1 Friday, 11 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 [French on English channel]
8 JUDGE ORIE: -- every morning to be taken by surprise. Yes.
9 Mr. Registrar, could you again call the case.
10 THE REGISTRAR: Good morning, Your Honours. Good morning to
11 everyone in the courtroom. This is case number IT-06-90-T, the
12 Prosecutor versus Ante Gotovina et al.
13 JUDGE ORIE: Thank you, Mr. Registrar.
14 Good morning, Mr. Corn. I would like to remind you that the
15 solemn declaration you gave at the beginning of your testimony is still
17 And, Mr. Russo, are you ready to continue your cross-examination?
18 MR. RUSSO: Yes, Mr. President.
19 JUDGE ORIE: Please proceed.
20 WITNESS: GEOFFREY CORN [Resumed]
21 Cross-examination by Mr. Russo: [Continued]
22 Q. Good morning, Professor.
23 A. Good morning.
24 Q. Let's go to page 27 of your expert report, and this is ...
25 [Prosecution counsel confer]
1 MR. RUSSO:
2 Q. This is a part of your answer to question 1 of the addendum. I'm
3 looking at the middle of the second-to-last page -- I'm sorry,
4 second-to-last paragraph on that page, where you state:
5 "The record indicates that prior to launching Operation Storm,
6 General Gotovina had not ordered the use of indirect fires against
7 military objectives in Knin, even though those objectives were well
8 within range of his indirect fire assets. This is a significant factor
9 in my assessment of his decision-making process, for it corroborates the
10 inference that the employment of this asset during Operation Storm was
11 nested within his overall operational concept. Because of this, it is
12 unlikely that General Gotovina would have wasted this valuable resource
13 on an objective with little or no tactical value. It also seems
14 difficult to ignore the fact that this record also reinforces an
15 inference that General Gotovina never acted with the intent to use this
16 asset for the purpose of harassing or deliberately targeting the civilian
17 population of Knin, as there was no fire on Knin prior to
18 Operation Storm."
19 Professor, you obviously place significant weight on the fact
20 that General Gotovina never shelled the alleged military objectives in
21 Knin prior to Operation Storm, but I'd like to put to you that this fact
22 actually adds nothing to the analysis of whether his use of artillery
23 during Operation Storm was lawful. And let me see if I can try to
24 demonstrate that.
25 First, if General Gotovina had fired artillery at the alleged
1 military objectives in Knin prior to Operation Storm, would it still be
2 your opinion that it was lawful?
3 A. If they had been fired at military objectives and the effects did
4 not cause or weren't anticipated to cause an excessive degree of
5 collateral damage in relation to the objective, then that would have been
6 a lawful use of artillery, yes.
7 Q. Let me be a little more specific. Well, first, when you made the
8 statement that I read, were you referring to the fact that
9 General Gotovina had never shelled the same military objectives that you
10 opined about in your expert report?
11 A. The statement that you read is based on, again, the facts and
12 assumptions provided, that the general's organic fire support capability
13 had Knin within range prior to launching Operation Storm. In my view and
14 what I was attempting to express there, the fact that those assets were
15 not employed prior to launching the main tactical effort --
16 JUDGE ORIE: Professor Corn, if you would not mind if I stop you.
17 That was not the question. The question that was put to you was not
18 further to explain the portion read to you, but was whether you
19 understood the facts available to you to include that General Gotovina
20 had never shelled the same military objectives that you opined about in
21 your expert report before.
22 THE WITNESS: Your Honour, I -- the facts that I understood upon
23 which that paragraph is based is that from the point in time where those
24 objectives were within range of his assets, he did not shell the same
25 military objectives prior to Storm.
1 JUDGE ORIE: Please proceed, Mr. Russo.
2 MR. RUSSO:
3 Q. Well, Professor, maybe you can help me out with what I'm missing
4 here. Prior shelling on the same objectives in Knin wouldn't have
5 changed your analysis in any way, because on the one hand you say if he
6 didn't shell military targets in Knin in the past it corroborates a
7 lawful use during Operation Storm; and on the other hand you say, well,
8 if he had shelled those targets in the past, it would have been lawful
9 anyway, so I don't see how that could lead to any inference other than
10 the one you've already drawn.
11 A. Well, that was exactly what I was attempting to explain. The --
12 let's just call it the -- I don't want to use the word "restraint." The
13 decision not to use the asset prior to the commencement of the main
14 tactical effort was relevant in my mind for two purposes. First off, if
15 he had used the asset previously against nonmilitary objectives or in an
16 indiscriminate manner, then consistent with what I stated yesterday I
17 think that is evidence you would have to consider in the totality of the
18 record when assessing the propriety of his use during the operation. But
19 I also think it was relevant - and this is what the word "nested" and
20 "wasted" was attempted to convey - it's relevant because it indicates or
21 supports the inference that his actual employment of artillery was
22 designed to support his priority of effort.
23 And I guess I should have maybe explained the word "nested," but
24 the concept is that it's connected, it's within the overall objective.
25 Now -- now, a use prior to that against a lawful military objective
1 wouldn't necessarily undermine the inference that it was a nested use,
2 but the pattern of employment, the connection to the jump-off point or
3 the beginning commencement of the ground tactical operation, in my view
4 is a significant element in my analysis of what his intended purpose for
5 that use was.
6 Q. Professor, did you consider as an alternate explanation the
7 discussion during the Brioni meeting as a reason why the shelling might
8 not have happened prior to Operation Storm itself?
9 A. Yes.
10 Q. And specifically I'm talking about President Tudjman's comments
11 about using a counter-attack from Knin as a pretext for using artillery
12 and his comments about the political situation being so favourable at the
13 time of Operation Storm. Couldn't that also be a reasonable
14 interpretation for why General Gotovina did not shell in Knin prior to
15 Operation Storm, but instead chose to do it during the military
17 A. I think it could be an explanation. I was asked to render my
18 honest opinion. That's what I did. And in my honest opinion, the
19 pattern of employment was consistent with an operationally sound
20 decision-making process, and that's -- I don't think that that paragraph
21 indicates it's conclusive. It's the only inference you can draw from the
22 pattern of employment, but what I was trying to emphasise was from an
23 operational and tactical perspective there's logic in linking your
24 priority fire support mission with the priority ground tactical assault.
25 So the answer is: Yes, I think that's a possible explanation. In my
1 opinion, it's not the most logical explanation.
2 Q. Thank you, Professor. Looking at page 29 of your report,
3 subsection (f), one of the assumptions you point out is that the HV
4 observed a civilian evacuation "subsequent" to Martic's evacuation at
5 1645. Do you see the part I'm talking about?
6 A. [No verbal response]
7 Q. Let me just ask you, first of all, does it matter or did it
8 matter to your analysis of the use of artillery whether civilians
9 evacuated at all?
10 A. Well, I think that prior to that I noted that one of the
11 assumptions or facts that I was provided indicated that General Gotovina
12 believed or assumed or had information indicating that even prior to
13 initiation of the operation, there had been a substantial exodus of
14 civilians from the city. I think that is absolutely a relevant
15 consideration for a commander using artillery in a populated area.
16 Q. Can you explain why you believe that's a relevant consideration?
17 A. Because, as I think any reasonable commander would know, that the
18 higher the density of the civilian population, the more exposed the
19 civilian population might be; the timing of the attack; and the
20 relationship between that timing and the civilian population are all
21 factors that you must consider when conducting that balance between your
22 anticipated effect and the anticipated collateral damage or incidental
23 injury. And I think at another point in the report I emphasized that all
24 of these elements are relevant in a target decision-making process when
25 the anticipated means of warfare is indirect fire in a population centre,
1 a civilian population centre.
2 Q. Thank you, Professor. I understand the significance of the
3 concentration of civilians generally, but what I want to focus on is the
4 assumed fact about a civilian evacuation subsequent to Martic's
5 evacuation order. What I'd like to know is: Would it matter to your
6 analysis if in fact the civilian evacuation that the HV purports to have
7 observed here occurred significantly prior to Martic's evacuation order?
8 A. Would it matter? Well, what would matter to my analysis was what
9 information General Gotovina was aware of. If in fact there were no
10 civilians in the city when he launched his operation but he anticipated
11 there was a substantial civilian population, then in my opinion that is
12 the fact, his knowledge or his expectation or - to be more precise - as
13 the law requires his anticipation is what would influence my analysis.
14 What I was attempting to do, as I said before, is to provide an opinion
15 based on the information that I was told was information that he
16 understood to exist at the time. So -- and if he knew that there had
17 been an even greater evacuation of the town prior to commencing the
18 operation, it wouldn't change my analysis related to his obligation to
19 distinguish between lawful objects of attack and civilian objects, but it
20 would influence my critique of his assessment of the balance between
21 objective and collateral damage.
22 Q. Well, Professor, let me ask you to assume then that
23 General Gotovina becomes aware that after he begins shelling in Knin but
24 prior to Martic's order there begins a significant civilian evacuation of
25 the town, would that change your analysis in any way?
1 A. There are -- I mean, there are so many variables embedded within
2 that question. Just one example. If he had preplanned an indirect fire
3 strike on an area, for example, to deny it as a potential muster point or
4 a crossroads or a bridge and he becomes aware that that area or
5 crossroads or bridge is packed with civilian evacuees, then that would
6 have - should have - a profound impact on his analysis conducted prior to
7 that time. In the alternative, if, for example, he had considered
8 striking a target where there was a senior military commander living in
9 an apartment building with 300 civilians and he learns that all the
10 civilians have evacuated, then a target that he may have excluded
11 previously would once again become legally viable.
12 So I think it would depend on where the civilians were, what the
13 target set was he was considering, what effect he sought to achieve, and
14 how the evacuation would influence his assessment of the proportionality
15 analysis. But once again, I want to emphasise, it would not free him to
16 simply sail, Well, there are no civilians in the city, now I can attack
17 everything, I can bombard everything. Because while civilian personnel
18 might be out of the city, there is still substantial civilian property,
19 and he must consider that in his equation as well.
20 Q. Thank you, Professor. Let's move to page 30. At subsection (d)
21 you assume that General Gotovina refrained from employment of indirect
22 fires to harass the civilian evacuation or deliberately target civilians
23 in the evacuation observed on the afternoon of the first day of the
24 operation. Now, this, I believe, is the one assumption which I believe
25 you pointed out earlier as the one you recalled from the meeting and
1 specifically asked for permission to include in your analysis; correct?
2 A. As I recall, yes.
3 Q. Well, first, just to clarify. What do you mean when you say
4 "refrain from harassing the civilian evacuation." Can you explain what
5 you mean by that.
6 A. The assumption that I contacted Defence counsel in relation to
7 this portion of the report was that at some point during this evacuation
8 process General Gotovina became aware that there were enemy military
9 personnel or enemy personnel, obviously, if they're not military they're
10 not enemy, there were enemy personnel co-mingled with this flow of
11 individuals exiting the conflict area or the battle space, whatever term
12 you want to use. I thought at that point it was significant that he
13 didn't even, to my knowledge, seriously contemplate whether he could
14 treat that as a lawful military objective because of the co-mingled
15 nature of the population.
16 Now, if he had assessed that as a military objective, it would
17 obviously have raised a significant question of whether it would have
18 been a proportional attack. Probably is about as difficult a dilemma in
19 that regard as you could hypothesise. A retreating enemy is not per se
20 defeated, but he's not at that moment combat-effective. Co-mingled with
21 a substantial number of civilians, inevitable severe casualties to
22 civilians if you use indirect fire. My assumption was the very nature of
23 that co-mingled target led him to make the judgement that we're not going
24 to engage it.
25 Now, I don't know if, even assuming that judgement was made, it
1 was driven primarily by his humanitarian instinct or by an operational
2 assessment that: I want other members of the enemy force to know that if
3 they choose to drop their weapons and run they will have an escape route.
4 That may have been his primary motivation, but the fact remains that I
5 thought it was significant that he never seemed to contemplate placing
6 that exodus under attack to kill or harass the co-mingled military
8 Q. Professor, did you consider as an alternate explanation whether
9 General Gotovina, if he intended to actually encourage civilians to
10 leave, that that might be a reason why he wouldn't shell the columns?
11 A. I mean, it's similar to the previous question, linking back to
12 the Brioni transcript. If you look at the commentary to Article 51 and
13 its discussion of the prohibition on indiscriminate attack, the
14 relationship between that prohibition and distinction, and very
15 specifically the prohibition on attacks intended to spread terror among
16 the civilian population, the commentary notes that terror in the area of
17 war, terror among the civilian population in the area of war is
18 oftentimes an inevitable consequence of combat. And that the prohibition
19 is focused on whether or not the commander acted with a purpose to
20 inflict that terror, to cause that terror.
