1 Tuesday, 3 September 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.33 a.m.
5 JUDGE ORIE: Good morning to everyone in and around this
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Thank you and good morning, Your Honours. This
9 is case number IT-09-92-T, the Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 There being no preliminaries, could the witness be escorted into
12 the courtroom.
13 Ms. Lee.
14 MS. LEE: Yes, Your Honours. The two documents that you
15 mentioned yesterday. I believe they are D349 and D353. We do not object
16 to those documents.
17 JUDGE ORIE: D349 and D353 are admitted into evidence.
18 MS. LEE: Thank you, Your Honour.
19 [The witness takes the stand]
20 JUDGE ORIE: Good morning, Mr. Baraybar.
21 THE WITNESS: Good morning, Your Honour.
22 JUDGE ORIE: Please be seated.
23 THE WITNESS: Thank you.
24 JUDGE ORIE: I'd like to remind you that you're still bound by
25 the solemn declaration you've given yesterday at the beginning of your
1 testimony. Mr. Stojanovic will now continue his cross-examination.
2 You indicated that you would need half an hour, Mr. Stojanovic.
3 Is that still the case? Yes, apparently it is.
4 MR. STOJANOVIC: [Interpretation] Yes, it is.
5 WITNESS: JOSE BARAYBAR [Resumed]
6 Cross-examination by Mr. Stojanovic: [Continued]
7 Q. Professor, let me remind you that yesterday we left it off with
8 Konjevic Polje 1 and 2. P2086 is the document that I would like us to
9 look at again. This is your report. I'm interested in page 24. There
10 is a reference to the Konjevic Polje 1 graveyard. This is on the English
11 page 23. I would like to call that up. I will invite your comments on
12 the penultimate paragraph on this page. In this paragraph you say that
13 some, if not all, the bodies were picked up by a machine from a different
14 location and put in the graveyard. So in this paragraph you say:
15 "The presence of a non-indigenous white powder (possibly lime)
16 suggested that it must have been placed in the grave."
17 I would like to ask you if you carried out any analysis of that
18 white powder to find out where it had come from and ended up in the
19 Konjevic Polje 1 graveyard.
20 A. We collected the white powder, as in other occasions. We have
21 not been personally responsible for the analysis of the white powder.
22 The white powder was given as any other evidence collected from the grave
23 to the scene-of-crime officer. I may remind you, as well, that white
24 powder, such as this one, that apparently was like lime, that's what it
25 looked like, has been found in other sites as well. I think at the
1 Glogova site we have a similar thing and as a matter of fact in a bag --
2 I mean, as -- a broken bag, as it was thrown from a bag into the grave.
3 Q. Would the presence of lime suggest that the area was disinfected
4 at some point in time?
5 A. Lime is used with the belief that it quenches the smell of
6 rotting bodies, and that may cause, as a matter of fact, some
7 disinfection. But this is just popular lore. I mean, it has nothing to
8 do with that. Lime definitely can destroy bodies by burning them --
9 burning them, pretty much. I mean, it doesn't combust them with fire,
10 but there's a burning element to it. And it is commonly used, as a
11 matter of fact, as I said, to try to destroy the smell. It is nothing to
12 do with disinfection. What it actually does -- what actually happens is
13 that lime becomes a solid crust over the bodies and the bodies underneath
14 may be more preserved through a number of processes, but let's just
15 imagine for the sake of simplicity that lime becomes a solid crust and
16 bodies underneath could be more preserved. From the outside, it may be
17 that they don't smell as much as if the lime wasn't there, but the
18 real -- I mean, the real use of lime in this context is pretty much more
19 a -- something of burning and consuming remains, if it is active lime of
20 course, than anything else. And I think that it would be quick lime,
21 that would be the technical term in English.
22 Q. Did you perhaps consider the possibility that the lime may have
23 been used to sanitise the area and to sanitise the grave-sites?
24 A. I mean, as I told you, in my own experience lime is used as an
25 accelerator to destroy remains and probably people, at least in my part
1 of the world, use it, believing that bodies will smell less, not
2 necessarily as a sanitising element, but just something to quench a
3 smell. That's how people use it. But, I mean, no, I did not really
4 think of that possibility of sanitising, more about the smell more than
5 anything else.
6 Q. And now let's look at page 6 in the same document, both in
7 English and in B/C/S. Professor, I'd like to deal with Glogova 2 now.
8 Will we agree that that is one of the primary graves that have been
9 identified and that is -- it is close to the Konjevic Polje-Bratunac
10 road. I'm interested in page 6 in both versions.
11 My question is this: Is this one of the primary mass graves that
12 have been identified and that it is close to the Konjevic Polje-Bratunac
13 road? Will you agree with that?
14 A. Yes. I mean, there's some primary graves found in that location,
16 Q. Were you told at any point in time or did you yourself analyse
17 the locations where the people who were eventually buried in the
18 Glogova 2 grave got killed or was it perhaps not your task at all?
19 A. At the time I was not, I mean, informed of those details. I do
20 now know, obviously many, many years after, the relationships between
21 Glogova and other sites, but at the time I did not know much. I just
22 knew that there was some graves in the area and that was all.
23 Q. And then I'll ask you this: Again we come across the information
24 that we can see in the central part of the page in the third paragraph
25 from the top of the page that on one body a watch was found and that it
1 still showed the date as being the 15th of the month. Is that similar to
2 the cases you described yesterday, that you came across such situations
3 in different locations as well, the date showing as being the 15th or the
4 Friday of a certain month?
5 A. Yeah, it is true; however, I would like to point to the fact that
6 in the same report, a few pages ahead, you will find that some other
7 watches were found in the same site with a combination of day and date
8 being Saturday, the 15th. So both, I mean, days occurred, but the same
9 date did occur as well in the same site and in some cases the same brand
10 of watches, they were Seiko, as a matter of fact.
11 Q. Yes, I agree, Professor. There are such reports as well. We're
12 talking about one of the graves that you worked on. What I would like to
13 know from the point of view of your profession can be found in the
14 following paragraph. There you say that:
15 "The graves continued [as interpreted] 73 complete or almost
16 complete bodies and a number of body parts. Most bodies had multiple
17 fractured bones and some of the lower or upper limbs were missing."
18 From the point of view of the rules of your profession, what
19 weapons should have been used in order to inflict such wounds and
21 A. I mean, from the standpoint of my profession and looking back at
22 these remains -- because that is not in the report, because I didn't
23 venture in the report about the mechanism or causing agent of the
24 injuries, I would say that those type of injuries are consistent with
25 blast injuries, I mean, some explosive device of any kind. That is
1 pretty much the only one that can cause these amputations, if you wish,
2 traumatic amputation of limbs or shattering of limbs in such a way.
3 Q. Could those have been anti-infantry mines, perhaps, trip-wire
4 mines or similar types of explosives or weapons?
5 A. When I refer to blast injuries, of course I'm referring to a
6 range of causing agents, I mean, among which could be grenades, could be
7 mines and other type of devices. However, I mean, it would be too
8 speculative if I was to decide that one specific type of device would
9 have been responsible for these type of injuries since I'm not looking at
10 the individual reports. What I do remember, however, from this report is
11 that some of the limbs that were amputated, I'm speaking into quotes here
12 because this was not a surgical amputation, were also charred, were also
13 burned. And the burning episode took place after the fractures were
14 caused. So it is not simply blast, there's an element of blast and
15 there's an element of fire as well that may or may not be related to the
16 blasting episode. So I'm not implying here necessarily that there was
17 something that blasted remains and burned remains. That could have been
18 blast on one end and fire on the other one.
19 So I would say yes to your answer [sic], but I mean it's not a
20 simple yes. It's a yes with consequences, so to speak. I mean, I do not
21 have the reports of the individual remains, but "blast" is a very broad
22 term certainly and I'm speaking here as a very general mechanism. There
23 could be blast, there could be gun-shot, but again I'm not referring in
24 the case of gun-shot where there was a hand-gun or a rifle or anything
25 else. So "blast" would be the generic mechanism in this case.
1 JUDGE ORIE: Mr. Baraybar, I'm a bit confused. The question was
2 about the line where it reads:
3 "Most bodies had multiple fractured bones and some of the lower
4 or upper limbs missing."
5 Your explanation, as far as I understood it, was mainly about
6 what could have caused limbs missing. It was not that much about
7 multiple fractured bones. How do I have to understand your answer? That
8 your very cautious provisional conclusions that it most likely is a
9 blast, would that apply to both the multiple fractured bones and the
10 cases where limbs were missing?
11 THE WITNESS: Yes, that's exactly the way. Because there is a --
12 there is a relationship between the fact there were multiple fractured
13 bones and limbs missing, and in the case of the limbs missing and that
14 what I do remember is you got, for example, a piece of an arm and the
15 rest of the arm was gone, but the piece was totally fractured and
16 charred. So the causative agent was in relationship to the fracturing
17 and the absence of the remains.
18 JUDGE ORIE: Yes, and fracturing bones as a result of
19 transporting with heavy machinery, is that an issue you considered?
20 THE WITNESS: You see, from the experience of previous sites and
21 where -- secondary sites where remains have been broken by machines, that
22 is a type of a very slow velocity blunt force, I mean caused by a
23 machine. High-velocity blunt force caused, for example, by a blast --
24 that would be one of the mechanism is totally different. You have much
25 more fractures -- radiating fractures and all sorts of things.
1 JUDGE ORIE: Thank you.
2 Please proceed, Mr. Stojanovic.
3 MR. STOJANOVIC: [Interpretation]
4 Q. Professor, you spoke about the subsequent information that you
5 got. Did you learn that this grave, Glogova 2, was somehow associated
6 with the developments in and around the Kravica warehouse?
7 A. Yes, that is correct.
8 Q. Professor, in the following paragraph it says that the remains
9 were in clay soil rich in vegetation. The clay soil was foreign to the
10 grave and was deposited together with the bodies. During your work, were
11 you able to find a site that may have corresponded with the structure of
12 the soil that was found in the grave, meaning the clay that was found in
13 the grave?
14 A. You have not mistaken. Dr. Brown prepared a report on the soil,
15 on this foreign soil, and concluded that the foreign soil -- and my
16 apologies, but I believe that is in the report but I'm just speaking here
17 of what I remember, was consistent with some type of meadow type of soil
18 that has been -- where they have been growing maize. That is what I
19 recall from it. But there was a soil analysis made on the sediment by
20 Dr. Brown.
21 Q. And tell me, Professor, when it comes to clay, did it appear or
22 was it found in and around the Kravica warehouse?
23 A. I don't have any -- I mean, any idea regarding that. I can tell
24 you about the clay that was found in the grave. I mean, I have not been,
25 let's say, digging in Kravica, I mean, warehouse. I visited the place
1 many years after, but has no relationship with this in terms of doing a
2 forensic examination of the warehouse, as it were. The clay, I repeat,
3 was found with the bodies in the grave and was obviously foreign to the
4 sediment in which the graves were dug in the first place to collect or to
5 put the bodies inside. So the bodies came with clay. That is a
6 conclusion from the examination of the site. The clay was consistent to
7 have been in an area where maize was grown and was foreign to the
8 specific area where the grave was placed. The relationship within
9 Kravica, the maize, and the clay is something else that I have not
10 personally, I mean, carried out as an investigation. I do have, however,
11 the results of Dr. Brown that were used to substantiate the fact of the
12 maize and the clay.
13 Q. Professor, again, you cannot say anything about the moment when
14 those people died?
15 A. Well, I think we have discussed this issue many times now. I
16 mean, it is not possible from a cursory look at the remains to say
17 whether they died two days ago or three days ago, I mean, a year ago and
18 a year and a half ago, or anything as detailed as that. We are not
19 dealing with a recent crime scene where you do have, let's say, a cadaver
20 on the surface that you can use a number of elements to date it.
21 However, relative dating in this case is primarily carried out through
22 associations of a number of elements. For example, ID cards that were
23 found -- which names were found in the ICRC "Book of the Missing" with
24 dates of disappearance, if I'm not mistaken, yet again that is in the
25 report, between the 11th and the 15th of July, 1995. So that is called
1 relative dating in archaeology as a matter of fact and would be a common
2 tool to establish a relative date, as I'm indicating. So you would say
3 that individuals could not have gone missing after 15th of July because
4 the names were listed as seen last 15th of July. So -- but to answer
5 your question again, no. Through a cursory look it is not possible to
6 say these people died, I don't know, Friday or Thursday or Wednesday.
7 Obviously that wouldn't be the case.
8 Q. Thank you, Professor. And now let us look at P2090. I am
9 interested in page 7 in B/C/S and in page 11 in the English version.
10 Professor, we're talking about the summary of the report on the
11 excavations at the Zeleni Jadar 6 location. And you are here referring
12 to this as one of the ways used to determine the approximate time of
13 death of those people, something that you also used in your analysis?
14 A. Do remember that I believe anyway in the report we have been
15 talking about time of death. We have been saying that people would have
16 been buried about this or that time. Regarding the watches, we refer
17 specifically to the term "death" primarily of the isolation of the wrist
18 based on Mr. Mills' report, but it is correct to say that any
19 identification or document that would have been found in the grave would
20 have been cross-matched with the ICRC "Book of the Missing." And if this
21 person was found in the ICRC "Book of the Missing," this book contains
22 information on when and where this person was last seen and that
23 information would be used to establish this relative dating or to
24 establish the relative chronology of the facts.
25 Q. Professor, that would be this example that you cited here and you
1 mentioned a name, where you found the details and in the database you
2 received information that the man was last seen alive on 12th of July,
3 1995, in Baljkovica, Zvornik municipality. If I tell you that Baljkovica
4 is at least 50 kilometres from Zeleni Jadar, was a geographic analysis
5 included in your investigation? How come that somebody who was seen at
6 Baljkovica on the 12th of July could be found, that is, his body could be
7 found, in the secondary grave of Zeleni Jadar?
8 A. Do remember that Zeleni Jadar, if I'm not mistaken, was a site or
9 was a secondary site related to one of the Glogova sites, meaning the
10 primary remains came or would have come from Glogova, then been robbed
11 from Glogova, and ended up in Zeleni Jadar. So it is obvious that this
12 person -- actually this person was buried originally in the Glogova site
13 and from there was taken to Zeleni Jadar. I do not know how many
14 kilometres there are between Zvornik municipality or the village you
15 referred to and Zeleni -- and Glogova for that matter, but obviously the
16 logic would be different. I mean, if this is a secondary site, the
17 remains would come from one place to the other. And finally, I mean, I
18 cannot provide you an explanation on how this person travelled from
19 50 kilometres from one location to the other. I mean, that would totally
20 escape my expertise. I could, I mean, give you various possibilities,
21 but, I mean, I don't think they would have any interest in this context.
22 Q. Thank you, Professor. I will finish with a short question
23 regarding the grave Ravnice 1.
24 MR. STOJANOVIC: [Interpretation] Could I ask for 52088, page 14
25 in English and B/C/S.
