1 Tuesday, 8 September 2009
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.03 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, the
10 Prosecutor versus Ante Gotovina et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Mr. Russo, are you ready to continue your cross-examination?
13 MR. RUSSO: Yes, Mr. President.
14 JUDGE ORIE: Mr. Corn, perhaps needless to remind you, that
15 you're still bound by the solemn declaration you gave yesterday at the
16 beginning of your testimony, but that's how it is.
17 THE WITNESS: Yes, Your Honour. Thank you.
18 JUDGE ORIE: Please proceed, Mr. Russo.
19 MR. RUSSO: Thank you, Mr. President.
20 WITNESS: GEOFFREY CORN [Resumed]
21 Cross-examination by Mr. Russo: [Continued]
22 Q. Good morning, Professor.
23 A. Good morning.
24 Q. I'd like to begin by clarifying a few answers from yesterday. At
25 transcript page 21.223, line 13, I asked you to confirm that you had not
1 considered the documents listed in paragraph 12 of D1644, your
2 supplemental information sheet, prior to drafting your addendum. And you
3 answered that, as a general proposition, that was correct.
4 Then I asked whether you were provided with any information
5 beyond those documents and beyond the evidence of
6 Lieutenant-Colonel Konings and Marko Rajic, and you answered:
7 "Well, I can't immediately correlate the number with the
8 document. Can I tell you other information that I have considered in my
9 preparation to come over here. There was a transcript from a meeting
10 between the president and members of the military staff, including the
11 General. I think it was in Brioni. I looked at that. There were some
12 psychological operations directive that looked at, related to information
13 to influence the conduct of the civilian population. Rajcic's testimony
14 was something that I looked at extensively. As I said, the visual
15 disposition of military objectives in Knin was obviously something that
16 was important in my mind. So, I mean, that's a candid offer of the -- of
17 the information that I think had a significant influence on my thought
19 So your answer began with an identification of documents you
20 considered in your preparation to come over here, which suggests to me,
21 at least, that it was just testimony preparation. But your answer ended
22 with a comment about the information which had a significant influence on
23 your thought process, which led me to believe that you had considered it
24 before reaching your conclusions.
25 So it's still unclear to me whether you considered the Brioni
1 transcript, the testimony of Marko Rajic, and the psychological
2 operations directives before you drafted the addendum.
3 Can you clarify that?
4 A. Yes. Those were not -- that was not information that I relied on
5 when I drafted my addendum.
6 Just to clarify, I'm trying to be as -- as forthcoming as I
7 possibly can. I could not have drafted the addendum without having some
8 context about the overall concept of the operation. I think I made that
9 point yesterday. To be -- from my perspective, I don't know how any
10 expert on the use of a method or means of warfare in the context of an
11 operation could render an opinion without knowing the general nature of
12 the operation. For example, when I look at Colonel Konings's addendum,
13 it's based on a list of assumptions, hypothetical assumptions. It's a
14 response to hypothetical assumptions. But it seems relatively clear to
15 me that he is applying those assumptions within the broader context of
16 the operation, because those assumptions don't include every aspect of
17 Operation Storm.
18 And so what I was trying to convey was that I wrote the addendum
19 based on the facts and assumptions provided by counsel with the addition
20 of that one fact that I was made aware of in the meeting in Tampa
21 wanted to -- I thought was so significant that I wanted to make sure it
22 was before the Tribunal. And that was the effort I made with Defence
23 counsel was to allow me to see from their perspective the facts and
24 assumptions related to the operation that they believed were before the
25 Tribunal. But I also don't think that I could have expunged from my --
1 from my thought process the general concept of the operation itself, and
2 that's the point I was trying to make.
3 The information that was referred to in the last paragraph that
4 you recited from the record was information that I used as I prepared to
5 come over as a witness.
6 Q. Thank you, Professor. I'm not faulting you for relying on some
7 context that you received during the oral presentation, but, of course,
8 you understand that this leaves the Trial Chamber and the Prosecution at
9 a bit of an informational disadvantage in terms of what you actually had
10 in your mind when you drafted the addendum.
11 So getting back to that oral presentation, who exactly made the
12 presentation to you?
13 A. It were -- in that meeting there were the three attorneys
14 representing the defendant, who are in the courtroom today, and there was
15 an individual named Goran who is -- who was one of their technical
16 advisors on the operational aspects of Operation Storm.
17 Q. Was there anyone else present beside yourself?
18 A. Myself and those four individuals.
19 Q. And during that presentation, Professor, were you told about or
20 shown any evidence concerning incidents of shelling by General Gotovina's
21 forces in civilian-populated areas of the RSK prior to Operation Storm?
22 A. Not that I can recall.
23 Q. Were you told about or shown any evidence concerning incidents of
24 burning or looting of Serb property by General Gotovina's forces prior to
25 Operation Storm?
1 A. No.
2 Q. Were you told about or shown any evidence concerning
3 President Tudjman's or any other Croatian government official's views on
4 the desirability of Serbs remaining in or returning to Croatia?
5 A. I know that -- I believe there was a discussion of a meeting that
6 occurred with the president and members of the military staff, including
7 the General. Whether or not that was discussed in Tampa I can't say
8 without absolute certainty. Obviously I already told you that I have
9 seen the transcript of that meeting, and I don't know even if that
10 transcript would fall within the category of the question you ask,
11 reflecting his views on the desirability of members of the Serb
12 population to leave or return. I know there's some discussion of Serbs
13 leaving the operational area around Knin, but, to my recollection, I
14 don't think -- I understood that as a statement on his view on the
15 desirability of their return or not, so ...
16 Q. I just want to see if I understand you correctly. You're
17 referring to the Brioni meeting.
18 A. Yes.
19 Q. And you're indicating that you don't recall whether that came up
20 during the December 2008 oral presentation but you certainly recall that
21 from your review of that transcript after you drafted the addendum.
22 A. Yes. And it may have come up in that meeting. I just --
23 honestly I can't recall whether or not that's where I first learned of
25 Q. Other than that particular meeting at Brioni, were you given any
1 information about any other meetings between President Tudjman, other
2 government officials, in which a desirability of Serbs remaining in or
3 returning to Croatia
4 A. The only other -- the only other source of information that
5 relates to that were some psychological operations directives that I
6 reviewed prior to coming to The Hague
7 the addendum had been written.
8 Q. And can you tell us what those psychological operations
9 directives, what you recall from them?
10 A. Well, what I recall most significantly was I was reviewing one
11 which was, I think, an opinion of somebody reviewing those reports
12 rendering this -- this person - I think it was a transcript of
13 testimony - this person was giving an opinion as to the General's
14 reaction or, I guess, endorsement of some psychological operation
15 concepts or directives. What I recall about it was a note that I put on
16 the side of that indicated I didn't believe that the conclusion that was
17 reached in this opinion was accurate, based on the comment that was
18 embedded in the transcript from General Gotovina.
19 Q. Was this a transcript of the testimony of a witness who testified
20 in this case?
21 A. I think so.
22 Q. Do you have any idea which witness that was?
23 A. No.
24 Q. Were you shown the transcripts of testimony of any other witness
25 besides Lieutenant-Colonel Konings, Marko Rajic, and this individual whom
1 you've just mentioned that you can't recall?
2 A. Not that I recall.
3 Q. During the oral presentation given to you in late December 2008
4 were you told about or shown any evidence concerning the takeover of
5 UN observation posts by General Gotovina's forces during Operation Storm?
6 A. No.
7 Q. Professor, were you provided with or have you reviewed any of the
8 filings in this case?
9 A. I reviewed -- other than the report that Colonel Konings made,
10 which I assume was filed as an expert report, and my own, which was filed
11 as a report, those are the only filings, I believe, I have reviewed.
12 Q. Were you told anything about the Prosecution's allegations or
13 positions in this case?
14 A. I was told in preparation for testimony, after -- well, after the
15 addendum was filed, probably within the last month, I was provided a very
16 general overview of what the Defence counsel believe was the
17 Prosecution's theory. Or let be me more precise. The relationship
18 between -- let me -- let me -- obviously my focus has been on the use of
19 artillery during Operation Storm, particularly in the town of Knin
20 the discussion was to place this aspect of the case into broader context
21 and how the Defence felt it was connected to the broader series of
22 charges against the defendant.
23 Q. If you could, please, tell us what the Defence told you in that
25 A. My recollection is that I had emphasised to them as -- in
1 preparation to come over and testify -- well, not emphasise. I wanted to
2 ensure that the focus of my testimony was limited to the subject matter
3 of the reports, which was the use of artillery and the legality of use of
4 artillery under the assumptions and facts that had been provided. They
5 validated that. They said that the defendant was facing charges for a
6 pattern of misconduct alleged to have been committed by forces under his
7 command, and that the use of artillery, they believed, if it was
8 determined to be illegal, would be an element in essentially connecting
9 the broader pattern of misconduct to the defendant's intent.
10 Q. Were you told anything else specifically about what the
11 Prosecution's position is about why the artillery attack was illegal?
12 A. Well, obviously from Colonel Konings's report there's a fairly --
13 a fairly clear manifestation that the Prosecution believes that the --
14 the factual basis for the allegations of improper use of artillery were
15 effects and aspects of the targets that were -- that diverged from many
16 of the facts and assumptions that were the foundation of my report. So,
17 in that regard, just reading the facts and assumptions in the letter that
18 you signed reveals to me, or revealed to me, a fairly obvious basis for
19 why the Prosecution would allege that the use of artillery -- artillery
20 was improper.
21 And in several discussions with Defence counsel, they -- they
22 told me of evidence that they believed or -- generally, facts they
23 believed were more consistent with the Prosecution's theory than the
24 facts and assumptions that I had relied on. And essentially those --
25 those facts were in line with the facts and assumptions that you provided
1 to Colonel Konings in the hypotheticals that you asked him to base his
2 opinion on.
3 Q. I'm a little bit confused by the last part of your answer, but I
4 understand that you may have received an impression of what the
5 Prosecution's theory was based on Colonel Konings's report. But my
6 question to you was what you were told by the Defence about what the
7 Prosecution's theory of unlawful attack was.
8 A. Well, let me give you an example.
9 The -- as I've told you several times, when I wrote that
10 addendum, I was obviously -- I obviously felt it was important that the
11 facts and assumptions that I was basing those opinions on were relatively
12 well established in the record, and I asked the Defence to validate that
13 on several occasions. And on several occasions in those discussions, the
14 Defence would say, Now, obviously the Prosecution is not going to agree
15 or probably will not agree with all the facts and assumptions that we're
16 providing. For example, their view is that there was a much more
17 widespread use of indirect fire in a random kind of chaotic pattern
18 throughout the city of Knin
19 need them to tell me that, because that was embedded within the
20 hypotheticals of Colonel Konings's addendum, and those hypotheticals were
21 provided by the Prosecution, so I assumed those were facts and
22 assumptions that the Prosecution feels have been well established by the
23 record. But if that is a statement by the Defence on evidence related to
24 the Prosecution's theory, then those were discussions we had.
25 Q. Were you told anything else by the Defence specifically regarding
1 the allegations of unlawful attack not connected to what you read in
2 Colonel Konings's report?
3 A. The -- the only other information, I think, that would fall into
4 that category would be the Defence assessment of conclusions that they
5 believe the Prosecution would draw from certain evidence. For example,
6 in the -- in some of the information provided to Colonel Konings there --
7 or even in one of the hypotheticals in the letter that you sent to him,
8 there's reference to a hospital being on a target list, and the Defence
9 would say that the Prosecution likely believes or, We expect that the
10 Prosecution believes that that is an indication of improper intent,
11 because a hospital shouldn't be on a target list. But, again, that is in
12 the hypothetical that you proffered to Colonel Konings.
13 So it was -- the discussions of Prosecution theory were always
14 nested or connected, if you will, to my assessments, the assessments I
15 was providing them of my opinion on propriety of listing targets in a
16 targeting annex, of engaging certain targets within the city, and most of
17 that is in the addendum that I provided.
18 Q. Professor, you have given us an example or two. I'm looking for
19 as comprehensive an account as can you give us, regarding what you were
20 told about the Prosecution's, either allegations, positions or questions
21 likely to be put to you.
22 Can you tell me everything you recall about being told about
23 those things by the Defence.
24 A. Well, I will start with the last one. In terms of questions to
25 be put to me, the Defence said, Obviously you should expect the
1 Prosecution to challenge both some of the facts and assumptions upon
2 which the addendum was -- the opinions in the addendum were based and
3 perhaps the strength of the -- or the credibility of the opinions
4 themselves, even if the facts and assumptions are accurate.
5 There was -- as I said, there was discussion of differing views
6 on the -- on the objective evidence of where artillery strikes were --
7 were being made, that the Defence expected the Prosecution to assert or
8 to suggest, whatever term you want to use, that there was a much more
9 widespread or chaotic pattern of indirect fire within Knin. There was
10 discussion of whether or not I believed a corps-level command post would
11 cease to be an important objective, if the commander was not present,
12 based on, I think, a question that might have been proffered to another
13 witness during the trial by the Prosecution, and as I recall that's a
14 question that Defence counsel asked me yesterday in direct testimony.
15 There was discussion of, I believe, testimony from witnesses,
16 perhaps UN operatives, that were in Knin that referred to artillery
17 strikes occurring everywhere within the city of Knin, and that was
18 brought to my attention to ask my opinion of -- is -- do I think there's
19 an explanation for that. I already mentioned the church --
20 Q. I'm sorry, I want to stop you right there before you move on.
21 I'd like to know exactly what you were told about these
22 UN operatives and whatever opinion you were asked about and what opinion
23 you, in fact, provided.
24 A. Well, I was told that -- as I recall, I was told that there had
25 been a witness or maybe a report - I don't know - from an individual or
1 individuals working for the UN in Knin who said that, from their
2 observation perspective, there were artillery rounds exploding all over
3 the city, creating the inference that the use of artillery was as chaotic
4 as is suggested in the hypotheticals that you provided to Colonel Konings
5 in the report. And they didn't really get much further than that because
6 I interrupted them at that point, and I said, Well, I'm not surprised
7 that that is the perception because looking at the aerial photographs
8 that I saw from the beginning of the meeting in Tampa, there were
9 military objectives dispersed all over the city by the enemy forces.
10 So if I'm watching this attack from a distance or from a vantage
11 point, it will look like there are rounds exploding all over the city
12 because there were objectives all over the city. And I -- I mean, I cut
13 them off at that point because that was my reaction to that information.
14 Q. I'd like to explore that a little bit.
15 First of all, I understand that your interpretation that if
16 somebody's is looking at the town and they're saying that the town is
17 being shelled all over and from your perspective there are military
18 targets all over, one interpretation of that, which is apparently your
19 interpretation, is that they are mistaking shelling all over the town
20 with shelling of military targets all over the town.
21 That's -- that's your perspective of that testimony. Do I have
22 that right?
23 A. No, you don't. I wasn't there. I didn't observe what happened.
24 What I said to the Defence was, There are multiple inferences you could
25 draw from that evidence. One inference would be there was a chaotic,
1 random, indiscriminate attack of an entire city. But an alternate
2 inference, which I believe would be reasonable, based on the dispersion
3 of military objectives by the Serb forces within Knin, is that there's an
4 effort to target military objectives that are scattered throughout the
5 city and it's creating the visual impression of a random indiscriminate
6 attack. So I actually told them -- in fact I specifically recall using
7 the language of multiple reasonable inferences to draw from that
9 Q. And I want to be clear about that. You're not suggesting in any
10 way that one interpretation is any more reasonable than the other, and
11 you're not leaning towards them being mistaken about random shelling or
12 them being correct about random shelling.
13 Do I have that right?
14 A. I don't -- as I say, I was not present. I do know this. It's
15 not clear to me that the individuals rendering that opinion were aware of
16 the dispersion of military objectives within the city. When I heard the
17 Defence tell me about that opinion, I was aware of that and so that
18 triggered my reaction. I don't -- I just think there are multiple
19 inferences you can draw from that perception. I don't know which one is
20 right and which one is wrong.
21 Q. You say it's not clear to you that the individuals rendering that
22 opinion were aware of the dispersion of military objectives within the
23 city. Did you have any reason to think that they weren't?
24 A. I -- all I know is I was told that there were individuals who
25 worked for the UN who said it looked like the entire city was being
1 attacked by artillery.
2 Q. And did they tell that you some of these individuals had, in
3 fact, travelled through the town of Knin
4 A. Yes. They told me that -- as a matter of fact, there was one
5 they -- that I recall them saying was driving around the city, I think,
6 evacuating people or trying to assist in evacuation while the shelling
7 was occurring.
8 Q. And were you given any information about whether the individuals
9 making these observations were able to tell the difference between fire
10 for effect, corrected fire, and simply random fire?
11 A. Well, what I was told was that there were UN personnel who
12 observed the attack and said that it looked like the entire city was
13 being attacked.
14 Now, if -- there was no discussion of whether they were making --
15 that their -- their testimony or their report made reference to technical
16 aspects of the artillery fire. And those three terms you provide, fire
17 for effect, for example, okay, you can't make an opinion about fire for
18 effect without knowing the effect that the fire is intended to achieve.
19 So what effect was intended by that fire? My expectation or assumption
20 would be, if I'm observing the effects of an attack, the kinetic effect
21 of an artillery attack, I don't have full situational knowledge of what
22 operational effect the commander intends to achieve with that artillery.
