⁵⁶⁵¹

Tuesday, 28 May 2002

[Open session]

[The accused entered court]

--- Upon commencing at 9.04 a.m.

JUDGE MAY: Various matters left over from yesterday. Mr. Nice, while it's in my mind, the matter you -- which was referred to yesterday, and I asked you perhaps to look into it, have you had any further consideration?

MR. NICE: I've had a few further thoughts. I realised myself this morning that I omitted to provide anything in writing, which I'd effectively agreed to do yesterday. I don't actually know that even if I had remembered yesterday afternoon I would have had the resources, but if I can come back to that later this morning, I would be grateful.

JUDGE MAY: Yes.

MR. NICE: But there is something of a precedent in Blaskic, and I'll try and get chapter and verse of that.

JUDGE MAY: Thank you.

MR. NICE: Your Honour has another point.

JUDGE MAY: I think Mr. Milosevic wants to raise some matters

MR. NICE: Can I raise two points while I'm on my feet, one to which he may want to respond. In relation to yesterday's witness K5, criminal record matters were raised with him. He denied them all. If the accused has records of the courts concerned - and he was giving numbers - then it would be administratively helpful and probably proper for them to be provided to us through the Registry for us to consider, and I'd invite ⁵⁶⁵² him to make those available.

JUDGE MAY: Yes.

MR. NICE: The second point is in relation to the process whereby witnesses are subject to 92 bis'ing at Court. I'm not sure that I like the shorthand advantageous though it is, to say one "bises" a witness, but I'm afraid that's what we do say that. The long form is too long, the short form is too short.

That process, at court, is said by the Registry to require five full working days of notice to them by us before an appointment can be made. It's effectively impossible for us to give precise notice for various witnesses and there are, I think, two or it may be even three witness here at court today, or coming today, for whom short-term 92 bis process would be desirable and would save time. I am don't know if the court is going to be able to intercede on our behalf or help, but that's a problem we're facing.

As we were discussing it this morning, one of my colleagues helpfully said, well, maybe the answer is simply effectively to bis at Court, that is, the witness comes here and is allowed to say, yes, I have got through this statement and that statement, and it is true. It's something we did, I think, once in Kordic when the Court was very pressed for time. We did it then actually not with a statement but with a summary, but of course, the trouble with doing that as a shorthand method is it then obviates the need altogether for the 92 bis procedure and it might be thought to be contrary to the purpose of the Rules. But those are a couple of problems we are facing. ⁵⁶⁵³ And so far as K12 is concerned, I think he's outstanding for decision as to whether he's properly subject to the 92 bis procedure. If you haven't had him, then that -- I'm giving you incorrect information. I understand we're waiting for a decision on that.

JUDGE MAY: I have to tell you, I don't recollect K12.

MR. NICE: Let me check with Ms. Graham, rather than take time, when it was provided.

JUDGE MAY: I think we've had that statement.

MR. NICE: Our recollection is last Thursday, but we'll check and provide again.

JUDGE MAY: But while we're dealing with it, it may be convenient. We've had the statement of Mr. Hendrie.

MR. NICE: Yes.

JUDGE MAY: The statement has been served on us and although it may be he has not been through the procedure, it would appear at least prima facie that he is a witness to whom 92 bis could apply, subject to any submissions which are made by anybody else.

MR. NICE: I'm grateful. He's certainly one of the ones for whom short-term bis'ing process would be helpful.

JUDGE MAY: Perhaps I could refer to the Registry and ask them if it's at all possible to make facilities in this particular case although we understand, of course, they are pressed.

MR. NICE: Thank you, Your Honour. I --

JUDGE MAY: Before we turn to Mr. Milosevic's exhibits, there are some matters I need to do. I need to give a ruling in the case of Mr. ⁵⁶⁵⁴ Kelly, but before I do that, we ought to deal with some practical matters. Tomorrow, the accused has his dental appointment, so we won't start until 10.30. Is General Maisonneuve here or not?

MR. NICE: He will be. He will be here, yes. Incidentally, in relation to Mr. Kelly, although I'd said that you'd had the jurisprudence on earlier occasions, I was hoping to make further argument to you about the scope of his evidence, and indeed I had planned to take him through the non-controversial -- if there is any controversy about his evidence, the non-controversial part of his evidence first in order to explain, if there's any doubt about it, why his report in full should be admitted, and I'd like the opportunity to do that. It won't waste any time because the non-controversial part, geography and matters of that sort, will be -- will have to be before you in any event.

JUDGE MAY: So you -- you would propose to call him and then make the application.

MR. NICE: Go through the evidence of geography and the bare bones of what his investigation was, and then make the application after that.

JUDGE MAY: Very well. We'll deal with it in that way.

MR. NICE: Thank you.

JUDGE MAY: But going back to General Maisonneuve, he's here Wednesday, and he can be available for some days, can he, or what is the situation?

MR. NICE: I think he can only be available for the one day. The Chamber indicated last week that, subject to argument, parts of his statement might be apt for the 92 bis procedure, and Mr. Ryneveld, who ⁵⁶⁵⁵ will be taking him, has identified what he believes to be those that are and those that are not. That, therefore, would mean that his evidence will be shorter in duration than otherwise. We would hope that he can be completed in the day.

Whether he has flexibility to extend his stay, I don't at the moment know, but he came on an earlier occasion and it was certainly difficult to timetable him.

JUDGE MAY: Obviously he should be called tomorrow morning.

MR. NICE: Yes.

JUDGE MAY: He may have to be interposed.

MR. NICE: Yes. We're working on the basis of wrapping other evidence around his timetabled appearance.

JUDGE MAY: Very well. Tomorrow will be 10.30, so it will be a short day in any event, but we'll have to see how that day transpires. While we're dealing with the timetable, Friday will also be a short day, 9.00 until 11.45. We have to deal with argument in another case later in the day that day. But we should, that morning, deal with the -- your application to vary our January order, which means we ought to be reviewing the case as a whole.

MR. NICE: Arrangements are being made so that can be dealt with expeditiously on Friday, but I think a lot of topics are going to arise. I've got my own list of issues to raise with you which will affect evidence in this and the other cases or may start the process of affecting the evidence in this and the other parts of the case, as well as responding to your particular concerns in the Scheduling Order, so I hope ⁵⁶⁵⁶ there will be enough time.

JUDGE MAY: Can you give us notice of that so we can consider how long to allow for it? But we will have to adjourn this case at 11.45 on Friday.

Unless there are any other matters --

MR. NICE: Not at the moment.

JUDGE MAY: Mr. Milosevic, you were dealing last night with -- or, rather, yesterday afternoon when we adjourned, with some exhibits that you wanted admitted. Could you tell us briefly what they are, and we'll consider them.

THE ACCUSED: [Interpretation] In the briefest possible terms. In connection with Mr. Merovci's testimony. Point 1 I have is the question that has to do with the LDK. It was supposed to take part in the elections in Serbia, but their assessment was that they would not win more than 15 seats in parliament, which is what they had then. That was my assertion, and I am submitting this to you by way of an exhibit or, rather, the material that the opposing party had actually made public or, rather, disclosed.

It says, Rugova about the platform of the Democratic League of Kosovo. The number 030 --

THE INTERPRETER: The speaker will have to slow down when giving numbers. Could the numbers please be repeated?

JUDGE MAY: We're asked by the interpreters, could you repeat the numbers slowly, please.

THE ACCUSED: [Interpretation] The number of the document, the ⁵⁶⁵⁷ Serbian version, is 03037052, paragraph 3, and the last one. And the English version is K0214130. So it is 021410, paragraph 3. And I'm submitting only the Serbian version to you. That is one point I wish to make.

Number 2, as for Witness Merovci and Rugova and his party, that they -- they said that I told the international community that there would be a radicalisation in Kosovo at that time.

JUDGE MAY: Mr. Milosevic, we don't want to go over it all again, with respect. I don't --

THE INTERPRETER: Microphone, please.

THE ACCUSED: [Interpretation] I just want you to link all of this up together.

JUDGE MAY: We can do that. We've heard the evidence, and we can see whether it's relevant or not. Now, why can't you hand in both the Serb and the English versions of the documents?

THE ACCUSED: [Interpretation] In this case, no, I only have the version in Serbian. But you will find the English version because I've given you the number.

JUDGE MAY: If you hand in the documents now, we can then consider them. But we can't really waste a lot of time going over them.

THE ACCUSED: [Interpretation] You are not considering anything. I'm just giving you the number of documents. This has to do with the warning concerning radicalisation. The Serb version is 03036489, paragraphs 3 and 8, and the English version is K0214097, paragraphs 2 and 7, and I'm submitting both the English and Serbian versions to you. So ⁵⁶⁵⁸ that's a different matter altogether.

Now, point number 3. In relation to the question that had to do with the green light for union with Albania, I am submitting yet again another paper, 03036366, paragraphs 4 and 5. And the English version is 214092, paragraphs 4 and 5, and I'm submitting both the Serbian and the English versions to you.

Point number 4, the plan for a secession, for the secession of Kosovo. Evidence of that concerning international protection, the Serb version is 03036508, paragraph 5, and the English version is K0214118, paragraph 4. I am submitting both the English and Serbian versions to you.

Point number 5. As for the attitude of their party towards the KLA as extremists, I'm submitting to you the Serb version, number 03036356, and the English version is 00805327, and I'm submitting both the English and Serbian versions to you. So that's that. Last but not least, point number 6, the question that had to do with the Hill plan and the draft related to Kosovo. The Serb version is 03036534, and the English version is 00805325 and 0080526. So I'm submitting that to you as well.

So that would be it. And I haven't got anything left on that score, but Mr. Ognjanovic is going to submit a cassette as well, the one that you requested, the one that I quoted. It would have been submitted to you earlier, but the explanation he got, my associate, when he wanted to come and bring it to me on Friday, was that he could not bring a cassette in, into the prison, that is, because this was not approved by ⁵⁶⁵⁹ the Registrar. And the explanation was that for every cassette that is brought to me to prison, there has to be an individual approval given by the Registrar. So could you please have that clarified. If I have the right to have my associates bring me documents related to this case, I should think that it also has to do with cassettes as well. And then if he says the previous day that he is going to bring legal documents, that is to say documents, cassettes, et cetera, could you please look into this and see whether each and every time every tape has to be submitted to the Registrar and then does this communication with prison have to go through the Registrar?

That would be about it. As you can see, I've been quite brief. You have all six exhibits here.

JUDGE MAY: Let us have the exhibits. If the usher would collect them, please. If the registrar would hand them up. And we'll also ask her to look into the matter of the cassette too, if you would. Very well. We will hand these now to the Prosecution to look at and see if there's any objection. Otherwise, they will be exhibited. Mr. Milosevic, the other point you were asked about was the question of court records referred to yesterday. You asked about some court records. You referred to them. Do you have any copies of those records available for the Court so we can check them out?

THE ACCUSED: [Interpretation] I have the numbers, the ones that I mentioned. I haven't got the copies of the court records, but they can be obtained, because the court records from Urosevac are actually kept at the court in Nis. So the court authorities of Yugoslavia have got them. ⁵⁶⁶⁰

JUDGE MAY: Very well. Mr. Nice, if you could pursue that matter, obviously it would be helpful.

MR. NICE: Yes. We will pursue that. It will, of course, take some time. And there's no guarantee of success. It depends on the cooperation of the authorities. As to these exhibits, it's probably safer if I hand back the Serb versions now than run the risk of them getting lost in our paperwork. If the Registry could hang on to them. We'll check the English versions when we've dug them out and will respond whether we have any objections.

JUDGE MAY: It may be convenient then for them to have exhibit numbers, at least for identification at the moment.

MR. NICE: I think that would be sensible. I've still got some outstanding issues on newspaper articles to come back on.

JUDGE MAY: Yes. It may be convenient if we call the evidence now while the registrar decides on numbers for those and in due course we can come back to them.

MR. NICE: Apparently the English versions were there already, so I'm wrong, I can work on those documents and will work on them today.

JUDGE MAY: Let the registrar have them for the moment and give them numbers and then you can have them and see if there's any objection. Now, can we go on with the witness, please.

MS. ROMANO: William Robert Fulton. Madam Registrar, I will be using with this witness Exhibit 166 is the binder for Suva Reka, and I would ask, if possible, the witness be given one set of the binders. It's ⁵⁶⁶¹ the second binder of Suva Reka. And also Exhibit 167 is the Meja binder. And Your Honours, I also ask permission for the witness to refer to his notes. I think you have a copy of his summary and he is an investigator who was in Belgrade and he participated in monitoring the mass graves, the exhumations, and he took extensive notes.

[Trial Chamber confers]

JUDGE MAY: Yes, he can refer to his notes.

MS. ROMANO: Thank you

[The witness entered court]

THE WITNESS: I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

JUDGE MAY: If you'd like to sit down.

WITNESS: WILLIAM ROBERT FULTON

JUDGE MAY: Yes. Examined by Ms. Romano:

Q. Can you give us your full name, please.

A. William Robert Fulton.

Q. Mr. Fulton, I will ask you to pause between questions and answers in order for the interpreters to do their work.

Mr. Fulton, you were a police officer holding the rank of detective sergeant in the Royal Ulster Constabulary, now renamed the Police Service of Northern Ireland, for 23 years; is that correct?

A. That's correct, Your Honour, yes.

Q. Have you been involved in organisational training in identification of dead bodies in major disasters? ⁵⁶⁶²

A. Yes. I was a co-author of the RUC's Contingency Plan on the Recovery and Identification of Dead Bodies at Major Disasters.

Q. You were seconded to the British forensic team to work in Kosovo in September and October 1999, and again in 2000 for the exhumation work; is that correct?

A. Yes, that's correct.

Q. You have been currently working as an investigator for the Office of the Prosecutor since May 2001; is that correct?

A. Yes, that's correct.

Q. Mr. Fulton, on June 6, 2001, you were assigned to work in the field office in Belgrade. Yes or no.

A. Yes, that's correct.

Q. Who assigned you to this work, and what was your work over there?

A. I was assigned to go to Belgrade by my team leader, Mr. Kevin Curtis, to monitor the exhumation process that was scheduled to start within the boundaries of Serbia.

Q. How many sites in total have you monitored?

A. During my time in Serbia, there was four sites. However, I was involved in the monitoring of two of them. However, I did visit all four sites.

Q. Can you -- can you name the sites for the Court?

A. There was two in an area called Batajnica, one in Petrovo Selo -- actually, two in Petrovo Selo, both very, very close to one another, and the other in the area of Lake Perucac.

MS. ROMANO: Can I have the witness shown this map. The accused ⁵⁶⁶³ and the amici, they have already, and I have copies for the Court here. It is a map of Serbia where is shown the location of the mass graves and exhumation sites.

Q. Witness, with the help of the map when you have it, can you show to the Court the location, the exact location of the sites?

A. Yes. The first site I attended was on the outskirts of Belgrade, approximately 20 kilometres, in Batajnica.

Q. Can you please point to the location of the site.

A. This is Batajnica. The next site that I attended was the one in Petrovo Selo, which is here. Of course there was two in Batajnica. And, finally, there was one in Lake Perucac.

Q. Thank you.

MS. ROMANO: The Prosecution submits the map into evidence.

