1 Thursday, 23 July 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.17 p.m.
5 JUDGE ORIE: Good afternoon to everyone.
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 start with the next witness, very briefly, a few
12 procedural matters.
13 I was informed that there was something with D15777, a new page
15 MR. KEHOE: That's correct, Mr. President. I believe there's no
16 objection, and the new page 3 is 1D70 -- excuse me, 1D70-8586 which is
17 the new page 3 for D1577.
18 JUDGE ORIE: Yes and new page is -- you had a better one or it
19 was a translation [Overlapping speakers] ...
20 MR. KEHOE: It's a completed translation.
21 JUDGE ORIE: It's a translation.
22 MR. KEHOE: This is a complete translation of the document, the
23 English translation. That's what we're ...
24 JUDGE ORIE: That's all.
25 In the --
1 MR. HEDARALY: We just received this an hour or so ago. We'll
2 just check it and make sure that that was the issue. I think there was a
3 translation issue with one of the pages. We'll just check it and get
5 MR. KEHOE: If I can correct counsel. I don't think there was a
6 full translation and the whole thing is translated now, but can you
8 MR. HEDARALY: Thank you.
9 JUDGE ORIE: Yes. Mr. Hedaraly, if we do not hear from you later
10 today, could we assume that there is no objection.
11 MR. HEDARALY: Yes, Mr. President.
12 JUDGE ORIE: Then, because, I think D1577 was already admitted.
13 MR. KEHOE: It was, Mr. President.
14 JUDGE ORIE: Yes. So, therefore, it remains admitted evidence
15 and if there's any problem with it, we'd like to hear from you not later
16 than today.
17 Second issue. After the recess, the Chamber intends to return to
18 five days of sitting a week. We'll closely monitor how this works out.
19 The problem is not primarily in this case, but it'S the combination with
20 another case on which two of the Judges of this Bench are sitting.
21 Then the Chamber recently received a 92 bis application for 11
22 statements. Now, if only for scheduling purposes, the Chamber would very
23 much appreciate if it could receive already a provisional point of view
24 from the Prosecution before the recess starts, because, if there would be
25 a strong opposition against these witnesses to be called without
1 cross-examination, then the Chamber would decide on the basis of that
2 decide that all witnesses would be called to be cross-examined and make
3 them all 92 ter witnesses, that, of course, would have quite some impact
4 on scheduling. So, therefore, the Chamber would appreciate if a
5 provisional response, I'm not asking you to -- to give it in detail but
6 just to say, Well, majority or almost all of them we would agree with
7 admission under 92 bis or for a majority we would still seek the witness
8 to be called for cross-examination, so something of the kind so that we
9 are not taken by surprise after the recess.
10 Those were the procedural matters I would like to raise.
11 Mr. Misetic.
12 MR. MISETIC: Mr. President, may we move into private session
13 briefly, please.
14 JUDGE ORIE: We move into private session.
15 [Private session]
11 Page 20580 redacted. Private session.
2 [Open session]
3 THE REGISTRAR: Your Honours, we're back in open session.
4 JUDGE ORIE: Thank you, Madam Registrar.
5 Mr. Kehoe, is the Prosecution [sic] ready to call its next
6 witness, which is -- there are no protective measures sought, which is
7 Mr. Cross.
8 MR. KEHOE: I think the Defence is ready, judge.
9 JUDGE ORIE: I'm sorry. You see, it's really --
10 MR. KEHOE: It's vacation time, Judge. Yes, Mr. President.
11 JUDGE ORIE: Madam Usher is doing her duties appropriately and is
12 escorting the witness into the courtroom.
13 MR. KEHOE: Your Honour, this would be General Cross.
14 JUDGE ORIE: Yes.
15 [The witness takes the stand]
16 JUDGE ORIE: Good afternoon, Mr. Cross.
17 THE WITNESS: Good afternoon Your Honour.
18 JUDGE ORIE: Before you give evidence in this Court, the rules
19 require to you make a solemn declaration. You have the text already in
20 your hands, could you please make that solemn declaration.
21 THE WITNESS: Of course. I solemnly declare that I will speak
22 the truth, the whole truth, and nothing but the truth. So help me God.
23 JUDGE ORIE: Thank you. Please be seated, Mr. Cross.
24 Mr. Cross, when I address you by "mister" rather than by title,
25 it is not in any way out of disrespect. That's the way the Chamber
1 addresses all witnesses appearing before it, whatever their function or
2 title is.
3 Mr. Kehoe, are you ready to --
4 MR. KEHOE: Yes, Mr. President.
5 JUDGE ORIE: -- examine Mr. Cross. Mr. Cross, Mr. Kehoe is
6 counsel for Mr. General Gotovina, and he will be the first one to examine
8 Please proceed.
9 WITNESS: TIMOTHY CROSS
10 Examination by Mr. Kehoe:
11 Q. General, can you state your name for the record and spell your
12 last name?
13 A. My name is Timothy Cross, C-r-o-s-s, as in "sugar."
14 Q. And now, General Cross, can you just give us your years of
15 service in the British army and the date you retired and the rank you
16 held upon retirement?
17 A. Sure. I joined the army cadets, actually, 1964. Went to an army
18 college in 1967. I went to the Royal Military Academy
19 was commissioned into the British army in 1971, and I retired in
20 January 2007 in the rank of Major-General.
21 Q. General Cross, I'd like to show you the report that you have
22 submitted in this cause.
23 MR. KEHOE: And, Mr. President, if I could bring up 65 ter 1D2741
24 and if I could ask the assistance of the usher if the witness can have a
25 hard copy. Thank you.
1 THE WITNESS: Thank you very much.
2 MR. KEHOE: 1717.
3 Q. General, looking at this document, do you recognise this as the
4 report that you filed in this cause?
5 A. Yes, sir.
6 Q. And turning to the -- it should be page 24 in e-court. And that
7 would be your curriculum vitae?
8 A. Yes.
9 Q. And do you recognise that as your curriculum vitae?
10 A. Yes, indeed.
11 Q. Now, we are not going go into that curriculum vitae and all items
12 of your background, General, but I would like to just discuss a few items
13 in your career that are pertinent to the hearing that we have hear today,
14 if I may.
15 Now, just going chronologically on some of your deployments - and
16 I start with your deployment in Northern Ireland - and when was that,
17 sir, and what type of operation was it, and what role did you have in
18 that operation?
19 A. In 1978 I deployed to Northern Ireland as a captain. I was a
20 part of a small unit that was looking after all of the ammunition aspects
21 of Northern Ireland, including the bomb disposal work in
22 Northern Ireland, and I ran the -- what's called the ammunition
23 inspectorate, and that took me around the province looking at all aspects
24 of the ammunition, including ammunition that was handed in by the public
25 which had to be disposed of, dealing with terrorists, and improvised
1 explosive devices, and examining and producing reports on the ammunition
2 that was stored by the British Army throughout the province.
3 JUDGE ORIE: Yes, Mr. Cross. It is only now that the French
4 translation was able to finish its translation, because it's --
5 THE WITNESS: I'm sorry. I will speak a little --
6 JUDGE ORIE: -- slow down a bit. Yes, please proceed.
7 MR. KEHOE: Thank you, Mr. President.
8 Q. General, specifically that's your role, but what exactly was
9 going on with the British army in Northern Ireland during this period of
11 A. In 1969 there were what became known as the troubles in
12 Northern Ireland. This was largely the Catholic minority who were
13 protesting in various ways, and that became so serious that the
14 government decided to deploy the British Army to Northern Ireland in
15 support of civil authority. It's an operation which is called "Military
16 Assistance to the Civil Power." And we deployed a number of troops early
17 in 1969/1970 whilst I was still at Sandhurst at the time being
18 commissioned, and those troops were there to help restore security to
19 Northern Ireland which would give the space and the time to the
20 politicians to try to resolve the problems within the Catholic community.
21 Q. If we go chronologically General to your next deployment, I
22 believe your CV reflects that you were in Cyprus thereafter. Can you
23 tell us a little bit background in that regard what the British Army was
24 doing, what type of operation it was, and what specifically you were
1 A. Yes, Cyprus
2 stage had been a British -- part of the British colonial rule, and we
3 retrain two sovereign republic bases in Cyprus. There had been trouble
4 between the Greeks and Turks over Cyprus
6 observer force in Cyprus
7 force in Cyprus
8 deployed. It consisted of a number of different nations. The British
9 provided a battalion to help monitor the line between the Greek and
10 Turkish half of the island, and we also provided a number of officers or
11 soldiers to the headquarters of UNFICYP based in Nicosia. I was a
12 captain and deployed to take command of the ordnance detachment within
13 the support regiment of the UNFICYP headquarters.
14 Q. The next item I'd just like to chat with you briefly about was
15 the Gulf war in the early 1990s. Again, could you replicate your
16 explanation with regard to what the British army was doing, what type of
17 operation it was, and what you were doing?
18 A. I was serving in Germany
19 battalion, so I was now a lieutenant-colonel. I had deployed to Germany
20 in September of 1990, which coincided with the invasion of Kuwait by
22 deploy some assets to Iraq
23 September, October, November, and then in December it was decided to
24 reinforce that commitment with a divisional headquarters, a second
25 brigade, and a large number of supporting combat power.
1 I deployed as part of the divisional headquarters. I was the
2 commander of the supply support for the division, and I deployed to
3 Al Jubail [phoen] in December of 1995 and stayed through until we left
4 in -- I think it was April 1996, once Iraq had left Kuwait
5 Q. Now turning to the Balkans. General, I believe you had several
6 deployments at various levels in the Balkans. Can we just go through
7 those briefly?
8 A. Yes. In 1995, the Dalton
9 Peace Accord had been signed. We, the UK, had already deployed some
10 troops as part the UN protection force in the Balkans in the early 1990s,
11 what was known as UNPROFOR, and after Dayton we agreed to deploy a
12 divisional headquarters and other assets to help implement Dayton under
13 what was known as the implementation force or IFOR. At this stage, I was
14 a full colonel, and I deployed as the commander of a logistic support,
15 force support, for that UK
16 the division deployed up to Kupres, and Sipovo and other places in the
17 middle of Bosnia
18 I left there after some months and came back. I took over
19 command of a brigade in 1997 in the Balkans. I went back to the Balkans
20 to take over command of my brigade. My brigade headquarters was deployed
21 at this stage in various places throughout Croatia and Bosnia
22 stayed there for a tour with what was then called the sustainment fours
23 for the Balkans or SFOR. I then came background there from after six
24 months or so, continued to command the brigade in the United Kingdom, and
25 then deployed to the Balkans, this time for the Kosovo deployment known
1 as KFOR. At which stage, again I was a brigade commander. We deployed
2 through Thessaloniki
3 brigade into Macedonia
4 that were happening in Rambouillet at the time would produce probably, we
5 thought, the equivalent of a Dayton Accord. And the UK government, and
6 indeed ourselves, believed that we would see that accord signed and we
7 would then move up into Kosovo to conduct a similar operation to IFOR.
8 As the Court will know that Rambouillet did not succeed, the
9 talks did not succeed, and so NATO began a different campaign, and I
10 stayed with that deployment through until eventually I left the following
11 August, and we had been involved in various aspects of that deployment
12 which you may or may not wish to ask about.
13 Q. Well, we can go into that a bit when we start discussing some of
14 the substance of your testimony.
15 A. Sure.
16 Q. If I can just cover one last item. And that is your deployment
17 in Baghdad
19 A. Yeah.
20 Q. Which ultimately became as we know the Coalition Provisional
21 Authority or CPA.
22 Could you just talk to us just a bit about that and your role in
24 A. This began in 2002 for me, I won't go through the politics of the
25 run up to this, but around October 2002 I was told by the chief of the
1 General Staff, the British chief of the General Staff, that he wanted me
2 to establish a headquarters known as a joint force logistic component
3 headquarters. This would be a two star headquarters, a headquarters
4 commanded by a Major-General, which is what at this stage my rank was,
5 and that involved me establishing the headquarters within the United
6 Kingdom but also travelling to the American headquarters in Tampa
8 planning for possible operations in Iraq.
9 This, of course, had followed on September the 11th and American
10 forces had been in Afghanistan
11 planning for possible operations in Iraq.
12 As the logistic component commander I travelled to Tampa
13 several occasions, and with my other component commanders were looking at
14 the British contribution and possible involvement in that deployment.
15 Around Christmas time, the UK
16 conversations decided -- came to the conclusion that our engagement in
17 that possible conflict would change. Until that time we had assumed that
18 wee -- if it had become necessary, we would enter Iraq from the north and
19 we would deploy through the eastern Mediterranean ports along a long line
20 of communication and then enter Iraq
21 division and that our role would be to secure the northern oil fields and
22 the towns around Krukut [phoen] and elsewhere, the north of Iraq
23 Kurdish region.
24 The British government having concluded that the Turkish
25 government would not wish us to do that made the decision that we would
1 indeed go south and work with the American forces in the south.
2 Logistically that was a much easier operation. At the time I was
3 commanding under my command were two logistics brigades and a number of
4 other assets, and as a result of this change, the UK reduced the logistic
5 commitment to a single logistic brigade. I therefore handed over
6 responsibility for the logistic component command to a one star level
7 brigadier, what some nations call brigadier general, and I returned to an
8 appointment that I had held before this began.
9 Two weeks later I was rung up by the chief of the General Staff,
10 and told that he wished me to go to Washington, to join a small planning
11 team which was led at the time by a man called Jay Garner, who was a
12 retired military -- US
13 at the time called the Office of Post-War Planning. This office had been
14 established under a presidential directive in January of 2003. I joined
15 them in early February 2003, and I stayed with that team in the
16 transition to what became known as ORHA, as you have said; eventually
17 became the Coalition Provisional Authority. I worked with them in
19 at the fall of Baghdad
20 end of June 2003.
21 Q. Just to clarify one acronym that you used, General. You noted
22 CENTCOM in Tampa
23 A. Indeed.
24 Q. I'd like to talk a little bit initially about these two roles
25 that you had in the Iraq
1 component commander, and then in your role working with General Garner in
2 the Office of Post-War Planning or the office of ORHA, the Office of
3 Reconstruction and Humanitarian Assistance.
4 Now in page -- I best -- I believe it's page 9 of your statement,
5 you talk a bit about this role as a component commander basically in
6 paragraph 35, but I think it's the third line down or second line down in
7 paragraph 35.
8 Can you tell us a little bit, General, about what this means when
9 you refer to a component commander?
10 A. When the United Kingdom deploy military operations, they plan the
11 deployment within the United Kingdom in a permanent headquarters based
12 near London
13 for that deployment. He is normally a three-star lieutenant-general
14 equivalent -- or equivalent rank, so it could be an airman or a maritime
15 officer, a royal naval office, or an army lieutenant-general.
