Milosevic Transcript 2003-02-25

¹⁶⁷⁶⁸

Tuesday, 25 February 2003

[Closed session]

[The accused entered court]

--- Upon commencing at 9.06 a.m.

[redacted]

[redacted] ¹⁶⁷⁶⁹ Pages 16769-16801 - redacted - closed session

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[redacted]

[Open session]

THE REGISTRAR: We're in open session.

JUDGE MAY: We are in open session, very briefly. The witness, I take it, should be back --

THE INTERPRETER: Microphone, please.

JUDGE MAY: Very well --

THE INTERPRETER: Microphone for Judge May.

JUDGE MAY: How long do you anticipate being with him?

MR. NICE: Myself, 20 minutes probably. ¹⁶⁸⁰³

JUDGE MAY: I think that will be 20 minutes.

THE INTERPRETER: Microphone for the Presiding Judge, please.

MR. NICE: -- hopeful that the cross-examination may not take us even in the third session, but that's a matter for the Court --

MR. KAY: You've been asked for a microphone, Judge May. There's been no recording of the --

JUDGE MAY: Well, the last comment need not have been recorded anyway.

Now let us deal with any other matters. We've got Torkildsen still to do, the argument about that.

MR. NICE: General procedural issues, and I really must bring you up-to-date sooner rather than later.

JUDGE MAY: Do you want to deal with that first when we finish with the witness?

MR. NICE: No, for preference I'd rather -- let me look at the view of the week as a whole. General Mangan has to be heard on Thursday. It's the only day he's available. We're going to seek to wrap round him Ambassador Okun. He has to be away at the weekend. He's already spent an enormous amount of time here and wasn't called because of reasons of the accused's ill health. So it really is a priority to get both of those witnesses dealt with by Friday lunch-time.

It's possible that simply starting Okun tomorrow would achieve that. I don't know if my learned friend Mr. Groome thinks that that's cutting it fine or --

JUDGE MAY: Sorry. Let me interrupt with one other piece of news, ¹⁶⁸⁰⁴ ^{BLANK PAGE} ¹⁶⁸⁰⁵ which is that tomorrow is going to be foreshortened. We have to make way for an initial appearance, requires us to break at -- adjourn at 12.45. What we propose, with the indulgence of the interpreters, is that we would have two sessions; 9.00 to 10.35, we would then take a half an hour break and come back from 11.05 to 12.45. So it's slightly longer than the usual period, but we'll save having two breaks.

MR. NICE: Thank you very much. Your Honour, can I reconsider the position with Mr. Groome over the break to see really what's the latest starting point for Ambassador Okun tomorrow to ensure that Okun and the general are concluded by Friday. I almost certainly won't be here on Friday myself, but that's not a problem.

It may be prudent, frankly, to put the financial argument first, because it's a concise argument and also because an exhibit list, really a sort of final planning list, that I want you to have available won't be available tomorrow -- until tomorrow really in any event. At least won't be available tomorrow in a form that I'm happy with. But I must address you soon - really Monday would be the latest, I would hope - on procedural issues so that I can explain to you where I think we are and what I'm going to seek from you by way of assistance.

JUDGE MAY: May I remind you also outstanding are 60 or so 92 bis witnesses which we have to rule on. And that has to be done, obviously, sooner rather than later.

Well, perhaps you can, by the end of the day or by the end of the witness's evidence, address us on what is going to be the most convenient course for the rest of the week because everybody else should obviously ¹⁶⁸⁰⁶ know what we're going to do.

MR. NICE: Yes. I think it's likely to be finance, Okun, Mangan, Okun, and then that will exhaust the week.

JUDGE MAY: Very well. We will adjourn now. Twenty minutes.

--- Recess taken at 10.37 a.m.

--- On resuming at 11.02 a.m.

[The witness entered court]

JUDGE MAY: Yes, Mr. Nice.

WITNESS: PAUL DAVIES [Resumed] Examined by Mr. Nice: [Continued]

Q. Mr. Davies, we are dealing with your evidence from your statement.

MR. NICE: Your Honours, we're at paragraph 34.

Q. In the November shelling, can you name some of the hotels that were hit, please, and may the usher very kindly have available the two maps, tabs 23 and 24.

A. Right. The hotels that I remember being shelled included a hotel called the Libertas, a hotel called Belvedere, Excelsior, and another that was either called Grand Imperial or Grand. It was very close to the walls of the old city.

Q. Very well. Any other hotels you can recollect, and what, if any, knowledge did you have of the Hotel Argentina?

A. The Argentina was also hit though not to the degree of the ones I mentioned. The Hotel Argentina was the base for what international press was there but also for the European Community monitors, and it appeared for a period of time that it was protected or sacrosanct, but it was ¹⁶⁸⁰⁷ shelled during the very intensive shelling in the period of the 9th to 12th of November of that year.

Q. Can you say of any of these hotels whether there was or was not military defence positions within them?

A. I didn't see military defence positions inside any of these hotels. I was living in the Hotel Argentina, and I believe I would have seen military positions if they were there.

I visited the Hotel Libertas immediately after it had been shelled. It had a lot of refugees there but I didn't see any military. The Grand Imperial Hotel I witnessed being shelled and on fire. I didn't see military positions there. The Hotel Belvedere, which was very badly damaged, was the one nearest to the JNA positions. It was further up the coast than the Hotel Argentina, away from the old city, and we were told there were many refugees there, and certainly we saw some refugees, after it had been hit, at the Hotel Argentina which we were told had been brought in from that hotel.

All I would say, in fairness, is that that hotel was the closest position of the territory still occupied by the Croatian forces to the mountain called Zarkovica, which had the JNA guns on it, and certainly there were times when we witnessed gunfire from the Croatian positions going up towards that -- that mountain-top position, and that fire was coming from very close to the coast and was somewhere between the Hotel Argentina and the Hotel Belvedere.

Q. As to the Hotel Excelsior, did you visit that? Did you see any defence positions there? ¹⁶⁸⁰⁸

A. I did not see any defence positions there.

Q. How often did you visit there?

A. I visited it two or three times to visit it, but I passed it every day, sometimes several times, because it was on my direct route in and out of the Hotel Argentina.

Q. The old town, in the early part of November, was it attacked? Did the position change, and if so, in very short summary, what happened?

A. My view from what I saw was that the old town was not shelled for the majority of the time that the rest of the town appeared to be under siege, and that policy appeared to change during the intensive attack in the period I've mentioned, 9th to 12th, and then there was a very heavy sustained attack particularly on the 11th and 12th.

Q. What was damaged? Had you seen anything to provoke such an attack?

A. I had not seen anything to provoke such an attack. What was damaged, certainly a lot of the old buildings inside were damaged. I visited the Franciscan monastery and saw damage there. I saw a number of other buildings and monuments and some dwellings inside that were damaged as well.

Q. We've seen that on the film, of course. So the status of the old town as revealed by flags?

A. Yes. The flags - and they were huge flags - were flying over most of the larger buildings inside the old city. You couldn't miss it. They were everywhere.

Q. What sort of flags? ¹⁶⁸⁰⁹

A. They were UNESCO flags, I believe. They were flags that said that it was protected, that the entire old city was a protected monument.

Q. Croatians, so far as you judge from what you were told and what they said to you, thought what of the prospects of the old town being attacked?

A. They thought that it would be the last thing to be attacked. They did have a -- they did have some sort of faith that the new areas would be attacked before the old city was attacked, and people talked in general terms of congregating, at the end, in the old city. The old city would be their last place of refuge.

Q. Any defence positions in the old city, any outgoing fire, any weapons in or near to it?

A. I was there for three weeks. I visited the old city most days and many days I spent all day on the ramparts of the old city. It was a very, very good filming position with its height. I never saw any gun positions, any mortars, any armed men on the ramparts of the old city or in anything that you could call even defensive positions. I never saw any outgoing fire from the old city. There were occasional times when I heard mortars being fired from close to the old city. It's harder to be any -- it's difficult to be any more specific than that.

Q. And don't guess if you don't feel you can, but if by reference to any of our maps you can estimate how close, tell us. If you'd rather not and would rather put it in some other way, make your own choice.

A. It's very difficult. I would be guessing. I can say certain things accurately, like I know that mortars were fired from the gardens ¹⁶⁸¹⁰ that were on the coast quite close to the Hotel Argentina. I know that as a fact. I heard some outgoing fire from close to the old city on a small number of occasions. I can't be any more specific than that.

Q. Your observations -- or did your observations exclude or allow for the possibility of people in the old town, old city, being observation positions?

A. I believe that might have been happening. I saw people on the ramparts who were men of, I suppose, what you would call fighting age. I didn't know -- I didn't see radio contact or anything like that, but certainly there were people from time to time on the ramparts of the old city. They weren't -- they didn't have weapons, but they did have binoculars.

Q. Any justification that you could see for attacking the old town, provoked or --

A. No, not at all.

Q. The mortar position you were aware of I think was in the city's woodlands. Can you just point on the map where that was.

A. Yes, I can try.

Q. Other map, I suppose.

A. The different map.

Q. Thank you. Tab 23.

A. Right. I believe that there were mortar positions in this rough area here.

Q. The south and west of Hotel Libertas?

A. Yes. Yes. The other area that I've referred to that I know as a ¹⁶⁸¹¹ fact was near the Argentina.

Q. Sorry, not the south and west. The map is not or oriented north/south. The position you've marked will actually be to the north of the Hotel Libertas, yes.

And you would -- well, you've put in your witness statement that the time it would take to drive from the old town to this position is how many minutes?

A. Fifteen minutes possibly, maybe ten, but it's a short drive, and with no traffic on the roads, it wouldn't be any more than 15 minutes.

Q. Proximity of that mortar to the water?

A. Close. A hundred yards. The trouble with answering questions specifically like that is the nature of the defences, both with small artillery pieces - and there were one or two - as there were with the mortars, was they were very mobile. Nothing stayed in one position for any length of time because it became a target. So it -- they would be fired around -- a volley of rounds would be fired and then they'd be moved. It made it very difficult for us to actually film them because they were constantly on the move.

Q. I think you actually observed one cameraman not from the ITN trying to cover the position of the mortar in the woodlands; is that right?

A. I did indeed. And he got very close to it, so close that the -- the incoming shells became a hazard to him.

Q. And a number of incoming shells missed the mortar and fell into the water, I think; is that right? ¹⁶⁸¹²

A. That was a very regular feature. Whenever there was any firing from that area, this area, shells were landing in the water around here spectacularly.

