Milosevic Transcript 2005-09-28

⁴⁴⁶⁵⁰

Wednesday, 28 September 2005

[Private session]

(redacted)

(redacted) ⁴⁴⁶⁵¹ Pages 44651-44681 redacted. Private session.

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[Open session]

JUDGE ROBINSON: Yes.

THE REGISTRAR: We are in open session, Your Honour.

JUDGE ROBINSON: Mr. Nice, we'll hear submissions from you on that.

MR. NICE: I think I've made my submissions substantially last week, but so that things can all be of a piece this morning, the position about Lord Ashdown's evidence is that he gave clear evidence to this Court of where he had been and what he'd been able to see. In identifying his position, he was inevitably and appropriately approximate and he indicated approximate positions on the maps that were then available. ⁴⁴⁶⁸³ He was not cross-examined, as he might have been, in great detail about visibility or invisibility of objects he said he could see. There the matter rested. We then heard --

JUDGE BONOMY: The explanation for that was that it wasn't heralded he would be giving evidence about that particular matter.

MR. NICE: Your Honour, that may well be the case that at the last stages, because of the expectation that he had limited time, the Prosecution confined itself to the evidence of the napkin, but the statements served in advance all revealed what he could say on these other matters, and he then did give evidence on those other matters, including, of course, via, in part, a video that had been served in advance on the accused showing him looking through his binoculars and so on. The evidence in the Defence case through Delic sought, without his being an eyewitness himself from the identified positions, sought to show, bluntly, that Lord Ashdown was lying. It's no less than that. It's not suggested that he made mistakes, it's suggested that his evidence is wholly and completely untrue, and the attack on Lord Ashdown's evidence is by saying that he simply could not have seen what he says he saw from the various positions identified by him.

That issue having been joined in that way in the course of Delic's evidence, we obtained what further detail we could from Lord Ashdown to explain the detail of what he would say he could see and why. That was all made available to Delic, and he dealt with it and continued to try and assert that the material evidence of Lord Ashdown was unreliable. A statement was obtained from Lord Ashdown, not with him visiting ⁴⁴⁶⁸⁴ the scene, I think, but working for the coordinates of where he had been standing on the three different places where he was when he made observations. That material was served on the Defence. Separately from that, an investigator went with a positioning instrument to the identified places and has taken video shots of what could be seen, and indeed we're now in a position to set out maps of the kind that Delic himself introduced in his re-examination, showing visibility lines from the positions chosen as his -- or identified as his by Lord Ashdown. That material would be of extreme value to the Chamber at this stage in cross-examination of Delic, who in re-examination went even further in his evidence to the effect that Lord Ashdown was being less than honest with the Chamber, because in his re-examination he produced expert material, or apparently expert material, from positions that we -- the relevance of which we don't understand, going to show that he couldn't see things for the most part that Lord Ashdown wasn't looking at.

JUDGE ROBINSON: So this video is really responsive to that.

MR. NICE: It's -- no --

JUDGE ROBINSON: It's nothing more than that.

MR. NICE: Your Honour, it's not responsive to that. The video was under preparation before the re-examination of Delic, and it was with a view ultimately to rebuttal evidence. However, when Delic's re-examination that lasted five hours went in such detail, and new detail into this material, it became, in my submission, absolutely appropriate that he should be further questioned about what he says is the basis of his saying that Lord Ashdown is simply not telling the truth. ⁴⁴⁶⁸⁵ The alternative to my being able to ask Delic questions arising from the material now available to me to deal with the new material that he's brought up in re-examination, expert material from a third party and all sorts of other stuff and material I simply don't understand, the alternative to that is that we would seek to put in the video and the other material in rebuttal, and at that stage you will not have the advantage of Delic's observations and answers on, for example, the video. Now, the video is simply the best available evidence in a modern world that you can have for this sort of issue. If the Court is not able to go look at the position itself, and I understand that may be quite impossible, then photographs from the sited position or, better still, videos associated with maps is the best way of showing what could be seen from particular positions, and I want to display that now to the Chamber, given the issues that's been joined, and I want the Chamber to have the opportunity of Delic's comments on it if he has any. I would also like to be able to understand, because I simply don't from the re-examination, what these maps are that have been produced given that they identify site positions for Lord Ashdown that he never himself identified. They are completely unexplained.

So, Your Honours, I would ask that the cross-examination of Delic be allowed to cover that topic.

I should tell you that we have prepared packages of material that should enable the topics to be dealt with swiftly and efficiently. The video extracts, I think, are at the most three minutes for one site, and I think shorter for the other two. All the maps are available, and all the ⁴⁴⁶⁸⁶ citations of what Lord Ashdown said was his position are also available, so it can be dealt with very quickly. Without it, this issue will be left hanging until rebuttal, by which time Delic's evidence will not be fresh in your memories.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] I agree with the assessment made by Mr. Nice, that General Delic's testimony shows that Mr. Ashdown lied. Secondly, I wish to remind you that just now, too, Mr. Nice said that Ashdown gave clear evidence as to where he was, and you could see that on the map. He indicated that.

Also, let me remind you that when it was established that nothing could be seen from that position, Mr. Nice gave yet another point during the additional examination of General Delic that was at the very border of Albania and Serbia, which is quite incredible for someone to be standing right on the border, and now that point proved to be false as well. Nothing could be seen from there too. And now what do we have? A third position. They put it way up somewhere where you have to walk on foot seven hours there and back. Ashdown never mentioned walking for seven hours.

And also, the video excerpt that I got yesterday that Mr. Nice is invoking so ceremoniously, you cannot see anything there. You see a GPS device, and after that on the GPS you cannot see anything else. Also, in view of the indubitable fact that Ashdown, in violation of the Dayton agreement, in relation of the constitution and laws and ⁴⁴⁶⁸⁷ doing the most horrible things to the detriment of the Serb people in Bosnia-Herzegovina proved himself to be an ordinary criminal, I believe that any evidence from him can be only inadmissible.

JUDGE ROBINSON: Mr. Milosevic, that, as you well know, is an unacceptable comment to make. I take it that's the end of your submission, but let us know, are you opposing the introduction by the Prosecutor of this evidence in further cross-examination?

THE ACCUSED: [Interpretation] On the contrary. It would be a pleasure for me to watch it here, and it's probably going to be a pleasure for all the rest who will be watching it. What I oppose is having it admitted into evidence without showing it here. As for him showing it here, I'm going to watch it with great pleasure.

JUDGE ROBINSON: Mr. Kay, because --

MR. KAY: I raised -- sorry, I raised the points last time how this came about when Lord Ashdown was only to give evidence in a very short compass of time and his testimony became extended and then we found ourselves dealing with his video, so I've got nothing further to say.

JUDGE ROBINSON: Personally I have a concern about this kind of procedure where a party seeks further cross-examination on a matter that arises out of re-examination. There must be an end to proceedings, and I'm concerned about the precedent that it will set, but I'll consult with my colleagues on this matter.

[Trial Chamber confers]

JUDGE ROBINSON: Well, I've been persuaded by my colleagues. I take into consideration that the accused is not opposing further ⁴⁴⁶⁸⁸ ^{BLANK PAGE} ⁴⁴⁶⁸⁹ cross-examination on this matter, and we also take account of the fact that the further cross-examination is on fresh matter that was raised in re-examination.

But, Mr. Nice, the Chamber is of the firm view that this further cross-examination has to be limited, limited to no more than one session.

MR. NICE: Oh, I hope less than that.

JUDGE ROBINSON: Yes.

MR. NICE: I am -- for everything, I will do my best, yes, certainly.

JUDGE ROBINSON: All right. It's time for the break. We will adjourn for 20 minutes and then the witness will be brought in.

--- Recess taken at 10:30 a.m.

--- Upon resuming at 10:56 a.m.

[The witness entered court]

WITNESS: BOZIDAR DELIC [Resumed]

[Witness answered through interpreter]

JUDGE ROBINSON: Mr. Delic, the Chamber has decided to allow the Prosecutor to ask you further questions on certain matters, and he will do that now.

MR. NICE: Thank you, Your Honour. There are three topics. I'll try to be half an hour on each.

The Chamber has its version of the documents provided in respect to the VJ commission. May the witness have one and may the -- no, it doesn't need to go on the overhead projector, so he can just have this. Further cross-examination by Mr. Nice: ⁴⁴⁶⁹⁰

Q. Mr. Delic, this is further material provided by the government of Serbia and Montenegro -- oh, sorry.

MR. NICE: I had understood the Chamber to be saying all in private session but in fact there's no need to be.

JUDGE BONOMY: The application was only for two sections in private session, so that's all that needs to be, I would have thought.

MR. NICE: I'm happy with that, of course.

