1 Monday, 7 August 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 8.59 a.m.

5 JUDGE BONOMY: Good morning, everyone. While we await the arrival

6 of the witness, can I invite you to introduce to me any new personnel who

7 appear. I think there's at least one change of personnel since we were

8 here before.

9 Mr. Bakrac.

10 MR. BAKRAC: [Interpretation] [No interpretation].

11 JUDGE BONOMY: Hold on a second, there's no interpretation.

12 THE INTERPRETER: Can you hear the English channel now?

13 MR. BAKRAC: [Interpretation] The Defence of General Lazarevic has

14 been joined by Mr. Djuro Cepic as co-counsel and from now on he will be

15 sitting in the courtroom with me.

16 JUDGE BONOMY: Thank you, Mr. Bakrac.

17 [The witness entered court]

18 JUDGE BONOMY: Good morning, Mr. Abrahams. You are aware, of

19 course, that the solemn declaration you took, what is now just over three

20 weeks ago, continues to apply to your evidence until it finishes.

21 THE WITNESS: Yes, I am.

22 JUDGE BONOMY: Thank you.

23 Mr. Bakrac to continue his cross-examination.

24 MR. BAKRAC: [Interpretation] Thank you, Your Honour.

25 WITNESS: FRED ABRAHAMS [Resumed]

1 Cross-examination by Mr. Bakrac: [Continued]

2 Q. [Interpretation] Good morning, Mr. Abrahams. I will continue from

3 where we broke off on the 15th of July this year. That is to say, before

4 the court recess we talked about some of the conclusions you drew on the

5 basis of investigations that you said were appropriate in your assessment.

6 Is that what you said, that your conclusions were appropriately made?

7 A. That is to the best of my recollection, yes.

8 Q. Mr. Abrahams, I'm interested in the following. Do you know how

9 many verifiers were on the Kosovo Verification Mission and do you know

10 when they came to the territory of Kosovo?

11 A. I believe the verification mission began in October 1998; at least

12 that's when the agreement was signed. I'm not sure exactly when the first

13 monitors hit the ground. Of course they supplemented a team already in

14 Kosovo, the KDOM, Kosovo Diplomatic Observer Mission. And to the best of

15 my recollection the KVM mission had, if I'm not mistaken, it was 2.000

16 monitors, but I truly do not recall the precise figure.

17 Q. So before the Kosovo Verification Mission, KDOM was there, the

18 Diplomatic Observer Mission, that also involved a certain number of

19 people. Is that right? I mean a larger number of people. Is that right?

20 A. What do you mean, "larger number of people"?

21 Q. Well, let that be my question. How many people were on the KDOM

22 mission in Kosovo; do you know?

23 A. I don't know.

24 Q. Mr. Abrahams, do you know that among these 2.000 people on the

25 verification mission there were a large number of, say, German observers?

1 A. I could not give you the precise breakdown by nationality, but I

2 do believe that Germans were a part of the delegation or the mission.

3 Q. Will you agree with me if I say, in view of the number of the

4 verifiers, that the foreign ministries of some countries, especially

5 NATO-member countries, had relevant information about what was going on on

6 the ground?

7 A. I truly cannot speak to what governments knew or did not know in

8 Kosovo.

9 Q. Well, that was not my question, what they knew I mean. I'm just

10 asking if you will agree with me that through their verifiers they could

11 have had relevant information about what was going on in Kosovo, even

12 before October 1998 and especially as from October 1998 onwards?

13 JUDGE BONOMY: Mr. Abrahams, do you know the relationship between

14 verifiers and the governments of the countries from which verifiers come?

15 THE WITNESS: The precise nature of the relationship I do not

16 know, Your Honour.

17 JUDGE BONOMY: The witness isn't in a position to answer that

18 question, Mr. Bakrac.

19 MR. BAKRAC: [Interpretation]

20 Q. Well, Mr. Abrahams --

21 MR. BAKRAC: [Interpretation] Actually, now I would like Defence

22 exhibit PD1 to be shown on e-court.

23 JUDGE BONOMY: Does that mean 6D1?

24 MR. BAKRAC: [Interpretation] No -- actually, 5, 5D1.

25 JUDGE BONOMY: I see what you've got on the screen. Where is this

1 evidence leading, Mr. Bakrac? What is the point that you're trying to ask

2 the witness about, until I see whether in fact this is a witness who can

3 deal with this sort of evidence you're trying to lead?

4 MR. BAKRAC: [Interpretation] Your Honour, I wanted to put

5 intelligence reports to the witness, intelligence reports of the countries

6 involved that are quite contrary to what he reported about. I mean on the

7 basis of which reports were made of the Human Rights Watch, that is. So

8 on the basis of three or four 15-day tours of the area, where he either

9 carried out investigations on his own or with somebody else.

10 JUDGE BONOMY: I understand. Carry on.

11 MR. BAKRAC: [Interpretation]

12 Q. Mr. Abrahams, what you see before you is an excerpt from official

13 documents obtained from the International Lawyers Association Against

14 Nuclear Armament. What I'm going to read out to you are three brief

15 decisions. II, intelligence reports from the foreign ministry of

16 January 12, 1999, addressed to the administrative court in Trier. "Even

17 in Kosovo an explicit political persecution linked to Albanian ethnicity

18 is not verifiable. The east of Kosovo is still not involved in armed

19 conflict. Public life in cities like Pristina -- public life in cities

20 like Pristina, Urosevac, Gnjilani, et cetera, has, in the entire conflict

21 period, continued on a relevantly normal basis. The actions of the

22 security forces were not directed against the Kosovo Albanians as an

23 ethnically defined group, but against the military opponent and its actual

24 or alleged supporters."

25 So this is a decision of the administrative court in Trier

1 Az: 514 --

2 THE INTERPRETER: The interpreter did not get the number; it was

3 read out too fast.

4 MR. BAKRAC: [Interpretation] IV, opinion of the administrative

5 court of Bavaria of the 29th of October, 1998. "Status reports of the

6 Ministry of the Interior dated the 6th of May, 8th of June, and the 13th

7 of July, 1998, presented to the appellant in terms of -- do not allow for

8 the possibility of collective persecution against the Albanians, even

9 regional collective persecution -- even that cannot be established with

10 sufficient certainty" --

11 MR. STAMP: I think -- I'm not really objecting, but I think for

12 clarity. I think counsel is moving from bits to bits on the document

13 referring to various extracts on various dates, and the e-court picture is

14 not moving to where he's referring. So if he could take things step by

15 step, one extract and then the next extract so we could see what he's

16 referring to. That's all I ask.

17 JUDGE BONOMY: I think the point is well made, Mr. Bakrac.

18 MR. BAKRAC: [Interpretation] Yes, Your Honour, I concur with what

19 my colleague said, and I do apologise. At the very outset I said that

20 this was paragraph IV of the relevant document, that is to say, the

21 opinion of the administrative court in Bavaria, October 1998. Az: 22 BA

22 94.34252.

23 JUDGE BONOMY: Well, we have the relevant passage now clearly on

24 the screen.

25 MR. BAKRAC: [Interpretation] Yes. Your Honour, to save time may I

1 continue from where I broke off or should I start reading from the

2 beginning?

3 JUDGE BONOMY: Carry on from where you broke off, please.

4 MR. BAKRAC: [Interpretation] "Violent actions of the Yugoslav

5 military and police since February 1998 were aimed at separatist

6 activities and are no proof of a persecution of the whole Albanian ethnic

7 group in Kosovo or in a part of it. What was involved in the Yugoslav

8 violent actions and excesses since February 1998 was a selective forcible

9 action against the military underground movement (especially the KLA) and

10 people in immediate contact with it in its areas of operation ... A state

11 programme of persecution aimed at the whole ethnic group of Albanians

12 exists neither now nor earlier."

13 VI, the opinion of the higher administrative court in Munster

14 dated the 24th of February, 1999, VI.

15 "There is no sufficient actual proof of a secret programme, or an

16 unspoken consensus on the Serbian side, to liquidate the Albanian people,

17 to drive it out or otherwise to persecute it in the extreme manner

18 presently described ... If Serbian state power carries out its laws and in

19 so doing necessarily puts pressure on an Albanian ethnic group which turns

20 its back on the state and is for supporting a boycott, then the objective

21 direction of these measures is not that of a programmatic persecution of

22 this population group ... Even if the Serbian state were benevolently to

23 accept or even to intend that a part of the citizenry which sees itself in

24 a hopeless situation or opposes compulsory measures should emigrate, this

25 still does not represent a programme of persecution aimed at the whole of

1 Albanian majority in Kosovo. As a matter of fact, if the Yugoslav

2 authorities act -- reacted to separatist tendencies by firmly adhering to

3 the law and through anti-separatist measures and if somebody due to

4 that" --

5 THE INTERPRETER: Interpreter's note, could we please have the

6 document on the screen.

7 MR. BAKRAC: [Interpretation] "... and if somebody crosses the

8 border this still does not constitute intentional policy on the part of

9 the Yugoslav state aimed at persecuting national minorities: On the

10 contrary" --

11 JUDGE BONOMY: Now, Mr. Bakrac, I think time for a question.

12 MR. BAKRAC: [Interpretation] Oh, I agree, Your Honour, but if you

13 allow me just one more minute. There is just one more brief decision and

14 then I'm not going to quote anything anymore.

15 "February and March 1998 do not evidence a persecution programme

16 based on Albanian ethnicity. The measures taken by the armed Serbian

17 forces were in the first instance directed toward combatting the KLA and

18 its supposed adherence and supporters."

19 THE INTERPRETER: The interpreters note that the text will have to

20 be read out slower. There are other booths working as well, not only the

21 English booth.

22 JUDGE BONOMY: Mr. Bakrac, the interpreters are asking that you

23 read these passages more slowly because there is an element of translation

24 involved that doesn't depend on a transcript already provided in English.

25 There are other languages to be taken into account.

1 MR. BAKRAC: [Interpretation] Your Honour, I do apologise. If

2 there is any justification or excuse for this I just want to save time, I

3 don't want to waste any time, and I am creating obviously a problem for

4 the interpretation and I'm sorry. Is it necessary for me to repeat what

5 I've read out so far or may I proceed?

6 And the last decision, VII that follows after VI, the opinion of

7 the upper administrative court at Munster, March 11, 1999.

8 "Ethnic Albanians in Kosovo have neither been nor are now exposed

9 to regional or country-wide group persecution in the Federal Republic of

10 Yugoslavia."

11 So that is a decision dated the 11th of March, 1999, ten days

12 before the NATO bombing started.

13 Mr. Abrahams, can you explain to us how come your reports are so

14 different from the intelligence reports of the foreign ministry of a

15 serious NATO country like Germany?

16 A. First of all, I would like to correct what I consider a

17 misstatement on your part. You said that I had travelled to Kosovo two or

18 three times to collect the information in our reports, which is not

19 correct. I personally travelled there five times between the period of

20 February 1998 and March 1999. In addition, we did extensive research

21 after March 1999 in Kosovo and outside. So I want to be clear about that.

22 With regards to this document, it is exceedingly difficult for me

23 to comment without reading the text in its entirety, without knowing the

24 context in which it is placed, and without knowing that evidence that was

25 presented in the court cases that you refer to here, so I am going to

1 refrain from commenting specifically. But in general I would say that I

2 disagree very strongly with the conclusions presented in this material. I

3 believe, as I've said many times, that there was a systematic campaign

4 against the ethnic Albanian population or a failure to distinguish between

5 combatants and civilians. I believe there were also crimes against

6 combatants, such as executions.

7 The one specific detail that stands out -- and again, there was so

8 much read that it is -- we would have to go through it point by point for

9 me to reply, but I do agree with the assessment that there was no fighting

10 in the major cities as of January 1999 because at that time the conflict

11 was contained primarily in the rural areas and the fighting came to the

12 urban centres later by March -- well, in -- by March 1999. But if you

13 would like me to reply in more detail to any of these specific points, we

14 will have to go slower.

15 JUDGE BONOMY: It's also very difficult -- I certainly find it

16 difficult to see that these are actually decisions that you're quoting. I

17 mean, the very last one is a good example because in brackets after the

18 part in quotations are the words "thesis 1." Now, do you have copies of

19 these decisions of the various German courts that you can make available

20 to the Trial Chamber?

21 MR. BAKRAC: [Interpretation] No, Your Honour. For the time being

22 I haven't got copies because this is a document that I obtained just

23 recently, three or four days ago. But it was obtained through appropriate

24 procedure and we have all the relevant numbers, and the Defence will try

25 to obtain all these decisions.

1 JUDGE BONOMY: Can you also tell us what the document actually is?

2 MR. BAKRAC: [Interpretation] This is an excerpt, it's an excerpt,

3 that the International Association of Lawyers Against Nuclear Armament

4 compiled on the basis of a certain number of court decisions; that is to

5 say, of decisions of courts in Germany.

6 JUDGE BONOMY: This is compiled by a body which has an agenda

7 which is anti-nuclear, and these are selective or selected extracts from

8 court documents. Is that a correct summary of the nature of this

9 document?

10 MR. BAKRAC: [Interpretation] Yes, Your Honour. These are excerpts

11 from court decisions.

12 JUDGE BONOMY: You can see why in that context where these are

13 simply selected passages that it will be important for us to see the whole

14 document because if the whole document bears out the idea that you're

15 presenting that a German court came to a conclusion that there was no

16 persecution against the Albanian population, then that would be an

17 important piece of evidence for the case. But as it stands, it's a sort

18 of disjointed document that doesn't really take us anywhere.

19 MR. BAKRAC: [Interpretation] I agree, Your Honour. I was just

20 interested in this witness's answer because he will leave and we won't

21 have an opportunity to put questions to him. The Defence is going to

22 present its own case, the Defence case, and there will be enough time, I

23 sincerely hope, to obtain all these decisions. The purpose of this was

24 for the Defence to try to establish what the position of Mr. Abrahams is,

25 in view of these completely different positions taken by individual states

1 that had verifiers on the ground and so on and so forth.

2 Q. Mr. Abrahams, you said that you are not aware of this source. I'm

3 just going to repeat that these decisions invoke intelligence reports of

4 the foreign ministry of Germany. Does that change anything in your

5 position?

6 A. Without seeing those reports or understanding the context of this

7 court, I cannot comment, only to say that the text you have presented on

8 the screen now I am in disagreement with.

9 Q. Thank you, Mr. Abrahams. Since you've just told us that you do

10 not agree with such positions at all, I'm interested in the following.

11 Can you tell me something. In paragraph 4 of your first statement

12 provided from the 8th to the 11th of March, 1999, on page 4 of the English

13 version or page 5 of the B/C/S version, that is P228, Prosecution exhibit.

14 You said that you carried out an analysis of the indictment for Kosovo

15 against Slobodan Milosevic and others. When you said "and others," does

16 that pertain to the accused persons present right now in this courtroom?

17 A. Well, first of all, I didn't say that I disagreed with this

18 entirely, this document. In fact, I pointed out to you one comment that I

19 agreed with. I said in general. But if we want to go through the points

20 one by one, I can respond to you.

21 In regards to your current question, the indictment included some

22 of the defendants but not all of them.

23 Q. So it is correct that you carried out an analysis for that

24 indictment?

25 A. For the Slobodan Milosevic et al. indictment, yes.

1 Q. That indictment. So will you agree with me now that practically

2 you are one of the authors of the indictment against Slobodan Milosevic

3 et al.?

4 A. No, I would not agree with that.

5 Q. Can you explain to me what it means that you carried out an

6 analysis for the indictment?

7 A. Yes. One of my assignments was to examine the background section

8 of the indictment which presented the history of Kosovo, context of the

9 conflict, and to obtain the concrete documentation to support the

10 historical arguments presented in the indictment. That was one of my --

11 one of my assignments -- that was my main assignment with regard to the

12 indictment.

13 Q. And were parts of your historical background incorporated in the

14 indictment?

15 A. I directed the Prosecution to where they can find or how they

16 might obtain the historical records and documents to support the claims in

17 the background section of the indictment.

18 JUDGE BONOMY: You refer, Mr. Bakrac, to the statement of the 8th

19 to the 11th of March, and you said in the English version this is on

20 page 4.

21 MR. BAKRAC: [Interpretation] Your Honour, my mistake. I apologise

22 once again. It's the statement of the 24th of January, 2002, and the page

23 is number 4 in the English version. In e-court it's page 12. P228.

24 THE INTERPRETER: Interpreter's correction, 2228.

25 JUDGE BONOMY: And this is on page 4, did you say?

1 MR. BAKRAC: [Interpretation] Yes, page 4. First paragraph, the

2 first paragraph, page 12 in e-court, and it's just before the subsection

3 entitled "Kosovo history."

4 JUDGE BONOMY: Thank you.

5 MR. BAKRAC: [Interpretation]

6 Q. [No interpretation]

7 But that you just told the Prosecution where they could seek

8 proof?

9 A. I'm sorry, I missed some of the translation.

10 JUDGE BONOMY: Not all of that question was translated. Could you

11 ask it again, please, Mr. Bakrac?

12 MR. BAKRAC: [Interpretation] Yes, I will. Thank you, Your

13 Honours.

14 Q. You said that you directed the Prosecution to the proof relating

15 to the historical background. Does that mean that you didn't write any

16 kind of historical background but that you just pointed the Prosecutor's

17 office to where they could find evidence?

18 A. That's correct. And I don't recall the specific details of every

19 day's work, so it's certainly possible that we had discussions on the best

20 way to phrase a development in the history or the important events. For

21 example, the revocation of Kosovo's autonomy was a complex process over a

22 number of years and we would have discussed what were the key moments

23 worth highlighting in the indictment over others.

24 Q. Mr. Abrahams, are you telling me that you just gave oral

25 indications, that you did not provide a written analysis of the historical

1 background and provided that to the Prosecutor's office?

2 A. No, that would have been provided in writing.

3 Q. Thank you very much, Mr. Abrahams.

4 I would now like to just quickly cover some other questions

5 relating to the so-called Kosovo Liberation Army.

6 I would like to know, Mr. Abrahams, whether you know, since you

7 were out in the field, that members of the Kosovo Liberation Army

8 frequently wore civilian clothing?

9 A. Yes, that is correct.

10 Q. Are you aware that members of the KLA persecuted their fellow

11 Albanian citizens who were loyal to the Yugoslav authorities, they burned

12 their homes, and persecuted them in other ways. Are you aware of that?

13 A. Throughout the conflict we documented a variety of abuses by the

14 Kosovo Liberation Army against ethnic Serbs as well as against ethnic

15 Albanians.

16 Q. Can we assume that you did not manage to investigate a large

17 number of such cases, for example?

18 A. I think our reports are very complete. They contain the major

19 incidents and events that took place.

20 Q. Mr. Abrahams, are you aware that some humanitarian organisations

21 in Kosovo helped the KLA?

22 A. Can you be more specific?

23 Q. Do you have any information about some humanitarian organisations

24 providing assistance in money or weapons and so on to the KLA?

25 A. I do not have specific information, for example, who acted in such

1 a way, how they acted in such a way. I certainly heard allegations that

2 individuals in organisations of a humanitarian nature were sympathetic to

3 the KLA and were assisting the KLA. And in my professional opinion I do

4 believe that is a definite possibility, but I do not have concrete

5 evidence to prove that case.

6 Q. Thank you, Mr. Abrahams. Were there any foreigners amongst the

7 KLA members? When I say "foreigners," I mean persons who were not from

8 the Kosovo area, who were not from the area of Albania either, but come

9 from other parts of the world. Are you perhaps aware of anything like

10 that?

11 A. Yes, there were a few.

12 Q. Could you please tell me what you mean when you say "a few," there

13 were a few?

14 A. I don't know the precise numbers and I have no idea if we're

15 talking -- I can't give you any exact figure. But the number is

16 definitely small.

17 In -- there were many, many allegations about a large number of

18 Islamic fighters participating with the KLA. I know for a fact that there

19 were individuals in the KLA, factions within the KLA, who supported

20 accepting these fighters, so-called Mujahedin, because they argued that we

21 must take assistance from any place that we can, building off of the

22 experience of Bosnia. However, there were also a large number of people

23 and other factions in the KLA that rejected such participation from

24 Islamic militant groups and individuals. And in the end, this position

25 won. So in the internal debates of the KLA, they made a specific decision

1 not to accept any outside fighters from Islamic countries. And to the

2 best of my knowledge, that decision was respected.

3 In addition to that, there were a couple, and I say "a couple," I

4 can't be more precise because I heard anecdotal stories of some

5 individuals from European countries also coming to Kosovo to fight, but

6 again these were very occasional, let's say, mercenaries and of a very

7 small number.

8 Q. Mr. Abrahams, would you kindly explain how you know that the KLA

9 did not accept Mujahedin?

10 A. Over the last four to five years, I have been working on a book

11 unrelated to Human Rights Watch, which is about the history of Albania.

12 It is a history of the transition from communism, and it includes a

13 chapter about the Albanians' role in the Kosovo war. And in the context

14 of research for this book, I interviewed many, many officials and

15 individuals in both Albania and Kosovo. And it is from these interviews

16 and this research that I learned this information.

17 Q. Mr. Abrahams, you talked about the KLA members in civilian

18 clothing. Are you aware that in 1998 over 80 tonnes of weapons were

19 confiscated from members of the KLA?

20 A. I was not aware of that precise amount, no.

21 Q. But in your statement you did say that after the fall of the

22 communist regime in Albania, an enormous quantity of weapons were

23 transferred to Kosovo, ended up in Kosovo. Is that true?

24 A. That is true.

25 Q. Mr. Abrahams, are you familiar with the information that during

1 the Rambouillet negotiations, the Albanian negotiators wanted to secure

2 the agreement of the local commanders in order to sign the agreement. Are

3 you aware of this fact?

4 A. That is correct. Yes, I am aware.

5 Q. Mr. Abrahams, since you do know that a large number of

6 civilians -- that a large number of civilians were members of the KLA,

7 that a large quantity of weapons ended up in Kosovo from Albania, and

8 since you are aware of the fact that the negotiators could not sign the

9 agreement without the decision of the local commanders, I would like to

10 know if you would agree with me that this is contrary to your assertion on

11 page -- I will tell you the page of statement P2228. Actually, it's

12 page 11 of the B/C/S and page 12 of the English text where you say -- and

13 that's page number 19 in e-court, where you say that the KLA -- that

14 already in February 1999, based on investigations in 1998 you had proof

15 that the KLA were an organised fighting force in terms of international

16 humanitarian law and that you were a witness to more and more indications

17 of uniformity amongst the ranks of the KLA. Isn't that contrary to the

18 fact that in February 1999 the Albanian negotiators could not sign an

19 agreement until they had secured the agreement to do so from the local

20 commanders, different local commanders?

21 A. No, I don't think it's contradictory at all. The KLA by that

22 time, February 1999, had become a more organised fighting force, but I

23 would hesitate to call it a highly organised fighting force. And in

24 particular, the KLA was a very decentralised, it had a decentralised

25 structure whereby the regional commanders had a high degree of autonomy

1 and there was a relative lack of central command and control, so that the

2 negotiators in Rambouillet needed to get the permission or approval of the

3 regional commanders before making such a major decision as whether or not

4 to sign the Rambouillet accords.

5 And I would like to add one point. You mention here that a large

6 number of civilians were members of the KLA, and I would not accept that,

7 that assertion. There were many, many civilians who sympathised with the

8 KLA, but to become a -- or maybe participated and assisted the KLA, but

9 for me there was a distinction and a difference between a civilian and a

10 fighter. So when someone picks up the arms, they lose their civilian

11 immunity.

12 Q. Excellent, Mr. Abrahams. Are you aware of how many Albanian homes

13 were armed in Kosovo during the time that you were conducting your

14 investigation?

15 A. I have no idea. But of course in this region arms are commonly

16 held. Many families have arms.

17 Q. Thank you, Mr. Abrahams. So if they are wearing civilian clothing

18 and many families have weapons, then they are not civilians. Would you

19 agree with me?

20 A. No, I would disagree with you.

21 Q. Mr. Abrahams, you have just said that possession of weapons is the

22 distinction between a civilian and a fighter, and now you have said that

23 you do know that many homes in that area did possess weapons. So why

24 would you not agree with me then that these are not civilians in that

25 case?

1 JUDGE BONOMY: I doubt if you really need to answer that question.

2 You've already said that when somebody picks up the arms they lose their

3 civilian immunity. That's quite different from possessing them.

4 THE WITNESS: Well ...

5 MR. BAKRAC: [Interpretation] All right, all right. Very well.

6 Q. Mr. Abrahams, before the break you said in your statement --

7 actually, in answer to a question by one of the colleagues, that the

8 police and the military constitute a legitimate military target. Does

9 that mean that a policeman in New York or a soldier in America would

10 constitute a legal or a legitimate military target for a terrorist?

11 A. It would depend on the context of the -- of whether hostilities

12 were ongoing, but such an attack on a policeman or a soldier in America

13 would be a crime. If it were to take place today it would be a crime

14 prosecuted -- which could be prosecuted under US law.

15 JUDGE BONOMY: Mr. Bakrac, can you help us with a transcript

16 reference for that statement?

17 MR. BAKRAC: [Interpretation] Your Honour, I don't have the

18 transcript reference right now. I can provide that later, but I think

19 that the witness also agreed that he said that, that the police and the

20 military constitute a legitimate military target and then he now has

21 explained that to us. But I would like to put the question if that means

22 that a policeman in Kosovo is a legitimate military target, as opposed to

23 his counter-part in America, policeman or a soldier.

24 THE WITNESS: First we need to clarify what time-frame we are

25 talking about. In a period of armed conflict, a policeman can be a

1 legitimate military target, but it depends on the role of that policeman.

2 So a person performing traffic duties in Pec, for example, would not be

3 considered a legitimate military target, but a policeman who is engaged in

4 hostilities would be considered a legitimate military target. So the

5 police is a somewhat grey area in the eyes of the law.

6 MR. BAKRAC: [Interpretation]

7 Q. You say that this applies to armed conflict. Can you please tell

8 us what an armed conflict means, the sporadic attacks by the KLA which at

9 that time were -- was described as a terrorist organisation by

10 Mr. Gelbard. As far as you are concerned, were they armed conflicts at

11 that time or were those attacks by a terrorist organisation against

12 legitimate organs of the state? Could you please explain what that means

13 to you?

14 A. My position and the position of Human Rights Watch is that a state

15 of armed conflict came into being from late February/early March 1998.