21 If General Gotovina, in my view, in the Brioni meeting was
22 essentially saying to the president, There is a natural consequence that
23 is ongoing. I don't need to make any civilian the object of attack.
24 Even if he, in my view - and I said this yesterday - even if he thought
25 as an operational matter the exodus of the civilian population as
1 consistent with the -- to the commentary to Article 51's view as a
2 natural response to what they see going on around them, the effects of
3 war, even if he thought that that might affect the determination of his
4 enemy to stand and fight, I don't think that it's improper for him to
5 consider that effect. What's improper is if he used his combat
6 capability to produce that effect as a purpose.
7 So yes, I did consider that, but as you know from our dialogue
8 yesterday, I don't -- I don't believe that the Brioni transcript in the
9 broader context establishes as the only possible or reasonable inference
10 that he embraced the proposition that he would deliberately employ combat
11 power for the purpose of spreading terror among the civilian population
12 in order to achieve either a strategic political effect or a military
14 JUDGE ORIE: Could I try to understand what happens at this
15 moment. I'm listening to questions and answers. You give explanations
16 how you understand the situation, and you are mainly focusing on a
17 commander who's pursuing legitimate strategical aims. Mr. Russo says,
18 But if that commander would have something totally different on his mind,
19 that is, to expel the civilian population, then you start explaining that
20 if he would not have that on his mind but if it would be an effect that
21 it would not be under all circumstances acceptable. And then you start
22 explaining why you do not share Mr. Russo's assumed belief or whatever
23 you call it, that this was on General Gotovina's mind. So finally it
24 comes down to you disagreeing on what was on his mind, perhaps we could
25 shorten this discussion because I think you would agree - that's at least
1 how I understand your answer - that if General Gotovina, as it was put to
2 you by Mr. Russo, had on his mind to use military means, apart from
3 re-gaining the territory, also to drive out the civilian population, and
4 them not to return, that that would be illegitimate. And then you're
5 back to where we are at almost all the questions, that is, that you're
6 focusing on possible explanations of events, meetings, whatever. So it
7 could well fit into a fully legitimate operational context. Mr. Russo
8 focusing on other matters. So I see two gentlemen with different
9 approach, who not necessarily disagree with each other on the issues what
10 is legitimate, what is not legitimate. Of course you have said you have
11 to be very careful. Certain weapon systems are not, per se,
12 illegitimate, but it depends on the circumstances. And then whatever
13 Mr. Russo puts to you -- you say, Well, it ain't necessarily so, isn't
15 I'm just trying to follow this, and it's repeating itself quite
16 often. Could we perhaps -- is there any way that we could shorten the
17 discussions to say if your assumption is right, then I would agree. But
18 I'm not convinced on the basis of what I've seen that that's a right
19 assumption. And then I think we know where we are because this -- I'm
20 just trying to analyse what I see happening during this
22 Mr. Russo and Professor Corn, I'm addressing both of you because
23 you're two partners -- not in crime, but at least in this -- in the
24 interaction which I see and hear before me.
25 THE WITNESS: Well, Your Honour, I would like to emphasise on
1 that kind of more global perspective, having read the Brioni transcript,
2 and throughout this whole report, I always had in the back of my mind
3 there might be an alternate illicit motive to some of this. So I
4 considered it in relation to all of these answers, and I tried to explain
5 in the answers why, in my view, the totality of the record supported an
6 alternate rational inference.
7 JUDGE ORIE: Yes. And what you are doing is if Mr. Russo puts to
8 you what apparently his view or approach on the matter is, you say that
9 matters are rather complex and that this could be the case, that could be
10 the case, this could explain, that could explain. And Mr. Russo in
11 response to your explanations puts to you that could it not be that and
12 that and that. And that's what happens already for quite a couple of
13 hours. I'm not saying that it's -- certainly enlightens your positions,
14 but there seems to be disagreement on what would be reasonable to assume
15 rather than that there is disagreement on what would be legitimate or not
16 legitimate, given certain assumptions.
17 Could you please keep this in the back of your mind for the
18 continuation of the cross-examination.
19 MR. RUSSO: Well, Mr. President, if I could just respond briefly.
20 Part of what I'm doing -- I didn't hear the Court to consider this. I'm
21 sure the witness understands, but let me just see if I can clarify. Part
22 of what I'm doing is attempting to demonstrate to the Trial Chamber and
23 point out to the witness the fact that the assumptions and facts which he
24 bases his opinion on and from which he draws inferences favourable to
25 General Gotovina, that those same facts and assumptions, the ones I'm
1 pointing out as a matter of fact, are not inconsistent with the
2 Prosecution's theory of the evidence.
3 JUDGE ORIE: That's perfectly clear that that's what you're
4 seeking to establish.
5 Please proceed.
6 MR. RUSSO: Thank you.
7 Q. Professor, you were not provided with any information regarding
8 the rate of fire, of artillery fire, on Knin throughout the course of the
9 day on the 4th of August. You were told to assume a surge during the
10 morning. If at times during the day on the 4th of August the rate of
11 fire was as low as four to five rounds per hour falling somewhere in the
12 town, can you explain in your opinion what military advantage
13 General Gotovina could expect to achieve from that?
14 A. It was maybe somewhat ironic that as I was contemplating writing
15 this report, I happened to be in Buenos Aires and visited the
16 Malvinas memorial and was reminded of a conflict that I had done some
17 significant study on earlier in my military career, the Falklands which
18 is referenced in the report as a historical analogy.
19 I think, as I stated in the report, that the purpose of that
20 sporadic fire was harassment and interdiction. It was connected to the
21 general's operational objective of demonstrating his full-spectrum
22 control over the fight, preserving the initiative, denying the enemy
23 initiative. These are effects that are identified at the very beginning
24 of Colonel Konings report, and these are the classic purposes of
25 artillery. What I thought was so interesting - and I placed this in the
1 report for this reason, and again this is my opinion - is that was the
2 analogy between the priority of effort at the tactical point of attack
3 but the need to disrupt enemy C3I logistics and manoeuvre in the rear
4 area between Storm and the battle -- the final phase of the Falklands
5 battle and the ammunition supply realities. Most people don't know that
6 when General Menendez capitulated, the British howitzers were down to
7 approximately two rounds per two.
8 One of the assumptions that I based this opinion on, or two of
9 the assumptions, the first was that the priority of effort was the
10 tactical fight for fire support, organic fire support; the second was
11 that the general had a limited supply of ammunition for his fire support
12 assets. And so the pattern of employment once again, in my view, is
13 consistent with a priority of effort to support the close fight. You
14 surge your artillery at the time of day or at the point in time where
15 your need to blind the enemy and fix the enemy is at its highest. And as
16 I -- and you and I -- and the other assumption was that he didn't have
17 unlimited resources and, therefore, at other points in the battle, other
18 times of the battle, he has to use sporadic fire to keep the enemy fixed,
19 disoriented, essentially off balance. And I think that could explain
20 reasonably that employment pattern.
21 Q. Now, in regard to the number of civilians in Knin, we've already
22 talked a little bit about that. But I want to be clear about the
23 assumptions upon which you based your report. Page 28 in your report,
24 the top of the page, subsection (a), the assumption you relied on is:
25 "Although Knin may have had a population of up to 15.000, there
1 were indications that the number of non-mobilised civilians remaining in
2 Knin on the eve of Operation Storm was as low as 3.000."
3 Now, Professor, I'd like your clarification on this because it --
4 at least it occurred to me that the use of qualifying words and phrases
5 like "may have had indications as low as" seem to suggest no real degree
6 of certainty. So I'd like your assumption. Did you assume there were
7 about 3.000, or somewhere between 3 and 15.000?
8 A. No, I didn't assume factually that the actual numbers -- it's --
9 the lead-in to that is that General Gotovina, in making this judgement,
10 it is probable that General Gotovina considered the following facts
11 related to the situation. What I assumed was that if the general had a
12 report that the population had been reduced to about 3.000, he probably
13 wouldn't have said or thought, That is absolutely accurate. A commander
14 in his position I believe has learned through experience that ground
15 truth is rarely exactly consistent with reports. I mean, this goes back
16 to the discussion yesterday on the order to relocate the headquarters.
17 But he reasonably, based on this report, in my view, could have
18 considered that the population, the civilian population, had in fact been
19 substantially reduced, and we had the discussion about the curfew already
20 and the specific time it ended, but that as a result of the conflict and
21 the timing of the curfew, that there might be a residual benefit from
22 that in terms of the location of that population when he initiates his
24 So it was what I believed would have influenced his
25 decision-making that I considered, not whether or not that was factually
2 Q. Well, Professor, given the importance that you rightly place on
3 the concentration of civilians in and around the objectives to be
4 attacked, did you seek any specific information from the Gotovina Defence
5 about, first of all, the efforts that General Gotovina made to determine
6 what the concentration of civilians actually was?
7 A. What I asked the Defence to provide was the information that they
8 believed was supported by the record related to what the general would
9 have known at the time. And obviously -- well, maybe not obviously. I
10 withdraw that. And because I am being asked to render an opinion that is
11 going to turn significantly on applicability of the proportionality rule,
12 one of the facts or assumptions that I expect to be given information
13 about is the population as he -- evidence of the population that was
14 available to him.
15 I did -- the answer to you is: No, I did not ask them what he
16 had done to verify that because that was the assumption I was given, that
17 he was made aware of this information. And he -- my understanding of the
18 anticipation of how the law works is that a commander - I've said this
19 before - a commander relies on the members of the staff responsible for
20 providing information on targets, on the civilian population. In fact,
21 this is referenced in the -- again, in the commentary to AP I, to
22 Article 51, rarely will a commander have the opportunity to personally
23 verify all the facts and assumptions provided by the staff. So what was
24 important to me was what the Defence, as best the Defence could offer me,
25 what the record had established in terms of information that would affect
1 his decision-making process at that time.
2 JUDGE ORIE: Can we shorten this discussion a bit. I fully
3 understand your testimony. You say these and these reasons, a reasonable
4 commander would have considered. Now, I put it very bluntly in the other
5 direction to say, Well, I know that there were 15.000, there's still
6 3.000 left, so therefore I have to use artillery to drive them out. I
7 mean, would this information be consistent with such an approach if, of
8 course just for argument's sake, that was what the commander had on his
10 THE WITNESS: I think if that was his intent, then certainly,
11 that could be a use of artillery.
12 JUDGE ORIE: Yes. The same for the curfew hours, to say if we
13 want to drive them out, let's use artillery just at the time they get up
14 and know they have to leave, we stop after that so they can leave.
15 THE WITNESS: I --
16 JUDGE ORIE: Of course it's very cynical what I'm doing, but I'm
17 trying to find out --
18 THE WITNESS: Yes, Your Honour.
19 JUDGE ORIE: -- what keeps us busy for such a long time on
20 fitting facts, assumed facts, in one theory or another.
21 THE WITNESS: I think that could be an illicit calculus of
22 course. As I stated in the report, Your Honour, I think that there would
23 be other optimum times to use artillery, but, yes, if he anticipated that
24 he was trying to demonstrate -- or if his intent was to demonstrate: The
25 minute you get up, you're going to be fired at, then you could say that
1 that would be rationally consistent with that illicit purpose.
2 JUDGE ORIE: Yes. So, therefore, we are again in the situation I
3 described before. Not to say that it's totally useless, but I think we
4 could do that more quickly.
5 Mr. Russo, please proceed.
6 MR. RUSSO: Thank you, Mr. President.
7 Q. Professor, I'd now like to discuss your analysis and opinions
8 relating to the alleged military objectives identified for you by the
9 Gotovina Defence. And I'd like to begin with the shelling of
11 beginning of your answer to question 1 in the addendum. The last
12 sentence of the first paragraph you specifically mention relying on
13 General Gotovina's operative assumption that:
14 "Pressuring or, if possible, eliminating Milan Martic could
15 drastically influence the decision-making process of the RSK and ARSK
16 leadership and potentially force capitulation quickly and with less
17 military and civilian casualties."
18 Now, I want to parse this out because it seems to me to contain
19 two distinct military advantages, that is: Number one, pressuring
20 Milan Martic; number two, eliminating him. First, would you agree that
21 if General Gotovina engaged in the artillery attack against Milan Martic,
22 only with the objective of killing him or injuring him, would you agree
23 that that would not be a proportional use of artillery?