23 I just see the kinetic effect.
24 So when you say, Did they tell you whether or not these
25 individuals perceived whether it was for effect, adjustment or random,
1 no. There was no discussion of that. But I would assume they wouldn't
2 be able to assess whether it was for effect because they were unlikely
3 privy to the operational planning that defined the effect the commander
4 wanted to achieve.
5 Q. Your answer makes me think you're misunderstanding what I mean by
6 fire for effect. That's a term that was used by several of the witnesses
7 here to indicate a delivery of multiple projectiles at one point.
8 MR. KEHOE: I object to that assessment, Mr. President.
9 JUDGE ORIE: Since there was an objection against the way in
10 which you summarise what witnesses said, you have to be more specific,
11 Mr. Russo, if you want to pursue this matter.
12 MR. RUSSO:
13 Q. Well, then let me just put it to you, when I said "fire for
14 effect," that's what I'm talking about. The difference between the
15 single shot attempting to get closer to a target and then the multiple
16 number of rounds which are fired once it appears that the target or
17 believes they have come close enough in targeting?
18 JUDGE ORIE: Mr. Kehoe.
19 MR. KEHOE: Excuse me, Mr. President. Then it's irrelevant
20 because Mr. Russo's position on that score is of no consequence.
21 JUDGE ORIE: Well, it is part of his question. So if he asked
22 the witness and -- unless you say that the whole question using this term
23 is irrelevant at all.
24 MR. KEHOE: I do. Except it's relevant for the Chamber, I
25 submit, as it ties back to what a particular witnesses says and not what
1 Mr. Russo opines. That's the objection.
2 [Trial Chamber confers]
3 JUDGE ORIE: The term used in the question by Mr. Russo could
4 confuse. Therefore, Mr. Russo is entitled to explain what he meant by
5 that. Whether that is what witnesses said or not is a different matter
6 for the Chamber to review.
7 Mr. Russo.
8 MR. RUSSO: Thank you, Mr. President.
9 Q. Professor, do you understand what I mean now when I say fire for
11 A. Yeah, I think I understand. And, again, I would emphasise that I
12 think it's -- it -- it is -- it is not a reflection of the operational
13 characteristics of employment of artillery.
14 What you're talking about is a classic kind of vernacular that
15 relates to identifying a target where you believe, as the commander, that
16 you can achieve an effect you desire by putting a large volume of
17 artillery rounds on the target. So the observer identifies the target,
18 calls fire, the initial round or several rounds, the initial salvo
19 strikes, and from that strike, the observer adjusts fire and then calls
20 a -- a phrase we use called "fire for effect." But, you see, that
21 presumes that the effect that the commander seeks to achieve with that
22 fire mission is a destructive effect, and it is very possible that the
23 commander might not seek to achieve a destructive effect.
24 And in fact from my review, and if you look at the assumptions
25 and facts in my addendum, it is relatively clear that General Gotovina
1 and his artillery staff were aware that they were under serious
2 ammunition resupply constraint, and that he had made the judgement that
3 the priority of effort would be the tactical point of attack in order to
4 support the breach of the Serb defensive positions. Therefore, the use
5 of artillery against military objectives in Knin was conducted based on
6 an economy of force principle, and so the effect that he sought to
7 achieve there in most cases probably was not destruction.
8 So your question presupposes that these did -- would these
9 witnesses have been able to notice whether it was a fire for effect, but
10 you're assuming that the effect that the witnesses assumed the General
11 wanted to achieve was destruction, and I don't believe that they would
12 have known whether or not that was the effect.
13 So two or three rounds may indeed have been intended to achieve
14 the effect of the fire in that context.
15 Q. I think I understand what you're saying, Professor. But that
16 answer, at least from my perspective and correct me if I'm wrong, assumes
17 that these UN observers did not in fact see fire for effect, that they
18 did not in fact see clumped together projectiles landing on a particular
19 target after a corrected fire.
20 Let me just finish here.
21 It sounds like what you're saying is that General Gotovina was
22 not intending to destroy targets, so therefore, he wouldn't be firing a
23 high volume of projectiles on any particular target. And therefore
24 anybody observing that would not see what I'm calling fire for effect and
25 would assume that it's simply random shelling with the single odd shell
1 here or there.
2 Do I have that last part right?
3 A. First, the question that I responded to was your question, Do I
4 understand what you mean by fire for effect, right? And that was my
5 response of my understanding of what I thought you meant by fire for
7 I will reiterate the underlying point in response to the last
8 part of your question. I don't believe that the people observing the
9 kinetic effect of artillery fires in Knin would have had full knowledge
10 of the operational effect that was intended by those strikes.
11 Now, it's clear to me and it's obvious from the addendum, for
12 example, that the headquarters was a high-priority target, because of its
13 command, control, communication, and intelligence function. So it would
14 be unsurprising for me to find out that people that observed the attack
15 on Knin saw something that fit more within your definition of fire for
16 effect in and around the headquarters than perhaps in other areas. But
17 my point is that if -- yes, to answer your question, I think it would be
18 a rational assumption by somebody observing the kinetic effect that a
19 salve of rounds into a certain area that was not followed by a
20 substantially heavier attack or salvo would seem inconsistent with their
21 assumption that the first salvo was for correction purposes. But my
22 point is, they don't know whether the first salvo was for correction
23 purposes or was for effect itself.
24 Q. That's clear now. Thank you.
25 Now, you're told that an opinion by people who actually witnessed
1 the attack was that they believed it was random shots all over the town,
2 and if I understand you correctly, you stopped the Defence at that point
3 and interjected your own sense of why that might be correct or why it
4 might be incorrect, or what inferences could be drawn from that or not
5 drawn from that.
6 What I'm more interested in is whether you asked for any evidence
7 about that. It seems to me that if somebody tells you, Well, a
8 precipient witness to the event said it looked to them like it was random
9 and all over the town that you would want information. Well, I'd like to
10 though, first of all, if that person knew what the targets were; I'd like
11 to know how many people said that; I'd like it know, as you say, whether
12 they had any knowledge of the operational objectives; I'd like to know
13 what their particular expertise is in making these things.
14 Did you ask any of these questions?
15 JUDGE ORIE: Mr. Kehoe.
16 MR. KEHOE: Mr. President, I object to the form. I mean, if it
17 was a question, I object to the format of giving a speech to the witness
18 and then delivering a question that doesn't necessarily tie it together,
19 so it's a -- my objection is to form.
20 JUDGE ORIE: I think what Mr. Russo would like to know, Mr. Corn,
21 is the following.
22 You apparently stopped the Defence giving an explanation of what
23 would be a rational explanation and which may have indicated that those
24 observing were perhaps misinterpreting what happened.
25 Now, Mr. Russo's question apparently is why did you stop them,
1 why didn't you ask for further information on that moment, what did they
2 know, et cetera?
3 That's apparently what Mr. Russo wants to find out.
4 Mr. Russo, if I'm understanding your question well.
5 MR. RUSSO: Yes, Mr. President.
6 JUDGE ORIE: Could you answer the question.
7 THE WITNESS: The information I was given was not information
8 that matches the characterisation of the summary provided by Mr. Russo in
9 his question. I was told that there were people who worked for the UN
10 who said that it looked like the entire city was under attack. Not that
11 there were random attacks, not that there was random use of artillery.
12 They said it looked like the entire city was under attack. That's what I
13 was told. And I, at that point, maybe it's just -- you know, maybe it
14 was -- I got a little bit excited, I don't know. I said -- it was like
15 something popped in my head. Because I had already known that there were
16 military objectives all through the city and I said, Well, there's a
17 logical explanation for that.
18 JUDGE ORIE: Yes. But I think what Mr. Russo is asking you is
19 that -- a one-liner, it looked like, as if. I think in view of your
20 experience, you would have known that that would not have been the whole
21 of the testimony of that witness, that he would have told us that he been
22 asked not only about what it looked like, but what he observed and
23 perhaps also what he knew, where he was exactly, whether he travelled
24 around. I mean, all kind of detailed questions, which -- of which the
25 answers would have served someone to test the possible explanation --
1 THE WITNESS: Mm-hm.
2 JUDGE ORIE: -- you had on your mind. And Mr. Russo would like
3 to know why you stopped immediately on the basis of the one-liner, and
4 why you didn't further explore on what basis --
5 THE WITNESS: Well --
6 JUDGE ORIE: -- such a -- it looked as if was.
8 THE WITNESS: Yes, Your Honour.
9 When I say I interrupted them, I interrupted them when they made
10 the comment about it looked like the entire city was under attack. I
11 think subsequently to that I did ask, Where were they? And that's when I
12 learned there was one individual that was driving around the city, I
13 think I was told he was trying to collect refugees or assist in the
14 evacuation of refugees, and then others were in a building watching the
15 attack that was on the periphery of the -- it wasn't in the city centre,
16 as I recall. And that -- and I do remember thinking, well, the vision
17 they have would create that perception.
18 But in retrospect I would -- I think the reason that that was
19 the -- all the information that I felt I wanted was because they were
20 there, I wasn't, and I'm not contradicting necessarily the inference they
21 drew from what they observed. All I was doing was pointing out to the
22 Defence that I believed that, based on the dispersion of military
23 objectives within the city, there would be a possible alternate
24 explanation for that conclusion. And that's where we left it.
25 JUDGE ORIE: Thank you.
1 Please proceed, Mr. Russo.
2 MR. RUSSO: Thank you.
3 Q. Professor, in response to His Honour Judge Orie's question, draft
4 transcript page 19, lines 18 to 19, you said:
5 "I was told that there were people who worked for the UN who said
6 that it looked like the entire city was under attack, not that were
7 random attacks, not that there was some random use of artillery."
8 Now, you would agree with me, wouldn't you, that if the entire
9 city was under attack, that's an indiscriminate attack. Wouldn't you
10 agree with that?
11 A. It would depend on what military objectives were in the city and
12 where they were.
13 My point was, they didn't tell me that these witnesses said there
14 were random attacks or indiscriminate attacks. They said these witnesses
15 or the report - I honestly can't remember whether it was a witness or a
16 report - said their perception was the entire city was under attack.
17 Q. And I -- the point I'm trying to make here is what you were told
18 about what they perceived would have put you on some notice that this
19 sounds like something that should be investigated.
20 A. Well, if my understanding of the enemy disposition up to that
21 point was that there was one military objective in the city, let's say
22 the corps headquarters, and then there's a witness that says, It looked
23 like the entire city was under attack, then that obviously would raise a
24 very significant concern.
25 But I -- I think that my reaction to that was based on my belief,
1 based on what I had been shown and what I looked at and the assumptions
2 and facts related to my opinion, that the enemy had located within Knin
3 military objectives throughout the city. They were not isolated to one
4 kazerne [phoen] or one specific area of the city. There were military
5 objectives throughout the city, and the enemy, because of his locating
6 some high-value targets within the city, would have created the
7 impression in the mind of his opponent that the city was -- he was
8 treating the city as something that was worth protecting.
9 And so I -- what I did is I imagined the perception of what it
10 would look like to see the kinetic effect of high-explosive artillery
11 rounds that are being directed at enemy military objectives dispersed in
12 a -- throughout a city, and that's what made me say there's probably or I
13 think there is an alternate explanation for that.
14 Q. Professor, based on what you know about the dispersion of the
15 military objectives throughout the town, is it your testimony that it
16 would have been lawful to shell the entire town in order to strike those
17 military objectives? Because it sounds like to me that that's what
18 you're suggesting. I would like your answer on that.
19 A. I would -- I'd refer you back to my initial report. The answer
20 to that is a categorical no. It is clearly prohibited by international
21 humanitarian law to treat a series of dispersed military objectives
22 within a populated area as one large objective. That was the product of
23 Additional Protocol I's rejection of a practice of carpet bombing during
24 the Second World War, and in the view of many, carpet bombing by the
25 United States during the war against North Vietnam. And it is -- it's
1 a -- as a fundamental tenet of international humanitarian law that is
2 illicit and improper to simply place an entire populated area in the
3 cross-hairs because the enemy has dispersed military objectives within
4 that area.
5 Q. Thank you. And based on what you know about the dispersion of
6 targets in Knin you'll agree with me, won't you, that there are parts of
7 the town which are not within the probable range of error around the
8 military objectives within the town. You would agree with that, wouldn't
10 A. Well, there are certainly parts of the town that do not qualify
11 as lawful military objectives.
12 Now your reference to probable range of error I think raises
13 another issue. You raise that issue in -- as I recall, in the letter
14 that requests the addendum by Colonel Konings --
15 Q. Let me -- I'm sorry, Professor. I'll give you an opportunity to
16 give me your answer or your views about that, but first I just want an
17 answer to my question.
18 A. Well, I can't answer your question without endorsing what I think
19 is your view of probable error --
20 Q. Well, I'll --
21 A. -- and I'm not sure I agree with that view.
22 Q. I'm going give you an opportunity to explain your disagreement
23 with that. But what I'm asking you is what you know about the military
24 objectives, the location of the alleged military objectives in the town,
25 if you drew around those, the probable range of error of the weaponry
1 being fired at them, would it encompass the entirety of the town?
2 MR. KEHOE: Well, if -- if I may, that certainly wasn't the first
3 question, but if we're getting into probable range of error, that is an
4 interesting concept that the Prosecution itself offered no evidence on
5 during its case, zero.
6 MR. RUSSO: Is that an objection or a comment, Mr. President? I
7 don't --
8 MR. KEHOE: That's an objection concerning the Prosecution's case
9 concerning probable range of error which they had a burden to present to
10 this Trial Chamber if they thought it was an issue. It is simply not an
11 issue, I take it, because the Prosecution put nothing forward to the --
12 forward before this Trial Chamber. There's no -- simply no foundation in
13 the record for that question.
14 MR. RUSSO: Mr. President, I will respond to that.
15 In terms of evidence, the report of Lieutenant-Colonel Konings,
16 the testimony of Marko Rajic as well as the evidence testimony of Kari
17 Anttila. Those are just three examples of some of the witnesses who have
18 offered evidence about the probable range of error of some of the
19 weaponry used against Knin.
20 MR. KEHOE: And --
21 JUDGE ORIE: Let's try to get back because we're here primarily
22 to hear the testimony of the witness.
23 You put the question to him, Mr. Russo, and the witness said that
24 certainly certain parts of town would not qualify as legitimate military
1 Let's take it from there. If you want to further explore --
2 first of all, apparently the witness says that there are areas which
3 could not be legally attacked. That seemed to me a rather important
4 starting point in the answer to your question.
5 MR. RUSSO: I do agree it's important --
6 JUDGE ORIE: If you want to further explore that, please do so,
7 perhaps not by varying your question but perhaps to put some follow-up
9 MR. RUSSO: Yes, Mr. President.
10 Q. Professor, taking that as the starting point, your observation
11 that there were certainly areas in Knin that were not legitimate military
12 targets to fire artillery at, that's one aspect of -- of an assessment of
13 whether -- is a difference between targeting those areas intentionally
14 and a difference between the effects of artillery, for lack of a better
15 term, bleeding over into those areas.
16 You agree that there's a difference there, right?
17 A. Let me be clear. A lawful military objective is the only thing
18 that a commander may deliberately make the object of attack, okay?
19 When we use the word "target" it infers in my mind a decision by
20 an operational leader to make something the deliberate object of attack.
21 Only lawful military objectives within Knin could have been properly and
22 legally targeted by General Gotovina and his subordinate commanders or
23 staff officers.
24 The effects of artillery do not always, we know, directly
25 correlate to the intended target that -- that the round was fired at.
1 So, it seems to me what you are asking and -- and if this is incorrect
2 you can obviously tell me, is that if you know a probable range of error
3 or a probable area of error and you could put a circle around a lawful
4 military objective, could you conclusively infer from a round striking
5 outside that probable range of error that the intended object of attack
6 was not the lawful military objective.
7 Is that an accurate -- is that what you're suggesting to me?
8 Q. No.
9 A. Okay.
10 Q. I'm simple trying to determine when somebody says the entire town
11 of Knin was shelled. Shells fell everywhere over the town --
12 [Overlapping speakers] ...
13 A. No -- [Overlapping speakers] ...
14 Q. Hang on a second. Somebody says that. Now, there's, you would
15 agree with me, only a few explanations for that. One of them being that
16 in fact it was intended to fire shells all over the town.
17 A. Mm-hm.
18 Q. And I take it that you're going suggest to me that there's
19 possibly another reason not connected to an intent, an illicit intent
20 that would produce that kind of result.
21 Is that right?
22 A. Well, first off, again, I was told that the witness said it
23 looked like the entire town of Knin
24 just recharacterised it or rephrased it presented it as a fact. Okay?
25 It was a perception. That is what I was told. A witness on the scene
1 had a perception that the entire city was under attack.
2 Yes, you are correct. If that perception is corroborated in fact
3 or is -- or if the finder of fact, in this Tribunal I assume, concludes
4 that based on that perception there were shells fired all over the entire
5 city, then that would indicate an indiscriminate attack, because, as I
6 stated earlier, there were military objectives dispersed throughout the
7 city but that didn't make the entire city a military objective.
8 What I said was that my reaction to that was there was an
9 alternate rational explanation for that perception, and that alternate
10 rational explanation is that you are observing the kinetic effect of
11 artillery rounds that are being fired simultaneously in a coordinated
12 effort to disrupt the enemy's ability to see the battlefield, to
13 manoeuvre, to re-supply, to muster, and to move reinforcements. That is
14 a fairly intense attack, each morning, around the time of twilight, where
15 the kinetic effect of artillery is exacerbated because of the lack of
16 natural light and the obvious flash impact of artillery, and I believe
17 that that could create a perception that the entire city is under attack.