16 JUDGE BONOMY: I think the question is a bit more complicated than

17 that, Mr. Abrahams. There may be a translation point here, but the word

18 you used in the previous answer was not armed conflict but hostilities,

19 and you said that where a policeman was involved in hostilities he could

20 be considered a legitimate military target. And now we've moved on to

21 armed conflict. Can you, at least for my benefit, clarify this. Do you

22 see a situation -- do you recognise the possibility of a situation that no

23 determination of a -- of the existence of an armed conflict has -- can be

24 made, but hostilities are such that a police officer could be a legitimate

25 military target? Do you envisage that possibility?

1 THE WITNESS: No, I do not. No, I do not, no. Just to clarify,

2 the question as it was posed to me, I assumed we were talking about

3 already a period of armed conflict; namely, from February/March 1998 on.

4 And in that period, then a policeman would be considered a legitimate

5 target if he or she were actively engaged in hostilities. Obviously that

6 does not apply prior to late February 1998, when a policeman is not a

7 legitimate military target.

8 Did I make myself clear?

9 JUDGE BONOMY: That certainly clarified it for me.

10 MR. BAKRAC: [Interpretation] Yes, Your Honours. It is a little

11 bit more clear to me but not completely.

12 Q. I'm asking you after February 1998, attacks from an ambush or an

13 ambush on moving police vehicle, does that constitute armed conflict or

14 hostilities in relation to official state organs?

15 A. After late February/early March 1998, in our opinion, in my

16 opinion, there was a state of armed conflict in Kosovo, and actions by the

17 state and the KLA during that time must be viewed within the context of

18 international humanitarian law.

19 Q. Mr. Abrahams, I asked you whether after February when you say,

20 according to you and your organisation, there was an armed conflict. Is a

21 moving vehicle or a police patrol that was attacked from an ambush, that

22 was ambushed, does that -- do those police officers constitute a

23 legitimate military target and are they taking part in the fighting?

24 A. That would depend --

25 JUDGE BONOMY: Well, the answer to that question wouldn't help us

1 because the statement begs a question. The vehicle could be carrying he

2 traffic policemen that the witness has already mentioned. It's all a

3 question of circumstances, whether there is actually ongoing hostility

4 which would warrant action, is it not?

5 And your question is posed on the basis that if these police

6 officers were involved in -- of taking part in the fighting are they a

7 legitimate military target. Is that question going to assist us?

8 MR. BAKRAC: [Interpretation] No, Your Honour. My question was

9 whether the policemen who did not take part in fighting, there was no

10 action under way, and who were ambushed, whether they were a legitimate

11 military target.

12 JUDGE BONOMY: Can you answer that?

13 THE WITNESS: If the car you refer to was carrying policemen that

14 were not actively involved in hostilities, then they would be an

15 illegitimate target, yes, not a legitimate target.

16 MR. BAKRAC: [Interpretation]

17 Q. Thank you, Mr. Abrahams. Do you know, since you carried out

18 detailed investigations, how many attacks against the police or the army

19 were carried out in 1998?

20 A. I do not know the exact number. We tried to obtain that

21 information through our letters sent to the authorities. We were also in

22 contact with the media centre in Pristina and presented as much

23 information we had from the government side, but I do not know the exact

24 number of attacks that took place.

25 Q. What would you say, Mr. Abrahams, if I were to tell you that in

1 1998 there were 2.768 attacks against the military, the police, and

2 civilians, 1.774 were attacks on the police, 243 against the military, and

3 751 were against the civilians. So if we were to calculate that, it would

4 come to six to eight attacks every day.

5 A. Well, like any good researcher, I would want to see the specifics.

6 Again, it depends very much on whether these incidents involved legitimate

7 military targets or not. But the overriding point is that my job is to

8 document violations of human rights and international humanitarian law.

9 Of course we need to understand the conflict to know who is attacking and

10 who is being attacked, but my concern beyond the context is not to

11 document legitimate attacks that involve legitimate military targets. And

12 furthermore, we have consistently reported on the violations by the Kosovo

13 Liberation Army in numerous reports. But I do not believe that any of

14 those actions, lawful and unlawful by the KLA, justify or explain the

15 extreme and systematic violations by Serbian and Yugoslav forces.

16 Q. Mr. Abrahams, are you aware that there were frequent violations of

17 the state border in terms of illegal crossings from Albania into Kosovo

18 and weapons were also transferred across the border in the same way?

19 A. Yes. As I've written in our reports, the KLA received most of its

20 arms from -- through the Albanian-Kosovo border.

21 Q. Would then it not be logical that the Yugoslav army would carry

22 out actions on the border in order to prevent such illegal crossings by

23 people and transfer of weapons?

24 A. What do you mean by "actions"?

25 Q. I'm thinking of all the activities that would prevent the illegal

1 crossings of the border and the illegal transfer of weapons. Sometimes

2 also there were skirmishes with firing on the border with these people who

3 were crossing the border illegally and transferring weapons.

4 A. I need to make a distinction. My job is to distinguish between

5 legitimate, legal actions and unlawful actions. So of course the armed

6 forces of Yugoslavia and of course the police forces of Serbia have a

7 duty, an obligation, and a legal right to protect the borders. There's no

8 question about that. My issue and my job is how they do it, and it must

9 be done in a way that minimises the impact of civilians. And again and

10 again we documented actions, as you put it, by these armed forces that

11 involved the clearing of villages, the separation of men and women,

12 executions of men in these villages, and a litany of violations that I

13 have documented in these reports. So I take no issue with whether they

14 can do it; I take issue with how they do it.

15 Q. Mr. Abrahams, you say that you established actions by forces. In

16 your statement 2228 on page 6 in the last paragraph and the first

17 paragraph on page 7, you say that on the 26th of September in the vicinity

18 of Mlecani village you saw a convoy of military vehicles. These vehicles

19 were moving along a main road. Does that, in your view, constitute

20 illegal activity by the army?

21 A. The movement along the road in itself does not constitute illegal

22 activity.

23 Q. Why then is this detail included in your report? I fail to see

24 what violation is involved in connection with this movement on the 26th of

25 September.

1 A. I -- we do not label such movement as a violation, but we present

2 the information to provide a context for the fighting that took place in

3 and around that area.

4 Q. When referring to movements, are you aware - and there is

5 television footage showing this - that units of the Yugoslav army, when

6 moving toward the state border, used loudspeakers to call on the

7 population and the KLA not to attack the army, and that in spite of these

8 warnings the army was regularly attacked while moving toward the state

9 border and the security belt along the border?

10 A. What time period are you referring to?

11 Q. 1998. May 1998, that is.

12 A. Well, I have not seen the television footage of this, but it's

13 possible such calls were made through loudspeakers. But again, this was

14 an armed conflict. I am not denying that the KLA attacked Serbian

15 Yugoslav -- Serbian and Yugoslav forces. I'm not denying that in any way.

16 I'm not even denying that some of those attacks may have been unlawful.

17 It was -- it was an -- it was a war.

18 Q. Mr. Abrahams, are you aware that members of the KLA frequently

19 used civilians as human shields, especially in situations where there were

20 illegal border crossings going on and in other actions as well?

21 A. I'm not aware of that. In all of my research I never once heard

22 an allegation that the KLA used civilians as human shields. What the KLA

23 did do on occasion was put the civilian population at risk by engaging in

24 military operations from within civilian -- from within areas occupied by

25 civilians, within civilian-populated areas, which is also criticised in

1 our report. But I never documented specific cases of human shielding.

2 Q. Mr. Abrahams, you spoke about the incidents in Gornje Obrinje,

3 Orahovac, Drenica. Would you agree with me that all these are areas where

4 there was clearly KLA activity, intense activity?

5 A. You -- we would have to be more concrete to discuss the specific

6 villages and precise towns you're referring to. But in the general areas

7 that you mentioned, there was KLA activity, yes.

8 Q. Thank you, Mr. Abrahams. Do you have any information to the

9 effect that in relation to the incident in Gornje Obrinje, the commander

10 of the Pristina Corps ordered an investigation and the result of this

11 investigation was that in the incident in Gornje Obrinje the army did not

12 participate?

13 A. I'm not familiar with that investigation, no, and we never claimed

14 that the army was -- participated in the Gornje Obrinje killings.

15 Q. Thank you, Mr. Abrahams. Can we say the same about the incident

16 in Orahovac?

17 A. The same? What do you mean by "the same," that the military was

18 not present?

19 Q. That they were not present.

20 A. Which Orahovac incident are you referring to?

21 Q. The one on the 19th of July or from the 17th to the 21st of July,

22 nineteen-ninety --

23 THE INTERPRETER: The interpreter did not hear the year.

24 MR. BAKRAC: [Interpretation]

25 Q. 1998.

1 A. I do not have information about the presence of the Yugoslav army

2 in Orahovac at that time.

3 Q. Thank you, Mr. Abrahams. I am slowly drawing towards the end of

4 my questions.

5 In your statement 2228 on page 12 of the English version, in the

6 second paragraph, you establish there were 11 humanitarian centres in

7 Kosovo --

8 JUDGE BONOMY: Can I just interrupt. 2228 is a document which has

9 several parts, I think, and it has each of -- it has two very lengthy

10 statements, one of 14 pages and one of 19. So it would be helpful if you

11 would clarify each time which statement you're actually referring to.

12 MR. BAKRAC: [Interpretation] Yes, Your Honour, I do apologise.

13 This is the second statement of -- which is 18 pages long. And it's

14 page 12, paragraph 2 of the English version.

15 JUDGE BONOMY: We have it now. Thank you.

16 MR. BAKRAC: [Interpretation]

17 Q. You stated that in August the Serbian government opened 11

18 humanitarian centres and that a very small number of Albanians applied for

19 assistance. Your conclusion is that the reason for this was that they

20 were afraid because of the violence they had experienced. Mr. Abrahams,

21 do you allow for the possibility that they were afraid of the violence of

22 KLA members should they apply for help to the Serbian state organs? We

23 said previously that the KLA perpetrated reprisals against Albanians loyal

24 to the Serbian state.

25 A. Yes, I allow for that possibility.

1 Q. Thank you, Mr. Abrahams. Are you aware in the same context that

2 the Albanian villages near Djakovica in the border area, and I'm referring

3 specifically to the village of Korenica, asked for help from the Yugoslav

4 army and MUP, asking for protection from KLA terrorists?

5 A. No, I'm not aware of that.

6 Q. Are you aware that Generals Pavkovic and Lazarevic spoke directly

7 to the villagers of the Albanian villages of Bratusa, Rovina, Molic and

8 provided humanitarian aid to those villages. Are you aware of that fact?

9 A. I have no information about that.

10 Q. Mr. Abrahams, at the end I would like us to clarify a detail you

11 mentioned in your statement. The statement I'm referring to is the first

12 statement of P2228, page 15 in English.

13 I do apologise. Let me just check. I think it's the second

14 statement. Yes, it's the second statement, page 15 in English.

15 That on the 25th of February the Army of Yugoslavia announced the

16 beginning of winter exercises in Vucitrn where the KLA held positions on

17 Cicavica Mountain along the Mitrovica-Pristina road. Are you aware,

18 Mr. Abrahams, that these were not exercises of the Army of Yugoslavia or

19 manoeuvres; it was tactical exercises of the 125th Motorised Brigade

20 attended by Captain Ferdinand of the OSCE. Is that the event you were

21 referring to?

22 MR. STAMP: Before the witness answers, I'm having a hard time

23 finding it.

24 JUDGE BONOMY: No, I haven't got it either on page 15.

25 MR. STAMP: And also, although I think the witness is quite

1 capable, perhaps -- perhaps -- perhaps if counsel is referring to some

2 more obscure parts of his statement he might let the witness have a look

3 at it.

4 JUDGE BONOMY: Well, that may or may not be necessary, but we

5 first of all have to identify the passage.

6 MR. BAKRAC: [Interpretation] Your Honour, by your leave it's the

7 second statement from the 8th to the -- or rather, the 24th of January,

8 2002. It's page 14 in B/C/S, and in English I noted down 15, but I do

9 apologise. I made a mistake.

10 [Defence counsel confer]

11 MR. BAKRAC: [Interpretation] Your Honour, by your leave I have the

12 B/C/S version here. I cannot find ... That's page 21 in e-court in the

13 English language, page 13 of 19. So it's page 21 in e-court, fourth

14 paragraph.

15 JUDGE BONOMY: That's fine. Thank you. It's page 13 in the hard

16 copy, 13 of 19, and it's the fourth paragraph.

17 So could you ask the question again, please, Mr. Bakrac.

18 MR. BAKRAC: [Interpretation] Yes, Your Honour.

19 Q. Are you aware -- or rather, does your statement refer to the

20 tactical exercises at company level of the 125th Motorised Brigade carried

21 out in the presence of Captain Ferdinand of the OSCE?

22 A. I'm not aware of the particular brigade involved in these

23 exercises or manoeuvres.

24 Q. You carried out detailed investigations. You mention exercises,

25 and yet you don't know what unit of the army was involved. Is that part

1 of your detailed investigations?

2 A. We don't conduct detailed investigations into the precise units or

3 brigades involved in this case and we try to when there is a particular

4 crime and we want to identify which units were involved. But in this case

5 we don't have the specifics on who was active in these exercises.

6 Q. This means that the exercises were a legitimate activity. Is that

7 the conclusion?

8 A. There is no violation of the law in conducting an exercise.

9 Q. Thank you, Mr. Abrahams.

10 MR. BAKRAC: [Interpretation] Your Honours, I have no further

11 questions for this witness.

12 JUDGE BONOMY: Thank you, Mr. Bakrac.

13 Mr. Lukic -- oh, I'm sorry, Mr. Ivetic.

14 THE INTERPRETER: Thank you, Your Honour.

15 Cross-examination by Mr. Ivetic:

16 Q. Good morning, Mr. Abrahams. My name is Dan Ivetic, and I along

17 with my colleague Mr. Branko Lukic and case manager Ozren Ogrizovic today

18 represent the accused Sreten Lukic. I would like to clear up a few issues

19 before I move into my main area of questioning.

20 First of all, sir, during your examination-in-chief by the

21 Prosecutor you went through several letters that Human Rights Watch

22 prepared and sent to various persons in the Serbian and Yugoslav

23 governmental hierarchy. If I can ask you a general question first of all.

24 Can you verify for me in a Human Rights Watch did not send any of those

25 letters or in fact any letter to my client, Mr. Sreten Lukic?

1 A. We sent letters to all of the individuals and institutions that

2 have been submitted here, submitted to the Court.

3 Q. So if that group of letters does not include my client, would it

4 be safe to say then that Human Rights Watch did not individually contact

5 him regarding any of their communications?

6 A. That is correct.

7 Q. Okay. And in fact if the group of letters we have gone through

8 during your testimony do not include any police organs or structures from

9 the territory of Kosovo-Metohija, would it be fair to say that Human

10 Rights Watch did not contact or advise them either?

11 A. My recollection is one of those letters was sent to the Serbian

12 Ministry of Interior. So in my opinion that would include the Serbian

13 police.

14 Q. My question was with respect to police organs and structures on

15 the territory of Kosovo-Metohija.

16 A. Well, again, my understanding is that the Serbian ministry has

17 responsibility for Kosovo which is and was a part of Serbia.

18 Q. Okay. Now, presumably you knew that there existed police

19 structures on the territory of Kosovo-Metohija and that there were at

20 least two or three international missions in Kosovo-Metohija that were in

21 daily contact with organs of the police in Kosovo-Metohija?

22 A. Yes, I was aware that Kosovo had a police structure, if you will.

23 Q. And yet no efforts were made to contact these people who were

24 perhaps closer to the ground and would be able to better respond to your

25 inquiries?

1 A. When we approached the police in Pristina, we were repeatedly

2 instructed to go to the local office, the secretary of information in

3 Pristina, or to higher authorities in Belgrade.

4 Q. Okay. Now, if I can turn your attention to your publication

5 entitled "Humanitarian Law Violations in Kosovo."

6 For the court officials that's Prosecution Exhibit P437, if we can

7 have that up on e-court, and that would be page 16 of this proffered

8 document by the Prosecution. Page 16 in e-court.

9 Q. Sir, if I could direct your attention to footnote 1 on this page

10 which is slowly coming up on the screen. In this document at this section

11 your organisation identifies some 12 officials in various organs of the

12 Yugoslav and Serbian governmental structures, including the police, that

13 your organisation believed to be responsible for running the Yugoslav and

14 Serbian government's policy in Kosovo and Metohija and for its response to

15 the so-called insurgency in Kosovo and Metohija. Isn't that accurate?

16 A. That is accurate.

17 Q. And, sir, as I look through this list -- and I invite you to do so

18 as well if you're not sure about it. But isn't it a fact that not a

19 single one of the six accused here today is mentioned on this list as

20 being someone responsible for the government's policy in Kosovo and

21 Metohija, according to your organisation?

22 A. According to this list, yes, although this list was later revised.

23 Q. Okay. Thank you. Now, the other week when you testified before

24 this Trial Chamber you seemed to hedge and deny that the OSCE publication

25 As Seen, As Told was relied upon or cited in your publication Under

1 Orders. Isn't that correct?

2 A. I do not recall how I precisely responded to that, but I can tell

3 you that we did at times refer to and cite the OSCE report in our

4 material.

5 Q. And, sir --

6 JUDGE BONOMY: If, Mr. Ivetic, you're going to accuse witnesses of

7 hedging, then I would welcome a specific reference.

8 MR. IVETIC: One moment, please.

9 Q. I believe, Mr. Abrahams, in the transcript pages 910 and 911 you

10 were asked by Defence counsel whether in fact you relied mainly on the

11 OSCE report called As Seen, As Told, and your answer was: "No, that is

12 not correct."

13 A. Well, the key word there is --

14 JUDGE BONOMY: Well, hold on. Deny is fine, Mr. Ivetic, but

15 there's no basis there for suggesting the witness is hedging.

16 MR. IVETIC: I apologise and I'm trying to --

17 JUDGE BONOMY: Thank you very much. Please carry on.

18 MR. IVETIC:

19 Q. Now, in fact, sir, I've had an opportunity to review your document

20 and there are no fewer than 55 distinct references or citations to the

21 named OSCE publication in Under Orders. Does that refresh your

22 recollection and allow you to amend your previous answer?

23 A. No, in no way. First of all, I -- as the statement you read back

24 to me from three weeks ago makes clear, I said "mainly." I deny that

25 we "mainly" relied. We mainly relied on our investigations in the field

1 with about 600 interviews. The report Under Orders does cite the OSCE

2 material as well as other secondary sources. I have not added it up, but

3 I trust your calculation. But we did not, at no time, use information or

4 allegations or documentations from the OSCE report as the sole basis for

5 our conclusions. We cited their material when it corroborated or rejected

6 information that we had obtained. So it was part of the body of secondary

7 sources that we used in preparation for this report.

8 JUDGE BONOMY: [Microphone not activated].

9 THE INTERPRETER: Microphone, please.

10 JUDGE BONOMY: Sorry.

11 MR. IVETIC: Microphone.

12 JUDGE BONOMY: If you can find a suitable time to interrupt we'll

13 have our first break.

14 MR. IVETIC: I will have just one question that I hope will have a

15 short answer.

16 JUDGE BONOMY: Carry on.

17 MR. IVETIC:

18 Q. Mr. Abrahams, do you know of any other of these secondary sources

19 which is cited 55 or more times in your report?

20 A. I would have to review the material to answer that question.

21 Q. Okay. Fair enough.

22 MR. IVETIC: Can we take a pause and perhaps the witness can

23 review the material during the pause.

24 JUDGE BONOMY: Would you care to do that, Mr. Abrahams, or are you

25 in a position to do so?

1 THE WITNESS: I do have the report with me.

2 JUDGE BONOMY: If you have the opportunity, it would be helpful.

3 We will adjourn now and resume at 11.00.

4 --- Recess taken at 10.30 a.m.

5 --- On resuming at 11.00 a.m.

6 JUDGE BONOMY: Mr. Ivetic.

7 MR. IVETIC: Thank you, Your Honour.

8 Q. Now, Mr. Abrahams, I don't know if you had an opportunity or

9 ability to check your publication Under Orders during the break. Have you

10 in fact been able to do so?

11 A. I made a cursory examination, yes.

12 Q. Okay. And can you first verify for me that your cursory

13 examination revealed that the OSCE report As Seen, As Told was in fact

14 repeatedly cited, and I don't know if you can verify my 55 citations that

15 I was able to count through my cursory review?

16 A. I was not able to conduct a count and determine -- verify your

17 number, but it is true that the report is cited throughout.

18 Q. Okay. And is there any other of these secondary sources that is

19 cited throughout Under Orders with as much frequency as the OSCE report As

20 Seen, As Told?

21 A. Yes, there is.

22 Q. Which ones?

23 A. There are a series of official Yugoslav and Serbian documents,

24 specifically the magazine Policajac, which is an official publication of

25 the MUP, of the Serbian police. There is the magazine Vojska, which is

1 the official publication of the Yugoslav army. There is the MUP web site,

2 which we referred to in a number of places, and also the Politika

3 newspaper which was from the ruling Serbian political party.

4 Q. And, sir, would it be fair to say that these other sources that

5 you've cited are types of publications where you would -- perhaps cited

6 multiple articles from various issues of those publications. Is that

7 accurate?

8 A. Yes, that is accurate.

9 Q. Okay. Whereas the OSCE report we're talking -- all the citations

10 refer to the exact same report. So as far as a single article or

11 publication is concerned, the OSCE report is by far the most widely cited

12 document in our report?

13 A. That's a reflection of the report's magnitude.

14 Q. Okay. And while we're on the topic of the OSCE-KVM report As

15 Seen, As Told are you familiar with the methodology utilised by that

16 organisation in selecting interviewees and performing interviews to obtain

17 their source material?

18 A. No, I am not.

19 Q. Okay. And, sir, I believe, correct me if I'm wrong, I believe in

20 your direct testimony from Mr. Stamp of the Prosecutor's office you

21 testified that your findings in Under Orders were of limited statistical

22 value and that the results could not be said to be extrapolated to the

23 whole population of Kosovo-Metohija. Isn't that accurate?

24 A. There are two separate points in your question.

25 Q. Okay.

1 A. The second point is the extrapolation, and that is correct because

2 we did not conduct random sampling so that we cannot reach Kosovo-wide

3 determinations based on the data.

4 The first point, however, is that -- is whether our statistical

5 analysis had a limited value, and I believe it had a very powerful value

6 in determining or better understanding the patterns of abuse.

7 Q. Perhaps I had the question improperly phrased. My emphasis was on

8 the greater population as a whole. Would it be fair to say then that

9 based upon your explanation here your report is not even of any value with

10 respect to extrapolation to the population as a whole?

11 A. Let me clarify. By extrapolation I mean that we documented

12 statistically 3.453 executions by government forces against ethnic

13 Albanians, and from that figure I cannot extrapolate a larger number, I

14 cannot take that amount and give you a total. However, I can analyse

15 those 3.453 executions and come to some very powerful conclusions from my

16 perspective on the manner in which and the environment in which these

17 executions took place.

18 Q. Now, sir --

19 JUDGE BONOMY: Just to clarify the position for the transcript,

20 the figure is 3.453.

21 THE WITNESS: That's correct.

22 MR. IVETIC: I believe that's already in the transcript in the

23 corrected form.

24 Q. Now, sir, the gist of this is, though, that your source material

25 are interviews conducted with approximately 600 individuals and what they

1 told you. Isn't that correct?

2 A. That's correct.

3 Q. So all the conclusions, analysis that is being performed is based

4 upon just these 600 interviews?

5 A. I wouldn't use the word "just" to explain 600, but that is

6 correct.

7 Q. As far as the primary source material from actual interviewees,

8 600?

9 A. That is correct.

10 Q. Okay. And you mentioned that you had not performed random

11 sampling, statistical sampling. I presume that since you had the advice

12 of professional statisticians in doing your report that you were aware of

13 the limitations of your report because of the fact that random sampling

14 groups were not utilised?

15 A. Absolutely, and that is why we include a section in the report

16 entitled "limitations of the data."

17 Q. That's where I was going, sir. Now, wouldn't it be fair to say

18 that the 600 or so interviewees which were interviewed by your

19 organisation represented a extremely limited fraction of the entire

20 population as a whole? Specifically I think I calculate it to be

21 approximately .03 of 1 per cent of the Kosovo Albanian population.

22 A. I would have to take time and do the calculation to agree with you

23 on the figure, but the -- it is the -- that the results of our statistical

24 findings rely on 600 interviews.

25 Q. Okay. Now if another organisation such as the OSCE followed a

1 similar method of obtaining interviews, that is to say if they did not

2 utilise random sampling groups, would their report or conclusions suffer

3 from the same limitation that you have specified for your report, that is

4 to say a limitation with respect to extrapolation to the greater

5 population as a whole?

6 MR. STAMP: I object, Your Honour, because the question invites

7 the witness to speculate about the methodology of some organisation that

8 he has already said he doesn't know about.

9 MR. IVETIC: I believe I'm just asking him if the limitation he

10 has testified that he does know about, whether that is something that is

11 specific just to his report or whether it's endemic to the type of method

12 that was utilised, whether it's something that is from the method that was

13 employed.

14 JUDGE BONOMY: I repel the objection to the question. I think the

15 question is perfectly properly formulated. The only question is whether

16 the witness feels able to answer it.

17 THE WITNESS: I can try. I have not reviewed the OSCE report in

18 many years, in a few years, but my recollection is that it doesn't attempt

19 to provide statistical analysis in the way that we do. So that

20 extrapolation is a technical term to suggest that the data gleaned from a

21 limited body can be applied to the province as a whole in this case, which

22 is different from the -- which is different from reaching conclusions

23 based on testimony. And I don't believe that the OSCE report is

24 presenting hard statistical evidence based on their findings, unless I

25 have forgotten a section of the report.

1 MR. IVETIC:

2 Q. And you do say you haven't reviewed the report in some time, so it

3 is possible that that is a part of that report?

4 A. It is but -- yes, it is.

5 Q. Okay. Well, let me just ask you then a more general question.

6 Would it be fair to say that if one interviews a smaller group

7 than the whole and extrapolates to the whole without using random group

8 sampling, that that study would suffer the same limitation on its data

9 that your report has?

10 A. If they were attempting to reach statistical conclusions, then

11 suggesting that a limited and not randomly selected group was indicative

12 of the whole population, then yes. But not if it was based on descriptive

13 testimony that explains what took place.

14 Q. Okay. And where you relied upon reports or findings of other

15 organisations in formulating your own conclusions in Under Orders, if

16 those other reports utilised methodology that has the same limitation,

17 your reliance upon that information would also inherit those same

18 deficiencies, would it be not?

19 A. Well, I would not say that we relied upon reports or findings. We

20 made every effort to conduct investigations on our own by interviewing

21 witnesses and collecting first-hand information from the field. We

22 utilised the work of other organisations to help us complete the picture

23 when we believed that those organisations operated in a credible manner.

