1 Thursday, 12 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 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-09-92-T, the Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Madam Registrar. The Chamber was
11 informed that the Defence wanted to raise a preliminary issue.
12 Mr. Stojanovic.
13 MR. STOJANOVIC: [Interpretation] Good morning, Your Honours.
14 Good morning to our colleagues from the Prosecution. This Defence has to
15 point out for the record the problem we are facing in today's intention
16 to examine the witness who was planned for the first part of our session.
17 Just to remind you, Your Honours, in our submission from July 2013, after
18 your decision regarding our submission from April 2013, we pointed out
19 that this Defence believes today's testimony would not be according to
20 the rules. Let me remind you of two rules that were quoted in the
21 submission. First of all, this witness has to did testify about the
22 communication that happened during the court recess between the client
23 and his defendants; i.e., the communication which is privileged, which is
24 protected and which cannot be used in any proceedings whatsoever. The
25 second reason and we remind you that we mentioned it in our submission,
1 is the fact that today's witness is a prosecutor's office's staff member
2 and, as such, at that moment she was in the courtroom and she was
3 listening to the communication between the client and his counsel beyond
4 and outside of the official part of the trial. Bearing all this in mind,
5 we believe that she would be in direct conflict of interest because she
6 is a staff member, she is sitting on the side opposite to us in this
7 courtroom and now she has been called to testify in order to prove the
8 mens rea that our client possibly had. These two arguments is something
9 that we emphasised in July 2013 in our submission, and the reply is still
10 pending from you, and still, the hearing of this witness has been planned
11 for today. We would kindly ask you to render a decision on that first
12 before the witness may be called into the courtroom.
13 JUDGE ORIE: Ms. Marcus.
14 MS. MARCUS: Good morning, Your Honours. Very briefly in
15 response, the position of the Prosecution is that Mr. Mladic waived his
16 right to that privilege by yelling the words across the courtroom. This
17 was something that was put on the record on the 23rd of August, 2012, at
18 page 1482 where Mr. Mladic was warned that if he were to yell something
19 across the courtroom, he may be subject to that as evidence against him.
20 Furthermore on the issue of Ms. Karall being an OTP staff member, that,
21 we submit, goes to issues of credibility and not to admissibility. Just
22 like with other OTP witnesses the Defence is free to challenge Ms. Karall
23 in cross-examination. Thank you.
24 JUDGE ORIE: Mr. Stojanovic, any reply to what the Prosecution
25 just submitted.
1 MR. STOJANOVIC: [Interpretation] No, Your Honours. I know what
2 your position was with regard to everything that General Mladic has to
3 say. I would like to remind you that we were told that any communication
4 during trial may be on post-it notes and what happens during the breaks
5 is not part of your decision. On several occasions, you suggested that
6 the communication between us and our client should take part during the
7 break, not during the trial. If it has to be during the trial, it has to
8 be on post-it notes. It has to be at very low tone, and this
9 communication happened between the client and the counsel once he left
10 the courtroom during the break and the witness who has been called to
11 testify today heard that communication, which was during the break.
12 JUDGE ORIE: I'm just re-reading what happened on 23 August of
13 last year. Do you have a specific line reference, Ms. Marcus? I saw
14 that there was a --
15 MS. MARCUS: Yes, Your Honour, I was referring to page 1481.
16 JUDGE ORIE: Yes, that's --
17 MS. MARCUS: And where --
18 JUDGE ORIE: The transcript says 1482, perhaps --
19 MS. MARCUS: It's line 19 where Judge Moloto commented on the
20 waiver of the privilege.
21 JUDGE ORIE: Yes. Then one question, Mr. Stojanovic. What is
22 the legal authority that if you shout audible for everyone but not in the
23 presence of the Bench, that that then suddenly that other rules would
24 apply? And that you would not have given up your privilege if you shout
25 in the -- or yell in the presence of other persons than the Bench? Is
1 there any legal authority for that? Or could you analyse the waiver of
2 the privilege in such a way that it does only apply during court sessions
3 and not if you do it anywhere else?
4 MR. STOJANOVIC: [Interpretation] Your Honour, the basis for this
5 position on the part of the Defence is this: First of all, it is our
6 national legislation and the rules of the state from which the counsel
7 come. The law on legal representation and the code of conduct of lawyers
8 regulates the issue of relationship between a client and his counsel.
9 Everything that a client communicates to his counsel is privileged.
10 According to the code of conduct of Defence counsel, the counsel is
11 duty-bound to keep it to himself and cannot use it for any other purposes
12 save for his contacts with his client. Second of all, it doesn't say
13 anywhere that the mere fact that that communication is aloud is proof
14 that there is a waiver on the privilege that exists. Communication is a
15 communication. Every day we are in a position to communicate with our
16 client and I don't think that it is at all in dispute that he has to
17 speak aloud because of his health problems, because of his condition.
18 This is as regards our relationship with our client. We are accustomed
19 to it.
20 Second of all, you know, Your Honours, that our communication in
21 the Detention Unit is also considered privileged. It is recorded but it
22 is not used for any purpose or in any stage of the proceedings in any
23 case. And that applies across the board. Irrespective of the fact
24 whether the communication is loud, at a high volume, on the border of
25 verging of misunderstandings on our part, but this is part of our job and
1 we have to do it every day, literally, Your Honours. That is why I
2 believe that this was communication between the client and his Defence
3 counsel, and that in that sense it was never meant to suggest that our
4 client waived his right to privileged communication with his counsel.
5 JUDGE ORIE: Thank you for those further submissions.
6 Same question for that OTP staff, if they hear anything, that
7 they are not qualified any further to testify about it. Is there any
8 basis for that submission? Any legal basis? I'm not seeking an
9 explanation but whether you have any legal authority for that position.
10 MR. STOJANOVIC: [Interpretation] No, Your Honours. This could be
11 the basis that concerned the status of the lady who is supposed to
12 testify today. We claim that she is in direct conflict of interest, and
13 this may be an argument for the cross-examination and for the credibility
14 of this witness.
15 [Trial Chamber confers]
16 JUDGE ORIE: Both the objections are denied. The first objection
17 about the waiver of the privileged communication, the argument ignores
18 that by speaking very loudly, that the communication cannot be considered
19 to be confidential any further, and the accused has been warned about
20 that, or at least it has been brought to his attention. For the second
21 issue, there is no conflict of interest. The witness who will appear is
22 supposed to testify about facts, nothing more, nothing less, and I take
23 it, Ms. Marcus, that you'll keep that in mind. The witness is not here
24 to establish any mens rea or things of the kind. The witness is just
25 here to tell the Court upon being examined what she saw, heard or
1 experienced otherwise. She is a witness of fact. Therefore, the -- both
2 the objections to hear this witness are denied. And the usher is
3 requested to escort the witness into the courtroom. As far as protective
4 measures are concerned, there are no protective measures requested for
5 this witness. Nevertheless it may be necessary to go into
6 private session if the content of the testimony is at risk to be
7 prejudicial to other witnesses who testified in -- with protective
9 MS. MARCUS: Yes, Your Honour, I've planned it as such.
10 JUDGE ORIE: Thank you.
11 [The witness entered court]
12 JUDGE ORIE: Good morning, Ms. Karall.
13 THE WITNESS: Good morning.
14 JUDGE ORIE: Before you give evidence, the Rules require that you
15 make a solemn declaration.
16 THE WITNESS: I'm sorry, I can't hear anything.
17 JUDGE ORIE: I restart. Can you hear me now?
18 THE WITNESS: Not through the ear-phones. I can hear you without
20 JUDGE ORIE: But if others start speaking in a different
21 language --
22 THE WITNESS: Okay, thank you.
23 JUDGE ORIE: I'll restart. Ms. Karall, before you give evidence,
24 the rules require that you make a solemn declaration, of which the text
25 is now handed out to you. May I invite to you make that solemn
2 THE WITNESS: I solemnly declare that I will speak the truth, the
3 whole truth and nothing but the truth.
4 WITNESS: MARIA KARALL
5 JUDGE ORIE: Thank you. Please be seated.
6 THE WITNESS: Thank you.
7 JUDGE ORIE: Ms. Karall, you'll first be examined by Ms. Marcus.
8 Ms. Marcus, as you most likely know already, is counsel for the
10 Ms. Marcus you may proceed.
11 MS. MARCUS: Thank you, Your Honour.
12 Examination by Ms. Marcus:
13 Q. Good morning, Ms. Karall.
14 A. Good morning.
15 Q. Could you please state your full name for the record.
16 A. My name is Maria Karall.
17 Q. And what is your date of birth, please?
18 A. The 5th of March, 1964.
19 Q. Where were you born?
20 A. I was born in Austria, my birth place is called Oberpullendorf.
21 Q. Could you spell the location of your birth just for the
22 transcript, please?
23 A. O-b-e-r-p-u-l-l-e-n-d-o-r-f.
24 THE INTERPRETER: Could the witness kindly speak closer to the
25 microphone, please? Thank you.
1 JUDGE ORIE: If you adjust the microphone a little bit further
2 down, that might help. Please proceed.