THE REGISTRAR: Prosecution Exhibit 172.

MS. ROMANO:

Q. Mr. Fulton, these exhumations relate to mass graves that have been recently discovered in Serbia. Can you please tell the Court how did these mass graves came to be discovered and who was in charge of this investigation?

A. Information received at the Office of the Prosecutor, primarily from media reports, there was an investigation carried out as a result of a -- what's known as the freezer lorry in the Danube, quite close to a village called Tekija, that was investigated by Captain Dragan Karleusa. He's deputy chief of police of the MUP. And it was alleged to contain bodies of victims who had been killed in Kosovo. ⁵⁶⁶⁴

Q. Can you explain, if you can, with more details how was this investigation in the lorry or if you know that? When was this lorry discovered and when the investigation started?

A. My understanding is that the lorry was discovered in the River Danube in April of 1999. The investigation initiated by the MUP would have been sometime later, certainly within 2001, which in turn led to the identification of an area, the first Batajnica site, that was selected for exhumation.

Q. And as a result of this investigation, it was believed that these mass graves contained bodies of persons killed in Kosovo during the conflict; that's correct?

A. That was the indication, yes.

Q. And has the Office of the Prosecutor established any connection between the bodies and the victims named in the second amended indictment later on?

A. As a result of the exhumation that was carried out by the experts from the Institute of Forensic Science in Belgrade who carried out the duty at the exhumation site of Batajnica 1, a number of items of identification were recovered that would tend to indicate that these identifications belonged and referred to people from Kosovo and principally from Suva Reka.

Q. Who carried out the exhumations, all the exhumations?

A. The exhumations were performed, as I say, by members of the Belgrade Institute of Forensic Medicine under the direct -- the person in charge was Professor Dusan Dunjic and members of his staff involved in ⁵⁶⁶⁵ that.

Q. Have they finished all the exhumation work?

A. My understanding is that all the -- all sites were identified by Captain Karleusa. On the second Batajnica site, there is still two more mass graves to be exhumed there. They have not been started as of -- to date.

Q. And has the Office of the Prosecutor received all the reports, preliminary or final, of the exhumations that have been already concluded?

A. The Office of the Prosecutor has received, following an official request, the complete forensic reports concerning the first Batajnica site and the photographs that led to that. All other sites, although requested, have not been forwarded to us as yet.

Q. But the Office of the Prosecutor has requested to obtain these reports?

A. That's correct, yes.

Q. Were you assigned to monitor the exhumation process while they were being performed?

A. Yes, I was.

Q. And can you describe your role.

A. My role was purely non-interventionist. I was there simply to monitor the procedures of how the exhumation process took place, the evidential recording, and anything of any significance that was found at the site.

Q. All the information gathered concerning the first site on Batajnica, Batajnica, is contained in a binder that you compiled with ⁵⁶⁶⁶ other members of the Office of the Prosecutor; is that correct?

A. That's correct, yes.

MS. ROMANO: Can I have the witness shown or given Suva Reka, the second binder of Suva Reka, Exhibit 166.

Q. Batajnica was the first site that you attended. That's correct?

A. Batajnica 1 was the first site, yes.

Q. In the binder, in tab 29, you have a photo of the exhumation of the site. Can you show the photo to the Court.

A. On this.

MS. ROMANO: Mr. Usher, if you can help the witness to put the photo on the ELMO.

Q. That is the site of the exhumation in Batajnica?

A. Yes, that's one of the -- all these photographs were taken by the crime tech, technician, who was working with the exhumation team, and these number of photographs show the topography of the area at the start of the exhumation process.

Q. Where was the exact location of this site? Was it in the outskirts of Belgrade?

A. Yes, it is in the outskirts of Belgrade, as I referred to, in Batajnica. Directly behind or to the left of this photograph is the boundary fence of a special anti-terrorist unit, the SAJ, and their firing range only a matter of metres to the left. This actually abuts the perimeter fence of this complex and a VJ complex.

Q. Who provided you with information about this mass grave?

A. The information that was obtained through the police investigation ⁵⁶⁶⁷ was passed to Belgrade District Court where an investigating judge was appointed.

Q. Do you remember who was the investigating judge?

A. The investigating judge for the first Batajnica site was Goran Cavlina.

Q. And the forensic team was composed of how many people?

A. There were a number pathologists who did a rotation. There was anthropologists, archaeologists, and assistants who helped in the actual labour.

Q. And when did the exhumations take place and what is the period of time that you attended the exhumations?

A. I attended the exhumations from the 10th of June until the 26th of June.

Q. Were you the only observer?

A. No. There are several other observers from Humanitarian Law Centre, OSCE, ICMP.

Q. During the course of the exhumations, were any bodies recovered? And if any, how many?

A. The indications that were given to me were that the total number of bodies numbered between 36 -- well, at least 36 to 38 bodies.

Q. How many male, female, and children?

A. There were 14 females, 13 men, nine children, and one foetus.

Q. Were identification items such as documents or clothing also recovered?

A. Yes. A number of those items were recovered, yes. ⁵⁶⁶⁸

Q. And you were -- were you present at the site when these documents were recovered?

A. Yes, I was.

Q. And were the details contained in the documents given to you?

A. Yes, they were.

THE INTERPRETER: Please make a pause between questions and answers. Thank you.

MS. ROMANO: My apology.

Q. So -- and did you also get copies of these documents?

A. When the official request was agreed to, we were supplied with photographic recordings of all the identification documents that were recovered.

Q. And while you were on the site and the documents were being recovered, what did you do with the information that was given to you?

A. The information was passed to me by members of the team. Whenever I was in receipt of that information, I passed it to the Office of the Prosecutor.

Q. And did the members of the Office of the Prosecutor in The Hague, did they check their records in order to determine if any of the details matched to the victims of the crimes investigated by our office?

A. Yes, they did.

Q. And what was established?

A. Indications were that these people and the identification -- sorry, the identification documents that were recovered referred to people who had been killed in Suva Reka. ⁵⁶⁶⁹

Q. And from all the documents recovered, how many of them matched with the details from the victims of Suva Reka?

A. Of the -- sorry. I can't remember how many now. I think it was -- it was nine documents recovered. And eight of those referred to people who had been killed within Suva Reka.

Q. And you mentioned that you later obtained copies of photographs and also forensic reports?

A. That's correct, yes.

Q. When did you obtain that and from whom?

A. Whenever the forensic team had completed their reports, they were handed in to Belgrade District Court. The copies of the forensic reports and the photographs were obtained from the court.

Q. And are they compiled in the binder that you have in front of you?

A. Yes, they are.

Q. Are they -- the forensic reports are compiled on the tabs 34 to 38 and 41; is that correct?

A. Sorry, what was the numbers again? 38, yes.

Q. 34 to 38 and 41.

A. Yes. These are the forensic reports as compiled by -- and signed by Professor Dunjic and members of his forensic team.

Q. And they relate to the nine identification items?

A. Yes, there are considerably more forensic reports. However, these are the ones that refer to the identification documents and the bodies.

Q. And the photographs? Are they contained under tabs 19 to 27?

A. Yes, they are, Your Honours. ^{5670 BLANK PAGE 5671}

Q. Using the photographs, can you please tell the court the names of the individuals identified and what kind of documents or identification items were recovered that allowed the identification? Maybe you can refer to the index, if you have it.

A. Shall I show this one? Because it is in Latin, it shows quite clearly the name.

JUDGE MAY: Yes. Put that on, if you would, Mr. Fulton.

THE WITNESS: [Interpretation] This photograph is a licna karta, which is an identification document, is associated with body PA09, and it shows the details and the name of Afrim Berisha from Suva Reka.

MS. ROMANO:

Q. And is Afrim Berisha one of the victims listed in Attachment K of the second amended indictment?

A. Yes, Your Honour.

Q. What is the name of the second victim?

A. The second victim is Nexhmedin Berisha.

Q. All the photos contained in tab 20?

A. That's correct, yes.

Q. They refer to the identification of Nexhmedin Berisha? And what was the item recovered?

A. That is a licna karta.

Q. The next victim?

A. The next identification document is a driving licence in the name of -- I was given initially as Morina Miftar. However, it since has been referred to -- because there is a lot of degradation of these documents. ⁵⁶⁷² Some were clearly better than others because of the body fluids, there was evidence of burning. I considered it disruption. So some of the details are, primarily in this one, are perhaps not as clear.

Q. This person is not listed in Attachment K, but is this person from Suva Reka?

A. Yes. Indications are that this person is from the Suva Reka municipality.

Q. Thank you. The next person is Hamdi Berisha. Is tab 22.

A. That's correct, Your Honour.

Q. And where was the document found?

A. This one is a licna karta.

MS. ROMANO: Your Honours, in order to do it in a more expeditious way, Your Honours want me to go one by one and see all the documents, or I just can refer to the tab and lay it on?

JUDGE MAY: We don't have to see the documents but just refer to them.

MS. ROMANO: To them. Okay.

Q. So, Mr. Fulton, can you just refer to the name and what was the document found and the tab that can be located. You can use the index. So the next person would be Hamdi Berisha. Where was the document? Excuse me, we passed already Hamdi Berisha. It is Fatmira Berisha.

A. Fatmira Berisha, yes.

Q. Where was the document found?

A. This document was found in items of loose clothing and it contains ⁵⁶⁷³ a licna karta which relates to the name of Fatmira Berisha.

Q. And Hamdi Berisha and Fatmira Berisha are listed in Attachment K of the amended indictment?

A. That's correct, Your Honour, yes.

Q. You also have a health care on the name of Hamdi Berisha?

A. Yes. I've been told that this is a health insurance card in the name of Hamdi Berisha.

Q. It's the same Hamdi Berisha as was in the licna karta or are different persons?

A. I can't determine that.

Q. The next would be Vesel Berisha.

A. Yes. There was a considerable amount of documents recovered with this body. I'm sorry.

Q. And in tab 25?

A. That's correct.

Q. Hasan Bytyqi?

A. This is a licna karta and a driving licence in the name of Hasan Bytyci. There is also a vehicle registration licence in the name of Zoga Mehdin.

Q. And what is the tab? 26?

A. Twenty-six.

Q. And is this person from Suva Reka?

A. That's correct, Your Honour, yes.

Q. The next one would be Musli Berisha?

A. Twenty-seven. Yes, licna karta in the name of Musli Berisha. ⁵⁶⁷⁴ These last number of items apart from the first two were found in items of loose clothing of which there was a considerable amount.

Q. I think we covered all the nine. Mr. Fulton, was there another attempt to identify the bodies and remains recovered from this site using other means of identification?

A. Ordinarily, it is possible to identify bodies comparing antemortem data, which is data pre-death, to the post-mortem data that is recovered at the exhumation. Because of the nature of the bodies, where there was considerable fracturing and commingling and burning, it was clear that we would have to use the facility that could be afforded by DNA process.

Q. And did Belgrade -- did Belgrade have facilities such like that?

A. It was established that Belgrade did not have the facility to carry out such a DNA analysis.

Q. So what was done?

A. A facility was agreed by a DNA facility in Madrid who would process the samples that were obtained from Batajnica 1 for the purpose of DNA identification.

Q. So on 21st November, 2001, you accompanied Professor Dunjic to Madrid?

A. That's correct, Your Honour, yes.

Q. To the Instituto Nacional do Toxicologia.

A. That is correct, yes.

Q. And has a preliminary report already been prepared?

A. Professor Dunjic took the samples and delivered them to the institute in Madrid, and they -- and a preliminary result has been ⁵⁶⁷⁵ supplied by this institute.

Q. And how did the samples from the relatives of the victims, how did they -- how did they -- how were they gathered?

A. There was blood samples from the remaining members of the families of people from Suva Reka were obtained from the institute -- or from the ICMT -- the ICMP, I apologise.

Q. And has the Office of the Prosecutor received this preliminary report?

A. Yes, this report has been sent to the Office of the Prosecutor and to Professor Dunjic in Belgrade.

Q. And is this the report that is in tab 28?

A. That's correct, Your Honour, yes.

Q. And what were the preliminary findings contained in this report?

A. There are conclusions in this report from the Madrid institute that would indicate that there is a genetic link between a sample from body BA34 and BA52 to a blood sample that was obtained from the relatives of the victims from Suva Reka.

Q. And the photographs related to these two bodies are in tabs 31 and 32 of the binder?

A. Actually, in 30, 31, and 32.

Q. And has the Office of the Prosecutor also received the forensic report related to these two bodies?

A. Yes, that's correct.

Q. And are they in tabs 39 and 40?

A. Yes, that's correct. ⁵⁶⁷⁶

Q. This analysis will be forwarded to the coordination centre for Kosovo for formal identification?

A. Yes. The procedure over there is the formal identification has yet to be made. However, the -- it's a case of getting the DNA analysis, the antemortem data and the post-mortem data to make a formal identification.

Q. In the binder also there is a photo of the site after the job of the exhumation and the work was concluded. I believe this is in tab 33.

A. Yes, that's correct, Your Honour.

Q. Can you please show the Court. What does the photo show?

A. That's one photograph of the site at the conclusion and the exhumation of all the bodies and all associated materials. You will see that there is a number of railway sleepers that have been laid along the floor of the pit, and there's also evidence of burning.

Q. And what does this indicate?

A. The conclusions, it would appear that there has been an attempt to destroy the bodies by fire.

Q. I don't think we will be needing any more the binders. Mr. Fulton, all the information that the Office of the Prosecutor was asked regarding the work done in the three other exhumation sites are only your notes?

A. That's correct, Your Honour, yes.

Q. So the Office of the Prosecutor has not received yet the conclusions or the photographs?

A. I understand that the photographs and the forensic reports of the ⁵⁶⁷⁷ second Batajnica site that was performed by the Belgrade institute have been forwarded to the Court. However, we have not been receipt of them yet.

Q. Can you give the exact location of the second exhumation site? It's also in Batajnica, but the exact location?

A. The second Batajnica site, as I referred to earlier, is a short distance from the first one. However, this one is actually -- was found to be inside the SAJ compound and on the firing range.

Q. And again, who provided you with information?

A. This information was given by the courts.

Q. And who was the investigative magistrate?

A. The investigating judge, appointed by the president of the court for the second Batajnica site was Judge Milan Dilparic.

Q. How long did the exhumation last?

A. The exhumation from the second Batajnica site lasted from the 10th of July until the 15th of September.

Q. And did you attend during all at that time?

A. Yes.

Q. During the course of this exhumation, how many bodies, if any, were recovered?

A. It has been indicated to me that the bodies of at least 269 people have been recovered from this one site.

Q. Were any of these bodies identified?

A. There's been no identification of any of those bodies so far.

Q. And were identification items - again such documents, clothing - ⁵⁶⁷⁸ also recovered?

A. Yes, there was a number of identification documents recovered, Your Honour.

Q. Do you remember how many?

A. There was 11, I believe.

Q. And were you on the site when these documents were recovered?

A. Yes, Your Honour.

Q. Were the details contained in these documents given to you?

A. Yes, the details were given to me by members of the team.

Q. And again, what did you do with this information?

A. Whenever this information came into my possession, it was forwarded it the Office of the Prosecutor.

Q. And did the members of the Office of the Prosecutor in The Hague check their records in order to determine if any of the details matched to the victims of any of the crimes investigated by the office?