16 That three-star appointment who commands the deployment is known
17 as the joint task Force Commander, and he is in overall command of that
19 We then appoint five component commanders, an air component
20 commander, an air officer of two-star rank, a maritime component
21 commander, a royal naval officer of two-star rank, a land component
22 commander, a Major-General, normally one of our divisional commanders. A
23 logistic component commander, depending on the size of the operation that
24 might be a one star or a brigadier general or two star major-general
25 rank, in my case for this deployment to Iraq it was a two-star rank, and
1 finally a commander of our special forces.
2 So there are five component commanders working to the Joint Task
3 Force Commander.
4 We deployed them in different way. Normally on these operations
5 when we're working with, particularly the US forces, we will often put
6 our component commanders in the same headquarters as their equivalents
7 for the US
8 JUDGE ORIE: Mr. Kehoe, I consulted with my colleagues to know
9 the details of how planning was made in military areas does not in any
10 way assist the Chamber in the determinations it will have to make.
11 MR. KEHOE: I will get to the point of this. I will
12 short-circuit this if I can.
13 Q. General, you have in the workup an operational commander, an
14 overall operation commander; for instance, in Iraq, is there not?
15 A. Yes.
16 Q. And I believe in this case it was General Franks?
17 A. Yes.
18 Q. And you mentioned for us that you had a retired general, General
19 Garner, that was responsible for the post conflict work in Iraq; is that
21 A. Correct.
22 Q. Now, when you have an operational commander who is, like General
23 Franks, getting ready to conduct this war, is he part of this planning
24 going on for the post conflict situation that General Garner was taking
25 care of and that ultimately you were taking care of, or is there a
1 division of responsibilities?
2 A. In the example you're quoting, General Franks was the operational
3 commander for the military deployment to Iraq. General Garner is
4 appointed to a separate office of post war planning. His headquarters
5 was based inside the Pentagon in Washington. General Franks'
6 headquarters was in Tampa, Florida
7 Now, there is a linkage between them in that, obviously, there is
8 a transition from purely military operations to the reconstruction of any
9 nation or area of operations post-conflict. But essentially, it is
10 Garner's headquarters who is trying to pull together the plan for
11 post-conflict reconstruction.
12 Q. So would it be General Franks who is getting ready to plan and
13 conduct the war, and General Garner who is getting ready for the
14 post-conflict activity in Iraq
15 A. Correct.
16 Q. Now, you talk in your report - and I'm referring to some of your
17 discussions in -- from paragraph 47 to 54, and we are not going to go
18 through all of that - but we would -- you talk about the what the end
19 state is and you explain what the general end state is, what you're
20 trying to accomplish. And I believe you say that the offensive
21 campaign - would the offensive campaign and the peace support operations
22 be two components of that, whatever the end state happens to be, working
23 towards that end state?
24 A. I should stress that the expression "end state" is relatively new
25 in doctrinal terms, but it attempts to encapsulate what it is that this
1 operation is intended to bring about, the changes, what we want this
2 place to look like once this operation is over. And in most cases,
3 indeed one would could argue in all cases, that is not a military end
4 state. It is it much broader and bigger than that. So, for example in
6 establishing a free nation that is at peace with itself and its
7 neighbour, establishing democracy, a number of expresses that people will
8 bring together to say this is what we would like this nation to look like
9 once this is over.
10 Within that end state there are a lot of different organisations,
11 a lot of different players who will be a key part of bringing that about.
12 And the military's role is obviously to engage in military operations
13 should they be necessary, either in offensive operations and war
14 fighting, or, as I referred to earlier, to conduct peace support
15 operations if there had been an agreement prior to the move-in. And
16 having conducted those operations, to then establish the secure
17 environment within which the non-military players will then bring about
18 this complete end state.
19 So, for example, the military would be responsible for securing
20 the environment that would then enable the judicial system to be
21 established. And I could give some examples of that if you would wish me
22 to go into it.
23 THE INTERPRETER: Please turn off all unnecessary microphones.
24 Thank you.
25 MR. KEHOE: I'm sorry.
1 THE WITNESS: Yes, okay. Not guilty, Your Honour.
2 So they would be responsible for establishing a judicial system,
3 and there would be people responsible for establishing an education
4 system or a trade system. Those people would come perhaps from a variety
5 of different organisations, so in the Balkans, there were various
6 players, non-military players, involved in that work the EU, the OSCE,
7 the United Nations, a lot of non-governmental organisations who would all
8 be responsible for delivering parts of that requirement to deliver that
9 end state.
10 So being clear what it is you're trying to achieve is quite
11 important, if not very important, because then you understand what needs
12 to be done, and indeed you understand that when that has been achieved
13 this operation has been overall successful.
14 Q. Well, just, if I may, referring to your statement, and I think
15 you alluded to this to some degree in paragraph 48 in the second-to-last
16 line -- or third-to-last line, "It is important to note that the military
17 and all its resources are only one component of the total resources of
18 the state that will be required to achieve an end state."
19 A. That is correct. And those other components can be made up of
20 other --
21 THE INTERPRETER: Please turn off the unnecessary microphones
22 thank you.
23 THE WITNESS: Can be made up of other state actors, but also as
24 I've noted, non-governmental state actors as well, so NGOs who help with
25 the humanitarian issues and international organisations under the
1 umbrella of United Nations, perhaps, who will be helping to be deliver
2 some aspects of that end state.
3 Q. Now, you mentioned to us the set up of a court system. I trust
4 that's one of the component elements that you are referring to; is that
6 A. Yes. If I may just refer --
7 THE INTERPRETER: Microphone off, please.
8 THE WITNESS: If I may just refer to the attachment 3 that I
9 included with my statement, which --
10 MR. KEHOE:
11 Q. And that's -- if I may, General, that's on the last page of the
13 A. Yeah. Essentially, what that attachment is trying to show is
14 that the constituent parts of any nation, nation building, post-conflict
15 nation building, has to encompass all of these, in this example, cords of
16 a rope, and the military is shown as a single cord here, but the rule of
17 law is a separate cord of this rope. And that rule of law of course is
18 not necessarily unique but certainly will apply to that nation. So the
19 rule of law in the Balkans might be different in the way that the
20 constitution is constructed to other operations around the world. It may
21 be that some military assets are used to assist in that process, but it
22 is not the military whose role is to establish that rule of law,
23 policing, judiciary, prison service, and so on.
24 Q. If we could go to the last page of this report to just view this
25 for on moment, the cord that you were talking about.
1 MR. KEHOE: If we can spin that.
2 Q. Now, General, in there you talk about the constituent's military
3 being one of them, and you not the array of other components. Now,
4 discussing resources and those components, and I ask this question on the
5 strategic as opposed to the operational level, when a decision is made on
6 resources to be provided to all these constituent components, is that
7 done on a strategic or an operational level?
8 A. It would be done --
9 THE INTERPRETER: Microphone off, please.
10 THE WITNESS: It would be done primarily at the strategic level.
11 So, for example, when we were preparing to move into Baghdad, both for
12 the for the United Kingdom and indeed for United States and other nations
13 who were engaged at that time, there were people being nominated from
14 other departments, other governmental departments, to deploy alongside
15 the military to take the lead in standing up the ministries, standing up
16 the education system, and so on. For the United Kingdom we deployed
17 people from our Foreign Office, people from our Department of
18 International development, and indeed capabilities from the police, the
19 Home Office, and others. The United States and indeed other nations
20 deployed individuals from within their treasury departments, from within
21 their health departments, from within their education departments, an
22 array of individual who would be responsible for various aspects and
23 indeed the many subconstituent parts within each one of these cords.
24 Q. General, I'd like to go into the central focus of your report
25 which is post-conflict matters, and peace support planning.
1 MR. KEHOE: And for the Chamber and all those in courtroom, we'll
2 be referring for the most part between paragraph 55 to 79, and if we can
3 start at the outset, General, with a comment that you make in
4 paragraph 56, and it's four lines down:
5 "That said, the lessons of history reveal that certain problems
6 and challenges can invariably be expected in post-conflict areas."
7 General, can you just elaborate briefly on that -- what you are
8 trying to say in that -- what you were -- just explain what you were
9 trying to say.
10 A. Every -- this is obviously my personal story in the sense of the
11 different deployments that have I been involved with over the years.
12 Every one of those deployments is unique. It's not possible to produce a
13 template, a solution that can be applied in every deployment. What is
14 suitable for the Balkans, for example, might not be suitable for Iraq
15 indeed a deployment to Africa
16 what is suitable for a particular part of the world at one period of time
17 may not be suitable subsequently as events unfurl and things change.
18 The reality, that said, is that there are certainly problems and
19 events that reoccur on these deployments. When there have been -- when
20 there's been a war, when people have been at each other's throats for a
21 long period of time, in many cases many years, over many years, indeed in
22 some cases over many generations, then retribution, criminality, chaos,
23 you know, is an inevitable consequence in my experience.
24 So what we saw happening in Kosovo, once the KFOR had deployed
25 into Kosovo, what we saw happening in Baghdad is not unusual, not
2 Q. Let us stay with that. Those two items as we hear, and talk to
3 us a little bit about what you saw happening in Kosovo on your KFOR
5 A. I think it might be helpful to just --
6 THE INTERPRETER: Microphone, please. Thank you.
7 THE WITNESS: It might be helpful to just lay out from my
8 personal point of view the run-up to the move into Kosovo.
9 Notwithstanding what I was explaining earlier, as a result of the NATO
10 bombing of Serbia
11 Kosovo who then subsequently crossed over the borders into Macedonia and
13 dramatically over this period.
14 For various reasons which I'm very happy to explain, my brigade
15 ended up by building and running refugee camps because there were not
16 sufficient non-governmental aid agencies, or indeed UN agencies, in the
17 region to do that.
18 So I saw and worked alongside and operated the refugee camps in
19 northern Macedonia
20 into Kosovo.
21 Once agreement had been reached for KFOR to move into Kosovo, the
22 original thinking was that there would be a sort of orderly return of all
23 of these refugee who had crossed over the international borders and that
24 KFOR would try and organise various aspects of -- of the infrastructure
25 and so on within Kosovo before these people came back. What happened was
1 the minute the border was opened, the refugee camps that I had built and
2 operated, which contained several tens of thousands of refugees,
3 virtually emptied over night. Over two or three days, everybody just
4 started returning.
5 So the first thing that happens is that people want to go back to
6 their homes, to their villages, to their towns, or indeed the cities,
7 like Pristina, and trying to do that in an orderly way, it's always -- I
8 wouldn't wanted to be too specific, but my personal view is always
9 virtually impossible. People, not surprisingly, want to get back to
10 their home villages and so on. In many cases, of course, they had been
11 separated from members of their families. Most of the refugees in
13 A lot of men had either been killed within Kosovo in the previous
14 years or they had gone into the hills and joined the Kosovo Liberation
15 Army, the KLA, or indeed had disappeared. So families wanted to be
16 reunited with their fathers, their uncles, their brothers, or, indeed,
17 their children, and we did have quite a few families in the camps who had
18 just children on the way as they had been forced over out of their homes
19 and forced over the border.
20 So --
21 MR. KEHOE:
22 Q. General, let me stop you right there just so I can ask one
23 question. On this orderly return, why didn't you just set up
24 check-points and control this return of these refugees going back to
25 their homes? Was that a viable solution.
1 A. From our point of view - and I say from our point of view, from a
2 military point of view - we, of course, wished to ensure that the main
3 roads, the main lines of communication, were kept open for the movement
4 of the military and, of course, all of the supply chain requirements.
5 And monitoring the flow of traffic up those main routes, in this case in
6 Kosovo is there is only one main road from -- from Skopje to Pristina,
7 alongside it there is a railway line, which we also established got up
8 and running and used for these purposes, but essentially one wants to
9 ensure that the military line of communication is kept relatively free,
10 and so establishing check-points to try and control the flow of traffic
11 using military police to do that is certainly something that we wanted to
12 do and in some cases established.
13 But, of course, these people came from their homes. They had --
14 there were lots of minor roads, lots of tracks, lots of routes through
15 hills and the forests that got them back to their homes without using
16 main roads, and any attempt to secure, if you like, the border area, and
17 force people simply to use the main lines of communication, well, again,
18 would be very difficult if not impossible and would certainly mean the
19 use of a large amount of man power.
20 In Northern Ireland
21 securing the border between the north of Ireland and the south of Ireland
22 was something we worked hard to do, to stop the infiltration of weapons
23 and other people and so forth. We established many vehicle check-points,
24 many patrols and so on, but it is just impossible to seal a border in
25 that way.
1 Q. Continuing on with your observations and what you saw in KFOR as
2 people began to move back into Kosovo. Can you explain that a bit?
3 A. Yeah. I think the -- there are a number of things that were
4 going on. One of the things that is most noticeable is that very quickly
5 small businesses spring up all over the place so that people are selling
6 literally jugs of petrol, bottles of petrol, by the side of the road,
7 packets of cigarettes, and so on. Where they get that from is debatable,
8 but certainly essentially, to use the expression free enterprise, if you
9 like, capitalism is trying to break out, people are trying to establish
10 businesses and they are trying to secure a living.
11 In going back to their homes and to their villages, one of the
12 sadnesses for me, in Northern Ireland, in Cyprus, in the Balkans, Iraq
13 is that people turn to criminality and they turn to retribution. They
14 try and find out who it was that threw them out of their homes in the
15 first place. Maybe somebody who had killed members of their family, mass
16 graves, of course, are found this these places, people try to find out
17 who is accountable for that. And there is a very difficult line for the
18 authorities to hold between doing that in a to formal coordinated
19 controlled way and just banditry and criminality breaking out.
20 In Kosovo, there was no doubt that there was a retribution going
21 on, the Serb families that had stayed behind were intimidated and KFOR
22 worked hard to stop that intimidation and to secure the areas and to try
23 and establish the rule of law in and around, but that is extremely
24 difficult to do and there is no doubt that there were murders and other
25 things going on whilst KFOR initially moved into and then established
1 itself. It is -- we're saying, of course, that in moving into these
2 places there is a period of time when the military are establishing
3 themselves as much as anything else. They are getting their bases sorted
4 and so on, but very quickly you would be want to be seeing patrols out
5 and about and gathering as much information as possible, and then
6 attempting to bring, establish the secure environment that I spoke of
7 earlier on, that would then enable the non-military players to bring
8 proper reconstruction and reconciliation and so forth.
9 Q. General, in paragraph 34, you note in paragraph 32 about the
10 chaos inherent in these situations and the types of crime were not
11 unexpected, but you note in paragraph 34 that there were 50.000 KFOR
12 troops, and it took between the 12th of July until -- in August of 19 --
13 excuse me, 12th of June and August, and I believe in paragraph 82 you say
14 it took six to eight weeks.