18 So, yes, I think there are two alternate inferences you can draw
19 from that perception, and that's what I explained to Defence counsel when
20 they told me that.
21 Q. Thank you, Professor. I think I've got what you're putting to
22 me. Let me just make sure if I am correct.
23 You were, as you say, given someone's perception about what they
24 believed they were witnessing, and you immediately stopped them and said,
25 Well, there's two possibilities. Number one, they're right about what
1 they saw; number two, they may be wrong and here's why.
2 Do I have that correct?
3 A. No, number one they may be right; number two, they may be wrong.
4 And I didn't use that terminology. I said there were two rational
5 inferences you could derive from that observation.
6 JUDGE ORIE: It ain't necessarily so. It is not necessarily what
7 you think it is.
8 THE WITNESS: Exactly, Your Honour.
9 JUDGE ORIE: Thank you.
10 Please proceed, Mr. Kehoe -- Mr. Russo.
11 MR. RUSSO: Thank you.
12 Q. Now you also said here in connection with your second-to-last
14 "As I stated earlier, there were military objectives dispersed
15 throughout the city but that didn't make the entire city a military
17 Then you would agree with me, then, that if General Gotovina made
18 the entire city a military objective of the artillery attack, that would
19 be unlawful?
20 A. Explain to me how you make an entire city the military objective?
21 If I can ask that, with all due respect, before I answer your question.
22 Q. Well, I think you're anticipating where I'm going with this. But
23 I'd like you to first answer the question.
24 A. If General Gotovina gave an order to subordinates with the intent
25 that that order be understood as a directive to place the entire city
1 under attack because there were several dispersed military objectives in
2 that city, that would have been an improper order.
3 Q. And as I said, I do believe you're anticipating where I'm going
4 with this so we'll just come out with it right now.
5 You saw the order for attack, General Gotovina's order for attack
6 in which he directs his artillery forces to put the town of Knin
7 artillery fire; correct?
8 A. Mm-hm, yeah.
9 Q. You have also seen Brigadier Rajcic's artillery attachment in
10 which he follows up that with an order to "shell the town of Knin
11 You have seen those?
12 A. Right.
13 Q. And are you telling me that the explicit language of those orders
14 does not indicate to you that Knin, the town of Knin was a target for
15 artillery fire?
16 A. Again, I think that that -- the language in those orders raises
17 several possibilities.
18 It's not language that I think is ideal by any means. If I had
19 been a JAG officer reviewing that plan I would have gone back to the
20 commander and I would have said, You need -- we need to revisit the
21 terminology here. In fact, in my experience as a JAG officer, that was a
22 routine practice, because military operators, particularly as the higher
23 level of command you reach, you paint with a relatively broad brush, and
24 one of the reasons why there are more than 1.800 licenced attorneys
25 wearing uniforms in the United States Army, and more than 500 of them
1 deployed in Afghanistan and Iraq, is a recognition that it is very common
2 to use language in orders and directives and fragmentary orders that is
3 not as precise as we would like it to be.
4 So when I saw that, it obviously raised a concern in my mind, and
5 I -- and so I considered it against broader context.
6 There was testimony in Rajcic's transcript that talked about
7 emphasis by General Gotovina on the propriety of targeting, that we will
8 not make civilians the direct object of attack. There was discussion
9 between General Gotovina and his political commander, the president, at
10 the very outset of the Brioni transcript where the president emphasises
11 the critical importance of maintaining international support and goodwill
12 through the execution of the operation and uses the phrase, as I recall,
13 We must ensure the operation is executed professionally.
14 Now, I know that General Gotovina had experience with the French
15 Foreign Legion prior to assuming his duties as a commander in Croatia.
16 It -- all of this raises the question of what professional execution
17 means if an operational commander is told by his president, We must
18 maintain international support and ensure the operation is executed
19 professionally, in 1995, in the Balkans, what effect does this have on
20 his state of mind?
21 I would assume that there had been war gaming going on. You
22 don't execute an operation that is the strategic centre of gravity for
23 fighting and winning a war without planning it, without war gaming it,
24 and it's clear that military objectives within Knin were identified.
25 It's clear that General Gotovina had a serious issue of ammunition
1 resourcing, and a priority effort to support the tactical main effort.
2 So all of this -- all of this, I think, goes into at least my
3 assessment of what that would have meant and how that would have been
4 understood, meant when it was issued, understood when it was received by
5 subordinate commanders in the broader context of this operation. And
6 therefore, like the perception that Knin, the entire city, is under
7 attack, I think that in isolation, that's troubling. In broader context,
8 there are multiple conclusions you can derive from that language.
9 Q. It sounds, based on how you began the answer and how you ended
10 it, you do agree that the language used by General Gotovina can admit of
11 several possible interpretations, one of them being that in fact he did
12 want the entire town of Knin shelled; correct?
13 A. If you say, place the city under attack, then obviously one of
14 the conclusions you can draw from that was that that was what was
16 Q. You indicated that if you were a JAG officer reviewing this
17 particular order you would have gone back to the commander and told him
18 he needed to change the language, and one of the reasons you would have
19 done that is because to follow the order explicitly would be a crime;
21 A. The reason I would have done it is because I wouldn't want there
22 to be any uncertainty as to what his intent was.
23 Q. And just for the sake of argument, if there was, in fact,
24 uncertainty --
25 MR. KEHOE: Excuse me, Mr. President.
1 JUDGE ORIE: Mr. Kehoe.
2 MR. KEHOE: If we're talking about uncertainty in the order,
3 might it not be best to pull 1125 up and deal with the actual document so
4 we get some clarity concerning this uncertainty that counsel is talking
6 JUDGE ORIE: Of course, we could look at the document. At the
7 same time, I do understand the testimony of Professor Corn to be that in
8 order to understand exactly what was meant, that it might be not a good
9 idea to just focus alone on that line in that order, or on those lines in
10 those orders, that -- for the interpretation of what was meant. We have
11 to see it in the context and then in the entirety of the evidence
12 produced to finally form an opinion as to how to understand that order.
13 Is that correct --
14 THE WITNESS: That is correct, Your Honour.
15 JUDGE ORIE: -- Professor Corn?
16 Then, Mr. Kehoe, I'm not opposed against looking at the language,
17 but it will serve only to a limited extent what you apparently seek to
19 MR. KEHOE: I --
20 JUDGE ORIE: That's what -- that's how I understood the witness.
21 At the same time, Mr. Russo, I was already trying to find exactly where
22 it was commented upon exactly.
23 So look at the text as such doesn't -- doesn't harm. Might even
25 MR. RUSSO: Mr. President, the witness clearly know what I'm
1 referring to. He indicates he's seen the documents. He knows the
2 language I'm referring to. If Mr. Kehoe wants to go ahead and point out
3 context during his redirect examination --
4 JUDGE ORIE: Yes --
5 MR. RUSSO: -- that's fine.
6 JUDGE ORIE: Mr. Russo, if you understood my previous observation
7 well, then everyone might have clear on his mind exactly the words used.
8 I might not.
9 MR. RUSSO: Certainly I have no objection to pulling up the
10 order. It's P1125. I believe it's page 14 in the English.
11 JUDGE ORIE: Okay. It will be on our screen. And then please
13 MR. RUSSO:
14 Q. Professor, I wanted to take this a bit step by step.
15 As long as we have it up here, we might as well read it. It
16 indicates, bottom paragraph you see on your screen:
17 "Group and organise the TSs and TRS-2 along the main attack axes,
18 focus on providing artillery support to the main forces in the offensive
19 operation through" -- and he gives several directions on how he wants
20 that to be achieved. Number 1, providing artillery "powerful strikes
21 against the enemy's front line. Number 2, command posts. Number 3,
22 communication centres. Number 4, artillery firing positions. And number
23 5, by putting the towns of Drvar, Knin, Benkovac, Obrovac, and Gracac
24 under artillery fire.
25 Now, would you agree with me, Professor, that the last part,
1 number 5, taking that language as explicit, in other words, doing all of
2 the other things I've asked to you do, firing at communication centres
3 and artillery positions, in addition to doing those things, I want to you
4 put the towns of Drvar, Knin, Benkovac, Obrovac, and Gracac under
5 artillery fire. You would agree with me that that explicit language is
6 an order for an unlawful attack on the towns of Drvar, Knin, Benkovac,
7 Obrovac, and Gracac. Correct?
8 A. No, I wouldn't agree with that. Because I don't think you can
9 read it out of context.
10 Q. Professor, I asked you a very specific --
11 JUDGE ORIE: Mr. --
12 THE WITNESS: Can I -- may I finish.
13 MR. RUSSO:
14 Q. Let me first --
15 JUDGE ORIE: Mr. Russo.
16 The French translation was approximately four or five lines
17 behind, Mr. Russo. That's the reason why I tried to stop.
18 Could you also please slow down your speed of speech.
19 Now you can finish your question.
20 MR. KEHOE: Mr. President, I don't think that the witness
21 finished his answer before Mr. Russo started his next question. I think
22 the witness was stopping because Your Honour was asking for a pause for
23 the translation and he had further things to comment on this.
24 MR. RUSSO: Mr. President, I asked him a direct question. He
25 gave me a direct answer. "No" was the answer to the question, that he
1 wouldn't agree with me and that he wanted to provide an explanation. I'm
2 going give him the opportunity to do that, but I want my questions
3 answered first.
4 JUDGE ORIE: The question was, Correct? After you had given him
5 some suggestions.
6 The answer was: "No, I wouldn't agree with that." That is an
7 answer to your question.
8 And then the witness started to explain his question -- his
9 answer, which is, I think, appropriate, in view of the many matters that
10 you put to him. You started by saying, Professor Corn, because I don't
11 think you can read it out of context, was there anything you would like
12 to add to that.
13 THE WITNESS: Yeah. Counsel asked me if I agreed that that
14 language -- they've moved the transcript up on me, but as I recall, if I
15 would agree with him that that language was -- called for an illegal
16 attack or was improper, and I answered no, I wouldn't necessarily agree
17 with you. That could be a conclusion you could derive from that
18 language, but I think that conclusion -- but -- but when I look at it, I
19 look at it in broader context, and in that broader context, what I see is
20 a commander focussing his artillery, his fire support assets on tactical
21 objectives and operational objectives.
22 Now I think that the question you posed to me, Mr. Russo, is
23 based on an assumption that a command post and communication centre can
24 only exist in the town of Knin
25 attack, can only mean you want to strike objectives in Knin that you have
1 already identified. But I read it, with my understanding as a former
2 tactical intelligence officer, that command posts and communications
3 centres and logistics areas exist in the close-battle area and in the
4 rear-battle area. And then I read on in the paragraph, and again, he is
5 focussing on the tactical effect of fire support.
6 So, yes, I do agree with you, if the proposition is, is one
7 possible conclusion from that language that it was an order to place the
8 entire city under attack. That is a possible conclusion from that. I
9 don't think that conclusion is -- or that inference is supported by the
10 broader context of the paragraph.
11 MR. RUSSO:
12 Q. Professor, thank you for your answer. What I wanted to focus on
13 was your agreement that one possible conclusion from the language is that
14 it was in fact an order to place the entire city under attack, and I'm
15 asking you to confirm that if that interpretation is, in fact, the
16 correct one, then the order, this particular language issued by
17 General Gotovina, is an order to conduct an unlawful attack on those
19 A. It could be understood as an order to conduct an unlawful attack
20 on those towns. Whether or not that was his intent, I think, is another
21 question. But, yes, that is a possible conclusion you could draw from
23 Q. Thank you.
24 MR. RUSSO: And if we could have P1205.
25 Q. And before we move on, the interpretation you gave to the
1 language of the order we just looked at, that it's -- you're saying it's
2 possible, and correct me if I'm wrong, it's possible that when
3 General Gotovina says, Fire at command posts, communication centres,
4 artillery positions, and by putting the towns of Knin, Drvar, Benkovac,
5 Obrovac, and Gracac under artillery fire, you're saying that one
6 interpretation is that he's attempting to communicate to his subordinates
7 that he wants the command posts, communication centres, artillery
8 positions inside those towns to be attacked by artillery.
9 Do I have that right?
10 A. No.
11 Q. Okay. Then ...
12 A. My point was that in the broader context of his fire support
13 concept of operation, it is clear that the priority effort of fire
14 support is to support the close battle. The offensive, the initiation of
15 offensive action against an improved and established enemy defence line,
16 and when you fight that close battle, and you're going use artillery to
17 support it, you have to use that artillery against not just the defences
18 but you use it against C3I and logistics that are in proximity to that
19 close fight. It's -- it's an axiomatic principle of military operations.
20 And so what I read that within the broader context or what I
21 think is a possible or rational conclusion to draw from that, is that if
22 there had been military objectives identified in Knin prior to issuing
23 this order, he is telling his artillery subordinates, Place the
24 objectives in Knin under attack, in support of this broader operation.
25 He is more focussed on the objectives related to the close fight because
1 the close fight is his priority of effort.
2 Q. And if that position you're taking is true, Professor, can you
3 tell us why, in your view, he doesn't say, And by putting the military
4 objectives in Drvar, Knin, Benkovac, Obrovac, and Gracac under artillery
5 fire? Can you explain to me what your position is on why that language,
6 which would clarify things, certainly was not included?
7 A. Well, I mean, first off, for me to tell you why he didn't do it
8 is total speculation, but can I tell you from my experience providing
9 legal advice to military commanders, there are a number of explanations
10 why that language would end up.
11 First off, I doubt General Gotovina sat down and personally wrote
12 the document. Perhaps he did. But in most cases the commander is not
13 writing the order. The operations officer is writing the order. And the
14 commander obviously adopts the order when he issues it under his
15 authority, okay? He is relying on the precision of the operational
16 officer who drafts the order.
17 That's one factor. Another factor --
18 JUDGE ORIE: Could I stop you for a second.
19 I'm trying to understand the question, and I'm also trying to
20 understand your testimony up until now. You have testified that this
21 language can be understood in several ways. One possible explanation
22 being that he wanted the towns to be attacked.
23 THE WITNESS: Mm-hm.
24 JUDGE ORIE: Another one, that he intended to give orders to
25 attack military objectives within those towns.
1 Now, Mr. Russo, the next question to ask why would he have put it
2 in this way is - but please correct me when my understanding is wrong -
3 is a useless question because it all depends on how we have to understand
4 the language. If the language intended to say, Just attack the whole of
5 the town, then, of course, the reason why it was phrased this way,
6 because otherwise you would have missed major parts of the town civilian
7 parts, if he would have only attacked military objectives. If, however,
8 on the other hand, it was intended to give an order to attack military
9 objectives only, under those circumstances, you could say it was -- well,
10 not -- not phrased in the best way to do that.
11 So, therefore, the answer to your question completely depends on
12 the interpretation to be given to this language for which Professor Corn
13 has told us that there are several ways of doing. You could understand
14 it A; you could understand it B. So then to ask the why, you should
15 split that then up, to if you understand it A, why would this language be
16 used. If you understand it B, why would that language be used?
17 And I think, as a matter of fact, that it's so obvious that if
18 you interpret the order as intending to attack the town as a whole, I
19 mean, the why for the language, the answer to that question is almost
21 If, however, you would interpret it in a different way, then I
22 think in the testimony of Professor Corn we found the answer already.
23 It's language which is not very precise, and he would have -- would he
24 have been in a position -- he would have sent it to be reviewed.
25 So the answers are there. The question is a useless question if
1 you do not make a distinction between the various interpretations of the
3 If you disagree with my analysis, I'd like to hear from you, and,
4 of course, the best would be to put the questions in such a way that I'm
5 immediately convinced of the inaccuracy of my analysis of questions and
7 But let me first ask Professor Corn, listening to the last
8 question of Mr. Russo and listening to my analysis as why it would a
9 useless question, would you agree or would you not agree?
10 THE WITNESS: Your Honour, I agree, and obviously the answer I
11 started to elicit was based on an assumption that Mr. Russo is asking me
12 if he didn't mean to put Knin under attack, why he would have used that
14 JUDGE ORIE: Yes, although --
15 THE WITNESS: In the alternative, I think you could ask the other
16 question. If he meant to attack the civilian population in Knin, why
17 didn't he say, Place the civilians in Knin under attack. I mean, it's --
18 JUDGE ORIE: You might have missed the other parts of town,
19 Mr. Corn --
20 THE WITNESS: Exactly.
21 JUDGE ORIE: -- which might have been ...
22 Yes. Mr. Russo, it's close to 10.30. If you'd like to further
23 digest my previous observations when preparing a formulation of your next
24 question which might demonstrate that not only me but Professor Corn is
25 wrong as well, then I'd like to give you some time for that.
1 Apart from that, there seems to be a procedural issue to be
2 raised by one of the parties. Therefore, I suggest, unless you would say
3 no, one or two questions would ...
4 MR. RUSSO: Well, Mr. President, just to respond to the Court's
6 What I'm attempting to do, and it may not be clear to the Court
7 due to my inartful phrasing of my questions, it appears to me that
8 Mr. Corn has chosen among the possible alternatives interpretations of
9 this and I'm attempting to test why he has chose that particular
10 alternative, but I will find a more focussed and less useless way to ask
11 for that information.
