the 27th of August of this year, the Prosecution filed a
5 notice of disclosure of Witness Ewan Brown's expert reports, concerning
6 the military developments in the Bosanska Krajina and a report regarding
7 Manjaca camp, pursuant to Rule 94 bis of the Rules, requesting that Brown
8 be permitted to testify as an expert and seeking the addition of
9 45 documents to the Rule 65 ter exhibit list.
10 On the 25th of September, the Defence filed its notice,
11 objection, and motion to bar Brown from testifying as an expert.
12 On the 9th of October, the Prosecution filed its response to this
13 submission.
14 With regard to the applicable law concerning expert evidence, the
15 Chamber refers to its decision concerning Richard Butler, which was filed
16 on the 19th of October, 2012.
17 With regard to the applicable law governing amendments to the
18 Rule 65 ter exhibit list, the Chamber refers to its decision on the
19 Prosecution's second motion to amend its Rule 65 ter exhibit list which
20 was filed on the 27th of June, 2012.
21 The Defence challenges the expertise of Brown in the topic area
22 of his reports and argues that the Prosecution should be barred from
23 presenting his evidence at trial because, inter alia, his CV does not
24 indicate any course work or study of the specific topics of the VRS, or
25 demonstrate his ability to have observed the functioning of the VRS from
Page 18902
1 1992 to 1995. In support of its arguments, the Defence cites decisions
2 concerning the expert status of different witnesses in other cases.
3 As a preliminary matter, the Chamber considers that neither VRS
4 studies nor a witness's direct observation of VRS functioning are
5 prerequisites for a witness to be considered a military expert who might
6 assist the Chamber in its understanding of VRS activities. The Chamber
7 notes that such assistance can come by virtue of specialised knowledge,
8 skills, or training. The Chamber further notes that although the Defence
9 has cited decisions from other cases having mainly to do with limiting
10 the scope of expert testimony, it has failed to demonstrate how these
11 decisions relate to the determination of the expert status of
12 Witness Brown and how they would establish the inappropriateness of
13 receiving Brown's evidence relating to the results of his investigations.
14 Brown's CV states that he was educated at the
15 Royal Military Academy Sandhurst and the universities of East Anglia and
16 Leicester and has a bachelor of arts in modern history and a master of
17 arts in criminology. (redacted)
18 (redacted)
19 (redacted)
20 (redacted)
21 From 1998 to 2004 Brown worked as a military analyst with the
22 Office of the Prosecutor of the Tribunal, which involved the collection
23 and analysis of information on individuals in military, police,
24 paramilitary, and political structure, and the production of the reports,
25 such as the Krajina report.
Page 18903
1 Based on the foregoing, the Chamber is satisfied that Brown is a
2 military expert who can assist the Chamber on matters related to the VRS
3 and the 1st Krajina Corps and denies the Defence request to bar the
4 Prosecution from presenting his evidence.
5 With regard to the Defence request to cross-examine the witness,
6 the Chamber notes that he will be called to testify, and the Defence
7 will, therefore, have the opportunity to cross-examine him.
8 The Chamber will now turn to its decision on the amendment of the
9 65 ter exhibit list with the additional 45 documents as requested by the
10 Prosecution.
11 The proposed documents consists of the -- consist of the Manjaca
12 report, an updated version of Brown's curriculum vitae, and 43 documents
13 which are cited in Brown's reports. The Prosecution informed the Chamber
14 through informal communication that the document with Rule 65 ter number
15 30217 is the same as the document with Rule 65 ter number 7019.
16 Therefore, the Chamber considers the request to add Rule 65 ter
17 number 30217 to the exhibit list to be moot.
18 The Chamber considers that the Prosecution has failed to
19 demonstrate good cause for requesting the addition of these documents at
20 this stage of the proceedings, since it has been in possession of the
21 reports, within which the documents are cited, for a considerable length
22 of time. However, this is only one factor to be considered in
23 determining whether such an addition is in the interests of justice. The
24 Chamber finds that the proposed exhibits relate directly to the
25 anticipated testimony of Brown, with whom they might be used, and,
Page 18904
1 therefore, are of a prima facie relevance and probative value.
2 Brown is scheduled to testify in the week of the
3 18th of November. Taking into account the limited length of the
4 documents, except for the Manjaca report which is 81 pages long, and the
5 nature of all the documents, the Chamber finds that the accused will not
6 be unduly prejudiced by their addition to the Prosecution's 65 ter
7 exhibit list at this stage.
8 The Chamber is satisfied that, on balance, it is in the interests
9 of justice to grant the request for addition of the documents to the
10 exhibit list and hereby grants the motion, in part.
11 For the foregoing reasons, the Chamber declares the request to
12 add the document with Rule 65 ter number 30217 to the exhibit list moot
13 and grants leave to add the remaining documents to the exhibit list.
14 And this concludes the Chamber's decision.
15 I would like to deliver another decision which deals with various
16 Defence documents which were MFI'd.
17 The Chamber will now deliver its decision on six exhibits which
18 were MFI'd during the testimonies of Witnesses van der Weijden, Suljevic,
19 Turkusic, and Higgs.
20 D126 is a photograph of a cross-road near Djura Jaksic Street
21 that was marked for identification during the testimony of
22 Witness van der Weijden on the 11th of January of this year. The Defence
23 indicated that the markings on the photograph would be discussed with
24 another witness and indicated on the 1st of October that it would use the
25 exhibit with its ballistic expert witnesses. These submissions can be
Page 18905
1 found at transcript pages 6598 and 17787 respectively.
2 A similar situation exists with D210, a sketch with a suggested
3 shell trajectory that was marked for identification during
4 Witness Suljevic's testimony on the 12th of February of 2013, after the
5 Prosecution had objected to admission on the same grounds. The Defence
6 indicated that it would tender the exhibit again with another witness.
7 And this can be found at transcript pages 8461 and again on page 15098.
8 During Witness Turkusic's testimony on the 30th of August, the
9 Chamber marked for identification two documents: D354, a table related
10 to the reporting of shelling incidents; and D355, a document with four
11 pictures of a stabiliser with red dots and a line. The Prosecution
12 objected to the admission of both exhibits, submitting that they should
13 be tendered with the expert who created them. This can be found at
14 transcript pages 15941 and 942. D354 was addressed again on the
15 4th of September, 2013, when the Defence confirmed the uploading of the
16 translation and proposed that the document remain MFI'd until the
17 testimony of the relevant Defence expert. This can be found at
18 transcript page 16202.
19 Finally, on the 5th of November of this year, two maps with
20 markings depicting the area around Markale market were used by the
21 Defence during the testimony of Richard Higgs. The Prosecution objected
22 to the admission of the first map, submitting that it should be tendered
23 with the expert who created it. The Defence indicated that its experts
24 will probably testify about this issue. These submissions can be found
25 at transcript page 18818.
Page 18906
1 And considering this and other uncertainties related to the
2 measurements on the map, it was marked for identification as D400 at
3 transcript page 18819.
4 The Defence then used a second map with similar content and asked
5 for it to be MFI'd. The Chamber marked for identification the second map
6 as D401. And this is to be found on transcript page 18820.
7 In light of the Defence's submissions that it will use these six
8 documents with Defence witnesses, and in order to avoid having MFI'd
9 documents at the end of the Prosecution's case, the Chamber denies the
10 admission of D126, D210, D354, D355, D400 and D401, without prejudice,
11 and instructs the Registry to change the status of these six documents to
12 marked not admitted and to keep them locked in e-court so that the
13 exhibits and their meta-data are preserved in any case of any
14 re-tendering during a possible Defence case.
15 And this concludes the Chamber's decision on that matter.
16 Can the witness be escorted into the courtroom.
17 [The witness takes the stand]
18 JUDGE ORIE: Mr. Lukic, you may proceed.
19 MR. LUKIC: [Interpretation] Thank you.
20 Q. Mr. Higgs, would you agree with me that members of UNPROFOR who
21 conducted an analysis and who had to know the characteristics of shell
22 trajectories and who had to have firing tables at their disposal?
23 A. I would assume they would have those pieces of equipment, yes.
24 Q. In your findings, when you were determining 900 for charge 1,
25 1600 metres for charge 2, 2400 metres for charge 3, did you also use the
Page 18907
1 firing tables in the process? And, if you did, can you please tell us
2 which ones?
3 A. Yes, I used the firing tables. The M74 firing tables for the
4 120.
5 JUDGE ORIE: The transcript reads M47. I think I did hear the
6 witness say M74.
7 THE WITNESS: Correct, Your Honour.
8 JUDGE ORIE: Yes. Now, M74 refers to the tube used to fire or is
9 it a projectile?
10 THE WITNESS: It's the tube used to fire.
11 JUDGE ORIE: Thank you.
12 Mr. Lukic, we would systematically go through everything. The
13 ranges you took from where in the report, Mr. Lukic?
14 MR. LUKIC: Just a second.
15 It is page 15 in English version, under (i), summary.
16 JUDGE ORIE: Page 15.
17 MR. LUKIC: Fifteen.
18 JUDGE ORIE: One second, please.
19 Yes. Please proceed.
20 MR. LUKIC: [Interpretation]
21 Q. Mr. Higgs, can you tell us whether these firing ranges that
22 correspond to certain charges, did you establish them for M49 shell P1 or
23 for M62 shell? Do you remember that? And did you take this into
24 consideration at all?