24 Q. Okay. I don't know that you've actually answered the question,

25 though. If there was a report that also did not use the random sampling

1 group methodology, would the deficiencies of that report be inherited by

2 you when you cite to it to corroborate your own findings?

3 A. It would again depend on whether we are talking about statistical

4 results.

5 Q. Yes.

6 A. And -- well, can you be specific? Maybe I can answer your

7 question more.

8 Q. Yes. I'm talking about drawing conclusions and making conclusions

9 about the population as a whole based upon interviewing a small fraction

10 of the population and not utilising random sampling group statistical

11 analysis.

12 A. It would depend on what conclusions they were reaching.

13 Q. Okay. Fair enough.

14 A. I mean, just to clarify. Coming back to our 3.453 executions, we

15 did not attempt to apply that figure to Kosovo as a whole, for example, to

16 say: Therefore, X number of people were killed. But we took that limited

17 body, the 3.400, and analysed it as a self-contained unit because it can

18 provide very important information about the gender of victims, the age of

19 victims, the place in which the crimes took place. So to answer your

20 question would depend on what the organisation you're referring to was

21 intending to do.

22 Q. Okay. Now, you would agree with me, would you not, that you also

23 cite throughout your report to various newspaper articles relating to the

24 events in Kosovo-Metohija during the relevant time period?

25 A. At times we refer to media sources, yes.

1 Q. Okay. Now, you would agree with me, would you not, that -- let's

2 call them media sources as you have qualified them, they're not always

3 very reliable sources of information, are they?

4 A. Which media sources are you referring to?

5 Q. In general.

6 A. In our reports we made a concerted effort to rely on when we

7 used - and I retract use of the word "rely" - because we used media

8 sources to corroborate information. We used sources that we considered to

9 be reputable.

10 Q. Well, sir, that's one way of looking at it, but even reputable

11 news sources, let's say for instance American newspapers, I believe such

12 as the New York Times reported in 1999 that Ibrahim Rugova had been

13 assassinated by the Serbs, as I recall. Do you recall that being

14 discussed in the media at that time?

15 A. I do not, no.

16 Q. Okay. But in fact Mr. Rugova survived the war, did he not?

17 A. He did indeed.

18 Q. So to that extent, even legitimate or trustworthy, as you call

19 them, media sources still have their flaws because they are journalists.

20 They're not necessarily investigators or experts in various areas?

21 A. What is your question?

22 Q. Would you agree with me on that, that therefore the value of media

23 sources is not as great as, say, primary sources for information?

24 A. We always tried to get the primary source, which is more reliable

25 than a media source.

1 Q. Could you help me out here. Are you agreeing with me or

2 disagreeing with me?

3 A. Am I agreeing with you that newspaper sources are not as reliable

4 as primary sources, yes, I agree with you.

5 Q. Thank you. Now --

6 JUDGE CHOWHAN: Excuse me, I have a question.

7 Have you been adding bibliographical notes to your report? Did

8 you add from where you got particular information, I mean entirely? You

9 have been covering all what -- wherever you gathered it from in the

10 bibliography?

11 THE WITNESS: Yes, Your Honour.

12 JUDGE CHOWHAN: I'm grateful. Thank you.

13 MR. IVETIC:

14 Q. Now, sir, if we can move on to another topic that was brought up

15 in your direct examination by Mr. Stamp. If we could talk about these

16 letters that were sent to various Yugoslav and Serbian government

17 officials.

18 I believe, and correct me if I'm wrong, I don't recall if it was

19 you or the Prosecutor who intimated that this -- that these documents were

20 sent to put the Yugoslav authorities on notice of the nature of crimes

21 being committed by their forces. Was that something that you had stated

22 or that the Prosecutor had stated?

23 A. I'm sorry, I don't recall.

24 Q. Okay. Well, you would agree with me, would you not, that the

25 documents that were tendered, these letters from 1998, they don't

1 accomplish anything of the sort, do they? They don't talk about any type

2 of crimes being committed but rather are merely requests for information

3 regarding very general facts. Isn't that correct?

4 A. I cannot -- I cannot imagine whether they were received as a

5 manner of notification or not. The primary purpose of those letters was

6 to obtain information about alleged violations to include in our report so

7 that we included government views in our -- in our coverage.

8 Q. Okay. Well, let's look -- now, first of all, of the -- I believe

9 there are about five or six letters. They are essentially almost

10 identical letters, are they not?

11 A. They are similar letters.

12 Q. About 90 per cent is identical with specific items depending on

13 whether it was sent to the army or to someone with respect to the police.

14 Is that --

15 A. I would have to review to agree with your statistical conclusion,

16 I won't extrapolate, but I do accept your general --

17 Q. The premise?

18 A. The specific questions depended on the addressee.

19 Q. Okay. Well, then, let's look at one of them.

20 MR. IVETIC: Let's call up Exhibit P543 on e-court, please.

21 Q. Sir, this is I believe the letter that was -- that your

22 organisation claims was sent to the Yugoslav secretary of information,

23 Mr. Matic, on or about July 20, 1998. Now, sir, if you could -- and

24 perhaps while the document is scrolling if you could look through that and

25 if you could tell me or point to any -- any notice of any specific alleged

1 criminal wrong-doing, such as violations of international humanitarian

2 law, that are specified in this letter?

3 A. Can you give me a moment to review it?

4 Q. Absolutely.

5 A. Now, I would categorise the letter this way. This is -- we are

6 informing the government that we are conducting an investigation into

7 alleged violations of IHL, international humanitarian law, and that we are

8 requesting information from them to clarify a specific number of concerns.

9 Q. And yet you don't identify any specific or alleged violations of

10 IHL that they would be on notice on, do they?

11 A. Because this letter was sent in the phase of research, so we had

12 not yet reached the conclusions that we eventually released -- reached in

13 the report humanitarian law violations in Kosovo.

14 Q. Okay. Well, then, sir, I guess my question for you is: After

15 these letters were sent in 1998, prior to the publication of your report,

16 you did not send any additional letters to try and obtain input from the

17 Yugoslav or Serbian authorities relative to specific charges of IHL,

18 violations of international humanitarian law, that your organisation later

19 claimed in the report. Is that correct?

20 A. This -- these -- we did not send any letters after these letters.

21 Q. Okay. So I think you're agreeing with me. Is that accurate?

22 A. Yes.

23 Q. Okay. Now, would it be fair to say then that your reports were

24 generated without any information or input from the Yugoslav or Serbian

25 authorities?

1 A. I would not say that's fair to say. We used open-source material

2 whenever possible to present the government view, and I sincerely wish

3 that we had received responses to these letters from one of the many

4 agencies and ministries to whom they were sent, to which they were sent,

5 because I would have -- the report would have been strengthened greatly

6 and all our work would have been strengthened greatly by having official

7 answers to these particular inquiries.

8 Q. Now, you would concede, however, though, that that's another

9 limitation of your report, that it's missing documentation, for instance,

10 or official documentation from one of the parties in the conflict that you

11 allege occurred?

12 A. We utilised all able information and in my view gave the

13 governments of Serbia and Yugoslavia the opportunity to provide

14 information, an opportunity that they declined.

15 Q. Now, you in your organisation, you did not have any formal mandate

16 from the United Nations, the OSCE, the European Union in regard to

17 dealings with the Serbian and Yugoslav authorities. Is that correct?

18 A. That is correct.

19 Q. Your inquiries to the Yugoslav authorities came from a private

20 source, from your private NGO. Is that correct?

21 A. From a non-governmental organisation, that's correct.

22 Q. Okay. And you will concede, I hope, that there were several

23 internationally mandated organisations that were on the ground in

24 Kosovo-Metohija who were in daily contact with the appropriate officials

25 of the Serbian and Yugoslav organs who were mandated by the UN, the OSCE,

1 and the European Union?

2 A. That is correct, yes.

3 Q. And perhaps the Yugoslav authorities, if they were in daily

4 contact with these entities, perhaps the information that these entities

5 received would have supplemented your report, would it not?

6 A. Perhaps.

7 Q. But you did not --

8 JUDGE BONOMY: Mr. Abrahams, what are the entities you're thinking

9 of?

10 THE WITNESS: I'm thinking of the Kosovo Verification Mission, and

11 prior to that the Kosovo Diplomatic Observer Mission.

12 JUDGE BONOMY: Well, that can't be what counsel is asking about

13 because he's already been asking you questions to suggest you shouldn't

14 have been relying on that information if it wasn't --

15 MR. IVETIC: Actually, Your Honour, I am asking about these

16 organisations. There is other information that they had that somehow did

17 not make it into their publications that is of great importance to this

18 area of questioning.

19 JUDGE BONOMY: But that's -- these are the only organisations you

20 are thinking of?

21 THE WITNESS: Those are the two I am thinking about.

22 JUDGE BONOMY: Counsel talked about several organisations mandated

23 by, and he referred to the UN, the OSCE, and the European Union. But

24 that's what we're talking about this -- the observer missions and nothing

25 else.

1 THE WITNESS: That's what I was assuming counsel was referring to.

2 JUDGE BONOMY: All right. Thank you.

3 MR. IVETIC:

4 Q. Yes, I believe the -- KDOM, as it was called, that was a joint

5 between the European Union and the UN. Is that accurate?

6 A. I do not believe the UN --

7 Q. It was a joint mission so that the entities that were involved

8 would have been encompassed by the KVM, KDOM, and perhaps the Red Cross?

9 A. My recollection is that the KDOM had a series of participating

10 units. There was a US KDOM, there was an EU KDOM, and there was also a

11 Russian KDOM.

12 Q. Okay. Now, would it be fair to say that in a situation where

13 there are -- we heard testimony -- we heard you testify to the nature of

14 the skirmishes between the KLA and Serbian and Yugoslav forces on the

15 ground in Kosovo-Metohija, would it be fair to say that the Yugoslav

16 authorities perhaps had their hands full with other matters insofar as

17 they were giving daily reports to these official organisations perhaps did

18 not have time to respond to every private inquiry such as those from your

19 organisation?

20 A. I cannot speculate as to the workload of the authorities.

21 Q. Okay. But that does not defy logic, does it?

22 A. Does what defy logic, sorry?

23 Q. My proposition that perhaps they were not able to respond to every

24 private inquiry insofar as they had their hands full on the ground and

25 they were giving daily reports to a handful of internationally recognised

1 organisations that were essentially doing the same task.

2 A. Whether the authorities responded to us or not was their decision,

3 and we had not mandate to force their compliance in that regard.

4 Q. Okay. Now, just to clear up something that you testified to I

5 believe actually earlier today. Are you familiar with the general terms

6 of the OSCE agreement by which the Kosovo Verification Mission came to

7 Kosovo and the interactions between, for instance, the Serbian police and

8 the KVM?

9 A. I'm familiar with the general contours of that agreement.

10 Q. Okay. Let me ask you if you're familiar with this. Are you

11 familiar with the fact that that agreement specified certain police

12 activities, including check-points, that were on the territory of

13 Kosovo-Metohija?

14 A. No, I'm not.

15 Q. Okay. Well, if you for a moment take me at my word, if I can

16 present for you what for you is a hypothetical since you don't have the

17 knowledge. If in fact the agreement called for the police to undertake

18 certain activities such as check-points or perpetuated such activities,

19 would the KLA's attack of those posts be in your view a legitimate or

20 illegitimate act, in view of your discussions earlier today regarding

21 attacks on police officers?

22 A. It depends what you mean by "legitimate."

23 Q. Well, what do you mean by "legitimate"? As a violation of -- is

24 it a terrorist act?

25 A. A terrorist act, no. Is it a hostility and is that police

1 check-point a legitimate target under IHL?

2 Q. That's what I'm asking.

3 A. That would depend on the function of that check-point.

4 Q. Okay. And again, since you don't have knowledge of the OSCE

5 agreement we can't really go much further into that, right?

6 A. I can only repeat what we said prior to the break, which is that a

7 check-point for traffic purposes, for instance, would not be considered a

8 legitimate military target but one that had -- that contributed to the --

9 to the ongoing hostilities in some way would be considered.

10 Q. I guess what I'm trying to get at is: Illegitimate targets are

11 not limited just to traffic police and traffic stops. Is that correct?

12 There's a whole wide range of other potential police functions that would

13 be illegitimate targets under IHL for the KLA, or for any other armed

14 group for that matter. You're just using the traffic police as a clear

15 example?

16 A. Well, I'm not a lawyer, but my understanding of the law is that

17 it's the term direct participation in hostilities, that is the threshold

18 with which one judges whether a target is legitimate or not.

19 Q. So insofar as you are not a lawyer, would that then -- would that

20 qualification have to apply to all the other legal conclusions that you

21 have testified to, such as your claim that there was an armed conflict,

22 for instance?

23 A. That claim is the position of the organisation which was reached

24 after ongoing consultations within Human Rights Watch, which included our

25 legal team.

1 Q. Okay. Now, the other week you testified relative to a tragic

2 incident in Gornje Obrinje which occurred, I believe you said, in

3 September of 1998. First of all, the site of the incident in question,

4 that is extremely close to an area that was a KLA stronghold in 1998.

5 Isn't that correct?

6 A. There was -- the KLA had a base, if you can call it, in the nearby

7 village of Likovac.

8 Q. That's what I'm referring to. Now, and isn't it also true that

9 the area saw fierce combat between the KLA and the Serbian forces

10 immediately prior to the discovery of the bodies of the victims?

11 A. There was combat between the two sides, yes.

12 Q. Okay. And isn't it also fair to say that there was fierce combat,

13 or at least hostilities, even subsequent to the discovery of the bodies?

14 A. My understanding is that the hostilities were ongoing for at least

15 two days prior to the discovery of the bodies.

16 Q. I'm talking about subsequent to, sir.

17 A. Subsequent to?

18 Q. The discovery of the bodies.

19 A. That's what I'm referring to.

20 Q. Oh. Okay. Now, in fact, around the time that you were in the

21 area, I believe on 30 September 1998, isn't it true that an International

22 Red Cross vehicle on the road heading toward Gornje Obrinje was attacked

23 and disabled by the KLA and pinned down?

24 A. I don't recall the precise date of that incident, but I do recall

25 the incident, also because I observed the ICRC vehicle. And what

1 precisely happened is that this Land Rover, if I'm not mistaken, struck a

2 land-mine on the road between Gornje Obrinje and Likovac and at least one,

3 I believe it was an ethnic Albanian doctor, was killed in the blast. And

4 another vehicle from the KDOM, if I'm not mistaken, Canadian, also struck

5 a land-mine in that area.

6 Q. And wasn't it a fact, sir, that they were pinned down by KLA fire

7 so that they had to be evacuated by a Serbian MUP helicopter and a

8 detachment of Serbian MUP forces?

9 A. I'm not aware of that.

10 Q. Okay. But in fact you do actually have the reporting of the

11 Red Cross vehicle being destroyed and of the casualties that ensued in

12 Under Orders. That's published in that report as well, is it not?

13 A. That's correct. I observed that vehicle myself.

14 Q. Okay. But your description of the International Red Cross vehicle

15 being struck -- of striking the mine and of being -- and of the casualties

16 resulting from this KLA action, that didn't appear in your publication

17 regarding the Drenica valley, Week of Terror in Drenica, did it?

18 A. I would have to check, but that report, the Week of Terror in

19 Drenica, is very explicit in the degree of fighting that took place in and

20 around Gornje Obrinje.

21 Q. My point is, sir, that you were an eye-witness to the tragedy that

22 befell the International Red Cross at the hands of the KLA but you did not

23 publish that until 2001?

24 A. Again, I would have to look back into the Week of Terror in

25 Drenica report, but we mentioned in that report that up to 12 Serbian

1 policemen died in fighting in Gornje Obrinje. And I'd have to check that

2 precise number, but that's my recollection. So I believe we were very

3 upfront that hostilities were taking place.

4 And secondly, my information is that the ICRC vehicle struck a

5 land-mine, and I did not know -- I have no information that they were

6 pinned down by KLA fire. That I don't know.

7 Q. Okay. Fair enough. Now, would it be fair to say that under such

8 circumstances the area around Gornje Obrinje was, at the very least, a

9 contested area if not under the control of the KLA and out of effective

10 control of the legitimate government forces of Serbia or Yugoslavia?

11 A. The KLA had an established presence in Likovac and the area and

12 was active around Gornje Obrinje at that time.

13 Q. Okay. And without effective control of Gornje Obrinje and with

14 the presence of the KLA there, that would make it very difficult for the

15 Serbian authorities to carry out any investigations of the Gornje Obrinje

16 site, would it not?

17 A. There was an attempt by an international team to conduct an

18 exhumation of the Gornje Obrinje site. This was a Finnish forensic team

19 headed by Dr. Helena Ranta.

20 Q. Correct. And they were also -- the convoy was also -- included

21 certain pathologists from the Serbian authorities as well. Isn't that

22 accurate?

23 A. I believe that is accurate, yes.

24 Q. Okay. And isn't it also accurate that due to the threat of the

25 KLA in the area, that convoy could not proceed and could not complete

1 exhumations and investigations?

2 A. That is not correct.

3 Q. Well, if other witnesses state so, we'll find out.

4 But, sir, the question I have for you is: Are you aware of the

5 fact the Serbian authorities, and in particular the judiciary, issued an

6 official inquiry and authorised an exhumation and directed the police to

7 carry out the exhumation?

8 A. I was not aware of that fact.

9 Q. Okay. Again this brings us back to the point that your

10 publications suffer from a deficiency that they don't have all of the

11 information relative to the events that are being reported.

12 A. Let me tell you about the exhumation in Gornje Obrinje.

13 Q. Can you answer my question, sir?

14 A. Let me read it once again then.

15 Q. Sure.

16 A. We provided the Serbian and Yugoslav governments and the relevant

17 officials with the opportunity to provide us with information. They

18 declined to do so. We relied then on the public and open sources that

19 were available at that time to present and provide information that gave

20 the government's view. And I wish that we had received more information

21 from the authorities so that they could have been included in our reports.

22 Q. Now, if there is information from the Serbian authorities showing

23 their activities to investigate things that occurred even before your

24 publication was published in February of 1999, we're talking about the

25 Week of Terror in Drenica, that would very much change the conclusions

1 contained in your report, would it not?

2 A. No, it would not.

3 Q. As to the inaction of the Serbian authorities in attempts to carry

4 out investigations?

5 A. I do not recall us reporting that they failed to investigate

6 what -- this specific incident. What we reported in the Week of Terror in

7 Drenica report was what we concluded was an attempt to block the Finnish

8 forensic team from accessing the area.

9 Q. And again, you did not have the information that might have

10 changed those conclusions?

11 A. We did have the information from individuals in the Finnish convoy

12 that Serbian police forces prevented them from accessing the

13 Gornje Obrinje area.

14 Q. You were not physically present to eye-witness any of this?

15 A. No. I relied on interviews with the Finnish team, as well as

16 villagers in the area.

17 Q. Okay. Now, for instance, also would it be fair to say that you

18 did not have at your disposal information regarding the number of

19 investigations or criminal charges or indictments levied by the Serbian

20 authorities, that is to say investigations by the Serbian MUP, official

21 criminal charges filed with the Prosecutor's office, et cetera, for the

22 period of July 1st, 1998 through to June 1st, 1999 dealing with crimes

23 committed by various individuals against victims of Kosovo Albanian

24 ethnicity?

25 A. We asked for that information in some of these letters and it was

1 not provided.

2 Q. Okay. So you do not have any information regarding the fact that

3 over a thousand such criminal charges were prepared by the Serbian

4 authorities against alleged perpetrators?

5 A. I do not have knowledge of that precise number, but I take no

6 issue whatsoever with the Serbian and Yugoslav government's right and,

7 indeed, their obligation to prosecute crimes within the territory under

8 their authority.

9 Q. You would agree, would you not, however, that knowledge of these

10 facts would be instrumental to some of the conclusions that you draw in

11 your various reports regarding the culpability of various state organs in

12 crimes that you allege occurred?

13 A. I would not agree with that, no. I believe we have collected

14 evidence that documents very serious crimes by the Serbian police in the

15 case of your client, and the evidence speaks for itself.

16 Q. But again, that evidence is missing a key element as to what was

17 done afterwards by the authorities.

18 A. I don't believe so. I believe we have documented accurately both

19 the actions and subsequent inactions that surrounded the incidents we

20 cover.

21 Q. Okay. Now, you earlier testified that the source of your

22 information regarding Gornje Obrinje were I believe the persons who

23 happened to cross and discover the bodies. Isn't that accurate?

24 A. Our research into Gornje Obrinje relied on -- primarily with

25 interviewing individuals who found the bodies in the forest, that is

1 correct.

2 Q. Okay. And in fact these persons did not -- were not eye-witnesses

3 to the actual killings themselves, were they?

4 A. That is correct.

5 Q. And in fact I believe in your report you state that these persons

6 fled the area and only found the bodies when they returned?

7 A. That is correct.

8 Q. Okay. Now, therefore when it comes to the bodies in the forest,

9 wouldn't it be more honest to say that the accounts of their death are

10 based on speculation and guesses because these people were not

11 eye-witnesses to the actual killings, that there is a degree of

12 speculation there?

13 A. Excuse me. Our conclusions are based on more than two weeks -- in

14 fact, I believe it's three weeks of extremely rigorous research. And when

15 the body of evidence is taken in its entirety, which includes the

16 testimony of multiple witnesses, plus our examination of the crime scene,

17 plus the fact that hostilities did take place, we reached the conclusions

18 in our report, namely that these individuals were executed.

19 Q. Sir, there were no eye-witnesses to the killings in the forest,

20 were there?

21 A. Nobody saw the precise killings, no.

22 Q. Nobody saw the perpetrators performing the acts alleged?

23 A. People saw the perpetrators in and around the area, but nobody

24 witnessed the perpetrators pulling the trigger.

25 Q. And, sir, correct me if I'm wrong, you've already clarified that

1 you are not legally trained, but am I also correct to say that you have no

2 formal training or education as a police investigator or as a police

3 officer?

4 A. That is correct.

5 Q. You have no formal training or education as a forensic

6 pathologist?

7 A. I have what I would call preliminary forensic training, meaning

8 I've been -- that I have what I would consider a good knowledge of basic

9 forensics, but I do not have a formal education in forensic science.

10 Q. You have not had any formal training or education as a criminal

11 technician?

12 A. That is correct.

13 Q. Okay. Now -- so therefore your opinions or conclusions as to how

14 these individuals died and in what means they died are of limited value in

15 that regard. They're just your personal, untrained, unqualified

16 conclusions?

17 A. I take issue with the word "untrained," but I will say this. We

18 have made every effort in all of our reporting to state what we know and

19 what we don't know. Everything has a footnote. Everything is cited.

20 We're upfront about the limitations on our data, and the reports speak for

21 themselves. We will allow the readers to reach conclusions based on the

22 facts as we have provided them.

23 Q. Now, Mr. Abrahams, in any event you are aware of instances where

24 the KLA killed ethnic Albanian civilians, are you not?

25 A. Yes, I am.

1 Q. And you are also familiar with the efforts of the KLA to try and

2 obtain intervention from the outside world against the Serbian and

3 Yugoslav forces, particularly in 1998 and 1999?

4 A. Can you clarify what you mean by "obtain intervention."

5 Q. Military intervention.

6 A. I am aware that the KLA was interested in getting, particularly

7 NATO, involved in the conflict, yes.

8 Q. Okay. And isn't it also a fact that your organisation made a

9 finding or a conclusion that for propaganda purposes the KLA intentionally

10 provoked attacks against Albanian civilians to try and gain such

11 intervention from NATO?

12 A. The conclusion you are referring to can be categorised as such. I

13 believe that the KLA was aware of the -- of the need to win public opinion

14 and that the unfortunate crimes and the abuses against ethnic Albanians

15 were for them -- they had an interest in getting that information out to

16 the world.

17 Q. Well, sir, I think it's a little more than that. I believe your

18 organisation stated, and I can direct you to Under Orders, which is P438,

19 e-court it's page 80, and this is again repeated at page 130 as well. And

20 I believe I'm quoting your organisation in saying: "In the very least,

21 the KLA understood the political benefit of civilian casualties."

22 A. I think that's exactly what I just said.

23 Q. Okay. And I believe that the -- isn't it a fact that we can -- we

24 cannot exclude the possibility that the Gornje Obrinje tragedy was at the

25 hands of the KLA, since there were no eye-witnesses?

1 A. I collected no such information to lead me to that conclusion.

2 Q. Did you interview Imer Delilaj?

3 A. Yes, I did.

4 Q. He was a member of the family of the victims in Gornje Obrinje,

5 was he not?

6 A. Yes, he was.

7 Q. And you interviewed him on November 10th, 1998?

8 A. Interviewed him on more than one occasion.

9 Q. Okay. And, by the way, Imer was a self-avowed fighter in the KLA,

10 was he not?

11 A. Yes, he was.

12 Q. And in lamenting the death of his brother, one of the victims, he

13 reported to you -- and this is also in -- this is in Exhibit P441, in

14 e-court page 36. Why don't we wait for that to come up on the screen,

15 sir. It might be easier for you, sir, to comment on where I'm going to

16 now.

17 Page 36 on the e-court. If you could scroll down. Is this 36?

18 I'm showing 1 of 1 on my -- this is not the page. I'll see if I can get

19 the ERN number. That might assist us. The ERN number is K0364957. That

20 appears to be the page. If we can zoom in on the indented text in the

21 middle of the page and in particular the last two lines of that indented

22 text, sir.

23 This is your recitation of your interview with Mr. Imer Delilaj.

24 Is that accurate?

25 A. Can you scroll up a touch?

1 JUDGE BONOMY: You want to see the bottom of the page, do you?

2 THE WITNESS: I think this is okay, Your Honour. Yes, I believe

3 this is a citation from my interview with Imer Delilaj.

4 MR. IVETIC:

5 Q. And if you could focus your attention again to the last two lines

6 of this where I believe the statement is: "Adem was 33 years old and had

7 never been armed in his life. He never had problems with the government

8 or the KLA."

9 Now, Mr. Abrahams, my question for you is: Doesn't this statement

10 from Mr. Delilaj, himself a member of the KLA and was knowledgeable about

11 the KLA's activities, seem to imply that it was possible for ethnic

12 Albanians to have a threat from the KLA?

13 A. I mean, we have acknowledged and documented that some ethnic

14 Albanians did have problems with the KLA, and how this statement is read,

15 I suppose, open for interpretation, but one interpretation could be the

16 conclusion you've reached.

17 Q. Okay. Would that interpretation -- strike that.

18 Would people living in Gornje Obrinje who perhaps knew of attacks

19 or killings by the KLA of ethnic Albanians be able to view -- to view this

20 as saying that there are two potential culprits for these killings, namely

21 the government forces or the KLA?

