⁵⁹⁶⁷

Friday, 31 May 2002

[Open session]

[The witness entered court]

[The accused entered court]

--- Upon commencing at 9.02 a.m.

JUDGE MAY: Yes, Mr. Milosevic. We've got until 11.45 today. We will sit and take a break for a quarter of an hour after an hour and a quarter or so. So, Mr. Milosevic, it's for you to continue your cross-examination.

WITNESS: BILALL AVDIU [Resumed]

[Witness answered through interpreter] Cross-examined by Mr. Milosevic: [Continued]

Q. [Interpretation] Let us continue, Mr. Bilall. Yesterday, you said that in your village there was no KLA. I wish to remind you of your statement, page 2, paragraph 4. I'm going to read slowly so that they could interpret it. "Towards the end of the year, the KLA established their headquarters near the mosque in order to defend the village from these frequent attacks caused by nothing in particular. The commander of the KLA in the village was Afet Bilalli (25 years old). There were about 30 KLA soldiers, about ten of which were from the village." So yesterday, I asked you what the name of the village commander was, and you said that you did not see anyone, you did not know anyone, and you also said that there was no KLA in the village. How do you explain this which you said in your statement?

A. I said yesterday that there was a small group of the KLA, and they ⁵⁹⁶⁸ observed the village.

Q. What kind of weapons did they carry?

A. I didn't see what kind of weapons they had. They had hunting guns.

Q. All right. I asked you yesterday, and we left it at that because you did not answer me, that you went to Faik Limani's house. Who was in this house?

A. Faik Limani's four sons. I found them in the house. They were awake. Nexhat, Fatmir, and Sali, and Enver. And I went there with my son. And because of the -- we went there because the Serbian army and police were after us. And then we went from house to house to the house of Sadik Nebiu, where we found other civilians there in the barn. And in Faik's house, my son was wounded in the leg, from Bebush hill. And then we went to Sadik, and we found there 28 people, and we hid there. Serbian forces caught us and put us out in the yard. "Come out with your hands up." And they were beating us and mistreating us. This was the Serbian police and army.

Q. All right. We'll get to that later. You say that they were all civilians and that they wore civilian clothes. Why is it necessary for you to emphasise that they wore civilian clothes if they were civilians anyway?

A. They were civilians. They were civilians. I found them there. They were civilians.

Q. All right. You said that they -- that they had only hunting rifles. So they were shooting at the police with hunting rifles only. ⁵⁹⁶⁹ They didn't have any other type of rifles, did they?

JUDGE MAY: What are we talking about? We seem to have changed track. You were asking about the civilians. Now, where are we going from there?

THE ACCUSED: [Interpretation] I'm talking about those 30, as the witness had put it, soldiers of the KLA who were in the village.

MR. MILOSEVIC: [Interpretation]

Q. Did they use only hunting rifles to shoot at the police?

JUDGE MAY: You mustn't -- you mustn't confuse witnesses by jumping from one topic to another. It's liable to confuse them and it might confuse the Court too.

Now, all we had so far -- all the witness has said was that they had hunting rifles.

Now, Mr. Bilall, we're going back now to the KLA in the village who had hunting rifles, and the question was: Did they use those hunting rifles to shoot at the police?

Now, this isn't a question aimed, as I understand it, at the 15th of January. It's just general. Generally, did they use hunting rifles to shoot at the police?

THE WITNESS: [Interpretation] No. No, they didn't fire at the police.

MR. MILOSEVIC: [Interpretation]

Q. Who did fire at the police on the 15th of January?

A. The Serbian forces entered the village on the 15th of January, and the KLA tried to help us civilians, but they were unable to. With those ⁵⁹⁷⁰ weapons that they had, they were unable to help us. They had heavy weapons, the Serbian forces. They had armoured vehicles, cannon, Praga. They had return -- they had surrounded the hills round about, and they entered the village, too.

Q. And are you aware of the number of KLA members who were killed on that day?

A. There were some killed in the hills by -- the Serbian army and police fired into the hills and killed about eight, maybe nine. I didn't see them, but it was said that they were killed. They tried to help us civilians, but they were unable to, and they were executed.

Q. And are you aware of the number of casualties within the ranks of the Yugoslav army and police?

A. I don't know.

Q. You say that later you escaped to Sadik Osmani's house because from there you had the possibility to flee into the woods safely; is that right?

A. No. It wasn't safe to go to the woods from Sadik's place because military and police forces were very near. They didn't -- they didn't let us go out.

Q. All right. But I'm going to remind you. On page 3, in paragraph 2, you say: "We decided straight away to leave the barn and to go to Sadik Osmani's house that is on the outskirts of Gashi, the part of Racak, that photograph 4, annex A. This house is 100 metres away. It made it possible to flee safely into the neighbouring woods, and that is why we decided to go there." ⁵⁹⁷¹ Now, tell me, what is correct, what you said just now or what it says here in the statement?

A. It wasn't -- it was further away. It wasn't in the woods, it was in the meadows. From there, you could get out into the hills. And there, Serbian forces pulled us out into the yard and beat us and stripped us to our underwear. The -- we were sitting there. There were 28 of us. Twenty-four were executed immediately. I was the fifth one behind. And they were all killed there by the Serbian army and police. They were killed by -- on your orders. And they pulled out Avdi's heart and put it on the ground, and one of them, they stuffed his white hat in his mouth.

Q. I am asking you something else. You said here that you had a safe escape from there into the woods. You and the others who were there did not escape before the police came. That's what you said just now. So then why did you not escape when you wanted to escape?

A. We were beaten in the yard, and we were laid down on the ground one by one. And then, taking two or three steps back, they talked with their walkie-talkies --

JUDGE MAY: Mr. Bilall, we understand what you've been through, but the question was this: That it appears from your statement that the house you went to would provide or might have provided a safe escape into the woods, but you, in fact, went to the house and then went and joined a group in the barn. And the question is: Did you have an opportunity to escape into the woods? Could you have escaped?

THE WITNESS: [Interpretation] No. We had no chance to escape to the hills because we were surrounded, and there were 30 -- we were ⁵⁹⁷² surrounded by about 30 police there in the yard, police and soldiers.

MR. MILOSEVIC: [Interpretation]

Q. And all the persons who were in Limani's house with you, did they all go to Osmani's house, all of them?

A. Yes.

Q. Did you go in a group or did you move individually?

A. We went together as a group.

Q. And during this transfer, did anybody shoot at you?

A. The Serbian police shot at the walls. We were inside, and they shot all around.

Q. When you were moving from one house to the other, did the police notice you?

A. They broke down the doors, they broke down the cupboards, and they entered -- they entered Sadik's yard. We saw them very well through the windows. We saw that they were -- that they were all around.

Q. Haqif from Petrovo, what was he doing in your village at 7.00 in the morning when the attack started?

A. He was a guest at his uncle's. He was a visitor. He had come before the war started, two weeks previously, and had gone to Sadik there.

Q. Was Haqif a member of the KLA?

A. No. No. I saw him myself, and he wasn't a member of the KLA. Not one of us was a member of the KLA.

Q. You stated that when, around 10.00, the policemen found your group in the village, there was shooting all the time. Do you know who was fighting against who? You say that there was incessant shooting. Between ⁵⁹⁷³ whom?

A. At us. The Serbian army and police were firing at the village and round it.

Q. That means that the KLA did not shoot; right?

A. I don't know whether it shot or not. I didn't see them.

Q. All right. Tell me, since you say that there was shooting all the time, when they entered your house, how come there was shooting in the village all the time and the police searched the 30 of you, took your documents, and beat you for an hour, as you had put it, and on the other hand, there was shooting all round?

A. They were shouting from the -- they were shooting from the hills, because -- and in the yards, they killed civilians. And meanwhile, they were shooting from the hills. They were firing from armoured vehicles, and there were tanks around the village. But they started at 6.00, a little bit before 6.00 - I didn't have a watch - they were firing at the village, because they had us surrounded, all round the village. And then they came into the yard, killing civilians.

JUDGE MAY: The question was if that shooting was going on, how is it possible for the police to search you and take your documents and beat you for an hour or so if there was shooting going on all round? Could you just explain that to us, please.

THE WITNESS: [Interpretation] They were -- the police were not scared. They spoke through their walkie-talkies and said, "Don't fire where we are."

JUDGE MAY: Where was it that you were beaten and searched? Where ⁵⁹⁷⁴ was that all happening?

THE WITNESS: [Interpretation] In Sadik's yard, inside Sadik's yard.

JUDGE MAY: And was there some sort of protection there from the shooting?

THE WITNESS: [Interpretation] There were two houses and a barn. We were in the barn, and they were firing from the hills. But it didn't go -- the bullets didn't come inside the yard.