1 Q. And let me ask you, considering that this analysis is in your
2 report from February 2001, but I understood that you actually never
3 visited this location; is that correct?
4 A. Yes, that is correct.
5 Q. Could you tell us whether Ravnice 1 is considered to be a primary
6 or a secondary grave according to the standards you adopted?
7 A. I couldn't -- I couldn't tell you right now. Remember that
8 Ravnice at the time was a site that, if I'm not mistaken, had been
9 subject of a preliminary investigation. So I got only the remains. I
10 did not -- I mean, I didn't have any more information. And this happened
11 in 2000 -- at the end of 2000, meaning when I returned from Kosovo to
12 Bosnia and continued with the laboratory work there. So, I mean, at that
13 time what I do remember is that Ravnice was only preliminary exhumation
14 and I think that they have dug part of it or something of the kind. I do
15 not have much detail. So what I'm reporting here are the results of the
16 examination of the remains without any further information. So -- and
17 even now I wouldn't know whether Ravnice was linked to another site, with
18 a primary or a secondary site, I wouldn't know it.
19 JUDGE FLUEGGE: Mr. Stojanovic, did you ask for 52088 or for
21 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. P52088.
22 P52088, and I asked for page 14 --
23 JUDGE ORIE: Is that an exhibit number? We are not -- luckily
24 enough, we are not yet in the 52.000s.
25 MR. STOJANOVIC: [Interpretation] P2088.
1 JUDGE ORIE: Yes, that's clear now.
2 MR. STOJANOVIC: [Interpretation] Page 14 of this report.
3 Q. What I wanted to ask regarding this analysis, did you have any
4 information that Ravnice 1 grave is a surface grave?
5 A. No, I did not.
6 Q. According to the structure of the mortal remains, were you able
7 to establish whether these bodies had been in the ground deeper or on the
9 A. There was no difference, as far as I recall, between these bodies
10 and other bodies regarding -- I mean, there was no specific
11 characteristics of these bodies that would have been as important as to
12 put them in the report. But do remember, this is only a preliminary
13 report on the anthropological examination. So if there was any other
14 features of interest, we would need to find them in the pathologist's
15 report. There is only the age distribution and sex distribution of the
17 Q. And I will end with this question: After the advances made in
18 DNA analysis, would the methodological approach we discussed yesterday
19 concerning the -- establishing the lowest, minimum, number of persons
20 become pointless if we have a good DNA analysis?
21 A. Well, it doesn't because of a -- I mean, of a very simple reason.
22 DNA analysis, no matter how available it is and mechanised, because right
23 now you can work with robots and all sorts of things, still needs a basis
24 to exist, so to speak. DNA analysis is a complementary, very important
25 complementary element to any other kind of analysis. So how would you go
1 about DNA analysis if you don't even know how many people you have or you
2 may have? For some people, the way to go could be, for example, to
3 sample everything. That would be an alternative, of course. I mean, you
4 would go to a grave and just simply rather than counting anything, you
5 would cut a piece of each of the remains, send them for analysis, and
6 then try to find out, to establish, relationships. But I give you an
7 example, let's imagine for a moment that in a grave you find hundreds, if
8 not thousands, of bits and pieces of people, what would be easier to
9 begin with, to determine how many people you have at least represented
10 there and then try to re-associate some parts, or simply in this case to
11 sample every single piece and try to re-associate everything, assuming
12 there are some pieces that may not provide DNA. So you may have, for
13 example, I don't know, a foot, are you going to take a piece of the foot
14 and you won't get any DNA. So you still have a foot that you cannot
15 associate to anybody.
16 So in my humble opinion, I would say that this type of approach,
17 the MNI, in that respect is, I mean, totally, totally valid. It is a
18 starting point; it is not the end point. It is a starting point of any
19 investigation. It's just pure logical, I mean, work. I mean, it's not
20 old-fashioned, so to speak.
21 Q. Thank you, Professor. Let me conclude. According to the rules
22 of your profession, are you able to rule out the possibility that the
23 bodies of a certain number of persons killed in combat were brought to
24 the so-called primary graves and buried there together with the bodies of
25 persons who were unlawfully executed?
1 A. It is -- it is very clear that some graves contain people that
2 died at least in special circumstances. One of them would be the Glogova
3 graves that we referred to a moment ago regarding blast injuries, for
4 example, as compared to other graves where people died of gun-shot
5 wounds. It is not my role, of course, to qualify whether blast injuries
6 account for casualties in combat, nor whether gun-shot injuries account
7 for the same. What remains very clear is that in some occasions there
8 were people that were shot while lying in the grave, and that by
9 definition, in my opinion, would exclude the possibility of combat
10 inasmuch as somebody is lying in a grave, and if there is a grave the
11 intention is to bury somebody. That would be the logic of events.
12 Now, as a possibility - and what you're proposing is a
13 possibility - I would say that everything is possible but not everything
14 is probable. I mean, of course it is possible, but every single thing in
15 this planet is possible 50/50. So that bodies in some occasions could
16 have been brought in from elsewhere or from a battle or something. It is
17 possible. None of the things I have related in this report, however,
18 point to the fact at -- specifically at this. I would say the opposite.
19 If this was the case, why there would have been so much investment of
20 time and energy to destroy some of the sites? That's something I can
21 still not understand. My report discusses at length the attempts of
22 individuals to rob these sites with machines and excavators and all the
23 rest of it and create these secondary graves, and that for me, yet again
24 in my opinion, has to do more with concealment and destruction than
25 anything else. If all the graves were graves of people that died in
1 combat and have been just disposed there for humanitarian reasons, there
2 would have been no reason to go back and destroy them. But obviously
3 this is just my personal opinion.
4 Q. And you will agree that this is an opinion which is not a result
5 of your science but --
6 JUDGE ORIE: Mr. Stojanovic, first of all, the witness explained
7 that. Second, you have now put your third final question to the witness.
8 I think the witness has been very clear that this was his personal
9 opinion and -- [overlapping speakers] --
10 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. And I
11 thank the expert.
12 THE WITNESS: Thank you, counsel.
13 JUDGE ORIE: Ms. Lee, any questions in re-examination.
14 MS. LEE: Yes, but I'll be very brief.
15 JUDGE ORIE: Yes.
16 MS. LEE: May I have P2086 back on the screen. And may I have
17 page 41.
18 Re-examination by Ms. Lee:
19 Q. Mr. Baraybar, if you look at the first paragraph, and today you
20 spoke about Dr. Brown's report in relation to the Glogova 2 site, and you
21 referred to Dr. Brown's report and the analysis of soil and it says
22 "Brown 1999a."
23 MS. LEE: And may I have now, please, P -- I'm sorry, page 43 of
24 the same report.
25 Q. The first item, 1999a, is that what you were citing in your
1 report earlier?
2 A. Yes, it is.
3 MS. LEE: Now may I please have 65 ter number 04503.
4 Q. In that report -- I'm sorry, before we go there, the first item
5 it says statement to the ICTY and then it's dated the 29th of November,
7 A. Yes.
8 [Prosecution counsel confer]
9 MS. LEE: I apologise. May I please have 65 ter number 04503,
11 Q. Now this report is -- appears to be Dr. Brown's report from 1999.
12 MS. LEE: And now may I please have page 4.
13 Q. Mr. Baraybar, is this the report that you're referring to when
14 you spoke about the soil analysis containing maize in Glogova site?
15 A. Yes, I believe it is.
16 MS. LEE: Your Honours, can I please -- I would like to tender
17 this document.
18 JUDGE ORIE: Mr. Stojanovic.
19 MR. STOJANOVIC: [Interpretation] Your Honours, if I understood
20 correctly, that's the entire expert report.
21 JUDGE ORIE: What it is, Mr. Stojanovic, is a five-page document,
22 so the entire report is -- it is a statement of witness, it says. And it
23 refers to reports.
24 MS. LEE: It refers to the Glogova evidence and the Nova Kasaba
25 site. And these -- this is a report that had been -- the witness was
1 asked questions about this area and the witness says that he relied on
2 this report. And so --
3 JUDGE ORIE: Yes, as a factual basis.
4 Is there any dispute about the existence of such a report in
5 which this conclusion appears?
6 MR. STOJANOVIC: [Interpretation] Your Honour, there is no dispute
7 about this report, but from the methodological point of view, this kind
8 of tendering is something you told us could not be acceptable in terms of
9 92 bis or 92 ter. This would then be the statement of this witness.
10 JUDGE ORIE: Ms. Lee, a statement taken for the purposes of this
11 Tribunal, that seems to be not a methodological, but, I would rather say,
12 a procedural issue raised by Mr. Stojanovic.
13 MS. LEE: I understand that, but this -- on this page
14 specifically it refers to Glogova but it also refers to Zeleni Jadar and
15 the link between the two, and that is something that had been challenged
16 during cross-examination. And --
17 MR. STOJANOVIC: [Interpretation] Your Honours, with your leave --
18 JUDGE ORIE: Well --
19 MR. STOJANOVIC: [Interpretation] -- just one clarification. What
20 is in dispute - and you saw this through questions - is not whether
21 Glogova was a primary site and Zeleni Jadar secondary. What is in
22 dispute is Kravica as the site of execution and the link with Glogova.
23 But there is nothing, not a single word, in this report about this link.
24 And at any rate, the statement should not be tendered or admitted in this
1 JUDGE ORIE: Whatever it refers to, Ms. Lee, doesn't change
2 Rule 92 ter, would it?
3 MS. LEE: Yes, but this is more of a report and not a -- this is
4 not the same ICTY-type of witness statements that we received. This is
5 Dr. Brown's report. It's been referred to as report and --
6 JUDGE ORIE: And how do we deal with reports under the Rules? It
7 seems to be pretty much -- at least it has the appearance of containing
8 some expert knowledge in reports. What is the usual way of dealing with
9 expertise as contained in reports?
10 MS. LEE: Well, this is a report that was -- we are not calling
11 Dr. Brown as a 94 [sic] bis witness, Your Honour. However, this is a
12 report that this witness has testified about, that he has referred to,
13 and it relates to a matter that has been challenged by the Defence in
14 relation to the maize --
15 JUDGE ORIE: What -- the reference I think was - and that's what
16 you pointed at as well - was that -- that's how I think the witness dealt
17 with it. It's about conclusion number 3:
18 "The GL03 matrix is from an open environment, probably a meadow
19 which has in the past been used under cereal cultivation including
20 maize ... cultivation (probably the previous season)."
21 I think that is the only reference the witness made to this
22 report of Dr. Brown, isn't it?
23 MS. LEE: Yes, and we've heard evidence about Sandici meadow in
24 this --
25 JUDGE ORIE: Yes, but again you go to the substance. I'm still
1 there with procedure. The witness referred as a basis for his answer to
2 what he says he read in a report by Dr. Brown. Is there any dispute
3 about what I just read being in the report of Dr. Brown? Because if not,
4 then I think the witness -- the reference of the witness to the factual
5 basis for what he further elaborated on seems not to be in dispute. If
6 you do dispute it, then --
7 Mr. Stojanovic, what I just read, any dispute that that's part
8 of -- that that is found in Dr. Brown's report?
9 MR. STOJANOVIC: [Interpretation] No, no. That part is not in
10 dispute. It is there and it relates to the link between Glogova and
11 Zeleni Jadar, not Kravica.
12 JUDGE ORIE: Which means that the parties agree on at least what
13 the reference about the -- what Dr. Brown found in relation to ground
14 which would have been used to cultivate maize.
15 [Trial Chamber confers]
16 JUDGE ORIE: The Chamber will consider it, but we would like to
17 re-read exactly the context in which the matter was raised by
18 Mr. Stojanovic and the maize and distance and -- before we decide. But
19 at least it is on the record that where the witness referred to a finding
20 of Dr. Brown, that the parties agree that such a finding by Dr. Brown
21 appears in the report as I just read it.
22 MS. LEE: Thank you, Your Honours.
23 JUDGE ORIE: Any further questions? You don't have to invent
24 them now but --
25 MS. LEE: I will not --
1 JUDGE ORIE: -- if there were any --
2 MS. LEE: I don't. But if you could just give me a moment.
3 JUDGE ORIE: Yes.
4 [Prosecution counsel confer]
5 MS. LEE: I have no further questions, Your Honour.
6 JUDGE ORIE: No further questions. Then we are close to the time
7 for a break. One second, please.
8 [Trial Chamber confers]
9 JUDGE ORIE: Since the witness is about to leave, we would like
10 to re-read the transcript right away.
11 [Trial Chamber confers]
12 JUDGE ORIE: The witness on page 8 in his answer referred to a
13 report of Dr. Brown about the analysis of the soil and he mentioned
14 growing maize in this respect, and there seems to be no dispute between
15 the parties that such a report does exist and that the recollection of
16 the witness, therefore, accurately reflects what is in that report.
17 Under those circumstances, the Chamber denies admission into evidence of
18 the report itself because it would have required a -- either a 92 bis,
19 92 ter, or an expert report treatment before we could admit it. The
20 report is made for the specific purposes of this Tribunal.
21 Then, Mr. Baraybar, this -- but I first have to ask
22 Mr. Stojanovic whether he has any further questions.
23 MR. STOJANOVIC: [Interpretation] No, Your Honour. Thank you.
24 JUDGE ORIE: Neither have my colleagues.
25 Therefore this concludes your testimony. I would like to thank
1 you very much for coming a long way to The Hague and for having answered
2 all the questions that both the parties and the Bench have put to you and
3 I wish you a safe return home again.
4 THE WITNESS: Thank you, Your Honour.
5 JUDGE ORIE: You may follow the usher.
6 THE WITNESS: Thank you.
7 [The witness withdrew]
8 JUDGE ORIE: We will take a break of 20 minutes. We'll resume at
9 10 minutes to 11.00 and then the Prosecution will call its next witness.
10 --- Recess taken at 10.29 a.m.
11 --- On resuming at 10.53 a.m.
12 JUDGE ORIE: Mr. McCloskey, the next witness to be called would
13 be Mr. Butler?
14 MR. McCLOSKEY: Yes, Mr. President. I'm --
15 JUDGE ORIE: We will already ask him to be escorted into the
16 courtroom, unless there's any reason why we should delay that.
17 MR. McCLOSKEY: I'm just getting settled so I can hear things and
18 get back to this courtroom. It's been a while.
19 JUDGE ORIE: Could Mr. Butler be escorted into the courtroom.
20 MR. McCLOSKEY: And, Mr. President, good morning, Your Honours,
21 everyone. I -- you will have seen I requested an estimate of ten hours
22 for Mr. Butler, and I have made every effort to try to make this as
23 targeted and narrow as possible. It's much, much shorter than I have
24 done in the past, but I do encourage you to ask questions because I may
25 be jumping to places where I may have spent more detail before, though
1 I'm confident we can get through this.
2 JUDGE ORIE: Time estimates, Mr. McCloskey, are a difficult
3 matter, I'm aware of that, especially if it goes beyond two or three
4 hours you're encouraged to reduce but at least stick to it. And don't
5 hesitate -- don't worry about the Judges asking questions. You may have,
6 by now, gained the experience that we do if we think that there's
7 something relevant to be asked.
