⁵⁸⁵⁵

Thursday, 30 May 2002

[Open session]

[The accused entered court]

[The witness entered court]

--- Upon commencing at 9.00 a.m.

JUDGE MAY: Yes, Mr. Ryneveld.

MR. RYNEVELD: Yes, Your Honours. As you can see, General Maisonneuve has rearranged his schedule in order to convenience the Court, and will be available for continuation, but -- that was, of course, on the basis of Your Honours' indication of an hour and a half remaining for cross-examination. He does have a tight schedule. Regardless, we've got the flights arranged for an early afternoon departure.

JUDGE MAY: Very well. Yes, Mr. Milosevic.

WITNESS: JOSEPH OMER MICHEL MAISONNEUVE [Resumed] Cross-examined by Mr. Milosevic: [Continued]

Q. [Interpretation] What is your information and knowledge as a functionary of the mission with respect to the situation in Racak prior to the incident of the 15th of January that you're talking about?

A. We were told -- my verifiers actually had knowledge that the village of Racak was very lightly held, and the word we received was that it was a few scouts here and there, individual personnel, and it was not a -- a large concentration of KLA.

Q. According to the data that is contained in the material provided by the opposite side, the numerical state of armed persons, as they say soldiers, in the area was between -- well, he speaks about two brigades, ⁵⁸⁵⁶ one thousand men in the whole zone, perhaps 1.400 men. Did you have those figures and that information?

A. No, I did not.

Q. And do you know that those figures and that data on the military situation were provided to the OSCE and that Walker had a meeting on the 16th at 1300 hours in Petrovo with the commanders of the KLA?

A. As I mentioned yesterday, I was aware that Mr. Walker had had a meeting but I was not aware of the -- that he had been provided with numbers. And also, of course, this is the 16th, so it would not have been helpful to us at any case.

Q. And did you have occasion, when visiting Racak, to become acquainted with all those facilities, the bunkers, the trenches, the machine-gun nests around Racak, above Racak, and so on and so forth which were built already at the beginning of December 1998, according to the information that we have?

A. I visited Racak on the day -- on the 16th, actually, and not before that. So I had not been -- been in the area of Racak before then or in the village itself. On the day, on the 16th, when I did go up to the area called the gully, I did see some preparations and some earth works around -- above the gully. I did not go into -- into those fortifications, or I didn't get a chance to actually see the fortifications in detail.

Q. That means that on the 15th, a day earlier when you were there, you saw nothing of that. It was only on the 16th that you saw some of what was actually going on in Racak. ⁵⁸⁵⁷ Now, do you know that the command of the unit in Racak was Afet Bilalli? Did you happen to meet him?

A. No, I did not.

Q. And did you know anything about the fact that up until the beginning of January 1999, bunkers were dug up and trenches in Bela and that similar defence positions began to be dug in in the area? They were dug by civilians and members of the KLA. Did you know anything about these activities?

A. No, I did not.

Q. And later on, or perhaps at that time but at least later on, did you become acquainted with what they put out as information later on, that they distributed automatic weapons to the soldiers as well as mortars, 7.9 millimetres and 12.7 millimetres machine-guns, recoilless guns, two mortars of 60 millimetres? All this is to be found in the data. Now, are you aware of all this?

A. I became -- I was told by the Serb police during my meeting on the 17th -- correction, on the 16th, and they produced a 12.7 millimetre machine-gun as well as a mortar or a grenade launcher at that point, 40 millimetre grenade launcher, I believe it was, but that is the only awareness I had of any weapons that may have come from that area.

Q. I'm not talking about the facts and figures from our police, but I spoke of information that they put forward, that the other side presented, in fact, in the documents as to what had been distributed. So you say you know nothing about that nor did you know anything about that at that time nor did you learn of it later. ⁵⁸⁵⁸ Now, do you know where the village of Rance is located?

A. No, I don't.

Q. It's right near Racak.

A. What did you call it again, Rance?

Q. Rance. All right, and do you know where the headquarters of that so-called 161st Brigade of theirs was located?

A. No, I don't. This was outside of my area so I did not ever have any meetings or any reason to go into Racak before that time.

Q. All right. But did you learn that it was from that place where the headquarters was of the 161st Brigade, near Racak, was where a counter-attack was launched and in the afternoon they took control of Racak once again?

A. No, I did not learn of that.

Q. All right. But when you managed to collect together all these elements that your verifiers had or, rather, the verifiers of this Regional Centre which does not belong -- did not belong to you, wasn't under you but as you said, for those three days, you were in charge of them, did you receive this information on the trenches, the bunkers, the number of soldiers, the presence -- their presence in Racak, et cetera? When did you actually receive that information and those figures?

A. I didn't receive it, in fact. It must have gone up the other -- the other Regional Centre, because once the actual operation was over on the 17th, once the presiding judge went in, I then left and went back to my Regional Centre. I had my own area to command and to look after so I didn't receive any other information after that point. ⁵⁸⁵⁹

Q. Now, as you're a soldier and a professional and expert, and when you bear in mind trenches, bunkers, machine-gun nests, et cetera, and the information that they speak about - not our police but theirs - they mention a figure of 1.400 soldiers in that area, do you consider that they were figures that were negligible, negligible forces that did not in fact jeopardise either the territory or the population or the police force or the army or anybody else? Were they that negligible in the area?

A. Well, if there were 1.400 soldiers there, that is definitely not a negligible number.

Q. Now, if you bear in mind what we were discussing yesterday, that in the bunkers they had soldiers who opened fire as soon as the police force appeared, first as a warning, as a caution to the soldiers in Racak, as they say, and then at the police itself, what in that case, in your mind, in your opinion, would be a proportional application and use of force if we're targeting bunkers, machine-gun nests, trenches and the like?

A. These are, I guess, questions of speculation, and I -- you know, I'm happy to answer them, Your Honour. I don't know what --

JUDGE MAY: Perhaps you could do the best you think you can.

THE WITNESS: So the question is -- what is the question exactly? If somebody's firing at the police and they want to go in and investigate what kind of response they require? I mean, I -- what's your question exactly?

MR. MILOSEVIC: [Interpretation]

Q. Well, without a doubt when the police entered Racak - this could ⁵⁸⁶⁰ be seen on the tapes too - there was no attack. It entered Racak when fire was opened on it.

A. Okay.

Q. So you have bunkers, you have machine-gun nests, you have trenches. According to their statement only in the Racak unit you have 1.400 soldiers. In three villages, there is fighting going on around about. You knew about that, didn't you? In Petrovo, Malopoljac and Racak in fact, in those three villages --

JUDGE MAY: Pause there. This is another additional point that is being made to the general.

Did you know that there was fighting going on in various villages roundabout?

THE WITNESS: [Interpretation] No, I did not, Your Honour.

JUDGE MAY: If there was, of course. It's only the accused who's suggesting it.

MR. MILOSEVIC: [Interpretation]

Q. And you knew nothing of the fighting going on in the three villages, right?

A. No, I did not.

Q. In all that area, in all that region, in fact.

A. No.

Q. All right. Now, from the information that you knew about, were you able to assess that as there was shooting being done against the police, what would be a proportional use of force then, according to you?

JUDGE MAY: Can you answer that or not? ⁵⁸⁶¹

THE WITNESS: Well, if somebody is shooting at you, I guess your proportional response is to fire back in proportion until the shooting stops and then continue your advance and enter the village or secure the area, I guess. If you're being fired on, I guess you fire back. That's for sure. That's what a military person would do, yeah.

MR. MILOSEVIC: [Interpretation]

Q. General, you spoke about the fire of artillery and tanks, if I understood you correctly yesterday; is that right?

A. That's correct, yes.

Q. And you also spoke about the people who were killed whom you saw. Now, did a single person -- was a single of those persons who were killed killed from the fire of artillery and tanks?

A. No. I would not -- from my observation, those that I saw, I don't think any of them were killed by tanks or -- or artillery, no.

Q. So all of them died by light infantry weapons; is that right? And anyway, those are the findings of the forensics -- forensic professionals who examined this. There were no other causes of death, in fact, were there?

A. From my observation, no.

Q. You wish to say something?

A. I was going to say from my observation, no. You're right.

Q. Very well. And do you know that 13 individuals out of the 40 who are listed as killed in Racak - and you spoke about this figure yesterday, and those are the figures that have been recorded in all the forensic reports - don't have their graves at the cemetery in Racak. Thirteen of ⁵⁸⁶² them, 13 out of the 40.

A. I'm not aware of that, no.

Q. Is it incontestable, therefore, that at the time, in the afternoon, from 1600 hours onwards, let's say, on the 15th of January, 1999, that Racak was in the hands of the KLA?

A. It's certainly -- there -- we do not remember to see -- seeing any presence. About 1600 or shortly thereafter, all the Serb authorities did move back and left the village, and it's at that point that may verifiers were in the village and actually brought out some of the wounded. I believe at that time they also had contact with some - some, I would say a few - like two or three KLA fighters in the village.

Q. All right. Now, is it clear, therefore, that in Racak there was fighting going on on that particular day from the facts that your verifiers observed, from what your verifiers were able to observe and from their reports on the gunshots and shooting that was coming from the different sides? Is it clear that there was fighting going on in Racak on that day and that after 1600 hours, let's say 1700 hours, Racak once again fell into the hands of the KLA?

A. As far as fighting, I don't know how much fighting was going on. I see it more as there was very little fire being returned from Racak towards the security forces. My verifiers did not see any large weapons being used or fired at the Serb forces. And this is why, when I met with the Serb brigade commander, I was wondering why his tanks -- and to me again as a professional tank officer, I would never allow my troops to fire into civilian houses when there's no fire being returned, the whole ⁵⁸⁶³ idea being proportionality. If you're not being fired at with large calibre weapons, then you don't return fire with large calibre weapons and certainly not against houses where you realise or you know that there are civilians occupying them.

So -- so my verifiers did not report any kind of heavy fighting. It was -- there was only, from what they said, small-arms fire being returned very sporadically from the village at that time towards the Serb forces.

Q. Yes. But we're clear on the fact that this firing from the tanks is something that can be challenged, because nobody was killed from artillery fire. We observed that a moment ago. And you yourself spoke about this yesterday and said that, according to your knowledge, there was some artillery fire just around Racak, the outskirts, and not targeting the houses themselves.

Now, can we assume --

JUDGE MAY: Let the witness deal with that.

THE WITNESS: Well, again, this question of what the outskirts are and what it means and so on, what I can tell you is my verifiers reported to me personally that they had observed personally tanks firing into a house that was occupied - because they could see the smoke coming out of the chimney - and that they subsequently went into -- up to that house and of course no one was killed because they were all in the basement, hiding, and they got them out of the house at that point. So these are the reports that I received personally from my verifiers.

MR. MILOSEVIC: [Interpretation] ⁵⁸⁶⁴

Q. And you received that for that one house that they fired at?

A. That one house.

Q. And who could have shot with a tank at that house when the army did not take part in that operation?

A. Well, the army did take part in the operation because the tanks were up on the hill, and my verifiers were with the tanks up there, trying to get them to stop.

Q. The commander of the police forces told you, and you said this yesterday, that it was a police operation. Is that right?

A. That's what he told me.

Q. And on the other hand, or, rather, from the opposite side we heard, as Mr. Ryneveld explained, that a member of the army accused the police, which is something you did not say. I didn't hear you say that. I didn't hear you say that an army member accused the police. That was his conclusion.

Now, did somebody from the army who talked to you accuse the police for what had happened there?

A. The army --

Q. Or blame the police?

A. The army did say that the police had been involved in Racak. It was obvious to them. They could see them as they were up on the hill supporting, to my mind supporting the police. And in one of the -- at one of the meetings on the 16th with Petrovic, the liaison officer from 243 Brigade, the lieutenant colonel, he did say that the MUP had done the operation with support of the VJ with at least one tank and some Praga ⁵⁸⁶⁵ vehicles.

Q. That is, how shall I put it, one clear explanation. The police commander told you that it was a police operation. The liaison officer from the army told you that it was a police operation or possibly with some support from the army. So where -- or, rather, from your statement and from what you observed, where can we deduce the conclusion deduced by Mr. Ryneveld that the officer blamed the police for what had happened? He just informed you about the fact that it was a police operation, and the police in fact informed them -- informed you of that themselves.

A. I believe it's contained in one of the statements where I mention to the police that the VJ were saying that the police actually carried out the operation. I don't know if it was put in the way of a blame.

JUDGE MAY: Yes. It's our Exhibit 179. It is the minutes of the meeting. Let the witness have it. He has it.

THE WITNESS: I've got it, Your Honour.

JUDGE MAY: It's the minutes of a meeting of the 16th of January with the police. And on page 2, towards the bottom, the witness says to the colonel of the MUP, "You were in charge of 100 policemen." "If it is of your concern, yes," was the answer. And the other officer, the other verifier, "But we just left the VJ, they put all the blame on the you. Were they with you or not?" And the reply was, "We were not with the VJ."

THE WITNESS: Right. I see that, Your Honour. In fact, that was Gil Gilbertson who was the deputy head of Regional Centre 5 who was with me at that meeting.

MR. MILOSEVIC: [Interpretation] ⁵⁸⁶⁶

Q. So it was no army officer that blamed the police. Is that correct or not?

A. I don't know where Gil got this information that the VJ had blamed the police. I don't, to my mind, remember the VJ saying, you know, "We had nothing to do with it. It was strictly a police operation." The VJ could not deny that they were there and that they were firing, because my verifiers, as I say, were with them and had seen them fire into houses and had gone to actually let the people out of the basement.

Q. Now, I'd like you to understand the point of my question, because the point is not in the fact whether it was a police operation, because that is what the commander of the police force said himself, so that is not being challenged, but what is being challenged, how shall I put that, is this ugly detail that is trying to be imposed by the other side, the opposite side, that the soldier who talked to you accused and blamed the police. Why should anybody accuse or blame the police for a legitimate action on the part of the police force? This presents an ugly picture had an officer done that. And I claim that it wasn't any officer who blamed the police, and that's the point I wanted to clarify with you. So you have no actual information about that. Is that correct or not?

A. That's correct.

Q. I'm happy to have clarified that point. Now, in view of the fact that Walker had a meeting on the 16th with the commander of the area and that you knew about the fighting in Racak and about the people killed, as they say, the KLA soldiers killed in Racak, because he goes on to enumerate all their names, their first and ⁵⁸⁶⁷ last names, et cetera, and they knew -- you knew about the positions and all that kind of thing, what do you think? Why did the mission hide those facts and information? Was that a fabrication of an alibi for the later steps that were taken against our country? Why were all these facts and all this information hidden from the eyes of the world public?

A. I did not hide any facts from the public.

Q. You explained that the information that reached you went to the mission's headquarters and that it was the mission's headquarters that was the sole -- that had the sole authority of giving out information. Was that your explanation, if I understood you correctly?

A. Yes.

Q. And now I'm asking you for your opinion. What do you think? Because you're not -- you weren't just there as the head of the Regional Centre, you were a general, an important figure in the mission itself. Now, do you now assess from this point in time, with all the passage of time and all that we know in the meantime, why the command of the mission concealed these fighting in Racak, the presence of these last forces, the weapons, the machine-gun nests, the trenches, the bunkers, and all the rest of it? Why did -- and the fighting, the combat.

JUDGE MAY: Mr. Milosevic, you put these questions, you see, which is your case, and allege concealment and the like and conspiracy and all this sort of thing. There is really no reason for it. In any event, are we going to hear from Mr. Walker?