3 MS. MARCUS:
4 Q. Ms. Karall, what language do you consider to be your mother
6 A. It's Croatian. The area where I come from has a national
7 minority, there are several Croatian villages, so I grew up in a Croatian
9 Q. Can you explain to the Chamber a bit about the kind of Croatian
10 which is your mother tongue?
11 A. Well, the local dialect that we speak is a bit outdated. The
12 minority that moved there 500 years ago still uses the language that was
13 used there 500 years ago so it is Croatian but it's archaic.
14 Q. Did you ever have occasion to formally study B/C/S as well?
15 A. Yes. I had an education in school, in high school, for six
17 Q. What other languages do you speak fluently?
18 A. I'm fluent in English. Of course my best language is German
19 because it's the language I was educated in. I'm fluent in English and
20 in Dutch. I have a certain knowledge of French and Russian.
21 Q. Ms. Karall, how long have you worked at the Tribunal?
22 A. I've been here for more than 15 years, since the 1st of May,
24 Q. And in what capacity?
25 A. My job title is language reference assistant.
1 Q. Can you describe for us what that entails?
2 A. It's a whole range of duties. I mainly started interpreting for
3 the investigators. I also do written translations, transcripts, lately
4 I've been more into administration, and the last years I've been the
5 witness co-ordinator for the Mladic team which includes contacting
6 witnesses, organising that they come here on time, et cetera.
7 Q. In the course of your duties, have you been requested to
8 transcribe B/C/S, which is spoken on audio or video?
9 A. Yes. I've been transcribing interviews that the OTP did. I've
10 been transcribing videos, intercepts, in B/C/S and in English.
11 Q. Ms. Karall, as you know, you've been called as a witness before
12 this Chamber because of the events which took place in this trial's
13 hearing of 18th of February, 2013. On that day, what was requested of
14 you by the Prosecution team?
15 A. I was asked to be in court to monitor the accused in case he says
16 something that might offend the witness on the stand.
17 Q. During what period of that day were you present in the courtroom?
18 A. I was present from the beginning of the first session to the
19 middle of the break after the first session.
20 Q. Did you, in fact, note down some words which you heard uttered by
21 the accused on that day?
22 A. Yes, I did. As soon as I heard them, I jotted down a few notes
23 in English in my notebook, and later on I put a formal note in an e-mail
24 to my team to inform the team, in B/C/S and with my translation.
25 Q. How was it that you were able to hear the words spoken by the
2 A. Well, I was sitting where now -- it was in the same courtroom.
3 I would have been sitting behind Mr. McCloskey, although he wasn't
4 present that day, and the accused is just across of me, and I can hear
5 him very well because he speaks loudly.
6 JUDGE ORIE: Just to -- for the record, Mr. McCloskey is sitting
7 one row before the interpreters' booth which is close to the door where
8 the Judges enter the courtroom, and what the witness explains is that she
9 was seated at the row closest to those booths. Please proceed.
10 MS. MARCUS: Could the Court Officer please call up 65 ter 30274
11 but not broadcast it to the public. This is the e-mail which was sent by
12 Ms. Karall which she just referred to. I've discussed this with
13 Mr. Stojanovic before the hearing, and he has said that he has no
14 objection to it being added to the exhibit list and used and tendered.
15 Q. Ms. Karall, without reading any of the contents yet is this the
16 e-mail that you sent to the Prosecution team after hearing the words of
17 the accused on the 18th of February, 2013?
18 A. Yes.
19 MS. MARCUS: Could we have private session, please.
20 JUDGE ORIE: We move into private session.
21 [Private session]
23 [Open session]
24 THE REGISTRAR: We are in open session, Your Honours.
25 JUDGE ORIE: Thank you, Madam Registrar.
1 Ms. Marcus, we know where the witness was seated at the time,
2 where the accused is is common knowledge between -- among everyone who
3 sits in this courtroom. Would there be any -- would it be good to
4 establish approximately the distance or whether the parties would agree
5 on the distance between the witness listening and the accused speaking?
6 MS. MARCUS: Would you like me to ask the witness to estimate the
7 distance or would Your Honour like to --
8 JUDGE ORIE: An estimate of the witness is fine. I'd rather that
9 you agree. You can measure it before you agree so that there is no -- we
10 don't have to rely on a great talent or a bad talent in estimating
12 MS. MARCUS: I'm sure we can measure it and agree from our
13 position, I'm sure.
14 JUDGE ORIE: Yes, we would like to hear from you after the next
16 MS. MARCUS: Yes, Your Honour.
17 Q. Ms. Karall, thank you very much.
18 MS. MARCUS: Your Honours, I have no further questions for the
19 witness, but I would like to make a bar table submission following the
20 end of her testimony with leave of the Chamber.
21 JUDGE ORIE: We'll hear from you after the examination of the
23 Mr. Stojanovic, are you ready to cross-examine the witness?
24 MR. STOJANOVIC: [Interpretation] Yes, Your Honour.
25 JUDGE ORIE: Ms. Karall, you'll now be cross-examined by
1 Mr. Stojanovic. Mr. Stojanovic, as most likely is known to you as well,
2 is counsel for Mr. Mladic. You may proceed, Mr. Stojanovic.
3 Cross-examination by Mr. Stojanovic:
4 Q. [Interpretation] Good morning, Ms. Karall. Just a few questions
5 that I want to put to you. Before that day, the 18th of February, 2013,
6 had you ever been in this courtroom during the Mladic trial?
7 A. No.
8 Q. Who tasked you to be in the courtroom on that day and follow or
9 monitor the accused?
10 A. Ms. Marcus.
11 Q. At any moment during your many years of service at the Tribunal,
12 had you ever been given such a specific task from the Prosecution?
13 A. No.
14 Q. During the first hour of the session, did you notice Mr. Mladic
15 addressing any words to the witness?
16 A. No, not during the court session.
17 Q. What was the specific task you received from Ms. Marcus?
18 A. I was to listen to whatever the accused might say that might
19 offend the witness or also observe whether he does any gestures or
20 anything like that, and also listen to whatever he says during the break.
21 Q. You did not notice any gestures during the first session on
22 Mr. Mladic's part directed at the witness, did you?
23 A. No, not during the court session.
24 Q. Observing him, did you notice on his face a redness of the skin,
25 any sign of anxiety, anything that would indicate his involvement in the
2 A. No, I can't remember that. I mean, he would not have liked
3 whatever he said, but and he wouldn't have been smiling or anything like
4 that or be relaxed, but, no.
5 Q. The words that you mentioned a moment ago, did Mr. Mladic utter
6 them after all the three members of the Chamber had left the courtroom?
7 A. Yes.
8 Q. Those words, were they uttered by Mr. Mladic after the witness
9 was ushered out of the courtroom?
10 A. Yes.
11 Q. Did he say that while sitting down, while he was standing up, or
12 at the moment when he was being taken out?
13 A. I think he already stood up, he had called you to the Bench to
14 talk to his lawyers, I don't know whether you were present or Mr. Lukic
15 or it would have been Mr. Ivetic, I think, and he was talking to his
16 lawyers, and I think that you were all on your feet already and then went
18 Q. Those words, were they addressed to his Defence counsel whom he
19 had invited to approach a moment before?
20 A. Yes.
21 Q. Would you tell us if you remember who at that moment, apart from
22 the counsel, the security, you and General Mladic, was in the courtroom,
23 if anyone?
24 A. Mr. Groome was here. He was still sitting and making notes.
25 I think Ms. Marcus had left the room already. There might have been an
1 intern left, perhaps the court reporter. I don't remember that.
2 Q. Were all the three Defence counsel present today present at that
3 time, or was any of us missing then?
4 A. I don't remember.
5 MR. STOJANOVIC: [Interpretation] Your Honours, with your leave,
6 I should like us to see an excerpt, because there is a recording made
7 available to us by the OTP, and the recording resulted from your prior
8 order for General Mladic to be recorded, and I would like to play that
9 part of the video.
10 JUDGE ORIE: Before we do, could I ask one additional question?
11 When you told us who was still in court, you didn't mention
12 representative of the Registry, Chambers, assistant from Chambers. Do
13 you have any recollection on whether those were still present?
14 THE WITNESS: I don't remember but I think that everybody had
15 already left. The security might have -- security guards might have --
16 would have been in the court but I think nobody from the Bench was still
18 JUDGE ORIE: Thank you. Then, let's look at the recording.
19 MR. STOJANOVIC: [Interpretation] For the record, I should like to
20 ask only for one excerpt, 1:05:10 to 1:07:05. There is no audio, just
21 the video footage, and then I will put my questions to the witness.
22 [Video-clip played]
23 MR. STOJANOVIC: [Interpretation]
24 Q. Ms. Maria, after seeing this excerpt, precisely the moments that
25 you testify about, do you stand by your testimony to the effect that the
1 words you just quoted were uttered by Mr. Mladic while standing up or
2 sitting down, addressing the three of us?
3 A. I really can't say. I don't know whether he was partly --
4 whether he was sitting when he started to speak and then stood up.
5 I can't say when exactly he said the words.
6 Q. In the words that you cited, it is said Mr. Mladic mentioned a
7 photograph. You don't know --
8 JUDGE ORIE: Mr. Stojanovic, if we come to the content of what
9 was heard, out of an abundance of caution I would rather deal with that
10 in private session.