15 General, with that type of force of 55.000 -- 50.000 troops, why
16 did it take this period of time to get this situation under control?
17 A. I think it is worth stressing that the total force of the KFOR --
18 THE INTERPRETER: Microphone, please. Sorry.
19 THE WITNESS: I think it's worth stressing that the 50.000 figure
20 is roughly the size of KFOR and that includes, of course, headquarters
21 and support structures and support units, but nonetheless we're talking
22 probably effectively 30.000 to 40.000 troops who very quickly you wish to
23 get out and about driving in their vehicles, finding out what's going on,
24 trying to establish a secure environment.
25 The reality is that you can't be everywhere all the time, and
1 certainly you can't be guarding every building, and protecting every
2 village. You try and establish a presence. You make it absolutely clear
3 to people that force will be used, if necessary, to stop looting and
4 violence and so on. In a situation like Dayton and IFOR this was
5 relatively unnecessary, and very quickly the other agencies that we spoke
6 of were able to impose and bring about the environment, the court system,
7 the prison system, the economic development and so forth, but, as we
8 know, sadly, in Baghdad
9 people worked very hard to establish that quickly - it did take a certain
10 period of time to do so.
11 I don't know, and I need to be careful in terms of these
12 time-lines and what was going on in terms of the amount of criminality
13 and the individual events that happened, my statement is intended to show
14 that it did take a period of time for KFOR to establish that secure
15 environment, and in my experience that is always the case. I think it is
16 worth saying, too, that, of course, in any environment, in any city in
17 the world, there is always criminality. That's why we have a police
18 force, so one never gets rid of criminality. The important issue is that
19 people understand that criminality will be discovered, investigated,
20 people will be brought to justice, and there is an establishment of the
21 rule of law, and although KFOR made that very clear from the beginning,
22 it took a period of time before we were able to impose that and make it
23 absolutely clear to people that criminality would not be accepted.
24 Q. Staying with KFOR, General, at paragraph 73 at the top with the
25 50.000 troops, from 30.00 to 40.000 on the ground, you note that:
1 "Operation Banner and KFOR had, in my opinion, sufficient 'boots on the
2 ground' to succeed - over time - in stabilising their areas of
4 So looking back, General, with that type of reference, the six to
5 eight weeks, do you consider that KFOR was successful after this period
6 of time and with a sufficient amount of troops to stabilise the area?
7 A. Inevitably that is a matter of judgement. I would argue that
8 Kosovo was ultimately successful and Northern Ireland was successful, but
9 it doesn't mean to say - and I think again it is important to
10 acknowledge - notwithstanding -- notwithstanding the fact that I don't
11 take pleasure in acknowledging it, but in Northern Ireland for decades
12 people were killed, there were riots on the streets at occasional
13 seasons, known as the marching season in Northern Ireland, and indeed in
14 Kosovo for some considerable period after this time, there were incidents
15 that occurred which is why the military capability continued to be
16 deployed in Kosovo, and indeed continued to deploy throughout the Balkans
17 for a number of years and some aspects of it remains today.
18 The -- the balance here is how much of a presence do you need to
19 retain and sustain over time in order to sustain and maintain the secure
20 environment, and I won't go into great detail, but there is one problem
21 which in some places, if you keep military there too long they can become
22 a part of the problem, and so you're constantly trying to keep the
23 military reducing, in a way, and allow the civil establishments, civilian
24 policing and so forth to be established, and that is a difficult balance.
25 But I would argue, yes, Northern Ireland over time, but it was a long
1 time. One has to acknowledge that Operation Banner was in place for 37
2 years in Northern Ireland. It started the year I was at Sandhurst
3 finished the year I left the British Army, and Kosovo continued to be a
4 difficult place for some considerable time after my deployment.
5 But over all, the rule of law was pretty well in place for -- for
6 that time.
7 Q. Staying with one last question on Kosovo. In -- you talk about
8 some of the criminality that you observed in paragraphs 30 to 31, 32 of
9 your report, and I would like to just focus you on the paragraph 32. The
10 third -- fourth to last line:
11 "The perpetrators ranged from desperate refugees to organised
12 criminal elements including, I suspect, low level members of the KLA ..."
13 General with regard to these KLA member, I mean, United Nations
15 was responsible for the area, why didn't UNMIK or, in conjunction with
16 NATO, just go in and remove these KLA leaders whose soldiers might have
17 been committing some type of crime? Why didn't they do that?
18 A. I should say, I think, in response to that question, that that
19 sort of decision was -- would have been taken certainly above my
20 position. So General Mike Jackson who was a lieutenant-general in
21 command of KFOR and the other national components and their governments
22 would have certainly been involved in such a discussion.
23 JUDGE ORIE: Mr. Cross, sorry to interrupt you. The question was
24 why they didn't do that. Do you know why they didn't do that, because
25 you start now describing at what level such decisions would be taken. Do
1 you know why they did not do that? If so, please tell. If you don't
2 know, tell us as well.
3 THE WITNESS: Certainly Your Honour.
4 I think to be fair the answer to the question is I don't know
5 specifically, but having lived through the experience, my understanding
6 was that removing the senior command cohort would not have made a
7 different to what we are talking about here. So the --
8 JUDGE ORIE: That's your assessment.
9 THE WITNESS: That is my assessment, but I was not involved in
10 the decision-making process. I'm not even sure, to be honest, whether
11 there was a discussion about the necessity to do this.
12 JUDGE ORIE: Mr. Kehoe, please proceed.
13 MR. KEHOE: Yes.
14 Q. Staying with your assessment, sir, based on the situation, why do
15 you think it wouldn't have made a difference?
16 A. The evidence that I saw, the evidence that I saw as I travelled
17 around Kosovo, was that much of what was happening was not done as a
18 result of specific orders being passed through a chain of command. There
19 was no effective chain of command in many respects. Now, again I have
20 not seen any evidence or construct within the KLA command chain, but many
21 of the people who were returning to their villages and towns, as I said
22 earlier, came from the refugee camps. Many of the people who'd headed
23 for the hills inside Kosovo were ordinary people from these villages and
24 towns, and they were returning back to them.
25 I'm not aware that they were under any specific orders to do
1 anything. They just went home, and in going home and got back to their
2 villages, they then established their homes and their livelihoods.
3 Q. And based on that, sir, these people that went up to the hills,
4 did they, based on your knowledge, join up with the KLA while they were
5 up in the hills?
6 A. Certainly some did, but I about not suggest by any means that all
8 Q. General, I'd like to just shift gears, if I may, and turn to some
9 of the assumed facts that you were looking at in paragraph, and that
10 would begin on page 18, and I'm most interested with regard to the
11 paragraph (w) and (y) which discusses the amount of military police and
12 civilian police. And while we -- in paragraph (z), which is the civilian
13 police and in the operative area --
14 MR. KEHOE: Mr. President, and we did inform the Prosecution of
15 this, with regard to paragraph (z) we have sent to the witness a --
16 updated figures and, of course, these are approximations because they
17 don't squarely follow between the indictment and Sector South, but we
18 provided a information in D1577 and approximated the level of civilian
19 police to somewhere in the area of 700 to 800 as opposed to the 400 to
20 500 figure, and we did that based on the testimony of a recent witness
21 that came after the General had -- or we filed a report on the General's
22 behalf. So I just wanted to advise the court of that as we move through
23 this, that we have actually upgraded that number. Once again, it doesn't
24 squarely fall between Sector South and the indictment time-frame.
25 Q. Now --
1 JUDGE ORIE: Mr. Hedaraly.
2 MR. HEDARALY: I just want to correct that the information we
3 received was that that number was up to 700, not 800, and it was I
4 believe not confirmed by the witness, it was an exhibit D1577. So just
5 so that the record is clear, that's the information we received from the
6 Gotovina Defence.
7 MR. KEHOE: And the purpose, of course, is to put it in that
9 JUDGE ORIE: [Overlapping speakers] ... is that challenged?
10 Mr. Hedaraly give as small correction to what you said. Any challenge to
12 MR. KEHOE: Mr. President, we were just trying to use the highest
13 number possible which was 700 to 800, so I mean if we can go with --
14 JUDGE ORIE: Please proceed. Let's try to come to what perhaps
15 should be the core of the evidence of this witness.
16 Please proceed.
17 MR. KEHOE:
18 Q. Now, General, just looking at these particular figures in (w) and
19 (z), and as a preliminary question, this Chamber has received evidence,
20 and this is at D1361, at page 21, paragraph 147, that approximately
21 42.000 ethnic Croats who were internally displaced people from Sector
22 South alone, that was the number, and likewise have received information
23 that people were attempting to come back.
24 Without repeating what you said before, in detail, would such a
25 coming back of the civilian population into Sector South after Operation
1 Storm present security concerns as you've addressed?
2 A. Yes. I think 42.000 is significantly large figure and trying to
3 control that flow would not be easy.
4 Q. And as you were preparing your report, were you aware of some of
5 the events that had taken place that would lead to degrees of
6 recrimination and revenge from the civilian population?
7 A. In what context?
8 Q. Of the people who had been expelled and were now returning?
9 A. And we're talking here of Kosovo.
10 Q. In Kosovo as the -- and is the parallel with Croatia, coming into
11 the Krajina?
12 A. Again, I must stress this is a personal judgement, but from my
13 experiences of all the interethnic and various other deployments I have
14 been involved with, the sad reality is that as people return bark, yes,
15 they -- they are involved in various aspects of criminality, and I
16 remember saying to, when we were building refugee camps in northern
18 within these camps there were people who were angry and had had relatives
19 killed, and they were not innocent in the sense that they were -- this
20 was a sample of humanity here who had gone through very difficult times,
21 and it was quite clear that however hard we tried it was going to be
22 difficult, if not extremely difficult, to stop the sort of things that
23 you're alluding to.
24 MR. HEDARALY: I am --
25 JUDGE ORIE: Mr. Hedaraly.
1 MR. HEDARALY: Could we just have a clarification on whether --
2 the question was whether the witness was aware of that criminality, and I
3 think the witness is referring to his awareness of what happened in
4 Kosovo. If we can just clarify, because the question has the "to" and
5 the answer is combines. If we could just clarify that answer.
6 THE WITNESS: That is correct. I can only comment on what I have
7 experienced and seen in Kosovo. I was not aware of what was happening
8 in -- in this part of the Balkans in 1995.
9 JUDGE ORIE: Yes. Although usually the Chamber decides on what
10 to do with objections, and requests for further clarification, Mr. Cross.
11 You have directly responded. I would invite you not to do that.
12 THE WITNESS: I'm sorry, Your Honour. I will wait.
13 JUDGE ORIE: But I think it certainly is not dramatic, at this
14 moment, Mr. Kehoe, was it.
15 MR. KEHOE: No, Mr. President.
16 JUDGE ORIE: Then please proceed.
17 MR. KEHOE: Yes.
18 Q. General, before we move off this point, from your experience in
19 the Balkans were you aware what happened to the Croats in the Krajina
20 from 1991 to 1995?
21 A. Yes, I was. But not in -- in great detail. I had not been
22 involved in the UN deployment to the Balkans. I had been through the
23 Gulf campaign that I spoke of, and I continued to command my regiment in
25 1995, we deployed the British forces through Split, through the port of
2 theatre came through Split
3 from Split
4 so -- moving through that area listening to people talking to people, I
5 was aware of the fact that there had been this trouble in the years that
6 you mentioned.
7 JUDGE ORIE: Mr. Kehoe, I consulted with my colleagues.
8 MR. KEHOE: Yes.
9 JUDGE ORIE: If I look at your last question, that is the
10 question of a kind of -- from your experience as being a European, were
11 you aware of what happened between 1940 and 1945 in Europe. These are
12 unfocussed questions which do not assist the Chamber. The Chamber
13 invites you to come to the core of what, apparently, is -- was on the
14 mind of the Gotovina Defence when it selected this witness. Until now,
15 if five per cent or seven per cent has even come close to that, that
16 might be a relatively high estimate.
17 Would you please not provide the Chamber -- of course, we do
18 understand that the experience of the witness in Iraq and Kosovo, et
19 cetera, is relevant for the experience on which he bases his expert
20 opinion. But to ask the witness to tell a lot about what happened in
21 Kosovo and what happened in Iraq
22 compare that with Croatia
23 little knowledge about that, doesn't assist at this moment, the Chamber.
24 Would you please keep this in mind, and could I ask you how much
25 time had you in mind to continue the examination of this witness. By the
1 way, the report is quite clear. That's another perhaps small problem,
2 that quite a lot of your questions are dealt with in the report in such a
3 way that it's clear to the Chamber what the witness wants to convey to us
4 and what you ask him does not always add much to that.
5 Could you tell us on how much time you would still need so that I
6 can consider that, together with my colleagues.
7 MR. KEHOE: Well, Mr. President, there are -- I do look forward
8 to the opportunity to tying this all together to you and alleviating the
9 Court's impatience. With regard to the -- excuse me.
10 JUDGE ORIE: There is no impatience by this Court, Mr. Kehoe.
11 MR. KEHOE: Mr. -- I --
12 JUDGE ORIE: Yes, would you please -- do you accept that?
13 MR. KEHOE: Well, Mr. President, I would --
14 JUDGE ORIE: If you don't accept that, please tell me.
15 MR. KEHOE: I don't accept that.
16 JUDGE ORIE: Okay. That's clear. That's on the record now.
17 MR. KEHOE: I don't accept that.
18 JUDGE ORIE: Please proceed.
19 MR. KEHOE: Mr. President, with regard to the focus of this, of
20 course, we never got a 94 -- a Rule 94 bis focus as to what the
21 Prosecution was disagreeing with in this score, so -- I mean, I've
22 attempted to outline the general parameters of what the witness is saying
23 for the purposes of the Trial Chamber, given the fact that the
24 Prosecution has simply said orally last week that they wanted to
25 cross-examine the witness.
1 So, I will attempt to focus this as quickly as possible under
2 these circumstances, Mr. President. I do not believe that I have taken
3 an inadequate period of time. We started approximately one hour ago with
4 this witness. I had listed it for three hours, and I will be done
5 relatively briefly, and there is the basis of my conclusions in that
6 regard, and once again, it's -- it's simply a matter of receiving from
7 the Trial Chamber what was given to the Prosecution. And simply we will
8 get through this very quickly with these matters, but the Gotovina
9 Defence concluded that it was essential to bring certain elements of this
10 to the Court now.