MR. RYNEVELD: Your Honour, it is hoped so --

THE ACCUSED: [Interpretation] I'm not hearing the interpretation. ^{5868 BLANK PAGE 5869} Can I have the volume put up?

MR. RYNEVELD: It is hoped so. There is still something that I understand is -- he is part of the Rule 70 proceedings, but I believe Walker is coming. That is to the best of my knowledge at this point.

JUDGE MAY: But it's not certain; is that right?

MR. RYNEVELD: I can't say that it's certain, but I believe there is a very distinct likelihood.

JUDGE MAY: Because if he is coming, clearly the question should be put to him and these suggestions. But if there's some doubt about it, we will allow them to be put to this witness.

General, it's suggested that there was a concealment, a cover-up, a conspiracy. Perhaps you could deal with it.

THE WITNESS: Well, Your Honour, I -- what I can -- sorry.

MR. RYNEVELD: If I may, my information is that we're trying to get Walker here the week after next.

JUDGE MAY: Very well. Let the witness answer, yes.

THE WITNESS: Right. Your Honour, certainly I can tell you about my dealings with both sides. We never tried to conceal anything. Any time -- any time I came in possession of any -- any misbehaviour, if you wish, by the Albanian side, I was just as hard on them as I was on the Serb side, and I believe that this -- this approach was one that was used by the entire mission. Certainly I operated under that -- under that premise that everyone there was impartial.

JUDGE ROBINSON: Before you continue, Mr. Milosevic. Mr. Ryneveld, may I ask if we're going to hear from any of these ⁵⁸⁷⁰ persons called verifiers? These are the people who were there and who saw what was happening. The general wasn't there.

MR. RYNEVELD: No, Your Honour. I might say that the purpose of calling the person in charge by way -- this is by way of summary. They report to him. I appreciate that this is a form of hearsay, but it's the kind of hearsay that is based on personal observations on a reporting structure, information upon which this general is entitled to rely. Now, if we call all the -- we have a very limited time period within which to present this evidence.

JUDGE ROBINSON: But for my own part, I would find the evidence far more credible if we heard from at least one verifier, and I, frankly, would be prepared to urge the Chamber to make that kind of arrangement.

MR. RYNEVELD: We can certainly get verifiers here. That's not the problem. But it encroaches on our already extremely tight schedule, and it may have to be the subject for further time in order to accommodate that, absolutely. But we will certainly look into that and see whether we can -- now that the Court has expressed a decided interest in that particular issue, we'll make every effort to have one or two verifiers here. There are some that I know are available. It's just a matter of if we call those witnesses, it leaves us less time to call other witnesses, that's the problem.

JUDGE ROBINSON: As I said, for my own part, I think it's absolutely important in light of the defence that is being run.

MR. RYNEVELD: We will certainly take Your Honour's comments into consideration and do our utmost in order to bring those witnesses forward ⁵⁸⁷¹ as soon as possible.

JUDGE ROBINSON: Of course I'm not encouraging you to inundate us with verifiers, but I think it would be helpful, if not vital, to hear from at least one.

MR. RYNEVELD: Yes. We are planning to call at least one who is actually on our witness list now.

JUDGE ROBINSON: Thanks. Thanks.

JUDGE MAY: General, can I understand this: What is being suggested is that the mission as a whole, or at least the head of it, produced false information as propaganda. It's suggested he had some ulterior purpose for this and that the information which was put out about Racak was misleading and simply amounted to propaganda. Did the mission have an interest in putting forward propaganda or in favouring one side above another?

THE WITNESS: Again, Your Honour, that's a very good question, and I -- I can only tell you from my -- from my experience and my dealings with the mission, both within my Regional Centre and with those times when I replaced General DZ up at the main headquarters in Pristina that, in my view, the mission did its job in a totally impartial manner and had no -- had no kind of didactique for one side or the other within the mission. And I can tell you, in fact, a good example is in my Regional Centre I was very worried about the Serb community which was in certain pockets within the Prizren district surrounded by Albanians, by the Albanian population. And I met with representatives of the Serb community on several occasions. I went on Serb television, Belgrade TV and radio, to express some of those ⁵⁸⁷² concerns and to negotiate with the Serb -- the Serb responsible persons in those areas to open up field offices of the OSCE, in particular in case there was an agreement in Rambouillet so that we would have a field office right in the middle of the Serb community to ensure that there would be no backlash, which was obviously a possibility, against the Serb community. So certainly in my -- in my heart, in my actions, and in my approach, there was absolutely no partiality to one side or the other. I did not condone any of the actions that were taken by either the Serb side or the Albanian side in hurting the other community. To my mind, our mission there was to try to preserve the status quo and ensure that the behaviour of both sides would be in accordance with what I saw was the international community's approach to human rights and to everything else, to allow the political negotiations to go on and to find a final solution.

So my sense is that there was no much partiality or hiding of information or that kind of action from the mission.

JUDGE MAY: Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. It is not disputed at all that the majority of the members of the Verification Mission -- that the majority of the members of the Verification Mission would say exactly what you just said. At any rate, we saw statements of some of the members of the mission who regretted that certain steps had been taken. What I'm referring to are simply the facts that indicate that an alibi had been fabricated in Racak for further steps. ⁵⁸⁷³ Let us just look into three facts. First, is it well known and is it completely undisputed that Walker had announced that a massacre of innocent civilians had been committed in Racak? That's a fact, that's right, isn't that so?

The second fact, is it clear --

JUDGE MAY: Let the witness deal with these things one by one. Do you agree with that, General?

THE WITNESS: I heard that Ambassador Walker did make that statement, yes.

MR. MILOSEVIC: [Interpretation]

Q. That a massacre of innocent civilians had been carried out -- had been carried out in Racak. Isn't that right?

A. Yes. I heard him say that, yes.

Q. The second fact: Is it contested that a number of KLA members had been killed in Racak and a number of those people cannot be considered civilians in any case. Is that challenged or not?

A. Well, I can only challenge it from the point of view of what I saw on the ground. I did not see --

Q. I'm not now referring to what you said on the 15th. I presented you yesterday your own report dated the 16th, which contains the minimum that you already knew on the 16th, which means on the day when Walker announced that there had been a massacre of innocent civilians, and that report stated that there were eight soldiers of the KLA killed. So on the day when the massacre of innocent civilians was announced, your report said that eight members of the KLA had been killed. ⁵⁸⁷⁴ You had monitors there from the very morning, and you know that there had been fighting going on. So these two facts are not contested.

JUDGE MAY: Mr. Milosevic, you must let the witness answer. You are cross-examining at the moment, not making -- not making speeches. Let the witness answer.

No.

THE ACCUSED: [Interpretation] [Microphone not activated]

JUDGE MAY: Mr. Milosevic, I'm stopping you. I am stopping you because you are making speeches. You were told not to yesterday. You were told to ask questions. Now, you have a proposition which you have put to the witness. He must be able to answer it. General, what was put to you was that you knew or you reported on the 16th that a number of soldiers of the KLA were killed. Do you agree with that proposition?

THE WITNESS: I did -- I did report that in my report on the 16th; correct. And what I said was that a number of KLA were killed. That was in the assessment. And I put eight and with a question mark. And also -- but this was, as I say, was reported to me, and there is no doubt it was reported in good faith so I take it as correct information. But what I saw on the ground, I did not see any members of the KLA that had been killed at that point.

JUDGE ROBINSON: The question mark, General, was to indicate that the number could be lower or higher.

THE WITNESS: It could be lower or higher, yeah.

MR. MILOSEVIC: [Interpretation] ⁵⁸⁷⁵

Q. So, therefore, we concluded that Walker reported that there had been a massacre of innocent civilians. That was fact number one. And then we also concluded that at the time when he made that statement, he knew that members of the KLA had been killed. Therefore, isn't it clear that he purposefully --

JUDGE MAY: No. I'm going to stop you. You are putting a proposition to this witness about somebody else's state of mind. Now, you could put that to Ambassador Walker. You could put it to him. But putting it to this witness is a complete waste of time. Now, you've put your argument. Now, have you got any other points to put to him?

THE ACCUSED: [Interpretation] I certainly do. I took it that General Maisonneuve was giving sincere answers that pertained to what he had seen himself.

JUDGE MAY: Yes. Yes, you could take that.

MR. MILOSEVIC: [Interpretation]

Q. In view of these two facts - one was Walker's statement and the other one was the reality that you reported on - are you aware of the fact that that reality had been concealed by the headquarters? I'm not going to use the name Walker, that's not important now, but the reality had been concealed and the only statement that was announced to the world was the statement about the massacre of innocent civilians. Nothing leaked to the international community about the killed KLA soldiers, that there had been fighting. The only thing that they learned about was the innocent of the mass -- the massacre of the innocent civilians. Are you aware of this? ⁵⁸⁷⁶

A. I'm aware that Ambassador Walker did make a statement about innocent civilians being killed in Racak, yes.

Q. All right. Thank you. I'm not going to put any more questions to you regarding this.

In your statement, on page 10, paragraph 1, you refer to an event that preceded Racak and that was the killing of a policeman. I presume that you remember that event, that that is not contested. In your statement, on page 11, you also state that on the main road between Suva Reka and Stimlje, the KLA carefully selected that as a place of provocation because they knew that the police patrolled that area.

Did the police patrol that area because a route had been agreed based on the agreement between the authorities of FRY and OSCE, this route been agreed prior?

A. Yes, they did.

Q. Therefore, on the agreed route which had been agreed between the authorities of FRY and OSCE, they, the KLA, because you said that the KLA carefully selected that spot as a spot where they would kill a policeman, and it was known that that was a spot agreed to be -- to be patrolled; isn't that so?

A. The OSCE and the Serb authorities had agreed that that would be the patrol route. The OSCE was not aware that the KLA were preparing an ambush and had selected that area as an ambush area.

Q. I am not accusing OSCE about knowing that the KLA was going to ambush the police. I'm not saying that. What I'm saying is that you ⁵⁸⁷⁷ state yourself that they had carefully selected the spot on the very route that had been agreed between the authorities of FRY and OSCE as the area to be patrolled and committed a murder on that route.

A. That's correct. That's the way I saw it on -- on investigation. I actually visited the area from where the ambush was launched, and it seemed to me and to my verifiers that they had been preparing the ambush for some days.

Q. When you contacted the representatives of the army, you were given an explanation - and this is contained on page 7, paragraph 7 of your statement - that none of the soldiers had contact with civilians. Isn't that so?

A. You're back to Racak now?

Q. Yes. Yes. All I'm saying is that you were told that none of the soldiers had contact with civilians. Did you determine this as well?

A. This -- this is what I was told for sure, yes.

Q. So therefore, despite this statement of the police commander that it was a pure police action, your assessment on the army participation is based on the fact that one of the verifiers had informed you about this; isn't that right?

A. Based on the fact that the VJ had been seen to be supporting the attack by the MUP from the high ground around -- around Racak and the villages close to it.

Q. Very well.

JUDGE MAY: And it should not be forgotten in this evidence that when you spoke to Lieutenant Colonel Petrovic on the 16th of -- ⁵⁸⁷⁸

THE WITNESS: January.

JUDGE MAY: -- January, he told you Stimlje - which I take to be Racak - was done by the MUP with Praga armoured vehicles and a tank, and you told us that you took the tank to mean that there was VJ involvement.

THE WITNESS: Absolutely, because the -- the MUP did not have tanks.

MR. MILOSEVIC: [Interpretation]

Q. That's not the point. I simply wanted to clarify the fact that the army did not accuse the police of anything, because it was a legitimate operation. And the Prosecutor wanted to distort the facts and claim that the army had accused the police. But we have cleared this now. Yesterday, you --

MR. RYNEVELD: With respect, Your Honour, I can't just stand idly by. I'm not accusing or distorting any facts. The quote that I put to the witness came from the document he prepared and that was referred to by Your Honour about a quote about another individual saying to the MUP that they're putting the blame on you. The words I used came from that document. I'm not distorting anything.

JUDGE MAY: Mr. Ryneveld, you can take it that the accusations levelled by the accused at the Prosecution and the allegations made about them are not taken by the Trial Chamber as to be anything other than allegations.

MR. RYNEVELD: Thank you, Your Honour.

JUDGE MAY: If there were serious queries about suggestions by the Prosecution that it was manipulating the evidence or misrepresenting it, ⁵⁸⁷⁹ then the Chamber would take it up with them. For the rest, these are mere accusations by him.

MR. RYNEVELD: Thank you, Your Honour.

THE ACCUSED: [Interpretation] In that case, I'm suggesting to you, Mr. May, to look into this, because the witness spoke about information he had received and not about any accusations by police directed -- accusations by army directed at the police. The army informed that it was a pure police operation, the police informed him of the same, and that's all there is to it. And Mr. Ryneveld explained that the army had accused the police, which is not true. So this is a manipulation, and I would like you to look into that.

JUDGE MAY: Let us -- we have the evidence, Mr. Milosevic. We have it before us. Now, let us move on.

THE ACCUSED: [Interpretation] Mr. Maisonneuve did not claim that the army blamed the police. He simply said that they had given him information.

JUDGE MAY: We're not wasting further time on this.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Maisonneuve, yesterday, you quite expertly explained the logic behind the coordination and when it was needed; when there are operations conducted in the field and when steps need to be taken to ensure that nobody is killed by friendly fire. So this is the essence of what you were saying. Isn't that right?

A. That's correct.

Q. Therefore, I am especially grateful to you for that explanation, ⁵⁸⁸⁰ because up to now, here in various circumstances, any kind of coordination between the army and police was treated as some kind of an illegal conspiracy or some kind of a criminal misbehaviour. So I'm very pleased that a person such as yourself, a military person, gave an explanation of that nature.

Do you know how deep were the trenches, the ones in Racak?

A. No, I don't.

Q. Your colleague or your subordinate, I'm not quite sure what he is, Mr. Ian Hendrie, who is coming here to testify, in his statement claims that they were 1 metre -- 1.20 metres deep. Now, in few of that, I'm asking you, and since you yourself stated that those who were killed had been hit in the area of torso and head, and if the trenches were 1.2 metres deep, was it logical for them to have these type of injuries in the area that you describe?

A. You -- I guess you were asking me if somebody is in a trench and they're firing at someone coming -- I don't quite -- I don't understand the question.

Q. Is it logical for somebody who is in the trench and who is killed, is it logical for that person to be hit in the upper body, in torso and head, and not in the legs? Because you said yourself that the majority of them had injuries in their torsos and in their heads. Is it logical for somebody who is in a 1.2 metre deep trench to have injuries in that area?

A. If the person is in a trench, yes --

Q. I can see that you are giving an affirmative answer, you are doing it with your head, but since we need an audible answer, this is why I ⁵⁸⁸¹ insisted on this.

Yesterday, you said that you were familiar with the information that was subsequently determined by the so-called experts. Yesterday, you said that the majority of people had been fired at from a short distance. That's what you said yesterday. And I would like to ask you the following now: Do you know that in according to the forensic experts, both Yugoslav, Belorussian, and Finnish ones, that is not true, and that all of the people except for one person who had been indeed hit from a short range, all the others were hit from a long range, as they were moving? Are you aware of that or did you become aware of this subsequently?

A. I'm not aware of that. I did not see the forensic report by the Finnish team. All I was saying, and in fact it's with no -- no particular training in that area, that it appeared to me that they had been hit from close range when I saw the bodies from up close. The other thing I, of course, take it from is my experience as a military officer that it's very difficult to hit someone in the head from a long distance. When we aim with a small arm weapon, we aim at the centre of mass of what is available, what you can see. So it would be very difficult. You would not aim at somebody's head when you're actually shooting at a distance, you would aim at the body. There's a chance you might hit the head, obviously, but would you aim at the centre of mass of what is visible of the target.