Q. Quality and quantity of Croatian defenders' weapons, please, in general.

A. Not many and very poor. I was privy to a distribution of weapons at one time at a police station, and they were handing out pistols and rifles to people who had to prove various -- had documentation that they were entitled to receive them, and they were small calibre pistols, very old rifles. Even the rifles that I saw in some of their frontline positions looked as though they could have dated back to the Second World War.

In terms of bigger weaponry, I was aware of at least two small artillery pieces, at least two, although I believe there were probably more, smaller mortars. I saw a machine -- an anti-aircraft gun, a very old anti-aircraft gun that had been positioned on the back of a truck so that it could be moved around, and it was being used not to shoot against planes but they were attempting to use it to defend themselves against the guns on the hill, not very successfully.

Apart from that, one heavy machine-gun I saw on the top of Mount Srdj where the Napoleonic fort is where I spent a little time. The rest was small arms and not very -- not very powerful small arms. And their biggest problem appeared to be a chronic shortage of ammunition.

Q. You've spoken of the position taken by the Serb forces at Zarkovica and also of the attack from the sea, from boats, ships. Did the ¹⁶⁸¹³ defenders have weapons able to reach either Zarkovica or the vessels at sea?

THE ACCUSED: [Interpretation] Mr. May.

JUDGE MAY: Just one moment. Before you answer, Mr. Davies. Yes, Mr. Milosevic, what is it?

THE ACCUSED: [Interpretation] Mr. Nice was using the term "Serb forces," whereas the witness uses the JNA as a term and the federal forces.

JUDGE MAY: Thank you very much.

THE ACCUSED: [Interpretation] So --

JUDGE MAY: He will have noticed that. It's what the witness says which matters, it doesn't matter what counsel says. Yes, Mr. Nice.

MR. NICE:

Q. Can you help us, please, with the range of weapons available to the defenders.

A. Certainly they had nothing that could reach the warships. In fact, they -- after a very short time, as far as I was aware, they gave up any attempt to hit the ships. The ships could just sit off the coast and fire at will with no risk at all. There was nothing to threaten planes; they could come in at will and bomb.

As far as the artillery positions, and particularly the position on Mount Zarkovica, many, many attempts were made over a period of time to hit back at that position, and the vast majority of them fell short, far short, but I did witness at least one hit where they'd managed, the ¹⁶⁸¹⁴ Croatians, had managed to get their mortars close enough to make a hit on the top of the mountain, and we saw an explosion on the top of the mountain. I think the pictures are included in the report.

Q. Just the one?

A. Just the one that we witnessed. That doesn't mean it only happened the once.

Q. Those defending the city, did you see them sometimes in the Hotel Argentina? What sort of people were they?

A. That was one of the most striking parts of this experience for me. The -- many of the people that I saw up on the top of the mountain at the fort in the frontline, I would also see later in the day, serving breakfast at the hotels or with jobs around the hotels. When I spoke to them, almost all the people I met were involved in the tourist industry. They were barmen, tour guides, people who worked in restaurants; very, very ordinary people with, as far as I could see, very little in the way of military training.

Q. Defending their towns on an organised or an ad hoc or what basis?

A. Semi-organised. Certainly there were shifts. You would see people go up to the fort to spend time up there - the fort I refer to is up here --

Q. Srdj.

A. -- Mount Srdj - and then coming back and doing their ordinary jobs.

Q. As to the JNA weaponry and forces, what can you say about that?

A. Well, overwhelming. From what I could see, there were planes that ¹⁶⁸¹⁵ were able to come in at will, and did, and attacked specific targets like the fort and radio masts and other targets. They were the ships that could sit at will out in the bay and shell wherever they wanted. There were big guns and tanks on two mountain positions. The one at Zarkovica was the one that I could actually see and you could see from time to time the barrels of the big guns firing down. I didn't get close enough to actually be able to say what calibre of weapon they were, but they were obviously, from their size and how far they were able to fire, they were very heavy.

Q. Was it a war? Was it a balanced event? How would you describe it?

A. It was an extremely imbalanced event. It wasn't a war. It was an onslaught with the people on the receiving end occasionally using what little they had to fight back. But it wasn't like a two-way traffic in any way. It would be one-way traffic, and very occasionally there would be an attempt to hit back at something, but that would be very sporadic. Most of the time it was simply one-way.

Q. Apart from the couple of or few weapons you've described, was this a civilian place, as we've heard, a civilian population?

A. It was a civilian population, yes.

Q. Did you see any justification for the quantity of firepower directed at it?

A. I'm not a military expert, but no, apart from to terrify and, if they wanted to, to capture it.

MR. NICE: Your Honour, the balance of the evidence of this ¹⁶⁸¹⁶ ^{BLANK PAGE} ¹⁶⁸¹⁷ witness is in his witness statement. I think we've already produced it. I'm not sure if we have.

JUDGE MAY: Yes, it's been exhibited.

MR. NICE: I should, of course, get the witness to confirm, if he didn't do this on the last occasion, that he signed his statement, he signed an addendum correcting it of the 5th of February 2003.

THE WITNESS: I did, yes.

Q. And with those corrections, subject to any odd things that may have slipped through, one or two I've detected, those statements are accurate?

MR. NICE: The only thing I've found that slipped through, Your Honours, is a reference to December on the first page which I suspect is inaccurate. That's December, the first statement. From the witness's summary, with the Court's leave, there may just be one or two other things that I would like to touch on but I think they've nearly all been covered now. Nothing there. Thank you very much. Oh, yes. There's one thing: I think this witness went to Mokosica and saw the JNA had occupied the village. This is paragraph 14 of the summary, as Your Honour -- and he saw there soldiers with long beards referred to as Chetniks who roamed the village.

Q. Is that correct?

A. Some of them. Some of them. I also saw some very -- very well organised, what looked to be what I would call regular army units, but the people that I saw rounding up the inhabitants and forcing them out of the cellars where they'd taken shelter were the ones that I described there. ¹⁶⁸¹⁸

Q. The witness also saw, following the November attacks, people dying and injured because they'd been hit by shrapnel and saw people in the hospital, most of them civilians, many of them elderly. Would that be correct?

A. That's right, yes.

Q. On the 11th of November, the witness stopped counting when he registered a thousand shells falling on Dubrovnik. Would that be correct?

A. Yes. That's a thousand, a total from land, sea and air.

Q. On the 14th of November, when the ECMM mission left Dubrovnik by ferry, as you explained on the last occasion, you and your cameraman were the only presence in Dubrovnik, and there were a lot of civilians then from surrounding villages who had left with a contingent of internationals; is that right?

A. Yes. It appeared as if some sort of cease-fire had been negotiated to allow women and children and I suppose what you would call neutrals to leave.

Q. Because there was a sense of doom in the city?

A. There was a terrible sense of doom. People were fighting to try and get their children on the boat that weren't on the list.

Q. Thank you very much. Wait there, please. You'll be asked some more questions.

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

Q. [Interpretation] You claim that up until the 30th of September, when the siege of Dubrovnik started, that you were in Zagreb and that that ¹⁶⁸¹⁹ is how you covered the development -- developments in different parts of Croatia; is that right?

A. For a period of time, I had been based in Zagreb and, yes, that's how I'd been covering the -- I'd been travelling from Zagreb to places like Osijek and Vukovar to cover it. My company had another correspondent who was based in Belgrade who was doing the same but from the other side.

Q. And your reporting during that period of time, did it come down to immediate reporting from the spot? Did you report about events developing on the ground, or did you use some other sources of information?

A. It was mostly from developed -- from material we filmed ourselves on the ground where I'd been present. Occasionally we would add to that an agency picture which would be incorporated into the report. But it would be agencies to which we were affiliated and have a trust and a relationship. By that I mean Reuters and WTN, as it was.

Q. So your reporting from Dubrovnik, or link to Dubrovnik, began on the 31st of October 1991 when you sent out a report about travelling to Dubrovnik and how the ship was searched; is that right?

A. That's correct, yes.

Q. Is it also correct that you travelled in a convoy to Dubrovnik which was led by Mesic and that next to you or by you there were 200 or 300 other people, singers, musicians, and others who accompanied you?

A. Yes. It was a flotilla. It was led by the large ferry the Slavija, but there were a lots of small boats as well, and there were a number of well-known people, some politicians and other artists and singers amongst the people. It was a -- appeared to be some sort of a ¹⁶⁸²⁰ movement to protest against any damage to Dubrovnik.

Q. Were you acquainted with the contents that the convoy was carrying?

A. I wouldn't have had a complete knowledge, but I was our -- our equipment was in the hold of the main ferry, so I could see quite a lot of what was there, and what I did see included a lot of food and medical equipment.

Q. All right. In view of the fact that as one of the travellers in this convoy you didn't know what the convoy was actually transporting, do you think that the navy that searched the convoy, and you reported on that, could have known about that without having searched it?

A. No, they couldn't have known what was in the hold without having a look.

Q. When did you write your first report about the first shelling of the city?

A. I believe it would have been the 1st or 2nd of November. It would have been within a day of arriving. The very first report that we sent out was the report which had all the pictures of the convoy, the ship sailing in and being stopped and searched and being allowed in. The second report that we sent out would have been showing the first shelling, though the shelling was very light, by comparison, during those early days.

Q. Well, the topic of your first report was the effect of the blockade of Dubrovnik, is that right, what effects that had?

A. Yes. ¹⁶⁸²¹

Q. However, in your statement you say that there was an exchange of fire; is that right?

A. I believe that's right, yes.

Q. Do you remember, then, how the conflict actually started at the beginning of November? Who was the first to shoot?

A. I'm not sure I would have been in a position to know that. I certainly wasn't aware of being somewhere where suddenly, from a position of relative peace, somebody started shooting. Rather, it was -- I was in the city with my crew, filming, and we heard gunfire and went as close as we were able to -- in order to film it, and the exchange was already happening.

Q. But you do not know the answer to the question who was the first to open fire?

A. No. I would not have been in a position to know who started the shooting.

Q. And from which positions did the Croatian forces open fire?

JUDGE MAY: Can you answer that, Mr. Davies, or not?

THE WITNESS: I can answer it but I can't answer it. I wouldn't have known from which positions either side started the initial exchange of fire. All I would have known was that there was -- there was fire. I would have heard the shooting and then I would have made my way to somewhere where I could see what was happening, but certainly I -- it would have been quite a freak if I'd have been in the actual position to witness the very first shots being fired.

MR. MILOSEVIC: [Interpretation] ¹⁶⁸²²

Q. But, Mr. Davies, your first report shows undeniably as a fact that in Dubrovnik there was the presence of armed formations that were shooting at the JNA. Is that right or is that not right?