25 JUDGE ORIE: Mr. Lukic, there was one question which should
Page 18908
1 precede. M49, does that refer to a type of shell?
2 THE WITNESS: Yes, it does, Your Honour.
3 JUDGE ORIE: Is there one M49 or are there varies versions of
4 M49?
5 THE WITNESS: Not sure on the total range. But in these range
6 tables I believe it refers to just one type of M49.
7 JUDGE ORIE: Yes. Now M62 stands for what?
8 THE WITNESS: That's a different type of projectile.
9 JUDGE ORIE: It's a projectile. It's not a fuse but it's a
10 projectile?
11 THE WITNESS: Correct, Your Honour.
12 JUDGE ORIE: Yes. Then please proceed, Mr. Lukic, but, please,
13 step by step.
14 MR. LUKIC: I apologise for jumping ahead.
15 JUDGE ORIE: Your mind may be quicker than mine, Mr. Lukic.
16 MR. LUKIC: I wish.
17 Q. [Interpretation] Mr. Higgs, in view of the charges and the
18 distances mentioned herein, did you provide an analysis of M49 P1, or
19 M62. Can you tell me now?
20 A. M62.
21 Q. So, according to you, for example, M62 with charge 2, could be
22 fired at the 67-degrees descent angle at a distance of 1600 metres?
23 A. At approximately that range, yes.
24 JUDGE ORIE: Mr. Lukic, I read in the summary that the witness
25 took as a starting point at an angle of approximately 70 degrees. And a
Page 18909
1 few lines before that:
2 "The angle of descent was greater than 76 degrees and was
3 probably nearer to 70 degrees as explained in the report by the Bosnian
4 authorities."
5 When you establish 1600 metre, Mr. Higgs, did you take 70 degrees
6 as the angle of descent or 67?
7 THE WITNESS: I tried to calculate as near as possible to
8 70 degrees. In some of the range tables there were not precise values
9 for that angle. Some were slightly below and some were above. So I
10 tended to use the angle which was the one just above the next one up if
11 there was not a 70 degrees in my -- in my readings because I believe that
12 would give you a -- a truer estimation of the range of the mortar.
13 JUDGE ORIE: Could I stop you there and ask one question.
14 In the first paragraph of your summary, you said:
15 "The angle of descent suggested was greater than 67 degrees and
16 was probably nearer 70 degrees as explained."
17 Now, you tell us now that you took the value closest but beyond,
18 above 70 degrees. Why not the one just below 70 degrees where your
19 starting point was 67, slightly higher, closer to 70, then I would expect
20 you to take the one closest but underneath 70 rather than the one up 70.
21 THE WITNESS: Because of the other factor which effect when
22 you're firing a round, such as the wind, the temperatures, pressures, and
23 so on. Mortars, generally when firing in -- with those conditions,
24 struggle to reach the ranges as per the range tables. So I was worried
25 that by taking the lower -- the angles, that actually the mortar may not
Page 18910
1 be able to have cleared these buildings.
2 JUDGE ORIE: But the wind may have been favourable as well.
3 THE WITNESS: It may, Your Honour --
4 JUDGE ORIE: I mean, what is -- it sounds rather discretionary
5 whether you consider the wind and other circumstances to have a negative
6 or a positive impact.
7 THE WITNESS: Mm-hm. Again, from -- based on my experience,
8 mortars tend to fire short of what is in the range tables. And that was
9 my, in fact, factor why I decided to take the one just above the 70 to
10 give what I believe a more accurate depiction of what the range could
11 have been from the target where those mortars may have been fired from.
12 JUDGE ORIE: What you're telling us is that the tables are not
13 reflecting an accurate average of distance.
14 THE WITNESS: They reflect an accurate ranges of -- well, when
15 they were developed at the set temperature and the information on that
16 day. But, again, as I said from experience, I found that mortars
17 struggle in operational conditions to reach those ranges which is why --
18 which is why I took the -- the elevation slightly above as this shortens
19 the range very slightly by probably 50 to 100 metres.
20 JUDGE ORIE: What could you tell us about the testing
21 circumstances which are at the basis of such a table?
22 THE WITNESS: When firing tables are produced, they are only
23 fired in conditions where minimal wind -- what the course -- the standard
24 temperature, i.e., temperatures closer to 21 degrees on days where they
25 would have a minimal type of barometric pressure as well, so they're
Page 18911
1 trying to reduce as many of the external factors, let's say, on the
2 rounds as possible when they produced the range tables.
3 JUDGE ORIE: Yes. Could I ask you, you said 21 degrees. A
4 higher temperature. Would that extend or shorten the range of a mortar
5 being fired?
6 THE WITNESS: Higher temperatures only give you a slightly longer
7 range.
8 JUDGE ORIE: Yes. Wind, I take it, if it is tail wind, it gives
9 a longer range and if it's head wind it gives shorter range.
10 THE WITNESS: That's correct.
11 JUDGE ORIE: Yes. Now, what were the circumstances on the
12 28th of August, as far as temperature is concerned?
13 THE WITNESS: I haven't got the weather details from that day,
14 Your Honour.
15 JUDGE ORIE: Yes. So August, the Balkans, would there be a fair
16 chance that the temperature would be pretty well beyond 21 degrees?
17 THE WITNESS: It could have been Your Honour, yes.
18 JUDGE ORIE: Would that extend -- that factor alone, would that
19 extend the average as far as trajectory range is concerned?
20 THE WITNESS: Yes, it could have, yes.
21 JUDGE ORIE: Why then apparently take a shorter one where the
22 conditions -- at least this condition, and you do not know about the wind
23 apparently, why adjust that in -- in one direction instead of a careful
24 analysis of circumstances and then to decide whether you should adjust
25 more or less?
Page 18912
1 THE WITNESS: I was basing it on my experience from firing the
2 mortars that they struggled to reach the ranges in the range tables. And
3 that in this case here, for instance, that charge 1 the difference is
4 it's 100 metres between approximately 69 degrees and 72 degrees.
5 JUDGE ORIE: As a matter of fact, I took you in my questions
6 through that experience, that is, the influence of temperature, the
7 influence of wind and -- but apparently you have taken a kind of an
8 overall thing that wind is always against us. Temperature is always
9 against us. And, therefore it will always fall short.
10 THE WITNESS: It's also the factors of the barrels themselves
11 being fired. For wear and tear, again, the older the barrels they will
12 affect the range as well. So just weighing up all those factors I
13 decided to work on the one just above rather than the ones below.
14 JUDGE ORIE: Yes. But not then only above 67 but then even over
15 70.
16 THE WITNESS: Yes, Your Honour.
17 JUDGE ORIE: Yes. Thank you. One short question: The older
18 barrels will affect the range, what does -- explain that? I always
19 thought that the range was primarily defined by the propelling power of
20 the charges, the weight, and the angle, rather than the -- how old the
21 barrels are.
22 Could you explain what causes that?
23 THE WITNESS: Yeah, because the barrels wear with age, depending
24 how many rounds they may have fired. As they wear, obviously the
25 internal dimensions change which there -- and may become marked in
Page 18913
1 different ways which then reduces the pressure in the barrels which then
2 goes to reduce the range that can be achieved.
3 JUDGE ORIE: Yes, I see that some of the pressure leaks out if
4 the barrel is worn out. Thank you for that explanation.
5 Mr. Lukic. I take it that we now go back to the 1600 metres, but
6 I apologise for the lengthy intervention.
7 MR. LUKIC: [Interpretation]
8 Q. Mr. Higgs, yesterday -- or, actually, on Tuesday, I'm sorry, when
9 we were drawing and plotting the lines, was that consistent with the
10 findings that you established? That is to say, that if something was
11 fired from 900 metres that the vertex would be 522 metres. Would that be
12 consistent with your findings?
13 A. Using the M62 range tables, the -- the graphs -- they look
14 similar, but the vertex heights are higher than 522.
15 Q. Thank you.
16 JUDGE ORIE: One additional question.
17 Would it also mean that the range is longer?
18 THE WITNESS: Yes, it is, Your Honour.
19 JUDGE ORIE: Thank you.
20 MR. LUKIC: [Interpretation] Thank you.
21 Q. Now with this, we're going to conclude with Markale II for the
22 time being.
23 Let me now ask something about the Markale I incident marked G8
24 in the indictment. It took place on the 5th of February, 1994.
25 I'd like to play a very short video-clip to you.
Page 18914
1 MR. LUKIC: [Interpretation] And, for that, with the assistance of
2 my colleague, Ivetic, and Ms. Hellman, I would like to call up 1D1424.
3 We're just going to look at a short clip which is about
4 5 seconds. This is from 58.16 to 58.21. We don't need the sound.
5 Please just focus on the shape of the stalls that can be seen at the
6 market-place.
7 We can start, please.
8 After this is removed from the screen, I'd like to have 1D1417,
9 please. This short clip that we saw and the still that was taken from
10 that clip was from November --
11 JUDGE ORIE: Mr. Lukic, I didn't see any video-clip on my screen.
12 MR. LUKIC: Can we try again then.
13 JUDGE ORIE: Yes. It's only 5 seconds.
14 MR. LUKIC: Can we ... if Ms. Registrar can inform us if it's
15 ready. No? Then ...
16 Can we start now, please.
17 JUDGE ORIE: It's --
18 MR. LUKIC: It's not working.
19 JUDGE ORIE: -- a bit surprising that on my right screen, I get a
20 picture which doesn't show on my left screen, where I'm supposed to look
21 at that same e-court.