MR. MILOSEVIC: [Interpretation]

Q. Yes. And you stated that around noon, after this maltreatment that you referred to and after the threats, that the police let you leave in the direction of the village of Rance. How is that possible?

A. At 12.00, they told us, "Go out to the hills one by one." Not to go to Rance but to go out onto the hills one by one.

Q. All right. Since they told you to go into the hills, that means that they didn't kill anyone in that yard of yours. They told you to go into the hills after they had searched you; isn't that right?

A. That's right. They searched us, they took our identity cards, and then they said, "Go to the hills one by one." And I heard them talking on their walkie-talkie themselves, and they said, "These are civilians," and the voice came, "Kill them all. They are unarmed."

Q. All right. They searched you. They established that you were civilians, and they said over the walkie-talkie that you were civilians, and they let you go in the direction of the village of Rance; is that right? ⁵⁹⁷⁵

A. It was called the hill of Bebush, up the hill of Bebush. And we went up onto the hill.

Q. All right. Nobody guarded you, nobody escorted you as you were leaving; you left on your own.

A. The police and army ordered us to go uphill from Sadik's yard.

Q. And you stated -- well, yes. They said that you should go, and you left, but they did not escort you; right? They did not go with you.

A. No. No, they didn't come. No, they didn't come from the yard.

Q. You said that Ali Qazimi sat down and told the others to continue the journey without him because he was too exhausted. You were walking uphill, he got very tired, he sat down, and you continued the journey.

A. He was the last. He was very tired, and he sat down and he said, "You others, go on." He was the last one. I didn't know that he was left there. And he didn't know that the others were executed up above. He was not 150 metres behind. He was last.

Q. I don't understand. You were going up towards the hill. You were moving, and you say that he did not know that the others had been killed above. Did you know that others or that somebody had been killed above?

A. He didn't know what was happening up there. He -- he came up later, and I said, "Have you not seen that they've all been executed?" And I said, "Come, crawl over there. They've all been killed." There were about three behind me, and they went into the forest, and they survived too. There were five of us in all who survived.

Q. In your statement, you said that as you entered Godance, in the middle of the hill, you saw Serbian police wearing uniforms. And then you ⁵⁹⁷⁶ say that you saw only one policeman. How many policemen did you see in fact up there?

A. There wasn't one policeman, there were many policemen. There was a lot of shooting and executions going on. I couldn't tell you how many were -- were laying in wait up there.

Q. I can't hear the interpretation well. It's coming very quietly. The volume is very low.

So therefore, I didn't understand. How many policemen did you in fact see? You speak of a group of policemen and you also say that you saw one. So how many were there, in fact?

JUDGE MAY: He said at the end of his last answer, "I couldn't tell how many there were, how many were lying in wait up there." He said there wasn't one policeman, there were many.

MR. MILOSEVIC: [Interpretation]

Q. You said that you feigned death for some five hours; is that right?

A. Yes. Five -- five hours I remained unmoved, just as if I were dead. It was only when it got dark that I got up. And then I saw five or six people dead around me, and I was so confused, I didn't know what to do. And then Shaban came and saved me, asked me, "Are you injured? Are you injured? Are you still alive?" And I said, "I'm okay." And I said, "I'm here. I'm okay." He told me that everyone had been killed.

Q. All right. Well, in that case, there's something I don't understand here. Mrs. Romano, yesterday, explained to us, said that you were without unconsciousness for five hours. This is how I understood her ⁵⁹⁷⁷ and this is what the transcript said. So were you without consciousness for five hours or did you pretend to be dead?

A. I may have lost consciousness, I don't know. There was so much shooting, I didn't even know where I was, what was going on.

JUDGE MAY: Yes, Ms. Romano?

MS. ROMANO: Your Honour, according to the statement that I read, I stated that he feigned death for about five hours.

JUDGE MAY: He feigned death. Yes. Maybe it was a mistranslation. Thank you. Anyway, it's what the witness says which counts.

MR. MILOSEVIC: [Interpretation]

Q. Very well. But during that time when you pretended to be dead, did you hear voices of policemen?

A. No, I didn't.

Q. How long did the policemen remain in that spot? Do you have any idea of that?

A. The police stayed there until they'd finished executing everyone. I didn't see when they withdrew.

JUDGE MAY: But can you -- can you give us any idea of the time that they were there or not? It may not be possible.

THE WITNESS: [Interpretation] I don't know. They were there in the middle of the night, but I don't know where they were exactly.

JUDGE MAY: But during the time in the ravine during the executions and you were feigning dead, can you help us as to how long the police were about in the ravine or not? If you can't say so, just say so. ⁵⁹⁷⁸

THE WITNESS: [Interpretation] I was lying there when they were executing all the people. And then I lost consciousness, and I don't know what happened afterwards. There were seven or eight who were massacred. Then there were -- they pulled out -- one of them, they pulled out his heart alive and did other terrible things. And then I didn't see what happened afterwards. And they put -- they put a cap in someone's mouth, stuffed the cap in his mouth.

MR. MILOSEVIC: [Interpretation]

Q. All right. You said a moment ago that you pretended to be dead and now you're saying that you were without consciousness. So can you be more precise? Were you conscious or were you unconscious?

JUDGE MAY: I think he's answered that. He pretended to be dead, and he may have lost consciousness for a time.

Mr. Bilall, are you all right? Do you feel you can go on?

THE WITNESS: [Interpretation] I can't hear you.

JUDGE MAY: I said --

THE WITNESS: [Interpretation] Yes, I'm all right. I'm all right.

JUDGE MAY: I said were you all right to go on. That was the question.

THE WITNESS: [Interpretation] Yes, I'm all right.

JUDGE MAY: Very well.

MR. MILOSEVIC: [Interpretation]

Q. You just said, and this is in your statement as well, that some of the bodies were mutilated, and just now you told us that the body of Ragip Bajrami was mutilated as well and that his heart had been ripped out of ⁵⁹⁷⁹ his chest while he was still alive, and you spoke of similar atrocities. Do you know that all of the reports pertaining to these dead mentioned that none of the bodies had been mutilated, and they never ever mentioned that somebody's heart had been ripped out of their chests while they were still alive. So why did you invent this?

A. I saw that myself. He had no bullet injuries. I saw the knife and saw how they ripped his heart out.

Q. So therefore, who ripped his heart with a knife? Did you see that? Were there many people involved or just one person? How many?

A. I know it was the police who did it themselves. I don't -- he didn't have any bullet wounds on his body. I know that. It was just the wound from the knife when they ripped out his heart. That was the only injury on his body.

JUDGE ROBINSON: Did you actually see it happen or is it that you saw him lying there afterwards with his heart ripped out?

THE WITNESS: [Interpretation] I went there and saw the body after it was dark.

MR. MILOSEVIC: [Interpretation]

Q. Did you hear or did you see policemen and soldiers mutilating these bodies? Because you say that many bodies were mutilated.

JUDGE MAY: His statement says some of the bodies were mutilated.

THE ACCUSED: [Interpretation] All right. Well, then let's pinpoint this, Mr. May.

MR. MILOSEVIC: [Interpretation]

Q. How many bodies were mutilated? ⁵⁹⁸⁰

A. Five or six were mutilated. Once they had been killed, they took a knife to them.

Q. Did you see that when they took a knife to their bodies?

A. I didn't see it myself. I went to see once the police -- Serb police and army had withdrawn, and I saw the knife injuries.

Q. And what time was it when you came to see them mutilated with knives?

A. Just after the fall of dark. It was about twilight. It was the time of twilight.

Q. Do you know that all of these experts, including international and Yugoslav ones, examined the bodies and did not find any knife wounds or hearts ripped out or the wounds that you described so far?

JUDGE MAY: You have put that to the witness, and he's given his evidence about it. You've put the point to him once already.

MR. MILOSEVIC: [Interpretation]

Q. Was there much blood around bodies?

A. Yes, there was blood. Around all the bodies of people who had been killed, there was blood.

Q. Was there much blood around the bodies?

A. Yes, there was. Yes, there was.

Q. Very well. Can you please explain to me a sentence in your statement. Page 4, paragraph 3, line 5: "Most of the dead were in a large group, and it was obvious they were hit in the same position in which the bodies were found later."

What I am interested in is what do you mean when you say, "... hit ⁵⁹⁸¹ in the same position in which the bodies were found later"?

A. They were all found at the same time, they weren't found later. When five or six -- when five or six of the Serb policemen entered there, they were all in a line there, one beside the other.

Q. When you say, "hit in the same position in which the bodies were found," does that mean that they were lying on the ground and that they were hit as they were lying on the ground, or, rather, executed them in that position, as you say?

A. No. They weren't lying down. They were standing up. They were executed standing.

Q. And you saw them being executed. You personally saw with your own eyes that they were executed?

A. I saw them standing on their feet. And then there were Serb forces there, and I heard the firing, and then they fell onto the ground.