12 JUDGE ORIE: Yes.
13 Mr. Russo, although it may be right that more time was spent
14 on -- on an explanation which might not necessarily be the one of the
15 Prosecution, I didn't hear Professor Corn to choose between one of these
16 twos -- two options but we could ask him.
17 Professor Corn, have you chosen? Do you say this is the right
18 interpretation; that's the wrong interpretation? Or have you just said
19 that, in the context, the interpretation by the Prosecution is not
20 necessarily the right one.
21 THE WITNESS: Your Honour, I think I would have to answer that by
22 adopting the latter proposition.
23 Now, let me just be clear. I mean, obviously in my addendum I am
24 given facts and assumptions that focus the attack on specific military
25 objectives in the town. So, in that regard, in relation to the addendum,
1 I would have to say that the facts and assumptions in the addendum rebut
2 the proposition that the Prosecution has proffered, that this was a
3 directive to attack the entire town. Otherwise the facts and assumptions
4 related to my assessment of each strike would be totally eviscerated.
5 But in this specific -- with this specific question, I think
6 there are two reasonable or rational inferences you can draw from the use
7 of this language. I think both of them -- there are weaknesses and
8 strengths for both of them. I just think that it needs to be read in the
9 broader context, and I also think that if the assumption is or the
10 assumption is he intended attack the -- to attack the town and that's why
11 he put that language in there, then you could ask the question why wasn't
12 he even more precise in that intent.
13 So I think there are two rational conclusions you could draw from
14 that language.
15 JUDGE ORIE: Then I think we should have a break, Mr. Russo.
16 Could I first ask Madam Usher to escort you out of the courtroom,
17 Professor Corn.
18 [The witness withdrew]
19 JUDGE ORIE: Mr. Misetic, I was informed that there was a
20 procedural matter to be raised.
21 MR. MISETIC: Yes. If we could go into private session for a
22 moment, please.
23 JUDGE ORIE: We turn into private session.
24 [Private session]
11 Page 21271 redacted. Private session.
7 [Open session]
8 THE REGISTRAR: Your Honours, we're back in open session.
9 JUDGE ORIE: Thank you, Mr. Registrar.
10 Since we're dealing with procedural questions, Mr. Cayley, the
11 scheduling, as it stands now, would not permit the Cermak Defence to
12 start its case on the 17th of September. Therefore, that date has to be
14 Now I do remember that, at the time, you asked for a couple of
15 days between the Gotovina case and the start of the Cermak case. Now,
16 there are two possible explanations of this language. The one being that
17 you needed a couple of days between the two; or that you felt that, in
18 view of the scheduling at that time, well, the 14th or the 15th would be
19 too early and that you would need, in more absolute terms, until a later
21 MR. CAYLEY: Could I interrupt you, Mr. President, because I can
22 short-circuit this. We are ready to actually go ahead immediately, so --
23 JUDGE ORIE: Yes.
24 MR. CAYLEY: -- as soon as the Gotovina team is finished, we can
25 proceed with our first witness. All we need is a date for certain when
1 our case is to begin so that we can bring our witnesses.
2 JUDGE ORIE: Yes, you would say that could be the day after the
3 Gotovina Defence has concluded.
4 MR. CAYLEY: Exactly, Your Honour, yes.
5 JUDGE ORIE: Yes. So, therefore, I think we have in -- in view
6 of the witnesses we have on our list and the estimates of time needed, we
7 would know when that would be, but perhaps you verify and if the parties
8 agree when the Gotovina Defence will conclude its case presentation that
9 we will know that the next day you would start, and then we can check
10 whether your understanding of when the Gotovina case concludes is the
11 same as our understanding of when that will be.
12 MR. CAYLEY: I will follow up on that, Mr. President. Thank you.
13 JUDGE ORIE: Thank you.
14 Then we will have a break, and we resume at 11.00.
15 --- Recess taken at 10.37 a.m.
16 [The witness takes the stand]
17 --- On resuming at 11.05 a.m.
18 JUDGE ORIE: Mr. Russo.
19 MR. RUSSO: Thank you, Mr. President.
20 Q. Professor, before the break, the Presiding Judge put the question
21 to you, whether you had chosen between the interpretations to be given to
22 the particular language about putting the towns under artillery fire, and
23 you indicated that you had chosen an interpretation and your
24 interpretation was that this was a legitimate order not intended to
25 specifically target the town as such.
1 Do I have that right?
2 A. No.
3 Q. Okay. Please explain.
4 A. I explained to the Judge that when I wrote my addendum, which was
5 an assessment of the legality of placing certain targets within Knin
6 under attack, then obviously the facts and assumptions upon which that
7 addendum -- those -- that opinion or those opinions are premised by
8 implication, I think, has to adopt the conclusion that this order meant,
9 Place the objectives in Knin under attack, because that's what the facts
10 and assumptions that drove that addendum indicated.
11 I also told the Judge that looking at this document in and of
12 itself, I think it is inconclusive which interpretation is -- whether one
13 interpretation is so clear that it rules out, as a fair and rational
14 alternative, the other interpretation. I think that -- that you could
15 draw a logical inference that either interpretation is appropriate. I do
16 think that -- that in context the interpretation that it was an
17 indication to strike military objectives is a little bit weightier, but
18 I'm not saying that it is a conclusive determination on my part, looking
19 at that document, in and of itself.
20 Q. Well, looking at the document, not just in and of itself but in
21 the context of everything you have already been told about the case, the
22 facts and assumptions you were asked to rely upon, everything essentially
23 that you are aware of up to this point, looking at that order now, can
24 you offer an opinion to the Trial Chamber about what your interpretation
25 of that is?
1 A. Yes. In my opinion, my -- my opinion is that that was not a
2 directive to engage in an indiscriminate attack against Knin. In my
3 opinion, in the broader context of the commander's operational intent,
4 his priority of effort, the tactical emphasis throughout the rest of the
5 document, the information he was provided by the president, the emphasis
6 on professional operations, his background as a professional soldier and
7 non-commissioned officer in one of the most professional military
8 organisations in the world, all of this -- and candidly, another factor
9 that -- that weighed -- that leads me to that opinion is that because it
10 appears to me that his focus is -- he has got a very clear battle focus,
11 close with and destroy the enemy. Unsurprising to me from a commander
12 who finds his lineage in a light infantry elite unit, because that is the
13 ethos of light infantry; close with and destroy the enemy. And that --
14 that focus kind of, for me, seems apparent through the vast majority of
15 information I've seen. And so, I also think that in the broader context
16 it would be a waste of resources when he has made it clear that his
17 priority effort is to bring the enemy armed forces into submission, to
18 waste this fairly precious asset, his indirect fire capability, on random
19 kind of chaotic strikes against the city.
20 So all of that combined led me to the opinion that this was not
21 an intent or a directive to place the city under attack or -- at large,
22 but to strike the pre-established and identified military objectives
23 within the city under attack.
24 Q. Thank you, Professor.
25 MR. RUSSO: If we could please have Exhibit D970. I believe
1 that's -- yes, that is the one on the screen. If we can go to page 3 in
2 both English and B/C/S.
3 Q. Professor, this is a copy of the attachment for artillery to
4 General Gotovina's offensive operation order.
5 MR. RUSSO: And if could move the screen a little bit further
6 down on the left.
7 Q. Under subsection 3, the TRS task, and focussing on the language
8 in the paragraph that says:
9 "Shell the towns of Drvar, Knin, Benkovac, Obrovac, and Gracac."
10 Do you take the same interpretation of this language as you have
11 of General Gotovina's language in the offensive operation order.
12 A. I do. And I think there's another element here that needs --
13 that I need to explain why I conclude ...
14 Listen, I have done this process where you receive an operations
15 order from higher command and then you produce your order in response to
16 that. This is -- now, I have never done it in combat, right? I have
17 done it in training and I have been involved in the process in training
18 extensively. And even in a training environment the pressure of time, of
19 intensity, of the -- the multiple demands that are on the staff, result
20 in the logical process of lifting language from the superior's order and
21 plugging it into yours.
22 And just like I have doubts that General Gotovina actually sat
23 down and typed his operations order, as opposed to giving his concept of
24 operation and commander's intent and leaving it to his staff to put that
25 into writing, I think the same process happens at the subordinate command
1 level. A staff officer is preparing this order, he is trying to do as
2 efficiently and timely as possible, and he is lifting stuff out of the
3 higher command's order.
4 But, again, you see that the general tone of the tasks to the
5 artillery unit are tactical, okay? They're talking about protecting
6 flanks, counter-battery fires, neutralising or disrupting the ability of
7 the enemy to bring resupply and reinforcements into the main battle area,
8 and then the language comes right out of the higher headquarters order,
9 Shell the towns of Drvar, Knin and the rest.
10 So, again, I think it's inartful. It leads to multiple possible
11 interpretations. It's not language, I think, that would be in any sense
12 ideal to place in an operations order. I think a JAG officer reviewing
13 it would have -- would have required the staff officer writing it to make
14 it more precise. But I think that in broader context I can understand
15 how it ends up in -- in that document.
16 Q. Well, Professor, with respect to General Gotovina's offensive
17 operation order you indicated that if that you had seen that order, you
18 would have taken it back to the commander; correct?
19 A. Mm-hmm.
20 Q. Is it the same situation applying to this particular order?
21 A. No question.
22 Q. And you agree that it is inartful and subject to multiple
23 interpretations, and again, one of those interpretations is in fact -- or
24 could be reasonably understood to be that whoever drafted this order
25 wanted the entire towns of Drvar, Knin, Benkovac, Obrovac, and Gracac to
1 be shelled. Correct?
2 A. I don't think -- I don't see how that couldn't be an
3 interpretation. So, yes, I think that could be an interpretation.
4 Q. Professor, you took significant exception to what you, I believe,
5 termed as "inartful language" used in -- in Professor Konings's [sic]
6 report on statements of the law. Wouldn't you agree that this is
7 slightly more of a serious matter to be so inartful when you're directing
8 artillery to be used in a civilian-populated area?
9 A. First off, as I noted to the Tribunal, I am sympathetic to what
10 Colonel Konings did with regard to the law and I spent -- I think I spent
11 a good bit of time talking about what I saw was a conflation between
12 policy and law; but I also said I thought it was totally understandable,
13 because of my experience advising officers in positions similar to
14 Colonel Konings. So what I took -- I think the characterisation of the
15 exception that I took to his report focussed more on what I saw were
16 modifications or distortions of operational doctrine, which I actually
17 remember pointing to the record and saying, That's what I said was
19 So if you recall, I said the confusion between RoE and law I felt
20 was explicable. It was misleading but it was explicable. And that is
21 consistent with my reaction to this.
22 As a JAG officer who has been trained in the Law of Armed
23 Conflict and support to military operations, when I receive an order, the
24 first annex I turn to is the fire support annex, because I know how
25 likely it is that operators in -- under the stress of -- of military
1 operations and the requirements to do a hundred things when they have
2 time to do 20 things, I know the proclivity to make these kind of
3 statements. And so that, as I said, is why if you are in a military that
4 has the luxury of having a robust legal corps, that corps is fully
6 But -- so when you -- when you ask, is this just as dangerous as
7 Colonel Konings's imprecision in his discussion of law, there is
8 certainly danger here. But what you have to understand this is -- this
9 is a trigger, okay? It triggers application of targeting annexes,
10 pre-planned targets, targets of opportunity, a whole range of process is
11 triggered by the order to execute a mission. This doesn't stand on its
12 own. And so in the broader context of a subordinate command where the
13 emphasis has been placed on the tactical reduction of enemy capability,
14 that would offset the risk, and the more of emphasis there has been on
15 that, the greater the risk is offset as a result of this.
16 Q. Professor, you would agree with me that however the process ran,
17 whether General Gotovina sat down and typed this out, whether
18 Brigadier Rajcic typed it out or somebody else typed it out, the ultimate
19 responsibility for the language used and for the intent expressed by the
20 language is General Gotovina's responsibility. You would agree with me,
21 wouldn't you?
22 A. It's his order. He is accountable for what it includes. But
23 again, if you refer back to my initial report, there is a principle of
24 IHL, I believe, that allows commanders to rely on the expectation that
25 subordinates will interpret their orders consistent with their legal
2 So yes. The answer to your question is yes, he is ultimately
3 responsible for this. And if this is all there was, that would raise a
4 significant concern. But in a broader context, I think that ultimate
5 responsibility has to be assessed within that broader context, which I
6 assume is the purpose of the trial.
7 Q. Thank you. Getting back to some of the questions I was asking
8 you earlier, there was one I neglected to ask regarding what you were
9 told during your oral presentation in December of 2008. Were you told
10 about or shown any evidence in relation to the shelling conducted by
11 General Gotovina's forces in any areas other than Knin during Operation
13 A. No.
14 Q. And, Professor, have you ever spoken with General Gotovina or any
15 of his former subordinate officers in the HV?
16 A. I have never spoken to General Gotovina. I mentioned that there
17 was a technical expert that was in the meeting in Tampa, a gentleman
18 named Goran. I apologise to the Tribunal; I don't know his last name. I
19 believe he was in the HV armed forces. I have -- I don't think, to my
20 knowledge, he was part of General Gotovina's staff. But that's the only
21 individual that I have had contact with that I think had experience as an
22 HV -- a member of the HV armed forces.
23 JUDGE ORIE: Mr. Russo, since you are revisiting the presence of
24 persons during the Tampa
25 MR. KEHOE: Yes, Mr. President. I don't know if you're -- by --
1 in transparency, the individual is Goran Zugic, Z-u-g-i-c, the gentleman
2 who has been in court from time to time, has been a part of our team. I
3 just wanted to make that clear and so the Prosecution knows who this
4 individual is.
5 JUDGE ORIE: Yes, Mr. Russo.
6 Early, Mr. Corn, you referred to the three counsel that are in
7 court. Well, on our filings we find three counsel, two of them are in
8 court at this moment. So it was not entirely clear what -- to which
9 person you referred when you were talking about a third counsel.
10 THE WITNESS: The lawyers that were in the meeting were
11 Mr. Kehoe, Mr. Stanton and Mr. Cronin.
12 JUDGE ORIE: Yes. Thank you.
13 THE WITNESS: And this gentleman Goran.
14 JUDGE ORIE: Yes, thank you.
15 Please proceed, Mr. Russo.
16 MR. RUSSO: Thank you, Mr. President.
17 Q. Professor, have you, on your own, been exposed to any information
18 about this case, either through media, law review articles, watching
19 testimony, anything like that?
20 A. No. Before this, I wasn't familiar with General Gotovina. As a
21 matter of fact, the night -- the day arrived here, I pulled up a
22 Wikipedia site just so I could see a picture of what he looked like.
23 That was the first time I saw a picture of the General.
24 Q. Did you have any knowledge or information concerning the conflict
25 in Croatia
1 A. I did not have any specific information related to Operation
2 Storm. As an army Judge Advocate at the time, I was generally familiar
3 that there was a conflict going on between the Croatians and the Croatian
4 Serbs. But the specific details of the conflict I was unfamiliar with.
5 Q. Professor, have you ever been to Knin?
6 A. No.
7 Q. Have you ever been to anywhere else in the Krajina?
8 A. No. I have been to Dubrovnik
9 Krajina so ... that's only the place in Dubrovnik -- or in Croatia
11 Q. And did you have any contact with any member of any Defence team
12 other than General Gotovina's Defence team in relation to this case?
13 A. No.
14 Q. Professor, at paragraph 13 of your supplemental information
15 sheet, that's D1644, you state:
16 "I reviewed these documents" -- and that's referring to the
17 documents listed in paragraph 12, "within the scope of my conclusions, as
18 stated in paragraph 11. To the extent these documents were relevant to
19 that scope, none of them changed my conclusions."
20 Professor, I had a little difficulty understanding what you were
21 trying to convey about the limitations on your conclusions in
22 paragraph 11 and here again in paragraph 13 of your supplemental
23 information sheet.
24 Can you please just give us an explanation of this.
25 A. Yeah. You know, obviously I wrote the addendum prior to
1 preparing to be a witness. The preparation for being a witness, as I
2 testified to yesterday, involved ...
3 JUDGE ORIE: Please proceed.
4 THE WITNESS: Involved the visit to Houston by Mr. Cronin and
5 Mr. Stanton in which we reviewed my addendum and other information; for
6 example, the Brioni transcript, some of the orders we've just looked at.
7 It also involved a meeting here in The Hague at the offices of Greenberg
8 Traurig, which we conducted Sunday, and I signed this document that day.
9 And the point that is made by that paragraph is subsequent to writing the
10 addendum, I haven't seen any document that has called -- that would lead
11 me to change the opinions in that addendum.
12 Q. And can I take it that that means you conducted a thorough review
13 of the documents which are listed in paragraph 12?
14 A. I -- I wouldn't use the characterisation thorough. I have seen
15 these documents or photographs. I think I've indicated to you the ones
16 that I thought had a significant impact on my thought process. Others
17 had an -- obviously a less significant impact, so it's -- you're -- it
18 would depend what your meaning of "thorough" is.
19 Q. Well, to say, I have looked at these documents and they haven't
20 changed my conclusions, I'm taking that to mean that you took an
21 intellectually honest review of those to -- you know, because if there is
22 something in there that may have changed your opinion and you missed it
23 because you didn't give it a thorough enough reading --
24 A. Right.
25 Q. -- that is something we might want to consider.
1 A. Right. And I think my point is that there are some that I felt
2 were not that significant. Others that I felt were more significant.