11 MR. STOJANOVIC: [Interpretation] Very well, Your Honour. I did
12 not mean to go much further, but out of caution, perhaps we should move
13 into private session.
14 JUDGE ORIE: Yes, perhaps only for very short but we move into
15 private session.
16 [Private session]
5 [Open session]
6 THE REGISTRAR: We are in open session, Your Honours.
7 JUDGE ORIE: Thank you, Madam Registrar.
8 MR. STOJANOVIC: [Interpretation]
9 Q. Ms. Karall, after the break, did you return to the courtroom to
10 attend the second session?
11 A. No. I went up to my office to make a note about what I had heard
12 and to continue with my regular work.
13 MR. STOJANOVIC: [Interpretation] With your leave, Your Honours,
14 may I?
15 JUDGE ORIE: You may consult, briefly and at a low volume, your
17 [Defence counsel and Accused confer]
18 MR. STOJANOVIC: [Interpretation]
19 Q. Did you report these words to Mr. Groome immediately after
20 hearing them, in the courtroom?
21 A. Yes. We went out and we talked about it right in front of the
22 courtroom. I told him, and that's why it went into the record with a
23 slightly different translation than is in my e-mail.
24 Q. That is what I want to ask you about, and that will be my final
25 question. Did you put down the words you heard the same moment or did
1 you have the opportunity to replay the recording perhaps and record what
2 Mr. Mladic may have said?
3 A. No. I had to do it from memory. I only heard it once.
4 JUDGE ORIE: Mr. Stojanovic, as far as the Chamber is aware,
5 there is no audio recording of the event at all, is there?
6 MR. STOJANOVIC: [Interpretation] I don't know any more,
7 Your Honours. I cannot be sure. We received only a video recording,
8 without the audio, but I would not be surprised that sound is recorded as
10 JUDGE ORIE: It is not from this camera which was installed upon
11 the order of the Chamber.
12 Ms. Marcus.
13 MS. MARCUS: Your Honour, we reviewed the audio from the floor,
14 which did not capture anything that was said during the breaks so there
15 is no -- as far as I'm concerned, from our perspective, there is no audio
17 JUDGE ORIE: Please proceed.
18 MR. STOJANOVIC: [Interpretation] Thank you. Then I can skip the
19 remaining questions because this was very important.
20 Q. Let me ask you whether, in the e-mail message you sent that day
21 and the report that is marked 65 ter 30270, there is a slight semantic
22 difference between what is written in your original e-mail sent out that
23 day and the report that was made available to us.
24 MS. MARCUS: Your Honour, if Mr. Stojanovic is asking the witness
25 to compare, he should show her what he's asking her to compare, in our
2 JUDGE ORIE: Well, Mr. Stojanovic asked whether there is a slight
3 semantic difference, which I think for a reader should be clear so I do
4 not see -- of course, it could be shown to the witness. If there are any
5 follow-up questions, then please do so.
6 MS. MARCUS: Your Honour, he is asking the witness -- he quoted
7 65 ter 30270 which is an information report which was put together after
8 Ms. Karall and Ms. Sokola were interview by an OTP investigator. So
9 he's -- I believe he's asking Ms. Karall to compare what is contained in
10 the information report with what was contained in her e-mail, if I'm not
12 JUDGE ORIE: If you want -- I mean, if the two documents are
13 there, everyone who can read can see any difference so, therefore, that's
14 a relatively useless question. If, however, you want to further explore
15 that difference, then of course you should show it to the witness.
16 MR. STOJANOVIC: [Interpretation] Your Honours, I hope that
17 Madam Prosecutor and I will agree there is a certain difference, and
18 I thought I would cover it only through a question as to how that
19 difference occurred because it's not in dispute that there is a
20 difference, but now we are receiving an answer from the Prosecution as to
21 how it occurred.
22 JUDGE ORIE: Okay. So you say you've answered the question, you
23 accept the explanation of how this -- what the origin of the difference
24 is on the basis of what Ms. Marcus just said. You agree with that.
25 MR. STOJANOVIC: [Interpretation] Correct.
1 JUDGE ORIE: Any further questions, Mr. Stojanovic?
2 MR. STOJANOVIC: [Interpretation] No, Your Honours I have
3 concluded. Thank you very much, Ms. Karall.
4 JUDGE ORIE: Judge Fluegge has one or more questions for you.
5 Questioned by the Court:
6 JUDGE FLUEGGE: Ms. Karall, we all watched the video without any
7 audio. First, we could see that Mr. Mladic was sitting, then he stood
8 up, and then slowly left the courtroom. If he had taken that -- that
9 there are three sequences, what we saw in the video, at which time or
10 I should say at which sequence did he utter the words you have heard?
11 A. It's half a year ago, I don't remember these details. I saw the
12 video for the first time right now. It's obvious that he addressed
13 Mr. Stojanovic because then Mr. Stojanovic -- while sitting, and then
14 Mr. Stojanovic -- because Mr. Stojanovic turned around and went to the
15 Bench. And I think at some point after he stood up, he would have
16 continued with the few sentences. There might have been a few seconds'
17 break between whatever he said.
18 JUDGE FLUEGGE: Was it while he was standing and addressing his
19 counsel, or was it during the time when he was at the exit door?
20 A. It must have been that he started speaking while he was sitting,
21 he continued while he was standing up, but after he turned to the exit
22 door and faced the exit door, I wouldn't have heard him anymore.
23 JUDGE FLUEGGE: Thank you very much.
24 JUDGE ORIE: I have one additional question about you talked
25 about the archaic language you used in your village, and then you said
1 during second education you were taught normal Croatian. Is that -- you
2 said you learned it later. Is that in school they didn't use that
3 archaic dialect or --
4 A. Oh, yes, of course we started with the Burgenland Croatian. It's
5 an official language in Austria. You can compare it to Afrikaans and
6 Dutch, if you want to. So Afrikaans being an earlier form or a -- yeah,
7 of Dutch. And then, of course, I had training in school, but then I also
8 had training on the job before I started with the Tribunal, and when
9 I started with the Tribunal I had to pass a language test.
10 JUDGE ORIE: Also, in the Croatian language?
11 A. At the Tribunal, it was called B/C/S already, so it's not just
13 JUDGE ORIE: I see the point but in modern language and not the
14 archaic language?
15 A. Yes.
16 JUDGE ORIE: Yes. Have you had ever any difficulty in
17 understanding the nowadays Croatian language?
18 A. Not since I've been with the Tribunal.
19 JUDGE ORIE: Before you -- you had or?
20 A. Yes, while I -- before I started school and before I started
21 formal training in the official Croatian language.
22 JUDGE ORIE: Yes. And the formal training you got in school
24 A. In high school, what we call gymnasium and I think -- I'm not
25 even sure whether I started with 10 years or with 12 years, whether it
1 was eight years or six years that we had it in school. But in elementary
2 school, when I started reading, we had our first reading books in
3 Croatian and in German, in parallel.
4 JUDGE ORIE: Yes. And that Croatian, was that written modern
6 A. Gradually.
7 JUDGE ORIE: Gradually. So it's moved from dialect, from archaic
8 to nowadays Croatian.
9 A. Yes, and the differences aren't that big.
10 JUDGE ORIE: Yes. Thank you. Have the questions in the
11 cross-examination or questions by the Bench triggered any need for
12 further questions, Ms. Marcus?
13 MS. MARCUS: No, Your Honour, thank you.
14 JUDGE ORIE: Then this concludes -- Mr. Stojanovic, have the
15 questions by the Bench triggered any need for further questions?
16 MR. STOJANOVIC: [Interpretation] No, Your Honour.
17 JUDGE ORIE: Then Ms. Marcus, you announced that you would seek
18 to tender more exhibits.
19 MS. MARCUS: Your Honour, I have a bar table submission which I
20 can do after the witness is excused, with your leave. I don't think it
21 would be contentious. We discussed it before the session.
22 JUDGE ORIE: Yes. If that's the case, then we could already
23 release the witness.
24 Ms. Karall, thank you very much for coming. I often have to add
25 "a long way to The Hague," but that might not apply to you. But
1 nevertheless, thank you very much for having come to this courtroom and
2 having answered the questions that were put to you by the parties and by
3 the Bench. You are excused.
4 THE WITNESS: Thank you.
5 [The witness withdrew]
6 JUDGE ORIE: Ms. Marcus?
7 MS. MARCUS: Yes, Your Honour. The Prosecution seeks leave to
8 tender into evidence portions of this synchronised video that
9 Mr. Stojanovic played. What we've done is we took -- it's a
10 synchronisation between the floor video of that hearing and the isolated
11 video that was focused on Mr. Mladic. That is why you saw the isolated
12 video on the left side of your screen and a blank on the right because
13 that was not when the Chamber was in session.
14 So what we've done is we have synchronised them and selected very
15 few short clips from that video. We sent the selection to the Defence
16 on -- the latest selection on Monday, the 9th, and Mr. Stojanovic and
17 I discussed this before the hearing began today. And if Mr. Stojanovic
18 has no objections, as I understood, we would seek leave to tender into
19 evidence our selected clips. If the Chamber wishes to see it, we can, if
20 not, I'm happy to just have it tendered into evidence. We have
21 tentatively assigned 65 ter number 30273.
