1 Thursday, 15 January 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.21 p.m.
5 JUDGE ORIE: Good afternoon to everybody.
6 Mr. Registrar would you please call the case.
7 THE REGISTRAR: Good afternoon Your Honours. Good afternoon to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Before we continue with the examination of Mr. Konings, I'd like
12 to deal quickly with a few procedural matters. The Chamber was informed
13 that there are no objections against admission of P1269 and P1270.
14 MR. KEHOE: Yes, Your Honour.
15 JUDGE ORIE: Therefore, P1269 and P1270 are admitted into
17 Then, Mr. Russo, the Prosecution is invited -- because you're
18 calling the witnesses and you may know best where there would be any time
19 available, to find after the conclusion of the evidence of Mr. Konings to
20 find in the next week for a housekeeping session and inform the Chamber
21 and, of course, then the Defence as well what would be your preference.
22 Then the Chamber is informed that there is some, although very
23 limited agreement, on the coordinates or the coordination -- coordinate
24 system used in some of the documents presented. If there's anything to
25 report to the Chamber in this respect, we'd like to hear from you,
1 Mr. Misetic.
2 MR. MISETIC: Yes Mr. President.
3 Unfortunately, what we have agreed on is that, I think, certainly
4 I've had a conversation with Mr. Russo, and we have misunderstood what
5 Mr. Russo indicated in court yesterday. It was your understanding that
6 in fact the Office of the Prosecutor had taken these coordinates and
7 plotted them out to see where they actually are. It turns out that in
8 terms of actually plotting them out, the Prosecution has not done that.
9 We have done that, and so there really was no point in sitting down and
10 talking about whether we agree that these are the coordinates; and we
11 intend to go through that in cross-examination of this witness as to
12 where those coordinates are. And so we have agreed that at this point we
13 can't have a meaningful conversation until the Prosecution, and I
14 understand from Mr. Russo they will be in fact on their own, plotting the
15 coordinates to see where they fall. But until time, Mr. Russo has
16 indicated they will look what we put in, in cross-examination and unless
17 this is an reason that they think the coordinate is not accurate, in
18 which case they will object we'll proceed --
19 JUDGE ORIE: Yes. Of course, there are two distinct elements in
20 this question. The first is what system of coordinates is used - is this
21 the usual grid references - so the system that's one; and the second is
22 that when plotting the coordinates on a map where we'll find ourselves.
23 MR. MISETIC: This is a -- not the usual system that the UN would
24 use. This is it a separate system. It's Croatia zone 5 projection
1 Merkator, I'm going to mispronounce this but Gauss-Kruger,
2 G-a-u-s-s, hyphen Kruger, K-r-u-g-e-r; and the specifically
3 Ellipsoid Bessel 1841 is the system.
4 JUDGE ORIE: Sounds grade.
5 MR. MISETIC: For the record what's what we're going to be using.
6 JUGE ORIE: That's what you're going to be using, and Mr. Russo
7 is informed about this.
8 MR. MISETIC: Mr. President, if I could also add that this is the
9 system that the Yugoslav army, a coordinate system which they had in
10 place, which is the basis upon which the Croatian army then used those
11 coordinates --
12 JUDGE ORIE: Yes. I take if you have sufficient examples and
13 it's not just the hospitals that you have verify in an experimental basis
14 on whether, for example, if you have a reference to cross-roads whereas
15 in plotting you signed yourself in the middle of a swimming pool then of
16 course that might be a problem.
17 So testing will certainly assist in finding the right
18 understanding of the system that. That was the --
19 MR. RUSSO: Your Honour, my apologies. I just want to add
20 something to what Mr. Misetic said. First of all, he is correct. I
21 agree with everything he said. The -- we didn't actually speak about the
22 coordinate system, in particular system he has identified. Nevertheless,
23 I certainly take him at his word that this was the system used by the
24 Croatian army. What I had indicated yesterday was -- which I think is in
25 line with this, we had taken the Croatian maps which received from the
1 government of Croatia
2 physical map to determine the box where the coordinates fell; so I would
3 assume that those lines on the map correspond to the system he's
4 mentioned, and I haven't seen the map that we're planning on showing the
5 witness on cross-examination but again since they've already gone through
6 the trouble of plotting it, we'll take a look at that once we've had it
7 done on our computer system, I'm sure we'll come to some agreement on
9 JUDGE ORIE: Yes. May I then take it that part of the motions
10 yesterday arose from you -- well, arose on the basis of the understanding
11 that you had plotted that already that some of the motion has went down
12 in intensity.
13 MR. KEHOE: Yes, sir.
14 JUDGE ORIE: In intensity, yes.
15 Then I also understand that there's no agreement on the word and
16 I might also pronounce it wrongly, but stacionar whether that has
17 intrinsic medical connotation as I do understand is suggested by the
18 Prosecution on the basis of a dictionary or whether stacionar also exists
19 without this connotation.
20 MR. RUSSO: If I could address, first on this. Your Honour, the
21 reason that the dictionary page was provided was not an attempt by the
22 Prosecution to end the issue of how exactly one defines the term
23 stacionar. I understand from Mr. Misetic that this has a certain
24 specific meaning in the military context. However, we were responding to
25 the objection which was made yesterday by Mr. Kuzmanovic that the word
1 stacionar could only mean one thing, and this is an explanation for why
2 apparently whomever translated this at CLSS provided the word medical
3 station in response to the word stacionar.
4 So that is where the disagreement arises from, it's not a
5 resolution of the issue.
6 JUDGE ORIE: I do understand, well how to resolve it, of course
7 there are two ways, either you further consult your linguistic experts --
8 MR. MISETIC: I was just about to add, Mr. President, that
9 Mr. Russo and I are in agreement that we should take some time,
10 additional time to try to come to a common agreement as to what that word
11 means in this context if we can; and if we can't one way or the other to
12 report back to the Chamber on what we discussed.
13 JUDGE ORIE: Yes. Thank you for that information.
14 Now, finally I was informed that some observations were to be
15 made about the 1993 map that was shown to the Court yesterday.
16 MR. RUSSO: That's correct, Your Honour, and of course the
17 previous issue of the word stacionar would be entirely mooted if the
18 Court decided that the relevance of the document or were not probative
19 enough for admission that that would obviate the previous issue. So
20 probably first best to address the Defence's argument about whether or
21 not assuming that in the word medical station is, in fact, medical
22 station that the document is admissible.
23 MR. MISETIC: Yes, Mr. President, we object on relevance grounds
24 and we object in terms of lack of probative value. Mr. Russo and I have
25 had an additional discussions to see if in fact the 1993 Poskok map which
1 was for the purposes of a training exercise was then subsequently used in
2 Operation Storm in 1995. I think we're in agreement that there is no
3 explicit reference to the fact that that map was used in Operation Storm.
4 It is it our position that in fact it wasn't used in
5 Operation Storm. There is no evidence to support such an assertion and
6 therefore I know Mr. Russo will have -- will ask the Court to draw
7 inferences because I think some of the targets may overlap in terms of
8 what ultimately in other documents that were used in Operation Storm are
9 similar - although not the stacionar issue - similar to some that are in
10 the Poskok 93 map. I don't think that it's unusual that fixed targets
11 would have remained the same in 1993 and in 1995. I don't think that
12 means that the entire Poskok 93 map then should be taken as a map which
13 was used in Operation Storm, A, or that all the targets in Poskok 93 were
14 used in Operation Storm simply because some targets might overlap.
15 JUDGE ORIE: But now you're mixing up two things; first is
16 whether it has any relevance at all or whether what conclusions to drawn
17 from that. A map can be relevant even if you would not accept that all
18 the targets for training purposes put on that map actually were used and
19 that it depends on the totality of the evidence, whether any such
20 conclusion would be justified or not.
21 MR. MISETIC: I think, Your Honour, there would have to be more
22 foundation to establish that this particular map was used. Some
23 reference in a diary, some reference in a document an order saying to use
24 that list and there -- as far as I know there is no such corroborative
25 evidence to support that conclusion.
1 Secondly, and this goes to the, quite frankly, to the fact of the
2 prejudice outweighing the probative value. For to us admit this map
3 would require the Defence then to start putting in evidence about what
4 the circumstances were with respect to certain facilities on a 1993 map;
5 and I will provide a good faith proffer to you that 1993 was different
6 because there were troops of Arkan's Tigers, Captain Dragan's forces
7 which weren't there in 1995.
8 But we would have to go through that entire exercise of
9 presenting evidence to the Chamber about targets in an exercise map from
10 1993 and the circumstances around why targets would be selected in that
11 circumstance and to put things in the proper context, and I don't think
12 that exercise really is a useful use of either the Defence's resources or
13 quite frankly in terms of the overall scheme of things that the
14 Trial Chamber needs to be inundated about targets in 1993 and what they
15 were used for.
16 Thank you, Mr. President.
17 JUDGE ORIE: Yes, whether that would be a logical consequence of
18 a decision to admit is -- is still to be considered. But we'll further
19 consider the matter.
20 But the first question is if we would now already decide that the
21 map would not be admitted under whatever circumstances then the issue of
22 the stacionar would be moot. That's clear.
23 [Trial Chamber confers]
24 JUDGE ORIE: On the basis of the submissions and the information
25 the Chamber has received until now, it finds no reason to decide not to
1 admit the map, which, of course, is not a final decision on admission;
2 and we heard a lot of information such as it was for training purposes,
3 it is from 1993, that's, of course, all information to the extent the
4 parties agree on certain information; for example, that it is a 1993 map.
5 If it appears somewhere on the map then, of course, it is easy for the
6 Chamber to follow. But to the extent the parties agree on factual
7 background of the map, the Chamber would invite the parties to present
8 that to the Chamber, and we'll further look at this material to come to a
9 final decision on admission, yes or no.
10 MR. RUSSO: Thank you, Mr. President. Does that mean that we'll
11 receive a MFI
12 JUDGE ORIE: Yes, during the housekeeping session or it depends
13 on how matters develop. Whether the parties will be invited to make
14 further decisions -- further submissions or do the parties -- well
15 invited to provide further information on the map. It's difficult for me
16 and for the Chamber having looked at this map only very briefly just
17 being able to identify where we find the boxes with targets with unclear
18 language at this moment to say anything more about it.
19 Then I'd like to read a request for information the Chamber
20 addresses to the parties, and that's the last procedural item I have on
21 my agenda before we would proceed.
22 It is a request for information from the parties regarding the
23 scheduling of the remainder of the Prosecution case and the beginning of
24 the Defence case.
25 While the Chamber is well aware that there are a number of
1 pending issues that may make it difficult to make an accurate prediction
2 for the near future, the Chamber, nonetheless, views it as important that
3 some sort of time-frame be set out as to give all parties an idea of what
4 to expect.
5 The Chamber, therefore, invites the Prosecution and each Defence
6 team to make brief oral submissions on the following five questions, and
7 the oral submissions will be heard on Friday, the 23rd of January of this
9 Firstly, the Prosecution is asked to inform the Chamber on who
10 the remaining Prosecution witnesses are, and on what date it expects to
11 close its case.
12 Secondly, the Defence teams are asked to inform the Chamber if
13 they are intending to make submissions pursuant to Rule 98 bis of the
14 Rules of Procedure and Evidence; and if so, how much time they would
15 require for this.
16 Thirdly, the parties are asked to inform the Chamber on how many
17 working days they would ideally require between the last day of the
18 Prosecution's case and a possible hearing for Rule 98 bis submissions.
19 Fourthly, the Defence teams are asked to inform the Chamber on
20 how many working days they would ideally require between a possible
21 hearing for Rule 98 bis submissions and the start of the Defence case, if
22 there is an need to present one.
23 Fifthly, and finally, the Defence teams are asked to inform the
24 Chamber, provided that there is an need to present a case, in which order
25 they would like to present their evidence.
1 In its planning, the Chamber will do its utmost to take the
2 parties' wishes into account.
3 And this concludes the Chamber's request for information.
4 If there are no other procedural matters at this moment --
5 MR. RUSSO: Your Honour, my apologies, we need a MFI number for
6 the Poskok map. That's 65 ter 6128.
7 JUDGE ORIE: Yes. I thought we would do that when we resumed but
8 there is no problem in assigning a MFI number to the map.
9 Mr. Registrar.
10 THE REGISTRAR: Your Honours, that becomes Exhibit P1273, marked
11 for identification.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 Mr. Usher, could you please escort Mr. Konings into the
15 [The witness entered court]
16 JUDGE ORIE: Good afternoon, Mr. Konings.
17 THE WITNESS: Good afternoon, Your Honour.
18 JUDGE ORIE: Before we continue, I'd like to remind you that the
19 solemn declaration you gave at the beginning of your testimony is still
20 binding you.
21 I also noticed that you brought some material with you. It's no
22 problem whatsoever, but if you want to consult any material that was not
23 provided to you by the usher, I'd like you to first address me and
24 indicate that you wish to consult that material and what it is.
25 Mr. Russo.
1 MR. RUSSO: Thank you, Mr. President.
2 WITNESS: HARRY KONINGS [Resumed]
3 Examination by Mr. Russo: [Continued]
4 Q. Good afternoon, Colonel Konings.
5 I'd like to begin today by taking a look at a map of the planned
6 activities of the 4th Guards Brigade which, as you point out in your
7 addendum, was one of the professional brigades tasked with taking the
8 town of Knin.
9 MR. RUSSO: Mr. Registrar, if we could please have 65 ter 5037.
10 Q. Now, Colonel, once the map comes up on the screen, you may recall
11 that this is one of the maps shown to you by the OTP and that it's rather
12 large map, difficult to see in any detail. I'd like to show it to you
13 first and ask if you recall seeing this map?
14 A. Yes, I have seen this map before.
15 Q. And I'd like to concentrate first on the text which appears on
16 the map.
17 MR. RUSSO: And, Your Honour, we have translated the text on the
18 map. I'll ask Mr. Registrar to pull up, please, the translation.
19 Q. And you can see at the beginning here is the information of who
20 the map was approved by, who it is signed by, what the title of the map
21 is; and then if we can proceed a bit lower, it indicates the table of
22 contents which corresponds to the legend which appears on the map. And
23 you'll note that the second line in the table of contents indicates
24 self-propelled multiple rocket launcher fire.
25 MR. RUSSO: If we could now have 65 ter 6446.
1 Q. Now, Colonel Konings, for your information and for the Chamber's
2 information as well, what we have done is enlarged sections of the map
3 that I'd like to show. We have enlarged in particular the table of
4 contents and the portion of the map around Knin that I'd like to focus
6 MR. RUSSO: If we could perhaps spin the map portion.
7 Q. You'll also notice there the table the contents and as I read
8 before the second line indicating multiple-barrel rocket launcher fire
9 and you'll see that that corresponds to a green target box on the left
10 hand of your screen.
11 MR. RUSSO: Now if we can move to the second page of the map
12 itself, and I don't believe we need the translation from this point
14 If we could just move to the second page of this exhibit.
15 If we could enlarge the area around the two green -- there we
17 Q. You'll see, Colonel Konings, that two of the green target boxes
18 appear in Knin in two different areas, and I'll simply -- before I move
19 on to the next page in this exhibit, I'll ask to you take note of the
20 fact that at the -- looking at the bottom green square, you'll see the
21 image which comes up along the right-hand side of that green target box
22 and which the green target box partly covers and goes through corresponds
23 to the railway tracks in the town of Knin
24 to the left of the green target box which is outlined in black
25 immediately to the left of the bottom green target box corresponds to the
1 Knin fortress, and that is just to give you an idea of the relative
2 location of the box itself.