Q. Did you see this with your own eyes, them being executed?

A. Yes.

Q. Was it in the same way that you saw the heart being ripped out from somebody's chest, in that same spot?

JUDGE MAY: That's a comment. He can't answer that.

MR. MILOSEVIC: [Interpretation]

Q. Well, I'm asking, was that from the same spot in which they -- in which he saw the heart being ripped out from somebody's chest while the person was still alive that he saw people being executed, in that same spot?

A. I was near, and I saw them standing and being executed. ^{5982 BLANK PAGE 5983}

MS. ROMANO: Your Honour, I might be wrong, but maybe according to the transcript I don't believe he said he saw the heart being ripped off. I think he saw the wound.

JUDGE MAY: I have a note that at one stage he did say that, although he later changed that and said that -- that's a matter we'll have to look at in the transcript. We can't decide it now. Mr. Milosevic, you've had now more than your hour with this witness. Is there any other topic you want to ask him about?

THE ACCUSED: [Interpretation] Yes. I have many more questions, because this witness is giving evidence about some, you will have to admit, fairly incredible things. This is --

JUDGE MAY: No. That's a matter of comment by you. We accept that he is an important witness.

[Trial Chamber confers]

MR. MILOSEVIC: [Interpretation]

Q. All right --

JUDGE MAY: We will give you 15 more minutes because of the importance of this evidence.

MR. MILOSEVIC: [Interpretation]

Q. You claim that from there, from that spot, you went into the woods and started a fire there. Is that right?

A. Yes.

Q. Were you sure, then, that there were no policemen or soldiers in the vicinity that could notice this fire of yours, even from a large distance? ⁵⁹⁸⁴

A. I was sure. We were up on the mountains quite a ways away, in a ravine, a type of ravine, and we made a fire. And we had water there. There was a lot of cold water, and we stayed there until the next morning.

Q. Can you tell me, please, how did you know that there were no more policemen or soldiers in Racak?

A. On the 16th, at 10.00 in the morning, a man came out and cried, "Anyone up in the mountains, you can come back now because there's no more Serb police and army in the village." And Walker arrived. It was 10.00. We went down, back into the village, and I tried to get back home.

Q. So you claim that you learned that 15 members of the KLA had been killed in Racak; is that right?

A. I didn't say 15. Eight or nine. I never said 15. I didn't see them, though. They were killed up on the mountains. I didn't see that.

Q. Well, it says here in the large paragraph on page 5 of your statement: "Further --" and before that, you say that at that point, you left the village and went to Godance on the 17 January 1999. You say that your son had left the day before. Is that the son who had been wounded in his leg?

A. Yes. Yes. My son was wounded in his leg. It was the 17th when we left the village.

Q. And then you go on to say, in the beginning of this large paragraph, you say: "Further, I was told that on the 15th of January, 1999, 15 members of the KLA were killed. They were all dressed in KLA uniforms. The only one --

JUDGE MAY: I'm going to interrupt you. The English has "ten." ⁵⁹⁸⁵

THE ACCUSED: [Interpretation] Well, I'm talking about the figure, not the word. What I have here is a document I got from you.

JUDGE MAY: The figure that we have is ten.

JUDGE KWON: Mr. Tapuskovic.

THE ACCUSED: [Interpretation] Mr. May, this is this witness's statement.

MR. TAPUSKOVIC: [Interpretation] Your Honours, the Serbian version says 15. I don't know what the Albanian version says, but the Serbian one says 15.

JUDGE MAY: Very well. We must -- we must check with the Albanian.

Can the Prosecution assist at the moment?

THE ACCUSED: [Interpretation] This Serbian version has been translated from Albanian.

JUDGE MAY: No doubt the English has too.

THE INTERPRETER: The Albanian interpreters note that the Albanian version says 10.

JUDGE MAY: According to the interpreters, the Albanian version too has 10. So it looks as though there's been a mistranslation somewhere.

Yes, Mr. Milosevic.

MR. MILOSEVIC: [Interpretation]

Q. The only one from the village who had been killed was Shaqir Latifi. And then here you go on to say: "Sadik Mujota was one of the killed, and he seemed to have a uniform on him." Where was his body ⁵⁹⁸⁶ found?

A. Up in the mountains. That's what they told me, at least; up in the mountains.

Q. Is it true that he was from the village of Malopoljce?

A. I know that he's from Mullopolci, yes.

Q. Tell me, please, what did the trenches look like, the trenches that you dug out in Racak and the vicinity? What did they look like?

A. I was a civilian. We -- with the women and children, we dug the trenches during the night because they were shooting, and we had to escape to the mountains. I don't really know what they were like.

Q. All right. But since you dug them out, you had to see what they looked like; how deep they were, how wide they were. How many of you participated in these works?

A. I don't know how many people participated. I helped dig them. Fifteen centimetres. Not deeper. Fifty, 50 centimetres.

Q. So you say 50 centimetres deep. Were these the trenches that you dug out in December or prior to that time?

A. I don't remember the date. I didn't write the date down, so I don't remember.

Q. Approximately. I'm not interested in the exact date. I'm just interested in the approximate time. When was it, approximately? Was it beginning of the winter, the end of the winter, before the New Year, after the New Year, quite awhile after the New Year?

A. It was before New Year's.

Q. And can you tell us how long before the New Year? Was it two ⁵⁹⁸⁷ weeks, three weeks, five weeks?

A. Probably a month and a half.

Q. Did you participate in the building of bunkers as well or only in the digging out of trenches?

A. I just did the trenches.

Q. And who did the bunker?

A. I don't know. I don't know. I wasn't up there, I was up there.

Q. You claim that Walker and the others from the mission were there when you came back; is that right?

A. That's right, on the 17th.

Q. So the 17th of January. Or was it the 16th of January?

A. The 16th.

Q. So the 16th. You say that you came to the village around 10.00. Did you speak to him immediately after that?

A. No. I didn't talk, but I saw him and he saw me, but we didn't talk because I wasn't feeling well. And he gestured -- he gestured to me to go home.

Q. When was that, approximately? Around 10.00, if I understand what it says here correctly.

A. About 11.00 on the 16th.

Q. Oh, around 11.00.

A. Yes.

Q. All right. So he did not speak to you because you were not feeling well, but did he talk to everybody else, to all the other villagers? ⁵⁹⁸⁸

A. He did. He spoke to the other villagers.

Q. Did you see him speaking to the members of the KLA as well who were in the village then?

A. I didn't see that. I only saw him talking to civilians.

Q. Did you see any members of the KLA at all in the village when you came back and when Walker was there? Were there any in the village at that time?

A. When I'd come down from the mountains, I didn't see anybody but civilians and Walker, and then I went home. And then I didn't see anything more. Until the 17th, I didn't get up at all.

Q. All right. That was on the 16th. Let's not confuse the dates. I understand that this was on the 16th. Isn't that right? The following day, the day after the events that took place in Racak.

A. That's right. On the 16th, I came down from the hills on the -- at 10.00, and it was then that I went down -- went down to the village and met these people. And then I went back home, and I didn't go out of my house again. I left home the next day, on the 17th, and I left the mosque neighbourhood and went down.

Q. And who took Walker and his people, his associates, to the place where the bodies were, the ravine?

A. They all came -- they all came, and they went everywhere, and they inspected everywhere, everywhere in the village and in the ravine.

Q. So they did it on their own. Nobody took them there. Or did some of the locals take them there?

A. Someone from the village took them. One of the leading people in ⁵⁹⁸⁹ the village took them. I didn't see this.

Q. All right. How many of you were there in that group as you were walking towards the ravine? How many of you were there? You were in the house together, you went out, you went up there, you walked uphill, you went to Rance. How many of you were there in this group?

A. Twenty-four executed, five of us survived.

JUDGE MAY: Mr. Milosevic, your time is now over, and we've already gone and dealt with the incident in the ravine. Mr. Tapuskovic?

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

Q. [Interpretation] I would like to put just a few questions to Mr. Bilall. Just a few questions, Mr. Bilall.

If I have understood things correctly, when you left the yard of Sadik Osmani, the police stayed in the yard. Is that right?

A. That's right.

Q. Could you please explain to the Court what is the distance between that yard and this ravine where the things that you spoke about happened?

A. I don't know how far it is from the Bebush hill to Sadik's yard. I don't know, but it's quite a distance.

Q. How much time did you need? Can you tell us that, how much time it took? If it was quite a distance, how much time did you need to get from one place to the other?