22 JUDGE ORIE: Any objection against it being admitted,
23 Mr. Stojanovic?
24 MR. STOJANOVIC: [Interpretation] No, Your Honour. Considering
25 that our clip is part of that video footage, then it would be pointless
1 for us to tender just the clip we used in the sequence we mentioned.
2 JUDGE ORIE: Yes. And we looked at your selection from that clip
3 that was when Mr. Mladic first was seated, then stood up, and then left
4 the courtroom. Is that the only portion, Ms. Marcus, where we do not
5 have two simultaneous pictures?
6 MS. MARCUS: No, Your Honour. The selection that we made, which
7 is a total of about four and a half minutes, contains an introductory
8 clip, just so that we can mark the date on which it happened. It
9 contains two very short clips from the hearing of that day, with
11 JUDGE ORIE: And there we would have the --
12 MS. MARCUS: There you would have both, yes. So it needs to be
13 admitted under seal, yes. And then the last clips, clips 4 through 6,
14 show -- okay. Clips 4 and 5 are the beginning of the break and the end
15 of the break. The end of the break being relevant to the evidence of
16 Ms. Sokola, the other quote that was heard from Mr. Mladic. And the
17 final clip, clip 6, is a very short piece from the beginning of the
18 second session, just before Mr. Mladic was removed from the courtroom.
19 JUDGE ORIE: Yes. Now, what was played is then the beginning of
20 the break?
21 MS. MARCUS: Yes, that was from clip 4.
22 JUDGE ORIE: Yes. Clip 4 starting at I think it was 1 hour,
23 5 minutes, approximately.
24 MS. MARCUS: Yes, Your Honour, just a few seconds before that,
1 JUDGE ORIE: Just a few seconds before we see on the picture
2 1:05, 1 hour, 5 minutes.
3 MS. MARCUS: Yes, I included the exiting of the Chamber so we
4 would be able to set the approximate time.
5 JUDGE ORIE: Yes, although --
6 MR. McCLOSKEY: When you're exiting.
7 JUDGE ORIE: -- that is not what we looked at but that is part of
8 number 4.
9 MS. MARCUS: Yes, Your Honour.
10 JUDGE ORIE: Yes, this all having been now sufficiently
11 identified, Madam Registrar, to be admitted under seal under what number?
12 THE REGISTRAR: Document 30273 receives number P2181,
13 Your Honours.
14 JUDGE ORIE: And is admitted under seal. If there is nothing
15 else at this moment, we'll continue after the break with the
16 cross-examination of Mr. Butler. We take a break and we'll resume at
17 ten minutes to 11.00.
18 --- Recess taken at 10.30 a.m.
19 --- On resuming at 10.56 a.m.
20 JUDGE ORIE: There was a preliminary matter to be raised by the
22 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. With your
23 leave, we understand that before hearing the witness earlier today, you
24 had made a decision pursuant to our submission from July 2013, and you
25 rejected our remarks. We would like certification and the right to
1 interlocutory decision because we are of the opinion that this was
2 privileged communication between the client and his Defence counsel.
3 JUDGE ORIE: Mr. Stojanovic, if you want a certificate, file a
4 motion asking for a certificate. That's what you have to do. You don't
5 have to announce that. That's all understood. You're entitled to --
6 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. That's
7 correct. Thank you. I didn't know whether to address you in writing
8 because we didn't receive your decision in writing. So we would like to
9 file a written request for certificate on your decision. If that's the
10 case, we are going to send a written motion.
11 JUDGE ORIE: Yes. One second, please.
12 [Trial Chamber confers]
13 JUDGE ORIE: Thank you, Mr. Stojanovic. Next question, have the
14 parties agreed on the distance between the back row there and the
16 MR. McCLOSKEY: Yes, Mr. President. There was a joint measuring
17 working group with Mr. Blaskic and a tape measure and we came up with
18 15.5 metres and for Mr. Ivetic and myself the archaic 50.8 feet.
19 JUDGE ORIE: Yes, the parties agree that that was the distance
20 between the accused and between the witness, Ms. Karall, at the time.
21 Thank you for that.
22 MR. STOJANOVIC: [Interpretation] That's correct, Your Honours.
23 JUDGE ORIE: Then I have a last matter. In relation to
24 Mr. Butler, Madam Registrar meanwhile has provisionally assigned exhibit
25 numbers to documents he had consulted in preparing his report. Have the
1 parties received the list with the 65 ter numbers? The provisionally
2 assigned numbers are, Mr. Ivetic, P2148 up to and including P2160. Is
3 there any objection against those to be admitted?
4 MR. IVETIC: Insofar as they have now been identified, no. As
5 you might recall, my objection was based upon referring to them as being
6 in the binder.
7 JUDGE ORIE: Yes, they have been identified. No objections.
8 Madam Registrar, none of them there is any need to have them under seal,
9 I think. Therefore, P2148 up to and including P2160, are admitted into
11 Mr. McCloskey.
12 MR. McCLOSKEY: Yes, and lastly we do, as you asked, now have a
13 surrogate sheet for the stabiliser fin photo.
14 JUDGE ORIE: Yes.
15 MR. McCLOSKEY: P2053.
16 JUDGE ORIE: Madam Registrar, that will then be part of this
17 Exhibit P2053. You may add that to the -- to e-court.
18 If there is nothing else, then could Mr. Butler be escorted into
19 the courtroom.
20 MR. STOJANOVIC: [Interpretation] Your Honours, while we are
21 waiting for Mr. Butler to arrive, I just had a conversation with
22 Mr. Lukic, and I realise that I didn't understand whether we are to
23 expect a written decision, or is it today that is the first day before
24 our deadline to submit a motion for interlocutory decision?
25 JUDGE ORIE: We will let you know later today or not certainly
1 not later than tomorrow after having reviewed all the details of the
2 submissions that were made.
3 [The witness takes the stand]
4 MR. STOJANOVIC: [Interpretation] Thank you.
5 JUDGE ORIE: Mr. Butler, you're still bound by the solemn
6 declaration you've given at the beginning of your testimony and
7 Mr. Ivetic will now continue his cross-examination.
8 WITNESS: RICHARD BUTLER [Resumed]
9 THE WITNESS: Yes, sir.
10 JUDGE ORIE: Mr. Ivetic.
11 MR. IVETIC: Thank you, Your Honour.
12 Cross-examination by Mr. Ivetic: [Continued]
13 Q. Good day, sir.
14 A. Good day, sir.
15 Q. Before we take up at the topic where we left off yesterday,
16 I would like to revisit another topic. I'd like to return to the meeting
17 that you testified about yesterday that you had with General Milovanovic,
18 and this would be the one that you either attended with Jean-Rene Ruez or
19 Barry Hogan, which we have established you do not recall being recorded.
20 Can you help us at all about the month or the year that such a meeting
21 would have taken place?
22 A. No, sir, I just -- I just can't remember, recall at that point in
24 Q. Fair enough. Can you recall at all where, what locale, this
25 meeting was held at; i.e. was it a military building, a hotel, a
1 restaurant, private home? Are you able to provide any details in
2 relation to where the meeting would have been held?
3 A. I believe that it was in a conference room in a hotel in
4 Banja Luka, if I recall correctly.
5 Q. Could it have been at the Krajina military hotel in Banja Luka?
6 A. I could tell you it wasn't the Krajina Corps headquarters. It
7 could have been the military hotel, but clearly you seem to know more
8 about it than I do, so ...
9 Q. Let me ask you this, sir: Do you recall how many times in total,
10 how many meetings in total, you would have had with General Milovanovic?
11 Was it just that one or were there other --
12 A. It was just the one, sir.
13 Q. And are you sure that this meeting had been requested by
14 General Milovanovic rather than being requested by the Office of the
16 A. My understanding, as it was told to me, was that it was a request
17 of General Milovanovic. Again, I received my information from the chief
18 of Prosecutions on this. I'm sorry, the chief of investigations,
19 Mr. Ralston. You know, I had no foreknowledge of any of these issues.
20 I was simply called into his office one day and said, You're going to
21 Banja Luka in several days and here is why.
22 Q. Fair enough, sir. I'd like to call up 65 ter number 19462. And
23 to see if that can assist you with remembering details. There we go.
24 Sir, these are notes or a record of a meeting, and it's dated -- well,
25 the typed version is dated the 26th of March, but then that's crossed off
1 and it says 27 March 2001, and I can tell you these are notes that are --
2 that purport to be from General Milovanovic, and I'd like to go through
3 with you the introduction to see if you have knowledge of this meeting.
4 As you can see it says there:
5 "On 26," crossed off-hand, written "27 March 2001,
6 General Milovanovic and his associates held a meeting with
7 representatives of The Hague Tribunal at the request of the guests. The
8 meeting was attended by Mr. Barry Hogan, Mr. Richard Butler,
9 Mr. Ken Corlett, and a translator on behalf of the Tribunal. And
10 alongside General Milovanovic, Colonel Mikajlo Mitrovic,
11 Lieutenant-Colonel Darko Matijasovic, Mr. Zoran Cvetkovic, and Ms.
12 Branka Tanasic as a translator. The meeting was held on the premises of
13 the Krajina military hotel in Banja Luka and commenced at 1000 hours."