24 A. I don't know that I have enough expertise on the effect -- the
25 capability of a 130-millimetre barrage on that building and the nature of
1 the building to answer that conclusively. I think it would depend on the
2 assessment General Gotovina was given by his fire support experts as to
3 the relative probability or improbability of achieving that effect. And
4 the importance of that effect in his view as it related to the
5 operational situation.
6 Q. Thank you, Professor. Moving to the other military advantage of
7 possibly pressuring him, I'd like your assistance in understanding your
8 position on this. Do I have to understand that you believe
9 General Gotovina was justified in deciding that an artillery attack aimed
10 at Milan Martic would produce the military advantage of potentially
11 forcing a capitulation? Is that ... ?
12 A. No, I don't think that that's an ipso facto conclusion. What I
13 think -- well, let's start. If General Gotovina thought that killing or
14 disrupting this individual's ability to participate in command and
15 control and the decision-making process of his enemy, if he thought it
16 had no significance whatsoever, then that's a low-value target. And the
17 fact that it's in a civilian building I think would render it off limits,
18 because if you don't think you're going to get value out of it -- I mean,
19 you can't say just because it's somebody connected to the military it's
20 automatically of tremendous value. My assumption is that he believed
21 that this individual was an important component in the enemy's decision
23 And this goes back to the first day. Understanding the notions
24 of initiative, tempo, dictating the terms of the battle. If he believed
25 that this individual was an important component in that decision-making
1 process of the enemy, then disrupting this individual's ability to
2 perform that function might and probably would contribute to the
3 uncertainty, the confusion, and hopefully the paralysis of the enemy's
4 command and control structure. That disrupts the enemy, denies them
5 initiative, and protects the initiative that he's attempting to establish
6 in order to set and dictate the terms of the fight.
7 So that's what I meant by "pressure." In my view, if you destroy
8 communications and this individual is in a building some distance from
9 the command and control centre and is unwilling or unable to physically
10 make himself present, it has an effect on his subordinates even if he's
11 not killed, even if they suspect he might have been killed, that produces
12 an effect; and that effect, the value of that effect, is directly linked
13 to the anticipated role this individual plays in that enemy
14 decision-making cycle.
15 Q. Well, Professor, at section 4 of your addendum, that's at page
16 10, you state:
17 "The advantage gained by targeting a place or thing must be
18 'definite.' Again, the purpose of this qualifier was to prevent
19 unfounded speculation or conjecture on the value of targeting a place or
20 thing would produce. However, no commander can know with absolute
21 certainty what the value to be gained -- the value to be gained from
22 attacking a target. What the 'definite' qualifier is intended to prevent
23 is general speculation on some attenuated value of target engagement. So
24 long as the commander acts with a good-faith basis that the target
25 engagement will produce a tangible, operational, or tactical advantage
1 for his force, the qualifier is satisfied."
2 Now, Professor, under your own interpretation General Gotovina
3 had to have a good-faith basis that an artillery attack on Milan Martic
4 would produce a tangible advantage; not that it could, that it would.
5 And if there's an admittedly potential advantage in influencing him, what
6 I'm having trouble understanding is how you can say that firing artillery
7 at Milan Martic could push the RSK towards capitulation, but, you would
8 agree with me, it could also push them towards retaliation. And it's
9 that possibility that he can't know and it's that possibility that runs
10 afoul of his requirement to use that weapon only when he will anticipate
11 a direct and tangible military advantage?
12 A. I disagree with your interpretation of the law and what it
13 requires. The discussion of the -- in the commentary that explains that
14 definite military advantage is designed to eliminate rendering or
15 justifying an attack based on speculation or conjecture relates to the
16 equation of: If I can produce this effect, do I have a good-faith basis
17 to believe that it will contribute, make a substantial or actual
18 contribution to my effort?
19 I think it is almost inevitable that when a commander decides on
20 attacking a place or a thing or even enemy forces, there's always the
21 possibility that it will have an effect that was not anticipated. For
22 example, if you're attacking an enemy and you destroy a bridge in order
23 to prevent the enemy from receiving reinforcements, you may, in fact,
24 produce an outcome where the defending enemy that's isolated becomes more
25 determined to defend himself because he has no escape route. And that's
1 always a risk in warfare.
2 In my view, what Article 51 requires is a good-faith assessment
3 of the connection between the anticipated effect and the operational
4 effort that you're connecting it to. To me, speculation would be
5 something more like this in this context: You know based on your
6 intelligence that although this person is the titular head of the armed
7 forces, he plays no significant role whatsoever in the planning,
8 execution, adjustment of the enemy's operations, but you say, But who
9 knows, maybe if I confuse him or I kill him, one of the enemy commanders
10 might be disturbed by that and that might confuse the situation for a
11 while and I achieve an effect. To me, that's speculative.
12 JUDGE ORIE: Could I interrupt you again. I understand your
13 answer to be the rule is about avoiding pure speculation as to the
14 military effect. There is a range between pure speculation and
15 hundred per cent certainty, somewhere in between, not on the speculation
16 side, but also the rule does not require the certainty, certainly not.
17 And then Mr. Russo introduces, as far as the military effect is
18 concerned, a rather difficult element. That is, if the military effect
19 depends on other people making decision on the basis of that - so I'm not
20 talking about destruction of a bridge, I'm not talking about killing an
21 enemy, I'm not talking about hitting a tank so that it can't move
22 anymore - but if you -- the military effect depends on human
23 decision-making in response to that, then we have -- I think for examples
24 we have another day or two or three to see how that could work out under
25 all kind of circumstances. It could be that they immediately capitulate.
1 It could be that they would seek the support of ten other nations to
2 fight against the Croats.
3 That's on this scale. Mr. Russo, it's clear that we are dealing
4 with this scale and that humane -- human decision-making may make it very
5 difficult to assess where exactly we are on that scale because it needs
6 further assumptions. Human decision-making is usually a bit
7 unpredictable, although some experience we may have that can give us some
8 guidance in what to expect, and that makes the military effect moving a
9 bit from pure speculation to the certainty. That's clear. We're on the
10 abstract level.
11 Would you agree with that?
12 THE WITNESS: Absolutely, Your Honour.
13 JUDGE ORIE: Would you agree with that as well, Mr. Russo?
14 MR. RUSSO: Sure, Mr. President.
15 JUDGE ORIE: I don't think I -- yes, yes, I -- well, then it
16 seems that you agree on these matters. Let's move to the next subject.
17 Mr. Russo, I can imagine that, of course, was Mr. Martic at home?
18 Could the attack been televised so as to influence decision-making in the
19 field? Would -- I mean, I could give you a list of 20, 30, if not 40
20 assumptions which could have an impact, big impact, small impact on how
21 to look at this matter. But we know what the witness knew because he has
22 written this down. We have still a bit of a grey area the discussions he
23 had for the Defence team, which we have no detailed information about.
24 So we could go on with this for another hour or two hours easily. But
25 whether that would assist the Chamber is - should I say - speculative or
1 uncertain, or where would it be on the range whether it would assist or
2 not assist the Chamber? Rather low.
3 Please proceed.
4 MR. RUSSO: Thank you, Mr. President. I'm afraid the Court's
5 being a bit cynical about my examination. It was not my intention to put
6 to the witness all number of scenarios regarding the possibility. I
7 simply wanted his explanation of where the admitted uncertainty in the
8 effect, how that factored into his analysis. We now have his answer, so
9 I'll move on. I'm sorry --
10 THE WITNESS: With all due respect, Your Honour, I don't think I
11 answered that portion of the question. I mean, if --
12 JUDGE ORIE: Yes, I'm -- I've tried to establish now a couple of
13 times that the disagreement may lie in an area where finally the witness
14 couldn't help us out because that is the solidity of the assumptions,
15 further details of assumptions, facts. So therefore, I'm not saying it's
16 useless to establish that there are -- could be different opinions if we
17 would know everything about certain matters, but that can be established
18 more quickly, I would say.
19 And I'm also addressing you, Professor Corn.
20 THE WITNESS: Yes, Your Honour.
21 JUDGE ORIE: To see where the real disagreement lies, where the
22 expertise of the witness brings us into a direction which is
23 substantially different from the Prosecution's position, and where it
24 seems that the primary focus may be in fitting events into what a
25 reasonable commander would have done opposite to what apparently your
1 focus is, Mr. Russo, how the events fit in if the commander had a
2 different agenda.
3 MR. RUSSO:
4 Q. Professor Corn, let me give you an opportunity to address my last
5 comment to Judge Orie.
6 A. Well, I just want to make it clear that, obviously, I believe the
7 anticipated effects are part of the equation. That's why I say the
8 commander has to decide whether or not -- if he can achieve the effect he
9 seeks to achieve, will it offer a definite military advantage? And
10 weaponeering is part of that process, the selection of the means to
11 achieve the effect. So I do believe that he has to consider whether the
12 capability he proposes, or that has been proposed for use against the
13 target, could achieve the effect he desires to achieve. If he's told,
14 This cannot achieve the effect you want to achieve, then he's got no --
15 he knows there's no anticipated military advantage.
16 Q. Professor, you're aware from reviewing Brigadier Rajcic's
17 testimony that during the course of combat activities the HV fired the
18 130-millimetre cannons at other places where, according to their
19 intelligence, they believed Martic to be present. Do you recall that?
20 A. I think I recall that, yes.
21 Q. And let me just give you a few specifics from Rajcic's testimony.
22 He gave as one example --
23 JUDGE ORIE: Mr. Russo, could you guide us to the relevant pages.
24 MR. RUSSO: My apologies, Mr. President. This discussion is at
25 transcript page 16394 and goes on to 398.
1 Q. Now, Mr. Rajcic gave as one example of this one particular place
2 where this happened, a building known as the old hospital in the
3 down-town area. He testified that it was a sudden target which emerged
4 during the course of combat and which had not been planned. He testified
5 that this happened during the highest intensity of the combat, that he
6 was provided by an intelligence official the X, Y, and Z coordinates of a
7 location with the word "Martic" next to it. And he was told that it was
8 a building, and on that basis he proceeded to fire.
9 Now, Professor, I'd like your opinion about the propriety of
10 essentially targeting any area where Martic happens to run into during
11 the artillery attack.
12 MR. KEHOE: If I may, Mr. President. I think in the spirit of
13 completeness, I do believe that the Prosecution has charged this facility
14 as a police facility in their indictment of Martic. I think that was
15 part of our discussions concerning the stipulation on Martic, that this
16 old hospital facility in the Martic indictment was alleged to be a police
17 facility and that we had some discussion about that.
18 If I am incorrect, counsel, please let me know, but I think
19 that's the case.
20 MR. RUSSO: First of all, Mr. President, I object to informing
21 the witness of what Mr. Kehoe believes the stipulation to have been. It
22 also doesn't -- let me finish. It also doesn't, first of all, have
23 anything to do with the question I asked. I'm also not sure, because I
24 don't have the stipulation in front of me, whether that applies to the
25 time-period, the 4th of August, that we're discussing. But in any case,
1 it doesn't really apply to the question that I'm asking.
2 JUDGE ORIE: Mr. Kehoe.
3 MR. KEHOE: Well, in the full spectrum of information to be given
4 in a hypothetical, I would think that the Prosecution wants to give the
5 full explanation of what this building is based on their prior
6 statements --
7 JUDGE ORIE: Mr. Kehoe, what the Prosecution wants to do is for
8 the Prosecution to decide. If you consider that they have given
9 incomplete information, of course you can add this to the information and
10 see whether that changes the opinion of the expert. I think it would
11 have been a matter appropriately be dealt with in re-examination.
12 Mr. Russo, please proceed.
13 MR. RUSSO:
14 Q. Professor, would you like me to re-ask the question?
15 A. No. First off, once again, Your Honour, I would like to
16 emphasise that my -- I was asked to render an opinion on the propriety or
17 reasonableness of General Gotovina's decision-making process, not
18 Marko Rajcic's. If you give me a hypothetical where a military commander
19 or officer, responsible -- staff officer responsible for ordering an
20 attack knows that an individual has gone into a hospital, an active
21 hospital, I don't care if it's the president of the country or the
22 commanding general of the enemy armed forces, that does not render the
23 hospital a lawful military objective. So if that officer or
24 decision-maker says, Well, look, we've been ordered to kill or injure
25 X person, Martic, and he's in a hospital now so that means we can attack
1 the hospital, I think that's illicit. But I think it does relate back to
2 the expectation that a superior commander has legitimately -- that
3 subordinates will execute orders consistently with the law.