22 Mr. Weber.
23 MR. WEBER: Your Honour, I believe Ms. Stewart has been, again,
24 kind enough to assist us and she has it available and queued up.
25 JUDGE ORIE: Then I take it that Defence will gladly accept that
Page 18915
1 offer.
2 MR. LUKIC: Of course. Thank you. If we can -- yes, that's it.
3 Just 5 seconds; 58.16 to 58.21.
4 [Video-clip played]
5 MR. LUKIC: [Interpretation]
6 Q. So please just concentrate on the stalls.
7 MR. LUKIC: [Interpretation] And now I'd like to have 1D1417 in
8 e-court, which is a still taken from this video-clip.
9 Q. Do you notice the shape of the stalls? And is it consistent with
10 the shape that was recorded in the police report? Can you recall that?
11 A. I believe these are the same shaped stalls as those I saw in the
12 police report.
13 MR. LUKIC: [Interpretation] Just a moment, please.
14 Can we now have P868 in e-court, please, page 27. And it would
15 be good if we can keep this on the right-hand side and just get the B/C/S
16 version on the left-hand side.
17 Q. Mr. Higgs, towards the bottom of the page, we can see a drawing
18 which shows a different shape of the stall. Did you pay attention to the
19 width of this roof and the position of the stall roof? In other words,
20 that the roofs were flat rather than skewed, as shown in the picture.
21 A. Yes, it seems that in the -- in the sketch, they have shown a --
22 a slope to the roof, whereas, in the photograph, the slope seem probably
23 at a lower angle.
24 THE INTERPRETER: Microphone, please.
25 JUDGE ORIE: Microphone, please, Mr. Lukic.
Page 18916
1 MR. LUKIC: [Interpretation] We'd like to tender this photograph
2 into evidence.
3 JUDGE ORIE: Madam Registrar.
4 MR. WEBER: No objection, Your Honour.
5 THE REGISTRAR: Document 1D1417 receives number D405,
6 Your Honours.
7 JUDGE ORIE: And is admitted into evidence.
8 MR. LUKIC: [Interpretation] In order for this to be even clearer,
9 can we please look at 1D1374.
10 Q. Here, on the right-hand side, we see a photograph showing flat
11 roofs, and we also can see the drawing which is from the police file
12 where the roofs are also depicted in such a way that they seem to be flat
13 and that they are nearly touching each other.
14 JUDGE ORIE: Mr. Lukic, before we continue, what's the origin of
15 the photo to the right? Where does it come from? When was it taken?
16 MR. LUKIC: I ... I have to be honest, that I don't have that
17 data.
18 JUDGE ORIE: Okay. Now, the sketch to the left, where do you see
19 whether they are flat or not? The --
20 MR. LUKIC: On the sketch --
21 JUDGE ORIE: The top end. Yes.
22 MR. LUKIC: On the sketch it is visible that the roofs almost
23 touch each others.
24 JUDGE ORIE: You mean they're very close to each other.
25 MR. LUKIC: Very close.
Page 18917
1 JUDGE ORIE: [Overlapping speakers] ...
2 MR. LUKIC: We see the same [Overlapping speakers] ... of this
3 photo on the --
4 THE INTERPRETER: Overlapping speakers.
5 JUDGE ORIE: Could you please repeat what you said, Mr. Lukic.
6 MR. LUKIC: Yes. We have the same situation with almost touching
7 roofs on the photo on the right-hand side.
8 JUDGE ORIE: Yes. Almost overlapping roofs, isn't it, Mr. Lukic?
9 Just ... let me see. Yes, you said on the picture taken by the
10 police, apart from distance, that they seem to be flat. Now, if I have a
11 90-degree projection downwards you would not see any difference in it
12 being flat or being -- I don't know the English word, but saddle type.
13 Would you agree?
14 MR. LUKIC: But the -- I think that on the -- this picture on the
15 right-hand side, it's visible that they are flat.
16 JUDGE ORIE: Yes. But I think you referred to the police --
17 MR. LUKIC: Sketch.
18 JUDGE ORIE: -- sketch, and my question was about the police
19 sketch. Whether can you in any way --
20 MR. LUKIC: On this sketch obviously you cannot see whether there
21 is any angle.
22 JUDGE ORIE: Okay. So, therefore, that's now clear.
23 Mr. Weber.
24 MR. WEBER: Your Honour, I don't see either -- I don't see the
25 sketch in the police file, so I'm curious if Mr. Lukic could assist with
Page 18918
1 the e-court page number and exhibit number for the sketch. And --
2 JUDGE ORIE: Yes. Let's --
3 MR. WEBER: And also just for clarity, I do not see the image
4 either in the police file.
5 JUDGE ORIE: No. The image apparently was -- Mr. Lukic says he
6 doesn't know where it comes from.
7 [Trial Chamber confers]
8 JUDGE ORIE: Yes. Image or picture seems to be confusing.
9 What we see the photograph on the right, we do not know where it
10 comes from. And the sketch to the left, Mr. Lukic, you're invited to
11 tell us where that is to be found in the police report.
12 MR. LUKIC: Yes. I hope we'll have the answer soon.
13 JUDGE MOLOTO: And while we're --
14 MR. LUKIC: [Overlapping speakers] ...
15 JUDGE ORIE: If such a question comes as the first to my mind in
16 preparing for cross-examination, I think that this should come to your
17 mind as well.
18 MR. LUKIC: I thought I had that reference, but I can see that I
19 don't.
20 JUDGE ORIE: Yes.
21 JUDGE MOLOTO: As you prepare the questions, Mr. Lukic, can you
22 just also help me here with respect to the sketch on the left. I see
23 drawings and I see a few words, some of which I suspect are indicative of
24 the name of the street. There is no -- no labelling on the sketch
25 itself. There is no legend. Therefore, I don't know whether what I'm
Page 18919
1 looking at are roofs at all in the first place. So I would like to be
2 able to -- to make a determination that these are roofs and not just
3 blocks of little drawings on the floor.
4 MR. LUKIC: I hope we'll have that answer soon as well,
5 Your Honour.
6 JUDGE ORIE: We'll wait for it.
7 Please continue, Mr. Lukic.
8 MR. LUKIC: Thank you, Your Honour.
9 If we can have another video now, please. If we -- it's maybe
10 easier for Ms. Stewart to go by ERN number. It's V000-3274-1-A. And we
11 need time from 27 minutes, 18 seconds to 27 minutes 30 seconds. And this
12 is police video. So Sarajevo police video. It's Markale I incident.
13 And if we can start, please.
14 [Video-clip played]
15 MR. LUKIC: This is the -- according to the police video, place
16 of explosion. Of course, roofs are moved. But I think that it's visible
17 and understandable how roofs looked like before the explosion.
18 Q. [Interpretation] Did you check whether it was possible if the
19 stalls and the roofs were so close to each other for a round to be
20 activated on the asphalt; i.e., that it overflew the roofs and get
21 activated between the stalls on the asphalt?
22 A. I've not seen any evidence about the spacings of the -- of the
23 roof before the incident happened. Obviously by basing my report on the
24 police, the number four reports, where I think they determined that the
25 round exploded when it hit the asphalt.
Page 18920
1 Q. [In English] Since it's hard to manipulate with the video, can we
2 have 1D1419, which is, actually, still. We -- that we have right now on
3 our screens. And I would just ask for its admission.
4 JUDGE ORIE: Is that the still we're looking at at this moment
5 or ...
6 MR. LUKIC: The photo should be the same.
7 JUDGE ORIE: Could we have a look it.
8 MR. LUKIC: Yes, it's 1D1419.
9 JUDGE ORIE: Madam Registrar.
10 MR. WEBER: Your Honour, I was just about to jump up because to
11 try to preserve the time reference on the video-clip that we're just
12 paused at. I do see that the -- that this -- this does look like it
13 originates from the same video. However, it looks like the still is --
14 not sure what time marker -- well, I can see it's from a nearby time
15 marker, and it's ... Ms. Stewart still has it on her screen. It's time
16 marker 27 seconds -- excuse me, 27 minutes, 30 seconds, point 5. And the
17 image is slightly different and cropped, but we don't have an objection
18 to the admission of it.
19 JUDGE ORIE: Madam Registrar.
20 THE REGISTRAR: Document 1D1419 receives number D406,
21 Your Honours.
22 JUDGE ORIE: And is admitted into evidence.
23 [Trial Chamber and Registrar confer]
24 JUDGE ORIE: Mr. Lukic, or perhaps also addressing Ms. Stewart,
25 what video were we looking at? What was the 65 ter number, or what was
Page 18921
1 the exhibit number of the video we viewed?
2 MR. WEBER: Ms. Stewart has the ERN as being V000-3274
3 corresponding to what we've been noticed as 1D1422 as the 65 ter.
4 JUDGE ORIE: Now is the video we looked at, is that -- that is
5 not in evidence, Mr. Lukic?
6 MR. LUKIC: Not in evidence yet.
7 JUDGE ORIE: Would you not also prefer -- perhaps the Chamber
8 would prefer to have not only the still but also the video in evidence.
9 Could you take care that it will be uploaded?
10 MR. LUKIC: Yes, Your Honour.
11 JUDGE ORIE: And that Madam Registrar already reserve a number
12 for it now [overlapping speakers] ...
