1 Thursday, 30 May 2002

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE MAY: Yes, Mr. Ryneveld.

7 MR. RYNEVELD: Yes, Your Honours. As you can see, General

8 Maisonneuve has rearranged his schedule in order to convenience the Court,

9 and will be available for continuation, but -- that was, of course, on the

10 basis of Your Honours' indication of an hour and a half remaining for

11 cross-examination. He does have a tight schedule. Regardless, we've got

12 the flights arranged for an early afternoon departure.

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

14 WITNESS: JOSEPH OMER MICHEL MAISONNEUVE [Resumed]

15 Cross-examined by Mr. Milosevic: [Continued]

16 Q. [Interpretation] What is your information and knowledge as a

17 functionary of the mission with respect to the situation in Racak prior to

18 the incident of the 15th of January that you're talking about?

19 A. We were told -- my verifiers actually had knowledge that the

20 village of Racak was very lightly held, and the word we received was that

21 it was a few scouts here and there, individual personnel, and it was not a

22 -- a large concentration of KLA.

23 Q. According to the data that is contained in the material provided

24 by the opposite side, the numerical state of armed persons, as they say

25 soldiers, in the area was between -- well, he speaks about two brigades,

1 one thousand men in the whole zone, perhaps 1.400 men. Did you have those

2 figures and that information?

3 A. No, I did not.

4 Q. And do you know that those figures and that data on the military

5 situation were provided to the OSCE and that Walker had a meeting on the

6 16th at 1300 hours in Petrovo with the commanders of the KLA?

7 A. As I mentioned yesterday, I was aware that Mr. Walker had had a

8 meeting but I was not aware of the -- that he had been provided with

9 numbers. And also, of course, this is the 16th, so it would not have been

10 helpful to us at any case.

11 Q. And did you have occasion, when visiting Racak, to become

12 acquainted with all those facilities, the bunkers, the trenches, the

13 machine-gun nests around Racak, above Racak, and so on and so forth which

14 were built already at the beginning of December 1998, according to the

15 information that we have?

16 A. I visited Racak on the day -- on the 16th, actually, and not

17 before that. So I had not been -- been in the area of Racak before then

18 or in the village itself. On the day, on the 16th, when I did go up to

19 the area called the gully, I did see some preparations and some earth

20 works around -- above the gully. I did not go into -- into those

21 fortifications, or I didn't get a chance to actually see the

22 fortifications in detail.

23 Q. That means that on the 15th, a day earlier when you were there,

24 you saw nothing of that. It was only on the 16th that you saw some of

25 what was actually going on in Racak.

1 Now, do you know that the command of the unit in Racak was Afet

2 Bilalli? Did you happen to meet him?

3 A. No, I did not.

4 Q. And did you know anything about the fact that up until the

5 beginning of January 1999, bunkers were dug up and trenches in Bela and

6 that similar defence positions began to be dug in in the area? They were

7 dug by civilians and members of the KLA. Did you know anything about

8 these activities?

9 A. No, I did not.

10 Q. And later on, or perhaps at that time but at least later on, did

11 you become acquainted with what they put out as information later on, that

12 they distributed automatic weapons to the soldiers as well as mortars, 7.9

13 millimetres and 12.7 millimetres machine-guns, recoilless guns, two

14 mortars of 60 millimetres? All this is to be found in the data. Now, are

15 you aware of all this?

16 A. I became -- I was told by the Serb police during my meeting on the

17 17th -- correction, on the 16th, and they produced a 12.7 millimetre

18 machine-gun as well as a mortar or a grenade launcher at that point, 40

19 millimetre grenade launcher, I believe it was, but that is the only

20 awareness I had of any weapons that may have come from that area.

21 Q. I'm not talking about the facts and figures from our police, but I

22 spoke of information that they put forward, that the other side presented,

23 in fact, in the documents as to what had been distributed. So you say you

24 know nothing about that nor did you know anything about that at that time

25 nor did you learn of it later.

1 Now, do you know where the village of Rance is located?

2 A. No, I don't.

3 Q. It's right near Racak.

4 A. What did you call it again, Rance?

5 Q. Rance. All right, and do you know where the headquarters of that

6 so-called 161st Brigade of theirs was located?

7 A. No, I don't. This was outside of my area so I did not ever have

8 any meetings or any reason to go into Racak before that time.

9 Q. All right. But did you learn that it was from that place where

10 the headquarters was of the 161st Brigade, near Racak, was where a

11 counter-attack was launched and in the afternoon they took control of

12 Racak once again?

13 A. No, I did not learn of that.

14 Q. All right. But when you managed to collect together all these

15 elements that your verifiers had or, rather, the verifiers of this

16 Regional Centre which does not belong -- did not belong to you, wasn't

17 under you but as you said, for those three days, you were in charge of

18 them, did you receive this information on the trenches, the bunkers, the

19 number of soldiers, the presence -- their presence in Racak, et cetera?

20 When did you actually receive that information and those figures?

21 A. I didn't receive it, in fact. It must have gone up the other --

22 the other Regional Centre, because once the actual operation was over on

23 the 17th, once the presiding judge went in, I then left and went back to

24 my Regional Centre. I had my own area to command and to look after so I

25 didn't receive any other information after that point.

1 Q. Now, as you're a soldier and a professional and expert, and when

2 you bear in mind trenches, bunkers, machine-gun nests, et cetera, and the

3 information that they speak about - not our police but theirs - they

4 mention a figure of 1.400 soldiers in that area, do you consider that they

5 were figures that were negligible, negligible forces that did not in fact

6 jeopardise either the territory or the population or the police force or

7 the army or anybody else? Were they that negligible in the area?

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

9 negligible number.

10 Q. Now, if you bear in mind what we were discussing yesterday, that

11 in the bunkers they had soldiers who opened fire as soon as the police

12 force appeared, first as a warning, as a caution to the soldiers in Racak,

13 as they say, and then at the police itself, what in that case, in your

14 mind, in your opinion, would be a proportional application and use of

15 force if we're targeting bunkers, machine-gun nests, trenches and the

16 like?

17 A. These are, I guess, questions of speculation, and I -- you know,

18 I'm happy to answer them, Your Honour. I don't know what --

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

20 THE WITNESS: So the question is -- what is the question exactly?

21 If somebody's firing at the police and they want to go in and investigate

22 what kind of response they require? I mean, I -- what's your question

23 exactly?

24 MR. MILOSEVIC: [Interpretation]

25 Q. Well, without a doubt when the police entered Racak - this could

1 be seen on the tapes too - there was no attack. It entered Racak when

2 fire was opened on it.

3 A. Okay.

4 Q. So you have bunkers, you have machine-gun nests, you have

5 trenches. According to their statement only in the Racak unit you have

6 1.400 soldiers. In three villages, there is fighting going on around

7 about. You knew about that, didn't you? In Petrovo, Malopoljac and Racak

8 in fact, in those three villages --

9 JUDGE MAY: Pause there. This is another additional point that is

10 being made to the general.

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

12 roundabout?

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

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

15 suggesting it.

16 MR. MILOSEVIC: [Interpretation]

17 Q. And you knew nothing of the fighting going on in the three

18 villages, right?

19 A. No, I did not.

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

21 A. No.

22 Q. All right. Now, from the information that you knew about, were

23 you able to assess that as there was shooting being done against the

24 police, what would be a proportional use of force then, according to you?

25 JUDGE MAY: Can you answer that or not?

1 THE WITNESS: Well, if somebody is shooting at you, I guess your

2 proportional response is to fire back in proportion until the shooting

3 stops and then continue your advance and enter the village or secure the

4 area, I guess. If you're being fired on, I guess you fire back. That's

5 for sure. That's what a military person would do, yeah.

6 MR. MILOSEVIC: [Interpretation]

7 Q. General, you spoke about the fire of artillery and tanks, if I

8 understood you correctly yesterday; is that right?

9 A. That's correct, yes.

10 Q. And you also spoke about the people who were killed whom you saw.

11 Now, did a single person -- was a single of those persons who were killed

12 killed from the fire of artillery and tanks?

13 A. No. I would not -- from my observation, those that I saw, I don't

14 think any of them were killed by tanks or -- or artillery, no.

15 Q. So all of them died by light infantry weapons; is that right? And

16 anyway, those are the findings of the forensics -- forensic professionals

17 who examined this. There were no other causes of death, in fact, were

18 there?

19 A. From my observation, no.

20 Q. You wish to say something?

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

22 Q. Very well. And do you know that 13 individuals out of the 40 who

23 are listed as killed in Racak - and you spoke about this figure yesterday,

24 and those are the figures that have been recorded in all the forensic

25 reports - don't have their graves at the cemetery in Racak. Thirteen of

1 them, 13 out of the 40.

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

3 Q. Is it incontestable, therefore, that at the time, in the

4 afternoon, from 1600 hours onwards, let's say, on the 15th of January,

5 1999, that Racak was in the hands of the KLA?

6 A. It's certainly -- there -- we do not remember to see -- seeing any

7 presence. About 1600 or shortly thereafter, all the Serb authorities did

8 move back and left the village, and it's at that point that may verifiers

9 were in the village and actually brought out some of the wounded. I

10 believe at that time they also had contact with some - some, I would say a

11 few - like two or three KLA fighters in the village.

12 Q. All right. Now, is it clear, therefore, that in Racak there was

13 fighting going on on that particular day from the facts that your

14 verifiers observed, from what your verifiers were able to observe and from

15 their reports on the gunshots and shooting that was coming from the

16 different sides? Is it clear that there was fighting going on in Racak on

17 that day and that after 1600 hours, let's say 1700 hours, Racak once again

18 fell into the hands of the KLA?

19 A. As far as fighting, I don't know how much fighting was going on.

20 I see it more as there was very little fire being returned from Racak

21 towards the security forces. My verifiers did not see any large weapons

22 being used or fired at the Serb forces. And this is why, when I met with

23 the Serb brigade commander, I was wondering why his tanks -- and to me

24 again as a professional tank officer, I would never allow my troops to

25 fire into civilian houses when there's no fire being returned, the whole

1 idea being proportionality. If you're not being fired at with large

2 calibre weapons, then you don't return fire with large calibre weapons and

3 certainly not against houses where you realise or you know that there are

4 civilians occupying them.

5 So -- so my verifiers did not report any kind of heavy fighting.

6 It was -- there was only, from what they said, small-arms fire being

7 returned very sporadically from the village at that time towards the Serb

8 forces.

9 Q. Yes. But we're clear on the fact that this firing from the tanks

10 is something that can be challenged, because nobody was killed from

11 artillery fire. We observed that a moment ago. And you yourself spoke

12 about this yesterday and said that, according to your knowledge, there was

13 some artillery fire just around Racak, the outskirts, and not targeting

14 the houses themselves.