4 Now, there are other variables, and I'm sure the Tribunal knows
5 this. If the enemy is misusing the hospital as a military objective,
6 then the law requires a warning to the enemy to cease and desist unless
7 the situation is so immediate that a warning would jeopardise the
8 friendly forces. I don't see that as the hypothetical presented. But if
9 General Gotovina identified the enemy Commander-in-Chief as a high-value
10 target and tasked his subordinate elements to act on that designation, he
11 should reasonably anticipate that they're not going to attack a hospital
12 in order to achieve that effect.
13 Q. Professor, it's my fault. I didn't mean to suggest that this was
14 an active hospital that Martic ran into. Let me just --
15 JUDGE ORIE: Now we have on the basis of the word "hospital,"
16 "stara bolnica," we've now spent quite a while in court.
17 Of course, Mr. Russo, you said a building known by the name
18 "old hospital." This created the whole of the confusion.
19 What apparently Mr. Russo wants to ask you is how -- what your
20 opinion is about legitimacy of when you receive information, Mr. Martic
21 is here, Mr. Martic is there, Mr. Martic is there, to just attack all
22 those positions. That's what you intended to -- yes.
23 Now, Mr. Russo, when Mr. Kehoe made his objection, you could have
24 intervened and you could have taken away the problem by just rephrasing
25 your question; that would have saved us quite a bit of time.
1 Please proceed.
2 And perhaps you could answer that question, because I understood
3 your question, Mr. Russo?
4 MR. RUSSO: Yes, Your Honour.
5 JUDGE ORIE: Yes, please proceed.
6 THE WITNESS: And the situation is obvious, the hypothetical
7 obviously presents a very difficult situation. You're talking about
8 actionable intelligence that -- that one of the highest-value targets on
9 the commander's priority target list has been located in an extremely
10 time-sensitive situation. I believe what the law requires of the
11 subordinate commander executing the mission is to do his level best,
12 acting in good faith, based on the information that's available to assess
13 the risk of collateral damage or incidental injury.
14 I think if I were in that situation I would presume that whatever
15 building he went into, unless I was told he's in a military building, I
16 would presume that the attack would be inevitable, there would be -- it
17 would be inevitable that there could be civilian collateral damage or
18 incidental injury. I -- if you don't have actual knowledge but you know
19 it's a populated area and you know he's not a military building, I think
20 you almost have to presume that. And therefore, to me the question will
21 be: What type of building did he go into? How much do we know about the
22 building? And how does that influence our judgement based on our known
23 value of achieving the effect? And then the next element is: How much
24 damage are we going to have to inflict to attempt to achieve the effect?
25 MR. RUSSO:
1 Q. Thank you, Professor. I'd like your help in explaining -- I
2 understand that this is clearly a difficult hypothetical, it's a
3 difficult situation, but if the subordinate commanders you indicate - and
4 granted this is happening during the course of combat - if the
5 subordinate commander doesn't possess the information, you indicate that
6 he needs to assume -- or at least you would assume that there would be
7 civilian collateral injury. But if he doesn't know, for example, how
8 many people are in the building, how can he actually conduct the
9 proportionality analysis? Because he doesn't know how much incidental or
10 collateral damage it may cause.
11 A. In my opinion, the law requires him to make a good-faith
12 judgement based on the information available. The better your
13 information, the more -- the better your judgement's going to be. I
14 mean, we know this. This hypothetical is analogous to the efforts the
15 United States made to kill Saddam Hussein during Operation Iraqi Freedom.
16 He moved around from area to area; the commander had his best estimates
17 of the civilian population; the US
18 on exceptionally capable collection means. If he had ignored his
19 opportunity to gather that information, he would have been derelict.
20 I think -- my point is that the commander has to make a judgement
21 in the heat of battle based on the best evidence he has, and he also has
22 to consider, once again, timing, location, what is the pattern of
23 civilian behaviour that he knows about as the Court indicated on the
24 first day? If this commander is aware that the pattern of behaviour is
25 the minute the curfew ends everybody is out in the street, that is a
1 significant element in the critique of his judgement process. But if
2 you're asking me do I think that a commander must have absolute certainty
3 or close to it on the ground situation before authorising an attack, I
4 think the answer to that is no. He has to act on his best effort to
5 obtain information and the best information he's able to obtain.
6 MR. RUSSO: Mr. President, I'll be moving on to a new area. It's
7 probably a good time for a break.
8 JUDGE ORIE: Yes.
9 I noticed that Mr. Waespi took the role Mr. Misetic has on the
10 Gotovina team, that is, to see that we wait until the translation has
11 finished. At the same time, I would rather avoid the need of such a
12 traffic policeman on either side. So if we could slow down that would
13 certainly assist the interpreters, and it might even improve the quality,
14 to the extent possible, of transcript and translation.
15 Mr. Kehoe.
16 MR. KEHOE: Mr. President, I just have an oral motion. I could
17 do it outside the presence of the witness.
18 JUDGE ORIE: Yes.
19 MR. KEHOE: I could do it just before we come back. I can do it
20 whenever Your Honour pleases.
21 JUDGE ORIE: Then I would ask Madam Usher to escort the witness
22 out of the courtroom and for you to proceed, Mr. Kehoe.
23 [The witness stands down]
24 MR. KEHOE: Trust me, Mr. President, this will be very brief.
25 Mr. President, I address myself to the adjudicated facts in the Martic
1 case by the Trial Chamber of the Martic case and addressing myself again
2 to paragraphs 20 -- excuse me, 285 to 294, and we ask the Court under
3 Rule 94 (B) to take judicial notice of the fact that the Trial Chamber in
4 Martic ruled that the old hospital in Knin was, in fact, a police -- RSK
5 police facility and that would be our motion. Thank you.
6 JUDGE ORIE: Mr. Russo.
7 MR. RUSSO: Mr. President, I'd like the proper amount of time to
8 respond to the motion. I don't need 14 days. I just need to go have a
9 look at that. I don't think it's going to be a problem, but I don't want
10 to do it right now.
11 JUDGE ORIE: Yes, would the break be enough? Because I take it
12 that Mr. Kehoe considers a decision relevant for the examination of this
14 MR. RUSSO: Yes, Mr. President.
15 JUDGE ORIE: Then -- Mr. Kehoe, your reference to paragraphs 285
16 to 294, is that the --
17 MR. KEHOE: It's the Trial Chamber's decision, Mr. President --
18 excuse me, Trial Chamber's judgement.
19 JUDGE ORIE: Yes. Trial Chamber's judgement, and did they adopt
20 adjudicated facts or want you -- or are you seeking this Chamber to
21 adopt --
22 MR. KEHOE: Yes.
23 JUDGE ORIE: -- from the trial judgement the facts, adopting them
24 as adjudicated facts, in the Martic trial?
25 MR. KEHOE: Mr. President, as taking judicial notice, I would ask
1 this Chamber to adopt the adjudicated facts by the Martic Trial Chamber
2 pursuant to Rule 94 (B).
3 JUDGE ORIE: Yes, it was a bit unclear --
4 MR. KEHOE: Sorry.
5 JUDGE ORIE: -- whether the Martic Chamber adopted them as
6 adjudicated facts or whether you wanted this Chamber to adopt them as
7 adjudicated facts, that is, adjudicated by the Martic Chamber.
8 We'll have a look at it, and we'll -- before we decide, we'll
9 hear from Mr. Russo.
10 We'll have a break, and we'll resume at five minutes to 11.00.
11 --- Recess taken at 10.30 a.m.
12 --- On resuming at 11.03 a.m.
13 JUDGE ORIE: Mr. Russo, have you verified the Martic transcript
14 or the Martic judgement?
15 MR. RUSSO: Mr. President, we've had a look at the paragraphs
16 indicated by Mr. Kehoe. We do not agree with the fact that he proposes,
17 that being transcript page 32, lines 22 to 24, the fact that the
18 Trial Chamber in Martic ruled that the old hospital in Knin was, in fact,
19 a police -- RSK police facility.
20 JUDGE ORIE: Okay. Since I was in a meeting during the break,
21 I'll now on the spot verify what we're talking about.
22 Is there any way that you try to stipulate -- is it the
23 formulation, or is it the substance?
24 MR. RUSSO: It's a bit of both, Mr. President. If we changed it
25 to -- it was an RSK detention facility between 1991 and 1992, we have no
1 objection to that.
2 JUDGE ORIE: Then I take it, Mr. Kehoe, that you wanted us to
3 take judicial notice of a fact contained in the Martic trial judgement?
4 MR. KEHOE: Yes, Mr. President.
5 JUDGE ORIE: Yes. Then -- now let me just ...
6 Then we have to find in the Martic judgement.
7 Mr. Corn, this will take us a few seconds to get to the right
8 document and to see. Loading takes a few seconds.
9 Mr. Kehoe, I have in front of me an electronic version of the
10 judgement, 12th of June, 2007, and you wanted us to take judicial notice
11 from paragraphs 285 to 294, is that --
12 MR. KEHOE: That's correct, Mr. President.
13 JUDGE ORIE: Let's then have a look. And what ...
14 MR. KEHOE: Mr. President, it's on Sanction, if we --
15 JUDGE ORIE: Well, I've got it in front of me at this moment.
16 What fact exactly would you like us to take judicial notice of and what
17 paragraph can we find it?
18 MR. KEHOE: It is -- the paragraphs would be the totality of the
19 285 to 294, and the position we would like to take judicial notice of is
20 that this facility, this detention facility that was contained in the old
21 hospital was, in fact, a detention facility run by the Ministry of
23 If I can turn in addition to these paragraphs to paragraph 414 --
24 JUDGE ORIE: No, if -- I would first like to find exactly -- I'm
25 now at 285. Where is for the first time a section of - let me just have
1 a look --
2 MR. KEHOE: The first sentence in --
3 JUDGE ORIE: Yes.
4 MR. KEHOE: -- paragraph 285 designates the old hospital in the
5 centre of Knin.
6 JUDGE ORIE: Yes. And there it says:
7 "From the summer of 1991, the Ministry of Justice of the SAO
8 Krajina took over control ..." and then in "... 1992, the Assembly of the
9 RSK formally established the District Prison in Knin."
10 Now, apparently there's some concern with Mr. Russo that this was
11 not forever.
12 Mr. Russo, could we see, is there any way to find out that it was
13 limited to a certain period in time or --
14 MR. RUSSO: Well, Mr. President, the paragraphs pointed out by
15 Mr. Kehoe, read them, they only indicate the 1991 to the 1992 time-frame.
16 In respect of the evidence in our case as to what the use of that
17 building was, I'll refer the Trial Chamber to the evidence of Witness 56,
18 whose testimony through 92 ter Exhibit P289 under seal, indicates what
19 the -- this particular facility was used for.
20 JUDGE ORIE: Yes.
21 Now, in the context of adopting adjudicated facts, the Chamber is
22 not in a position to start comparing what evidence there is in this case.
23 Mr. Kehoe, the objection is that the Martic judgement is
24 insufficiently precise, unspecific, as to whether that function of the
25 old hospital still did exist in 1995. What is your response to that?
1 MR. KEHOE: My response to that, Judge, is the following, and I
2 would like to include to the summary paragraph 414 that I omitted before.
3 JUDGE ORIE: Yes.
4 MR. KEHOE: My response to that, Judge, is number one,
5 Your Honours can take those facts and weigh them accordingly. We are
6 simply at this point asking the Court to take judicial notice of those
7 facts in the Martic judgement.
8 He we would be more than willing to argue how this plays into
9 what a reasonable commander might have expected or would have or could
10 have expected this facility to be used for at the operative time-frame.
11 Putting aside that it wasn't. We all agree that it wasn't a hospital.
12 So at this point we're not looking for a stipulation, we're not
13 asking for a stipulation from the Prosecution; we're just asking the
14 Chamber to take judicial notice of these adjudicated facts, and we will
15 argue the weight to be accorded them and what the significance of those
16 facts are when we move to final argument.
17 JUDGE ORIE: Yes. Now the Prosecution has presented its case.
18 Adjudicated facts are serving a party to be relieved from its duty to
19 present evidence on a certain matter. Now, apparently this is a fact
20 which would -- disfavourable to the Prosecution's position, whereas the
21 Prosecution has already presented its evidence. So I am trying to
22 understand how this procedurally fits into what the adoption of taking
23 judicial notice of adjudicated facts is created for. And I'm now reading
25 [Trial Chamber confers]
1 JUDGE ORIE: Mr. Kehoe, at this moment and on the basis of your
2 submissions, the Chamber cannot take judicial notice of a fact which
3 would include that the old hospital was functioning as a detention
4 facility in 1995.