11 Q. Going back, General, to paragraph 80, and with the assumed facts
12 that had been set forth, we have 1.000 military police and 3.500 civilian
13 police for the entire Krajina. Based on your experience, General, in
14 Northern Ireland, in Cyprus, in Kosovo, and in Baghdad
15 resources would you have expected a high degree of control in that area
16 given the facts that we've talked about, such as 32.000 civilians coming
17 back, and there being a transition with the HV taking this area back from
18 the Republic of Serb
19 A. If I may, I think I would respond but saying I think it's
20 important to say that the -- it's not just the numbers we're talking
21 about here. It's the quality and the professionalism of the people. The
22 numbers to me, from what I have seen in the other places, are certainly
23 low in -- in assuming that they could bring order out of a very chaotic
24 situation. If -- if they were moving into an area that was calm and all
25 that was required from normal policing, and if these were professional
1 policemen who were well led and had a strong ethic and ethos of
2 establishing justice and fairness and so forth in the way that we would
3 all expect and desire of our police forces, then that be would one issue.
4 I do think it's important to recognise that the ability to
5 command, control, and give a construct to these people, I have no way of
6 knowing what that was like. I have no way of knowing what, to use a
7 military term, the morale component of these people was like, what was
8 their leadership like, what was the command and control structure like,
9 what was their ethics, what was their ethos, did they understand and
10 apply, for the military, the laws of armed conflict, the Geneva
11 Convention, and so on. So I think the numbers to me are certainly not
12 excessive, and if I compare them to somewhere like Northern Ireland,
13 whereas I said earlier the military were deployed in support of the civil
14 power, and recognising in that province the size and shape of the Ulster
15 Constabulary, the Royal Ulster Constabulary, then, I think it is
16 difficult to compare the two and say, that it would be an equivalence.
17 Q. Now, we are talking about an area as -- in the assumed facts that
18 you were given in 80(c) of approximately 10.000 square metres for the
19 Krajina -- excuse me, square kilometres, I'm sorry.
20 A. Square kilometres.
21 Q. Well, I know that it's very difficult to be exact under these
22 circumstances, but given with -- a degree of internally displaced people
23 coming back, and the area just peaking -- taking over for a conflict, can
24 you give us a rough idea of how many people might have been necessary in
25 the law enforcement, bit it military police or civilian police, to bring
1 a degree of security to the area.
2 A. I don't want to avoid the question but I don't want to give you a
3 specific answer. I can only say that this province -- this size of
4 terrain, territory we're talking about, is of equivalence to Northern
6 roughly the size and shape of those equivalent territories, and each of
7 these locations -- each of these places is, of course, unique, the
8 territory, the size and shape of the villages, the towns, the roads
9 systems. I don't know this part of the Balkans and it is important that
10 I stress that. Therefore, to give you a number, I cannot give you a
11 number. But I do know that in the size -- if one compares the size and
12 shape of Kosovo, Northern Ireland with the sort of numbers that we had in
13 those place, then the -- it is it not an equal comparison.
14 Q. Let me talk to you a little bit about the actual planning of
15 these peace support operations that I trust you were involved in with
16 General Garner, and if I can turn your focus to paragraph 55 where you
17 note that:
18 "The planning for a peace support operation as with other
19 operational planning should therefore be guided by a clearly defined
20 strategic end state. And those involved in the planning should include
21 all of the necessary and responsible authorities, ministries,
22 departments, departments of state."
23 Now, explain to us, if you can, that in the area of peace support
24 operations, why people who should -- those people who are responsible
25 should be part of the planning of those peace support operations?
1 A. Certainly from my own experiences and a military perspective, we
2 have an expression that says those who plan, implement. Now, this works
3 both ways. It's very easy to come back with a plan in a headquarters
4 back in the United Kingdom, for example, and to be clear about what the
5 intention is, but to actually implement that on the ground in a theatre
6 of operations is much more difficult.
7 On the other hand, to simply be the implementor without
8 understanding what it was and what is the ethos and the ethic that goes
9 behind the planning process puts you in a very difficult situation.
10 So in an ideal situation, if I'm going to be accountable for
11 delivering some sort of success in an operation, it should be me and my
12 staff who plan and implement that operation. And in the context of
13 post-war planning, I would wish to have in my staff, on my staff,
14 representatives of the other non-military players that I alluded.
15 So, for example, in deploying to Washington to begin the post-war
16 plan with Garner, I requested from the United Kingdom and received
17 representatives from the Department of International Development and the
18 Foreign Office, linkages to those departments for the Department for
19 International Development, the man who was given to me was based in New
20 York, and he acted as a link for me whilst I was in Washington, and on my
21 team living with me permanently were members -- two members initially
22 from the Foreign Commonwealth Office.
23 When we deploy to the theatre of operations, the component
24 commanders, the land component commander in particular, was, again
25 attached to his staff, were members of the department for international
1 development, and in the joint headquarters at the three-star level as
2 necessary, other people could be attached to that headquarters, who would
3 be responsible for delivering the non-military parts of that plan.
4 JUDGE ORIE: Mr. Cross, may I ask you a question?
5 THE WITNESS: Your Honour.
6 JUDGE ORIE: Would your answer be very short, don't plan a job
7 without involving those who have to do the job?
8 THE WITNESS: Correct, sir.
9 JUDGE ORIE: Yes. Isn't that true for everything in life?
10 Operations, whether you build a hospital, whether you create a business,
11 whether -- I'm just trying to find out what we have now specifically
12 learned from you and that could I say that this is general wisdom. Don't
13 plan a job and ignore those or don't involve those who have to do the
14 job. That's simply what you're telling us; is that correct?
15 THE WITNESS: Your Honour, that is true. All I would say that in
16 the environment in which I have operated over the last 30, 40 years, a
17 failure to do that has consequences.
18 JUDGE ORIE: Yes. Isn't that true for building a hospital, if
19 you don't involve them that it gets -- it goes wrong? I'm just trying to
20 find out what are just the -- I would say the general lessons we learn in
21 life, and what you're actually saying is that they apply in this field as
23 Is that --
24 THE WITNESS: That is true.
25 JUDGE ORIE: Please proceed, Mr. Kehoe.
1 MR. KEHOE: If that's a fact that's taken off the table and then
2 not part of the Prosecution's case, we will, of course, accept that
3 stipulation from the Prosecution and move on.
4 JUDGE ORIE: You may proceed, Mr. Kehoe.
5 MR. KEHOE: That's, of course, why we covered the topic,
6 Mr. President.
7 Q. Now, moving from the planning to the actual execution, if, for
8 instance, the person responsible for this post-war planning was involved
9 with military police and civilian police, would you likewise expect
10 information to be passed to that person who was responsible from the
11 military police or the civilian police, on a regular basis?
12 A. Yes. I think the issue here is a clear coherent command and
13 control. Who is -- if I am the commander, when I was involved in these
14 operation, understanding who worked for me, which individuals and which
15 organisations were under my command, and therefore, what would I be held
16 accountable for was clearly important. And those people who worked for
17 me would report back to me on a regular basis as to what was going on,
18 how they intended to executed their part of the plan.
19 For us, the British military, we do that on a daily base sitting
20 around an operational table, going through what is happening, thinking
21 through how we're going to reacts to whatever events are unfurling, and
22 indeed preparing to be proactive in achieving our intent.
23 So I would wanted a regular feedback to me as the commander by
24 the people who I command and who are clearly under my command on a
25 regular basis.
1 Q. Lastly, General, I just want to cover briefly the issue of
2 pre-planning, and then resources and time available for the pre-planning
3 and implementation.
4 You note in paragraph 38, and in -- you are talking about the
6 "In my estimation the coherent planning for a post-conflict peace
7 support operation of this magnitude was both late in starting and
9 Going to paragraph 80 in the stipulated facts, we noted in
10 paragraph --
11 JUDGE ORIE: Mr. Hedaraly.
12 MR. HEDARALY: I don't think they're stipulated.
13 MR. KEHOE: Excuse me, I apologise. The --
14 JUDGE ORIE: The facts presented to the witness.
15 MR. KEHOE: -- provided, provided.
16 JUDGE ORIE: Yes.
17 MR. KEHOE: Thank you, counsellor.
18 JUDGE ORIE: Please proceed.
19 MR. KEHOE:
20 Q. 80(e), we're talking about the planning for the peaceful
21 integration going on since 1993, and paragraph (f), the planning for
22 peace support operations following the military liberation of the
23 so-called Krajina region of Croatia
24 Operation Storm.
25 Now, you note in paragraph 30 83 [sic] that that time was
1 insufficient. That's in the last sentence. Can you elaborate on that
2 just a bit. Tell us why you think it's insufficient, and under the
3 circumstances that you have been given in the given facts, how long do
4 you think was necessary for the pre-planning of such an operation as the
5 re-takeover of the Krajina?
6 A. Again, maybe unhelpfully, it's difficult for me to give you a
7 time line for an operation that I was not involved with, although I'm
8 aware of it, was not part of the planning process.
9 I said in that part of the -- of my statement that you referred
10 to that for postwar reconstruction of a major world conflict, there had
11 been months, indeed years of the planning, for the post-war
12 reconstruction of Europe
13 the spectrum, if you like.
14 Q. You're talking about after World War II?
15 A. I am indeed. The other end of the spectrum, my experience of
16 post-war planning for Iraq
17 office of post-war planning in January 2003. The military campaign to
18 secure Iraq
19 sufficient time to enable him to get a coherent plan together and to be
20 able to execute that plan. Rebuilding a nation the size and shape of
22 lot longer than that.
23 Now to be fair, in the context of -- or in the context of this
24 court, other departments of state had indeed been doing work for the
25 planning of the reconstruction of Iraq, but Garner, who is in command of
1 this post-war plan, had not been involved in any of those other pieces of
2 work. And, indeed, one of the first things he had to do was to find out
3 what work had been done, meet with those people, and try to discover what
4 planning had been achieved.
5 So I think Garner is at the other end of the spectrum, he is
6 given nowhere near sufficient time to prepare and plan for post-war Iraq
7 Where does this case fit within there? I would say it is at Garner end
8 of the spectrum, not at the World War II end of the spectrum. I could
9 not tell you whether they needed five weeks or fifteen weeks or twenty
10 weeks, my instinct having understood the facts that you've given to me is
11 that one week is nowhere near sufficient.
12 Q. If I may have one moment, Mr. President.
13 JUDGE ORIE: Yes, please.
14 Meanwhile, for the record, I already clarify that when Mr. Kehoe
15 and I were competing to be heard, that I said that these were facts
16 presented to the witness on page 40, line 15.
17 [Defence counsel confer]
18 MR. KEHOE: Mr. President, I have no further questions.
19 Q. Thank you, General.
20 A. Thank you, sir.
21 JUDGE ORIE: Thank you, Mr. Kehoe.
22 We have received from both Markac Defence and the Cermak Defence
23 that they are considering to examine or cross-examine the witness.
24 Mr. Cayley.
25 MR. CAYLEY: Yes, Your Honour, we don't have any questions for
1 the witness. Thank you.
2 JUDGE ORIE: You don't have any questions.
3 Mr. Kuzmanovic.
4 MR. KUZMANOVIC: Your Honour, I just may have one or two
5 clarification questions and then that's it.
6 JUDGE ORIE: Yes. I suggest that we'll do that after the break,
7 and --
8 MR. KEHOE: Mr. President, if I can just clarify one matter. The
9 report is 65 ter 1D2741, and we will move for admission into evidence at
10 this time.
11 JUDGE ORIE: Yes, Mr. Hedaraly.
12 MR. HEDARALY: Your Honour, if we could, reserve or position
13 until the end of the examination of the witness. We may want to make
14 some of written submissions regarding the report later on, based on what
15 happens during the testimony. If we can just -- I think that was done
16 for a few of the witnesses, the expert witnesses of the Prosecution, so
17 if we can just have it MFI
18 JUDGE ORIE: Mr. Hedaraly, at the same time, you would be aware
19 that where Mr. Kehoe apparently did not go through parts of the report
20 additionally to the questions he had done, of course, Mr. Kehoe should
21 know whether or not finally this report will be evidence or not, because,
22 I take it that, otherwise ...
23 [Prosecution counsel confer]
24 JUDGE ORIE: He might want to adapt his position.
25 MR. KUZMANOVIC: Your Honour, I might add that, for example, with
1 Mr. Konings, and I think there was at least one other expert, we filed
2 a -- specific motions asking to preclude certain portions of those
3 reports and testimony well in advance of testimony, so I think it's
4 inherently unfair to us to state here now that there are some questions
5 we might have, that we don't know if we want to admit the report. I
6 think that's completely inappropriate at this point.
7 And 94 bis is very clear about what's required.
8 [Trial Chamber confers]
9 MR. KEHOE: If I --
10 JUDGE ORIE: Mr. Hedaraly, we'll, first of all, carefully
11 consider the positions taken under Rule 94(B) by the Prosecution.
12 MR. HEDARALY: I believe what the position orally was that the
13 report was not accepted and that we wished to cross-examine the witness.
14 JUDGE ORIE: But is there any challenge to the witness being an
16 MR. HEDARALY: There is no objection to the witness being an
18 JUDGE ORIE: Now, what then we have an expert report and you want
19 to challenge the report, which is fine. But if the report disappears
20 what would remain? I mean, you would elicit answers from the witness
21 which may undermine, turn out to undermine or to confirm the expert
22 opinion he has given in his report, but we then have to do without this
23 report? Especially -- especially where there is no challenge to the
24 witness being an expert. Because that would change matters, because if
25 you say, You shouldn't admit into evidence an expert report from someone
1 who is not an expert. That's -- that would be clear. That would ...
2 MR. HEDARALY: I -- I think -- I think the objection is more into
3 the relevance of some portions of the report, and I think that is what
4 the objection would be. As I said, at this stage, we would like to carry
5 on with the examination of the witness. It may be that at the end of
6 that we will not object, but at this stage after the examination of
7 the -- the direct examination and some of the answers given by the
8 witness, all I'm asking right now is to reserve or position until the end
9 of the examination so that we can formerly then object or not object to
10 the admission of the report in evidence.
11 MR. KUZMANOVIC: Your Honour --
12 JUDGE ORIE: You would say -- one second, please, Mr. Kuzmanovic.
13 You would say from questions and answers to the witness, the relevance
14 would emerge.
15 MR. HEDARALY: It could, Your Honour.
16 JUDGE ORIE: It could.
17 MR. KEHOE: Mr. President, frankly, they -- the Prosecution under
18 94 bis (B)(iii) has waived any objection to this report. They were
19 required to file a notice. They filed no notice. They did nothing. So
20 any issues concerning relevance are gone, that's been waived. There's no
21 longer any --
22 JUDGE ORIE: That's exactly why I wanted to check during the
23 break exactly what submissions were filed or put on the record and any --
24 MR. KEHOE: I could tell --
25 JUDGE ORIE: I think, as a matter of fact, you'll find on page
1 43, line 22, that the first thing I said, "Mr. Hedaraly, we'll first of
2 all, carefully consider the positions taken under Rule 94(B) by the
4 So that would be our job for the next 25 minutes. If -- if
5 there's anything to be added at this moment, that's exactly, of course,
6 the kind of challenge --
7 MR. KEHOE: Yes.
8 JUDGE ORIE: -- and how the challenge was made and how it was
9 reasoned and that's what we had on our mind.