A. I can't -- I can't remember the exact content of the first report. There were many reports. But certainly there were -- there was an exchange of fire. The Croatians were taking part in that exchange of fire, and they would obviously have had to be armed to take part in that exchange of fire. So to that degree, the answer to the question is yes.

Q. And where were you on that first day, at which position, the first day when the shelling took place, the one that you reported on?

A. I would have been -- initially I was -- is that me? Initially I was in the old city. Well, initially I was in the Hotel Argentina, then later in the old city. And we travelled down to the port area.

Q. All right. In your report from that day, you say that the JNA was shelling in order to break the will of the defenders. Doesn't this report undeniably show that later, on the 3rd of November, there was still exchange -- there were still exchanges of gunfire? Where did the shooting come from? You were there.

A. It's very difficult to answer exactly where the shooting came from. On the occasions that you could actually see guns being fired, then we filmed them and it was in the report, along with a description of from where the shooting came from. Much of the time you heard incoming shells without necessarily knowing where they'd been fired from. It's certainly not possible to exactly identify where every, or indeed many, of the ¹⁶⁸²³ shells were being fired from, apart from to say though that they were coming from outside the city and being fired into the city.

Q. All right. Could you identify where the shellings were coming from from town and what the targets were that were engaged from the old town?

A. If by "engaged from the old town" you're saying that there was shooting from the old town going out, in other words Croatian shooting, I didn't witness any gunfire from the old town ever.

Q. Mr. Davies, you mentioned that there were -- old city walls that were built to stop arrows cannot resist the military equipment of the twentieth century. Well, what are the walls that were damaged by this equipment?

A. They were the walls of the old city. In fact, the words I used were that, "Walls built to withstand arrows and spears were now being subjected to --" I didn't say they were being destroyed by, I said they were being subjected to -- "twentieth century weaponry." And it is true that the walls built to withstand spears and arrows in many cases also withstood the missiles that were fired at them, although some damage was done to the outside of the city. There was, of course, worse damage caused when the missiles went over the walls and into the city itself.

Q. All right. In your report, you call exchanges of gunfire as "breaking the will of defenders." As an experienced war reporter, as an experienced journalist, what is the kind of impression that your readers can gain if you use this kind of window dressing?

JUDGE MAY: Not for the first time it is you who is ¹⁶⁸²⁴ misrepresenting the evidence. The evidence is not that it was an exchange of gunfire which was breaking the will or intended to break the will of the defenders, it was the assaults of the shelling of the JNA. That is what the witness plainly says.

Now, you're trying to misrepresent it, as I say, not for the first time. We will ask the witness to clarify the point. What the accused is putting, Mr. Davies, so you can deal with it, is that this was no more than an exchange of gunfire, and if it was an exchange of gunfire, it would be a mischaracterisation as describing it as intended to break the will of the defenders. That's the point which he seeks to make.

Now, perhaps you could answer that very shortly.

THE WITNESS: It certainly wasn't an exchange of gunfire in terms of there being any sharing of it. It was an extremely one-sided business, and the firing that did come from the defensive positions was occasional, was sporadic, was not very effective because of the weaponry they had, and it was an altogether one-sided business. And if I characterised the constant bombardment of what was largely a civilian population as an attempt to break the will of the defenders, then I think that's quite an accurate description, and certainly it was my opinion at the time, and I was in the centre of it and I think well qualified to make that judgement.

MR. MILOSEVIC: [Interpretation]

Q. A short while ago, Mr. Davies, we clarified one thing that was not being contested?

THE ACCUSED: [Interpretation] Mr. May, I'm referring to the ¹⁶⁸²⁵ reports that this witness sent from Dubrovnik. I'm not only referring to his testimony here. So please bear that in mind. Let's not create any confusion between what he said here just now and what he reported on as a journalist previously.

Q. So already from the first statement we concluded as a fact, as an irrefutable fact that there was a presence of armed units in Dubrovnik who were opening fire from the town itself. Did I hear you well? Is there a report of yours to that effect or are you denying it now?

A. There were armed people inside Dubrovnik, not necessarily, in the vast majority of cases, what you would call an organised unit. Most of them appeared to be just ordinary citizens.

And yes, at times they did attempt to fire back, having come under very, very heavy fire. At no time that I was there did I ever witness the people or the defenders, or however you would like to characterise the Croatian forces that were there, opening fire first. Their attempts at taking part in the conflict, if you like, were minimal and very ineffective, but even so, they only happened after they'd been subjected to heavy bombardment.

Q. All right. Did I hear you well when you answered a short while ago that you did not know who was the first to shoot?

A. You did.

Q. I'm talking about the fourth day of the shelling when you reported that two persons were killed. Who were these two persons? Was that contained in your report, who those two persons were, that is?

A. It was not, and the reason it was not contained in the report was ¹⁶⁸²⁶ that I don't think at that time I was aware. All I knew from talking to the hospital was that two people had been killed; a number of people had been injured and that two had been killed at that time. That was the amount of the information I had at the time I had to send the report out.

Q. Did you establish later on whether these two persons had been armed persons, members of the Croatian Guards Corps, foreign mercenaries, or were they ordinary civilians? Because you referred to two persons only; isn't that right?

A. I did refer to two persons only. I did not establish the identities of those two. Events moved on very quickly from then onwards. If it is in some way an answer to what you're saying, at times I was aware of exactly who people were who died. I saw civilians who died, old man knocked off his bicycle, children. I also saw a small number of people who had been fighting, who had been killed in the fighting, and I was aware of one person in particular who I'd met on one day who died later that day who had been involved in the fighting. So the answer to your question is that both civilians and people who had been involved in the fighting died.

Q. So both soldiers and civilians.

A. Both soldiers and civilians died, yes.

Q. When describing that fourth day, you said that the JNA targeted Croatian artillery positions that were hidden in the city forest. I assume that you are referring to the city park. Isn't that right?

A. I believe so, yes.

Q. So the JNA targeted the Croatian artillery because it was hidden ¹⁶⁸²⁷ in the city park, and that is from where they were shooting at the JNA. Was that your conclusion?

A. If the city park is the area that I was referring to before, which is the area sort of around here, then that would be the -- that would be my conclusion.

Q. Why didn't you mention that in your report?

A. I thought we just agreed that I did, that they were targeting guns that had been in the woodland. I thought I said that.

Q. But you did not mention that this artillery was shooting at the JNA. That's what I'm asking you. We did agree a short while ago that that is from where fire had been opened at the JNA.

A. I would think that -- I would think that it's fairly obvious if there were -- very difficult to remember the exact phrase I used when it's not in front of me. Certainly by saying that the guns that were hidden in the woodland were being targeted would seem to me to be giving the impression that those guns were there to be used.

Q. So, Mr. Davies, on the fourth day of the blockade we actually still have an exchange of gunfire, don't we; isn't that right?

A. Well, it would seem to me that that really depends on how you define an exchange of gunfire. If an exchange of gunfire means that two sides fire at each other and one doesn't take into account the overwhelming amount of firing that's being done by one side and the defensive minimal amount that's being done by the other, then, yes, you could say it's an exchange of gunfire, a very one-sided exchange but nevertheless an exchange. ¹⁶⁸²⁸ ^{BLANK PAGE} ¹⁶⁸²⁹

Q. All right. But as a journalist, I assume that you were informed in detail that the JNA was broadcasting radio messages saying that there should be no shooting at the JNA and that not a single bullet would be fired at anyone if shooting against the JNA ceased. Do you remember these messages?

A. I do not remember those messages, no. They didn't -- they didn't reach me.

Q. All right. The main targets of the JNA, according to your report, were positions of the Croatian defenders, as you had put it, on the fortress of Srdj. Is that right?

A. It appeared to be. I can only describe what I saw, but I did see it for a period of time, and it certainly seemed to be the main target for a long period of time, yes.

Q. All right. Is this also the position from where the JNA members were shot at or are you denying that as well?

A. I'm not denying it. They may well have been shot at from there. Certainly there were people -- there were Croatians with guns up there. I didn't actually see any gunfire coming from the Croatian side on top of the fort, and when I went to up to the fort - and I did go up to the fort a number of times - what I saw mostly was the Croatians under very strict orders not to fire, not to fire unless they actually thought there was a great danger of the fort falling, and certainly not to fire unless they were fired at first, and not to use the ammunition which was very, very -- in very short supply.

But most of the time they were spending in -- there were cellars ¹⁶⁸³⁰ underneath the fort, and they were having to come down from the open positions on top of the fort into the cellars to take shelter because the bombardment was so strong that you wouldn't have survived if you stayed up on the top position.

So getting back to the answer to your question, I didn't actually see guns being fired from the defensive positions at any of the times that I was there, but yes, they did have guns.

Q. So you claim that they had received orders not to shoot, but you are not saying that they actually did not shoot; right?

A. I'm saying I was told they had orders not to shoot, and during the times that I was there and the times that I witnessed, they didn't shoot. What I can't say is what they did during the times that I wasn't there or wasn't witnessing what was happening.

Q. While you were there, did they shoot at you? Were you shot at from JNA positions?

A. Not at the time that I was on the fort. Not on Srdj. I was not shot at.

Q. So when you were at Srdj, the forces from Srdj did not shoot at the JNA, and the JNA forces did not shoot at Srdj. So let us strike a balance there. Is that right?

A. That is true. There was an occasion, however, when I was up there when we had to take shelter because the -- if the fort was bombed. And we went into the cellars, spent some time there.

Q. Is it correct, Mr. Davies, that in the immediate vicinity of the Dubrovnik hospital there were also Croatian forces positioned there and ¹⁶⁸³¹ that from these positions fire was opened at the JNA too?

A. I don't know that for sure. I didn't see it. All I can answer is that I do know that there was a lot of fire emanating from around the hospital position, and I didn't -- I didn't see outgoing fire, but I did hear that there had been a time when the mobile mortar positions had operated close to there and that that might have been in some way involved in some of the fire.

A colleague of mine spent a lot of time at the hospital, and he was certainly aware of the grounds of the hospital coming under fire on several days.

Q. All right. But now we've come to the next day. We've come already to the 7th of November. And as regards every particular day, we come to the conclusion that there were exchanges of gunfire, that there was shooting from Dubrovnik against the JNA. You were testifying to the effect that the JNA was targeting Dubrovnik, but we have established that the JNA was being targeted every day from Dubrovnik too.

JUDGE MAY: Do you accept that characterisation of your evidence? Is that what happened?

THE WITNESS: No, not really. If he makes the point that -- he keeps going back to that there was an exchange, but it really comes down to the definition of what an exchange is. At certain times there was a small amount of what I would characterise as defensive gunfire going out from Dubrovnik, but to my mind, that isn't an exchange.