Q. Yes, I understand that, but you as a soldier probably have in mind that not only one bullet is fired to ensure that you would hit the target but, rather, that a large number of bullets is fired in order to hit the ^{5882 BLANK PAGE 5883} target. If every bullet hit the target, then there wouldn't be any living people on this planet. You know this better than I do. Yesterday, you said that that person had a hat, a cap on his head and you know -- and the person had been hit in the head. You know that these Albanian caps are quite small and they resemble an eggshell, so do you believe that a person can be hit in the head without the cap falling off their head? And it's not a military cap, it's a very small cap resembling the eggshell.

A. I would imagine that if somebody gets hit in the head --

Q. [In English] Highly unlikely?

A. It's highly unlikely the cap would stay on.

Q. [In English] Yes.

JUDGE KWON: Just a minute, Mr. Milosevic. General Maisonneuve, it's about your speculation that the victims were shot at close range. Is that based upon the fact that they were hit on the head, not -- it's nothing to do with the -- I'm sorry.

THE WITNESS: The wound you mean, the entry and the exit of the wound?

JUDGE KWON: Yes.

THE WITNESS: I don't have any training in that regard so I could not tell you how it looks when it's a long distance or a short distance away. What I could tell you --

JUDGE KWON: So you are not in a position to tell the difference.

THE WITNESS: I could not, but I could see that some of them came in the back and others in the front, and it seemed to me that to be hit ⁵⁸⁸⁴ from a long distance and have this kind of a wound would be very difficult, so my observation was that it was very close, from very close range.

JUDGE KWON: Thank you.

MR. MILOSEVIC: [Interpretation]

Q. General, you said that based on your observation - and I wrote down this word of yours, "your observation" - the people who were killed were not members of the KLA. Was that observation of yours based on the fact that they did not have uniforms?

A. Based on the fact that they did not have uniforms; their age also. All the -- the majority of the KLA members that I had dealt with and seen as fighters were of younger, much younger age. These were a number of more older gentlemen. They looked -- they looked like they were farmers, to me, and did not look like members of the KLA.

Q. You said that in the gully, in the valley, there were some 20 of them and they were lined in one line. Now, here's my question: Bearing in mind what you said, that they were lined, and if we link this to this other fact that the KLA had the place under its control from the 15th of January, let's say after 1600 or 1700 hours, until the time you came, when Walker came and saw that, does this speak in favour of the fact that somebody had brought those bodies there and lined them up there, or could somebody have brought these bodies from the afternoon of one day and before the morning of the following day? Is there anything to speak in favour of that?

A. There probably are a number of -- a number of options that could ⁵⁸⁸⁵ have happened in this case. When I saw the bodies, they were disposed in a bit of a line. There were a number that were spaced out at the -- at the bottom of the ravine, and then a little further up there were about, I'd say eight, maybe five, eight, ten bodies that were kind of together in a little bit more of a group. It almost seemed as if they had been walking up the trail, but again that's got to be probably from the photographs and from the actual forensic investigation. In fact, Mr. Hendrie, who was one of the human rights verifiers who had a look specifically at the bodies would be best able to tell you. But it looked to me like they were -- they may have been marching up. I guess there are perhaps other possibilities there, but I did not speculate on how they had gotten there, certainly. But it seemed to me that's the first thing I thought of, is that it looked like they had been marching up.

Q. Yes. And did you happen to think and did you ask yourself how come there were no casings around anywhere, bullet casings?

A. No, I did not.

Q. You said yesterday yourself that you cannot give an opinion as to whether the bodies had been brought into the ravine or not; is that right?

A. Yes.

Q. Yes. I understood you to say the affirmative. Now, General, here we have seen some photographs of those bodies on which we can see some bodies with their arms in the air, raised up in the air, in positions that they could not have been had they been killed on that spot rather than being brought in from some other place, because it is impossible for a dead person to keep his hands held up in the air and be in that particular ⁵⁸⁸⁶ position, et cetera.

Now, did you notice these - how shall I put it? - these signs, these indications of the fact that the bodies had in fact been brought in and lined up there, aligned there after death?

A. No, I didn't -- I didn't notice that any of their arms or limbs were up in the air. I must say I guess I didn't -- wasn't really paying attention to that at the time.

Q. Just tell me this: At what time did they discover the bodies in the ravine, your verifiers? What time was it when they discovered the bodies?

A. I believe it was in the morning. I probably would say before -- before 10.00 on the morning of the 16th.

Q. You say around 10.00.

A. Before -- I think before 10.00. Somewhere around there.

Q. Very well. So before 10.00. That means from sometime around, let us say, 1700 hours on the 15th and then at least until 9.00 in the morning of the 16th, and they could have exclusively -- it was only the KLA that could have manipulated this exclusively. There were no verifiers there, there were no police and no army there; is that right? Or did some of the verifiers perhaps spend the night there, stay and spend the night there?

A. I believe that -- that there was no -- that there were no verifiers in that area on the evening of the 15th, that I know of.

Q. All right. Thank you very much. I have to shorten my questioning. Now, you mentioned yesterday that some howitzers were directed towards the village. Did you just say that they were directed ⁵⁸⁸⁷ towards the village or did you say that they opened fire on the village?

A. My understanding is that they were pointed -- mortars and howitzers were pointed towards the village. One of my verifiers did report that at one point.

Q. Yesterday, you said -- you put it this way: That the men were taken off but that the verifiers didn't tell you that. Who told you that? Who told you that the males had been taken away?

A. This is a report I became aware of later. I did not get that report on the day of, and it was reported, I believe it must have been by the other Regional Centre up to -- up to Pristina, but I subsequently read they had been told, and I believe it was the locals who mentioned that to the verifiers, that the men had been segregated from the women and taken away.

Q. Yesterday you spoke about the attempt on the part of the investigating judge, Mrs. Marinkovic, to carry out an on-site investigation. That was when Judge Kwon asked you a question about sovereignty, that is to say, whether a judge, in his or her own country and in conformity with the law, is carrying out an investigation, you know that in conformity with the law governing investigating judges, that the spot and position is secured by the police. And you said that it was -- that from the KLA, they reported too late that there would be no problems and that that is when an independent investigation took place, although this is the right that an investigating judge has. Now, is there anything that you reproach the investigating judge for in that regard? I didn't quite get the point of your -- of Mr. ⁵⁸⁸⁸ Ryneveld's questioning and examination. Is there anything that you reproached the investigating judge, Mrs. Marinkovic, for in that regard?

A. The only thing I guess I could say is that, in my view, in light of what had happened in Racak and the very high tension that was reigning at that time with all the dead bodies that we had found and with the fighting that had gone on, the house-to-house searches by the Serb authorities and the deaths of some of the locals, that this was not a good time perhaps to be very -- to have a very overt and large Serb presence go in the village. And I guess if -- we were trying to -- to lower tensions and to ensure that there would be no further fighting, and so I think the approach of OSCE, General DZ, and myself and everyone were hoping that the investigation would take place but perhaps with a less overt police presence. When she decided to go in, it was accompanied by a whole company of police, probably a hundred, with armoured vehicles and were leaving from the road heading towards Racak and it was, to our mind, certainly much too large a presence to go in with. I don't think anyone would disagree with the need for the investigation to go on and for her right to go in to investigate, but I believe that the approach of the OSCE was to try and convince her to go in under OSCE escort, perhaps with some personal protection, but not with an entire company of MUP at that time. It was just -- the tensions were just too high and there was the danger of -- of fighting breaking out.

Q. All right. You are aware that during that investigation that the KLA targeted with mortars the investigating judge and her team and that some were even killed there on that occasion. Isn't that right? ⁵⁸⁸⁹

A. I'm not aware of anyone being killed, but this is possible. The OSCE --

Q. So what we have is an investigating judge going out to perform her duty and carry out an investigation. They're not doing this for their own pleasure, to go to a village under such conditions and to carry out an on-site investigation. She was going out to her duty, to conduct the investigation, terrorists targeted them with mortars and the conclusion is that it is the investigating judge to be blamed for doing this to the -- provoking the terrorists; is that right?

A. Well, it's undoubted -- it's -- certainly in my own mind, having a complete company of MUP going into a village that has just been, you know, the day before house-to-house searches and 45 people are killed, I think that is provoking, but that is my personal opinion.

Q. Well, all right, but do you consider that the authorities, the legal authorities of a country should ask permission from terrorists whether or not they can do their duty or not?

A. I would say obviously not.

Q. Where's the problem then?

A. Well, I explained to you, Mr. Milosevic, that my view of things is that - and certainly I believe the OSCE's view at that point - was that there was no problem with the investigating judge going in to do the investigation but we were trying to lower tensions, and having a complete company of MUP accompany her was not the approach to take. If she had been accompanied by the KVM - General DZ himself was prepared to accompany her - and perhaps some personal protection would have been sufficient and ⁵⁸⁹⁰ kept tensions down to a minimum, and it would not have been seen as another assault on the village which had just been assaulted with 45 people being killed the day before.

JUDGE KWON: General, could you clarify the meaning of "minimum"? Was it agreed at that time that she is accompanied by some members of the MUP? Not the whole company.

THE WITNESS: As I said, Your Honour, we would have had no problem with her being accompanied by a small group perhaps of personal protection, perhaps a section of five or something like that at that point would have been -- but you see, the approach that was taken was that the -- the MUP company lined up as if they were doing another assault and a clearance through the village, as opposed to the way we saw it where she could have gone in a vehicle accompanied by a couple of members of the OSCE, General DZ himself, and she could have gone with a small party and driven into the -- into the village. There's no doubt that that would have kept tensions, to our mind, a lot lower than having the entire company walk through the village.

JUDGE KWON: Wasn't the condition at that time that there should be no MUP officer at the time?

THE WITNESS: I don't know exactly what General DZ was trying to negotiate with her, but I'm telling you the way I would certainly have seen things. To have an entire company of MUP there was very provocative, that tensions were running -- as you can just imagine. The local population was up in arms. Well, up in arms is not a good term to use, but was very, very nervous, very worried, very angry. So this was the ⁵⁸⁹¹ time to really try to lower tensions to the maximum. That was our concern.

JUDGE KWON: Thank you.

MR. MILOSEVIC: [Interpretation]

Q. In order to save time, General, I'm not going to ask any of the questions that I have -- that I asked General Drewienkiewicz or to play tapes and other things. We haven't got time really. But let me ask you one more question in connection with Racak. You personally, and I'm asking you personally now: Do you personally, after everything, after all the information that you have about the events in Racak, so all the information, the overall comprehensive information about Racak, can you say that in Racak a massacre was performed over civilians?

JUDGE MAY: That is not for the witness to answer. His personal beliefs are irrelevant. It's his -- it's his evidence which counts, and that is the matter which we are going to have to determine. Now, move on to another topic.

THE ACCUSED: [Interpretation] Why shouldn't he be allowed to answer? If he doesn't wish to answer, he can say that. The witness can say he doesn't wish to.

JUDGE MAY: No. He is not to answer the question. It's not a matter for him, it is a matter which the Trial Chamber are going to have to determine.

THE ACCUSED: [Interpretation] But he'll be honest and he'll tell the truth.

JUDGE MAY: It doesn't matter what his belief is now. It's ⁵⁸⁹² something which the Trial Chamber is going to have to determine on the evidence as to what happened. Now, move on to something else.

THE ACCUSED: [Interpretation] Ah, well, Mr. May, it's quite clear to me, and I hope the public too.

JUDGE MAY: Just move on.

MR. MILOSEVIC: [Interpretation]

Q. We have very little time left, so I'm going to ask you very briefly about the other things that I wanted to ask. In your statement on page 9, you mention the incident in Rogovo and say that you were -- that you toured the crime spot. Which crime spot did you tour? What crime happened in Rogovo?

A. Well, in Rogovo, a group of probably 25 Albanians were killed in a farmhouse, in the area surrounding a farmhouse in Rogovo. In fact, the dates and so on are in the evidence.

Q. I must save time so let me just ask you this: Do you know that in the monthly report of the OSCE of the 20th of February, 1999, for the period from mid-January to mid-February 1995 [as interpreted], it states that one of the commanders of the KLA sector in Pec recognised and stated that 18

-- acknowledged that 18 of the 25 were members of the KLA in Rogovo?

A. I'm not aware of his -- his assessment. I can tell you that our assessment and our information from the KLA commander that I dealt with was about the same, that the vast majority were members of the KLA that had been killed at that time. And that's the way we reported it as well.

Q. And do you know that at the time, because you were there on that ⁵⁸⁹³ 29th of January, 1999, at 6.30 in Rogovo, at a police patrol, an attack was launched and, on the occasion, policeman Predrag Rakovic was killed? He was born in 1976. So that's how Rogovo started, with the killing of a policeman and attack on the patrol. Is that a crime? Is that the crime that you make mention of or do you consider the crime to be the response of the policemen to the killing of that police officer?

A. Well, I see any killing as a crime, first of all, and I received the information from the brigade commander from Prizren who actually described to me how he had seen and had taken part in the Rogovo action. In fact, in his view, it had been an infiltration by members of the KLA and others who -- who he had followed right from the border into Rogovo and then had -- had taken action and killed them.

Q. Without a doubt, Rogovo and that particular house was the place where they gathered together and from which they launched operations. They killed the policeman from that house. That's where they started out from. Now, did you notice on the list of persons killed - because I'm sure you received a report to that effect - that half of them were not from that area at all, from the region at all, and that it was a unit and not villagers living there, not the locals? And you yourself have just confirmed that your information confirmed those facts, that most of these people were members of the KLA; is that right?

A. Right. My information confirmed that most of the people were from the KLA. I was not aware that they were from another region. There is no doubt in my mind, though, that the action by the Serb authorities there again, some of the questions I asked myself were why were there no ⁵⁸⁹⁴ prisoners taken? Why were they all killed? Did they all fight? You know, these are some of the questions that I was asking when I came on the scene.

Q. Yes. But I'm interested in this: As it is quite clear from what you're saying now that you too know that this was another clash between the police and a group of KLA members, why then are you calling this a crime? Isn't it not a legitimate clash by -- between a legitimate police force with a band of terrorists in one particular place? Why should that be a crime? How can you call that a crime?

A. Did I call it a crime?

Q. Well, you say here -- and I'm happy to see that you're wondering whether you said it or not, because in your statement, on page 9, you mention the incident in Rogovo, and you say that you toured the crime scene, and I'm very happy that you're asking yourself that now and relativising it in one way, rendering it more relative in a way.

JUDGE KWON: According to the English version, he only said, "I visited the scene," not "the crime scene." Could it be clarified?

THE WITNESS: I think we're playing on words here. The point being that I definitely toured the scene on that day and I explained to you some of the questions that I was asking myself. I saw where the bodies were. Well, when I arrived, the Serb authorities had already started to clean up the scene and had lined up the bodies, but there were some in some areas that I wondered why they had been -- they had been killed. But again, this is not for me to determine whether this was a crime or not. What I can tell you is what I saw. For example, one person ⁵⁸⁹⁵ inside a bathroom being shot, to me, I just wondered why that person was not taken prisoner. There's no doubt that some of the members, or most of the members were members of the KLA. This was acknowledged by the Commander Drini that I dealt with within my area.

MR. MILOSEVIC: [Interpretation]

Q. All right. So that is not being challenged. Now, is it correct that the representatives of the Commission for Cooperation with the OSCE, that is to say the Yugoslav Commission for Cooperation with the OSCE, which in Pristina was led by General Loncar, is it true that they agreed that there should be a joint investigation into this affair?