10 MR. KEHOE: My only addition to that is if we can give it to the
11 courtroom deputy, the court officer. There was one reference on the
12 record by Mr. Waespi simply saying that they wished to examine
13 General Cross. That was the sole disclosure. And if I can have a moment
14 with Mr. Misetic -- oh, here it is.
15 The reference was last Friday, at 20471, at line 24, by
16 Mr. Waespi.
17 JUDGE ORIE: And, again, when was the report filed?
18 MR. KEHOE: It was filed on Monday, the 22nd if Monday is the --
19 Monday the 22nd of June. Was it 20? If I can check that -- that
20 particular day.
21 JUDGE ORIE: Yes.
22 MR. KEHOE: Until -- my calendar is off, I think it is the 20th.
23 I was right the first time, it was the 22nd.
24 JUDGE ORIE: Yes. Mr. Hedaraly. The challenge to the relevance
25 is expected within 30 days from filing of an expert's report. Disclosure
1 of a statement and/or report of an expert under Rule 94 bis under
2 (B)(iii). Yesterday it was the 30 days, I think, finished either
3 yesterday or the day before yesterday.
4 Would you please consider the position of the Prosecution in this
5 respect. We'll meanwhile take a take a break, and we will resume,
6 Mr. Cross, at 20 minutes past 4.00.
7 --- Recess taken at 3.52 p.m.
8 --- On resuming at 4.21 p.m.
9 JUDGE ORIE: The Chamber was informed, Mr. Kehoe, that -- that
10 the Prosecution withdraws its objection to admission. Is that ...
11 MR. HEDARALY: That is correct, Your Honour.
12 JUDGE ORIE: Yes. And that at least creates clarity in this
14 Could we first -- Mr. Registrar, have a number assigned to the
16 THE REGISTRAR: Yes, Your Honours. That becomes Exhibit D1624.
17 JUDGE ORIE: And is admitted into evidence.
18 Mr. Kehoe.
19 MR. KEHOE: Yes, Mr. President. I think that just a couple of
20 typos in the record, and this would be at page 30, line 16. It reflects
21 4.000.727, and if we go back to the particular exhibit it should be
22 42.000 as opposed to -- and I was quoting. Get the exact exhibit number,
23 it is D1361.
24 JUDGE ORIE: In the answer of the witness, I think the 42.000
25 appears, so that's --
1 MR. KEHOE: Yes.
2 JUDGE ORIE: So that's clear and is now on the record.
3 MR. KEHOE: And there is just one last correction. It's on page
4 35, line 5. Again, the exhibit says 42.000 and not 32.000.
5 JUDGE ORIE: Yes, that's on the record as well.
6 MR. KEHOE: And in Defence of the court reporter, I'm not sure if
7 I said 32.000 or a mistake, I just want to accurately reflect what the
8 exhibit says, which is 42 -- or approximately 42.
9 JUDGE ORIE: Yes, that's clear.
10 Mr. Kuzmanovic, you had questions for Mr. Cross.
11 Mr. Cross, Mr. Kuzmanovic is counsel for Mr. Markac.
12 MR. KUZMANOVIC: Thank you, Your Honour. I will be very brief,
14 Cross-examination by Mr. Kuzmanovic
15 Q. General, if you could refer your report which we now know is
16 D1624, if you have that front of you?
17 A. Yeah.
18 Q. Paragraph 80, with various subparagraphs, asked you to consider
19 the following facts in your analysis and conclusions, and two of your
20 conclusions are contained in paragraphs 83 and 84. For my benefit, your
21 conclusions in paragraph 83 and 84 are based in part on your experiences
22 in Kosovo, Cyprus
23 A. That is correct. I mean, they are based in entirety on those
24 three and post-war Iraq
25 Q. And the assumed facts that you were given in paragraph 80?
1 A. Correct.
2 Q. I would like to you consider as additional assumed facts that
3 after Operation Storm was concluded there was still a war going on in
4 neighbouring Bosnia and Herzegovina, and also to assume that after
5 Operation Storm was concluded there were various pockets of ARSK soldiers
6 still in Sector South to some extent putting some resistance or to some
7 extent hiding.
8 What I'd like to ask you is based upon those assumed the facts,
9 would you agree with me that those additional assumed facts would even
10 further complicate matters that you concluded in paragraphs 83 and 84, in
11 terms of manpower and planning?
12 A. Certainly if there are, as I am aware, continuing operations,
13 further operations, that are now being engaged with inside Bosnia, as
14 opposed to the sovereign territory of Croatia
15 like, the main effort of the military campaign is now moving on to the
16 next phase of this operation. The reality of the fighting that you're
17 referring to means that the -- the rear areas of this operation are still
18 vulnerable in terms of lines of communication and supply and so forth,
19 and securing those lines of communication becomes an important issue, and
20 it isn't easy if people are disrupting your lines of communication.
21 Q. The other question, and it will be my last question, General, is
22 your experience in SFOR and KFOR were after essentially hostilities were
23 over; correct?
24 A. That is the case in SFOR and indeed in IFOR; although, for IFOR
25 the previous experiences in Balkans meant that there was no peace to
1 keep. The terminology that was used for IFOR and SFOR, that these were
2 peace enforcement operations; therefore, force would have been used had
3 it been necessary. Of course, during KFOR force was used in terms of the
4 NATO bombing campaign, et cetera. When we actually moved into Kosovo
5 itself, as opposed to the preparations for that and the pre-events that
6 occurred, then there was -- essentially the war was finished, yes. There
7 was no fighting between the warring parties other than the criminality
8 that I referred to.
9 Q. Okay. So essentially, assuming -- assuming that there were still
10 some pockets of resistance in Sector South in Croatia and that there were
11 active combat operations being conducted in Bosnia during the course
12 after Operation Storm was over, the fact that KFOR and SFOR and IFOR
13 essentially came into play and into their force during a time when combat
14 operations were over is another complicating fact that -- faced
15 implementation and manpower inside Sector South in Croatia; correct?
16 A. I would agree with that sir, yeah.
17 Q. Thank you.
18 MR. KUZMANOVIC: I have no further questions, Your Honour.
19 JUDGE ORIE: Thank you, Mr. Kuzmanovic.
20 You have just, Mr. Cross, answered a question by Mr. Kuzmanovic,
21 who gave as an additional fact to you that various pockets of the ARSK
22 soldiers still had remained in Sector South. How did you understand this
23 information? What -- in what numbers, for example, are you thinking, if
24 you get this information? And would that have any impact on the answers
25 you gave to Mr. Kuzmanovic?
1 THE WITNESS: It would, Your Honour, in the sense that if these
2 were relatively isolated incidents, then, from a military point of view,
3 you press on in dealing with what needs to be dealt with, within Bosnia
4 in this context. If these incidents within the southern part of Croatia
5 were seriously disrupting your ability to conduct operations, then
6 clearly would you have to move assets and deal with that in a much more
7 coherent way, if you like. You would have to put together a much more --
8 you have a series of contingency operations that you would put into
10 So the size and shape of those -- of those continuing operations,
11 yes, indeed, would have an effect.
12 JUDGE ORIE: Yes. Now, you're using the term "southern part of
14 for you?
15 THE WITNESS: No, sir. I realise that Sector South is not
16 completely in its entirety the southern part of Croatia, although it does
17 encompass more than that. I realise that.
18 JUDGE ORIE: Sector South more and or less?
19 THE WITNESS: As I understand it, Sector South is more than just
20 the -- sorry, is less than the whole of the southern half of Croatia
21 And it includes other operational parts of -- as I understand it, parts
22 of Bosnia
23 JUDGE ORIE: Yes. As you understand it, if I would ask you to
24 mark on a map --
25 THE WITNESS: No, sir. I would not be --
1 JUDGE ORIE: -- where Sector South would be, would you be able to
2 do that?
3 THE WITNESS: No, not in an accurate way. I mean, my
4 understanding is based on my understanding as I deployed to the Balkans
5 in 1995, so...
6 JUDGE ORIE: It's a rather general knowledge --
7 THE WITNESS: Indeed, sir.
8 JUDGE ORIE: -- of an area which was called --
9 THE WITNESS: Indeed sir.
10 JUDGE ORIE: -- Sector South. Thank you for those answers.
11 MR. KUZMANOVIC: Your Honour --
12 JUDGE ORIE: Yes.
13 MR. KUZMANOVIC: -- I just wanted to note for the transcript, and
14 I'm sure it will be corrected, but page 49 lines 8 and 9, there seems to
15 be a -- it might have been probably because I was speaking too fast in
16 the question, and I can't even actually remember that part of the
17 question, but it doesn't make any sense if you look at it on the
19 JUDGE ORIE: Yes. I should blame myself perhaps for talking too
21 I think I asked --
22 MR. KUZMANOVIC: No, Your Honour I was referring to myself not to
24 JUDGE ORIE: [Overlapping speakers] ... and could you then
25 repeat again the page and line number.
1 MR. KUZMANOVIC: Page 48, line 20.
2 JUDGE ORIE: Now confusion is total, because I read that you
3 earlier referred to 49, 8 and 9.
4 MR. KUZMANOVIC: Actually, I think it applies to both of us, Your
6 JUDGE ORIE: I really have problems exactly to see how we can
7 resolve this matter.
8 MR. KUZMANOVIC: Your Honour, just so we're clear, my reference
9 is page 49 lines 8 and 9.
10 JUDGE ORIE: Yes, that's --
11 MR. KUZMANOVIC: And I'm sure it's recorded so I'm sure Madam
12 Reporter will hopefully figure me out.
13 JUDGE ORIE: Yes. And may I invite you to draw specific
14 attention if you receive or if you have a view of the transcript that it
15 reflects what you said and if not, there's always a way of correcting it.
16 MR. KUZMANOVIC: I will do so Your Honour. Thank you.
17 JUDGE ORIE: Thank you, Mr. Kuzmanovic.
18 Mr. Hedaraly, are you ready to cross-examine the witness?
19 MR. HEDARALY: Yes, Mr. President thank you.
20 JUDGE ORIE: Mr. Cross, you'll now be cross-examined by
21 Mr. Hedaraly. Mr. Hedaraly is counsel for the Prosecution.
22 THE WITNESS: Thank you, sir.
23 JUDGE ORIE: Please proceed.
24 Cross-examination by Mr. Hedaraly
25 Q. Good afternoon, General.
1 A. Good afternoon.
2 Q. What were your instructions in preparing this report? What were
3 you asked to do?
4 A. When I was approached by the counsel to give a -- give a -- my
5 experiences in such operations, I produced a paper, that I believe I sent
6 to yourself as well, which laid out my background and my experiences over
7 the period of my command. Having done that, I wasn't given any
8 instructions on producing the paper. I then met with counsel, talked
9 through those experiences, and they asked me questions in those areas
10 that inevitably were of more relevance to this particular hearing than
11 others, and from that a draft report was produced. I then amended that
12 report in using my own -- my own amendments, if you like, and then sent
13 that report to counsel some time ago but -- in time for them to file it.
14 Q. And who prepared that first draft report?
15 A. The draft report was prepared as a result of the conversations
16 that I had with counsel back in the United Kingdom. They took the notes,
17 they produced the draft, sent it to me. I then went through it in my own
18 time, reflected it, and amended it as I -- as I -- as I tried to ensure
19 that what was being said here was what I believed and using the
20 expressions that I wanted to use.
21 So they had taken extensive notes as a result of initial
22 discussions that I had and used some of the information from the paper
23 that I'd sent them originally.
24 Q. General, we both tend to speak a little fast --
25 A. I will slow down, sir.
1 Q. So if I make what seems to you to be inordinately long pauses,
2 it's not an invitation to continue but simply me waiting for the
3 interpreters to catch up with us.
4 A. Sure, I understand.
5 Q. And you were provided the facts in paragraph 80 on and around 10
6 June 2009, less than two weeks before this report was filed; is that
8 A. Yes, that's so. I don't know the exact date. I'm very happy to
9 accept your date. Having written my initial -- having written the
10 initial paper, had those discussions, amended the report to reflect my
11 experiences of the various deployments that I had been on, the facts were
12 then given to me, the assumed facts were given to me, and I was asked to
13 reflect on them in the context of what I had said already to see whether
14 these either mitigated against or reinforced some of the points that I
15 had said earlier.
16 Q. And when you provided your opinions in paragraph 83 through 85,
17 those opinions were based on the specific facts that were provided to
18 you; correct?
19 A. Yes. The final paragraphs were written as the final draft,
20 really, for summarizing everything that I had done previously and then
21 having been given the facts, the assumed the facts, taking those into
22 consideration, I then wrote the final three, four paragraphs. Five --
23 five or six paragraphs. And I wrote those at home on my own and then
24 sent the final copy of the report to the counsel.
25 JUDGE ORIE: Mr. Hedaraly, may I seek clarification of one of the
1 previous answers.
2 This list of facts in which we find in paragraph 80, now were
3 they provided to you before you had these conversations which resulted in
4 a draft report being sent to you; or did you find them listed for the
5 first time in the draft report that was sent to you?
6 THE WITNESS: I would -- in all honesty, Your Honour, I would
7 have to take advice as to dates here. But from my -- the way that I put
8 this together was I was asked to talk through my experiences from the
9 various operations we have spoken about. I was then asked to comment on
10 did I think certain things about the Croatian Operation Storm, how -- how
11 relevant was that, in --
12 JUDGE ORIE: This was still discussion?
13 THE WITNESS: Yes, sir.
14 JUDGE ORIE: Yes.
15 Please proceed.
16 THE WITNESS: And in saying that, the assumed facts were then
17 given to me, to say, Well, these are the facts as we understand them. In
18 relation to what you have already told us, does that change the way you
19 think, does that reinforce any of the points you were trying to make, or,
20 indeed, detract from any of them?
21 So the assumed facts were given to me after I had prepared quite
22 a lot of this report, which was, of course, and is, of course, simply a
23 report of my own experiences hopefully helping to set a context within
24 which you are considering this particular case.
25 JUDGE ORIE: But, now, you had these conversations, and at a
1 certain moment you received a draft report, which you then reviewed and
2 you said you would -- well, check whether you would agree or whether you
3 would use other language or -- now, as footnote 12 says: "These facts
4 are as written by General Gotovina's counsel."
5 That means that there must have been a moment in time when you
6 received these facts - and there are quite a number of them - in writing.
7 Now, was that before -- was that during your conversations, your
8 discussions, that you received a written list of facts; or did you
9 found -- find them written only for the first time in the draft report
10 that was sent for review to you?