3 MR. RUSSO: So if we could move to the next page.
4 Q. What we've done here, Colonel Konings, is superimposed the
5 location of those squares or approximate location of those squares over
6 the area.
7 MR. RUSSO: If we could just move down.
8 Q. And here again you'll notice the railroad tacks coming up on the
9 right-hand side and into the bottom box which on this particular page is
10 blue and that the outline to the immediately left of the bottom blue
11 square represents the Knin fortress.
12 MR. RUSSO: And if we could again move to the next and final page
13 of this exhibit.
14 Q. What we have attempted to do here, and if we could just spin that
15 again, please. What we have attempt to do here is superimpose the
16 approximate locations of those boxes on the aerial photograph which we're
17 all familiar by now. I can tell that you and inform the Chamber that the
18 slight warping of those boxes is due to the angle at which this
19 photograph was taken - at least that's what I'm told - that the GO
20 referencing software which was used to superimpose these boxes resulted
21 in a slight skewing based on the angle of which the photograph was taken.
22 So looking at this area, I'd like to ask you a few questions
23 about the use of multiple-barrel rocket launchers in civilian-populated
25 In section 10 of your expert report, you indicated that generally
1 that rockets are less accurate than Howitzers. And what I'd like to you
2 do is please comment for the Chamber on whether you believe it is
3 appropriate to use multiple-barrel rocket launchers to fire at any
4 targets in a civilian-populated area.
5 A. Well, I have to come back to the points that we already discussed
6 the days before. Firing in a civilian-populated area with any weapon
7 system, with any indirect firing weapon systems, is dependant on many
8 factors and we have been debating: The value of a military target in a
9 civilian area, the proximity of the civilian elements in that area which
10 are the most important and, of course, the accuracy or inaccuracy of the
11 weapon systems that you have available.
12 There are three important factors that may take -- that may a
13 commander bring to the decision to use indirect fire weapon systems.
14 But at the lower end of indirect fire systems there where you
15 talk about inaccuracy are the regular rocket systems. As long as they
16 are not guided missiles, they suffer from more inaccuracy than the
17 artillery or -- than Howitzer or mortar systems. That has to be -- that
18 is caused by the fact that a rocket mortar burns through a certain period
19 of time and the controllable -- to control that exact burning time well,
20 there is a difference between each rocket.
21 So once you are able to have exactly the same burning time in
22 combination with a guided system inside a rocket then have you an
23 accurate rocket, and I can refer to various guided missile systems in use
24 all over the world where you are able to pinpoint a rocket through a
25 window of a house.
1 But as far as my knowledge reaches these rocket launchers in use
2 nor rocket launchers in use in other countries in the world at that time,
3 they used regular unguided rocket systems, which brings me to the
4 conclusion that they have a larger inaccuracy than a regular artillery
6 So using those rockets inside a quite large area with a lot of
7 civilian elements in there would not be my choice in order to attack a
8 military -- a small, relative small target in that area.
9 Rockets are extremely area weapon systems. They are not fit to
10 do point -- point targets unless what I said before they have the
11 capacity of GPS
12 Q. Thank you.
13 MR. RUSSO: Your Honour, think would move for the admission of 65
14 ter 5037 and 65 ter 6446.
15 MR. KEHOE: [Microphone not activated] ... sorry, the 65 ter 5037
16 is the large map. 65 ter 6546 is the smaller, I take it of that. The
17 issue that I have is on the map that was superimposed. If we can go back
18 one map in this list. If you can spin that for me, please.
19 You can see, Judge, that the top square is not accurate vis-a-vis
20 65 ter 6446. That top square should be further over to the left. So to
21 the extent that the Prosecution can make that more accurate, we can take
22 a look at it at that point.
23 With regard to 65 ter 5037 and 65 ter 6446, we have no objection.
24 JUDGE ORIE: You said the -- let me just ...
25 Top square, the top of the two in the original green, here kind
1 of a blue purple you said it should be more to the --
2 MR. KEHOE: Left.
3 JUDGE ORIE: Left.
4 MR. KEHOE: To the left. If we go back to 65 ter 6446. We can
5 see that.
6 MR. RUSSO: This is 6446. I think you want the aerial photograph
7 it's the next page.
8 MR. KEHOE: That's fine. What I'm dealing is the larger map
9 where we then focussed in on the squares in Knin.
10 MR. RUSSO: That would be the first page of this particular
11 exhibit. If you're looking for the original map portion that is covered
12 by the boxes.
13 MR. KEHOE: Let us look then at the first page of this document
14 and compare it to this. I think Your Honours will see what I'm talking
16 JUDGE ORIE: This one is inaccurate. What we see on our screen
17 now, Mr. Kehoe. Is that --
18 MR. KEHOE: That's correct, Judge.
19 JUDGE ORIE: Yes. What I see on this map is that the left limit,
20 the left border of the upper square is in a south/north direction almost
21 exactly at the same position as the -- what appears to be the fortress.
22 Now looking at the original map, that seems to be -- well, I'm
23 not saying by the millimetre but approximately the case in the -- in the
24 original as well.
25 MR. RUSSO: If I could add, Your Honour, the feature that we used
1 I think is the reference point. If you look to the -- the right-hand
2 side of the top square, you'll see that the -- it covers the railroad
3 crossing where the railway bridge goes over the railroad tracks; and
4 that's where you will see on the original you follow the railroad tracks
5 from the top of the bottom green box to the bottom of the top green box
6 you will see that it also crossed over the railway bridge.
7 JUDGE ORIE: Yes. If there are differences, they are very
8 limited. Would you agree with that Mr. Kehoe?
9 MR. KEHOE: I agree that they're limited, Judge.
10 JUDGE ORIE: We'll see to what extent the details in the
11 precision here is important. If it turns out to be important, then I
12 would say that Mr. Russo will be invited to do his homework, but let's
13 not deal with tens of millimetres at this moment if we are not knowing
14 yet what the importance of it is it.
15 MR. KEHOE: Yes, Mr. President.
16 JUDGE ORIE: Yes?
17 Mr. Registrar.
18 THE REGISTRAR: Your Honours, 65 ter 5037 becomes Exhibit P1274;
19 and 65 ter 6446 becomes Exhibit P1275.
20 MR. RUSSO: My apologies, Your Honour, I don't know if it would
21 be more beneficial to the Court to have both of these collapsed into one
22 exhibit since it might be more useful unless the Court thinks that
23 there's a chance that the second enlargement won't be as useful in
24 interpreting a larger map. In any case, it is just a suggestion.
25 JUDGE ORIE: Well, I'm relatively neutral on the matter. Of
1 course, we will focus on what is the source material. That is most
2 important. But I do -- now, again reference to the numbers, 5037 was
3 the --
4 MR. RUSSO: That's the original map, Your Honour.
5 JUDGE ORIE: That's the original map. And 6446 is the series of
6 two projections is that ...
7 MR. RUSSO: Correct, Your Honour.
8 JUDGE ORIE: Yes. P1274 and P1275 are admitted into evidence,
9 with the proviso that, if the projections will need further precision,
10 that this can be decided on an application, once it has become clear what
11 the importance of these details is.
12 Please proceed.
13 MR. RUSSO: Thank you, Mr. President.
14 If we could now have 65 ter 5742.
15 Q. Now, Colonel Konings, what we have just looked at was a map which
16 was a plan of action for the 4th Guards Brigade which of course you do
17 address in your expert report.
18 The document we're looking at now is an artillery expenditure
19 report of the 4th and 7th Guards Brigade for the 4th and 5th of August,
20 and you will notice on the fourth row where it indicates that 248
21 multiple-barrel rocket launchers were fired on those dates.
22 And in conjunction with the testimony you gave to my last
23 question, if even a small number of these 248 rockets were fired into
24 Knin, do you think, in your opinion, is that appropriate use of artillery
25 in a civilian-populated area?
1 A. Well, as I told before, the inaccuracy of a rocket system is
2 larger so they are less accurate than an artillery round; and I do think
3 I have expressed my opinion that an artillery round -- the use of
4 artillery in a civilian-populated area is not the best or most logical
5 choice to use unless you have a military target in a civilian-populated
6 area that is outside the -- the collateral damage rate.
7 I gave you an example yesterday about those 500 metres that we
8 used in Afghanistan
9 to estimate every time over and over again the value of the military
10 target that you want to combat, the proximity of the civilian population,
11 and the effectiveness of your projectiles that you use. And I can only
12 repeat that unguided rocket projectiles come at the end of the scale, at
13 the lower end of the scale.
14 So given me the information that the military targets in Knin
15 were of very low value for the defence of Knin, my choice would not have
16 been using rockets against any targets in the areas inside Knin
17 especially not in those areas that you showed me before. Because in
18 those areas we saw yesterday, there were military targets located; but
19 they were all confined in a civilian-populated area with close proximity
20 of civilian buildings with the large -- with the possibility that
21 civilians are still in that buildings so my choice, if I would have seen
22 the need of taking out military targets in such a confined
23 civilian-populated area, my choice would not be not to use this rocket
25 Q. Now if a commander decided to use artillery against a particular
1 target in Knin; for example, against the ARSK headquarters, in your
2 opinion what other considerations or -- let me ask that in another way.
3 In your opinion, what would be the reason, military reason or
4 what military advantage would be gained by using a rocket as opposed to,
5 for example, a 130-millimetre gun?
6 A. It is -- I'm sorry I have to come back to the aspects that I
7 tried to explain already before, is it is, first of all, a matter of
8 importance of the target, and if an ARSK headquarter may be qualified as
9 an important target in itself. But as we discussed before, that
10 headquarters is in a strong building, so the use of artillery is not the
11 most -- is not the choice to make because it is sheer impossible to
12 destroy such a building in a way that you can take out the headquarters,
13 if the headquarters is already there. But let's assume that the
14 headquarters is up and running in such a building. It is very hard to
15 take out that complete headquarters with the use of artillery.
16 Given the inaccuracy of rocket projectiles, the chance of hitting
17 that headquarters is less. The chance of hitting the environment is --
18 the -- the -- the arrows that you have in length and width, especially in
19 length, from a rocket are bigger than artillery; so you have more chance
20 of projectiles that fall short of the building or fall plus of the
22 So given that inaccuracy I would not choice rockets. If the ARSK
23 headquarters is a high pay-off target, and I can imagine that it is when
24 it is occupied and when it is up and running, then the -- the choice
25 would be taking a more accurate weapon system which in this case is
1 artillery but then comes in that you have the chance that you will have
2 collateral damage in a civilian environment; but I cannot stress enough
3 that is up to the commander on the scene given his rules of engagement to
4 decide whether he takes that headquarters out with artillery, yes or no.
5 Q. And can you give the Chamber some idea of what kind of damage
6 could be done to the ARSK HQ since you mentioned the construction of the
7 building itself. What would rockets do to a building like that?
8 A. Well, a rocket filled with a high explosive charge will probably
9 have the same, more or less, the same influence on a building as a high
10 explosive of a -- as a high explosive round of a 155 or 152. Those
11 rockets are also area weapon systems especially effective against
12 unarmoured personnel, against personnel in the open, against lightly
13 armoured vehicles so they will -- if they hit the building, they will
14 cause damage. That's for sure. They will make holes they will maybe
15 even destroy a roof. But the damage will be comparable with what I
16 described on artillery rounds.
17 MR. RUSSO: Thank you. Your Honour, at this time, I would move
18 for admission of 65 ter 5742.
19 MR. KEHOE: No objection, Judge.
20 JUDGE ORIE: Mr. Registrar.
21 THE REGISTRAR: As Exhibit P1276, Your Honours.
22 JUDGE ORIE: Is admitted into evidence.
23 Mr. Konings, could you remind me, the TF shells, TF rockets that
24 stands for time --
25 THE WITNESS: Time fuse.
1 JUDGE ORIE: Time fuse. So there is a timing when they will
3 THE WITNESS: They will probably explode probably in the form of
4 an air bust, and produce shrapnel.
5 JUDGE ORIE: Yes, although time, of course, is a variable which
6 means that just on the basis of TF shell or TF rocket you can't identify
7 whether it will be an air burst or a burst upon -- after impact.
8 THE WITNESS: Well no you -- you -- that in itself doesn't say
9 anything because a time fuse, when it is not timed, when it is not --
10 when the time is not set will explode as a normal point detonating fuse.
11 JUDGE ORIE: Upon impact.
12 THE WITNESS: Upon impact, yes, sir.
13 JUDGE ORIE: Thank you.
14 Please proceed.
15 MR. RUSSO:
16 Q. And just to follow up on His Honour Judge Orie's question, with a
17 time fuse is there ever a reason to set the timer to explode after the
18 point of impact? In other words, if you wanted the shell to explode
19 before it actually impacts in order to create a time fuse, is that
20 what -- in order create an air burst my apologies. Is that what a time
21 fuse is for, or is there any other reason for a time fuse?
22 A. I'm not quite sure I understand the question correct, Mr. Russo.
23 Could you please rephrase it.
24 Q. Sure. You said that a time fuse a projectile, with a time fuse
25 on it, if the time fuse is not set, the projectile once it impacts will
1 simply impact and explode like a regular point detonating projectile.
2 So what is the purpose of having a timer on the fuse if not to
3 explode before it impacts?
4 A. Well, that can be -- I don't know. That can be many reason.
5 There can be lack of point detonating fuses in stock. There are various
6 reasons to think about. Normally the artillery rounds in stock can be
7 provided with either point detonating or time fuses. I'm not quite sure
8 how that works with the rocket systems. The rocket systems that we have
9 in the Netherlands
10 the rocket, so you cannot change that yourself. But artillery rounds,
11 you screw the fuse on top of that before you fire it. If you have a
12 point detonating fuse variable and you want to act in a point detonating
13 mode, then you will not screw a time fuse in there because you may them
14 in a limited number available.
15 So a commander, a battery commander, or an artillery commander
16 would only order time fuses to use time fuse, if you want to accurately
17 use air burst.
18 That again can be decisions on the spot. You might be short of
19 point detonating fuses, you might be ordered to deliver a fire for a
20 fact, and then can you use time fuses that are operating as a point
21 detonating fuse. But it is a more expensive way of doing because a time
22 fuse is more expensive than a point detonating fuse, but maybe on this
23 time in operation nobody cares about that.
24 JUDGE ORIE: Could I ask one further question because I also had
25 some difficulties in finding out for myself what your problem was.
1 Is it true that there are also fuses which have a kind of delayed
2 detonation so upon impact that it will take another quarter of a second
3 to detonate, so that first the projectile can enter the construction and
4 then explode once it is -- it may have entered through a roof or
6 Now, would you call that also a time fuse or does that have a
7 different name so as when we read here time fuse shell that it's not a
8 reference to such a kind of delayed detonation device.
9 THE WITNESS: The -- a delayed function is a function that is an
10 extra function on a point detonating fuse and has nothing to do with a
11 time fuse, so it ask just a matter of turning a small screw inside,
12 inside the fuse, you can do that just before you fire the projectile
13 which gives the function a short delay so that you have the effect that
14 you -- that you already described, a projectile will explode a split
15 second later than when hitting the ground or to enter the building and
16 will explode then.
17 JUDGE ORIE: Yes, TF would not be any reference for you to such a
18 kind of detonation.