14 First of all, sir, does this appear to be the meeting in question
15 or is it another meeting other than the one we were discussing earlier?
16 A. No, sir. This is the meeting in question, and I now recall that
17 Ken Corlett, who was the ICTY liaison to the RS, was present as well,
18 yes, sir.
19 Q. Okay. And if you would look with me at the fifth paragraph from
20 the top in the English and in the B/C/S, it is recorded here as follows:
21 "Mr. Hogan thanked for the opportunity to attend and began by
22 saying that he first wanted to clarify the circumstances under which this
23 meeting was taking place. As far as he had understood,
24 Ms. Carla Del Ponte, she and Mr. Milovanovic had a conversation in
25 December," crossed out, handwritten, "October, and they talked about the
1 possibility of Mr. Milovanovic giving an interview. When she returned to
2 The Hague and reported on this, Mr. Butler and he were assigned by the
3 Tribunal to contact Mr. Milovanovic.
4 "General Milovanovic went on to say that he considered the
5 conversation informal, and that he had so far had similar conversations
6 on the subject with Mr. Harland, Mr. Graf, and Ms. Del Ponte."
7 Do you recall what Mr. Hogan is recorded as saying, does that
8 refresh your recollection as to matters or is it news to you?
9 A. Again, sir, I never knew the circumstances behind what predicated
10 the meeting. I was never given a back story. I was just told to
11 participate, as such, and I can only again testify to what I was told
12 were the circumstances as to why I was selected to go on this meeting.
13 MR. IVETIC: And if we can turn to page 6 of the English, and I
14 believe it's also -- should also be page 6 of the B/C/S --
15 JUDGE ORIE: Mr. Ivetic, before we look at it any further, could
16 you give any information about the author of this, what seems to be a
17 record of a meeting? Because it's not signed, not dated, not -- there is
18 no name under it. Could you have any -- would you be able to give any
19 information as where it comes from?
20 MR. IVETIC: I can, Your Honour. I thought I had started off by
21 saying they purport to be the notes of Mr. Milovanovic. That is what is
22 represented to me by the Office of the Prosecutor whose document this is,
23 and it was sent to me by the Office of the Prosecutor after the session.
24 And that's what it says in e-court, so beyond that I obviously can't
1 JUDGE ORIE: Mr. McCloskey, I'm not saying that you should, but
2 I'm just wondering where it comes from and what it exactly is.
3 MR. McCLOSKEY: Yes, this has, my understanding, been disclosed
4 long ago, but with the topic and with the many documents I just helped
5 out yesterday and sent it on to the Defence. I don't have independent
6 recollection of it but I also had shown the Defence an interview with
7 General Milovanovic where they begin the interview with a reference to
8 this meeting and the fact that he is turning over a -- Milovanovic turned
9 over this.
10 JUDGE ORIE: Mr. McCloskey, I'm -- at this moment my simple
11 question was where -- oh, you would say -- you were about to say where it
12 came from. I apologise for interrupting.
13 MR. McCLOSKEY: Sorry for being a bit Bosnian in my response, but
14 I meant to be -- at this interview Milovanovic provides his -- his notes
15 of that meeting, and that's all we have of the meeting.
16 JUDGE ORIE: Yes. I certainly would not have interrupted you if
17 you would have said, It was given to us during an interview by
18 Mr. Milovanovic. That's --
19 MR. McCLOSKEY: I don't recollect it, I'm just stating what's in
20 the recording of the meeting, and of course we have General Milovanovic
21 coming next so ...
22 JUDGE ORIE: Yes, Mr. Ivetic, please proceed, and again
24 MR. IVETIC: Thank you.
25 Q. This is the second paragraph in the B/C/S, the first paragraph on
1 the English, sir. And please bear with me as I read it into the record,
2 and then I'll have some questions about it:
3 "General Milovanovic added that for the first testimonies of
4 Serbian officers he requested written guarantees from Ms. Del Ponte, that
5 these officers would not be arrested during or 48 hours after their
6 testimony which was provided and that paved the way for the officers to
7 testify. After that, the response was better and better because the men
8 realised that they were not being summoned to testify just because they
9 were Serbs. In 1999, as Minister of Defence of the RS, he was supposed
10 to pay an official visit to NATO and he asked NATO for a guarantee that
11 during his stay he would not be taken into custody by the Tribunal but he
12 received no guarantee. Mr. Butler added that he often conducted
13 investigations and interviews with people from NATO and that they turned
14 out not to be good collaborators or the greatest of friends. He firmly
15 believes that this letter did not even reach The Hague Tribunal. As for
16 the Tribunal, much attention is given to the protection of witnesses.
17 Copies of the records of conversations are provided and no one should be
18 afraid of giving these testimonies. Instead they should be used to help
19 the Court."
20 Does this writing correspond to any memories you have of the
21 meeting with General Milovanovic that you had discussed with us
23 A. Yes, sir. One of the issues that was discussed -- and again,
24 looking at the two paragraphs in context, I do recall that when we
25 started the process where the Republika Srpska government would make
1 their officers available to members of the Office of the Prosecutor for
2 interview, that they wanted guarantees that those individuals would not
3 be immediately apprehended. Obviously, you know, in hindsight, if one
4 recalls the case of General Talic, who was attending a military meeting
5 out of the country and was subsequently arrested, I believe, by the
6 Austrians, not an unreasonable request by -- as I think it was in 1999 he
7 was the minister of defence. So one of the things that obviously I did
8 discuss was the fact that, you know, we had obviously a process where the
9 rules of the Tribunal, you know, put certain limits on witness statements
10 and testimonies, and individuals had to be warned, and I believe at the
11 time - I don't know if it is still the case - that in the case of an
12 individual who is suspect, that the transcripts or at least a recording
13 of the interview was provided to the individual in question. So that was
14 from the notes that he's given. It does talk about for the most part the
15 general areas that was discussed.
16 Q. Now, at the time of this meeting, in March of 2001,
17 General Milovanovic is no longer an official within the government. He's
18 a private citizen; is that accurate?
19 A. I don't recall exactly what his status was in 2001.
20 Q. Okay. Do you know or recall why this meeting attended by four
21 Tribunal OTP staff and three VRS army officers and two other VRS
22 personnel -- pardon me, RS personnel, would not have been recorded or
23 documented, apart from the notes that are said to come from
24 General Milovanovic?
25 A. Again, my understanding of it was that the primary purpose of the
1 meeting was to deal with procedural issues, not to formally interview the
2 general. Again, I can't tell you why I even was selected to go on this
3 other than presumably he was aware of me from my testimony related to
4 General Krstic.
5 Q. Okay. Now I would like to go back to the topic that we had left
6 off with yesterday in court. As you might recall we had started talking
7 about Kravica, and to make sure that we are all on the same page as to
8 what we are talking about, I'd like to let you know that during the
9 course of this trial, this Chamber has heard evidence of a Prosecution
10 witness, RM374, who gave testimony at transcript page 12775 through
11 12779, that he heard from a direct eye witness to the event at Kravica,
12 where the detainees being transported on a bus took over control of the
13 weapons of the guards after overpowering them on the bus, and that
14 shooting ensued between both sides, the Serb policemen guards on the one
15 hand and the armed detainees on the other hand that were on the bus, and
16 that he was not sure it was Kravica, although in one of his interviews he
17 had said it was Kravica. Did your review of the evidence and research
18 include this type of occurrence, and is this what you understood when we
19 broached the topic late in the day yesterday?
20 A. Well, again, to the degree of my research on Kravica, I don't
21 know whether it is in my narrative, I hope it is in my revised narrative
22 because we did -- if we got the information that soon. But certainly I
23 have testified that there are medical records from the Bratunac medical
24 centre reflecting the fact that on 13 July 1995, two individuals -- one
25 individual was wounded who was a member of the Bratunac Red Beret, so I
1 know that's in my narrative, and one RS police officer were killed from
2 the Special Police, and a third RS police officer had his hand burned and
3 was wounded and being treated. And, of course, down the line, when
4 Colonel Borovcanin who was present at that location explained that, so,
5 I mean, I am aware of it, but, I mean, the older question or the broader
6 question with respect to Kravica, whether it was a premeditated act or
7 what, whether it was a reactionary act, as I've testified in the Karadzic
8 case, I believe that what predicated it isn't as important as the
10 Even if I were to accept a premise that the shooting at Kravica
11 warehouse started as a result of an attempt by Muslims who were detained
12 there to escape, one, I am aware of survivor testimony from witnesses
13 there who talk about the executions occurring in waves over a space of
14 several hours, and I'm also aware of the casualties there, in the sense
15 that when one looks at the number of prisoners who were held at Kravica
16 warehouse and their outcomes; for example, if one takes an easy
17 mathematical number of a thousand being detained at the Kravica
18 warehouse, there are three known survivors. There are multiple possible
19 outcomes for people held in the warehouse in -- when the shooting starts:
20 They are either instantaneously killed; they are wounded and die even
21 with medical intervention; they are wounded but will survive with medical
22 intervention; or they are unwounded or so slightly wounded that they
23 don't require medical intervention.
24 Just as a function of statistical probability, what you have is
25 out of a population of a thousand, you have 997 who are killed, and you
1 have, on the other end of the spectrum, three who survive. You have no
2 members of the population group in the middle who were taken to Bratunac
3 medical centre and died of their wounds or who were taken to Bratunac
4 medical centre and survived their wounds.