13 MR. WEBER: Your Honour, before it reserving, I actually think it
14 might be admitted if we could just check before assigning a different
15 number.
16 JUDGE ORIE: Yes. If you would please do that then we would
17 refrain from reserving a number at this very moment.
18 Mr. Lukic, you started with your brief exhibit, that was the
19 police sketch and the photograph, do we have to understand that was what
20 was depicted in that photograph resembles in any way the roofs as we find
21 them on the video you've just shown? Because the video seems to show
22 what seems to be solid material, whereas, the photo you've shown, the
23 photo where you said you do not know where it comes from, seems to show
24 soft tissue roofs, or at least if I'm ... you'll understand what puzzles
25 us; that is to draw any conclusions from a photograph. Whereas, what is
Page 18922
1 depicted on the photographs seems to be quite different from what is
2 depicted in the video raises all kind of questions which the Defence
3 should be aware of.
4 MR. LUKIC: I think it's not in dispute that on this video roofs
5 are metal ones [Overlapping speakers] ...
6 JUDGE ORIE: [Overlapping speakers] ... what's then -- what's
7 then the use of showing us totally different roofs?
8 MR. LUKIC: I don't think that I -- I don't know. If -- I don't
9 think that we have cloth roofs before either.
10 JUDGE ORIE: No. But --
11 MR. LUKIC: [Overlapping speakers] ...
12 JUDGE ORIE: If you know that on the 5th of February, that's what
13 you say, it's your assumption or it's your position that there were metal
14 roofs, what's then the use of showing us for whatever purpose totally
15 different kind of roof on photographs apparently inviting us to draw any
16 conclusions from that kind of roofs? Because that's what it's for, I
17 take it.
18 MR. LUKIC: I just wanted to understand better this sketch on the
19 left-hand side. That's was our intention. If we were not successful, I
20 will accept your objection, and I think that -- even this photo is enough
21 for us to understand what was the situation of the day of explosion.
22 JUDGE ORIE: The photograph with the textile roofs or the still
23 from the -- or the still from the --
24 MR. LUKIC: Still from the video.
25 JUDGE ORIE: From the video. Let's move on. Let's move on.
Page 18923
1 JUDGE MOLOTO: I still have a problem, Mr. Lukic, because I don't
2 know how I would make a determination that this is a roof. It looks to
3 me like a side elevation of the wall with steel drawings going up.
4 [Trial Chamber confers]
5 JUDGE ORIE: Please move on.
6 JUDGE FLUEGGE: May I put one observation on the record as well.
7 The photograph with the -- yes, soft roofs - they seem to be
8 soft - they all have the same colour. At the same time, the still from
9 the video, the -- the -- the other roofs after the explosion, appear to
10 have different colours.
11 So I just wanted to put that on the record.
12 MR. LUKIC: Thank you, Your Honours. And I want to -- I think
13 it's obvious that we --
14 JUDGE ORIE: You were not very successful, I think, in comparing
15 the sketch with a photograph. We do not know where it comes from, what
16 time, et cetera, because it depicts a situation which seems to be
17 different from what was found on the Markale market in February 1995.
18 Is that --
19 MR. LUKIC: Yes.
20 JUDGE ORIE: -- a short --
21 MR. LUKIC: Yes.
22 JUDGE ORIE: Okay. Let's move on.
23 MR. LUKIC: Thank you. But I think that this photograph from day
24 of explosion is even more important than that video.
25 JUDGE ORIE: The video and the still are, or will be, in
Page 18924
1 evidence.
2 MR. LUKIC: [Interpretation] And let's just look at 65 ter 1D1375.
3 Q. I believe that this will give us an answer to one of the previous
4 questions and that was whether the roofs were flat or slanted which you
5 couldn't see from above.
6 You saw the supports in the first video. And we measured the
7 angles of -- of the roof supports, and we see that there is a very small
8 aberration there and that it is obvious that the roofs are flat because
9 all the support beams are at the same angle.
10 You can see in the photo that the roofs almost touch each other,
11 so would you agree with all that?
12 JUDGE ORIE: Mr. -- Mr. -- Mr. Lukic, are you really serious?
13 Are you really serious that from that angle you could deduct anything?
14 Let me show it very quickly to you. Same angle. It depends on
15 the length of the tube or the length of the piece of metal.
16 MR. LUKIC: But we --
17 JUDGE ORIE: So, therefore --
18 MR. LUKIC: Sorry.
19 JUDGE ORIE: -- just to ask us just by looking at the angle that
20 it must be flat because the angle is the same is bare nonsense. I hardly
21 every use those words, but I do now. Whether they are flat or not is a
22 different matter. But to conclude that on the basis of almost the same
23 angle is bare nonsense and I can easily demonstrate that to you.
24 [Trial Chamber confers]
25 JUDGE ORIE: Let's leave it to that. Yes? If there is any other
Page 18925
1 reason why we should believe that it was flat, please tell us.
2 MR. LUKIC: I'm sorry --
3 JUDGE ORIE: [Overlapping speakers] ... by the way, could you
4 also tell us what this --
5 MR. LUKIC: [Overlapping speakers] ... I'm sorry that my question
6 was not artfully posed enough so I made you angry, but I think
7 [overlapping speakers] ...
8 JUDGE ORIE: [Overlapping speakers] ... well, not angry. I was a
9 bit --
10 MR. LUKIC: But I think that on this picture --
11 JUDGE ORIE: Yes, I'm sorry. Yes. I said I wasn't angry, I was
12 perhaps slightly upset.
13 MR. LUKIC: Okay.
14 JUDGE ORIE: Please -- but before you further explain, could you
15 tell us where this picture comes from.
16 MR. LUKIC: This picture comes from the video, I think the same
17 video we saw before, only time stamp is different. It's 35 minutes.
18 JUDGE ORIE: And this --
19 MR. LUKIC: [Overlapping speakers]... number --
20 JUDGE ORIE: Is this an area of the market which was not affected
21 by the blast?
22 MR. LUKIC: Yes, obviously.
23 Give me one second. I need that number again.
24 JUDGE ORIE: Well, let's just assume that it's from there.
25 Mr. Weber will have an opportunity to verify that.
Page 18926
1 Then perhaps you put the question in such a way that the answer
2 will assist the Chamber.
3 MR. LUKIC:
4 Q. Mr. Higgs, can you see on this photo that is in front of you that
5 roofs are flat? That's the first question.
6 A. From this photograph, the roofs in this photograph appear to be
7 predominantly flat, yes.
8 Q. Would you also agree with me that on this photo it's obvious --
9 from this photo, it's obvious that there is not much space in between the
10 roofs?
11 A. On this photograph, can't obviously measure but the roofs seem to
12 nearly touch each other. But, of course, that -- I couldn't relate that
13 to the area of the roofs where the round landed.
14 Q. [Microphone not activated]
15 THE INTERPRETER: Microphone, please. Microphone.
16 MR. LUKIC: Just to check whether this photo comes from the same
17 video. Maybe we should see again 1D1422. Time stamp maybe start from
18 34:55 to 35 minutes.
19 [Video-clip played]
20 JUDGE ORIE: Mr. Weber.
21 MR. WEBER: We don't find the image corresponding in that -- that
22 time code.
23 MR. LUKIC: That has to be checked too.
24 JUDGE ORIE: Perhaps during the break. Would that be a
25 suggestion, Mr. Lukic?
Page 18927
1 MR. LUKIC: Yes, Your Honour. Thank you.
2 JUDGE ORIE: Could the witness be escorted out of the courtroom.
3 [The witness stands down]
4 JUDGE ORIE: We take a break, and we'll resume at 25 minutes
5 to 1.00.
6 --- Recess taken at 12.13 p.m.
7 --- On resuming at 12.40 p.m.
8 JUDGE ORIE: Two matters before we re-start with the witness.
9 First, if I used the expression "saddle" in the previous session
10 to indicate the shape of a cover, I do understand that the proper English
11 express is a pitched roof shape rather than a saddle, which is
12 translation of a word commonly used in the -- on the European continent.
13 Mr. Lukic, you are still about to explain to us the radar
14 matters, at least tell us what your understanding of it is.
15 [Trial Chamber confers]
16 JUDGE ORIE: Location [Overlapping speakers] ...
17 MR. LUKIC: [Overlapping speakers] ... what we can do. That's
18 our understanding.
19 JUDGE ORIE: Yes.
20 MR. LUKIC: [Interpretation] Yesterday -- I would like to call up
21 1D1421, please. We created this document ourselves. We could not access
22 Google Earth. We don't know why. Instead, we used Google Maps. But I
23 suppose that aberrations are not significant. We don't know the exact
24 location of the radar. We can only assume -- we found information in
25 Mr. Eric Bleakely's statement. He said that the radar was at the
Page 18928
1 airport. Perhaps the Prosecutor could give us the exact location of the
2 radar. If they can, this may be corrected.
3 However, if the Cymbeline radar was somewhere at the airport or
4 around it, here, we can see a red dotted line the way we understand the
5 radar beam dispersed and caught the signals of shells falling into town.
6 Just for the example, we have plotted the separation line, the
7 Studenkovici village the 220 degrees direction, the 175 degrees
8 direction. Just for your information this is how we understand that the
9 radar beam dispersed.