A. It wasn't all that far. It was -- but it was uphill. It took about 20 minutes, but it was slowly uphill. It was 20, 30 minutes. ⁵⁹⁹⁰

Q. All this time there was no police and no soldiers near you as you were walking towards that place; right?

A. The police remained there in the yard, and they said, "You, go up the hill." And they remained down below.

Q. I've understood that. So while you were walking during those 20 minutes or so, there were no police around until you encountered them up there; is that right?

A. And there were none until we went up there.

Q. As you were walking, did you consider the possibility of going to different houses in smaller groups and not going all of you together in the same direction? Did you consider not doing what the police had told you to do?

A. No, because we didn't dare. The police said, "Go straight up to the hills." We were all together in a group.

Q. I've understood that. Thank you. But I'm interested in the following: You said that your son was wounded in the yard. Was this a serious wound? Was he bleeding?

A. He was bleeding a little, but they tied his wounds. The people round about tied his wounds, and he was able to walk.

Q. Was he walking with you or what happened to this son of yours?

A. He came to Sadik's house with me, and when we went into the yard, thrown out by the police, he was in the yard with me. And there was a boy, Halim his name was, 12 years old, and he was crying. And the police put him up against the wall and asked him, "Which one of you have weapons?" And my son said, "We don't have any weapons. We are civilians, ⁵⁹⁹¹ and we have come in amongst these houses to take shelter." And they took this boy Halim and my son, and they put them in another house with the women.

Q. Your son is alive, right?

A. Yes, he's alive.

MR. TAPUSKOVIC: [Interpretation] The photograph that depicts what Mr. Halil spoke about, could I please tender that? That is photograph number 8. I would like to have it exhibited, please.

MS. ROMANO: Your Honour, I think they are already exhibited, and I have here a colour copy.

JUDGE MAY: Let's have the colour then, please. Thank you.

MR. TAPUSKOVIC: [Interpretation] I'm interested in photograph number 8.

JUDGE MAY: Yes. Put it on the ELMO, please.

MR. TAPUSKOVIC: [Interpretation]

Q. In connection with that, in your written statement on page 3, paragraph 6 of the English version, you said the following: "At that moment, I looked up, up the ravine, and I noticed a policeman squatting and shooting in our direction. I think that he was the most responsible person for the killing of those who were nearest to me. Photograph number 8 depicts the position of the policeman who was shooting in our direction."

Is that the place from which the policeman was shooting? He was fully in the ravine? He was not on the side, he was at this spot that you've pointed out; right? ⁵⁹⁹²

A. I can't see this.

JUDGE MAY: Just look at the photograph beside you. You'll be able to see more clearly.

Mr. Usher, would you just -- yes. Put it in front of the witness.

THE WITNESS: [Interpretation] There it is.

MR. TAPUSKOVIC: [Interpretation]

Q. So that is where the policeman was, the one who was most responsible, the one who shot at you most, right? From that place? He was there, he was fully in the ravine, right?

A. That's here where the police shot.

Q. No. But the photograph, I mean the way you showed it on the spot, you stood at the place where the policeman had been. That is what you showed the investigators. Not on the side. Not on the place that you're showing now.

A. They were here and here. From here, from this point, they came, and from here and from there. But there was a line.

Q. Please, sir. Just look at the photograph. This is the photograph that you saw before. This is the photograph that was made according to your instructions. The policeman that did most of the shooting, was he in the gully at the place where you stood yourself while the picture was being taken? He wasn't on the side, right?

A. Yes.

Q. Thank you.

MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

JUDGE MAY: Yes. Let the photograph go back. ⁵⁹⁹³ Any re-examination, Ms. Romano?

MS. ROMANO: I just have two areas, Your Honour. While the usher is still there, I would like to show another photograph. Photo number 5. And just to clarify, I think we're talking about the Exhibit 156, tab 8. And this will be photo 5.

Re-examined by Ms. Romano:

Q. Mr. Avdiu, this is the photo where you show the way or the -- the way between Sadik's house and the Bebush hill; is that correct?

A. That's correct.

MS. ROMANO: This is the wrong photo. Yes.

Q. Can you point -- if you can see, can you point to where was the house, the barn and the house?

A. Here is the entrance, just here.

Q. But in the other photo, can you see the house? Photo 5, number 5.

A. This is the house.

Q. Mr. Avdiu, where you are standing there in photo number 5 --

A. Yes.

Q. -- where is the house in this photo? It's downstairs -- down the hill?

A. Down below.

Q. And that was the place where the policemen were?

A. You can't see it here, but it's down there, down below.

Q. And there were also policemen on the top of the hill; is that correct?

A. On the hill up there? ⁵⁹⁹⁴

Q. Yes. Or somewhere up on the hill.

A. Up there on the hill. The Serbian police was up there on the hill.

Q. So they could easily shoot at you while you were going from the Bebush hill to the Sadik's house? Or the opposite, from Sadik's house to the Bebush hill?

A. Yes, they could have done if they wished, but they knew -- they knew there was this guard up there on the hill and that they would kill them.

Q. So could you escape while you were going up the hill, you and the other persons that were in your group?

A. No. No. Slowly -- we went up there in a line.

Q. Thank you. Mr. Avdiu, in the ravine after the shooting, you feigned death, and you remained there for five hours. Yes or no.

A. Yes.

Q. And it was getting dark, and at that time, you proceeded to check if there were other survivors? Yes or no.

A. Those who were behind me survived, and the others were in line and were executed.

Q. And that was the time when you saw some bodies, some dead people?

A. Yes.

Q. And you refer to mutilations. Did you see the police ripping out the heart of Bajrami or did you see the wound on his body after, when you were checking the bodies?

A. I didn't see the police tearing out the heart, but after the ⁵⁹⁹⁵ police withdrew, when I had gone up there, and I saw at there was no blood from a bullet, I saw that his heart had been torn out with a knife.

Q. Did you see the knife?

A. No, I didn't see the knife.

Q. You just saw the wound; is that correct?

A. Only the wound. I only saw the wound.

Q. And Mr. Avdiu, do you have any medical training or experience?

A. I don't understand this question.

Q. Did you ever -- did you ever -- have you ever gone to a medical school?

JUDGE MAY: No. I think you've taken this as far as you can. Yes. Thank you.

Mr. Avdiu, that concludes your evidence. Thank you for coming to the International Tribunal to give it. You are now free to go.

THE WITNESS: [Interpretation] Thank you as well.

[The witness withdrew]

JUDGE MAY: We will take the adjournment. Is it proposed to call Mr. Abrahams next?

MR. NICE: I had understood that the Court wanted to deal with administrative matters. I'm entirely in your hands. Mr. Abrahams would certainly like to get on in order to have a chance of getting away sooner rather than later, but --

JUDGE MAY: There are issues about his evidence which it may be useful to discuss at the outset, as to its admissibility, and I have in mind there's a great deal of history in it, which I doubt we will admit, ^{5996 BLANK PAGE 5997} but we can discuss that afterwards.

MR. NICE: The position is, so far as the redacted statement is concerned, is that all those whose names had been redacted have now been contacted or are the subject of waiver by Human Rights Watch, and therefore a complete and unredacted statement is now available and I think probably has been served. It certainly can be served.

JUDGE MAY: We'll discuss it. The sensible course may be to discuss his evidence when we return. The administrative matters may not be complete because we have only just received your disclosure document, and we require to analyse that as to the dates of the disclosure of the witnesses and as to whether we should give leave for witnesses whose evidence has not been disclosed to be called. That's one of the matters we will have to consider. We're not in a position to deal with that until we've analysed it fully. So it may be matters will be shortened. But it may be convenient to deal with administrative matters and, if there's time, to start on Mr. Abrahams if we admit him. There's an objection, of course, from the accused as to his being called at all. Yes. We'll adjourn now. Quarter of an hour, please. We'll sit again at twenty to.

--- Recess taken at 10.23 a.m.

--- On resuming at 10.47 a.m.

JUDGE MAY: Mr. Nice, let me deal with one matter for which we've just had notification. The accused apparently has to have further dental work next week, on Wednesday. Apparently the appointment is earlier in the morning, and we'll sit at half past nine unless he's not here, of ⁵⁹⁹⁸ course.

We have suggested, I should point out, that perhaps the dental work could be in the afternoon. Apparently the dentist does not come in the afternoon. So there we are. That's one matter about the timetabling. What it seems sensible to do now is to discuss what we can about your application. We ought perhaps -- perhaps the most sensible way to deal with it is to look at witnesses for next week.

MR. NICE: We have an up-to-date list on which I made some remarks myself. It already is provided. Here we are.

For reasons that the Chamber is aware of, K12 has to be taken on Monday, or at least certainly started on Monday, I think. So if Mr. Abrahams were to start today and to finish today or on Monday, no problem, but there is a possibility he would have to be wrapped round K12 if there was any chance of K12 not being started on Monday, I think. But we'd hope that they'd both be finished by Monday.