5 MR. KEHOE: Mr. President, I -- at this point, and I not only ask
6 the Court to take judicial notice of that time-frame, I just ask that the
7 Court take judicial notice of the factual findings in the Martic
8 judgement, and then we will make our arguments from there.
9 JUDGE ORIE: Mr. Kehoe, you know how we are dealing with
10 adjudicated facts. You clearly describe what fact you want to be
11 judicial notice taken of, and then to say exactly where to find that in
12 the judgement. And apart from -- but I take it that that would not
13 create a major problem, but of course we would have to check whether
14 there was any challenge to this fact on appeal. I do not know. I have
15 not checked whether we find anything about it in the appeals judgement.
16 I would not expect it to be, but we have to be precise in taking judicial
17 notice of facts established by other Trial Chambers. And as I said
18 before, the Trial Chamber is not at this moment in a position to take
19 judicial notice of the functioning of the "stara bolnica" in 1995 as a
20 detention facility, whereas it appears from that judgement that at an
21 earlier point in time it did function as a detention facility.
22 Mr. Russo.
23 MR. RUSSO: Mr. President, let me just clear something up. First
24 of all, we agree, at least the evidence has been presented by Witness 56,
25 that in fact in 1995 the facility was being used as a detention facility.
1 Mr. Kehoe's suggested fact was that it was an RSK police facility --
2 JUDGE ORIE: Okay, okay --
3 MR. RUSSO: So if that's the only detention facility, no problem.
4 JUDGE ORIE: I see light in the tunnel. I see light in the
5 tunnel. He we could not take judicial notice of something a witness said
6 before this Chamber, but of course you could make a stipulation.
7 Mr. Kehoe earlier said he would not seek a stipulation, but it seems that
8 there is an opening. The stipulation would be that the "stara bolnica"
9 in 1995, and may I take it in August 1995 -- any further specification as
10 far as the dates are concerned?
11 MR. KEHOE: I don't think we need any.
12 JUDGE ORIE: That is during Operation Storm -- at the beginning
13 of Operation Storm served as a detention facility for the RSK.
14 MR. RUSSO: For the RSK civilian police.
15 JUDGE ORIE: For the RSK --
16 MR. KEHOE: It actually is for the Ministry of Justice, but
17 that's an issue --
18 MR. RUSSO: I have no objection to that, Mr. President.
19 JUDGE ORIE: For the Ministry of Justice.
20 MR. KEHOE: If I may -- if I could -- I'm being pointed to
21 something on the record, if I might have one second.
22 JUDGE ORIE: Professor Corn -- well, being a lawyer, you are
23 either thrilled by it or bored by it. I'll leave that open.
24 MR. KEHOE: I'm moving around the courtroom here, Mr. President,
25 but there was further evidence by Witness 56 under seal on page 3606 --
1 JUDGE ORIE: We can't deal with evidence under seal.
2 What about, Mr. Russo, is it at this very moment that relevant?
3 Because we earlier established that you were mainly aiming at Mr. Martic
4 being around, and then the word "hospital" was used. That triggered
5 Mr. Kehoe to get on his feet and to say that the hospital was, in
6 reality, a detention facility. Then you're not happy with his
7 intervention. Then Mr. Kehoe pursued the matter by asking us to take
8 judicial notice of. It's clear that we can't take judicial notice of. I
9 now ask myself: How relevant is it for the remaining part of the
11 MR. RUSSO: Mr. President, I'm not going to be continuing on with
12 questions about that particular facility.
13 JUDGE ORIE: Okay.
14 MR. RUSSO: I have no objection if Mr. Kehoe wants to give an
15 assumed fact based on detention facility or anything that he wants to
16 formulate his assumption on. I'm not going to be objecting to an assumed
17 fact he provides.
18 JUDGE ORIE: Okay. And then during the next break if you really
19 feel that there's any relevance in it, you'll certainly sit together and
20 find out exactly what to stipulate upon.
21 Let's move to the questions you would like to ask to Mr. Corn.
22 Mr. Kehoe, may I take it that the motion to take judicial notice
23 of, that that is --
24 MR. KEHOE: I understand, Mr. President, I will --
25 JUDGE ORIE: It's withdrawn?
1 MR. KEHOE: Yes, it's withdrawn.
2 JUDGE ORIE: The oral motion is withdrawn.
3 Please proceed, Mr. Russo.
4 MR. RUSSO: Thank you, Mr. President.
5 Q. Professor, moving now to question 3 in your addendum, which
6 appears at page 31, and this is where you discuss the reasonableness of
7 General Gotovina's decision to order artillery fire on some of the
8 alleged military objectives in Knin. And I'd like to begin with the
9 ARSK HQ, and you state:
10 "While it would be unlikely MBRLs would achieve a 'destructive'
11 effect, their use against this target is understandable. The area
12 effects of this weapon ... could have been relied on to degrade C3I by
13 destroying communications antennas, cables, and equipment."
14 Professor, first, you were not provided with any information or
15 assumptions about communications antennas, cables, or equipment being
16 exposed outside the ARSK HQ, so that's an assumption that you added on in
17 addition to what you were provided with; correct?
18 A. Yes.
19 Q. And given your acknowledgement that MBRLs are area weapon systems
20 and Brigadier Rajcic's testimony about the concern of using those in a
21 civilian neighbourhood, why is it that you say they could be relied on to
22 strike a point target like a cable?
23 A. In my initial report I was asked directly the question as to
24 whether use of a multiple-launch rocket capability would be essentially
25 per se improper in a populated area. I'm responding essentially to a
1 broad opinion in Colonel Konings' report. I noted then that in the
2 abstract the use of a multiple rocket capability in a populated area
3 would seem to raise concern because it is fundamentally an area-denial or
4 destruction or disruption asset. And Colonel Konings notes this in his
5 discussion of different types of artillery assets. But I went on to
6 note, in a manner I believe is consistent with the commentary to
7 Article 51, that virtually no weapon system is per se unlawful under the
8 prohibition against indiscriminate attack, and that in the vast majority
9 of situations it's much more significant how the means is employed, what
10 effect it seems to achieve, than it is to focus on the system itself.
11 And that's a paraphrase from the ICRC commentary to Article 51, which
12 goes on to say the concern about weapons that are per se indiscriminate
13 during the drafting of the treaty focused on means of warfare such as the
14 use of fire, flooding, and even nuclear weapons, that type of extreme.
15 So I had to ask myself in responding, essentially, to
16 Colonel Konings' initial conclusion: How could use of an area system
17 like a multiple-launch rocket be reasonably justified in this scenario?
18 Now, I -- you asked me just before this, did I assume that connected to a
19 headquarters are vulnerabilities of communications capability, antennas,
20 wires, communications rigs. I did assume that. I think any reasonable
21 intelligence officer would make an analogous assumption.
22 Now, you're absolutely correct, I wasn't provided a fact or
23 assumption that said the intelligence officer for the general knew that
24 as a fact or didn't know that as a fact. So I am treating this the way I
25 believe a reasonable officer, reasonable commander, would have treated
1 the target. With the limitations on ammunition re-supply, the priority
2 of effort to support the close battle and the effect, desired effect, of
3 disruption of C3I, I believe it would have been reasonable to assess a
4 potential vulnerability to that C3I capability that could be exploited by
5 the use of a multiple-launch rocket. That rocket can destroy antenna
6 equipment. It can destroy cables. It can destroy vehicles that support
7 that equipment. It can destroy un -- less-than-hardened facilities that
8 support that C2 function. It has other effects as well.
9 If you are effective in achieving those destructions, then the
10 enemy is going to have to try and restore that capability. You have
11 demonstrated to enemy personnel your ability to affect the area of the
12 headquarters. That might reduce or degrade the effectiveness of any
13 restoration effort. And you can even go one step further --
14 JUDGE ORIE: Mr. -- Professor Corn, you've given some reasons why
15 you could use it. I'm certain that you could give us --
16 THE WITNESS: Yes, Your Honour.
17 JUDGE ORIE: -- another 20 or 30 or 40.
18 I don't know, Mr. Russo, whether you're interested to hear all of
20 THE WITNESS: That's why I believe it could be a reasonable use,
21 Your Honour.
22 JUDGE ORIE: Yes.
23 MR. RUSSO:
24 Q. Well, Professor, my question was actually a bit more focused than
25 that. Given what you know about Rajcic's testimony, that not even the
1 130-millimetre cannons could be directed only at the ARSK HQ building and
2 that the MBRLs --
3 MR. KEHOE: Excuse me, Mr. President, I would ask for a specific
4 reference in the transcript where Mr. Rajcic said that.
5 JUDGE ORIE: Mr. Russo.
6 MR. RUSSO: If I could have a moment, Your Honour.
7 JUDGE ORIE: Mr. Russo, I understood a moment to be a short time.
8 MR. RUSSO: Yes, Mr. President, I believe I almost have it here.
9 Just ...
10 JUDGE ORIE: Are you already on a day so that we could ...
11 MR. RUSSO: I'm actually checking my earlier examination because
12 I did, in fact, have the citation.
13 Mr. President, if we turn to -- my apologies. One second.
14 If we look at transcript page 16284, lines 11 through 15.
15 "Q. And with respect to those two targets, the Main Staff of the
16 RSK, and the communications centre, were the 130-millimetre guns and
17 122-millimetre rocket systems, were they capable of being fired at those
18 targets and only hitting those targets and nothing else around them?
19 "A. No."
20 Q. Now back to my question, Professor. If Brigadier Rajcic says if
21 you fire 130-millimetre cannon, 122-millimetre rockets at the building,
22 they're not only going to hit the building, they are going to hit things
23 around them, how then can you say the rockets can be relied on to hit a
24 cable which may be coming out of that building?
25 A. Because you don't fire the rocket to -- for the rocket to -- the
1 tip of the rocket to hit the cable. I would refer you back to
2 Colonel Konings' report and his discussion on rockets and their effects.
3 Rockets normally contain sub-munitions. That's why it's referred to as
4 an area-denial or attack capability. You fire the rocket to an area, the
5 salvo, on the expectation that the effect of the rockets will damage or
6 destroy those aspects of the enemy's capability that are vulnerable to
7 that blast effect. And this is -- this is in the doctrinal recitation
8 from Colonel Konings' report. On page 11 he notes:
9 "They," rockets, "tend to provide a high rate of fire, yet find
10 difficulty in supplying and loading their munitions to match potential
11 consumption" --
12 JUDGE ORIE: Mr. -- Professor Corn, sorry to interrupt you again.
13 The question was whether you could say that rockets can be relied on to
14 hit a cable. The answer clearly was that you would not hit that
15 individual cable, but I do understand your answer to be that if you fire
16 rockets, that the damage may be such that if in the area there are cables
17 and where you would expect to be cables that they would suffer damage
18 and, therefore, would have this effect. Is that --
19 THE WITNESS: That's correct, Your Honour. And I apologise. The
20 only point I was trying to emphasise was that my assessment is based on
21 the same doctrinal understanding of the effects and use of rockets that
22 is embedded in Colonel Konings' report, because I think that's useful, as
23 well as his discussion of the neutralisation and harassment effect of the
24 fire support system.
25 JUDGE ORIE: Yes.
1 Please proceed, Mr. Russo.
2 MR. RUSSO:
3 Q. Professor, even assuming that the weaponry used against the HQ
4 could destroy communications equipment, that would only have an effect on
5 the communications capabilities of the command -- so if those same
6 communications capabilities could be knocked out by destroying or
7 disabling another facility without endangering civilians and posing no
8 greater risk to General Gotovina's forces, wouldn't you agree that he was
9 obligated to choose that alternative rather than firing artillery at the
10 HQ in order to accomplish the same objective?
11 A. I would agree based on a qualification. The effect that the
12 commander seeks to achieve is disabling the C3I capability for a defined
13 period of time. The commander could assess, for example, a vulnerable
14 relay station or an antenna in another location, but the assessment has
15 to include communications redundancy. It has to include restoration
16 potential. And so, as again is referenced in Colonel Konings' report,
17 the fire sport element is used in a synchronised manner to best achieve
18 the effect. If you -- if I assume, which I think is the assumption of
19 your question, that the commander ultimately concludes that I can achieve
20 the identical effect by targeting an asset that is not in a populated
21 area, then I believe the commander bears an obligation to select that
22 course of action. But the effect has to be identical, not just the
23 immediate consequence.