5 Consequently, when one looks at the outcome, my view is that the
6 inescapable conclusion was that regardless of how the Kravica warehouse
7 massacre started, at some juncture a decision was made that all of the
8 people who were held at that location were going to be killed. The end
9 result of that can offer no other conclusion.
10 Q. Is it your testimony that the decision that all of them would be
11 killed occurred after the attempted break through and the fire-fight?
12 A. I don't know when that decision was made. Individuals have
13 testified with respect to that. I don't know when that decision was
14 made. All I can do, again, is recount that at some juncture, the
15 decision had to have been made simply based on the results.
16 Q. Okay. Can the results of your investigation exclude the
17 possibility that the decision was made by those policemen physically
18 present at the Kravica site after the attempted escape and after the
19 fire-fight between armed detainees and the guards?
20 JUDGE ORIE: If the witness says that he can't say whether it was
21 before or after, that means that he doesn't exclude the possibility that
22 it was after. Mr. Ivetic, to that extent, the question has been
23 answered. Further, the question was composite by including those who
24 would have made the decision, which was not yet part of the previous
25 testimony. So if you want to further pursue that, at the same time if
1 the witness doesn't know when the decision was taken, it's likely but you
2 could further explore that who would have taken such a decision. Do you
3 know whether who took that decision?
4 THE WITNESS: No, sir. I mean, again I can catalogue who was
5 there by rank and position but I cannot testify as to who made the
7 JUDGE ORIE: Please proceed, Mr. Ivetic.
8 MR. IVETIC:
9 Q. Since you can catalogue who was there by rank and position, would
10 you agree with me that no officer of the VRS was present?
11 A. Again, you're asking me now to speculate on an unknown. I am
12 aware that many of the people there were police. Certainly at least one
13 member of the Red Beret were there and I am aware of information that
14 other members of the Bratunac military police may have been there at some
15 point. I can't -- again, I'm not aware of any VRS officers being there
16 at 1700 when or even shortly thereafter, when the massacre occurred, but
17 again I can't exclude that possibility simply because I just -- I'm sure
18 I don't know all of the facts related to that.
19 Q. Do you know from your investigation, and can you confirm, that
20 prior to this event, prior to this date, there were no organised
22 A. I would disagree. I testified prior that I consider the
23 Jahorina -- sorry, let me try that one again. The Jadar River massacre
24 to be evidence of an organised execution.
25 Q. Perhaps we misunderstood each other. In relation to Kravica,
1 before this date, before --
2 A. I'm sorry, you're talking before 13 July?
3 Q. Correct, correct.
4 A. No, sir, the mass executions, there were no -- to my knowledge,
5 there were no mass executions that occurred on 12 July. So 13 July would
6 be the beginning of the series of mass executions.
7 Q. And the -- you indicated a person from the Red Berets, I believe
8 from your revised written narrative I remember reading something that he
9 may have been travelling on the road, passing by Kravica, when he was
11 A. Again, from my narrative, I don't believe I speculate as to how
12 he got there, simply I note the fact that there is a document from the
13 Bratunac medical centre that places him there. As I recall, we -- after
14 we learned about the fact that he was there, we did try to interview him,
15 and his -- if I recall correctly, what we discovered was that several
16 years after the war he perished in an automobile accident.
17 Q. Would you be surprised if I told you that this incident in
18 Kravica does not appear in your narrative at all?
19 A. Which one?
20 Q. The revised narrative.
21 A. The --
22 Q. The most recent one.
23 A. As I said, a lot of the information that we received pertaining
24 to the circumstances came after 2003, in my -- so again, as I've said,
25 some of the issues are in the narrative, some of them would be in other
1 documents, but I have testified about that because I think a lot of that
2 information came to light at the Tribunal after my departure and coming
3 up to the trial of Borovcanin, who was part of the Popovic trial.
4 Q. I agree with you as to the dates and my question is, it's not in
5 your narrative, you didn't testify about it during direct examination,
6 how did you think that this Chamber was going to get that very important
7 information to assess what actually is in your narrative if you don't
8 offer it?
9 A. I'm confused by your question. The information that is my
10 narrative is the most complete information that I had at the time of
11 publication. As I've testified before, one of the techniques that the
12 Office of the Prosecutor uses is to introduce documents related to these
13 particular issues in my subsequent testimony. Again, I don't control
14 what the Office of the Prosecutor does or does not choose to lead me
15 through my testimony. It's his ten hours, not mine.
16 Q. So would you agree with me that to get a full and as accurate as
17 possible picture of your knowledge and conclusions, it would be necessary
18 for myself, as I did, and for the Chamber, to review all of your prior
19 testimonies rather than to rely upon just the written reports and just
20 the direct examination in this case?
21 A. Again, I would reply that that is entirely dependent upon the
22 ultimate determination of this Trial Chamber or any past Trial Chamber as
23 to how much to rely or not rely on the information that I provide as part
24 of their ultimate decision process.
25 Q. But you will agree with me that for the Chamber to know what
1 there is to rely upon they would need to know the entirety of it and that
2 entirety is not in your reports?
3 MR. McCLOSKEY: Objection, this is getting very vague and the
4 references and speculative, and it's unnecessary.
5 MR. IVETIC: We have been talking about a specific incident. We
6 are talking about a specific incident that he's gone through in great
7 detail. It's not vague.
8 JUDGE ORIE: Mr. Ivetic, Mr. Ivetic, would you not interrupt
9 Mr. McCloskey, not only for Mr. McCloskey but also for the interpreters.
10 MR. IVETIC: Understood.
11 JUDGE ORIE: Mr. Ivetic, was it your intention to primarily draw
12 the attention of the Chamber that a report which is not updated in
13 respect of such new information, that that would be cumbersome for the
14 Chamber to rely upon? Because if that was your intention, then you
16 MR. IVETIC: Thank you, Your Honour. I also would like then to
17 draw the Chamber's attention to the fact that it also goes towards the --
18 whether the person is an expert, whether they are -- whether they have a
19 bias. And if they don't bring forward information and the Defence has to
20 pull it out of them I think that goes towards that consideration as well.
21 JUDGE ORIE: Yes. You consider that to be bias and that's what
22 you want to bring to the attention of the Trial Chamber.
23 MR. IVETIC: Yes, Your Honours. And if that's clear then I can
24 move on to a different topic.
25 JUDGE ORIE: It's clear that you've drawn the attention of the
1 Chamber to it and that you consider it to be bias. Please proceed.
2 MR. IVETIC: Thank you. Now I'd like to look at the revised
3 Srebrenica Military Narrative which is 65 ter number 4627 and I'd like to
4 focus on page 6 in both languages.
5 Q. And, sir, from -- I apologise, page 1 in both languages - there
6 we go - which is page -- page 1 in the text which is page 6 in e-court.
7 Now I know where I'm going.
8 Sir, this section that is entitled, "executive summary" goes from
9 page 6 in e-court for five pages which should get us to page 11 in
10 e-court, and in this section there are no references to either intercepts
11 or documents or witness testimony that would support the assertions.
12 Would you agree with me, sir, that this is a different format and
13 different approach than for the other reports on the brigade, corps and
14 Main Staff levels which you authored for use at trial?
15 A. No, sir. Again, I believe I have executive summaries in all of
16 those products. Part of my military background, the formats that we use
17 in reports are obviously to include an executive summary. I certainly
18 recall being cross-examined by Mr. Haynes, I believe, for the better part
19 of a session as to why I did not footnote my executive summary. And
20 I think at the end of the day my answer was that, I mean, it's a summary
21 of the information and that what I expect is that any reader of the
22 document would go to the base document or the base paragraphs in the
23 various sections of the narrative and the documents that I do cite in
24 those to rely on for certain issues. An executive summary is just that,
25 it's a quick executive summary. It's not a substantive component of the
2 Q. Would you agree with me from your military intelligence
3 background that these executive summaries or situation reports or
4 sit-reps are meant to apprise a commander of something without their
5 having to read the entire remainder of the report and to urge a
6 particular course of action in essence to advocate for the commander to
7 accept the facts reported therein and act in accordance with a -- to
8 adopt a course of action in accordance with the facts as set forth in the
10 A. Yes, sir. The one thing I don't do, however, is I do not assume
11 that a general officer or a commander who is pressed for time is the same
12 as triers of fact and law who will, I take it, go through the entire
13 document because they are ultimately responsible for assuming the
14 decision of the guilt or innocence of an accused. They are not going to
15 do that based off of a six-page executive summary of a 100-page document.
16 Q. Thank you, sir. Now I'd like to move to some preliminary
17 methodological observations in reference to your
18 Brigade Command Responsibility Report, and that is 65 ter number 04624.
19 Now that we have it on the screen, if we could turn to page 4.
20 A. I'm sorry, sir, you said the brigade or corps command report is
21 the one I'm looking at on the screen, sir.
22 Q. I'm looking for the brigade report. I apologise. It should be
23 number 04625. I misspoke.