15 Now, can we assume --

16 JUDGE MAY: Let the witness deal with that.

17 THE WITNESS: Well, again, this question of what the outskirts are

18 and what it means and so on, what I can tell you is my verifiers reported

19 to me personally that they had observed personally tanks firing into a

20 house that was occupied - because they could see the smoke coming out of

21 the chimney - and that they subsequently went into -- up to that house and

22 of course no one was killed because they were all in the basement, hiding,

23 and they got them out of the house at that point. So these are the

24 reports that I received personally from my verifiers.

25 MR. MILOSEVIC: [Interpretation]

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

2 A. That one house.

3 Q. And who could have shot with a tank at that house when the army

4 did not take part in that operation?

5 A. Well, the army did take part in the operation because the tanks

6 were up on the hill, and my verifiers were with the tanks up there, trying

7 to get them to stop.

8 Q. The commander of the police forces told you, and you said this

9 yesterday, that it was a police operation. Is that right?

10 A. That's what he told me.

11 Q. And on the other hand, or, rather, from the opposite side we

12 heard, as Mr. Ryneveld explained, that a member of the army accused the

13 police, which is something you did not say. I didn't hear you say that.

14 I didn't hear you say that an army member accused the police. That was

15 his conclusion.

16 Now, did somebody from the army who talked to you accuse the

17 police for what had happened there?

18 A. The army --

19 Q. Or blame the police?

20 A. The army did say that the police had been involved in Racak. It

21 was obvious to them. They could see them as they were up on the hill

22 supporting, to my mind supporting the police. And in one of the -- at one

23 of the meetings on the 16th with Petrovic, the liaison officer from 243

24 Brigade, the lieutenant colonel, he did say that the MUP had done the

25 operation with support of the VJ with at least one tank and some Praga

1 vehicles.

2 Q. That is, how shall I put it, one clear explanation. The police

3 commander told you that it was a police operation. The liaison officer

4 from the army told you that it was a police operation or possibly with

5 some support from the army. So where -- or, rather, from your statement

6 and from what you observed, where can we deduce the conclusion deduced by

7 Mr. Ryneveld that the officer blamed the police for what had happened? He

8 just informed you about the fact that it was a police operation, and the

9 police in fact informed them -- informed you of that themselves.

10 A. I believe it's contained in one of the statements where I mention

11 to the police that the VJ were saying that the police actually carried out

12 the operation. I don't know if it was put in the way of a blame.

13 JUDGE MAY: Yes. It's our Exhibit 179. It is the minutes of the

14 meeting. Let the witness have it. He has it.

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

16 JUDGE MAY: It's the minutes of a meeting of the 16th of January

17 with the police. And on page 2, towards the bottom, the witness says to

18 the colonel of the MUP, "You were in charge of 100 policemen." "If it is

19 of your concern, yes," was the answer. And the other officer, the other

20 verifier, "But we just left the VJ, they put all the blame on the you.

21 Were they with you or not?" And the reply was, "We were not with the VJ."

22 THE WITNESS: Right. I see that, Your Honour. In fact, that was

23 Gil Gilbertson who was the deputy head of Regional Centre 5 who was with

24 me at that meeting.

25 MR. MILOSEVIC: [Interpretation]

1 Q. So it was no army officer that blamed the police. Is that correct

2 or not?

3 A. I don't know where Gil got this information that the VJ had blamed

4 the police. I don't, to my mind, remember the VJ saying, you know, "We

5 had nothing to do with it. It was strictly a police operation." The VJ

6 could not deny that they were there and that they were firing, because my

7 verifiers, as I say, were with them and had seen them fire into houses and

8 had gone to actually let the people out of the basement.

9 Q. Now, I'd like you to understand the point of my question, because

10 the point is not in the fact whether it was a police operation, because

11 that is what the commander of the police force said himself, so that is

12 not being challenged, but what is being challenged, how shall I put that,

13 is this ugly detail that is trying to be imposed by the other side, the

14 opposite side, that the soldier who talked to you accused and blamed the

15 police. Why should anybody accuse or blame the police for a legitimate

16 action on the part of the police force? This presents an ugly picture had

17 an officer done that. And I claim that it wasn't any officer who blamed

18 the police, and that's the point I wanted to clarify with you. So you

19 have no actual information about that. Is that correct or not?

20 A. That's correct.

21 Q. I'm happy to have clarified that point.

22 Now, in view of the fact that Walker had a meeting on the 16th

23 with the commander of the area and that you knew about the fighting in

24 Racak and about the people killed, as they say, the KLA soldiers killed in

25 Racak, because he goes on to enumerate all their names, their first and

1 last names, et cetera, and they knew -- you knew about the positions and

2 all that kind of thing, what do you think? Why did the mission hide those

3 facts and information? Was that a fabrication of an alibi for the later

4 steps that were taken against our country? Why were all these facts and

5 all this information hidden from the eyes of the world public?

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

7 Q. You explained that the information that reached you went to the

8 mission's headquarters and that it was the mission's headquarters that was

9 the sole -- that had the sole authority of giving out information. Was

10 that your explanation, if I understood you correctly?

11 A. Yes.

12 Q. And now I'm asking you for your opinion. What do you think?

13 Because you're not -- you weren't just there as the head of the Regional

14 Centre, you were a general, an important figure in the mission itself.

15 Now, do you now assess from this point in time, with all the passage of

16 time and all that we know in the meantime, why the command of the mission

17 concealed these fighting in Racak, the presence of these last forces, the

18 weapons, the machine-gun nests, the trenches, the bunkers, and all the

19 rest of it? Why did -- and the fighting, the combat.

20 JUDGE MAY: Mr. Milosevic, you put these questions, you see, which

21 is your case, and allege concealment and the like and conspiracy and all

22 this sort of thing. There is really no reason for it.

23 In any event, are we going to hear from Mr. Walker?

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

25 THE ACCUSED: [Interpretation] I'm not hearing the interpretation.

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1 Can I have the volume put up?

2 MR. RYNEVELD: It is hoped so. There is still something that I

3 understand is -- he is part of the Rule 70 proceedings, but I believe

4 Walker is coming. That is to the best of my knowledge at this point.

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

6 MR. RYNEVELD: I can't say that it's certain, but I believe there

7 is a very distinct likelihood.

8 JUDGE MAY: Because if he is coming, clearly the question should

9 be put to him and these suggestions. But if there's some doubt about it,

10 we will allow them to be put to this witness.

11 General, it's suggested that there was a concealment, a cover-up,

12 a conspiracy. Perhaps you could deal with it.

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

14 MR. RYNEVELD: If I may, my information is that we're trying to

15 get Walker here the week after next.

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

17 THE WITNESS: Right. Your Honour, certainly I can tell you about

18 my dealings with both sides. We never tried to conceal anything. Any

19 time -- any time I came in possession of any -- any misbehaviour, if you

20 wish, by the Albanian side, I was just as hard on them as I was on the

21 Serb side, and I believe that this -- this approach was one that was used

22 by the entire mission. Certainly I operated under that -- under that

23 premise that everyone there was impartial.

24 JUDGE ROBINSON: Before you continue, Mr. Milosevic.

25 Mr. Ryneveld, may I ask if we're going to hear from any of these

1 persons called verifiers? These are the people who were there and who saw

2 what was happening. The general wasn't there.

3 MR. RYNEVELD: No, Your Honour. I might say that the purpose of

4 calling the person in charge by way -- this is by way of summary. They

5 report to him. I appreciate that this is a form of hearsay, but it's the

6 kind of hearsay that is based on personal observations on a reporting

7 structure, information upon which this general is entitled to rely. Now,

8 if we call all the -- we have a very limited time period within which to

9 present this evidence.

10 JUDGE ROBINSON: But for my own part, I would find the evidence

11 far more credible if we heard from at least one verifier, and I, frankly,

12 would be prepared to urge the Chamber to make that kind of arrangement.

13 MR. RYNEVELD: We can certainly get verifiers here. That's not

14 the problem. But it encroaches on our already extremely tight schedule,

15 and it may have to be the subject for further time in order to accommodate

16 that, absolutely. But we will certainly look into that and see whether we

17 can -- now that the Court has expressed a decided interest in that

18 particular issue, we'll make every effort to have one or two verifiers

19 here. There are some that I know are available. It's just a matter of if

20 we call those witnesses, it leaves us less time to call other witnesses,

21 that's the problem.

22 JUDGE ROBINSON: As I said, for my own part, I think it's

23 absolutely important in light of the defence that is being run.

24 MR. RYNEVELD: We will certainly take Your Honour's comments into

25 consideration and do our utmost in order to bring those witnesses forward

1 as soon as possible.

2 JUDGE ROBINSON: Of course I'm not encouraging you to inundate us

3 with verifiers, but I think it would be helpful, if not vital, to hear

4 from at least one.

5 MR. RYNEVELD: Yes. We are planning to call at least one who is

6 actually on our witness list now.

7 JUDGE ROBINSON: Thanks. Thanks.

8 JUDGE MAY: General, can I understand this: What is being

9 suggested is that the mission as a whole, or at least the head of it,

10 produced false information as propaganda. It's suggested he had some

11 ulterior purpose for this and that the information which was put out about

12 Racak was misleading and simply amounted to propaganda.

13 Did the mission have an interest in putting forward propaganda or

14 in favouring one side above another?

15 THE WITNESS: Again, Your Honour, that's a very good question, and

16 I -- I can only tell you from my -- from my experience and my dealings

17 with the mission, both within my Regional Centre and with those times when

18 I replaced General DZ up at the main headquarters in Pristina that, in my

19 view, the mission did its job in a totally impartial manner and had no --

20 had no kind of didactique for one side or the other within the mission.

21 And I can tell you, in fact, a good example is in my Regional Centre I was

22 very worried about the Serb community which was in certain pockets within

23 the Prizren district surrounded by Albanians, by the Albanian population.

24 And I met with representatives of the Serb community on several occasions.

25 I went on Serb television, Belgrade TV and radio, to express some of those

1 concerns and to negotiate with the Serb -- the Serb responsible persons in

2 those areas to open up field offices of the OSCE, in particular in case

3 there was an agreement in Rambouillet so that we would have a field office

4 right in the middle of the Serb community to ensure that there would be no

5 backlash, which was obviously a possibility, against the Serb community.

6 So certainly in my -- in my heart, in my actions, and in my

7 approach, there was absolutely no partiality to one side or the other. I

8 did not condone any of the actions that were taken by either the Serb side

9 or the Albanian side in hurting the other community. To my mind, our

10 mission there was to try to preserve the status quo and ensure that the

11 behaviour of both sides would be in accordance with what I saw was the

12 international community's approach to human rights and to everything else,

13 to allow the political negotiations to go on and to find a final

14 solution.

15 So my sense is that there was no much partiality or hiding of

16 information or that kind of action from the mission.