A. That's possible. I know that General Loncar was on the ground at the time, as I was, and General Drewienkiewicz was as well.

Q. I'm going to give here the transcript of a conversation given by General -- I think it was General Drewienkiewicz that supplied it, but at any rate, the other side has it under 03045420. It is the conversation between General Loncar and General Drewienkiewicz, and towards the end of that cooperation there is a marker sign here and it says General DZ, who says, "I can confirm that you agree to a joint investigation." General Loncar says, "Yes, of course."

THE INTERPRETER: Or words to that effect, interpreter's note.

MR. MILOSEVIC: [Interpretation]

Q. That is your tape of the conversation, and I think that General Drewienkiewicz supplied it, or perhaps the opposite side included it on its side for reasons that are not understandable to me, but this is not something that is challenged. ^{5896 BLANK PAGE 5897} Now, is it true that the KLA, or, rather, their commanders, because you had regular meetings with them, held the position that if an agreement was signed in Rambouillet, that guerilla actions would be launched and that there was public readiness on the part KLA to continue the fighting? Is that true?

A. I'm not aware of that.

Q. Then I have to inform you that in a document supplied by the opposite side, it was disclosed under the title of questions that emerge from the meeting with the liaison officers of the KLA on the 10th of March, that particular document, it is 03045428, in which this is stated, what I just read out.

JUDGE MAY: The witness has said he's not aware of it. So what's the point of going on? Now, ask him something else.

THE ACCUSED: [Interpretation] Well, the witness was with them.

JUDGE MAY: He says he wasn't aware of it. So there's no point going on arguing about it.

THE ACCUSED: [Interpretation] I'm not arguing with the general at all.

MR. MILOSEVIC: [Interpretation]

Q. I don't know, General, are you understanding me to be arguing with you?

JUDGE MAY: No. Get on with it.

MR. MILOSEVIC: [Interpretation]

Q. Please. This is your document --

JUDGE MAY: Mr. Milosevic, there is no point going on putting to ⁵⁸⁹⁸ the witness something which he is not aware of. You've been told this a number of times during your examination of witnesses. You can produce it in due course, but it's no good wasting time by going on with it with the witness.

THE ACCUSED: [Interpretation] So you do not accept to introduce this as an exhibit, Mr. May?

JUDGE MAY: No, I don't, because he's not aware of it, he knows nothing about it.

THE ACCUSED: [Interpretation] Perhaps he would remember if I were to read it out. He's a general, he read all the reports, his memory might be refreshed if I read it out to him.

JUDGE MAY: Let him see the document. There's no point reading it out, he can't follow it. Let him see the document.

MR. RYNEVELD: If it's in the big --

THE ACCUSED: [Interpretation] All right. Let's not waste time because my time is trickling out.

MR. RYNEVELD: [Previous translation continues]... which were filed with General Drewienkiewicz, we're going through that binder because we don't have an exhibit number.

JUDGE MAY: All right. It's been translated. We'll look at this. Continue with the cross-examination and you can return to this after the witness has finished.

MR. MILOSEVIC: [Interpretation]

Q. All right. Anyway, you indicate, in paragraph 2 on page 3 of your statement, that you talked at a meeting about the withdrawal of MUP in ⁵⁸⁹⁹ Podujevo and the MUP, after that meeting, did in fact withdraw; is that correct?

A. Yes.

Q. That means that you had good cooperation with MUP; right?

A. Yes.

Q. You presented here a document under the title of "The History of Kosovo." Now, what is the importance of that document? And you state that the document does not express your own opinion but that it should be treated as confidential. Now why do you have this type of attitude towards that document? I'm not clear on that point.

A. This is a document that was produced -- I believe you're referring to the one produced by David Wilson, who was one of my verifiers, who produced that. It was his own opinion and I was not using it -- I used it without his permission, essentially, but I thought it was a document that -- that was a good representation of -- of his -- of his opinion and certainly of the opinion of many people who were serving in Kosovo at the time.

Q. In the Canadian Military Journal, you published, among other things, the fact that the KLA, the Albanians, used violent means in order to achieve their political goals, that they resorted to violent means. Now, does this reflect your opinion that they did not use terrorism or that they did use terrorism? Which? What you call the use of violent means in order to achieve political goals, that term.

A. Unfortunately, both sides were using violent means to achieve their goals at the time, and I did not condone any side using violent ⁵⁹⁰⁰ means to achieve gains in Kosovo.

Q. Mr. Maisonneuve, how can you speak about two sides, both sides, if on the one side you have the legitimate authority and power of a sovereign state and on the other side you have terrorists, and when you have 50 years or 100 years back in history, some sporadic terrorist act and then an explosion in 1998 and reactions on the part of these legitimate organs to that terrorism in 1998, how can you speak of two sides?

A. Well, there's no doubt in my mind that in the case of the time when I was in Kosovo, there were two sides: There was the Albanian side and there was the authority's side. Both sides were using violent means. One side was disproportionally more violent than the other side but, nevertheless, the other side was also violent.

Now, I don't know if you can attribute a weight factor to violence. I can't, just like I can't attribute a weight to dead bodies. Whether you tell me it's a thousand or 45, to me they're just dead bodies and they're dead people, and so I would not condone violence by either side the entire time I was there, and I still don't.

Q. And do you assume that it is the duty of a state and its organs to protect themselves from terrorism?

A. Absolutely.

Q. Do you believe that it is the duty of the state and its state organs to protect the territorial integrity of the country if that terrorism has as its political goal separatism?

A. Protection is the correct term, yes.

Q. Now, if this is used in order to achieve these and such political ⁵⁹⁰¹ goals, that is to say secession, the killing of official representatives and so on and so forth, that the state must resort to force or not? If violence is being used in order to achieve those goals.

A. These are -- you know, these are kind of hypothetical questions. I can tell you there's no doubt that if violence is being perpetrated by -- by elements, that a state has a right to protect itself and to defend itself. I don't know --

JUDGE MAY: Yes. General, I think you could probably take it no further than that.

Mr. Milosevic, those are the very questions which this Trial Chamber will have to resolve in due course and not matters for a witness. And your time is now up. You've had your hour and a half.

THE ACCUSED: [Interpretation] One more question. Can I ask him one more question, at least, please?

JUDGE MAY: Yes, one more question.

MR. MILOSEVIC: [Interpretation]

Q. You spoke about the conduct of the police, generally speaking, at the checkpoints, and you said that it was proper and moderate while you were present, when you were present; is that right?

A. That's what I said.

Q. When I say "you," I don't mean you personally, I mean your verifiers. I think we understand each other, don't we? How, then, did you know that the conduct was not moderate and proper when you weren't there if you weren't there? How were you able to determine that?

A. Because we received information from the locals who had been ⁵⁹⁰² stopped and who provided us with evidence at times, you know, some of the members of the local population being beaten and would show -- show us that they had been beaten, and we -- we at times also stayed away from the direct scene but stayed behind or far enough away to be able to observe and then saw the actions of the police from that distance. So there were instances where we weren't there directly on the side, but we did observe the police being very brutal and arrogant.

JUDGE MAY: That is the question. Yes. That brings that to an end.

Now, are there some questions from the amicus?

MR. TAPUSKOVIC: [Interpretation] Yes, Your Honour.

JUDGE MAY: Very well. After the adjournment.

MR. RYNEVELD: In complete fairness, perhaps during the adjournment, we believe we have located the English translation of the document to which Mr. Milosevic referred. This is Exhibit 94, tab 54. Unfortunately, that's as close as we can come. We believe that's the one.

JUDGE MAY: Well, if -- Mr. Milosevic, if you would hand over the Serbian version, we'll ensure that that is the document. Otherwise, we'll have it exhibited.

THE ACCUSED: [Interpretation] Here you are.

JUDGE MAY: Very well. We'll deal with that during the adjournment.

After the adjournment, we'll come back, we'll finish this witness's evidence, examination and re-examination, and then I take it we'll have Drita Emini back? ⁵⁹⁰³

MR. RYNEVELD: Yes, Your Honour, that's my understanding.

JUDGE MAY: We will then deal with Mr. Kelly and our ruling in relation to his evidence.

THE ACCUSED: [In English] After Drita Emini, Avdiu Bilall [Interpretation] according to my list.

JUDGE MAY: No, Mr. Milosevic, we're going to deal next with Mr. Kelly because we haven't yet finished him.

But let's adjourn now. Twenty minutes.

--- Recess taken at 10.35 a.m.

--- On resuming at 10.58 a.m.

JUDGE MAY: Yes, Mr. Tapuskovic.

MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. Questioned by Mr. Tapuskovic:

Q. [Interpretation] General, yesterday you said that there was a strong presence of the KLA in the region under your control and also in other areas in Kosovo. My question is as follows: Did you, as the Verification Mission, have some kind of an assessment of how many members of the KLA there were in the entire area of Kosovo?

A. The -- I believe that information was available to the mission in Pristina.

Q. Well, do you know that figure?

A. No, I don't personally, no.

Q. Thank you. You also said that on the 15th, in the afternoon, at 1630, you were in Racak and that you saw several wounded people. Were they members of the KLA? ⁵⁹⁰⁴

A. No, they were not. It was a lady and a young girl.

Q. Thank you. The following day, you were there once again in the morning; isn't that right?

A. I was.

Q. As you approached Racak that morning, did you meet any members of the KLA? Did they have their checkpoints on the access routes to Racak?

A. No. No, they did not, no.

Q. And what about within the village itself? How many members of the KLA did you see?

A. One or two only on that -- on that morning.

Q. And on that morning, you saw three lifeless bodies, only three; is that right?

A. No. On that morning, I saw many more than that. I actually did see the -- I went to the ravine and saw the ravine. You're talking about the 16th right now?

Q. I'm asking on the morning of the 16th, what did you see then? Were you in the ravine in the morning?

A. Yes, I was. Before Mr. Walker came, I actually had gone to the ravine to see -- to see the bodies up there, yes.

Q. And what time was it?

A. It would have been after -- after I held my two meetings with the police and with the VJ brigade liaison officer. So it must have been after 11.30. I don't know exactly what time it was, but ...

Q. Well, this is why I'm asking you, because the first meeting with Petrovic commenced at -- I'm sorry. At 10.37, you had a meeting with ⁵⁹⁰⁵ Petrovic. At 11.14, you had a meeting with Janicijevic. And if you were in Racak after 11.00 and saw what you say you saw, how could you at 10.37 report what you say here? I'm going to read this to you. You said here: "We saw atrocities in Racak. We believe that the army of Yugoslavia and MUP are responsible for this. The army carried this out. Over 50 people were killed. They were not combatants."

That means that during the meeting at 10.30, you said what you say here, and you were at the scene after 11.00. And then you also go ahead and say that the Tribunal for international war crimes should look into this. So how do you explain this?

A. Well, you see, as I was -- as I mentioned, as I was travelling on the road from Prizren to -- to Racak on the morning of the 16th, I was receiving reports of my verifiers who were in the village doing the investigation and finding the bodies, and as I mentioned, as I was going -- arriving, I was hearing reports of, you know, 25 -- you know, the body count was going up and up. When I actually went into Racak, I did not have time at that point to go to the ravine before I had the meeting scheduled, so I only personally looked at a couple of bodies at that point. But of course I was speaking to my verifiers who had been to the ravine and had reported to me that there were a number of bodies. We hadn't got an exact number by then, but we thought it might be as high as 50, because of course when you're finding numbers, you don't know, there might be some double counting and so on. So when I actually met with the brigade liaison officer, I used the number 50. We also had seen, of course, the firing into the houses the day ⁵⁹⁰⁶ before, so that's the basis in which we said we had witnessed the VJ and MUP being involved in the operation.

Q. And when did you learn during the day the exact number of victims? When did you learn the exact number of them?

A. I don't know whether I even learned it during that day. As I say, it's always difficult to figure out which bodies are which and so on. We know there were approximately between 40 and 50 bodies on the day, and of course midday the 16th, or just after midday, Ambassador Walker and a whole team of investigators from Pristina arrived to do the specific body count and investigation of numbers specifically, and so that's when, of course, the numbers came out.

Q. However, at 10.37, you said something which in a way represented your definitive assessment concerning what had happened there, and you even gave a qualification. You qualified it as a war crime and atrocities, that these people were not combatants and, at that time, you still didn't have all this information.

A. Oh, I didn't have all the information, but I could tell you that my verifiers had seen that they were not combatants by our assessment. And I must tell you that on the basis of information, that is what you do when you're in the heat of the moment, you certainly meet and have to speak to these people on that basis. So that's what I did. And I'm sure you would have done the same.

Q. Well, I would just like to ask one more thing. You can give us information who these verifiers were who saw this prior to Walker and you and prior to anybody else. Can you give us a name? Who told you this? ⁵⁹⁰⁷

A. I have some names. Rufus Dawkins, who was one of my verifiers, and the people within his team. He was the -- pardon me?

Q. Is he Albanian?

A. No. Rufus Dawkins, he's an American, actually. I've provided his name already to the Court.

Q. All right. I'll conclude with this topic. I think this was sufficient for our purposes.

Did you try, that morning, and since you already talked to the members -- to the representatives of the official authorities, but did you also talk to the representatives of the KLA on the 15th in the afternoon and the 16th in the morning? Did you get any information from them?

A. I personally did not. I was -- I was trying to meet, actually, with my KLA equivalent, the person that I dealt with all the time, Drini, and I requested a meeting, and I never ended up meeting him until the 17th, but my verifiers in the village were speaking to the KLA members there.

Q. Prior to your meeting with the representatives of the army and police?

A. Prior? No, after. Because I met the representative of the army and the police on the 16th. And on the 17th, I met with Drini. And the meeting reports are in the evidence.

Q. Did you try at all to get permission from the representatives of the KLA to see what victims they had, what people were killed on their side, to at least establish whether they were wearing civilian or military clothes? ⁵⁹⁰⁸

A. No, I did not.

Q. I'm also interested in the following: There was no on-site investigation carried out, was it, where there were numerous victims up in the hills? There was no on-site investigation there, was it? The way it is normally done in accordance with the rules of police investigation and so on.

A. Well, the only investigation of which I am aware is the one that was carried out by Pristina and the headquarters, Ian Hendrie as one of the investigators. And there were a number of people crawling all over the site on the 16th and I believe on the 17th as well. And, of course, there was also the investigation by the presiding judge accompanied by that company of MUP. Presumably it was a proper investigation.

Q. I'm interested in the on-site investigation on the site where numerous bodies were found. Do you know whether that particular spot was investigated?

A. Well, this is what I mean. You're talking about spot in the gully where the bodies were? Is that the spot that you're talking about? Well, in fact, yes, as I said, on the 16th the place was crawling with investigators, and Mr. Hendrie is going to be reporting to you here, I believe, on that investigation.

Q. Do you know at all how the bodies were transferred to the mosque?

A. No, I don't.

Q. Did the KLA have any interest in preventing access to those bodies and preventing information from being brought into the open about them? Did they have an interest in that? ⁵⁹⁰⁹

A. I wouldn't see why they would have an interest, no.

Q. And the final topic, General, has to do with Mr. Kelly's report and some facts that are contained there. It is being said there that --

JUDGE MAY: Just a moment. Mr. Tapuskovic, before you go into that report, we are going to rule on that in a moment. It may well be that we shall be excluding it, so I don't think it would be right to ask any questions about it.

MR. TAPUSKOVIC: [Interpretation] I would just like to ask the following: Is General Maisonneuve aware of the fact that 17 Serbs were killed in front of the mosque at a time when they tried to pick up the bodies and take them to the morgue in Pristina?