10 JUDGE ORIE: Yes, I do understand, now at least what your
11 understanding of the situation is. We'll check whether there's a -- or
12 at least the parties will check whether there is a factual basis for
13 that. And I already make one observation at this moment which is, if the
14 dotted line reflects the axis of the radar beam, which is still to be
15 verified, then an axis in itself might not give the clue to any answers
16 because as I understand it what one would need is the beam that is with
17 high height and that you need all that in order to -- to draw if at all,
18 any conclusions, which would then have to be matched with possible
19 trajectories from 220, 240 or 170 or 175 degrees to see how it -- the one
20 affects the other. One would only wish that a three-dimensional
21 simulation could be produced. If there are sufficient -- if there's
22 sufficient information to produce such a three-dimensional simulation.
23 Mr. Weber.
24 MR. WEBER: Your Honours, I appreciate the reason that Mr. Lukic
25 showed this just to explain to the Court what their case theory is. We,
Page 18929
1 of course, don't agree necessarily with the markings and the placements
2 of everything. I think that's clear from Your Honours' comments. And we
3 would just be asking -- consistent with the Chamber's approach that
4 you've taken with Prosecution witnesses, for example, Mr. Hogan, that we
5 actually had to bring in witnesses to verify relationships of places and
6 locations in relation to angles on photographs. So I understand what
7 this was used for today. This has not been used with the present witness
8 so I just want to put that on a the record. And thank you very much for
9 a letting me say that.
10 JUDGE ORIE: Yes, it's not evidence at this moment. It only
11 demonstrates the basis for the questions which were put to witnesses by
12 the Defence. That's how I understand it.
13 MR. LUKIC: Yes, Your Honour.
14 JUDGE ORIE: Then I think we can proceed. Could the witness be
15 escorted into the courtroom.
16 Yes, Mr. Weber.
17 MR. WEBER: Your Honour, during the recess I did check further on
18 the video that we had been discussing regarding Markale I and the
19 Prosecution's records show that the full video has been admitted on the
20 5th of February, 2013, as Exhibit P864 with Witness Sabljica.
21 JUDGE ORIE: Yes. Then that's on the record and there's no need
22 to reserve any further number for the five seconds. Then I'd like to
23 briefly deal with the following:
24 In connection with the testimony of RM507, the Prosecution
25 tendered 153 intercepts. The Prosecution filed a notification related to
Page 18930
1 this tendering on the 4th of November of this year. The Registry is
2 instructed to assign provisional exhibit numbers to these documents and
3 file a memorandum, and the Defence's deadline to respond to this
4 tendering is the 18th of November, 2013.
5 [The witness takes the stand]
6 JUDGE ORIE: Mr. Higgs, welcome back. Mr. Lukic will now
7 continue his cross-examination.
8 MR. LUKIC: I'm sorry for the confusion I created with the
9 different photos but with the help of Ms. Stewart and with knowing the
10 number of the exhibit, P864, we might -- we would like to show the
11 witness the -- some part of this video in between 27:18 to 28:02 and that
12 would clarify many questions still unanswered in regard of the roofs and
13 the area.
14 JUDGE ORIE: Yes. Before we do so, Mr. Weber, is it the position
15 of the Prosecution that the shape of the stalls is accurately reflected
16 in this police report?
17 MR. WEBER: Your Honour, I'd have to check the witness's -- the
18 investigator's testimony precisely, but my recollection, just on the spot
19 here, is that the investigator testified that it was consistent with what
20 they found when they visited the market and conducted the investigation.
21 JUDGE ORIE: Yes. Perhaps for both parties, if a stall with
22 shape A is present on a market, that does not necessarily mean that it's
23 the only type of stall found on a market.
24 Please proceed, Mr. Lukic.
25 MR. LUKIC: Thank you.
Page 18931
1 So if we can start from 27:18 on this video.
2 [Video-clip played]
3 MR. LUKIC: Thank you.
4 And, in connection with that, we should see P868, which is the
5 document. And we need page 13 from this document.
6 JUDGE ORIE: Do we get the B/C/S version? Yes, there we are.
7 MR. LUKIC:
8 Q. Mr. Higgs, would you agree with me that this sketch does not
9 represent correctly the situation on the ground and that's -- those roofs
10 are wrongly depicted on this sketch as having much more space in between
11 them than it was in reality, we saw on that Sarajevo police video from
12 5 February 1994?
13 A. The sketch obviously is not to scale because it shows greater
14 spaces between some of the stalls and so probably is not an accurate
15 representation regarding -- being to scale.
16 JUDGE ORIE: Mr. Lukic, there's an inherent assumption in your
17 question, that it's not the tables that are reflected here but that it's
18 the roofs. Is there any reason for that?
19 MR. LUKIC: No, my mistake, Your Honour. I was thinking the
20 roofs.
21 JUDGE ORIE: You think these are roofs, and you say if they are
22 roofs then it might -- the distance between the stalls might be not
23 accurately reflected.
24 MR. LUKIC: Yes.
25 JUDGE ORIE: Yes. Please proceed.
Page 18932
1 MR. LUKIC: [Interpretation]
2 Q. When you checked the work of the Sarajevo police, did you take
3 into consideration the real layout of the roofs in the Markale
4 market-place and did you also take into account and did you calculate the
5 possibility for a round to pass through the roofs which are so close to
6 each other and to end up exploding on the street?
7 A. When I looked at the police report, there was no evidence that
8 the round had hit a roof or detonated before it hit the surface.
9 JUDGE FLUEGGE: Just to clarify, were you able to establish where
10 the -- the place of impact was? Was it on the street?
11 THE WITNESS: From the -- the crater analysis and the lack of
12 other evidence, yes, it would indicate that the -- the round detonated
13 when it hit the asphalt surface.
14 JUDGE FLUEGGE: On the street?
15 THE WITNESS: The -- the asphalt surface here in the
16 market-place.
17 JUDGE FLUEGGE: In the market-place.
18 JUDGE ORIE: Mr. Lukic, looking at your question, you asked for
19 the possibility for a round to pass through the roofs which are so close
20 to each other -- well, still to be established - but could you tell us
21 what is the diameter of a projectile and the tail-fin? What is the
22 maximum --
23 THE WITNESS: This one was 120-millimetre, Your Honour.
24 JUDGE ORIE: Yes. But what I'm talk about, is that also the
25 diameter of the explosive body? Is that the largest which fits into the
Page 18933
1 tube of a mortar?
2 THE WITNESS: That's the largest dimension across the body. The
3 impact fuse, however, on the end, of course, is a lot smaller diameter.
4 JUDGE ORIE: So what you need, as a matter of fact, is
5 12 centimetres of space between roofs to pass through. Is that correctly
6 understood?
7 THE WITNESS: Correct, Your Honour.
8 JUDGE ORIE: Yes. And then perhaps slightly more because it is
9 slightly on an angle.
10 THE WITNESS: Correct, Your Honour.
11 JUDGE ORIE: Yes. Please proceed. Have you had any way to
12 establish whether there was more or less than 12 centimetres between the
13 roofs of the stalls at the time?
14 THE WITNESS: No evidence to prove what that particular spacing
15 was. I've only got the pictures you've seen after the incident which
16 doesn't really confirm what the spacing was.
17 JUDGE ORIE: Yes.
18 Please proceed, Mr. Lukic.
19 JUDGE MOLOTO: Just as a follow-up, Mr. Lukic.
20 Mr. Higgs, were you able to establish what the -- what material
21 the roofs were made of?
22 THE WITNESS: The only thing I have got to go on is the police
23 reports where -- and the pictures because it wasn't specified but it
24 seems to be of a thin metallic nature.
25 JUDGE MOLOTO: Thank you, Mr. Lukic.
Page 18934
1 MR. LUKIC: [Interpretation]
2 Q. Now that type of round if it had hit any of the roofs, it would
3 have been activated on that thin roof above the stall.
4 A. That is dependant on, of course, how it would have hit the roof.
5 If it had hit it square on, then, yes, you would have expected the -- the
6 fuse to detonate on contact.
7 Q. Did you deal with the minimum descent angle and did you establish
8 what it would have been if the round had exploded in the place where it
9 allegedly hit, according to the police, without having hit the roof of
10 any of the stalls first?
11 A. The descent angles were calculated from, if I remember correctly,
12 the fuse furrow found in the crater. There was no work carried out about
13 it first passing through a roof, to my recollection.
14 Q. You, yourself, didn't deal with that, did you --
15 JUDGE ORIE: Could I -- please answer the question.
16 THE WITNESS: I did not do the detailed investigation, no.
17 MR. LUKIC:
18 Q. Thank you.
19 JUDGE ORIE: Could you tell us, is my recollection right that you
20 said that a fuse would be activated or would cause the body to explode
21 almost immediately, and is my recollection right that you said after 0.05
22 seconds?
23 THE WITNESS: If the roof was -- or hit it square to detonate it,
24 it would have detonated it immediately. The point --
25 JUDGE ORIE: What do you mean by "immediately"?
Page 18935
1 THE WITNESS: Instantaneously. There was no delay. The 0.05
2 that you just mentioned, that is if the round was set on the delay
3 setting.
4 JUDGE ORIE: Okay. Thank you.
5 MR. LUKIC: [Interpretation]
6 Q. Let us now look at the next Defence document, 1D1376.
7 This is a photo taken from the "Sandzak Daily" of Sarajevo. In
8 fact, it was by a Sarajevo correspondent called Mehmet Koca. He took
9 this picture. Can you see this stall which is turned upside down?