3 And the ones that triggered my sense that they were more significant led
4 to a more intense review. For example, when I read the order and it says
5 put the cities of or the towns of blank, blank, blank under attack, it's
6 a red flag and I'm going to spend more time looking at or -- maybe
7 thinking about that context.
8 But, no, it's not as if somebody stuck a paper in front of me and
9 said, Check it off, or a photo.
10 Q. Professor, in your expert report, that last full paragraph on
11 page 28, you state:
12 "The record indicates that General Gotovina appears to have
13 considered these aspects of the disposition of civilians in Knin when
14 selecting his course of action for employing his indirect fire assets.
15 My review of the record indicates the following with relation to the
16 actual employment of indirect fires by General Gotovina."
17 Now, the record you are referring to there means the facts and
18 assumptions specifically provided to you by the Gotovina Defence in the
19 May 19th letter; correct?
20 A. Yes.
21 Q. And in fact, the items of information which you identify on
22 pages 28 and 29 as relevant to General Gotovina's use of artillery,
23 they're copied verbatim from the assumed facts provided on pages 6 and 7
24 of the Gotovina Defence's May 19th letter to you.
25 Isn't that correct?
1 A. Let me find the letter before I ...
3 Q. And in identifying pieces of information that you considered
4 relevant, there was no other piece of information you believe was worth
5 mentioning regarding General Gotovina's use of artillery?
6 A. Let me, once again, reiterate the process that drove this.
7 I was being asked to opine on what I considered to be the
8 ultimate question before the Tribunal: Was the General's employment of
9 artillery consistent with his obligations under the Law of Armed
11 I went to the Defence and I said -- their initial offer to me was
12 to give me documents and transcripts, et cetera, et cetera. I told them
13 I thought that what was important was that my opinion be based on a
14 factual predicate that was consistent with the factual record at the
15 trial. That's probably why I used the word "record." It would have been
16 more precise for me to say, Based on the facts and assumptions provided.
17 But I was, I guess, kind of subconsciously associating those facts and
18 assumptions with the record because I had insisted on several occasions
19 that the Defence give me their assurance that they were confident that
20 the record supported these facts and assumptions.
21 And that's why I attempted to rely on them to render my opinion,
22 because if I create or use other facts and assumptions that are not
23 before the Tribunal, in my opinion, when I wrote this, the value of my
24 opinion is degraded. Because all can I understand that I'm doing is
25 offering my insight, based on my expertise, to aid the finder of fact
1 reaching the ultimate conclusion, and the value of that assistance is, in
2 my view, directly connected to the factual foundation upon which it
3 rests. And the only thing, the only fact that I thought was particularly
4 significant that I went to them and said, I remember this, and if it is
5 before the Tribunal, I think it's significant, was the decision to
6 refrain from launching an attack on co-mingled civilian and military
7 individuals fleeing out of the -- the incursion area.
8 So that's the best explanation I can give you, as to why I can
9 find the opinion to the foundation established by the facts and
10 assumptions offered in the letter, or attempted to do so.
11 Q. Professor, when you listed the information here, by this time you
12 had already seen General Gotovina's offensive operation order which
13 you've already indicated raised a red flag for you. And in listing the
14 information you believed was relevant to his use of artillery you didn't
15 think it was a fact worth mentioning that he used the language which
16 raised a red flag in your mind? You didn't think that was something that
17 the Trial Chamber should know was part of your consideration?
18 A. Well, as I explained to you, okay, in the abstract that concerned
19 me. In the broader context, I think I understood what it meant. That
20 was my opinion. Okay? And so -- the answer is no. I mean, obviously if
21 I had thought that was important to add to the facts and assumptions, I
22 would have asked the Defence counsel if I could include it, like the fact
23 of deciding not to fire on those fleeing forces. It is a -- I felt
24 the -- the tactical execution, the overall situation, and the facts
25 related to the effects of fires was more significant in my assessment,
1 because it put it into broader context.
2 Honestly, I can't even -- I can't even remember if I thought to
3 myself, That's already before the Tribunal. They'll -- obviously they'll
4 be considering that. I don't even remember if I went through that
5 thought process.
6 Q. Now, Professor, before we look at some of the assumed facts which
7 you identify as relevant to your considerations, let me ask you this:
8 Would you agree with me that at times when you had no information on
9 particular factual circumstances you made assumptions or inferences
10 favourable to General Gotovina to fill in that informational gap?
11 Would you concede that?
12 A. Can you give me a specific example of where you think I did that?
13 I mean, are you taking in relation to these facts and assumptions or ...
14 When I first -- when I first began the case, I had -- I had no
15 opinion one way or the other as to whether he acted properly. My first
16 function was to look at a report written by Colonel Konings and help the
17 Defence counsel identify what I thought were problems with the report,
18 the case progressed from there. So I don't think at every point I had an
19 assumption that General Gotovina was acting properly and I filled in
20 facts and circumstances to -- to bolster that assumption. And by the
21 way, in that regard, as I said yesterday, if the Trial Chamber determines
22 that this factual predicate is erroneous and another factual predicate
23 substitutes for it, then I recognise that many of the opinions in here
24 are invalidated.
25 So, ultimately, there's a -- the critical question is: What were
1 the facts and circumstances and assumptions related to the
2 decision-making process at the time he made the decision, which is
3 emphasised in my first report.
4 Q. Looking at your report at the top of page 28, specifically
5 looking at subsection (b), you point out the assumption provided to you
6 that there was a curfew imposed against civilians.
7 And if we move to the next page and look at the bottom where you
8 draw some conclusions based on those facts, at subsection A you conclude
9 that General Gotovina:
10 "... sought to exploit the curfew by surging his indirect fires
11 against military objectives in Knin during curfew hours."
12 Further down in subsection (c), you conclude that General
14 "... employed indirect fires during non-curfew hours in a limited
15 manner, suggesting an intent to disrupt enemy operations while minimizing
16 the risk of collateral damage and incidental injury to civilians."
17 And finally on the following page, that's page 30, in
18 subsection (f), you conclude that General Gotovina:
19 "... employed MBRLs only during those times he assumed civilians
20 were under a curfew order."
21 Now, Professor, when you drafted this addendum, at least
22 according to the testimony you have given us, you didn't actually have
23 any evidence concerning what the curfew hours were, and looking through
24 the assumed facts that you identified as relevant, as well as all of the
25 assumed facts which you were asked to assume by the Gotovina Defence,
1 there is no indication of what the curfew hours actually were.
2 So what I'm putting to you is that you made a determination
3 without knowing what the curfew hours were, what General Gotovina's
4 conduct was and intent was, relative to those curfew hours.
5 How do you explain that?
6 A. Well, the only explanation is that I was aware that the curfew
7 was through, I believe, 5.00 in the morning. So -- and as I told you
8 yesterday, I don't think it was -- I couldn't say that when I wrote this
9 addendum I expunged every bit of information that I'd ever heard.
10 So my answer to your question is, obviously when I put that down
11 I was referring to knowledge that I had learned probably in the meeting
12 in Tampa
13 Q. Well, without getting into what you learned at Tampa
14 because you were provided with documentation --
15 MR. RUSSO: Specifically if we could have Exhibit D241.
16 Q. You were provided with the document I am about to show you which
17 indicates that, in fact, what you say here about the curfew hours is
18 wrong. That it -- in fact the situation is opposite from what you
19 conclude. Your conclusions that General Gotovina surged his indirect
20 fires during curfew hours, you'll see from the document, is incorrect.
21 It indicates that the curfew is from 10.00 p.m. to 5.00 a.m.
22 you may know, it is undisputed in this case that 5.00 a.m. is the time
23 when General Gotovina chose to begin and in fact did begin his artillery
24 attack. And so, in fact, it was during non-curfew hours --
25 A. Mm-hm.
1 Q. -- that he surged his artillery. So now that you know the
2 situation is the opposite of what you thought it was when you drew this
3 conclusion, are you willing to draw the opposite conclusion? Knowing now
4 that he surged his artillery and used his artillery during non-curfew
5 hours, does that suggest to you an intent, in fact, to increase the risk
6 to civilians?
7 A. No, not necessarily.
8 Now, first off, let me make the point. I mean, this is an
9 example of the point I just made in response to your earlier question. I
10 recognise that if the -- if the record, the facts determined by the
11 Chamber, the Trial Chamber, are inconsistent with the facts and
12 assumptions that I base my report on, then the value of the opinion is
13 degraded as a result of that.
14 Now, the level of degradation is something that the Trial Chamber
16 In this situation, I believe that, based on the overall record,
17 his use of indirect fires against the C3I targets in Knin, the surge of
18 indirect fires was driven primarily by his consideration of the
19 connection to the tactical point of attack. In other words, if you're
20 launching your attack at twilight, it doesn't make sense to launch your
21 assault on the CP at midnight
22 between midnight
23 It -- it's -- I obviously remember that there was a curfew in and
24 around that time. Now, if you tell me that the surge of artillery
25 occurred at noon
1 launching of the offensive operation and it's so attenuated from the
2 termination of the curfew that it creates a high probability that there
3 are going to be civilians out and about, then that, I think, would have a
4 much more significant degrading effect on the opinion.
5 But you're talking about the difference between 5.00 and 5.30,
6 suggesting -- I mean, I don't think it's a rational inference that at
7 5.00 in the morning when the curfew ends, everybody jumps up and runs
8 outside. Now maybe that is true, and maybe I don't know the cultural
9 dynamics of people who lived in Knin, and if that's established then the
10 opinion loses significant weight. I fully concede that.
11 Q. I appreciate that, Professor.
12 However, the point I'm making, which I believe you have made for
13 me, is you don't know what was going on at 5.00 a.m. --
14 A. No.
15 Q. -- you're making an assumption when do you that, that they're not
16 walking through the streets at 5.00 a.m., they're not out in their
17 fields, they're not feeding their animals, and that is an assumption
18 which is favourable to General Gotovina. Correct?
19 A. Well --
20 MR. KEHOE: Excuse me, Mr. President. I mean, I -- the context
21 of that question, with all due respect, has got to have some foundation
22 in the record, and I ask, if in fact that's a question to be levelled,
23 that counsel should point to where in the record, at 5.00 a.m., people
24 were walking the streets of Knin, et cetera.
25 JUDGE ORIE: Yes.
1 Mr. Russo is exploring the underlying rationale for the
2 conclusions drawn. He puts to the witness that one of the assumptions he
3 used is not necessarily correct; the curfew hours being until 5.00. And
4 then you can explore, because we're talking about the abstract, the
5 witness doesn't know whether the curfew hours were strictly observed.
6 The witness doesn't know a lot of these things. To that extent, we are
7 already in an area of assumptions. I'll not use the word "speculations."
8 Under those circumstances, if the witness explains to us that
9 it's not necessarily true that if the curfew ends at 5.00, that everyone
10 immediately moves on the streets, and it would be different if we would
11 be talking about 2.00 in the afternoon. I would ask the witness whether,
12 if people would be used to get up at 4.00 and do their things, whether it
13 could well be - I'm not saying it was - that people, already delayed for
14 one hour, would do that immediately at 5.00 in the morning.
15 I mean, that's not of any less logic than to say that people
16 would not immediately jump out at 5.00.
17 Would you agree with that?
18 THE WITNESS: With one qualifier, Your Honour, and that is, if
19 that was the expectation of the commander making the decision. If he had
20 information that, because people normally begin their day at 4.00, the
21 curfew to 5.00 has them ready to go at 5.00. Then yes, that
22 significantly undermines the value of the assumption.
23 JUDGE ORIE: And you have no knowledge about that.
24 THE WITNESS: I have no knowledge.
25 JUDGE ORIE: Please proceed, Mr. Russo.
1 MR. RUSSO: Thank you, Mr. President.
2 Q. Professor, I understand a bit of the explanation you gave me
3 earlier about the use of artillery relative to the curfew hours. But the
4 point I'm trying to make is that you made a statement in your expert
5 report that said because General Gotovina employed indirect fires during
6 non-curfew hours in a limited manner, suggesting an intent to disrupt
7 enemy operations while minimising the risk of collateral damage and
8 incidental injury to civilians, you're the one who made the connection
9 between the curfew hours and the risk to civilians.
10 A. Mm-hmm.
11 Q. And when I'm telling that you the document that I'm now showing
12 you, in fact, changes that situation, why are you not now willing to
13 change the inference you drew when you had the wrong information?
14 A. I think there are three answers to that. First off, you see in
15 subparagraph (c), I used the words "suggesting an intent." It's just an
16 inference. That's all it is. There may be an alternative inference. I
17 think if he is surging his fires in the -- in the -- against the military
18 objectives in the populated area at a time where he believes, where he
19 believes, he can exploit the effect of the curfew and still achieve
20 his -- his operational purpose, then that -- those two factors are
22 And if you look at (b), the primary emphasis is on his employment
23 of indirect fires consistent with METT-T-C analysis, which is
24 corroborated by the fact that the majority of the assets were not
25 employed against assets in Knin, but instead associated -- targets
1 associated with the close fight and enemy defensive positions.
2 I don't think -- okay, this is my opinion. If he knew the curfew
3 ended at 3.00 a.m.
4 5.00 a.m.
5 because I believe the use of the artillery in Knin was -- was
6 synchronised or connected with the purpose of the overall employment of
7 indirect fire, which was to defeat the enemy at the point of attack as
8 efficiently as possible. All I was suggesting there is that if he
9 believed that there was a positive effect from the curfew, then it would
10 have been another factor that would have supported the inference that his
11 decision to surge at that time was a reasonable decision.
12 Q. And, Professor, before reaching this conclusion, you weren't
13 actually provided with any evidence from the Gotovina Defence about what
14 General Gotovina believed was going on in the town at 5.00 a.m. At least
15 we don't see it represented anywhere. Is that right?
16 A. No.
17 Q. No, you weren't provided --
18 A. No, I was provided with what -- I don't have any -- I didn't get
19 any statements, you know, confessions, statements, testimony from
20 General Gotovina. I don't know what was exactly in his mind at that
21 time. And if you look at my original report, I emphasise the fact that
22 when assessing -- when translating a -- a Law of Armed Conflict principle
23 that's -- was written and intended to provide an operational
24 decision-making framework into criminal responsibility, a standard of
25 criminal responsibility, one of the great challenges is figuring out what
1 was the defendant's state of mind, and that oftentimes you have to rely
2 on the circumstantial evidence to do that.
3 I fully acknowledge and recognise that that is the challenge that
4 confronts this Tribunal or any Tribunal assessing an allegation of
5 criminality based on a violation of rules of targeting. And those --
6 that's what I attempted to do in my opinion, based on the facts and
7 circumstances that were provided.
8 MR. RUSSO: Can we please have 65 ter 2161.
9 Q. Professor, this is a report by the HV intelligence administration
10 dated 30 July 1995
11 it's page 1 in the B/C/S, middle of the second paragraph on page 2, it
13 "In addition to issuing the decision to engage all human and
14 material resources in the defence of the RSK, the military council
15 imposed a curfew (between 2200 and 5000 hours)."
16 Now, Professor, in line with what you just said about the
17 necessity of considering circumstantial evidence, would you agree that
18 this is something that -- a piece of information that General Gotovina
19 must have taken into account when deciding when exactly to begin his
20 artillery attack?
21 MR. KEHOE: Excuse me, Mr. President. I don't know if the
22 witness has ever seen this document before. I don't suspect that he has.
23 If he is given the opportunity to look at the document, I think it is
24 only fair of witness, to allow him to do so.
25 JUDGE ORIE: Yes. Well, first of all, Professor Corn, I take it
1 that if you see a document you would like to have a closer look at
2 because you're unfamiliar with it, that you will address me.
3 Now, Mr. Kehoe was kind enough to -- to make this observation.
4 Is there any need you'd like to like at the document any further at this
6 THE WITNESS: Could I see the beginning of it so I could see
7 where it -- what its origin was?
8 JUDGE ORIE: Yes.
9 Mr. Russo told you already it's a report by the HV intelligence
10 administration --
11 THE WITNESS: Right.
12 JUDGE ORIE: -- dated 30th of July, 1995.
13 THE WITNESS: Yeah, I'm ready, Your Honour.
14 JUDGE ORIE: Yes. Please proceed, Mr. Russo.
15 MR. RUSSO:
16 Q. Would you agree, Professor, that this is information that
17 General Gotovina was required to take into consideration before deciding
18 when exactly to begin his artillery attack?
19 A. It relates to the C in METT-T-C analysis. A competent and -- a
20 competent commander, if he has this information available, should be made
21 aware of it, probably through his intelligence officer or his civil
22 affairs officer, in the target decision-making process.
23 Q. Can I take that as a yes?
24 A. Yeah -- well, you used the phrase -- and I don't -- let's see,
25 "is required," I think you said, right? I have trouble with "is
1 required." Okay? He should be made aware of it. He should be aware of
3 The required part, is a commander required to be aware of every
4 bit of information that his intelligence officer receives? Well, that's
5 impossible. That's why he has an intelligence officer, because the
6 intelligence officer, based on his priority intelligence requirements,
7 distills this volume of information and provides him relevant information
8 related to operations. I think this is relevant related to the use of
9 indirect fire in a populated area. So I would have expected his
10 intelligence officer to make him aware of this information. But if his
11 intelligence officer did not, then the nature of your question suggests
12 that the General is ipso facto culpable for not knowing it. He relies on
13 his staff to provide him information.
