Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14451

 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

16     evidence.

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,

Page 14452

 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

25     transverse.

Page 14453

 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

Page 14454

 1     government of Croatia upon your request, used those lines actually on the

 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

 8     that.

 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

Page 14455

 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

Page 14456

 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.

Page 14457

 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

Page 14458

 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 and resolve the issue during the housekeeping session?

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

Page 14459

 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

 8     year.

 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.

Page 14460

 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

14     courtroom.

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.

Page 14461

 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.

Page 14462

 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

 5     on.

 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

13     further.

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

16     are.

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.  And what appears immediately

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

Page 14463

 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

24     areas.

25             In section 10 of your expert report, you indicated that generally

Page 14464

 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.

Page 14465

 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

 5     projectile.

 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 on board or any other guided missile system.

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

Page 14466

 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

15     about.

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

Page 14467

 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

Page 14468

 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?

Page 14469

 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.  And I have to come back to the fact that you have

 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

24     systems.

25        Q.   Now if a commander decided to use artillery against a particular

Page 14470

 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

21     building.

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

Page 14471

 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.

Page 14472

 1             JUDGE ORIE:  Time fuse.  So there is a timing when they will

 2     explode.

 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

Page 14473

 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 are equipped with a variable fuse that is standard on

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.

Page 14474

 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

 5     whatever.

 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

Page 14475

 1     witness.

 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

Page 14476

 1     discussed.

 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

Page 14477

 1     bis.

 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

21     objectives.

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

Page 14478

 1     it.

 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

23     that.

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

Page 14479

 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

Page 14480

 1     moment, assists the Chamber, we will not ask the witness to answer the

 2     question.

 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

Page 14481

 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?

Page 14482

 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

Page 14483

 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

 3     describe?

 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

 7     speculation.

 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

Page 14484

 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 many times myself.  That is the observations

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

Page 14485

 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

10     witness.

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,

Page 14486

 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?

Page 14487

 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 Pact?

 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

14     Sanction.

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.

Page 14488

 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

 5     period.

 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

Page 14489

 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

Page 14490

 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.

Page 14491

 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

Page 14492

 1     targeting.

 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

12     elements.

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

Page 14493

 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

Page 14494

 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

Page 14495

 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

 6     that?

 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

19     NATO.

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.

Page 14496

 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

Page 14497

 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

14     doctrine.

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

Page 14498

 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

Page 14499

 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.  That is

25     something that I cannot understand.  Maybe that's off the record, but I

Page 14500

 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, the NATO doctrine is practically fully

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

Page 14501

 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

 4     that.

 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 Army.  And I would like to turn to page 4 of this

Page 14502

 1     document.

 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

 9     framework?"

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

Page 14503

 1     engagement and there is also -- that is done by a national authority.

 2             So our own troops in Afghanistan have to make uses of their own

 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

10     Afghanistan are part of those rules of engagement.  So they give you

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

14     Afghanistan, you have doctrine and then within Afghanistan you have rules

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 after 1995?

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

Page 14504

 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

 3     us.

 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.  And you know also that before

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

19     yes.

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 were different from the ones in Bosnia

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

Page 14505

 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 were much more restrictive, were

11     they not, compared to the rules of engagement for the Dutch army in

12     Afghanistan today; is that not correct?

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 are

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

Page 14506

 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.

Page 14507

 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

 4     engagement."

 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

23     evidence.

24             JUDGE ORIE:  Mr. Russo.

25             MR. RUSSO:  Your Honour, I'm not sure if we have the full

Page 14508

 1     document.

 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

Page 14509

 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

 4     engagement?

 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

Page 14510

 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 operate within Dutch military

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

23     started:

24             "Putting aside the aspects of the rules of engagement that don't

25     apply to the use of military force."

Page 14511

 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.

Page 14512

 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

Page 14513

 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

 9     that.

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

15     1D65-0385.

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?

Page 14514

 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,

12     please.

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

21     casualties?"

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

Page 14515

 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

10     casualties?

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

20     break.

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 --

Page 14516

 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

21     1D65-0385.

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

25     offered?

Page 14517

 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.

Page 14518

 1             JUDGE ORIE:  One second, please.  Yes.  It is admitted into

 2     evidence.

 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.

Page 14519

 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.

Page 14520

 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

Page 14521

 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

 3     objectives.

 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

Page 14522

 1     from the Dutch perspective or the US perspective.

 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

Page 14523

 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 explanation of that is -

 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.

Page 14524

 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

Page 14525

 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

Page 14526

 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

Page 14527

 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, or for some other country, say, who's fighting right

14     now.  Maybe for even the Israelis.  The best asset might be different;

15     right?

16        A.   Yes.

17        Q.   And as technology evolves that best available asset changes too;

18     right?

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

Page 14528

 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

Page 14529

 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

12     assessment."

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

Page 14530

 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, the US started that, and is going far beyond the effects that

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 but also in other armies and in NATO because - and I know

Page 14531

 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.

Page 14532

 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

12     this.

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

21     economical."

22             Colonel, you agree that is consist with your view of destroying

23     buildings in the former Yugoslavia, is that right?  Excuse me, in Knin?

24        A.   That's right.

25        Q.   Now if we talk about destruction in the context of

Page 14533

 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; isn't that right?

 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

 7     Croatia intended to use these buildings again and was just trying to

 8     incorporate this land in to the Republic of Croatia, right?

 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

16     said.

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.

Page 14534

 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, isn't it?

23        A.   That's correct.

24        Q.   The situation in Sarajevo that you experienced, was a situation

25     that was much different than what was transpiring during Operation Storm

Page 14535

 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 was the firing on a -- I don't know wanted to say daily,

 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; isn't that

17     right?

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

Page 14536

 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

Page 14537

 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.  No effect, nothing whatsoever and

 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

14     morale."

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

Page 14538

 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

 4     Sarajevo that is not in done [sic] with part of an ongoing military

 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

15     right?

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

Page 14539

 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, that has made me write down as I have written down the

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

Page 14540

 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

17     added:

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

Page 14541

 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 which is part of that statement, of course,

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.

Page 14542

 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 without any explanation at all.

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

Page 14543

 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 then I will stick to my statements

 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.

Page 14544

 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.

Page 14545

 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

21     conflict.

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

Page 14546

 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.

Page 14547

 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.,

Page 14548

 1                           to be reconvened on Friday, the 16th day of

 2                           January, 2009, at 9.00 a.m.