MR. MILOSEVIC: [Interpretation]

Q. All right, that's your judgement, but let's not deal with your ¹⁶⁸³² judgements at this point. The fact remains that the JNA was shot at every day from Dubrovnik. Are you denying that fact?

A. No. If I could just go back a little bit. No, I'm not denying it. In fairness, I think there were probably odd days when there was barely any shooting on either side. So just -- it would be wrong to say that both sides were shooting at each other every day. I think there were probably odd days where, for various reasons and what appeared to be talks going on, that there wasn't firing.

Q. And is it true that there was never any firing from the JNA on the day when there was no shooting from the Croatian National Guard Corps, from Dubrovnik?

A. I wouldn't say that, no. No. But again, it's very difficult for me to say who fired the first shot of any exchange. It's easy for me to say, from taking an elevated position for a day, that Dubrovnik suffered X hundred or over a thousand shells fired at it and probably fired a dozen or so going back. That's easy. What's impossible for me to say is who fired the first shot on any given day. I don't think anybody can say that other than the military commander responsible.

Q. In your report of the 7th, you say that five shells fell on one house, five mortars. Now, are you saying this on the assumption that you were reporting exactly? And if you were, was that selective shelling or ad hoc shooting of projectiles?

A. I don't know if it was selective or ad hoc. It certainly all seemed to land in the same area. Again, all I can really say is that it was what we witnessed. It was -- ¹⁶⁸³³

Q. All right. Well, were you able to establish what was in that house, the house that was selectively shot with the five mortars or shells? Did you ascertain whether fire had in fact been coming from that particular house on the opposite side's positions?

A. I don't believe that fire -- I don't believe that fire had been coming out from that house or, judging from its position, that it would have been in any -- any sort of position to inflict any damage on the JNA forces. But again, I couldn't be a hundred per cent sure. We were filming from some distance away at the time of the impact. We would go to investigate immediately after the shelling stopped. You would never be a hundred per cent sure that something wasn't happening before you started filming. It would have been the first incoming shell that would have attracted our attention to it and then you would have very soon noticed that this particular area was being given a particularly bad treatment.

Q. All right. Let's move on with our questions, a few more. Let's just ascertain one point: On the 8th of November, you were at Mount Srdj, were you not?

A. Yes, I believe I was.

Q. And you saw members of the Croatian forces there, and according to what you yourself say, they were armed with rifles, heavy machine-guns, and mortars; is that right? Just yes or no, please.

A. No, but I can -- I can qualify that no answer for you, if you'd like. I didn't see heavy machine-guns and I didn't see mortars. I saw a heavy machine-gun. I saw a mortar.

JUDGE KWON: Mr. Davies, you have your statement in front of you? ¹⁶⁸³⁴

THE WITNESS: I don't, no.

MR. MILOSEVIC: [Interpretation]

Q. All right. So you say you saw one machine-gun and one mortar.

JUDGE MAY: Let the witness have his statement. Page 4.

THE WITNESS: Thank you.

JUDGE KWON: Could you locate the paragraph number 14.

JUDGE MAY: It seems to be page 6 on your copy.

THE WITNESS: Right. I have it. Right. My statement seems to fit in with my memory. I saw one heavy machine-gun, and I also saw a mortar being moved.

MR. MILOSEVIC: [Interpretation]

Q. All right. That means they had rifles. How many of them there? That is to say, members of the Croatian forces, how many?

A. I think during the course of the day, I saw around two dozen. They constituted two shifts. There appeared to be about a dozen in each shift.

Q. All right. The fact that you saw one heavy machine-gun and one mortar does not mean that you necessarily had to see all of them, or do you assume that what you saw was all there was?

A. No. I've learnt not to make assumptions. I saw what I saw. That doesn't necessarily mean that they had more or less.

Q. Well, they couldn't have had less than what you saw. They could just have had more. But tell me, is it true that they said whoever controls Srdj controls Dubrovnik? Is that what was said?

A. I think I said it. It was one of those sort of flowery ¹⁶⁸³⁵ journalistic phrases that you use.

Q. Well, is it true that in your daily report of the 8th of November you listed that the targets of attack were the most important positions, as you yourself say, of the Croatian defenders on Napoleon's fortress; is that right?

A. That's right.

Q. That means that the JNA was shooting the fire positions, the firing positions of the Croatian forces themselves. Isn't that right, Mr. Davies?

A. They were certainly shooting against the positions where the Croatian armed men were. I wouldn't characterise them as being firing positions. I didn't see them firing, and they didn't appear to have anything that was big enough or heavy enough to fire from those positions at the nearest JNA positions. In fact, I remember seeing one mortar that I did see being moved away down the mountain so that it could be moved close enough to be used if it was going to be used.

Q. All right. Let's sum up the 9th of November, just like the previous days. Is it true that on the 9th of November as well there was an exchange of gunfire between the federal forces, as you call them, and these other forces concentrated around Dubrovnik?

A. The 9th of November was when what seemed to be the heaviest attacks started, and yes, the people defending the city will have fired back. But this was the start of an incredibly one-sided attack coming into the city of Dubrovnik.

Q. So one-sided, although there was an exchange of fire. And is it ¹⁶⁸³⁶ true that fire was opened precisely from the Napoleonic fort that you mentioned?

A. I didn't see fire being opened up from the fort, no. It may well have happened, although the fort was taking a terrible battering that day. From my memory, I think it was being bombed by planes and being shelled, and it was around that time that they actually pulled their people back down off the fort because it was impossible to survive staying up there.

Q. And is it true that you say that with artillery fire they weren't able to hit the top of Mount Zarkovica and the gun battery there? I'm talking about your report, referring to that.

A. Certainly that's what we saw. We saw some rounds of some description being fired up Zarkovica and falling short of the JNA positions, yes.

Q. Weren't hitting them; right. And at the end of your statement you say that there was fighting in the hills as well. Is that right?

A. We could see rounds being fired in the hills, yes. It was getting dark. It was impossible to characterise who was doing what to who, but there was gunfire up there, and you could see the glowing tracer rounds going through the trees.

Q. All right. And tell me this: Can we, on the basis of that, conclude that apart from the town and its environs, the fighting also took place in the hills?

A. There was times when the fighting took place in the hills, yes.

Q. And do you happen to know that from this village called Bosanka which you mentioned between Srdj and Zarkovica, that sniper fire was ¹⁶⁸³⁷ opened targeting JNA positions? Do you know about that fact, and was that something that you knew about then?

A. I didn't know it as a fact, but that was the direction that this gunfire that we were hearing at night was coming from.

Q. All right. Now, as far as I can see, as the JNA was to have taken over the village within the space of 24 hours, who did they fight against to take control of the village for those 24 hours? Who were they fighting?

A. Again, I didn't witness it. There was fighting up in those hills, and that's as much as I can say. I heard it. I didn't witness it. I certainly can't say who they were fighting without guessing.

Q. All right. And in your report of the 9th of November, did you state that the JNA shelled the Napoleonic fort as one of the strongest -- as one of the strongholds of the Croatian forces and the mightiest stronghold, in fact? In your 9th of November report. That's what I'm referring to. You said that the JNA attacked the Napoleonic fort which was one of the most vital positions of the Croatian forces, the strongest.

A. Yes, I think I called it a stronghold or something like that. Yes, I would have said that. I did say that.

Q. So we've already established that on the 8th and 9th of November, there was an indeed an exchange of gunfire; right?

A. I think we're back to that same dispute --

JUDGE MAY: There's no point again. Mr. Milosevic, just making the same point over and over again doesn't assist. No doubt you think it does. It doesn't. ¹⁶⁸³⁸

THE ACCUSED: [Interpretation] I am not repeating at all. I am taking things day by day, Mr. May, because there was an exchange of fire on every single day. So does that mean that there was an exchange of gunfire on the 10th of November as well?

JUDGE MAY: No. And the point is this: The witness says that you misrepresent things when you describe it as an exchange. So we go round and round the same point. You can call your own evidence in due course. Let's move on.

MR. MILOSEVIC: [Interpretation]

Q. Very well. Mr. Davies, I'm not going to dwell on this. There is enough material and footage taken by you. All I would like to ask you is for you yourself to read out what I have noted in red, that one paragraph, and then would you return the copy to me. It says Paul Davies, ITN. I have marked it in red, and you can see the footage of the explosion at Zarkovica and what you yourself said.

THE ACCUSED: [Interpretation] Could I ask the usher to hand this document over to Mr. Davies for him to read out what he himself has written. Could you put it on the ELMO, please, as well. The passage marked in red.

JUDGE MAY: Mr. Davies, you are going to be handed a document. First of all, identify it. It is asserted that it is a report of what you said. I don't know if we have the date of it, but perhaps you could tell us if you recognise the document and what it is and whether it represents what you've said.

THE WITNESS: Yes. I recognise this. This is part of -- I think ¹⁶⁸³⁹ it's part of the long report that we saw part of in court last week.

JUDGE MAY: Could you tell us what day that was, if it's dated.

THE WITNESS: I'm not sure that it is dated. I certainly can't see it.

JUDGE MAY: Well, if it's not apparent. So you're able to identify it, and it does accord with what you've said; is that right?

THE WITNESS: It does indeed. And I think I've referred to it earlier today as well. I at no time have been trying to say that gunfire did not come out of the old city.

MR. MILOSEVIC: [Interpretation]

Q. Mr. Davies, please, would you be so kind as to read out your own words there on the document. And I've marked the passage out in red. The photograph and the text. Would you read it out loud, please, your own text.

A. Indeed. "There was a notable success for the Croatian defenders when their guns hit the nearest federal artillery battery on Mount Zarkovica, igniting an ammunition dump, but their celebration was cut short as stray bullets ricocheted around the ramparts of the hold city. Shells falling into Dubrovnik's main harbour hit one of the ferries that had been unable to leave port because of the naval blockade."

Q. Mr. Davies, you used the expression, if I have understood you correctly, "ricocheted." That's the expression you use in that passage.

A. Indeed.

Q. Is that right?

A. It is. It's -- that's what it says here, and I have no reason to ¹⁶⁸⁴⁰ ^{BLANK PAGE} ¹⁶⁸⁴¹ believe that that's not right.

Q. Well, all right then. That means that when that ammunition dump was hit, then different projectiles dispersed all over the place and over the old town as well; isn't that right?