11 THE WITNESS: Again, sir, the counsel may wish to comment. But
12 my recollection is, having produced a draft of this report, and having
13 read through it and amended it, in an electronic communication, an
14 e-mail, the assumed facts were passed to me, and I then took those
15 assumed facts, looked at them, and considered them in the light of the
16 report that I had written.
17 JUDGE ORIE: Now, said "having produced a draft of this report,"
18 would that include conclusions about the Croatian situation? To say,
19 conclusions and summary of opinion, well, let's say part six of the
20 report. Was that --
21 THE WITNESS: No, sir.
22 JUDGE ORIE: -- not in there?
23 THE WITNESS: No, sir.
24 JUDGE ORIE: So your first draft was exclusively explaining --
25 THE WITNESS: Yes, sir.
1 JUDGE ORIE: -- your experience.
2 THE WITNESS: Yes, sir.
3 JUDGE ORIE: Now, then you received this list of facts by e-mail.
4 So, at that point in time, there was no report yet on conclusions on the
5 Croatian situation; is that correct?
6 THE WITNESS: That is my recollection of events, sir, yes.
7 JUDGE ORIE: Well, you are the witness so we have to rely on --
8 at this moment, on your recollection.
9 Did you then, on the basis of those facts, draft conclusions as
10 far as Croatia
11 the Defence?
12 THE WITNESS: No, my recollection is that I wrote my own
14 JUDGE ORIE: Yes.
15 THE WITNESS: And the key issues were trying to look at this
16 particular operation in relation to the size of the operations in
17 Northern Ireland, geographically, for example, and indeed Kosovo and
19 of issues that those facts were -- looking at them, enabled me to say
20 yes, this is a comparative. It is fair to draw a conclusion from my
21 experience in these places to what was happen on this particular
23 JUDGE ORIE: But, at that time, you then received questions to be
24 dealt with? I mean, you had given your experience. You then received a
25 list of facts about Croatia
1 or issues were raised by the Defence at that time? Could you please, in
2 your conclusions, pay attention to A, B, C, D, whatever. Was there a
3 clear --
4 THE WITNESS: Well, I think the -- there was certainly
5 discussion, but my -- I'm not aware that this paper was amended more than
6 once as a result of having received these assumed facts. I wrote
7 conclusions, there was then discussion both electronically and face to
8 facial on the finalisation of the paper. Nobody -- forgive me because I
9 may be reading something that you're not assessing, but nobody tried to
10 say to me, Can you write this sentence differently, or Could you add
11 something you've not yet put in. As a result of the discussions, I was
12 quite clear what I wanted to include in my report, and I was quite
13 content that having seen the assumed facts, that I could then write the
14 conclusions that I reached.
15 JUDGE ORIE: Yes. I'm -- I have no second thoughts on the
16 matter. I just want to have clear on my mind how this report came into
17 being as we find it now.
18 THE WITNESS: Yeah.
19 JUDGE ORIE: Mr. Hedaraly, please proceed.
20 MR. HEDARALY: Thank you, Mr. President.
21 Q. Just to follow up briefly on that, after you received the assumed
22 facts, did you make any changes to the first 79 paragraphs of the report,
23 or did you only draft the last five or six paragraphs?
24 A. I don't believe I made any changes as a result of seeing the
25 assumed facts. There was nothing that I saw in the assumed facts that
1 made me change what I had already written, because as we said earlier,
2 the vast majority of that was simply relating the events that had
3 occurred in the various deployments and trying to explain the issues of
4 an end state and the strategic and operational levels and so on. So the
5 vast majority of the report written beforehand is simply laying out my
6 experiences. The conclusions that I've written are as a result of seeing
7 the assumed facts, but they did not effect that previous part of the
9 Q. And if you could just look at your report and just so that we are
10 all clear, we're talking about all the way up to page 18 before the
11 section "Provided Facts," that's what you refer to when you are talking
12 to everything before the assumed facts?
13 JUDGE ORIE: Mr. Hedaraly, I think you wanted refer to -- oh, no,
14 it's page 18, and paragraph 80. And that's both the same. That's what's
15 confusing me.
16 Please proceed.
17 THE WITNESS: That is -- what you have just asked me is correct.
18 I would want to say that, you know, reading the paper, putting it in my
19 own words, amending it to reflect. I wouldn't want to suggest for one
20 minute that I didn't change some of the wording in the early part of the
21 paper before submitting the final draft, reading through it, as I
22 obviously did, trying to assure that it was coherent. I may well have
23 changed some of the sentencing and phrasing, which I would have done
24 having received the facts. My point is that the facts did not change the
25 essence of what I was trying to establish in the first part of the paper.
1 Q. I think I understand you, but just allow me to make sure that --
2 I don't want to mischaracterise what you've said.
3 You probably would have made some changes throughout these first
4 portions as general edits, let's say, of your draft, but you did not make
5 any specific changes to those portions, because of specific facts that
6 you received; is that correct?
7 A. Yeah. That -- that is my recollection, yes.
8 Q. And these facts, and I think you've testified earlier, perhaps a
9 few minutes ago, so I apologise for asking you the same question again,
10 but opinions in paragraphs 83 through 85 were based on those assumed
11 facts that you received that are listed in paragraph 80; correct?
12 A. Yes. I tried to conclude by recognising the reality of what I
13 had been presented with.
14 I should stress that in writing my initial drafts, I can't
15 remember, to be honest, what those conclusions were, but in concluding
16 there were some basic conclusions, the paragraphs drafted in trying to
17 conclude and summarise what I had tried to say in the first part of the
19 So changing those to reflect the assumed facts that I had been
20 given, trying to draw out key issues from where I was coming from, which
21 had to do with resources, manpower, time-lines, and so on. Trying as
22 I've said both in the introduction to my paper and in my conclusion,
23 particularly at paragraph 85, that I - very clearly - am not -- was not
24 part of this operation, I was not there on the ground, I make no
25 judgement at all on -- on those sorts of aspect, and that's what I've
1 tried to summarise in that particular paragraph.
2 Q. And if I could just invite you -- I don't want to belabour this
3 point, but I'm -- I apologise if I'm a little confused.
4 If you look at paragraphs 81 and 82 at page 21 of your report,
5 under the section -- under the heading "Conclusions and Summary of
6 Opinion," paragraphs 81 and 82 are essentially the general conclusions of
7 what is contained in your report from paragraphs 1 to 79; is that
9 A. That's correct. And they would have been written in that
10 initial -- when I wrote the initial conclusions, they would have been the
11 way that I had tried to summarise what I had put in the paper.
12 Q. And then in paragraph 83 you give an opinion, "Given the facts
13 provided to me in paragraph 80," and then you say the same thing in
14 paragraphs 84. So it's that those two paragraphs are opinions based
15 solely on the assumed facts given to you?
16 A. That is correct, sir.
17 Q. Thank you. Now, if these facts were not accurate or if you were
18 given different facts, it would therefore follow that your conclusions
19 would also be different; is that correct?
20 A. That is correct, sir. Well, I should say, if I may, it would
21 depend on what those new facts were. But in principle I understand what
22 you are saying and I agree.
23 Q. Thank you for that clarification. You mention both in your
24 report and earlier today that the criminality that occurred, for example,
25 in Iraq
1 A. I do.
2 Q. Now, would you have expected the troops of General Franks to
3 commit crimes in Iraq
4 A. No, sir. If you are distinguishing between the troops under the
5 command of General Franks as opposed to what the Iraqi people themselves
6 were doing, I would not have expected them to be involved and engaged in
7 that criminality themselves.
8 Q. And were you aware, sir, that this Chamber has received evidence
9 that soldiers involved in retaking the territory were involved in a
10 significant amount of crimes committed in the area?
11 MR. KEHOE: I object to the word "significant."
12 JUDGE ORIE: Well -- yes. What makes an amount significant, what
13 not. Let's say was involved certainly not in a sporadic way. An amount
14 not of a -- certainly not of a sporadic nature.
15 Would you please answer the question?
16 Well, Mr. Kehoe, of course, this witness has been fed with a long
17 list of facts on which, whether established or not, whether they're
18 complete or not, whether they're -- what's the basis for the selection is
19 still to be seen. So, therefore, Mr. Hedaraly now puts other facts. You
20 would say it's -- you have -- you object to putting to him that it is a
21 significant. I could imagine - I don't know whether that's true or not -
22 that Mr. Hedaraly would object to some of the facts as presented here as
23 well, but they were the facts given to the expert. I think I have sized
24 it down slightly, and invite witness to answer the question.
25 Mr. Kuzmanovic.
1 MR. KUZMANOVIC: I'll let Mr. Kehoe go --
2 MR. KEHOE: Mr. President, if counsel wants to say assume X/Y
3 facts, as he has done before with an expert and as Mr. Kuzmanovic did,
4 that's the proper cross-examination of a witness, but to postulate that
5 there has been a significant amount presented to this Chamber, we take
6 issue with that.
7 JUDGE ORIE: Yes, well -- and you may -- yes, Mr. Kuzmanovic.
8 MR. KUZMANOVIC: Your Honour, and if Mr. Hedaraly, as Your Honour
9 put it, would object to some facts as presented, he could have done so in
10 a filing opposing expert's report and we could have all had knowledge of
11 that prior to the cross-examination.
12 JUDGE ORIE: Well, the structure of the report, you put certain
13 facts to the witnesses, to fully litigate whether that is complete or not
14 would come close to final argument, Mr. Kuzmanovic, which is certainly
15 not something one would seek in preparing this expert report, and
16 cross-examination of this witness.
17 You may have forgotten about the question already. Let's go back
18 to it. And ...
19 THE WITNESS: Your Honour, I think I'm comfortable with the
21 JUDGE ORIE: Yes, then please answer the question.
22 THE WITNESS: Your Honour, if I may also, I would like to say, as
23 we go into this period, that I absolutely understand that the facts that
24 were presented to me as a result of my initial writing of my views on
25 these deployments were undoubtedly facts that were there to draw out
1 certain lessons and to reinforce some of the points that I made, and I
2 absolutely understand that there were maybe other facts that may -- would
3 led me to say other things or draw other conclusions.
4 As I said at the beginning of paper, my intent here is to try to
5 assist the Court as a whole in understanding what it is like to be
6 involved in these post-conflict operations. So I have no problem with
7 the tenant of the question. That said, I also would like to say, if I
8 may, having served in the Balkans three times that, and I touched on this
9 slightly earlier before, when we look at the competency of military
10 organisations we can talk about their equipment, we can talk about their
11 understanding of warfare.
12 For me, the key issue, not just in the Balkans but everywhere
13 else, is what the British military talk about as being the moral
14 component of fighting power. It's about leadership. It's about ethic.
15 It's about understanding the Law of Armed Contact, the Geneva Convention.
16 It's about how you conduct operations. And in first-world armies,
17 American, British Armies and so on, we take that extremely seriously.
18 There are, unfortunately, still occasions when that goes wrong. We can
19 look at that in terms of Iraq
20 own experience is the Balkans make it very clear to me that the moral
21 component, constituent moral component of all the forces engaged in
22 operations in the Balkans was nowhere what I would want to have seen in
23 any military organisation that I served with.
24 So the fact that there were -- whether they are considered to be
25 with respect to everybody significant or insignificant, the fact that
1 there are so-called soldiers within these various armed factions in the
2 Balkans doing bad things, criminality, ethnic cleansing, killings, and so
3 on, I am certainly aware of that because I saw the evidence of it, the
4 results of it. What actually happened in Operation Storm, I can't
5 comment on because I wasn't engaged in that operation, but I am certainly
6 aware that lots of bad things went on on all sides over the whole period
7 of the operations in the Balkans.
8 MR. HEDARALY:
9 Q. Now, if -- if the crimes that were committed in the aftermath of
10 Operation Storm were committed mainly by the forces that retook the
11 territory, isn't that a fact that would have been relevant for you to
12 know in coming to your conclusions about resources and so on?
13 A. It would -- it would certainly be -- if the fact that you are
14 presenting, that the majority were, the size and shape and scale of those
15 was made clear, it would be an issue to which, in phrasing my
16 conclusions, I may wish to make an adjustment one way or the other.
17 The -- I think in the context of what was happening, and I think
18 again I shouldn't be leading you where you are trying to take me, but in
19 the context of what was happening if there is an assumption that these
20 things were going on because they were part of the operation, they were
21 ordered to happen and so forth, understanding and knowing that as facts
22 would clearly have -- have affected the way that I tried to draw my
24 Q. And would you agree with me that if this Trial Chamber found that
25 the military operation was conducted in a manner to remove the Serb
1 civilians from the area, that would also be a fact that would have
2 affected your conclusions?
3 JUDGE ORIE: Mr. Kehoe.
4 MR. KEHOE: Excuse me, Mr. President. I mean, if the Trial
5 Chamber found -- I mean, we're still in trial. I object to the premise
6 of if -- if the counsel wants to ask -- excuse me, I need to change
7 microphones here a moment.
8 If counsel wants to ask hypothetical situations like that for the
9 witness, that's fine. But positing something about what the Trial
10 Chamber found or didn't find, that's why we're here and I object to the
12 JUDGE ORIE: Would you please rephrase, Mr. Hedaraly.
13 MR. HEDARALY:
14 Q. Okay. General, if a military operation was conducted in a manner
15 to remove the Serb civilian population from the area, would that also
16 have been a fact that would have affected your conclusions?
17 A. I think it would be -- I'm not sure that it would have affected
18 the conclusions markedly, in that what I was trying to draw in my paper,
19 what I'm trying to assist the Court in understanding as a whole, is the
20 chaotic nature of post-war operations and the inherent nature of that
21 chaos, and the things that flow from it. However hard and well
22 intentioned the forces apply their military power post-operations.
23 So for example, whilst I am very conscious of what happened in
24 Kosovo and indeed Baghdad
25 I'm quite clear that there was no intent, within the KFOR chain of
1 command, within the US/UK chain of command, the coalition chain of
2 command, or indeed within the UK
3 bring about those things.
4 Your comment to my mind relates back to the end state, the
5 strategic end state, what was trying to be achieved here. And if you
6 were to present to me a strategic end state that made it quite clear that
7 the military campaign was about the sort of thing you are alluding to, it
8 would effect the -- if there was no intention to bring order and
9 structure to post-war operations, then that clearly would have affected
10 what had I would want to say.
11 If there was no intention to do that, then my facts are almost
12 irrelevant. If there was a clear intent to do that, then the numbers of
13 people, the planning processes to bring order post-Operation Storm, my
14 conclusion, having been given the facts that I have been given, was that
15 that planning process, those resources and the other points that I make,
16 were insufficient in order to bring about that order post-war.
