If You Didn't See It, You Can't Prove It: Milosevic misperceives rules of evidence, challenges eye witness

tness actually saw something happen, it cannot be proved. If that were so, the vast majority of murderers would go free, since the dead are often the only witnesses. But the law is practical. It looks at circumstances surrounding the crime, and allows for inference and logic. In any trial, evidence of many kinds is allowed, evidence from the crime scene, opinions of experts and even hearsay if it is reliable. The law recognizes that eye witness evidence isn't the only, nor always the most reliable kind. Perhaps Milosevic missed that class -- Evidence 101.

As he has done many times throughout the trial, Milosevic challenged Sofije Imeraj about testifying to murders she had not observed. The 21 year old testified to the following: About 6:30 a.m. on March 26, 1999, three soldiers came to her house. One fired through the front window at her brother, but her mother was able to protect him. She heard her father say, 'Don't do that, neighbor,' and the soldier respond, 'There are no more neighbors.' A soldier entered the house and ordered her father, brother and uncle outside. She saw them lined up at the threshold. Then the first soldier knelt and began shooting in their direction. Moments after the soldiers left, she and her mother found the men's dead bodies where they had fallen.

According to Milosevic's view, Sofije did not see the killing because she did not see the bullets enter the bodies of her relatives. But the law allows proof through inference, logic and circumstantial evidence. In this case, Sofije saw her relatives marched out of the house at gunpoint and lined up on the threshold. She saw the soldier take aim in their direction. She saw and heard the gun being fired several times. And moments later, she saw the bodies on the spot at which the soldier had been shooting. If this isn't eye witness testimony, it is the closest thing to it. In any event, though more evidence may be required to establish the crime, her evidence is legitimate under the law. As with any witness, the judges will also consider her credibility.

Milosevic used the same tactic with Ismet Haxhiavdija, an elderly former teacher, last week. Mr. Haxhiavdija did not actually see the murder of his son's family, but his testimony of the circumstances surrounding it is expected to corroborate the testimony his son will provide. Mr. Haxhiavdija told the Court that his son came to him on the morning of April 2, 1999, and said, 'Father, my life is ended.' His wife and children had been killed by Serbian forces the night before. Later, Mr. Haxhiavdija went to the compound, found the burned body of a neighbor and corpses of 19 women and children, including his daughter-in-law and grandchildren, the youngest of whom was 2 or 3.

Milosevic's final challenge to him on cross examination was: 'Is it true that it follows from your entire statement and testimony that you personally, you Ismet Haxhiavdija, did not see a single killing allegedly committed by Serbian forces and you are testifying on the basis of stories told by others? It is all hearsay.'

Mr. Haxhiavdija responded with outrage: 'No. I saw my son. His wife and children were killed. Thirteen children. One 18 months old. An 80 year old woman. . . . I saw how [Hysen Gashi] collapsed in the annex to the building where the massacre was. Twenty members of six families were killed.'

While Milosevic is correct that the witness didn't see the murders with his own eyes, it does not mean his testimony is irrelevant. Mr. Haxhiavdija testified that his son told him about the murders shortly after they occurred. (Hearsay evidence is allowable under Tribunal rules.) He then went to the compound and saw the bodies with his own eyes. While this does not establish who killed the family, it shows a massacre of civilians occurred. Under these circumstances, there was little reason for Milosevic to cross examine at all and a professional lawyer might very well have not.

Having chosen to exercise his right to question Mr. Haxhiavdija, Milosevic gave the witness an opportunity to speak directly to him, as well. While Judge May is careful to confine witnesses within the narrow bounds of legal procedure, Mr. Haxhiavdija's obvious suffering, outrage and moral authority kept the judge quiet when he asked, at the end of his testimony, if he might say something of his own. What followed was an unforgettable challenge to an accused who treats his trial for the gravest crimes against humanity as something of a game: 'I would like to thank the Hague Tribunal for the invitation to come. I normally could not be here because of ill health. But I wanted to make a statement about the crimes committed, the massacres against old people, children, young people . . . . I would like to ask the accused about your feelings. Do you have any feelings?' Milosevic did not answer.