A. Not necessarily. That's not my memory of it. I don't think it was close enough for -- for that to be what was happening. What I do remember - and again it's just straight from my memory - is that we were filming from the ramparts of the city, we saw this -- this hit, we saw the explosion and then a number of smaller explosions which is why - and it is an assumption - that it was an ammunition dump that went up, but it looked exactly like other ammunition dumps that I've seen being hit, and a short time later there were some rounds hitting the rampart. I didn't know what they were, but I know we were ducking down because something -- something was hitting close to where we were. And indeed, the pictures that we broadcast showed that. But I wasn't of the impression that they were coming directly from the top of the -- from the mountain and from this explosion. I would -- it's possible, I suppose, but I didn't make that link at the time.

Q. Yes, but doesn't your text speak about the event? As I understood it -- read it to yourself once more, please -- what happened was they hit the Croatian forces, the warehouse or, rather, the ammunition dump at Zarkovica, and once it had exploded, there were stray bullets and dispersed bullets all over the place, all over town, mortars flying up from this ammunition dump which had been hit, and that is how these numerous but small-scale damages on the roofs, et cetera, took place and ¹⁶⁸⁴² occurred. They're not artillery hits, in fact, but you used the term "ricocheted," so it was the ricocheting of these bullets that caused the small damages; not the bombing and not the shelling.

A. No. That's absolutely not the case. This incident that's described here, of ricocheting, was a small-scale thing that happened quite soon after the explosion on top of Zarkovica. The larger explosions and the damage that was done that day happened before this and happened after this. That wasn't the incident that caused all of the damage at all. I'd be quite surprised if it caused any real damage. It's quite a way, from the top of that mountain, for things to be dropping in the parts of Dubrovnik that were damaged. I just don't think that could have been the case.

Q. Mr. Davies, all I was trying to do was to have you yourself read out your own words. I'm not saying anything one way or another, but you were there and that's what you wrote. But let's not waste time. Let's move on. You say, and this refers to the 10th of November, and I'm quoting the last paragraph of page 5 of your statement: "In addition to that, the frigate of the federal navy -- moreover, the federal navy frigates fired from the sea but these naval frigates were totally out of range of Croatian defenders' guns," as you call them. "The day ended with pitched battles at the hilltop."

So fire was opened from the sea. Those who were on land were not able to reach these positions, the range of the guns were not long enough, of the frigates as you call them, although they weren't frigates in actual fact. They were patrol boats along the blockade. And the day ended and ¹⁶⁸⁴³ I'm quoting you here, with "pitched battles" as you yourself state, at the hilltop, or decisive battles. Do you say that on the 10th of November there was no exchange of gunfire between the forces in Dubrovnik and the JNA?

A. Do I say there was no exchange of gunfire? There was gunfire. There was gunfire from one side coming in in large quantities. There was some gunfire going out, and again if we want to go back to what constitutes an exchange, then we can do, but I just wouldn't want to characterise it as any sort of this is two sides slugging it out on any sort of equal terms. It was an onslaught from outside with occasional resistance from inside.

And when I talked about "pitched battles," this was not decisive battles or whatever. It was gunfire, and again, night-time gunfire where you could see hundreds of tracer rounds being fired through the trees.

JUDGE MAY: We're going to adjourn now. It's time for the break. Mr. Milosevic, we will give you another 20 minutes, if you require it, to cross-examine after the adjournment.

THE ACCUSED: [Interpretation] Well, I need a little more time than that, Mr. May, more than 20 minutes.

JUDGE MAY: It will give you more than the hour which we usually give for these Rule 92 bis witnesses. It will give you 70 minutes to the 40 or so minutes the Prosecution had. Yes.

MR. NICE: Your Honour, it's a question of how to use the balance of the morning. I'm anxious to get on with the financial argument. I don't know if you have time for that. I hope so. It's been very fully ¹⁶⁸⁴⁴ argued.

JUDGE MAY: Let's begin that after.

MR. NICE: And then we'll start Ambassador Okun first thing tomorrow morning.

JUDGE MAY: Very well.

MR. NICE: He has a university class he has to make, if at all possible, next Monday, in America.

JUDGE MAY: You said he was an ambassador.

MR. NICE: But he's now in retirement and he teaches.

JUDGE MAY: We'll adjourn.

--- Recess taken at 12.19 p.m.

--- On resuming at 12.42 p.m.

JUDGE MAY: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] Mr. May, before I continue, may I just say one thing? This report whose authenticity was confirmed by the witness was one that I received in accordance with Rule 68, and the page is 0042783. And I don't want to challenge this sentence - we have it here, we also have it on videotape - but it says: "When this ammunition dump was hit, it says, [In English] [Previous translation continues]... were cut short as stray bullets ricocheted around the ramparts of the old city." [Interpretation] That is why I want to have this admitted into evidence, this particular page that I quoted which I received earlier.

JUDGE MAY: If we admit anything, we'll have to admit the whole report.

MR. NICE: Can I help? This passage comes from a part of the film ¹⁶⁸⁴⁵ which was edited for reasons of brevity. I've got the whole video available, and I was going to offer it to the Chamber in re-examination. I think it would involve probably listening to about another five minutes if we took all the lead-up to the part of the film which has been played so far.

JUDGE MAY: Very well. And would -- the report of it then could conveniently be exhibited, attached to the tape?

MR. NICE: Your Honour, I think the position is that there are no -- this passage has gone as Rule 68. The rest of the video will come without a transcript because it's in English. But of course if it's played over the machinery here, there will be effectively a transcript of the whole report from LiveNote.

JUDGE MAY: Well, why don't we have this one too? It's 395A.

MR. NICE: Absolutely.

JUDGE MAY: Give it that number, please, if that's the appropriate number. I'll check with the Registry.

THE REGISTRAR: Yes, Your Honour.

JUDGE MAY: Yes. We will admit that.

THE ACCUSED: [Interpretation] I just wish to note that I quoted it as I received it according to Rule 68. I did not shorten anything. I quoted the exact wording that accompanied the images of the explosion at Zarkovica.

MR. MILOSEVIC: [Interpretation]

Q. Now, tell me, the recording we saw here on Friday the 25th of -- the 21st of February, when was it actually done, Mr. Davies? ¹⁶⁸⁴⁶

A. The -- the recording that we saw in court last week, that was put together over a period of days that started, I believe, on the -- either the 8th or the 9th of November, and it ends on the 12th of November. It's in chronological order. We were unable to get our news reports out at the time. All the television transmitters and masts and the other various routes we had of getting material out had been stopped. So we were compiling the story of each day and then adding to it on the following days. What effectively went out was the diary of four or five days.

Q. All right. I understand that. My question was just when you actually made this. I have to save time, and please bear that in mind. The ITN recording, was it shown in its entirety?

A. Yes, it was.

Q. What we saw the other day is your entire recording?

A. No, it's not. That was -- I think we saw three minutes, four minutes, something like that. The entire recording is about 11, 12 minutes long.

Q. All right. Is it correct that in your original recording you did record the artillery attacks of Croatian forces against the JNA, inter alia, Zarkovica and the others?

A. Certainly the episode that showed the position on the top of Zarkovica being hit was in the recording.

Q. Later on, what we see around the city walls of Dubrovnik, is that what fell all around the walls after the ammunition dump was blown up?

A. No.

Q. Tell me, from which position did the Croatian forces hit the ¹⁶⁸⁴⁷ ammunition dump that you referred to?

A. I can't be sure. I could guess, but I certainly can't be sure.

Q. Can the Croatian artillery positions be seen on any of your footage, either that that was broadcast or that that remained unbroadcast?

A. No. No.

Q. Were you in a position to film that?

A. No, never. Occasionally in a position. It didn't happen very often that there was fire. When it did happen, occasionally we were able to film the fire and the explosions and the damage, as in the case of this one particular hit. We were not in a position to film the actual guns firing. As I believe I explained earlier, they were very mobile, moving around, firing, and then going somewhere else.

Q. Tell me, did somebody forbid you to film that?

A. No. No.

Q. In your original recording, in the integral footage, that is, are there any uniformed, armed Croatian forces within the old city walls? Is that on that footage?

A. I don't believe so. It's very difficult to remember everything that we filmed that wasn't broadcast so many years ago, but I don't believe that we did film any uniformed in the old city. We certainly never saw, or we would have used it, anybody in gun positions or firing, or even uniformed people on the parapets. There were no restrictions on us filming, and if we'd have seen that, we would have filmed it and used it.

Q. All right. I have the impression, having seen all the footage you ¹⁶⁸⁴⁸ made, that the camera when you were actually doing the filming of these alleged hits of the old city walls was fixed. So was the camera fixed?

A. No. The camera was moving around all the time, on different days, different places. Obviously, there were certain times when something was happening and you were in a good vantage point to film it that you didn't move very far for a while. The best example of that was when the wire guided missiles were hitting the walls of the old city. We were in fact somewhere just outside the Hotel Argentina, by the coast, and we had a very good view of the missiles actually travelling across the bay and hitting the walls of the city, and it might appear that that's a fixed position but it's only fixed in that it was a good position and we stayed there for a little while.

Q. Did you know in advance that the old city would be shelled?

A. No. It came as a surprise.

Q. The camera is not following the missiles that are allegedly hitting the city walls. Just give me a yes or no answer. Can this be seen or can that not be seen -- could it have been seen?

A. I'm sorry, you'll have to ask me that question again.

Q. On all the footage, nowhere can it be seen that the camera is following the missiles that are allegedly hitting the city walls. I'm just asking you whether this route that the missiles traversed can be seen anywhere. I'm asking you about the missiles that were hitting, allegedly, the old city walls.

A. Well, you can see very clearly that they're being fired -- the camera picks them up as they're coming across the water and follows them ¹⁶⁸⁴⁹ as they go over the old port area, and some of them hit the boats in the old port, they don't reach the walls, and some of them hit the walls and explode, and the camera follows that all very clearly and I don't think there's any "allegedly" about whether they hit the walls or not because it's there on the footage that we've seen in the court.

Q. All right. You have got some smoke on the footage, but tell me, since you're an experienced war correspondent, what did the JNA use? Which particular artillery piece did it use to hit the old city walls?

A. I don't know. I wouldn't be qualified to say exactly what sort of weaponry was being used. I could see with my eyes that some of them were wire guided because I could see it with my eyes and the camera could also see it. And there were others that were not wire guided as well. I couldn't tell exactly what sort they were.

Some of the missiles that were being fired didn't explode, and on later days when we went into the port, we saw them embedded in the walls of the -- of the city and the port. That's about as much as I can tell you, I think.

Q. Did I perhaps overlook something if I say that after filming this targeting of the old city, as you put it, you did not film any of the damage done by these shells to the old city walls?