17 JUDGE MAY: Yes, Mr. Milosevic.

18 MR. MILOSEVIC: [Interpretation]

19 Q. It is not disputed at all that the majority of the members of the

20 Verification Mission -- that the majority of the members of the

21 Verification Mission would say exactly what you just said. At any rate,

22 we saw statements of some of the members of the mission who regretted that

23 certain steps had been taken. What I'm referring to are simply the facts

24 that indicate that an alibi had been fabricated in Racak for further

25 steps.

1 Let us just look into three facts. First, is it well known and is

2 it completely undisputed that Walker had announced that a massacre of

3 innocent civilians had been committed in Racak? That's a fact, that's

4 right, isn't that so?

5 The second fact, is it clear --

6 JUDGE MAY: Let the witness deal with these things one by one. Do

7 you agree with that, General?

8 THE WITNESS: I heard that Ambassador Walker did make that

9 statement, yes.

10 MR. MILOSEVIC: [Interpretation]

11 Q. That a massacre of innocent civilians had been carried out -- had

12 been carried out in Racak. Isn't that right?

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

14 Q. The second fact: Is it contested that a number of KLA members had

15 been killed in Racak and a number of those people cannot be considered

16 civilians in any case. Is that challenged or not?

17 A. Well, I can only challenge it from the point of view of what I saw

18 on the ground. I did not see --

19 Q. I'm not now referring to what you said on the 15th. I presented

20 you yesterday your own report dated the 16th, which contains the minimum

21 that you already knew on the 16th, which means on the day when Walker

22 announced that there had been a massacre of innocent civilians, and that

23 report stated that there were eight soldiers of the KLA killed.

24 So on the day when the massacre of innocent civilians was

25 announced, your report said that eight members of the KLA had been killed.

1 You had monitors there from the very morning, and you know that there had

2 been fighting going on. So these two facts are not contested.

3 JUDGE MAY: Mr. Milosevic, you must let the witness answer. You

4 are cross-examining at the moment, not making -- not making speeches. Let

5 the witness answer.

6 No.

7 THE ACCUSED: [Interpretation] [Microphone not activated]

8 JUDGE MAY: Mr. Milosevic, I'm stopping you. I am stopping you

9 because you are making speeches. You were told not to yesterday. You

10 were told to ask questions. Now, you have a proposition which you have

11 put to the witness. He must be able to answer it.

12 General, what was put to you was that you knew or you reported on

13 the 16th that a number of soldiers of the KLA were killed. Do you agree

14 with that proposition?

15 THE WITNESS: I did -- I did report that in my report on the 16th;

16 correct. And what I said was that a number of KLA were killed. That was

17 in the assessment. And I put eight and with a question mark. And also --

18 but this was, as I say, was reported to me, and there is no doubt it was

19 reported in good faith so I take it as correct information. But what I

20 saw on the ground, I did not see any members of the KLA that had been

21 killed at that point.

22 JUDGE ROBINSON: The question mark, General, was to indicate that

23 the number could be lower or higher.

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

25 MR. MILOSEVIC: [Interpretation]

1 Q. So, therefore, we concluded that Walker reported that there had

2 been a massacre of innocent civilians. That was fact number one. And

3 then we also concluded that at the time when he made that statement, he

4 knew that members of the KLA had been killed. Therefore, isn't it clear

5 that he purposefully --

6 JUDGE MAY: No. I'm going to stop you. You are putting a

7 proposition to this witness about somebody else's state of mind. Now, you

8 could put that to Ambassador Walker. You could put it to him. But

9 putting it to this witness is a complete waste of time.

10 Now, you've put your argument. Now, have you got any other points

11 to put to him?

12 THE ACCUSED: [Interpretation] I certainly do. I took it that

13 General Maisonneuve was giving sincere answers that pertained to what he

14 had seen himself.

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

16 MR. MILOSEVIC: [Interpretation]

17 Q. In view of these two facts - one was Walker's statement and the

18 other one was the reality that you reported on - are you aware of the fact

19 that that reality had been concealed by the headquarters? I'm not going

20 to use the name Walker, that's not important now, but the reality had been

21 concealed and the only statement that was announced to the world was the

22 statement about the massacre of innocent civilians. Nothing leaked to the

23 international community about the killed KLA soldiers, that there had been

24 fighting. The only thing that they learned about was the innocent of the

25 mass -- the massacre of the innocent civilians. Are you aware of this?

1 A. I'm aware that Ambassador Walker did make a statement about

2 innocent civilians being killed in Racak, yes.

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

4 you regarding this.

5 In your statement, on page 10, paragraph 1, you refer to an event

6 that preceded Racak and that was the killing of a policeman. I presume

7 that you remember that event, that that is not contested.

8 In your statement, on page 11, you also state that on the main

9 road between Suva Reka and Stimlje, the KLA carefully selected that as a

10 place of provocation because they knew that the police patrolled that

11 area.

12 Did the police patrol that area because a route had been agreed

13 based on the agreement between the authorities of FRY and OSCE, this route

14 been agreed prior?

15 A. Yes, they did.

16 Q. Therefore, on the agreed route which had been agreed between the

17 authorities of FRY and OSCE, they, the KLA, because you said that the KLA

18 carefully selected that spot as a spot where they would kill a policeman,

19 and it was known that that was a spot agreed to be -- to be patrolled;

20 isn't that so?

21 A. The OSCE and the Serb authorities had agreed that that would be

22 the patrol route. The OSCE was not aware that the KLA were preparing an

23 ambush and had selected that area as an ambush area.

24 Q. I am not accusing OSCE about knowing that the KLA was going to

25 ambush the police. I'm not saying that. What I'm saying is that you

1 state yourself that they had carefully selected the spot on the very route

2 that had been agreed between the authorities of FRY and OSCE as the area

3 to be patrolled and committed a murder on that route.

4 A. That's correct. That's the way I saw it on -- on investigation.

5 I actually visited the area from where the ambush was launched, and it

6 seemed to me and to my verifiers that they had been preparing the ambush

7 for some days.

8 Q. When you contacted the representatives of the army, you were given

9 an explanation - and this is contained on page 7, paragraph 7 of your

10 statement - that none of the soldiers had contact with civilians. Isn't

11 that so?

12 A. You're back to Racak now?

13 Q. Yes. Yes. All I'm saying is that you were told that none of the

14 soldiers had contact with civilians. Did you determine this as well?

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

16 Q. So therefore, despite this statement of the police commander that

17 it was a pure police action, your assessment on the army participation is

18 based on the fact that one of the verifiers had informed you about this;

19 isn't that right?

20 A. Based on the fact that the VJ had been seen to be supporting the

21 attack by the MUP from the high ground around -- around Racak and the

22 villages close to it.

23 Q. Very well.

24 JUDGE MAY: And it should not be forgotten in this evidence that

25 when you spoke to Lieutenant Colonel Petrovic on the 16th of --

1 THE WITNESS: January.

2 JUDGE MAY: -- January, he told you Stimlje - which I take to be

3 Racak - was done by the MUP with Praga armoured vehicles and a tank, and

4 you told us that you took the tank to mean that there was VJ involvement.

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

6 tanks.

7 MR. MILOSEVIC: [Interpretation]

8 Q. That's not the point. I simply wanted to clarify the fact that

9 the army did not accuse the police of anything, because it was a

10 legitimate operation. And the Prosecutor wanted to distort the facts and

11 claim that the army had accused the police. But we have cleared this now.

12 Yesterday, you --

13 MR. RYNEVELD: With respect, Your Honour, I can't just stand idly

14 by. I'm not accusing or distorting any facts. The quote that I put to

15 the witness came from the document he prepared and that was referred to by

16 Your Honour about a quote about another individual saying to the MUP that

17 they're putting the blame on you. The words I used came from that

18 document. I'm not distorting anything.

19 JUDGE MAY: Mr. Ryneveld, you can take it that the accusations

20 levelled by the accused at the Prosecution and the allegations made about

21 them are not taken by the Trial Chamber as to be anything other than

22 allegations.

23 MR. RYNEVELD: Thank you, Your Honour.

24 JUDGE MAY: If there were serious queries about suggestions by the

25 Prosecution that it was manipulating the evidence or misrepresenting it,

1 then the Chamber would take it up with them. For the rest, these are mere

2 accusations by him.

3 MR. RYNEVELD: Thank you, Your Honour.

4 THE ACCUSED: [Interpretation] In that case, I'm suggesting to you,

5 Mr. May, to look into this, because the witness spoke about information he

6 had received and not about any accusations by police directed --

7 accusations by army directed at the police. The army informed that it was

8 a pure police operation, the police informed him of the same, and that's

9 all there is to it. And Mr. Ryneveld explained that the army had accused

10 the police, which is not true. So this is a manipulation, and I would

11 like you to look into that.

12 JUDGE MAY: Let us -- we have the evidence, Mr. Milosevic. We

13 have it before us. Now, let us move on.

14 THE ACCUSED: [Interpretation] Mr. Maisonneuve did not claim that

15 the army blamed the police. He simply said that they had given him

16 information.

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

18 MR. MILOSEVIC: [Interpretation]

19 Q. Mr. Maisonneuve, yesterday, you quite expertly explained the logic

20 behind the coordination and when it was needed; when there are operations

21 conducted in the field and when steps need to be taken to ensure that

22 nobody is killed by friendly fire. So this is the essence of what you

23 were saying. Isn't that right?

24 A. That's correct.

25 Q. Therefore, I am especially grateful to you for that explanation,

1 because up to now, here in various circumstances, any kind of coordination

2 between the army and police was treated as some kind of an illegal

3 conspiracy or some kind of a criminal misbehaviour. So I'm very pleased

4 that a person such as yourself, a military person, gave an explanation of

5 that nature.

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

7 A. No, I don't.

8 Q. Your colleague or your subordinate, I'm not quite sure what he is,

9 Mr. Ian Hendrie, who is coming here to testify, in his statement claims

10 that they were 1 metre -- 1.20 metres deep. Now, in few of that, I'm

11 asking you, and since you yourself stated that those who were killed had

12 been hit in the area of torso and head, and if the trenches were 1.2

13 metres deep, was it logical for them to have these type of injuries in the

14 area that you describe?

15 A. You -- I guess you were asking me if somebody is in a trench and

16 they're firing at someone coming -- I don't quite -- I don't understand

17 the question.

18 Q. Is it logical for somebody who is in the trench and who is killed,

19 is it logical for that person to be hit in the upper body, in torso and

20 head, and not in the legs? Because you said yourself that the majority of

21 them had injuries in their torsos and in their heads. Is it logical for

22 somebody who is in a 1.2 metre deep trench to have injuries in that area?

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

24 Q. I can see that you are giving an affirmative answer, you are doing

25 it with your head, but since we need an audible answer, this is why I

1 insisted on this.