22 A. I'm sorry. Can you repeat the question?

23 Q. Sure. If we have knowledge of killings by the KLA in

24 Gornje Obrinje of ethnic Albanians that predate this instance, then we

25 would have to conclude, would we not, that there are two potential

1 culprits for the killings in this particular case as well?

2 A. I never heard information about ethnic Albanians killed by the KLA

3 in Gornje Obrinje. That is -- I have no information about that.

4 Q. So again we come back to the point that you -- your reports lack

5 critical information relating to the events that are reported?

6 A. Well, it doesn't lack information if that information doesn't

7 exist.

8 MR. IVETIC: May I have Exhibit 6D12 up on the screen, please. It

9 should be 6D12 -- I think the transcript has -- okay, now it's corrected.

10 Q. Now, sir, this is the English translation of a document, the

11 original of which is also in the e-court system in Serbian. This is an

12 onsite investigative report dated 13th February, 1998 in the village of

13 Gornje Obrinje, is it not?

14 A. It is, yes.

15 Q. And it regards the murder of postman Mustafa Kurtaj, does it not?

16 A. It does, yes.

17 Q. And based upon your knowledge of -- of the people there and the

18 languages spoken, can you make any conclusions regarding the ethnicity of

19 this victim?

20 A. Kurtaj is an Albanian name, yes.

21 Q. Okay. And if you read further it would appear that this document

22 talks about the fact that Mr. Kurtaj was killed in the region, the same

23 region that you specified, does it not?

24 A. Yes, it does.

25 Q. Okay. And again this is information that you did not have in your

1 possession at the time that you created your report?

2 A. That's correct.

3 Q. Okay. And he was a postman. Are you familiar with attacks by the

4 KLA against postmen who were doing their job within the legitimate

5 structures of the Serbian and Yugoslav governmental organs?

6 A. Specifically against postmen I'm not aware of cases, no.

7 Q. Okay. Would a attack on a postman --

8 MR. STAMP: Just a matter of clarification. The question itself,

9 terms of the question is not necessarily improper. But the question is

10 asked with this document on the screen, so therefore there is an issue as

11 to whether or not the question is connected with the document, i.e., the

12 question asks about KLA killing of postmen. Is that question related to

13 something in this document? Is that the reason we have this document?

14 MR. IVETIC: We have this document to talk about a killing of an

15 ethnic Albanian in Gornje Obrinje which the witness said he did not have

16 knowledge of such things occurring, and now I'm moving on to separate

17 issue talking about legitimacy of attacks on governmental organs.

18 MR. STAMP: But perhaps if counsel could assist us by showing us

19 where he said he had no knowledge of the killings -- of any killing of

20 ethnic Albanians in Gornje Obrinje. I think he said that he had not

21 knowledge of any ethnic Albanian being killed by the KLA.

22 MR. IVETIC: That's correct.

23 MR. STAMP: He didn't say he had no knowledge of ethnic Albanians

24 being killed at all. Now the question refers to the killing of an ethnic

25 Albanian postman by the KLA. Is that question related to this document.

1 That's all I'm asking.

2 MR. IVETIC: In part, but I'm moving beyond the document. That

3 was just to -- since he says he has no knowledge of this, I cannot ask him

4 about this specific instance. I'm asking him more generally speaking if

5 he was aware of postmen being attacked by the KLA. I believe he has

6 answered that. And now I would just ask him a general question, if in

7 fact there were facts --

8 JUDGE BONOMY: Before you do that, can I just be clear. This

9 translation is accurate in respect that this is a postman, that's a person

10 who delivers letters?

11 MR. IVETIC: Correct.

12 JUDGE BONOMY: It's not simply a SUP officer occupying a

13 particular post. It's someone who actually delivers letters, is it?

14 MR. IVETIC: It's my understanding that it is someone who delivers

15 letters. But since this witness doesn't have knowledge about the

16 specifics --

17 JUDGE BONOMY: I wasn't aware so far that the SUP dealt with the

18 delivery of letters, but that's now expanding my knowledge of the --

19 MR. IVETIC: The SUP does not, Your Honour, but postal services is

20 also an organ of the Serbian government, public enterprise, so ...

21 JUDGE BONOMY: Well, no doubt it will become clear in due course.

22 But continue with your question.

23 MR. IVETIC: Okay.

24 Q. Now, first of all, sir, do you have knowledge of the fact that the

25 postal service in Kosovo-Metohija was a -- was viewed by the KLA as being

1 part of the government of the Serbian authorities in your interviews with

2 the KLA?

3 A. No. Specifically about the postal service, no, I do not.

4 Q. Okay. Would you -- would you consider attacks against postal

5 service employees to be legitimate or illegitimate under IHL?

6 A. I'm sorry to interrupt, Your Honour, but there's a very odd siren

7 in the --

8 MR. IVETIC: I think we all hear it. It's outside.

9 THE WITNESS: Oh, I see. It's a bit distracting, if I may --

10 okay. Sorry. I thought it was just in the headphones.

11 No, I would not consider attacks on postal workers legitimate

12 under IHL, unless that postal worker was actively engaged in hostilities.

13 But by definition, postal workers are not.

14 MR. IVETIC:

15 Q. Okay. Fair enough, sir. Now, let's turn for a moment to the

16 historical presentations in your various reports, and I believe you

17 indicated that during your time period with the Office of the Prosecutor

18 you were primarily engaged in the historical aspects of the indictment,

19 the background, historical background. Is that accurate?

20 A. With regards to the indictment in particular?

21 Q. Yes.

22 A. That is correct.

23 Q. Okay. Now, as far as the historical presentations in your reports

24 and in the indictment, you did not -- you have no formal education in

25 Balkan history, do you?

1 A. My degree is in international studies, a master's degree, with a

2 focus on eastern Europe.

3 Q. Okay. How many professors of Balkan history were employed by

4 Human Rights Watch, if any, in the drafting of these reports?

5 A. Employed? None.

6 Q. None. Okay. During the vetting process that you described

7 earlier, did any professors of Balkan history review and make comment on

8 the historical sections of your reports?

9 A. I do not believe so, no.

10 Q. For that matter, during the vetting process did you have any

11 police experts review your reports and offer any criticism thereupon?

12 A. What's your definition of a police expert?

13 Q. Well, someone who -- let's break it down to several categories.

14 Did you have anyone -- did you have any police instructors in any

15 accredited police academies or police colleges as part of the vetting

16 process?

17 A. No, we did not.

18 Q. Did you have any high-ranking members of police forces, national

19 police forces, anywhere outside of the Balkans as part of the vetting

20 process?

21 A. No, we did not.

22 Q. Did you have any authors, distinguished authors who had written

23 upon the topic of police activities and police structures as part of your

24 vetting process?

25 A. Not to my knowledge, no.

1 Q. Okay. Now, returning to the time period when you worked for the

2 Prosecutor of this very same Tribunal, would it be accurate to say that

3 your work at the Office of the Prosecutor assisted that office in

4 preparing the indictment, at least the historical part of the indictment

5 against Mr. Milosevic, that in essence is part of the -- part of these

6 proceedings?

7 A. Let me clarify my role. When I arrived here, the indictment had

8 already been issued and the Office of the Prosecutor was in the process of

9 amending the indictment. So I was asked to assist by collecting or by

10 pointing the team in the right direction to where they might collect the

11 documentation to bolster these -- to bolster the historical claims. I

12 also want to state that that was -- that was just one of my -- one of my

13 tasks and not a primary -- not a primary one.

14 Q. Well, sir, at that time, however, the indictment against the --

15 against these accused had not yet been formulated and issued. Is that

16 correct?

17 A. My recollection is the -- that the Milosevic indictment included

18 some of the individuals here today but not all.

19 Q. Not all. Okay. And wouldn't it be fair to say, sir, that in

20 generating your reports you stated that it was a very important objective

21 to assist the process of investigations against Serbian Yugoslav officials

22 for the events in Kosovo-Metohija?

23 A. One of the primary objectives of our documentation is to promote

24 the interests of international justice, and towards that aim we hope our

25 material will assist the tribunal, this Tribunal, in its investigations

1 and prosecutions against all who are alleged to have violated the law,

2 regardless of their ethnicity.

3 Q. Okay. And that objective, to essentially investigate events that

4 would lead to prosecution of Serb officials, that was the main objective

5 of taking interviews from persons in Kukes and wherever else the

6 interviews were conducted. Is that accurate?

7 A. It was one of many objectives.

8 Q. But it was an objective?

9 A. It was an objective.

10 Q. Okay. And isn't it a fact, sir, that these interviews that were

11 undertaken and that are -- that portions or summaries of which are

12 reproduced in our various publications, such as Under Orders, are not or

13 were not taken under oath?

14 A. Under oath, no. No, they were not taken under oath.

15 Q. They were not -- there was no court officer to swear the witness

16 in?

17 A. No.

18 Q. They were not subject to the penalty of perjury, et cetera?

19 A. That's correct.

20 Q. Okay. Now, furthermore your reports have not provided or

21 disclosed much of the source material for the summaries of the interviews

22 as well as the identities of many of the interviewees. Is that correct?

23 A. All of the interviews in our reports are cited. On some occasions

24 to protect the identity of witnesses who requested protection due to fear

25 of reprisals, we would use initials or some other method to protect their

1 full identity. But I would have to go through the footnotes to tell you

2 how -- what percentage of the witnesses requested that protection.

3 Q. Okay. In any event, your organisation did not do any significant

4 background checks of these interviewees to ascertain any connection with

5 the KLA or any bias resulting therefrom, did you?

6 A. Our research relied on as many witnesses as possible to obtain an

7 accurate picture of events, and to do so we witnessed multiple victims

8 and -- excuse me, we interviewed multiple victims and witnesses, asking

9 detailed questions to corroborate the information that -- that they

10 provided. So if you are asking whether we obtained that -- legal

11 documents to describe this person's full history, no, we did not. But we

12 conduct our interviews in such a way that we can, as best as possible,

13 confirm, verify, and corroborate the information they provide.

14 Q. Okay. Sir, isn't it true that the KLA which was mainly based in

15 villages was primarily based around familial units?

16 A. You'll have to explain what you mean by that so I can answer

17 correctly.

18 Q. Sure. Would it be fair to say that in particular villages there

19 would be particular families who were in the KLA and particular families

20 that were not in the KLA?

21 A. I would, in general, agree with that conclusion.

22 Q. We're talking generally.

23 A. Generally speaking, families would participate or would not

24 participate, but there certainly were occasions where one brother would

25 and one brother wouldn't, for example.

1 Q. Correct. But again, generally speaking, isn't it true that the

2 familial patriarch, that is the leading male figure in the family, would

3 have a great deal of say or control over the remaining members of that

4 family?

5 A. I would agree with that statement.

6 Q. And would you also agree that if the familial patriarch was a

7 member of the KLA or sympathised with the KLA, he would have control or

8 pressure over his remaining family members regarding what they talk about

9 with respect to the KLA?

10 A. I agree with that statement.

11 Q. Okay. And I believe that you, yourself, or your organisation have

12 knowledge or reached an understanding that the KLA did have a history of

13 pressuring people with regards to what was presented to the media and to

14 outsiders. Is that accurate?

15 A. There were cases where the KLA would exert its influence on

16 individuals in Kosovo. So, yes, that did take place.

17 Q. Okay. And in fact this is a concern that you cited I believe in

18 Under Orders, if I'm accurate, if not I can get you the page number. But

19 I believe that you stated that your -- you had reached the knowledge and

20 understanding that the KLA had instructed people not to speak about

21 certain events to the media and to other people interviewing them. Is

22 that -- do you recall that, or do we need to get to the exhibit?

23 A. Well, it would be better to get to the exhibit, if you don't mind.

24 Q. Fair enough.

25 MR. IVETIC: That's Under Orders, I believe that's P438, and I

1 believe this appears at page 22 on the e-court variant. I believe this is

2 not page 22 on e-court. Let me -- let me try and get the e-court number.

3 JUDGE BONOMY: It is there. "In some cases they had been

4 instructed by the KLA not to speak of certain events."

5 That's not the one you're looking for.

6 MR. IVETIC: That -- that, I think, is, but I'm not seeing it on

7 the screen.

8 Ah, there it is in the middle. Yes.

9 Q. Sir, now, does that assist you in answering my prior question,

10 which I believe was: Is it accurate that your organisation found that the

11 KLA had instructed people not to speak about certain events?

12 A. In certain cases, that is correct.

13 Q. Okay. And, sir, wouldn't it be a logical by-product of that

14 conclusion and understanding that if the KLA told people what not to speak

15 about, there could very well have been instances where the KLA told people

16 precisely what to speak about.

17 A. My answer to that question is -- you'll have to bear with me, it's

18 a little complex. Because that is precisely why we conduct interviews in

19 such a detailed fashion, so that there is no way possible that an

20 investigation like into Gornje Obrinje that lasted for three weeks and

21 involved interviews with multiple witnesses in one-on-one settings could

22 have been coordinated from above because we ask such specific questions.

23 For example, what was the weather like at that moment? What was he or she

24 wearing at that moment? Questions which sometimes seem inane but allow us

25 to reveal inconsistencies, inconsistencies which undermine the credibility

1 of the witnesses, and that is exactly why this research takes as long as

2 it does. So in the case of Gornje Obrinje, we did that research, we

3 followed that methodology, and we reached the conclusions that we've

4 presented in the report.

5 Q. And I think we've already reached the understanding or conclusion

6 that there was no direct testimony in Gornje Obrinje regarding the

7 perpetrators, so I think we can put that aside. I'm focussing on Under

8 Orders which talks about the results of the interviews in Kukes, which I

9 referenced earlier, which I believe were refugees in the various centres

10 there and the reporting or the conclusions of why they left their homes

11 that I was making reference to. Would it be a logical by-product of the

12 Human Rights Watch finding that the KLA had instructed people what not to

13 speak about, that it also instructed them on what to speak of in place of

14 what not to speak about?

15 A. While there may be isolated incidents of what we could call

16 coaching, I am firmly of the belief that this did not happen on a

17 systematic level or in a coordinated manner because the exodus of more

18 than 850.000 people was so chaotic and so violent that people were flowing

19 across the borders with none of their possessions and moving quickly into

20 different refugee camps in Macedonia and in northern Albania. And there

21 is no way that the KLA or any other force could have instructed them in

22 such a systematic manner to give consistent and reliable reports of the

23 nature you're suggesting.

24 Q. And your interviews were in Kukes which is near a KLA base, is it

25 not?

1 A. My interviews were in Kukes and there are KLA bases in northern

2 Albania.

3 Q. Okay. Now, in fact I believe in Under Orders you reach the

4 conclusion that any evidence coming either directly or indirectly from the

5 KLA heightened your suspicions about its accuracy. Is that a fair

6 assessment of your findings, or your belief I should say?

7 A. We view information coming from any -- any official source or any

8 party to the armed conflict with a healthy dose of suspicion.

9 Q. Okay. And would it be fair to say that you cannot -- first of

10 all, you only interviewed 600 persons from one of the centres. Is that

11 accurate?

12 A. What do you mean, "one of the centres"?

13 Q. In Kukes. From Kukes, not from other -- from Macedonia, for

14 instance, or ...

15 A. Well, again I take issue with the descriptive "only." I consider

16 it --

17 Q. Let's take out "only." You interviewed 600 individuals in our

18 preparation of your findings, or your report?

19 A. In both Albania and Macedonia.

20 Q. Okay. You did not interview the 800.000 that you cited before?

21 A. That's correct. We interviewed 600.

22 Q. You interviewed a limited group in a limited area that had KLA

23 activity, at least part of it, Kukes?

24 A. Well, we would have to go through -- no. The 600 individuals who

25 were interviewed, they were interviewed in different areas, which is in

1 northern Albania, as well as in other parts of Albania, like Tirana, the

2 capital, as well as in Macedonia. And furthermore, we returned to Kosovo

3 in June 1999 and continued our investigations precisely with the objective

4 of investigating further the reports we received from refugees during the

5 war. So we went back to the villages that they told us about to find --

6 to investigate the scenes, to interview more witnesses. And that is part

7 of the 600.

8 And one point I want to stress is I was continually amazed by the

9 degree of consistency between the reports of refugees and our findings

10 when returning down to the degree of specific names. So refugees, for

11 example, would tell us that in such-and-such a village 11 people were

12 killed, ethnic Albanians, were killed by Serbian forces, and they would

13 give us the names. And when we returned to that village, we found

14 precisely the same number of people and the same names. So I was quite

15 astounded by the degree of corroboration we found between the refugee

16 accounts and our onsite investigations.

17 Q. Well, let's return back to the KLA for a second, since that was my

18 question. Let's take a step back to 1998 and 1999. I believe you've

19 already confirmed that there were -- or at least acknowledged that there

20 were frequent attacks on the part of the KLA against, first of all,

21 civilians of all nationalities and then against legitimate government

22 forces and then against army forces. Is that correct?

23 A. It depends what time-frame you are referring to because --

24 Q. 1998 through 1999 is what I specified.

25 A. Well, again, we need to be more precise, because we have

1 documented crimes by the KLA against ethnic Serbs and Albanians in 1998.

2 No question about it. It's all there in our reports.

3 Q. Fair enough.

4 A. In the period of 1999, specifically the period of the NATO

5 bombing, we do not have documentation of KLA abuses during that time. The

6 explanation of course is that they -- it was the period of the NATO

7 bombing and the KLA was otherwise engaged, was in hiding, was active in

8 fighting. So we don't have evidence of abuses against civilians at that

9 specific time, March through June 1999.

10 Q. Okay. Well, isn't it a fact that -- strike that.

11 First of all, let's talk about 1998 and then we'll get to 1999.

12 Isn't it a fact that in 1998 the KLA on the 40 per cent of the territory

13 that it controlled did regularly or -- let's not even say regularly, but

14 did significantly engage in a campaign of violence against civilians of

15 all nationalities and ethnicities?

16 A. I prefer to be specific. It is true in a number of serious

17 incidents the KLA abducted and killed ethnic Serbs as well as ethnic

18 Albanians in places such as Orahovac, in places such as the Belacevac

19 mine and in and around -- in the Djakovica area. It happened, yes.

20 Q. And if you want, let's go specific, if you'd like to, as an

21 example. Isn't it true that on September 9th, 1998 near the Kosovo town

22 of Glodane the bodies of 34 civilians, victims of the KLA, were found in a

23 lake. Do you recall that instance?

24 A. That is correct, yes.

25 Q. Okay. And isn't it also likewise true that -- first of all, are

1 you familiar with the so-called October accords that were entered into in

2 October 1998, the cease-fire?

3 A. I am familiar of its existence but not its details.

4 Q. Okay. Are you aware of the fact or do you have knowledge of the

5 fact that the KLA repeatedly violated that cease-fire agreement subsequent

6 to October of 1998?

7 A. Again, without -- without knowing the details of the agreement, I

8 can't say whether they violated it. But if you're asking whether the KLA

9 engaged in hostilities after October 1998, they did, yes.

10 Q. Okay. And if we were to look even earlier, you would have to

11 agree, would you not, that even as early as 1996 the KLA was organised in

12 or was engaged in pre-planned violence against both civilians and the

13 civil authorities, would you not?

14 A. The KLA began its military operations or its hostilities in Kosovo

15 in 1996, that's correct.

16 Q. Okay. And in fact you summarise some of that in Under Orders. Is

17 that correct?

18 A. That is true.

19 Q. Okay. And you have knowledge, then, I presume, regarding the

20 funding and support base of the KLA and that one source was this Homeland

21 Calling fund which levied attacks on Albanians in the diaspora, would you

22 not?

23 A. I'm familiar with the organisation Homeland Calling, but I, to my

24 knowledge, I would not call it attacks but they collected contributions

25 from the diaspora on a voluntary basis.

1 Q. Okay. And are you familiar with pressure or violence used against

2 persons who refused to contribute to this -- to this fund, if you will?

3 A. I am not aware of that, no.

4 Q. Fair enough. In addition to the fund, the KLA was founded and

5 drew its support from other activities, including drug smuggling, human

6 trafficking, money laundering, and other criminal activities? Isn't that

7 accurate?

8 JUDGE BONOMY: Don't answer that for the moment.

9 Mr. Ivetic, can you help us with the purpose of these questions.

10 Where is it they are leading?

11 MR. IVETIC: What I'm leading to, Your Honour, is that this

12 witness gave some testimony going around how to qualify the KLA. He

13 wouldn't call them terrorists. He wanted to call them insurgents. I'm

14 trying to find out what his definition of the KLA encompasses. And the

15 words I'm using right now come from his report, so I'm not trying to place

16 any words in his mouth that he hasn't already uttered.

17 JUDGE BONOMY: Just give me a moment then.

18 [Trial Chamber confers]

19 JUDGE BONOMY: We see the legitimate purpose for which these

20 questions are being asked. But I think, Mr. Ivetic, it's also legitimate

21 for us to invite you to get more quickly to the point rather than explore

22 in detail activities of the KLA of which we are fairly well aware.

23 MR. IVETIC: Fair enough. I will try to abbreviate my discussion

24 of that.

25 I'm directed to the clock. Should we -- do we need to take a

1 pause or can we continue?

2 JUDGE BONOMY: Yes, Mr. Hannis.

3 MR. HANNIS: Your Honour, since we're near the break I just want

4 to address a question to you to my colleague to ask if we can have an

5 estimate for how much for purposes of scheduling witnesses. We have got

6 one with a young baby and one with a medical condition.

7 JUDGE BONOMY: Can you help, Mr. Ivetic?

8 MR. IVETIC: Yes, I should have about 45 to 50 more questions

9 which I would estimate would be about an hour.

10 JUDGE BONOMY: All right. Thank you.

11 MR. IVETIC: I'll try to be a little less, obviously. I'll try

12 and use the break to cull my questions to be more succinct.

13 JUDGE BONOMY: Okay. Well, we'll take the break now and we'll

14 resume at 2.00.

15 MR. IVETIC: Thank you.

16 --- Luncheon recess taken at 12.28 p.m.

17 --- On resuming at 2.01 p.m.

18 JUDGE BONOMY: Mr. Ivetic.

19 MR. IVETIC: Thank you, Your Honour.

20 Q. Mr. Abrahams, I'd like to first return for just a brief moment to

21 Gornje Obrinje, since I had an opportunity to review the transcript and

22 saw that I'd missed one critical element. Namely, are you aware that

23 after the Serbian judicial authorities ordered an investigation and an

24 exhumation, and that while the forensic pathologists and criminal

25 technicians were on their way under the security of the police, because

1 obviously the police does not perform the exhumation, they provide

2 security, are you aware that the convoy itself was shot at in Likovica

3 [phoen], an area that you previously identified as a base for KLA

4 activity?

5 A. That information is not known to me.

6 Q. Okay. You would agree, would you not, that that bit of

7 information would have a significant bearing on conclusions relating to

8 Gornje Obrinje and whether or not the authorities were responsive to

9 complaints about that incident?

10 A. A significant bearing, no, I would not agree.

11 Q. You would agree that it has some impact on your conclusions?

12 A. If the government was in good faith making an effort to

13 investigate the crime with an eye towards prosecuting those responsible,

14 then, yes, that is a -- that is a -- that would --

15 Q. That would change things --

16 A. No, that would -- sorry, I'm still digesting my lunch. I

17 apologise. Then that would be relevant.

18 Q. That would be relevant. Okay. And again, this is information

19 that you did not have.

20 A. That the authorities had sent a delegation or sent a forensic

21 team?

22 Q. Correct, and that they were shot upon and could not proceed due to

23 the shootings in -- from the direction of Likovic?

24 A. No, I did not know that.

25 Q. Okay. Now, if we could return for a moment to the issue of the

1 KLA. We had talked before the break about some of the activities of the

2 KLA. As someone who has studied the region and has some knowledge on it,

3 are you familiar with another organisation that helped recruit fighters

4 for the KLA called the Albanian Arab Islamic Bank?

5 A. No, I'm not familiar with that.

6 Q. Are you aware with statements made by Mr. Fatos Klosi, the former

7 head of the Albanian intelligence service in 1998, that this organisation

8 and other al Qaeda terrorist cells were sending fighters to join the KLA?

9 A. No, I am not aware of that statement, no.

10 Q. Was that part -- you did not -- strike that.

11 I take it, then, that was not part of your research for your book

12 on history where you claim that the KLA was distancing itself from

13 terrorists?

14 A. For my research, I actually interviewed Mr. Klosi, Fatos Klosi to

15 whom you refer, and further investigated the claims of Islamic fighters,

16 but at no point did I encounter statements from him about this bank.

17 Q. Did he mention al Qaeda fighters?

18 A. Al Qaeda, no.

19 Q. Okay. Terrorists?

20 A. No.

21 Q. Okay. With respect to -- are you aware with the French national

22 Claude Kader who was arrested in France in 1998 and was -- and testified

23 that he personally trained and recruited al Qaeda fighters for the KLA?

24 A. I'm familiar with that name, yes.

25 Q. Okay. And are you aware with the subject matter of his testimony

1 as I have summarised it?

2 A. My understanding of that case, but my recollection is not precise,

3 is that Mr. Claude Kader was arrested in Tirana for murdering an Albanian,

4 I believe his translator, if I'm not mistaken. And in the course of his

5 testimony he said that he had been hired to recruit Islamic fighters for

6 the KLA.

7 Q. Okay. Now, the point of all these questions is, sir, you stated

8 earlier that you tend to avoid classifying the KLA as a terrorist group

9 but rather call it insurgency. But wouldn't it be fair to say that

10 whether you coin the KLA as a terrorist group or an insurgency, or just

11 some type of organised criminal element, you would have to qualify their

12 activities of attacking civilians, including civilians of all

13 nationalities, including non-Serbs and non-Albanians, such as Goranje

14 [phoen], Roma, Turks, Egyptians, et cetera, that those would constitute

15 criminal acts by any definition, would they not?

16 A. I would say that the KLA's attacks on legitimate military targets

17 during the state of armed conflict were not violations of international

18 humanitarian law but they could be categorised, classified, and prosecuted

19 as violations of Serbian or Yugoslav law.

20 Now, attacks on illegitimate targets, such as civilians, would, in

21 addition to being violations of domestic law, also be a violation of

22 international humanitarian law.

23 Q. And wouldn't you also have to agree that eliminating such criminal

24 activity, be it quantified as terrorism or other criminal acts, and

25 stopping those engaged in the abduction and/or killing of civilians is a

1 legitimate function and obligation of any state, not just Serbia or

2 federal Yugoslavia as it was at the time?

3 A. Yes, and my work is not whether a state does that, but how the

4 state does that.