14 And I can only correlate it to my own experience. This report,
15 in my experience, would not have gone directly to the General. It would
16 have gone to his intelligence staff, and they would have distilled it and
17 then provided him the information they thought was necessary. It -- it's
18 the reality of a commander executing -- planning and executing a battle.
19 He is inundated with information and challenges and responsibilities and
20 that's why commanders employ staffs, to aid them in that process.
21 Q. It is General Gotovina's responsibility to keep himself informed
22 on concentrations of civilians; correct?
23 A. I think so, yes.
24 MR. RUSSO: Mr. President, I would like to have 65 ter 2161
1 MR. KEHOE: No objection, Your Honour.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: Your Honours, that will become Exhibit P2619.
4 JUDGE ORIE: P2619 is admitted into evidence.
5 MR. RUSSO: Thank you.
6 Q. Professor, in section 1 of your addendum - and that appears at
7 page 25 of your report - you discuss the targeting process and the need
8 to select the appropriate weapon to achieve the desired effect on
9 targets. In the second-to-last full paragraph you state:
10 "Based on my review of General Gotovina's operational situation,
11 it seems clear that his options for asset selection were limited. There
12 is no indication he possessed a robust electronic warfare capability for
13 a disruption mission, nor did he possess the type of precision engagement
14 capability increasingly associated with counter-C3I operations conducted
15 by advanced Western militaries, like the United States. Instead, his
16 capability was essentially limited to indirect fire assets, ground combat
17 assets and a very limited rotary-air capability."
18 Professor, in pointing out that you saw no indication that
19 General Gotovina possessed a "robust electronic warfare capability," I
20 take it that you considered that as a relevant factor in your analysis of
21 whether General Gotovina's choice of weaponry was reasonable under the
22 circumstances; correct?
23 A. It's certainly a factor in the targeting process.
24 Q. And having found no indication of a robust electronic warfare
25 capability, did you ask the Gotovina Defence to provide you with
1 information relating to the HV's electronic warfare capabilities?
2 A. I know had -- I know I asked that question in Tampa, okay? I
3 specifically asked what were the EW assets. As a former intelligence
4 officer that was one of my functions, was to have expertise on electronic
5 warfare and provide that -- the knowledge of that capability in the
6 targeting and weaponeering process. So I was curious as to whether or
7 not the HV had the type of robust electronic warfare units that the
8 United States had.
9 Q. Well, what were you told in response to the question?
10 A. I think -- as best I recall, I seem to recall some discussion of
11 maybe one helicopter that had a jamming capability, but I think, as I
12 recall, that was it. But certainly not a communications and electronic
13 warfare battalion like you would find in a United States corps.
14 And, you know, part of it was me learning what these designations
15 were for the HV. I mean, when I initially began to look at this and I
16 see corps, right, Croatian corps or a Serbian corps, that triggers an
17 instinct on my part about, you know, what an American corps looks like.
18 And in fact, I think that I came out of this realizing that what they
19 call a corps is what we call maybe a brigade combat team, a much smaller
20 unit with a much less significant support structure.
21 Q. Thank you, Professor. Now, electronic warfare capabilities would
22 include, as you mentioned, radio jamming. Would they also include radio
23 deception and use of electronic surveillance?
24 A. I think -- it's been a long time since I have looked at military
25 intelligence doctrine, but my recollection is deception falls under a
1 different category than electronic warfare.
2 Electronic warfare, as I recall -- certainly as I think of it,
3 involves direction finding, electronic equipment that triangulates
4 transmission for precision targeting. Jamming, interception, right, so
5 you can listen to what the enemy is saying. And destruction. There are
6 some electronic warfare assets that can actually burn up enemy
7 transmitters. So transmission capability. All right, the ability to
8 transmit a false radio report I wouldn't normally put in the category of
9 electronic warfare.
10 MR. RUSSO: Can we please have 65 ter 2156.
11 JUDGE ORIE: While we're waiting, perhaps you could tell us in
12 what category that would fit, if it's not electronic warfare.
13 THE WITNESS: Well, the capability to transmit is communications.
14 And the use of that transmission to put out false information is
15 deception. And the reason that I -- I think instinctually I see them as
16 different assets is because, in my experience, doctrinally, electronic
17 warfare falls under the responsibility of the intelligence officer. As a
18 matter of fact, in -- in the US
19 warfare units is an intelligence officer. It's one of the few command
20 billets for an intelligence officer. Deception falls under the
21 responsibility of the operations officer. And so you could use a piece
22 of communications equipment, you could use a piece of electronic warfare
23 equipment to -- to create deception, to communicate a deceptive message.
24 But I don't see the deception operation as within the category of
25 electronic warfare.
1 JUDGE ORIE: Yes, electronic warfare being the assets that were
2 used rather than for what they were used. Is that ...
3 THE WITNESS: Well, I think, with all due respect, Your Honour, I
4 guess I confused it, the opposite. As a matter of fact, there's an
5 acronym in the US
6 and interference. And that's kind of when you're in an operation and
7 every tactical standing operating procedure has a report that a
8 subordinate command is supposed to send up when he feels he has been the
9 victim of enemy electronic warfare, and it is called a MIJI report;
10 meaconing, interception, jamming, and interference.
11 JUDGE ORIE: Thank you.
12 Please proceed, Mr. Russo.
13 MR. RUSSO: Thank you, Mr. President.
14 Q. Professor, on the screen we have a 31 July 1995 request from the
15 chief of HV intelligence administration to General Gotovina for approval
16 to conduct "electronic warfare and radio deception," in the Split
17 Military District.
18 You can have a look at this. It's not very long.
19 A. Mm-hmm.
20 Q. And can I take it that this is a document that you had not seen
21 before and something that you had not considered when you made the
22 determination that General Gotovina did not possess a robust electronic
23 warfare capability?
24 A. I hadn't seen this. No.
25 MR. RUSSO: I move for the admission of 65 ter 2156.
1 MR. KEHOE: No objection, Your Honour.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: Your Honours, that will become Exhibit P2620.
4 JUDGE ORIE: And is admitted into evidence.
5 MR. RUSSO: Thank you.
6 Can we have 65 ter 7146.
7 Q. On the screen, Professor, we have HV plan of electronic
8 surveillance and jamming, dated 1 August 1995. You can see this will --
9 one of the later pages, it includes Gotovina's -- General Gotovina's
10 approval of a plan for electronic detection, monitoring and jamming.
11 MR. RUSSO: If we could turn to page 7 in the English and also
12 page 7 in the B/C/S.
13 JUDGE ORIE: Mr. Kehoe.
14 MR. KEHOE: Once again, Mr. President, if the witness can take a
15 look at this document from the beginning.
16 JUDGE ORIE: Yes. I think, as a matter of fact, that I invited
17 the witness that if he wants to look at something that he'll address me.
18 I take it that you understood this invitation. If there's any need,
19 please tell me.
20 THE WITNESS: I would like to just scan it from the beginning,
21 Your Honour, before we jump to page 7.
22 JUDGE ORIE: Yes.
23 Mr. Russo, could you ... yes.
24 THE WITNESS: Okay.
6 MR. RUSSO: Actually, if we could go back to that page, page 7 is
7 the one I wanted to look at first.
8 Q. You can see at the top left-hand corner approval by General
9 Gotovina. And you can see the tasks -- the mode of tasks which are
10 given, detecting and monitoring, detect and monitor radio communications
11 between the VRSK, Army of the Republic of Serbian
12 and TK, and radio communications between the VRS, et cetera.
13 A. Could I see the next page?
14 Q. Yes.
15 A. Next one, please. Or the bottom of that one.
16 Could I see the bottom of the last page?
18 Q. Now, Professor, again, this is not a document that you considered
19 before determining whether General Gotovina possessed a robust electronic
20 warfare capability; correct?
21 A. No.
22 Q. No, I'm not correct?
23 A. No, I didn't consider this. This is the first time I have seen
24 this document, Your Honour.
25 Q. Thank you.
1 MR. RUSSO: I move for the admission of 65 ter 7146.
2 MR. KEHOE: No objection, Your Honour.
3 JUDGE ORIE: Mr. Registrar.
4 THE REGISTRAR: Your Honours, that will become Exhibit P2621.
5 JUDGE ORIE: P2621 is admitted into evidence.
6 MR. RUSSO: If we can please have 65 ter 7351 --
7 THE WITNESS: Can I make a comment on this?
8 MR. RUSSO:
9 Q. Sure.
10 A. Okay. The entire task of subordinate units is a monitoring
11 tasks. You can monitor with your own radios. Monitor means listen to
12 enemy transmission. Disruption of enemy transmissions requires jamming
13 capability. Now, you can use your own radio, theoretically, to jam. If
14 I get on your frequency and tape my mic down, and make a hot mic, you're
15 going hear static on your frequency until I stop doing it, or until you
16 change your channel, okay?
17 But this suggests to me two things. First of, again, a total
18 operational focus for the collection effort. And, second, he is not
19 giving a directive to jam in this report. Now maybe there is another one
20 but he's telling people to monitor, Gather as much information as you
22 Q. Thank you.
23 MR. RUSSO: If we can have 65 ter 7351, please.
24 Q. Now, Professor, you have on your screen an order from the chief
25 of the HV main staff, General Cervenko, on electronic warfare dated
1 30 July 1995
2 of carrying out electronic fight during the HV attack in a unique way."
3 And he directs the formation of electronic warfare units. You
4 can see - if we move down a bit - on the left-hand side, the 4th Guards
5 Brigade gets one jamming station for its area of responsibility.
6 MR. RUSSO: If we move to the next page in English but stay on
7 the same page in B/C/S.
8 Q. Towards the top, the 5th Guards Brigade gets also one jamming
9 station. But you will note that the 7th Guards Brigade electronic
10 warfare platoon, whose area of responsibility includes Knin, gets two
11 jamming stations.
12 Now, Professor, this again is a document that you did not
13 consider. Is that right?
14 A. That's correct.
15 MR. RUSSO: I move for the admission of 65 ter 7351.
16 MR. KEHOE: No objection, Mr. President.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: Your Honours, that becomes Exhibit P2622.
19 JUDGE ORIE: P2622 is admitted into evidence.
20 MR. RUSSO: Thank you. If we could please have Exhibit D965,
22 Q. Now, Professor, what we have on the screen right now is an HV
23 plan of intelligence support, dated 2 August 1995. It is directing the
24 use of electronic reconnaissance units for gathering intelligence on
25 enemy composition and disposition.
1 You will note at the top left-hand corner approval on behalf of
2 General Gotovina.
3 Just take a look at the some of the entries. It indicates
4 gathering intelligence on the enemy strength, disposition, and
6 MR. RUSSO: If we could move to the next page.
7 Q. You will note the tasks all for the most part relate to
8 collecting information, detecting enemy movement.
9 MR. RUSSO: If we can move to the next page.
10 Q. Again, gathering information on locations of command posts,
11 disposition tasks, possible directions of attack of the enemy.
12 MR. RUSSO: If we can move to the next page.
13 Q. More tasks with respect to collecting information about the
14 enemy, possible combat dispositions. Also monitoring enemy losses in
15 manpower and technical equipment.
16 MR. RUSSO: If we could move to the next page.
17 Q. Again, taking note of the directions given.
18 MR. RUSSO: If we can move to the next page.
19 THE WITNESS: Just a moment, please.
20 MR. RUSSO: Oh, okay. If we could move back one. Thank you.
21 THE WITNESS: Okay.
22 MR. RUSSO:
23 Q. Now, Professor, you can see from what we've looked at, this plan
24 of intelligence report, there were no orders to use electronic means for
25 collecting information about the civilian population. You would agree
1 with me that that's something that can also be done with -- by using
2 electronic means; correct?
3 A. You know, as I say, it's been a long time since I have written an
4 intelligence annex to an operations order.
5 In our practice, gathering information about the civilian
6 population is the function of the S5 or the S6, the civil affairs staff
7 officer in the command who is part of the targeting process. Now whether
8 or not the civil affairs officer is going to suggest to the operations
9 officer and the intelligence officer to make that collection mission a --
10 a mission for electronic warfare or electronic meaconing assets, I don't
12 I do know this. That looking at this, there's -- there's a clear
13 connection between what I -- what we would call the -- the commander's
14 mission essential task list, which is defeat the enemy in depth, prevent
15 the enemy from massing and reinforcing, and isolate enemy positions at
16 the front line, and the task to electronic assets.
17 So I -- clearly there is no task in there to monitor civilian
18 activity. But I don't know that a listening station is necessarily an
19 ideal asset to obtain that information.
20 Q. Thanks, Professor. I'm not asking to you draw any conclusions
21 from the fact that there is no direction to collect information on the
22 civilian population. I just wanted your confirmation that that is a
23 function to which these assets could be put.
24 A. Assuming there was something to intercept that would reveal the
25 disposition or movement of civilian assets, then yes, you could use an
1 intercept asset for that purpose. But I think that you have -- it's just
2 like artillery. You have a limited number of assets, and you have a --
3 and you have a range of probability of gaining good information so you --
4 you focus those limited assets where you can get the best information.
5 If there was evidence that, for example, I don't know, that there was a
6 convoy that was evacuating a group of civilians and that the -- the
7 intelligence staff knew the convoy was using VHF or UHF communications,
8 to notify maybe a UN headquarters of its movement, I don't know. Then
9 theoretically you would say that could be a good way of finding out where
10 the convoy is.
11 But there are -- I guess what I'm saying is there are multiple
12 factors that would go into whether or not you would task your electronic
13 assets for that purposes. In the right circumstances, you could.
14 Q. Thank you, Professor. Can I take it that the document on the
15 screen is not one that you considered?
16 A. I did not consider it.
17 Q. Now, that you've seen some evidence at least of electronic
18 warfare compatibilities at General Gotovina's disposal, would you agree
19 that if you had time to consider these things in the context of
20 everything else you have learned, that it could possibly have an effect
21 on the conclusions that you reached?
22 A. Possibly it could have. Although, from what I've seen, it
23 wouldn't have -- I don't think it would have significantly altered the
24 opinion. And, I mean, if you want me to tell you why, I will; if not, I
1 Q. Well, if you have already made a determination about that, I will
2 certainly hear that from you.
3 A. First off, you have to understand what jamming assets are and
4 what they do, and -- and -- and that plays into the effects based
5 targeting. A jamming asset is no different than a kinetic artillery
6 round. It's an asset at the commander's disposal that produces an
8 But it's got some drawbacks. To jam somebody you have to
9 discharge a high frequency, high-power frequency, over the enemy's
10 frequency. The enemy anticipates jamming and that's why the enemy, just
11 like friendly forces, will have redundant communication systems and plans
12 for channel skipping. In other words, if you pick up your radio and
13 you're jammed, you have a default next frequency to move to.
14 The other risk with jamming is you -- if your enemy has direction
15 finding capability, jamming presents a high-value target for the enemy,
16 because that high-intensity frequency that you're discharging is easily
17 triangulated. And therefore, if have you limited jamming assets, you
18 have to use them judiciously, and you have to use them at the right time
19 for the right time.
20 The discussion of electronic warfare, in my opinion, related to
21 the artillery attack on the corps headquarters, a critical C3I target,
22 and other targets that had the capability of providing redundant
23 communications to the enemy. And if you had jammed, you would have
24 achieved an effect maybe for a certain period of time. Your jamming
25 asset would have been highly vulnerable to counter-attack, and the enemy
1 has ways of -- of mitigating the effect of that jamming.
2 And the other thing is, if you -- if you look at this order, you
3 see that the commander is planning an operation in depth, and we -- I
4 talked yesterday about this full spectrum dominance idea, right? You
5 disable the commander, the corps commander's C3I capability. You blind
6 the corps commander and the corps commander's staff, it degrades that
7 commander's ability to influence the fight by logistics reinforcement and
8 direction. But if you isolate the forces at the tip of the spear, if you
9 make them feel they can't talk to anybody, then you increase their sense
10 of isolation and that increases your initiative.
11 So it's conceivable that with limited jamming assets the priority
12 of effort to support the ground tactical assault would have led the
13 commander to make a reasonable judgement that, I'm going use my jamming
14 assets to blind the forward command posts and an alternative asset to
15 degrade the rear command posts.
16 It just -- that's why throughout that report you see that term
17 "METT-T-C." It goes into the decision to use every asset within the
18 commander's arsenal.
19 Q. Professor, you injected the term "limited jamming assets." I'm
20 trying to found out where -- I mean, I understand you were told --
21 A. Mm-hmm.
22 Q. -- that he had limited assets. I have now shown you some
23 evidence of assets he did have at his disposal. Do you still consider
24 those assets to be limited?
25 A. Absolutely.
1 Q. And why is that?
2 A. Because I'm basing it on my own contextual experience, which is a
3 brigade combat would have an entire battalion or at least a company of
4 electronic warfare capability which would have more than two or three
5 jammers, and you do that because you know those jammers are tremendously
6 vulnerable to counter-attack once you put them into action.
7 Q. But the effectiveness of your jamming capabilities and, of
8 course, how many people you have, whether you have a platoon, you have a
9 brigade, whatever, that's all relative to the size of the enemy you're
10 fighting, the area; correct?