2 Yesterday, you said that you were familiar with the information

3 that was subsequently determined by the so-called experts. Yesterday, you

4 said that the majority of people had been fired at from a short distance.

5 That's what you said yesterday. And I would like to ask you the following

6 now: Do you know that in according to the forensic experts, both

7 Yugoslav, Belorussian, and Finnish ones, that is not true, and that all of

8 the people except for one person who had been indeed hit from a short

9 range, all the others were hit from a long range, as they were moving?

10 Are you aware of that or did you become aware of this subsequently?

11 A. I'm not aware of that. I did not see the forensic report by the

12 Finnish team. All I was saying, and in fact it's with no -- no particular

13 training in that area, that it appeared to me that they had been hit from

14 close range when I saw the bodies from up close.

15 The other thing I, of course, take it from is my experience as a

16 military officer that it's very difficult to hit someone in the head from

17 a long distance. When we aim with a small arm weapon, we aim at the

18 centre of mass of what is available, what you can see. So it would be

19 very difficult. You would not aim at somebody's head when you're actually

20 shooting at a distance, you would aim at the body. There's a chance you

21 might hit the head, obviously, but would you aim at the centre of mass of

22 what is visible of the target.

23 Q. Yes, I understand that, but you as a soldier probably have in mind

24 that not only one bullet is fired to ensure that you would hit the target

25 but, rather, that a large number of bullets is fired in order to hit the

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1 target. If every bullet hit the target, then there wouldn't be any living

2 people on this planet. You know this better than I do.

3 Yesterday, you said that that person had a hat, a cap on his head

4 and you know -- and the person had been hit in the head. You know that

5 these Albanian caps are quite small and they resemble an eggshell, so do

6 you believe that a person can be hit in the head without the cap falling

7 off their head? And it's not a military cap, it's a very small cap

8 resembling the eggshell.

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

10 Q. [In English] Highly unlikely?

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

12 Q. [In English] Yes.

13 JUDGE KWON: Just a minute, Mr. Milosevic.

14 General Maisonneuve, it's about your speculation that the victims

15 were shot at close range. Is that based upon the fact that they were hit

16 on the head, not -- it's nothing to do with the -- I'm sorry.

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

18 wound?

19 JUDGE KWON: Yes.

20 THE WITNESS: I don't have any training in that regard so I could

21 not tell you how it looks when it's a long distance or a short distance

22 away. What I could tell you --

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

24 THE WITNESS: I could not, but I could see that some of them came

25 in the back and others in the front, and it seemed to me that to be hit

1 from a long distance and have this kind of a wound would be very

2 difficult, so my observation was that it was very close, from very close

3 range.

4 JUDGE KWON: Thank you.

5 MR. MILOSEVIC: [Interpretation]

6 Q. General, you said that based on your observation - and I wrote

7 down this word of yours, "your observation" - the people who were killed

8 were not members of the KLA. Was that observation of yours based on the

9 fact that they did not have uniforms?

10 A. Based on the fact that they did not have uniforms; their age also.

11 All the -- the majority of the KLA members that I had dealt with and seen

12 as fighters were of younger, much younger age. These were a number of

13 more older gentlemen. They looked -- they looked like they were farmers,

14 to me, and did not look like members of the KLA.

15 Q. You said that in the gully, in the valley, there were some 20 of

16 them and they were lined in one line. Now, here's my question: Bearing

17 in mind what you said, that they were lined, and if we link this to this

18 other fact that the KLA had the place under its control from the 15th of

19 January, let's say after 1600 or 1700 hours, until the time you came, when

20 Walker came and saw that, does this speak in favour of the fact that

21 somebody had brought those bodies there and lined them up there, or could

22 somebody have brought these bodies from the afternoon of one day and

23 before the morning of the following day? Is there anything to speak in

24 favour of that?

25 A. There probably are a number of -- a number of options that could

1 have happened in this case. When I saw the bodies, they were disposed in

2 a bit of a line. There were a number that were spaced out at the -- at

3 the bottom of the ravine, and then a little further up there were about,

4 I'd say eight, maybe five, eight, ten bodies that were kind of together

5 in a little bit more of a group. It almost seemed as if they had been

6 walking up the trail, but again that's got to be probably from the

7 photographs and from the actual forensic investigation. In fact, Mr.

8 Hendrie, who was one of the human rights verifiers who had a look

9 specifically at the bodies would be best able to tell you. But it looked

10 to me like they were -- they may have been marching up. I guess there are

11 perhaps other possibilities there, but I did not speculate on how they had

12 gotten there, certainly. But it seemed to me that's the first thing I

13 thought of, is that it looked like they had been marching up.

14 Q. Yes. And did you happen to think and did you ask yourself how

15 come there were no casings around anywhere, bullet casings?

16 A. No, I did not.

17 Q. You said yesterday yourself that you cannot give an opinion as to

18 whether the bodies had been brought into the ravine or not; is that right?

19 A. Yes.

20 Q. Yes. I understood you to say the affirmative. Now, General, here

21 we have seen some photographs of those bodies on which we can see some

22 bodies with their arms in the air, raised up in the air, in positions that

23 they could not have been had they been killed on that spot rather than

24 being brought in from some other place, because it is impossible for a

25 dead person to keep his hands held up in the air and be in that particular

1 position, et cetera.

2 Now, did you notice these - how shall I put it? - these signs,

3 these indications of the fact that the bodies had in fact been brought in

4 and lined up there, aligned there after death?

5 A. No, I didn't -- I didn't notice that any of their arms or limbs

6 were up in the air. I must say I guess I didn't -- wasn't really paying

7 attention to that at the time.

8 Q. Just tell me this: At what time did they discover the bodies in

9 the ravine, your verifiers? What time was it when they discovered the

10 bodies?

11 A. I believe it was in the morning. I probably would say before --

12 before 10.00 on the morning of the 16th.

13 Q. You say around 10.00.

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

15 Q. Very well. So before 10.00. That means from sometime around, let

16 us say, 1700 hours on the 15th and then at least until 9.00 in the morning

17 of the 16th, and they could have exclusively -- it was only the KLA that

18 could have manipulated this exclusively. There were no verifiers there,

19 there were no police and no army there; is that right? Or did some of the

20 verifiers perhaps spend the night there, stay and spend the night there?

21 A. I believe that -- that there was no -- that there were no

22 verifiers in that area on the evening of the 15th, that I know of.

23 Q. All right. Thank you very much. I have to shorten my

24 questioning. Now, you mentioned yesterday that some howitzers were

25 directed towards the village. Did you just say that they were directed

1 towards the village or did you say that they opened fire on the village?

2 A. My understanding is that they were pointed -- mortars and

3 howitzers were pointed towards the village. One of my verifiers did

4 report that at one point.

5 Q. Yesterday, you said -- you put it this way: That the men were

6 taken off but that the verifiers didn't tell you that. Who told you that?

7 Who told you that the males had been taken away?

8 A. This is a report I became aware of later. I did not get that

9 report on the day of, and it was reported, I believe it must have been by

10 the other Regional Centre up to -- up to Pristina, but I subsequently read

11 they had been told, and I believe it was the locals who mentioned that to

12 the verifiers, that the men had been segregated from the women and taken

13 away.

14 Q. Yesterday you spoke about the attempt on the part of the

15 investigating judge, Mrs. Marinkovic, to carry out an on-site

16 investigation. That was when Judge Kwon asked you a question about

17 sovereignty, that is to say, whether a judge, in his or her own country

18 and in conformity with the law, is carrying out an investigation, you know

19 that in conformity with the law governing investigating judges, that the

20 spot and position is secured by the police. And you said that it was --

21 that from the KLA, they reported too late that there would be no problems

22 and that that is when an independent investigation took place, although

23 this is the right that an investigating judge has.

24 Now, is there anything that you reproach the investigating judge

25 for in that regard? I didn't quite get the point of your -- of Mr.

1 Ryneveld's questioning and examination. Is there anything that you

2 reproached the investigating judge, Mrs. Marinkovic, for in that regard?

3 A. The only thing I guess I could say is that, in my view, in light

4 of what had happened in Racak and the very high tension that was reigning

5 at that time with all the dead bodies that we had found and with the

6 fighting that had gone on, the house-to-house searches by the Serb

7 authorities and the deaths of some of the locals, that this was not a good

8 time perhaps to be very -- to have a very overt and large Serb presence go

9 in the village. And I guess if -- we were trying to -- to lower tensions

10 and to ensure that there would be no further fighting, and so I think the

11 approach of OSCE, General DZ, and myself and everyone were hoping that the

12 investigation would take place but perhaps with a less overt police

13 presence. When she decided to go in, it was accompanied by a whole

14 company of police, probably a hundred, with armoured vehicles and were

15 leaving from the road heading towards Racak and it was, to our mind,

16 certainly much too large a presence to go in with.

17 I don't think anyone would disagree with the need for the

18 investigation to go on and for her right to go in to investigate, but I

19 believe that the approach of the OSCE was to try and convince her to go in

20 under OSCE escort, perhaps with some personal protection, but not with an

21 entire company of MUP at that time. It was just -- the tensions were just

22 too high and there was the danger of -- of fighting breaking out.

23 Q. All right. You are aware that during that investigation that the

24 KLA targeted with mortars the investigating judge and her team and that

25 some were even killed there on that occasion. Isn't that right?

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

2 OSCE --

3 Q. So what we have is an investigating judge going out to perform her

4 duty and carry out an investigation. They're not doing this for their own

5 pleasure, to go to a village under such conditions and to carry out an

6 on-site investigation. She was going out to her duty, to conduct the

7 investigation, terrorists targeted them with mortars and the conclusion is

8 that it is the investigating judge to be blamed for doing this to the --

9 provoking the terrorists; is that right?

10 A. Well, it's undoubted -- it's -- certainly in my own mind, having a

11 complete company of MUP going into a village that has just been, you know,

12 the day before house-to-house searches and 45 people are killed, I think

13 that is provoking, but that is my personal opinion.

14 Q. Well, all right, but do you consider that the authorities, the

15 legal authorities of a country should ask permission from terrorists

16 whether or not they can do their duty or not?

17 A. I would say obviously not.

18 Q. Where's the problem then?

19 A. Well, I explained to you, Mr. Milosevic, that my view of things is

20 that - and certainly I believe the OSCE's view at that point - was that

21 there was no problem with the investigating judge going in to do the

22 investigation but we were trying to lower tensions, and having a complete

23 company of MUP accompany her was not the approach to take. If she had

24 been accompanied by the KVM - General DZ himself was prepared to accompany

25 her - and perhaps some personal protection would have been sufficient and

1 kept tensions down to a minimum, and it would not have been seen as

2 another assault on the village which had just been assaulted with 45

3 people being killed the day before.