5 Q. I believe you've mentioned that before. Now, I believe that you

6 testified the other week before the break that you could agree that there

7 was -- that in general there was some degree of intimidation upon the

8 ethnic Albanian population from the side of the KLA.

9 Now I'm going to ask you a different question. Are you aware of

10 the fact that the KLA also engaged in some conflict with other organised

11 Kosovo Albanian groups, armed or otherwise?

12 A. Yes, I am aware.

13 Q. Okay. And of which -- of which groups are you aware of, that were

14 in conflict with the KLA?

15 A. The one group I know of is called the FARK, Forcat e Armatosura

16 e Republikes se Kosoves.

17 Q. We're on the same wavelength, that's where I was heading. And

18 this so-called FARK, the English translation being the armed forces of the

19 republic of Kosova, I believe, this was headed by Bujar Bukoshi. Is that

20 correct?

21 A. Mr. Bukoshi had a role in FARK to the best of my knowledge, but

22 I'm not sure if he was the leader or -- what word did you use?

23 Q. I used the word "head." I believe -- let me quantify that.

24 Mr. Bukoshi was the self-styled Prime Minister of the

25 self-proclaimed government in exile of the Kosovo Albanians. Is that

1 correct?

2 A. I wouldn't call him self-styled. I believe he was the chosen

3 Prime Minister in that government. Whether you view that government as

4 legal or not is another question.

5 Q. Well, that government wasn't recognised by any states, was it?

6 A. That's correct.

7 Q. Now, isn't it also true that FARK had armed units within the

8 territory of Kosovo-Metohija during the relevant time period 1998, 1999?

9 A. There were periods when FARK had armed units in Kosovo, yes.

10 Q. And isn't it also true that FARK's armed units clashed with those

11 of the so-called KLA?

12 A. There were incidents of so-called clashes, but I'm not aware of

13 the extent. And at a certain point there was a cessation of hostilities

14 between the two.

15 Q. At a certain point, they merged. Some elements merged. Is that

16 correct?

17 A. That's correct.

18 Q. But in fact the -- there is some intimation that FARK's military

19 leader, Ahmet Krasniqi, who was assassinated in Tirana in September of

20 1998 had been assassinated by KLA supporters. Isn't that correct?

21 A. There are many allegations about why Mr. Krasniqi was murdered in

22 Tirana, and I, through my investigations with Human Rights Watch and my

23 book, have never been able to determine who the perpetrator was.

24 Q. But that is one of the theories that's out there, isn't it?

25 A. That the KLA killed Mr. Krasniqi? That is one of the theories,

1 yes.

2 Q. Thank you. And in addition, the KLA was also at odds with the

3 LDK, which was the political party that Mr. Rugova headed. Is that

4 correct?

5 A. The LDK political party and the KLA had different views on how to

6 resolve the Kosovo issue, and those views were often at odds with one

7 other, yes.

8 Q. And in addition to being at odds with one another, isn't it also

9 true that there were reported instances of the KLA harassing or beating up

10 LDK officials who were advocating for a peaceful solution rather than a

11 military solution?

12 A. There are some cases of that, yes.

13 Q. Okay. So you are aware of them?

14 A. Yeah.

15 Q. Now, would it be fair to say then also that the civilian

16 population, the Kosovo Albanian civilian population, likewise would be

17 split up amongst these various affiliations or support for these various

18 groups?

19 A. It depends what time period you're speaking about. Because

20 popular support for the LDK, Ibrahim Rugova, and that political party was

21 very strong leading up to 1998, but it was eroding over time as the abuses

22 continued and as the militant organisation of the KLA, the armed group of

23 the KLA, began to present itself as an alternative to the LDK. And as the

24 abuses continued, the moderate politicians or the politicians who were

25 pursuing the non-violent approach in the LDK, and Rugova specifically,

1 were losing ground to the militants who said: This policy is not working

2 and we must confront the Serbian state with force.

3 And in particular, I would point to the events of Drenica in late

4 February/early March 1998 when in a series of incidents Serbian forces

5 killed 85 individuals, among them more than 20 women and children. And in

6 my opinion, this was a watershed moment when public opinion shifted from

7 the LDK to the KLA, viewing the armed insurgency as both a means of

8 defence and also the only viable option to confront the aggression -- what

9 they viewed as the aggression of the Serbian state.

10 Q. That being said, though, sir, I'm sure you can't deny that there

11 maintains some tensions if not open hostility and conflict between these

12 various ethnic Kosovo Albanian groups who had differing agendas and

13 differing plans for how to obtain those agendas. Isn't that correct?

14 A. There were many different views and a constant tension between the

15 groups, yes.

16 Q. Okay. Now, turning back to the areas that you previously

17 testified that IHL violations are alleged to have occurred or that from

18 where the interviewees came from, isn't it fair to say that these areas

19 that you previously mentioned, these several municipalities, were areas

20 where there were a significant number of armed exchanges between the

21 so-called KLA, terrorist or otherwise, and the legitimate police and army

22 forces of Serbia and Yugoslavia?

23 A. In some cases, yes, and in some cases, no.

24 Q. Okay.

25 A. In general -- excuse me. In general there were violations in

1 areas where the KLA was active; that is absolutely true. But we also

2 documented cases where the KLA had no activity. For example, in the city

3 of Pec or in the city of Pristina or in districts like Istok and Lipljan

4 where KLA activity was significantly less.

5 Q. Okay. Well, let's focus on those areas where KLA activity

6 vis-a-vis the legitimate police and army forces was prevalent. Would it

7 be -- and you've already -- I believe we've already discussed the fact

8 that the KLA had no problem initiating attacks from villages knowing that

9 civilians would get caught in the middle. Would it -- under those

10 circumstances, would it be fair to say that the average Kosovo Albanian

11 had reason to fear for their safety, given these inter-party clashes

12 between the legitimate police and army forces on the one hand, and the

13 KLA, whatever you want to call them, on the other hand?

14 A. Well, first I would say that on occasion the KLA put the civilian

15 population at risk by launching attacks from populated areas. I wouldn't

16 say that they did it with the purpose or the aim of opening this

17 population to attack, but there were cases when their actions did have

18 that result due to the overreaction from the Serbian police force.

19 Q. In that situation then, wouldn't -- strike that.

20 You cannot exclude, then, that some people that left those

21 municipalities left as a direct and proximate result of the ongoing

22 fighting that was going on between the so-called KLA and the legitimate

23 state forces?

24 A. What time period are you referring to?

25 Q. In 1998 and 1999.

1 A. Those are very different periods. This was a dynamic conflict in

2 which the conditions changed.

3 Q. Okay. Well, what about in areas where the KLA was feuding with

4 FARK or other Kosovo Albanian organisations, wouldn't it be logical and

5 possible that people would flee to avoid that conflict as well?

6 A. The tension and conflict between KLA and FARK was limited to the

7 areas in the far west of the country along the border with Albania. And

8 to my knowledge, nobody left those areas as a result of that fighting.

9 And it's an exaggeration to say that there was hostilities between the two

10 of them. They were hostile to one another, but there was no open fighting

11 to the extent of coordinated and organised military action.

12 Q. To your knowledge?

13 A. To my knowledge.

14 Q. Okay. And again you said to your knowledge no one left the area

15 due to that. That's again based upon your interviews of 600 individuals

16 who represent .03 of 1 per cent of the entire population?

17 A. The departure from Kosovo of 850.000 people was the result, based

18 on my interviews, of a coordinated campaign to expel them. And at the

19 time period we are referring to, which is from March to June 1999, by that

20 point FARK and KLA had made up, if you will, had decided to cooperate with

21 one another. So there was not tension and fighting between -- well,

22 tension always existed but fighting and hostility between the two in the

23 period of the NATO bombing.

24 Q. And again, this is all based on your knowledge. And again if the

25 KLA did pressure people not to talk about other reasons for leaving, then

1 you would not have heard about them. Is that correct?

2 A. No, that is incorrect.

3 Q. Well, if -- are you telling me that if the KLA pressured people

4 not to talk about other reasons you would somehow find out about that?

5 A. I believe yes.

6 Q. Well, that's your testimony.

7 Now, let's move to the NATO attacks for which I believe you do

8 have some knowledge and information from what I've read. I believe you've

9 acknowledged in one of Human Rights Watch's reports that about 250.000

10 displaced persons of non-Albanian ethnicity, including primarily Serbs,

11 fled their homes in Kosovo-Metohija during the period in question when the

12 NATO bombs began to fall. Or I, pardon me, strike that. From the period

13 of 1998 through the end of the NATO bombing that 250.000 Serbs had been

14 displaced from Kosovo-Metohija or non-Albanians and some of them were not

15 ethnic Serbs?

16 A. Can you direct me to the reference in my material?

17 Q. I would believe -- unfortunately, I don't have a page reference,

18 but I do have a page reference later on for some of the other stuff. It's

19 in our report relating to the NATO air-strikes. Once we get to that maybe

20 I'll find a page number.

21 But do you have knowledge of the fact that Serbs and other

22 non-Albanians from Kosovo-Metohija fled their homes and became internally

23 displaced persons as a result of a fear for their personal safety

24 resulting from the NATO attacks and bombardments? Do you have any

25 knowledge without getting into specific numbers or statistics?

1 A. Just to clarify, you're talking about non-ethnic Albanians who

2 left their homes in the period -- during the period of the NATO bombing?

3 Q. Correct.

4 A. Well, I don't have numbers, but I do believe that people did leave

5 their homes due to the air campaign and the ongoing war. But even more

6 left their homes after, when there was definitely a discrimination against

7 Serbs after June 12th, 1999, which we have covered in our reports also.

8 Q. Let's focus on the period of the NATO bombing for right now for

9 clarity. I believe that your organisation has amassed information

10 relating to the scope of the human tragedy that resulted from the NATO

11 bombing in Yugoslavia in general but more specifically relating to the

12 province of Kosovo-Metohija. Is that an accurate description?

13 A. We have produced reports based on field research that documented

14 the civilian casualties from -- as a result of the NATO bombing as well as

15 human rights conditions in Kosovo after June 12th, 1999.

16 Q. Okay. And I believe you testified in your direct examination the

17 other week that a significant portion of all the NATO attack sorties took

18 place over the territory of Kosovo-Metohija. Isn't that accurate?

19 A. Our report documents approximately 90 incidents of civilian

20 casualties in all of Yugoslavia, about a third of which occurred in

21 Kosovo.

22 Q. Well, that's what I want to take issue with you on. That's how

23 you testified when the Prosecution asked you to testify on this topic, but

24 I'm a little confused because when I read your report specifically Under

25 Orders at page 40 in e-court, P438, it's clear that you state that -- your

1 organisation states that 56 to 60 per cent of civilian casualties from the

2 NATO bombings were on the territory of Kosovo-Metohija, which is

3 considerably more than one-third?

4 A. No, I said a third of the cases.

5 Q. Okay, of the incidents. So would it be fair to say, then, that

6 two-thirds of the civilian casualties resulting from the NATO bombings

7 took place on the territory of Kosovo and Metohija?

8 A. 56 to 60 per cent.

9 Q. Okay. And that many of these instances or incidents where

10 civilian -- what NATO calls collateral damage but which is really the loss

11 of civilian life occurred in these very same municipalities that we've

12 been discussing these past several days' worth of testimony?

13 A. I would have to examine the report in detail to tell you where

14 precisely those incidents took place in Kosovo.

15 Q. Well, by way of an illustrative example I believe in appendix B of

16 your report, civilian deaths in the NATO air campaign, do you recall an

17 incident in Djakovica on April the 14th, 1999, when it was reported that

18 37 named Albanians, naturally Kosovar Albanians, and an additional 36

19 other unidentified persons were the victims of and were killed by the NATO

20 bombings, and again these would be all civilians. Do you recall that

21 incident, for instance?

22 A. I have a vague recollection, but I don't remember the details.

23 And I'm -- frankly I'm a little surprised if there's one incident with

24 60-plus casualties.

25 Q. I believe that was one day, one day in Djakovica those were the

1 deaths that were registered. Perhaps you can explain. P703 is the

2 exhibit in question on e-court. It's appendix B. I'll get the page

3 number in just one moment. That's page 74 in e-court. Yeah, I've

4 confirmed it's page 76.

5 The date of the incidents are April the 14th, and it's there, that

6 portion that starts: "Area between Djakovica and Decani," and it lists

7 members who are known and 36 unidentified persons. So perhaps you can

8 correct me. Was I accurate in stating that this is a summary of the

9 persons who died in that area as a result of NATO bombing in that one day?

10 A. Correct.

11 Q. Perhaps not incident but one day?

12 A. Yes.

13 Q. In fact, we know that there were probably multiple instances where

14 NATO bombs, either directly or indirectly, caused civilian deaths?

15 A. That is correct.

16 Q. Okay. Now, these -- for instance, this one day where some 60-plus

17 persons died, that would be qualified as a very significant and in fact

18 devastating day in the NATO campaign, would it not, in terms of civilian

19 deaths resulting therefrom?

20 A. I agree.

21 Q. And again, this is one of the areas where we -- where we've heard

22 you testify that people left during this same time period, that is to say

23 after NATO bombs began, left the territory, and either left -- some of

24 them left Kosovo-Metohija entirely. Now, what I'm asking is: You would

25 agree that NATO bombing cannot be excluded as a cause for these people to

1 leave their homes if they had a fear for their personal safety, given the

2 fact that bombs were falling and that there were instances of many

3 civilians being killed by these bombs?

4 A. I can exclude it and I'll tell you why. There may be individuals

5 who left Kosovo because they feared a NATO bomb, but I, in all the

6 interviews that I personally conducted and in all the interviews that my

7 colleagues conducted, not a single person claimed that was the reason, and

8 conversely they gave detailed and consistent testimony on why exactly they

9 were leaving and how in particular they had been forcibly expelled from

10 their homes, villages, and towns.

11 Furthermore, they explained to us a process that we dubbed

12 identity cleansing, which was on the border with Albania or Macedonia,

13 Serbian officials or Yugoslav forces took from them their identity

14 documents, their identification, their birth certificates, and what not,

15 which we interpreted as a way to restrict or inhibit their return to the

16 province. And again and again these individuals explained how their area

17 was surrounded, how the men were separated from the women, how at

18 sometimes the men were at that point executed, and how the rest of the

19 families were pushed along the roads where they were encouraged towards

20 the border, usually the army was on the roads, and forcibly expelled from

21 the province. And we determined no correlation between the areas of NATO

22 bombing and the areas that were being expelled, forcibly expelled, none

23 whatsoever.

24 Q. And again, this is based upon your knowledge of the 600 people

25 that you interviewed, what they told you?

1 A. This is based on over how many months, I have to count to be

2 exact --

3 Q. Well, let me ask you this: If other people interviewed by other

4 agencies reported that they did leave because of NATO bombing, then that

5 is something that would not be covered by your survey. Isn't that

6 correct?

7 A. I would have to review that material to determine whether I found

8 it credible or not.

9 Q. Okay. Well, if Ms. Mitchell of the OSCE told us that there were

10 instances of people that testified to her that they left because of NATO

11 bombing, would that be a source you would find credible?

12 A. Yes.

13 Q. Okay. Fair enough. Now, you previously had testified, I believe,

14 that you did not have any knowledge of the KLA undertaking acts of

15 violence or attacks upon civilians of Albanian ethnicity in the year 1999?

16 A. Between -- in the months March through June 1999.

17 Q. In the months March through June 1999. Okay. So we're clear on

18 that. I take it then that you did not have access to or information about

19 reports submitted by the Serbian police in the terrain regarding

20 information they had or reports of villages that had been attacked by the

21 KLA and whose inhabitants, including ethnic Albanians, had been displaced?

22 A. In the period March through June --

23 Q. In the period March through June 1999.

24 A. Excuse me. Can you repeat the question?

25 Q. Sure. I take it then that you did not have access to or

1 information about reports submitted by the Serbian police in the terrain

2 regarding information they had or reports of villages that had been

3 attacked by the KLA and whose inhabitants, including ethnic Albanians, had

4 been displaced by the KLA from those villages in the time period from

5 March to June of 1999?

6 A. I did not have access to that -- those police records, no.

7 Q. And in fact, insofar as you testified that the only inquiries --

8 the written inquiries that were sent were in 1998 and that you did not

9 send any subsequent written inquiries, you didn't even ask for that

10 information from anyone, did you?

11 A. No, we did not.

12 Q. Okay. So would it be fair to say then, sir, that again this is an

13 area where your report, as comprehensive as it is, is lacking due to not

14 having all of the relevant information regarding the region that is being

15 discussed?

16 A. Police reports on the activity of the KLA during the period of the

17 NATO bombing would have expanded the scope of our research. I would have

18 gladly included it.

19 Q. Okay. One moment, please.

20 [Defence counsel confer]

21 MR. IVETIC: I apologise. Just trying to see if there's some

22 questions that I can short-circuit.

23 Q. You would agree, would you not, that in order to have a full and

24 complete picture in any circumstance it is always preferred and in fact

25 even essential to hear both sides in a conflict, is it not?

1 A. Yes.

2 Q. Okay. And in fact, due to not having the type of information that

3 I've mentioned several times here and that we've seen some examples of,

4 your report does not fully present both sides. Isn't that correct?

5 MR. STAMP: I hate to interrupt. This is about the tenth time

6 we've had that question in various different formats. The witness has

7 already indicated that he would not even know of the existence of these

8 reports, and so it leaves him in an area where he needs to speculate if

9 they existed what would he do. And the question has come so many times

10 that I have to rise, although I don't normally object in situations like

11 this, but we have time considerations in respect to other witnesses who

12 have problems.

13 JUDGE BONOMY: Thank you, Mr. Stamp.

14 Mr. Ivetic.

15 MR. IVETIC: If time's a problem, I believe that I'm close to

16 winding up my questioning, and I'm just asking for a conclusion now that

17 we've gone through several instances where the witness has confirmed he

18 has not had knowledge of stuff, and we have seen an exhibit detailing some

19 of the stuff he has not had knowledge of, and I believe it's relevant to

20 the matters that he has just been testifying to, and I'm just trying to

21 find out whether in fact he will acknowledge that his report is lacking at

22 least in one respect due to not having this information, which obviously

23 since he doesn't have knowledge of it I'm not going to go through

24 documents with him. But I can bring him through some other means --

25 JUDGE BONOMY: Well, it's a matter for argument in due course. I

1 don't think an answer to that question would add to our knowledge, so move

2 on to something else, please.

3 MR. IVETIC: Fair enough.

4 Q. Now, with respect to the NATO bombings, I believe that you

5 indicated in your direct examination that you -- your organisation viewed

6 the acts by NATO that led to civilian casualties as being violations of

7 international humanitarian law. Is that accurate?

8 A. That's accurate.

9 Q. Okay. Now, I'd like to move, if I may, to the oft-cited so-called

10 Operation Horseshoe, which was utilised by NATO or was promoted by NATO as

11 one of the main justifications of its commencement of air attacks against

12 Yugoslavia. And if I remember correctly, this was a claimed offensive

13 plan by the Yugoslav forces, purportedly to encircle Kosovo-Metohija and

14 expel the civilian population. Is my recollection accurate as to what

15 NATO portrayed or promulgated with respect to this Operation Horseshoe?

16 A. Prior to answering that, I have one small comment with reference

17 to your previous question, if I may address it.

18 Q. The previous question about IHLs of NATO?

19 A. No, about our requesting information from Serbian and Yugoslav

20 authorities.

21 JUDGE BONOMY: We're past that, Mr. Abrahams Deal with the

22 question which you've now been asked.

23 THE WITNESS: I'm sorry. I'm just reviewing the question.

24 Yes. There was much speculation and comment about the existence

25 of Operation Horseshoe, which ostensibly was meant -- was the plan to

1 expel the ethnic Albanian population. I never uncovered evidence to

2 suggest that this specific "Operation Horseshoe" existed as such.

3 MR. IVETIC:

4 Q. In fact, to the contrary, you uncovered suggestions or evidence

5 that in fact this Operation Horseshoe was a hoax that was faked by the

6 German government to deflect growing criticism at home over the direction

7 of the NATO campaign. Isn't that accurate?

8 A. Can you refer me to the statements that you're --

9 Q. Yes. In Under Orders, P438, page 86 in e-court.

10 While we're waiting for that, sir, do you generally remember

11 something along those lines without getting into specifics?

12 A. I'm afraid I have to see it because my memory is --

13 Q. No problem. We'll get there. Again, that's page 86. There it is

14 right in the middle, and I'll start with the sentence, you see that, sir,

15 where it says: "A retired brigadier general in the German army, however,

16 later stated that the claims of a plan were faked from a vague

17 intelligence report in order to deflect growing criticism in German of the

18 bombing."

19 A. Yes, I recall that media report.

20 Q. Okay. And -- so does that refresh your recollection as to whether

21 or not you discovered indications that in fact Operation Horseshoe was a

22 non-existent propaganda tool being used by one of the NATO countries to

23 prop up support for the air campaign?

24 A. I included this statement in the report because I felt these

25 allegations were credible enough to merit their inclusion; namely, that

1 there were strong suggestions that the certain governments, in this case

2 the German government, was using the so-called Operation Horseshoe to

3 mobilise public support within Germany. However, while I am to this day

4 not convinced that "Operation Horseshoe" existed per se, I am firmly of

5 the opinion that there was a systematic and coordinated campaign to expel

6 large numbers of the ethnic Albanian population.

7 Q. Well, sir, are you aware -- I'm sure you are, since you indicated

8 this was included because it was a credible source, that the individual

9 who uncovered this in April of 2000, retired German brigadier general

10 Heinz Loquai, actually published a book regarding this where he detailed

11 precisely what the true intelligence was, namely that the Germans were

12 using general Bulgarian intelligence, which stated to the contrary that

13 any activities that the Serbian military forces were planning intended to

14 drive out the KLA and not Albanian civilians?

15 A. I am not aware of the book.

16 Q. Your research did not go that far.

17 A. When was the book published?

18 Q. April of 2000.

19 A. No, I'm not familiar with it.

20 Q. Okay.

21 JUDGE CHOWHAN: Sorry, I have to ask a question, Mr. Abrahams.

22 What was the criteria usually which you kept in mind while accepting

23 certain statements to be credible and some statements not to be credible?

24 I mean, you would be having a general criteria about it, because otherwise

25 it will be capricious taking some and not taking the other. Could you

1 dilate a bit on that so that we -- at least for my purposes. Thank you

2 very much.

3 THE WITNESS: Yes, Your Honour.

4 I cannot give you a strict formula. There is no way to say that

5 this newspaper is credible and this one not. But we did try and rely

6 largely on media sources that are - how can I explain it? - this may seem

7 vague, but generally accepted to be -- to have large readerships and

8 are -- have reputations as valuable sources.

9 But that said, most important for us was to provide the citation

10 in a footnote so that the reader himself or herself can then best

11 determine how they view this source, because credibility is of course in

12 the eye of the beholder.

13 JUDGE CHOWHAN: Did you try to have it corroborated with or check

14 the material which corroborated the information that you got? Because

15 repetition is one thing, of course, but then corroboration means if two,

16 three sources are talking of the same, then of course there is a sense

17 that you would -- that there is credibility about it?

18 THE WITNESS: Yes, we tried to make sincere efforts at

19 corroboration. And I should stress we never relied on media reports when

20 making allegations about crimes; we would use media sources we considered

21 credible to corroborate in addition to multiple witness statements. But

22 in this case I raised this because I felt it -- it introduced a legitimate

23 point again about the Operation "Horseshoe" per se about which I never had

24 found evidence to support it existed per se this particular plan, which is

25 not to say that I don't believe there was a plan.

1 JUDGE CHOWHAN: Thank you very much.

2 MR. IVETIC:

3 Q. Okay, sir. Now, just to get back a point that we had touched upon

4 before we took our last break. You had mentioned several areas where you

5 had knowledge of attacks or activities by the KLA that were aimed at the

6 civilian population, be they Serb or otherwise. Let's focus for a moment

7 on the activities of the KLA vis-a-vis ethnic Serb civilians that

8 inhabited the areas that they controlled. You had mentioned I believe

9 Djakovica as one of the areas where the KLA had undertaken attacks upon

10 the civilian Serb population. Could you expound upon that, and please

11 give us an overview of some of these attacks or activities that you have

12 knowledge of.

13 A. In the Djakovica area, most of the incidents I'm familiar with are

14 from the period of 1998, in the spring/summer of 1998, at which time the

15 KLA exerted pressure and used violence against civilian populations in the

16 area under its control.

17 Q. And these incidents, how -- how many or how frequent are we

18 talking about, or was there just one incident or were there several such

19 instances in the Djakovica municipality?

20 A. I'm not able to answer how many incidents were in particular. If

21 I'm not mistaken, and I would have to consult with our reports, I believe

22 that 198 people, both Albanians and Serbs, went missing during 1998. And

23 that figure is from the International Committee of the Red Cross, but

24 please, I have to check that number to be precise.

25 Q. That's okay, but what I'm trying to get at is given that number,

1 whether it's 198, 190, 150, would it be safe to say that we're talking

2 about more than one incident and just leave it at that?

3 A. Yes, that's fair to say.

4 Q. Okay. Well, Mr. Abrahams, I thank you for your time. I think I

5 have exhausted all the questioning that I have for you today.

6 MR. IVETIC: Your Honours.

7 JUDGE BONOMY: Thank you, Mr. Ivetic.

8 Mr. Stamp.

9 MR. STAMP: Just a couple questions.

10 Re-examination by Mr. Stamp:

11 Q. You said in response to questions from my learned friends for the

12 Defence that after the letters which were exhibited in evidence here you

13 did not send any other letters?

14 A. To the best of my recollection, that is correct.

15 Q. And in your statement you said that you made several attempts to

16 speak with the Yugoslav authorities for armed security, internal security,

17 under the VJ in Belgrade, but you were not permitted to speak with them in

18 spite of your best efforts?

19 A. That's correct.

20 Q. And then finally in answer to my friend Mr. Ivetic you said --

21 well, I think it was Mr. Ivetic, but in answer to one of the Defence

22 counsel you said in respect to the MUP you also made attempts to speak

23 with MUP authorities in Pristina, that's the MUP for Kosovo, but you

24 failed to do so. Could you elaborate upon that. What sort of efforts did

25 you make to speak with the MUP authorities in Kosovo?

1 A. At various times we approached police stations in Pristina and

2 other areas, and we were continually told to refer our questioning to the

3 proper authorities. I would add also that we did have a researcher in

4 Belgrade throughout the period of the NATO bombing, a Yugoslav citizen,

5 who was following the war from Belgrade. And in, if I'm not mistaken, May

6 this individual, an employee of Human Rights Watch, was summoned to the

7 police station in Belgrade -- to a police station in Belgrade, I believe

8 Stari Grad, where he was interrogated for five hours by the secret police.

9 His passport was confiscated and the Human Rights Watch laptop was

10 confiscated. He was also visibly and verbally threatened, after which

11 time we decided that our colleague should no longer actively engage in

12 research, due to the threats against him.