8 MR. McCLOSKEY: Yes, thank you. I know I don't really have to
9 encourage you, but I just -- I welcome them.
10 [The witness entered court]
11 JUDGE ORIE: Good morning, Mr. Butler, I take it. Before you
12 give evidence, the Rules require that you make a solemn declaration, the
13 text of which is now handed out to you.
14 THE WITNESS: Yes, sir.
15 JUDGE ORIE: May I invite you to make that solemn declaration.
16 THE WITNESS: I solemnly declare that I will speak the truth, the
17 whole truth, and nothing but the truth.
18 WITNESS: RICHARD BUTLER
19 JUDGE ORIE: Thank you, Mr. Butler. Please be seated.
20 Mr. Butler, you'll first be examined by Mr. McCloskey. I don't
21 have to tell you that you find him to your right because you know him.
22 Mr. McCloskey, you may proceed.
23 MR. McCLOSKEY: Thank you, Mr. President.
24 Examination by Mr. McCloskey:
25 Q. Can you state your name, please.
1 A. Yes, sir, my name is Richard Butler.
2 Q. And what is your -- I'm reminding myself to pause, as I remind
3 you, Mr. Butler. What is your current position and job?
4 A. I am an intelligence research specialist, in my case the
5 intelligence operations manager, for the Human Rights Violators and War
6 Crimes Centre, which is a component of the United States Department of
7 Homeland Security, US Immigration and Customs Enforcement.
8 MR. McCLOSKEY: Can we have 65 ter number 26039.
9 Q. It should be your CV. How long have you worked for the
10 Federal Government? I'm not including the United States Army in that.
11 A. I departed the Tribunal in November of 2003. I became employed
12 by the United States Federal Government in February of 2004.
13 Q. All right. And we can see from the first page of your CV that
14 it's dated 10 June 2011. Anything major to add in terms of different
15 work from June 2011 to today?
16 A. No, sir.
17 Q. Can you tell us very briefly a little bit about that work that
18 you do for the Department of Homeland Security.
19 A. To a large degree, it is a similar type of work that I used to do
20 for the Tribunal here. In this particular instance, I both do my own
21 individual analysis as well as I manage an analytical team that supports
22 domestic investigations by the United States Government into individuals
23 who have committed human rights violations abroad and whom we now
24 determine are within the jurisdiction of the United States for either
25 criminal prosecution purposes or immigration purposes.
1 Q. So do you work --
2 JUDGE ORIE: May I take it that you said who have committed but
3 are suspected of having committed, is that what you intended to say?
4 THE WITNESS: In some cases there are individuals again suspected
5 of having committed human rights violations. In some cases there are
6 individuals who have been charged or even convicted in absentia and who
7 have fled to the United States in order to avoid sentence or other things
8 abroad so --
9 JUDGE ORIE: You say for criminal prosecution those are the
10 suspects and for the other category it may be that they have been
11 convicted already?
12 THE WITNESS: Yes, sir.
13 JUDGE ORIE: Thank you.
14 MR. McCLOSKEY:
15 Q. And in that capacity, do you work with federal investigators and
16 prosecutors and sometimes testify in prosecutions?
17 A. Yes, sir, I do.
18 Q. All right. Now, your job before the Federal Government, as you
19 noted, was with the Office of the Prosecutor here at the ICTY. And how
20 many years did you work here?
21 A. I was with the Office of the Prosecutor of the ICTY from April of
22 1997 to November of 2003, so that's almost seven years.
23 Q. And we'll get into that in a bit of detail, but what I'm going to
24 ask you now about is your career in the United States Army. As we can
25 see from your CV, you've been an intelligence officer, it looks like, the
1 majority of the time. Can you tell us when you enlisted in the
2 United States Army?
3 A. That would be back in August of 1981, sir.
4 Q. And was that out of high school or secondary school?
5 A. It was approximately two years after high school.
6 Q. And when did you become an intelligence officer?
7 A. I spent the first roughly seven years of my military career as
8 first an enlisted soldier and then as a non-commissioned officer in the
9 intelligence field. And in 1988 I was appointed as a warrant officer in
10 the United States Army, again in the intelligence field and ultimately
11 was commissioned in 1990.
12 Q. Describe again briefly your advancement through the intelligence
14 A. Again, as an enlisted soldier and non-commissioned officer, I had
15 a variety of jobs at various military units where I learned how to
16 conduct various forms of intelligence work. My primary career field was
17 that of an analyst. So it was during those years at a number of
18 assignments, some of them strategic assignments with the military
19 intelligence group, some of them tactical assignments with combat
20 formations, that I essentially learned my trade of how to conduct
21 intelligence work in support of military commanders.
22 Q. And we can see from your CV that just prior to coming here you
23 describe your job as an all-source intelligence technician. Can you give
24 us the guts of what kind of work you do for your superiors, what kind of
25 material you analysed?
1 A. Yes, sir. In 1988, again, I was appointed as a warrant officer.
2 In the United States military, warrant officers are considered to be the
3 technical experts of a various branch in a variety of fields. In my case
4 as an intelligence officer, intelligence warrant officer, I was the
5 technical expert in the field of intelligence. I continued to apply my
6 trade with respect to intelligence collection and analysis as an expert
7 at higher levels, at division, at corps, and at army levels in positions
8 of greater and greater responsibility.
9 Q. And have you -- and I know we can't get into the details of your
10 work in any combat zones, but have you worked in a combat zone?
11 A. Yes, sir. I've worked in a combat environment.
12 Q. And can you tell us what kind of materials you were able to
13 review as an intelligence officer and analyse and did it have anything
14 similar to what you ended up looking at here in brief?
15 A. Within the field of intelligence and analysis work, it is broken
16 up into several disciplines of intelligence. They're most broadly
17 referred to as HUMINT or human intelligence, which is various forms of
18 intelligence and information derived from human sources. That would
19 include things, for example, like the interview of individuals, refugees,
20 prisoners of war, line-crossers, things of that nature. It would include
21 the debriefing of clandestine sources of information that are collected
22 from other humans. It would include -- under that genre we also include
23 document exploitation, which would be the review and analysis of captured
24 military documents, map products, things of that nature. It also
25 includes what we call open-source exploitation, which is the review of
1 not necessarily classified but other important documents that might be --
2 one might be able to derive intelligence value from, such as military
3 magazines, such as articles pertaining to various military forces by
4 outside experts.
5 The second major discipline is known as SIGINT or signals
6 intelligence and it is the classical use of information that is derived
7 from an adversary's electronic use of media. In a technical sense, it is
8 the intercepting of an enemy combatant's radio communications. It would
9 include the intercept or the exploitation of even non-communications
10 emitters, such as radars. Today, as many people are obviously becoming
11 aware, it includes things such as potentially computers and the internet.
12 So it is a broad field with respect to signals intelligence and
13 communication intelligence.
14 The third of the fields is imagery intelligence or IMINT as it's
15 called, and that is the exploitation of imagery-related products for the
16 ability to derive intelligence information from them. Those could
17 include things such as photographs taken from ground level. It would
18 include aerial imagery. It would include digital imagery. So again, a
19 variety of information sources that as an all-source intelligence
20 technician I was required to be proficient in.
21 [Trial Chamber confers]
22 MR. McCLOSKEY:
23 Q. Would you be -- would the rules of an enemy or an army related to
24 their internal processes or their external or their laws be anything that
25 you would be interested in or did you leave that to others?
1 A. No, sir. That would obviously be something that as a
2 professional military analyst I'm interested in. My role at the end of
3 the day in support of my commanders is to be able to advise them on what
4 a potential armed adversary is doing and to assist them in essentially
5 their goal, which is defeating an armed adversary. For me to do that, I
6 obviously have to be able to understand, to the maximum degree possible,
7 the ability of that enemy or armed adversary as they operate on a modern
8 battle-field. That would include, for example, understanding how their
9 command and control functioned. It would include, for example,
10 understanding the professional military background of their key
11 commanders. It would matter that I understood how military forces
12 supplied themselves with food, with fuel, with ammunition, and other
13 technical services, all of those things that if my military force that I
14 work for could understand and attack, it would degrade their
16 Q. How would you communicate your analysis, your views, to your
18 A. It would depend primarily on the circumstances at the time. If I
19 were an intelligence professional at a small unit that was immediately
20 and decisively engaged in combat operations, most of my analysis and
21 findings would be obviously oral in nature or very sketchy written
22 products that could be quickly put together. When I was in assignments
23 that allowed for time to create detailed analytical products and reports,
24 that is how I answered those requirements.
25 Q. Let me -- can you clarify what you meant by the American slang
2 A. Again, it's not an issue of the quality of the work. It's an
3 issue of the time involved. There's just not time at certain places and
4 certain locations to get into a great amount of details. So you had to
5 be obviously aware of how much time that you had with your commander to
6 be able to get him the most pertinent and salient facts.
7 Q. Now, I want you to be able to tell us a bit how what you've just
8 described as your work for the United States Army, how -- if that had --
9 was similar to the work you did here. But first, when you first came on
10 to the Office of the Prosecutor, were you employed by the United Nations
11 or by the United States Army and how did that work?
12 A. At that time I was not a United Nations member. I was still a
13 warrant officer in the United States Army. I was seconded to the
14 US Department of State, which in turn loaned me to the Office of the
15 Prosecutor of the ICTY. So again, I was, for official purposes, seconded
16 by the United States Government to the Office of the Prosecutor. And I
17 remained in that status for five years. When I retired from the
18 United States Army in 2001, the United Nations then signed me to one of
19 their standard United Nations civil servant contracts. So for my last
20 two years in The Hague, I was a United Nations civil servant or a UN
22 Q. And for the majority of your time at the OTP, did you work for
23 one investigation in particular?
24 A. Yes, sir. I arrived in April of 1997, and if I recall correctly,
25 in June of 1997 I was assigned to support Srebrenica investigation.
1 Q. All right. So for those several years that you worked in support
2 of the Srebrenica investigation, can you again briefly outline for us the
3 kind of work you did, especially as it related to the kind of work you
4 just described that you did for the United States Army?
5 A. Yes, sir. One of my early requirements placed on me by the
6 investigators who were looking at Srebrenica was to try and gain an
7 understanding of at that time, you know, what was the Drina Corps as an
8 entity because from the investigation they were already deriving evidence
9 that suggested that elements of the Drina Corps of the Army of
10 Republika Srpska might have some involvement in the larger crimes. So as
11 the first component of my work, first it was understanding how the Army
12 of the Republika Srpska worked and how it was organised in July of 1995,
13 and I approached that in much the same manner that I would and did in the
14 United States Army against other adversaries.
15 Using the rules and regulations of the former JNA, which had been
16 translated, I studied those rules and regulations to determine if the
17 Army of the Republika Srpska was still following those rules and
18 regulations and the associated operating practices. I then started to
19 look at the few documents that we had at the time that laid out the
20 organisation and structure of the Army of the Republika Srpska as it
21 existed in 1995.
22 In 1998, the Office of the Prosecutor was, you know, conducted a
23 number of searches in the Republika Srpska, two of which were subordinate
24 brigades of the Drina Corps, the Zvornik Brigade and the
25 Bratunac Brigade, and in those searches the Office of the Prosecutor
1 obtained I think approximately 17.000 documents from those units, which
2 greatly advanced my particular knowledge of the organisation of the
3 Drina Corps, the organisation of the various brigades and battalions of
4 the Drina Corps, and how the command relationships worked.
5 At approximately the same time, the Office of the Prosecutor
6 started to obtain what we call intercepts which were -- the intelligence
7 intercepts, the radio intelligence intercepts collected by the Army of
8 Bosnia-Herzegovina that they had collected against the Army of the
9 Republika Srpska during the conflict are particularly in Eastern Bosnia
10 during the month of July in 1995. So I was also able to analyse that
11 material and integrate it into my running analysis as to the involvement
12 of the army, the Drina Corps and subordinate formations, in what would be
13 the Srebrenica 1995 crime base.
14 Q. Let me interrupt you there. Did you take these intercepts at
15 face value or did you look into any reliability issues?
16 A. No, sir. Clearly with the intercepts being provided to the
17 Office of the Prosecutor by a third party, just like I would with any
18 information being provided by a third party, we were and I was personally
19 very skeptical of that information.
20 Q. Let me again interrupt you. This wasn't just any third party,
21 was it?
22 A. No, it was the other affected party.
23 Q. And just who - I think we know that - but can you just identify
25 A. Most of the intercepts came from the radio intelligence
1 collection units of the Bosnian 2nd Corps, which, of course, was directly
2 involved in ground combat against their counterparts of the Drina Corps.
3 Q. All right. And in your review of that material, did you find it
5 A. Well, ultimately I came to find it valuable because we were able
6 to corroborate much of the information that was contained in those
8 Q. All right. And I won't get into that. So you've mentioned your
9 review of documents, now intercepts. What else were you able to review
10 as the investigation carried on?
11 A. As the investigation carried on, particularly at the end of 1998
12 and during 1999 when it really took off in earnest, the Office of the
13 Prosecutor began to get granted access by the Government of the
14 Republika Srpska to a number of VRS military officers and soldiers who
15 were part of the Drina Corps in July of 1995 as well as other officers of
16 the Main Staff. So once we started having access to those individuals,
17 it was an opportunity there to take my particular analysis of the
18 situation as well as the documents that we had and ask those particular
19 officers what their view of particular documents meant and whether or
20 not, you know -- essentially to determine whether or not the basic
21 analysis that I had accomplished with respect to the rules and
22 applicability of the JNA applying to the VRS during the course of the
23 service, whether those rules had changed, whether they were still
24 following the operating procedures of the former Yugoslav national army
25 even though they were now the new Army of the Republika Srpska. And by
1 and large these officers confirmed that the rules and regulations of the
2 former JNA and the former Soviet -- Socialist Federal Republic of
3 Yugoslavia were still being applied to the VRS in July of 1995.
4 Q. You mentioned you had access to VRS people or the OTP did. Did
5 that include access to police, MUP, civilians as well to some degree?
6 A. Yes, sir. With respect to police in the MUP, and of course my
7 particular interest them was as a result of their subordination to the
8 army leadership at the time in July of 1995. I had access to other
9 civilians also, either personally or, you know, participated in interview
10 or statements of certain political officials, but generally my focus was
11 on the military relationships between the army and the police and then
12 their inter-relationships with the political branches, not necessarily
13 the politics in general.
14 Q. Now --
15 JUDGE ORIE: Mr. McCloskey, could I take the witness back to one
16 of his previous answers and seek clarification.
17 You were asked, and I read from the transcript:
18 "Did you take these intercepts at face value or did you look into
19 any reliability issues?"
20 The answer then was:
21 "No, sir. Clearly with the intercepts being provided ..."