A. That's correct, yes.

Q. And which record was use by the members of the OTP in this case?

A. They used the ICRC register.

MS. ROMANO: Can I have the witness shown the binder of Meja, Exhibit 167, tab 2. It's the list of missing persons from the International Committee of the Red Cross.

THE INTERPRETER: Would the Prosecutor kindly slow down a little.

MS. ROMANO: I'm sorry. I will try my best.

Q. What is exactly this document, Mr. Fulton?

A. This records the details of persons who are -- have been reported ⁵⁶⁷⁹ missing as recorded by the ICRC and from where, and as much detail - father's name, date of birth - as is possible.

Q. And what was established from all the documents recovered? How many of them matched with the details of people listed in the records?

A. Of identification documents recovered, I believe there was nine that referred to people who appear in the ICRC register.

Q. I believe it was eight.

A. Eight. My apologies.

Q. The first one would be Ali Bajrami. And if you can turn to page 61 of the ICRC list.

MS. ROMANO: Can the usher please help the witness to put the -- that page on the ELMO.

Q. Ali Bajrami is listed as to have -- a person to have disappeared on the 27th of April, 1999, in Meja. What was the document found in the exhumation sites that connected to this person?

A. This was a licna karta in the name of Ali Bajrami, father's name Kadri.

Q. The second person will be Simon Sokoli, and you can use page 67 this time and point to the court the location of the name. Can you point on the ELMO, please. And what was the document found?

A. This again was a licna karta associated with body number 177 that was removed from this grave.

Q. And did the details contained in the licna karta match with the details in the record of the ICRC?

A. Yes, they did, Your Honour. ⁵⁶⁸⁰

Q. The other person would be Sezai Rama, and it's listed on page 66. I don't think we need to continue showing or putting on the ELMO. I would just ask you to refer to what was the -- what was the identification item found that allowed the match.

A. This was a health care card, Your Honour.

Q. And is it Shyt Hasanaj is listed in the record on page 63 what was the document found?

A. This was a licna karta on body 221.

Q. Krist Sokoli, ICRC list page 67.

A. This was a licna karta.

Q. Gani Smajili, page 67 as well?

A. This again was a licna karta that was found on body 240.

Q. Qun Bib Krasniqi. It's on page 60.

A. Sorry, what page again?

Q. Page 60. This person is listed as missing from Korenica on the 27th of April, 1999.

A. Sorry, could I have that name again?

Q. Krasniqi Qun Bib.

A. Yes. Yes. That's correct, Your Honour, yes.

Q. The search does not really identify the missing person but identified, I believe, an individual named Ndue Krasniqi.

A. That's right. Date of birth 12th of 1st, 1966. He has a father named Bibe.

Q. Can you clarify to the Court how this conclusion was reached?

A. Well, as you referred to, the search does not readily identify a ⁵⁶⁸¹ missing person of this name, however, there is a close correlation between this individual and the one in the ICRC register on page 60.

Q. So the conclusion was that Bibe Krasniqi probably is the father of the Ndue Krasniqi; is that correct?

A. Yeah, there's a possibility, yes.

Q. Brahim Gaxherri, and it's listed on page 62.

A. Yes. This was a licna karta in the name.

Q. We have the eight people. Mr. Fulton, what was the third site that you visit?

A. There was some overlap in a number of exhumations that were going on. The next site I attended was on the 27th of June, was the site of Petrovo Selo.

Q. And again the Office of the Prosecutor does not possess any -- any report or photographs from this exhumation?

A. That's correct, Your Honour, yes.

Q. And while you were there, what did you monitor or observe?

A. While the exhumation process was going on, I had only time for a short visit. However, information was passed to me. The exhumations at this site took place from the 24th of June until the 5th of July.

Q. And how many bodies, if any, were recovered?

A. From the first site in Petrovo Selo, there were 16 bodies, all male; and from the second site, there were 57 bodies, seven of which were female.

Q. And were you able to ascertain any body or any documents? Were you given any documents of any of the bodies? ⁵⁶⁸²

A. I was informed that there had been a number of identification documents found from the first site. There was a document that referred to the names of three people by the name of Bytyqi.

Q. And what was done?

A. This in turn led to, I believe, to be from Kosovo. However, they were American citizens from Chicago, United States of America.

Q. And was -- was any record checked in order to obtain this identification?

A. This information obtained through the -- at that time through the HRC, was able to lead us to indication that these were three brothers by the name of Agron, Mehmet, and Ylli.

Q. And were these three brothers reported as missing?

A. Yes. They were reported missing to the ICRC from a prison near Nis on the 8th of July, 1999.

Q. And what was recovered from the second site in Petrovo Selo?

A. There was five further documents recovered, three of which refer to people that correspond with details contained in the ICRC register.

Q. Can you give us the three names and the document that was found and how -- where they report as missing?

A. There was a licna karta in the name of Iljaz Muslija, who disappeared on the 1st of the 4th, 1999 from Izbica.

Q. And is this person listed in the ICRC list page 40?

A. I have a reference number, which is SRB BLG 804238.

Q. What is the second person?

A. There is a licna karta found in an item of clothing in the name of ⁵⁶⁸³ Hysen Mehmeti.

Q. And is this person reported disappeared?

A. These details correspond to the ICRC register of a person who disappeared on the 24th of May 1999 from an unknown location.

Q. Is this on page 85 of the ICRC list? You don't have the list with you?

A. I don't have the list, I'm afraid.

Q. Page 85.

A. Yes, it does, Your Honour.

Q. And -- and the third person?

A. Is a licna karta in the name of Nazmi Gradina.

Q. And this person's reported missing from where and when?

A. This corresponds to ICRC register who disappeared on the 24th of 5th 1999.

Q. It's on page 85 as well?

A. Yes, that's correct, Your Honour.

Q. Thank you. The last site, the fourth site in Lake Perucac, can you again give us the exact location and the exhumations took place -- when did they take place?

A. The exhumations took place from the 6th to the 14th of September, 2001 in Lake Perucac. It was given, such as BA or PS, it was given the identification moniker of D as the exhumation site itself was where the river Derventa went into the lake.

Q. And how many bodies, if any, were recovered?

A. These bodies were again charred, skeletal, and had a considerable ⁵⁶⁸⁴ amount of fractures. The indications are that there was at least 48 bodies recovered from that exhumation site.

Q. And were any of the bodies identified?

A. There's been no identifications taken place on these bodies.

Q. And documents or items?

A. It was brought to my attention two identification documents were found.

Q. What kind of documents and what are the contents or the details contained in these documents?

A. The first one is a licna karta that was found in an item of clothing in the name of Gezim Deva.

Q. And who is this person and is recorded as missing somewhere?

A. This person is recorded as missing from Djakovica on the 31st of the 3rd 1999.

Q. And is also part of the record of the ICRC list?

A. Yes.

Q. It's page 37?

A. Thirty-seven, that's correct, Your Honour, yes.

Q. And where was the second document recovered?

A. This was a driving licence in the name of Skeljzen Binishi, who refers to a person missing from Djakovica on the 31st of the 3rd 1999.

Q. And is this person also on page 37 of the ICRC list?

A. Here it is. I'm just having some difficulty honing in on it. Ah, yes.

Q. Thank you. Mr. Fulton, you followed the exhumation process ⁵⁶⁸⁵ throughout the period in Belgrade. According to your experience and identification of dead bodies, were the work conducted professionally and in an adequate manner?

A. Absolutely.

MS. ROMANO: No further questions, Your Honour. Thank you.

JUDGE MAY: Thank you. Yes, Mr. Milosevic. Cross-examined by Mr. Milosevic:

Q. [Interpretation] [No interpretation]

JUDGE MAY: There's no interpretation. Would you repeat that, please, Mr. Milosevic. It doesn't seem to have been translated.

THE ACCUSED: [Interpretation] Of course I'll repeat it, yes.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Fulton, you are a professional policeman, aren't you?

A. I'm a police officer, yes.

Q. What kind of police work do you do? What is your speciality, so to speak? Do you work on the discovery of crimes or is it something else? You are a detective, if I understood what was said correctly.

A. Yes, I am, Your Honour. I've been a detective for over 18 years.

Q. Very well. Tell me, how long did you stay in Yugoslavia altogether?

A. I went to Yugoslavia on the 6th of June last year.

Q. First time?

A. In Serbia, yes.

Q. You returned?

A. Yes. I've been back many times. ⁵⁶⁸⁶

Q. Yes. But the question was: How long did your stay in Yugoslavia last?

A. I've been assigned to Yugoslavia from the 6th of June last year, and I remain assigned to Belgrade to date.

Q. Now I understand. So you've been in Belgrade for almost a year now; right?

A. That's correct, Your Honour, yes.

Q. During that year, have you had meetings with representatives of the authorities in Belgrade?

A. Which authorities do you refer to?

Q. Let me rephrase the question. During your stay in Belgrade, were there any visits from the OTP, from the Office of the Prosecutor that you work for? Were there any visits paid by them to Belgrade?

A. I believe so, yes, Your Honour.

Q. Did you take part in these meetings that the Prosecutors had with the representatives of the authorities when they travelled to Belgrade?

A. Are you referring to the visit made by the Prosecutor to Belgrade, Your Honour?

Q. I am referring to her visit and to other visits of the representatives of the OTP.

JUDGE MAY: This witness has given evidence about exhumation, and your cross-examination should concentrate on that and nothing else.

THE ACCUSED: [Interpretation] Well, I assume that I can ask him whether he took part in talks with the representatives of the authorities in the country that he went to to dig up corpses, that is. I do not see ⁵⁶⁸⁷ that that goes beyond the scope, Mr. May.

JUDGE MAY: Only in relation to the exhumation. Mr. Fulton, help us with this --

THE WITNESS: [Interpretation] No, Your Honour, I didn't take part in any of the meetings with the Prosecutor that she had whenever she visits the authorities.

MR. MILOSEVIC: [Interpretation]

Q. The statements that you gave and that are used today were given on two occasions. Where did you give your statements?

A. I'm sorry, I don't know what you're referring to.

JUDGE MAY: Where did you make your statements, your witness statements?

THE WITNESS: [Interpretation] Here, Your Honour.

MR. MILOSEVIC: [Interpretation]

Q. And which investigator did you give your statements to?

A. It would have been to my team leader, Mr. Kevin Curtis.

THE ACCUSED: [Interpretation] Is that the person who kidnapped me from Belgrade, Mr. May?

JUDGE MAY: No. That's not a relevant question. Yes.

THE ACCUSED: [Interpretation] All right.

MR. MILOSEVIC: [Interpretation]

Q. You say that you were there to supervise the exhumations. What does "supervision" mean, the supervision you've been referring to?

A. Your Honour, I never said that I supervised. I was there in a capacity to monitor. It was quite clear to me and made quite clear to me, ⁵⁶⁸⁸ as my role was non-interventionist, I had no influence, I offered no direction, I simply observed what was taking place by members of the Belgrade Institute of Forensic Science and other institutes.

Q. So let me rephrase the question. What do you mean by "monitoring" now? I'm not asking you about supervision. I'm asking you about monitoring. What do you mean by that?

A. I observed, Your Honour.

Q. Did you observe all actions from when the team start -- teams started to work until they would finish their work? Did your working hours coincide with the working hours of the teams?

A. For the first Batajnica site certainly, Your Honour.

Q. And can you tell me whether it was established -- whether it was established at all and whether it was ultimately established when the bodies were brought to the locality where you saw them?

A. That question has to be answered by the officer conducting the investigation. I was not there in an investigating capacity, I was there purely as an observer. I cannot refer to how long the bodies were to be in the ground. That's simply within the purview of the forensic team and their area of expertise.

Q. So you know nothing about this; right?

A. About what, Your Honour?

Q. About when these bodies were brought to the locality where you had them dug up.

A. Indications that were throughout the press were that these bodies had been placed there during 1999, primarily April and May 1999. This was ⁵⁶⁸⁹ information that was given in informations to the press by the investigating police officer.

Q. So apart from information obtained from the press, you have no other information from the spot, from contacts with your people who were carrying out the exhumations?

A. The people who were carrying out the exhumations were not my people. They were members of institutes from Serbia. It is up to them to make determinations regarding that matter, it's not up to me. I do not have the expertise, the knowledge, or the capability of doing that. I was there merely to observe and to monitor.

Q. I'm not talking about the forensic part of the work here now. There is no doubt that forensics experts are experts in their own field. I asked you a different question. I asked you whether you had any other type of information, and you said no, you did not. Awhile ago, you gave answers to the Prosecutor's questions as to how you identified such-and-such a person and how you identified yet another person. You remember all of that. This was five minutes ago. You remember that she asked you about many persons, how you identified them. Now, was any person identified here at all, Mr. Fulton, and if so, how?

A. There's been no formal identifications made to date. I did not say that these -- I said that these were identification documents that had been recovered.

Q. Yes. But you heard the Prosecutor asking you how did you identify such-and-such a person, and how did you identify yet another person? ^{5690 BLANK PAGE 5691} Several times she put her questions that way, how did you identify a particular person? Does this answer of yours now mean that you enumerated documents that were found in the ground amongst scattered clothes? Is that right or is that not right?

JUDGE MAY: That was the witness's evidence. How the Prosecutor chooses to phrase her questions is not a matter for the witness. His evidence is this: That amongst the clothing found in these various graves with the bodies, there were these identifying documents. Now, that's his evidence. It's a matter for the Court to weigh.

THE ACCUSED: [Interpretation] All right, Mr. May. I think that what you said just now implies that he should answer my questions as well rather than give comments in relation to them.

MR. MILOSEVIC: [Interpretation]

Q. So my question is: Were the bodies identified or not?

JUDGE MAY: He's answered that. No formal identification was made, but there were these identifying documents. That is the state of the evidence. Then those documents tie up, it's said, with missing persons.

Now, the witness can't really take it very much further than that, and it will be for the Court to determine the probative value involved.

THE ACCUSED: [Interpretation] I don't know why you're bothered by having the witness answer me whether these bodies were identified or not.

JUDGE MAY: Because he's answered you. He said there was no formal identification, but he said there were these documents found. Now, he can't take it any further than that. He's a witness. He's telling us ⁵⁶⁹² what happened, and that's what happened. Whether you want to argue that that doesn't identify anybody, that's a matter for you, and you can argue it in due course. But there's not good trying to argue with the witness. Well, it's time to adjourn, in any event. We'll adjourn now. Twenty minutes.

Mr. Fulton, you'll remember, of course, not to speak to anybody about your evidence during the adjournment.

THE WITNESS: [Interpretation] Yes, Your Honour.

--- Recess taken at 10.31 a.m.

--- On resuming at 10.55 a.m.

JUDGE MAY: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. A moment ago, when I asked you whether you supervised the process of exhumation, you said no, and you explained that you never said that and that you were just an observer and monitored it. Now, I'm going to quote one or two passages from your statement, page 2, I think, and it says: "I am at the moment an investigator working for the OTP. I have been employed in this position since June 2001, when I was assigned to Belgrade to observe the exhumation process that was taking place within the boundaries of Serbia."