10 JUDGE ORIE: Mr. Weber.
11 MR. WEBER: Your Honour, is there a translation available? And
12 also I see there's a bunch of markings on this photo with letters and
13 numbers, and I'm just -- don't -- not seeing what they correspond to.
14 JUDGE ORIE: No, let's wait and see. I mean, we all see that
15 there are some markings which perhaps Mr. Lukic would like to use later.
16 MR. LUKIC: No. I don't know what those markings are. That's
17 the only picture we found.
18 JUDGE ORIE: Okay. The question is whether there's a translation
19 to the text.
20 MR. LUKIC: There is no. But if you want I can read everything
21 that is on this picture.
22 JUDGE ORIE: Well, it depends on whether we would use it. I take
23 it that Mr. Higgs is unable to read what's there.
24 THE WITNESS: No, Your Honour.
25 JUDGE ORIE: Then the Chamber is unable to read it as well;
Page 18936
1 Mr. Weber, same report. So, therefore, we just ignore it. At this
2 moment we look at what seems to be a picture.
3 MR. LUKIC: Yes.
4 Q. [Interpretation] Mr. Higgs, can you see the stall turned upside
5 down which shows the traces of the explosion on the stall? Probably the
6 explosion took place under the stall and therefore overturned it.
7 JUDGE ORIE: Mr. Lukic. Mr. Lukic, you're giving evidence at
8 this moment. Ask the witness whether he sees a stall which is overturned
9 and then -- or perhaps you show to us or ask the assistance of the usher
10 to show where you find a stall which is upside down. I always expect a
11 roof somewhere down, if something has been fallen or turned over. I have
12 not found that yet.
13 Please tell us exactly -- and you can use the markings, as a
14 matter of fact, just to indicate.
15 MR. LUKIC: Let's try to see if Mr. Higgs can see it. If
16 somebody can help him with a pen.
17 JUDGE ORIE: Yes.
18 [Trial Chamber confers]
19 MR. LUKIC: [Interpretation]
20 Q. On this rack, which is at the height of the gentleman's head,
21 there are metal rods in the upper part of the wooden section.
22 A. I -- I can see the table in the centre. Do you mean this table?
23 Q. [In English] Yes.
24 JUDGE ORIE: That's -- that then, apart from marking, we can use
25 it just -- I do understand that the witness refers to what seems to be a
Page 18937
1 surface which is found approximately where D1 is indicated.
2 MR. LUKIC: Yes.
3 JUDGE ORIE: And that the assumption of the Defence is that that
4 is the table of the stall upside down so that you can see the support
5 metal rods above it --
6 MR. LUKIC: Yes.
7 JUDGE ORIE: -- where, under normal circumstances, you would
8 expect it to be under it.
9 MR. LUKIC: Yes.
10 JUDGE ORIE: Okay. Are we all on one line?
11 Please proceed, Mr. Lukic.
12 MR. LUKIC: [Interpretation]
13 Q. Can you see in the left-hand side of the photograph on this
14 wooden plank, that some parts of it are burned by the explosion?
15 A. From the photograph, I couldn't confirm if these are burns. It
16 seems to be darkened, but I don't know whether that is from the
17 explosion.
18 JUDGE MOLOTO: But can you confirm whether they're wooden,
19 Mr. Higgs? Can you confirm whether that is a wooden material?
20 THE WITNESS: I can't, Your Honour. I don't know what they're
21 made of.
22 JUDGE MOLOTO: Thank you.
23 MR. LUKIC: [Interpretation]
24 Q. Did you visit the Markale market-place? Did you ever establish
25 what kind of material used -- was used to manufacture these stalls?
Page 18938
1 A. Not the manufacture of the stalls, no.
2 Q. This trace that we see on the table, which is marked as D1 in
3 this photo, could this trace have been made as a result of an explosion?
4 A. That is difficult to answer. If it is scorch marks on the
5 underside, then possibly it could be.
6 Q. Thank you. I'm not going to trouble you any longer with this
7 because we are obviously in the area of guess-work.
8 With the assistance of Ms. Stewart, since obviously we are having
9 problems with our computer today, I would like to show you P864. That's
10 the police video. Starting from 8 minutes, 45 seconds to 9 minutes,
11 8 seconds.
12 JUDGE ORIE: I'm not seeing anything at this moment. Yes, there
13 we start.
14 Please proceed.
15 MR. LUKIC: We start.
16 [Video-clip played]
17 MR. LUKIC: [Interpretation]
18 Q. What we saw at the beginning, is that a usual place for a
19 stabiliser to be embedded into the surface and covered with debris?
20 A. Now, depending on the type of surface, a stabiliser can dig in
21 different distances. When it goes below ground level, you normally find
22 debris on the top of the stabilisers.
23 Q. Would you, in fact, agree with me, that a stabiliser, once it is
24 embedded, it thrusts out the material from the hole that it has made and
25 that, as a result, the stabiliser remains visible?
Page 18939
1 JUDGE ORIE: Mr. Lukic, that question has been implicitly
2 answered by the witness, that if it embeds deep enough to the stabiliser
3 to be below the surface, that then debris would then cover what is there.
4 So that answers your question.
5 Please proceed.
6 MR. LUKIC: Thank you, Your Honour.
7 Q. [Interpretation] In this still photo --
8 MR. LUKIC: If I can consult with Mr. Mladic just for one minute.
9 JUDGE ORIE: Yes, if you -- but you know the conditions. Low
10 volume, inaudible for anyone else.
11 [Defence counsel and Accused confer]
12 JUDGE ORIE: Not audible, I said.
13 Mr. Mladic, non-audible.
14 MR. LUKIC: [Interpretation]
15 Q. Mr. Higgs, in this photo, can you see the traces, rectangular
16 traces, which are imprinted into the ground, as if something had been
17 placed at the point of impact and left a trace behind it --
18 JUDGE ORIE: Mr. Lukic, you can ask the witness whether he sees
19 something and then to say that it was posted there by the president of
20 republic X or Y is just inappropriate suggesting anything, and apparently
21 you are -- if you want to put your theory to the witness, first ask him
22 what he sees. And then say, It's the Defence's theory that this and this
23 happened. Is there anything in what you see which either confirms or
24 denies that.
25 That's the way of doing it.
Page 18940
1 MR. LUKIC: Thank you, Your Honour.
2 Q. [Interpretation] So, sir, can you see a rectangular trace in the
3 ground surface which is wider than the place where the shell was found?
4 A. No, not clearly.
5 JUDGE ORIE: Mr. Lukic, if you want the assistance of the usher
6 to -- for example, that the arrow to see, then you can guide the usher so
7 as to draw the attention of the witness to a specific portion.
8 But this is video, I think, and that's perhaps where it is not
9 possible. You should make a still first and then you can enjoy the
10 assistance of those who are technically involved.
11 Please proceed.
12 MR. LUKIC: There is still, but it is black and white in P868 on
13 page 40. So, yes, I would like to have still from this video, if
14 possible.
15 JUDGE ORIE: Well, if that's the number, P868, on page 40 --
16 MR. LUKIC: Yes --
17 JUDGE ORIE: -- may I take it there's a possibility to mark just
18 one page of a document or should it be separated from the remainder of
19 it?
20 MR. LUKIC: We were watching video and this page is in black and
21 white. I just --
22 JUDGE ORIE: Okay --
23 MR. LUKIC: But.
24 JUDGE ORIE: Proceed as you deem fit.
25 MR. LUKIC: I don't know, have we saved this still?
Page 18941
1 JUDGE FLUEGGE: [Microphone not activated] You would have to
2 upload it.
3 [Defence counsel confer]
4 MR. LUKIC: Now my colleagues are yelling at me as well.
5 JUDGE ORIE: I'll try to calm them down, Mr. Lukic.
6 MR. LUKIC: [Interpretation]
7 Q. All right. So you said that you can't see anything embossed in
8 the surface. Let's move on.
9 MR. LUKIC: [Interpretation] We need P868, page 62 in the B/C/S
10 and 61 in the English version.
11 Q. Mr. Higgs, this is a stabiliser that was allegedly collected at
12 the Markale market-place on the 5th of February, 1994.
13 MR. LUKIC: [Interpretation] If it is possible, I would like this
14 to be on the record that, tomorrow, the Registry provide us with the
15 actual artefact which is in their possession so that we can display it
16 here in the courtroom.
17 [In English] That's the application. I don't know how to
18 proceed, whether you have to approve, Your Honour.
19 JUDGE ORIE: The mere fact that Madam Registrar was nodding yes
20 seems to be the confirmation that she will take care of it, but ...
21 [Trial Chamber and Registrar confer]
22 MR. WEBER: Your Honour, just...
23 JUDGE ORIE: Mr. Weber, I am informed by Madam Registrar that
24 there is one administrative matter related to it. The tail-fin appears
25 in various cases. And in order to bring it to the courtroom it should be
Page 18942
1 clear in which case the original, at this moment, is administered as a
2 piece of evidence.
3 If you could tell us, Mr. Weber.
4 MR. WEBER: Your Honour, that's exactly what I was going to
5 assist with.
6 Artefact number A, as in apple, 0006279 has been admitted
7 previously in the case of Prosecutor versus Galic as Exhibit P3624. And
8 that is the number that we have corresponding to the stabiliser being
9 requested at the time.