Q. Mr. Delic, we don't have -- we don't have much time and I'm only going to take you through a few parts of the material that have been provided to us, and not all of it is yet translated because of the date of its provision.

This was the commission, was it not, for which the material that you produced, maps and statements, was prepared; correct? Did you hear my question?

JUDGE ROBINSON: Has the witness heard the question?

MR. NICE:

Q. This is the commission -- yes. Thank you.

A. You mentioned the commission, but you didn't say which one. Do you mean the Commission for Cooperation with the Hague Tribunal, which worked until 2003?

Q. I mean the commission that was presided over by Terzic and was abolished by Tadic. That one.

A. Yes.

Q. Would you look -- you'll find that the documents are marked at the top of them by tab numbers. Would you go, please, through to what is tab ⁴⁴⁶⁹¹ 3 at the top. And if the Chamber could go to page 6 of 9. And if you, Mr. Delic, would go to page 7 at the top for you. "Providing legal aid." This is a document of the commission, which says that: "The Committee," page at the top, Mr. Nort, page 7 in the English. Under "Providing legal aid," it says: "The Committee, based on the Rules of Procedure of The Hague Tribunal and of its organs, shall provide legal aid to the accused, to those against whom investigations are being conducted, to witnesses and to their families ..."

Next paragraph, to save time: "The legal aid shall consist of: Professional interpretation and explanation of the contents of charging documents and other documents, legal procedures, defence plan and other legal assistance, selecting ... counsel ... possible way of the defence, the way of giving evidence and other statements during the review of the case, shall make recommendations regarding possible evidences and the way of obtaining and presenting them; shall interpret the legal meaning of a request and the possibility to grant it through pointing out all the consequences that might result therefrom."

Does that summary of the function of the commission accord with your experience of it?

A. This summary, or, rather, this entire document is titled, as far as I can see, "The rules for the work of the commission." Now, what you have just read out would be just linked to legal aid, legal assistance. And of course in our country legal aid could have been extended just to the accused and possibly, as it says here, to witnesses and to their families. And in the previous provisions, I don't ⁴⁴⁶⁹² have time to go through them all, but I see there is mention about the commission itself. So these are the rules governing the work of the commission that I have not had an opportunity of seeing before.

Q. That's why I asked you --

A. Because I wasn't a member of the commission myself.

Q. Did this range of help, helping with, for example, possible evidence, ways of obtaining and presenting evidence, matters of that sort, was that what this commission, through its members, did?

A. By the General Staff, the commission was pinpointed as the sole organ which the accused and their legal representatives could contact. So they couldn't contact the General Staff directly. All they could do was go to the commission with respect to their requests for documents or certain other evidentiary material.

Q. Very well.

MR. NICE: Next tab should be, with the Court's leave, in private session. Tab 4.

[Private session]

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[Open session]

MR. NICE:

Q. And on this one we see that this is dated -- do you have this one? ⁴⁴⁶⁹⁸ Dated the 20th of February 2002.

A. Yes, yes.

Q. Regarding that the trial of this accused, Milosevic, had begun. And then can you just turn, please, to the, in your version to probably the end of the first page. In the English version it's at page 2 of 5. And after a list of assertions about the trial, it says: "In order to make sure that this activity is monitored, assessed and parried actively and in an organised manner through adequate measures at the level of the VJ General Staff and the SMO, the Commission proposes to do the following..."

And then subparagraph 1 is not very happily translated at the moment and I can't take time with that, but can we go over in the English to page 3 and to paragraph 2 as it's handwritten: "To form within the VJ General Staff an Interdisciplinary Analytical-Expert Team, per provisional formation, which would, from the beginning to the end of the trial ... carry out the following tasks:

"Monitoring and analysis of the documents and information presented by The Hague Tribunal Prosecutor, the assessment of accuracy and the preparation of proposals for the Defence and the refutation of the Prosecution allegations in the form of military expert opinions, and the selection of documentation from the VJ archives with which to refute inaccurate allegations and to disprove other allegations by the Prosecution for every former or present member of the VJ ..." So the -- does this reflect what in your experience the commission was doing? It was actively responding to allegations in this trial. ⁴⁴⁶⁹⁹

A. This document is a document which I do know about to a certain extent, what is stated in point 2, the formation of an analytical expert team. I know that a group was formed for Croatia, for example, and for Bosnia-Herzegovina and for Kosovo and Metohija.

Q. And --

A. And that that group -- or, rather, those groups did prepare or sort relevant documents about what actually happened on the battlefields in Croatia, Bosnia-Herzegovina, and in Kosovo and Metohija. And, therefore, on the basis of those relevant documents dating back to those times, they did prepare certain expert reports and analyses for individual periods of the war or, rather, individual events.

Q. You see, what was being done by the commission was not neutral. It wasn't simply making people or documents available to the OTP. It was preparing material against Prosecution allegations; correct?

A. You cannot say that at all, because this is just one of the orders here. There are a number of other orders which speak of the fact that cooperation should be intensified with the OTP, with the Prosecution. I don't know whether you have those orders here with you. But I happen to have one such order with me here.

Q. We'll look at that in a second, but time is limited. Can you go now to tab 9, which is with the trial just a month or so under way, the 26th of March of 2002, and let's see what it says here about the function of the commission. And you understand, Mr. Delic, your documents were prepared, as I suggest, in accordance with the purposes and function of this commission. ⁴⁴⁷⁰⁰ And if the Chamber would go to page 2 of 6, and if you, Mr. Delic, would go to -- yes, if you would go to, I think, the second page. You'll see a paragraph that is headed: "The creation of an expert team has been proposed ..." Do you find that paragraph?

A. Yes, yes.

Q. Which reads as follow: "... for following the trials in The Hague and for the preparation of the defence regarding accusations that the Yugoslav army participated in committing of war crimes during the war in the former SFRY, with the goal of preparing evidence with which the Prosecution's allegations could be refuted."

So its aim -- it wasn't neutral, it wasn't just making people available; it was positively preparing evidence to refute the Defence allegations; correct?

A. If -- or, rather, I think in tab 4 it was that you asked me to read something out from there, and the commission was requested on the basis of relevant documents to arrive at the truth about certain counts in the indictment, which individuals are being charged with, or units of the Yugoslav army are being charged with.

Q. It can be found in these documents, there may be more found when we get everything translated, but this is after the start of this trial and it relates to what was happening at that time and possibly subsequently, and I'm asking you, isn't the reality that your material and the material of those whose other statements you have produced or seek to produce to the Chamber, wasn't the objective preparing evidence to challenge the Prosecution's allegations in this trial? And in short, ⁴⁴⁷⁰¹ ^{BLANK PAGE} ⁴⁴⁷⁰² that's why we've got that material and not the contemporaneous material that hasn't been provided to us. Do you see?

A. No. When it comes to my testimony and my unit, you received all the material from the relevant time contemporaneous except for the material that you've just mentioned. However, I still claim and maintain that the object of that material was pursuant to the commission's request to give an explanation of what actually happened at the material time, and that's how I understood it.

Q. Would you be good enough to go on two subparagraphs, two bullet points. The Chamber could go over to page 3 of 6, where it said this: "Measures have been taken to prevent the voluntary going and giving of statements to The Hague Tribunal office in Belgrade, as well as measures to prevent members of the Yugoslav army from accusing each other." Why, if you were concerned to cooperate -- if the commission was concerned to cooperate with this Tribunal, were people being prevented from going and cooperating? It couldn't be clearer, could it?

A. Well, that's what you think. As I remember certain situations very well, I know why this observation was made, because quite simply it became standard practice in Belgrade that they would -- investigators would ring you up on your home phone, that is to say investigators of The Hague Tribunal, and say, "Please, are you so-and-so? Am I speaking to so-and-so?" And when you said who you were, they would say, "I am an investigator of The Hague Tribunal, my name is such-and-such, could you please come to our offices in Belgrade," for instance. And to military personnel, military personnel were prohibited, without receiving specific ⁴⁴⁷⁰³ permission from the command, from making any statements whatsoever. So the object and goal of this was that all this cooperation with the investigators should go via this particular commission. That is to say that people should be called via the commission.

JUDGE ROBINSON: Thank you, Mr. Delic.

MR. NICE:

Q. Whether there was any legal justification in restraining people, you confirm what this suggests: People were dissuaded from cooperating voluntarily with investigators of this Tribunal who were doing the duty with which they'd been charged by the United Nations. You stopped them cooperating -- or the commission did, not you. Correct?