A. In the report that you saw, there was not -- because the report ends on the day that the city is attacked, and that in fact is the end of the four days of the report. On subsequent occasions there was filming of the damage to the old city and to the interior of the old city. But certainly the report that you have seen ends with the attack on the old ¹⁶⁸⁵⁰ city and that particular day, which I believe was the 12th of November.

Q. All right, Mr. Davies. Just briefly. In the footage that you played for us last week, this brief clip that we saw, in one place we see thick, dark smoke coming from that -- from one particular spot. Were those the automobile tyres that were set on fire so that it would look as if Dubrovnik were on fire? Do you know anything about this? Just give me a yes or no answer, please.

A. No, I don't know whether that was or whether that's true or false. I don't know.

Q. You did not wonder? You did not even ask where this thick black smoke came from, that intensive? You couldn't establish that?

A. I could see many boats on fire, and that area of the port there were also a large number of parked vehicles there, but there were many, many boats that had been set on fire. The film we saw actually shows you boats being hit and igniting. That in itself would have been an explanation for thick, dark smoke, along with vehicles on fire in the port, which was outside the city walls.

Q. All right. I'm just asking you kindly to give brief answers because of the time.

You say that shells were falling around the Argentina Hotel, even right next to the hotel. I think you said something to that effect; right?

A. Indeed, yes.

Q. And near the Hotel Argentina, were there any positions from which the JNA was fired at? ¹⁶⁸⁵¹

A. There were times, certainly, when mortars were fired from the area between the Hotel Argentina and the Belvedere Hotel. I didn't see it. On a number of occasions I went to look, but always the people who had fired the mortars would be on their way away or already leaving, but certainly it did happen.

Q. All right. So the answer is yes. And you claim that on the 12th of November, a premeditated, incessant attack took place against the city. Is that what you said? This is on page 3 -- page 6, paragraph 3.

A. Yes. It sounds like something I would have said.

Q. How long did this incessant attack last?

A. Several hours. It's difficult to -- difficult to be that precise now, but for several hours. It was for a long time.

Q. A few hours. How many hours; two, three, five, 20?

A. You'll have to forgive me if I'm starting to -- to guess a little. My memory tells me it would have been five, six, not 20 and not one, two, or three, but nevertheless, a very long period of time.

Q. Well, since these city walls were built to withstand spears and arrows, how many missiles actually hit it during that attack? What did you establish?

A. I didn't establish. All I know is what I saw, and I saw something up to two dozen missiles actually hitting the walls. That's what I saw. I heard lots of other explosions, but with my eyes and with my camera, I captured about two dozen hitting the old city.

Q. All right. Tell me, now. On the 13th of November, nothing happened. You haven't got a report dated the 13th of November; is that ¹⁶⁸⁵² ^{BLANK PAGE} ¹⁶⁸⁵³ right?

A. Yes, that's right.

Q. On the 14th of November, as far as I can see from your report, is only important due to the fact that that is when the ECMM monitors left Dubrovnik. Nothing else really happened on that day.

A. That's my belief. And I believe it was the negotiations to allow that to happen that may well have explained very little happening on the 13th.

Q. The 15th, the 16th, the 17th, 18th, 19th, 20th, again nothing happened on those days since you haven't got any reports that refer to those particular days.

A. Difficult for me to remember at this stage. I do remember that there were some humanitarian missions came in under negotiated cease-fires and some eminent politicians came in to try to arrange for some more children and wounded people to leave. I remember I was filming, involved in filming that, and also in filming damage that had been caused during the heavy days of the shelling. But certainly the sustained assault seemed to finish on the 12th.

Q. All right, Mr. Davies. You claim on page 6, last paragraph, and page 7, paragraph 1 - I'm referring to your statement - that with Bernard Kouchner on the 21st of November, you visited Mokosica and that the inhabitants of that village were in a terrible state because they didn't know what their fate would be when the members of the JNA take them out of the cellars; right?

A. That's right, yes. They'd spent some days down in the cellars. ¹⁶⁸⁵⁴

Q. Yes. So just answer me -- you say yes. Well, what was their fate, Mr. Davies? Was anybody perhaps killed, beaten up, mistreated or anything like of that kind?

A. I don't know because we only had access to them for a very limited time. What I saw was them being brought out of the cellars. I saw some of them being terrified with guns fired alongside them to encourage them to come out from the cellars. They were, as I've said, extremely worried about what would be their fate. They were brought up to see Bernard Kouchner, and it was arranged for a small group of children to leave with Mr. Kouchner, to go into Dubrovnik and from then onwards, to be taken out of the conflict zone. We left with Bernard Kouchner under this agreement of a cease-fire that allowed to us make the visit, and I can't say reliably what happened afterwards to the people who we left behind.

Q. All right. And with respect to the 11th of November about which you say that it was the heaviest day of shelling, the most intensive shooting took place on that day, and you even mentioned some 1.000 shells. Tell me, of those 1.000 shells, how many were fired by the JNA and how many by the Croatian forces?

A. The 1.000 I mentioned - and the 1.000 was a figure at which we stopped counting and it was certainly not the total - was all incoming from the JNA. It doesn't include anything that might have been fired out. It was a total of shells, bombs, whatever, coming in from land, sea, and air.

Q. All right. Now, tell me this: On page 7, paragraph 3, for instance, third line, if I have read it correctly - and you can check it ¹⁶⁸⁵⁵ out because you have your statement in front of you - you say that: "On this occasion the shelling was so unilateral that we were not able to distinguish the order. It was evenly spaced out." Is that what you said, or words to that effect?

JUDGE KWON: Since the pages numbers are different, if you can tell the date, Mr. Milosevic. What's the date?

THE ACCUSED: [Interpretation] I'm talking about the 11th of November. And it's on page 7, paragraph 3, line 3. It says: "On this occasion, the shelling was well spaced -- evenly spaced out, that we were not able to ascertain the order."

MR. MILOSEVIC: [Interpretation]

Q. Is that what you said?

A. I can't find that.

MR. NICE: I'm somewhat confused by the accused's reference to paragraphs because of course in the version served under the 92 bis provisions, the paragraphs have been numbered in hand and it would be easier to use those.

JUDGE KWON: I think it's paragraph 30 or 31. I'm trying to find it. If you take a look at that.

JUDGE MAY: And this must be the last question, but you can ask one more when we've got the answer to this.

We can't find this, Mr. Milosevic, about being evenly spaced out, and we couldn't distinguish the order. Find another reference, if you can, where it comes.

THE ACCUSED: [Interpretation] It's page 0301848, and it is page 7 ¹⁶⁸⁵⁶ of the Serbian version, and it is paragraph 3, which goes on to the next page. It says: "Without doubt -- no doubt federal forces were shelling from land, sea, and air, but the biggest part was coming from the hills. Normally, it is not possible to film the moment a shell explodes," et cetera.

JUDGE MAY: Yes, got it. 31.

THE WITNESS: Right. I have that.

JUDGE MAY: Now, what was the question you asked, Mr. Milosevic?

MR. MILOSEVIC: [Interpretation]

Q. Well, how do you know what the JNA -- when the JNA shot and when the other side shot when the shelling was, as you say, so constant?

A. Just the difference in noise. You become aware after a very short time what's coming in and what's going out. I explained later on in that paragraph. I mean, it was so sustained, and we were able to know where it was coming from, that we could actually film the shells exploding, which is a very rare thing. In war footage, you usually see a big puff of smoke and a lot of damage. You don't often hear a whoosh and see a building or a vehicle disintegrate. And the reason we were able to do that is you could hear the pop of it being fired from the mountain, recognise where it's coming from and know the trajectory it's going to follow and roughly where it's going to impact, and actually have the camera trained on the point it's going to impact. It's an extremely rare occurrence and one that only happens when you have such a sustained bombardment that you can start to predict it.

JUDGE MAY: Your last question, Mr. Milosevic. ¹⁶⁸⁵⁷

THE ACCUSED: [Interpretation] I have several more questions, Mr. May, but --

JUDGE MAY: Ask the last one.

MR. MILOSEVIC: [Interpretation]

Q. Would you agree with me, Mr. Davies, that the JNA, which made it possible for Dubrovnik to be demilitarised for a whole series of years, could have taken control of it or destroyed it at all had it had the intention to do so? Because you yourself claim that the JNA did not wish to take control of Dubrovnik. Do you therefore claim that it wished to destroy it and do you actually state that Dubrovnik was destroyed? It didn't want to control it, it didn't want to destroy it; what did the JNA want, in your opinion?

A. Well, you're talking opinion. I certainly thought if the JNA wanted to take, or indeed to destroy, completely destroy Dubrovnik, they could do so. And obviously they didn't do so. As for their reasons to do that, that really is going down the road of opinion, and my own personal opinion was that possibly by putting that sort of pressure onto such an important economic target, as far as Croatia is concerned, other concessions might have been extracted in other parts of the conflict where possibly there were larger Serbian populations as there was practically no Serbian population in Dubrovnik. But that's going down the road of speculation and opinion. But the main point that you make and the question that you ask, could they have taken it or could they have destroyed it completely if that was their desire, yes, I think they almost certainly could. ¹⁶⁸⁵⁸

JUDGE MAY: Mr. Kay.

MR. KAY: No questions, Your Honour.

MR. NICE: Your Honour, several questions do arise, but first of all, the more extended video. The position is that the passage dealing with the firing on the dump immediately precedes the passage you viewed and it comes at the end of a total of about five minutes of footage that's in the booth at the moment. The commentary was served Rule 68, but it may now be sensible, as it's been asked about it, if the Chamber views the whole of the video. We may be able to fast forward passages that are domestic in content, I think.

JUDGE MAY: Yes.

MR. NICE: If the video booth could play the original full video that's been provided to them, starting at the beginning, and I may ask them to fast forward from time to time.

[Videotape played] "It was early Saturday morning when the battle for Dubrovnik intensified. Tanks and heavy guns of the Serbian dominated federal army pouring in fire from their positions in the surrounding mountains. The majority of the city's population took to the underground shelters. But those who ventured outside witnessed a coordinated land, sea, and air attack on their city.

"Once again, the main target for the federal army guns was the Napoleonic fort on Mount Srdj, above Dubrovnik, the Croatian defenders' most vital position. Federal navy ships appeared offshore to join the attack. ¹⁶⁸⁵⁹ "It was not a totally one-sided exchange. Here mortars fired out from the city falling just short of federal gun batteries hidden in trees on top of Mount Zarkovica. But the federal forces were able to use helicopters to spot targets for their superior firepower. "Dubrovnik under fire from the sea, and from the air. Big jets now trying to knock the Croatians from their perch on top of Mount Srdj. The bombs fell wide of their target, the fort, still intact, opened up with anti-aircraft fire. There was a notable success for the Croatian defenders when their guns hit the nearest federal artillery battery on Mount Zarkovica, igniting an ammunition dump, but their celebrations were cut short as stray bullets ricocheted around the ramparts of the old city. "Shells falling into Dubrovnik's main harbour hit one of the ferries that had been unable to leave port because of the naval blockade. It was now impossible for the thousands trapped here to escape the bombardment.