24 Q. Professor, I don't want to get into a very long discussion about
25 this, but your emphasis on the word "identical," Article 57 only requires
1 obtaining a similar military advantage, doesn't it?
2 A. It does.
3 Q. And are you disagreeing with that?
4 A. No, not at all. If I use the word "identical" to -- if that's
5 too restrictive -- I understand what Article 57 says, it's in my report.
6 Similar, but -- the point is it's the effect on -- the effect he seeks to
7 achieve. And by the way --
8 JUDGE ORIE: Let's keep matters short.
9 THE WITNESS: Okay.
10 JUDGE ORIE: I think you used the word "identical." Mr. Russo
11 draws your attention to the word "similar" contained in Article 57. And
12 you say my quotation might not have been in every respect accurate.
13 THE WITNESS: Yes, Your Honour.
14 JUDGE ORIE: Okay.
15 Please proceed.
16 MR. RUSSO: Thank you, Mr. President.
17 Q. Professor, the only other justification you offer in this section
18 for firing on the ARSK HQ is:
19 "Enemy forces required to move in and around the area would be
20 under significant apprehension that they would be made the object of
21 future area-denial attacks, potentially degrading their ability to
22 accomplish their mission."
23 Now, based on this language are you saying that shelling the area
24 around the HQ in order to cause possible apprehension among soldiers is a
25 legitimate use of artillery?
1 A. In the right set of circumstances, the answer is yes. As a
2 matter of fact, again, the doctrinal recitation discusses suppression and
3 refers to an objective not to inflict substantial loss on the enemy, but
4 to reduce its own vulnerability, forcing the enemy to reduce its own
5 vulnerability, for example, by moving or delaying operations to another
6 time. Suppression is designed to influence the enemy's decision cycle
7 and course of action. In the same report it refers to one of the
8 doctrinal effects of artillery as shock effect. Therefore, to be used
9 sparingly to achieve maximum shock effect at specific phases of the
10 battle. This is the doctrine that's embedded in Colonel Konings' report.
11 So disrupting the enemy's ability to manage the battle by inflicting the
12 psychological fear on the enemy personnel associated with being placed
13 under artillery attack is a doctrinal mission of rocket artillery. And
14 in addition, as I said earlier, if you are effective in blowing up or
15 damaging those cables and wires and antennas, in order to restore
16 command, control, and communications, somebody has to go out and repair
17 that equipment, some military member. You will degrade, just as the
18 doctrine says, the enemy may be forced to delay that process in response
19 to your use of artillery that does not have an intended destructive
21 Q. Professor, do you honestly believe that using four to five rounds
22 per hour is going to make enemy soldiers apprehensive about walking into
23 and out of this building?
24 A. I have -- I am grateful to say I have never been under artillery
25 attack. I have been in an operation where I have been in the proximity
1 of indirect fire use and impact. And, yes, I do believe that if you
2 begin your operation with a surged salvo against military objectives,
3 then your periodic use of attacking those objectives will serve to
4 increase the apprehension by your enemy as to whether you can dictate at
5 any moment the terms of the battle. And this is why I drew the analogy
6 to the attack in the Falklands
7 dilemma the commander faced with a similar course of action.
8 Q. Professor, if UN personnel could find their way into and out of
9 this building during the course of the day and if civilians in fact ran
10 into the building in order to seek shelter, how can the possibility of
11 making soldiers apprehensive about doing the same thing really justify a
12 risk of causing collateral damage and incidental injury to civilians?
13 A. Because the commander is making a decision based on an
14 anticipated effect within the operational constraints he confronts.
15 There -- when he makes this decision, I'm sure if he had the ability to
16 destroy the building in a manner that was consistent with IHL, he would
17 have preferred that course of action. But in my assessment of the
18 reasonableness of placing this objective under attack or these objectives
19 in the manner reflected in the facts and assumptions, I had to consider
20 whether it was unreasonable to attempt to achieve that continuing effect
21 in the manner in which he did, not whether I thought I was certain he
22 would in fact achieve that effect.
23 Q. Thank you, Professor. Regarding the shelling of the ARSK HQ on
24 the 5th of August, the following day, and your assumptions about what was
25 still in the town at that time, you testified - and this is at draft
1 transcript page 31, lines 14 to 17, that's from yesterday's transcript -
2 "My assumption, and that's what it was, Mr. Russo, was that at
3 5.00 the next morning the operational commander makes a judgement that
4 there is still a C3I capability, even if it's a residual C3I capability
5 in those buildings that housed those enemy headquarters."
6 MR. KEHOE: Just to correct the reading, counsel, I think it's
8 JUDGE ORIE: I think there was no confusion about that.
9 Please proceed.
10 MR. RUSSO: Thank you.
11 Q. Now, Professor, you made that assumption, as you indicate, based
12 on another assumption which was provided to you by the Gotovina Defence;
14 A. The assumption -- the fact provided by the Defence was that the
15 attack -- the main effort resumed the following morning, that there had
16 been an order that General Gotovina was aware of from the RSK
17 headquarters to displace the command/control function from Knin to a rear
19 Q. Yes. And from that assumption which was provided to you, you
20 made the further assumption that General Gotovina made a judgement that
21 there was still a residual C3I capability in Knin. And my question to
22 you is: Did you call the Gotovina Defence to ask them whether that
23 further assumption you made was supported by the evidence; and if so, why
24 didn't you mention that earlier?
25 A. No, I did not. And the reason I did not was because of the
1 pattern of operational employment and the broader facts and circumstances
2 they had provided, and the -- the underlying assumption that the purpose
3 of the use of artillery on the second morning was analogous to the
4 purpose on the first. If that assumption is flawed or the facts don't
5 support it, then the opinion changes dramatically.
6 Q. Thank you, Professor. Let's move now to the northern barracks,
7 which you address on page 32, and that's at subsection (b). Here you
8 state that this facility has the same C3I value as the ARSK HQ and that
9 in addition:
10 "Targeting this objective would also offer the added value of
11 potentially fixing enemy reinforcements or, at a minimum, disrupting
12 their ability to muster and manoeuvre."
13 And later in the paragraph you repeat the same advantage
14 regarding targeting cables and equipment, as you indicated for the ARSK
15 HQ -- I'm sorry, later in the paragraph you repeat the same advantage
16 regarding the apprehension of soldiers moving to and from the target.
17 Now, reading this I -- I read those as essentially the same military
18 advantage, fixing potential enemy reinforcements and disrupting their
19 ability to move around is the same as causing apprehension in soldiers to
20 move to and from the target. Is that the same thing or is there a
21 distinction there that I'm missing?
22 A. No -- well, in -- when I wrote that, I was basing it on the
23 non-exclusive list of potential military objectives within Knin that
24 indicated the ARSK Main Staff was the primary C2 and command, control,
25 and communications facility; in contrast, the information I was provided
1 indicated that at the 7th Krajina Corps headquarters at the northern
2 barracks, there were also elements of a brigade and other support units.
3 In the context of the effect on the headquarters personnel, yes, if you
4 are less inclined to go out and fix an antenna, re-run a land-line, or
5 even come and go to your place of duty, that's the effect that I think
6 artillery could be anticipated to have on a headquarters element. In
7 this specific target, there's also the additional issue of assets that
8 could potentially be used for a reinforcing mission or some other
9 movement to contact, and therefore fixing them, making them less likely
10 to muster and move, is an additional element in this target.
11 Q. Well, Professor, taking the Trial Chamber's direction, I'm not
12 going to ask you about whether your opinion would change if there were no
13 reinforcements in there. I'll take it, as I will for the remaining
14 objectives, that if the factual situation changes your opinion
15 potentially changes. Fair enough?
16 A. Fair enough. If there are no reinforcement, it influences that
17 aspect of the analysis. It's still a headquarters.
18 Q. Thank you. I would like to jump now to the open field outside of
19 the northern barracks, which you address on page 33 at subsection (i).
20 Here you offer the opinion that:
21 "General Gotovina could have reasonably concluded that this field
22 was one of only a few locations within Knin that enemy forces could use
23 to muster prior to movement to contact or reinforcement. Accordingly,
24 sporadically targeting this location would inhibit the ability of the
25 enemy to do so and would contribute to denying the enemy's ability to
1 manoeuvre at will."
2 Now, Professor, you indicate this assumption about this field
3 being one of only a few locations, but what I want to know is does your
4 opinion include an assessment that it would be legitimate for
5 General Gotovina to sporadically shell any area within Knin where the
6 ARSK might possibly have mustered?
7 A. The "might possibly" renders my answer no. But this was a field
8 that I was told was in proximity to a barracks that I was told was a
9 location where there were elements of a brigade, which in my mind is a
10 unit that could be used -- be held in reserve by the corps -- the enemy
11 corps commander. As a result, because of its proximity to the northern
12 barracks, its nature as a place, in my view, is reasonably different than
13 any open field in Knin. And again, if you -- this issue is also
14 addressed in the commentary to Additional Protocol I, and that's why I
15 say at the beginning in the abstract an open field would seem to hold
16 little military value. But even Additional Protocol I addresses the use
17 of methods and means of warfare to deny the enemy areas and acknowledges
18 that in the right circumstances that is a logical, traditional, and
19 appropriate use of combat capability.
20 So the answer is yes -- or no to your question. I don't believe
21 any open field in Knin falls into this same category, and that's because
22 of the proximity to the forces that I was told to assume were in
23 proximity to this building.
24 Q. Professor, in terms of what is reasonable for General Gotovina to
25 anticipate or expect in relation to deciding to use artillery, in the
1 middle of an artillery attack where anti-personnel and area weaponry is
2 being used, do you really believe it's reasonable to expect that an army
3 is going to choose to muster in an open field?
4 A. This is a coordinated operation to breach an improved enemy
5 defensive perimeter that is protecting the enemy's political and military
6 centre of gravity. If I am the attacking commander, I have to assume as
7 part of my planning that if I achieve a breach, that breach will become
8 the priority for the enemy's commitment of whatever reinforcing assets he
9 can muster. So my answer to you is yes. I believe it would be
10 reasonable to assume that even if under attack, if the corps commander,
11 the enemy corps commander realises that his defensive positions have been
12 breached, that he will do whatever he can do to plug that breach.
13 Because once that breach is secured the other side begins to exploit it,
14 and the decisive point of the battle has turned. And I have to assume my
15 opponent knows that just as clearly as I do.
16 JUDGE ORIE: Professor Corn, could I ask you, did you identify
17 the other places which were fit to be used as -- to muster?
18 THE WITNESS: No, Your Honour. I was asked to look at this field
19 near this barracks.
20 JUDGE ORIE: Yes. But you said it was one of only a few
21 locations, so you must have formed an opinion about how many there were
22 and -- could you give the details about that?
23 THE WITNESS: Yes, Your Honour. That opinion was based on where
24 I was told the manoeuvre forces within Knin were located. And in the
25 facts and assumptions there is some Special Police units, and then I'm
1 told there are elements of a brigade in this northern barracks. And so
2 my assumption is that you're going to muster at -- you have to muster
3 your forces from where they're housed.
4 JUDGE ORIE: Please proceed, Mr. Russo.
5 MR. RUSSO: Thank you, Mr. President.
6 Q. Professor, let's move now to the RSK telegraph and post office,
7 which you address on page 32, subsection (d). You state:
8 "This classic 'dual use' target was an important component," of,
9 "supporting" -- I'm sorry.
10 " ... an important component supporting enemy communications
11 ability. Degrading the effectiveness of such communications would
12 provide a significant advantage to friendly forces seeking to set and
13 maintain the tempo of battle."
14 Professor, we've discussed this a bit already about the ability
15 of General Gotovina to achieve a similar or the same effect by shelling
16 in another area, but I'd like to, in regard to that, show you a portion
17 of the Brioni meeting.
18 MR. RUSSO: If we could go to P461. And if we could turn to
19 page 25 in the English, page 47 in the B/C/S.
20 Q. I want to focus on where it begins Mladen Markac.
21 "Mr. President, as soon as we take Celavac as a communications
22 centre and to all practical purposes the nerve centre of that part, their
23 communications system will be finished and there will be total chaos."
24 Moving further down the page to where Davor Domazet speaks, the
25 last paragraph where he speaks:
1 "... and the destruction of Celavac, we will take down all
2 operative and tactical communications in the area of the 7th and 15th
4 Professor, you're aware that the 7th Corps area was the area of
5 Knin; correct?
6 A. Mm-hmm.
7 MR. RUSSO: And if we could now have Exhibit P2625.
8 Q. Here we have the report of the Croatian air force dated the
9 4th of August, indicating paragraph 2, number 1, the Celavac radio relay
10 station was eliminated.