A. No, no. That is absolutely not correct. If I could go some 30 times to have talks with the investigators of the Tribunal, how then would anybody be able to prevent me in doing so? So the members of the army asked protection. First of all, they were duty-bound to keep state secrets, and they would contact their commands to ask them what to do. They would say that somebody called them up at home, that the investigators called them up at home, and then they asked for an explanation as to what their conduct should be with respect to that. And then they also asked that if they were going to meet the investigators for an interview, that they need not keep their state secret obligations so that they could not be held criminally responsible after that.

Q. Pausing.

MR. NICE: May I go into private session for one minute, please?

JUDGE ROBINSON: Yes, private session. ⁴⁴⁷⁰⁴

[Private session]

(redacted)

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[Open session]

MR. NICE:

Q. Can we go on, please, in your text to page -- you're on page 3, I think. Maybe at the foot of page 2, beginning of page 3, and in the English page 4 of 6, we see this from your commission: "Expert opinions and suggestions for answers have been given in the name of the Yugoslav army and state organs regarding some more important events - by the request of The Hague Tribunal (the Vukovar case, ... Racak ..., criminal acts of management in Kosovo and Metohija regarding criminal acts against the non-Albanian population and others.)"

Just looking at the first part of that: "Expert opinions and suggestions for answers ..." Why would it be necessary to give suggestions for answers to people if they were just being to cooperate, as they were lawfully obliged to do, with this Tribunal?

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] This question is not fair, because it says here in the Serbian language that "Expert opinions and suggested answers have been given in the name of the General Staff to state authorities -" to state authorities - "concerning some important events at ⁴⁴⁷⁰⁶ the request of the OTP, such as in the Vukovar case, Racak..." et cetera, the terms that we hear very often here.

MR. NICE:

Q. In the original text it doesn't give suggestions to witnesses. What about suggestions for answers to RFAs? Why wasn't the Office of the Prosecutor simply entitled to the raw material and the straightforward truth? Why did things need to be prepared in this way? Can you help us?

THE ACCUSED: [Interpretation] Mr. Robinson, please.

JUDGE ROBINSON: Yes.

THE ACCUSED: [Interpretation] The question asked by Mr. Nice follows from his ignorance of the way in which the army operates. If the Chief of the General Staff is supposed to provide something to state authorities, he always gets a draft answer, a draft letter from his assistants. So this is --

JUDGE ROBINSON: Mr. Milosevic --

THE ACCUSED: [Interpretation] -- not exactly a suggested answer. It's a draft answer or a proposed answer.

JUDGE ROBINSON: It is for the witness to answer the question.

MR. NICE:

Q. Mr. Delic, if you can answer that question.

A. Yes. Yes. I think there is a lack of understanding here. Between this commission formed by the Chief of the General Staff or, rather, beyond this commission there was the National Council for Cooperation with the ICTY that was established at the level of the Council of Ministers. Therefore, this team was never able to communicate with the ⁴⁴⁷⁰⁷ OTP directly. They always contacted the Council of Ministers, and the material they would receive, they would receive it through the National Council. The National Council would make an application in writing to the commission or, rather, the team for cooperation, asking them to give their proposal.

Q. Not in 2001. That only started in 2002, didn't it?

A. The National Council exists still. There is not a commission cooperating directly. Everything always goes through the National Council for Cooperation with the ICTY, and it is the council that approves all the documentation that is supplied to the ICTY.

Q. Two more passages very shortly. The following passage, the following paragraph makes the same point we've seen earlier: "The proceedings so far were conducted --" sorry, one point. In the passage we've been looking at, this is the response of the army, did the army contribute in some way to the reply to the OTP about Racak? I thought the army wasn't involved in Racak.

A. Of course the army did not have any direct involvement in Racak. But if the National Council for Cooperation with the ICTY asked this commission, based on the documents provided by the ICTY, for assistance or cooperation, the commission was bound to give an answer. They had to reply.

Q. [Previous translation continues]... deal with the following passage even though it's a repetition of preparation for the case. If you go right to the end of this document, please, Mr. Delic, just before "Conclusion," and it's on page 6 of 6 for us in the English, you'll see ⁴⁴⁷⁰⁸ the last bullet point says this: "Cooperation and exchange of data and experience has been established with the representatives of the VRS as regards cooperation with The Hague Tribunal until and after their law being passed on cooperation with the Tribunal."

Knowing, of course, as you all did and as the commission did, the general nature of allegations about the VRS and the general nature of allegations about Serbia getting itself involved in the VRS, what was the -- was it appropriate, do you think, for the commission to be liaising with the VRS? Wouldn't it have been better to have left matters independent?

A. On this point, in the applications of the ICTY many documents were listed that had to do with the army of Republika Srpska and our knowledge about their activity. I don't see why this would be a problem since both states had enacted their own laws to cooperate with the Tribunal. Why would it be a problem for them to cooperate based on certain experience?

Q. [Previous translation continues]... take the form of joint meetings with the VRS and the VJ, soldiers sitting down together to discuss and remember what happened? Is that what happened?

A. I have told you already that I was not a member of the commission, so I have no knowledge about this.

MR. NICE: Your Honour, that's all I have the time to ask. Those documents were provided by the authorities. They have yet to be fully interpreted, and indeed some of the present draft translations -- translated, I beg your pardon -- are imperfect. I can explain my submission in a sentence so the accused can know what, if anything, he ⁴⁴⁷⁰⁹ should deal with by way of re-examination.

My submission is that from the limited material you've already seen, it's clear that the documents prepared in 2002 and 2003 were specifically prepared for the purposes of this litigation and under your own rules and that material should be excluded. I would be grateful, if the Chamber isn't with me on that immediately, for an opportunity to put in written submissions, if appropriate, on the basis of all of these documents when they're translated. Perhaps I can come to my next topic. That's a heralding of what my position would be.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] I don't understand what Mr. Nice just said. What is he actually asking for in connection with these documents? Does he want them exhibited? If that's what he's asking, then he can only tender the passages he had quoted, not the entire binder with I don't know how many documents in it which he says he doesn't have time to deal with anyway. That's at least the procedure you applied to me.

JUDGE ROBINSON: That's correct, yes.

MR. NICE: Your Honour, perhaps we can deal with the procedural points later in light of the provenance of these documents and their production, but I was just heralding and giving everybody an opportunity to know where I would stand because I thought it would be helpful. Can we, while in open session, turn to the next topic, which is the Ashdown evidence.

There are packs of documents for everyone. They're not necessarily, save for one category of document, documents that I would ask ⁴⁴⁷¹⁰ to be produced as exhibits but they are designed to enable swift examination of the witness on the matters that I'm allowed to examine him on.

Everybody should have a pack that has two maps on the front, and their significance will become apparent in a second. There's then three packs, the first one which is called Location 1, south of Junik, and I'd be grateful to the -- if Mr. Nort could have a pack, if there is a spare one, following my questions and placing material on the overhead projector as necessary if it's a spare.

Q. Mr. Delic, I want to ask you some questions -- I'm going to ask you some questions about your evidence about Lord Ashdown's ability to see things.

If Mr. Nort would place the table marked "Location 1 south of Junik" on the overhead projector.

Mr. Delic, you've produced a number of maps and said a number of things. I want you to listen carefully to what is in English. I'm afraid it's not in your language at the moment but would you be good enough to listen to what I think is a summary of what Lord Ashdown has actually said. Will you do that? Don't worry about the documents at the moment. We'll take you through them. Right.

On our analysis, Lord Ashdown has said as to the first position that he had a good area, a good view of the area of the south of Junik, that he could see --

JUDGE BONOMY: That's not actually what the document says. It says a good view of the area south of Junik. ⁴⁴⁷¹¹

MR. NICE: Sorry if I misread it.

Q. Of the area south of Junik. He testified that he could see the villages of Moloc, Brovina and Ponosevac, that he could see two roads from this location, the first of which the Moloc-Brovina-Ponosevac road -- sorry, the first of which had those three villages on it and the second road, to the east of that, on which were the villages of Niokaz, Stubla, and Berjah. He also stated that he saw a number of VJ assets, including APCs, tanks and mortars, which were attacking from the road and remarked that he saw tanks along the Niokaz, Berjah and Stubla road bombarding villages.

Now that's, as we've analysed it, what he said. Do you accept that that is what he said or have you been informed or have you picked up that he said anything different as to the first position of observation?

A. Since Lord Ashdown gave several different statements, I accept what you've just read as one of his statements but not his initial one. It's one of the later ones.

MR. NICE: Your Honours, the material we rely on is available for everyone, conveniently gathered together in the following pages.

Q. But what I next want you to look at, please, is your maps which were produced on the last occasion and which follow the extracts from the testimony, and the maps are marked 2.