10 JUDGE ORIE: Yes. Then we would borrow it from the Galic case, I
11 take it, to be brought into the courtroom. We'll see it tomorrow.
12 MR. LUKIC: Thank you for your help, Mr. Weber.
13 Q. [Interpretation] Mr. Higgs, in this photograph, according to you,
14 how long is this remaining part of the stabiliser?
15 A. Do you mean the length?
16 Q. [In English] Yes.
17 A. I didn't carry out the measurements of this. I believe the
18 detailed measurements were taken by the Bosnian authorities in their
19 detailed investigation.
20 Q. [Interpretation] Have you ever come across this method of
21 establishing length, if --
22 THE INTERPRETER: Can Mr. Lukic please repeat the word? We
23 couldn't understand it.
24 JUDGE ORIE: The interpreters had difficulties. You said:
25 "Have you ever come across this method of establishing length,
Page 18943
1 if ..."
2 What you did add anything? If ...
3 MR. LUKIC: If you -- if you haven't, that's fine.
4 JUDGE ORIE: Okay.
5 THE WITNESS: You would normally just measure this with a ruler,
6 if you have the artefact.
7 MR. LUKIC: [Interpretation]
8 Q. But when you are taking a photo, is that a customary method to
9 divide it by 1 centimetre? If it is not a customary procedure in your
10 work, I can accept that.
11 A. If I had the artefact then I wouldn't need to take the
12 measurements from a photograph.
13 Q. [In English] Okay. Fair enough. But you heard that there is
14 some kind of danger that we might not get it tomorrow. But, anyways ...
15 JUDGE ORIE: Mr. Lukic, could you tell us what the issue is. It
16 is totally unclear to me. I mean --
17 MR. LUKIC: The issue is that according to the photo it appears
18 that this left-over of tail-fin is 21 centimetres. And that's what the
19 authorities of Bosnia-Herzegovina were trying to establish. The fields
20 are not properly distributed and we'll see tomorrow that the length of
21 that stabiliser is much less.
22 JUDGE ORIE: Mr. Lukic, from this picture, it does not appear at
23 all that it's 21 centimetres. Where do you find it? Yes, of course, if
24 you [Overlapping speakers] ...
25 MR. LUKIC: [Overlapping speakers] ... 1 centimetre wide.
Page 18944
1 JUDGE ORIE: Of course, you should take that in one surface. If
2 you want to say that the fins that are facing us that they should be
3 taken into account as well, then you do not understand the dynamics of
4 photography.
5 Where I would start is to the very left tail-fin which seems not
6 to be in a specific projection, but again proceed as you deem fit.
7 MR. LUKIC: There were some claims about the length of this
8 tail-fin and --
9 JUDGE ORIE: Whatever that is, we'll have it tomorrow. We'll be
10 able to measure it.
11 MR. LUKIC: Thank you.
12 I think it's a break time.
13 JUDGE ORIE: It is. We'll take a break, and we will -- after the
14 witness has left the courtroom, we will resume at quarter to 2.00.
15 [The witness stands down]
16 JUDGE ORIE: We take a break.
17 --- Recess taken at 1.23 p.m.
18 --- On resuming at 1.46 p.m.
19 JUDGE ORIE: Could the witness be escorted into the courtroom.
20 Meanwhile, I use the time for the following, related to P1426:
21 The Chamber will now turn to the admission of P1426. On the
22 8th of May, 2013, during the testimony of Robert Franken, two pages from
23 the document bearing Rule 65 ter 19420 were admitted into evidence as
24 Exhibit 1426 pending their uploading into e-court as a separate exhibit.
25 The Chamber notes that the relevant pages have since been uploaded as
Page 18945
1 65 ter 19420a and therefore confirms the admission of P1426.
2 Mr. Lukic, you may proceed.
3 [The witness takes the stand]
4 MR. LUKIC: [Interpretation] I have finished with the Markale I
5 incident. All I have to do is to give a reference. We tendered a photo
6 marked 1D1375, and a question was asked of me about the provenance of it,
7 and it is a still from a video-clip that we received from the
8 Prosecution, V000-0350. It is on the timer between 4 minutes,
9 45 seconds, to 4 minutes, 49 seconds.
10 JUDGE ORIE: Yes. And do you have already an answer to the
11 question where the soft roofed stalls image comes from?
12 MR. LUKIC: I know about the sketch. Sketch is from Galic case,
13 not from our case.
14 JUDGE ORIE: Prepared by whom?
15 MR. LUKIC: Done by Berko Zecevic, at that time expert by the
16 Prosecution.
17 JUDGE ORIE: Yes, and the picture comes from?
18 MR. LUKIC: I have -- we were not -- we haven't located the exact
19 source for this one.
20 JUDGE ORIE: Okay. Thank you for that information.
21 [Trial Chamber and Legal Officer confer]
22 JUDGE ORIE: And, Mr. Lukic, you do not intend to tender them?
23 MR. LUKIC: Actually, I do.
24 JUDGE ORIE: Actually you do. But then we would have to --
25 MR. LUKIC: [Overlapping speakers] ... only the picture. This
Page 18946
1 picture that we know the source that comes from the video. It's 1D1375.
2 JUDGE ORIE: Mr. Weber.
3 MR. WEBER: Your Honour, I recognise the photo coming from past
4 expert report. I believe from, Ms. Subotic, who I believe the Defence
5 may call and I'd like to cross-examine on it based on some conclusions
6 that she reaches with it. So if could not tender it at the time, or I --
7 I have no dispute over the video which has been admitted as P1899. And
8 counsel read in the time code. But I believe that there's things that
9 the witness -- that this witness hasn't confirmed on it.
10 JUDGE ORIE: Let's keep matters separate.
11 You do not tender the combined photograph and what you say comes
12 from the Galic case, the sketch. Is that true?
13 MR. LUKIC: That's true, Your Honour.
14 JUDGE ORIE: Okay. Then the only thing we then need is to know
15 whether you want to tendered the still from a video, which is marked with
16 these angles --
17 MR. LUKIC: Yes --
18 JUDGE ORIE: -- where I said the angles are nonsense, but perhaps
19 what we see of the remainder of the -- there, of course, the witness
20 expressed himself on it.
21 Madam Registrar, is it -- we are talking, I think, about 1D1375.
22 MR. LUKIC: Yes.
23 JUDGE ORIE: And that would receive number ...
24 THE REGISTRAR: Number D407, Your Honours.
25 JUDGE ORIE: And is admitted into evidence.
Page 18947
1 If it's just about the roofs, Mr. Lukic, the Chamber could have
2 seen that as well. It's not less experienced than looking at photographs
3 than the witness, because roofs has got nothing to do with mortars in
4 itself.
5 Please proceed.
6 MR. LUKIC: Thank you, Your Honour.
7 Q. [Interpretation] Mr. Higgs, now I would kindly ask you to focus
8 on the incident of the 4th of February, 1994, in Dobrinja. That means an
9 incident which happened a day before the Markale I incident.
10 You visited the scene in Dobrinja; is that correct?
11 A. That's correct.
12 Q. Can you tell us when did you visit the scene?
13 A. If I remember correctly, I think 2001.
14 Q. [In English] I think so. [Interpretation] Do you remember who
15 accompanied you when you went to the scene?
16 A. I can't remember the names of the people. It was two
17 investigators from the ICTY.
18 Q. Was Mr. Refik Sokolar with you; can you remember?
19 A. That name doesn't come to memory, no.
20 Q. Would you agree that even from your report, it can be inferred
21 that did you not check the accuracy of the results of the investigation
22 but, rather, you accepted the findings of the Sarajevo police; is that
23 correct?
24 A. I'm looking at their report. Yes, I had no reason to disbelieve
25 their report.
Page 18948
1 Q. What was the basis for your trusting their report, having no
2 suspicion about it?
3 JUDGE ORIE: Next question, please, Mr. Lukic.
4 MR. LUKIC: Okay.
5 Q. [Interpretation] Do you agree that investigative organs
6 established that the rounds that had been fired from the direction east,
7 i.e., from the location of the Energoinvest factory?
8 A. I think from their investigation, they came to the conclusion it
9 was east to -- east/south-east was the general direction.
10 MR. LUKIC: [Interpretation] I'd like to call up P867, please.
11 In both versions of the document, I need page 8.
12 Q. This is a report, an official report, dated 5 February 1994. It
13 was compiled by the Sarajevo CSB, Security Services Centre, that is.
14 First look at the names and then below the names there's a very short
15 paragraph followed by a somewhat longer paragraph where it reads as
16 follows, and I'm going to read it for you:
17 "On the site, we established that three projectiles have been
18 fired out at around 1130 hours from the enemy positions from the
19 direction of east (Lukavica Energoinvest complex)..."
20 Do you see that in this report members of the Sarajevo police
21 found that the projectiles had been fired from the east? In your report,
22 you stated that the shell had been launched from the direction
23 east/south-east. That's on page 9 of your report.
24 A. That's correct. In one of -- again of these reports here, and I
25 can't remember which one, is where they report the direction is somewhere
Page 18949
1 between east and east/south-east which is why I have included it into my
2 report.
3 Q. Would you agree with me that the findings of the Bosnian organs
4 had to be checked because obviously the police that went to the site of
5 the incident established that the direction of the shell was east. And
6 you say that you didn't check their findings. You just trusted them.
7 Would you agree with me that that probably isn't the best
8 approach, that it is not the right approach to the matter?