That then takes us to Tuesday, and the list you've got is in a slightly different format than mine. Sorry. Let's just see where we are. Then we have -- my calculations is that Mehmeti, Beqiri, and Shabani, might all be dealt with on the Tuesday. K7, who will, when here, testify without protective measures, it appears, is on Wednesday. Hendrie -- incidentally, I know the Chamber inquired about verifiers. This was a verifier, Hendrie. There is one other person who falls into a broadly similar but not an identical position, so there will be at least two serving the purpose that concerned His Honour Judge Robinson. So Hendrie on Wednesday, possibly into Thursday. ⁵⁹⁹⁹ Now, we don't yet know about the 92 bis status of Zhuniqi, but he could be Thursday, as could Jemini, and possibly going into Friday. Then there would be Popaj and Ramadani. Elshani we feel we may now be able to withdraw in the interest of saving time. And that will then bring us conveniently, if the estimates are accurate, to the 10th of June, which is a Monday.

We will, in this process, have passed from Racak to Bela Crkva, but there will be outstanding some Racak witnesses. Walker is not available at the moment. He's elsewhere in the world, a long way away, but we are hoping that he will be able to come on the 11th or 12th of June or thereabouts. There's another man in respect of whom I raised a somewhat oblique request yesterday for a Rule 70 ruling, and I'll be able to timetable his arrival once I know the result of that request. There's then outstanding the possibility of the man Dawkins, referred to by General Maisonneuve, coming. So there are those three witnesses, who will certainly be more than two days in total, I imagine, if Walker is -- or perhaps not -- probably, if Walker is to be cross-examined at any length.

That takes us to the end of next week, and then into the following week. Would Your Honour like me to press on, because we've got things timetabled right up until July --

JUDGE MAY: It may be convenient.

MR. NICE: -- and Your Honour can see what the position is. So again, obviously the further away we get the less likely forecasts are to be accurate, but K6 on the 10th of June, then Walker maybe on the 11th and ⁶⁰⁰⁰ 12th, we hope, with Naumann on the 13th and 14th. That brings us then to the following week, and Vllasi, who has been disclosed, and a witness who could easily last more than one day, so we've marked him for perhaps the 17th and 18th. There's then the child witness on the 19th, although he will not take very long, I think. Hoxha, and possibly Haxhiavdij on the 19th and perhaps running into the 20th. We now being in Djakovica generally.

Moving to Suva Reka on the 21st, it would be, with Berisha. And on the same 21st it seems probable or possible one could accommodate Gjogaj and also Berisha, given the strike rate we've been able to achieve. We then come to C40, also known as K35. Now, this is a witness for whom a video application is being made and will be with you almost immediately and who, I think, will be seeking a high level of protective measures, possibly closed session. In fact I think almost certainly closed session. But if he gives evidence, it will take some considerable period of time. So that the first thing that has to be organised is obviously an early resolution of those issues, because it would be a terrible waste of time for them to be resolved in a way that's adverse to his giving evidence only on the morning when there's three days set aside for him.

So we must try and timetable, perhaps next week or, at the latest, the week after, any objection - and no doubt there will be objection - to the various measures sought for him. But until that happens, these are the three days set aside for him.

JUDGE MAY: Pausing there. He's got a C as well as a K number, so ⁶⁰⁰¹ I guess that means he's involved in broader matters.

MR. NICE: That's right. And I know the Chamber has the general point that I'm only seeking to call witnesses once, so some witnesses in Kosovo will cover bits of Croatia and Bosnia. And it may be inevitable that some witnesses in Bosnia and Croatia will also be capable of giving evidence about Kosovo.

But if I just stay with C40, there is the possibility of one other witness seeking video facilities in the same location as C40. That isn't quite resolved yet. If he does, then -- and if we make the decision that we seek to call him, then it would be sensible to have the two witnesses dealt with together because of the resource implications for Registry and everybody else. And so it may be worth raising at least as a possibility that those three days could accommodate, or those three days running into the next day, could accommodate a further video witness, but that will have to fall for consideration a little later.

We then come to C39.

JUDGE MAY: We have got no applications, have we, in relation to these?

MR. NICE: No, not yet. These are witnesses whose availability has only recently been determined and whose attitude has only finally crystallized. But I think they will be with you today. I certainly hope so.

C39 is another extended witness and we have provisionally marked three days for him, taking us into the second week of July. Can I just pause there? A general problem: With the 92 bis ⁶⁰⁰² witnesses who were heard for cross-examination. It's been necessary, obviously, to keep a sort of supply of them here. It's a rather unattractive way of describing it, but so that we can be sure that we can fill available court time whenever time becomes available. We have no other alternative. It is a very expensive exercise. I've been given the figures by those involved, and it's having a serious effect on the budget. One possibility which I must at least mention, although I'm not sure it's appropriate in this case, would be to block out a fortnight of time, have a video in Pristina, and take them all. But assuming that's possible, and it's something that would commend itself enormously to those who have budgetary concerns as one of their major interests, assuming it's possible, it has the grave disadvantage for us that we simply then don't have a reservoir of people we can use to fill up time when witnesses go short. And with the time scale that's been imposed, it's absolutely vital that we use every available second. It may be something that can be considered, but it will come with an inevitable risk that there will be days that there will be downtime, but I mention it. So coming back to where we were. C39, into the second of July. Then we have Petritsch and Sandra Mitchell. I don't think, on reflection, that they need two days each, and so they will -- either there will be the need for 92 bis witnesses there or, alternatively, they can be bunched up a little bit.

We then come to Vollebaek, who is thought to be a two-day witness. And then we come to K34, who's going to require protective measures and who, again, is allocated a substantial period of time. And so again, we ⁶⁰⁰³ must consider his application for protective measures as soon as they are properly formulated by him or those acting on his behalf so that if those days are going to be free we can know about it sooner rather than later.

K33 --

JUDGE KWON: Mr. Nice, before we move on, is a videolink facility already installed in Pristina? Is it available?

MR. NICE: No. But I understand the technology enables it to be made available. I hope so. I mean -- perhaps I should have checked that in advance.

JUDGE KWON: Thank you.

MR. NICE: I can't say I've actually checked the technicalities, so perhaps I should. We'll try and find that out straight away. K33 is a provisional pseudonym. I'm hopeful that that witness will be available at that time. A very important witness. We trust the provisional pseudonym may be acceptable. If he is able to give evidence then - and he's a witness who will cover more than Kosovo, much more than Kosovo - it may well be that any pseudonym will be lifted at that stage. It may also be the case that that witness will be appropriate to be taken later, but then he will, of course, be taken outside the Kosovo limited period, dealing with --

JUDGE MAY: Well, speaking for myself, if -- if witnesses are taken out of the Kosovo time and cover it, amongst other things, that would seem to me to be a perfectly proper course. The important thing is to get through the Kosovo-based -- purely Kosovo witnesses in the time ⁶⁰⁰⁴ allotted.

MR. NICE: I'm afraid, Your Honour, that you're going to see, on the timetable that I've set out, that that isn't going to be possible.

JUDGE MAY: Well, Mr. Nice, you know the order we've made. The Appeals Chamber have supported the matter. And I think now again I must emphasise to you the importance of finishing this evidence on time and finishing this trial on time. It seems the Prosecution are not taking this matter to heart. You've heard the Trial Chamber yesterday explain that it's not simply this trial. There are other people waiting to be tried, and it's also the credibility of this institution which is at issue here. We see large numbers of witnesses still being produced. I must say for myself I question how many of them are really necessary. I think we do not need, for instance, any more political witnesses. I see the experts that you're seeking to call. I question how many of them are necessary. I notice history evidence, although the Trial Chamber has made it quite plain its view about history evidence, but I notice that Mr. Abrahams purports to cover history, although he can't really have any great knowledge about it. He's not an historian, as far as I know. And then there's sought to be called another witness. The Trial Chamber's view is this: That the Kosovo evidence should finish on the 26th of July, and it's a matter for you how you organise your evidence during that period. It may be that you'd like to reflect on this: That we had an important witness on Racak at the end, the last witness, who was actually a survivor, describe what happened. Now, it may be that that sort of evidence is more important than a large number of ⁶⁰⁰⁵ verifiers.

Now, it's for your consideration, of course. It's your case, and how you present it is a matter for you, but the Trial Chamber wants to make it plain that there will be time limitations applied to all parties. You cannot have a trial which extends for a limitless period. Since we are on this issue, I can also tell you that we are minded to restrict the time for the accused's cross-examination for the crime-based Rule 92 witnesses to three-quarters of an hour unless there are exceptional circumstances and good cause is shown as to why it should be longer. I mention that so you should know I'm thinking about these matters.