Can they be laid on the overhead projector, please. I should also have added, incidentally, that since then -- I'm sorry about this -- since then, Lord Ashdown has given grid number 34T DM359982 -- ⁴⁴⁷¹²

[Technical difficulty]

MR. NICE: In the period of time when the LiveNote was down, I was asked by His Honour Judge Kwon how Lord Ashdown had identified the grid reference point. I explained that that's to be found in a statement of Lord Ashdown of the 24th of August. It's in the pack of materials that everyone has, and he says in the highlighted paragraph that the grid reference from which these observations was made was approximately, and he then gives the reference, and he then sets out what he asserts he could see.

Your Honour, there is no suggestion that Lord Ashdown went back to the scene. He calculated this from what was available.

Q. Mr. Delic, you are now looking at the maps you produced.

A. When was this calculation made, if I may ask?

JUDGE ROBINSON: [Previous translation continues]...

MR. NICE: Yes.

Q. You see, Mr. Delic, in light of what Lord Ashdown has said and provided by way of a grid reference, if we look at your first map, the point that Lord Ashdown identifies is marked to the south of the red line in a little red circle, isn't it?

A. I would just like to draw the attention of the Trial Chamber to your maps. I could use your maps again. Look at Gegaj village.

Q. Would you be good enough to listen to the questions and we'll get there much more quickly. We're coming to those maps in a second.

A. Well, this map is a forgery. It's a forgery.

Q. Would you be good enough to look at your own map, and would you ⁴⁴⁷¹³ confirm that the little round circle to the south of the red line is the position approximately identified by Lord Ashdown; and if so, can you explain why you provided the Chamber with a map with a start point and a line that has no relation to the evidence of Lord Ashdown?

A. First of all, I did not make these maps. I first saw them here in the courtroom.

Second, let me tell you, this little circle that you put there does not correspond to the place that the -- Lord Ashdown identified.

Q. Because?

A. Lord Ashdown identified a point located much further to the north. His point is actually close to the place where this red line crosses the state border.

Q. How do you say that? This is the map that's been plotted by experts on the basis of his coordinates. How do you say that the coordinates are wrong?

A. You mean this map that is on the overhead projector now. These ten maps were plotted by some experts but probably on the basis of the initial -- the first statement of Lord Ashdown in which he indicated the place where he was standing only approximately, and it's probably one of your experts that put this red circle here. It absolutely does not correspond to the coordinates given by Lord Ashdown. I am saying this because I know.

Q. Look at the next -- next map, please, Mr. Nort. The same point arises. If you would put that one on.

Again the coordinates identified, I must suggest to you, by Lord ⁴⁴⁷¹⁴ ^{BLANK PAGE} ⁴⁴⁷¹⁵ Ashdown simply don't have any relation to the line that you've marked. Not you. Not you, I beg your pardon. Whoever it was who prepared these charts. We could never know who it was, and the accused was able to put through you.

If you go to the third map --

JUDGE BONOMY: Well, the one that's now on, I think, is the one I have with a 3 on it, and the one you've -- the one you previously put, I think, had a 2 on it. Is that correct?

MR. NICE: That's correct, Your Honour.

JUDGE BONOMY: So the third one will have a 4 on it.

MR. NICE: The third one will have a 4 on it. The same point arises regarding the one marked 3.

Q. If we look at number 4, you will see, interestingly, whoever prepared this map has got quite close to the position that Lord Ashdown has given. Do you see that?

A. These maps were prepared by experts at a time when Lord Ashdown had not given any coordinates. These places show what can be seen from Albania, chosen by -- why don't you take my map?

MR. NICE: There's a green circle on this one, Your Honour, to the left. It's close.

JUDGE BONOMY: It's a green one, right.

MR. NICE:

Q. You see, the problem with this line, Mr. Delic, is you can't point to any occasion when Lord Ashdown said that he could see Junik. He only ever said he could see the area south of Junik. So can you explain, ⁴⁴⁷¹⁶ because you were prepared to talk about these documents when the accused produced them, can you explain what the conceivable significance of the line of sight into Junik is when Lord Ashdown only ever said he could see the area south of Junik?

A. As far as I remember, in his testimony and in his first statement, Lord Ashdown said he saw Junik, and it was only in his following statements that he talked about the area south of Junik. And in his later statements, including the latest ones, he mentions the area south of Junik, whereas in his first statements and initial evidence he talked about Junik itself.

Q. That will be for the Judges to decide in due course. Now, you want to look at these maps. I'd like you, please, to take the map that marks Ponosevac, Gegaj, Junik, and so on. That's this larger map. We're going to play you a small excerpt from a video, Mr. Delic, and the reason that we've got this map is because this is the -- if you would be so good as to listen to me. The reason we've got this map is because this is the same map that is shown on the video by the investigator who is taking or in charge of taking the film. The map's been changed only to the extent of adding the names in large bold type because the small names couldn't be so readily seen. We're now going to play you a selection -- a short clip of a video. Yes, please listen. It comes --

A. I only wish to warn you that this map is a forgery. It does not represent the true position of features.

JUDGE ROBINSON: Mr. Delic, I will give you an opportunity to ⁴⁴⁷¹⁷ explain that. Let us watch the video first.

MR. NICE:

Q. And the question is -- that I'm going to ask you, Mr. Delic, is this: On the basis that this is the place identified, or within 100 metres, I think, of the place identified by Lord Ashdown, do you accept that he could see the things he said he was able to see? So if we could just play the video, please.

A. I explained that last time. No, he couldn't see from that position.

[Videotape played] "-- south of Junik. I'm going to pan across to the next village, which is --"

THE WITNESS: [Interpretation] I'm not receiving interpretation.

JUDGE ROBINSON: Well, let's start --

THE WITNESS: [Interpretation] Could you please start from the beginning. I wasn't receiving interpretation.

[Videotape played] "I'm now looking at the village of Molic, which is south of Junik. I'm going to pan across to the next village, which is the village of Brovina. And from Brovina I'm going to pan across to two small villages, the first one being -- the first one being Berjah, and the second one being Stubla, seen side by side. Panning further south, I see a hill with a track in front of it, and behind that hill I see the village of Ponosevac or Panosevac [phoen]. West of this location, which is behind me, is the Albanian border, and the village behind that Lord Ashdown is ⁴⁴⁷¹⁸ referring to, Gegaj, is in that immediate location. I haven't visited that village because it's 100 metres uphill and the view is no better than this. I'm now going to pan back to the village of Molic. "This now is the village of Stubla, Berjah, Brovina, and Molic, which is at the base of the forest. This completes this recording."

MR. NICE:

Q. Now -- pausing there. I can tell you, Mr. Delic - we can find it if you need to see it - that the beginning of that longer section of that video, which the accused has seen, starts off with the GPS device reading out the coordinates given by Lord Ashdown and the investigator saying that the place where he's viewing from is within 100 metres of that particular position.

Do you challenge that from the position shown there, the position given by Lord Ashdown, the things shown on that video could be seen?

A. I wonder, is this footage from the relevant time? If I could only get some clarification here.

Q. [Previous translation continues]...

A. Lord Ashdown was not down there himself when this film was made.

Q. It was done by an investigator. Do you challenge that the things shown on that video, the villages described, were as described and could be seen?

A. I challenge all of this footage. It was made on the territory of Serbia and Montenegro.

Q. Finally, look at this map, please, which I'm holding up. This is a type of map that you introduced or that was introduced through you -- ⁴⁴⁷¹⁹ no, you introduced it yourself on the last occasion partway through re-examination and therefore we've taken your lead and you'll recognise this as a computer generated map that starts with a particular position and then tracks what is visible and not visible automatically; visible in green, invisible in red.

JUDGE KWON: Does it have a number on it?

MR. NICE: It doesn't at the moment but it's the only object that I might ask be exhibited apart from the video in due course. But this is the type of map that the witness brought in, computer generated maps of this kind, and you'll see that the location is given on the left in accordance with what Lord Ashdown says. We can see, starting from the left with the green, that there's a short distance of things that are visible followed by a long patch of invisible, presumably with the ground falling away. And then if we look to the right we can see that Molic, Brovina, again all in part, Berjah, and Stubla and Ponosevac in part are all visible, along with Donja Morina as well, and Gornja Morina.

Q. Do you doubt the accuracy of this map in showing what could be seen from the point identified by Lord Ashdown in his statement?

A. Can you tell me what the scale of this map is?

Q. At the moment, no. It says 1:50.000

A. No, it can't be 1:50.000. That is obvious. Secondly, you are showing a point which is 100 to 200 metres into the territory of Serbia and Montenegro as the relevant point from which the observation was made, and that is not true.