24 And now if we can go to page 4 in both versions, and I'd like to
25 focus on the paragraph at the top, 1.0, it's at the top of both the
1 original and the translation, and reads:
2 "The Army of the Serbian Republic of Bosnia and Herzegovina,
3 hereinafter referred to as the Army of the Republika Srpska or the VRS,
4 was formed from the remnants of the former Yugoslav National Army (JNA)
5 which remained in Bosnia following the announced withdrawal of all JNA
6 forces in May 1992."
7 Now, sir, would you agree with me that TO or Territorial Defence
8 units, that in fact made up a considerable part of the
9 Army of the Republika Srpska, especially at the brigade level, cannot be
10 referred to as remnants of the former Yugoslav National Army?
11 A. I do not equate Territorial Defence units as being part of the
12 Yugoslav National Army in that sense. My view, though, is that one looks
13 at the leadership and a significant components of the VRS, those
14 officers, the command structures, and even in the case of the
15 1st Krajina Corps being the former JNA 5th Corps, as well as the
16 Sarajevo-Romanija Corps being at least parts of the former JNA 4th Corps,
17 I believe that my conclusion is sound.
18 Q. Your conclusion doesn't have this detail. Your conclusion does
19 not in this paragraph mention the TO. The TO doesn't factor until the
20 third paragraph where it appears out of the blue. Would you agree with
21 me that as written, this portion of your report is at least misleading,
22 if not inaccurate and contradictory, as written?
23 A. I guess if I'm talking about issues in sequence, the fact that
24 I mentioned the TO in the third paragraph versus the first paragraph, I'm
25 not exactly sure what your point is.
1 Q. Reading your report, someone who is relying upon your report --
2 A. I take it they will read the entire report in context and not
3 paragraph by paragraph. I mean, these reports are designed to be read in
4 sequence and completely.
5 Q. If we can return for a moment to that first paragraph, and I'd
6 like to read the remainder of that paragraph, or the next part of it,
7 I should say. Again the first paragraph is 1.0:
8 "As organised at that time, it was comprised of five
9 geographically based corps under the command of the Main Staff, a body
10 composed of a nucleus of senior Bosnian Serb officers from the former JNA
11 2nd Military District headquarters."
12 Is this meant to imply that the Main Staff of the VRS was in fact
13 the heart or nucleus of the JNA 2nd Military District headquarters
14 transplanted --
15 A. What it is --
16 Q. -- to a new organisation?
17 A. I'm sorry.
18 Q. To a new organisation.
19 A. No. What I'm saying is that many of the key officers who
20 ultimately stood up the Main Staff held correspondingly similar positions
21 from the JNA 2nd Military District when they were assigned there prior to
22 the withdrawal of the JNA.
23 Q. I'd like to ask a few follow-up questions in that regard. The
24 JNA 2nd Military District headquarters, when you make reference to that
25 body, would you agree with me that that body, when it existed, had over a
1 hundred officers within its composition? Maybe you as an expert might
2 know the precise number, do you?
3 A. I would suggest that the best information I have and that I would
4 have put forward on the 2nd Military District and their transition would
5 be in the Main Staff report which was written seven years after this, and
6 in some of those notes that I have there, it might have those documents
7 that you're asking. I don't recall off of the top of my head how many
8 officers were in the 2nd Military District at the time of 1992.
9 Q. Okay. I understand you don't know the specific number. Do you
10 recall if it was over a hundred?
11 A. Again, sir, if I don't know the specific number, I'd be
12 speculating if I knew it were over a hundred or not.
13 JUDGE ORIE: Well, let's not -- you can say, I don't know whether
14 it was 200 or 300, then you don't know the number, but nevertheless you
15 know that it was more than a hundred. I leave it to that.
16 THE WITNESS: Again -- yes, sir.
17 JUDGE ORIE: But the logic behind it is not compelling.
18 Please proceed.
19 MR. IVETIC: Thank you, Your Honour.
20 Q. Would you agree with me that at the time of its formation, the
21 Main Staff of the Army of the Serbian Republic of Bosnia-Herzegovina,
22 later known as the VRS, was comprised of a total of 12 persons by way of
23 comparison, of whom five were generals?
24 A. For the origin of the Main Staff I would not disagree with you on
1 Q. Would you agree that during the entire duration of the 1992
2 through 1995 period the Main Staff of the Army of Republika Srpska never
3 attained even half of the number of officers that were within the
4 composition of the JNA 2nd Military District when it existed?
5 A. Again, I've never done a specific analysis comparing the manpower
6 of that, but I wouldn't disagree with the proposition. I mean, I know
7 from my research historically that not only was the VRS Main Staff
8 understaffed with the qualified officers that it needed, but almost all
9 of the entity, the subordinate levels, suffered from a significant
10 shortage of appropriately skilled officers.
11 JUDGE ORIE: Mr. Ivetic, if the witness has testified that he
12 doesn't know how many officers there were in the 2nd Military District,
13 how could he possibly answer a question whether in the VRS the number
14 ever went -- never went to half of what is for the witness an unknown
15 number? I mean, apart from putting your questions, listening to the
16 answers, might assist as well. Please proceed.
17 MR. IVETIC: Thank you.
18 Q. Do you recall during the time period of 1992 to 1995 what is the
19 highest staffing level of the Main Staff of the Army of Republika Srpska
20 attained in terms of officers?
21 A. I don't recall a specific number. I know that the
22 Office of the Prosecutor has those documents. And, again, my memory
23 could be refreshed on that because I know that we do have several
24 documents which relate to the manning of the VRS Main Staff at certain
25 points in time during the war. So that information is available.
1 Q. Did the VRS Main Staff ever attain a level of a hundred officers,
2 50 officers? Do you have any way of narrowing down that unknown number,
3 again based upon your expertise?
4 A. Again, sir, it's been a while since I looked at that specific
5 document. I believe that it may be cited in my Main Staff report, but
6 I just can't give you a number with any degree of confidence, whether
7 it's 60, whether it's 75 or whether it's a hundred. I mean, I know that
8 they obviously had enough officers to do the job, as far as they were
9 concerned, but I also know that from their own reporting, that they
10 didn't feel they had as many officers as they wanted.
11 Q. Thank you.
12 MR. IVETIC: Your Honours, I see I think we are either at or just
13 before the time period for the break.
14 JUDGE ORIE: I think we are at the time of the break.
15 Could Mr. Butler be escorted out of the courtroom.
16 [The witness stands down]
17 JUDGE ORIE: We will almost take a break. Mr. Stojanovic, one
18 question in relation to the earlier request you made for -- the
19 announcement that you would seek a certificate. Could you give us the
20 date and the page reference exactly where, as you said, after the
21 delivery of the decision of the Chamber, that you put that motion orally,
22 I take it, at the time to decide on the matter? Could you give us a page
23 and line reference for that, and a date reference? We may find it but if
24 you have available somewhere, then ...
25 MR. STOJANOVIC: [Interpretation] No, not at this moment,
1 Your Honours, but we'll try to do it immediately after the break by
2 consulting today's transcript.
3 JUDGE ORIE: Today's transcript. No, I'm mainly -- you said
4 there was a pending issue because you introduced a motion on which we had
5 not yet decided and then you said, Well, you have to decide now, we had a
6 short -- when -- where exactly do we find that initial motion which you
7 said was introduced after we had given our decision on whether or not the
8 person could be added to the 65 ter list? When exactly was that and what
9 page, what line?
10 MR. STOJANOVIC: [Interpretation] We may have been talking at
11 cross-purposes, Your Honours. In July, we submitted a motion to oppose
12 the testimony of this witness. To this day we have not received a reply
13 to that motion. We have -- we repeated that motion today orally in the
14 courtroom before the witness arrived, and you told us also orally that
15 our objections were denied and that the witness could indeed testify.
16 JUDGE ORIE: Was that a written motion you were referring to, the
17 motion you said you submitted?
18 MR. STOJANOVIC: [Interpretation] Yes, Your Honour. That was a
19 response to the Prosecutor's motion. That was our second response which
20 was filed in July 2013. After the break, we can give you the exact
21 reference of that submission, Your Honours.
22 JUDGE ORIE: What I have before me is a decision on the
23 Prosecution motion for leave to amend its Rule 65 ter witness list, which
24 responds to a motion which was filed on the 18th of March of this year,
25 and is it in the response to that motion of the 18th of March that you
1 think that a new motion was filed or submitted? Or was it after this
2 decision? I'm just trying to find exactly the basis for your
4 MR. STOJANOVIC: [Interpretation] Yes. Immediately after the
5 break, we will be able to provide you with the exact reference for our
7 JUDGE ORIE: Thank you. Then we'll wait and hear from you. We
8 take a break and we resume at quarter past 12.00.
9 --- Recess taken at 11.57 a.m.
10 --- On resuming at 12.17 p.m.
11 JUDGE ORIE: Could the witness be escorted into the courtroom.
12 Mr. Stojanovic, do we already have a response to my question from
13 before the break?
14 MR. STOJANOVIC: [Interpretation] I hope so, Your Honour. We are
15 talking about our submission which was filed on the 4th of July, 2013,
16 and this was a response to the Prosecutor's motion which was filed on the
17 20th of June, 2013. In our motion we provided the same argument as we
18 did earlier today. We have not received any response until this day;
19 i.e., we have not been aware of any decision that you may have made in
20 that respect until today.