13 Q. Thank you very much. You were shown a footnote from the -- from

14 the Human Rights Watch publication, Exhibit 437. It's human rights

15 violations in Kosovo. Well, you were shown the footnote. I won't

16 belabour it by reading the footnote again. And the point was made that

17 none of those persons named in the footnote which detailed persons in

18 command positions or armed forces and police in Yugoslavia include any of

19 the accused here and you agreed with that, but you said that later on that

20 report was revised. First, then, as a matter of the record, you would

21 agree with me that that report is dated 1998, October 1998?

22 A. That's correct.

23 Q. And further, without going through all the reports, this is also a

24 matter of record so I just lead straight to it. The names of the persons

25 involved in the command and control of the force of the FRY and Serbia

1 that were involved in the human rights abuses in Kosovo during the NATO

2 bombing are also -- are named in the report As Seen, As Told -- Under

3 Orders, I beg your pardon. Is that correct?

4 A. That is correct.

5 Q. And that would be the section dealing with the chain of command in

6 which you would name every accused here?

7 A. That's correct.

8 Q. And that is page 10 of the exhibit Under Orders.

9 MR. STAMP: I have nothing further.

10 JUDGE BONOMY: Thank you, Mr. Stamp.

11 [Trial Chamber confers]

12 JUDGE BONOMY: Well, thank you, Mr. Abrahams. That completes your

13 evidence. Thank you for coming to the Tribunal yet again to give it, and

14 you're now free to leave.

15 THE WITNESS: Thank you, Your Honour.

16 [The witness withdrew]

17 JUDGE BONOMY: Now, Mr. Visnjic, you have submitted a notice of

18 objection to portions of Exhibit P2228, and in fact it's one of the items

19 that make up 2228 to which you take exception. I think your objection is

20 to the admissibility of pages, I think, 4 to 18 of the 19-page statement.

21 Is that correct? Sorry, Mr. Sepenuk. Now, this builds upon an earlier

22 point taken by Mr. Lukic. Is that right?

23 MR. IVETIC: By our Defence, Your Honour, that's correct.

24 JUDGE BONOMY: And what you're concerned about is the portion of

25 the statement which gives an account of the historical and political

1 situation within Kosovo?

2 MR. SEPENUK: That's correct, Your Honour.

3 JUDGE BONOMY: And you object to coming -- that coming in as a

4 matter of fact, as it were, or even opinion from this particular witness.

5 Is that correct?

6 MR. SEPENUK: And I stress, Your Honour, from this particular

7 witness, yes.

8 JUDGE BONOMY: Yeah. Now, let me just clarify first of all with

9 Mr. Stamp what purpose, if any, he would seek to rely on this particular

10 portion of the statement.

11 MR. STAMP: The portion of the statement, as I understand it,

12 that's being referred to by the Defence is that portion dealing with the

13 history of Kosovo. And when we say "history," we speak of a brief

14 treatment of the period 1974 to 1995 and then a more detailed treatment

15 from the period 1995 thereafter.

16 Now, insofar as that is history, since it is in the past, firstly,

17 that period, particularly the period 1995 thereafter, is well within the

18 area that the witness could speak about as matters of fact since he was --

19 he studied eastern European affairs, including the Balkans, and he lived

20 there, researched it, and studied it for the purposes of his work.

21 Secondly, most of this history is relevant to the case in terms of

22 the context in which the offences that were committed later on in 1999

23 were committed in the same sense that the indictment has a

24 section "general allegations" in which it appears the history, so does the

25 pre-trial brief, to make a setting or a background for the circumstance in

1 which the offences charged were committed. And secondly, there are some

2 aspects of the history, the later part, the 1998 section, which in the

3 Prosecution's submission clearly forms a basis for which a Court can,

4 having heard all the evidence, make determinations in respect to the

5 notice to each of the accused in respect to crimes that were being

6 committed prior to the ones specifically charged in the indictment, and

7 I'm speaking particularly about 1998. So those are the two main purposes

8 for the history, insofar as it could be called history.

9 JUDGE BONOMY: I think the objection, though, is a bit more basic

10 than that as I understand it.

11 The -- a witness can present an account of a historical -- of the

12 historical background to demonstrate his understanding of history, and I

13 doubt if any objection could be taken to that because the Defence might

14 then want to demonstrate themselves that he had a false impression of

15 history, that his evidence might be undermined because of an inaccurate

16 understanding of history. So his understanding of the historical

17 background seems to me to be relevant in that context. But the second way

18 in which this evidence may be used is to actually prove what happened as a

19 matter of historical fact. And it's so that that I understand the

20 objection is directed, on the basis that he is not an expert qualified in

21 history to give an account on which the Trial Chamber might -- might rely.

22 Now, do you seek to use his evidence perhaps in -- undoubtedly in

23 conjunction with other evidence as evidence of historical fact on which

24 the Tribunal might make a finding that a particular event for -- well, a

25 series of events, for example, the dilution of the autonomy of Kosovo in

1 which the Trial Chamber might make a finding about that, or do you simply

2 use it as an indication of what the witness's understanding of these

3 events was?

4 MR. STAMP: May I, with your leave, confer briefly in respect to

5 that specific question?

6 JUDGE BONOMY: Yeah.

7 [Prosecution counsel confer]

8 MR. STAMP: Thank you, Your Honour, for allowing me the time.

9 Clearly, as indicated by the Court, his -- it is relevant to his

10 understanding of the period, but the Prosecution would further submit that

11 it is relevant for a little bit of a second element, the different element

12 that was raised by Your Honour. And that is if corroborated by other

13 witnesses in the course of the case, then his evidence in respect to the

14 history or the background events can be accepted by the Trial Chamber as

15 evidence of those facts.

16 JUDGE CHOWHAN: With your permission, sir.

17 It's -- I want to comment on this for more clarity. First of all,

18 it's no compulsion not to accept a single person's testimony. This is

19 universal. If the man is sounding credible, well, then, his credibility

20 is accepted, whether it's corroborated or not.

21 Secondly, I must say, as My Lord has said, a person is a recorder

22 of history and that for his own purposes he understands it. A person is a

23 professional historian, Toynbee for instance, and so on. Now, he's

24 talking of cause and effects of things. There the matter differs, but

25 anybody else who is writing a chronicle and writing things in that order

1 is only stating this happened that day, that happened that day. And if

2 he's truly doing it, he has a diary, he has something else to talk about,

3 well, that is different, and you have to kindly appreciate it in that

4 perspective as well, and that is my view. And thank you for listening to

5 me.

6 MR. STAMP: Thank you, Your Honour. If I --

7 JUDGE BONOMY: Well, okay, carry on, Mr. Stamp. But before you do

8 I should make it clear that we want to hear any submissions that are to be

9 made on this at this stage. And while I don't envisage making a decision

10 without at least some debate among the Judges in private, we'll do this

11 fairly quickly. So now is your opportunity to say anything else you wish

12 to say about it.

13 MR. STAMP: Before I go to the purposes again, I think I barely

14 touched upon and maybe I should, without repeating myself too much,

15 indicate that this witness is not testifying about history or the history

16 of events that occurred 100 years ago or 50 years ago. The history that

17 he speaks of primarily relates to the affairs of the Balkans of the former

18 Yugoslavia from the 1990s onward --

19 JUDGE BONOMY: Let me give you an example from this. On page 9 of

20 the hard copy I have, 9 of 19, the first full paragraph: "Human rights

21 abuses in the province intensified towards the end of 1996 as the

22 government attempted to quash the growing insurgency. Police acted with

23 near total impunity as they maltreated and occasionally killed ethnic

24 Albanians. Police abuse took -- generally took three forms, random

25 beatings on the streets and other public places, targeted attacks against

1 politically active ethnic Albanians, or arbitrary retaliation for KLA

2 attacks on Serbian policemen. This period is documented in the report I

3 researched and wrote. Persecution persists. Published in December 1996."

4 Now, do you think that the Trial Chamber should be invited on that

5 basis to make findings in fact about the way in which the police acted in

6 1996?

7 MR. STAMP: Indeed, Your Honour.

8 JUDGE BONOMY: All right.

9 MR. STAMP: This witness is ideally suited to speak about the

10 human rights situation in Yugoslavia, in Kosovo in particular, since, as

11 he testified from 1993, that area and that specific type of inquiry was

12 the focus of his academic work, his studies, and his research. So he is

13 not speaking of history in the academic sense; he is speaking of the

14 affairs of that country and that part of that country that he himself was

15 involved in investigating personally as somebody who had done a master's

16 degree in that field, not only specifically the area, eastern Europe and

17 the Balkans, but also human rights studies. And not only had he done that

18 academically, but he was there on the ground doing the research.

19 So insofar as that is an issue which -- and it is probably an

20 issue which to a limited degree might concern the Court. Insofar as there

21 is that issue, this is one source that the Court, it is my submission,

22 could use to come to a decision on that issue.

23 Indeed, I'm reminded that that very year, according to his

24 statement, he was there in Kosovo in the field doing research.

25 JUDGE BONOMY: [Microphone not activated].

1 Sorry. Is there anything else you would like to add on any aspect

2 of this point?

3 MR. STAMP: [Microphone not activated].

4 JUDGE BONOMY: All right. Thank you.

5 Now, Mr. Sepenuk, do you wish to supplement what you've submitted

6 in writing?

7 MR. SEPENUK: Yes, Your Honour, just very briefly.

8 I'd like to add -- Your Honour read from page 9, the first

9 paragraph of this 19-page report, the statement of 24 January 2002. There

10 are other indications in that report, Your Honour, that -- that

11 Mr. Abrahams is giving opinions and conclusions that simply should be

12 inadmissible in this case.

13 Can I just give a few more? For example, on page 8 of this

14 19-page statement he says in the middle of the page: "By mid-1996 I

15 documented a clear pattern of arbitrary and indiscriminate retaliation by

16 the Serbian police and special security forces against ethnic Albanians

17 who lived in the areas where KLA attacks were taking place. Police broke

18 into private homes without warrants and detained ethnic Albanians, often

19 abusing them physically, et cetera."

20 Another example, Your Honour. By the way, he speaks also about

21 the Racak incident on page 13 of this 19-page statement, which has been

22 excluded by Your Honours in the case.

23 But he says on page 14 under the period -- the period of NATO

24 bombing right in the middle of the page: "With the withdrawal of the KVM

25 monitors, Serbian and Yugoslav forces implemented a coordinated campaign

1 to expel large numbers of ethnic Albanians from Kosovo."

2 And he goes on to say on page 15 of this 19-page statement, the

3 last full paragraph: "The forced expulsion was well-organised. Refugees

4 were driven into flight or were transported in state-organised

5 transportation to the borders in a concerted programme of forced expulsion

6 and deportation characterised by a very high degree of coordination and

7 control."

8 Well, Your Honour, that could be Mr. Hannis or Mr. Stamp making

9 their closing arguments in this case, or indeed making their opening

10 statements in this case. And the irony of this, Your Honour, is that

11 Mr. Stamp in his submission, Mr. Hannis and Mr. Stamp in their submission

12 on the report As Seen, As Told state as one of the justifications for

13 admitting the report that these reports contain "recitations of witness

14 accounts or otherwise relayed or observed facts rather than conclusions or

15 opinions."

16 Well, the fact is that those two reports contain all sorts of

17 opinions and conclusions, and needless to say this is what purports to be

18 objective dispassionate history contains these conclusions and opinions of

19 the witness that are really totally inadmissible. One was read by Your

20 Honour, now we have read several, based upon 600 interviews which to this

21 day we have not seen. We have not seen a single one of those unsworn

22 cross-examined interviews. So I think that his -- and his bias for the

23 Prosecution. And forgive me, because the man has obviously done fine

24 work. He's well-intentioned, he's a human rights activist. I'm glad he's

25 on the planet, but he shouldn't be here, and he is here as an advocate for

1 the Prosecution, not as a dispassionate witness. He's worked for the

2 Prosecution, he's done analysis for them. And as you'll recall from my

3 cross-examination about Mr. Milosevic, he said as early as I think it was

4 February, or August, I forget, in 1998, he says the first priority, not

5 one of the priorities, the first priority of American foreign policy

6 should be the indictment of President Milosevic.

7 So this man is an advocate; he's not a dispassionate witness. He

8 really just for nothing else than the appearance of impropriety, he

9 purports to give, you know, this history, this cool, dispassionate survey

10 of history. You know, he gave that to the Prosecution for their

11 background part of the indictment, and now he's giving it here to you.

12 And human activists, good as they are, well-intentioned as they are,

13 should really have no role in determining the ultimate outcome of this

14 case which will be determined by Your Honours.

15 Therefore, we say that this entire statement should not be

16 admitted into evidence.

17 JUDGE BONOMY: Thank you, Mr. Sepenuk.

18 Mr. Ivetic, do you have anything to add to this?

19 MR. IVETIC: Yes, I'll just very briefly add to what my colleague

20 has said, and I'll limit my comments to this particular exhibit rather

21 than the objections we have to Under Orders as well.

22 The main problem is as we saw through his testimony is that a lot

23 of his conclusions and findings are based upon the information he had at

24 hand and that is not necessarily the totality of the information

25 available. Given that this information in his Rule 89(F) statement is

1 culled from his various reports, we do not know what portions are the

2 result of things that he actually eye-witnessed or did research on and

3 what was written by somebody else, or what he heard from somebody, what he

4 heard from an interviewee, for instance. So it's very difficult to

5 discern what is first-hand history that he experienced and which he could

6 report upon, and what is second-hand history that he is reciting from some

7 other source of which since we don't even know who that source is we have

8 no idea about the credibility or the credentials of the same. And so in

9 that instance I do not think that this type of documentary testimony can

10 be taken for the second purpose, that is to say, to have the Court -- have

11 that proved to the Court the factual backdrop that is relevant to these

12 proceedings --

13 JUDGE BONOMY: I take it that you accept that the evidence is all

14 relevant to establish his understanding of what the history --

15 MR. IVETIC: His belief and his understanding, I think, you know,

16 that is correct. And again the limitations of his belief and his

17 understanding as well, if we show that to be.

18 And then I just had one issue of a -- more of a question really.

19 I believe Mr. Stamp indicated that this was the focus of his academic work

20 and that the research he was doing on the ground was part of an academic

21 work. I don't recall any testimony of that, so if that's what's being

22 presented here, I would object to that. I think it was very clear that

23 this was -- this was his -- he was not part of any academic endeavour, so

24 that there would not have been any academic review, et cetera, of these

25 items. And without that, I think the applicability of this evidence to

1 the second prong is really non-existent, or not appropriate I should say.

2 Thank you.

3 JUDGE BONOMY: Now, your original objection was to the

4 admissibility of this -- of the report Under Orders.

5 MR. IVETIC: That's correct.

6 JUDGE BONOMY: And that you said was for the same reason as your

7 objection to As Seen, As Told.

8 MR. IVETIC: Correct, Your Honour. And now that we have

9 submitted --

10 JUDGE BONOMY: Do you have anything to add to that?

11 MR. IVETIC: Well, now that we've submitted the written brief on

12 As Seen, As Told I think the same parallels and arguments apply. That

13 namely, it is my understanding and my belief from the testimony that was

14 elicited from this witness that it's very clear that one of the main

15 objectives of his work in interviewing these people was to obtain

16 information for the assistance of the prosecution of war crimes before

17 this Tribunal. And therefore I believe it very squarely falls within the

18 grounds of the Milosevic appeals decision, that summaries of such

19 witnesses are not appropriate to be led in written form as that's a

20 violation of Rule 92 bis.

21 Furthermore, to the extent that he -- his reports, in particular

22 Under Orders tend to try and conclude legal factors, such as widespread

23 and systematic, such as notice, these are all items that we have I think

24 fully briefed, and so Your Honours are aware of our position and the

25 citations to authority that we rely upon to cite that this is an

1 inappropriate means of getting material in through documentary evidence,

2 and in fact that whether it's qualified as coming in through 89(F) you

3 still have to apply all the other rules that would apply to the evidence

4 if it were being submitted in the other -- under one of the other rules.

5 So I think basically if we look at the areas that we objected to in

6 As Seen, As Told, particularly in the further submissions that we filed

7 just recently, I think the same arguments can be applied to Under Orders,

8 particularly in light of what has been elicited here today and in the

9 prior days' testimony from this witness.

10 So, to be short, I think we'll just adopt those arguments and

11 leave it for the Trial Chamber to consider what the end result of all that

12 would be.

13 Thank you.

14 JUDGE BONOMY: Thank you, Mr. Ivetic.

15 Now, Mr. O'Sullivan.

16 MR. O'SULLIVAN: Your Honour, for the record on behalf of

17 Mr. Milutinovic we have already in writing adopted the submissions filed

18 on behalf of General Ojdanic, the submissions of the 31st of July, in

19 regard -- in relation to As Seen, As Told. We would also like to adopt

20 orally the submission of August 2nd of General Ojdanic in relation to

21 Exhibit P2228, the statement of this witness. We have already made our

22 submissions orally in relation to As Seen, As Told.

23 JUDGE BONOMY: Yeah.

24 MR. O'SULLIVAN: And we adopt the submissions in relation to Under

25 Orders.

1 I would also add that the Prosecution's written submission of

2 19 July, which we've had reference to this morning in relation to these

3 two documents, As Seen, As Told and Under Orders, I'm looking at page 4 of

4 that submission where the Prosecution identifies the sections which it

5 moves or seeks admission into evidence goes beyond mere recitation of the

6 witness's understanding of a historical context. It also includes such

7 things as his executive summary and his conclusions on the chain of

8 command. And we say he's not qualified to make those kinds of

9 submissions, given his admission that he's looked at a web site and some

10 police and military magazines and he's not a legal scholar or an expert in

11 these areas.

12 So it's more than just history, we say. It goes also to crime

13 base and all the other areas that are listed in the Prosecution's

14 submission --

15 JUDGE BONOMY: This is -- are you now referring to a submission

16 about Under Orders, or are you back to As Seen, As Told?

17 MR. O'SULLIVAN: I'm -- this comment here is in relation to Under

18 Orders.

19 JUDGE BONOMY: The 19th of July submission of the Prosecution,

20 remind me what that is?

21 MR. O'SULLIVAN: That's the Prosecution's submission in response

22 to your oral direction of the 13th of July where you asked the Prosecution

23 to make its submissions to expand upon three points.

24 JUDGE BONOMY: That's As Seen, As Told.

25 MR. O'SULLIVAN: Well, they've also addressed Under Orders in that

1 submission.

2 JUDGE BONOMY: So it's in that context you say that they seek to

3 rely upon an executive summary and other matters to which you take

4 exception.

5 Now, have you responded to that in writing or are you just simply

6 responding to that now?

7 MR. O'SULLIVAN: This was responded to in writing by the Ojdanic

8 Defence team on the 31st of July, and we joined that.

9 JUDGE BONOMY: And that submission deals with that point, does it?

10 MR. O'SULLIVAN: Yes.

11 JUDGE BONOMY: Okay.

12 MR. O'SULLIVAN: Those are my submissions.

13 JUDGE BONOMY: Now, am I wrong to assume that each accused takes

14 the three points I suppose that are in issue here, the objection to As

15 Seen, As Told, the similar objection to Under Orders, and the particular

16 objection to part of Exhibit P2228, or does anyone distinguish themselves

17 by not wishing to take any of these points?

18 MR. PETROVIC: [Interpretation] Your Honour, by your leave, on

19 behalf of the Defence of Mr. Sainovic, on the 31st of July we submitted a

20 submission in writing which is a response to the Prosecution position on

21 As Seen, As Told and also Under Orders in which we oppose the admission of

22 both these documents.

23 If they are used, however, we wish to join with what the Ojdanic

24 Defence has stated about this part of the testimony of Witness Abrahams.

25 As for the first two elements, we have dealt with them in our

1 written submission, and on this occasion we wish to join what has already

2 been said as regards the third point that has been raised.

3 JUDGE BONOMY: Now, is that everyone's position? I don't really

4 need to hear from you unless you want to differ from that position.

5 Mr. Bakrac, you want to take a different position, do you?

6 MR. BAKRAC: [Interpretation] No, Your Honour. Last time I

7 understood that it would be useful for the Chamber if we were to state

8 whenever we had a joint position. I apologise if I misunderstood you.

9 My colleague Mr. Petrovic has already said that Sainovic and

10 Lazarevic have a joint Defence submission challenging everything, and we

11 would like to join what has been said by the Ojdanic Defence as regards

12 P2228.

13 JUDGE BONOMY: Now, does any Defence counsel feel that there is

14 something else to be said on the matter or do we now rest content that

15 everything that needs to be said has been submitted either in writing or

16 orally? All right.

17 Mr. Stamp.

18 MR. STAMP: I thought that Your Honour had finished with the

19 Defence counsel. I was wondering if I may briefly respond to one of the

20 submissions that were made.

21 JUDGE BONOMY: Which submission?

22 MR. STAMP: The submission in respect to the Milosevic appeals

23 judgement.

24 JUDGE BONOMY: And has that not already been addressed? Is there

25 something else you need to say about it?

1 MR. STAMP: Very briefly. I would just invite the Court to

2 consider -- I had it right here.

3 JUDGE BONOMY: Yeah.

4 MR. STAMP: The submissions by my learned friend is that the

5 appeals judgement would exclude works of the nature of As Seen, As Told

6 and Under Orders. But I would invite the Court to consider the judgement

7 at paragraphs 22 to 24 in particular where a distinction is made between

8 the purpose of the interviews, and the Court held that wherein that case

9 an OTP investigator had gone into the field to conduct interviews for the

10 purpose of a specific trial that was before the Court, then those

11 statements would have to come in pursuant to the rules of the Tribunal,

12 perhaps Rule 92 bis, but that that was distinguished from the present type

13 of situation where the interviews themselves were not conducted by OTP

14 investigators of prospective witnesses for a specific case.

15 And another distinction was made in paragraph 23. May I just read

16 one sentence from that paragraph. I'm sure the Court will consider the --

17 JUDGE BONOMY: It's one of these rather less-than-helpful

18 statements to say that that's different from the situation where the

19 interviews were not conducted by OTP investigators for a specific case.

20 What if they were conducted by someone else who's not an OTP investigator

21 but for a specific case, what's the answer to that question?

22 MR. STAMP: If they were conducted by someone else?

23 JUDGE BONOMY: Yeah.

24 MR. STAMP: For a specific case before the OTP?

25 JUDGE BONOMY: Yeah.

1 MR. STAMP: And these were the statements of prospective

2 witnesses --

3 JUDGE BONOMY: I mean, that's arguably the position about As Seen,

4 As Told.

5 MR. STAMP: With respect, Your Honour, the witness has indicated

6 the very purposes that the --

7 JUDGE BONOMY: Yeah, I understand that. But let's assume. I'm

8 posing a hypothetical question, and there is an arguable position that

9 Ms. Mitchell was in fact an arm of the Prosecution, as it were. Maybe

10 there were other purposes, but was an arm of the Prosecution conducting

11 inquiries for a specific case, in other words, a case against the

12 authorities of Serbia. Now, what's the answer from the Milosevic appeals

13 judgement to that question? Does that fall within the excluded categories

14 or not?

15 MR. STAMP: It would not fall within the excluded categories. I

16 think the sentence I was about to read from paragraph 23: "The fact that

17 the summary," and this is As Seen, As Told, Under Orders, "the fact that

18 the summary has been prepared for the purpose of the particular litigation

19 may be relevant as to whether it should be admitted but as the Prosecution

20 submits it would be quite wrong to submit that or to suggest that such a

21 summary is ipso facto, unreliable."

22 And the Court there made a clear distinction between the situation

23 where the OTP itself goes out to gather evidence and a situation, as in

24 this case, where parties, for a variety of reasons, including what they

25 say is in the interests of justice generally, gathers this information and

1 shares it with this organisation.

2 JUDGE BONOMY: Could you let me see these paragraphs just now,

3 please?

4 MR. STAMP: I refer specifically to paragraphs 22 --

5 JUDGE BONOMY: To 24.

6 MR. STAMP: -- to 24. And I think in the judgement --

7 JUDGE BONOMY: I don't have it in front of me. Can I see your

8 copy just for a moment? Thank you. Thank you.

9 Now, is there anything else you wish to say?

10 MR. STAMP: It is in that context that the court of appeal

11 referred with approval to the comment of Judge Kwon in the Trial Chamber

12 itself in speaking about the issue. And I quote -- and this is from page

13 T5932 of the trial record.

14 "So to speak for myself, the Chamber is not against accepting any

15 hearsay or summarising witnesses. Take Fred Abrahams, he is a man from

16 Human Rights Watch who made some intensive interviews with a lot of

17 victims. So what we reject with regard to his evidence is only the

18 redaction of the identities of the source of information. But to speak

19 for myself, we are ready to accept him. But this Mr. Barney Kelly is

20 quite different. He is part of the Prosecution team."

21 That's the only reason we are thinking of.

22 So I think therein lies two distinctions; one the purpose that

23 whole interviews were conducted and whether there is sufficient indicia of

24 reliability. If there is that indicia, then it is my submission that the

25 test of admissibility is passed, and it is my submission that the balance

1 of the submissions from the Defence really refer to what weight it should

2 carry.

3 May it please you, Your Honour.

4 JUDGE BONOMY: Thank you.

5 Well, the Trial Chamber will consider the various submissions that

6 have been made, both by writing and by word of mouth, and a decision will

7 be conveyed to you as soon as possible.

8 We will now adjourn and resume at five minutes past 4.00.

9 --- Recess taken at 3.32 p.m.

10 [The witness entered court]

11 --- On resuming at 4.05 p.m.

12 JUDGE BONOMY: Before we proceed, I take this opportunity to

13 intimate a change to the sitting schedule. It's now possible for us to

14 sit for the full day on Thursday, and I think that we ought to take

15 advantage of that this week. It's not going to be possible to do that on

16 many occasions thereafter, so we'll sit on Thursday on the same basis as

17 we've sat today.

18 Now, Mr. Hannis, who is your next witness?

19 MR. HANNIS: Your Honour, our next witness is Fuad Haxhibeqiri.

20 But before I begin I wanted to raise to Your Honours' attention there are

21 two brief procedural matters we would like to raise with you before the

22 end of the day. They could be discussed in front of the witness, but I

23 don't know if you want to wait until five or ten minutes before stopping

24 time or do it now.