17 Does that -- is that clear? Is that --
18 Q. I think I was with you just until the end. Let me just read it,
19 and I will see if it is clear to me.
20 A. Fine.
21 Q. Thank you, I understood very well.
22 Let me move to a specific conclusion that you drew based on the
23 facts you were given and that is the one about lack of available
24 resources, and you find that in paragraph 84 at page 22 of your report.
25 And I just want to be clear that the facts that you are referring
1 to here are the numbers of military and civilian policemen. The numbers
2 that were provided to you that are found in paragraphs (w) through (z) of
3 the assumed facts. Is that right?
4 A. Yes, sir. The numbers that you referred to were the numbers that
5 I took into consideration. And for complete clarity, that is why when,
6 as a result of additional evidence that was presented that -- the numbers
7 in paragraph (z) were then -- I was then told that they were more than 4
8 or 500. They were the 7 or 800 we referred to earlier.
9 Q. Just to be absolutely clear, that change in number did not affect
10 your conclusion; is that correct?
11 A. That is correct.
12 Q. Now, when you talk about resources one of the terms that you used
13 that was also mentioned in direct examination is this idea of boots on
14 the ground or more specifically the number of soldiers per square
15 kilometre tasked with providing security.
16 Is that right?
17 A. Correct, sir.
18 Q. And you gave some examples, based on your previous experiences.
19 And, of course, I understand that -- your evidence to be that these
20 numbers by themselves are not -- not an automatic scale to apply. They
21 depend on circumstances. But the examples that you gave was that
22 1.67 soldier per square kilometre was sufficient in Operation Banner.
23 Whereas 0.34 were not sufficient in Iraq and you also gave 4.5 per
24 kilometre squared for Kosovo. All of this is at page -- paragraph 70
25 to 72 of your report.
1 Were you aware that there were UNPROFOR troops on the ground in
2 the Krajina before and after Operation Storm?
3 A. I was aware that UNPROFOR were in that region. I was not aware
4 of actual deployment locations in relation to Operation Storm.
5 Q. Let me show you 65 ter 7360. And it will come up on your screen
6 in front of you.
7 MR. KEHOE: Just one minor correction for counsel. I think we're
8 talking about --
9 THE INTERPRETER: Could counsel switch to the other microphone,
10 please. Thank you.
11 MR. KEHOE: Sorry. I think for the clarity in the -- in the
12 record so -- because there has been talk about UNCRO. We're talking
13 about UNCRO at that point as opposed to UNPROFOR which is in Bosnia
14 so the witness doesn't get confused between UNCRO in Croatia and UNPROFOR
15 in Bosnia
16 JUDGE ORIE: Mr. Hedaraly.
17 MR. HEDARALY: That's fine. I will just show the document to the
18 witness, but that's fine.
19 Q. If that changes your answer at all, General, please --
20 A. No, I should have corrected it myself. Counsel is quite right.
21 Q. You see here, General, this is dated February 1995, and you see
22 at the top there that -- I mean, I'm going to give an approximate figure
23 that 90 per cent of the complete mission are soldiers and policemen. And
24 then if you go to the Sector South and Sector North, you see that there
25 were 4.614 personnel in Sector South, and based on the top figures that
1 most of those, we can assume, are soldiers and policemen. And just so
2 you know as well, the area of the Split Military District that was under
3 the control of General Gotovina during Operation Storm, is roughly
4 4.000 square kilometres.
5 That can be found at P482.
6 So now you can see, General, that that is roughly one UN --
7 that's a soldier or policeman per square kilometre. And my question to
8 you is: If the purpose had been to bring security to the area, wouldn't
9 you consider it logical to use these UN forces to assist in providing
11 A. The -- one of the points I was making earlier of the utility of
12 military, non-military, international organisations, non-governmental aid
13 organisations, from a personal point of view, in my view, every available
14 asset should be used to bring about stability post-war operations.
15 Now, that is not the case in every deployment that I have been
16 on, but the principle -- in principle my answer to your question is: If
17 it is possible to do so, use every asset that you have available to you.
18 MR. HEDARALY: If I can tender 65 ter 7360 into evidence.
19 MR. KEHOE: Mr. President, in theory I don't have an objection.
20 If we just MFI
21 give the position --
22 MR. HEDARALY: It's one page.
23 MR. KEHOE: Excuse me --
24 JUDGE ORIE: Seems to be the whole of the document, a fact sheet,
25 14th of February, which lists only the -- well, the authorised strength,
1 and the actual strength being approximately 12 per cent lower. And
2 apparently the numbers, Mr. Hedaraly, presents the actual strength,
3 because adding them up, brings us to the figure of 44.547.
4 MR. KEHOE: I guess my question is I thought this was a
5 multi-page document. Is it just this sheet? Well, then I have no
7 JUDGE ORIE: Yes, Mr. Registrar.
8 THE REGISTRAR: Your Honour, that will become Exhibit P2601.
9 JUDGE ORIE: And is admitted into evidence.
10 Please proceed, Mr. Hedaraly.
11 MR. HEDARALY: Thank you, Mr. President.
12 Q. Now, General, you were not -- in the facts provided to you, and
13 correct me if I'm wrong, you were not provided the number of Croatian
14 soldiers who remained in the area after Operation Storm. Is that right?
15 A. That is correct.
16 MR. HEDARALY: Let me now put up on the screen 65 ter 1231, which
17 is a report by General Cervenko of 21 August 1995.
18 Q. General Cervenko, at the time, was the Chief of Staff of the
19 Croatian army. And this is his report on Operation Storm that will come
20 up in a few seconds.
21 I just want to draw your attention to a few -- few portions of
23 You can see the heading to satisfy yourself that the document is
24 sent to the president of Croatia
25 If we go to the second page of this document, you will see a --
1 after the list of items it says: "The total of 127.000 members of HV,
2 military police, and MUP have taken part of the attack for liberation of
3 the occupied Croatian territory, Operation Storm."
4 So just keep that number in mind for now, 127.000. And I don't
5 want to confuse you. This is the entire operation, so it is both Sector
6 South and Sector North, so th 10.000 square kilometres, not the 4.000.
7 Just so we are clear.
8 A. Okay. Thank you.
9 Q. And if we go to page 10 of this document in the English, item VI.
10 I think it's page 7 in the B/C/S but -- I'm fairly sure. If we go down
11 you see and it say there: "At the moment, there was 30.000 demobilised
12 HV members."
13 A. Yes.
14 Q. Now let me just ask you, you said just earlier that you would use
15 every possible asset to try to secure the territory. Would
16 30.000 soldiers be an asset that you would try to use to try to secure
17 the territory?
18 A. I understand -- the understand the line. And I would think my
19 response would be yes, recognising -- and I think the issue would be
20 whether these were -- first of all, who was in overall command of this
21 operation, were all of these assets under the command of that person, did
22 he have full command and control of them?
23 Now, Your Honour, we could get into a very difficult discussion
24 about command here, because in -- from a UK point of view, we will have
25 garrisons and administrative districts commanded by various people who
1 are not under the command of an operational commander who happens to live
2 and operate in that same territory.
3 So if I may give an example, I commanded a brigade in the
4 United Kingdom. My brigade lived in a part of the country that was under
5 the command of another brigadier whose responsibilities were to
6 administer that area of the country. So in this context, if all of these
7 people that you have presented are clearly under the command and under a
8 single coherent command and they are all available to be used in
9 achieving the post-conflict stability, then in principle my answer is
11 Now, I caveat that slightly, in that in having been given the
12 assumed facts that I was given by counsel, and going back to our earlier
13 conversation, I had discussions with them about what that meant, how did
14 it operate. In the short time in which you have given to me, I'm
15 responding as honestly and as positively as I can do, but there may be
16 all sorts of other aspects to this that I am not aware. So I must caveat
17 my response in that way.
18 Q. I completely understand your answer, General.
19 If you were to assume that -- and I know that was not one of the
20 facts given to you, but if you were to assume that General Gotovina did
21 have control, military control of that territory, then that would change
22 your answer?
23 A. Again, I must be clear --
24 JUDGE ORIE: Could I just --
25 Mr. Hedaraly, I think that the witness explained that it depends
1 on command, availability, a lot of the circumstances. What do you say,
2 maybe yes, maybe no. That's more or less your answer, depends on the
3 circumstances. Now to take out one of them, and then ask him, Would,
4 under those circumstances, that ignores the other caveats, there seems to
5 be even perhaps more caveats than there is answer. I'm not blaming you
6 for that, not in any way, Mr. Cross but it makes no sense to continue
7 questioning and to some extent ignoring what the witness told us.
8 Please proceed.
9 MR. HEDARALY:
10 Q. So we had 127.000 in the operation. 30.000 at the time of this
11 report were demobilized. If we go to the second page of the document --
12 the next page, sorry, of this document, you see at the top there, it
14 "Sufficient forces were left in the areas of responsibility of
15 Military District to guard the borders and control territory behind the
17 So now we have 97.000 remaining forces. Now let's just assume --
18 JUDGE ORIE: Mr. -- could you explain the number, Mr. Hedaraly.
19 MR. HEDARALY: I was looking at 127.000 minus 30.000.
20 JUDGE ORIE: I missed the 30. And isn't it true that at least
21 this Chamber has had some evidence that --
22 MR. HEDARALY: That's what I was going --
23 JUDGE ORIE: -- forces were not necessarily on the territory --
24 MR. HEDARALY: That was my hypothetical, Your Honour, that I was
25 going into. I started by saying let's just assume --
1 JUDGE ORIE: Yes --
2 MR. HEDARALY: -- that a number and I was going --
3 JUDGE ORIE: Yes. Or double the numbers. Let's just assume that
4 they are wrong and that they are the double. What about that?
5 MR. HEDARALY: I was going provide a --
6 JUDGE ORIE: Yes. But, of course, this witness doesn't know
7 anything -- one thing is clear: Feed this witness with the information
8 or the facts that would encourage him to lead him to the answers you
9 would most likely want to hear from him. That's an exercise. We could
10 go on with that for days and weeks, and finally, you might get
11 25 per cent of the answers you would like to have.
12 Let's -- let's not -- try to avoid that, Mr. Hedaraly. If you
13 are saying 127.000 minus 30.000 demobilised, then of course one of the
14 assumptions where there may be good reasons to believe that that
15 assumption is not true would be that all these soldiers were still on
16 Croatian territory, or in Sector South. And -- well, I'm not going to
17 stop you immediately, but I think I explained to you that that might not
18 really assist the Chamber.
19 But perhaps I have misunderstood your line of questioning, so
20 perhaps I should be more patient.
21 Mr. Misetic.
22 MR. MISETIC: Mr. President, I rise only because there's an
23 interpretation or, I should say, a translation issue in the document
24 itself which may be of some relevance certainly to the witness with
25 respect to the sentence that was quoted.
1 JUDGE ORIE: If we have such an issue, then I would seek your
2 assistance or at least any native speaking person to read the line and
3 then, of course, we'll see whether the translation would be the same
5 MR. MISETIC: Yes, Mr. President.
6 I will begin --
7 JUDGE ORIE: You're reading from?
8 MR. MISETIC: From the first sentence in the original.
9 JUDGE ORIE: Yes.
10 MR. MISETIC: On the page on the screen. [No interpretation].
11 JUDGE ORIE: I haven't received translation but could be that the
12 interpreters were waiting to hear the whole of the line. But if you
13 slowly restart, Mr. Misetic, then -- and let's -- let's wait getting
14 upset for a few seconds now and then.
15 Please proceed.
16 MR. MISETIC: Thank you.
17 [Interpretation] "In the areas of responsibility of the
18 Military Districts, enough forces were left to guard the border and
19 control the area in depth."
20 [In English] Thank you, Mr. President.
21 JUDGE ORIE: Please proceed, Mr. Hedaraly. The translation we
22 received now is the control the territory in depth which from what I
23 understand has a self military meaning.
24 Please proceed, Mr. Hedaraly, the --
25 MR. HEDARALY: I -- I just --
1 JUDGE ORIE: -- the translation we received now is the "control
2 the territory in depth," which, from what I understand, has a specific
3 military meaning.
4 MR. HEDARALY: I just -- briefly, Mr. President. I understand
5 the Chamber's guidance. This whole report was prepared and provided
6 based on facts given by the Gotovina Defence to the expert for him to
7 come to certain conclusions. I understand and I will not go through the
8 entire Prosecution case and give that the witness, but I think that it is
9 only fair for us as well to present some facts. And if I had finished my
10 question, Your Honour would have seen that I was trying to present a
11 reasonable assumption of the -- in the assumption -- in the hypothetical
12 that I was making. That's simply what I wanted to do.
13 JUDGE ORIE: Well, it may not come as a surprise that if, as the
14 witness did, if you give your expert opinion based on certain facts, that
15 relevant changes in those facts will result in different answers. There
16 is, as such, apart from that perhaps you want to demonstrate it in one or
17 two instances, but there is, as such, I think, no doubt about that. But
18 I would not prevent you from demonstrating that in relation to one or two
19 examples. But let's not go through the whole of it, and, further, if you
20 give different facts or other facts, perhaps also try to remain at not
21 too much a distance from the evidence, as the party understood it, the
22 Chamber has received.
23 Please proceed.
24 MR. HEDARALY: Thank you, Mr. President.
25 Q. While we're here, can you clarify for us what it would mean to
1 control the territory in the depth?
2 A. And I -- again, I think from my perspective and my experience as
3 military words like "control" -- words like "control," you know, do have
4 meanings. We used words like "destroy," "defeat," "control," whatever,
5 and they carry certain nuances that after 30 or 40 years in the military
6 you instinctively understand, but it is quite difficult to define them
7 really. And in the context of the sufficient forces controlling in
8 depth, that would depend for me -- my reaction to that is that would
9 depend on the circumstances on the ground. So if things are relatively
10 quiet and there's no huge amounts of disruption, forces can control in
11 the sense of keep a track of people's movements, be able to deal with
12 individual incidents in a relatively coherent way; but if the terrain is
13 -- or the territory has got a lot of incidents going on, there are lots
14 of people moving around, there's a lot of banditry and criminality, then
15 establishing control is a completely different picture.
16 So I -- although, again, I stress I'm here to try and assist the
17 Court in the round and I hear what you are saying again, it's, again,
18 difficult to know who are these 30.000 or 97.000, what is their
19 professionalism, are they professional soldiers who are garrisoning the
20 towns, are they under clear command and control, are they volunteers,
21 have been in the military for a long time, am I able to give them orders,
22 what is happening around me in the context of this territory, all of
23 which you -- the Court may be able to establish with clarity and hold to
24 account the commander on the ground at the time.
25 I cannot comment on whether or not that is established. You can
1 establish that or not. So, I'm trying to be helpful but I think I don't
2 think I can say anything more unless there is something specific you
3 would like to tease out.