4 JUDGE KWON: General, could you clarify the meaning of "minimum"?

5 Was it agreed at that time that she is accompanied by some members of the

6 MUP? Not the whole company.

7 THE WITNESS: As I said, Your Honour, we would have had no problem

8 with her being accompanied by a small group perhaps of personal

9 protection, perhaps a section of five or something like that at that point

10 would have been -- but you see, the approach that was taken was that the

11 -- the MUP company lined up as if they were doing another assault and a

12 clearance through the village, as opposed to the way we saw it where she

13 could have gone in a vehicle accompanied by a couple of members of the

14 OSCE, General DZ himself, and she could have gone with a small party and

15 driven into the -- into the village. There's no doubt that that would

16 have kept tensions, to our mind, a lot lower than having the entire

17 company walk through the village.

18 JUDGE KWON: Wasn't the condition at that time that there should

19 be no MUP officer at the time?

20 THE WITNESS: I don't know exactly what General DZ was trying to

21 negotiate with her, but I'm telling you the way I would certainly have

22 seen things. To have an entire company of MUP there was very provocative,

23 that tensions were running -- as you can just imagine. The local

24 population was up in arms. Well, up in arms is not a good term to use,

25 but was very, very nervous, very worried, very angry. So this was the

1 time to really try to lower tensions to the maximum. That was our

2 concern.

3 JUDGE KWON: Thank you.

4 MR. MILOSEVIC: [Interpretation]

5 Q. In order to save time, General, I'm not going to ask any of the

6 questions that I have -- that I asked General Drewienkiewicz or to play

7 tapes and other things. We haven't got time really. But let me ask you

8 one more question in connection with Racak. You personally, and I'm

9 asking you personally now: Do you personally, after everything, after all

10 the information that you have about the events in Racak, so all the

11 information, the overall comprehensive information about Racak, can you

12 say that in Racak a massacre was performed over civilians?

13 JUDGE MAY: That is not for the witness to answer. His personal

14 beliefs are irrelevant. It's his -- it's his evidence which counts, and

15 that is the matter which we are going to have to determine.

16 Now, move on to another topic.

17 THE ACCUSED: [Interpretation] Why shouldn't he be allowed to

18 answer? If he doesn't wish to answer, he can say that. The witness can

19 say he doesn't wish to.

20 JUDGE MAY: No. He is not to answer the question. It's not a

21 matter for him, it is a matter which the Trial Chamber are going to have

22 to determine.

23 THE ACCUSED: [Interpretation] But he'll be honest and he'll tell

24 the truth.

25 JUDGE MAY: It doesn't matter what his belief is now. It's

1 something which the Trial Chamber is going to have to determine on the

2 evidence as to what happened. Now, move on to something else.

3 THE ACCUSED: [Interpretation] Ah, well, Mr. May, it's quite clear

4 to me, and I hope the public too.

5 JUDGE MAY: Just move on.

6 MR. MILOSEVIC: [Interpretation]

7 Q. We have very little time left, so I'm going to ask you very

8 briefly about the other things that I wanted to ask.

9 In your statement on page 9, you mention the incident in Rogovo

10 and say that you were -- that you toured the crime spot. Which crime spot

11 did you tour? What crime happened in Rogovo?

12 A. Well, in Rogovo, a group of probably 25 Albanians were killed in a

13 farmhouse, in the area surrounding a farmhouse in Rogovo. In fact, the

14 dates and so on are in the evidence.

15 Q. I must save time so let me just ask you this: Do you know that in

16 the monthly report of the OSCE of the 20th of February, 1999, for the

17 period from mid-January to mid-February 1995 [as interpreted], it states

18 that one of the commanders of the KLA sector in Pec recognised and stated

19 that 18

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

21 A. I'm not aware of his -- his assessment. I can tell you that our

22 assessment and our information from the KLA commander that I dealt with

23 was about the same, that the vast majority were members of the KLA that

24 had been killed at that time. And that's the way we reported it as well.

25 Q. And do you know that at the time, because you were there on that

1 29th of January, 1999, at 6.30 in Rogovo, at a police patrol, an attack

2 was launched and, on the occasion, policeman Predrag Rakovic was killed?

3 He was born in 1976. So that's how Rogovo started, with the killing of a

4 policeman and attack on the patrol. Is that a crime? Is that the crime

5 that you make mention of or do you consider the crime to be the response

6 of the policemen to the killing of that police officer?

7 A. Well, I see any killing as a crime, first of all, and I received

8 the information from the brigade commander from Prizren who actually

9 described to me how he had seen and had taken part in the Rogovo action.

10 In fact, in his view, it had been an infiltration by members of the KLA

11 and others who -- who he had followed right from the border into Rogovo

12 and then had -- had taken action and killed them.

13 Q. Without a doubt, Rogovo and that particular house was the place

14 where they gathered together and from which they launched operations.

15 They killed the policeman from that house. That's where they started out

16 from. Now, did you notice on the list of persons killed - because I'm

17 sure you received a report to that effect - that half of them were not

18 from that area at all, from the region at all, and that it was a unit and

19 not villagers living there, not the locals? And you yourself have just

20 confirmed that your information confirmed those facts, that most of these

21 people were members of the KLA; is that right?

22 A. Right. My information confirmed that most of the people were from

23 the KLA. I was not aware that they were from another region. There is no

24 doubt in my mind, though, that the action by the Serb authorities there

25 again, some of the questions I asked myself were why were there no

1 prisoners taken? Why were they all killed? Did they all fight? You

2 know, these are some of the questions that I was asking when I came on the

3 scene.

4 Q. Yes. But I'm interested in this: As it is quite clear from what

5 you're saying now that you too know that this was another clash between

6 the police and a group of KLA members, why then are you calling this a

7 crime? Isn't it not a legitimate clash by -- between a legitimate police

8 force with a band of terrorists in one particular place? Why should that

9 be a crime? How can you call that a crime?

10 A. Did I call it a crime?

11 Q. Well, you say here -- and I'm happy to see that you're wondering

12 whether you said it or not, because in your statement, on page 9, you

13 mention the incident in Rogovo, and you say that you toured the crime

14 scene, and I'm very happy that you're asking yourself that now and

15 relativising it in one way, rendering it more relative in a way.

16 JUDGE KWON: According to the English version, he only said, "I

17 visited the scene," not "the crime scene." Could it be clarified?

18 THE WITNESS: I think we're playing on words here. The point

19 being that I definitely toured the scene on that day and I explained to

20 you some of the questions that I was asking myself. I saw where the

21 bodies were. Well, when I arrived, the Serb authorities had already

22 started to clean up the scene and had lined up the bodies, but there were

23 some in some areas that I wondered why they had been -- they had been

24 killed. But again, this is not for me to determine whether this was a

25 crime or not. What I can tell you is what I saw. For example, one person

1 inside a bathroom being shot, to me, I just wondered why that person was

2 not taken prisoner. There's no doubt that some of the members, or most of

3 the members were members of the KLA. This was acknowledged by the

4 Commander Drini that I dealt with within my area.

5 MR. MILOSEVIC: [Interpretation]

6 Q. All right. So that is not being challenged. Now, is it correct

7 that the representatives of the Commission for Cooperation with the OSCE,

8 that is to say the Yugoslav Commission for Cooperation with the OSCE,

9 which in Pristina was led by General Loncar, is it true that they agreed

10 that there should be a joint investigation into this affair?

11 A. That's possible. I know that General Loncar was on the ground at

12 the time, as I was, and General Drewienkiewicz was as well.

13 Q. I'm going to give here the transcript of a conversation given by

14 General -- I think it was General Drewienkiewicz that supplied it, but at

15 any rate, the other side has it under 03045420. It is the conversation

16 between General Loncar and General Drewienkiewicz, and towards the end of

17 that cooperation there is a marker sign here and it says General DZ, who

18 says, "I can confirm that you agree to a joint investigation." General

19 Loncar says, "Yes, of course."

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

21 MR. MILOSEVIC: [Interpretation]

22 Q. That is your tape of the conversation, and I think that General

23 Drewienkiewicz supplied it, or perhaps the opposite side included it on

24 its side for reasons that are not understandable to me, but this is not

25 something that is challenged.

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1 Now, is it true that the KLA, or, rather, their commanders,

2 because you had regular meetings with them, held the position that if an

3 agreement was signed in Rambouillet, that guerilla actions would be

4 launched and that there was public readiness on the part KLA to continue

5 the fighting? Is that true?

6 A. I'm not aware of that.

7 Q. Then I have to inform you that in a document supplied by the

8 opposite side, it was disclosed under the title of questions that emerge

9 from the meeting with the liaison officers of the KLA on the 10th of

10 March, that particular document, it is 03045428, in which this is stated,

11 what I just read out.

12 JUDGE MAY: The witness has said he's not aware of it. So what's

13 the point of going on? Now, ask him something else.

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

15 JUDGE MAY: He says he wasn't aware of it. So there's no point

16 going on arguing about it.

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

18 all.

19 MR. MILOSEVIC: [Interpretation]

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

21 you?

22 JUDGE MAY: No. Get on with it.

23 MR. MILOSEVIC: [Interpretation]

24 Q. Please. This is your document --

25 JUDGE MAY: Mr. Milosevic, there is no point going on putting to

1 the witness something which he is not aware of. You've been told this a

2 number of times during your examination of witnesses. You can produce it

3 in due course, but it's no good wasting time by going on with it with the

4 witness.

5 THE ACCUSED: [Interpretation] So you do not accept to introduce

6 this as an exhibit, Mr. May?

7 JUDGE MAY: No, I don't, because he's not aware of it, he knows

8 nothing about it.

9 THE ACCUSED: [Interpretation] Perhaps he would remember if I were

10 to read it out. He's a general, he read all the reports, his memory might

11 be refreshed if I read it out to him.

12 JUDGE MAY: Let him see the document. There's no point reading it

13 out, he can't follow it. Let him see the document.

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

15 THE ACCUSED: [Interpretation] All right. Let's not waste time

16 because my time is trickling out.

17 MR. RYNEVELD: [Previous translation continues]... which were

18 filed with General Drewienkiewicz, we're going through that binder because

19 we don't have an exhibit number.

20 JUDGE MAY: All right. It's been translated. We'll look at this.

21 Continue with the cross-examination and you can return to this after the

22 witness has finished.

23 MR. MILOSEVIC: [Interpretation]

24 Q. All right. Anyway, you indicate, in paragraph 2 on page 3 of your

25 statement, that you talked at a meeting about the withdrawal of MUP in

1 Podujevo and the MUP, after that meeting, did in fact withdraw; is that

2 correct?

3 A. Yes.

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

5 A. Yes.

6 Q. You presented here a document under the title of "The History of

7 Kosovo." Now, what is the importance of that document? And you state

8 that the document does not express your own opinion but that it should be

9 treated as confidential. Now why do you have this type of attitude

10 towards that document? I'm not clear on that point.