19 THE WITNESS: No, no, no, Your Honour.
20 JUDGE ORIE: Thank you. Please proceed.
21 MR. RUSSO: Thank you, Mr. President. I also have now a document
22 that I would like to move across the bar table, this being 65 ter 5957.
23 This was on the exhibit list for Colonel Konings. However, it simply
24 demonstrates use of MBRLs fired on Knin on the 4th of August by a
25 different operational group, so I don't see the need to show it to the
2 JUDGE ORIE: Mr. Kehoe.
3 MR. KEHOE: Yes, just the same request if we just MFI it, and I
4 can take a look at and just report back quickly.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: Your Honours that becomes Exhibit P1277, marked
7 for identification.
8 JUDGE ORIE: And it will keep that status for the time being.
9 Please proceed, Mr. Russo.
10 MR. RUSSO: Thank you. If we could please have Exhibit P64.
11 Q. Now, Colonel Konings, I'm going to show you a document which was
12 prepared by the senior UNMO in Knin approximately two weeks after the
13 artillery attack and ask you for your comments on the document.
14 Now, first have you had a chance to review this document prior to
15 coming to court today?
16 A. I have -- I have had the opportunity to study this document, yes.
17 Q. And I'd like to focus in particular on paragraph 2 and ask you --
18 MR. KEHOE: Excuse me, counsel if I have the reference in the
19 report where he discusses this.
20 MR. RUSSO: There's no reference in the report.
21 MR. KEHOE: There's no reference in the report. My
22 understanding, Judge, is if we were talking for expert opinion on
23 particular issues that has to be somewhat reflected in a report. I was
24 interested to note during the preparation of both reports that some
25 months and months and months apart that this document had not been
2 JUDGE ORIE: Could we first ask: When did you see this document,
3 Mr. Konings.
4 THE WITNESS: In the preparation of -- together with the OTP.
5 The OTP has showed me this document.
6 JUDGE ORIE: A couple of days ago.
7 THE WITNESS: No, no, no.
8 JUDGE ORIE: A long time ago.
9 THE WITNESS: Several times in our preparation phase and that
10 preparation phase runs already well, more than a year.
11 JUDGE ORIE: Yes. Mr. Russo, have you invited Mr. Konings to
12 comment on this.
13 MR. RUSSO: Your Honour, Colonel Konings' comments on this are
14 included in the supplemental information sheet. The proofing note which
15 came out of the proofing section between 26th and 28th of November.
16 JUDGE ORIE: Yes. We haven't seen the proofing notes.
17 Mr. Kehoe.
18 MR. KEHOE: It's an interesting -- I notice -- a proofing note.
19 This is a document that obviously has been or was received from the
20 Prosecution and obviously has been central of this case going back to, I
21 think, to March. It was not disclosed in his -- various reports. The
22 last of which I note was filed by the Office of the Prosecutor on the
23 30th of October, 2008. It looks as if we are getting yet another
24 undisclosed expert opinion, and I don't think that putting it in a
25 supplemental information sheet suffices. Certainly not under Rule 94
2 [Trial Chamber confers]
3 JUDGE ORIE: The Chamber will allow Mr. Russo to put this
4 question to the witness. If it causes any further need for the
5 preparation of cross-examination, the Chamber would like to know. The
6 Chamber does not exclude for the possibility that this report, this
7 specific report, that the specific relevance of it rather than to be part
8 of the report in its entirety came up at a later stage.
9 Mr. Russo you may proceed.
10 MR. RUSSO: Thank you, Mr. President.
11 Q. Colonel Konings, I would like to focus -- or I would like you to
12 focus on paragraph 2 and tell the Chamber whether the information which
13 is reported here, assuming, of course, that it's accurate, whether that
14 information would change the opinions you have expressed in your addendum
15 regarding the artillery attack on Knin.
16 A. Well, it describes the fact that the conclusion of the UNMOs was
17 that shelling was, in general, concentrated against military objectives.
18 We have discussed various military objectives throughout the city and
19 that another conclusion is that the damage caused by shelling to civilian
20 establishments is concentrate to the close vicinity of military
22 That seems to be logic to what I have tried to explain is that
23 once you start shelling inside a close confined civilian area, small
24 military targets, rather small military targets that this is what happens
25 that rounds not only on military target but in the civilian area around
2 And that says that the use of artillery in such an area may not
3 be the best choice to do.
4 Q. Thank you. Now, moving to paragraph 3 where it indicates that a
5 block of flats is count the as one figure. And further down it indicates
6 that 21 buildings were found to have been severely damaged by shelling
7 and an additional 23 buildings were found to have been slightly damaged
8 by shelling.
9 Can you tell the Chamber whether this amount of damage changes
10 your opinion that you have expressed about whether the artillery attack
11 should have taken place on the 4th of August?
12 MR. KEHOE: If I may, Judge, with all due respect.
13 JUDGE ORIE: Yes.
14 MR. KEHOE: This is a question that should have been asked to a
15 witness that the Prosecution took off the witness list,
16 Lieutenant-Colonel Hjertnes, who could explain what he observed and what
17 his UNMOs observed in this. We are talking about a question that is
18 completely in the abstract without any frame of reference and fairness to
19 the witness to what exactly Lieutenant-Colonel Hjertnes is talking about
20 when he is talking about these buildings. They could have asked the
21 proper person the question. They chose not to. And the 23 buildings are
22 those military buildings? Are they civilian buildings? It doesn't say
24 MR. RUSSO: Your Honour, I don't know that it is necessary to get
25 in these issues with the witness on the stand. But the Court will recall
1 that we did call several of the UNMOs who actually conducted the survey,
2 and again they said that Lieutenant-Colonel Hjertnes did not, himself,
3 conduct the survey. They conducted it. They provide information about
4 the fact that they couldn't get into any of the military installations
5 and they didn't know which particular targets Lieutenant-Colonel Hjertnes
6 was referring to in paragraph 2.
7 All of that aside, I'm simply asking the witness to offer his
8 opinion whether this level of damage, as it is clearly stated on the
9 document whether it seems to change his opinion about whether the attack
10 should have taken place and how appropriate it was.
11 [Trial Chamber confers]
12 JUDGE ORIE: Mr. Kehoe, first of all, this witness cannot testify
13 about the accuracy of the observations in this report.
14 The Chamber does not fully understand your objection because the
15 opinion of the witness is as it is now. Mr. Russo invites him to see
16 whether this changes his opinion. Well, there are two possible answers.
17 One is yes. And, of course, we wouldn't know whether that would be in
18 favour of the Defence, but it tends at least, I understand the question
19 to be, would this mean that -- well, that the opinion of the witness
20 about the appropriateness of using this weapon system would change and in
21 view of the opinion he expressed on the matter it -- I would say I would
22 expect it to be more favourable to the Defence.
23 The other answer is that it doesn't change anything and matters
24 are as they are. Although we do not fully understand the purpose but in
25 view of the extent to which the question and the answer to it, at this
1 moment, assists the Chamber, we will not ask the witness to answer the
3 Please proceed.
4 MR. RUSSO:
5 Q. Do you need me to repeat the question, Colonel Konings?
6 JUDGE ORIE: No. Well, the witness is not invited to answer the
7 question then there is no need to repeat the question.
8 MR. RUSSO: My apologies, I misread.
9 In that case, Your Honour, I have a video to show the witness it
10 is quite lengthy, approximately it is between 15 and 20 minutes. I don't
11 know if the Court would prefer a break and then play the video or --
12 JUDGE ORIE: Twenty minute would bring us to the break and would
13 give an opportunity to Mr. Konings to consider what he has seen over the
14 break and then also to ask whether there are any specific portions he
15 would like to see again. So I think it would be the right thing to do is
16 to play it, then have a break, and then we put the questions to
17 Mr. Konings.
18 MR. RUSSO: Thank you, Mr. President. We'll be playing a clip
19 from 65 ter 3759 and we'll play it via Sanction.
20 JUDGE ORIE: Yes. There is one other matter. Questions to be
21 put after a 20 minutes' footage might ask again for looking again at
22 certain details. Do you have a list somewhere that you can easily find.
23 MR. RUSSO: I'm not going to be asking about particular portions
24 but in general and for the Court's information I'm going to be asking the
25 witness about what he hears on the video if he hears, what his
1 interpretation is of the sounds of the artillery attack.
2 JUDGE ORIE: Then nevertheless what he hears at that moment of
3 the 20 minutes is still to be seen but let's look at the video and let's
4 listen to the video.
5 MR. KEHOE: Mr. President, could we just have a source of this
6 video. Which video is this?
7 MR. RUSSO: This is the Zastava film. Its's 65 ter 3759.
8 MR. KEHOE: I believe th Zastava film uncut has been put into
9 evidence to some degree, that's what i thought it was. There have been
10 two versions of the Zastava film put into evidence. One that was an
11 edited version by the Prosecution, one that was more fullsome that was
12 admitted, I forget the name of the witness, but I believe it was a
13 protected witness. Is it the same video that was here before or is this
14 a different?
15 MR. RUSSO: It's the same video. There are portions of the
16 larger section which I took out where someone is walking through an
17 apartment building and that kind of stuff. This is a shortened clip.
18 JUDGE ORIE: It is a selection of portions from the complete
19 video from what I understand, which is in evidence.
20 MR. RUSSO: That's correct, Your Honour. I can provide the time
21 references. It's actually broken into two clips from 1 minute 45 seconds
22 to 5 minutes 52 seconds of the Zastava film then it picks up again at 7
23 minutes 2 seconds and goes to 21 minutes 35 seconds.
24 JUDGE ORIE: Yes. Does that provide sufficient information
25 Mr. Kehoe?
1 MR. KEHOE: I believe the disclosure was on Zastava film. My
2 question was whether or not it was something that was in evidence already
3 that we were just re-repeating, if this is in fact a [Overlapping
4 speakers] ... I'm still not clear on that.
5 JUDGE ORIE: Yes, it's a new selection and perhaps it is very
6 practical rather than to at a later stage to invite people to find
7 specific portions to have it as a separate -- doesn't take any further
8 paper or just electronic capacity.
9 Please proceed.
10 [Videotape played]
11 MR. RUSSO:
12 Q. Colonel Konings --
13 JUDGE ORIE: Mr. Russo, you said it was 4 minutes and 14 minutes,
14 and which makes 18. I don't remember that I have seen 18 minutes of
15 video footage until now.
16 MR. RUSSO: It could have been that the second clip was cut
17 short, Your Honour; however, I think gotten --
18 JUDGE ORIE: To avoid confusion, the times you gave are not the
19 times as we see them on the videos because they have -- this is an new
20 time starting at zero seconds. So actually you have not fully played
21 what you said you would play.
22 Please proceed.
23 MR. RUSSO: That's correct, Judge.
24 Q. Colonel Konings, based on what you could hear of the shelling and
25 specifically the rate of fire, are you able to offer the Chamber any
1 insight into what kind of fire this is, if it is the destruction fire,
2 neutralisation fire, or however any other kind of fire that you can
4 JUDGE ORIE: Mr. Kehoe.
5 MR. KEHOE: Excuse me, Your Honour, I mean frankly that type
6 of -- this particular piece of information from what we just say is just
8 JUDGE ORIE: We do not know. Let's wait and see what the witness
9 can tell us about -- apparently you're talking about frequency of the
10 sounds heard, perhaps the type of sounds heard, I have no idea. But
11 whether it will be speculation or it is still to be seen.
12 And may I take it, Mr. Russo, that your' referring to the first
13 portion of the video or to all of them because then we night need -- I
14 had -- saw quite huge portions of the second part were almost without
15 sound. So, therefore, could you please direct the witness to the
16 portions you intended to refer to.
17 MR. RUSSO: Yes.
18 Q. Specifically referring to the first portion of the video, the
19 portion which was for the most part filmed in the dark. Can you offer
20 the Chamber any insight specifically with respect to the rate of fire,
21 what type of fire that is, in your opinion?
22 A. You could notice different types of rates. First of all, you
23 could note they were more in the background a higher rate of fire,
24 several explosion short to each other, five, six, seven, something like
25 that. That meet to a -- let's say a use of a fire for effect on a
1 certain target. Of course, I do not know which target and exactly where
2 it was in the environment. It was more on the background.
3 And the other observation that I can make is that many rounds
4 were fired as single rounds. So I couldn't hear any connection to a
5 concentrate rate of fire that you expect to be fired according to the
6 details that we saw in the target list where you see 50 rounds on a
7 certain target in a short time-frame because otherwise the effect on the
8 military target is gone if you [indiscernible] that time frame.
9 So on one hand, I could observe a kind of fire for effect on a
10 target, let's call -- let's assume a military target surrounded by
11 numerous single rounds and many of them were artillery rounds because
12 that's what I can recognise from the sound. And, unfortunately, I have
13 recognised that in Sarajevo
14 that I can give you, and those single rounds, it's hard for me to
15 establish them to a -- to a certain target. I cannot do that. And if I
16 have to classify those rounds, I would say they are interdiction. So
17 making the life of people in the city including the military, well,
18 chaotic not knowing where the next round will fall.
19 Q. And can you tell the Chamber what effect on a military target
20 firing single rounds at it will do as opposed to a fire for effect?
21 A. Well, I can assure you that every round will have its effect. No
22 matter how trained you are, no matter how experienced you are, the use of
23 artillery and mortar rounds in close proximity makes you think about what
24 to do there and either to stay there, yes or no.
25 But if you are in a protected area, in a building that can stand
1 against those single rounds, trained soldiers probably will take the
2 decision to stay and wait until the next things to happen. Untrained
3 soldier, less trained soldiers, and civilians might be brought to chaos,
4 to panic, to leave that location, to try to get to another location
5 because if do you not know what the effects can be, if you do not have
6 the idea what interdiction brings to you, then you might take the
7 decision to leave that area.
8 Q. Thank you.
9 MR. RUSSO: Mr. President, I have no further questions for the
11 JUDGE ORIE: Thank you, Mr. Russo.
12 Then we'll first have a break. What will be the sequence after
13 the break.
14 Mr. Kehoe.
15 MR. KEHOE: Yes, Your Honour.
16 JUDGE ORIE: You will be the first one.
17 Perhaps we already ask the witness to leave the courtroom. We'd
18 like to see you back after the break, a break of 25 minutes. And then
19 I'd like to inquire with the parties on time estimates.
20 [The witness stands down]
21 JUDGE ORIE: Mr. Kehoe.
22 MR. KEHOE: Yes, Your Honour, I have about three days of cross.
23 MR. CAYLEY: We don't have any questions for this witness.
24 JUDGE ORIE: Mr. Kuzmanovic.
25 MR. KUZMANOVIC: Your Honour, depending on what Mr. Kehoe asks,
1 half a day to a day for me.
2 JUDGE ORIE: Half a day to a day.
3 As always, the Chamber, in granting the time, and the Chamber, of
4 course, is aware of the importance of this expert, this witness, we'll
5 also -- as always, keep an eye on the -- how effective and how efficient
6 the cross-examination is conducted.
7 We will resume at ten minutes past 4.00.
8 --- Recess taken at 3.45 p.m.
9 --- On resuming at 4.14 p.m.