"Threats of sanctions have made no difference to the federal army. If anything, the fighting has escalated since the latest European Community ultimatum.

"In Dubrovnik hospital, most of the casualties were suffering from wounds caused by flying shrapnel. Doctors say more than half the victims treated here have been civilians. The gunboats appeared to have targeted a Croatian gunpost alongside the seafront Belvedere Hotel. The hotel, which had been a home for hundreds of refugees, was all but destroyed by the shelling.

"Saturday ended as it had begun, with the sound of artillery fire ¹⁶⁸⁶⁰ echoing around the old city.

"Sunday morning in Dubrovnik's Gothic cathedral, they prayed for peace. For many of the congregation this was the first time in days they'd dared to venture out of the bomb shelters. But outside, no respite from the bombardment. Indeed, the cross on top of Mount Srdj almost toppled by an exploding shell. Federal navy frigates appeared off the old city, firing at will safely out of range of the defenders' smaller guns. For hours shells rained on Mount Srdj and its battered fort. But some fell short and others dropped into the old city itself. "Until now, the federal forces have concentrated their attack on areas outside the old city but now their mortars are falling inside the ancient walls."

MR. NICE: Stop there. Thank you very much to the booth. May the full video be given a separate exhibit number or, alternatively, a linked exhibit number.

JUDGE MAY: It's got a number, 395. We'll stick to that.

MR. NICE: A few points arising. Re-examined by Mr. Nice:

Q. The ammunition dump hit. You spoke of there being one hit on that site. Was that the only one you ever saw?

A. Of it actually being hit, yes, it was the only one I saw. That's why I called it a notable success. It was about the only one we saw.

Q. You've been asked questions about your phraseology about breaking the will of those of Dubrovnik. Were they also shelled at night as well as by day? ¹⁶⁸⁶¹

A. There was shelling at night. Not as sustained but there was shelling at night.

Q. You've been asked questions about who fired the first ever shot. Was there ever any indication to you of any objective to be fired at by the defenders of Dubrovnik until such time as they were fired on?

A. Not at all. Not at all. The complete opposite, in fact. There seemed to be an understanding that opening fire was about the worst thing they could possibly do.

Q. You've been asked a number of questions by the accused using the phrase "Croatian artillery" to which you have responded. Have you in fact been referring to the waiters and so on who constituted the force that you described that were simply defending?

A. Some of the time I would have been referring to that. As I've said a couple of times, I was aware that there were a couple of small artillery pieces as well as there being at least two small mortars that I saw.

Q. As to those defenders, the accused asked you a question about the first two people to die, and in his question asked you whether they were or may have been members of the Croatian Guards Corps or foreign mercenaries. Did you see any evidence of those people in those formal or informal ways in Dubrovnik?

A. No, not at all. I saw very, very few people who you could have ever described as being even regular military.

Q. You were asked by the accused questions about whether the JNA gave instructions not to fire on the city, and you responded and he picked up ¹⁶⁸⁶² on your answers about the defender forces not being -- being instructed not to fire. You may not have given the full answer. What were the terms of the instructions for them not to fire? Not to fire unless ...?

A. They were fired on.

Q. Was that something you heard once or more than once?

A. I heard that repeatedly during the time that we were there.

Q. The house that you saw destroyed and that you filmed from a distance but subsequently approached, was it in a position, in your judgement, to be of any use as an armed position?

A. No.

Q. Was it in the centre of town rather than on the edge?

A. Precisely.

Q. Was anything said or was anything said to you by neighbours or other people you know about to indicate that it had ever been used as a place of aggression or even of defence?

A. No. No. We never found any explanation of that.

Q. You've spoken of wire guided missiles. The Chamber may know what they are. But in case they don't, how can they be detected visually?

A. You can see the wire as they're flying towards their target.

Q. That's probably all. Let's see. Yes. You've spoken about smoke. We've touched on this before, smoke coming from tyres or from cars. What was it you saw?

A. I saw a lot of smoke, but I also saw a lot of burning boats that were made of wood and fibreglass and vehicles that had been hit around the old city, and when we did go into the old city, we saw buildings that had ¹⁶⁸⁶³ been set on fire.

Q. Did you see any cars on fire with their tyres also on fire? If you didn't, it doesn't matter. Very well.

A. I saw vehicles on fire. I didn't distinguish which parts of them were burning.

Q. Then two last questions: You deal with it somewhere in your statement, but there were examples, we saw one on the first bit of footage, of two or three shells just missing a boat and then the third one picking it off directly. Any significance in that and was that a pattern you ever saw repeated?

A. As -- as in targeting, as in trying to give -- yes. That's -- I mean, it is what you see when guns are being used, picking up the range of a shot and adjusting to actually hit the target, yes.

Q. And the significance then of something like that where we saw one, two, three, and hitting the boat, being that there is or isn't observation of an adequate time?

A. I would have thought that there was.

Q. Finally, you've been asked about Croat artillery positions, and we know that although those would be the questions used by the accused, you're referring to defenders' artillery positions, but tell us, was the composition of Dubrovnik at this time exclusively Croat or were there any non-Croats there, or don't you know?

A. Certainly everybody I came into contact with, apart from the foreigners who were there for various reasons were Croatian. There didn't seem to be even a small, even a tiny Serbian or other minority there. ¹⁶⁸⁶⁴ ^{BLANK PAGE} ¹⁶⁸⁶⁵

Q. Thank you very much.

MR. NICE: That's all I ask of this witness.

JUDGE MAY: Mr. Davies, that concludes your evidence. Thank you for coming to the International Tribunal to give it. I'm sorry you had to come back today.

[The witness withdrew]

MR. NICE: Your Honour, we have 20 minutes today if we are sitting to the normal time. I don't know if that would be convenient to deal with some part in any event of the outstanding administrative matters.

JUDGE MAY: Yes.

MR. NICE: I hope we can definitely deal with both Ambassador Okun and the general in the remaining parts of the week.

JUDGE MAY: Which means that we must set aside time next week for those other matters.

MR. NICE: Yes.

JUDGE MAY: Next week being two days.

MR. NICE: Yes, Your Honour. The position I can set out will be assisted by the document that will be available by tomorrow which will be a final witness list. Of course, there have been two confidential documents served setting out the matters that are our concern, and I must simply bring you up-to-date and tell you exactly how I see the remainder of the Prosecution case unfolding.

But it may be that we can either start, or possibly even conclude discussion, I don't know, about the financial report. This is something that -- ¹⁶⁸⁶⁶

JUDGE MAY: Yes, we'll make a start on that.

MR. NICE: This is something that has extensively argued in writing, and simply to remind the Chamber and for anyone viewing, to make the discussion clear, Mr. Saxon's going to join me on this. There is one question I want to ask him.

[Prosecution counsel confer]

MR. NICE: Your Honour, there are two reports reflecting the way the case has unfolded. One described as the amended expert report of Morten Torkildsen, dated the 7th of June of last year. That relates substantially to Kosovo, but inevitably it covers matters of background common to all parts of this case.

There is then the second expert report of the same Morten Torkildsen, dated the 18th of November, which relates specifically to the earlier period, 1991 to 1995.

The Chamber has observations by the amici in respect of the first of those reports, dated the 12th of June, with the Prosecution response of the 21st, and then in relation to the second report, although covering both, a schedule of objections dated the 16th of December, with the Prosecution response coming precisely one month later in calendar terms, on the 16th of January.

The position in a nutshell is this: Financial evidence in this case is extremely important. It shows how over the whole period of the indictments with which we are concerned, the accused was able to exercise control and to render assistance to various forces through financial mechanisms that were instituted to deal with the particular activities ¹⁶⁸⁶⁷ subject of these indictments as well as, no doubt, to deal with sanctions, problems that the former Yugoslavia faced.

The material that needs to be considered to provide a full account of these financial activities is, as in any similar exercise, very substantial. Mr. Torkildsen is an expert, and indeed I suspect, but I'll wait to be delighted by confirmation, that the amici's initial challenge to his expertise may be either muted or now silenced by consideration of the curriculum vitae of Mr. Torkildsen which shows a level of education and focused experience that would be, I think, the envy of many coming to deal with this sort of problem.

There was also an objection to his being in some way disabled from giving expert evidence because he was employed by the Prosecution. That point's been --

JUDGE MAY: Just help us: Where we would find the CV?

MR. NICE: It's in the declaration of Mr. Torkildsen which is attached, I think, to the second of the reports. Unless I've got it wrong. Maybe it's in the first report. Let's just deal with that straight away.

JUDGE MAY: Let's see if we can find it.

MR. NICE: I'm very grateful to Mr. Saxon. It's attached to our response. That's why I was having trouble finding it. And it's indeed attached to our first response, and it's worth actually looking at it. If you see the declaration, you'll see that he has, of course, appropriate university qualifications as a Master of Science and Bachelor of Science gained in such places as the City University Business School in ¹⁶⁸⁶⁸ London, University of Manchester's Institute of Science and Technology. When one casts one's eyes down from those formal training elements in his background to paragraph 4, you can see a senior auditor of the audit department of the City of Oslo, conducting external audit of the accounts of companies that he mentioned.

Five, as senior investigation officer with the Norwegian Directorate of Taxes; and if we look to the bottom of the page, conducting detailed tax audits of various of companies' financial accounts to check on their tax returns.

Six, 1994 to 2000, special investigator with the Norwegian National Authority of Investigation and Prosecution of Economic and Environmental Crime, where he had to reconstruct financial transactions to verify and audit such transactions. And we see that the company that he was immediately concerned with there, in the middle of this paragraph, had gone bankrupt with 30 million US dollars of money disappearing, that it was his job to trace by reconstruction, he having to identify the money trails.

And if one looks at the end of paragraph 6, in his investigations which took him to London, he was, four lines up from the bottom, granted section 2 powers by the United Kingdom's Serious Fraud Office, powers that allowed him to collect evidence from financial institutions. He also, paragraph 7, investigated --

THE INTERPRETER: Could the speaker please slow down.

MR. NICE: [Previous translation continues]... United Nations agency. ¹⁶⁸⁶⁹

JUDGE KWON: Mr. Nice, you're asked to slow down.