11 A. This is a document that was produced -- I believe you're referring

12 to the one produced by David Wilson, who was one of my verifiers, who

13 produced that. It was his own opinion and I was not using it -- I used it

14 without his permission, essentially, but I thought it was a document that

15 -- that was a good representation of -- of his -- of his opinion and

16 certainly of the opinion of many people who were serving in Kosovo at the

17 time.

18 Q. In the Canadian Military Journal, you published, among other

19 things, the fact that the KLA, the Albanians, used violent means in order

20 to achieve their political goals, that they resorted to violent means.

21 Now, does this reflect your opinion that they did not use terrorism or

22 that they did use terrorism? Which? What you call the use of violent

23 means in order to achieve political goals, that term.

24 A. Unfortunately, both sides were using violent means to achieve

25 their goals at the time, and I did not condone any side using violent

1 means to achieve gains in Kosovo.

2 Q. Mr. Maisonneuve, how can you speak about two sides, both sides, if

3 on the one side you have the legitimate authority and power of a sovereign

4 state and on the other side you have terrorists, and when you have 50

5 years or 100 years back in history, some sporadic terrorist act and then

6 an explosion in 1998 and reactions on the part of these legitimate organs

7 to that terrorism in 1998, how can you speak of two sides?

8 A. Well, there's no doubt in my mind that in the case of the time

9 when I was in Kosovo, there were two sides: There was the Albanian side

10 and there was the authority's side. Both sides were using violent means.

11 One side was disproportionally more violent than the other side but,

12 nevertheless, the other side was also violent.

13 Now, I don't know if you can attribute a weight factor to

14 violence. I can't, just like I can't attribute a weight to dead bodies.

15 Whether you tell me it's a thousand or 45, to me they're just dead bodies

16 and they're dead people, and so I would not condone violence by either

17 side the entire time I was there, and I still don't.

18 Q. And do you assume that it is the duty of a state and its organs to

19 protect themselves from terrorism?

20 A. Absolutely.

21 Q. Do you believe that it is the duty of the state and its state

22 organs to protect the territorial integrity of the country if that

23 terrorism has as its political goal separatism?

24 A. Protection is the correct term, yes.

25 Q. Now, if this is used in order to achieve these and such political

1 goals, that is to say secession, the killing of official representatives

2 and so on and so forth, that the state must resort to force or not? If

3 violence is being used in order to achieve those goals.

4 A. These are -- you know, these are kind of hypothetical questions.

5 I can tell you there's no doubt that if violence is being perpetrated by

6 -- by elements, that a state has a right to protect itself and to defend

7 itself. I don't know --

8 JUDGE MAY: Yes. General, I think you could probably take it no

9 further than that.

10 Mr. Milosevic, those are the very questions which this Trial

11 Chamber will have to resolve in due course and not matters for a witness.

12 And your time is now up. You've had your hour and a half.

13 THE ACCUSED: [Interpretation] One more question. Can I ask him

14 one more question, at least, please?

15 JUDGE MAY: Yes, one more question.

16 MR. MILOSEVIC: [Interpretation]

17 Q. You spoke about the conduct of the police, generally speaking, at

18 the checkpoints, and you said that it was proper and moderate while you

19 were present, when you were present; is that right?

20 A. That's what I said.

21 Q. When I say "you," I don't mean you personally, I mean your

22 verifiers. I think we understand each other, don't we? How, then, did

23 you know that the conduct was not moderate and proper when you weren't

24 there if you weren't there? How were you able to determine that?

25 A. Because we received information from the locals who had been

1 stopped and who provided us with evidence at times, you know, some of the

2 members of the local population being beaten and would show -- show us

3 that they had been beaten, and we -- we at times also stayed away from the

4 direct scene but stayed behind or far enough away to be able to observe

5 and then saw the actions of the police from that distance.

6 So there were instances where we weren't there directly on the

7 side, but we did observe the police being very brutal and arrogant.

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

9 end.

10 Now, are there some questions from the amicus?

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

12 JUDGE MAY: Very well. After the adjournment.

13 MR. RYNEVELD: In complete fairness, perhaps during the

14 adjournment, we believe we have located the English translation of the

15 document to which Mr. Milosevic referred. This is Exhibit 94, tab 54.

16 Unfortunately, that's as close as we can come. We believe that's the one.

17 JUDGE MAY: Well, if -- Mr. Milosevic, if you would hand over the

18 Serbian version, we'll ensure that that is the document. Otherwise, we'll

19 have it exhibited.

20 THE ACCUSED: [Interpretation] Here you are.

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

22 adjournment.

23 After the adjournment, we'll come back, we'll finish this

24 witness's evidence, examination and re-examination, and then I take it

25 we'll have Drita Emini back?

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

2 JUDGE MAY: We will then deal with Mr. Kelly and our ruling in

3 relation to his evidence.

4 THE ACCUSED: [In English] After Drita Emini, Avdiu Bilall

5 [Interpretation] according to my list.

6 JUDGE MAY: No, Mr. Milosevic, we're going to deal next with Mr.

7 Kelly because we haven't yet finished him.

8 But let's adjourn now. Twenty minutes.

9 --- Recess taken at 10.35 a.m.

10 --- On resuming at 10.58 a.m.

11 JUDGE MAY: Yes, Mr. Tapuskovic.

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

13 Questioned by Mr. Tapuskovic:

14 Q. [Interpretation] General, yesterday you said that there was a

15 strong presence of the KLA in the region under your control and also in

16 other areas in Kosovo. My question is as follows: Did you, as the

17 Verification Mission, have some kind of an assessment of how many members

18 of the KLA there were in the entire area of Kosovo?

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

20 Pristina.

21 Q. Well, do you know that figure?

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

23 Q. Thank you. You also said that on the 15th, in the afternoon, at

24 1630, you were in Racak and that you saw several wounded people. Were

25 they members of the KLA?

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

2 Q. Thank you. The following day, you were there once again in the

3 morning; isn't that right?

4 A. I was.

5 Q. As you approached Racak that morning, did you meet any members of

6 the KLA? Did they have their checkpoints on the access routes to Racak?

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

8 Q. And what about within the village itself? How many members of the

9 KLA did you see?

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

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

12 that right?

13 A. No. On that morning, I saw many more than that. I actually did

14 see the -- I went to the ravine and saw the ravine. You're talking about

15 the 16th right now?

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

17 Were you in the ravine in the morning?

18 A. Yes, I was. Before Mr. Walker came, I actually had gone to the

19 ravine to see -- to see the bodies up there, yes.

20 Q. And what time was it?

21 A. It would have been after -- after I held my two meetings with the

22 police and with the VJ brigade liaison officer. So it must have been

23 after 11.30. I don't know exactly what time it was, but ...

24 Q. Well, this is why I'm asking you, because the first meeting with

25 Petrovic commenced at -- I'm sorry. At 10.37, you had a meeting with

1 Petrovic. At 11.14, you had a meeting with Janicijevic. And if you were

2 in Racak after 11.00 and saw what you say you saw, how could you at 10.37

3 report what you say here? I'm going to read this to you. You said here:

4 "We saw atrocities in Racak. We believe that the army of Yugoslavia and

5 MUP are responsible for this. The army carried this out. Over 50

6 people were killed. They were not combatants."

7 That means that during the meeting at 10.30, you said what you say

8 here, and you were at the scene after 11.00. And then you also go ahead

9 and say that the Tribunal for international war crimes should look into

10 this. So how do you explain this?

11 A. Well, you see, as I was -- as I mentioned, as I was travelling on

12 the road from Prizren to -- to Racak on the morning of the 16th, I was

13 receiving reports of my verifiers who were in the village doing the

14 investigation and finding the bodies, and as I mentioned, as I was going

15 -- arriving, I was hearing reports of, you know, 25 -- you know, the body

16 count was going up and up. When I actually went into Racak, I did not

17 have time at that point to go to the ravine before I had the meeting

18 scheduled, so I only personally looked at a couple of bodies at that

19 point. But of course I was speaking to my verifiers who had been to the

20 ravine and had reported to me that there were a number of bodies.

21 We hadn't got an exact number by then, but we thought it might be

22 as high as 50, because of course when you're finding numbers, you don't

23 know, there might be some double counting and so on. So when I actually

24 met with the brigade liaison officer, I used the number 50.

25 We also had seen, of course, the firing into the houses the day

1 before, so that's the basis in which we said we had witnessed the VJ and

2 MUP being involved in the operation.

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

4 When did you learn the exact number of them?

5 A. I don't know whether I even learned it during that day. As I say,

6 it's always difficult to figure out which bodies are which and so on. We

7 know there were approximately between 40 and 50 bodies on the day, and of

8 course midday the 16th, or just after midday, Ambassador Walker and a

9 whole team of investigators from Pristina arrived to do the specific body

10 count and investigation of numbers specifically, and so that's when, of

11 course, the numbers came out.

12 Q. However, at 10.37, you said something which in a way represented

13 your definitive assessment concerning what had happened there, and you

14 even gave a qualification. You qualified it as a war crime and

15 atrocities, that these people were not combatants and, at that time, you

16 still didn't have all this information.

17 A. Oh, I didn't have all the information, but I could tell you that

18 my verifiers had seen that they were not combatants by our assessment.

19 And I must tell you that on the basis of information, that is what you do

20 when you're in the heat of the moment, you certainly meet and have to

21 speak to these people on that basis. So that's what I did. And I'm sure

22 you would have done the same.

23 Q. Well, I would just like to ask one more thing. You can give us

24 information who these verifiers were who saw this prior to Walker and you

25 and prior to anybody else. Can you give us a name? Who told you this?

1 A. I have some names. Rufus Dawkins, who was one of my verifiers,

2 and the people within his team. He was the -- pardon me?

3 Q. Is he Albanian?

4 A. No. Rufus Dawkins, he's an American, actually. I've provided his

5 name already to the Court.

6 Q. All right. I'll conclude with this topic. I think this was

7 sufficient for our purposes.

8 Did you try, that morning, and since you already talked to the

9 members -- to the representatives of the official authorities, but did you

10 also talk to the representatives of the KLA on the 15th in the afternoon

11 and the 16th in the morning? Did you get any information from them?

12 A. I personally did not. I was -- I was trying to meet, actually,

13 with my KLA equivalent, the person that I dealt with all the time, Drini,

14 and I requested a meeting, and I never ended up meeting him until the

15 17th, but my verifiers in the village were speaking to the KLA members

16 there.

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

18 police?

19 A. Prior? No, after. Because I met the representative of the army

20 and the police on the 16th. And on the 17th, I met with Drini. And the

21 meeting reports are in the evidence.

22 Q. Did you try at all to get permission from the representatives of

23 the KLA to see what victims they had, what people were killed on their

24 side, to at least establish whether they were wearing civilian or military

25 clothes?