Q. That is what Lord Ashdown has identified and indeed explained. ⁴⁴⁷²⁰

MR. KAY: Can we just get a few things straight here. His testimony, when he gave evidence on the 14th of February, should also be put by the Prosecutor if this is going to be conducted in a fair way in cross-examination, because the testimony of Lord Ashdown was that he followed: "I journeyed from Bajram Curiju to Trepoje, along the lines here - there's a very rough track up to the border crossing here - and then followed this border crossing up to a point on the Albanian-Kosovo border, approximately where my marker is now, above a village which I was informed was called Gegaj ..."

Those are the matters that perhaps need clarification on this issue, and I anticipate that the witness's objections --

THE WITNESS: [Interpretation] Please.

JUDGE ROBINSON: Mr. Delic, allow Mr. Kay to finish.

MR. KAY: When he said about this is in Serbia and Montenegro --

JUDGE ROBINSON: Yes.

MR. KAY: -- the point being that Lord Ashdown's evidence was "the border."

JUDGE ROBINSON: Thank you.

MR. NICE: Yes, and it's a border that you can walk a hundred yards into the territory of Serbia and Montenegro without being stopped.

Q. It's not a guarded border there or it's not a fenced border, is it?

MR. KAY: If that was for me or the witness. He said "the border."

MR. NICE: For the witness. ⁴⁴⁷²¹

THE WITNESS: [Interpretation] This is absolutely absurd and impossible, what the Prosecutor said just now. At that time on the border there was combat readiness all the time. I said last time that there were at least two border organs from Morina to Maja Glava. As a matter of fact, not a single passenger could travel from Trepoje to Gegaj without being noticed. And for someone to be 100 or 200 metres into our territory is totally impossible. And this is the first time I hear our territory being mentioned at all.

I would like to point out yet another intentional or unintentional mistake on the maps that the Prosecutor is showing now.

JUDGE ROBINSON: Yes. Go ahead.

THE WITNESS: [Interpretation] May I?

JUDGE ROBINSON: Does this relate to your earlier statement that the maps are a forgery or is that a different matter?

THE WITNESS: [Interpretation] Well, you see, these maps were adjusted so as to suit Lord Ashdown rather than the truth.

MR. NICE:

Q. Well, I would be interested to hear a bit more of this answer.

A. Please.

JUDGE ROBINSON: Are we on the ELMO now? Yes.

THE WITNESS: [Interpretation] Can you see Gegaj here? The village of Gegaj is not there at all. In my opinion, this was done intentionally only for the purpose of this evidence. Gegaj is below the village of Kamenica, two kilometres lower, and that's the way it is on the maps that Mr. Nice gave me too. ⁴⁴⁷²² Now, please have a look at the following map. You see here the village of Kamenica and the village of Gegaj, and on this map it's depicted two kilometres away, at another place. I cannot say now that this was done unintentionally. So see the position of the village of Gegaj, the position of the village of Kamenica, and in Mr. Nice's map Gegaj is now presented here, which was not the case in Mr. Nice's previous maps. This is the first time it appears this way.

JUDGE BONOMY: Which number is on the map you're now looking at? Number 5, is it?

THE WITNESS: [Interpretation] Number 5.

JUDGE BONOMY: Number 5.

THE WITNESS: [Interpretation] We can also take the map that Lord Ashdown showed here in the courtroom. We can see --

JUDGE KWON: Microphone is not on. In number 5 where is Gegaj? Could you indicate again? I can -- it's below Kamenica, yes.

THE WITNESS: [Interpretation] The village of Gegaj is here.

THE INTERPRETER: Could the witness's microphone please be turned on.

THE WITNESS: [Interpretation] The village of Gegaj is here, and Mr. Nice showed a map where the village of Gegaj is presented here. So there was a total reversal.

Here's the map that Lord Ashdown used here in the courtroom. He indicated this location properly of the village of Gegaj because it is in the immediate vicinity of the Cafa Morina pass, where our border post is, too, whereas now this map that Mr. Nice showed depicts it two or three ⁴⁴⁷²³ kilometres away that particular locality.

MR. NICE: Your Honours, these are all locally produced maps and if, and I can't work it out on the screen, there are inconsistencies, they have nothing to do with, as far as I know, the evidence of Lord Ashdown or the preparation for video. We just simply work with the material we've got that's best available.

JUDGE BONOMY: That comment I don't understand, I'm afraid. Are we not trying -- I thought you were trying to assist us.

MR. NICE: Yes, I am, indeed, but insofar as the maps are concerned --

JUDGE BONOMY: Are you now abandoning your maps?

MR. NICE: Certainly not, not at all, but I can't deal with it on the screen at the moment. I'll deal with it perhaps a little later. What is clear is that the position -- the witness wanted to say something about the maps being a forgery.

JUDGE ROBINSON: Yes, I wanted to hear the witness on that.

MR. NICE: Perhaps he would expand on that.

JUDGE BONOMY: He said it. It's clear from just looking at these two maps that they're not identical. Kamenica is in two different places in relation to Gegaj, so that's why he says one of them is a forgery.

MR. NICE: Or one of them is inaccurate.

JUDGE ROBINSON: Mr. Delic, do you have anything more to say in regard to your statement that the maps are a forgery?

THE WITNESS: [Interpretation] Well, obviously one and the same village cannot be in two different locations on a map. The original map ⁴⁴⁷²⁴ that was shown to me by Mr. Nice and the one that I worked on in accordance with your request matches the actual state of affairs on the ground. Mr. Nice can find that map and show it.

The latest map shown does not correspond to the natural state of affairs on the ground. A village that is below Kamenica was now moved two kilometres higher up on this map. But it was moved in such a way in order to correspond to Lord Ashdown's statement. Now it corresponds with Lord Ashdown's statement.

JUDGE BONOMY: You have no basis for saying that, Mr. Delic. You can point to differences between the maps, but you can't possibly assert, on what you know at the moment, that that map was actually drawn following upon Ashdown's statement. You don't know that.

THE WITNESS: [Interpretation] But this map does correspond to the last statement made by Lord Ashdown, the one that he made a month ago when he said again that he was close to the village of Gegaj. So the village of Gegaj was moved in order to correspond to what he said.

JUDGE BONOMY: No. The first part of what you say is fair comment. The second part -- what's your basis for saying that someone's actually drawn a map to suit the purposes? You have to have a basis for an allegation like that.

THE WITNESS: [Interpretation] Well, the Prosecutor has to respond to that because it's the Prosecutor who is showing the maps. I am saying that the maps do not correspond to reality and all the maps that are given here, actually, I bring them all into question. Because from these locations -- well, first of all, locations were provided that are within ⁴⁴⁷²⁵ the state union of Serbia and Montenegro, and that's not the border. That is the territory of Serbia and Montenegro.

I am totally challenging this video footage that was shown here as well.

JUDGE BONOMY: It may be that the whole exercise of referring to maps is unhelpful and the real question is was the witness able to see what he says he saw at the time.

MR. NICE: Your Honour, I'm grateful for that.

Q. And indeed, you see, Mr. Delic, Lord Ashdown, who had some military experience, has identified, with as much precision as he can, the grid reference. Now, the map inconsistency we'll have to look at, but the grid reference is the grid reference from which the investigator or near to which the investigator took the video, and it's perfectly apparent that from that position you can see all the villages Lord Ashdown said he saw. Now, do you really think from your position you're going to challenge that Lord Ashdown was able to see what he says he saw from that position?

A. Absolutely. At any point in time I'm going to challenge that Lord Ashdown saw what he said he had seen.

JUDGE BONOMY: I understand that point clearly, Mr. Delic, and it's a major issue here, but can I ask the question rather differently. Do you accept that from the grid reference which was now given, whether that's where he was at the time or not, from that grid reference do you accept that the investigator was able to demonstrate that that's what you can actually see from that grid reference? Do you accept that much? ⁴⁴⁷²⁶

THE WITNESS: [Interpretation] No. This investigator was not at the same coordinates that the lord gave. This investigator was even more into the territory of Serbia and Montenegro.

MR. NICE:

Q. Why do you say that? Have you been there recently? Do you know all the territory so intimately that you know that where he was is not the grid reference? Tell us. He says it's within a hundred metres of it, I think, but just tell us, why are you so emphatic?

A. I'm claiming that -- well, first and foremost, Mr. Nice, you were not there, and I was there hundreds of times, and I walked all over the border on foot, and I know exactly what can be seen from every position. Last time, on my map, I showed the position where Lord Ashdown was, and what I specified does not differ from what Lord Ashdown gave here now except that had he entered the territory of Yugoslavia then, or Serbia and Montenegro now, that is something that is impossible. And this is the first time now that a point is found within the territory of Serbia and Montenegro to observe the territory.

I can show on the map and you will see that I quite accurately gave a grid reference to what the lord said or, rather, I marked it exactly on my map. But you will see that the village of Gegaj is not there.