22 And then you said you were skeptical about the value.
23 Now, first of all, may I take it that "no, sir" is only an answer
24 to the first part of the question, that is, whether you took the matter
25 at face value --
1 THE WITNESS: Correct, sir.
2 JUDGE ORIE: -- and not to whether you looked into reliability
3 issues? Because I do understand the answer there would be "yes."
4 THE WITNESS: We spent -- and not only myself but other analysts
5 involved in the team spent several years over the course of working this
6 investigation dealing with the question of the reliability of the
7 intercepts, and again I was obviously part of that as well.
8 JUDGE ORIE: So not only you were skeptical, but a lot of time
9 was spent on investigating it. Now, did you ever come across an
10 intercept where you said: Well, this is not reliable to the extent that
11 it would have been a forgery or with wrong dates or -- I mean, because
12 that's -- that's what I would like to know, whether that happened or
13 whether you always found them to reflect what -- what was said at the
14 time reported through the communication as reported?
15 THE WITNESS: When -- when one uses the phrase, when you look
16 at -- looking at the reliability of signal intercept information -- and I
17 have to remind people, and I've testified to this in the past, there are
18 two criteria that you are using. The first one with respect to
19 reliability is from a technical perspective. Does the individual or
20 collection entity actually have the technical ability to collect the
21 information which they are now telling you that they have possession of?
22 And so there was part of the investigation that established that the
23 Bosnian 2 Corps and its associated intelligence elements had the
24 technical ability to collect against the VRS communications, and in this
25 sense they did so reliably. What they heard and what they copied was
1 what ultimately became part of the intercept reports that they provided
2 to their own commanders.
3 The second part of reliability, as one looks at it from an
4 intelligence standpoint, is making a determination as to whether or not
5 the actual information that is contained in the intercept is factual.
6 And there will be I think in some of the exhibits I will discuss, there
7 will be situations where an intercept is factually accurate with respect
8 to what has been heard and transcribed by the operators, but the fact is
9 that the individuals who were communicating back and forth over the
10 telephone do not have an accurate picture of the truth. So you know, in
11 that particular context what I can tell you clearly is that we have been
12 able to establish the reliability of the intercepts, that they're not
13 fraudulent for this case or in the cases that we discuss here. However,
14 there will be times when it will become clear that correspondence in a
15 particular intercept will be discussing a situation but not have an
16 accurate view of what they're discussing.
17 JUDGE ORIE: Yes. And you never came across any fraudulent
18 writing down what was never heard and what was never said or could not
19 have been intercepted?
20 THE WITNESS: No, sir.
21 JUDGE ORIE: Thank you. That answers my question.
22 Please proceed, Mr. McCloskey.
23 MR. McCLOSKEY:
24 Q. Related to that, the Trial Chamber has heard evidence that
25 misinformation over the airways, deliberate -- sending out deliberate
1 false information, knowing the enemy is listening, is something that
2 armies do. Is that correct?
3 A. Yes, sir.
4 Q. Did you come across anything that you believed was misinformation
5 sent out by the VRS?
6 A. I don't recall that I did. It was something obviously that I was
7 looking for, it's something that we practice in the US military. Again,
8 it goes back to understanding the purpose of misinformation, and that is
9 in a military environment to draw the attention of, first, the
10 intelligence individuals and then the generals or commanders who you're
11 advising, to draw them away from one part of a battle-field to another
12 during a critical point in time or in an operation. The thing about a
13 misinformation campaign is it can't obviously last for a long time
14 because at some point the intelligence does become aware of what is
15 really happening. So when we talk about, for example, putting together a
16 dummy communications network to allow the enemy to think that another
17 infantry division, for example, is operating in this area, you recognise
18 that at some point in time other forms of intelligence are going to
19 confirm or deny that that division actually exists. So you're trying to
20 buy yourself time for maybe 24 or 48 hours before, for example, you know,
21 a reconnaissance flight goes over and shows an empty desert where there's
22 supposed to be hundreds of tanks.
23 The second part of looking at many of these intercepts is the
24 content of the intercept, is it designed to draw the individual who would
25 be collecting it, in this case the Bosnian Muslim 2nd Corps, away from
1 critical areas of the battle-field. Now, when one looks at the body of
2 intercepts as a whole, it becomes clear that the intercepts that are
3 being collected by the Bosnian Muslims is not, in fact, focusing their
4 attention to other less critical parts of the battle-field. It, in fact,
5 mirrors the communications that the VRS is doing at critical points in
6 time on the battle-field and even with respect to the execution of war
7 crimes in 1995. So, in fact, they're not drawing any attention away from
8 these issues through careless communications security procedures; they're
9 actually focusing the attention of the Army of the Bosnia-Herzegovina
10 2nd Corps people to those very issues that at other levels they're
11 seeking to avoid attention.
12 Q. Okay. Can you tell us what your role in the investigation was,
13 in particular you've mentioned a process by which access was gained to
14 VRS officers. Did you play a role in the investigation? Did you play a
15 role in the interviews?
16 A. Yes, sir, I did. Again, just like within the context of my
17 military position, my job was to analyse military-related information and
18 provide that information to the investigators and the prosecutors who
19 were reviewing the actual criminal aspects of what was -- what is now the
20 Srebrenica crime base. Clearly in context, given the suspected heavy
21 involvement of the Drina Corps and the Main Staff and associated RS
22 police units in the conduct of the crime, my work obviously had a big
23 role, I suspect, in helping to focus the investigators and the
24 prosecutors towards the key events as well as allowing them to understand
25 the authorities of the various commanders on the ground who were
1 controlling such events as they occurred.
2 Q. So in particular, what was your role in an interview? Why would
3 you go and be involved in an interview?
4 A. Many of our investigators did not have prior military service
5 and, of course, were obviously qualified professional criminal
6 investigators, but they were interviewing military officers. Often these
7 officers would explain, as I do, issues in a very technical sense. And
8 as a military professional myself, one of my roles was to then advise the
9 investigator: Here's what he's saying, here's what the individual means
10 by that, as well as to suggest follow-up areas of potential interview to
11 clarify certain areas.
12 Q. All right. And at some point throughout all this investigation
13 and involvement, were you asked to write reports with your analysis?
14 A. I was not asked to write reports per se early on. What I decided
15 based on my previous experience was that, again acknowledging that many
16 of the investigators and legal officers on the investigation team did not
17 have a military background, what I decided to do was create a series of
18 running narratives or reports on various aspects of the Drina Corps, the
19 Main Staff, the various brigades, and the military documents and how they
20 related to events on the ground in July of 1995 so that the investigators
21 and the lawyers would have a running guide to what was happening with
22 respect to the Drina Corps, what the documents meant in context to the
23 events that occurred on the ground back then, who each person was who
24 signed a document, all of those things so they would have a more
25 comprehensive understanding of the military's role with respect to what
1 was happening there in July of 1995. And again, keeping in mind I'm
2 doing all of this years after the actual commission of the crime.
3 It turned out after the indictment of General Krstic, when people
4 started thinking through perhaps the most effective way to explain all of
5 that information to the Trial Chamber in the case of General Krstic, that
6 one of the options that was posed was if we could take these existing
7 narratives that I was drafting and turn them into formal reports that
8 could then potentially be submitted by the Office of the Prosecutor to
9 the Trial Chamber as exhibits.
10 Q. And you mentioned narratives regarding events and such. Did you
11 separate the report from something you've called a command report?
12 A. Yes, sir.
13 Q. Can you briefly explain that. The Trial Chamber has those
14 reports and so we don't -- I don't want to get into great detail, but I
15 do want to understand how you put these together. So what's the
17 A. The command reports, you know, since we're dealing with generals,
18 colonels, military officers who are operating under the authorities
19 granted to them by their respective states and governments, I felt it
20 would be useful for our investigators and legal professionals to have a
21 listing of all of the various authorities by which these officers
22 operated under law in their own environment. So the command reports
23 essentially lay out four various echelons of command, the types of
24 authorities and responsibilities of these individuals as it occurred
25 under their own rules and regulations; what were the authorities of a
1 brigade commander under VRS procedures and law, under the regulations;
2 who was responsible for appointing these commanders; what were the limits
3 of their authority at various echelons of command. So that was the
4 function of what I call the command responsibility reports, to
5 essentially lay out the regulatory and legal framework of how an
6 individual assumes and functions in a position of command in the Army of
7 the Republika Srpska and what that actually means under their rules and
9 Q. And so just describe which separate command reports you've
10 drafted. I will offer those into evidence afterwards, but can you -- so
11 we have a clear view of that, what were they entitled, roughly, or what
12 were they about just each one in a sentence or so.
13 A. Yes, sir. There's one that covers VRS corps-level command.
14 There is one that covers brigade-level command. And there is one report
15 that covers command at the Main Staff level.
16 Q. All right. And now the narrative reports, how many narrative
18 A. There are two versions of the narrative report: An initial
19 report that was done and submitted as evidence by the Office of the
20 Prosecutor in the Krstic case in 2000; and I subsequently revised and
21 expanded that report in 2002 for use in the Prosecutor's case against
22 Colonel Blagojevic and Major Jokic.
23 Q. All right. And in the narrative, as you've described it, did you
24 use and analyse many of the sources of intelligence that you've just
25 described, signal intelligence, documents, and such?
1 A. Yes, sir. In the narrative report is where I attempt in as much
2 detail as I could possibly do at the time to lay out the military context
3 of what was happening in Eastern Bosnia with respect to Srebrenica in
4 July of 1995 based on my analysis of the military documents and of the
5 intercepts that we had possession of.
6 Q. What about human intelligence of -- or the human information from
7 interviews of alleged victim survivors and witnesses, which we all know
8 that there are thousands of such, if not millions of such, interviews,
9 how did you use or not use that kind of material?
10 A. As a rule, I did not use that information with respect to witness
11 interviews, interviews of military officers, things of that nature. If
12 there's one artificial aspect to what I've done with the narrative, it is
13 because I also do recognise that this is a judicial process at the end of
14 the day. And knowing that many of those individuals would be called to
15 testify before the Tribunal, it's certainly not my position to endorse or
16 in another manner weigh the accuracy or the credibility of their
17 testimony; that's obviously the Trial Chamber's position.
18 Where I included witness testimony it is primarily for survivors
19 of mass executions and it is only for the limited purpose of setting the
20 context of that event so that the military documents that I have been
21 able to assemble with respect to those things have some form of context
22 and meaning. So, for example, in my report I will go into a very limited
23 discussion of a survivor's account of the Orahovac execution, only for
24 the purpose so that the reader of that report can then understand what
25 engineer documents related to bulldozers at Orahovac meant in context of
1 what was occurring at the time.
2 Q. All right. I would like to now take you through what will --
3 should be a narrative in some respects, where I will ask you your views
4 on various documents that you have testified about or incorporated about
5 over the years in your reports, trying to get rather quickly to the
6 summer of 1995.
7 MR. McCLOSKEY: So if we could begin that process, the first
8 document I'd like to go to is at P338. And this is called "The Analysis
9 of Combat-Readiness and Activities of the Army of Republika Srpska in
11 And I'd actually -- I apologise. I would like to offer the CV
12 into evidence as well, 26039.
13 MR. IVETIC: No objection.
14 JUDGE ORIE: Mr. Registrar.
15 THE REGISTRAR: That will be Exhibit P2094, Your Honours.
16 JUDGE ORIE: P2094 is admitted into evidence.
17 MR. McCLOSKEY:
18 Q. And we see this is dated April 1993. And can you very briefly
19 describe who wrote this, as far as you know, and what is it?
20 A. Yes, sir. Even though the VRS was obviously a relatively young
21 military force in 1992 or 1993 when this report was written, from the
22 origins of the JNA, the officers were obviously well-educated military
23 professionals. One of the things that they recognised is -- as a higher
24 function of military command and staff work is rigorous review and
25 self-analysis of their operations for the purpose of learning lessons and
1 encapsulating those lessons in order to make their operations more
2 effective in the future. This is one of the documents that they
3 produced, an analysis of their own operations and activities in 1992,
4 which I believe they published in April of 1993, is what the date says,
5 out of the Main Staff. So this is their annual evaluation for 1992 which
6 reflects in a short 160-some-odd pages, their own self-criticism of their
7 performance for the first year of the war.
8 Q. And I don't think we need to go to it, but we can see on page 157
9 of the English and 137 of the B/C/S that it's actually -- the first part
10 of it is signed off by the Supreme Commander, Radovan Karadzic. And does
11 that change your analysis on who wrote it or why would his name be on
13 A. No, sir. The document was obviously authored by the various
14 individuals of the Main Staff. President Karadzic, as the
15 Commander-in-Chief of the armed forces, it would be appropriate for
16 him -- this report to be presented to him for his signature.
17 Q. The Commander-in-Chief, that's an American term, isn't it? Do
18 you know what the term for the Republika Srpska would be?
19 A. It's alternatively seen in various regulations as -- or laws as
20 either Commander-in-Chief or the Supreme Commander. So in this context
21 it's Supreme Commander.
22 Q. All right. And I -- I know this is a subject of your report and
23 others' reports, so I don't want to get into this in much detail, but I
24 do -- would like to ask you about some -- a comment that's on page 9 of
25 the English. It's also B/C/S page 9. And I'll slowly read this as we're
1 coming to that.
2 "We devoted significant attention to controlling and extending
3 assistance to the subordinate commands so that these important activities
4 were carried out on schedule, in accordance with questions settled in
5 advance, and according to regulations. Inspection was carried out by
6 employing the method of team tours, with observations being made on the
7 spot. In most cases, organs of the Main Staff personally corrected
8 mistakes in the Commands immediately. We submitted our observations
9 subsequently, and set them to task of eliminating the observed
10 deficiencies. The involvement of different Main Staff bodies in the
11 brigades and other units yielded particularly good results because in
12 that way directives, commands and orders reached those who were to
13 execute them in the fastest possible way, and the planned concerted
14 action was relatively quickly performed."
15 And this is under the chapter entitled: "Control and Command."
16 You've commented on this before. What is the importance, in your
17 view, of this statement? What does it tell you?
18 A. One of the fundamental tenets of command and control is the
19 issuance of orders and the monitoring of the process to ensure that
20 orders are complied with. Military staffs at various levels have a
21 number of ways to ensure that this occurs. One of the more effective
22 ways that a military hierarchy can ensure that commands are followed is
23 through frequent inspection by individuals from the higher-level
24 headquarters to the subordinate formation, to ensure that they receive
25 the orders, to ensure that they are carried out in a timely manner, and
1 most importantly to ensure that the intent behind the order is clearly
2 understood by the subordinate formation and soldiers who would have to
3 carry it out. So the fact that Main Staff inspection teams regularly
4 visited subordinate corps and even beyond that subordinate brigade-level
5 commands to evaluate their processes and to ensure that orders that are
6 being issued at the higher level are being clearly understood and carried
7 out as rapidly and as effectively as possible is a mark of a very mature
8 and well-managed military operation.
9 Q. All right. Let's now go to the -- a section at the end of this
10 document. It should be page 158 in the English, page 138 in the Serbian.