1 A. No, I did not.

2 Q. I'm also interested in the following: There was no on-site

3 investigation carried out, was it, where there were numerous victims up in

4 the hills? There was no on-site investigation there, was it? The way it

5 is normally done in accordance with the rules of police investigation and

6 so on.

7 A. Well, the only investigation of which I am aware is the one that

8 was carried out by Pristina and the headquarters, Ian Hendrie as one of

9 the investigators. And there were a number of people crawling all over

10 the site on the 16th and I believe on the 17th as well. And, of course,

11 there was also the investigation by the presiding judge accompanied by

12 that company of MUP. Presumably it was a proper investigation.

13 Q. I'm interested in the on-site investigation on the site where

14 numerous bodies were found. Do you know whether that particular spot was

15 investigated?

16 A. Well, this is what I mean. You're talking about spot in the gully

17 where the bodies were? Is that the spot that you're talking about? Well,

18 in fact, yes, as I said, on the 16th the place was crawling with

19 investigators, and Mr. Hendrie is going to be reporting to you here, I

20 believe, on that investigation.

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

22 A. No, I don't.

23 Q. Did the KLA have any interest in preventing access to those bodies

24 and preventing information from being brought into the open about them?

25 Did they have an interest in that?

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

2 Q. And the final topic, General, has to do with Mr. Kelly's report

3 and some facts that are contained there. It is being said there that --

4 JUDGE MAY: Just a moment. Mr. Tapuskovic, before you go into

5 that report, we are going to rule on that in a moment. It may well be

6 that we shall be excluding it, so I don't think it would be right to ask

7 any questions about it.

8 MR. TAPUSKOVIC: [Interpretation] I would just like to ask the

9 following: Is General Maisonneuve aware of the fact that 17 Serbs were

10 killed in front of the mosque at a time when they tried to pick up the

11 bodies and take them to the morgue in Pristina?

12 Q. Do you know that 17 people were killed there? This was determined

13 by OSCE, and it is stated in their report. Do you know of this or not?

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

15 Q. Do you know if anyone was killed?

16 A. Not that I know of. And certainly not in the context of picking

17 up the bodies. I think I would have heard about that. But I never heard

18 about that, no.

19 MR. TAPUSKOVIC: [Interpretation] Thank you.

20 MR. RYNEVELD: Your Honours, given the time constraints, I'm going

21 to forego any re-examination.

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

23 94.

24 MR. RYNEVELD: Yes. I believe that the accused wanted to have it

25 marked as an exhibit. It already is an exhibit, and it's Exhibit 94, tab

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1 54. So that's the document.

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

3 JUDGE KWON: And 42 for the transcript, between the conversation

4 between General Loncar and DZ.

5 MR. RYNEVELD: Yes. We found that as well, and that is Exhibit

6 94, already in, tab 42.

7 JUDGE KWON: Yes.

8 JUDGE MAY: Yes. General, thank you for giving evidence and thank

9 you for making time this morning and making different arrangements.

10 You're free to go.

11 THE WITNESS: Thank you, Your Honour.

12 [The witness withdrew]

13 MR. RYNEVELD: I understand Your Honours indicated that you would

14 hear Drita Emini now for the balance of cross-examination.

15 JUDGE MAY: Yes.

16 MR. RYNEVELD: Thank you.

17 [The witness entered court]

18 JUDGE MAY: Ms. Emini, you can take a seat. You are subject to

19 the declaration which you made the other day, and we'll conclude your

20 evidence now.

21 WITNESS: DRITA EMINI [Resumed]

22 [Witness answered through interpreter]

23 JUDGE MAY: Yes, Mr. Milosevic.

24 Cross-examined by Mr. Milosevic: [Continued]

25 Q. [Interpretation] You said that you were able to see Bebushit hill

1 from the basement. How far is it from the place where you were?

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

3 Q. Did the policemen who you say you saw on the hill through a hole

4 in the basement, did they stand or were they hiding behind a shelter?

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

6 standing, Accused.

7 Q. So you saw only three or four policemen on the hill some 200

8 metres away from you from a basement in which, as you say, you were lying

9 on the floor; is that right?

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

11 about the Serbian police?

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

13 A. I saw the Serbian police. I couldn't say how many there were on

14 the Bebushit hill, but I know we were surrounded by Serbian police and

15 soldiers.

16 Q. Well, now you're saying that you can't say how many were there,

17 and previously, without me asking you so, you said there were three or

18 four. A minute ago, you said there were three or four of them on the hill

19 200 metres from the basement on which you were lying on the floor.

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

21 Q. Well, the one that you mentioned in your reply. I asked you about

22 policemen you saw on the Bebushit hill. Even though I didn't ask you how

23 many there were, you said that there were three or four policemen standing

24 there.

25 A. I saw Serbian police and soldiers from the cellar where I was, and

1 I don't know how many there were, but I know that we were surrounded by

2 Serbian police and soldiers on orders that were given by you, Accused.

3 Q. Very well. If you saw three or four, as you said yourself, three

4 or four, how did you then conclude that you were surrounded? Did these

5 three or four policemen that you saw on the hill, as you say, 200 metres

6 from the basement, actually surround you?

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

8 JUDGE MAY: Now, will you stop addressing him as "Accused."

9 There's no need for you to address him at all. Ms. Emini, you are giving

10 evidence to the Court.

11 Yes. Mr. Milosevic, find another question.

12 THE ACCUSED: [Interpretation] Well, it's quite obvious that we

13 need to move to another question.

14 MR. MILOSEVIC: [Interpretation]

15 Q. In your statement, on page 8, you state that in the hills above

16 Lozhak, you spent six days in a cave called Imer Devetak. Is that true or

17 not?

18 A. I didn't stay in a cave above the hills of Recak. I stayed in

19 Lozhak. It's called shpella, the cave of Imer Devetak.

20 Q. All right. So you were in this other cave that you're mentioning

21 now for six days; isn't that right?

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

23 Q. Do you know that in your statement, it says that you spent six

24 days in a cave. You said that you had a wood-burning stove in front of

25 the cave. Isn't that right?

1 A. My family and I who stayed in the cave of Imer Devetaku, like

2 Lozhak, didn't have stoves because we were in the hills. I also have

3 photographs taken by Barney Kelly. There were no houses up there.

4 Q. I'm not asking you about houses, I'm asking you about a cave. And

5 what did Barney Kelly photograph?

6 A. Barney Kelly photographed the place where my family and I stayed

7 in the cave during the war, as well as other families.

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

9 JUDGE MAY: Six or seven days, it doesn't really matter,

10 Mr. Milosevic.

11 MR. MILOSEVIC: [Interpretation]

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

13 village? Why did you stay there?

14 A. We had no peace in our village because of the Serbian police and

15 army, because of your orders. We were forced by the shelling to go and

16 stay in a cave.

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

18 A. In 1998.

19 Q. So you're saying that you spent time in the cave in 1998, not in

20 1999; isn't that right?

21 A. Starting from 1998.

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

23 A. I said before.

24 Q. So you were in the cave in early 1998 because the Serbs shelled

25 your village; is that right?

1 JUDGE MAY: She did not say early 1998. She merely said starting

2 in 1998. There's a distinction.

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

4 year?

5 THE WITNESS: [Interpretation] Yes, I can tell you, Your Honour.

6 It was in 1998. I can't remember the exact date, but we were in that cave

7 when the Serbian army and the police were shelling from the Cesta Hill and

8 from Geshtenja. We weren't safe staying in the village and were forced to

9 take shelter somewhere quieter.

10 JUDGE MAY: Can you help us as to what time of year it was? Not

11 the exact date, but roughly.

12 THE WITNESS: [Interpretation] When -- when the village was burned

13 on the 23rd of August, 1998. It was a Sunday.

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

15 MR. MILOSEVIC: [Interpretation]

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

17 A. I'm talking about the village of Recak and also where we went to

18 near Lozhak, in the hills.

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

20 Is that it?

21 A. On 23rd of August, 1998.

22 THE ACCUSED: [Interpretation] Mr. May, I don't understand the

23 difference between starting with -- starting from 1998 or from the

24 beginning of 1998. It would seem to me that this was the same in

25 determining -- in terms of determining the time. Now, I'm going to ask

1 the witness now how can August be the beginning of 1998.

2 JUDGE MAY: No. I take "starting in 1998" is beginning then, that

3 it was beginning in 1998 that they were in the cave rather than at the

4 beginning of 1998. Now, I think she's clarified it, as far as possible,

5 the time they were in the cave. Shall we move on to something else now?

6 THE ACCUSED: [Interpretation] All right.

7 MR. MILOSEVIC: [Interpretation]

8 Q. So according to you, the village was set fire to in August 1998;

9 right? Is that right or is it not? Just say yes or no.

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

11 was burnt.

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

13 A. After the war was over.

14 Q. Well, did the village exist at the beginning of 1999? Because you

15 say it was set fire to in 1998.

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

17 orders.

18 Q. I'm not asking you that. You say that the village was burnt in

19 August 1998. What I'm asking you is that it didn't exist until after the

20 war. That's what you said a moment ago.

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

22 saying.

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

24 THE WITNESS: [Interpretation] I said then approximately -- I can't

25 say. It might be 56 houses or might -- or it might be more. I don't

1 know.

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

3 THE WITNESS: [Interpretation] Half the village was burnt. It

4 might have been more, but I didn't really know. I'm not really sure.

5 MR. MILOSEVIC: [Interpretation]

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

7 A. That's right.

8 Q. That means that up until 1999, more than half the village had been

9 burnt. That's what you claim; right?

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

11 Q. All right. We've already taken note of that. But at the time,

12 then, in August, as you say, when the village was burnt and you fled to

13 the cave, you go on to say that you became ill from all the damp and cold.

14 And then you say that during the night, you would make sure that your

15 family was okay and then that you would be happy. So you would make sure

16 that your family was all right at night. You would go there to see that

17 they were all right at night.

18 A. My family and I stayed there a week, but we went home every now

19 and then to fetch food, because we had nowhere to get bread in the hills.

20 And my two brothers were ill from the cold, from staying in the cave. It

21 was like in a fridge. I said before that's how it was. Not even wild

22 animals could live there let alone children.

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

24 Q. And tell me, how come it was that cold in the month of August?

25 Was that some exceptional thing?

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

2 Q. As you say that at night you would make sure that your family was

3 okay and that then you would be happy, which is logical, you would be

4 happy to see that, does that mean that during the day you were not with

5 your family?

6 A. I was with my family all the time. Sometimes I went home to fetch

7 food. And I was not happy, because it was cold in there where we were

8 staying. It was very cold indeed. We went there because of your

9 shelling. We didn't go there because we wanted to. The Serbian police

10 and army, your police and army, forced me -- forced us to go to that cave.