4 Q. No, that's fine. I think the -- the only point that I wanted to
5 make, and I think that that's what you've said, and the subject of the
6 caveats that you have mentioned earlier for the 30.000 soldiers, if there
7 were any available soldiers on the territory subject to the command and
8 control caveat that you have raised before, those would be assets that
9 would be want to employ in securing the territory. Is that correct?
10 A. Yes, with the caveats and -- alongside.
11 Q. Yes. No, that's understood.
12 Now, you also provided information about a number of civilian
13 police officers, and I asked you earlier to assume that a number of these
14 crimes were committed by military personnel. If that were the case, if
15 soldiers successful in retaking an area committed crimes, in your
16 experience, what could civil police officers do in that situation?
17 A. Again, I can only put this in the context of the UK military
18 procedures. Soldiers are subject to civil law and military law. Within
19 the British military, we have military policemen and military lawyers who
20 are part of the command structure. So if soldiers under my command or a
21 British military command were involved in criminality, the commander of
22 the force has military policemen and a judicial system that can conduct
23 the initial investigation.
24 Depending upon the circumstance, in the United Kingdom, for
25 example, very quickly, that might be handed over to the civil authority
1 to deal with. In places like Germany
2 of forces agreement, there would be procedures with the German legal
3 system and the British legal system, and the niceties of that I don't
4 understand, but in some cases, the -- the case would be handed over again
5 to civil -- civil authority, or in other cases the military person who
6 had committed a crime or was being accused of committing a crime would be
7 held in British military prison whilst the court case proceeded, may even
8 be brought back to the United Kingdom for that to be brought to trial.
9 On operations, similar would apply. In some cases the military
10 would deal with the issue if it was under military law, but in serious
11 civilian criminality terms, they would be passed over to the civil
12 authority. And I should stress, if I may, that the military commander
13 does not have authority over the civil police system, and he does not
14 have authority to interfere with the military police and the military
15 legal system in conducting what it needs to happen. So the commander
16 cannot step in and say, I do not want that man to be charged if he has
17 been found doing something and has been caught and has been brought to
18 court, the commander has to step away from that while justice is
20 Q. And that is based all of this on your understanding of the UK
21 military system and civilian system; is that correct?
22 A. Correct.
23 Q. Okay. And --
24 A. So if I can give, if it's helpful, to give an example --
25 JUDGE ORIE: Mr. Hedaraly.
1 MR. HEDARALY: No, I --
2 JUDGE ORIE: Let me just intervene. I think we have heard for
3 hours and hours, evidence what was the competence of the civilian police
4 and under what circumstances, even if we would have a soldier as a
5 suspect, whether they -- we could intervene. Now, in the last answer we
6 have heard an explanation about the British system, which might be -- one
7 thing I know that the British system in many respects differs from
8 continental European systems, whether it's police or whether it's court
9 systems. We have now dealt with status of forces agreement, in Germany
10 most likely NATO status of forces agreements, with additional agreements,
11 let's move on.
12 MR. HEDARALY: I did not want to interrupt the witness,
13 Mr. President, and that's why -- I simply wanted to clarify which that --
14 Q. -- you don't have any knowledge of the Croatian military or
15 civilian system?
16 A. No, I don't.
17 Q. Thank you.
18 MR. HEDARALY: Just a moment.
19 THE WITNESS: Sure.
20 [Prosecution counsel confer]
21 MR. HEDARALY: Your Honour --
22 THE INTERPRETER: Could the witness kindly speak closer to the
23 microphones. Thank you.
24 MR. HEDARALY: Your Honour, this concludes my cross-examination.
25 General, thank you very much for your assistance and for
1 answering the questions.
2 I'm just reminded, if I could tender 65 ter 1231, the document on
3 the screen, and then I will formally conclude my cross-examination.
4 MR. KEHOE: No objection, Mr. President.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: Your Honours, that becomes Exhibit P2602.
7 JUDGE ORIE: And is admitted into evidence.
8 Has the cross-examination triggered any need to put further
9 questions to the witness?
10 MR. KEHOE: No, Mr. President.
11 JUDGE ORIE: Mr. Kuzmanovic.
12 MR. KUZMANOVIC: No, Your Honour. Thank you.
13 [Trial Chamber confers]
14 JUDGE ORIE: I may have one or more questions for you. Let me
15 first find the relevant portion of the transcript.
16 Questioned by the Court:
17 JUDGE ORIE: Yes. I would like to ask you the following.
18 Mr. Kuzmanovic added two facts to the list of facts and asked whether it
19 would further complicate matters. The first fact would be that after
20 Operation Storm was concluded, that there was still a war going on in
21 neighbouring Bosnia and Herzegovina.
22 Now, looking at the list of facts that were put to you, and I'm
23 referring to page 20, under T and U, that the VRS organises military
24 operations against General Gotovina's forces in Bosnia, and that on or
25 about the 12th of August, General Mladic launches a counteroffensive
1 against HV forces never the Croatian-Bosnian border, would that first
2 fact not already, in your view, having been among those facts that you
3 had considered in drawing your conclusions?
4 A. It was, Your Honour, in that in looking at what needed to be done
5 and the numbers and the resources that were available, recognising that
6 there were events like that happening. Now, again, I think it's
7 important to recognise I'm not aware of how that particular event
8 unfurls. I had within it, assumed that this is, if you like, a regular
9 army counteroffensive. This is not insurgents, this is not banditry,
10 this is a military counteroffensive, and that in the follow-on facts that
11 were presented, General Gotovina defends the line and then continues with
12 his operational -- his operations -- his operation Southern Sweep and so
14 So it is a fact that I was aware of, but in the context of what
15 is going on in post-war operations, the post-conflict, reconstruction,
16 and trying to restore order in the main part of this area of operations,
17 this, to me, is part of the follow-on. Is that --
18 JUDGE ORIE: Yes.
19 A. Is that clear.
20 JUDGE ORIE: Well, I do understand your answer. At the same time
21 that was not the fact that was submitted to you by Mr. Kuzmanovic,
22 because what he gave you as a new fact or perhaps not a new fact is that
23 a war was going on in neighbouring Bosnia and Herzegovina.
24 Which I understood, Mr. Kuzmanovic, that this already
25 demonstrates how fragile these kind of assumptions are, that it was the
1 war in which the same forces that were involved in Operation Storm, at
2 least some of them were involved, but now across the border the war
3 continuing there. And that is something I thought was already
4 reflected --
5 A. I understand.
6 JUDGE ORIE: -- under T and U.
7 A. I understand.
8 JUDGE ORIE: Now the second fact which was new was the pockets of
9 RSK soldiers of which, I think you later said it very much depends on
10 what it is, is it -- so, therefore, you quickly answered that matters
11 became more complex, whereas, for one of the facts you had already
12 considered, so for that reason it could not have become more complex,
13 because it was already part of the facts; and the other one was so vague
14 to understand what it actually meant, that it would be difficult to draw
15 the conclusion that it would -- makes matters more complex.
16 Would you agree with me --
17 A. I understand your point, Your Honour, I think my -- in responding
18 to the way the question was phrased, if these are major operations, large
19 casualties are being caused, there is this war that's going on in Bosnia
20 and is beginning to incur across the borders and is now beginning to take
21 my mind -- draw my attention to it, then yes it becomes more complex.
22 But again, I do understand your point, and it is -- it is relevant in
23 terms of the size and shape of what these things are, and if -- if they
24 were significant, they would make the attempt to bring order to this
25 region much more difficult.
1 My understanding was that these were relatively small
2 occurrences, but if that were not to be the case it would make it more
4 JUDGE ORIE: Yes. My next question, and perhaps also a bit of a
5 general kind, is your conclusions in your report are based on your
6 experience, Kosovo, Iraq
7 to you in relation to Croatia
8 not verified by you, would you agree with me that whether these
9 conclusions can be drawn entirely depends on to what extent the
10 comparison between the Croatian situation and the Kosovo situation,
11 Northern Ireland situation, et cetera, would be of a similarity which
12 would allow for drawing conclusions of -- based on the experience in the
13 other areas?
14 A. I would, sir.
15 JUDGE ORIE: Just to give you an example. Would, for example,
16 would it for you make a difference comparing with Iraq that from what I
17 understand after Iraq
18 still-functioning government anymore which had to be fully
19 re-established. The old governmental system having collapsed; whereas in
21 retaken certain territory, on which it could well, extend or re-build on
22 the basis of existing governmental institutions to that area.
23 Would, for example, such a difference, would that be relevant for
24 you, and I'm not asking whether it would change your conclusions, but
25 would that have an impact, an important impact, on considering the
1 situation of the type of operations you are talking about?
2 A. Your Honour, yes. If I may just expand on those. I think Iraq
3 is, of course, a military occupation, and under international law certain
4 things flow from that, and therefore the responsibility of commanders in
6 where there is a functioning government.
7 So Iraq
8 Northern Ireland was part of the sovereign territory of the United
9 Kingdom. In the earlier 1970s there was a period of time there were what
10 were termed to be "no go areas" within certain cities of
11 Northern Ireland, and under a military operation called Motor Man we
12 cleared those areas to re-establish the sovereign rule of law in those
14 So as I understand this operation within Croatia, and as you've
15 explained it, this is the sovereign territory of Croatia
16 military commander, having conducted a military operation, it is then the
17 responsibility of the sovereign government, the civil power, and the
18 ministries to re-establish every aspect of post-conflict situation.
19 JUDGE ORIE: Yes. I didn't want specifically focus on the
20 difference between Iraq
21 of the circumstances which might have an impact on the conclusions of how
22 much the problems, huge and complex problems, you faced everywhere, to
23 what extent comparing them is -- is be done on a one-to-one basis.
24 A. Sure. And I did try to say in the report that you cannot just
25 pick out the circumstances of one operation and implant it into another.
1 They are always unique. You always have to assess it on a one-to-one
3 So everything that I have explained in my report, which lays out
4 my experiences, I would be the first to acknowledge may or may not be
5 applicable in this particular operation, at this particular time, in the
6 circumstances that the commander on the ground found himself.
7 Nonetheless, there were some underlying issues in terms of how long did
8 he have to prepare, how much resource did he have, what was the size of
9 the operation, what was going on in that operation. Some of those
10 things, I think, are applicable in every sort of operation that we have
11 been involved with over these last 20 or 30 years.
12 JUDGE ORIE: Well, the general message seems to be don't
13 underestimate what it takes --
14 A. Absolutely, sir.
15 JUDGE ORIE: In such kind of operations.
16 A. Absolutely. And if I may just add, if you want to work on the
17 basis that everything will go well, plan A is we will not have a problem
18 here. A good military commander or a good organisation planning this
19 process has always got to have some sort of reserve. Okay, if that
20 doesn't happen what then do we do? And if you don't have a plan B, or
21 indeed a plan C, and if we don't actually recognise in reality whatever
22 contingency plans you've, you always have to adapt them to suit the
23 circumstances, then you can run into trouble very quickly. So you must
24 not underestimate. Absolutely.
25 JUDGE ORIE: As doctors have to do, as companies have to do,
1 as --
2 A. Indeed, sir.
3 JUDGE ORIE: Thank you for those answers.
4 Have the questions by the Bench triggered any need --
5 MR. KEHOE: No, Mr. President, thank you.
6 MR. HEDARALY: No, Mr. President.
7 JUDGE ORIE: Then, Mr. Cross, in the beginning I said it is no
8 disrespect of positions and titles, perhaps I should have added ranks.
9 I'd like to thank you very much for coming to The Hague and for answering
10 the questions that were put to you by the parties and by the Bench, and I
11 wish you a safe journey home again.
12 THE WITNESS: Thank you very much, sir.
13 JUDGE ORIE: Thank you.
14 [The witness withdrew]
15 [Trial Chamber and legal officer confer]
16 [Trial Chamber confers]
17 JUDGE ORIE: There are no more witnesses for this week.
18 MR. KEHOE: Yes, Mr. President, that's right.
19 JUDGE ORIE: There are a few procedural matters which the Chamber
20 would like to deal with before the recess. At the same time, the Chamber
21 needs some additional time to discuss a few matters and to prepare for
22 them. To some extent, they are related also to scheduling issues for
23 after the recess.
24 I suggest to the parties that we will adjourn for the day, and
25 have a hearing tomorrow relatively short, not necessarily starting at
1 9.00 in the morning which would give additional time for the Chamber to
2 deliberate on certain matters and to clear our desks before the recess.
3 Let me first hear whether there's any objection to -- if the
4 Chamber would decide to do so.
5 MR. KEHOE: No, Mr. President. We, of course, have no objection.
6 If I can just put one issue on the table, and I haven't talked to our
7 client yet, but he is shaking his head, if we have procedural matters,
8 can they be excused or certainly --
9 JUDGE ORIE: Yes. They, of course, they are -- I mean, a request
10 for a week not sitting is of course a procedural matter but, of course,
11 might have a direct effect. When we are discussing procedural matters,
12 and if we're not hearing any evidence and not thoroughly discussing on
13 admissibility of evidence, then, of course, the accused always have -- I
14 wouldn't say have a right, but if they waive their right to be present,
15 under those circumstances the Chamber would easily accept it.
16 MR. KEHOE: I think I'm speaking for my colleagues that they have
17 all agreed that they will --
18 JUDGE ORIE: Yes. Then ...
19 [Trial Chamber confers]
20 MR. KAY: Your Honour, sorry, I apologise. Your Honour, for my
21 part we needed to see Mr. Cermak tomorrow before the recess, and I was at
22 one stage trying to book a DU visit in the morning, but then I was quite
23 satisfied if we were going to be sitting and he was going to be here,
24 because then I could speak to him here and hand to him certain documents
25 before the recess starts, so I -- I don't have a Croatian speaker with me
1 on the bench, and I'm not sure if I speak to him he will fully
2 understand, but I know this is being interpreted, whether I need to hand
3 certain documents to him tomorrow, and it may be better if he comes to
4 court and then that can serve that process. It will be easier than
5 trying to fix things for the DU.
6 JUDGE ORIE: Yes. I am not fully familiar with all the practical
7 difficulties that creates, but you have put it now on the record now. So
8 Mr. Cermak would have a good reason to come, if he wants to see the
9 documents you want to hand out to him. If he doesn't wanted to see them
10 then ...
11 MR. KAY: I'm grateful to the translators.
12 JUDGE ORIE: Yes.
13 [Trial Chamber and registrar confer]
14 JUDGE ORIE: We adjourn for the day and we resume tomorrow, 24th
15 of July, most likely for one session only, to start at 11.00, in
16 Courtroom III
17 --- Whereupon the hearing adjourned at 5.54 p.m.
18 to be reconvened on Friday, the 24th day of
19 July, 2009, at 11.00 a.m.