11 And it's in a section called: "Basic Characteristics of the
12 Operational - Tactical Utilisation of the Army of Republika Srpska."
13 And that is signed by a Colonel Dragutin Ilic. And if we could
14 go in particular to page 160 in the English and page 139 in the Serbian,
15 I'd like to read you just a paragraph that's talking about a couple of
16 different regions. The paragraph begins, it's the second paragraph down:
17 "In Posavina and Western Bosnia we have put emphasis on the
18 grouping of forces, air and artillery support ..."
19 So I'm not really asking you about the Posavina or Western
20 Bosnia, but here's the subject of the question:
21 "... and in Podrinje, in a specific way, the increased
22 expenditure of ammunition and materiel and equipment, as well as the use
23 of the reserves of the Main Staff of the Army of the RS. The presence of
24 the commander of the Main Staff, or of a representative of the
25 Main Staff, in the units carrying out the mission of the liberation of
1 Podrinje in a specific way of giving weight to and steering combat
2 operations towards a single goal."
3 Now, can you remind us, Podrinje, what area is that to your
5 A. The Podrinje area, as it's used in the context of the Drina Corps
6 area, is what geographically is the western Drina Valley, keeping in mind
7 that the eastern Drina Valley is in Serbia. The area encompasses what
8 will be known as the municipalities of Zvornik, Vlasenica, part of
9 eastern Birac, Milici, Bratunac. It contains part of the eastern part of
10 Romanija region. It also encompasses parts of Rogatica, Visegrad. So
11 Podrinje generally corresponds to the geographical area of the
12 Drina Corps.
13 Q. I'm sorry, did you say "Srebrenica," I don't know if I heard it?
14 A. Srebrenica will obviously be in the centre of the Drina Corps
16 Q. All right. And -- while this is not meant to be the focus, were
17 you aware of any operation that -- designed to liberate the Podrinje at
18 some point, you know, before April 1993 when this was written apparently?
19 A. Yes, sir. Even with the formation of the Drina Corps in November
20 of 1992, it was recognised that the Bosnian Muslim military forces still
21 controlled a very large chunk of territory in Zvornik, Vlasenica, Milici,
22 Bratunac, and the Srebrenica areas. So beginning in November 1992, there
23 were a number of large-scale military operations that were started by the
24 Main Staff, which the Drina Corps took part in, to essentially eliminate
25 the Bosnian Muslim military presence in these areas.
1 Q. All right. And we'll get into some of those documents, but just
2 one other question I had regarding this. It also says:
3 "The presence of the commander of the Main Staff, or a
4 representative of the Main Staff ..." assisted this operation.
5 Do you -- in the context of July 1995, do you see from the
6 documents and the materials the presence of the commander, Ratko Mladic,
7 or his top people?
8 A. Yes, sir. They'll -- both General Mladic as well as other
9 general officers of the Main Staff and other colonels of the Main Staff
10 are physically present in July of 1995 during various components of the
11 Srebrenica military operation.
12 Q. And as a last question before the break: Can you just give us
13 just a very rough example. Say July -- start with July 10th and the
14 Srebrenica operation.
15 A. For example, there'll be a report from the Bratunac Light
16 Infantry Brigade which reflects that on the 10th of July, not only is the
17 Drina Corps Chief of Staff, General Krstic, in the brigade area but also
18 General Mladic is physically present on the ground. And there will be
19 other documents which reflect that brigade commanders are physically
20 receiving orders from General Mladic for certain things and are
21 implementing those orders.
22 Q. How about Gvero, the assistant commander for morale, legal, and
23 religious affairs for the Main Staff at about that time?
24 A. Yes, sir. General Gvero, again, is -- a general officer
25 representing the Main Staff is present, I believe, on the 7th and 8th of
1 July, also with General Krstic.
2 Q. And General Milovanovic, the Chief of Staff and deputy commander
3 of the Main Staff, where is he, as far as you know, at the time of the
4 Srebrenica operation?
5 A. General Milovanovic is not in Eastern Bosnia at any time in July
6 of 1995 that I'm aware of. My understanding of his whereabouts - and
7 again from information that the investigation has derived - is that
8 during this period he is exercising personal control over the military
9 operations of the 1st and 2nd Krajina Corps in Western Bosnia as a result
10 of the increasing threat to the western Republika Srpska.
11 Q. And this is a -- this document's in evidence.
12 MR. McCLOSKEY: So this is a good time to break, Mr. President.
13 JUDGE ORIE: Yes, could the witness first be escorted out of the
15 We'll take a break of 20 minutes, Mr. Butler.
16 [The witness stands down]
17 JUDGE ORIE: We will resume at 20 minutes past midday.
18 --- Recess taken at 11.57 a.m.
19 --- On resuming at 12.22 p.m.
20 JUDGE ORIE: We are waiting for Mr. Butler to be escorted into
21 the courtroom.
22 [The witness takes the stand]
23 JUDGE ORIE: Mr. McCloskey, you may proceed.
24 MR. McCLOSKEY: Thank you, Mr. President.
25 Q. Mr. Butler, I forgot to ask you, what is that binder you've got
1 there in front of you that you're looking at?
2 A. Prior to coming into court, for several days I've had the
3 opportunity to sit with you and review documents for my testimony. These
4 are paper copies of the documents that are coming up on the screen. I
5 think I have a total of three of them.
6 Q. Three binders. And also, can you confirm that you've testified
7 as a Prosecution witness in Srebrenica cases of Krstic, Blagojevic,
8 Popovic, Tolimir, Perisic, Karadzic, and you've also testified in the
9 Krstic appeals hearing?
10 A. That about covers it, yes, sir.
11 Q. And have you been asked and have you testified for any Defence
12 team in any tribunal?
13 A. Oddly enough, yes, sir. Within the last 18 months, I testified
14 on behalf of one defendant at the Bosnian State Court in Sarajevo.
15 Q. And was that a Srebrenica case?
16 A. Yes, sir, it was.
17 Q. And what was the issue that you were asked about?
18 A. If I recall correctly, the purpose of my testimony was to help to
19 define the relationship in subordination with respect to when and under
20 what circumstances the army or the VRS exercised command over RS MUP
21 forces in July of 1995 related to Srebrenica.
22 Q. Okay. Well, we'll get that here soon enough. And so I'd like to
23 continue on.
24 MR. McCLOSKEY: And if we could bring up P1968.
25 Q. This is known as directive 4. The Trial Chamber has seen it and
1 has had VRS -- at least one officer speak of it and have heard about
2 directives. So I won't ask you a lot about that, but I do -- and we
3 do -- we'll recall that on the last page we will see it's in the name of
4 General Ratko Mladic and that it was drafted by his Chief of Staff,
5 Deputy Commander General Milovanovic. And if -- and we will recall that
6 this is a directive to all the various corps, including the Drina Corps.
7 And if we could go to page 5 of the English and should be page 11
8 of the B/C/S, I just want to ask you your view of this direction to the
9 Drina Corps. And I quote:
10 "From its present positions, its main forces are to defend with
11 the utmost persistence, Visegrad (the dam), Zvornik and the corridor,
12 while the rest of its forces in the wider Podrinje region are to exhaust
13 the enemy, inflict the heaviest possible losses on them and force them to
14 leave the Birac, Zepa, and Gorazde areas with the Muslim population."
15 What is your analysis of what this reference to "with the Muslim
16 population" means?
17 A. Keeping in mind the situation that existed at the time, many of
18 these Bosnian Muslim military forces were operating behind the lines,
19 they were completely surrounded by Bosnian Serb forces. So these Bosnian
20 Muslim forces were drawing their support from the larger Bosnian Muslim
21 population that still resided in those areas at the time. Obviously one
22 part of the order reflects going after the military forces; however, it
23 also reflects the fact that they would also have to go after the Bosnian
24 Muslim population with respect to making them leave those areas so that
25 the remaining military forces, if there were some, could not draw support
1 from them.
2 Q. And do you find that to be an appropriate military objective?
3 A. Attacking the Bosnian Muslim military forces is clearly an
4 appropriate military objective. Attacking a population group is not.
5 Q. What about that next line:
6 "First offer the disarming of able-bodied and armed men, and if
7 they refuse, destroy them."
8 Do you find anything inappropriate about destroying -- this
9 reference to destroying the men?
10 A. No, sir. In the context that the able-bodied and armed men are
11 part of a military organisation, there's certainly nothing wrong with
12 attacking and destroying, you know, an armed force that's operating.
13 Q. Let's go to the next -- that's already in evidence --
14 JUDGE ORIE: Could I ask one question.
15 "First offer the disarming of able-bodied and armed men ..."
16 How can you disarm somebody who is not armed? Do you have an
17 explanation for disarming the able-bodied men which apparently are not
18 armed men?
19 THE WITNESS: Well, sir, I take it that the qualification between
20 a person being a combatant is not necessarily whether an individual is
21 armed. It's their ability -- you know, one versus various criteria that
22 they're a member of the armed forces. The fact that you could very
23 easily be an army member -- a member of the army of the
24 Bosnia-Herzegovina forces at that time -- be considered a military member
25 but not physically be armed because there's not enough weapons to go
1 around. The fact that you may be a soldier but that there's not enough
2 weapons for you in my view wouldn't mean that you're not a combatant.
3 JUDGE ORIE: I see all of that, but how could you disarm a person
4 who is without arms? That -- I can imagine that you don't carry arms,
5 that you don't have arms, and still be a member of the armed forces, even
6 a combatant. But how could you disarm such a person?
7 THE WITNESS: Well, again, the phrase is "first offer the
8 disarming of able-bodied and armed men ..." I read that as first
9 offering the individuals, the soldiers, either an opportunity to
10 surrender or an opportunity to leave; and if they don't take that -- I'm
11 hoping, again, it seems to be a slightly inartful translation but --
12 JUDGE ORIE: Or the original language is -- I don't know whether
13 it's a translation issue.
14 THE WITNESS: Yeah. But I mean -- yeah --
15 JUDGE ORIE: But you understand that therefore to be disarming,
16 also to -- even if they're not armed to leave the place and not take up
17 any arms where the person would be able-bodied, that would mean could be
18 a member of the armed forces but could also not be a member of the armed
20 THE WITNESS: Yes, sir. And obviously when this picture goes to
21 July of 1995, there will be distinctions that are made between civilians
22 who are able-bodied men because they fall between a certain category of
23 age group as well as unarmed men who are part of the 28th Division but
24 just do not have arms. And so part of that distinction is where you are
25 on the battle-field and what you're doing as to whether or not you are
1 civilian, that falls into one category group; or whether you are just an
2 unarmed soldier, that falls into another.
3 [Trial Chamber confers]
4 JUDGE MOLOTO: If I might just make a follow-up to Judge Orie's
5 question. Would the first option not be to arrest them as POWs before
6 you destroy them?
7 THE WITNESS: That obviously would be a first option. If one
8 looks at the context of 1992, where the Bosnian Muslim military forces as
9 well as the population here outnumbers the Bosnian Serb military as well
10 as civilian population in these areas, it would not be surprising that
11 the Bosnian Serbs would, even before combat began, offer these forces an
12 option to leave the area, disarmed, but to leave and hopefully negate
13 having to engage in combat operations against them in the first place.
14 JUDGE MOLOTO: And what's your comment on Mr. McCloskey's
15 question, given the fact that you agree that the first option would be to
16 disarm and not destroy?
17 THE WITNESS: Again, the Bosnian Muslims themselves have their
18 own military objectives at that time; it did not include withdrawing from
19 the area. That was an area that they controlled and wanted to control.
20 When I read that line, "if not destroy them," I look at that like I look
21 at most documents in a conservative manner, I take that as a military
22 commander exhorting his forces to do the maximum amount of damage to
23 those military units in order to force compliance, either that they
24 surrender or they leave the area. I don't necessarily read that
25 particular line as an invitation to killing them if they were to
1 surrender, for example. That, you know, if they do not choose the option
2 of surrendering before the battle occurs, regardless of what happens
3 afterwards, we're going to destroy them.
4 JUDGE MOLOTO: But my -- the gravamen of my question is: How do
5 they surrender if you don't give them the option to surrender? The first
6 option in this line is to destroy them.
7 THE WITNESS: Again, looking at it in context with the phrase
8 before, while the rest of the forces in the wider Podrinje area are to
9 exhaust the enemy, inflict the heaviest possible losses on them and force
10 them to leave the Birac, Zepa, and Gorazde areas. And if they refuse,
11 destroy them.
12 When I read this in context what I envision out of it and, in
13 fact, what occurred down the line was a campaign where there were a
14 number of small battles that progressively, over a series of days and
15 weeks and months, the military ability of the Bosnian Muslims were
16 degraded to a point where many of them chose to leave the area, not only
17 the military units but the civilian population that followed them. I
18 don't look at this as a one-moment ultimatum.
19 JUDGE MOLOTO: Thank you.
20 Mr. McCloskey.
21 JUDGE ORIE: Could I -- since you hinted at a possible
22 interpretation issue and also being advised by one of my colleagues that
23 he reads the line slightly in a different way as I did, could I ask the
24 parties, and perhaps after having consulted CLSS, to consider whether I
25 would have to read this line as: First offer the disarming of
1 able-bodied men and armed men? Or should I read it: First offer the
2 disarming of men that are able-bodied and armed? That is -- I read it in
3 the first sense. My colleague apparently reads it in the other sense.
4 It may be a translation matter. Could the parties try to see whether
5 they have a common understanding of this line; and if not, report so that
6 we can ask CLSS whether the original language could resolve the issue.
7 Mr. McCloskey.
8 MR. McCLOSKEY: Yes, of course, Mr. President.
9 JUDGE ORIE: Yes, but I also wanted to invite you to proceed.
10 MR. McCLOSKEY: Yes.
11 Q. All right. Mr. Butler, we see that that directive to the
12 Drina Corps was dated the 19th of November, 1992.
13 MR. McCLOSKEY: And let's go now to a Drina Corps document which
14 is dated 24 November 1992, 65 ter 5807. I thought that this was in
15 evidence but I don't have a P number.
16 Q. And this is just a few days, as we see, after the Drina Corps
17 should have received directive 4. And we can see that this is a document
18 to the Zvornik Light Infantry Brigade command, personally to the
19 commander or Chief of Staff, and it's under the name of
20 Milenko Zivanovic, the commander of the Drina Corps.
21 And it says:
22 "Pursuant to Directive of the Main Staff of the Army of
23 Republika Srpska strictly confidential ... 02/5 of 19 November 1992 ..."
24 which we can see was the number of the other one, "and an assessment of
25 the situation, I have decided:"
1 And I quote:
2 "Launch an attack using the main body of troops and major
3 equipment to inflict on the enemy the highest possible losses, exhaust
4 them, break them up or force them to surrender, and force the Muslim
5 local population to abandon the area of Cerska, Zepa, Srebrenica, and
7 Do you in any way relate this direction to the direction we just
8 saw from General Mladic in directive 4?