10 JUDGE ORIE: Mr. Konings, you will now be cross-examined by
11 Mr. Kehoe. Mr. Kehoe is counsel for Mr. Gotovina.
12 Please proceed, Mr. Kehoe.
13 MR. KEHOE: Yes, thank you, Mr. President.
14 Cross-examination by Mr. Kehoe:
15 Q. Good afternoon, Colonel Konings. It's a pleasure to meet you,
16 sir. Colonel, just a couple of questions, some background questions and
17 then we'll try to dive into your report as quickly as possible.
18 A. Good afternoon.
19 Q. With regard to -- just a couple of items on the preparation,
20 maybe even something before that, with regard to your rank, sir, you have
21 been a lieutenant-colonel since 1992; is that right?
22 A. That's correct.
23 Q. During that period of time, even before that, since you have been
24 working with artillery have you had training in HV tactics and
25 HV armaments, and how the HV or Croatian army operated?
1 A. Not specifically training in HV tactics. We always have been
2 trained in the past, before 1992, in the operations of the Warsaw Pact
3 and after that, of course, we prepare ourselves in the specific operation
4 that we are entering in.
5 Q. Okay. And the Warsaw Pact, of course, was -- the JNA was not in
6 the Warsaw
7 A. No, I do think that the way the JNA operated resembled quite a
8 lot the way that the forces of the Warsaw Pact operated.
9 Q. Okay, sir. I'm not going to through the items that are in your
10 CV, sir.
11 I would like to ask you a question though and it comes from the
12 statement that you gave to the Office of the Prosecutor on 31st of May,
13 2006, in the Dragomir Milosevic case; and if we could just view this via
15 You see the first page, sir, and if we could just go to the
16 second page in the second paragraph.
17 In the first line of that paragraph 2 you note that:
18 "I have had extensive experience with the technical, tactic, and
19 operational use of artillery mortars and in particular and fire support
20 in general. I would not characterise myself as an expert, rather, that I
21 have a good knowledge of mortar and artillery systems, ammunitions, and
22 their operational use."
23 So I'm a little confused by this Colonel which is my I brought it
24 to your attention about now characterising yourself as an expert in - I
25 don't want to put words in your mouth, sir - these forms of artillery.
1 Could you help us out here, sir, as to what you meant as not being an
2 expert as opposed to just being an officer with good knowledge of mortar,
3 and artillery systems, ammunition, and their operational use?
4 A. Yes. I think I can recall exactly what I was stating in that
6 An expert to me that's extraordinary. I don't think that in our
7 army there are experts running around. Maybe an expert in a very
8 specific field of operation like we call it an ammunition expert. That's
9 a guy or a woman who knows everything about a specific area. I rather
10 prefer to call myself a person that knows a lot about a lot of issues;
11 but I hate to call myself an expert because that's not -- I'm not a
12 person to call myself an expert. People around me consider me to be an
13 expert, including my current commanding officer, and including current --
14 previous commanding officers, in so far, they think I'm an expert, that
15 they ask me to extend my retirement because I should have been retired
16 two years ago and apparently they are very glad do have me and they ask
17 me to extent my retirement up to 2011 when I'm 60 years old, so it's just
18 my personality that I do not want to call myself an expert.
19 It's just a personal thing, but I can assure you that persons
20 around me call me an expert in, not only mortar and artillery, but in
21 land operations in general.
22 Q. Fair enough, sir. I hope they're paying you more money?
23 A. No, they don't.
24 Q. Now, sir, when I was looking at your report you noted that you
25 had been given 60 documents prior to the preparation of your first
1 report; is that right?
2 A. I don't recall the exact number whether it was 60 or 50, I have
3 been given numerous document, yes, in preparation of my report.
4 Q. And those documents were given to you by the OTP?
5 A. Yes.
6 Q. And I mean Mr. Russo specifically?
7 A. Not only Mr. Russo. Also Mr. Tieger give me several of these
8 reports and his whole team. So I have received reports under the
9 responsibility I have all the considered either Mr. Russo or Mr. Tieger.
10 Q. Prior to the preparation of your first report, did you review
11 trial briefs in this case?
12 A. What do you mean with trial briefs?
13 Q. Legal documents that were filed by the Office of the Prosecutor
14 and the Defence.
15 A. No. I just concentrated myself on the reports -- on the
16 information that was given to me by the OTP since they had specific
17 questions about those aspects and I, of course, have been looking for
18 information on the ICTY web site in trying to find, and I found, certain
19 aspects of the case -- in general as they are on the Internet web site.
20 Q. And what did you find out on the web site that you found out
21 about the case? Can you help us out there?
22 A. I was just interested in the people that are -- are here and the
23 people that are be -- convicted from certain aspects that they -- that
24 they were doing or not doing in -- in that period. So that I had a -- a
25 clue in who I was -- who we were talking about and I did the same in my
1 preparation for the General Dragomir Milosevic because they -- I don't
2 know the people. I would be happy to meet them in person to have a
3 lengthy chat with them, as professional soldiers between each other and
4 to hear from them what their reason were to do the things as they
5 apparently happened.
6 Q. Sir, let me take a step further with what information you had in
7 your possession. You received these series of documents that are listed
8 in your report. Did you review any witness statements?
9 A. No, I did not review any witness statements.
10 Q. Did you ask for any witness statements for clarification on
11 certain points?
12 A. No.
13 JUDGE ORIE: Mr. Kehoe, if you would not mind, I'd like to
14 clarify one issue which is a bit unclear in the transcript.
15 I think I heard the witness say that people are being convicted,
16 it says conflicted from certain aspects that they were doing or not
17 doing. When you use the word convicted, did you want to say charged
18 with, or convicted means, in legal terms it means that it has been
19 established by a Court. That's not what you wanted --
20 THE WITNESS: I was just trying to find the right word, so my
21 apologies. I didn't mean the word convicted, I just wanted to say they
22 are apparently charged with certain things that they have done or not
23 have done in the past.
24 JUDGE ORIE: Yes, I would like to have that clear.
25 Mr. Kehoe, please proceed.
1 MR. KEHOE: Mr. President, thank you.
2 Q. You did review various military doctrinal manuals during the
3 preparation of your report, be the UN manual -- excuse me, US, United
4 States manual or NATO or manuals that were written by the Dutch army; is
5 that right?
6 A. Yes. I, first of all, I specifically used a Dutch armour field
7 manual or fire support; and secondly I used, of course, not only
8 physical, but in the back of my mind, my knowledge of the rest of the
9 Dutch army field manuals on doctrine on every type of operation. And
10 besides that I, of course, have knowledge of NATO manuals NATO AJP's as
11 we call them, NATO joint publications of various levels; and of course I
12 have some knowledge of US army and UK army documents as well. But did I
13 not specifically use them as a reference for my report.
14 Q. And we will address ourselves during the questioning to some of
15 the items in the manuals. Thank you for that clarification. I would
16 like to ask you this question, Colonel, concerning your first report.
17 Prior to the preparation of your first report, did you understand
18 that the targeting in Knin by artillery was an issue of dispute in this
19 case between the OTP and the Defence? Did you understand that?
20 A. Yes. In the preparation of the case, I can recall -- yes, I
21 understood that -- that there was a dispute going on between both sides,
22 and the fact that I was asked to be, to act as an expert for this court
23 already proves that there is a kind of dispute going on about the use of
24 artillery and mortars towards Knin.
25 Q. My question is a bit more focussed and my question relates to
2 A. Right.
3 Q. Did you know prior to your first report, Colonel, that there was
4 an issue regarding targeting in Knin?
5 A. Well, I tried to say in my former answer exactly the same where
6 you are aiming at. The use of fire support means, includes to me
7 everything. That includes also targeting, decision-making, use of
8 [indiscernible] service, delivery means; so when I talk about fire
9 support, I talk about the whole system and not about -- I cannot
10 disconnect various elements from fire support because they're all
11 connected, and fire support does not work when you take out one of the
13 Q. Let's sharpen this question a little bit and you didn't discuss
14 targeting issues -- the specific targeting issues in your first report,
15 did you?
16 A. I was talking about targeting in general but not on specific
17 issues concerning Knin, no.
18 Q. Is there some reason why in your first report you didn't discuss
19 individual targets in Knin?
20 A. Why I did not do that.
21 Q. Did not that?
22 A. That is the approach that was followed by OTP. I was first, I
23 can't recall exactly when that happened but on a certain moment in time,
24 I have been approached by the OTP whether I was able to provide them as
25 an expert the use of fire support, the application, the -- of fire
1 support and that's where my first report was aiming at. It was
2 specifically asked by OTP to write generic report about the -- all the
3 ins and outs, all the aspects of fire support in general. So in that
4 report, the OTP did not ask me to concentrate on targeting issues
5 concerning Knin.
6 Q. Now, was that first report written with the idea - and that idea
7 coming from the OTP - that you would be asked to write yet another report
8 dealing with targets in Knin?
9 A. They told me this was a specific case concerning Knin but in
10 their preparation they first needed that first report, and I think that
11 they have built up it step by step in asking me to come up later on with
12 a -- an extra report which concentrated on Knin, but I do think that was
13 their approach; and I have just answered their questions in whatever they
14 ask me to do.
15 Q. And please don't misunderstand me. I realise that you were just
16 following what you were requested to do. I don't want you to
17 misunderstand my question. But I guess my last question on this is:
18 When you were doing your first report, and you didn't discusses the
19 targets that you put in your second report, when you were filing your
20 first report was that being written with the understanding that you were
21 going to file yet another one sometime down the line?
22 A. Yes. Because that was told by me -- that was told to me by the
23 OTP that you knew the case where it was all about. But the way the OTP
24 was operating is that they first needed a general understanding of what
25 fire support in general does and cannot do, and that's the aim of the
1 first report. And then later on, the OTP built from that report, they
2 came with the focussed questions on the targeting issues in my addendum.
3 Q. Who told you when you were doing your first report that you were
4 going to be asked to do a second report detailing this targeting?
5 A. Well, as far as I can recall because that is some one and a half
6 year ago that that must have been Mr. Tieger.
7 Q. If I may move to another subject, Colonel. And I would like to
8 talk generally about some issues that you discussed during direct
9 examination and certainly some questions that were asked by Judge Orie
10 concerning the bases of your opinion and the framework for your opinion.
11 And you have had training, sir, during the course of your career in the
12 laws of armed conflict; have you not?
13 A. Yes.
14 Q. And you -- you all of a sudden -- not all of a sudden, that has
15 been incorporated in your career, and you use at least portions of that
16 during your training that you done during your career; isn't that right?
17 A. Yes. The laws are the basis for the -- in the Dutch state for
18 the -- for the armed forces.
19 Q. Okay. Now, just by -- before we move on, have you ever written
20 any legal treatise or anything on the laws on armed conflict?
21 A. No.
22 Q. When you were preparing your expert report, did you consult any
23 academic or military legal journals in the preparation of that report?
24 A. No. I have been using the documents where I referred to, where
25 it gives the explanation on legitimacy as far as I need to know, and I
1 have had a short consultation with a colleague of mine who is a legal
2 officer in the Dutch army.
3 Q. Now, Colonel, you understand based on the training that you had
4 that the laws on armed conflict are of a universal application and apply
5 to conflicts throughout the world wherever they may be. You understand
7 A. I understand that armed --that the laws of armed conflict and
8 also humanitarian laws as they are laid down in various agreements that
9 they are applicable for every country, yes, everywhere in the world.
10 Let's say, let's correct myself, they had should be applicable.
11 Q. Exactly. That is the ideal, of course, that they should be.
12 And as you move away from that, each individual country or NATO,
13 the United States, they have their own military doctrine within each
14 country and possibly even with NATO, don't they?
15 A. There is, of course, every country has its own doctrine, and I
16 only can confer to NATO. NATO has also common doctrine to which all
17 countries -- which is up to the countries whether they ratify that,
18 implement that, yes or no. That's the freedom that countries have inside
20 MR. KEHOE: I would like to bring up 1D65-0127.
21 Mr. President, if I can just digress for one second, not on the
22 questioning, but these two documents that I'm going to be referring to
23 1D65-0172 and 1D65-0227, I will be flipping back and forth to them over
24 the next various segments and at the risk of driving Mr. Monkhouse or the
25 registry crazy it might be difficult time-wise to flip back and forth.
1 So with the Chamber's permission, if I could give hard copies to
2 the Chamber and the other side and, of course, the witness, it may be
3 easier to move through this a bit more expeditiously with hard copy as
4 opposed to waiting at every point for this to come up on the screen.
5 JUDGE ORIE: Yes, that might be very practical although for the
6 Chamber, of course, we can fix one of the documents in our own system and
7 look at the other screen for the other one; so therefore with some
8 inventivity [sic] we might resolve the problem but it is certainly
9 appreciated that you are concerned about our well-being.
10 MR. KEHOE: It's just, I was talking and thinking about, Judge --
11 it's just this flipping back and forth, and putting it back and forth on
12 the screen, the time-lag becomes difficult.
13 Q. Colonel, this is the allied joint doctrine. Are you familiar
14 with this document?
15 A. Yes, I am.
16 Q. Okay. Just wait for my colleagues to -- all set? Okay.
17 I'd like to turn to page 2 of 16. I believe that maybe the next
18 page on this, if I have uploaded it properly.
19 MR. KEHOE: Can we keep going, just ... I'm looking for
20 section 0257.
21 It's page 18.
22 Q. Now in the bottom of this page we are talking about the concept
23 of doctrine, Colonel.
24 A. Yes.
25 Q. And 0257, I'll just read it briefly. And if we can go down to
1 the bottom of this page, Mr. Registrar. It is at 0257, [indiscernible]
2 and I will be turning over to the next page:
3 "Doctrine is defined as fundamental principles by which military
4 forces guide their actions in support of objectives. It is authoritative
5 but requires judgement in application. The principle purpose of doctrine
6 therefore is provide alliance armed forces with the framework of guidance
7 for the conduct of operations. It is about how those operations should
8 be directed, mounted, commanded, conducted, sustained and recovered. It
9 is not, therefore, about the past nor is it about the medium or long-term
10 future. It is about today and the immediate future. It is dynamic and
11 constantly reviewed for relevance."
12 Before we -- I ask you a question about this, let me just go down
13 to the next section which is the relationship between policy and
15 JUDGE ORIE: Perhaps for the public to follow it, we could move
16 to page 2-17. When you refer to page 18, it was the page numbering in
17 the e-court system; whereas the page numbering in the document itself
18 starts at 2-16 and we're now at 2-17.
19 Please proceed.
20 MR. KEHOE: Thank you, Mr. President.
21 Q. At 050, and if we just go to the second sentence:
22 "Other factors influence the development of doctrine. It
23 primarily evolves in response to changes in policy, war fighting
24 compatibilities, and/or force employment considerations. Thus it is
25 recognised that policy as agreed by the highest national authorities
1 normally leads and directs doctrine."
2 Now, Colonel, these -- it's your understanding, sir, that NATO
3 comes up with a doctrine on how, generally speaking, NATO is going to
4 operate within the confines of the law of armed conflict, aren't they?
5 A. It is not only a generic approach because this document, the
6 HVO 1 Charlie, is only the first document of a complete combination of
7 documents that are underlying this document. And the further you go down
8 in that tree of documents, you will find more details and more specific
9 things. This is only the start of it, this is very generic, and this is
10 giving a broad guideline to all the countries that have ratified and
11 implemented this document.