THE INTERPRETER: The word the accused is using in Serbian is "supervise."

MR. MILOSEVIC: [Interpretation]

Q. Now, is that correct or not?

A. No. I observed. I monitored. ⁵⁶⁹³

Q. All right. That means that in the statement on this point, the -- it has not been -- what you were doing was not written correctly. Is that right?

JUDGE MAY: Or not translated correctly.

MR. MILOSEVIC: [Interpretation]

Q. What does it say in the English? I haven't got the English version in front of me.

JUDGE MAY: We don't have it either, but -- Ms. Romano, have you got the English there?

We now have the English. The second paragraph of that, the first page of the statement. "I was assigned to Belgrade to observe the exhumation process that was taking place."

THE ACCUSED: [Interpretation] Yes. I can see that now.

MR. MILOSEVIC: [Interpretation]

Q. My next question is the following: As you spoke about documents, was it ever established that these were authentic documents?

A. That's a question I simply can't answer. That may well be up for the --

Q. Very well. Now, the investigating judge or the investigating judges, were they present at the exhumation process all the time?

A. I don't believe so, no.

Q. Did you attend the exhumations from the very beginning or did you join in at some later stage?

A. Batajnica 1 and 2 from the very beginning, Your Honour.

Q. Could you then describe to me how, before the exhumations began, ⁵⁶⁹⁴ what the sites looked like where the exhumations took place. What did the sites look like before the exhumations started?

A. For Batajnica 1, I was not -- I was there after they'd done an exploratory clearance and dig to establish that there was -- or they believed the bodies to be there after the area having been pointed out by the investigating police officer.

The second site at Batajnica, inside the SAJ camp, was a -- just a clear area with some small shrubs.

Q. How many people took part in the exhumation process, actually carried it out?

A. Those details are contained in the report of Professor Dunjic that's in the binder, the second binder. It lists everybody who was involved, and it will also list -- it will also explain what the area was like prior to clearance. This was his site.

Q. Did I understand you correctly? That means that you know all the names of the people who carried out the exhumation, and they are listed in that report. Is that what you're saying? Is that it?

A. Yes.

Q. And were there any photographs or video records of the sites before the exhumation started?

A. I believe so, yes.

Q. And how was the digging done? What with?

A. It was done manually after an initial mechanical excavation. From then on, it was done manually.

Q. What depth were the bodily remains that you're talking about ⁵⁶⁹⁵ found?

A. I believe those details should be contained in the forensic report. Those were not details that I was recording. I had no input into this exhumation process.

Q. And in what state of decay were the bodies that you found -- that were found? What state of putrefaction?

A. I could only say what I see, and this will only be in layman's terms. The bodies were skeletal with some flesh. They were commingled. There were multiple fractures, either post or before death, I simply do not know. These are questions that should be answered by the forensic team and should be contained in their reports.

Q. And in the digging-up stage or the exhumation stage, was this recorded on videotape or photographs?

A. Yes.

Q. When you talk about the locations, the sites, which you say are BA1 and then you mention body BA09 -- that's right, isn't it?

A. That's correct, yes.

Q. What bodily remains were these? Was it a skeleton or were there still traces of tissue left on the corpse?

A. I know that there's a photograph of BA09 following exhumation. Perhaps that will answer the question, Your Honour.

Q. And did you personally attend the taking out of the licna karta or ID cards? You said that they were taken out of trousers that were found on the body. Did you attend this personally?

A. The situation with the monitoring is, although you're ⁵⁶⁹⁶ non-interventionist and you're trying to get information, is also not to be obstructionist. I was -- always maintained a distance from it on the understanding that the information would be brought to my attention.

Q. And please try and be very specific. Where was the licna karta, the ID card, found?

A. Your Honour, I'm afraid I can't be very specific. This function was carried out by members of the forensic team. I do not know which one. It is -- it was their site. It was their exhumation. It was up to them to retrieve it. It was my position to monitor this and to retrieve whatever information was obtained. I was not in their face.

Q. And which other parts of the contents did you have in the place the ID card was found, the wallet?

A. I'm sorry, I don't know what you're talking about.

Q. I understood that it was found in a wallet. What else was there in the wallet? What other contents were in the wallet that you found the ID card in?

A. Your Honour, I didn't find the ID card. The ID card was found by the forensic team. The details are on the index that are contained in the binder. I can't recollect what that was.

Q. All right. We're talking about that body, BA09. Did you carry out the identification of the body? Was the identification of the body carried out?

A. Your Honour, these bodies have not been identified. An identification document was recovered and has been associated with body BA09. ⁵⁶⁹⁷

Q. So they weren't identified. And what about the BA19 body? You say that from the clothing on the body, an ID card was retrieved, and it was in the name of Nexhadin Berisha with all the other specifications, is that right?

A. That's the information that was passed to me at the time, Your Honour, yes.

Q. And what part of the clothing was this ID card retrieved from?

A. Your Honour, I didn't retrieve any of these documents. I didn't examine any of these documents. It was brought to my attention. These documents had been recovered. This was work carried out by the forensic team. It was up to them to do that.

Q. And the process of taking out the ID card from the clothing on the body that you're talking about, was that recorded using video technology?

A. I generally do not know, Your Honour. I'm assuming so. There was a crime technician there who took photographs. He also had a video camera. The directions given to him was given by the lead pathologist, in that case Professor Dunjic. He gave directions to the crime technician. I had no input in that whatsoever.

Q. And in what state was BA19 found?

A. I cannot recall, but the photographs should be there. What I can say is all bodies were in quite advanced stage of decomposition. They were skeletal. There was some flesh. This is a general overview that I observed, but there was evidence of burning. This was just a very, very sorry mass of humanity that was dumped into one pit.

Q. May I then conclude that you were present at the moment when the ⁵⁶⁹⁸ ID card that you're talking about was taken out of the clothing found on this particular body?

JUDGE MAY: He's really given his evidence as best he can about it. He was an overall observer and monitor of what was going on.

MR. MILOSEVIC: [Interpretation]

Q. All right. Now, you talk about identification documents later on which were found, as you say, in the dispersed clothing; is that right?

A. "Dispersed clothing." I'm --

Q. Scattered clothing.

A. I believe I referred to it as loose clothing.

Q. Could you then explain how this clothing was loose?

A. The clothing was described by the forensic team as being loose clothing because it was not associated with a particular body or body part.

Q. Well, in what parts of the clothing were these documents found? Could you be more specific, please?

JUDGE MAY: He can't answer that question. Mr. Milosevic, I don't see the point of this cross-examination. The evidence is this: There is a mass grave. There are a number of bodies. In the clothing of the bodies there are found documents which relate to massacres or other missing persons in Kosovo. Now that is the evidence. It will be a matter for us at the end of the case to determine on that whether it supports the Prosecution argument that these bodies were brought from Kosovo and put into mass graves at these sites.

Now, so far you've cross-examined for over half an hour, and we ⁵⁶⁹⁹ really have added nothing to the case at all. If you want to make submissions about the documents in the -- to us about the documents in the binder, you can do so, but on my calculation, you've got another quarter of an hour or 20 minutes at the most to cross-examine, and that would be more than sufficient.

THE ACCUSED: [Interpretation] You mean I have 15 to 20 minutes in all?

JUDGE MAY: Yes. This is purely technical evidence. It seems to me we're wasting time.

JUDGE ROBINSON: Mr. Milosevic, I just want to support what the Presiding Judge has said. I'm surprised that you're spending so much time on this cross-examination on what is a wholly technical matter. You should reserve your cross-examination for weightier subjects, it seems to me.

THE ACCUSED: [Interpretation] Very well.

MR. MILOSEVIC: [Interpretation]

Q. Now, you claim that all the names mentioned from the documents you're talking about belong to people from the massacre in Suva Reka. And Mr. May just mentioned the word. And this dates to the 26th of March, 1999; is that right?

A. I believe I said that all but one related to people from Suva Reka.

Q. And on what grounds is it claimed that there was a massacre in Suva Reka?

JUDGE MAY: It was I who said it, not the witness. Now, go on ⁵⁷⁰⁰ with cross-examination.

MR. MILOSEVIC: [Interpretation]

Q. The exhumations at the BA2 location, were you present there from the very beginning or did you join them at a later stage?

A. I was there from the very beginning, Your Honour.

Q. Now, number 1, bodies from this locality, you talk about personal findings with Ismajl Laxhi [phoen], the 30th of June, born the 30th of June, 1938 in Tirana. And this was not attached to the body; is that right?

A. That's correct, Your Honour, yes.

Q. What was this personal identification or personal sign, mark?

A. It was identified to me as being a dog tag.

Q. And was it attached round the neck?

A. It was not attached to a body, Your Honour.

Q. How do you mean it wasn't attached to the body?

A. It was loose, Your Honour.

Q. Now, number 2, BA92, body number 2, you say you found the ID card in the name of Ali Bajrami. Where was that licna karta found? Was it attached to the body or not?

A. I didn't find licna karta. It's been reported to me that a licna karta was found in clothing of body 2 BA92.

Q. And what clothing was there on body number 3 in your statement, which is location 2 BA? And in your statement it is 2 BA117, in fact. That's the number you refer to the body by.

A. That reference number was given by the forensic team and for how ⁵⁷⁰¹ they were numbering it. I generally have no clue what clothing was on the body. If they told me that it was removed from clothing from the body that was given the number of 2 BA117, that is information that I recorded.

Q. And now we come to body number 4 in your statement, which is 2 BA117 [sic], you talk about a licna karta found in the name of Simon Sokoli. Where exactly was this ID card found and employment certificate from the Jateks Holding Corporation?

A. I don't know, Your Honour.

Q. When it comes to this body under number 5, you talk about things found relating to this body and then a second ID card, licna karta, with the surname Sokoli and the date of birth being the 31st of January, 1965; is that right? A second one was found?

A. Yes, that's right, Your Honour.

Q. On what grounds do you claim that the clothing and things in which this licna karta was found belonged to the previous individual? How are you able to say that?

A. I don't claim any of this information, Your Honour. This is the information that was passed to me by members of the forensic team.

Q. And in what state were the bodily remains of body 6 in the portion of your statement that refers to site 2 BA?

JUDGE MAY: The witness has already said that he cannot give evidence about this.

MR. MILOSEVIC: [Interpretation]

Q. Very well. Was it a skeleton or a body? You say that a rucksack was found, that there was a rucksack there. Now, was it on a skeleton or ⁵⁷⁰² were there tissues on the body?

A. From my own recollection of seeing the bodies at the site, I can say generally that some were skeletal, some had -- were reasonably well preserved. Some did have flesh on them. Whether that refers to the body that the accused is talking about, I genuinely cannot say, Your Honour. These bodies, again, as an overview, had been -- there was a number of tyres sticking out of the grave itself. There was evidence of burning. There was commingling. There was a lot of fractures and loose limbs. I cannot be any more specific than that.

Q. And what else was found in the rucksack that you recovered?

JUDGE MAY: He didn't recover it.

MR. MILOSEVIC: [Interpretation]

Q. Well, all right, then, the rucksack that was found.

A. I don't know, Your Honour.

Q. And what about number 7? The site was 2 BA221. You state that an ID card was found in the name of Gjon Hasanaj, is that right?

A. I think that refers to his father's name, Seyt.

Q. Were you present when this document was found, this identification document? Were you present at the time?

A. Yes, I would have been, Your Honour.

Q. And you claim that the ID card was found on the body. That's right, isn't it? What part of the body was it found on?

A. Your Honour, I don't claim any of this. This is the information that was given to me by the members of the forensic team who were carrying out the exhumations, carrying out the post-mortems, and carrying out the ⁵⁷⁰³ evidential recording of whatever was found. This is their information that was passed to me. I don't know how to make this any clearer.

JUDGE MAY: There's no need. You've made it perfectly clearly, Mr. Fulton, but we'll continue with this cross-examination until it finishes.

Yes.

MR. MILOSEVIC: [Interpretation]

Q. The forester -- the summary that was distributed to us prior to your testimony, on page 1 of that, it says under the subheading "Mass Graves in Serbia," and it was handed in in English only, it says the following: "It was believed that [in English] bodies transported from Kosovo to Belgrade --" [interpretation] and this next bit is vital -- [in English] "of campaign seeking to erase -- to erase the traces of the crimes committed in Kosovo."

[Interpretation] On what grounds do you state that this was a campaign to erase the traces of the crimes committed in Kosovo?

A. This appears to have been a view that is held by the investigating police officer and can be found in many of his press releases.

Q. And was it established who the perpetrators were?

A. Your Honour, I can't answer that, I'm afraid.

Q. All right. You're a professional policeman. You've been a professional policeman for 20 years now, as you said yourself, and now I'm asking you, in view of your professional experience: Do you believe that somebody could conceive of such nonsense, that during the war when many people are losing their lives -- ⁵⁷⁰⁴

JUDGE MAY: This is not a proper question. First of all, the witness's beliefs are not relevant. Secondly, this is a matter of argument which you can address to us, Mr. Milosevic, but there's no point asking the witness about it. He is not here -- let me continue because it is a general point. Witnesses are not here to argue a case. That is the Prosecutor's job, and you will have the opportunity to rebut it in due course. Witnesses are merely here to give evidence of what they saw or heard or know about, and your cross-examination should be so directed.

THE ACCUSED: [Interpretation] Well, it is so directed, Mr. May, because in this paper that was provided before this witness was brought in, it says that there was some kind of a campaign. If you mean that -- if you're trying to say that the Serbs are that stupid to believe that somebody, during the war, would --

JUDGE MAY: We're not going to listen to these arguments now. What the witness says when giving evidence from the witness chair there is what's evidence. It's not what is in these summaries. These summaries are not evidence. This isn't part of the evidence. In any event, I allowed you to ask a question since it was there, but the witness has dealt with it as best he can.

Now, have you got anything else that you want to ask the witness about his evidence?

MR. MILOSEVIC: [Interpretation]

Q. All right. When you say that it is in the summary, well it says in the summary that it is part of a campaign. Can it also say in the summary that this is perhaps rigged up? Perhaps it's a frame-up, a ⁵⁷⁰⁵ malicious frame-up, not this kind of rubbish?

JUDGE MAY: No. We're not going to go on with this. You can argue the case in due course.

Do the amici have any questions for this witness?

THE ACCUSED: [Interpretation] [No interpretation]

JUDGE MAY: No. You have wasted the time of the Court already. Now, Ms. Romano, is there any re-examination?

MS. ROMANO: Just one question. Re-examined by Ms. Romano:

Q. The witness mentioned the name of the investigative police officer who held that opinion. I would just like to ask the witness if he knows the name of this police officer.

A. It's Captain Dragan Karleusa.

MS. ROMANO: Thank you. And I just would like to know if the statement has been exhibited.

JUDGE MAY: No, it hasn't. It should get a number.

MS. ROMANO: No further questions, Your Honour.

THE REGISTRAR: Prosecution Exhibit 173.

JUDGE MAY: Mr. Fulton, that concludes your evidence. Thank you for coming to the Tribunal to give it. You are free to go.

THE WITNESS: [Interpretation] Thank you, Your Honour.