9 A. Yes, sir. It corresponds directly with his intentions.
10 Q. And this directive, to force the Muslim local population to
11 abandon the areas of Cerska, Zepa, Srebrenica, and Gorazde, is this -- in
12 your view, does this have any appropriate military objective?
13 A. Again, within the context of international law, you cannot target
14 the civilian population as such. In the context of their understanding
15 of the military situation, again all of these forces are operating behind
16 enemy lines and there was a recognition that the only support that they
17 were drawing from was from the local civilian population. By eliminating
18 or removing the civilian population, you essentially created the
19 circumstances where these large forces of the Bosnian Muslims could no
20 longer successfully operate in those regions.
21 Q. And were there military operations directed to these areas where
22 the Muslim army was defeated and the Muslim population left?
23 A. Yes, sir.
24 Q. Okay. And I don't want to get into that in detail.
25 MR. McCLOSKEY: But I would offer this document into evidence.
1 JUDGE ORIE: Mr. Ivetic.
2 MR. IVETIC: No objection.
3 JUDGE ORIE: Mr. Registrar.
4 THE REGISTRAR: Yes, Your Honour, 65 ter number 05807 will be
5 Exhibit P2095.
6 JUDGE ORIE: And is admitted into evidence.
7 MR. McCLOSKEY: And can we go to 65 ter number 4651, which is a
8 publication called Drinski magazine dated June 1995.
9 Q. And we'll see that it's a bit of a journalistic history of the
10 Zvornik Brigade. You've mentioned that you have -- sometimes use open
11 sources like this. Is this the kind of source you're referring to?
12 A. Yes, sir, it is.
13 Q. And what is this Drinski magazine?
14 A. This was a monthly publication by the Zvornik Brigade that was
15 readily available to all of their soldiers as part of the effort of the
16 brigade to keep the soldiers informed, to boost their morale, to ensure
17 that, you know, they understood what the goals and objectives of the war
18 was. It's not unlike many military organisations that publish magazines
19 to foster unit d'esprit de corps and things of that nature.
20 Q. Okay.
21 MR. McCLOSKEY: Let's go to page 2 --
22 JUDGE ORIE: Mr. McCloskey, could I ask a clarification of one of
23 the previous answers which is about the -- forcing the Muslim local
24 population to abandon the areas of Cerska, Zepa, Srebrenica, and Gorazde.
25 You were asked whether it was an appropriate military objective. Your
1 answer consisted of two parts. First you said within the context of
2 international law you cannot target the civilian population as such. And
3 then the second part of your answer you explained what the understanding
4 of the military situation was and that by forcing the Muslim population
5 to abandon the areas, that you would stop the support from the local
6 population to the armed forces. Now, you spent quite a bit of the answer
7 to the second option, that is, that there was at least some propriety
8 from a military point of view in getting rid of this support of the
9 population. Now, do you know which one it was, was it what is said there
10 was the purpose, to put an end to this civilian support to the armed
11 forces? Or was it just, to the extent you would be able to say so, it
12 was just targeting the civilian population which is perhaps not allowed
13 but may have been intended? Have you in this answer expressed yourself
14 on these two options, apart from saying that the one would be illegal and
15 the other one could be explained militarily? Or did you not answer that
16 and did you just describe two possibilities?
17 THE WITNESS: The -- it is a recognition in my particular case
18 that something can have military utility yet still be patently unlawful.
19 Perhaps the best way to explain it is an analogy from a type of
20 counter-insurgency campaign that was practiced in Guatemala in the early
21 1980s, where the forces operating behind the lines against the government
22 had significant support from a local population. The Guatemalan army
23 devised a process which they euphemistically called: The best way to
24 kill the fish is to drain the lake, the lake being the civilian
25 population --
1 JUDGE ORIE: No, no, no, I see all of that and you give an
2 example. My question to you is: Do you say that is what was on their
3 mind, to drain the lake? Or do you say: That is an option which I
4 cannot exclude to have been the case? Or do you say: That's how it was?
5 I'm trying to understand your answer on what you're actually telling us.
6 THE WITNESS: Yes, sir. To be clear, when it was laid out in
7 directive 4, I would interpret that as: I cannot exclude that as a
8 possibility. The former defence doctrine of the Socialist Federal
9 Republic of Yugoslavia depended very heavily on the idea that militarily
10 in the Cold War period they planned to potentially be invaded by either
11 the Soviet Bloc or the NATO Bloc, and just like their experience from
12 World War II, much of their military doctrine and preparedness involved
13 fighting a protracted counter-insurgency war or war of liberation in
14 their own country. Clearly people such as General Mladic and the
15 officers of the Main Staff were quite well-versed in that. They
16 understood the ramifications that allowing the civilian population to
17 remain in these areas, how that would have -- on military forces that
18 were depending on them for support.
19 When one looks at the actual conduct of that campaign in the
20 Cerska region in 1993, my opinion is that when one looks at the context
21 of that campaign it is clear that the VRS is not distinguishing very much
22 at all between military forces that they're attacking and the civilian
23 population at large. They go into an area, they completely burn a
24 village, nothing is left there. So again, in November 1992, I can't
25 exclude what the meaning of that language could have meant then. But
1 when you look at it in the light of what happened afterwards, I think the
2 meaning is much clearer.
3 JUDGE ORIE: Thank you.
4 MR. McCLOSKEY: Okay. Let's -- we're at Drinski magazine.
5 And can we go to the second page in the English, I think it's
6 still the first page. And if we could focus on that first couple of
7 paragraphs when we get it up on the -- there we go.
8 Q. The "Liberation of Podrinje." I won't read it all, but if people
9 could read those first few paragraphs we see that it's --
10 Vinko Pandurevic is now a new commander. They speak of liberating
11 Serbian villages under Muslim control in the area, dates 7 January to
12 20 February. And then they go on in that second paragraph to talk about
13 liberating territory of 30 kilometres from Zvornik to Drinjaca road. As
14 we go to the third paragraph, then there's contribution to the liberation
15 of Cerska, Konjevic Polje, Kravica, which was burnt and destroyed and
16 waiting for its liberators on 15 March 1993. Then it goes on to describe
17 that all of these victories that -- and I quote:
18 "A military victory was won, but the international community put
19 immense pressure on Republika Srpska and stopped this victorious
20 campaign ..."
21 First of all, can you encapsulate this. Does this have to do
22 with the order of directive 4 and what we see Zivanovic passing on and
23 what this stopping of the campaign -- and we see it in the spring of
24 1993, is that related to familiar events?
25 A. Yes, sir. From essentially December through April of --
1 December of 1992 to April of 1993, the Drina Corps and the VRS conduct a
2 series of offensive operations as part of a larger campaign to achieve
3 these objectives. You have two large population groups, military forces,
4 associated with them from the Muslims, one to the north of the
5 Konjevic Polje-Nova Kasaba-Milici road, which is in the greater area
6 Cerska -- I'm sorry, Udrc, and then you have south of that. What you see
7 happening in that campaign is that large -- you know, large numbers of
8 individuals are forced in two directions. One group of the Bosnian
9 Muslim population migrates to the west and ultimately to what they call
10 free territory around Tuzla. The second group migrates towards the south
11 and essentially falls in and around the Bosnian Muslim town of
12 Srebrenica. So what they're describing is that as the army continues to
13 advance, the pocket of Bosnian Muslims gets compressed more and more in
14 and around Srebrenica. And obviously, as the United Nations report
15 reflects and I believe others have testified to, in April of 1993, you
16 know, in light of that looming humanitarian crisis where all of those
17 people cannot be supported in such a small area, General Morillon and the
18 United Nations Protection Forces declare Srebrenica to be a safe area.
19 To the Bosnian Serb military forces, their view of that progression of
20 events was that their military victory was essentially -- their military
21 victory was essentially negated by the international community creating
22 that safe area an enclave by fiat.
23 MR. McCLOSKEY: I'd offer this document into evidence.
24 MR. IVETIC: No objection.
25 JUDGE ORIE: Mr. Registrar.
1 THE REGISTRAR: 65 ter number 04651 will be Exhibit P2096,
2 Your Honours.
3 JUDGE ORIE: P2096 is admitted.
4 MR. McCLOSKEY:
5 Q. And the population that you had said was forced out of those
6 areas, and you've used the word "migrate." "Migrate" and "forced" are
7 two different things. Can you tell us where the people that were in
8 Srebrenica after the enclave was created, where largely did they come
9 from and did they migrate like birds do, on their own? Or is there some
10 sort of force involved?
11 A. They -- they were not migrating of their own free will. These
12 were forced population movements as a result of armed conflict. In July
13 of 1995, I believe by some of their own documentation, the VRS recognises
14 that thousands of the people who had been residing in the Srebrenica
15 enclave for -- since 1993, when it was established, are, in fact, Bosnian
16 Muslim refugees from other areas.
17 Q. Okay. And we'll -- may get into a bit of that. Let's go to
18 P1505. The Trial Chamber has seen this. It is a document from the
19 commander of the 1st Bratunac Brigade from 4 July 1994. So we're going
20 on in the narrative and it is a report to the brigade. And they have
21 heard testimony about this at length, so I don't want to get into it in
22 too much depth with you. But we see in that first line that:
23 "During his recent visit to our Corps Command, the Commander of
24 the Main Staff of the VRS indicated that he would soon visit some of the
25 Corps units, including the Bratunac Brigade ..."
1 And then if we look at the next few pages, the commander of the
2 Bratunac Brigade at the time, a man named Lieutenant-Colonel
3 Slavko Ognjenovic, talks about various things, some of it related to
4 morale and other issues in the troops. And as you've studied this
5 document, do you connect the material in this document at all to this
6 visit that Ognjenovic is referring to, to the corps command? Clearly
7 Ognjenovic is a brigade commander but he's speaking of a visit of Mladic
8 to the corps command. Is this just a mention and the rest is all
9 Ognjenovic or, militarily, do you see any kind of link between what is
10 said in this and General Mladic's visit?
11 A. Clearly in this context the Bratunac Light Infantry Brigade is a
12 subordinate formation of the Drina Corps. So in the context of -- you
13 know, he would be in a position obviously, as the brigade commander, to
14 know that the VRS Main Staff commander had recently visited the corps and
15 that there was guidance forthcoming. As partly evidenced by the Drinski
16 magazine, one of the key positions on the Main Staff was the assistant
17 commander for morale and religious affairs and it was recognised
18 obviously by military professionals that efforts to keep the morale of
19 the soldiers high, give them a common framework and understanding of what
20 the war is about and, more importantly, why they are fighting it is an
21 important objective. So what you see in this particular document is,
22 again, part of the framework of the leadership of the Army of the
23 Republika Srpska through the various chains of commands and other means
24 of communication, laying out that vision that they want the soldiers to
1 Q. All right. Let's go to page 3 in the English. It's B/C/S
2 page 2. And we see Ognjenovic saying:
3 "We must obtain our final goal - an entirely Serbian Podrinje.
4 The enclaves of Srebrenica, Zepa, and Gorazde must be defeated
6 "We must continue to arm, train, discipline, and prepare the RS
7 Army for the execution of this crucial task - the expulsion of Muslims
8 from the Srebrenica enclave."
9 What do you take of that communication to his troops? Is that an
10 appropriate military objective, the expulsion of Muslims from the
11 Srebrenica enclave?
12 A. To answer your second question first, the expulsion of the
13 population would not be an appropriate military objective. To your first
14 question, within the context, the Bratunac Brigade was primarily
15 responsible at this time for maintaining the perimeter around roughly
16 one-half of the Srebrenica enclave, as it were, and was constantly
17 involved in military operations against the 28th Division, which was
18 inside the enclave. There had been a number -- you know, casualties had
19 been occurring on both sides related to this since the beginning of the
20 war. Particularly in the cases of Bratunac, they suffered significant
21 casualties. So this is all continuing to be part of the effort of
22 convincing the soldiers that the hardships that they're enduring and that
23 the sacrifices that they're making are recognised, that they're
24 important, and that they should keep focused on the ultimate goal which
25 was -- the ultimate goal of the political leadership was that Srebrenica
1 was Serbian and would be again.
2 JUDGE MOLOTO: The ultimate goal was the expulsion of Muslims
3 from the Srebrenica enclave.
4 THE WITNESS: I'm sorry, I missed part of your question, sir.
5 JUDGE MOLOTO: And that ultimate goal, was it the expulsion of
6 Muslims from the Srebrenica enclave?
7 I'm quoting from this document.
8 THE WITNESS: Yes, sir. I believe it was and as I believe other
9 documents as you go further from 1994 to 1995 reflect a continuity of
10 that idea.
11 JUDGE MOLOTO: Thank you.
12 MR. McCLOSKEY:
13 Q. And as we go down in this document we see it goes:
14 "There will be no retreat when it comes to Srebrenica enclave, we
15 must advance. The enemy's life has to be made unbearable and their
16 temporary stay in the enclave impossible so that they leave the enclave
17 en masse as soon as possible, realising that they cannot survive there."
18 And the term "en masse" to you, does that -- what does that
19 include? Who is he suggesting has to leave the enclave?
20 A. I believe that's everyone. I don't interpret this as any
21 distinction between simply the forces of the 28th Division must leave
22 versus all Bosnian Muslims must leave.
23 Q. All right. And as we start to approach 1995, based on what you
24 have offered in your testimony related to the 28th Division coming
25 outside the enclave and attacking Serb forces and Serb forces taking
1 casualties, we don't need to go into the fact. I think everyone will
2 agree that this was against the idea and the rules set forth in the
3 enclave and the demilitarisation agreement. Do you find anything
4 inappropriate militarily regarding the VRS planning and taking down the
5 Muslim army from within the enclaves that are conducting these raids?
6 A. No, sir. I've testified on that question on multiple occasions,
7 and it's always been my position and still remains my position that the
8 VRS was militarily justified in launching an attack against the enclave
9 against the Bosnian Muslim 28th Infantry Division and its associated
10 military forces. The enclave had never been disarmed. The
11 28th Infantry Division was conducting combat operations against Bosnian
12 Serb military and, in select cases, civilian forces or civilian
13 population groups in villages. And they represented an absolutely
14 appropriate military target for the VRS.
15 Q. Okay. Now let's go to --
16 JUDGE ORIE: Could I ask one clarification.
17 MR. McCLOSKEY: Yes.
18 JUDGE ORIE: In the question put to you by Mr. McCloskey, he was
19 talking about the 28th Division coming outside the enclave and attacking
20 Serb forces and Serb forces taking casualties and he said, "We don't need
21 to go to that fact." Now, one of the issues which we heard a lot about
22 is that the 28th Division coming outside the enclave did not only attack
23 Serb forces but did attack Serb villages, burning them down. Is that --
24 the way in which Mr. McCloskey presented taking casualties, is that
25 accurate or would you say, no, they did not limit themselves to attacking
1 Serb forces but they also attacked villages and also made civilian
3 THE WITNESS: The 28th Infantry Division not only attacked
4 Bosnian Serb military and police forces around the garrison. They did
5 target and they did attack Bosnian Serb villages and other civilian
6 targets. I have talked at length in various trials related to that and
7 have tendered many documents as exhibits with respect to that. I suspect
8 while Mr. McCloskey said it didn't matter, I think his comment was
9 related to given his time constraints --
10 JUDGE ORIE: Yes --
11 THE WITNESS: -- we could easily spend hours discussing that and,
12 in fact, in the Tolimir case I recall that I did.