MR. NICE: The Prosecution has, of course, taken all the rulings to heart and has responded to them as best it can. It remains of the view that in this extremely large and important case, its duty is to prove its case. Its judgement on the witnesses to be called is reflected in the list that's before you. We recognise the need for public acceptance of what is happening here and respectfully draw to your attention that in the time of the case so far, the time devoted to evidence in chief, on our calculations, is 67 hours and a bit, which is, I think, something in the region of 13 full court days or 14 full court days in a conventional court and does not, in our respectful submission, amount to anything like an excessive period of time. We have a number of problems in presenting -- the other figures are these: The accused, on our calculation, until this morning's witness, 92 hours and a bit more. The amici, ten hours and a bit more. ⁶⁰⁰⁶

JUDGE KWON: Does that include the hours for cross-examination against 92 bis witnesses?

MR. NICE: Yes, it does. I have got the figures for the 92 bis witnesses on their own. 92 bis witnesses, those that relate to crime-base evidence. Those that relate to crime-base evidence, five hours and 51 minutes by the Prosecution, 26 hours and 14 minutes by the accused, 18 minutes by the amici.

I'm very grateful -- just before I return to my theme, I'm grateful to the video booth who tell me the following: That videolink in Pristina is possible, but because of the limited equipment, the technical unit needs ten [sic] days' advance notice to get the material there. I'm very grateful for that.

Just give me a moment.

JUDGE MAY: Yes.

MR. NICE: As I was saying, it's our duty to present this case -- and I'll deal separately with issues of experts and matters of that sort, but we have to say that not only has the Prosecution, from the first, taken every step at shortening the evidence - not all of them have been approved but they've all been taken and offered - but we very respectfully suggest that although, of course, no case can ever be perfectly presented in the leanest format, certainly the evidence we have presented has been necessary for proof of the case.

I'll give you another document in a minute which I promised would come your way at some stage and it will.

You cannot prove a criminal case without proving the crimes, and ⁶⁰⁰⁷ we have, therefore, to call the evidence. The accused doesn't admit them. They have to be proved. The document, let me just distribute that. The Court will remember at an earlier stage I indicated the sort of closing document I'd prepared. This is not something that need be, I hope, registered or anything like that, but you may find it helpful. It's intended to be. It's also heavily marked that it's draft and not for final consideration and perhaps better not to be copied or distributed, but it does that which I said I would be doing from time to time, provides an analysis under the confirmed indictment of evidence that relates to particular topics, and it's in an easily accessible format. It's called "Subject to Errors and Corrections," and you'll see from the front sheet that it's subject to witnesses that have yet to be analysed, and it may be a document that will be a useful working document to set beside other similar material being prepared elsewhere, and we're always open to correction.

But you'll see if you look at, for example, pages 2 and onwards, then you have the general allegations which have been covered to some degree, significant degree. The deportation and forcible transfers start at 11, and you can see the way and the degree to which they've been covered.

The transfer sites, deportation and forcible transfer sites pick up at page 53. So let's look at one of those just as an example. We have taken, at page 53, a particular paragraph, 63A, and we have set out the evidence in summary form that relates to that.

And I respectfully venture to suggest that the Court will not find ⁶⁰⁰⁸ we have in any sense overproved any of these allegations. Killing sites at 84. For reasons we'll see when I return to the list of witnesses are, of course, at the moment, very substantially empty. 84, 85, 86, 87, 88, because we simply haven't yet had time to get through to that ms aterial. 90 is sexual assault, 94. So I hope the document will be helpful, and I hope it will satisfy the Chamber that there has been no question whatsoever of overproving this case, and indeed if there had been, we would no doubt have been alerted to that.

The allegations in this confirmed indictment were themselves highly -- not selective but highly limited in the number of sites that were referred to. No suggestion of attempting to prove the whole history. Such an exercise would, of course, have been beyond our ability. So we have done our best.

And I now turn to the particular problems that face a Prosecution of this sort. We have to prove the crimes. We have done it in the most economic way possible. We sought to have material taken in written or summarised form, and that's been rejected. We sought to have it 92 bis'd; that's been partially accepted, and we started off by calling one witness per site. We respectfully suggest that there is nothing more that we could have done to present this case economically and responsibly. And so the other evidence is what is important.

And this brings me to another topic that I was going to raise at some stage but perhaps I can conveniently raise now. Because I fear that it is we who have the experience of preparing these cases and it is, of ⁶⁰⁰⁹ course, experience that won't be known to others. Cases like this, the overall case perhaps being the largest -- yes, the largest case of its kind since certainly the Second World War. Cases like this would be easy to prove shortly if there was one member of the accused's inner circle who was able to come and give fully accurate and acceptable evidence of everything that happened. Maybe the case could be proved almost by the single witness. Life isn't like that. Witnesses, the closer they get to the accused, are the more difficult to approach, the more difficult to use. When we contemplate using them, we encounter the difficulties of the particular adversarial system which is effectively premised on the basis that you have to take a witness in toto rather than saying, "Well, this bit we accept, and this bit we reject and would wish to cross-examine." That may be a course to which we will be driven in due course, but that's the sort of problem that we encounter. Indeed, the system which -- and it's no surprise to hear me saying this, the system which may not in many respects be ideally suited to this category of case, is probably to be contrasted to other systems where witnesses of that proximity to an accused, whether they like it or not, would be hauled before the examining Court and interrogated by the examining Judge or by an advocate, accepting the bits that were acceptable to the person dealing with him and cross-examined as to the balance. Well, again that may be a course, and I'll come to that in a second, that I'll press you to consider. But again, it's not something that happens, and indeed it may well be that witnesses realise -- potential witnesses realise, whether they're co-accused or co-perpetrators ⁶⁰¹⁰ or just too close for comfort, that if they say only so much that is acceptable and so much that is not acceptable, they may free themselves both from the pursuit of the OTP and also from the risk of coming to give evidence.

JUDGE MAY: I'm sorry. Let me interrupt you for one moment.

MR. NICE: Yes.

JUDGE MAY: The 12th of -- the 10th of April, I think was the date. Now, that was the order of the Court which you appealed unsuccessfully. You must work towards it. What we wish to see from the Prosecution is the -- some acknowledgement that they are working towards these orders.

When I see a list of witnesses, never numbered, may I say - it would be helpful if they were in future - this list, I suppose, is about 80 or 90 long. We have called 67 witnesses, or 64 to date. When I see a list this long, I'm driven to the conclusion that no attempt is being made to comply with the order, but the Prosecution is going on in the same way.

MR. NICE: May I -- and I've been equable throughout, and I hope that's been appropriate, and in being equable at all times and always courteous, no doubt shielding the Chamber from some of the stronger feelings that lie in the heart of the lawyers and investigators dealing with this case. And being equable throughout, I cannot deny myself the duty of responding firmly to things that are quite incorrect. The suggestion that we have not been working towards these orders is wholly incorrect and I am inclined to be offended by it. We have --

JUDGE MAY: Don't be offended, Mr. Nice. ^{6011 BLANK PAGE 6012}

MR. NICE: Your Honour, let me say straight away: We have worked as hard as we can to meet a timetable that the entire Prosecution team regards as unworkable. If we can fit this case into the time that has been allowed - and if I may say so, allowed from the beginning without any particular explanation as to why 90 days or a day in July were the limits - we would have done so. We are doing our level best to meet the requirements of the Chamber, bearing in mind that it's our responsibility to prove this case, and bearing in mind that we will not be arguing that convictions are established if the material before you is inadequate. Can I return to the point you make about numbers? In our application or in our motion of the -- I'll just get the date correctly -- 2nd of May, we set out with absolute clarity in paragraph 2 the significance in terms of numbers of the development of the trial. I'll just set it out again.

Originally, we sought for between 90 and 110 viva voce witnesses and 123 witnesses who would be subject to the full provisions of 92 bis, so that the total witnesses would have been 213 to 233. The Chamber allowed 90 live witnesses with the possibility of calling more on good reason being shown. We made it clear, and I'll just take you to -- again to the figures that by -- if one then counts the 92 bis witnesses, who are now heard for cross-examination, as becoming live witnesses -- sorry, I thought it was here immediately available -- I think the figure went up to about 140. Let's see if I can find it. Now -- I know where it is. At least, I think I know where it is.

Yes. I'm so sorry. It's at page 6 in the relief sought. In ⁶⁰¹³ seeking the variations of orders, 95 witnesses listed which together with the 44 already called gives a total of 139 witnesses. We have at every stage cut back on witnesses we regard as unnecessarily duplicative, and as you saw today, we continue to do so. We find ourselves, and if I can take you and your colleagues back, please, Your Honour, to the list of witnesses we were looking at where I'd got to K33 and the 17th -- 19th of July, it's instructive to note what is left. Now, incidentally, history and politics, perhaps I'd better make some observations about that straight away. History I entirely accept is covered. There's no intention to call Mr. Abrahams, for example, to deal with history. It's in his statement but there is no intention to call him, and you've now had his summary.