12 Q. If I can put this in somewhat graphic terms, if we have the law
13 on armed conflict and this would be a subset, if you will, of the law of
14 armed conflict where NATO, with this doctrine, is trying to deliver how
15 NATO is going to operate, and then you look down, as you noted, to the
16 subsequent items to get more and more specific as time moves on -- as the
17 issue moves on?
18 A. Well, this document, Mr. -- Defence counsel, this document
19 exactly does what it describes in what you were reading out before. This
20 document sets out principle purpose of doctrine, generic principles of
21 doctrine inside NATO countries; nothing more nothing less. It gives you
22 the framework for guidance of operations and it does -- it gives
23 commanders in the field how to direct, mount, command, conduct, sustain,
24 and recover operations. And that is including everything because later
25 on in the same document, you will find the principles of joined and
1 combined operations, and one of the principles is legitimacy.
2 And there NATO says what they think about legitimacy, and I
3 assure you that inside various NATO working groups where I am a member
4 of, we have huge debate about the application of laws, and I assure you
5 as well that we are not able to solve that completely so every country on
6 its own has its national interpretation on humanitarian law. And
7 especially our debates with representatives of the United States gives us
8 a lot of headaches about how to bring up the international law inside
9 military documentation.
10 And what is being described in this document may be differently
11 described in documents of national states, and I assure you that some
12 words you will not find here, you will find in the Dutch national
13 doctrine; and as I stated before, the Dutch national approach and the
14 Dutch doctrine of my army is, for me, the most important thing, no matter
15 what NATO says about that.
16 Q. You take me to exactly my next point with regard to the
17 difference in doctrine with various countries. We noted previously that
18 the law of armed conflict remains the same. We can have debates about
19 what various things mean, but the law remains the same. But you noted
20 that the Dutch doctrine could be different than US doctrine; and the
21 Dutch doctrine could be different than the Russian doctrine or the
22 Israeli doctrine; isn't that right?
23 A. We see proof of that currently on the television through the
24 Israeli behaviour or the Israeli use of violence against Gaza
25 something that I cannot understand. Maybe that's off the record, but I
1 really cannot understand how you work your way through a
2 civilian-populated area as it is done there; and the Israeli have
3 doctrine, and I don't know that.
4 Q. So the answer to the question as we look at various countries,
5 the various countries have different doctrine?
6 A. Well, the -- countries are allowed to specify their doctrine to
7 their own needs which means in the alliance that there is an generic
8 basis for doctrine which is this AJP 01, and I assure you that this
9 AJP 01 is ratified and implemented by all countries; but that does not
10 hold countries back. Even if they say we implement this to do it on
11 those things that they want to do. I'm quite sure that every country
12 does it. So doctrine is a generic basis for understanding of operations,
13 but it does not mean that they there will be no difference in doctrine
14 between countries.
15 Q. I understand, sir?
16 A. In the Netherlands
17 implemented in our national doctrine.
18 MR. KEHOE: Your Honour, at this time, we'd like to offer into
19 evidence 1D65-0172. We will be discussing this further but ...
20 JUDGE ORIE: Mr. Russo.
21 MR. RUSSO: No objection, Your Honour.
22 JUDGE ORIE: Mr. Registrar.
23 THE REGISTRAR: Exhibit D1247, Your Honours.
24 JUDGE ORIE: D1247 is admitted into evidence.
25 Mr. Konings, may I ask you to make a short break once Mr. Kehoe
1 has formulated his question so as for the transcribers to be able to
2 follow also your answer.
3 THE WITNESS: I'm sorry, Your Honour, I will try to remember
5 MR. KEHOE: Apparently it's my fault here as well. I've been
6 here a lot long than you have and I still do it. My apologies to the
7 translation booth. And I endeavour together to do our best.
8 Q. Now we have talked about the arms of armed conflict, and we have
9 talked about doctrine and you are familiar with yet another concept, are
10 you not? Known as the rules the engagement, are you not, sir?
11 A. We use in operation rules of engagement, yes, but they differ
12 from operation to operation.
13 Q. That's exactly what we want to get at.
14 Just give me an idea and before we do that, if I can just show
15 you part of your manual which is 1D65-0251. You're familiar with this
16 document, are you not, sir?
17 A. I am familiar with this document, and I have to say to you, as
18 well, that this document is well, in the process of being rewritten on
19 the movement so there may be differences in what is in this document and
20 what we currently are developing and teaching to our people.
21 Q. If there is any difference, Colonel, just let us know and the
22 Trial Chamber -- and, of course, we would appreciate it.
23 I would like to turn our attention to this document, and this is
24 a Dutch document that's been translated into English from the
25 Royal Netherlands
2 MR. KEHOE: If we can just scroll down a little bit. That's it.
3 Just the rules of engagement, I'm sorry, at the top on section 205.
4 Q. It notes that:
5 "The rules of engagement provide guidelines for commanders
6 regarding the nature and the methods for the use of force within the
7 political framework. They are designed to ensure that political
8 authorises can control the use of force within the political and legal
10 Now, Colonel, you told us before we got into this that rules of
11 engagement change from situation to situation. Can you explain that just
12 in a little bit more detail and maybe you can give us some concrete
13 examples so we can get a handle on it just a little bit better.
14 A. No, I have to correct you. They are not changing from situation
15 to situation. They are fixed for a complete operation. So we have one
16 set of rules of engagement for the whole operation in Afghanistan, and
17 they go down in exactly, for example, in the permission that you have
18 either to use close air support against a certain target or you have to
19 make a choice for other means or that you even are allowed to attack in
20 certain areas. So they give you exactly building from the basis of
21 doctrine they give you -- and the translation of political guidelines
22 which may even be different from nation to nation. They give you the
23 guidelines that as a commander in the field have you to operate. So you
24 have on all hands, you have your doctrine, all your manuals, and besides
25 that you have laid up on you by your own government the rules of
1 engagement and there is also -- that is done by a national authority.
2 So our own troops in Afghanistan
3 rules of engagement, and they are quite often more strict than the rules
4 of engagement built up by a Joint Force Commander; and that can apply the
5 use of violence in certain areas, the way how have you to handle
6 refugees, how you have to handle if you make prisoner of war what you
7 have to do with them, who is responsible for taking care of them, who is
8 transporting them. I gave you the explanation about the collateral
9 damage estimate. Collateral damage estimates as we use them in
11 strict guidelines about, for example, use of weapons systems, whether yes
12 or no in certain circumstances.
13 Q. So if I can just take what you just said. For instance, in
15 of engagement as to how the Dutch armed forces are going to operate.
16 A. That's correct.
17 Q. Now, let's take your situation in Afghanistan and would those
18 rules of engagement be different than the deployment of the Dutch army in
19 say SFOR in Bosnia
20 A. They were a different set of rules of engagement because the
21 operation was a different operation. It was in a different circumstances
22 because what is absolutely crucial when you go into an operation and when
23 you set a -- when you build a set of rules of engagement is that you
24 understand the operating environment that you are going into it and with
25 the operating environment, I do not only mean the military context of
1 that. I mean everything. And because we have to realise that the
2 military instrument is just a small portion of what is happening around
4 We are a political instrument used by the politicians and we have
5 the unique ability to be able to use violence against other people,
6 against other -- against infrastructure but we are only a part of a whole
7 system what we call the comprehensive approach. And for that reason,
8 each operation that we are involved is different.
9 So for each operation that we are involved, the standard set of
10 doctrine is applicable. So the AJP 01 or the AJP 3 or the AJP 3.2 or the
11 field manual that you showed me from our army is applicable in every
12 operation that we do. But it is -- well, let's say spear pointed,
13 pointed to that operation to make the specific circumstances work, and
14 that is -- was very different rules of engagement in the period after
15 1995 than what we have in Afghanistan
16 1995, UNPROFOR had its own rules of engagement which described exactly
17 what UNPROFOR was allowed to do, yes or no.
18 JUDGE ORIE: Mr. Konings, the answer to the question therefore is
20 THE WITNESS: I'm sorry, Your Honour, I tried to keep short.
21 JUDGE ORIE: The only thing that was asked of you whether these
22 rules of engagement in Afghanistan
23 after 1995.
24 If Mr. Kehoe wants to know more, he will not hesitate to ask you
25 the further reasoning behind your answer. But could you please focus
1 primarily what he asks you because your answers tend to be longer and
2 longer, and Mr. Kehoe as he knows is under certain time restrictions.
3 THE WITNESS: I will try to keep myself short that's my --
4 JUDGE ORIE: If at the end, you think that you had not had an
5 opportunity to tell us something very important for you, you will have an
6 opportunity to add anything to your previous answers.
7 Please proceed, Mr. Kehoe.
8 MR. KEHOE: Yes, Mr. President.
9 Q. Just one question based on your last answer. The rules of
10 engagement for SFOR after 1995 in Bosnia
11 they not, compared to the rules of engagement for the Dutch army in
13 A. Well, I cannot give you an answer, yes or no, because then I
14 would need to be capable to compare those to each other because I do
15 think that in certain aspects the rules of engagement in Afghanistan
16 as restrictive as they were in the SFOR period as well, especially when
17 it concerned our attitude against civilian population.
18 MR. KEHOE: Your Honour, at this time, we'd like to offer into
19 evidence 1D65-0251.
20 MR. RUSSO: No objection, Your Honour.
21 JUDGE ORIE: Mr. Registrar.
22 THE REGISTRAR: Exhibit D1248, Your Honours.
23 JUDGE ORIE: Is admitted into evidence.
24 MR. KEHOE:
25 Q. Colonel I would like to show you a manual it is from the
1 United Kingdom Ministry of Defence, the manual of the law on armed
2 conflict. That would be 1D65-0142. If I can just bring that up on the
3 screen, on the first page.
4 JUDGE ORIE: Before we continue, I do not see any translation
5 uploaded. It's in English. That's --
6 MR. KEHOE: I do believe that is accurate, Mr. President, on the
7 other document. I got these manuals I believe -- I'm not sure if it's
8 this one --
9 JUDGE ORIE: No, just to establish that where usually -- of all
10 of the evidence we have two languages available but this is not the case.
11 I do not know what the position of the other Defence teams will be in
12 this respect, and I'm not saying about the one word on the cover page
13 which is still in Dutch even.
14 I hear of no objections, so therefore we leave it for the time
15 being as it is. And I take it that this is a waiver of applying for a
16 translation. The relevant parts have been read to the witness.
17 Please proceed.
18 MR. KEHOE:
19 Q. Just looking at this particular volume, are you familiar with
20 this, this volume?
21 A. No, I'm not.
22 Q. Let's just talk a little bit about the content.
23 MR. KEHOE: If we can move to the next page. I believe we have
24 uploaded one page, page 53. And if we could focus on the top of that
25 page, Mr. Registrar. If we can just scroll up a little bit.
1 Q. And I recognise that this is directed to UK forces.
2 If you take a look at the first sentence:
3 "The law of armed conflict must not be confused with rules of
5 Down to the next paragraph:
6 "The law of armed conflict derives from, and is part of
7 international law, and is to a large extent universal and settled in its
8 application. Rules of engagement are directives for operational commands
9 and will be subject to constant review within the constraints of the law,
10 according to the political and military assessment of national or
11 multi-national interests as it relates to the mission to be accomplished
12 and the circumstances facing the force. Rules of engagement reflect not
13 only legal consideration but also a wide range of other concerns such as
14 the need to avoid destroying certain installations which is sought to
15 capture intact, to avoid politically damaging criticisms, to harmonise
16 practice among allies and to prevent so-called friendly fire."
17 Colonel - and I realise that are you not a lawyer - is that your
18 general understanding of the relationship between the law on armed
19 conflict and the rules of engagement?
20 A. Yes, I do think that this first part of the publication
21 summarises it a very clear way.
22 MR. KEHOE: Your Honour, at this time, we'll offer 1D65-0142 into
24 JUDGE ORIE: Mr. Russo.
25 MR. RUSSO: Your Honour, I'm not sure if we have the full
2 MR. KEHOE: [Microphone not activated] [Overlapping speakers] ...
3 MR. RUSSO: Is the full document being moved in [Overlapping
4 speakers] ...
5 MR. KEHOE: No, just this page.
6 MR. RUSSO: That's fine, Judge, I just want to reserve the
7 opportunity to move in other parts.
8 JUDGE ORIE: Yes, Mr. Registrar.
9 THE REGISTRAR: Your Honours, that becomes Exhibit D1249.
10 JUDGE ORIE: D1249 is admitted into evidence, and is limited, at
11 this moment to page 53 of the manual of the law on armed conflict.
12 MR. KEHOE: If I could bring up a -- may I proceed, Mr.
13 Registrar? If I can bring up a visual for us at 1D65-0256.
14 JUDGE ORIE: Here, by the way, the same is true as far as
15 translations is concerned.
16 MR. KEHOE: Yes. If you can just blow that up just a little bit.
17 Maybe a little less so. Apologies. Okay. That's good. Okay.
18 Q. Colonel, can you see that okay?
19 A. Yes.
20 Q. What the Defence has attempted to do here is, based on your
21 experience, is to try to with this graphic demonstrate the permissible
22 ranges of conduct in war, the most expansive, of course, being the laws
23 of armed conflict and then moving to something less expansive which is
24 the military doctrine, be it NATO or country to country. And then what
25 you just referred to as the rules of engagement. Those rules that you
1 use in a specific deployment or operation.
2 Would this accurately reflect your understanding of the
3 relationship between the laws on armed conflict doctrine and the rules of
5 A. Well, I'm not quite sure that I understand the relationship
6 through this drawing. It just says to me -- I'm not sure where you're
7 aiming at, at describing a relationship now.
8 Q. If we start from the premise that the outer limits of a less
9 permissible in law is guided by laws of armed conflict, and then a
10 country or an entity such as NATO's individual doctrine is operating
11 within that. And then as you mentioned, when you talked about moving
12 down the chain you then have more rules such as rules of engagement in a
13 particular operation which will operate within doctrine, would this chart
14 not actually reflect that progression from what is allowed most
15 expansively under the law to the individual doctrine of a country and
16 then to the rule of engagement concerning a particular operation.
17 A. Well, in itself not completely, I think, because we already saw
18 before that rules of engagement are not specifically only aiming at -- at
19 lawful aspects. They are aiming at -- they can aim at many other things
20 to arrange certain, certain tricky points in an operation.
21 So yes, of course, there is a connection with -- I'm sorry with
22 the law of armed conflict, and I do see that doctrine is -- is within
23 that law of armed conflict. I fully agree with you there. But I'm not
24 quite sure that I draw the rules the engagement in that way that it's
25 only confined within doctrine. It is also -- it is also outside I think
1 the law of armed conflict. You arrange many national things with that,
2 with the rules of engagement. They may have to do with the law of armed
3 conflict. They may have to do with doctrine, but they may also have to
4 do with other aspects of an operation.
5 So I can imagine -- I can understand why you draw it in this way
6 so ...
7 Q. Putting aside the aspects of the rules of engagement that don't
8 apply to the use of the military force that is in a particular location
9 on a particular operation. Just put aside -- I understand that you're
10 talking about something that could be political, something that could be
11 well outside the realm of a military's operations. But within a
12 particular military operations, you would agree with me that the rules of
13 engagement by the Dutch army in Afghanistan
14 doctrine, and that military, Dutch military doctrine, is within the law
15 on armed conflict?