[The witness withdrew]

MS. ROMANO: Your Honour, the next witness is the investigator Barney Kelly, and Mr. Nice will take the witness. They're coming. We just need one or two minutes. ⁵⁷⁰⁶

MR. NICE: Actually, can the witness stay outside for a minute? I didn't realise he was being summoned.

Your Honour, we come now to witnesses who deal specifically with the village of Racak. I know that the Court has got the witness statement of the next witness, Barney Kelly. I hope it's also had and been able to lay its hands on his full report which was served earlier.

JUDGE MAY: Is that the one attached to the statement?

MR. NICE: I hope so, yes. It's about that thick.

JUDGE MAY: It's called an assessment, just to make sure we have the right one.

MR. NICE: It's called an assessment, absolutely right. And indeed, very conveniently, on the fourth sheet in, it sets out where Racak features in the indictment, paragraphs 98 and thereabouts. An issue I think may arise as to the proper scope of this witness's evidence, and I'm approaching it on the basis that an issue will arise, and of course it's perhaps interesting to observe that whereas I'm often saying in procedural matters that the reason for procedural departure or departure from some procedural norms is because the field of evidence in relation to the case generally is infinite as opposed to finite, in Racak, we actually have an incident where there is probably a finite, although substantial, field of evidence, but it is a field of evidence realistically far too large to be handled in full by this Tribunal in the time available for its consideration. That observation may be made about many, if not all, of the locations to which the Chamber will have to give consideration in this ⁵⁷⁰⁷ part of the trial and, of course, in the Croatian and Bosnian parts as well. So the issue that we face is one of general importance. Racak itself is of significance not just because it features in the indictment in the way it does, but because it was, of course, a turning point around which NATO made its decision to bomb Kosovo. And it's plainly significant to the Defence, in light of the cross-examination and the issues that appear to be being raised about whether the bodies were killed in the way their position would suggest or in some other way. And thus it is that the possibility of the Chamber having access to a summary of the evidence overall is important for this part of this case. It's important for issues of timetable for this part of the case. In our respectful submission, it's important for the integrity of a judgement to be delivered in due course that should be able to point to consideration of more rather than less material; and it's important for the Tribunal generally, maybe, and for other cases where similar issues arise. As I said earlier, this Tribunal, slightly differently constituted, has explored this matter before, and I'm not going to repeat the jurisprudence to which you referred there, but at the end of the evidence that I want to call before concluding my submissions, I'll take you to just a few other bits of jurisprudence that I've been helpfully provided with and can turn you to which may assist. But of course, it's under our Rules that the decision has to be made whether summarising evidence can be available.

What I would now ask is that the witness comes in and gives the evidence of geography, which he would probably have to give in any event, ⁵⁷⁰⁸ identifying the various crime locations - and let me be quite clear that the purpose of this evidence will be or include revelation to the Chamber of the complexity of the Racak incident, which for the reasons I have explained you're going to have to consider - and the difficulties, or it may be impossibilities, of dealing with that evidence on the limited number of witnesses that it's going to be possible for us to call. I'm also going to draw an analogy between his evidence and the material that is available to the Court already in the OSCE report As Seen As Told. We'll have a short look at that with the witness. The witness has some very large plans of which we already have small copies. I think arrangements have been made for a blackboard to be produced but we haven't got one yet. Oh, dear. If Ms. Graham could give me the number of the same maps. 94 tab 73 is the small one, I believe. If the witness can come in with his maps, we'll see if we can position them somewhere, perhaps on a chair, for him to point to if necessary.

JUDGE MAY: There are some photographs which --

MR. NICE: There are lots of photographs in the album. I'll ask him to refer to some of those although, again, to save time, it may be less rather than more in number. And to some degree I will be guided by the degree of detail that the Court perhaps is able to indicate it finds helpful. But it is a complex story or complicated story and familiarity with the geography will probably be, as so often with reconnaissance, time well spent.

THE ACCUSED: [Microphone not activated]

THE INTERPRETER: Microphone, please. ⁵⁷⁰⁹

JUDGE MAY: Microphone.

THE ACCUSED: [Interpretation] Before that, I would like you to clarify something for me, please. Again we have officials from the Office of the Prosecutor appearing here, and they're supposed to be some kind of witnesses. This witness is supposed to testify now. He's an investigator, and in his statement, he gives assessments that are exclusively within the scope of the court.

Secondly, he testifies to the interviews he had with the witnesses and that their statements are consistent in many aspects.

JUDGE MAY: I'm going to interrupt you. I'm going to interrupt you to explain what is going to happen. The witness is going to give evidence about geography and about the photographs which he took. He can do that. He's entitled to do that. He was there and he knows about it. As for the other matters, there will then be legal argument as to whether he can give evidence about them or not. And before we make a decision on that, we will hear you.

So let the witness be sworn.

[The witness entered court]

THE WITNESS: I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

WITNESS: BARNEY KELLY

MR. NICE: I wonder if the usher could very kindly bring in the two large maps that are on the --

THE INTERPRETER: Microphone, please.

MR. NICE: The usher is very kindly bringing in the large maps. ^{5710 BLANK PAGE 5711} Has the smaller version of them been found? Thank you very much. Examined by Mr. Nice:

Q. Full name, please.

A. Barney Kelly.

Q. Occupation and, in a sentence, your background experience?

A. I'm an investigator. I am a member of the Irish police force. I've been in the investigative role for the last 18 years.

Q. You joined the OTP when?

A. I joined the OTP on the 15th of September, 2000.

Q. Were you charged with investigating and preparing a report or reports on Racak?

A. I was.

Q. And is it your that the Chamber has, described as an assessment?

A. That's correct.

Q. As a result of your work, have you been able to mark on the large overhead map which is to your right, and I think we're waiting for an easel at the moment.

A. That's correct.

Q. We'll look at it in two parts.

MR. NICE: Sorry about this delay, Your Honour. No doubt my mistake. I thought I'd made arrangements for an easel to come but it hasn't arrived yet. Can we therefore lay on the ELMO until we have an easel which will be capable of being captured by the cameras --

Q. To save time, Mr. Kelly, would you just turn round and get the larger of those two maps for us. Turn it around so we can see it. ⁵⁷¹²

MR. NICE: I don't know if that's visible to the Court from there. It looks as though Judge Robinson may not be able to see it from there. Let's see if it turns up on the video. I wonder if the cameras could focus on that and see if they can pick it up for us, please. Thank you very much.

Q. Does this show Racak and its surrounding area?

A. It does.

Q. You're going to have your keep your mouth close enough to the microphone. There's a pointer there which is extending. Thank you very much. I hope this works.

The village is the village of Stimlje?

A. No. The village is the village of Racak.

Q. Right, the municipality is the municipality of Stimlje. Just point that out to us.

A. In order to do that I would have to show you the other map.

Q. Sorry. We've got the wrong one first. Can you put the other one on, please. All right. Thank you.

Right. The municipality is Stimlje. Just point that out.

A. This is the entire town and municipality of Stimlje.

Q. I wonder if the cameras could help us with that. If you wouldn't mind just focusing and leaving it on there, thank you. There is, I think, three routes into Racak, one of which is the principal road. Please point that out for us.

A. That is this road here.

Q. It goes down -- ⁵⁷¹³

A. It goes right down and then you must take a right-hand turn at this point and then continue into the village.

Q. Right. We've heard about a hospital or a mental hospital that features in some of the evidence. Just point out where that is, please.

A. Yes. That's at number 4, this area here.

Q. The other two routes into Racak which merge into a single lane, point those out to us, please.

A. That is this road here, which if you follow it up through the sign of Racak, it comes from the -- again the main road to Prizren and the main road to Pristina which goes through the town of Stimlje.

MR. NICE: Put that first map on, please. Thank you very much.

Q. Focus on that, please. Again you have to have the microphone sufficiently close.

MR. NICE: So, Usher, could you move the plan nearer to the witness so that he can be heard while he's pointing to the map. Thank you.

Q. Can you sit down, please, Mr. Kelly. The audio-visual booth would be able to see it.

MR. NICE: If you could focus on that for us. Can the audio-visual give us that, please?

Q. You've shown us the other road in, and that's marked -- they're not marked, but they're more minor roads, I think, is that correct?

A. Yes. The second of these minor roads is this road here, which again is further up heading towards Prizren, and it intersects then with the other road which is nearer the mental institute. And they cross at ⁵⁷¹⁴ one point, but they both lead into the village of Racak and approximately at the mosque.

Q. Now, you understand at this stage of your evidence I'm not asking you for any account that other people gave you. Do you follow that?

A. I do.

Q. I just want geographical locations, although, of course, to some degree they're built on other people's evidence, but nevertheless. What you've marked here, and we'll look at it very swiftly and then turn to the other map, you've marked number 1, which is the power station?

A. That's correct.

Q. Do you see that?

A. That's this area here.

Q. It's probably helpful if the audio-visual stays on the map for this but it's a matter for them.

But number 1, the power station. Thank you. Number 2, the municipal buildings. I'm not too troubled with those.

Number 3, in the same general area, we have the MUP compound. Have you been to the MUP compound?

A. I have, yes.

Q. Is it the only MUP compound in the area or is there more than one such?

A. No. It is the only compound in the area.

Q. Do you know if that deals with the -- with both branches of the MUP or don't you know? ⁵⁷¹⁵

A. I don't.

Q. Four, you've told us is the asylum. Just point that out again.

A. This large area here.

Q. Thank you. Now we're going to move to the left of the map a little bit further to pick up 5, 6, 7, 8, and 9. If the booth could help us with that.

A. This area here is number 5.

Q. Wait till we've got -- all right. Now, 5 is the house of Sadik Osmani; is that correct?

A. Correct.

Q. It's just worth observing that the white line that's been drawn on what is an aerial photograph is something that has been drawn on, it's not a topographical feature, is it?

A. That's right; I drew it.

Q. You may or may not tell us in due course what it is but that's something which has been drawn on. Six is the ravine in which the bodies were found?

A. That's correct.

Q. Seven is something that has been identified as the KLA bunker, and that is something you've seen?

A. That's correct, Judge.

Q. And we have photographs of the bunker in the Racak binder, and we have photographs from the bunker, giving an idea of its view.

A. That's correct, Judge.

Q. The proper term of address is "Your Honour," I think, here, if you ⁵⁷¹⁶ don't mind.

And we've heard some evidence of another line of fortifications. This bunker, did this show the signs of use; cigarette butts, things of that sort?

A. Not at the time I inspected it.

Q. Nevertheless, did it have other appearances of use or not?

A. There is -- there are -- there is testimony to the fact that, yes, it was in use.

Q. Right. Eight is the school, nine the mosque, and -- I'm not sure I need trouble with ten, so I won't. No, I'm not going to trouble with 10 nor the arrows.

Going back, please, to 8 and 9, and then we'll turn to the other map. Can we go back to 8 and 9, please? If the audio-visual booth could take us back to 8 and 9, please. Thank you.

As you come into the village from the south road, the main road, you pass the school and then you come to the mosque, and insofar as there's a centre to the village, does either of these indicate the centre or not or can you express a view?

A. They wouldn't indicate the geographical centre but they would certainly indicate a pivotal centre, a religious centre, i.e., the mosque.

Q. If the audio-visual booth could help us just briefly by moving a little bit up on the map. The area in orange marked as "B" is one hill, and that's the hill of --?

A. That's the hill of Cesta.

Q. Further to the north, in a round orange marker, is the hill of? ⁵⁷¹⁷

A. Pisha.

Q. And marked on the map to the east is the hill of?

A. Geshtenja.

MR. NICE: That map, Your Honours, can be found in the Racak binder at tab 4. It's already been separately exhibited as Exhibit 94, tab 73.

Q. We can now look at the other map, which is of a smaller scale, a more detailed map. And before we do, could you please just tell us this about your investigation before we look at the map -- questions. In the course of your investigation, how many witness statements did you review?

A. Sixty-two, Your Honour.

Q. And your statement, I think, refers to 60, 11 plus 49, but there were two others, were there?

A. That's inclusive of those.

Q. At the initial stage of preparation of this case, how many were -- such statements were considered for presentation to court?

A. Approximately in the region of 30.

Q. Under further consideration by the lawyers then working in the team, to what number was this first further reduced?

A. It was then reduced to 17.

Q. From 17 to?

A. Down to nine.

Q. And then, given the time constraints, from nine to what?

A. To five.

Q. That's five witnesses of the events in the village of Racak? ⁵⁷¹⁸

A. That's correct, Your Honour.

Q. There are, in addition to that, other witnesses, one of whom from whom we've heard, General Drewienkiewicz, Ciaglinski, and people of that sort.

A. That's correct, Your Honour.

Q. And other international observers. Your examination of the material identifies various sites that need to be considered, and you've described them on this map which is separately exhibited as 94, tab 73, I think. Sorry, is this one tab 73? They're both tab 73. You've identified six crime locations, but because some crime locations have more than one discrete scene, there are about 13 different scenes to be considered for an overall view of Racak?

A. That's correct, Your Honour.

MR. NICE: Your Honour, it may or may not be helpful to go through the photographs at this stage, but I'm not intending to do so in any degree slavishly, but I can at least identify where they are, or at least I hope I can.

If the audio-visual booth would be good enough, please, to take us to the map now, focusing on the figure 1 and the surrounding area. My mistake.

Q. Right. If we can focus in on number 1. Thank you. It's worth observing now that the reference markings you've used have changed, because if we look not to 1 but just to the south and east of 1, we see a different symbol for something we've seen before, don't we, Mr. Kelly?

A. We do indeed, yes. ⁵⁷¹⁹

Q. You've now, on this map, converted to using internationally recognised conventional signs?

A. That's correct, Your Honour.

Q. The sign is?

A. This is the international symbol for mosque.

Q. And although it's slightly off the screen at the moment, it doesn't matter, south of that we can see the international recognised sign for a school?

A. That's correct, Your Honour.

Q. Thank you. And to the left, the "P" sign is the internationally recognised sign for what?

A. For headquarters.

Q. And what headquarters did you identify that as?

A. This -- identified this as the Racak KLA headquarters.

Q. Right there in the centre part of town.

A. [Indicates]

Q. One other element of geography simply now before I simply forget it. From a witness, General Drewienkiewicz, we heard evidence of and saw a videotape of fortifications in a different position from those that you described in the bunker, and we can see the bunker on the map, the bunker you described, at the bottom left-hand -- well, slightly to the left of the school sign, if the audio-visual booth would help.

A. This area here.

Q. That's the internationally recognised sign for what?

A. For a bunker. ⁵⁷²⁰

Q. We can see the little squiggly lines above it. Are those the bunker and other trenches that --

A. Yes, these lines, white on black, indicate the labyrinth of trenches that were in that area.

Q. In addition to those, however, General Drewienkiewicz told us of fortifications that he found although he told us they hadn't necessarily been used. Did you see those yourself?

A. No, I did not.

Q. I mean at any stage, did you see them?

A. Not the ones he's talking about.

Q. Where do you understand them to be, just to remind us?

A. If you take a left from crime location 1 and you follow the little track that's there, it will be directing you up towards crime location 5, and approximately in this area here, that is where that general is referring to those.