JUDGE ROBINSON: Mr. Delic, from where Lord Ashdown said he was, would he have been able to hear gunfire and shelling in the villages that he said he saw?

THE WITNESS: [Interpretation] He claims that he saw the villages ⁴⁴⁷²⁷ ^{BLANK PAGE} ⁴⁴⁷²⁸ of Niokaz, Dobros, Berjah and Stubla, so he could not hear ordinary gunfire. He could have heard artillery fire. But I said last time as well that I have documentation as to what was going on in the area during those several days in the villages of Molic and Brovina. My unit was there. I brought that unit in on the 6th of June, and I visited them on the 16th of June. I received reports every day. My unit did not have any combat activity except for daily securing the road from Junik via Ponosevac to Djakovica.

So if Lord Ashdown saw something south of the road of Ponosevac - he said he saw tanks - I explained that they were there from 10.00 a.m. until 3.00 p.m. in order to secure the transportation of food supplies, water, medical aid that was being taken to the border posts. That was done every day from 10.00 a.m. until 1500 hours. But what was said about the other villages quite simply could not have been seen and there was no such activity.

So I had my own unit there.

JUDGE ROBINSON: Thank you, Mr. Delic. Mr. Nice, I think it's -- well, where are you now in your --

MR. NICE: Well, I was going to look at the next two videos, which -- I'm not exploring all the answers by the witness. I'm giving him a chance to look at the videos. It sounds as though the matter will have to be the subject of rebuttal evidence. Whether Lord Ashdown has to come back or not, I don't know. He can come back at any stage. He's quite willing to. But I would like the witness, since he's going to make these assertions by which either the evidence or his credibility will be judged, ⁴⁴⁷²⁹ to have a chance to look at the next two videos, for which there are similar packs, and I'll do it as quickly as I possibly can.

JUDGE ROBINSON: And we haven't reached the VJ.

MR. NICE: No. I was as good as my word about the half an hour for the first topic, and I would have liked to have gone on longer but this one has been taken slightly out of my hands.

JUDGE ROBINSON: Let's just hear him on this. Yes, let's just watch the video and then we'll take the break.

MR. NICE: Certainly. Can you, Mr. Nort, lay on the overhead projector location 2, please, so we can see and I can read out to the witness what all the supporting material is there, if anybody wants to check it and say that it says something different. As to location -- That's 3. Can we have location 2, please.

Q. As for location 2, and for this Lord Ashdown, Mr. Delic, actually wrote something in his diary about what he saw. He made a witness statement, he gave evidence, and he made a further witness statement. And in the course of those accounts he explained that he was standing above the hills of Suva Reka. He could see the valleys of Kosovo stretching south before him. He could see the entire valley and beyond Suva Reka. He said that he was presented with an entire amphitheatre of hills in which every village was ablaze, and he concluded that artillery units, tanks, and mortars were firing on the villages from the Dolje Blace feature.

If we can now, please -- I won't deal with your maps, the same point arises on them, however -- but can we just look at the video, ⁴⁴⁷³⁰ please. It's very short.

[Videotape played] "I'm now showing you in very wide view the Dolje Blace feature, and I'm zooming across to show you the wider terrain, and in the distance Suva Reka. I'm going to zoom back to the Dolje Blace feature. I'm zooming out. I'm now showing the Dolje Blace feature from a wide-angle view, and I'm going to zoom across to the town of Suva Reka. I have to tell you the zoom on this camera is very, very pernickity and it doesn't seem to want to operate properly, hence all this movement. I'm going to try and hold in on it for you, steady. Now, to the very right of this picture you'll see a bald spot on the landscape, and that second ridge I'm showing you is that -- that and the ridge behind it is, according to the maps and the grid references indicated by Lord Ashdown, the Dolje Blace feature. I'm now going to go across, show the terrain. This village we're looking at now is Lasdancje [phoen]. And the white sheds I'm looking at now and the town behind that is Suva Reka. I'm going to show you that zoom at this level from this spot, which as I said, this location is approximately 200 metres indicated by Lord Ashdown on his grid references. Behind me is the village of Studencani. "I can see everything that is indicated by Lord Ashdown's grid references from this location."

MR. NICE:

Q. All right. Now, the grid reference given by Lord Ashdown was 34 DM804898. The investigator took that footage from about 200 metres away from there. Do you challenge that from the position where the ⁴⁴⁷³¹ investigator took that video, he could see the area of Suva Reka and the villages he spoke of?

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic.

THE ACCUSED: [Interpretation] Can Mr. Nice explain why his video man is not filming from the actual grid reference but from 200 metres away? He always keeps this reserve.

JUDGE ROBINSON: Mr. Milosevic, let us hear the answer to the question.

THE WITNESS: [Interpretation] I can confirm that the cameraman was near the coordinates that Lord Ashdown gave in his last statement. So the cameraman was near the village of Studencani because I recognised that part of the terrain. However, the first thing that he showed, he absolutely could not have seen. He mentions Blace several times. Blace is behind the features that can be seen on the horizon. It's impossible, therefore, to see the area of Blace from that point. You can see Suva Reka. You can see part of the villages leading from Suva Reka to Prizren but nothing towards Blace and Dulje, none of the things that Lord Ashdown spoke of, that is.

MR. NICE:

Q. He concluded that units were firing from that area. And the last point on this topic, if the Court would look at this map, computer generated map similar to that that the witness produced last week. Would you look at this map, please. What we can see here is that from -- not approximately but from the grid reference given by Lord ⁴⁴⁷³² Ashdown there are -- the Dolje Blace feature is indicated by three lines of sight, and one can see both red and green; i.e., partly visible and partly invisible, by the time you reach the feature. Any reason to doubt the accuracy of this map?

A. This map was drawn by amateurs. Look at this. Tell me what the scale of the map is first. Well, on this map it is impossible to do what you're trying to depict here. Experts will laugh when they see this.

JUDGE ROBINSON: Mr. Delic.

THE WITNESS: [Interpretation] Mr. Robinson, you see some red and green lines drawn here. The red lines depict what is invisible, and the green lines depict what is visible. In order to do that, you have to see below you these contour lines that showed the relief of the terrain. You can see that some of these lines are thicker and others are thinner. The distance between the two is called equidistance, and on the basis of the number of these lines and the equidistance, the altitude of the said feature is calculated.

So if you have a look at my map, you will see on my map how clearly this particular direction is depicted.

MR. NICE: Well, Your Honours --

THE WITNESS: [Interpretation] You will see those lines. Right here. I show them here on this particular place. So you see here, there are a lot of these lines. It is easy to calculate the altitude of every feature, every point on this map, where it is on the terrain itself, whereas on the basis of this map provided by Mr. Nice you cannot make such a calculation. ⁴⁴⁷³³ And the scale of the map is not adequate. When I say that the scale of this map is 1:50.000, we know what that means in nature and how each and every feature is depicted on that map.

MR. NICE:

Q. [Previous translation continues]... and if it's going to be a battle of competing computers, we'll have to let them sort it out, but just tell us, where Lord Ashdown says from the position given and the position used by the investigator, or approximately, he was able to conclude that tanks or mortars were firing from that feature, that's a perfectly reasonably possible observation for someone to make if tanks were firing from that feature, isn't it? From where the investigator was, he could see such a thing. There was nothing to stand in his way.

A. Lord Ashdown spoke about Dulje, Blace here, and he referred to the artillery. He said that there was artillery on that location. He could not see Blace, and he could not see Dulje. I already said that he could see -- well, it's shown here that he could not have seen Suva Reka either. Please. That's the value of what you call expert work. You saw that Suva Reka could be seen clearly on the video, and now you can see here that it cannot be seen because there is a red line drawn here. This was done by amateurs, as I said, or a computer that was programmed by amateurs. It is impermissible to bring this kind of thing into court.

JUDGE ROBINSON: Mr. Nice, I'm afraid my doubts about the utility of this exercise have been confirmed.

MR. NICE: Well, Your Honour, I rather agree to the extent that I ⁴⁴⁷³⁴ was hoping the witness would confine himself to the answers of the kind that perhaps came with the second video. I'd like him to have a chance to look at the third video unless the Chamber is convinced this isn't go to help. I'd also like the Chamber to consider, given the way this map has been dealt with and the detail it's been dealt with by the accused, whether it would be desirable to contact Lord Ashdown and see if he can make himself available to be interposed at some stage, if the Chamber would like to hear from him again, because --

JUDGE ROBINSON: Actually, this is the kind of matter in respect of which some sort of on-site visit would be appropriate but I don't know whether it is feasible in the circumstances of this case.