As to an historian expert, we respectfully suggest one is required in a --

JUDGE MAY: We have in mind one for each side.

MR. NICE: Yes. Well, Your Honour, I'm entirely -- at the moment, as you see, we've listed possibly two, Dr. Budding and Robert Donia, simply because neither can cover the whole period and Donia covers the last part of the period. But we have in mind that to set a judgement of a case like this in a historical context, and it springs from a historical context, that the Chamber needs to have available to it some work of reference. We also have in mind that Mr. Tapuskovic made it clear right at the beginning of the case, promising a paper that was to be forthcoming, that there were historical issues that he wanted covered. But that is, in a sense, a digression. ⁶⁰¹⁴ If we look at where we are on the 18th and 19th of July, if I can take your eyes down the right-hand side column. Yes. If we had to stop there and simply take, in the last week, what were our best remaining witnesses, we would be unable to prove anything in respect of murder sites listed on the right-hand side; Djakovica, passing over the page, Izbica, Meja. Terrible sites where the most terrible things happened. Vucitrn and so on. And in the light of the shape of this indictment, we respectfully doubt that it would be proper for us not to seek to prove those killing sites.

If we look over the page a little further and just pass beyond those parts of the indictment to see what else is outstanding from our list and about which we strive to find economies, there are, first of all, I think we come really to the experts. The military expert, you'll see that there are two listed. The financial expert who we hope will be able to cover, either at the same time or in due course, financial issues relating to all the three indictments. We then have some particular insider witnesses you can see referred to, and then, under the heading listed in a very provisional order, various names. The demography expert it seems to us is something that the Chamber would want to have. The constitutional expert we know is something, from interjections particularly by His Honour Judge Robinson a few witnesses ago, is something you will need to have.

And you know, it's very interesting for us to find how, over the last several months, witnesses have been reluctant in the extreme to come to this court and to be exposed to the experience here. Not because there ⁶⁰¹⁵ is any reason to doubt their testimony but perhaps for some other reasons, and we have, with considerable difficulty, located experts to help you. And they are there to help you. They're both to prove the case and to help the Chamber, to put the Chamber in a position where it can make a proper and sufficiently deep judgement.

The MUP expert, whose report will be with us very shortly, is plainly something that will be desirable. Whether he can cross the boundaries of all three cases or three indictments, I'm not sure. Can I then say something, because Your Honours will be getting a feel for the amount of material that the Prosecution say is residual. I explained at a much earlier stage that what we would do in taking every insider witness at the earliest moment and not trying to prove things in an orderly fashion but just trying to get as much in as we could, what I explained was that there would be a residue at the end of the allotted time, and at that stage I would have to make a decision as to whether there was enough, whether I needed to apply for more or some of what was left, which is why I'm showing you what will be left. Can I take you straight away, please, to the very end of the list to tell you something that is very comforting in terms of timetable but also concerning. There are a number of listed witnesses simply listed as R. They are Rule 70 witnesses. They are undoubtedly witnesses from whom you would be interested to hear, but I must tell you at the moment that there are problems with their coming before you, and I'll explain insofar as I can in public session what they are.

Rule 70 witnesses require two so-called agreements. First the ⁶⁰¹⁶ agreement to provide the information for lead purposes. Second, the agreement forged between the OTP and the providing body or government that enables the witness to come. In reality, they're not agreements at all because the provider simply can say -- or can set its terms. At present, the Rule 70 witnesses forecast there are witnesses in respect of whom I do not feel able to make the requests for protective measures required of me by the provider, and so you will not be hearing from those witnesses, at present, from me. I have to say not only are they witnesses likely to be of considerable interest to the Chamber, but if they become available in any way, now or in due course, they would be likely to take, at the very least, a week but in reality a fortnight, and they -- but there it is.

I'm not prepared at the moment to put my name or the name of this Prosecution to the application for protective measures required of us. Therefore, at the moment, they drop from the picture. But there is at least another potential fortnight of evidence there. So Your Honour will see the predicament or the position in which we find ourselves.

A word or so again, slightly disjointed, about insiders because I touched upon the problem of insiders or people close to this accused. I touched on the oddity of the system whereby witnesses of a certain kind can effectively bar themselves or may be able to effectively bar themselves from the witness box if they're not to be subject to cross-examination by the Prosecution.

It occurs to us, trying to put ourselves, as we always do, in the ⁶⁰¹⁷ chair of the Court, that there must be a significant list of names that the Chamber knows it would like to hear from. We know that at the beginning of this case one of the charges placed upon the amici curiae was to advise you of what witnesses you might wish to call under your own powers. For the resolution of this case, that's all three indictments overall. It may well be that it would be appropriate now, or in due course, for the Chamber to identify the witnesses from whom it would wish to hear - I suspect your list and ours would be pretty close, one to another - and to give thought in the particular circumstances of cases of this difficulty in calling them yourself when they would then be subject, of course, to cross-examination by all parties, to full examination of the kind that is somewhat difficult to achieve, because only in this way may we be sure that you will have the evidence. We know the evidence. We see these people. Only then will you have the evidence that is likely to give you the best and arguably the quickest route to findings, proper findings about this case. Meanwhile, we're doing what we can with insiders who have been close to this accused.

It's interesting. It's a case where everybody else knows how better to deal with it than those of us who are dealing with it, and tell us how we shouldn't call this or should call that. The first witness to come, whatever people may have said about him, was one of the very few who actually had the courage to come to this court and give evidence. And slowly, witnesses are becoming braver, and the prospects are not entirely gloomy for having more and better witnesses to reveal the full truth of what happened. But it's not something that ⁶⁰¹⁸ happens overnight, and we were never in a position in any part of this case to forecast calling a single witness who could prove everything against this accused.

So, Your Honour, there we are. Our present position is this: On the forecast we have at the moment, and bearing in mind that we have to prove the crimes and that we have interposed, wherever possible, witnesses of a different kind who may have a more immediate value, we see ourselves by about the middle of July - and subject to some of those three-day witnesses being cancelled or not allowed, things of that sort - we see ourselves in the middle of July being several killing sites short of any evidence, short of the ability to call our experts within the time allowed although they may possibly be capable of being called in other sections, not having the time, even should we have the inclination, to seek to call the Rule 70 witnesses.

JUDGE ROBINSON: How many killings sites would you be short of?

MR. NICE: I'll just add those up. I think it's about six. I'll just get one of my colleagues to confirm it, but I think it's about six.

JUDGE ROBINSON: Of a total of what?

MR. NICE: Six out of 13, I think. It's about half.

JUDGE MAY: If everything were equal and you had all the time that you required, how long would you estimate this part of the case to take? When do you think you might finish, if everything were equal?

MR. NICE: Certainly. Our calculation, and it's always an estimation because it depends on circumstances outside our control, but I think our estimation is that if we were to prove all the killing sites and ⁶⁰¹⁹ assuming that the experts are admitted in the usual short form way, 94 bis, the statement goes in and they're simply exposed to cross-examination which is what, of course, we would wish for all probably bar the financial expert, is that we would require another two months, probably, to deal with it.

JUDGE MAY: So that would be --

MR. NICE: October.

JUDGE MAY: September, the end of October.

MR. NICE: But within that time, several of the witnesses would have covered areas of Croatia and Bosnia.

JUDGE MAY: We would then embark -- there would then have to be at least some time for consideration of, I gather, very substantial material which is being produced on Croatia and Bosnia. Now, how long, at the moment, would you think you will take over Croatia and Bosnia?

MR. NICE: Your Honour, I --

JUDGE MAY: I recognise you probably haven't got any detailed calculations, but just give us some idea.

MR. NICE: Can I before -- not give you a detailed calculation, explain the position and then give you what help I can. Of course, over the last several weeks the Bosnia and Croatia teams have been working flat out, producing the material and indeed producing the pre-trial brief which is served this afternoon. There has also been important and very detailed consideration given to reducing the number of locations which we will seek to prove in Bosnia and making sure that there is consistency of approach between this and the Plavsic/Krajisnik team, and that has led to a ⁶⁰²⁰ substantial reduction. I don't know how many sites it is now. It is in the order of ten municipalities only - I can't remember the exact number now - that we are going to attempt to prove - but I'll have it in a moment from someone or other. Fourteen Ms. Graham tells me, but it's reduced. The witness list, for example, has been halved. That is still, of course, one of the necessarily generous witness lists. So that very, very substantial savings have been made from Bosnia, which is probably the biggest of all the cases yet to be tried.