Q. Do you know that 17 people were killed there? This was determined by OSCE, and it is stated in their report. Do you know of this or not?

A. I'm not aware of that, no.

Q. Do you know if anyone was killed?

A. Not that I know of. And certainly not in the context of picking up the bodies. I think I would have heard about that. But I never heard about that, no.

MR. TAPUSKOVIC: [Interpretation] Thank you.

MR. RYNEVELD: Your Honours, given the time constraints, I'm going to forego any re-examination.

JUDGE MAY: Thank you. The document we tracked down to Exhibit 94.

MR. RYNEVELD: Yes. I believe that the accused wanted to have it marked as an exhibit. It already is an exhibit, and it's Exhibit 94, tab ^{5910 BLANK PAGE 5911} 54. So that's the document.

JUDGE MAY: Thank you. Yes. It's in evidence.

JUDGE KWON: And 42 for the transcript, between the conversation between General Loncar and DZ.

MR. RYNEVELD: Yes. We found that as well, and that is Exhibit 94, already in, tab 42.

JUDGE KWON: Yes.

JUDGE MAY: Yes. General, thank you for giving evidence and thank you for making time this morning and making different arrangements. You're free to go.

THE WITNESS: Thank you, Your Honour.

[The witness withdrew]

MR. RYNEVELD: I understand Your Honours indicated that you would hear Drita Emini now for the balance of cross-examination.

JUDGE MAY: Yes.

MR. RYNEVELD: Thank you.

[The witness entered court]

JUDGE MAY: Ms. Emini, you can take a seat. You are subject to the declaration which you made the other day, and we'll conclude your evidence now.

WITNESS: DRITA EMINI [Resumed]

[Witness answered through interpreter]

JUDGE MAY: Yes, Mr. Milosevic. Cross-examined by Mr. Milosevic: [Continued]

Q. [Interpretation] You said that you were able to see Bebushit hill ⁵⁹¹² from the basement. How far is it from the place where you were?

A. Two hundred metres from my house. About 200 metres.

Q. Did the policemen who you say you saw on the hill through a hole in the basement, did they stand or were they hiding behind a shelter?

A. I saw three or four, I don't remember exactly, and they were standing, Accused.

Q. So you saw only three or four policemen on the hill some 200 metres away from you from a basement in which, as you say, you were lying on the floor; is that right?

A. Which policemen do you mean? The Serbian police? Are you talking about the Serbian police?

Q. Well, I took it that you were referring of them.

A. I saw the Serbian police. I couldn't say how many there were on the Bebushit hill, but I know we were surrounded by Serbian police and soldiers.

Q. Well, now you're saying that you can't say how many were there, and previously, without me asking you so, you said there were three or four. A minute ago, you said there were three or four of them on the hill 200 metres from the basement on which you were lying on the floor.

A. I don't know what police or army you're asking about exactly.

Q. Well, the one that you mentioned in your reply. I asked you about policemen you saw on the Bebushit hill. Even though I didn't ask you how many there were, you said that there were three or four policemen standing there.

A. I saw Serbian police and soldiers from the cellar where I was, and ⁵⁹¹³ I don't know how many there were, but I know that we were surrounded by Serbian police and soldiers on orders that were given by you, Accused.

Q. Very well. If you saw three or four, as you said yourself, three or four, how did you then conclude that you were surrounded? Did these three or four policemen that you saw on the hill, as you say, 200 metres from the basement, actually surround you?

A. This question is not clear to me, Accused.

JUDGE MAY: Now, will you stop addressing him as "Accused." There's no need for you to address him at all. Ms. Emini, you are giving evidence to the Court.

Yes. Mr. Milosevic, find another question.

THE ACCUSED: [Interpretation] Well, it's quite obvious that we need to move to another question.

MR. MILOSEVIC: [Interpretation]

Q. In your statement, on page 8, you state that in the hills above Lozhak, you spent six days in a cave called Imer Devetak. Is that true or not?

A. I didn't stay in a cave above the hills of Recak. I stayed in Lozhak. It's called shpella, the cave of Imer Devetak.

Q. All right. So you were in this other cave that you're mentioning now for six days; isn't that right?

A. We were one week in the cave. It was in the mountains.

Q. Do you know that in your statement, it says that you spent six days in a cave. You said that you had a wood-burning stove in front of the cave. Isn't that right? ⁵⁹¹⁴

A. My family and I who stayed in the cave of Imer Devetaku, like Lozhak, didn't have stoves because we were in the hills. I also have photographs taken by Barney Kelly. There were no houses up there.

Q. I'm not asking you about houses, I'm asking you about a cave. And what did Barney Kelly photograph?

A. Barney Kelly photographed the place where my family and I stayed in the cave during the war, as well as other families.

Q. So did you spend six days in that cave?

JUDGE MAY: Six or seven days, it doesn't really matter, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. Why did you stay there for that many days when it was quiet in the village? Why did you stay there?

A. We had no peace in our village because of the Serbian police and army, because of your orders. We were forced by the shelling to go and stay in a cave.

Q. And when did that shelling take place? Do you remember the date?

A. In 1998.

Q. So you're saying that you spent time in the cave in 1998, not in 1999; isn't that right?

A. Starting from 1998.

Q. So you were in the cave in early 1998; is that right?

A. I said before.

Q. So you were in the cave in early 1998 because the Serbs shelled your village; is that right? ⁵⁹¹⁵

JUDGE MAY: She did not say early 1998. She merely said starting in 1998. There's a distinction.

Can you help us as to when, roughly, in 1998 it was, what time of year?

THE WITNESS: [Interpretation] Yes, I can tell you, Your Honour. It was in 1998. I can't remember the exact date, but we were in that cave when the Serbian army and the police were shelling from the Cesta Hill and from Geshtenja. We weren't safe staying in the village and were forced to take shelter somewhere quieter.

JUDGE MAY: Can you help us as to what time of year it was? Not the exact date, but roughly.

THE WITNESS: [Interpretation] When -- when the village was burned on the 23rd of August, 1998. It was a Sunday.

JUDGE MAY: Thank you. Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. What village are you talking about now, please?

A. I'm talking about the village of Recak and also where we went to near Lozhak, in the hills.

Q. So you claim that the village of Racak was set fire to in 1998. Is that it?

A. On 23rd of August, 1998.

THE ACCUSED: [Interpretation] Mr. May, I don't understand the difference between starting with -- starting from 1998 or from the beginning of 1998. It would seem to me that this was the same in determining -- in terms of determining the time. Now, I'm going to ask ⁵⁹¹⁶ the witness now how can August be the beginning of 1998.

JUDGE MAY: No. I take "starting in 1998" is beginning then, that it was beginning in 1998 that they were in the cave rather than at the beginning of 1998. Now, I think she's clarified it, as far as possible, the time they were in the cave. Shall we move on to something else now?

THE ACCUSED: [Interpretation] All right.

MR. MILOSEVIC: [Interpretation]

Q. So according to you, the village was set fire to in August 1998; right? Is that right or is it not? Just say yes or no.

A. On the 23rd of August, 1998 - it was a Sunday - when our village was burnt.

Q. And was it built up again by 1999? The village, I mean.

A. After the war was over.

Q. Well, did the village exist at the beginning of 1999? Because you say it was set fire to in 1998.

A. When the Serbian police and army burnt the village on your orders.

Q. I'm not asking you that. You say that the village was burnt in August 1998. What I'm asking you is that it didn't exist until after the war. That's what you said a moment ago.

A. Your Honour, I don't understand. It's not clear to me what he's saying.

JUDGE MAY: How much of the village was burnt in August 1998?

THE WITNESS: [Interpretation] I said then approximately -- I can't say. It might be 56 houses or might -- or it might be more. I don't ⁵⁹¹⁷ know.

JUDGE MAY: But it wasn't the whole village; is that right?

THE WITNESS: [Interpretation] Half the village was burnt. It might have been more, but I didn't really know. I'm not really sure.

MR. MILOSEVIC: [Interpretation]

Q. You're talking about the village of Racak, aren't you?

A. That's right.

Q. That means that up until 1999, more than half the village had been burnt. That's what you claim; right?

A. I said. I don't need to repeat it.

Q. All right. We've already taken note of that. But at the time, then, in August, as you say, when the village was burnt and you fled to the cave, you go on to say that you became ill from all the damp and cold. And then you say that during the night, you would make sure that your family was okay and then that you would be happy. So you would make sure that your family was all right at night. You would go there to see that they were all right at night.

A. My family and I stayed there a week, but we went home every now and then to fetch food, because we had nowhere to get bread in the hills. And my two brothers were ill from the cold, from staying in the cave. It was like in a fridge. I said before that's how it was. Not even wild animals could live there let alone children.

I have photographs. I stayed in that cave with my family.

Q. And tell me, how come it was that cold in the month of August? Was that some exceptional thing? ⁵⁹¹⁸

A. That cave is in the hills. It is deep inside, and it's cold.

Q. As you say that at night you would make sure that your family was okay and that then you would be happy, which is logical, you would be happy to see that, does that mean that during the day you were not with your family?

A. I was with my family all the time. Sometimes I went home to fetch food. And I was not happy, because it was cold in there where we were staying. It was very cold indeed. We went there because of your shelling. We didn't go there because we wanted to. The Serbian police and army, your police and army, forced me -- forced us to go to that cave. We fled from the shelling.

Q. All right. When, then, did you go back home from the cave? Give me a date. So you went on the 23rd of August, on a Sunday when the village was burnt, as you claim. Now, when did you go home, get back home?

A. I don't remember the date. I'm not sure when we went back, because we went back for a week and then we went back to Lozhak. We were never safe to stay in the village because the Serbian police and army were on the Cesta hills by Geshtenja, and they were firing. We were never safe.

Q. I apologise. I'm reading from the transcript because I can't hear the interpretation. It's very weak today, the volume on the speaker. All right. So does that mean that you didn't go home or you did go home after a certain amount of time had gone by? And if so, when did you go home? ⁵⁹¹⁹

A. I don't remember the date.

Q. Well, do you at least know approximately, roughly how long you were away from home; a week, two weeks, a month, a year? How long did you spend away from home?

A. From 1998, we were never safe staying at home because of the police and army. Because of the Serbian police and army, on your orders, they were firing non-stop at the village of Recak from the Cesta hills. And we had to go to the hills and other places to find some sort of safety. Because the Serbian police and army, if they found us in the village, they would massacre as -- they would massacre us as they did on 15th of January, because 42 people were killed, and we can say what they did in the village of Recak on the 15th of January. This is the truth, Your Honour.

JUDGE MAY: Mr. Milosevic, you've now had the 20 minutes allotted to you for this examination.

THE ACCUSED: [Interpretation] How much more time do I have?

JUDGE MAY: You've had the 20 minutes allotted. You can ask one more question, if you want.

THE ACCUSED: [Interpretation] All right. Well, this isn't news to me.

MR. MILOSEVIC: [Interpretation]

Q. On page 13, you have a list of people who were killed in Racak on the 15th of January. Do you know that the names that you gave do not correspond to the minutes about the identification that was conducted? Do you know that the names that you gave, which I'm going to quote now. ⁵⁹²⁰ Muhamet Imeri, Kadri Syla, Arif Syla, Fahida Syla, Banush Azemi, Ahmet Zenuni, Muhamet last name unknown, Shaq Berisha, Njazi Imeri, et cetera?

JUDGE MAY: We can read this ourselves in the statement. The question -- the question is -- just a moment.

The question is related to the minutes of the investigation. How did you -- how did you make up this particular list? Do you remember the list which you made in your statement?

THE WITNESS: [Interpretation] Your Honour, could you repeat the question, please?

JUDGE MAY: Yes. You listed in your statement a number of people who were killed in Recak.

THE WITNESS: [Interpretation] Your Honour, if you allow me, I can give the names of the people who were massacred. Forty-two people in the village of Recak on the 15th of January.

JUDGE MAY: Yes. You've given the names and they appear in the statement. The question is: How did you know the names? How did you come to make up the list?

THE WITNESS: [Interpretation] On the 16th of January, I went to the hills myself and saw them. Some of them I saw myself. But because of the grief, I couldn't identify them all. They were mutilated.

JUDGE MAY: Very well. I'm going to call this to a halt. Mr. Tapuskovic, have you got questions for this witness?

THE ACCUSED: [Interpretation] May I just complete my question, please?

JUDGE MAY: Very well, but this is the very last question. You ⁵⁹²¹ can ask it.

MR. MILOSEVIC: [Interpretation]

Q. How do you explain the fact that your statement differs with respect to 15 persons from that which was established?

A. There are no -- there is no difference. If the accused wishes, I can give their names. On the 15th of January, 42 people were massacred. Allow me, Your Honour.

JUDGE MAY: No. You've given the answer. Mr. Tapuskovic.

MR. TAPUSKOVIC: [Interpretation] Your Honours, I just have one area to cover, and I should like to draw your attention to the following: It is page 14, and the last two paragraphs of the English version of the second statement.

Questioned by Mr. Tapuskovic:

Q. [Interpretation] Ms. Drita, your father, later on, did he tell you that the men were ordered to walk towards Bebushit hill, and if so, when? My question is, actually, when?

A. This was on the 15th of January.

Q. Did he tell you then that they had moved off there, headed in that direction without a police or army escort?

A. The Serb police was in ambush, was waiting for them. And the people didn't go in that direction because they could have been massacred like all the others. They went in different directions. They separated. They didn't go in that direction which the police said they should go, which the Serb police said they should go. ⁵⁹²² Hiding behind a wall, the Serb police were there.

Q. Therefore, all of them avoided the massacre, as you say here, that perhaps they survived the massacre in this way, that they managed to save their lives in that way, as you say.

A. The Serb police and army told the men to go up towards Bebushit hill. And so they set off in that direction, but they were lucky because there was a turn-off there, and they went in different directions. They hid in the ravines for five or six hours, I don't know how long, and then we were saved. They survived. Because the police, Serb, and army were up on the hill, waiting for them. But fortunately, they survived. That is the truth.

That is the truth, Your Honours.

Q. How many of them were there who were saved in that way?

A. I don't remember how many there were.

MR. TAPUSKOVIC: [Interpretation] And I should also like, Your Honours, in this connection, to ask the following question, one more question for Ms. Drita. And this refers to page 7. The end of the paragraph on page 7, the end of the last paragraph in the English version.

Q. In which you state, but it's not quite clear, that some members of the KLA from Racak were active in other villages as well and that in this way -- that that's how it functioned. That's how it went. That's how it was done. Is that right?

A. I don't really understand your question.

Q. All right. I won't insist. But I'm interested in knowing, Ms. ⁵⁹²³ Drita, the following: You say on the hill Kodra e Bebushit, which is the place where the massacre occurred, there were KLA soldiers there. That's what you state.

A. On Bebushit hill, there was a massacre on the 15th. When the massacre took place, I didn't see any KLA soldiers at all. There were only civilians there.

JUDGE KWON: I would like to assist the people here. If the witness could be given an Albanian translation, Albanian version. This seems to be page K0217209 and 10.

Ms. Emini, do you remember your answers to the question as to whether your father helped to dig the trenches which are on the hill? You said you don't know or whether you were not there at the time. So could you find the paragraph dealing with that? It's bottom of the page, front page, and it continues to the next page. I will quote: "On the hill, Kodra e Bebushit, which is the place where the massacre occurred, there were KLA soldiers there. They had trenches on the hill where they observed the activity in the village and on the other hills. The villagers helped to dig the trenches for the KLA two or three months before the massacre. I don't know how many KLAs were in the hills. They worked during the night, so I could not see them. My father and brother helped dig the trenches."