11 MR. RUSSO: If we could now move to P2623. And if we could go to
12 page 5 both in English and B/C/S.
13 Q. And looking at the targets of the aircraft operation,
14 subsection (b) it states:
15 "During the first day neutralise the enemy units communication
16 and command system, by using strikes against definite communication
17 centre and command posts."
18 Now, Professor, I know that you saw the Brioni transcript or at
19 least reviewed it before coming to your conclusions. Did you consider
20 the fact that the assessment made that by taking out Celavac, for all
21 practical purposes, they would take out all operative and tactical
23 A. As I indicated previously, I based this opinion on the facts and
24 assumptions that counsel provided me after I requested that they make
25 their assessment of what has been established on the record. The
1 assumption, if not fact, related to the telegraph and post office was
2 that 40 per cent of military communications were facilitated through this
3 location. Now, the first report you showed me, I just briefly looked at
4 the date time group, and I thought I noticed 2300 hours on 4 August. So
5 if the air force reports the destruction of that relay facility, it
6 certainly, if that's the time -- date/time group of that report, it
7 certainly would not indicate to the -- to General Gotovina when he
8 launches his attack, I believe on the morning of the 4th, that that
9 capability is no longer existent.
10 But even irrespective of that, I wrote this on the assumption
11 that the -- that he believed, based on the record, that this facility
12 provided 40 per cent of military communications capability. And if
13 you're going to attack the UHF, VHF, and land-line capability at the
14 headquarters, then you have to assume that the enemy is going to fall
15 back on redundant communications capability.
16 The other thing this report doesn't tell us is: Is the enemy
17 capable of restoring that capability even if the air force has been
18 successful? So there are -- in the abstract there are -- like everything
19 else -- almost everything else we have discussed, there are other facts
20 and circumstances that would be relevant in the decision-making process,
21 but I base the assumption -- the opinion on the assumption that the
22 commander assumed that this facility provided a military communications
23 redundancy. If he knew that was not the case, it would have radically
24 changed the equation.
25 Q. Thank you, Professor. Let's move now to the railway station,
1 which you address on page 33, subsection (h). You state:
2 "Harassing and disrupting movements through this critical rail
3 choke-point would be an important means of limiting the effectiveness of
4 enemy troop movements to reinforce isolated front line positions."
5 Professor, I don't see where you were provided with any
6 indication that the railway was being used to move enemy troops through
7 Knin to the front line. Can you tell us whether or not that's a further
8 assumption that you made?
9 A. No, it's on page 4 of the letter, the second sentence of railway
10 station says:
11 "The rail system was to be used to evacuate a massive weapons
12 depot and to reinforce the front lines."
13 Q. Yes, my apologies for that. Now, you indicate that it's a
14 critical rail choke-point. Now, in line with what we discussed with the
15 previous target, if you can, in fact, achieve the same objective by
16 shelling parts of the railway line that will prevent both enemy front
17 line reinforcement and evacuation of a weapons depot, if you can shell
18 the rail lines in areas not proximate to civilians, aren't you required
19 to do that?
20 A. If the resource expenditure is analogous, then the answer is yes.
21 But I think that that is a reason why traditionally when you target lines
22 of communication, you look for choke-points because you can use a limited
23 amount of resources to affect a major amount of movement. That's what
24 "choke-point" means to me, a crossroads or an intersection. But if
25 there's only one line and you know that's the only line the enemy's going
1 to use and you can destroy it outside of the town with no additional
2 significant additional expenditure of resources or risk, I am confident
3 that the protocol requires you to adopt that alternate course of action.
4 Q. Professor, I want you to assume that this has been a real
5 pleasure for me. I appreciate your sticking with me, and I have no
6 further questions for you.
7 A. Thank you.
8 JUDGE ORIE: Thank you, Mr. Russo.
9 I'm looking at the clock.
10 Mr. Kehoe, could you give us an indication as to how much time
11 you would need?
12 MR. KEHOE: Mr. President, I will be very brief. I would just
13 like to chat with my client just for a bit before we go on, but I will
14 not be extensive at all. Anywhere from 2 minutes to maybe 15 minutes, I
15 would think.
16 JUDGE ORIE: Then the best would be to take the break now and --
17 MR. KEHOE: I would appreciate that.
18 JUDGE ORIE: As far as the other Defence teams are concerned, has
19 the cross-examination triggered any need to --
20 MR. MIKULICIC: No, Your Honour.
21 JUDGE ORIE: -- examine the witness?
22 I see, Mr. Cayley, you're nodding "no" as well.
23 Then we'll first have a break. We will resume at 20 minutes to
25 --- Recess taken at 12.18 p.m.
1 --- On resuming at 12.49 p.m.
2 JUDGE ORIE: Mr. Kehoe, are you ready to re-examine the witness?
3 MR. KEHOE: Yes, Mr. President. Cross-examination has not
4 brought up any issues that need to be addressed in re-direct, so we will
5 have no questions.
6 JUDGE ORIE: Yes.
7 [Trial Chamber confers]
8 JUDGE ORIE: Mr. Corn, Professor Corn, you know what the
9 consequences of this will be, that what you consider to be a break was
10 already the end of your testimony. I would like to thank you very much
11 for coming even twice to The Hague
12 in the beginning of the week and then later this week, and for having
13 answered all the questions that were put to you by the parties and the
14 Bench. And I wish you a safe return home again.
15 THE WITNESS: And, Your Honour, I would like to thank the
16 Tribunal first for supporting my effort to keep the commitment that I had
17 made previously in the middle of the week; and secondly, for indulging
18 some long answers at times. I do appreciate it.
19 JUDGE ORIE: Thank you.
20 Madam Usher, could you escort Professor Corn out of the
22 [The witness withdrew]
23 JUDGE ORIE: Were there any remaining matters of documents to be
24 tendered or are we concluded?
25 MR. KEHOE: The only issue I think is D1462, the report is MFI'd
1 and we would once again re-offer that into evidence. Is it 1462? Excuse
2 me 1462, I believe it is. I stand corrected, it is 1462.
3 MR. RUSSO: 1642.
4 MR. KEHOE: 1642. Dyslexia is overwhelming here, 1642.
5 JUDGE ORIE: Mr. Russo.
6 MR. RUSSO: Mr. President, we made objections to the admission of
7 certain sections of the report. Those objections still stand. On top of
8 that, we would like to make further submissions. I don't know if the
9 Court wants to hear those orally or if you prefer a written submission.
10 I'm happy to do it right now.
11 [Trial Chamber confers]
12 JUDGE ORIE: The Chamber would like to hear them right now,
13 Mr. Russo.
14 MR. RUSSO: Thank you, Mr. President.
15 In addition to the arguments put forward in our submission in
16 response to the 94 bis filing, I think the testimony of the witness has
17 raised to an even greater level the concerns of transparency and of
18 notice to the Prosecution. As the Court itself recognised, it is a bit
19 of a grey area for us to know exactly what the witness's evidence is
20 based on. This oral presentation he was provided with in December of
21 2008, we still don't know what he was told. He seems to recall portions
22 of it at times. When I confronted him with some pieces of evidence that
23 didn't seem to be supported by the facts and assumptions, he went back to
24 rely on that conversation. I think that just highlights the fact that
25 neither the Trial Chamber nor the Prosecution is aware of what his report
1 actually is based on. It also seriously impacted the Prosecution's
2 ability to confront him and to challenge the basis for his evidence. It
3 also led to us not being able to truly discover his analysis since we
4 don't know what that analysis was based on.
5 So I think in addition to the arguments we made before --
6 JUDGE ORIE: Mr. -- take a breath now and then, Mr. Russo.
7 MR. RUSSO: I do think the lack of transparency with regard to
8 the sources of information and the information upon which the opinions
9 are based justify the Chamber in refusing to accept the portions we've
10 identified as well as the lack of notice to the Prosecution with respect
11 to the opinions he had on the critical documents. The Chamber had to
12 await the Prosecution's examination in order to find out what the witness
13 thought of the order for attack language, what the witness thought about
14 the Brioni transcript. And I'll highlight again, Your Honour, that if we
15 had not received the supplemental information sheet, it would have been a
16 simple matter for us to simply point out the evidence that he had not
17 considered; but having the one-liner that we got in the supplemental
18 information sheet which simply says: I considered all this evidence and
19 it doesn't change my opinion, it incorporated all of the substance of
20 that critical evidence into his analysis which we were forced to confront
21 without notice.
22 So I think on that basis we would ask the Chamber not to admit
23 the portions we identified in our notice.
24 JUDGE ORIE: Mr. Kehoe, perhaps you first take a breath for
25 Mr. Russo, and then make further submissions. If you would like to make
1 them orally or if you would prefer to do it in a different way, we would
2 hear from you.
3 MR. KEHOE: I will make it very brief, Mr. President. With
4 regard to the issue of transparency in this regard, that was the reason
5 why we went through this extensive cross-examination, to elicit the
6 basis -- bases upon which Professor Corn rendered his opinions. He told
7 the Chamber that he had had a briefing concerning the overall scheme of
8 things in December of 2008. I do believe on certainly more than one
9 occasion -- in fact, numerous occasions, Professor Corn stated that he
10 gave his opinions based on the facts and assumptions provided in the
11 report which were attached to his report. Nothing more, nothing less.
12 If anything, the transparency was ultimately borne out by the fact that
13 Professor Corn said, Mr. Russo, if you change the facts and
14 circumstances, the opinions I have rendered could change. To what extent
15 of course depends on that.
16 Now, the argument that was presented by counsel that there was
17 some lack of transparency because there was no opinion or notice of an
18 opinion concerning what he thought about P1125, the attack order from the
19 3rd of August, or what he thought about the Brioni transcript, I remind
20 counsel -- and I have to say to the Chamber that we did not elicit those
21 opinions on direct examination. If we go back to the direct examination,
22 our direct examination was very terse, very succinct, and was rendered
23 and presented to the Chamber in support of D1462, Professor Corn's
24 report -- 1642, I did it again, Professor Corn's report. That was the
25 basis of our direct examination, simply to offer any clarifications of
1 D1642, the report.
2 So the statements made by counsel have no bearing on the
3 admission of this report. Now he, Mr. Russo, chose of his own volition
4 to go into the matters concerning the attack order and matters concerning
5 Brioni and any number of other items. Now, we gave notice to the Office
6 of the Prosecutor that this individual did, in fact, review these
7 documents. If there was some problem with that, I submit to the Chamber
8 that we should have heard about that prior to cross-examination. But
9 nevertheless, if we go back to how this all proceeded, it proceeded by us
10 putting -- the Gotovina Defence putting this witness on to offer D16 --
11 his -- 1642, his report, into evidence. Anything else that emanated from
12 that concerning this cross-examination was brought about by the Office of
13 the Prosecutor, not by the Gotovina Defence.
14 If we go back to the rule, the question is: Have we established
15 enough basis under the rule to allow the Chamber to consider this report
16 and give it the weight in conjunction with Professor Corn's testimony
17 that it deserves. And I would submit to you, Mr. President, and the
18 Chamber that we -- the Gotovina Defence has more than established a bases
19 upon which this report should be received into evidence in conjunction
20 with Professor Corn's report.
21 I would gladly clarify any aspects of this submission, this oral
22 submission, that we've made, or do so in writing should the Chamber so
23 need additional arguments presented to the Court.
24 [Trial Chamber confers]
25 JUDGE ORIE: Mr. Kehoe, you emphasised that the -- going through
1 the Brioni transcript was an exercise by the Prosecution. Now, I would
2 like to know your view on the following. The Brioni transcript raises a
3 couple of issues of interpretation, that is, what President Tudjman said,
4 how the response had to be understood in relation to what was said, et
5 cetera, et cetera. And I gained some impression - I still have to
6 digest that and to read everything in detail - that the -- this
7 interpretation of what the witness apparently read in the Brioni
8 transcript may have been of influence on his further developing his
9 opinion on events. We do not find the precise conclusions of the expert
10 witness on the Brioni transcript, the issues I just referred to.
11 Nevertheless, as I said, I gained the impression that -- I wouldn't say
12 decisive, but at least they played a role in further assessing
14 My question to you now is that saying to Mr. Russo, Well, that's
15 the matter you raised, do you think that in terms of transparency of the
16 methods, of the whole line of thought of the expert, that it would have
17 been preferable or not preferable to have this already explained before
18 cross-examination? Because you're more or less saying, Well, that's your
19 problem, Mr. Russo, you raised it. So you considered it -- if Mr. Russo
20 would not have raised it, you would have considered it that the Chamber
21 would have been sufficiently informed about the way in which the expert
22 developed his opinions without knowing how he interpreted - and I'm now
23 just referring to this one document - that he had, as he said, considered
24 in forming his opinion.