Q. Right. We've seen those on the video. Now, let's go to crime location 1. Not for you to tell us anything that other people said, but if this is the case where a single body without its head was found, just tell us this: Within the 60 or 62 statements that you've reviewed, was there any witness able to give any -- who might have been able to give any firsthand account of that killing? Just yes or no.

A. Yes.

Q. Is that witness included in the five to which the 30 you had originally chosen has now been reduced?

A. No. ⁵⁷²¹

Q. Let's move to crime location 2, which you have split up into -- and we can see it, 2, 2.3, 2.4, and 2.5. How many deaths are associated with these four subdivided parts of crime location 2?

A. Crime location 2, scene 2, there are three bodies. Crime location 2, scene 3, there is one body. Crime location 2, scene 4, we have one body. And at crime location 2, scene 5, one body.

Q. So that's six bodies altogether. Just -- just yes or no to this. Within the statements you reviewed, were there live eyewitnesses to any part of this incident?

A. Yes.

Q. One or more than one such witness?

A. More than one.

Q. Has it been possible to include any of those in the five witnesses to come before court?

A. No.

Q. So if we now go up on the map to crime location 3, which you have divided up, or has been divided up, into three sublocations --

A. Two.

Q. I beg your pardon, 3.6 and 3.7. Well, the legend speaks of 3.8, but is that correct?

A. That's correct, there are three locations.

Q. Thank you. We can see the three locations. There's 6, there's 7, and there's 8. Does this crime location or is this crime location spoken of by one or more than one of the five witnesses coming to court?

A. Yes. ⁵⁷²²

Q. One or more than one?

A. One.

Q. Is that witness able to deal just with one of these sublocations or with more than one?

A. More than one.

Q. Namely?

A. Agim Mehmeti.

Q. No, namely which locations can the --

A. Beg your pardon. Namely crime location 3, scene 7, and one part of crime location 3, scene 6.

Q. We move on from location 3 to location 4. I should have asked you: How many deaths associated in those three crime locations, 3.6, 3.7, 3.8?

A. Five.

Q. Crime location 4, which you identify as a single scene, scene 9, any deaths associated there?

A. Yes, Your Honour; three deaths.

Q. Is there any live witness coming to court capable of dealing with that?

A. There is, Judge. There's one.

Q. "Your Honour."

A. Your Honour.

Q. Thank you.

A. I beg your pardon.

Q. There's one. And so that area is covered. ⁵⁷²³

A. That's correct.

Q. And that's got through two of the five witnesses?

A. That's correct.

Q. We come to crime location 5, divided into scenes 10, 11, and 12 but certainly we can see -- well, we can see 10. Is this the central part of what happened in Racak?

A. Yes. It is one -- it is one part -- one of the very serious parts of Racak.

Q. This is the ravine?

A. It is, yes.

Q. How many witnesses of the five coming to court are able to deal with that?

A. Two, Your Honour.

Q. How many deaths associated with that area?

A. Twenty-three in crime location 5, scene 10, and one in each of 11 and 12.

Q. So two witnesses for 5.10. Any witnesses amongst our five for 5.11 and 5.12?

A. No.

Q. So we've got through four of our witnesses.

A. That's correct.

Q. The fifth witness relates to what area? It may be you've forgotten one along the way, actually. Take your time.

A. Okay.

Q. We'll come back to that. Let's just go across the map to number ⁵⁷²⁴ 6. And this is scene 13. How many deaths associated here?

A. One.

Q. Any of our five witnesses able to deal with that?

A. No, Your Honour.

Q. Was there included within the 60 witness statements you reviewed a live witness who would be able to deal with that in part in any event?

A. Yes.

Q. Let's just go back to see which one you've missed. Take your time. You've told us two at 5, one at 3, and I think one at 4. Which is the missing one?

A. It's for this area here. We have a witness who is prepared to give an overview.

Q. Thank you. And can also deal with some of the events in the previous years?

A. That's correct.

Q. Now -- and I hope the Chamber will allow this question, although -- from this witness. We'll have a look at the format your report in a minute, not its content, but with five witnesses that you've selected or we've selected, is there, in your judgement, enough material to give a sequence of events overall happening in Racak?

A. No.

Q. Is there, from those five witnesses, enough material to cover comprehensively the activity of the KLA over the period of time?

A. No.

Q. Is there, from the witnesses selected, material to give an account ⁵⁷²⁵ of the involvement of such Serbian forces as may have been involved?

A. In part, yes.

Q. Thank you very much. If we consider very briefly the format of your report described an assessment -- do you have a copy of it there with you?

A. I do, Your Honour.

MR. NICE: If the Chamber could be good enough to turn, as an example, to page 4 of 66 pages.

Q. Where you've been setting out the history as you were able to conclude it may have been of events, you footnoted in each case the witnesses who support the propositions that you're summarising.

A. That's correct, Your Honour.

Q. So that sometimes you can have one, two, three, four, five, six, seven witnesses supporting a proposition, as in footnote 5, sometime it can be a mere single witness, or potential witness, as in footnote number 8?

A. That's correct.

Q. And that pattern has been followed throughout in your report although there are certain passages of narrative where you are summarising events and you don't use footnotes, but by and large you use footnotes and take everyone to the source of your conclusions?

A. That's correct, in most cases.

Q. We see that you've also been able to refer to other materials, telegrams and other documents, matters of that sort?

A. That's correct. ⁵⁷²⁶

MR. NICE: I wonder if the witness could now have before him the -- or a copy of As Seen As Told, Volume I. And while that's coming to you, we know that the OSCE prepared an extensive report which is now our Exhibit 106, and I'd like simply the introduction, which is Roman numerals XV, to be laid on the overhead projector, please, for people to follow.

Q. If we can take Roman numerals XV headed "Introduction" laid on the projector. If you can't find it, I'll find it for you.

A. What page are you talking about?

Q. XV. Right at the beginning, the tenth page in.

A. Yes.

Q. While that's being laid on the overhead projector and being focused on, tell us this: At the time that you prepared your report, had you seen this document?

A. No.

Q. This document speaks of various OSCE documents that were made available to the ICTY. Had you seen those documents at the time you made your report?

A. I had seen some of them, yes.

Q. Some of them. Had they been, any of them, reviewed by any colleague of yours?

A. Yes. They were reviewed by our analyst for the team -- one of the analysts for the team.

Q. Let's just look at the methodology of this document and see how it compares with the methodology you employed. If we pass our eyes down the left-hand column of Roman page numbered XV, we can see that at the foot of ⁵⁷²⁷ the paragraph headed "Methodology" is this quotation: "After the 20th of March, the human rights division was engaged in taking victim and witness statements from refugees. All of this data has been scrutinised by the OSCE." Your report in large part was also based on witness statements but different witness statements?

A. That's correct.

Q. Have you been able to consider some of the OSCE witness statements and compare them with those taken by ICTY investigators?

A. I have.

Q. Is any -- are there any particular characteristics of one or the other? Is one longer and more detailed or shorter and less detailed than the other? How would you describe it?

A. I would describe it that the ICTY statements would be longer and in greater detail.

Q. The next paragraph speaks of extensive references by citation throughout this report to OSCE documents and refugee interview forms. I'm not sure that you've made in your report -- have you any references to OSCE documents?

A. No.

Q. It speaks of the material that has then been made available to the ICTY on a confidential basis. And on the right-hand side, if we look at the right-hand side, thank you very much, in the first new paragraph, this sentence: "Where information --" second sentence: "Where information is acknowledged by the interviewee to be hearsay rather than the statement of a direct victim or witness, this is noted, as are inconsistencies when ⁵⁷²⁸ interviewees differ."

Can you just help us with how that practice compares with or differs from the practice you've employed? Hearsay and inconsistencies.

A. Well, if hearsay -- hearsay and inconsistencies were -- were in the statements, they would be recognised as such and noted as such.

Q. Further down the same column, we come to: "Human rights officers have visited locations previously identified and conducted further interviews." Is that parallel to what you've done?

A. It is.

Q. In reference to the use of analysts, have analysts worked on the material provided?

A. Yes.

Q. Further down this column, please. Or move the book up a little bit. Forensic evidence and continuing --

THE INTERPRETER: Slow down, please.

MR. NICE: Sorry.

Q. Forensic investigation is referred to. Now, that's, I think, all I need turn to. There are two more pages of methodology, and the Court may want to know that the introduction refers to what is page 10 of the report where further methodological descriptions are to be found, and I think all of them really match what this witness was doing in his report. Mr. Kelly, at this stage, one further question which isn't covered in a statement or indeed in your report, but it's necessary that I tell the Court and indeed the accused about it, and I'll do it through you although it's only just come to our knowledge. ⁵⁷²⁹ The KL -- the live witnesses from Racak have started to arrive, haven't they?

A. That's correct.

Q. And are they sophisticated urban people or are they country folk?

A. They're country folk.

Q. Did you detect yesterday something in them which may have been observed in earlier witnesses right at the beginning of the evidence?

A. Yes, I did.

Q. Namely?

A. Their reluctance to speak about the KLA.

Q. Is this something you were advised to consider and investigate so far as you could?

A. Yes, I did.

Q. To track down, if there was a reason for that reluctance, what the reason was?

A. Yes, I did make inquiries from them, and I did source the reason.

Q. And having sourced the reason, did you also check on the -- the emotions, the considerations of the witnesses themselves?

A. I did, yes.

Q. And did you then put them in touch with someone?

A. Yes, Your Honours, I did.

Q. Namely?

A. The village leader in Racak.

Q. Were they able to speak to the village leader this morning?

A. Yes, Your Honours, they did. ⁵⁷³⁰

Q. And so far as you're now able to tell, is there any impediment in their way of giving evidence about the KLA?

A. No. The village leader advised them to speak the truth and to speak about everything in their statement and to answer any question put to them, and he reassured them.

Q. Now, of course, the statements that you took at the time, or whenever you took them, and the statements that were taken by others before your arrival on the scene, because you only took some of the statements, they deal with the KLA, don't they?

A. Yes, Your Honours, they do.

Q. And your report has summarised what you can glean about the history and involvement of the KLA from all those statements independently taken?

A. That's correct, Your Honours.

Q. Thank you.

MR. NICE: That's, I think, all I propose to ask of the witness at this stage. We haven't reviewed any of the photographs. They're in the binder. They are mostly, I think, self-explanatory, although of course, it's sometimes easier to have them reviewed in detail by a witness.

JUDGE MAY: How -- how do you put this evidence in front of us now, knowing what we've said about hearsay in the past, also about the Rule that a witness really cannot comment on the issues which we have to determine?

MR. NICE: I don't know if you want this debate to be in the presence of the witness or if you'd prefer him to withdraw. ^{5731 BLANK PAGE 5732}

JUDGE MAY: I don't think it makes much difference.

MR. NICE: I put the argument in the same way as I put on previous occasions, and it comes to this: In our respectful submission, evidence of the kind contained in this report has three values: First, it has value in itself, and we can see it from the format of this report. If 25 witnesses say the KLA were present, or 25 witnesses say the VJ were present, that must have some weight in itself. There's no rule against hearsay, it's a question of weight.

Second, as I have already identified on earlier occasions in this Tribunal and in this case, the material provides a very valuable potential for the Chamber to check any provisional findings it may have made against an assessed body of material. I think the Chamber will probably recall the way I dealt with this earlier, and it's probably worth repeating. If provisional views were formed as to a sequence of events or to participation of a particular group and the Chamber were to find nothing inconsistent in the report of a witness such as this, or indeed in material such as the OSCE document, then there would be nothing to stand in the way and to cause it concern before confirming any provisionally made view it had. But if it were to find material in a report or in a similar document contrary to its initial preliminary view, then that would be pause for thought. And that might lead to the third and very great value of a report like this which points out precisely where additional material in the form of live evidence that could be called is available. Now, those are the three general propositions that I have always advanced as essential. I beg your pardon, as lying behind, frankly, the ⁵⁷³³ essential use of this sort of material in trials like this. But Racak is a paradigm case, stronger perhaps than others, although any conclusion favourable to the adduction of this type of evidence in this case should, in our respectful submission, apply elsewhere, but it is a paradigm case, because it is impossible, with the best will in the world for a case with this number of locations, with the number of issues that are going to arise quite obviously from the cross-examination already advanced, to be dealt with on five live witnesses. But even before the Chamber imposed the time limitations that it did, even before that, the team, even before my arrival, a fortiori, after it, the team recognised that there was more material necessary to prove the case fully than could possibly be accommodated by conventional -- by the time that would be available.

JUDGE ROBINSON: Mr. Nice, may I ask you this, another approach: Does any of the proposed summarised witnesses give evidence as to crimes in relation to which the five live witnesses will not testify?

MR. NICE: Absolutely. And that's why I got the witness to tell us in relation to those crime scenes that were not covered --

JUDGE ROBINSON: I'm not talking about crime scenes. I'm talking about allegations of crime in the indictment.

MR. NICE: They're all crimes of a kind within in the indictment. They're all part of the same --

JUDGE ROBINSON: What crimes would not be covered by the -- what crimes as charged --

MR. NICE: Other killings.

JUDGE ROBINSON: -- would not be covered by the five live ⁵⁷³⁴ witnesses?

MR. NICE: Crimes of other killings that those five witnesses cannot speak of.

JUDGE ROBINSON: No. I'm not talking about -- I'm talking about a crime in concept. If you have the crime of --

MR. NICE: I see.

JUDGE ROBINSON: -- persecution, of murder, what I'm asking is whether any of the proposed summarising witnesses or summarised witnesses gave evidence as to a kind of crime. I think that's a better way to put it.

MR. NICE: Yes. I understand.

JUDGE ROBINSON: A kind of crime in respect of which the five live witnesses will not testify.

MR. NICE: It's not a question I've specifically addressed. I suspect the answer to it is no. I suspect the generality is going to be covered. But our concern includes that there should be an adequate sampling of evidence both for the case as a whole and for locations on an individual basis, and thus it is that by having the five witnesses, only a small part of the scene will be covered. And back to why it's a paradigm case, it's not just the fact that these crimes are going to be covered, it's the order in which they happened and the inferences that the accused and others may wish to draw from that about who did what and to whom and whether the bodies were moved, and all sorts of things like that. And it's our respectful submission that it simply isn't really possible to do the exercise in relation to a crime location like this on the limited live ⁵⁷³⁵ material that the time restraints will allow us. I didn't ask Mr. Kelly, but I know what his answer would have been. Perhaps you'll take it from me. In order to give a comprehensive account of this, that is a broadly comprehensive account, would it be necessary to call the 60 witnesses? No. You could probably get away with about 30. We know that 30 witnesses simply isn't even worth raising as a possibility for being called in relation to one scene. It wouldn't do. But that doesn't free us from the duty of attempting to lay before this Chamber the best material; and in our respectful submission, it doesn't free the Chamber of a duty to consider the best material. And the best material in this sort of problem case is some live and all other available methodologically established material. Which is, of course, another reason why I got the witness to show the similarities between his methodology and the methodology of the already exhibited As Seen As Told. And it would of course be interesting and valuable, by any process of reasoning, to see whether a conclusion reached on one database, which is what this witness would do, would be broadly similar to or broadly dissimilar from that produced on a substantially different database.