You wrote like this in your statement. Is it right or not?

THE WITNESS: [Interpretation] Yes, Your Honour. I maybe helped my father, but I didn't see exactly what they were doing. I may have helped him but I didn't see exactly what they were doing. Perhaps they were ^{5924 BLANK PAGE 5925} helping the army, but I didn't see. I wasn't there. I do not know exactly what they were doing up there.

JUDGE KWON: Thank you.

MR. TAPUSKOVIC: [Interpretation] Judge Kwon, that was precisely what I wanted to read out. Thank you very much. I have no further questions.

JUDGE MAY: Any re-examination?

MR. RYNEVELD: Just on that point, if I may. Re-examined by Mr. Ryneveld:

Q. Ms. Emini, in order to give that information to the investigators of the ICTY and confirm it in your statement, if you didn't see that, is that what you were told that happened? Did someone tell you that that's what they were doing?

A. I just heard about it. And my father told me that we have to help the army.

Q. Thank you, Ms. Emini.

JUDGE MAY: That concludes your evidence, Ms. Emini. Thank you for coming to the Tribunal to give it. You are free to go.

THE WITNESS: [Interpretation] Thank you very much for the invitation, Your Honours. Everything I told you was the truth.

[The witness withdrew]

JUDGE MAY: Yes.

MR. NICE: Your Honour, I think I was going to turn to the issues concerning the witness Barney Kelly next. When we parted a couple of days ago for want of more time, I distributed some law that I wanted to refer ⁵⁹²⁶ to and I had a few more points to make.

JUDGE MAY: Yes.

MR. NICE: So far as the law is concerned, I don't know if the Chamber has had an opportunity to consider the matters I handed in.

JUDGE MAY: We have, yes.

MR. NICE: For the record, and indeed when the usher's around I can even put it on the overhead projector, and in addition to other authorities with which I think the Chamber is familiar -- overhead projector, please. I was able to, with the assistance of Mr. Guariglia in particular, not surprisingly, I was able to draw to your attention a report from the Juntas trial which -- and dealing with the passages on the first sheet in reverse order, shows first how a commission report which preceded the trial proper, the CONADEP report, which we can see from the bottom of that page was admitted, and in the judgement of the Appeal Chamber, which was actually the Trial Chamber, the admissibility of that commission's report was dealt with in this way: "The information contained in the reports drafted by members of CONADEP on the basis of statements made by victims ... do not amount to testimonial evidence, because those statements do not meet the requirements established by military law for the declaration of witnesses. It is therefore unnecessary to the oath required by law [...]. However, the fact that these statements were not made under oath does not deprive them of their value as evidence, nor does the law prohibit their consideration. If appropriately introduced evidence [...], the influence of those statements in the outcome of the case, its potential for creating a sense of certainty in the trier of the ⁵⁹²⁷ fact, will depend on a careful weighing of these statements within an entire set of factors of different and diverse natures. Furthermore, it should be pointed out that the Court is not going to consider a fact as proven on the exclusive basis of the evidence furnished by the CONADEP..." That of course, entirely fits with the proposition I've been advancing generally, proposition two of my three, that the sort of material that may be produced by witnesses such as Mr. Kelly can provide certainty, or indeed can show reason for doubt, which is why it is so valuable.

JUDGE ROBINSON: Mr. Nice, there is a big difference, as I see it, between the CONADEP report and Mr. Kelly's report. The CONADEP report actually contains statements from witnesses, whereas all that Mr. Kelly does is to give a summary of what the witnesses told him. There are no statements as such.

MR. NICE: But, Your Honour, the statements are there for production and reading and indeed we would urge the Chamber to take all the material, if it had the time to do so, and to pursue the course that other Chambers in this Tribunal are doing which is of reading these statements. The summary is there as a guide, and of course any of those statements can be called up and referred to. So in our respectful submission, there is no distinction.

It is not, of course, the very short statement that we're really relying on. It's the longer report and, footnoted as it is to the statements, they can all be produced.

On the top half of the same page, which is a part of the judgement ⁵⁹²⁸ of the Appeals Chamber itself rejects an objection against the admission into evidence of the preliminary investigation dossier. I'm reading from the paragraph now from the parentheses at the bottom: Rejecting an objection against the admission into evidence of the preliminary investigation dossier containing statements of numerous witnesses based on lack of adequate opportunity for cross-examination, and it sets out above how the reasoning of the Court went.

So that's again very similar. I've drawn to your attention, and I can now deal with this in summary, that in Dutch criminal proceedings - and that's over the page but we needn't look at it on the overhead projector - officers' reports constituting effectively expert evidence may be admitted and how, under Spanish law, the -- there is a general provision, third line down -- fourth line down on the second sheet before Your Honours, that a court is entitled to admit as evidence and examine a police report in toto, including documents contained therein.

I've drawn your attention to passages in the Rutaganda and Bagilishema cases, and I hope that they will be of assistance. And the Chamber knows that summarising witnesses have appeared before Chambers here in the Jelisic case in particular and the Krstic case, giving summaries of material contained in the statements of witnesses. Can I turn from that brief addition to the law before you to make just a few more points?

His Honour Judge May raised as a proposition for consideration that there was a difference between what Mr. Kelly was doing in his ⁵⁹²⁹ summary and what was being done, for example, in the OSCE's exhibited document As Seen As Told, or indeed, in the Human Rights Watch document Under Orders. Incidentally, both documents which don't themselves produce the whole statements of the witnesses to whom on which they're built but refer to them in the way that Mr. Kelly has done. And I think Your Honour raised this possibility, and I'm afraid I haven't been able to draw up the precise words on the transcript, but there was a difference because the investigators were in some way a party to the litigation and that would distinguish the position. I fear I must reject that proposition completely and make the following points: The investigators of this Tribunal, appointed under the same process that appointed the Registrar, I think Judges, the Prosecutor herself, and the lawyers, are professional men doing a professional job. And absent good cause, there is no more reason to impugn their work --

JUDGE MAY: It's not a question of impugning them, Mr. Nice, or questioning their professionalism. Of course not. But the fact is they are a part of your team. It would be something like one of your lawyers going off and summarising some evidence. I don't see the distinction. There is -- there is no aspersion to be cast on them, but it's a question of the evidence being collected for a purpose by an employee of the Prosecutor, and one which, in the case of the OSCE, is not being produced for any particular purpose but simply as a report on events. It seems to me that there's a distinction between the two.

MR. NICE: Well, Your Honour, I'm grateful for that clarification. Of course, the parties to the litigation, if there are parties to the ⁵⁹³⁰ litigation, are not the officers but the Prosecutor herself and/or the lead lawyers, and the Court should know that of course the conventional boundaries between what lawyers do and what policemen do in certain countries are simply not reflected here. There's a much greater merging of roles, and the integrity of one is probably the integrity of all. And it seems to us, with respect, that the position of the statements taken by these investigators matches entirely, for example, what we see where the Spanish law permits in the dossier, or other countries do. Other countries, of course, with the civil tradition where I think the proximity of the Prosecutor to the Bench is closer and more readily understood. But certainly there is no reason whatsoever evidenced or guessed at for doubting the independence and integrity of the work of the investigators in the same way there is no reason to doubt the independence and integrity of the Prosecutor herself or those of us who conduct these cases. And accordingly, the material that those investigators produce, statements, are entirely as acceptable, in our submission, or should be, as statements taken by non-professionals --

JUDGE MAY: Why don't you go into the witness box and make the -- make the same statements? No one is going to question your integrity, but it's your case that's being produced. And it doesn't seem to me to have any probative value.

MR. NICE: Your Honour, I'm entirely -- I'm afraid I can't follow that point. Here there are investigators. They take statements on behalf, frankly, of this court. They take them independently and with integrity, and they present them. And let's just see exactly how valuable ⁵⁹³¹ they are. There's a sort of -- I see the accused is amused. The underlying proposition must be, from Your Honour's observations of a couple of days ago, that there is somehow less integrity or something less satisfactory about statements taken by these witnesses and statements taken by human rights workers for different organisations. Well, now, however masked the underlying proposition must be that there's something -- or there's potential for wrongdoing by the investigators - I suppose in the ultimate analysis that somebody is not telling the truth, there's been quite a lot of evidence in this trial already that people aren't telling the truth. Everybody's observed that the early Albanian witnesses seemed rather shy about acknowledging the presence of the KLA. Maybe it's going to go on. Maybe it's understandable. It certainly doesn't invalidate the rest of their evidence. And where is found the material to show that they may not have been telling the truth? Why, it's to be found in the statements taken by the investigators time and again. That's where integrity has been found, and so far there hasn't been any sustainable allegation -- we are not even aware of any allegation of lack of integrity in those statements. So that --

JUDGE KWON: May I? But, Mr. Nice, what is important is that we have to do the right things, or just things. But also what is important is that what we are doing should be seen or appear to others or to third parties to be just. We do not at all doubt the integrity of the investigators, but they are part of your -- the Prosecutor's team, and simply the third parties will not see them as an independent from the ⁵⁹³² Prosecutor. That's the one issue.

So take -- so to speak for myself, the Chamber is not against accepting any hearsay or summarising witnesses. Take Fred Abrahams. He is a man from Human Rights Watch who made some intensive interviews with a lot of victims. So what we rejected with regarding to his evidence is only the redaction of the identities of the source of information. But to speak for myself, we are ready to accept him. But this Mr. Barney Kelly is quite different. He is a part of the Prosecution's team. That's the only reason we are thinking of.

MR. NICE: I'm helped again to know how the thinking of the Chamber is taking shape. I would not necessarily accept at all that the wider audience would regard it as surprising for a Chamber to accept statements taken conscientiously by investigators. I think a wider audience might regard it as surprising that a Chamber would be prepared to operate on a very limited sampling of material and not even consider, for the three quite carefully defined purposes I proposed, the available body of written and signed statements of people who have been willing to be witnesses in this case.

JUDGE MAY: What we're ruling on is the probative value of a summary of evidence made by a member of the staff of the Office of the Prosecutor. We do not for a moment question his integrity or his professionalism. None of that. That's not the point. The point is: What is the probative value of a summary which is little more than an outline of the Prosecution case? I revert to the point: It is of no more probative value than the statements which you ⁵⁹³³ make - or counsel makes, not to personalise it - from his or her place. It's merely a summary of the Prosecution case, and of course, this witness goes further and produces the conclusions.

Now, it may be that if in due course you're going to invite us to look at the statements, it may be that we would have to consider that. That's a different proposition. At the moment, what we're concerned with is looking at the statement of Mr. Kelly.

MR. NICE: Of course, the particular conclusions are not what I've ever been particularly aiming to have. I'm much more concerned not to have, as Your Honour characterises it, a summary of our case but a synthesis of the material, which is what he provides and indeed is pretty much what the other documents that we've been considering, the independent documents, as the Court would perhaps characterise them, provide. But if one looks at Mr. Kelly's document when he synthesises and to that degree summarises what is said, he advances particular propositions, footnotes the witness or number of witnesses who sustain that proposition, and moves on to the next part of the narrative. But it's not in any sense our case, it's simply a summary or analysis of what the witness statements say. Now, if the Court is disposed to take all the witness statements and to read them, which it hasn't been willing to do so far --

JUDGE MAY: No, we haven't.

MR. NICE: -- then an entirely different position arises because we will then be in a position, and basically it will be almost certainly Mr. Kelly in the case of Racak because he's the chap who knows most about it, but we would be then in the position, given adequate, given adequate ⁵⁹³⁴ resources, to summarise what the witness statements say, advance them with the witness statements to the Court, and then they can be all subject to challenge in exactly the same way as Mr. Kelly's would have been. So that if the Court is prepared to take witness statements and read them all - and there are a very large number of them, 60 for Racak - then to that extent, the problem would be overcome.

Can I just make my last few points and then I'll close? It's an important point, though. I've dealt with the fact that in fact this sort of material is valuable because it shows lies, or untruths, shall we say. The statements are probably -- the underlying statements are taken by professionals. They are longer and more detailed typically, we were told, than the statements taken for As Seen As Told, and I hope the Court will remember that the third of my points of the value of this sort of material is that it provides the Court with a ready reckonor of where to go when the Court's concerned that it needs more evidence. I noticed this morning, because I was following the proceedings elsewhere, the Court was interested to know perhaps where it could find out a bit more from verifiers. It may not be dealt with in this report but that's the sort of issue that will occur to the Court and the Court will need to know where to look for it.

Summarised, analysed, synthesised material, however you describe it, of this kind is invaluable to it and that's always been one of the reasons I've advanced as to why this will help.

Of course its principal, or one of its principal values in a trial like this is that it's going to save time. When we listed witnesses down, ⁵⁹³⁵ as you've heard in the case of Racak, from the 30 to 20 to 12 to 9 to five and then from five to one live and the other four to be fully subject to the provisions of 92 bis, it was on the basis that the Chamber could be provided with some other material, the summarising material, that would enable you to have a complete view of what other material would suggest, to fit in the limited amounts of live evidence material you could have. Now, if there is no other way of getting the full material before you, as the witness explained and as is probably now absolutely clear, on five witnesses with this number of scenes and with this number of issues that the accused is raising, it simply wouldn't be possible to form a comprehensive view and to give a comprehensive view in judgement of what happened in Racak because you simply won't have evidence for the largest number of scenes. You won't be able to deal with the order of events it may be. We will have to review the evidence at the end of exercise, but that's a concern.

And we're coming to the two other indictments which, of course, are larger, each of them, probably in scale and we've got, for example, Vukovar or Dubrovnik, and I've asked my learned friend Ms. Uertz-Retzlaff, how many is the minimum number of live witnesses that would be required to give broadly comprehensive accounts of those events.

JUDGE MAY: This is -- this brings us to the heart of the problem. What you are setting out to do is to prove a case in detail. This is essentially a command responsibility case. I use that term generally. But you are setting out to prove extremely detailed events and a large number of them. ⁵⁹³⁶ Now, clearly there's a limit to the amount of evidence which the Prosecution can bring or the Trial Chamber can receive. There is a finite amount, as you yourself accept. And this is very much at the heart of the difficulty of this case.

JUDGE ROBINSON: Can I --

MR. NICE: I entirely agree.

JUDGE ROBINSON: Can I just say that I entirely agree with Judge May that that is really at the heart of this issue. It's the scope of the Prosecution case.

I think if any lesson is to be learned from the experience of this Tribunal - and I hope the International Criminal Court will learn it - is that there will have to be a limit to the evidence that is led in cases of this kind involving mass violations of international human rights law. You may indict as much as you wish, but there will have to be a limit as to the evidence that is actually led in court. Otherwise, courts will not finish. The prestige of tribunals of this kind will be at risk, because we will not get through the work.

Now, to get back to the particular issue. The remarks that I made earlier were really within the context of Barney Kelly's report, which is a summary of what he heard from witnesses. There are no statements attached to it. And I pointed to that as a distinction between his report and the report in the Argentina Juntas case.

Now, you say the individual witness statements are there for us to read, and there are many; 60. It may be that -- and I'm speaking for myself -- it may be that we could look at those statements which relate to ⁵⁹³⁷ the incidents covered by the five witnesses, and one may be able to -- to assess whether they corroborate -- they are potentially corroborative, but I don't insist on the word "corroborative." I would just put it no higher than to say we might be able to look at those statements which relate to the same incidents because they may be relevant to it. But as for the other statements which do not relate to the five live witnesses, I would tend to the view that there wouldn't be any possibility of admitting them. That would clearly fall within the -- the bounds of what this Chamber held in the Tulica decision. But so much of the statements as relate to the five live witnesses' evidence, we may be able to look at that and to see to what extent those could be admitted. I'm speaking for myself. But again, I stress that at the heart of the issue, really, is the scope of the Prosecution's case. And the lesson to be learned, I see, from this Tribunal's experience is that not every case of admittedly serious violations of international humanitarian law can be prosecuted. Otherwise, we'll never finish our work.