16 A. Well, the latter I agree with you, that the military doctrine is
17 inside the law on armed conflict. But I'm still not agreeing with what
18 you say about the rules of engagement. Because a military operation is
19 not only a military thing. A military operation consists --
20 JUDGE ORIE: Mr. Konings, may I?
21 THE WITNESS: I'm sorry.
22 JUDGE ORIE: Part of the question was, and that's how Mr. Kehoe
24 "Putting aside the aspects of the rules of engagement that don't
25 apply to the use of military force."
1 So the question is limited to the rules of engagement, to the
2 extent that they cover the use of military force. Would you then agree
3 that the rules of engagement in that respect should be within --
4 THE WITNESS: Yes, I agree.
5 JUDGE ORIE: -- the boundaries of doctrine and that the
6 boundaries of doctrine would be -- the doctrine would be within the
7 boundaries of the law of armed conflict.
8 THE WITNESS: I understand what are you saying, but I still have
9 troubles in phrasing my answer in this.
10 JUDGE ORIE: Let's keep matters simple. For example, if the
11 rules of engagement say help the local population in getting better water
12 supplies and at the same time say don't use any heavier artillery than
13 120-millimetre. We're talking about the second, only about the second,
14 the use of military force and, of course, there are always shady areas at
15 how to protect and helping the people. But the rules of engagement in
16 relation to the -- could I say the primary, military purpose of that
17 operation should they stay within the limits of doctrine and within the
18 limits of the law on armed conflict.
19 THE WITNESS: I exactly now see what you are aiming at, Your
20 Honour, and then my answer would be yes; but I would like to make an
21 comment to that as well.
22 JUDGE ORIE: Make a brief comment, please.
23 THE WITNESS: My brief comment will be that I understand that for
24 the sake of this question, that we isolate military matters, but
25 unfortunately in practice this is just not possible.
1 JUDGE ORIE: I do understand that. But for this question we have
2 done that, and it is an artificial exercise.
3 Please proceed.
4 MR. KEHOE: Your Honour, at this time, we'd like to offer into
5 evidence 1D65-0256.
6 MR. RUSSO: No objection Mr. President.
7 JUDGE ORIE: Mr. Registrar.
8 THE REGISTRAR: As Exhibit D1250, Your Honours.
9 JUDGE ORIE: D1250 is admitted into evidence.
10 MR. KEHOE:
11 Q. Colonel, if we can just take this down a little bit and going
12 from the various issues, we talked about the law on armed conflict,
13 doctrine, and rules of engagement, I have to thank you for giving some of
14 the manuals that we were provided to by you; and I was interested in
15 looking at some of your entries in your report, and I believe one of the
16 manuals that you used was in 1D65-0001.
17 MR. KEHOE:
18 Q. Your Honour, this is the face page of the manual that you turned
19 over to the Office of the Prosecutor that was provided to us that you
20 used, is it not sir?
21 A. I have used this particular document in preparing my first
22 report, knowing that what the title says preliminary study package; but
23 this document is based on the original formal document, which I have gave
24 to the OTP as well and you. That's not translated in English. And this
25 is the official fire support document that we use in the Dutch army and
1 this was a preliminary translation for that, and I used that because it
2 is translated in the proper English for my report because otherwise I had
3 to translate the whole book.
4 Q. I appreciate that, sir.
5 MR. KEHOE: Your Honour, I'm not going to -- I have some excerpts
6 that I'm going to use out of this that I will demonstrate. This is a
7 very large document, and I don't see the need to offer the whole document
8 into evidence. So if counsel would like it as such, I will gladly do
10 JUDGE ORIE: Take us to the pages you would need and then upon
11 deciding whether or not to be admitted we might give an opportunity to
12 Mr. Russo as we did before.
13 MR. KEHOE:
14 Q. Yes. Colonel, what I did, if I can put on the screen now
16 And this is a red line comparison, Colonel, from the document
17 that we just saw, the field -- the Dutch field manual on brigade fire
18 support as well as your expert report.
19 MR. KEHOE: If we could go to the next page.
20 Q. And what I have done through the course of this, we've done
21 through the course of this is compare the two and examining your
22 deletions and your subtractions. You would agree that the vast majority
23 of the items that were in your -- and this is information that is from
24 your annex A of the first report, you took from the Dutch manual. Is
25 that right, the army field manual?
1 A. Yes.
2 Q. And in most cases you took it word for word?
3 A. Sorry, can you repeat it?
4 Q. In most cases you took it word for word from the manual and put
5 it into your report?
6 A. Yes.
7 Q. Kind of as a cut-and-paste job?
8 A. Yes.
9 Q. Now, I'm interested in several places in this where you have
10 added to the manual. And on this document, if we could turn our
11 attention to page 16 and 17. And if ... it would be one more page,
13 Now, the -- the bottom half of that is section 8010 [sic] which
14 to a degree of paraphrased and shortened a bit here. I'm interested in
15 the last sentence as it goes over to the next sentence. And it notes:
16 "The artillery assets can only be used --" if we go to the next
17 page. Mr. Misetic corrected me it is 0810 and not 0810 and not 8010.
18 That would be at line 22. Just staying with this:
19 "The artillery assets can only be used in case the save distance
20 between expected impacts and civilian population is big enough to avoid
22 Now where in -- I attempted to look through this Dutch field
23 manual, and I looked in vain in the manual as to where this rather
24 categorical statement about use of artillery assets can only be used in
25 case the safe distance between the expected impacts and the civilian
1 population is big enough to avoid casualties.
2 Is that written like that in any place in the manual?
3 A. What do you mean by that? Is your question that you want to have
4 technical details about the safe distance?
5 Q. No, sir. My question is that the most of this is a verbatim
6 quote from the manual, and I want to direct your attention to a
7 significant addition which you included in your expert report that being
8 that artillery assets can only be used in case the save distance between
9 the expected impacts and the civilian population is big enough to avoid
11 That is a categorical statement that is in your expert report,
12 and I want to know where that is in the Dutch field manual or if you have
13 some other manual that supports that rather categorical statement.
14 A. It may have not been in the translation that I gave to you. But
15 I have to -- to look in the Dutch -- the official version that I have,
16 whether -- where it -- where my statement is coming from. So I cannot
17 give you the proper answer right now.
18 Q. Okay.
19 MR. KEHOE: Mr. President, maybe we can just to that at the
21 JUDGE ORIE: Yes.
22 Mr. Konings in the manual of which you -- on which you relied
23 apparently heavily in producing your text, if you could, after the break,
24 inform us where to find the basis in that manual for this statement.
25 MR. KEHOE: I would --
1 Q. While we're doing that, Colonel, if we could just stay with a
2 couple of other items. If we could just stay on that page, and you say:
3 "Targeting of pure civilian targets will be out of the question
4 since an operation at the tactical level is planned and executed against
5 military targets."
6 If we move down seven lines:
7 "The basic rule will be not to inflict casualties or damage to
8 civilians or property."
9 Now what is the source of that particular issue not to inflict
10 casualty or damage to civilians or property?
11 A. That is taken from the book that I have here. I'm quite sure I
12 even know the paragraph where it is. I can only read that out in
13 Dutch -- in the Dutch language. I hope that it can be translated and
14 this also comes from the interpretation from what is in this book because
15 the book that I have here, the field manual fire support, is originating,
16 I think, in the year 2000, 2001; and that also is the interpretation made
17 by me after consulting a legal colleague of mine how we treat the
18 eventual attack on civilian population or civilian property.
19 But the basis of what I said here is in this field manual.
20 MR. KEHOE: Your Honour, at this time, we'll offer into evidence
22 JUDGE ORIE: Mr. Russo.
23 MR. RUSSO: Your Honour, I have no objection to that. Is the
24 additional -- the document which is quoted in there, the 001 also being
1 MR. KEHOE: Is that the --
2 MR. RUSSO: That is the one that is before, the one that --
3 MR. KEHOE: [Microphone not activated] [Overlapping speakers] ...
4 if counsel would like that we'll offer that as well.
5 JUDGE ORIE: Yes. But let's be very practical. That is a very
6 lengthy document.
7 MR. KEHOE: Very.
8 JUDGE ORIE: What I suggest is that you look at that document,
9 see to what extent, apart from the portions selected in this comparative
10 document, to look at what you would need and then to ask that to be added
11 to the evidence. Because otherwise we are -- this is already, we focus
12 now, this is already -- this comparative document is already 69 pages.
13 MR. RUSSO: I wasn't demanding that the earlier one be -- and
14 then I just wanted to know if both were being admitted, but if it's just
15 this one, I have no objection to this document on the screen being
16 admitted into evidence.
17 JUDGE ORIE: Then, Mr. Registrar, the number would be ...
18 [Trial Chamber and registrar confer]
19 JUDGE ORIE: We are limiting ourselves now to the comparative
20 document in which the text appears - not always but often of the
21 original - then the text of the report and then the comparative
22 paragraph in which we see with a blue and red, what has been changed.
23 Mr. Registrar.
24 THE REGISTRAR: Your Honours, that's document ID number
25 1D65-0385, and it becomes Exhibit D1251.
1 JUDGE ORIE: One second, please. Yes. It is admitted into
3 Mr. Russo, when would we hear from you if you would like to add
4 to this comparative document.
5 MR. RUSSO: If, Your Honour, I could have 'till the end of
6 counsel's examination.
7 JUDGE ORIE: You mean Mr. Kehoe's examination.
8 MR. RUSSO: Yes, Mr. President.
9 JUDGE ORIE: Yes. Then there is still half an another day to go,
10 at least Mr. Kehoe.
11 Please proceed.
12 MR. KEHOE: Yes, sir.
13 Q. Well, Colonel, just looking at these comments, the artillery
14 assets can only be -- only be used in case the safe distance between the
15 expected impacts and the civilian population is big enough to avoid
16 casualties that, sir, is not a reflection of the law on armed conflict,
17 is it?
18 A. That's yours statement, not mine.
19 Q. Well, is it a reflection of the law on armed conflict or is it
20 doctrine according to the Dutch military?
21 A. Well, in that case, the only thing can I say about that this is
22 reflected in our doctrine is checked by our legal advisors, and it is
23 their job to compare it with humanitarian law, not mine.
24 Q. Well, let me turn your attention to -- and I would ask if this is
25 it an accurate reflection of the training that you received.
1 MR. KEHOE: If I can bring up 1D65-0148. This is the department
2 of -- the United States army field manual, the law of land warfare. I'm
3 trying to get the quickest page.
4 If we go to e-court page 8 -- 18, excuse me, if we could blow up
5 25 in the right-hand column.
6 In the paragraph the enemy status of civilians and the last
7 sentence in that 25:
8 "It is generally -- it is a generally recognised rule of
9 international law that civilians must not be made the object of attack
10 directed exclusively against them."
11 Q. Now, based on the training that you've had and your experience,
12 Colonel, that is the outer limits of the law on armed conflict, i.e.
13 that civilians cannot be made the object of attack; is that right?
14 A. That's what it says, yes.
15 Q. That is very different from a situation such as you have
16 reflected where you note that artillery assets can only be used in case
17 the safe distance between the expected impacts and the civilian
18 population is being enough to avoid casualties. That is a very different
19 concept --
20 A. That's a different concept, yes.
21 JUDGE ORIE: Mr. Kehoe, just for my information I see that the
22 cover page says 1956, and then on the second page, I find 15th of July,
23 1976 and since you showed quite a keen interest in the development, I
24 wondered whether this to be understood the publication of 1976 and
25 whether there are any updates on this document, since then.
1 MR. KEHOE: Your Honour, there are numerous updates, and the
2 updates are constant. They keep -- the page itself remains the same but
3 what happens in the department of defence - I'm not sure if it's true in
4 the countries - but in the United States, you get a notice that these
5 three pages have been removed, and serve these three pages. But the
6 volume itself of the law of warfare remains static, but they just update
7 it continuously. That is my best explanation based on my experience.
8 JUDGE ORIE: Now how to know the portion you read dates from what
9 year between 1956 and 2009.
10 MR. KEHOE: This particular document, the front page on this is,
11 I believe, 1956. I think this is a old, well-established aspect that has
12 not changed. That particular provision. Other provisions within that
13 volume have. But this particular is still as the Colonel just mentioned
14 the state of the law, i.e., that obviously civilians cannot be the object
15 of attack.
16 JUDGE ORIE: There is at least a prohibition against an attack on
17 civilians, it's what the outline of that exactly is and to what extent it
18 includes customary law whether it is based on conventions that were
19 ratified by the United States is not clear to me yet, but I just say this
20 so you know what questions would remain on my mind.
21 MR. KEHOE: Yes, sir.
22 JUDGE ORIE: Please proceed.
23 MR. KEHOE:
24 Q. If we can with move, Colonel, to another section on this volume,
25 and if I may. If we could move to page 5 of this document. And it is
1 under the rubric of unnecessary killing and devastation. And it talking
2 about the prior paragraph if I may, talking about the -- hitting military
4 "Particularly in the circumstances referred to in the preceding
5 paragraph, loss of life and damage to property incidental to attacks must
6 not be excessive in relation to the concrete and direct military
7 advantage expected to be gained."
8 Now looking at these items in conjunction with your report, it is
9 clear, to you, not, Colonel, that the laws on armed conflict prohibits
10 the purposeful infliction of casualties on civilians; isn't that right?
11 A. So far I'm with you, yes.
12 Q. It does not -- the law on armed conflict, does not prohibit
13 knowing non-purposeful infliction of civilian casualties, does it?
14 A. Well, I cannot say yes or no. You only showed me a US document
15 from 1956 which I have not been able to study. So to me, that doesn't
16 say anything so far.
17 And if I may be able to one remark about some of the formal
18 paragraphs it only talks about warfare between two states which is
19 something different in -- in the international world than what is quite
20 obvious happens around us. That's the reason that from the Dutch
21 perspective we have been improving our view on how to outside weapon
22 systems yes or no. And again I have not been able to read this before.
23 I only see a small portions of that. It is only a US document with the
24 vision of the United States, and there is as I told you before, quite
25 some difference in opinion between the legal approach of an operation
1 from the Dutch perspective or the US
2 Q. Then let's go back to what you in fact wrote in your report, and
3 I go back to your report in P1259, your first report if we can turn to
4 page 2 subsection g, little x.
5 Do you have that, sir, your report or we can bring it up on the
6 screen --
7 A. I can take it myself.
8 Q. -- just take it might be easier for you.
9 A. Which -- can you recall the paragraph?
10 Q. Sure, on the first report, it's 1259; second page it's g,
11 subdivision 10, Roman numeral X, which looks like an X, but it is Roman
12 numeral, 10.
13 A. Yes.
14 Q. Midway through this paragraph, you note, that: "These indirect
15 effects," and you're talking about artillery:
16 "These indirect effects may be unintended in case military
17 targets close to a civilian area have been attacked?"
18 So you realise do you not, Colonel, that in the use of artillery
19 against a military target that is not purposefully directed against the
20 civilian population there is an consideration that it may result in
21 civilian casualties and that as long as those casualties are damage or
22 not excessive [Realtime transcript read in error, "successful"] in
23 relation to the military advantage gained that type of artillery attack
24 is permissible under the law on armed conflict. Isn't it?
25 A. Again I have only seen a United States document which refers to
1 the law on armed conflict. I haven't seen that law. And with that in
2 mind, it is very important what you said yourself is that it should not
3 be excessive and for that reason our explanation of that is - and I
4 specifically want to state, our, Netherlands
5 that we avoid using artillery in case we expect any damage or casualties
6 on the civilian side. Especially when the value of that military target
7 is so low that it is not interesting to attack that target or if attack
8 by artillery is not useful because you cannot do anything to the target
9 with artillery.