25 JUDGE BONOMY: Well, how long will they take?

1 MR. HANNIS: Mine is five minutes, and Mr. Stamp has one that is

2 one minute, he says.

3 JUDGE BONOMY: All right. We will do that just five minutes

4 before the end of the day.

5 MR. HANNIS: All right. Thank you.

6 And we'll have the witness sworn then, Your Honour.

7 JUDGE BONOMY: Now, Mr. Haxhibeqiri, would you please stand and

8 would you please take the solemn declaration.

9 THE WITNESS: [No interpretation].

10 JUDGE BONOMY: Now, I got no translation of that. Is there a

11 problem with the English translation?

12 THE INTERPRETER: Can you hear me on this channel?

13 MR. HANNIS: I heard a voice asking if I could hear.

14 JUDGE BONOMY: That's all I've heard on this.

15 THE INTERPRETER: Can you hear me now, please, Your Honours?

16 JUDGE BONOMY: Yes.

17 THE WITNESS: [Interpretation] I solemnly declare that I will speak

18 the truth, the whole truth, and nothing but the truth.

19 JUDGE BONOMY: Mr. Haxhibeqiri, please be seated.

20 MR. HANNIS: Your Honour, and I would like to begin with handing

21 the witness a hard copy of his statement, and on the screen we can put up

22 Exhibit P2235 which is the 92 bis package for this witness.

23 JUDGE BONOMY: Thank you.

24 WITNESS: FUAT HAXHIBEQIRI

25 [Witness answered through interpreter]

1 Examination by Mr. Hannis:

2 Q. Mr. Haxhibeqiri, one of the first things I wanted to do was to ask

3 you if you could state your full name for us and spell it, because I

4 understand we've had some confusion about the spelling of your first name.

5 A. My name is Fuad Haxhibeqiri, and it is spelled F-u-a-d, the name,

6 and the last name H-a-x-h-i-b-e-q-i-r-i.

7 Q. And you were saying, sir -- is that the correct spelling of your

8 first name?

9 A. The last letter of the name is T, not D. The first name is

10 F-u-a-t instead of D.

11 Q. Thank you. Could you take a look at the document that's put in

12 front of you, sir. This is a copy of your 92 bis statement to the ICTY.

13 Did you have a chance to review that before today?

14 A. Yes.

15 Q. And apart from changing the spelling of your first name from Fuad

16 with a D to Fuat with a T, are you satisfied that that statement is

17 accurate and truthful to the best of your knowledge and belief?

18 A. Yes, I am.

19 Q. And you confirm it to the Court at this time as your evidence in

20 this case?

21 A. Yes, I can. Yeah, it's my statement.

22 Q. Thank you. I would now --

23 MR. HANNIS: Well, Your Honour, this is a 92 bis statement that's

24 been offered before. I would like to tender it at this point in time.

25 JUDGE BONOMY: Yeah. Is it a document which has a number. At the

1 moment does it have a Prosecution number?

2 MR. HANNIS: It does, Your Honour, it is Exhibit P2235.

3 JUDGE BONOMY: It's been referred to, adopted by the witness so

4 it's part of the process with that number.

5 MR. HANNIS: Okay, Your Honour. I had a question about that

6 because I know in dealing with another case where we're trying to deal

7 with appellate issues it was difficult researching, trying to determine

8 when a particular document had come into evidence. I come from a

9 jurisdiction where the magic word "admitted" is said and it's easy for us

10 to find. I know that hasn't been our practice so far in this court, but I

11 would ask if you would be willing to consider that.

12 JUDGE BONOMY: Let's just carry on the way we have been dealing so

13 far, Mr. Hannis, where unless there's objection taken to a document, then

14 it's part of the process once it's been referred to by a witness.

15 MR. HANNIS: Thank you, Your Honour.

16 JUDGE BONOMY: Mr. O'Sullivan.

17 MR. O'SULLIVAN: Yes, we object to the admission of this

18 statement. I'm not sure if Your Honours have received a copy of it, of

19 P2235, but in particular -- I don't know if we want to make these

20 submissions in front of the witness or not. But we object to the portions

21 in particular beginning at page 6 through 9 where this witness claims to

22 be the chairman of the Council for the Defence of Human Rights and

23 Freedoms in Djakovica, claims to have interviewed over a thousand people,

24 and summarised the information that they gave him. We say that we're in

25 this same situation that we had with the previous witness and our

1 objections to his statement coming in under 92 bis.

2 JUDGE BONOMY: Well, the sensible thing for us to do is to follow

3 the same practice as we followed in relation to the two previous witnesses

4 to whom this objection has been taken, and we'll reserve our decision on

5 the matter until we've heard the evidence.

6 Mr. Hannis.

7 MR. HANNIS: Thank you, Your Honour.

8 Q. Mr. Haxhibeqiri, I want to ask you -- first of all, is it correct

9 that you were born in and have lived your entire life in Gjakove or

10 Djakovica town in Djakovica municipality in Kosovo?

11 A. Yes --

12 THE INTERPRETER: We cannot hear the witness.

13 MR. HANNIS:

14 Q. I'm sorry, you may have to sit a little closer to the microphones.

15 The interpreters say they can't hear your answer.

16 A. Yes.

17 Q. And at the time you made your statement, you indicated that you

18 were chairman of the Council of the Defence of Human Rights and Freedom.

19 Could you tell the Court what that council is, what kind of organisation

20 is that?

21 A. It is an NGO which was formed in 1991 in Pristina.

22 Q. And what was its purpose or mission when it was formed?

23 A. The purpose of this organisation was to collect evidence mainly on

24 the violence perpetrated since 1990 and even earlier in Kosova up to the

25 post-war years.

1 Q. And any particular kind of violence?

2 A. Violence committed by the regime in power. The Serb regime, I

3 mean.

4 Q. How many offices were there in Kosovo?

5 A. We had 30 such centres out of 29 communes.

6 Q. When did you start working for them?

7 A. To be precise, in 1995 in July, July or August -- August, I think,

8 rather than July.

9 Q. And how long did you continue to work for them?

10 A. For seven years.

11 Q. Now, I want to refer to certain portions of your statement. I

12 have some questions that I would like to ask you to amplify on your

13 statement a bit.

14 First of all, in paragraph 11, which is on page 3 of the English,

15 the second full paragraph up from the bottom, you noted that since 1981

16 that there had been arrests and beatings of Albanian citizens by the MUP

17 in Gjakove but that it had become worse in 1998. How were you aware of

18 this fact of arrest and beatings and of the fact that the condition had

19 worsened in 1998? What was your source of knowledge or information?

20 A. My source of information were the injured persons who came to our

21 office and reported the injuries. There -- these were frequent cases.

22 They were invited to the secretariat allegedly for informative talks.

23 They were tortured there and some of them were even arrested. It happened

24 that due to tortures some of them died in these centres.

25 Q. And I believe you mention a couple of those in the next paragraph

1 in your statement. -.

2 When you say "the secretariat," are you referring to the

3 secretariat of the interior, the local police?

4 A. Yes -- no. The secretariat of the internal affairs. This is what

5 I mean. The local police was part of this organ. It was formed in 1998.

6 When I said "due to tortures," I have reported the case of Halit

7 Izet Alija, 48 years old, who was killed because of tortures made on him

8 in this building of the MUP secretariat in January 1999.

9 Q. Let me take you to paragraph 14 of your statement, and I think

10 this is the first time in your statement you mention

11 the term "paramilitary." You mention it in the context of the military,

12 the police, and paramilitaries taking part in joint operations in 1998, in

13 April and May. Could you explain to the Court how you distinguish between

14 those three separate forces, the military, the police, and the

15 paramilitary. How could you tell one from another?

16 A. I could tell them one from another because they have different

17 uniforms. I have been a soldier myself. You can tell the police because

18 they wear blue uniforms; whereas the paramilitary, they used to wear

19 another kind of uniform, another colour. It was like camouflage uniform.

20 Part of them were distinguished because they wore bands on their arms, and

21 so it was easy for anyone to distinguish them.

22 Q. And I don't know if you mentioned what kind of uniforms the

23 military or the regular VJ wore.

24 A. They wore kind of olive-colour uniforms.

25 Q. In paragraphs 16 to 18 of your statement, Mr. Haxhibeqiri, you

1 talk about --

2 MR. VISNJIC: Excuse me.

3 MR. HANNIS: Sorry.

4 JUDGE BONOMY: Mr. Visnjic.

5 MR. VISNJIC: [Interpretation] I'm sorry for interrupting. I'm

6 sorry for interrupting, but we have a bit of a problem in following this

7 testimony -- or rather, Mr. Hannis keeps referring to certain paragraphs.

8 In actual fact, we haven't got any statements where the paragraphs are

9 marked by numbers. Now, is this some kind of internal marking that he has

10 or do we have the wrong copies? I mean, if it's internal it's all right,

11 but I mean I keep looking for this number and then maybe I just shouldn't.

12 MR. HANNIS: Now, I should advise Your Honour that I have

13 hand-numbered my English copy and Mr. Haxhibeqiri's Albanian copy is

14 hand-numbered, but I don't have a hand-numbered copy of the B/C/S. I'll

15 try to refer to the page and give Defence counsel a chance to identify by

16 perhaps reading from the first line from the paragraph to them get there.

17 And I apologise, Mr. Visnjic, I wasn't able to get that on the

18 B/C/S copy.

19 MR. VISNJIC: It's okay. Thank you very much.

20 MR. HANNIS:

21 Q. On paragraph 16 that I want to start with in my English version

22 begins near the bottom of the fourth page, and the first sentence

23 is: "The largest military barracks was on the outskirts of town."

24 MR. FILA: [Interpretation] Your Honour, for a long time now we

25 haven't had any translations into Serbian. And by your leave -- perhaps

1 it would be a good thing if you placed your own copy on this thing,

2 whatever you call it, e-court, so perhaps we can follow it in English.

3 JUDGE BONOMY: No, no -- well, Mr. Fila, it's important you draw

4 to my attention any deficiency in the translation immediately it occurs.

5 It's something that's very difficult to go back over. And are you saying

6 that you're still not receiving any? Well, this problem has to be

7 resolved.

8 MR. FILA: [Interpretation] Oh, I hear him now -- I mean, I hear it

9 now -- I mean -- but you were looking the other side, so I didn't dare

10 interrupt you. I mean, I'm sorry. Well ...

11 I don't know how else I can handle this, but that's the way it is.

12 Well, I just wanted to ask to have this in English so then we can follow

13 it easier. I mean, say he says paragraph whatever and then we -- I mean,

14 I don't know Albanian, but we can rely on the English for the numbering, I

15 mean through e-court.

16 MR. HANNIS: Your Honour, I think with my rudimentary B/C/S I'm

17 going to be able to give them a reference in the B/C/S version as to the

18 paragraph and page number.

19 JUDGE BONOMY: Yeah.

20 MR. HANNIS: And in the B/C/S version I'm --

21 JUDGE BONOMY: Well, I think, though, Mr. Hannis let's just think

22 about the fairness of this. The witness is working from a hard copy, is

23 he?

24 MR. HANNIS: He is, Your Honour.

25 JUDGE BONOMY: So is there any difficulty about putting the B/C/S

1 version on e-court?

2 MR. HANNIS: We can do that on e-court.

3 JUDGE BONOMY: Well, that seems to be what's requested to avoid

4 any further difficult with translation, so I think we should do that.

5 MR. HANNIS: Sure. And the paragraph 16, as I've numbered them in

6 my hand-copied version, in the B/C/S begins at the bottom of page 4 of the

7 B/C/S, the very last line on that page. But because I used the Albanian

8 as the master for purposes of identifying paragraphs and the various

9 translations in English and Albanian -- and B/C/S do not always make

10 paragraph breaks in the same place, in some instances I've had to join

11 paragraphs to keep the numbering consistent. But I'll try to explain that

12 to my B/C/S-speaking colleagues as I go along.

13 Q. So in the B/C/S, at the bottom of page 4 of the B/C/S version, the

14 first line is where I'm beginning and for the next paragraphs until the

15 bottom two-thirds of the page.

16 Mr. Haxhibeqiri, you talk about how from August of 1998 and

17 onwards the VJ would shell villages and then the MUP and the

18 paramilitaries would force the villagers to leave, telling them to go to

19 Albania. You say this continued to and during the NATO bombing. What was

20 the ethnicity of the villagers you're talking about?

21 A. They were all of Albanian ethnicity.

22 Q. And then related to that in paragraph 19, which is the

23 next-to-the-last paragraph on page 5 in the B/C/S you say, I'm quoting

24 from the English, "the worst time for this was during the bombing. It was

25 civilian Albanian property that they deliberately targeted."

1 Who is the "they" that you're referring to when talking about

2 targeting Albanian civilians?

3 A. The Serbs. The Serbs and the Montenegrins.

4 Q. And how was it that the problem got worse during the bombing?

5 What changed?

6 A. Violence was intensified during bombing in response to the NATO

7 air-strikes. Violence and terror start to be perpetrated in a planned,

8 institutionalised way in order to create an atmosphere of fear and of

9 intimidation that make the Hitchcock movies bear no comparison to that,

10 compared to that atmosphere. It was a Hitchcockian atmosphere, I would

11 say.

12 Q. I want to next go to paragraph 20, which in the B/C/S is the last

13 two lines of -- on page 5. In the English we're on page 5 and about four

14 paragraphs up from the bottom, beginning from the bottom it says: "On the

15 23rd of March." You talk about when your office was searched and the

16 staff arrested. Were you present that day when that happened?

17 A. No, unfortunately no. I left one or two minutes earlier. I don't

18 remember very well. Maybe I left five minutes earlier and I went home.

19 But there were other members, personal members, who continued to work.

20 There were six persons, and once I left the office these forces entered

21 and drove the staff out, beating them, insulting them, and arresting them.

22 They sent them to the secretariat of internal affairs.

23 Q. In that same paragraph you talk about the fact that you had worked

24 with the radio station Voice of America and the Deutsche Welle. Can you

25 tell us what -- can you tell the Court, please, what kind of work you did

1 with the Voice of America and Deutsche Welle.

2 A. We reported on the violence committed at that time in our

3 municipality, about the daily terror perpetrated there. As an NGO, we had

4 a good reputation. We were respected by the public. We were different

5 from the politically formed organisations. We had an independent opinion.

6 Q. In the following paragraph, 21, you mention that: "No NATO bombs

7 hit civilian targets in Gjakove."

8 Can you tell the Court how you know that?

9 A. This is true. The city is proof of that. There is not a single

10 bomb dropped there with the exception of the MUP building which on the

11 21st of May was bombarded, and as a result of that bombing someone who was

12 at home, he suffer -- he was killed actually in his toilet.

13 Q. And I believe you indicated, too, that there was an incident not

14 in the town itself but in mid-April involving a convoy. Are you familiar

15 with that?

16 A. Which paragraph you said, sir?

17 Q. It's not a reference in the paragraph, but it has to do with the

18 issue of civilians being damaged or injured by NATO bombing.

19 A. Yes, it was on the 14th of April. That day these forces, I always

20 mean the police forces, and the military and the paramilitary forces, they

21 drove the citizens out of their homes through use of violence, beating

22 them, insulting them, and setting fire to their homes in order to deport

23 them to Albania. Way -- on the way, part of -- some of them died because

24 of the bombs.

25 Q. Within the town itself, did you -- did you have occasion or take

1 occasion to go around and personally look at all the damage to come to

2 this conclusion that no civilian targets had been bombed?

3 A. Yes, of course, I did go. It -- you mean during the war? The

4 period during the NATO bombardment?

5 Q. At any time. Over what period of time did you do that to come to

6 that conclusion? Was that based on one day's inspection or over a period

7 of months?

8 A. When do you mean actually? Could you explain that to me. What

9 period exactly do you mean?

10 Q. Well, I'm looking at paragraph 21, and in the English it says

11 that: "None of these bombs hit any civilian areas in the town itself, of

12 that I am certain."

13 And I am just inquiring how you were able to know that.

14 A. Yes. Well, the NATO had Serb objectives to bombard. They did not

15 have any civilian objectives that they bombarded. This was very accurate.

16 The bombardment was very accurate because, for example, the big barracks

17 close to the Catholic church, which is next to the Catholic church as a

18 matter of fact, the church was not damaged at all.

19 JUDGE BONOMY: Mr. Hannis, where is the reference to the convoy --

20 MR. HANNIS: There is not a reference to the convoy in his

21 statement, Your Honour. That was based on just following up on the issue

22 of civilians being injured by NATO bombing, and I believe there's a

23 reference earlier in questioning Mr. Abrahams about civilians --

24 JUDGE BONOMY: Where is -- there is nothing in this statement

25 about civilians being injured by NATO bombing?

1 MR. HANNIS: No, Your Honour.

2 JUDGE BONOMY: But the witness has just given evidence about

3 civilians being killed.

4 MR. HANNIS: Yes. Paragraph 21 says: "None of the bombs hit any

5 civilian areas." Then I was inquiring of whether or not there were any

6 bombs that actually hit civilians.

7 JUDGE BONOMY: Well, I would like to hear a bit more about that

8 because the answer is certainly not very clear to me.

9 MR. HANNIS: Okay.

10 Q. Mr. Haxhibeqiri, do you hear Judge Bonomy's question? He would

11 like to hear some more about the convoy in which civilians were killed by

12 the NATO bombing. Can you tell him anything additional about that?

13 A. On the 14th of April, 1999, during the time of NATO bombardments,

14 these forces entered the area called Reka e Keqe and Lugu i Carragojes.

15 Q. Are those areas of Gjakove town?

16 A. Yes, in the south-western part of the city.

17 MR. HANNIS: Your Honour, now it might be helpful if we can put up

18 an exhibit that shows the town. It's Exhibit P10.

19 JUDGE BONOMY: I'm curious about the relationship between the

20 statement that no civilian targets were involved and this evidence that

21 shows that civilians were in fact killed. Now, I'm just trying to

22 understand how that happened according to the witness and how that relates

23 to his clear statement that there weren't any civilian targets.

24 MR. HANNIS: I believe he's talking about no civilian targets in

25 the town and perhaps -- we'll let him answer in talking about buildings or

1 property. The convoy I think was outside of town, but he'll tell you

2 about that.

3 JUDGE BONOMY: Oh, I see, yes. I see. I thought this was leading

4 to a suggestion that these were the locations where the civilians were

5 killed, but that's not the case. All right.

6 MR. HANNIS: Correct.

7 Q. Go ahead, if you could, Mr. Haxhibeqiri. You told us that the

8 forces came into these areas of town that you've just named. Then what

9 happened?

10 A. They went into the villages and threatened with their guns --

11 threatened the citizens with their guns. They drove them out of their

12 homes, insulting them, brutally beating them, driving them into the

13 street.

14 Q. And I don't know if you have yet a map up on one of your screens

15 showing --

16 A. Not yet.

17 MR. HANNIS: Could we have P10.

18 THE WITNESS: Yes.

19 MR. HANNIS:

20 Q. Now you see it. Can you indicate for the Judges the areas that

21 you were talking about?

22 A. [Interpretation] Yes.

23 Q. Are you able to see them on the map on the screen in front of

24 you?

25 A. Could you lower it a little bit more. Yes.

1 [In English] This area.

2 Q. Your Honour, I don't know what the best way it is for the witness

3 to --

4 A. [Interpretation] In the direction of the border to Qafa e Morines,

5 Ponoshac.

6 MR. HANNIS: Is there a particular pen the witness can use to mark

7 on the exhibit for us?

8 JUDGE BONOMY: Well, we need to know what he's marking, first of

9 all. I mean, I'm at an utter loss at the moment to know what this

10 evidence is about. So it really needs to be explored in greater detail so

11 that we can understand what he's talking about.

12 MR. HANNIS: I understand, Your Honour. We are trying to, first

13 of all, establish where these civilians who were in a convoy came from, as

14 I understand it.

15 Q. Mr. Haxhibeqiri, can you show us what parts of Djakovica town

16 you're talking about?

17 A. I said that that part is called Reka e Keqe, that area is called

18 Reka e Keqe and includes 20 villages, and also Lugu i Carragojes.

19 Q. I don't see those names on the map. Do they appear on this map,

20 the areas that you're talking about?

21 A. No, they don't appear in the map.

22 Q. And where are they from town if this map has north to the top --

23 A. South-west --

24 JUDGE BONOMY: Well, the statement, Mr. Hannis, says that Reka e

25 Keqe is south-west of the town and it's a name for a group of villages,

1 and also Dushkaja, which is to the north-east and is another group of

2 villages. Now it now appears we are talking about something which is in

3 the statement.

4 MR. HANNIS: We are talking about those villages. I don't know if

5 we're talking about the incident in which civilians were killed by NATO

6 bombs.

7 JUDGE BONOMY: All right.

8 MR. HANNIS:

9 Q. You do talk about those villagers being driven out of their homes.

10 Can you tell the Court what happened after that and where it happened and

11 how it happened.

12 A. When the convoy, it was a long convoy with villagers, arrived at

13 the place called Meja, the convoy was bombed and several people died.

14 Q. But apart from that incident during your time in Djakovica, you

15 indicated that you saw no evidence that NATO bombs had hit civilian

16 targets in Gjakove town. Is that correct?

17 A. There is no such case when civilian objects or buildings were

18 bombed.

19 Q. Now --

20 A. Excuse me. It was a factory producing refreshments. Part of that

21 was bombed, and the motivation was -- or better to say not -- it was not

22 the motivation but it was a fact that there were police and army forces

23 stationed there and they had heavy weaponry.

24 Q. At the factory you've just described?

25 A. Yes, in the yard of the factory.

1 Q. Now, from the time that the NATO bombing began on the 24th of

2 March, where were you and what were you doing?

3 A. From the 23rd when my colleagues were arrested, I left and I was

4 in hiding in the area called Blloku i Ri.

5 Q. Okay.

6 A. I stayed there for a week in hiding.

7 Q. Then where did you go?

8 A. A week later I came back home, I went back home, in the

9 neighbourhood of -- in the old part of the town, where I live.

10 Q. Was there a name for that neighbourhood?

11 A. Blloku i Ri.

12 Q. And that's where you were initially, and then you returned to your

13 home?

14 A. Yes, exactly.

15 Q. Which is in another part of town. Is there a name for that

16 suburb?

17 A. It's called Carshia e Madhe, the great Carshia.

18 Q. And we see those two areas on the map on the screen in front of

19 you?

20 A. Yes, yes.

21 Q. How long did you stay there?

22 A. I stayed there all the time, with the exception of ten days when I

23 went to another neighbourhood, which is called neighbourhood Hank [phoen].

24 I stayed there for ten days.

25 Q. And during this time that you remained there until the end of the

1 fighting, you described, first of all, I think on the 25th of March that

2 you saw -- I'm reading now from paragraph 22 which is the next paragraph,

3 you saw police and paramilitary working together in the Carshia e Madhe

4 neighbourhood. You say actually you couldn't see it but you got this

5 information from neighbours who were living there and communicating with

6 you. How did you know they were working together?

7 A. I saw them with my own eyes during the whole time of the 78 days

8 of bombardments.

9 Q. In relation to that, paragraph 31 which is the third paragraph

10 down on page 7 of the English and which is on page 7 of the B/C/S just

11 before the dividing dotted line near the bottom. In paragraph 31 you said

12 that from your house you saw on a daily basis homes burning and you said

13 the paramilitary set the fire. First of all, how were you able to see

14 this? How far away were they?

15 A. The houses were 50 metres away, 50 metres or more, but there were

16 some houses which were 25 metres away from the area where I was staying,

17 wherefrom I saw them.

18 Q. How many days did you see that kind of activity going on?

19 A. During the 78 days of NATO bombardment.

20 Q. And how were you able to say that these were paramilitaries as

21 opposed to police or VJ?

22 A. I could distinguish them. I could tell it was them because they

23 had camouflage uniforms and they had stripes and ribbons.

24 Q. You also indicate in that paragraph that there was regular

25 imprisonment of people. What ethnicity are you talking about there?

1 A. They were all Albanians, civilians.

2 Q. And how are you able to know that people were being imprisoned

3 during this time since you were hiding out in your house?

4 A. It was the 7th of May when the fighting started between the KLA

5 and the Serbian forces in the Kodra e Cabratit which is on the outskirts

6 of town, the south-western part.

7 During these fightings, over a hundred people were killed, or more

8 exactly 106 people were killed. Over a hundred houses were burned and 300

9 people were arrested. Of these 300 people, 150 were released. And the

10 rest were arrested, were detained in a warehouse, a workshop warehouse, in

11 the outskirts of town. So these 150 people who were released, they were

12 released a week later, or better to say six -- five or six days later

13 while the rest ended up in Peja. They were sent there by lorry and bus to

14 the prison of Peja. And because there was no room for all of them there,

15 they were sent to the warehouse of a company called Banana. From there

16 they were transported and sent -- they were sent to the Dubrava prison.

17 At the Dubrava prison, of these people that I mentioned, the

18 number that I mentioned, many of them were killed either by the NATO

19 bombings or because they were executed by the prison staff. So 26 people

20 from our municipality were killed there among the 180 people who were

21 killed altogether there.

22 Q. Let me stop you there, if I can, and ask you a question about

23 Gjakove town -- I'm sorry.

24 MR. HANNIS: Your Honour, there's Mr. Visnjic on his feet.

25 JUDGE BONOMY: Yes, Mr. Visnjic.

1 MR. VISNJIC: Your Honour, excuse me.

2 [Interpretation] I would just like to make a brief remark. It

3 consists of two parts first. The witness now has exceeded the framework

4 of his previous statement, especially --

5 JUDGE BONOMY: [Previous translation continues] ...

6 MR. VISNJIC: Oh, I'm sorry.

7 [Interpretation] On one hand the witness has exceeded the bounds

8 of his previous statement, especially the part that relates to the

9 transport of people to Dubrava and their detention right after the arrest.

10 This was something that was not mentioned in his to-date statement. The

11 whole part that relates to Dubrava has already been excluded from this

12 case by your decision, so that was my objection to his testimony here.

13 JUDGE BONOMY: It's of no significance, Mr. Visnjic, because his

14 evidence has made it clear that -- or has not made it clear how it's

15 suggested these people died. So there's no injustice by that reference.

16 On the first point you make, though, there is no reason why the

17 witness should be confined to his statement. If you have insisted, as you

18 have, on cross-examination and the witness is not being presented simply

19 as a -- or his evidence is not being presented simply in written form,

20 then as the Prosecution invite him to give some oral evidence, it's

21 inevitable that that will be on the statement. And there's no rule that

22 confines the witness in that situation to the statement. So I don't think

23 that objection is valid in this situation. And you can take it we will

24 exclude the reference to Dubrava from our minds in dealing with the

25 matter.