MR. NICE: If I may deal just with the last two observations and one more point, I'm done. I agree with the underlying principle of both Your Honours' observations, although I respectfully differ from His Honour Judge Robinson's last propositions.

It is precisely because -- no. Start at the beginning. These are very grave allegations involving massive criminal activity over a wide geography and a large period of time. That is the allegation, and of course, it cannot be cut down so as to be unrecognisable. It can be dealt with, of course, by a proper sampling of ^{5938 BLANK PAGE 5939} events, providing one can show that they are truly a sample and that one could can prove matters of widespread or systematic, as appropriate. As I said on an earlier occasion addressing timetable issues to this Court, there may be a difference between the Chamber and the Office of the Prosecutor as to what is a sufficient sample, but on any reckoning, you can't go from one or two selected incidents and simply assume, in the absence of concessions or agreement by an accused, that this has been happening on a widespread basis and over a wide geographical area. It can't be done. You have to have, in some way or another, a reasonably sufficient sample. And if it isn't reasonably sufficient, then the Prosecutor might simply not be able, in all conscience, to argue the case that has been indicted and confirmed. And it was with that in mind that our approach was, and we would respectfully say correctly was, to make a selection, which we did, to select further within each allegation being made one or two live witnesses, hoping to have the balance taken fully under the provisions of 92 bis. Of course they're now not fully under 92 bis because cross-examination is allowed, with consequences on the timetable. That was our plan. And then to enable the Chamber to see how those allegations fit within the overall narrative for the area and the overall narrative for the wider geographical area by providing summarising witnesses who could quite literally set the scene. But without somebody setting the scene, it will be guesswork or a leap of faith. And Racak, as I said, is the paradigm example. All these different areas where things have undoubtedly happened and with our witnesses, five, which is probably as many as we can possibly justifiably call, given the time constraints, ⁵⁹⁴⁰ we're only able to cover three of them or four of them. That was our problem and that was our resolution.

And my last point, if I can make it, as I can see Your Honour wants me to draw to a close, as do I, where we turn to, for example, Vukovar or Dubrovnik, which as I say, Ms. Uertz-Retzlaff has looked into and suggests would each take 20 plus or 25 plus witnesses, there is no guarantee - I haven't yet investigated it - that there will be, as His Honour Judge Kwon perhaps was describing it, independent documentation of the kind against which the live evidence can be checked. There may be. In some cases, there may not. So if in those cases, Vukovar or Dubrovnik or Sarajevo, we're down to one, two, three live witnesses because there's no provision for setting the scene, how will it be possible, with the best will in the world, for us to offer argument that is comprehensive in its scope and for the Chamber to return judgements that are comprehensive in scope? That's our concern.

JUDGE MAY: Thank you. We will adjourn now. Twenty minutes.

--- Recess taken at 12.21 p.m.

--- On resuming at 12.42 p.m.

JUDGE MAY: Mr. Kay, I don't think we need trouble you on this particular issue.

The Trial Chamber has considered the submissions made by the Prosecution before the adjournment. They do not affect the ruling which we are about to give. It should be stressed that the ruling is on the narrow issue as to whether we accept the statement and report of Mr. Kelly. It does not concern the rather wider issues which were also ⁵⁹⁴¹ canvassed during argument before the adjournment. Analysis of the evidence given, or proposed to be given, shows it to be a compilation of material about the Racak incident, including the witness's summary of the evidence contained in a great many witness statements and documents and his conclusions upon the evidence. The Trial Chamber has earlier ruled that such evidence is not admissible.

This related to evidence which it was proposed should be given by Kevin Curtis, which the Trial Chamber excluded, characterising it as the evidence of an investigator who had read a great many statements and come to various conclusions. The Trial Chamber excluded the evidence on the ground that it was hearsay evidence of no probative value, which amounted to no more than a repetition of the Prosecution case. This is in the transcript at pages 672 to 673.

I would add that the Chamber was following its own decision in Kordic and Cerkez, the Tulica decision of the 29th of July, 1999, and the Chamber subsequently excluded similar evidence in this case, that is a report of an OTP investigator, John Zdrilic, from the Bela Crkva binder, transcript page 3499.

A further reason may be given for excluding this type of evidence, at least in relation to the conclusions of the witnesses. That is that for a witness to give his or her conclusions upon the evidence is to trespass on the function of the Trial Chamber. It is for the Trial Chamber to decide which evidence to accept and which to reject and what conclusions to draw from the evidence. Therefore, any evidence which ⁵⁹⁴² trespasses on those functions is normally to be excluded. Mr. Nice now submits that we should reconsider these earlier decisions and admit at least those parts of the statement where the investigator summarises the evidence. He points out that this relates to a significant incident in the case about which the field of evidence was too large to be considered in the time available but which could not be dealt with properly by a limited number of witnesses. Therefore, the investigator's summary would have some probative value which the Chamber could determine.

Next, he relies on the OSCE report which has been admitted in this case, Exhibit 106, which refers in the summary and in the section on Stimlje to findings about this incident based on interviews with witnesses. This, he said, provides a parallel for the admission of the investigator's statement. He also relies on principles from the Argentine Juntas trial for which extracts have been provided from the Human Rights Law Journal, Volume 8.

In that trial, objections were rejected relating to the admission into evidence of the investigation dossier and the report of the Commission on Enforced Disappearances. Both of these contain the statements of numerous witnesses, but it was pointed out that the Defence had access to all documents and could call evidence to rebut them and that the trier of fact would have to decide with care what weight to give to them.

We were also referred to provisions of the criminal procedure of the Netherlands and Spain, which allow for the use of investigators' and ⁵⁹⁴³ police reports in evidence. However, these procedures, it must be noted, take a different form to the essentially adversarial proceedings in this Tribunal.

Dealing, then, with the submissions of the Prosecution, first the OSCE report. There is a crucial difference, in the view of the Trial Chamber, despite the arguments advanced this morning by Mr. Nice, between that report and the investigator's report; namely that the OSCE report was produced by a body independent of the parties in the case. On the other hand, the investigator's report, in the view of the Trial Chamber, does not have that quality of independence since it was prepared for the very litigation with which we are dealing. As was pointed out in argument, it is as though counsel or a lawyer for the Prosecution had summarised the statements in the form of a case and put them to the Trial Chamber. Therefore, the OSCE report is not a precedent for the admission of this evidence. Likewise, the Spanish and Dutch procedure cannot be relied on.

The same cannot be said of the dossier and report admitted in the Argentine Juntas trial. However, the dossier appears to have contained the statements of the witnesses and, therefore, involved a different procedure to that contemplated here while the report appears to have been more akin to the OSCE report.

In any event, we are not persuaded by these arguments that we should depart from the previous rulings of the Trial Chamber or the reasoning set out in them. We accept that the incident at Racak was a significant incident. We are also conscious of the constraints placed ⁵⁹⁴⁴ upon the Prosecution by the limitation of time, but some limitation is inevitable since this incident is not being considered in isolation but as one among a great many which make up the subject matter of this trial. In these circumstances, we think it not unreasonable for the Prosecution to rely upon five witnesses, together with others, who deal with the incident in their evidence. Should significant issues be raised during the Defence case, it will always be open to the Prosecution to call further evidence in rebuttal, not that we are encouraging this course. It follows that this consideration is not one which leads us to depart from the principles referred to earlier. Accordingly, the evidence will not be admitted. And I add for completeness that reference was made to the fact that similar evidence was admitted in Krstic. However, it appears no challenge was made to the admissibility of the evidence in that case, and we have not been referred to or found a recent decision on the topic from which to derive any assistance.

Mr. Nice, that is our ruling. Mr. Kelly has given some but very limited evidence.

MR. NICE: Yes. I'm not sure that there's any particular purpose in calling him to give further evidence. He may or may not be cross-examined on what he's given already, of course. I wonder whether he might be able to give some material assistance in relation to photographs, some of which he's taken himself, some of which are photographs he's reviewed of others, but on balance and given the pressures of time, I thought it better probably to leave his evidence where it is so far as evidence in chief is concerned, he always being available to assist with ⁵⁹⁴⁵ documents that are contained in the Racak binder if the Chamber needs assistance.

Therefore, it's a matter whether the accused or the amici wish to cross-examine him that will determine whether he's physically brought back to court. But before he is, may I say, as I indicated several weeks ago, that following this application, if it was ruled against, I would invite the Chamber to make appropriate certification for appeal. I think since then the Rules have been changed slightly. I've just had sight of the new Rule, 73(B) which requires certification before an interlocutory appeal can take place. Certification depends on there being: "An issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and to which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings."

Your Honour, I would observe first, as Your Honours very recently observed, there simply is no binding -- I beg your pardon. There is no articulated decision, apart from that of this Chamber, on this topic and certainly none from the Appeals Chamber. Accordingly, there is need for such guidance.

If the position taken by the Prosecution were to be sustained on appeal, this would have a very significant effect on the conduct of the remaining parts of this trial and of other trials and would have a very significant effect on the time that such trials might take. Equally, if the ruling is definitively against us, that determines in a conclusive way the parameters by which the Prosecution can judge how much evidence it ⁵⁹⁴⁶ needs to call.

If the matter is left unresolved and there are convictions returned which in due course are taken on appeal, there is the problem of the sufficiency of evidence which might arise in relation to one or other part of the case, and the Appeals Chamber might then say, "Well, if it had been possible to take summarising evidence, this problem would have been overcome, but it's now too late."

So for all those reasons that I've carefully forecast in advance, we invite you to say this is a case suitable for certification, and if so certified, we will press on an appeal to achieve an early answer on the point.

JUDGE MAY: Very well. We'll consider that.

MR. NICE: Thank you very much. I'm in the Chamber's and my learned friends' and the accused's hands as to Mr. Kelly, but before the next witness comes and after that there are a couple of administrative things that will save time.

JUDGE MAY: Mr. Milosevic, we have excluded the report and statement of Mr. Kelly. He has started to give evidence. He gave some evidence, I think, about the map, and that really was the extent of it. Do you want to ask him any questions about that evidence? Any cross-examination will be limited to that since the report has been excluded.

THE ACCUSED: [Interpretation] I should like, first of all, to comment on this issue, the issue as we have seen Mr. Nice devote a whole hour to, because quite obviously there is an effort here, an endeavour on ⁵⁹⁴⁷ the part of the opposite side to both be the Prosecutor and the witness and to testify himself as to the --

JUDGE MAY: I'm going to stop you because we've ruled, and we've ruled against them. So there's no need for particular argument on this topic. We will deal -- we will return to the more general issues in due course.

Now, the issue at the moment is whether you want to cross-examine Mr. Kelly or not. Is there anything you want to ask him about his evidence? Not about anything else, just about his evidence, or can we get rid of him?

THE ACCUSED: [Interpretation] Please. Is it clear to you that along with all the arguments put forward by you and which are without a doubt justified, that is to say to do away with this kind of testimony, that we are talking about a very malicious activity, because --

JUDGE MAY: No. We're not prepared to hear argument along this line. We've ruled on the particular matter.

Now, we'll hear more general argument about the case tomorrow. Now, do you want to cross-examine Mr. Kelly or not?

THE ACCUSED: [Interpretation] Please. Would you answer one question: As Mr. Kelly is here and as he has drawn maps, on those maps he has denoted various places as being places of crimes. Now, is it his job to -- when he shows something at first sight to be very benign on geographic maps, he uses the maps to qualify things as being crimes, although he cannot be called here to qualify whether something is a crime or not, especially when we are dealing with the clash between the legal ⁵⁹⁴⁸ police forces with terrorist groups. So he's jumping the gun by qualifying them and saying on the map you have here the site of crime, one, two, three, and four, et cetera.

So implicitly, he is wishing to impose to the people sitting here and to the public that it is -- we are dealing with a crime. And I must say that I completely agree with Mr. Nice that it is impossible to prove this false indictment and also that it is impossible to prove and to defend Walker's trick with Racak.

JUDGE MAY: We are going from the point. I take it, then, that you don't have any questions you want to ask Mr. Kelly. We have in mind your point that you're -- the point that you're making about the map, of course we have it in mind. It is for us to decide whether these were crimes or not. We have that in mind.

THE ACCUSED: [Interpretation] Please. Just one more comment. I have one more objection to make and comment. May I expound it, please?

JUDGE MAY: Yes.

THE ACCUSED: [Interpretation] And it has to do with the testimony of Fred Abrahams that Mr. Kwon mentioned. I think that the testimony of Mr. Fred Abrahams is even more blatant example of somebody being not suited to testify than the case of Mr. Kelly himself. I don't know whether Mr. Kwon read the statement carefully, but from the statement it emerges without any doubt at all that he too is part of the indictment team, prosecuting team.

JUDGE MAY: We'll get to that. We haven't got to Mr. Abrahams yet. I take it there are no questions for Mr. Kelly, he can be released, ⁵⁹⁴⁹ we'll go on to the next witness.

MR. NICE: Yes. I said -- a couple of administrative things that we ought to deal with. First of all, there's the outstanding the newspaper contempt issue, and we really can't let that --

JUDGE MAY: We have that in mind.

MR. NICE: I don't know if you want me to address you about it any further as to your powers. I handed in a copy of the -- of the order in Blaskic, and of course we are very concerned that if steps aren't taken to impede this sort of action, it may be repeated with the effect, if not the purpose, of dissuading other witnesses from giving evidence. That's our concern.

JUDGE ROBINSON: Mr. Nice, yes. I think we are all in agreement it's a very serious matter. Do you have anything in writing, any submissions, rather than making them orally?

MR. NICE: No, I don't. And I would say that the only power that we can identify that may lie in the Chamber to cause the editor to come directly to this Chamber, which is what would happen, of course, in a domestic jurisdiction, may lie under 77 -- I beg your pardon. Yes. 77(C)(iii) if the Chamber initiates proceedings itself because if it were to do that, then it could summon an individual as part of its own proceedings. The alternative, of course, directing us to investigate matters, will, I think, inevitably bring some delay in that sort of action. And in Blaskic, of course, the order operated as a request to the state to take action and provide information.

So that looking through the Rules carefully and trying to find the ⁵⁹⁵⁰ power other than any inherent power to summon the editor to explain this most flagrant breach would appear to lie and only to lie under 77(C)(iii) if the Chamber initiated proceedings itself. But that's about as far as I can go, in addition to what the Blaskic order itself reveals, as a possible way forward. It appears this has not happened too often in the past or not happened too often in a way that has led to court action in a way that we've been able to track down.

So that's that, unless there's anything more you want from me on that.

JUDGE ROBINSON: We are looking at the matter very carefully. One has to consider not only the legal issues but also the more pragmatic considerations, and we'll take account of all the submissions that you've made.