MR. NICE: I'm so sorry. Apologies. And I not only apologise but I ought to check that the booths have the observations of the amici and the prosecution with this passage attached. Some do. Some don't. A shortcoming that we will correct on the next date this matter is heard if it goes over.

So a corruption case involving a United Nations agency where interviews were conducted over 15 different countries and where the analysis took three years to complete with, of course, the inevitable thousands of pages of documentation.

Paragraph 8 deals with his next employment back in Norway, where he was directing county police in financial investigations involving reconstruction of financial accounts and transactions in various frauds, drug related cases and investigations into the money laundering aspects of drug related crimes.

He has presented, paragraph 9, forensic analyses and opinions in Norwegian courts during the prosecution of individuals responsible for complex fraud and corruption crimes, with professional expertise lying in his ability to provide forensic analysis that was never challenged. He then turns to his employment here and the range of his functions here, which are manifest from the reports that he's prepared, and at paragraph 11, dealing at this stage with the first report, which is itself in parts A and B, he details how he reviewed over 10.000 pages of documentation describing financial transactions, and he makes the point, in fact, the only people with the necessary training and experience - and ¹⁶⁸⁷⁰ I would put in brackets probably also patience - that would be able to deal with such a quantity of specialist material in order to reconstruct financial transactions that have occurred.

Now, Your Honour, it's against that background of expertise that there was objection taken but, as I say, muted now and it may be silenced. The point about his being an employee of the OTP is dealt with in the argument, and I think I provided the Chamber not so very many months ago with a recent authority from Factortame which went to show that there is simply no merit, certainly in the English jurisprudence, in such a proposition. And the arguments we've deployed reveal how, inevitably, many experts are either full-time or ad hoc employed by the parties called in any litigation.

In summary, the amici who are, of course, here, I think, amongst other things to assist the court, not just the accused, suggest really that either little or no evidence should be given other than comes from the witness box at the primary level, an exercise which would render it quite impossible to put a financial picture before this Chamber in anything like the time that the Chamber has allowed or may allow. I see that this entertains the accused. One of the good things, of course, about this material being dealt with by an expert and in a composite way is that we can be quite sure the accused will be able to deal with it because, amongst his many skills, we know are the skills that come from his having been a banker at an early part of his career.

JUDGE MAY: We've heard, of course, evidence in relation to Croatia about financial activities and support for the local government ¹⁶⁸⁷¹ from the Republic of Serbia. So to that extent, that report supports or may be said to support the evidence which has already been given. But in Kosovo, while it's true that there's been some reference - I remember Rade Markovic's evidence and there was evidence about money and suitcases being passed about - the connection isn't quite as plain. The question I'm asking myself, and speaking entirely for myself, is given the amount of evidence that we've had about Kosovo, even if this was admissible, and objection is taken that much of it is summarising evidence which we've ruled against in other matters, but that aside, as a more general point, is this not opening up a very large area of the inquiry into what is already a complicated case, effectively adding a fraud to all the other complexities with which the Trial Chamber, and the accused, of course, has to deal when, of course, there is more direct evidence on which you rely?

MR. NICE: There are three points in answer to that. As to the observation about summarising witnesses and the Court's ruling against summarising witnesses on an earlier occasion or occasions, this evidence is of a different category. It is evidence which is typically adduced in exactly this form by experts, and it would, in our submission, be quite wrong even to contemplate excluding it on that basis. This witness is doing no more and no less than an expert from one of the big five, if there still are five, or is it four, accounting firms of the world would do in a piece of straight commercial litigation with which we may be familiar.

Coming back to the acknowledgement that there may be confirmation ¹⁶⁸⁷² or support for other evidence in this report -- in one of these reports, or vice versa, we would be tempted to say precisely so. Where there is evidence necessarily short in form and content from a witness saying, "I knew that. I was told that. I saw that money was taken in bags and was then used to fund this or that enterprise," that evidence is, of course, very much better than nothing and might, in a less than perfect setting, support findings to the relevant level that that method of financing has occurred in a significant way. But it's evidence that it's all too easy shortly to challenge by the accused or by witnesses called on his behalf, and it is against that that the full structure of the case, the financial case, in our submission, needs to be seen.

And so I come to the third point, which is Your Honour's observations on the Kosovo report or the report that was predominantly Kosovo.

Before I hand in a slightly amended version of a document that's already there, the Court will recall that there's quite a lot of admissions by the accused relied on within the reports, submissions by the accused, things he said in the domestic court, and this area of the case above all, is one where most of the propositions we advance should, frankly, be admitted as beyond challenge because the documents are overwhelming, and where the accused, however much he might like to say he is not participating in this trial, can be required by the Chamber, before being allowed to take time in cross-examination of witnesses, a topic to which I'll come in relation to financial evidence in a few minutes, can be required to identify what's in issue. ¹⁶⁸⁷³ Now, if I can just hand in this document which, is a slightly amended version of a chart smaller in format and less easy to see than this one, and the chart comes at the end of Part A of the report on Kosovo, or is referred to as paragraph 54 is my recollection. But I'm wrong -- no, I'm right. I was looking at the wrong report. Now, there was an earlier version. The court may or may not have seen it. It's a document that although superficially fairly detailed -- and there is no reason why a copy of it shouldn't go on the overhead projector so that those viewing can understand what we're talking about. Superficially somewhat detailed, it's actually very easy to understand. It speaks, for example, if you look at the top of the chain of command from the accused through -- just let me check one thing. Through Borka Vucic, manager of the bank in Cyprus where money was funneled, it goes down to various accounts that were operated that are named there in the large box on the right-hand side.

Now, you'll now see a smaller box, slightly smaller type, to the right of Administered Accounts, and that box identifies the evidence that is relied upon to sustain that particular part of the picture. We come down to the large box that starts with Cyprus Accounts, including Anextol, Browncourt, and so on. We then see three arrows, showing the passage of millions of Deutschmarks to the left, and just above 23 million Deutschmarks - I'm sorry the type is a little hard to read - it speaks of bank records, a statement of Vucic to the MUP, a statement of Raj and two other people. That box actually relates to all three of those left pointing arrows. ¹⁶⁸⁷⁴ Then we see Abridge Trading at the bottom of the 23 million, with connections to various individuals and pointing up to delivery of equipment that found its way into the hands of, we would say, the Serbian RDB through Stanisic or Markovic.

And again, we have identified what material it is that's relied upon; bank records, witnesses, so on.

JUDGE KWON: But, Mr. Nice, what would be the relevance or significance of all this in the Kosovo case? In Kosovo, suppose it is true, it's nothing but funding his own army. Why do we need all this?

MR. NICE: Well, two points in answer to that: We need it in order to prove the effective control that he operated, and indeed to show a recognition, it may be, that what was being done was improper and outside the control of proper mechanisms. But we need this forensically for the reason I have just stated. His Honour Judge May was quite correct in his recollection that amongst the live evidence is the evidence of Rade Markovic, and on this topic he wasn't, I think, challenged and didn't in any sense depart from the evidence that he gave. But it is extremely helpful to see and, arguably essential to see, that evidence supported by documentation. But it's not a question simply of one bankbook with an instruction to an arms manufacturer to provide the armament. But this is the point that I want to make perhaps before we part from this, if by chance the Court is going to rise fairly soon: It's very easy -- the reports may look complicated, but it's actually very easy to see, once one spends just a couple of minutes, the degree to which the overall picture of which Mr. Torkildsen speaks very succinctly in his ¹⁶⁸⁷⁵ reports, it's very easy to see where these conclusions are drawn from documentation; and where they are dependent on evidence already given - I think you will see Markovic already referred to in one of these boxes -- yes, bottom left-hand box, indicating the orders to Kertes. It's easy to discover where the material depends on out-of-court statements of one kind or another. And that means that it's always going to be easy when the Court has, as we would urge it to say it must do when it's considered the financial expert report and considered whatever cross-examination is proper on it, it's easy for the Court to see the route of the detailed conclusion. So that it will be easy for the Court to decide whether any particular aspect of the case is insufficiently proved because it relies on something that it finds unacceptable for that purpose; it will be easy for the Court to know whether it would require more evidence on any particular limb. We would say not, but we're always open, of course, to do the Court's bidding, so that where any out-of-court statement properly the subject of proper cross-examination so requires, the relevant witness could be called. And this gives structure to the very, and inevitably very summary accounts of financial movements given by the people so far. Can I come back to it, if the Court a going to rise, on the next day when we have some moments to proceed, and I will have this part of my address, if it's helpful. I will have it printed for myself.

JUDGE MAY: We must make time for these administrative matters. Maybe next week, if you have a day.

Mr. Kay, are you in difficulty next week?

MR. KAY: No, I'm not in difficulty. We've got the two days. I ¹⁶⁸⁷⁶ ^{BLANK PAGE} ¹⁶⁸⁷⁷ was trying to assist the Court because there have been a couple of representations of our role in this trial today which perhaps need clarification. Our job is to take points that are reasonably open to the accused. And just to focus on the objection concerning Mr. Torkildsen, it's his role and his ability to produce the materials that are adduced through him in his reports that we've taken objection to. It's the material itself that the Court is being asked to consider, which is in our second paper we filed with the Court where we've put a schedule detailing our various objections.

JUDGE MAY: Thank you. Mr. Milosevic, you've got one minute.

THE ACCUSED: [Interpretation] Well, all right. One minute, Mr. May, one minute. I hope that you will allow me at least as many minutes as Mr. Nice had with regard to this particular witness. But Mr. Nice over here is very impressed by the fact that this witness, this expert, dealt with various abuses in England, Norway, the UN, and that this qualifies him for all of this. However, although you are laymen, it seems to me that it would have to be clear to you as well that financial expertise is the study of financial documents. I looked at some 2.000 pages of various papers produced by Mr. Torkildsen, and not -- and there is not a single thing that has anything to do with me on any one of them. This table is a mere construction. It has to do with mere financial transactions, very simple ones.

JUDGE MAY: We will hear you, of course, on this before we rule on it, but now is not the time. We are in the middle of hearing the ¹⁶⁸⁷⁸ Prosecution. We will hear them when we next return to this. We will then hear the amicus, and we will hear you, I hope by next week.

THE ACCUSED: [Interpretation] I'll tell you quite briefly what I have to say, Mr. May. I don't need more than one minute. I don't.

JUDGE MAY: You're not going to get a minute at this time. We've got to go. There has to be another hearing in here. You will get your chance on Monday or so.

We will adjourn now. Nine o'clock tomorrow.

--- Whereupon the hearing adjourned at 1.51 p.m., to be reconvened on Wednesday, the 26th day of

February, 2003, at 9.00 a.m.