1 So please carry on, Mr. Hannis.

2 MR. O'SULLIVAN: Your Honour, if I might.

3 JUDGE BONOMY: Mr. O'Sullivan.

4 MR. O'SULLIVAN: It appears that -- that Mr. Hannis is actually

5 leading this witness viva voce through his testimony and not -- and not

6 limiting it to adopting his statement. And I think it's inappropriate -

7 Mr. Hannis is free to do that - but it's inappropriate for the witness to

8 have the statement in front of him and to read -- to refer to it and read

9 from it if he's in fact testifying viva voce and not as a 92 bis witness

10 who adopts his statement and doesn't -- doesn't testify from it.

11 JUDGE BONOMY: Well, can you give me a reason why that's

12 inappropriate and indeed why it's inappropriate for him to be led through

13 the statement.

14 MR. O'SULLIVAN: It's not inappropriate for him to be led through

15 his -- to be led through his testimony --

16 THE WITNESS: [Interpretation] Of course.

17 MR. O'SULLIVAN: It's inappropriate in my submission for the

18 witness to have a copy --

19 THE WITNESS: [Interpretation] I was given this --

20 JUDGE BONOMY: Mr. Haxhibeqiri, please be quiet for the moment

21 while we listen to counsel's submission.

22 MR. O'SULLIVAN: My submission is if the witness is going to be

23 led what amounts to -- as a viva voce witness and no longer a 92 bis

24 witness, the witness should not be provided or be given a copy of his

25 statement while on the stand. He should be testifying as a regular

1 viva voce witness. Because I think we've gone way beyond merely asking

2 the witness whether this is his statement and whether he adopts it and

3 asks a few general questions on it. We've gone almost paragraph by

4 paragraph here --

5 JUDGE BONOMY: Well, not quite. I'm actually not finding it

6 terribly helpful to have it led this way, I have to say, and I think that

7 must be clear from the questions I've been asking. So from the point of

8 view of judicial efficiency, this is not really an ideal way to do it. I

9 agree with that entirely. But so far as the question of whether it's

10 permissible or not, that's a separate question.

11 So you're saying that in a case where a 92 bis witness is to be

12 cross-examined, then when he's giving his evidence in chief he shouldn't

13 have the statement in front of him. Now, I have difficulty following that

14 proposition.

15 MR. O'SULLIVAN: If a witness is being called and led as a 92 bis

16 witness, there may be some -- there's a preliminary question of whether

17 that statement is in fact his statement and whether he adopts it. That's

18 fine. There may be some general questions or additional questions, and I

19 have no problem with that either. But in this case this witness is

20 testifying in relation to this -- what appears to be the entire statement

21 from beginning to end and is in fact a viva voce witness. If Mr. Hannis

22 wants to question him as a viva voce witness, that's fine. But he cannot

23 have the witness statement in front of him while he testifies as a

24 viva voce witness. That's my point. Calling him as a 92 bis witness is

25 inappropriate here because he's actually testifying as a viva voce

1 witness.

2 [Trial Chamber confers]

3 JUDGE BONOMY: Mr. Fila.

4 MR. FILA: [Interpretation] Your Honours, I would like to agree

5 with the position of Mr. O'Sullivan. The question is put whether there is

6 a difference between hearing a witness viva voce or 92 bis because

7 Mr. Hannis today has glossed over this difference because now we are

8 having the witness testify viva voce and also according to 92 bis. He is

9 testifying and he has his statement in front of him to consult. You

10 cannot have both things. I'm trying to simplify things. This is what I'm

11 trying to say. This exceeds 92 bis first of all with the transport, then

12 with a map that is not there. Now we have heard what was happening at

13 Dubrava and he wasn't there.

14 The main objection of this Defence, Your Honour, and let me

15 finish, I don't want to keep getting up several times, is that we cannot

16 see on the basis of this statement what the witness personally saw and

17 what was later found through the investigation. If he was sitting in his

18 own house, then it probably wasn't burned down, otherwise he wouldn't be

19 sitting in it. Then I don't understand what he saw personally, what he

20 found out as an activist of that organisation. All of this is getting

21 mixed up and it's going to create problems, and I don't think that it

22 would be a good thing if somebody comes to testify under 92 bis and then

23 continues to testify as a live witness. Perhaps if somebody comes to

24 testify according to 92 bis, then there's no need to hear them viva voce,

25 but this is turning into the testimony of a live witness.

1 JUDGE BONOMY: Well, that was a rather confusing submission, if I

2 may say so, Mr. Fila. It started off on a basis I clearly understand,

3 which is to support the point made by Mr. O'Sullivan, and I note what you

4 say about that. But the second point has really nothing to do with that

5 because it's equally relevant to the statement as it is without any

6 elaboration orally and that point has already been taken by Mr. O'Sullivan

7 when he first made his objection. And we will be dealing with that

8 particular point, as you already know, when we have heard all the

9 evidence. It's an argument which you have supplemented to some extent,

10 but it's separate to the point I think that we're dealing with at the

11 moment.

12 Now, just give me a second to consult on this.

13 [Trial Chamber and legal officer confer]

14 MR. HANNIS: And, Your Honour, if I may respond before or after

15 you consult with your colleagues --

16 JUDGE BONOMY: Yeah, just not at the moment, Mr. Hannis.

17 MR. HANNIS: Thank you.

18 [Trial Chamber and legal officer confer]

19 JUDGE BONOMY: Yeah, Mr. Hannis.

20 MR. HANNIS: Thank you, Your Honour.

21 JUDGE BONOMY: Yeah.

22 MR. HANNIS: First of all, I want to speak in defence of the

23 witness because as far as I was able to observe, I did not see him reading

24 from his statement to answer my questions.

25 Secondly, his statement was given to him in the beginning because

1 as I found with Mr. Stoparic, our second witness, trying to have the

2 witness verify a statement as his own from the e-court did not work very

3 well because we would have to scroll from top to bottom and turn every

4 page and even then he can't see his signature as he can with a hard copy.

5 So that's why it was put to him.

6 Also, to try to direct him to the topic I want to ask him any

7 questions about, it's there so we can refer to a paragraph and see if I'm

8 referring to paramilitaries, am I talking about paramilitaries in March,

9 April, May, for example.

10 And as I recall, this discussion, starting with Mr. Visnjic's

11 objection, that the witness was talking about things outside the

12 statement, and then Mr. O'Sullivan turned to I'm just leading him through

13 paragraph and paragraph, and he's just repeating live what's in his

14 written statement. So there seems to be a bit of an anomaly there.

15 What I'm trying to do is ask him questions that are not in the

16 statement, but I have to go to the statement to say: When you say

17 paramilitaries in paragraph 14, what are you referring to.

18 JUDGE BONOMY: The first question that needs to be answered there

19 is are you applying or asking the Trial Chamber to apply Rule 92 bis?

20 MR. HANNIS: We're asking you to accept his written statement as

21 part of his evidence in addition to --

22 JUDGE BONOMY: But listen to my question then: Are you asking the

23 Court to apply Rule 92 bis?

24 MR. HANNIS: Yes.

25 JUDGE BONOMY: Well, I would have thought the answer to that was

1 no. I'm surprised at that answer.

2 MR. HANNIS: Your Honour, I want the best of both worlds.

3 JUDGE BONOMY: No. But what I understood was happening here and

4 what needs to be clear before we go any further is that in light of the

5 fact that cross-examination had been authorised of every witness for whom

6 you made a 92 bis application you sought to supplement their evidence by

7 leading some oral evidence from them.

8 MR. HANNIS: That's correct.

9 JUDGE BONOMY: Now, that seems to me to be an application of

10 Rule 89(F). And what you're doing is asking a witness to confirm that

11 something which was originally designed for a different purpose is

12 actually true, and therefore he's presenting it as evidence which falls

13 under 89(F) if we decide to allow that package that was originally

14 designed for 92 bis to be submitted in that way.

15 MR. HANNIS: Your Honour, well, then, that may be my own

16 shortcoming in understanding the difference between 89(F) and 92 bis when

17 a witness is called to give -- when a 92 bis witness is called to give

18 evidence or called to be cross-examined and the Prosecution is allowed to

19 lead some live evidence before that begins.

20 JUDGE BONOMY: It's also clear in 92 bis that the Trial Chamber

21 may admit in whole or in part the evidence of a witness in the form of a

22 written statement in lieu of oral testimony. And again, it may be that

23 that is what you're doing. If you tell me that's what you're doing, then

24 we will consider 92 bis. But I have to say I don't at the moment

25 understand the objection that's being made that you're not allowed to go

1 outwith the area of the 92 bis statement. The rule seems quite clear. It

2 may be admitted in whole or in part in the form of a written statement

3 under 92 bis, and 89(F) allows a similar process.

4 I, for one, am not desperately keen to get bogged down in the

5 detail of these technical arguments when it seems clear that the practice

6 of the Tribunal in the past has allowed this to happen. And when you look

7 at these two rules together, you can see clearly why the practice of the

8 Tribunal has allowed this to happen. So we'll get into an objection which

9 I think on that basis has been steering us away from an appropriate course

10 to follow.

11 The second matter, though, that's raised is the extent to which

12 the witness has the statement in front of him and we have to be practical

13 about this and make sure that the interests of justice are served. And we

14 have to ensure that the witness isn't inappropriately guided by the

15 statement. Now, he himself has already offered to throw it at

16 Mr. O'Sullivan so he can use it which seems to suggest that he is quite

17 happy to proceed without the statement. You, on the other hand, wish it

18 to be used as a beacon to direct him carefully through any difficulties

19 that there are in identifying the subject matter that you're discussing.

20 You're using it for that purpose, as I understand.

21 MR. HANNIS: Only if he needs to to understand my question.

22 JUDGE BONOMY: Correct, correct. So against that background, I

23 think we will proceed on this basis. The objection to going beyond the

24 strict terms of 92 -- of the 92 bis, as you call it, statement is

25 repelled. It seems to us perfectly appropriate to lead oral evidence of a

1 witness, part of his evidence is coming in under 92 bis. And if there

2 were ever any doubt about that, then 89(F) resolves it as long as the

3 Trial Chamber allows you to present the evidence. And since the -- since

4 there is an objection, then we can't take a positive decision finally on

5 the admission of this statement, as you know. But we will allow you to

6 proceed on that basis.

7 And I address now the witness and say to you that, and I think

8 you're perfectly comfortable with this, that insofar as you're being asked

9 questions you should answer them from your recollection and you should use

10 the statement only to make sure that you're understanding the question

11 properly in the way that Mr. Hannis has suggested. So please, ignore it

12 except to the extent that you require to refer to it for clarification of

13 the question, and we'll proceed on that basis.

14 Carry on, Mr. Hannis.

15 MR. HANNIS: Thank you, Your Honour, and -- thank you, Your

16 Honour. In connection with that, I would just indicate it's my general

17 practice and it was my specific practice with this witness to indicate to

18 him that although he would have the statement on the table with him he

19 should not refer to it, or, if he was, he should advise me and the Court

20 that he was looking at his statement to make any answer.

21 JUDGE BONOMY: Perhaps just one final point, Mr. Hannis. It is

22 disappointing that the statement is incomplete in respect of a number of

23 perhaps quite important matters because what happens is you end up with

24 the witness giving answers which really ought not to have been given in

25 light of earlier decisions made -- an earlier decision made by the Trial

1 Chamber. And it's also a bit disappointing that when so much has been

2 committed to writing that we have to have so much oral evidence at this

3 stage. However, we simply ask you to bear that in mind when you come

4 along with the next Rule 92 bis witness.

5 MR. HANNIS: I will bear that in mind, Your Honour. I'm sorry to

6 disappoint the Court.

7 I'm looking at the clock, Your Honour, and based on the fact that

8 lawyers' estimates of time are notoriously bad, and we suggested that

9 between Mr. Stamp and I we might need six minutes. I would like to ask if

10 we could stop with this witness for now and deal with the procedural

11 matters.

12 JUDGE BONOMY: Do you not think you will complete your evidence

13 in-chief with him tonight?

14 MR. HANNIS: Not in ten more minutes.

15 JUDGE BONOMY: No?

16 MR. HANNIS: No. It would be close, but then I don't think we'll

17 have time for the matters I need to address and one of them has a

18 time-limit that expires at the end of the day that I -- so I need to raise

19 it with you now.

20 JUDGE BONOMY: All right. Well, just -- there is one thing,

21 Mr. Haxhibeqiri, that I would like to clarify before we adjourn the

22 evidence for the evening.

23 You said that you became the chairman of the Council for the

24 Defence of Human Rights and Freedoms in 1995.

25 THE WITNESS: [Interpretations] No, I was a member.

1 JUDGE BONOMY: A member from then?

2 THE WITNESS: [Interpretation] After the war. Immediately after

3 the war I became chairman. At the time I gave the statement I was

4 chairman.

5 JUDGE BONOMY: Now, are you still the chairman?

6 THE WITNESS: [Interpretation] No.

7 JUDGE BONOMY: So when -- when did you cease to be chairman?

8 THE WITNESS: [Interpretation] 2001.

9 THE INTERPRETER: Could the witness kindly approach the

10 microphones because the interpreters cannot hear him.

11 THE WITNESS: [Interpretation] It was 2002 more exactly, by the

12 end.

13 JUDGE BONOMY: The interpreters are asking you to come a little

14 closer to the microphones. Thank you.

15 So you were chairman from -- from about June 1999 until 2002?

16 THE WITNESS: [Interpretation] Yes.

17 JUDGE BONOMY: Well, we're being asked now to interrupt your

18 evidence until tomorrow. So the evidence will resume at 9.00 tomorrow

19 morning. You need to be here ready to continue your evidence at that

20 time. Meanwhile, it is very important that you have no discussion about

21 your evidence with anyone. Now, that is either about the evidence that

22 you have already given or about the evidence you may yet give in the

23 course of the case. Now, do you understand that?

24 THE WITNESS: [Interpretation] Yes.

25 JUDGE BONOMY: Thank you. Well, you're now free to leave the

1 court, and we will see you again tomorrow at 9.00 a.m.

2 [The witness stands down]

3 JUDGE BONOMY: Now Mr. Hannis.

4 MR. HANNIS: Thank you, Your Honour. My request relates to the

5 Prosecution's motion for admission of documentary evidence sometimes

6 referred to as the stand-alone documents.

7 JUDGE BONOMY: Yeah.

8 MR. HANNIS: As you will recall, we filed our original motion on

9 the 25th of May. On the 6th of June there was an order from I think the

10 Pre-Trial Judge to submit some further information, which we did on the

11 12th of June with a second submission to detail some of those matters on

12 the 5th of July. The Defence then had until the 4th of June to file the

13 response. We did have a number of responses from the accused.

14 Mr. Sainovic and General Lazarevic filed a joint Defence response.

15 General Lukic filed a response. General Ojdanic filed a response. Those

16 were all fairly detailed responses, and Pavkovic joined in Ojdanic's and

17 Milutinovic also joined in Ojdanic's response.

18 Your Honour, we, based on our preliminary view of those responses

19 filed on Friday, it appears there are some legal and factual issues we

20 need to address. We -- our time-limit is running, and we need to seek

21 leave from the Court to file a reply. This is my oral motion to make that

22 request. In support of that I just want to point out to Your Honour one

23 of the things that -- it comes up in General Ojdanic's response. It

24 relies rather heavily on a recent decision I think from the 13th of July

25 in the Prlic case, which we were not aware of at the time we filed our

1 initial motion and supplemental pleadings. So it's some new jurisprudence

2 that we think we need to respond to. We also -- there are some issues

3 raised by Mr. Sainovic and General Lazarevic regarding the fact that

4 documents admitted in the Milosevic trial should not be admitted here

5 because Mr. Milosevic was not represented by counsel. That was not an

6 issue that was addressed before.

7 In that regard, Your Honour, we're simply making our oral motion

8 at this time for leave to file a reply. And given that the Defence had

9 four weeks to file the response, which is longer than the normal time, and

10 given the length and scope of the responses, we would ask to have until

11 the 18th of August to file a reply. However, I would indicate to the

12 Court, in an ever-optimistic point of view, that upon a more detailed

13 review we might decide we don't need to file one. But since today is my

14 last day to file leave, that's what I'm doing now.

15 JUDGE BONOMY: Thank you.

16 Mr. Visnjic, do you have any objection to this?

17 MR. VISNJIC: No objections, Your Honour, from General Ojdanic's

18 Defence side.

19 JUDGE BONOMY: All right. Thank you.

20 Mr. Fila, I think this concerns you also.

21 MR. PETROVIC: [Interpretation] Your Honour, we have no objection.

22 We have no problems with the suggestion put forward by the Prosecutor.

23 JUDGE BONOMY: Mr. Bakrac.

24 MR. BAKRAC: [Interpretation] The Defence of General Lazarevic has

25 no objection.

1 JUDGE BONOMY: Now, these are the ones referred to.

2 Any other counsel have any comment to make?

3 MR. HANNIS: Lukic, Your Honour.

4 JUDGE BONOMY: I'm sorry?

5 MR. HANNIS: Lukic, Your Honour.

6 JUDGE BONOMY: Oh, sorry. Mr. Ivetic.

7 MR. IVETIC: No objection, Your Honour.

8 [Trial Chamber confers]

9 JUDGE BONOMY: Yeah, we will allow you until the 18th of August to

10 submit a reply if you are so advised.

11 MR. HANNIS: Thank you very much, Your Honour. And that went

12 surprisingly well and quickly, and for once my time estimate was over the

13 actual time.

14 Mr. Stamp has a one-minute matter.

15 JUDGE BONOMY: Mr. Stamp.

16 MR. STAMP: This is something which normally we should be --

17 counsel I think should be dealing with without burdening the Court with

18 it, but it was raised in court today. And at a previous hearing counsel

19 had asked in court that we provide them copies of the underlying material,

20 the two reports that have been the subject of debates here, and I did

21 indicate that we would try to get them in one case from the organisation

22 that had them and we would disclose what we had as soon as we had

23 permission to do so. So I -- to announce to the Defence what the

24 situation is now in respect to the underlying material for the report

25 Under Orders. The Human Rights Watch legal counsel has indicated that

1 they would make an exception in this case and disclose them after

2 reviewing them to see if there are any extra-sensitive informant, having

3 regard to their paramount responsibility to protect the identities of

4 persons who might be in danger. And so they would be doing that and would

5 be giving us access to the material, so then we could disclose it to the

6 Defence as soon as possible.

7 The Secretary-General of the OSCE has indicated that there are

8 very stringent confidentiality requirements in respect of the

9 identities -- in respect to the documents, the underlying material that

10 was used for the report As Seen, As Told, and we are still in discussion

11 with them for permission to disclose the material. I thought I would just

12 put this on the record since the matter has been put on the record by the

13 Defence, although the Prosecution maintains that this is a matter of

14 material which is relevant but not under Rule 68 or not under Rule 66(A).

15 And if the Defence had sought to use the material in court, they should

16 have requested it long before the witnesses attended so that we could make

17 the necessary requirements.

18 Thank you very much, Your Honour.

19 JUDGE BONOMY: Thank you, Mr. Stamp.

20 Well, there's always a sting in the tail of the good news, if

21 that's what you're going to tell me.

22 MR. SEPENUK: Your Honour, just one other thing. I think under

23 the Rules we are entitled to have those statements for cross-examination

24 of any witness who testifies, whether it's an OSCE statement or a Human

25 Rights Watch statement or a the International Crisis Group that we've also

1 heard about or any other non-governmental organisation that has solicited

2 and elicited statements. Now, we have no such statement for this first

3 witness.

4 JUDGE BONOMY: Well, which rule are you referring to?

5 MR. SEPENUK: I believe -- well, we are supposed to get -- as I

6 understand the Rules, we are supposed to get all statements of any

7 Prosecution witness.

8 JUDGE BONOMY: Yeah, but these people aren't -- that's -- I think

9 the point that will be made immediately is that they are not witnesses.

10 You've got the statement of the witness --

11 MR. HANNIS: But also, Your Honour, another point is that some of

12 these statements we don't have in our possession --

13 JUDGE BONOMY: I understand that's a separate question. But the

14 persons referred to are persons interviewed, as you know, and on the basis

15 of these interviews a witness has come here to tell the Court what they

16 amounted to. Now, that's different from these people themselves being

17 witnesses.

18 MR. SEPENUK: Well, my -- maybe -- but maybe I have a wrong

19 understanding of this, Your Honour. I had thought that any statement made

20 by a witness, whether it's to the Prosecution or to an OSCE or to a Human

21 Rights Watch representative, those particular statements should also be

22 produced before the witness testifies. Now, if I'm wrong in that, I

23 apologise to the Court, but that's my understanding of the law.

24 JUDGE BONOMY: Well, you would have to direct me to the rule that

25 you claim says that.

1 MR. SEPENUK: I believe that Mr. O'Sullivan and I have discussed

2 this, and I believe it was Rule 66, yes.

3 JUDGE BONOMY: Well, Rule 66 relates to the statements of all

4 witnesses whom the Prosecutor intends to call to testify at trial and

5 copies of Rule 92 bis statements. Now, the documents we're discussing at

6 the moment don't fall into these categories.

7 MR. SEPENUK: [Microphone not activated].

8 Rule 66(A)(ii) -- again it talks about the copies of the

9 statements of all witnesses whom the Prosecutor intends to call to testify

10 at trial.

11 JUDGE BONOMY: Yeah, but these are not witnesses he intends to

12 call to testify at trial.

13 It's difficult sometimes, Mr. Sepenuk, to get to grips with the

14 system that admits hearsay in principle and then allows abrogations from

15 that in the interests of justice when you're used to working with a system

16 which excludes hearsay in principle and allows abrogations from that in

17 the interests of justice.

18 MR. SEPENUK: These are not statements, though. You mean an OSCE

19 interview which results in a statement, or Human Rights Watch interview

20 which results in a statement, or International Crisis Group interview

21 which results in a statement are not statements, Your Honours, within the

22 meaning of this rule?

23 JUDGE BONOMY: Well, they're certainly not statements within the

24 meaning of Rule 66(A)(ii). They might fall within 66(B), but there the

25 requirement is that they be in the custody of the Prosecution, which they

1 are not.

2 MR. HANNIS: Your Honour, I think in some instance witnesses that

3 we are calling in this case actually did make -- did have interviews with

4 Human Rights Watch or ICG and there may have been a report taken from

5 them, but I don't know how these forms are. I don't think they are -- I

6 don't know if they're signed or sworn to or any indication they have been

7 adopted by the witness, and also we don't have them in our possession.

8 MR. SEPENUK: Yeah, but, Your Honour, we have already received

9 several statements from the Prosecution relating to witnesses who are

10 going to be testifying in this case. And we asked the Prosecution some

11 time ago -- actually not -- within the last several weeks to produce any

12 other statements that they had. So they've already produced a handful of

13 statements. But I would think it's fundamental justice that any witness

14 who's testified and who has given a prior statement, we should -- we're

15 entitled to have that statement. And so far we've only gotten a handful.

16 As to this first witness, we don't know if this witness was interviewed by

17 OSCE, International Crisis Group, Human Rights Watch --

18 JUDGE BONOMY: Who are you talking about?

19 MR. SEPENUK: This person. The witness right here, the witness

20 who was just excused, Mr. --

21 JUDGE BONOMY: Oh, yeah.

22 MR. SEPENUK: Right.

23 JUDGE BONOMY: So what is it you're saying you should have?

24 MR. SEPENUK: If he has made a statement to Human Rights Watch or

25 to OSCE or to the International Crisis Group or any other non-governmental

1 organisation that the government knows about and has a copy of or could

2 reasonably get a copy of I think in all fairness we should have a copy of

3 that statement.

4 JUDGE BONOMY: Well, I would be very surprised if the Prosecution

5 didn't make available to you any copy of such a statement.

6 MR. HANNIS: Your Honour, I have an e-mail from one of my

7 colleagues that indicates we have 12 witnesses in that position, witnesses

8 that we're calling in this case, who have given a statement to Human

9 Rights Watch or ICG that we have possession of and we have disclosed.

10 JUDGE BONOMY: Yeah.

11 MR. HANNIS: And I agree, we will and we do, when we have them,

12 for witnesses we're going to call.

13 JUDGE BONOMY: This is not a matter that can be resolved here when

14 it doesn't depend on the application of any clearly identified rule. As

15 Mr. Stamp has indicated, the Prosecution are happy to discuss the matter

16 further with counsel and if any further clarification is required, then

17 counsel should direct their inquiries to Mr. Stamp. And if these turn out

18 to be unsatisfactorily dealt with in your view, then you can raise the

19 matter again with the Trial Chamber.

20 MR. SEPENUK: Thank you. And really the main reason I raise it

21 now is that I understand it that we may get copies of these Human Rights

22 Watch interviews. Now, I don't know if this gentleman is included in that

23 group. But if he is included in that group, then he might have to return

24 for cross-examination, a prospect that no one would like to have happen.

25 That's the main reason I raise it now.

1 JUDGE CHOWHAN: I'm in a quandary to understand all this. The

2 point is that a person chooses to make a thousand and one statements here

3 and there. What would be relevant here would be relevant and would even

4 have to produce that statement, statements which have been recorded

5 elsewhere and are not to be used in this court and are considered as

6 classified or confidential statements, of what use are they here and why

7 would they be quoted here, and why should they be produced here? This I

8 couldn't understand.

9 MR. STAMP: Can I say with respect, Your Honour, perhaps to end

10 this, with respect --

11 JUDGE CHOWHAN: Unless of course they are used here, then the

12 question of their production and making these available to the Defence

13 will arise, but why would they arise otherwise? That's the question.

14 MR. STAMP: Well, with respect, because of the rule. The rule

15 provides, 66(A)(ii) that we should give them the statements of all --

16 JUDGE CHOWHAN: [Microphone not activated].

17 MR. STAMP: -- Of all persons who are going to testify. We have

18 done that.

19 MR. IVETIC: With all due respect, and maybe I'm missing

20 something, there's --

21 JUDGE BONOMY: Well, look, this cannot continue as an argument

22 across the floor of the court.

23 Raise the matter, Mr. Ivetic, with Mr. Stamp. If there's another

24 issue to be made because you're not receiving satisfactory information,

25 then you can raise it at that stage.

1 MR. IVETIC: Well, I was just going to state that it's my

2 understanding --

3 JUDGE BONOMY: Just deal with it the way I've said, please.

4 MR. IVETIC: Fair enough.

5 JUDGE BONOMY: All right?

6 The court will adjourn now until 9.00 tomorrow morning.

7 --- Whereupon the hearing adjourned at 5.35 p.m.,

8 to be reconvened on Tuesday, the 8th day of

9 August, 2006, at 9.00 a.m.

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