11 We fled from the shelling.

12 Q. All right. When, then, did you go back home from the cave? Give

13 me a date. So you went on the 23rd of August, on a Sunday when the

14 village was burnt, as you claim. Now, when did you go home, get back

15 home?

16 A. I don't remember the date. I'm not sure when we went back,

17 because we went back for a week and then we went back to Lozhak. We were

18 never safe to stay in the village because the Serbian police and army were

19 on the Cesta hills by Geshtenja, and they were firing. We were never

20 safe.

21 Q. I apologise. I'm reading from the transcript because I can't hear

22 the interpretation. It's very weak today, the volume on the speaker.

23 All right. So does that mean that you didn't go home or you did

24 go home after a certain amount of time had gone by? And if so, when did

25 you go home?

1 A. I don't remember the date.

2 Q. Well, do you at least know approximately, roughly how long you

3 were away from home; a week, two weeks, a month, a year? How long did you

4 spend away from home?

5 A. From 1998, we were never safe staying at home because of the

6 police and army. Because of the Serbian police and army, on your orders,

7 they were firing non-stop at the village of Recak from the Cesta hills.

8 And we had to go to the hills and other places to find some sort of

9 safety. Because the Serbian police and army, if they found us in the

10 village, they would massacre as -- they would massacre us as they did on

11 15th of January, because 42 people were killed, and we can say what they

12 did in the village of Recak on the 15th of January.

13 This is the truth, Your Honour.

14 JUDGE MAY: Mr. Milosevic, you've now had the 20 minutes allotted

15 to you for this examination.

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

17 JUDGE MAY: You've had the 20 minutes allotted. You can ask one

18 more question, if you want.

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

20 me.

21 MR. MILOSEVIC: [Interpretation]

22 Q. On page 13, you have a list of people who were killed in Racak on

23 the 15th of January. Do you know that the names that you gave do not

24 correspond to the minutes about the identification that was conducted? Do

25 you know that the names that you gave, which I'm going to quote now.

1 Muhamet Imeri, Kadri Syla, Arif Syla, Fahida Syla, Banush Azemi, Ahmet

2 Zenuni, Muhamet last name unknown, Shaq Berisha, Njazi Imeri, et cetera?

3 JUDGE MAY: We can read this ourselves in the statement. The

4 question -- the question is -- just a moment.

5 The question is related to the minutes of the investigation. How

6 did you -- how did you make up this particular list? Do you remember the

7 list which you made in your statement?

8 THE WITNESS: [Interpretation] Your Honour, could you repeat the

9 question, please?

10 JUDGE MAY: Yes. You listed in your statement a number of people

11 who were killed in Recak.

12 THE WITNESS: [Interpretation] Your Honour, if you allow me, I can

13 give the names of the people who were massacred. Forty-two people in the

14 village of Recak on the 15th of January.

15 JUDGE MAY: Yes. You've given the names and they appear in the

16 statement. The question is: How did you know the names? How did you

17 come to make up the list?

18 THE WITNESS: [Interpretation] On the 16th of January, I went to

19 the hills myself and saw them. Some of them I saw myself. But because of

20 the grief, I couldn't identify them all. They were mutilated.

21 JUDGE MAY: Very well. I'm going to call this to a halt.

22 Mr. Tapuskovic, have you got questions for this witness?

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

24 please?

25 JUDGE MAY: Very well, but this is the very last question. You

1 can ask it.

2 MR. MILOSEVIC: [Interpretation]

3 Q. How do you explain the fact that your statement differs with

4 respect to 15 persons from that which was established?

5 A. There are no -- there is no difference. If the accused wishes, I

6 can give their names. On the 15th of January, 42 people were massacred.

7 Allow me, Your Honour.

8 JUDGE MAY: No. You've given the answer.

9 Mr. Tapuskovic.

10 MR. TAPUSKOVIC: [Interpretation] Your Honours, I just have one

11 area to cover, and I should like to draw your attention to the following:

12 It is page 14, and the last two paragraphs of the English version of the

13 second statement.

14 Questioned by Mr. Tapuskovic:

15 Q. [Interpretation] Ms. Drita, your father, later on, did he tell you

16 that the men were ordered to walk towards Bebushit hill, and if so, when?

17 My question is, actually, when?

18 A. This was on the 15th of January.

19 Q. Did he tell you then that they had moved off there, headed in that

20 direction without a police or army escort?

21 A. The Serb police was in ambush, was waiting for them. And the

22 people didn't go in that direction because they could have been massacred

23 like all the others. They went in different directions. They separated.

24 They didn't go in that direction which the police said they should go,

25 which the Serb police said they should go.

1 Hiding behind a wall, the Serb police were there.

2 Q. Therefore, all of them avoided the massacre, as you say here, that

3 perhaps they survived the massacre in this way, that they managed to save

4 their lives in that way, as you say.

5 A. The Serb police and army told the men to go up towards Bebushit

6 hill. And so they set off in that direction, but they were lucky because

7 there was a turn-off there, and they went in different directions. They

8 hid in the ravines for five or six hours, I don't know how long, and then

9 we were saved. They survived. Because the police, Serb, and army were up

10 on the hill, waiting for them. But fortunately, they survived. That is

11 the truth.

12 That is the truth, Your Honours.

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

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

15 MR. TAPUSKOVIC: [Interpretation] And I should also like, Your

16 Honours, in this connection, to ask the following question, one more

17 question for Ms. Drita. And this refers to page 7. The end of the

18 paragraph on page 7, the end of the last paragraph in the English

19 version.

20 Q. In which you state, but it's not quite clear, that some members of

21 the KLA from Racak were active in other villages as well and that in this

22 way -- that that's how it functioned. That's how it went. That's how it

23 was done. Is that right?

24 A. I don't really understand your question.

25 Q. All right. I won't insist. But I'm interested in knowing, Ms.

1 Drita, the following: You say on the hill Kodra e Bebushit, which is the

2 place where the massacre occurred, there were KLA soldiers there. That's

3 what you state.

4 A. On Bebushit hill, there was a massacre on the 15th. When the

5 massacre took place, I didn't see any KLA soldiers at all. There were

6 only civilians there.

7 JUDGE KWON: I would like to assist the people here. If the

8 witness could be given an Albanian translation, Albanian version. This

9 seems to be page K0217209 and 10.

10 Ms. Emini, do you remember your answers to the question as to

11 whether your father helped to dig the trenches which are on the hill? You

12 said you don't know or whether you were not there at the time. So could

13 you find the paragraph dealing with that? It's bottom of the page, front

14 page, and it continues to the next page. I will quote: "On the hill,

15 Kodra e Bebushit, which is the place where the massacre occurred, there

16 were KLA soldiers there. They had trenches on the hill where they

17 observed the activity in the village and on the other hills. The

18 villagers helped to dig the trenches for the KLA two or three months

19 before the massacre. I don't know how many KLAs were in the hills. They

20 worked during the night, so I could not see them. My father and brother

21 helped dig the trenches."

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

23 THE WITNESS: [Interpretation] Yes, Your Honour. I maybe helped my

24 father, but I didn't see exactly what they were doing. I may have helped

25 him but I didn't see exactly what they were doing. Perhaps they were

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1 helping the army, but I didn't see. I wasn't there. I do not know

2 exactly what they were doing up there.

3 JUDGE KWON: Thank you.

4 MR. TAPUSKOVIC: [Interpretation] Judge Kwon, that was precisely

5 what I wanted to read out. Thank you very much. I have no further

6 questions.

7 JUDGE MAY: Any re-examination?

8 MR. RYNEVELD: Just on that point, if I may.

9 Re-examined by Mr. Ryneveld:

10 Q. Ms. Emini, in order to give that information to the investigators

11 of the ICTY and confirm it in your statement, if you didn't see that, is

12 that what you were told that happened? Did someone tell you that that's

13 what they were doing?

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

15 the army.

16 Q. Thank you, Ms. Emini.

17 JUDGE MAY: That concludes your evidence, Ms. Emini. Thank you

18 for coming to the Tribunal to give it. You are free to go.

19 THE WITNESS: [Interpretation] Thank you very much for the

20 invitation, Your Honours. Everything I told you was the truth.

21 [The witness withdrew]

22 JUDGE MAY: Yes.

23 MR. NICE: Your Honour, I think I was going to turn to the issues

24 concerning the witness Barney Kelly next. When we parted a couple of days

25 ago for want of more time, I distributed some law that I wanted to refer

1 to and I had a few more points to make.

2 JUDGE MAY: Yes.

3 MR. NICE: So far as the law is concerned, I don't know if the

4 Chamber has had an opportunity to consider the matters I handed in.

5 JUDGE MAY: We have, yes.

6 MR. NICE: For the record, and indeed when the usher's around I

7 can even put it on the overhead projector, and in addition to other

8 authorities with which I think the Chamber is familiar -- overhead

9 projector, please. I was able to, with the assistance of Mr. Guariglia in

10 particular, not surprisingly, I was able to draw to your attention a

11 report from the Juntas trial which -- and dealing with the passages on the

12 first sheet in reverse order, shows first how a commission report which

13 preceded the trial proper, the CONADEP report, which we can see from the

14 bottom of that page was admitted, and in the judgement of the Appeal

15 Chamber, which was actually the Trial Chamber, the admissibility of that

16 commission's report was dealt with in this way: "The information contained

17 in the reports drafted by members of CONADEP on the basis of statements

18 made by victims ... do not amount to testimonial evidence, because those

19 statements do not meet the requirements established by military law for

20 the declaration of witnesses. It is therefore unnecessary to the oath

21 required by law [...]. However, the fact that these statements were not

22 made under oath does not deprive them of their value as evidence, nor does

23 the law prohibit their consideration. If appropriately introduced

24 evidence [...], the influence of those statements in the outcome of the

25 case, its potential for creating a sense of certainty in the trier of the

1 fact, will depend on a careful weighing of these statements within an

2 entire set of factors of different and diverse natures. Furthermore, it

3 should be pointed out that the Court is not going to consider a fact as

4 proven on the exclusive basis of the evidence furnished by the CONADEP..."

5 That of course, entirely fits with the proposition I've been

6 advancing generally, proposition two of my three, that the sort of

7 material that may be produced by witnesses such as Mr. Kelly can provide

8 certainty, or indeed can show reason for doubt, which is why it is so

9 valuable.

10 JUDGE ROBINSON: Mr. Nice, there is a big difference, as I see it,

11 between the CONADEP report and Mr. Kelly's report. The CONADEP report

12 actually contains statements from witnesses, whereas all that Mr. Kelly

13 does is to give a summary of what the witnesses told him. There are no

14 statements as such.

15 MR. NICE: But, Your Honour, the statements are there for

16 production and reading and indeed we would urge the Chamber to take all

17 the material, if it had the time to do so, and to pursue the course that

18 other Chambers in this Tribunal are doing which is of reading these</