13 JUDGE ORIE: Yes. Well, that's clear.
14 Mr. McCloskey.
15 MR. McCLOSKEY:
16 Q. In fact, just on that point, Mr. Butler, do you recall one
17 particular 28th Division document from July -- June and July 1995 that
18 described the policy of the 28th Division to attack outside the enclaves
19 to tie down Serb forces from going to the Sarajevo front?
20 A. Yes, sir. And I recall again discussing that extensively.
21 Q. All right. And not to get too much into this. There are two
22 sides to this story, is there not? Were there not evidence of sniping
23 and attacking by the Serb forces on the Bosnian civilians inside the
24 enclave at the same time?
25 A. Yes, sir. I mean both sides conducted those types of operations
1 and often civilians were the target, or civilian villages, either by
2 design or simply because of a lack of distinction.
3 Q. And have you seen documents reflecting the hunger of the Bosnian
4 Muslim population and sometimes their attacks on Serbian villages to
5 gather food and livestock and such?
6 A. Yes, sir.
7 Q. All right. Let's get to directive 7, another document the Court
8 has heard repeatedly, so I don't want to over-dwell on it. It is P1469
9 and it is dated itself 8th of March, 1995, but it gets sent out by
10 General Milovanovic on the 17th, which we see is the cover letter. And
11 as we look on the last page it's under the name of the Supreme Commander,
12 Radovan Karadzic. And it has been drafted this time by Colonel Miletic.
13 Can you remind us who Miletic was in March of 1995?
14 A. In March of 1995, Colonel Miletic was the chief of operations for
15 the VRS Main Staff.
16 Q. All right. And let's -- let's go to the Drina Corps section
17 where the Main Staff and the president -- the supreme commander are
18 directing the Drina Corps on. It should be the Serbian page 17. And
19 it's the familiar second half of this paragraph:
20 "While in the direction of Srebrenica and Zepa enclaves, complete
21 physical separation of Srebrenica from Zepa should be carried out as soon
22 as possible, preventing even communication between individuals in the two
23 enclaves ..."
24 Very briefly, what does that mean?
25 A. At that particular point in time, because of the size of the
1 enclaves and the terrain and the lack of manpower, it was still possible
2 for military and even civilian Bosnian Muslims to move relatively freely
3 between Srebrenica town and Zepa further to the south-east. So obviously
4 one of the military objectives that was deemed to be necessary was to
5 ensure the physical separation of these enclaves so they could no longer
6 be mutually supporting each other.
7 Q. All right. And then the next line:
8 "By planned and well-thought-out combat operations, create an
9 unbearable situation of total insecurity with no hope of further survival
10 or life for the inhabitants of Srebrenica and Zepa."
11 I think that speaks for itself, but I wanted to ask you about
12 these words "create an unbearable situation by planned combat
13 activities ..." When we saw directive 4, it was very clear in nature and
14 we saw combat operations. How, if at all, does this create a situation,
15 how does that differ, if it does, from this similar sentiment that we saw
16 in directive 4 and Zivanovic's version of directive 4, where the
17 population is clearly a focus?
18 A. Again, my position is that this is a continuation of what the
19 ultimate goal is. From a military sense, obviously there is the issue of
20 the 28th Infantry Division and supporting military forces in Zepa, but
21 from a broader sense, particularly in 1995, there is just not an idea
22 that it's being entertained by the military leadership that somehow the
23 28th Division and the associated military forces would go and that this
24 40- to 50.000-person group of Bosnian Muslim refugees who were residing
25 in Srebrenica and the Zepa safe areas would somehow be permitted to stay.
1 They saw as part of their objective that these safe areas, as they
2 existed, had to be eliminated.
3 JUDGE ORIE: For the completeness of the record, we were looking
4 for the Drina Corps part of this document at page 10 in the English.
5 MR. McCLOSKEY: Thank you.
6 Q. And this next sentence:
7 "In case the UNPROFOR forces leave Zepa and Srebrenica, the
8 Drina Corps command shall plan an operation named Jadar with the task of
9 breaking up and destroying the Muslim forces in these enclaves and
10 definitively liberating the Drina Valley region."
11 What does this tell us, if anything, about the intentions of
12 actually taking out the enclave in March of 1995?
13 JUDGE ORIE: We are now at page 11.
14 Could you answer the question?
15 MR. McCLOSKEY: Thank you.
16 THE WITNESS: In March of 1995, they clearly understood - and
17 when I say "they," the VRS - clearly understood that they weren't in a
18 position militarily or even politically that they would physically attack
19 the enclaves and achieve their goals alone as a result of an attack.
20 What they hoped to do - and it comes out, again, in part of this and in
21 other documents down the line - is create a situation where they
22 essentially coerce the international community to want to leave the
23 enclaves and essentially take everybody with them. So they're
24 recognising here that they're not going to attack the enclaves in
25 March of 1995 to make this happen, but they are going to conduct military
1 operations with the goal in mind of isolating the enclaves to a point
2 where it's impossible to remain in them.
3 MR. McCLOSKEY:
4 Q. And do you relate this at all to the -- what happened or the --
5 what we saw and what the Court has seen on video from 1993 and
6 General Morillon?
7 A. I do. I mean, obviously my knowledge, again from the video and
8 from the United Nations report which describes the situation, what was
9 happening in 1993 was an environment that because of the Serb military
10 forces being close to Srebrenica and because the Bosnian Muslims did not
11 have the ability to either defend themselves and you had such a large
12 civilian population jammed into the small urban area of Srebrenica, you
13 had, in effect, the situation where the United Nations was evacuating the
14 Bosnian Muslims from that location. I believe that that would have been
15 as far as the VRS and the political leadership of the RS was concerned in
16 1995, that would have been an ideal circumstance for them as well, to
17 have the United Nations international community remove the populations
18 from those safe areas under their auspices, not being forced out by the
19 VRS -- or at least overtly forced out by the VRS.
20 Q. All right.
21 MR. McCLOSKEY: Let's go to the Serbian page 23. It should be 14
22 in the English. It's under "Support For Combat Operations" under "Moral
23 and Psychological Support," and I'll slowly begin reading it as we get
25 Q. "The relevant state and military organs responsible for work with
1 UNPROFOR and humanitarian organisations shall, through the planned and
2 unobtrusively restrictive issuing of permits, reduce and limit the
3 logistics support of UNPROFOR to the enclaves and the supply of material
4 resources to the Muslim population, making them dependent on our good
5 will while at the same time avoiding condemnation by the international
6 community and international public opinion."
7 Now again we see this focus on UNPROFOR and the Muslim
8 population. Can you briefly tell us, do we see any such restrictions
9 against the humanitarian aid and the aid to UNPROFOR in the weeks and
10 months following this statement?
11 A. Yes, sir. From a military document perspective, one will
12 notice - and I think I will talk about those further in my
13 testimony - that routine requests by the UN to resupply the UNPROFOR
14 forces in the enclaves receive high-level attention by members of the VRS
15 Main Staff and that in the majority of cases, convoys to resupply the
16 UNPROFOR are only let through with significant reductions in the amount
17 of fuel or equipment or personnel that they're allowed to bring in.
18 There is other documents that reflect similar things happening with
19 respect to civilian food and equipment being brought in by international
20 organisations to the population, and also a policy in place where members
21 of particularly the Dutch Battalion in Srebrenica, when they rotate out
22 of the enclave for medical reasons or for rest and recreation, they're
23 not permitted back into the enclave. So you have a multiple-month period
24 where, as time goes by, the material ability of UNPROFOR, and
25 particularly the Dutch Battalion, in the Srebrenica enclave, their
1 ability to sustain themselves let alone conduct any peacekeeping
2 operations becomes significantly degraded.
3 MR. McCLOSKEY: Mr. President, I'm told it's break time.
4 JUDGE ORIE: Yes, your informant is right.
5 Could the witness first be escorted out of the courtroom.
6 [The witness stands down]
7 JUDGE ORIE: We take a break and we'll resume at 20 minutes to
9 --- Recess taken at 1.20 p.m.
10 --- On resuming at 1.41 p.m.
11 JUDGE ORIE: We expect Mr. Butler to be with us in a second.
12 [The witness takes the stand]
13 JUDGE ORIE: Please proceed, Mr. McCloskey.
14 MR. McCLOSKEY: Thank you, Mr. President.
15 Q. So, Mr. Butler, we've just finished up talking about directive 7,
16 which came out under the name of Radovan Karadzic in -- March 8th, 1995,
17 drafted by Colonel Miletic. Now I want to take you to P1470 which is
18 another document the Trial Chamber's heard, but this is now called
19 directive 7 which is dated 31 March -- directive 7/1, excuse me, a
20 crucial thing. Thank you. And it comes out 31st of March, also drafted
21 by Colonel Miletic, but this one signed by General Mladic. And if we can
22 just see that come up on the page, we see that it's -- says in the right
23 corner: "National Defence State Secret, Sadejstvo 95." It's also sent,
24 we see, to all the corps.
25 What do you take this to be in relation to directive 7 and having
1 in mind the sometimes Defence contention that this document is
2 General Mladic's way of withdrawing the sentiment we saw in directive 7,
3 directed towards the Muslim population?
4 A. No, sir. My view on this is that directive 7/1 does not
5 supersede directive 7 or withdraw it. Directive 7/1 supplements
6 directive 7 by providing more explicit and technically -- or a more
7 technical guidance to the military units that they be -- that they would
8 be normally more accustomed to receiving. And, in fact, down the line
9 one of the documents that I will talk about, the Drina Corps order with
10 respect to Srebrenica, if I recall correctly, references both directive 7
11 and directive 7/1. So 7/1 does not supersede 7, it simply supplements it
12 with additional technical information.
13 Q. All right. Let's go to page 2 in English and in the B/C/S, where
14 it -- we see under "The tasks of the VRS," it says:
15 "On the basis of directive 7 ..."
16 And then it lists quite a few tasks. How does that fit into your
17 conclusion you just made?
18 A. Again, sir, I believe it supports it.
19 Q. Why?
20 A. They're again referencing directive 7, that that is the operative
21 broader document. And as you go through various paragraphs of this, you
22 can see where some of the explanations and some of the directions become
23 more technical in nature. With respect to courses of action, with
24 respect to terrain points, with respect to military units.
25 Q. All right. Let's go to just a couple of brief ones where I noted
1 that the enclaves were mentioned, I'm going to ask you about that. It's
2 page 4 in the English, should be page 3 in the B/C/S. It's the second
3 paragraph on the page. It talks about "other forces of the VRS shall
4 contribute to the conduct of Operation Sadejstvo 95 ..." I won't read
5 all of it. But it says then "in accordance with directive 7" and then
6 says and active combat operations towards many different towns, including
7 around the Srebrenica, Zepa, and Gorazde enclaves, and the Bihac pocket.
8 In your view, does that replace that language that we read about
9 creating unbearable situation?
10 A. No, sir.
11 Q. Then let's go to -- it's paragraph 5.3, it's page 5 in the
12 English. It may be the next -- it may be page 4 in the B/C/S. And --
13 where it says:
14 "Corps IKM to be decided by the Corps Commander" --
15 JUDGE FLUEGGE: It should be the next page in B/C/S.
16 MR. McCLOSKEY: Thank you. Yes, we can see that for 5.3. Thank
17 you, Your Honour.
18 Q. We see this reference:
19 "The Drina Corps: Prevent an enemy breakthrough along selected
20 operative tactical axes with persistent defence and active combat actions
21 on the north-west part of the front and around the enclaves, tie down as
22 many enemy troops as possible through diversionary actions ..."
23 Does this reference to the enclaves contradict anything or
24 replace anything that you read in directive 7?
25 A. No, sir.
1 Q. All right. Okay. Let's continue moving through the year.
2 MR. McCLOSKEY: And if we could have 65 ter 19552.
3 Q. Did you find any documents in May that reflected any planning of
4 operations towards the enclaves?
5 A. Yes, sir. Again, as indicated, when the conditions started to --
6 when the conditions were able, which in this particular case came in the
7 middle of the spring of 1995, the Drina Corps was supposed to begin to
8 plan and undertake operations, again going back to directive 7 to
9 separate the two enclaves and to cut off communications between
10 Srebrenica and Zepa. This particular document dated 12 May 1995 is the
11 manifestation of an order from the Main Staff to the Drina Corps and
12 another unit of the Main Staff, the 65th Protection Regiment, to begin to
13 plan for and execute just that.
14 Q. And if we see the end of the document on page 2 in the English,
15 page 2 in the B/C/S, we see this is in the name of General Mladic. And
16 it's entitled on the first page an "Order to stabilise defence around the
17 enclaves of Zepa and Srebrenica and create conditions for their
19 Here we are this creating conditions again, can you reiterate
20 what you think that means at this point in May of 1995?
21 A. Given where the front lines were at the time, it was not feasible
22 for the VRS to immediately jump off into any operations into the enclaves
23 in any sort of strength. It was recognised that certain terrain
24 features, a certain road near Zeleni Jadar had to be captured and had to
25 be improved in order to support the larger-scale military operations that
1 would ultimately be directed against the enclave. So part of this
2 process - and you see this in May -- in later May and early June - are a
3 series of limited attacks designed to take certain terrain features and
4 in one case to take a certain road in order to prepare for larger
5 operations in the future.
6 Q. All right.
7 MR. McCLOSKEY: And I think I'd offer this document into
9 MR. IVETIC: No objection, Your Honour.
10 JUDGE ORIE: Mr. Registrar.
11 THE REGISTRAR: 65 ter 19552 will be Exhibit P2097, Your Honours.
12 JUDGE ORIE: And is admitted into evidence.
13 MR. McCLOSKEY: Okay. And if we could now pull up 65 ter 5694.
14 Q. Mr. Butler, this is a document now dated four days later,
15 May 16th, and this is this time from the Drina Corps command to the
16 Main Staff --
17 JUDGE ORIE: Before we continue, you tendered into evidence a
18 four-page document. We have seen the first typewritten part, but the
19 last page, 3 in B/C/S and page 4 in the English, is a handwritten
20 document which I've got no idea whether that's found on the back of the
21 typewritten pages or where it comes from.
22 MR. McCLOSKEY: I think we can try to help you with that,
23 Mr. President.
24 JUDGE ORIE: Yes.
25 MR. McCLOSKEY:
1 Q. Mr. Butler, I know you're used to sometimes using the original
2 documents to help answer this kind of question, but can you see the -- on
3 page 4 of the English, the translation of the handwritten section, and
4 can you -- we see that there's a stamp on this document also from the
5 command of the 65th Motorised Protection Regiment. Can you give us your
6 view of what handwriting on a document like this may mean?