JUDGE MAY: The distinction which is -- which has been made in the past about reports such as the OSCE one is that they were not produced for the purposes of litigation, whereas it may be said that this report is. Now, that may not be a matter which is conclusive, but it is a point. Mr. Nice, it occurs to me that it's -- we're past the time for a break. This clearly is a matter which is going to require some consideration and some argument, too. Now, what is the better way to ⁵⁷³⁶ proceed? I mean, we can do as much as we can with this today, but it does occur to me that we have the general coming in tomorrow.

MR. NICE: Yes.

JUDGE MAY: Is there sense in the course, and it would give us the opportunity to reflect on the position, which we're going to need, and I doubt we'll come to a decision today, is there any sense in trying to interpose another witness now and coming back to this witness later on?

MR. NICE: There may well be, and I know that of the pending witnesses, one certainly is in a state of very considerable anxiety. Nothing to do, I think, with anything except it's the sort of person he is. And I don't know if he's the next one on the list.

[Prosecution counsel confer]

MR. NICE: One has been bis'd. The one I was hoping to call, bis'd. One has been subject to the 92 bis'ing procedure. The man I was particularly concerned about is not, so, yes, we could call a witness immediately afterwards.

The general, I haven't yet heard from Mr. Ryneveld, who is seeing him or speaking to him almost immediately, but the general had made it clear that he was leaving on a 9.00 flight on Thursday morning -- 7.00 flight on Thursday morning back to Canada where he had commitments. Between 10.30 and 1.45, you get just under three hours altogether, and if only part of it has been given live, one would hope that the time would be sufficient for cross-examination by the accused.

[Trial Chamber confers]

JUDGE MAY: Mr. Nice, what we'll do is this: If Mr. Kelly would ⁵⁷³⁷ be good enough to stand down, we will -- we will interpose another witness, deal with the general tomorrow, and return to this issue on Thursday when we'll hear argument, of course, from both sides on it.

MR. NICE: Your Honour, then can I, without trespassing on your time but for the convenience and saving of time, distribute two sheets which contain typed-up versions but -- I have the source but it's not a very good copy -- typed up versions of part of the Argentine Juntas trial and some comments from Dutch criminal proceedings and Spanish law, to assist. And can I also to turn the attention -- I'll put it on the record for ease -- to two passages from Rutaganda and Bagilishema. In Rutaganda, first instance judgement, the paragraph numbers are 363, 369, 372, 380, 381, 436, 439; and Bagilishema, paragraph 781.

JUDGE MAY: Could you hand them in and we'll take them. I think it's important we take the adjournment now.

Mr. Kelly, would you remember, please, you are on oath, so don't speak to anybody about your evidence, if you would, during the adjournment. Would you be back when you're called.

THE WITNESS: [Interpretation] Certainly.

[The witness stands down]

JUDGE MAY: We're going to adjourn now. With apologies to all, quarter of an hour. Can we be back, please, at quarter to.

--- Recess taken at 12.30 p.m.

--- On resuming at 12.48 p.m.

JUDGE MAY: Yes.

THE ACCUSED: [Interpretation] I wish to object. ⁵⁷³⁸

JUDGE MAY: Let the witness be sworn and then we'll hear the objection.

THE WITNESS: [Interpretation] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth.

WITNESS: DRITA EMINI

[Witness answered through interpreter]

JUDGE MAY: Yes, Mr. Milosevic. What is it you want to say?

THE ACCUSED: [Interpretation] I have a few things to say. First of all, when I went out during the break, I was told that the next witness is Avdiu Bilall. When I got back from the break a minute ago, they told me that the next witness is the witness who has just come in.

JUDGE MAY: Yes.

THE ACCUSED: [Interpretation] Secondly, today, there is chaos here, and everybody can see that. William Fulton came -- went away before he came in, and I couldn't even cross-examine him.

JUDGE MAY: You were stopped cross-examining him because you were wasting the time of the Court. You were refusing to accept the instruction of the Court. You were continuing in your argument. Now, we're going to hear this witness now, and you can cross-examine.

Yes. No. We're not hearing any more objection. Time is too short for that at the moment. You can make your objection when you come to cross-examine.

Yes. Let's hear the witness. ⁵⁷³⁹

MR. RYNEVELD: Thank you. Examined by Mr. Ryneveld:

Q. Witness, can you tell the Court your full name, please.

A. Yes.

Q. What is it?

A. Drita Emini.

Q. And, Witness, do I understand correctly that you are 24 years old, you are a Muslim of Kosovo Albanian ethnicity?

A. Yes.

Q. And you were born and have lived all your life in Racak with your father, mother, and brothers and sisters; is that correct?

A. Yes.

Q. And you work at home?

A. Yes.

Q. Now, Witness, do I understand correctly that you have given two statements to the investigators of the ICTY, and a few days ago, you were -- you made an appearance before a presiding officer of the Tribunal, at which time you indicated that those statements were true to the best of your knowledge, information, and belief; is that correct?

A. Yes.

Q. You have had a chance to review those statements? They were read to you in Albanian?

A. Yes.

Q. Now, during the course of those statements, I believe at one point you also identified some colours of uniforms that were shown to you. Is ^{5740 BLANK PAGE 5741} that correct?

A. Yes.

Q. Yes.

MR. RYNEVELD: Your Honours, I'm about to read a brief summary. At the conclusion of that summary of what is contained in her statements, I would ask that the witness be shown one exhibit with respect to some colours of uniforms that she saw.

If I may, then, Your Honours, to provide the Court and the larger audience a brief summary of what is contained in those statements. Drita Emini tells how in the two years prior to the 15th of January, Serb police would enter Racak and take people into the police station and beat them. On one particular occasion, two policemen took her father to the police station in Stimlje where he was beaten. In late 1998, she describes the positioning of Serb forces on the hills surrounding Racak and how, over a three to four-month period, Racak was fired upon on a daily basis from those hills. She describes how Serb forces arrested her neighbour and how, on the same day, Serb paramilitaries fired at herself and the members of her family as they ran to their neighbour's basement for shelter. She tells in her statement of a time when the witness and her family left Racak for three days for safety reasons, and on another occasion, they lived in a cave for six days to avoid the firing that was happening in Racak.

In particular, however, she describes the events on the 15th of January, 1999. That morning, she indicates in her statement, that she was ⁵⁷⁴² awakened at about 6.30 a.m. by the sound of shooting in the village. Through her bedroom window, she saw the police and the army located on some of the hills and up on the ravine. Moments later, her window was shattered by a bullet. The witness and her family fled and joined a group of some other 34 people in her uncle's basement where they sought shelter. She provides various lists. One of the lists she provides is a list of those people who were seeking shelter.

In her statement as well, she describes at about 8.00 on that day, 8.00 a.m. on the 15th of January, 1999, Rame Bega, and Xhami Bega came to the basement and told how three members of their family had been killed trying to escape the police. She indicates that her cousin Ismet Emini arrived wounded at the basement, carrying what he said was a part of the bone of his brother's forehead. He apparently had died in his brother's arms from a bullet wound to the head.

While in the basement, the witness could see the police firing into Racak. She saw that through a gap in the basement wall. She describes how at 12.00 a.m. - I take it that's noon - a policeman ordered them out of the basement. She describes groups of soldiers being present. She recalls seeing neighbours who had not been in the basement standing with their hands raised, and one of her neighbours, Bajram Mehmeti, lying on the ground. She fainted. The Serb forces accused younger men of being UCK, or KLA, members and describes some of the insults that were perpetrated at that time.

She describes the separation of the women and children from the men and that she, along with the other women and children, were taken to a ⁵⁷⁴³ house under guard where, under threat of being killed, they remained all afternoon, listening to the shooting. Later, they saw an OSCE vehicle drive past, and her father told her that the men had been ordered to walk towards Bebushit hill, but they hid.

The following morning, the 16th of January, her statement describes how she went on with other villagers to the ravine at Bebushit hill where she saw many bodies. She then provides a list of 38 names of those bodies she recognised, and she goes on to describe that she stayed with her cousin for three days, returned on the 19th of January and assisted the OSCE and located her missing brother. Those are basically a very, very general and brief description of what the witness saw.

Might the witness be shown, Madam Clerk, the uniform recognition guide. I think it was Exhibit 17, or was it 18?

THE REGISTRAR: Exhibit 18.

MR. RYNEVELD: 18. Thank you.

Q. Witness, in your statement you have described seeing various police, and you were shown some photographs, and you made a selection of what some of the uniforms looked like that you saw. I'm now showing you what has been marked in these proceedings as Exhibit 18. Do you see any photographs there which correspond to the uniforms that you saw in Racak on the 15th of January, 1999? Would you look at the photos, please.

A. Yes.

Q. You're now looking at the television screen, but if you would look at the photographs to your left that are on the ELMO, and could you use ⁵⁷⁴⁴ the pointer and point out if any of the photographs in Exhibit 18 are the ones -- are like the ones you saw the individuals wearing?

A. May I start up? May I continue?

Q. Please. Point on the photo itself and it will show on the screen.

A. [Indicates]

Q. Sorry. I'm not getting the screen. My screen is blank, so ... All right. Could you -- I'm sorry. You've done it, but I couldn't see what you were pointing to. Could you point to the uniforms again, please.

A. [Indicates]

Q. You're pointing now to some individuals in photograph number 6 of Exhibit 18. Is that the uniforms like you saw?

A. Yes.

Q. Are there any other uniforms that you saw that are shown on this exhibit?

A. Sorry. I didn't understand that.

Q. Do you see any other photographs that bear a resemblance of the other uniforms you may have seen in Racak on the 15th of January, 1999?

A. Only those two.

Q. Okay. You are also pointing now to the top right-hand one, number 4 on Exhibit 18; is that correct?

A. Yes.

Q. Thank you, Witness.

MR. RYNEVELD: Those are my questions.

JUDGE MAY: The statement should be exhibited. ^{5745 BLANK PAGE 5746}

MR. RYNEVELD: Thank you, Your Honour.

JUDGE MAY: It will be handed in.

MR. RYNEVELD: I believe there are two statements, Your Honour.

JUDGE MAY: That will be exhibited as well.

MR. RYNEVELD: Thank you.

THE REGISTRAR: Statement will be Prosecution Exhibit 174; the redacted version, 174A.

JUDGE MAY: Yes, Mr. Milosevic, questions for this witness.

THE ACCUSED: [Interpretation] I have got questions for this witness, but before that, I wish to ask you why you made it impossible for me to refute the arguments put forth by the Prosecutor in relation to the previous witness, Kelly Barney, who left before he came in.

JUDGE MAY: You will have the opportunity on Thursday when we return to that argument. I said that we would hear argument on Thursday from everybody on that issue. So there are no -- no decisions have been made about his evidence. That is going to be dealt with on Thursday after we hear this witness and the general tomorrow. We will return then to Mr. Kelly.

Now, let --

THE ACCUSED: [Interpretation] Very well. And as for Maisonneuve tomorrow, how come it is possible to give him only three hours when he is the only one who was in Racak on the 15th of January? We cross-examine and examine people here for three days, people who were not in Racak, whereas his time is restricted. What does this restriction mean? Does that mean that yet again I will not be in a position to have enough time ⁵⁷⁴⁷ to cross-examine him?

JUDGE MAY: We will consider the position when we've heard his evidence. He has so far only made himself available tomorrow. We will have to consider what the position over all should be and whether it will be necessary for him to be recalled. But let's deal with this witness now and deal with him tomorrow.

Cross-examined by Mr. Milosevic:

Q. [Interpretation] A month ago, approximately, a documentary film was played on TV Pristina, and you appear there in a KLA uniform, together with Fadil Idrizi from Kosare; is that correct? Just say yes or no.

A. I can't answer that with a yes or no. I would have to give you more detail.

JUDGE MAY: Yes. Just give us the detail. Tell us, first of all, whether it's right that you were on the television film, and then you can give an explanation.

THE WITNESS: [Interpretation] No. I was never on television and was never a member of the KLA.

MR. MILOSEVIC: [Interpretation]

Q. In your statement, you mentioned that your father and your brothers were supporters of the party led by Hashim Thaci who founded that party after the war; is that correct?

A. My family, we all supported the party of Hashim Thaci, yes. Both parties, actually.

Q. Were your father and brothers members of the KLA?

A. No. ⁵⁷⁴⁸

Q. The KLA and the party of Hashim Thaci, did they have a local organisation in your village?

A. I don't know.

Q. Is it correct that the villagers were forced to join the organisation that was led by Hashim Thaci?

A. Could you repeat that, please? I don't quite understand you.

Q. Is it correct that the villagers from the village were forced to join the organisation that was led by Hashim Thaci?

A. I don't know. No.

Q. In your statement, you mentioned that the villagers helped dig trenches for the KLA for two or three months or, rather, two or three months before the events of the 15th of January, that they worked during the night and that your father and your brothers helped dig trenches. This is the last sentence in your statement on page 6 and the first sentence on page 7. Is that correct?

A. I don't know what my father did. It was up in the mountains. I don't know, because I didn't see what he was doing up there.

Q. I am linking this to your statement, to what it says in your statement. What your statement says is correct, isn't it?

A. I don't know what he was doing.

Q. And on whose instructions did the villagers start digging trenches?

A. I don't know.

Q. And when did they start digging trenches? Can you give us the date more precisely when they started digging trenches? ⁵⁷⁴⁹

A. I don't know.

Q. Does that mean that you do not know about what you spoke of in your statement?

JUDGE MAY: Can you help us with this: Your statement says: "My father and brother helped dig the trenches." Now, can you explain why that is in your statement if it's not true? Or it may be that it is true. Can you assist us?

THE WITNESS: [Interpretation] Could you repeat that, please? Yes.

JUDGE MAY: Yes. Your statement says, page 7 of the English: "My father and brother helped dig trenches."

THE WITNESS: [Interpretation] I don't know. I know that they went up into the hills. Maybe they did dig trenches up there. But I didn't see what they was doing there. Maybe they did.

MR. MILOSEVIC: [Interpretation]

Q. Oh, so I can continue then. And how many villagers worked on trench digging?

A. I didn't see them, so I don't know.

Q. Well, I'm talking about the trenches in Racak. I'm not talking about trenches in the mountains. It's the trenches near Racak that are now being contested.

A. I didn't see them, and I don't know where they are, where they were.

Q. Were you in Racak at the time?

A. No.

Q. When were you not in Racak? Could you please give us the date? ^{5750 BLANK PAGE 5751}

A. Could you please repeat the question? It was when the war started in Kosova. We were refugees. There was no place safe in the village. There was nowhere we could find safety.

Q. And from when until when were you not in Racak? You said a minute ago that you were not in Racak. From which date until which date were you not in Racak?

A. I don't remember the dates. I can't tell you because I don't remember. It was during the war in Racak. Everyone set off as refugees, and then we returned later in 1998. And we were refugees all the time. We were outside the village all the time.

Q. All right. But in your statement, you mentioned that the villagers helped dig trenches for the KLA two or three months prior to the events of the 15th of January. That's what it says in your statement. Were you in Racak two or three months prior to the 15th of January or not?