11 A. And it's also -- absolutely. That -- there is no question about
12 that. That is the E in METT-T-C. Right? But it is also contingent on
13 communications redundancy, how many nets the enemy has. You see by the
14 monitoring annex that he is focussing on multiple enemy communications
16 So, for example, when I was an intelligence officer in a light
17 infantry unit I carried a radio, an encrypted radio, on my back. When
18 the commander's radio was jammed, he would walk over to me and he'd pick
19 up my radio, and he would give command through the intelligence net. And
20 if that was jammed, he would give it through the logistics net. So there
21 are multiple nets. So if you only have -- if you're trying to blind the
22 commander's command and control function and you're going to use jammers
23 exclusively, you have to make sure have you enough jammers to deny or
24 degrade not only the command net but all redundant communications
1 JUDGE ORIE: Mr. Russo, I'm looking at the clock. I don't know
2 whether --
3 MR. RUSSO: It's a good time, Your Honour.
4 JUDGE ORIE: Again, I have a small procedural issue to deal with
5 totally unrelated to you.
6 Therefore, Madam Usher, could you already escort the witness out
7 of the courtroom. We will have a break for some 20 minutes.
8 [The witness withdrew]
9 JUDGE ORIE: I raised the issue of the start of the Cermak
10 Defence case even before I had seen a communication of which some
11 concerns were expressed in that respect.
12 Now, the issue seems to be when we'll be done with the witness,
13 which will testify next week. Is there a fair expectation that we would
14 have done with that testimony by Friday?
15 MR. KEHOE: I do believe so, Mr. President. At this juncture I
16 think we can finish him by Friday.
17 JUDGE ORIE: Yes. Because there may be a need to have a short
18 housekeeping session as well. Now, either we are so efficient that we
19 find some time next week to deal with that, perhaps at the end of the
20 week, or we'll not be able to do that. But certainly there will be -- it
21 would be very impractical to already start with the Cermak Defence in
22 that week, also because we have a long weekend. The 21st September of
23 being an UN holiday.
24 So, therefore, if the Cermak could prepare for a start on the
25 22nd of September, although there may be a small risk that we have deal
1 with some housekeeping matters on that day or perhaps the day after that.
2 So therefore we try to have a start on the 22nd of September, unless
3 there's any problem with that, then I'd like it hear.
4 MR. CAYLEY: No, that is perfectly satisfactory and acceptable to
5 us, Your Honour. We will be ready to proceed on the 22nd. Thank you.
6 JUDGE ORIE: Yes. And the small uncertainty is about whether we
7 would be able to finish on Friday that week's witness --
8 MR. CAYLEY: Yes.
9 JUDGE ORIE: -- and the second, whether we have sufficient time
10 for housekeeping, but I would urge the parties to see whether we can hear
11 the testimony of the last witness of the Gotovina Defence not spilling
12 over to the week of the 21st/22nd of September.
13 Then --
14 MR. KEHOE: Mr. President, can I just raise one issue?
15 JUDGE ORIE: Yes, Mr. Kehoe.
16 MR. KEHOE: Mr. Misetic has raised a translation and I turn the
17 floor to him with regard to something that just came up in the last
19 JUDGE ORIE: Yes, Mr. Misetic.
20 MR. MISETIC: Yes, it's a minor point, Mr. President, but if -- I
21 assume the Prosecution is going tend the exhibit on the screen and the
22 entry at line 9, if we go to the last column with words.
23 MR. KEHOE: [Microphone not activated].
24 JUDGE ORIE: Well, let's see. It's still --
25 MR. MISETIC: Sorry. I'm guess I'm told it is in D96 -- D965.
1 We will have to make a correction to that document because --
2 JUDGE ORIE: You're talking about what page exactly?
3 MR. MISETIC: As it is on the screen right now --
4 JUDGE ORIE: Yes.
5 MR. MISETIC: -- in e-court. The entry at number 9.
6 JUDGE ORIE: Yes.
7 MR. MISETIC: The last entry -- last column, it translates "PZO"
8 as "artillery and rocket brigade," and in fact it should be translated as
9 "anti-aircraft defence."
10 So we will correct that and upload the right version into e-court
11 with the Court's permission.
12 JUDGE ORIE: Yes. The translation comes from ... I mean, you're
13 saying, We'll upload a different translation. Of course, it needs
14 some --
15 MR. MISETIC: It will be checked --
16 JUDGE ORIE: -- authorisation. It has to be checked. It has to
17 be agreed.
18 MR. MISETIC: Yes. Mr. President, I believe "PZO" actually
19 within the same document is translated correctly as "anti-aircraft
20 defence," and then it's for some reason translate as "artillery rocket
21 brigade" in that column.
22 JUDGE ORIE: Yes, I take it that you will verify with the --
23 MR. MISETIC: Yes.
24 JUDGE ORIE: -- the translators who have authority that this is a
25 right correction.
1 MR. MISETIC: Of course.
2 JUDGE ORIE: Yes. Then we'll have a break, and we'll resume at
3 ten minutes to 1.00.
4 --- Recess taken at 12.31 p.m.
5 [The witness takes the stand]
6 --- On resuming at 12.54 p.m.
7 JUDGE ORIE: Mr. Russo.
8 MR. RUSSO: Thank you, Mr. President.
9 Q. Professor, also in page 25, you indicated that General Gotovina
10 possessed only a very limited rotary air capability. And by that I take
11 it you meant helicopters. Is that right?
12 A. Yes.
13 Q. And did you then consider that the availability of air power
14 assets was a relevant consideration in determining the reasonableness of
15 General Gotovina's choice of artillery as the weapon to use in Knin?
16 A. Yeah, I think that that's what that suggests, that you would have
17 to consider air assets in the package of capability, if you're assessing
19 Q. And again in reviewing the assumptions provided to you by the
20 Gotovina Defence, those of which we're aware and which we've discussed
21 today and are apparent from your report, there is no indication that you
22 were provided with any information regarding air power capabilities of
23 the HV. So I would ask you what the basis was for your conclusion that
24 he only possessed a very limited rotary air capability.
25 A. Well, it was most likely the general concept of the operation
1 layout that occurred in Tampa
2 obviously I would be asking, is order of battle of both friendly and
3 enemy forces.
4 It may have also -- I may have also been influenced by
5 Colonel Konings's report, because the focus was primarily on indirect
6 fire assets.
7 MR. RUSSO: Can we please have 65 ter 7354.
8 Q. Professor, what's coming up is an analysis of the use of HV air
9 force in Operation Storm. It is quite a lengthy document. I'll
10 certainly give you the opportunity to look at it as much as you like.
11 But there are particular portions that I'd like to you look at. But
12 please let me know when you're comfortable moving on.
13 A. Okay.
14 MR. RUSSO: If we can go to page 6 in the English. It's also
15 page 6 in the B/C/S.
16 Q. You can see there under section 4 where it indicates that the
17 Croatian air force had at its disposal 17 combat aircraft and 5 combat
19 MR. RUSSO: If we could move to the next page both in English and
20 in B/C/S. Move towards the bottom.
21 Q. Last sentence there where it indicates:
22 "We formed the IZM" -- that is forward command post, "of the
23 Croatian air force and the anti-aircraft defence at every Military
24 District command post, with the task of suggesting the rational use of
1 A. Could I look at the two pages before that --
2 Q. Sure.
3 A. -- and just quickly look through them? Okay, thanks.
6 Okay. Thank you.
7 MR. RUSSO: If we could move to page 16 in both the English and
8 the B/C/S.
9 Q. You can see the second-to-last paragraph toward the bottom there
11 "14.5 per cent of flights were performed according to plan and
12 85.5 per cent of flights on request."
13 Professor, did you have this information on the HV combat
14 aircraft and rotary combat assets before you drew your conclusion?
15 A. I did not.
16 Q. To be clear, the MiG 21s that are mentioned, those are combat
17 aircraft; correct?
18 A. MiG 21 is an aircraft that can be used for air-to-air combat or
19 air-to-ground combat.
20 Q. Thank you.
21 A. Or a combination.
22 Q. Thank you.
23 MR. RUSSO: I would move for the admission of 65 ter 7354.
24 MR. KEHOE: No objection, Judge.
25 JUDGE ORIE: Mr. Registrar.
1 THE REGISTRAR: Your Honours, that will become Exhibit P2623.
2 JUDGE ORIE: And is admitted into evidence.
3 Please proceed.
4 MR. RUSSO: Thank you, Mr. President.
5 Can we now have 65 ter 7361.
6 THE WITNESS: Mr. President, would it be possible for me get a
8 JUDGE ORIE: Yes. I take it that belongs to the assets of the
9 ICTY to --
10 THE WITNESS: Thank you.
11 JUDGE ORIE: -- provide you with a pen.
12 THE WITNESS: I'll make sure I return it.
13 MR. RUSSO:
14 Q. Professor, on your screen is an excerpt from General Gotovina's
15 book, specifically the section entitled, "Support of the Air Force."
16 If you look at the second paragraph - if we can blow that up a
17 bit - it indicates:
18 "In Operation Ljeto 95, Oluja, Maestral, and Juzni Potez, the
19 Split Military District command was assigned Mi-8, MTV 1 and Mi-24V
20 helicopter as well as MiG 21 bis aircraft."
21 Moving down to the fifth paragraph, it indicates:
22 "MiG 21 bis aircraft were mostly used to protect Mi-24V
23 helicopters in operations Summer 95 Storm and Breeze. However, two
24 aircraft acted on-call in Operation Summer 95 and Operation storm. They
25 were very effective when acting against enemy convoys and facilities in
1 the areas of Biovcino Selo, Ocestovo and Drvar."
2 Professor, did you know that General Gotovina had two MiG 21s
3 on-call during Operation Storm before you concluded that he had only
4 limited rotary air capability?
5 A. I don't think so, no.
6 Q. And regarding the use of MiG 21s in Ocestovo, mentioned by
7 General Gotovina in the last passage that I read, did you know how close
8 Ocestovo is to Knin?
9 A. No.
10 MR. RUSSO: I move for the admission of 65 ter 7361.
11 MR. KEHOE: No objection, Judge.
12 JUDGE ORIE: Mr. Registrar.
13 THE REGISTRAR: Your Honours, that will become Exhibit P2624.
14 JUDGE ORIE: P2624 is admitted into evidence.
15 MR. RUSSO: Thank you.
16 Can we now have 65 ter 7353.
17 Q. Professor, what you have on your screen now is a Croatian air
18 force report dated 4th of August, 1995. You'll see it indicates at
19 paragraph 2 that 13 MiG 21 assault aircraft -- assault variant aircraft
20 were committed, and you can see that the target number 1 there, that
21 HV MiGs destroyed the Celavac radio relay station, or it indicates it was
22 quote/unquote eliminated.
23 Did you know that HV MiGs had eliminated the Celavac radio relay
24 station on 4 August?
25 A. No.
1 Q. Do you know what the significance of the Celavac radio relay
2 station was to the ARSK communication systems in the Knin area?
3 A. No.
4 MR. RUSSO: I move to admit 65 ter 7353.
5 MR. KEHOE: No objection, Judge.
6 JUDGE ORIE: Mr. Registrar.
7 THE REGISTRAR: Your Honours, that will become Exhibit P2625.
8 JUDGE ORIE: P2625 is admitted into evidence.
9 Mr. Russo, I still have some concerns about the speed of speech.
10 Your last questions where the witness answered with a no, it was mainly
11 your speed of speech which caused the problem.
12 Please proceed.
13 MR. RUSSO: Thank you, Mr. President. My apologies.
14 Can we go back to General Gotovina's order for attack; that's
15 P1125. And if we could go to page 13 in the English and page 12 in the
17 I'm looking for section 6 on page 13 in the English. Looks like
18 we have the right page on the B/C/S, but I don't see the same -- there we
20 Q. Section 6 dealing with the Croatian air force. General Gotovina
22 "With the authorised forces of combat planes (MiG 21),
23 helicopters for anti-armour combat (Mi-24) and transport helicopters
24 (Mi-8), it shall provide aircraft support along the axis of attack
25 pursuant to the plan of use and by request of the operations group
2 Professor, did you take this into consideration before
3 deciding -- or before indicating that General Gotovina only possessed
4 limited rotary air capability?
5 A. I did not. Although on several occasions you say "only possess
6 limited." I think I qualified with "essentially limited" -- "essentially
7 limited to." I was aware that there were -- there were some air assets,
8 I think helicopter assets, but ...
9 Q. Thank you.
10 MR. RUSSO: Can we now have Exhibit P71.
11 JUDGE ORIE: Mr. Misetic, the PZO translation, in view of the use
12 of the document, paragraph 6 saying anti-aircraft defence, seems that
13 Mr. Russo has already given his approval to the new translation.
14 Please proceed.
15 MR. RUSSO:
16 Q. Professor, this is the operations diary of the Split Military
18 MR. RUSSO: If we could please go to page 79 in the English and
19 page 42 in the B/C/S. And I'm looking for the entry at 9.27 a.m. In the
20 B/C/S I believe that appears at page 42 on the right-hand side.
21 Q. You'll see that General Gotovina orders:
22 "Immediately get our MiG aircraft in the air."
23 Looking down to the 9.55 a.m.
24 is air-borne and in the waiting zone. Also reported at 9.55 a.m.
25 helicopters are picking up casualties.
1 MR. RUSSO: And if we could move now to page 84 in the English,
2 and page 47 in the B/C/S. I'm looking for the entry at 9.25 a.m., this
3 entry straddles page 47 and 48 in the B/C/S.
4 Q. But you will see the 9.25 a.m. entry, where Brigadier Ademi
5 orders aircraft to fire at a line of enemy tanks in the area of
6 Stara Straza. And this is on the 5th of August, 1995, by the way.
7 Professor, are you aware of the distance between Stara Straza and
9 A. No.
10 Q. And had you considered this particular piece of evidence that
11 I've shown you before?
12 A. I have never seen it before.
13 Q. Thank you.
14 JUDGE ORIE: Mr. Russo, are you done with the document?
15 MR. RUSSO: Yes, Mr. President.
16 JUDGE ORIE: Could we just go back to page 42 again.
17 Professor Corn, we earlier talked about electronic warfare.
18 THE WITNESS: Yes, sir.
19 JUDGE ORIE: I see here an entry at 9.50, which is about enemy
20 aircraft. It says: "Enemy aircraft were fired at Grahovo."
21 And then it says: "Electronic warfare."
22 Could you -- because you have explained to us how, if I could
23 qualify it that way, how marginal apparently the electronic warfare
24 equipment or efforts were. Could you explain to us what this means here,
25 is that that targeting is supported by electronic equipment or ... how do
1 I have to understand this entry?
2 THE WITNESS: Your Honour, I think there are a number of ways
3 could you interpret that. I think one interpretation might that be
4 electronic warfare assets provided the information. Because it's a
5 prediction of future action, right?
6 JUDGE ORIE: Yes.
7 THE WITNESS: So that the electronic warfare interception led to
8 this intelligence. I think it is possible that they anticipate that
9 their electronic warfare assets might be the object of attack by enemy
11 JUDGE ORIE: Yeah.
12 THE WITNESS: Or the third option would be that they are planning
13 on using their electronic warfare capability to disrupt this enemy air
14 attack. I think there are three possibilities.
15 JUDGE ORIE: Yes. So, it doesn't assist greatly to understand
16 what it is about. Thank you for those answers.
17 Mr. Russo, please proceed.
18 MR. RUSSO: Thank you, Mr. President.
19 Q. Professor, looking at some of the information I have shown you,
20 would you agree that this is information relevant to the consideration of
21 the assets available to General Gotovina?
22 A. Yes.
23 Q. Now --
24 A. Well, but, if I may.
25 Q. Go ahead.
1 A. You know, it's more than just a kind of zero sum. There are
2 assets; there are not assets. Availability is a key word. It seems
3 relatively clear that this is an order related to close-air support and
4 air support that augments the General's organic capability, right? So we
5 speak in terms of organic and supporting assets.
6 It also seems relatively clear that this capability is understood
7 by the General to be ideally suited to support the close fight and to be
8 responsive to his stated concern over the ability of the enemy to move,
9 to manoeuvre, in depth to influence that close fight. So, yeah, I mean,
10 there's no question that this indicates that he knew that he had close
11 air support available, if he needed it.
12 But I think one of the most significant pieces of information
13 from the documents you have shown me is the percentage of strikes,
14 14.5 per cent pre-planned; 85.5, on order. When you see that, it
15 suggests that the bulk of the capability was used to support the close
16 fight, because it is being called in for close-air support purposes. It
17 is not being used against pre-planned targets and that's logical, because
18 air assets are inherently more responsive to manoeuvring enemy forces
19 than indirect fire because they are responding to what the ground
20 tactical commander is seeing as a threat or a developing situation.
21 So I think, again, if you look at the entire body of information,
22 I certainly agree with you that I didn't -- I wasn't aware of this when I
23 made that comment about limited air assets. But I also think that it is
24 consistent with his overall operational and tactical scheme of manoeuvre,
25 and the way they were employed is consistent with that.
1 Q. Thank you.
2 Looking back to your addendum, Professor --
3 MR. KEHOE: Excuse me, Mr. President, may I just interject at
4 this point. Is counsel moving off the aircraft point?
5 MR. RUSSO: Yes.
6 MR. KEHOE: Then I would have a --
7 JUDGE ORIE: First of all, I was following the French
8 translation. Could we all try to keep the speed --
9 MR. KEHOE: Apologies.
10 JUDGE ORIE: -- down.
11 Yes, Mr. Kehoe.
12 MR. KEHOE: My apologies to the booth.
13 If we're moving off that, I do believe that counsel has a
14 90(H) obligation to put his point concerning the use of these assets to
15 the witness and whether or not that changes his assessment. That's an
16 obligation counsel has. So before he moves off, I think it is incumbent
17 upon the Prosecution to put their case on that score to the witness.