7 A. Yes, sir.
8 Q. Not substantively first, but just the fact that there's
9 handwriting on the back -- on a document.
10 MR. McCLOSKEY: And we'll get the original, Mr. President, so we
11 can find out precisely if it's on the back or not.
12 THE WITNESS: As a matter of military planning, when one receives
13 an order, a commander usually obviously will read that order and sit down
14 and start to think through what things have to occur or what he needs in
15 order to complete that order. From the context of this as well as where
16 it's found and who the document was sent to, what this appears to be is
17 the notes from somebody in a leadership position from the
18 65th Protection Regiment. It could be the commander. It could be the
19 Chief of Staff, you know, penning down some thoughts about what might
20 have to happen in order for him to carry out this order. So, I mean,
21 this is what it appears to be is just some notes from the
22 65th Protection Regiment individuals involved, starting to think in
23 writing what they will need to do in order to accomplish the order.
24 JUDGE ORIE: Yes. You only referred to the protection regiment.
25 It seems also to be addressed to the 67th Communication Regiment. Is
1 there any reason why you thought it would be just the 65th as a
2 possible ...
3 JUDGE FLUEGGE: I don't see a reference to the 65th.
4 THE WITNESS: I'm sorry, this was -- this was sent to --
5 JUDGE ORIE: The --
6 THE WITNESS: -- the base document was sent to the command of the
7 Drina Corps and the 65th Protection Regiment --
8 JUDGE ORIE: But I also see the 67th Communication Regiment.
9 THE WITNESS: Yes. The 67th Communication Regiment is just that,
10 it's a regiment that deals with the communication issues of the Army of
11 the Republika Srpska. They are -- while they are responsible for that
12 and while they have some limited combat ability, they're not going to be
13 the forces that are involved in respect to a major military operation.
14 So, again given the context of what they're looking for -- you know, the
15 comments here, see which forces will attack Zepa and create conditions,
16 move forces of various units in an orderly line, again I'm reading into
17 it that this is probably from the commander of the
18 65th Protection Regiment as opposed to the active combat plans of the
19 67th Communication Regiment.
20 JUDGE ORIE: Yes, there also appears to be a request. Have you
21 found any request which corresponds with the one indicated here?
22 THE WITNESS: And again, in this note it seems to be they're
23 thinking through a request back to the Main Staff --
24 JUDGE ORIE: Yes.
25 THE WITNESS: -- to release their forces. And again at this
1 point in time, you know, the combat forces would be -- the
2 65th Protection Regiment might have a company assigned to the
3 Sarajevo-Romanija Corps or the 2nd Krajina Corps. And again, the same
4 thing could just as well be true if this document originated from the
5 Drina Corps headquarters, which might have the same thing, you know, a
6 scenario where you have a commander who's recognising: If I have to do
7 these sorts of things, I'm going to need to make special requests --
8 JUDGE ORIE: But my simple question was: Where it reads "request
9 the Main Staff," whether you found any corresponding request --
10 THE WITNESS: Oh, I'm sorry. No, I have not.
11 JUDGE ORIE: Thank you.
12 MR. McCLOSKEY:
13 Q. And I just noted on page 3 of the English it says stamp of the
14 command of the 65th Motorised Protection Regiment which is why I asked
15 about that, though I can't see a clear -- a clear such stamp on the
16 original. But we'll take a look and see. But -- and we see that at the
17 last page, the second in English, it says:
18 "The battle shall begin on 17 May 1995 ..."
19 And we see that also some descriptive, as you've said, operations
20 where again we can see in, for example, that big paragraph in the top of
21 the page it says "create conditions" again.
22 MR. McCLOSKEY: In any event, I would offer this document into
23 evidence -- okay. Excuse me. I may have missed that.
24 Q. Now let's go to another document I believe you're familiar with.
25 This one is dated 16 May 1995, 65 ter 5694, just a few days later as I
1 mentioned. This is from the Drina Corps command to the Main Staff and
2 just noting in paragraph 2 of this, under:
4 "All Drina Corps units are in full combat-readiness and
5 successfully holding the lines reached. We are continuing with the
6 preparations for stabilisation of defence around the enclaves of
7 Srebrenica and Zepa, in accordance with your order."
8 Do you relate that statement to the order we just read or another
10 A. I relate it to the order we just read, sir.
11 Q. All right. The terminology "stabilisation of defence" is in both
12 orders, I take it?
13 A. Correct, sir.
14 Q. Okay.
15 "We are currently unable to implement your order to fully close
16 off the enclaves and carry out attacks against them because we do not
17 have sufficient forces, but we are continuing to take specific measures
18 to uncover enemy groups in the gap, detect their combat support ..."
19 et cetera.
20 This is something that the deputy commander, Colonel, at that
21 time, Krstic is telling the Main Staff. So what does that obviously tell
22 us at that time?
23 A. In this particular case, as part of their normal daily combat
24 report, the Chief of Staff of the Drina Corps is reporting back to his
25 superior and informing them that: While we're going to do the best that
1 we can with the resources, we're unable to comply with the previous
2 order, and explains to him or to the Main Staff why they cannot.
3 Q. And in your view, would General Mladic, of course, be aware of
4 these developments, holding things up for the order on Srebrenica?
5 A. Yes, sir, he would be aware of these.
6 Q. Okay. All right. Now let's --
7 MR. McCLOSKEY: I'd offer that into evidence.
8 MR. IVETIC: No objection.
9 JUDGE ORIE: Mr. Registrar.
10 THE REGISTRAR: 65 ter number 05694 will be Exhibit P2098,
11 Your Honours.
12 JUDGE ORIE: And is admitted into evidence.
13 MR. McCLOSKEY: All right.
14 Q. Now can we go to a document I believe you've seen recently,
16 MR. McCLOSKEY: 65 ter 25996. This is from the
17 410th Intelligence Centre dated 28 May 1995. If we look at the back of
18 it, we can see that it's from a person named Pecanac. Page 30 of the
19 English, we don't need to go there, Captain First Class D. Pecanac. And
20 can you tell us what the 410th Intelligence Centre is?
21 A. The 410th Intelligence Centre during the war was an analytical
22 group whose task was to do intelligence analysis and provide intelligence
23 reports for the benefit of the Main Staff of the Army of
24 Republika Srpska.
25 Q. All right. And let's -- we see that it's for several of the
1 enclaves, but let's go to the Srebrenica section, should be page 21 in
2 the English and Serbian page 13. And looking at the bottom,
3 "intelligence about the Srebrenica enclave," we see that it says:
4 "Area of the enclave of around 150 square kilometres populated
5 with 25-38.000 inhabitants ..." and it says "most densely populated
6 Srebrenica ..."
7 MR. McCLOSKEY: And, Your Honours, I noted this is a typo. It
8 should be Potocari as the second -- as the village.
9 Q. Does -- is this information roughly consistent with the
10 information you reviewed and received throughout the investigation?
11 A. Yes, sir. There is -- while there's never been a fully accurate
12 accounting of how many people were in the enclave as refugees, these
13 numbers certainly fall into the most commonly mentioned ranges.
14 Q. Let's go to the next page -- I'm sorry, the -- before we get
15 there we can see that as you've referenced:
16 "Concentration of people in Slapovici village sector where 3500
17 to 4500 people live," and now the next page, 22 in English, "a very small
18 area, mostly refugees from other municipalities."
19 And what does this indicate to you?
20 A. As discussed before, as I discussed, many of the people who were
21 or who found themselves in the Srebrenica enclave at July of 1995 were
22 not native residents of the Srebrenica municipality. They were
23 individuals who, you know, as the war progressed and most of them from
24 the 1993 period, they were people who had been displaced from other
25 municipalities and found themselves in Srebrenica in the UN safe area.
1 Q. All right. And let's just on that same page --
2 JUDGE ORIE: Do we have the same pages in English and B/C/S at
3 this moment?
4 MR. McCLOSKEY: It should be B/C/S page 14.
5 JUDGE ORIE: Because we're still looking at what was the
6 beginning of the Srebrenica description. We moved on in English. I
7 don't know exactly where you're reading from at this moment,
8 Mr. McCloskey.
9 MR. McCLOSKEY: I would be going -- I just -- I just read the
10 very top of the -- well, finished reading the very top of the page when I
11 said "very small areas, mostly refugees from the other municipalities,"
12 that's what Mr. Butler --
13 JUDGE ORIE: Oh, yes --
14 MR. McCLOSKEY: -- referred to --
15 JUDGE ORIE: -- and that may still be on the -- on what we have
16 now since a few moments in B/C/S on our screen.
17 MR. McCLOSKEY:
18 Q. Yes. And just finally under the heading "Possible facilities for
19 refuge in Srebrenica enclave," we see mentions of tunnels and things, but
20 what I wanted to ask about is, five lines down it says:
21 "Civilians and members of the Muslim organs would pull out of the
22 Srebrenica enclave along the direction:
23 Srebrenica - Slapovici - Podravanje - Stublici - Zepa."
24 And then it says:
25 "This direction is secured by forces located along the following
1 features ..."
2 Is this the direction that the Muslim civilians and the
3 28th Division mostly fled when we finally get to July of 1995?
4 A. No, sir. There were some of the units of the 28th and some
5 civilians who fled this route, but a majority went a completely different
6 route. So in this particular case, the army intelligence people made the
7 wrong assessment.
8 Q. And remind us of the direction they did, in fact, go?
9 A. They were ordered to attempt to break out of the enclave on
10 10 July 1995 and the axis that they took essentially was from the
11 villages of Susnjar and Jaglici over the road between Konjevic Polje,
12 Nova Kasaba, through the Cerska region, Udrc, and then essentially try
13 and break through the rear positions of the Zvornik Infantry Brigade and
14 cross the lines between Baljkovica and Nezuk.
15 Q. All right.
16 MR. McCLOSKEY: If we could go to page 23 in the English and it
17 should be the next page in the Serbian.
18 Q. We see here the conclusion:
19 "Dutch Battalion forces, the strength of 550," and then it
20 comments a little later down that:
21 "... there are 304 UNPROFOR soldiers in the enclave because 150
22 soldiers are waiting for entry in Zagreb."
23 We can see that their arithmetic, that doesn't add up to 550, but
24 what does this tell you about their knowledge of Dutch forces, in your
1 A. It certainly was an issue of interest to their intelligence
2 organs. The fact that they are seeking to count the number of personnel,
3 total of the Dutch Battalion, as well as keep track of who is in the
4 enclave and who is not in the enclave as a percentage of the force. So
5 again, it just illustrates a point that trying to keep an accurate
6 assertion of everything that was going on within at least the Srebrenica
7 enclave here and, as you'll also note in the broader document, the Zepa
8 and Gorazde enclaves was a very high priority to the intelligence organs
9 of the Main Staff.
10 Q. Now, we see that they also note that there's 150 Dutch soldiers
11 who are waiting for entry in Zagreb. Did you have any information that
12 any UNPROFOR reinforcements were allowed during this time-period, from
13 May, June, and July 1995?
14 A. There may have been select numbers allowed in but not an
15 appreciable number. I think that the best source of information on that,
16 and again I cite to it in my narrative report, is the August or
17 September 1995 report by the Dutch Battalion that was at Srebrenica,
18 where they document -- again, based off of their Dutch and UN documents,
19 you know, the numbers of soldiers who left the enclave before and the
20 difficulties that they were having in getting those soldiers permission
21 to return back to the enclave.
22 Q. All right. And finally we see that -- a little bit farther down:
23 "In addition to UNPROFOR, there are also representatives of
24 UNHCR, ICRC, MSF, military observers, and UNPROFOR civilian police."
25 So does that appear to be accurate knowledge about other
1 internationals present at the enclave?
2 A. Yes, sir.
3 MR. McCLOSKEY: I would offer this document into evidence.
4 MR. IVETIC: Your Honours, the Defence would object. Looking at
5 the original of the document, the format of the document does not appear
6 to comply with other official VRS documents we've had in the case. The
7 type-set is different. There is no recipient identified on the front of
8 the document. There is no official stamp at the end of the document,
9 indicating that it was officially sent by an official organ of the VRS.
10 There is no stamp indicating receipt by an official organ of the VRS. We
11 don't know where this document came from. Without that information, we
12 would object to the authenticity and reliability of this document.
13 JUDGE ORIE: Mr. McCloskey, the first logical question that
14 arises is where this had come from as far as you are aware of?
15 MR. McCLOSKEY: I believe this comes from what we call the
16 Pecanac collection, where other documents have come from. Mr. Ivetic's
17 point is well taken. I -- we do have evidence where it came from and can
18 establish that. Hold on one second, if I could.
19 [Prosecution counsel confer]
20 JUDGE FLUEGGE: Could we have a look on the last page of the
21 document in B/C/S.
22 MR. McCLOSKEY: I'm sorry?
23 Yes, Mr. President. The -- this -- as you have heard some
24 evidence on, I believe Dragomir Pecanac was a VRS officer in the
25 intelligence branch. His residence was searched and we obtained a DVD
1 with some colour scans and we -- this is part of that collection. There
2 are other documents that are -- they look closer to what Mr. Ivetic has
3 referred to as typical VRS documents. This is a unique document. I can,
4 of course, provide more information on the authenticity, where it came
5 from, and such through investigators. We have had Mr. Pecanac in this
6 courthouse. I can't recall what we said -- what he said or if it was
7 reliable. But I can provide that and I can discuss over coffee with
8 Mr. Ivetic and try to get him that information if need be.
9 JUDGE ORIE: Yes. Has this document ever been admitted in
10 another case and was there ever any specific objection to it and what was
11 then ruled on that, if you know?
12 MR. McCLOSKEY: I believe it came in in the Tolimir case and I
13 believe it came in --
14 JUDGE ORIE: Okay --
15 MR. McCLOSKEY: -- through a VRS officer --
16 JUDGE ORIE: -- we'll receive further information. I would
17 suggest that we MFI the document for the time being, awaiting further
19 Mr. Registrar, the document will receive number --
20 THE REGISTRAR: Yes, Your Honour. 65 ter number 25996 will be
21 MFI'd P2099.
22 JUDGE ORIE: Thank you, Mr. Registrar. That is the status now.
23 Please proceed -- oh, yes, I'm -- it's quarter past 2.00.
24 Mr. Butler, before we adjourn, I would like to instruct you that
25 you should not speak with anyone about your testimony or communicate in
1 whatever way about the testimony, either given already or still to be
2 given in the days to come. We would like to see you back tomorrow
3 morning at 9.30 in this same courtroom.
4 THE WITNESS: Yes, sir, I understand.
5 JUDGE ORIE: You may follow the usher.
6 [The witness stands down]
7 JUDGE ORIE: We adjourn for the day and we'll resume tomorrow,
8 Wednesday, the 4th of September, 9.30 in this same courtroom, I.
9 --- Whereupon the hearing adjourned at 2.18 p.m.,
10 to be reconvened on Wednesday, the 4th day of
11 September, 2013, at 9.30 a.m.