A. I don't remember when they dug the ditches, the trenches.

Q. Do you remember when they were digging machine-gun nests?

A. I don't know.

Q. You gave this statement on the 22nd of May, 1999, and then you did remember. Have you forgotten that since the 22nd of May that year or do you not remember at all? On the basis of what did you give your statement?

A. I said I don't know because I wasn't there. I didn't do that work. I don't see why I have to repeat myself here.

Q. You don't have to repeat anything. I am asking you about the substance of your statement. You say in your statement that on the hill ⁵⁷⁵² of Bebushit which you call Kodra e Bebushit, that is to say the place where the alleged massacre took place, there were some KLA soldiers up there. Now, is that correct or is that not correct?

A. Which date are you talking about?

Q. I'm talking about the event. I'm talking about the event where the alleged massacre took place. And you said that there were KLA soldiers there. That's what you said in your statement. You know what you stated. Now, I ask you whether that is correct or not.

JUDGE KWON: If the witness can be shown the statement in the Albanian language.

THE ACCUSED: [Interpretation] All right. Until she's shown it, may I move on to my next question?

MR. MILOSEVIC: [Interpretation]

Q. On page 7 of the statement, you say that two months prior to the 15th of January the KLA was in the village of Racak for a month without interruption, that they had been there for a month without interruption. Is that right or not?

A. Before the massacre on the 15th of January, I don't remember exactly, but I did see soldiers beforehand, four or five on the 4th or 5th. I don't remember how long they stayed. I did see them. They looked over the terrain. They weren't there all the time. They went off to their secret location then.

Q. Yes. But in your statement, you say they were there for a month without interruption, all the time. Now you're saying something different. So which of the two is correct? Were they there for a month ⁵⁷⁵³ without interruption or not?

A. No, they weren't there for a month, were not there for a month.

Q. So what it says in your statement is not correct; is that right?

A. It's true that they weren't there for very long.

Q. All right. Now, on that same page of your statement, you go on to say that one night, Serb soldiers and policemen entered Racak on foot and that the KLA prevented them from doing that and that two members of the KLA were wounded on the occasion. Is that correct or not?

A. That's what I heard from the villagers.

Q. And how many members of the KLA were in the village at the time when those two people were wounded?

A. I don't know.

Q. And what you say in your statement you heard only from the villagers themselves; is that right?

A. From the villagers I heard that two soldiers had been wounded, but I didn't see them myself. I just heard about it.

Q. And the people that you said you saw for a short space of time in the village, where were they?

A. I don't remember where they were at the time.

Q. And can you tell us more specifically, or at least roughly, the date when this took place?

A. I don't know.

Q. Were there any OSCE observers in the village at the time?

A. Yes.

Q. How many villagers from Racak had weapons at that time? ⁵⁷⁵⁴

A. I didn't go round from house to house to have a look at how many weapons they have. I don't know. I wasn't interested.

Q. And how many did you see who were armed outside the houses?

A. I didn't see -- I never saw anyone with an arm in his hand, with a weapon.

Q. So the ones you say you saw did not have weapons either. You saw them without weapons; right?

A. I didn't see anyone with weapons.

Q. With the KLA members, was there a doctor there by the name of Vezir Bajrami from the village of Petrovo? And you mention him on page 7 of your statement, in the last line.

A. Vezir Bajrami is not from Petrova. He's a doctor.

Q. And was he with members of the KLA in the village at the time?

A. I don't know.

Q. Apart from this clash between the police and KLA in which you said that two people were wounded, how many other clashes of that type took place in 1998? Do you happen to remember?

A. I don't know.

Q. And as you say that when the war in Drenica broke out, do you know what was actually going on in Drenica?

A. How could I possibly know what was going on there? I was just concerned about my own neighbourhood. That's all I knew.

Q. All right. Now in view of the fact that you make mention of Drenica in your statement twice on page 4 and the conflicts in Drenica, who did you get that information from as to what was going on in Drenica? ⁵⁷⁵⁵

A. Could you please repeat the question? Because I don't really understand what you're getting at.

Q. Well, I was just following on from your last answer when you said you don't know anything about Drenica, and you mentioned Drenica in your statement. Now, as you mentioned Drenica and the clashes in Drenica twice in your statement, and it is on page 4 of your statement, my question to you is: Who did you get this information about what was going on in Drenica?

JUDGE KWON: For the fairness of the witness, I would quote your statement in the written statements. You said: "When the war broke out in Drenica, the Serbian army and police were present on Pisha, Geshtenja, and Cesta hills. There was a big presence of them there with a lot more tanks, APCs and jeeps." You said this. How did you know that?

THE WITNESS: [Interpretation] I didn't see -- in Cesta I saw the Serb police and military. There were tanks there and other equipment, and in Pisha too, and in Geshtenja.

JUDGE KWON: Is that what you heard from people?

THE WITNESS: [Interpretation] No, no. I saw them in Geshtenja and in Cesta. Not in Pisha itself, though.

JUDGE KWON: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. And the people that gave you this information about Drenica, were they the same ones who clashed with the police in Drenica?

A. The people didn't give me the information. I saw it on TV myself. And then I knew that the war had broken out in Kosova. ⁵⁷⁵⁶

Q. Ah, I see. So you saw that on television, what you're claiming. Is that it?

A. I don't know exactly what you're asking me again.

Q. You just said you saw it on television. So you didn't see it personally. You saw it on television; right?

A. The Serb police and army, I saw them with my own eyes at the Cesta Hill, on the Cesta Hill, and on the Geshtenja Hill.

Q. But as you're talking about Drenica, does that mean that you knew what was going on in the municipality of Stimlje, which is your own municipality?

A. I don't know what happened. I can only tell you about my own village -- my neighbourhood, the part of my village where I live.

Q. All right. In your neighbourhood where your village is located near Racak, there's Mala Pojtsa [phoen], Petrovo, and Belince, and to the south and west of it. Do you know how many KLA members there were there and that from those areas they launched constant attacks on the police? What do you know about that?

A. I don't know, and I didn't see that there was shooting, that the army had shot there. I didn't see anything.

Q. Do you know a compatriot of yours, that is to say, an Albanian, by the name of Xhemajl Bytyqi from Racak, who was a member of the local security force there, that is to say, the local police force? Do you know him?

A. Could you give me the name again? I didn't understand the name.

Q. Bytyqi Xhemajl from Racak. ⁵⁷⁵⁷

A. No, I don't know him. I don't know such a name. I don't know him, no.

Q. Did you hear, and we're talking about this particular individual on the 18th of November, 1998, that the KLA set fire to his house? Did you hear about that, about that event? Because when a house is set fire to in a village, the villagers usually know about it. Do you know about it?

A. In the village of Racak, there was no KLA soldier whoever burnt a building with the exception of the 24th of August, 1998, when the Serb police and army gave orders and started burning the village. I'm not exactly sure how many village -- five or six houses, on the 24th of August, 1998, it was. The Serb police and army burnt our village. That was during the first offensive.

Q. And do you know the Albanians named Xheladini Fehmi from Racak and Fatime Abazov, also from Racak? Do you know those people?

A. No, I don't know them.

Q. Do you know that Fatime Abazov in December, at the end of December 1998, reported that four KLA members stormed their house and took Xheladini off only because he worked as a cleaning person in the police station? Do you know about this incident, that somebody who worked in the police station as a cleaner was taken off by the KLA?

A. I don't know.

Q. And do you know another Albanian by the name of Shefsedin Ramo working in Elektro Kosmet? Do you know him? He's also from Racak.

A. I don't know him, no. I don't know him. ⁵⁷⁵⁸

Q. What about Ramadani Halil, also from Racak?

A. Could you ask the question again, please?

Q. Do you know Halil Ramadani?

A. No, I don't know him.

Q. How many inhabitants does Racak have? Tell me, please.

A. It could be about 300 houses, maybe more. I'm not exactly sure.

Q. And you don't know a single one of the names I've mentioned?

A. No, I don't know any of them.

Q. In your statement, on page 4, you say that you and your family took refuge in the cellar of a neighbour of yours that was called Hajrizi Shukri; is that right?

A. Yes.

Q. And in that same statement, on that same page, you said that Hajrizi was arrested during the war because he had a cellar and he was held in prison for several months; is that correct?

A. That was during the first offensive in 1998, on the 24th of August. It was a Sunday when the Serb police and army entered our village, and I -- my family and I, we left --

Q. All right. So what you said is correct. Then you go on to say on page 5 --

A. I can tell you, if you want.

JUDGE MAY: One at a time.

MR. MILOSEVIC: [Interpretation]

Q. You state on page 5 that he was arrested by the paramilitary and that you personally know that it was the paramilitary that did this. Is ⁵⁷⁵⁹ that right or not?

A. It was the Serb police, yeah. Your paramilitaries.

Q. All right. And do you make a difference between the uniforms worn by the police, the army, the KLA, the paramilitaries? You're able to distinguish between all those uniforms, are you?

A. I know very well police and army -- Serb police and army uniforms, yes.

Q. Well, what kind of uniform did these paramilitaries wear whom you say arrested this person?

A. The Serb paramilitaries were wearing camouflage clothing.

Q. Well, how, then, do you say it was the paramilitaries and not the police or the army, if they had the same uniforms?

A. The Serb paramilitaries had a scarf, a bandanna, and on their arms they had a distinctive sign, emblem. And their faces were blackened, were coloured.

Q. So these people who arrested this man were wearing bandannas or scarves on their heads; right?

A. Could you please repeat the question?

Q. Does that mean that the people who arrested him had bandannas or scarves on their heads and that you were able to conclude on that basis that they were paramilitaries? They didn't wear caps of any kind, they had these bandannas?

A. Everyone in the village called them paramilitaries so that's what I called them. They -- they -- you could see from their faces.

Q. All right. Now, tell me this: Why would anybody be arrested for ⁵⁷⁶⁰ having a basement in his house? I assume that every house in Racak has a basement. Does it or doesn't it?

A. I don't know why the arrest was made. I know -- the whole family was together, the men, the women, everyone together. We went down to the basement, and they came, and they said, "Who owns this house?" They asked. The owner answered, and he said, "My name is Shukri Hajrizi, and they told him, they asked him, "Where is your brother Naser Hajrizi?" Naser Hajrizi was with the police before the war broke out in Kosova. He worked in Ferizaj and they fired him, and he was forced to go to Switzerland, and I don't know anything else, what happened.

Q. Yes, but I wasn't clear on this point. That's why I'm asking you. And on page 4, you say that Hajrizi was arrested during the war because he had a basement, and I'm asking you why would anybody be arrested simply for having a basement in his house? Why a basement? How can that be a reason for anybody's arrest, having a basement?

A. He had built the basement because of -- fortified the basement because of the shelling from the Serb forces, and we had to take refuge in there. That was his fortified basement. You know why he was arrested.

Q. Ah. So that was a sort of fortification and not just a basement.

A. It was a basement but was -- it was -- it was remodelled because of the shelling. It was fortified.

Q. All right. Now, did you show to Investigator Kelly which basement it was and what kind of basement it was?

A. Yes. Kelly took photographs of the place where we had been staying. ⁵⁷⁶¹

Q. So you showed him that fortified spot; right?

A. Yes.

Q. Which other details did you show Investigator Kelly apart from this fortified place? Which other details did you point out to him and show him?

A. I don't know what the question is about.

Q. Well, you said that you showed Investigator Kelly this fortified place, and I'm asking you now: What else did you show him when he talked to you? What else did you show Investigator Kelly?

A. I showed him this basement, how we entered with the whole family. There were other families there too because the Serb police and army were shelling with all sorts of arms from Cesta and Geshtenja, they had been shelling. It was on a Sunday, on the 24th of August. That's true.

Q. All right. Then you say that on the 15th of January, in the morning, at 7.00 a.m., you went to your uncle's place, Emini, Hysni Emini is his name, and that you spent the time there in his basement with another 45 people; is that right?

A. That was on the 15th of January, the day when the Serb police and army committed the massacre.

Q. And you were in that basement with another 45 people, in the basement of your uncle's house; right?

A. That's true, yes.

Q. And how big is the house?

A. It's a three-storey house.

Q. Three-storey, you say. And is there a fence of any kind round the ⁵⁷⁶² house?

A. We were in the basement, in the garage where the cars were. That's where we were staying, in the garage, the basement garage.

Q. I'm asking you whether there was a fence of any kind round the house.

A. A normal house has something around it, yeah.

Q. Well, was it a concrete partition or made of wood? What kind of thing was it?

A. When we were in the basement, we were lying on the floor. There was wood there in the basement, unvarnished wood. I don't know what you're asking me about.

Q. I'm asking you about what was round the house. I'm asking you about how the house was encircled. You said that there was a fence or wall. Was it made of concrete or of wood? What was the house surrounded with?

A. No. There was no fence.

Q. So the house had no fence or wall round it; right? Has it got a fence or wall or not?

A. Where we were in the basement there, where there was wood -- there was unvarnished wood all around, wood. There was lumber. And we were lying on the floor when they were -- the Serb police and army were shooting at us.

Q. All right. Now this hole in the wall, in the basement through which you were able to see, how far above ground was it? You say that you were able to look through it and see through it. How far above ground was ⁵⁷⁶³ this hole? And you talk about this on page 11, on the first line of your statement. You say you were walking from a hole in the basement, from an aperture in the basement.

A. Yes.

Q. Now you say you were lying on the floor. Were you lying down on the floor or were you watching through this hole?

A. We were lying on the cement, on the cement floor.

Q. All right. A moment ago you said that the floor was a wooden floor, but never mind. How, then, could you see the hill - what was its name? - Bebushit. How could you see that hill if you were lying down on the concrete floor?

A. We could see the hills across from us from where we were staying in that basement. We could see the hills across from us.

JUDGE MAY: The time has come when we must adjourn. Mr. Milosevic, you've had 40 minutes for your cross-examination to date. Twenty minutes outstanding. I'm now going to see when it's convenient for that to take place.

Have we any further news about the general tomorrow?

MR. RYNEVELD: Yes, Your Honour. General Maisonneuve is here. He is available all day tomorrow, has commitments, and would obviously appreciate being completed tomorrow morning, if possible, but if necessary, can make arrangements to return at a later date, much like General Drewienkiewicz did, for cross-examination, if absolutely necessary. But he cannot stay until Thursday. He has a 7.00 flight in the morning on Thursday, back for some urgent matters that he must attend ⁵⁷⁶⁴ to.

JUDGE MAY: Very well. Then if it's not inconvenient, it may be better for this witness to come back on Thursday to conclude her evidence so we can get as much of the general done as possible tomorrow.

MR. RYNEVELD: That is very sensible, especially in light of the fact that we do have a reduced time period, starting at 10.30 tomorrow morning.

JUDGE MAY: Ms. Emini, we have to adjourn now. There's 20 minutes or so left for your examination. Would you be kind enough to come back on Thursday morning, just to conclude that, at 9.00. Meanwhile, would you remember not to speak to anybody about your evidence until it's over, and that does include the members of the Prosecution team. We will adjourn now.

THE WITNESS: [Interpretation] Yes.

JUDGE MAY: Half past ten tomorrow morning.

[The witness stands down]

--- Whereupon the hearing adjourned at 1.46 p.m., to be reconvened on Wednesday, the 29th day of May, 2002, at 10.30 a.m.