MR. NICE: Your Honour, as to the third video, I deal with it briefly. I'd like to do it just so you can see it as well.

JUDGE ROBINSON: Yes. With the indulgence of the interpreters.

MR. NICE: Thank you very much. Can we just put on location 3, please. In each of these packs, by the way, there are the witness's maps which show that they bear no relation to the grid references given, but I haven't got time to go through that.

If we look at this one, this is what was said by Lord Ashdown about his third location. Again, diary excerpts, transcript and a witness statement, and he said that he was looking out across Suva Reka whereby he could see multiple villages --

JUDGE KWON: Mr. Nice --

MR. NICE: Not on the -- sorry, missed it.

JUDGE KWON: There is this noise and the ELMO is not working. ⁴⁴⁷³⁵

MR. NICE: Yes. He testified that he was looking out across Suva Reka valley whereby he could see multiple villages. He was able to see the villages of Budakovo through to Vranic, Kruscica, Maciteve and Gornja Kruscica, and he remarked that all the villages were ablaze as a consequence of bombardment which he estimates came from the area of Blace. He gave his grid reference as 34 DM863920, and if we can just look at part of the video. We may not look at much of it. If we can just play that part 3. It's a slightly longer section. It's about five minutes.

[Videotape played] "-- Slapuzane in Kosovo. It is north of the town of Suva Reka. I'm showing you on the map the direction I want to show you on the terrain going south -- sorry, going east of Slapuzane. I'm going to then show you the Budakovo area and south of that Vranac [phoen], or Vranic, and the related villages referred to in Lord Ashdown's testimony."

MR. NICE: This map may be of assistance to the Chamber, if they want to follow it.

[Videotape played] "I also want to show you the GPS reference for where I am at now, if I get the light right. And this is within less than 50 metres, or certainly within a hundred metres of Lord Ashdown's grid reference marks. And the reason I'm in that area is because -- within that range, is because I'm on a track which goes through a minefield. There is a stone here which I'm walking towards which is painted white, and there are several of those stones in the area, which indicate that mines are present. ⁴⁴⁷³⁶ "I'm now going to show you the area where I'm above. This is the track I'm on, which hopefully is completely safe, and that leads me back down to the vehicle. I'm now going to bring you back over to Slapuzane, which is directly beneath those bushes. I'm going to do a wide-angle pan over towards the area of Budakovo. And just through those bushes we're looking at the area of Vranic. I'm now going to zoom in and show you a tightened version of that."

JUDGE ROBINSON: Mr. Nice, I understand there's a technical problem now. We're running out of tape, and we'll have to stop. All right. We'll have to stop. I understand we have to stop. We'll take the break for 20 minutes.

--- Recess taken at 12:36 p.m.

--- Upon resuming at 12:57 p.m.

MR. NICE: Before we revert to the third portion of the video, just as a matter of information, and as you can see it, the map that differs from the map produced by the -- not by the witness, it was produced by the accused, wasn't it, and looked at by the witness, with the inconsistent placing of Kamenica and Gegaj, as a matter of interest, this map that was relied on by the investigator was produced by KFOR and printed on the 12th of August this year, as you can see from the print date at the bottom right-hand corner.

So if we can -- and I can't -- I've tried to resolve the inconsistencies, though I can't at the moment beyond informing you of the provenance of that particular map.

If we could just play the rest of this short passage, please. ⁴⁴⁷³⁷

[Videotape played] "As I said earlier, this zoom is a bit tricky. It's very sensitive and has a mind of its own. We're now looking at Vranic area, and I'm zooming towards Budakovo and related villages. To pick out which village is which from here I just can't do, but that is the Budakovo area.

"I'm now panning in a northerly direction, showing you the terrain and the Slapuzane area. I'm now going to go back to the direction I came just to show you the area at this magnification. From here I have a clear unhindered view of the terrain, surrounding roads and hills and villages. I'm now passing through Budakovo and villages and back to Vranic.

"This is Barney Kelly, ICTY investigator."

MR. NICE: Thank you very much.

Q. Mr. Delic, do you accept that from the grid reference given by Lord Ashdown and used, subject to the couple hundred metres or whatever it was difference explained by the investigator, that he could indeed see those villages?

A. Quite obviously for the first time the village of Slapuzane is mentioned here. Lord Ashdown never mentioned that in his testimony, but it is a village close to Pecani, which means that this particular investigator who made this footage with the camera was at approximately the same coordinates that Lord Ashdown gave five or six years after his stay in Kosovo. However, he mentions the village of Vranic. He could not have seen the village of Vranic. He mentions the village of Budakovo as ⁴⁴⁷³⁸ well, but as he rightly says, he says "It's somewhere over there." And since the villages are so far away, you weren't able to see a single house, either from the village of Budakovo or the village of Kruscica on this footage, which means that what we were able to see, the houses we did see were the village of Slapuzane, which is quite close by, and also the tips of Mount Birac and the general direction or axis where the village of Budak is somewhere in the distance. But what the investigator mentioned, having mentioned Vranic twice, especially when he zoomed back, panned back and tried to zoom in, that was not possible and it couldn't have been Vranic. So this investigator does not know the lay of the villages. However, I do not challenge, and last time I drew up the material explaining exactly what you can see from which axis, what you can see looking towards Budakovo, what you can see towards Donja and Gornja Kruscica or Macitevo.

Q. When he said about Vranic, I think he's acknowledging - it's hard to tell - that Lord Ashdown or, rather, the investigator could see the things that he said he saw, but I'm not going to take it further. There is one of these maps, a computer generated --

A. Please, Mr. Nice. Just a moment. Once again, that map of yours, map number 3, well, I have to say that map number 3 is not a good map. It's no good. Just take a look at the village of Vranic, for example.

Q. Could you wait, please, to wait until you're asked a question.

MR. NICE: Would The Chamber please be good enough -- I invite the Chamber to ensure that the witness is advised his proper role as a witness. ⁴⁴⁷³⁹

Q. Since you challenge what is said about Vranic, this map, computer generated, same system as your maps were generated, would show from that location that Vranic is in the green area of visibility. Do you have any reason to challenge that? Not just a statement of challenge but do you have any reason to challenge it?

A. I have every reason to challenge it completely. With the greatest amount of responsibility I say that that is correct and you can [as interpreted] see Vranic, because in front of the village of Vranic you have a feature at an altitude of 751 metres which --

JUDGE BONOMY: The transcript says you can see Vranic. I take it you actually -- or did you say that?

THE WITNESS: [Interpretation] You cannot see the village of Vranic. In front of the village of Vranic there is trig 751 metres, and the village of Vranic is 100 metres below that trig point. That means that this computer image, and I can't analyse its entirety, but along the Vranic axis is quite wrong and does not correspond to the state of affairs.

JUDGE ROBINSON: Is that what you meant when you said the map was not a good one?

THE WITNESS: [Interpretation] Certainly. This was not material that was done properly either. Take the example of the village of Vranic, and if you give me enough time I can look at the other villages, too, but looking at the example of the village of Vranic, it is quite obvious that this was not good imagery. In fact, it's quite wrong. It was done quite wrongly. It should be the red line showing that you can't see it, not the ⁴⁴⁷⁴⁰ ^{BLANK PAGE} ⁴⁴⁷⁴¹ green line showing that you can see it.

MR. NICE: Your Honour, I'm not --

JUDGE ROBINSON: And why is that?

THE WITNESS: [Interpretation] Well, I've already explained. Above that village, along the north-westerly direction you have a feature called Cuka, which is 751 metres above sea level. That's the altitude, and that particular feature is higher than the village, about 100 metres above the village which means everything behind the feature it is quite impossible to see because behind the village is the hill.

JUDGE ROBINSON: Yes. Thank you. Mr. Nice.

MR. NICE: Well, Your Honour --

Q. You didn't operate the computer generated map that produced the ones that I've just produced to you nor did you operate the computer generated map that the accused produced to you, did he -- did you? You --

A. No.

Q. My last question on this topic is this: We see on these maps that the accused produced through you various lines. I'm not going to go over about the fact that they bear no relation to where Lord Ashdown says he was standing, but we see lots of other little red dots around to which lines are not connected. Do you think that suggests that the map makers at some stage were trying other lines of sight and they cut the lines out? You see there are lots of red blobs around which don't seem to be part of the map. Does it look as though at some stage other lines of sight were tried and then they were eliminated? I'm looking at number 5, for ⁴⁴⁷⁴² example, of this section, I think, but it applies generally.

A. Mr. Nice, if you were to look at all ten maps, you would be able to see that each of those points were dealt with. So they are points around Junik which were selected and to determine visibility according to them, the different point -- there are different points from the territory of Albania but the points around Junik are all there, and all the red points or dots were dealt with, as far as I know.