10 I cannot look to those -- to the things that we are discussing
11 without every time, over and over again, take all the aspects into
12 account that are important. And it is our translation from our own
13 manual that we give commanders the -- the -- the direction, Don't use
14 artillery when you have this chance on civilian casualties.
15 JUDGE ORIE: Mr. Russo.
16 MR. RUSSO: Just to correct a portion of the translation at page
17 67, line 17 the word successful I believe Mr. Kehoe intended and actually
18 said damage which is not excessive in relation.
19 MR. KEHOE: I think that's right. Thank you sir.
20 JUDGE ORIE: Yes. That's what I heard as well.
21 Please proceed.
22 MR. KEHOE:
23 Q. In your report you are categorical about using the use of
24 artillery when in fact, sir, it's an issue of proportionality, isn't it?
25 A. It's an issue of proportionality, yes.
1 Q. What is proportionality? And if I can refer you to your report,
2 you refer to proportionality in the list of factors to take into
3 consideration on page 5 of your report and 6 of your report, 6 b and in
4 number 7 the application of the proportionality principle?
5 What is that, sir?
6 A. Proportionality to my opinion is that once you attack a certain
7 target with -- with whichever military mean that have you available that
8 the value of that target should be, as such, that the use of violence is
9 permitted, and that the damage done is kept to an absolutely -- to the
10 lowest minimum that you can get.
11 Q. And in a situation where there are military targets in a civilian
12 area the question that a commander has to ask himself or herself is
13 whether the -- with this target possibly in a civilian area will there be
14 a loss of life and damage to the property that is not excessive in
15 relation to the military advantage gained. That is the weighting system
16 he does. Isn't it?
17 A. I have never denied about that. I agree with you about that.
18 Q. When we apply the proportionality principle and a commander makes
19 a decision to fire into a civilian area, the decision is not per se
20 illegal even if there is collateral damage. It only becomes problematic
21 if the damage to the civilian population is excessive in relation to the
22 military advantage gained; right?
23 A. Well, to my -- my recollection when do you that, it is becoming
24 illegal; when the damage is excessive it becomes illegal.
25 Q. Exactly. If the damage is excessive in relation to the military
1 advantage gained?
2 A. Yes, yes.
3 Q. And that is a decision that a military commander has to make
4 based on a wide variety of circumstances in a combat arena, isn't it?
5 A. I do not deny that. That's absolutely true because that's -- yes
6 that is absolutely true. But also to that, the decision made by the
7 commander has to be led also by the rules of engagement that are
8 applicable for that operation. So he is never free in doing what he
9 likes. He is the one that takes the decision, but it is his
10 responsibility, and it's a large responsibility; and I understand how
11 difficult that is for commanders on the scene that he has to apply also
12 those rules of engagement. And those rules of engagement may very well
13 have in it and certain the fact that you have to take care, that you have
14 to use your violence in such a way that do you in the apply harm to
15 civilian property at all, which is the background of the collateral
16 damage estimate of 500 metres in Afghanistan.
17 Q. And that's a rule -- and that rule of engagement that you just
18 described is a rule of engagement that is within the laws of armed
19 conflict and is more narrow than what is permissible under the laws of
20 armed conflict; isn't that right?
21 A. I think you may -- that's the right conclusion.
22 MR. KEHOE: Mr. President, I don't know if you want to take a
23 break right now. But I'm about to move to another subject. But before
24 we do this, if I could tender 1D65-0148.
25 MR. RUSSO: Your Honour, I would just ask for the same amount of
1 time to choose additional portions.
2 JUDGE ORIE: Yes. So there's no objection against admission, but
3 you may come with a request to add something.
4 MR. RUSSO: Yes, Your Honour.
5 JUDGE ORIE: Yes.
6 Mr. Registrar.
7 THE REGISTRAR: Your Honours that becomes Exhibit D1252.
8 JUDGE ORIE: D1252 is admitted into evidence.
9 We'll have a break, and we'll resume at 6.00.
10 --- Recess taken at 5.38 p.m.
11 --- On resuming at 6.03 p.m.
12 JUDGE ORIE: Please proceed, Mr. Kehoe.
13 MR. KEHOE: Yes, Mr. President.
14 Q. Colonel, did you have a chance at the break to find out in your
15 manual where the manual has the sentence:
16 "Artillery assets can only be used in case the safe distance
17 between the expected impacts and the civilian population is big enough to
18 avoid casualties."
19 Did you find that in the manual?
20 A. This specific sentence is not in the manual.
21 Q. Let us turn back to your report, if we may, and I'd like to turn
22 to -- and this is P1259, page 6, and this is paragraph 6 b, ii, right
23 under the application of proportionality. I think we have to go -- four
24 pages up. Yeah, that's it.
25 Now, Colonel, after you've -- according to your recitation of the
1 factors an ending with the application of the proportionality principle
2 you then talk about selection of the assets.
3 MR. KEHOE: If we can just go up a little further. Keep going.
4 Two little i there. Right there. Actually there is a -- okay there we
5 go. Okay.
6 Q. Now, you note in your report at ii that once these and other
7 aspects have been considered the best available asset for the attack will
8 be designated.
9 Now let us focus on the best available asset. You would agree,
10 Colonel, based that upon a country's resources the best available asset
11 might be different. In other words the best available asset for the
12 United States might be different than the best available asset for -- in
13 this case Croatia
14 now. Maybe for even the Israelis. The best asset might be different;
16 A. Yes.
17 Q. And as technology evolves that best available asset changes too;
19 A. Not always.
20 Q. Sometimes it does?
21 A. Yes.
22 Q. It may become more sophisticated, hopefully?
23 A. Yes.
24 Q. When a reasonable commander is making a decision about the best
25 available asset, that reasonable commander has to make a practical
1 decision based on assets he has at his disposal; isn't that right?
2 A. Yes, that's right.
3 Q. Okay. Now, let us continue --
4 A. I wanted to -- sorry to interrupt -- I want to --
5 Q. And, Colonel, please, any time you want to elaborate on something
6 and explain, please do. I don't want to cut of off, ever.
7 A. You are fully right. He is dependent on the assets that he has
8 available for that action, but he also has available the decision not to
9 use assets at all; and then we come back to the proportionality and the
10 excessive damage and the value of a target; so I would like to make that
11 very clear that a very good decision can be not use violence at all.
12 Q. Absolutely. And again this is the asset you have, the
13 proportionality issue --
14 A. Correct.
15 Q. -- whether or not damage is going to be excessive and return to
16 the actual military advantage?
17 A. Absolutely correct.
18 Q. Okay.
19 MR. KEHOE: One moment, please.
20 Q. Excuse me, Colonel.
21 MR. KEHOE: If I may, Your Honour, I have just been made aware of
22 something by Mr. Misetic on page 71 line 11:
23 "Did you find that in the manual?" And the answer is, "This
24 specific sentence is not in the manual," but it looks like the question.
25 Maybe that can be cleaned up at a later date, but I just bring it to the
1 Court's attention.
2 JUDGE ORIE: Yes. I do agree that the question was, "did you
3 find that in the manual?" And the answer was this specific sentence is
4 not in the manual.
5 This kind of errors may be caused by not making breaks.
6 Please proceed.
7 MR. KEHOE: Yes, Mr. President.
8 Q. If I may, I would just like to go back to the comparison of the
9 field manual that's in your report. That's in D1251. And I'd like to --
10 and this is again looking at your annex a to your report, and looking at
11 page 49 in D1251, under the assessment -- under the title of "Damage
13 This is the area that you took from the manual at paragraph 0252
14 and according to the report, you have added this that I have underlined
15 in purple over to the right. And in talking about damage assessment:
16 "It may be clear that the assessment of a physical attack with
17 lethal munitions may be easier in comparison with the situation when
18 non-lethal weapons/means have been used. Battle damage assessment
19 therefore deals with looking to the effects that have been achieved and
20 the control whether the achieved effects are indeed the intended ones.
21 Actions may have the intended effects, but commanders have to take into
22 account the fact that every action always will have unintended, long-term
23 effects as well."
24 Now, that particular item, sir, is not in the manual, and frankly
25 I don't know what you're talking about there. What are we talking about
1 there? You're talk being psychological effects? I mean what are you
2 referring to there, sir?
3 A. Yes, that is one of the effects that I'm referring to. But not
4 only effects to damage done to infrastructure. Every other affect that
5 occurs when you use lethal weapon systems, or when you use lethal weapon
6 systems with the intention to bring non-lethal effects and then I just
7 play it out clear using artillery in order to frighten people. That's
8 the way that you have to think about assessment of attacking or using
9 weapon system or military means, at all, inside an operation; and the
10 reason that that is no in the military field manual is just the fact that
11 it will be in the new manuals that we are currently writing because there
12 it will take the larger portion of how we describe an operation.
13 And since have I been asked by the OTP to describe fire support,
14 the use of fire support, I didn't limit myself in purely repeating what
15 was in the field manual; but I have introduced, I have in certain as
16 well, some developments. And the discussion around effects and you may
17 be familiar with the term of effects based approach to operations which
18 is a US
19 are caused, the physical effects that are directly visible after a
20 physical attack, and that's what I tried to explain here in a very few
21 sentences, knowing that the debate around effects, and the effects of
22 actions in an operation, and unintended effects, long-term effects -- I
23 can name you -- there are much more effects -- that is -- that is -- the
24 crucial thing in our new doctrinal -- doctrinal documents, not only in
25 the Netherlands
1 that this is a lengthy statement, Mr. -- Your Honour - but I have to say
2 that because thinking about the facts is crucial for our -- the way we
3 conduct our operations, and the way we build up our operations. And the
4 very difficult part are the so-called non-lethal effects and non-lethal
5 occur in a population.
6 They are psychological they have to deal with infrastructure,
7 they can be visible after years. They -- that's the point I try to make
8 here, so it is not in the original document. That is absolutely true,
9 but it's a development that we take into account now. You may have heard
10 from the term information operations which is something that's the most
11 important thing in our operations currently; and that says already the
12 use of non-lethal means to try to complete your operation and get away
13 from the use of lethal means. And I try to reflect that -- this in my
14 report in order to give an idea that there is more than only artillery.
15 Q. And I appreciate that, Colonel, the reason I focus on this is
16 that this is your description of what is and what is going to be
17 published as the current Dutch doctrine. Isn't it?
18 A. Not only the current Dutch doctrine but it's the same development
19 in international doctrine.
20 Q. But it is not a reflection of the laws on armed conflict; it is
21 doctrine, isn't it?
22 A. This is doctrine.
23 Q. Now, continuing on in your report and we're locking at the
24 effective fire. And if I can turn to the next page in the document on
25 the screen, 1D1251, page 50.
1 Now, just going through the -- some of the items and I know I
2 will go through this quickly because you did refer to it at least
3 obliquely during the course of your testimony on direct. And when you
4 were talking about the various reasons why artillery would be used -- and
5 one of the things that you took a limited view on is the use of artillery
6 for the destruction of actual buildings; is that right, sir?
7 A. That's right.
8 Q. And let me put on the screen 65 ter 5879, which is a -- another
9 United States department of army excerpt. This is fire support in land
10 battle. And I think if we go to page 24 in this document.
11 And if we can blow up the centre and the destruction aspect of
13 I just want to develop the destruction issuing, Colonel, in the
14 context of Operation Storm, if we could, taking some of the comments in
15 your report and also some of your testimony yesterday.
16 And in this, it notes:
17 "In attack system that destruction puts a target out of action
18 permanently. Direct hits with high explosive or concrete piercing shells
19 are required to destroy hard materiel targets. Usually, destruction
20 requires large expenditure of ammunition and is not considered
22 Colonel, you agree that is consist with your view of destroying
23 buildings in the former Yugoslavia
24 A. That's right.
25 Q. Now if we talk about destruction in the context of
1 Operation Storm, we have a different situation in that you knew, Colonel,
2 that the HV was trying to liberate the Krajina and bring that area or
3 bring it back into the Republic of Croatia
4 A. Yes.
5 Q. Okay. So there would be, during this artillery attack, no reason
6 to try to level Knin or destroy these buildings if the Republic of
8 incorporate this land in to the Republic of Croatia
9 A. Yes.
10 MR. KEHOE: Your Honour, at this time, I'll offer into evidence
11 65 ter 5879.
12 JUDGE ORIE: Mr. Kehoe.
13 MR. KEHOE: Yes, Your Honour.
14 MR. RUSSO: No objection.
15 JUDGE ORIE: Mr. Registrar -- I'm sorry, Mr. Russo, I should have
17 MR. KEHOE: I'm just saying yes, Judge.
18 THE REGISTRAR: Your Honours, that becomes Exhibit D1253.
19 JUDGE ORIE: D1253 is admitted into evidence.
20 MR. KEHOE: If we can flip back to D1251 and go to the bottom of
21 page 52 where we talk about interdiction fire.
22 Q. Colonel, I'm not going through every aspect of it because much of
23 your report follows the manual verbatim. I'm trying to focus on areas
24 where you added something or there seems to be a change; and one of them
25 is on the interdiction category.
1 MR. KEHOE: If we can go to page 52 in this document. Is that
2 page 52? There it is. It's on there now. Okay.
3 Q. "Interdiction fire delivered at a point target or an area within
4 the aim of preventing the enemy using that abject area, scattered
5 mines" -- excuse me, scattered mines are -- I'm sorry.
6 MR. KEHOE: You got to turn the page, I'm sorry.
7 Q. Let me read that again:
8 "Interdiction fire fired delivered at a point target or area
9 within the aim of -- with the aim of preventing the enemy using that
10 object or area. Scatterable mines are one means of achieving this."
11 Now, just talking about interdiction fire by itself. There is
12 nothing in and of itself in violation of the laws of armed conflict by
13 using interdiction fire, is there, i.e., firing into an area to prevent
14 the enemy from using that area?
15 A. In so far, no. I have not stated that in my -- everywhere in my
16 document that interdiction fire should not be used.
17 Q. I want to go to the next sentence that you added on:
18 "Quite useful when aimed against the civilian area, one can
19 recall during the Balkan conflict the illegal attack on water collection
20 points and market places."
21 Now that, sir, is not in the manual and is based solely on your
22 experience in Sarajevo
23 A. That's correct.
24 Q. The situation in Sarajevo
25 that was much different than what was transpiring during Operation Storm
1 on the 4th and 5th of August of 1995, wasn't it?
2 MR. RUSSO: I'd like to object to the question, generally being
3 vague, if the question could be more specific about what was different.
4 MR. KEHOE: I would agree, Judge. That was a terrible question.
5 JUDGE ORIE: Yes, well then make a better one.
6 MR. KEHOE:
7 Q. General [sic], what you were investigating or what you worked on
8 in Sarajevo
9 basis but almost daily basis by the Serbs into Sarajevo onto civilian
10 targets with an army never coming in with an attempt to engulf Sarajevo
11 and take it over; isn't that right?
12 A. Correct.
13 Q. So that was much different than what we had in Operation Storm
14 where we had an artillery attack that was then followed by an effort by
15 the HV at some point difficult in the Dinara, but an effort by the HV to
16 retake this land to make it part of the Republic of Croatia
18 A. You don't mind that I do not agree completely with you because it
19 is too easy for me to come to that conclusion that you make. And there
20 might be a similarity in the situation although Knin was not surrounded
21 for three and a half year, Knin was to be liberated by the HV army, and
22 nothing can be said -- the use of -- of this type of fire is very well
23 possible in every scheme of manoeuvre that can you think about.