MR. NICE: Thank you very much. K12, we are working on the basis that he is not a witness who may be subject to the provisions of 92 bis, and he, for reasons known to the Chamber, is timetabled for Monday. I have wondered whether I should try and juggle his appearance, his attendance with another day, but I won't. He'll be a Monday witness for particular reasons. I hope that we may be able to start and even finish Mr. Abrahams tomorrow for reasons to which I will come. I think he can stay until Monday and I'll just have to try and persuade him to stay until Tuesday if necessary. That brings me to Mr. Abrahams. His Honour judge Kwon mentioned this morning one or two historical procedural matters, and in short, I think there's no reason not to make this plain: The first of his two ⁵⁹⁵¹ statements has some redactions on it which are clear from heavy black obliterations of text. All that has been obliterated is the names of people who provided him with information. It is appropriate for us to try, first of all, to obtain the permission of those obliterated named people to -- to obtain the permission of those people to name them publicly in this trial. Alternatively, to obtain a waiver from Human Rights Watch in respect of their normal procedures. So far we have been successful in that endeavour in all bar two names. So there only two names of passages of evidence we probably would not wish to call in any event. And so in respect of that statement, even if we don't get the other two consents by people working in the field at this very moment, I'm going to ask that the Chamber will hear the evidence. The second statement was served and we have a receipt to this effect, I think, in February of this year, and it's mostly the second statement we would be relying on, in any event.

So that's the position about Mr. Abrahams in case that is helpful advance warning.

JUDGE MAY: Is this a 92 bis witness you're asking for?

MR. NICE: We had asked for him to be 92 bis'd informally. I've been told probably not but I haven't been given a formal answer.

JUDGE MAY: We must look at it; I don't know.

MR. NICE: Thank you very much. And can I seek your assistance rather delicately in relation to another topic which could be dealt with ex parte but ex parte hearings are to be avoided wherever possible and, in any event, take time to organise. ^{5952 BLANK PAGE 5953} There was some reference this morning to Rule 70 witnesses. It may be - and if this is too oblique then I'll have to deal with it in another way, possibly by an ex parte hearing - but it may be that the Chamber would feel able to indicate, in light of its known practice in this or in other cases, whether it would grant the following order in the most general terms to a supplier as -- a Rule 70 supplier of evidence. The request, in the most general terms, would be to this effect: That the representative of the supplying country be present in court. I'll set that on one side but that's part of the request. That the Prosecution's questioning be limited to a detailed outline agreed by the providing government. Again that needn't trouble the Chamber but I set it out for completeness. That the scope of the cross-examination be restricted to the scope of direct examination. But more important, that an order be obtained in advance of testimony to that effect. Now, if the Rule 70 agreement between the Office of the Prosecutor and the provider were in place, the issue is would the Chamber be minded to give advance -- an advance order that those measures would be operative or would it want always to deal with such measures on a case-by-case basis when the witness is in court? The answer to that question might enable me to speed up certain procedures.

JUDGE MAY: Very well. We'll consider that matter. Yes. We'll have the next witness, please.

MS. ROMANO: Your Honour --

THE ACCUSED: [Interpretation] May I make a comment, please? In the statement itself, the statement of Abrahams, it says that on two ⁵⁹⁵⁴ occasions he was engaged by the Prosecution, by the OTP, in the year 2000 and 2001 when, as he himself says in his second statement, he worked on the analysis of the indictment and research with respect to the indictment. That means he was professionally engaged by the Prosecution, by the OTP, to work on that matter. So therefore, he is part of the indictment team, and in that respect, this is even more -- a more obvious example of unsuitability, because he worked with the Prosecution on the indictment. He is somebody who took an active part in the drafting of the indictment itself and also then went on to do work on its analysis and research.

That means that Mr. Nice here, to all intents and purposes, is testifying about his own observations and his own accusations. It would appear -- it would be like him changing the microphone and asking questions in his place and then going to answer them in the witness's seat. I think it is quite clear that Abrahams, in that respect, as part of the Prosecution team, which he himself confirms professionally in 2000 and 2001, he did this work, so this is -- places him in an even worse position, more unsuitable than Kelly whom you rejected a moment ago. And let me also remind you that with the last witness, that is to say with General Maisonneuve, who is a general, who was in Kosovo and Metohija, who was an eyewitness, you did not allow him, permit him to answer my question which had to do with his opinion. And now somebody who is not an eyewitness here and somebody who is neither an eyewitness nor an expert but who is an active participant in the indictment team, you are giving him the possibility of presenting his views here and testifying. I ⁵⁹⁵⁵ think that is such a blatant and obvious impermissible manipulation which the Prosecution is availing itself of that you would have to react to that. And especially - and this is the last thing that I have to say and the last thing that the Prosecution mentions - he is to testify in keeping with Rule 70, which means that he will be presenting various allegations and quotations and that the persons that gave him these -- told him this, that they are protected and that he cannot say how these sources of information was used. So these secret witnesses and secret information and all the rest of it --

JUDGE MAY: Mr. Milosevic, I'm going to cut you off because these are all matters which can be dealt with in due course when he comes to give evidence. We understand from Mr. Nice that in fact the point about the information is to be covered. But let us now have the next witness.

MS. ROMANO: The next witness is Avdiu, Bilall Avdiu. I would just like to inform the Court that the witness is a very simple man, and he does not have -- he has difficulties for reading, and he won't be able to read the declaration. And maybe also to inform the accused that the questions also need to be simple, otherwise he will not understand.

[The witness entered court]

JUDGE MAY: Yes. Mr. Avdiu, can you hear? Can the interpreter read the oath, please. And, Mr. Avdiu, if you would repeat it after the interpreter.

Yes. Can the interpreter read the oath, please.

THE WITNESS: [Interpretation] I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth. ⁵⁹⁵⁶

JUDGE MAY: Thank you very much. If you would like to take a seat.

WITNESS: BILALL AVDIU

[Witness answered through interpreter] Examined by Ms. Romano:

Q. Witness, your name is Bilall Avdiu?

A. Yes.

Q. When were you born?

A. In 1947.

Q. And were you born in Racak?

A. In Recak.

Q. Do you live in Racak?

A. Yes.

Q. Mr. Avdiu, you gave a statement to the Office of the Prosecutor on the 30th of November in 1999. Do you remember?

A. Yes.

Q. And on the 28th of May, 2002, you attended a meeting with a presiding officer of this Tribunal and a copy of your statement in the Albanian language was read out to you. Do you remember that?

A. Yes.

Q. At that time, you had an opportunity to review, and do you agree with the content of your testimony?

A. Yes.

MS. ROMANO: The Prosecution submits the statement and the attachments into evidence. ⁵⁹⁵⁷

JUDGE MAY: Yes. Exhibit number.

THE REGISTRAR: Prosecution Exhibit 187 for the unredacted and 187A for the redacted version.

MS. ROMANO: As a clarification to the Court, his statement has two attachments -- sorry. His statement has two attachments. Attachment A, the photographs that the witness provided and where he shows his house and several places in Racak. And these photos are the same photos that are contained in the Racak binder, tab 8.

And the attachment B is photos of vehicles that were identified by the witness.

The summary of -- the summary of witness's testimony is the following: He's a Kosovar Albanian who is a survivor of the incident in the ravine in Racak in the municipality of Stimlje on 15 January, 1999. He states that towards the end of 1998, there were two attacks on Racak by Serbian police who were positioned on the hills surrounding the village. There was no KLA presence in the village at that time. No one was killed during these offensives but two civilians were injured and several houses were destroyed or damaged.

The witness states that the police wore blue camouflage and plain blue uniforms and the VJ soldiers wore green uniforms with camouflage. The police and military vehicles, APCs and Pragas that the witness observed at the Cesta Hill prior to and on the 15 January 1999, are identified on the attachment B of his statement. On 15 January 1999, at 7.00 in the morning, the witness woke to the sound of gunfire and explosions in the village. He realised that the ⁵⁹⁵⁸ village was being attacked and took shelter with his son in Faik Limani's barn. His son was shot in the left leg as he was entering the barn. There were five men there from the village, all of whom were unarmed and in civilian clothing. They all left the barn and went to Sadik Osmani's house where they joined other men from the village. About 25 police arrived, took all the men out of the barn and searched them. Their ID cards were taken and the police commenced beating them with sticks and other instruments. They were cursed and threatened that they would be killed. VJ soldiers were also present.

The men were all ordered to climb the hill to the ravine. When they got there to the ravine, the witness saw uniformed Serb police who shouted and cursed at them. The Serb police then opened fire on the men and killed them.

The witness fainted for about five hours in order to stay alive. He names the victims and survivors and checked some of the victims for signs of life. He spent the night in the forest with the other survivors. The witness states that all the men in the ravine were civilians and were not wearing anything that could be mistaken for a uniform. Most were either young or elderly.

No further questions.

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

Q. [Interpretation] In your statement, you said that two offensives were carried out against Racak from the end of 1998 until the 15th of January of 1999. Can you tell me, when did these offensives take place? ⁵⁹⁵⁹

A. At the end of the year 1998, this happened. The Serbian forces and the Serbian army, with the army tried to enter the village, but there were no KLA soldiers, and they didn't --

Q. And was there an attack on the village before the end of 1998?

A. They came in and burnt the houses, about 65 houses. And there was no KLA, but they burnt the houses. This is what Serbian forces and the police did.

Q. I'm asking you -- please pay attention to what I'm asking you and reply only to that. Was there an attack on Racak before the end of 1998? Was there one, for example, in the summer of 1998?

A. There was an attack, but I'm not sure of the date.

Q. Well, was there an attack in the summertime of 1998?

A. Yes.

Q. Does that mean that that was the third attack? You said that there were two from the end of 1998 until the 15th of January. So this other third attack took place before these other two?

JUDGE MAY: The witness may well be confused by that. Mr. Avdiu, just tell us, if you would, how many attacks in all there were by the Serbs in 1998 and 1999.

THE WITNESS: [Interpretation] Twice in 1998 they attacked. And on the 15th of January, they entered the village and surrounded the village at night. And on the morning of the 15th at 7.00, on both sides of the village, in the mosque neighbourhood --

MR. MILOSEVIC: [Interpretation]

Q. All right. Well, I didn't ask you anything about that. So there ⁵⁹⁶⁰ were two attacks in 1998; is that right?

JUDGE MAY: That's what he said.

MR. MILOSEVIC: [Interpretation]

Q. When was the first attack in 1998?

A. I don't know exactly. I don't know what date.

Q. Was it spring, summer, fall, or winter?

A. It was in the second part of the summer.

Q. And what happened during that first attack about which you say that it was in the second part of the summer?

A. Serbian forces attacked the village, the police, but they didn't enter the village. The second time, they did enter the village, from both sides, and they burnt the houses.

Q. Well, I'm asking you about the first attack, the one that took place in the summer. So they didn't enter the village then, did they?

A. No, they didn't.

Q. Was somebody hurt in the village at that time? Was something destroyed or set on fire in the village on that occasion?

A. Yes. There were fires in the village, but nobody was killed or wounded.

Q. So how come there were fires if they didn't enter the village?

A. I don't know the date, but on the first time -- and then the second time they entered and they burnt. They also -- and first time and the second time, they did attack, and they shelled from a distance and then they entered, and then they burned, and then they got us -- woke us from sleep. ⁵⁹⁶¹

Q. You said that during, as you called them, offensives, there were no members of the KLA in the village. There were only civilians there. Is that true?

A. There were only civilians.

Q. So how come they didn't manage to enter, Serb forces, into the village? You said that these offensives were unsuccessful. Who organised resistance from the village, resistance to the police and the army?

A. They provoked us. The Serbian police.

Q. Does that mean that they did not want to enter the village?

A. They provoked us. They provoked us. They fired at us in the village.

Q. They fired from the distance but did not enter the village. Is that what you're saying?

A. Yes.

Q. Were there any victims on that occasion? Do you know of that?

A. No. No.

Q. There were none in the village. And do you know whether there were victims on the side of the army and the police? Were any soldiers or policemen killed?

A. No.

Q. Did the residents of your village have some kind of a plan prepared in advance in case there should be an attack on the village?

A. I don't know. There was no plan.

Q. Can you explain, how is it possible that during those attacks and shellings, as you say, by the army and the police, there were no victims, ⁵⁹⁶² none at all?

A. I don't know.

Q. All right. Do you have any information or any idea about why did the army want to enter and take this undefended village of yours in which there was no presence of the KLA whatsoever?

JUDGE MAY: That is not for the witness to answer. He can't say why the army did something.

THE ACCUSED: [Interpretation] Very well.

MR. MILOSEVIC: [Interpretation]

Q. Do you know where the place called Rance is located?

A. Yes.

Q. How far is it from Racak?

A. Five kilometres.

Q. Were you there at the end of 1998/1999?

A. I wasn't in Rance.

Q. Do you know, in Racak, that the KLA headquarters was located there?

A. I don't know of a headquarters being there. There was a headquarters with KLA people. They were looking at the terrain.

Q. And at the end of 1998, how many members of the KLA were present in Racak itself?

A. I didn't hear. It wasn't allowed to go to the headquarters. I went.

Q. Do you know what was the name of the KLA commander in Racak?

A. I don't know. ⁵⁹⁶³

Q. Were they present in the village the entire time or they went back with other members of the KLA and went to Rance or other places?

A. They stayed for a short time, and they had their headquarters in Rance.

Q. And during their stay in Racak, regardless of the time period, did the members of the KLA have their own premises in which they ate, slept, had medical treatment, and so on?

A. I wasn't at the headquarters.

Q. Were you in the hospital?

A. No. I wasn't in the hospital.

Q. Does this mean that you could meet members of the KLA only in the streets?

A. I didn't see them. They watched the -- they watched the terrain, and I don't know who they were. I don't know their names. It -- it wasn't done to ask people who they were.

Q. Yes. Very well. But you stated that out of those 30-something members of the KLA, ten were your neighbours or relatives. You should know at least names of your relatives and neighbours.

A. There was -- there were no members of my family in the KLA. And about other people, I don't know who was in it.

Q. All right. But these people that you mentioned as being your neighbours or relatives, you do know them, don't you?

A. I know them, uh-huh. They were civilians.

Q. Did the residents of Racak assist the members of the KLA, out of which these ten that you mentioned were your relatives and neighbours? ⁵⁹⁶⁴ Did they assist them when they attacked on the army and the police?

A. No. They didn't attack ever.

Q. Did any resident of the village have weapons except for the members of the KLA?

A. They didn't.

Q. So nobody in the village had weapons except for the members of the KLA?

A. That's right.

Q. In your statement, you said that the house of Faik Limani was right next to yours. And then you go on to say that that is some 50 metres away. So is that the first house right next to yours, and how far away from yours is it exactly?

A. The next-door house is about ten metres behind my house.

Q. So it's not 50, is it?

A. No.

Q. And is the house of Faik Limani 50 metres from yours or is it the house that you say is ten metres away from yours?

A. We have only a path in between, and then the next house is not ten metres away.

Q. Well, is it the house of Faik Limani?

A. Yes.

Q. All right. When the attack on Racak started, you and your son started towards that house. Why did you do that?

A. Yes, that's right. The police and the Serbian army surrounded the village in the night, and in the morning there was -- there was firing ^{5965 BLANK PAGE 5966} from all sides with Pragas and tanks and armed vehicles. And they woke us up, and I went out into the yard, and the shooting was going on.

Q. Yes. I understand what you are saying. But my question is: Why did you go to Faik Limani's house? You said it was only ten metres away from yours. So what was there in the house of Faik Limani?

A. There were four brothers and a sister in the house, and I got them up and woke them up and took them there. I went to wake them up.

JUDGE MAY: It's now quarter to and it's time to adjourn. Mr. Avdiu, could you be back tomorrow morning to continue your evidence at 9.00. Could you remember not to speak to anybody about it until it's over, and that does include the members of the Prosecution team. So could you be back, please, at 9.00 tomorrow morning. We will adjourn until then.

--- Whereupon the hearing adjourned at 1.45 p.m., to be reconvened on Friday, the 31st day of May, 2002, at 9.00 a.m.