Q. We'll check if they become relevant.

MR. NICE: Your Honours, before I move on to any other topic that I'm allowed to ask questions on, I'm not going to seek to have anything produced as evidence because it seems to me that, under your ruling, the video, although he -- I suppose I could ask for the video to be admitted in whole or in part because he acknowledges it would show what is visible from the place, certainly so far as two of the locations are concerned. Would you so good, Mr. Delic, as to let me address the Court. But I suspect the cleaner solution is at some stage for an application to be made to produce the video, then the production can be by 92 bis or by a live witness, if it's really necessary. It can be in rebuttal or at an earlier stage if the Chamber would like this matter to be dealt with before it forgets things and if it's minded to admit the evidence.

As to the computer generated maps, I had at one stage thought of putting them in, but since witness has raised so many issues about them, I think, frankly, what's sauce for the goose must be sauce for the gander, and in my submission let's have no computer generated maps. It was going ⁴⁴⁷⁴³ to be hard to understand how he could produce in re-examination computer generated maps that were simply handed to him by the accused. If he's going to raise as a general question of doubt the generation of computer maps of this kind, it might be better for none of them to go in. That's my position.

JUDGE ROBINSON: Well, he has raised valid arguments in relation to your maps.

MR. NICE: He's raised arguments. Whether they're valid or not, I don't know.

JUDGE ROBINSON: They seem to be fairly cogent to me.

MR. NICE: Your Honour, he says what he says. Whether he's telling the truth and whether he's lying or not, I don't know. We need the people who are expert in the production of maps both --

JUDGE ROBINSON: What I'm saying, Mr. Nice, is that I don't accept your argument that both sets of maps should not be introduced into evidence. I think each has to be assessed on its own merits.

MR. NICE: In that event, I mean my position would be if the accused's maps are going in at all through this re-examination process, then it would only be right and proper that these maps put to the witness and upon which he has commented should also be produced. They have neither more nor less foundation than the accused's maps which are simply produced out of nowhere. I produce and explain where these have come from.

JUDGE ROBINSON: Those are your submissions, Mr. Nice.

MR. NICE: On that point, yes. ⁴⁴⁷⁴⁴ There's a third topic upon which I was given leave to ask questions. It would be in closed session.

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Mr. Milosevic, yes.

THE ACCUSED: [Interpretation] Before he goes on to the third topic, Mr. Nice, I don't think you can compare the maps as to whether they came from me or Mr. Nice because the witness quite clearly indicated the forgery. So it's not a question of the same coming off the computer but whether they are correct or not. Mr. Nice --

JUDGE ROBINSON: Mr. Milosevic, I did say that each set would be assessed on its own merits, yes.

Yes, Mr. Nice.

THE ACCUSED: [Interpretation] Very well. All right. Now, my next objection is this: Mr. Nice asked that it be introduced into evidence, the video footage, and the witness challenged the videotape and said that it was made from the territory of Yugoslavia and not from the position where Lord Ashdown was.

JUDGE ROBINSON: [Previous translation continues]... has not asked for the video to be introduced into evidence.

THE ACCUSED: [Interpretation] Very well. And now my third point, Mr. Robinson, is this: A moment ago Mr. Nice said that certain documents were introduced into evidence. I checked them out and this set of maps was not admitted, the one which the witness here on the 21st of September, explained them on the 21st of September. So I'd like to tender them now. And they were not admitted, as far as I was able to check out, the piece ⁴⁴⁷⁴⁵ of evidence by Paddy Ashdown in which he explains the coordinates, the grid reference. So I think that they should be incorporated into the exhibits along with the information we received from Mr. Nice and Mr. Ashdown and the computer images with the differences in altitude, that whole set that was commented on by General Delic on the 21st of September. Similarly, another Wesley Clark extract quoted by the witness on the 20th of September of this year was not introduced into evidence, and you said for both these exhibits that they should be admitted, so just to have what you instructed done actually done. Or at least, that's how I understood you.

JUDGE ROBINSON: Thank you, Mr. Milosevic. We'll attend to those matters later.

MR. NICE: As to the third topic, with your leave, I would ask some questions.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Milosevic, we'll admit those documents that you referred to, but we don't want to do the numbering now. We'll have the numbering of the exhibits done later since that might take a little time. Yes. Unless the court deputy's in a position to deal with them expeditiously.

He doesn't have the collection here, so we'll do that on another occasion, yes.

Mr. Nice.

MR. NICE: Do I take it from Your Honour's --

THE INTERPRETER: Microphone, please. ⁴⁴⁷⁴⁶

MR. NICE: Do I take that Your Honour is admitting these small maps -- no, these ones of the accused's? These ones?

JUDGE ROBINSON: Yes.

MR. NICE: Okay. Then my submission is that it would be appropriate for the other maps that have been produced also to be exhibited, these ones of ours. And I have to -- I have to say, with great respect, that I am incapable of -- I cannot understand the basis of admissibility of expert material, for plainly the material is of its kind expert material, produced without any statement saying he did it, how it was done, when it was done, on what machinery it was done, and put through a witness in re-examination. And --

JUDGE BONOMY: What's wrong with any witness saying he recognises a map and then speaking and giving evidence in relation to what he can recognise from a map? What's wrong with that?

MR. NICE: There's nothing wrong with recognising from a map, but these are maps that have computer generated lines of visibility on them which is said to be significant, and he said he didn't work the machine, he didn't produce the map.

JUDGE BONOMY: No, indeed, but he says by looking at the map itself and the various features on the map he can confirm the accuracy of what is there. He has spoken -- he's given evidence to that effect. What weight we give to it is another matter because of the way in which it's been produced. But at least it's got a basis for us to make an assessment. The maps that you're talking about, these Prosecution computer generated ones, one of them, the middle one, the second one, the ⁴⁴⁷⁴⁷ witness demonstrated that there's something that on that cannot be seen was actually seen on the video, and before he said it it was my own observation. So there is plainly significant doubt over the accuracy and authenticity of the ones which you're seeking to produce. So I see a distinct difference between those.

MR. NICE: As Your Honour pleases. As to the difference between Kamenica and Gegaj north or south, on that topic I'll obviously make inquiries of KFOR to find what if anything they can say about their map because the issue will be in your minds and if I can resolve it one way or the other, at least so far as our position is concerned, I will. I'm in no position to make a concession one way or another at the moment, except that that's where the map came from. We don't know, I think, although the witness may be able to tell us, what's the source of these maps, that is what -- because I don't think they have it on them where they come from. He may know.

JUDGE KWON: The problem with me is I can't find Kamenica on this map.

MR. NICE: I haven't looked at that one.

JUDGE BONOMY: What is the significance of the provenance of a map? If a person sees a map and says he recognises it as an accurate depiction of the area, why must you know where it comes from before you can say that it has a measure of authenticity about it?

MR. NICE: I didn't say that, Your Honour, but if it's a difference between two maps and --

JUDGE BONOMY: If you want to check ... ⁴⁴⁷⁴⁸

MR. NICE: -- one wants to know where the accuracy is to be identified.

JUDGE BONOMY: I understand that point.

MR. NICE: There's also the question of whether some maps may have more reliability at first sight than others. For example, I'm not saying -- I'm not making a choice as between these two if the maps that the accused has produced through this witness are said to be military maps or something of that sort, it's been said they're domestic maps, that's the sort of thing one might want to do.

JUDGE BONOMY: Mr. Delic, can you help Mr. Nice on that so he can carry out investigations into the alleged inaccuracies of his own maps? Can you say where the ones you spoke to came from?

THE WITNESS: [Interpretation] I was exclusively working with military maps here, that is to say maps where the scale was 1:50.000 which were compiled by the Military Geographical Institute. So they are our military maps, and as you can see, you can see the scale they were done according to and their origin and so on.

JUDGE BONOMY: And that applies to these little copies that were used in the course of the evidence that Mr. Nice has as an example of in his hand, or he had one a moment ago. Is that -- where did that come from?

THE WITNESS: [Interpretation] They are parts of the military maps.

JUDGE BONOMY: Thank you.

MR. NICE: Your Honours, the last topic would be in closed session, with your leave, and I'll deal with it as shortly as I can. ⁴⁴⁷⁴⁹

JUDGE ROBINSON: Yes, closed session.

JUDGE KWON: Private session.

JUDGE ROBINSON: Private session.

[Private session]

(redacted)

(redacted) ⁴⁴⁷⁵⁰ Pages 44750-44763 redacted. Private session.

⁴⁴⁷⁶⁴

(redacted)

--- Whereupon the hearing adjourned at 1:59 p.m., to be reconvened on Thursday, the 29th day

of September, 2005, at 9.00 a.m.