Frankly, the answer to the timetable question, I suspect, will lie in the hands of the accused. Will he take the same attitude towards the perpetration of evidence -- evidence on the perpetration of crimes as he has taken in Kosovo or not? In Bosnia and Croatia, there is of course -- in Bosnia in particular, there is the potential for incorporating evidence from other trials where there has been cross-examination, so that --

JUDGE ROBINSON: Assuming that he does take the same approach. I'm very interested in your admittedly guesstimate as to the length of the Prosecution's case in Croatia and Bosnia.

MR. NICE: I fear I would prefer to defer that until Monday, because it is -- I know that you've been troubled, and I use the word neutrally, but -- sympathetically --

JUDGE ROBINSON: I'm interested, Mr. Nice, because my own private view is that a trial that lasts beyond a certain length of time cannot be fair. It is very difficult for a trial that is going to last three years to be fair to the parties.

MR. NICE: I'm not, of course, against the principle of Your ⁶⁰²¹ Honour's observations although I can say nothing about the particular figures that Your Honour uses, and although it's not helpful at this stage, we all know of other cases in other jurisdictions which last a very long time. But I would prefer, if I may, to reflect with my colleagues this afternoon, if there's time between now and the final touchings to the pre-trial brief to do so, and bring you an estimate on Monday of how many witnesses may be required to prove the non-crime-base part of both those other trials.

Now, whatever estimate I'm then able to give is an estimate that can be varied either up, of course, if one gets additional but irrefusably valuable evidence, or down if one gets evidence of such value that it enables us to limit and reduce evidence we would otherwise have to call. But rather than provide you -- because I know you've had estimates from the Prosecutor and you've even had estimates from me in the past, rather than provide you with a figure that is not accurate, I'd rather deal with it in that way, if that's acceptable to the Chamber.

JUDGE MAY: Of course. We cannot spend too long on these administrative matters. We need to hear evidence, and our time is practically up. But clearly it is the overall timetable which is of significance. But the importance of July the 26th is that it will enable us to -- to have time to consider - and the accused and the amici - have time to prepare for the next part.

MR. NICE: Of course.

JUDGE MAY: If that part of the timetable slips, it means that the whole timetable slips. We're then looking at starting Croatia and Bosnia ⁶⁰²² in 2003, it may be, which cannot be satisfactory. But -- well, we need clearly to reflect on these matters, which we will do. Now, can we deal with Monday? Mr. Abrahams, is it your proposal now to call him live? We seem to have got some sort of summary.

MR. NICE: Let me just explain the position on that in a couple of seconds.

He was subject to the full provisions of 92 bis yesterday, I think, but only in respect of his redacted first statement and his unredacted second statement.

Once it became clear that his unredacted statement could be served, I think those procedures have now been gone through this morning, with the helpful cooperation of the Registry. Am I right? So his unredacted statement has now been bis'd, and it would be possible for him to be taken on Monday or Tuesday as a 92 bis witness. We would like that to happen subject only to this point: That one of the important features of his evidence is that Human Rights Watch prepared several reports critical of all parties in this conflict and served them on all parties including the Yugoslav government and, I believe by his e-mail address, the accused himself. The service of those reports, of course, is important in the information it provides to the accused, his government, his embassies and so on, and is probably not covered in detail in the statements in the way that it would be helpful to present it. That evidence could be presented pretty swiftly because the exhibits are available. So we would, of course, for reasons of economy, prefer him to be ⁶⁰²³ taken subject to 92 bis and subject to that particular adjustment. He's available. You've now got the summary otherwise. But I will take him, of course, as quickly as I can, and I will not repeat areas of evidence which have been given by many other witnesses already. He's necessary to you, of course -- I say necessary. Certainly highly desirable to you in order that he can give the methodology of the preparation of the book Under Orders.

JUDGE MAY: Yes. No evidence from him about the history will be admissible. We'll look at the statement and decide how much he's -- One final point: I'm told that the witnesses for next week include four witnesses for whom leave to apply to call since they were disclosed or their statements were disclosed, summaries were disclosed after the order - Messrs. Mehmeti, Jemini, Elshani, and Avdyli - I'm told these are all witnesses outside the order.

MR. NICE: These were 92 bis witnesses at the time, and it may be that their change of status was not associated with clarification in our minds of the rules that apply to them. I'll deal with it in more detail on Monday.

JUDGE MAY: Yes. Mr. Milosevic, our time is up. We are not making any decisions. You can address us in due course on our proposal that you should be reduced for three-quarters of an hour in relation to the crime-base witnesses unless the circumstances are exceptional. Now, unless there's anything you want to raise which must be raised today, we're going to adjourn.

THE ACCUSED: [Interpretation] Well, Mr. Nice spoke for all of one ⁶⁰²⁴ hour, in case you haven't noticed.

JUDGE MAY: I know he did, but he was dealing with matters at our request, and they are essentially Prosecution matters. You need have no concerns. Before any decisions are made which affect you or your case, you will have the chance to address us on it. But the matters that we've been dealing with are essentially matters which purely relate to the Prosecution.

THE ACCUSED: [Interpretation] Yes. But as far as the Prosecution is concerned and the Prosecution case, we state here that there is an enormous number of some kind of secret witnesses. There is a large number that is mentioned here. I have already objected to that, and I think that this is quite untenable.

Secondly, I think that at the expense of my time for cross-examination, you cannot give a privilege to the other side and they keep showering materials on us anyway. Gentlemen, do you know that I was told today that I would be getting 50 documents -- 50 boxes of documents and 50 binders? How do you imagine in any kind of proceedings and in any kind of organisation during an ongoing trial, during cross-examination, during preparations for cross-examination, that I can read 50 boxes of documents and 50 binders with this kind of organisation that you have established? Not to mention the fact that for an hour now you have been discussing some list that I haven't got at all.

I simply think that, in this way, one cannot work. Therefore --

JUDGE MAY: Has the accused got the list? I'm told you have got the list. The list of witnesses, the latest ones to be called. ⁶⁰²⁵

THE ACCUSED: [Interpretation] Well, I got this. This that Mr. Nice proclaimed to be some kind of crown paper, some kind of crown achievement where I see the important witnesses are the person who said for himself that he was a thief, an informant and a criminal, the one that was called K5, and Ratomir Tanic, some witness he was. So if you're trying to prove your case with witnesses like that --

JUDGE MAY: Don't comment on the evidence now. We have in mind the amount of material which is about to be served on you. We will consider what we should do about that. We will reflect on that.

THE ACCUSED: [Interpretation] Well, today, they said that they were organising a truck in order to bring in these documents. Now, in connection with Abrahams, can I just tell you a few facts so you could think about them? You did not allow an OTP investigator to testify, and this witness is not only an investigator but he also worked on conceiving and preparing the indictment itself. So his entire story is the small scale indictment, actually. Please look at his statement, page 4, and page 5. At the end of page 4. "From April -- from April, I worked as an advisor to the Office of the Prosecutor at the ICTY from April to June 2000 and yet again in August 2001. I carried out an investigation and made an analysis for the indictment related to Kosovo against Slobodan Milosevic and others." So this is what he mentioned, that he worked for the OTP on two occasions during those periods.

He omitted to mention, for example -- look at page 1, the witness statement of Ibrahim Rugova who testified here. It says here, "Interview carried out by Fred Abrahams in the capacity of OTP investigator." This ⁶⁰²⁶ interview was conducted on the 1st and 3rd of November, and this statement was given on -- in the year 2002. So he could have included the time when he worked as an investigator for that same OTP. He should have mentioned that in his statement or, rather, he decided to keep silent about it. So you do have a man here who worked on preparing the indictment, who is the author of a book called Under Orders, and that coincides with the indictment. This was done on behalf of Human Rights Watch. He's an investigator of the OTP. He interviewed Rugova. Most of Rugova's statement is actually contained in his statement here. So I think that this entire matter pertaining to him was actually put forth by this other side over there with a propaganda purpose in mind.

JUDGE MAY: We will -- we will consider that matter in due course. Now, the time has really come for us to adjourn. We will consider the admissibility of Mr. Abrahams's evidence on Monday or Tuesday, whenever we get it. We will adjourn now. Nine o'clock Monday morning.

THE ACCUSED: [Interpretation] Could I just ask that I get the order of witnesses for next week during the course of today? Could you please issue an order to that effect; that I get a list with the right order of witnesses for next week today, during the course of today rather than have this done subsequently.

JUDGE MAY: If it's not plain, Mr. Nice, perhaps you could get the list to the accused.

MR. NICE: The lists have been prepared and served in the usual way, on a regular daily basis.

JUDGE MAY: Very well. We will adjourn now. ^{6027 BLANK PAGE 6028}

--- Whereupon the hearing adjourned at 11.50 a.m., to be reconvened on Monday, the 3rd day of June, 2002, at 9.00 a.m.