18 MR. RUSSO: First of all, Mr. President, Rule 90(H) has to do
19 with witnesses who can give evidence. This witness doesn't have any
20 evidence. All he has are opinions based on evidence which is fed to him.
21 I don't have a 90(H) obligation to educate a witness and then ask him for
22 an opinion.
23 MR. KEHOE: Then counsel shouldn't have conducted this cross.
24 That flies in the face of what we have just been doing for the past two
25 hours. The point of the matter is --
1 JUDGE ORIE: Could I just try to understand what has happened
2 over the last -- well, let's say, the last half an hour. That is, that,
3 apparently, Mr. Russo has put to the witness documentary evidence which
4 the witness apparently had not considered when forming his opinions, and
5 I did not get the impression that the witness contradicted the
6 Prosecution's case. So apart from whether this is evidence in support of
7 the Prosecution's case, or whether it is evidence which seeks to
8 demonstrate the limited documentation available to this expert witness,
9 apart from which of the two would be the right one, the obligation to put
10 to the witness what the Prosecution's case is, is -- exists if the
11 testimony given by the witness contradicts the Prosecution's case, if my
12 understanding of Rule 90(H)(ii) is correct.
13 Where, Mr. Kehoe, has this witness contradicted, during this
14 testimony, the Prosecution's case?
15 MR. KEHOE: First off, Mr. President, if we look at 90(H)(ii), it
16 is not limited to fact witnesses in any fashion.
17 JUDGE ORIE: I don't think that that was raised.
18 MR. KEHOE: It was raised by counsel. He raised it --
19 JUDGE ORIE: Well, then I missed it.
20 MR. KEHOE: -- that it was only limited to fact witnesses and the
21 rule doesn't say that.
22 MR. RUSSO: I'd -- first of all, if I could just respond to that.
23 I didn't say that specifically. What I did say is that the rule relates,
24 as can you see from the language, witnesses who are able to give
1 JUDGE ORIE: Yes.
2 MR. RUSSO: And my position on that is evidence is, in fact,
3 factual evidence, not legal opinion.
4 JUDGE ORIE: Well, okay. Let's -- let's leave that alone for the
5 time being.
6 Mr. Kehoe.
7 MR. KEHOE: Secondly, the issue that counsel, after this
8 examination, is going to argue, as sure as I'm standing here, is that the
9 use of artillery by General Gotovina was unreasonable. That is the
10 position that the Prosecution has taken in this case. And that he should
11 have explored these air asserts to accomplish any goal he sought to
12 accomplish, operationally and tactically, in the theatre of operations.
13 If they're not going to argue that, then we would -- I ask for a
14 stipulation on that. If they are, in fact, going argue, based on this
15 evidence, that that was the way that General Gotovina should have gone,
16 then 90(H) obliges them to "put to the witness the nature of the case of
17 the party for whom that counsel appears." And in that instance, it is
18 Mr. Russo on behalf of the Prosecution, and if he is going to argue at
19 the end of this case that General Gotovina should have used aircraft
20 assets, be they fixed or rotor, as opposed to artillery, then that
21 question should be put to Professor Corn in this proceeding before this
23 JUDGE ORIE: Mr. Russo, is that your position, that air asserts
24 should have been used instead of ...
25 MR. RUSSO: Mr. President, we're not, at this point, under any
1 obligation to tell the witness what we're going argue in our final trial
2 brief. It is further not our obligation to indicate that he should have
3 used this aircraft, that rotary helicopter. Our position is that his use
4 of artillery was unreasonable. That is the case we have to put to the
5 witness, and I believe he is well aware after that position, in fact,
6 from --
7 JUDGE ORIE: Let's check that.
8 Are you aware that it's the Prosecution's case that artillery was
9 used in an unreasonable way during Operation Storm?
10 THE WITNESS: Your Honour, yes, I understand that's their
11 position. I certainly cannot help but draw the inference that the
12 questions related to the availability of air assets are intended to
13 suggest that that bolsters the position and so -- and undermines the
14 opinion that I rendered.
15 [Trial Chamber confers]
16 JUDGE ORIE: The Chamber rules that the Prosecution has met its
17 obligations under Rule 90(H)(ii).
18 Please proceed, Mr. Russo.
19 MR. RUSSO: Thank you, Mr. President. I did just want to make
20 one additional thing clear with respect to this particular line of
21 questioning. It was, in addition to other things, to attack the
22 witness's assertion in his report that General Gotovina's assets were
23 essentially limited. I was simply attacking the basis for those
24 assertions and demonstrating the witness's actual knowledge with respect
25 to those particular areas.
1 JUDGE ORIE: Yes --
2 MR. KEHOE: Mr. President, that argument is part and parcel of
3 the other argument, that the -- the only reason there is any relevance to
4 that is if it has a corollary aspect that the use of rotor or fixed
5 aircraft assets was something that should have been employed. Because if
6 they are not connected --
7 JUDGE ORIE: Mr. Kehoe, you may finish this line. I didn't
8 invite Mr. Russo to explain what he had done because the Chamber, of
9 course, could observe what he did, and interprets his line of questioning
10 accordingly. And apart from that, I think I already briefly referred to
11 such a thing.
12 So you may finish your -- you may finish your sentence. At the
13 same time, the Chamber was not seeking any further argument on the ruling
14 it already gave.
15 MR. KEHOE: And, Mr. President, I think that the substance of my
16 argument is present. I don't need to belabour the point. My apologies,
17 if I did so.
18 JUDGE ORIE: Mr. Russo, not your next comment but your next
19 question is expected.
20 MR. RUSSO: Yes, Mr. President. Thank you.
21 Q. Professor, looking back to your addendum at section 1, last
22 paragraph on page 25, you state:
23 "It seems clear that based on the METT-T-C General Gotovina would
24 have to consider, use of a ground assault to destroy or disrupt enemy C3I
25 in Knin would not have been a viable option."
1 Can you tell the Trial Chamber what you base that particular
2 conclusion that a ground assault was not a viable option. What do you
3 base that on?
4 A. Well, the first basis is the almost universal doctrinal principle
5 that dismounted combat in urban environments is to be avoided really at
6 almost all costs. It is understood, I think, in most armed forces, that
7 it is a -- really an option of last resort. Because the urban
8 environment grants to your defending opponent an exponential advantage as
9 a result of the built-up terrain and degrades your ability to manoeuvre,
10 to leverage fire support and air assets, and to have a clear picture of
11 the battlefield.
12 And if you recall from yesterday, I emphasised that a commander
13 executing an operation has the primary objective of seizing and
14 maintaining the initiative and dictating the tempo of the battle.
15 Engaging an enemy in an urban environment cedes to the enemy initiative
16 and tempo so it is to be avoided. Historically, you see this played out
17 in, you know, universally known examples of the brutality of urban
18 combat, like Stalingrad
19 historical anecdotes, for example, the debate between General de Gaulle
20 and Eisenhower over whether Paris
21 with Eisenhower adamant that he did not want to engage in urban combat in
23 operationally. And we know ultimately he lost that argument. This is a
24 doctrinal axiom.
25 So a prudent commander facing this requirement to destroy or,
1 more importantly, to degrade military objectives within this urban
2 terrain would instinctively be disinclined to engage in a ground assault.
3 In addition, as I've said before, I think it is fairly clear that
4 the General's priority of effort was the breach and destruction of the
5 fixed enemy defensive positions. That is not an easy task. It's an
6 extremely dangerous task. A commander would always prefer to attack an
7 enemy in a meeting engagement as opposed to attacking an enemy in fixed
8 positions. We see that the General -- I think you see that the General
9 placed -- made that priority of effort manifest in his task to
10 subordinate units. To conduct an urban assault, to set the conditions
11 for the success of that priority of effort would have, in effect, shifted
12 the priority of effort from the tactical point of attack to the
13 supporting attack, because you couldn't have done it easily, or certainly
14 that would have been a reasonable conclusion.
15 The other factor is you have to look at the effect that he needed
16 to achieve to set the conditions for the -- for the success of the
17 priority of effort. The effect he needed to achieve was not to capture
18 the headquarters. It was not to destroy the headquarters. It was to
19 disrupt C3I, movement, mustering, resupply, and to create a sense of
20 isolation for the enemy forces at the point of attack. That's my
21 inference from everything I have seen related to the attack.
22 And so if he had the mission, for example, if he felt that in
23 order to succeed in this operation he had to actually capture the
24 headquarters building, then that mission component of METT-T-C would have
25 driven a different analysis. Because there are only certain assets that
1 can capture people. Boots on the ground. But you have to assess how
2 likely he would have considered the viability of a ground assault into
3 Knin as a condition -- condition-setting supporting attack in light of
4 the effect he needed to achieve to accomplish the mission. And when you
5 put that together with the powerful kind of instinct or doctrinal
6 underpinning that dismounted military operations in an urban environment
7 are considered dangerous and to be avoided, then I think that would have
8 been an unlikely course of action that he would have -- it would have
9 been unlikely he would have considered that course of action viable.
10 Q. Professor, I'm -- maybe we're thinking of different definitions
11 of the term "viable." But before we get to that, was it your
12 understanding that one of the objectives of Operation Storm was not to
13 take the town of Knin
14 A. No. It was my understanding that the operation of objective
15 Storm [sic] was to drive the enemy forces out of the area and capture
16 their seat of command and control and government, which was Knin. That
17 was the strategic objective.
18 General Gotovina did what an operational commander is required to
19 do. He translated the strategic objective into an operational course of
20 action and he made the priority of effort for the operational execution
21 defeat of the enemy defensive positions that were protecting that area,
22 on the -- most likely on the assumption that once the enemy defences are
23 defeated in depth, then the capturing of Knin will be facilitated
25 So I'm not suggesting that he didn't realize at some point he
1 might have to capture and control Knin. What I'm suggesting is that
2 doesn't necessarily mean that he is going to set that as the first
3 objective of the operation.
4 Q. Now in saying it is not a viable option, and it sounds maybe that
5 you have a different definition or are employing a different definition.
6 At least from my perspective, viable means, number one, first of all,
7 whether can you do it. Is that fair?
8 A. Possible is one aspect of viable, sure.
9 Q. And are you -- when you say that it is not a viable option, I
10 take it, based on your last answer, your second-last answer, is that even
11 though it may have been possible, which you have not said, it certainly
12 was not advisable. Is that fair or ...
13 A. No. I think advisable is a little bit misleading. First of all,
14 I suspect it was possible. If the General had decided that the priority
15 of effort of his corps was to capture the city, then I think you would
16 have seen a radically different scheme of manoeuvre and a radically
17 different emphasis for subordinate units.
18 So when I say "not viable," what I mean is within the broader
19 context of the priority of effort he set, it would have drawn -- it would
20 have required a commitment of assets or certainly - make this clear -
21 certainly he reasonably could have anticipated that it would have
22 required a commitment of assets that would have functionally disabled all
23 of the efforts he had made to make the priority of effort the tactical
24 point of engagement with enemy defensive positions.
25 And another aspect of this that relates to this use of the word
1 "viable," one of the reasons dismounted operations in urban terrain is so
2 disfavoured is because it is one of the most unpredictable combat battle
3 spaces that a commander can confront. And predicting the flow of the
4 battle is directly connected to tempo and maintaining initiative.
5 So if General Gotovina had made a judgement that, I can take Knin
6 with a battalion, and he commits that battalion, he is committing it with
7 the full knowledge that he really can't predict whether that battalion
8 will accomplish the mission. He can hope. But it's a different equation
9 than a force-ratio analysis a commander would conduct in open terrain, or
10 even against a fixed enemy defensive position.
11 History demonstrates this. The problem for the commander is once
12 he commits that force for that purpose, he's in a box. And another axiom
13 of military operations is, never reinforce failure. All right? You have
14 limited reinforcements, you reinforce success not failure. But that's a
15 problem with urban terrain combat because you're almost sucked into the
16 problem of having to reinforce failure because of the unpredictable
17 nature of the operation, and this is why doctrinally it is so disfavoured
18 and commanders are advised to seek alternate methods of addressing enemy
19 positions in an urban environment.
20 Q. Professor, before we move on to the details of a possible ground
21 assault on Knin, you said, So if General Gotovina made a judgement that,
22 Can I take Knin with a battalion, are you aware of what
23 General Gotovina's assessment was at the time, concerning the viability
24 of taking Knin with troops?
25 A. No. Because my review of the information indicates that he made
1 the judgement that he wasn't going to make that the priority of effort.
2 MR. RUSSO: Can we have Exhibit P461. And if we could go to
3 page 10 in the English and page 19 in the B/C/S.
4 Q. I'm looking at a portion where General Gotovina says -- first of
5 all, Professor, this is the Brioni transcript, which I believe you're
6 familiar with.
7 General Gotovina's statement:
8 "The forces heading towards Knin are 400 good infantrymen from
9 the 3rd Battalion, the 126th Regiment, who are all from this area and
10 they know the area through and through. They have reason to fight here
11 and at this moment it is difficult to keep them on a leash. There is the
12 1st Croatian Zdrug, which has 300 infantrymen, which has proved itself in
13 this area at this moment, and in any case, we can count on those
14 infantrymen. There are special units of the Croatian and Herceg-Bosna
15 MUP, which have 350 excellent infantrymen, who have shown themselves to
16 be outstanding in the operation. That means that we have somewhere
17 around 1.000 good infantrymen, trained for assault operations, for quick
18 transfers on this difficult terrain; we can easily take Knin without any
20 Now, Professor, if General Gotovina made the assessment that he
21 could easily and without any problem take Knin with these thousand men,
22 what is your basis or do you have a basis for disagreeing with him?
23 A. Yeah, I have read this and I think this is really quite
25 Again, you put it in broader context and it creates maybe a
1 different impression. In the paragraph antecedent to this paragraph, the
2 president is talking about placing Knin under fire --
3 JUDGE ORIE: Could we move -- yes, thank you.
4 THE WITNESS: And placing Knin direct -- operations directly
5 in -- towards Knin.
6 Now, in the -- when I read this, it jumped out at me for the
7 reason you suggest, because it seems to think that here's the General
8 saying, I'm just ready to march into Knin and take it over.
9 I think other aspects of this document support the conclusion
10 that there are different voices in this meeting but the tenor of the
11 General's voice is operational execution, close with and destroy the
12 enemy. It is manifest in a couple of places. I assume this document's
13 been admitted into evidence, is that -- okay. So the Trial Chamber will
14 obviously have seen it and make that judgement.
15 It says, Please remember how many Croatian villages and towns
16 have been destroyed. But that's still not the situation in Knin today.
17 There's a counter-attack in Knin and so forth. It would provide a very
18 good justification for this action ... we have a pretext to strike ...
19 Now here is the operational commander listening to the political
20 leader basically saying, you know, as part of planning this tactical
21 destruction of enemy armed forces, look for an opportunity to inflict
22 damage on the city, and the commander responds, in my view, one
23 reasonable way to interpret this is to kind of push that back,
24 Mr. President, don't worry about Knin. I can take Knin when I have to,
25 right? I have got forces. I'm capable of doing it.
1 But the General, through this whole discussion, is talking about
2 the tactical destruction of enemy forces. And obviously, if I'm the
3 commanding general and I know that I have defeated the enemy in depth,
4 then the dominos start falling and I will be able to walk into Knin,
5 because once those frontline positions are breached and defeated, then
6 the leadership in Knin knows that the outcome is inevitable, and I'm
7 dictating the terms.
8 So, again, I think there -- it is possible to read this as
9 General Gotovina saying, As part of my plan, I'm ready to just march into
10 Knin. But I think in the broader context, it suggests something quite
11 different, which is he is trying to push the president off of this kind
12 of overzealous pressure to put Knin under fire. And part of my reason
13 for saying that is something we talked about previously, which is he had
14 the capability to do this for some time, to just rain fire on Knin.
15 Now, I mean, there're, again, multiple reasons why he might not
16 have exploited that opportunity.
17 If you -- I think if you look at this, he comes out of this
18 meeting, orders are prepared, annexes are prepared, tasks for subordinate
19 units, priorities of effort, and it all points to the same operational
20 judgement, I'm going use my ground tactical capability, my close air
21 support, my MiG -- my Mi-24s, which are anti-armour, anti-personnel
22 aircraft. I'm going to leverage all that to the best I can at the
23 priority of effort, which is defeating the enemy ground tactical
24 capability in depth. In order to do that, I have to set conditions
25 related to their support structure and I will use assets that I think can
1 do it.
2 So that was my reaction to that when I read it.
3 JUDGE ORIE: Mr. Russo, I'm looking at the clock. We have to
4 conclude for the day.
5 Professor Corn, you are not available tomorrow, from what we
6 understand. We'd like to see you back on Thursday, the 10th of
7 September, quarter past 2.00, in Courtroom II. And my instruction to you
8 is the same as yesterday, that you should not speak with anyone about
9 your testimony, whether already given or still to be given.
10 For the parties, we'll hear testimony through videolink tomorrow.
11 We adjourn and we will resume Wednesday, the 9th of September, 9.00,
12 Courtroom I.
13 --- Whereupon the hearing adjourned at 1.46 p.m.
14 to be reconvened on Wednesday, the 9th day of
15 September, 2009, at 9.00 a.m.