9 A. I didn't check the numbers because obviously I was not there and
10 could not do a detailed investigation, and I worked off the numbers and
11 the directions are given to me in the various reports.
12 Q. And who was it who selected the report that you would trust?
13 Because obviously we have two contradictory reports.
14 A. Well, in my report, I have included both directions which is why
15 I have said from east to east/south-east because from my recollection on
16 looking at the various reports, not all of them came up with a -- a
17 really specific direction of fire.
18 Q. Since you were, indeed, there, I will ask you to look at a
19 Google Earth image, which is 1D1407.
20 Please look at the map and tell us whether you can mark the area
21 where the round fell. Are you that familiar with the area? Would you be
22 able to do that?
23 A. No, I'm not that familiar with the area.
24 Q. If we were to mark the area where the projectile fell on this
25 map, you will see that the Energoinvest factory is to the east of that
Page 18950
1 area.
2 Did you try to establish the impact area with respect to the
3 Energoinvest factory?
4 JUDGE ORIE: Mr. Lukic, you're telling the witness what he will
5 see if you would do something and you asked him whether he verified
6 anything.
7 If there's anything -- and the Chamber would like to follow the
8 evidence as well, so if you think you could mark it and if the
9 Prosecution would agree that that would be the place where the shell
10 impacted, then we could see what we -- and then we have to identify where
11 the Energoinvest is, and then we can see whether it's east or almost east
12 or south or whatever.
13 MR. WEBER: Your Honour, I don't know if it would be more
14 beneficial just to use the Prosecution's map book if counsel would be
15 willing to do that, that way that the spot of the shelling, at least as
16 marked in the -- on page 32 of P3 under G7.
17 JUDGE ORIE: Yes. Would we there also have the Energoinvest
18 building or ...
19 MR. WEBER: No, Your Honour.
20 JUDGE ORIE: No. Then for the first step, it might assist,
21 unless there's dispute about it, but, Mr. Lukic, if you would have a look
22 at it, unless you have prepared everything in such a way that you -- on
23 your guidance we could seek an agreed position of impact.
24 I leave it to you.
25 MR. LUKIC: I have printed copy in black and white with markings.
Page 18951
1 JUDGE ORIE: As I said, I leave it to you. Proceed as you deem
2 fit.
3 MR. LUKIC: But the witness said that he is not familiar with the
4 area. I don't think I can get much from him.
5 JUDGE ORIE: Not for the location. But if you have any follow-up
6 questions then -- there was something about direction as well, isn't it?
7 And the witness has visited the spot, so even if he cannot plot it on a
8 map, he might consider whatever you would like to put to him in this
9 context.
10 But, again, I leave it to you.
11 MR. LUKIC: [Interpretation] And now I'd like to use another
12 photo. It's 1D1407.
13 JUDGE MOLOTO: 1D1407 is the one that is on the screen,
14 Mr. Lukic.
15 MR. LUKIC: Then it must be enlarged.
16 Q. [Interpretation] Do you know, Mr. Higgs, that in the direction
17 north, there was a territory which, at the time, was under the control of
18 the BiH army? And I'm talking in connection or with respect to the place
19 where the shell exploded.
20 JUDGE ORIE: Mr. Lukic, the witness said he is unable to plot
21 that on the map. So without your assistance, we would be lost. Because
22 the witness would not know where to look. At least that's how I
23 understand matters.
24 MR. LUKIC: [Interpretation] Thank you. Thank you. Let's look at
25 P867 then.
Page 18952
1 Q. Did you review this report; do you remember? This is actually
2 our compilation of various documents.
3 A. The documents I used are the ones I referenced to. I don't know
4 if this is one of those.
5 MR. LUKIC: Let's go to page 19 first. And in English version,
6 it's page 20.
7 [Interpretation] On the right-hand side, in the English version,
8 there are translations, but the letter S is missing, and so is the arrow.
9 Q. The S in question in the reports or, rather, in the sketches, are
10 you familiar with this letter and what it represents? Does it represent
11 north or south? Look at the B/C/S version. In the left upper corner,
12 there's a letter S with an arrow going through it.
13 A. No, not familiar with this method of indicating them.
14 Q. You wouldn't be able, therefore, to tell us in this sketch where
15 the direction east would be.
16 A. Not from this sketch, because I can't see any identifying
17 directions pointing to either north, south, east, or west.
18 Q. You didn't check? As a matter of fact, in the work of the
19 Sarajevo police, the north was erroneously established and marked.
20 JUDGE ORIE: Mr. Weber.
21 MR. WEBER: I'm going to object to that. That's not correct.
22 JUDGE ORIE: Mr. Lukic, should the witness give evidence or
23 should you give evidence?
24 If there's any erroneous establishment of a direction, then I
25 think one of the simplest thing in life to do is to establish that
Page 18953
1 together. Isn't it? North is north. And south is south. And if it's
2 wrong on map, then I would even spend my early morning hours on
3 establishing that --
4 MR. LUKIC: Okay.
5 JUDGE ORIE: -- and Mr. Weber certainly would do as well.
6 MR. LUKIC: [Interpretation]
7 Q. Mr. Higgs, did you manage to established that according what is
8 stated in the official report and according to this sketch, the shells
9 had actually been launched from the positions of the BiH army?
10 JUDGE ORIE: Did you establish from where the shells were
11 launched, Mr. Higgs?
12 THE WITNESS: No. From the data all we could find from the
13 reports was the calibre and the approximate direction. But we had no
14 range calculations.
15 JUDGE ORIE: Yes. Next question, please, Mr. Lukic.
16 MR. LUKIC: [Interpretation]
17 Q. Is it correct that the police did not investigate the impact
18 position in the Oslobodilica Sarajevo Street number 8, although there
19 were casualties, both killed and wounded, as a result of the explosion of
20 that shell?
21 JUDGE ORIE: What now is your question, whether the police
22 investigated something? How would this witness know? I think I take it
23 that he has read reports but how would the witness possibly -- unless he
24 has any specific knowledge about that.
25 THE WITNESS: No, Your Honour.
Page 18954
1 JUDGE ORIE: Then please put a question which can be answered by
2 the witness, Mr. Lukic.
3 MR. LUKIC: [Interpretation]
4 Q. If that would have, indeed, been the case, would you agree with
5 me that that investigation was neither needed nor necessary?
6 JUDGE ORIE: No hypothetical questions.
7 Mr. Lukic, if you want to criticise what the local police did,
8 you have an ample opportunity to do so, but do it in the appropriate way
9 and not through this witness who, apparently, has no knowledge about it.
10 MR. LUKIC: [Interpretation]
11 Q. I would like to call up your own statement, P2605, please. We
12 need page 9 in English and page 14 in the B/C/S translation of your
13 report.
14 Under 7, in paragraph 2, you say:
15 "It seems that the investigation was detailed. I have no reason
16 to suspect any of its findings. That is why it can be said with
17 certainty that the weapon fired was a 120-millimetre mortar and that the
18 direction of fire was east to east/south-east."
19 Mr. Higgs, you didn't really check whether the investigation was
20 detailed or not, to say the least, and whether it was thorough and
21 accurate.
22 A. All I could work from was the data I was given from the
23 investigation reports, and it was from those reports that I made my
24 conclusions.
25 JUDGE ORIE: Mr. Lukic, I'm looking at the clock. But before
Page 18955
1 adjourning for the day, the report says:
2 "The investigation seems to be thorough, and I have no reasons to
3 doubt any of the findings."
4 Now, apparently the Defence takes a different position. Then
5 please provide us with the information that the witness was wrong in his
6 assumption. Don't ask the witness whether he is wrong. Provide the
7 information that it was wrong, and that, of course, could then well
8 undermine the witness's conclusions. And once we have established that
9 there is something wrong, and what is wrong, then the next step would be
10 to find out in what way it affects the finding of this witness. That is
11 the systematic approach to the issue you apparently - and perhaps
12 rightly - want to raise. The Chamber is interested in such a systematic
13 approach.
14 We leave it for that at this very moment.
15 Mr. Higgs, we'd like -- one more question.
16 Mr. Weber, as matters stand now, how much time you think you
17 would need for re-examination?
18 MR. WEBER: One session.
19 JUDGE ORIE: One session.
20 Mr. Lukic, the Chamber has carefully monitored the way in which
21 your cross-examination was conducted, and the Chamber invites you to
22 agree with Mr. Weber on a schedule for tomorrow so that we can conclude
23 the testimony of this witness tomorrow.
24 You would have a little bit over -- approximately three and a
25 half hours, a little bit less, remaining. But you should skip all the
Page 18956
1 questions that are useless and doesn't bring the case any further. And
2 my estimate would be that on the questions you have put to the witness
3 until now, that would be -- if not more, at least 30 per cent of the
4 issues in questions you are raising.
5 Could the witness -- I would like to instruct you, Mr. Higgs,
6 same instruction as Wednesday, that -- on Tuesday, that you should not
7 communicate in any way, with whomever about your testimony, and we'd like
8 to see you back tomorrow morning at 9.30 in this same courtroom.
9 [The witness stands down]
10 JUDGE ORIE: We adjourn for the day, and we'll resume Friday, the
11 8th of November, 9.30 in the morning, in this same courtroom, III.
12 --- Whereupon the hearing adjourned at 2.19 p.m.,
13 to be reconvened on Friday, the 8th of November,
14 2013, at 9.30 a.m.
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