25 MR. KEHOE: There are several issues, if I may take them
1 seriatim, Mr. President, first with regard to the Brioni transcript or
2 all of the documents that are listed in the supplemental information
3 sheet, none of those documents were provided to Professor Corn until
4 after he filed the first part of his report and the addendum. None of
5 those documents were discussed. So the opinion that we were placing or
6 the position we were placing before the Trial Chamber was concretised
7 prior to any discussion about these documents.
8 Now, we had a discussion about these documents in discussing this
9 matter with Professor Corn so the professor would have an idea of what
10 was happening in cross-examination. Now, you recall, Mr. President,
11 there was a motion filed by the Office of the Prosecutor barring us from
12 using, for instance, P1125. And I came in -- I certainly told the
13 Court Officer, and I believe we put it on the record, that we were not
14 going to go into those documents, nor were we going into the Brioni
16 So what we presented to the Trial Chamber was -- and to the
17 Office of the Prosecutor was full transparency to support what
18 Professor Corn was opining upon with his report and his addendum. We
19 were not going to elicit any discussion concerning the attack order or
20 Brioni or any other number of documents, but counsel chose to do so.
21 So -- while I Your Honour sifting your way through this, and I'm sure as
22 the trier of fact, Your Honours, Mr. President, it's a difficult matter
23 to wind your way through. But putting that all aside, it doesn't affect
24 the basic argument or the basic document D1642, Professor Corn's report,
25 that we were presenting the Chamber.
1 Had counsel not asked these questions about Brioni or about the
2 attack order, P1125, we would not have had this protracted discussion.
3 But counsel chose to do so. At the same time counsel told -- wanted to
4 preclude us from going into it on direct, and we took the high ground,
5 frankly, Mr. President, and didn't go into it on direct because we didn't
6 want to get into some debate as to whether or not that -- that
7 Professor Corn was offering some opinion about these documents that
8 were -- that was not included in his report because, frankly, he hadn't
9 seen them until after his report was filed.
10 So it is -- the position taken by the Prosecutor is double-edged
11 in the sense that we're not supposed to show him these reports, we don't
12 want you to show him these reports, but we want to. That's simply not
13 how this works, that's not how the exercise works. The Prosecution has
14 put a year's-plus witnesses on where they'd clearly in discussing these
15 matters with their witnesses, presented it to those witnesses that this
16 is what the Gotovina Defence or other Defences are going to bring up on
17 cross-examination. That, in the spirit of transparency, is what counsel
18 should do and did do. We simply did the same thing.
19 Again I have to reiterate, in our direct examination -- our
20 direct examination was centred in focused solely on the four corners of
21 Professor Corn's report; nothing more, nothing less.
22 JUDGE ORIE: Isn't it true, Mr. Kehoe, at the start of the
23 testimony of this witness we had the report which was produced without
24 the witness having had read the Brioni transcript and other documents,
25 but we also had the one line Mr. Russo referred to, that having looked at
1 these documents that it would not affect the conclusions, which as was
2 shown during cross-examination was to some extent viewed to the way in
3 which he interpreted that. So you're very much emphasising that the
4 report was produced without. But would you agree that the Chamber was
5 not only -- of course you could say admission of the report is just a
6 report. But what is true for an expert report is, of course, true for
7 expert testimony as well, that is, that the Chamber is able to have a
8 full insight in the reasoning, the thinking, the forming of the opinion,
9 the method used, and that the Chamber under those circumstances - and
10 you're blaming Mr. Russo more or less for doing that - might have been
11 interested in knowing what interpretations of these documents were at the
12 basis of they do not change my opinion. Because that took quite some
13 thinking from what I understood from the expert witness.
14 MR. KEHOE: Well, Mr. President, I submit to you and suggest to
15 you -- I will say at the outset, I'm not blaming counsel for anything.
16 Counsel prepared his witnesses in a similar fashion, no doubt because I
17 was on that side of the well for many years, that they prepare their
18 witnesses for cross-examination as good counsel have done. They did the
19 same thing. The supplemental information sheet, fundamentally, was
20 emanated from the issue of transparency. Your Honour has asked questions
21 of General Cross and others concerning transparency. We thought it was
22 incumbent on us to ensure that there was no stone unturned when it came
23 to transparency. We were not going to say that this witness didn't
24 examine documents when he was sitting at our office preparing for this
25 examination which started on Monday. To that end, we delineated every
1 document that he was shown.
2 Now, with regard to the other aspects as to where his opinion
3 started and his opinion began concerning his statement -- his statement
4 and how it might have been affected, we were here for four days of
5 cross-examination on that score. That is the purpose of
6 cross-examination. We could have gone through that and elicited that in
7 some detail as to whether or not this affected your opinion; and if not,
8 why not? And we did do that to some degree with P1125. We didn't do it
9 with the rest of them because counsel chose not to and chose a different
10 methodology in his cross, as is his professional discretion. But the
11 fact remains that what we have attempted to do from the very outset,
12 Mr. President, Your Honours, is transparency, is going through the
13 procedure, is going through exactly what took place, when and where this
14 person was spoken to by counsel for General Gotovina, what he was shown
15 and when, and any conclusions or aspects that he might have had as a
16 result of that subsequent review, that the Chamber needed to be advised
17 of as well as the Office of the Prosecutor.
18 So -- I mean, the cross-examination is something that could have
19 done this. Counsel chose not to. And I submit to Your Honour, if there
20 is some question in that regard, I suspect that Professor Corn is still
21 here in town, and we can continue this this afternoon and bring him back
22 and we can ask him yet more questions about this. The Gotovina Defence
23 is interested in the ultimate in transparency, and if that needs to be
24 done, Mr. President, we invite the Chamber to do that, to clarify any
25 outstanding issues in this regard because this is very, very significant.
1 And this is something that we were mindful of when we were preparing this
2 witness and preparing the supplemental information sheet. Counsel chose
3 not to ask these questions on cross; that's his decision, but, however,
4 that doesn't lend itself to a conclusion that there has been some lack of
5 transparency concerning this witness's conclusions and answers before
6 this Trial Chamber over the past four days.
7 JUDGE ORIE: Mr. Russo.
8 MR. RUSSO: Just briefly, Mr. President. I don't agree with the
9 distinction that Mr. Kehoe is drawing between the questions he asked
10 Professor Corn during his examination and the evidence in fact led by the
11 Defence during their direct examination. The supplemental information
12 sheet is Exhibit D1643. When they admitted that into evidence, they
13 essentially led the opinion that he considered the Brioni transcript and
14 all of the other documents and that it didn't change his opinion. The
15 fact that they didn't specifically ask him those questions again doesn't
16 make any difference.
17 So the objection that we had originally made to him being shown
18 the documents and him offering an opinion about that, we were essentially
19 pre-empted on that argument by them having already shown it to him and
20 having already solicited an opinion from him with respect to that. That
21 opinion was led through direct examination, and at that point we were
22 compelled to cross-examine on it. I will be very clear. If that opinion
23 had not been led, the Prosecution would not have gone into the order for
24 attack or the Brioni transcript or any of the other documents about which
25 we received a late opinion about his conclusion.
1 And with respect to the last comments that counsel made, it's
2 unclear to me what he's saying that we chose not to do in terms of going
3 into the basis for his report. I did ask the witness to tell me
4 everything he could recall about the information he received at the oral
5 presentation. Of course with no fault to him, he simply can't give us a
6 full account of that information, and that's the position that the
7 Prosecution finds itself in as well as the Trial Chamber, and that is a
8 result of the method which the Defence chose to employ. They could
9 simply have provided us with either, I don't know, a transcript or some
10 other recording of the actual discussion they had with them so that we
11 would know in fact what he was provided with.
12 MR. KEHOE: Mr. President, if I may respond, with all due
13 respect --
14 JUDGE ORIE: One second.
15 [Trial Chamber confers]
16 JUDGE ORIE: Mr. Kehoe, the Defence is the party tendering the
17 report. Mr. Russo objected. He has been the last that spoke, being the
18 responding party. You both have 1 minute. You first, and then
19 Mr. Russo, and then we'll conclude this -- these submissions.
20 If you make it two, I'm not going to blame you.
21 MR. KEHOE: I will not. I will make it one, maybe 1 minute and
22 15 seconds. First thing of course is at the outset, if we look at the
23 proofing session of the 21st of September, 2008, which was
24 Colonel Konings' proofing session where we asked the Prosecution to
25 disclose the substance of that proofing session, Mr. Russo, himself,
1 declined, but that's another issue.
2 With regard to the supplemental information sheet which is D1643,
3 the subject was raised by that -- by the Chamber. Mr. Russo objected to
4 the last portion of paragraph 2 and paragraph 3. He did not object to
5 anything else in that; and given that, we have deleted that, uploaded
6 into e-court, admitted into evidence, and he had no objection to the rest
7 of the document. We can go back and verify in the record exactly what
8 Mr. Russo said. I don't have it before me, but I'm firmly convinced that
9 that was the position.
10 That being the case, the point that -- at that -- at this
11 juncture or that juncture was to object to the whole matter, but he chose
12 not to do so. Now we are in a revisionist-history mode, where he's
13 trying to change that. He didn't object. We took out that which he
14 objected to in conjunction with consultation with the Chambers, and we
15 admitted D64, and he didn't object to the portion of the supplemental
16 information sheet that Professor Corn opined that the review of these
17 documents wouldn't change his position.
18 JUDGE ORIE: My judgement that you would need 2 minutes was
19 rather exact, Mr. Kehoe.
20 Mr. Russo, 2 minutes for you.
21 MR. RUSSO: Mr. President, all I can say in response to that is
22 we had already made our submissions on our objections to the
23 admissibility of opinions relating to those three particular documents.
24 I don't think procedurally we were required to re-state that particular
25 objection. Our submissions on that were before the Trial Chamber. In
1 the Defence's submission of that document, I took it to be the
2 Trial Chamber's ruling that our objections had been overruled. In any
3 case we had made our objections to the Trial Chamber about the admission
4 of that evidence. At that point, I don't believe we were required to
5 reiterate those objections.
6 JUDGE ORIE: Thank you, Mr. Russo.
7 The Chamber will consider the matter, and the Chamber will rule
8 on the matter.
9 We will not sit this afternoon. We'll not sit on Monday.
10 Is there any matter that should be raised before Tuesday, when
11 we'll hear the Gotovina Defence's next witness?
12 MR. MISETIC: Mr. President, I don't know if we wish to admit the
13 92 bis statements. I believe there are seven remaining, if you wish to
14 do that now or at a different time.
15 JUDGE ORIE: If you wish to admit -- that's what the transcript
16 tells me.
17 MR. MISETIC: We wish to admit, but if you wish to do that now,
18 or if we're going to do it at some other point in time. These are
19 the 11 --
20 JUDGE ORIE: Yes, out of which four we have -- four witnesses
21 became 92 ter witnesses --
22 MR. MISETIC: Correct.
23 JUDGE ORIE: -- several witnesses still being 92 bis. Do you
24 want to make further submissions, or do you want us to admit them right
25 away, or to deny admission or?
1 MR. MISETIC: I don't wish --
2 JUDGE ORIE: That's for the Chamber to decide.
3 MR. MISETIC: All right. Well, I understood the Prosecution's
4 position - maybe I'm wrong - that they just wanted to cross-examine four,
5 and then they had no objection to the admission of the remaining 92 bis
7 JUDGE ORIE: That -- yes, but even under those circumstances,
8 still the Chamber has to decide whatever the -- but the position of the
9 Prosecution was that there was no objection against admission if you
10 could cross-examine four of these witnesses.
11 MR. RUSSO: Mr. President, I'll admit, I'm a bit ignorant of the
12 exact language of our filing, but we certainly haven't changed the
13 position that we filed.
14 JUDGE ORIE: So the Chamber can proceed and consider the matter
15 on the basis of the written submissions by the Prosecution.
16 Then we'll rule on admission, and we'll do that rather soon.
17 Any other matter? Then we'll adjourn, and we'll resume on
18 Tuesday, the 15th of September, 9.00, in Courtroom I.
19 --- Whereupon the hearing adjourned at 1.21 p.m.
20 to be reconvened on Tuesday, the 15th day of
21 September, 2009, at 9.00 a.m.