24 So the comparison between the two cities in itself, you're right,
25 it's different, total different situation; but it doesn't prevent the
1 fact that you cannot use artillery in civilian-populated areas in a
2 situation like in Knin.
3 And you were talking about the HV entering the city after an
4 artillery attack. Well, I haven't seen that because there was some sort
5 of artillery attack on the city of which I do not know what the effects
6 were that the Croatian army wanted to achieve because the effects are
7 nowhere stated at least not in the information that have I. So I have no
8 clue what effect they wanted to have.
9 And the actual seize of the city, Knin, occurred lots of hours
10 after the initial attack, and I have already explained that seeing the
11 combination of an artillery attack 36 hours later, the enter of the city
12 by the Croatian brigade, Croatian troops, the absolute, to my opinion,
13 low value of the military targets, the military targets inside the city,
14 I cannot then understand what is then the military connection between
15 that artillery attack and the actual entering of the city. Seeing the
16 low value of those military targets, as a military commander, I would
17 have spared my artillery to use for -- in case I needed it really.
18 Q. Colonel, I appreciate that can you only operate based on
19 information that you were given, but we will get to more information that
20 apparently was not given to you.
21 Do you agree or disagree that the artillery attack on Knin was
22 done in conjunction with an ongoing offensive by the HV against the ARSK?
23 A. In the very wide -- in the very wide operational framework you
24 can say that the -- that the artillery -- in the information that I was
25 reading, the artillery attack was connected to the overall
1 Operation Storm. I don't say anything with this statement about the way
2 it was actually executed because then we have to go back to the
3 operational order, and I still do not have any information about what was
4 meant by shelling the town of Knin
5 that brings me absolutely to the conclusion that I have written here in
6 my report.
7 Q. And we will get do that, Colonel, with more information I want to
8 stay with your report. We will get there in due time. And I want to
9 move to the next aspect of your report which is harassing fire.
10 The manual says that -- and this is it on the same page on the
11 screen, page 353:
12 "Harassing fire is fire intended to cause confusion among the
13 enemy, to curtail movement, and by threatening lossers [sic] to lower
15 Now, the use of artillery fire as harassing fire to curtail this
16 conduct of the enemy is a legitimate lawful purpose of artillery or the
17 use of artillery, isn't it?
18 A. I haven't said that it isn't.
19 Q. Given that it is subject to the rule of proportionality, right?
20 A. Yes.
21 Q. Again this type of -- you write, you add on:
22 "This type of fire is also extremely useful impermissible use
23 against civilian areas. When used, it causes physical losses but more
24 important, it influences complete civilian societies in a very disturbing
25 and negative way. I refer here to my personal experience as an UNMO
1 leader during the seeming of Sarajevo
2 Now, again you are comparing this to harassing fire in Sarajevo
3 or writing this, your commentary, you discussing harassing fire in
5 operation to take the Krajina; right?
6 JUDGE ORIE: I --
7 MR. KEHOE: I think we said that -- okay.
8 JUDGE ORIE: Mr. Kehoe, I think you said, "I think we said
9 that --" I don't know whether that was extension of your question, but
10 you were -- the translators couldn't follow your speed of speech.
11 MR. KEHOE: Yes.
12 Q. Well, under the circumstances and the information you were given,
13 harassing fire going into Knin can be used against the military to cause
14 confusion, suppress their movement, and lower their morale; isn't that
16 A. Yes.
17 Q. You think it only becomes improper when it is directed against
18 the civilian population; right?
19 A. Yes.
20 Q. And in the context when a commander is making a decision to fire
21 into military targets to suppress that activity, once again his decision
22 on harassment has to be balanced by the rule of proportionality; isn't
23 that right?
24 A. Yes.
25 Q. Okay. But if his intention by that conduct is to impede the
1 enemy from moving, re-supplying, and operating, and causing confusion as
2 well as lowering morale, that is a legitimate purpose of artillery, of
3 course, subject to the rule of proportionality; correct?
4 A. I do not deny that.
5 Q. Now, let us turn to your report in this --
6 A. May I ask you a question on this, because --
7 Q. I --
8 JUDGE ORIE: Mr. Konings, if you want to say something in
9 addition to your answer that's fine, but we are usually not reversing the
10 one who asks questions and the ones who answers questions; but if you
11 want to make an additional -- if you want to add anything to your answer,
12 then ...
13 THE WITNESS: I'm doubting, Your Honour, I probably will repeat
14 myself when saying this, because I think the way the questions are asked
15 is only focussing on the military purpose of these fires. But I have
16 already said before that, so far, I haven't seen any explanation in the
17 information given to me what the effect would be when an operational
18 commander gives the order to his troops to shell a complete city because
19 that is it my crucial point. That is my crucial point because that is my
20 experience and that is a -- I throw it in the open that is my -- my true
21 conclusion when you read something in an operational order, like shelling
22 the city of Knin
23 stuff that have I written down here.
24 JUDGE ORIE: Yes. I do agree with you that it is to some extent
25 repetitious what you now say. We are carefully listening to your answers
1 and we try not to forget your previous answers when you give a new
2 answer. Don't worry about the focus of Mr. Kehoe because Mr. Kehoe
3 performs his duty in this courtroom as Defence counsel.
4 THE WITNESS: Okay. I fully understand.
5 MR. KEHOE:
6 Q. Colonel, let us turn to the emission of artillery that you talk
7 about in the red line; it's on page 56.
8 We talk about the emission of artillery and you make a general
9 statement about the emission of artillery:
10 "Field artillery, destruction, neutralisation, or suppression of
11 the enemy using indirect fire from a gun and/or missile system as an
12 integrated element of the fire, report system synchronised with the
13 combined operations, operations of manoeuvre units."
14 And we'll get into the synchronised operations, Colonel, and we
15 have a lot more information to discuss with you that apparently was not
16 discussed by the OTP. But I'm interested in the next sentence that you
18 "In recent years, this mission has added more elements such as
19 the use of lethal means to achieve non-lethal effects, but in relation to
20 this expert report artillery asset have [sic] been used to support
21 military operations that in fact were aimed against civilian targets."
22 Now were you told --
23 JUDGE ORIE: Mr. Kehoe, your quote was not correct.
24 MR. KEHOE: I'm sorry. I'm sorry, I apologise.
25 JUDGE ORIE: May have been used, that is not the same as having
1 used. Please proceed.
2 MR. KEHOE:
3 Q. "May have been used to support military operations that in fact
4 were aimed against civilian targets."
5 Now, Colonel were you told by the Office of the Prosecutor that
6 the HV in Operation Storm used military assets in support of a military
7 operation that were purposefully aimed against the civilian population.
8 Were you told that?
9 A. No.
10 Q. What you are talking about here is what, based on your experience
11 in Sarajevo
12 A. What I'm talking about here is a general statement, this
13 statement has nothing to do with Knin with the operation that we're
14 talking about now. It's just a statement that in the repeat years the
15 mission of artillery units has changed because artillery used in -- also
16 in a non-lethal way, in warning, in harassment, and whatever we have
17 discussed before; and I have stated that that has happened in the past to
18 support military operations and which part of that military operation was
19 apparently aimed against civilian targets, and that is not only referring
20 to my experience in Sarajevo
21 I cannot deny that. I have been there, it was six -- seven months of my
22 life. It made a great impression on me, and it is also coming from the
23 fact that in current military operations weapon systems, not only
24 artillery, are in various cases used against civilian targets, and I
25 quote what I said before. We see it every day on the TV.
1 Q. Well, Colonel, taking the evidence that you were provided by the
2 Office of the Prosecutor, and let's be very frank about this statement.
3 Looking at the evidence you were provided by the Office of the Prosecutor
4 did they give you any piece of information any document that demonstrated
5 that artillery was aimed at civilian targets in support of a military
6 operation? Anything. And if they did, what is it?
7 A. They gave me -- the information they gave me, in that -- no, I
8 have to start that over again.
9 In the information they gave me, the first thing - and I will be
10 frank as well - the first thing that struck me the most was reading the
11 sentence shelling the city of Knin
12 Because -- well, I have explained that numerous times before why that
13 struck me. That is not given to me by the OTP and the conclusions I made
14 are my own conclusions. And further we have worked along the lines of
15 the documents that you have been presented as well and especially
16 concentrating on the lines on the lists shown to me of the targets
17 available inside Knin of which we debated whether they were military
18 targets or non-military targets or low valuable targets as we did in the
19 past days.
20 So the -- the biggest point in my report and which causes those
21 blue lines as well is the sentence that I already said before.
22 Q. So this is your opinion. It is not based on any document,
23 specific document or piece of information that you received during the
24 course of your examination?
25 A. It is based on what I read in the documents that were given to me
1 by the OTP, and I was asked by the OTP to comment on that and I based and
2 I wrote the report, and I based the addendum on that.
3 I'm sorry I only can repeat that --
4 Q. I understand that --
5 A. Unless there is a good explanation a very good explanation for
6 the sentence shelling the city of Knin
7 that I have made before. Because that -- okay, I'll leave it at that.
8 Q. Colonel, trust me, we're going to get plenty of opportunity to
9 either re-evaluate your position.
10 I would like to turn our attention to the actual logic and
11 formulation of a plan to attack Knin under the circumstances and let's
12 just something that is pretty basic and -- and if we can turn our
13 attention to D1248, which is the combat operations, Dutch combat
14 operations manual that we talked about before, the one you said was being
15 updated and we're looking for page ...
16 JUDGE ORIE: We have to wait for a second until the transcriber
17 was able to re-boot.
18 [Technical difficulty]
19 JUDGE ORIE: It has been fixed. Thank you very much for the
20 efforts by everyone to fix the system.
21 Mr. Kehoe, you may proceed.
22 MR. KEHOE: Yes. Yes, Mr. President.
23 Q. Turning to this -- this document back to the combat operations
24 manual for the Royal Dutch Army, and if we look at page 4 and just
25 briefly like to talk to you about military targets as described in -- no.
1 Is it there? Yes it is.
2 Second paragraph, in the second paragraph, the second full
3 sentence, Colonel. It notes that:
4 "Military targets are those objects which, because of their
5 nature, location, designation or use contribute actively to the
6 operation -- military operation, excuse me, and of which the complete or
7 partial destruction, capture, or rendering inoperative in the prevailing
8 circumstances would produce a clear military advantage."
9 Now, Colonel, I understand that is a rather straightforward
10 definition of military targets. It is it only problematic when those
11 targets are in centres of civilian or in and around areas where civilians
12 are as we have been talking about.
13 And in this particular case when you were going through it, the
14 decision to put those military targets in civilian areas was a decision
15 made by the ARSK, wasn't it?
16 A. Yes.
17 Q. When we take that into consideration, and we're not going to
18 through the proportionality issue as to -- the idea of excessive damage
19 in relation to the concrete military advantage, one thing you talked
20 about previously was -- and I believe this is in direct examination, was
21 the issue of the possibility of a frontal assault or a movement of the
22 troops by -- of the HV into Knin, and Mr. Russo showed you, I believe,
23 the document that showed 1900 members of the 4th Guards Brigade.
24 Do you recall that?
25 A. Yes.
1 Q. Now, when a commander is and using the rule of proportionality
2 and he is making a decision, weighing the importance of the military
3 objective against possible damage to civilian property or individuals,
4 what is not part of that equation is the idea that he has to -- to accept
5 increased risk for his troops. Isn't that right?
6 A. We don't look to that in the way you describe it, because the
7 commander should take that into account.
8 Let me put it very, very clear. Opposite to each other, if you
9 can save lives of civilians, and it will take lives of your own soldiers,
10 you might have to take that decision. That's what your commanders are
11 teached [sic]. Nothing less, nothing more.
12 Q. But that's Dutch doctrine, isn't it?
13 A. That's Dutch doctrine. And I told you before that my basic
14 origin and my basic -- the basics on which I based my expert report is
15 coming from Dutch doctrine. I'm in the armed forces for 35 years.
16 Q. And I appreciate that, sir. And I appreciate that.
17 But we're dealing with the law on armed conflict, and I want to
18 be clear with you that in gauging the rule of proportionality, a
19 reasonable commander does not have to factor in increased risks to his
20 troops, does he? That's not part of the equation under the law of armed
22 A. I don't know that. But I don't think that is written there, that
23 a commander has to take more own casualties in order to provide civilian
24 casualties. I don't think it is written there in such a way, no.
25 MR. KEHOE: Your Honour, I'm about to move into a rather large
1 topic at this point. I don't know, given the circumstances --
2 JUDGE ORIE: If it takes far more than five minutes, then -- if
3 you don't have a small one, then --
4 MR. KEHOE: I don't.
5 JUDGE ORIE: -- perhaps we better adjourn for the day.
6 Mr. Konings, I would like to give you the same instruction as I
7 gave you before; that is, not to speak with anyone about your testimony,
8 whether given already or still to be given, and we'd like to see you back
9 tomorrow, 9.00 in the morning, in this same courtroom.
10 THE WITNESS: May I ask you a question, a very short question,
11 Your Honour? I don't want to waste your time, but from the discussion
12 around the table, I hear that you may need me next week as well. I would
13 appreciate to have a certain time schedule in order to arrange it at home
14 and at my work.
15 JUDGE ORIE: Yes, I do understand. I should have raised the
16 issue, as a matter of fact, and not leave it until tomorrow .
17 From what we heard from the parties until now, there is a fair
18 expectation that your testimony could be concluded next Tuesday. But I'm
19 not giving any guarantees. It might be Wednesday morning as well. If
20 this would cause you major problems, then --
21 MR. MISETIC: I don't think we have Wednesday court.
22 MR. HEDARALY: There is no court on Wednesday.
23 JUDGE ORIE: Oh, there is no court on Wednesday. But we have a
24 long Tuesday, isn't it?
25 MR. HEDARALY: We have a long Friday.
1 JUDGE ORIE: We have a long Friday.
2 Then it will not be Wednesday but it might be Thursday then, if
3 we cannot conclude on Tuesday. If that would cause you any problems,
4 please tell me so that we can see what we can do about it.
5 THE WITNESS: Well, I understand that I will be hear tomorrow,
6 the whole day, so we have two sessions.
7 JUDGE ORIE: No.
8 THE WITNESS: Okay.
9 JUDGE ORIE: We start tomorrow in the morning, but we have no
10 afternoon session.
11 THE WITNESS: Okay.
12 JUDGE ORIE: That means that we will finish at approximately a
13 quarter to 2.00.
14 THE WITNESS: Okay. That -- otherwise, it would have caused some
15 problem. Not now.
16 JUDGE ORIE: And the Monday and the Tuesday --
17 THE WITNESS: Is no problem.
18 JUDGE ORIE: No problem. Thursday morning. We try to avoid
19 that, but ...
20 THE WITNESS: It should be a problem.
21 JUDGE ORIE: Should be no problem. Thank you very much for your
22 cooperative attitude.
23 We adjourn, and we'll resume tomorrow, Friday, the 16th of
24 January, 9.00 in the morning, in Courtroom I.
25 --- Whereupon the hearing adjourned at 6.58 p.m.
1 to be reconvened on Friday, the 16th day of
2 January, 2009, at 9.00 a.m.