21 JUDGE ORIE: Let me just tell you how -- what my recollection of
22 the matter is. You responded to a motion to add witnesses to the 65 ter
23 list. Under arguments A and C, you raised that as an objection to adding
24 the persons to the 65 ter list. In the decision of the 22nd of August,
25 the Chamber explained that this was not something which was relevant for
1 the decision on the motion, and therefore was misplaced to introduce it
2 at that point in time in that context. Since then, we have not heard
3 from you any further. Therefore, the Chamber was not aware that there
4 was anything pending, and therefore the Chamber this morning heard a
5 brief submission and decided on that. Please look carefully in our
6 22nd of August decision. If there is anything further to be said about
7 it, then of course you're welcome to further raise the matter, but this
8 is my recollection of the issue.
9 The Prosecution is also invited, of course, to consider whether
10 this is an accurate reflection of the procedural history on this matter.
11 Then, Mr. Ivetic, if you're ready, please continue your
13 [The witness takes the stand]
14 MR. IVETIC: Thank you, Your Honour.
15 Q. Now, sir, I'd like to understand your report and testimony that
16 you gave just before the break where you said that many officers that had
17 been assigned within the 2nd Military District headquarters went to the
18 VRS. Now, according to my lay person's knowledge, I have counted up the
19 members of the -- the 12 members of the Main Staff and I've come up with
20 five of those 12 who, according to my information, definitely were not at
21 any point in time members or assigned to the 2nd Military District of the
22 JNA in any capacity. Can you confirm that as being the results of your
24 A. Are you going to give me the names? I mean, I just can't give
25 you a five of 12, whether that's true or not true, I mean --
1 Q. Well, let's do it this way. Why don't you tell me who you counts
2 as the many within the VRS Main Staff who would have been assigned to
3 significant positions within the JNA 2nd Military District. Maybe that's
4 a better way of approaching it.
5 A. Again, my memory is a little unclear on this, but I believe that
6 General Mladic held a position on the 2nd Military District staff. I
7 believe he was Chief of Staff at one juncture. I think General Gvero at
8 the time or at that time he was a colonel. I believe Colonel Tolimir was
9 a member of that staff. I know General Milovanovic at the time I don't
10 believe was. And I believe at that time Colonel Skrbic, and
11 Colonel Djukic, who were logistics officers may have also been members of
12 the Main Staff at that --- or members of the 2nd Military District. But,
13 again, it's been a while since I've looked at that, so I'm just trying to
14 recall off the top of my head.
15 Q. Okay. Now, let's take them one by one. In relation to
16 General Mladic, would you agree with me that he only was transferred into
17 the 2nd Military District as Chief of Staff shortly before the withdrawal
18 of the 2nd Military District and was only appointed to replace
19 Commander Kukanjac approximately -- essentially one day before being
20 selected commander of the VRS Main Staff on 12 May 1992?
21 A. I would agree with your first assertion, with respect to him
22 being appointed to replace General Kukanjac for a very short time.
23 I would offer that I know that the ascension of General Mladic to the
24 Main Staff or being appointed as the commander of the Main Staff is an
25 issue of analysis by other military analysts. It was not an area that
1 I particularly focused on simply because how he became the commander in
2 1992 was not particularly important with respect to the fact that he
3 still was the commander in July of 1995. I know that for other aspects
4 of the various investigations, the interactions between how he became the
5 commander and the decision process is germane with respect to the crimes
6 as charged in 1992 but those are not my area of expertise so I didn't
7 look at that particularly closely.
8 JUDGE ORIE: Mr. Lukic, I didn't want to interrupt when you
9 consulted with Mr. Mladic. The Chamber noticed that by gestures,
10 General Mladic in the -- during the testimony of this witness, expressed
11 agreement or disagreement with what the witness said. Mr. Mladic should
12 refrain from doing that, and the appropriate way of expressing agreement
13 or disagreement would be by instructing counsel to put further questions
14 on the matter. Would you please keep that in mind and would Mr. Mladic
15 also keep that in mind. Please proceed, Mr. Ivetic.
16 MR. IVETIC:
17 Q. Well, sir, this issue of the 2nd Military District of the JNA and
18 the VRS Main Staff is a significant feature of several of your reports.
19 I'd like to focus a little bit more on that. Did your research reveal
20 that in fact General Mladic came to the 2nd Military District of the JNA
21 on 9th of May, 1995, exactly three days before being named as the
22 commander of the VRS Main Staff? Is this three-day stint what you're
23 talking about as him being assigned as Chief of Staff of the --
24 JUDGE MOLOTO: You said 1995, Mr. Ivetic.
25 MR. IVETIC: 1992. I apologise, 1992. I apologise. Thank you,
1 Your Honour.
2 A. Yes, sir, I believe there is a document in my Main Staff report
3 that corresponds to that. It may, in fact, even be a copy of the
4 appointment orders.
5 Q. Do you think that General Mladic, serving as a Chief of Staff for
6 three days in a headquarters, that was in the midst of a chaotic
7 situation where they were attacked upon withdrawing from their
8 headquarters and attempting to leave the country, qualifies for him to be
9 referred to as having been a nucleus of the 2nd Military District in any
10 real sense of the word? Apart from name only?
11 A. Well, again, sir, going back to my brigade command report, you'll
12 notice the section is topic background synopsis. And as I've indicated,
13 and it had been indicated in the past when questioned about these issues,
14 how the Main Staff was formed in 1992, particularly with respect to the
15 brigade report, was not a matter of serious research by me. The topic of
16 import for me was how the Main Staff functioned or did not function as it
17 related to the events of Srebrenica in July of 1995. Again, as a matter
18 of the break down of the work by the military analysts, I am aware that
19 there were other areas that military analysts were studying that directly
20 corresponded to the formation of the Main Staff in 1992 and how that
21 related to the crimes as charged in that particular area.
22 So, again, I'm only providing enough of a background synopsis so
23 a reader can understand the issues in context. I'm not seeking to be the
24 authoritative source of information on the origin of the Main Staff in
1 Q. Are you attempting to infer to the reader that the Main Staff, in
2 terms of its organisation, authority and cohesiveness, inherited the
3 organisation, authority and cohesiveness of the 2nd Military District of
4 the JNA, which -- was that the intention? Because that's how I read your
6 A. No. My purpose of documenting out the organisational structure
7 of the 2nd Military District, how it was organised, is to note that the
8 VRS Main Staff organised itself in similar lines with respect to how the
9 staff were variously organised. I believe as part of my Main Staff
10 report, I do discuss the fact that obviously many of the functions of a
11 military district command would not correspond to what a Main Staff, as
12 it was organised, was doing and many of those functions are assumed by
13 the RS Ministry of Defence.
14 That is the point that I'm trying to make, to be able to
15 correlate back that the functions that these officers had within the
16 context of their JNA service was not dissimilar to the functions that
17 they had when they created this entity known as the Main Staff.
18 JUDGE ORIE: Could I ask you in that reasoning, is the focus on
19 the 2nd Military District of the JNA or is it more generally focused on
20 the JNA as it functioned?
21 THE WITNESS: Again, sir, from my context of what I was looking
22 for, it is simply, it's not a focus on the 2nd Military District
23 specifically. It's just part of the broader pattern of facts that I use,
24 one, to establish that the VRS adopted most, if not all, of the former
25 JNA command and staff processes and they did so primarily because, as
1 serving JNA officers, many of them who had served in high-ranking
2 positions such as General Mladic or General Milovanovic they did so
3 because this is what was familiar to them.
4 JUDGE ORIE: Please proceed, Mr. Ivetic.
5 MR. IVETIC: Thank you, Your Honour.
6 Q. Were both Generals Tolimir and -- pardon me, were both
7 Colonels Tolimir and Salapura persons who you included in the reference
8 to many from the 2nd JNA military district being appointed to the VRS
9 Main Staff as a former nucleus of the 2nd JNA Military District?
10 A. I am not sure at what point in time Colonel Tolimir or
11 Colonel Salapura got there or if Colonel Salapura was ever on the
12 military district staff. I know that that information is available and,
13 in fact, in the case of Colonel Salapura he may very well have testified
14 to that. I just don't know the answer to that off the top of my head.
15 Q. Do you know if it would have been more than a few days' time?
16 A. The circumstances as they were occurring in the early months of
17 1992, particularly as it deals with the issue of the Main Staff and JNA
18 officers being transferred in and transferred out, was very chaotic. I
19 am aware that on a number of occasions, officers were getting transferred
20 in and out of various military district staff as well as corps positions
21 rather rapidly, but I can't tell you specifically how many days or how
22 many weeks Colonel Salapura or Colonel Tolimir might have been on the
23 staff before essentially the JNA ceased to exist in Bosnia-Herzegovina.
24 Q. How about Colonel Stevo Tomic? Was he one of the many that you
25 identified as being the nucleus of the JNA 2nd Military District who
1 later -- who then became part of the Main Staff, and how many hours or
2 days was he at the JNA 2nd Military District?
3 A. I don't recall that particular name. He may have been there but
4 I just don't know that name off the top of my head.
5 Q. Would you be surprised that neither Generals Gvero, Manojlovic --
6 Milovanovic, Maric, nor Colonel Beara, nor Colonel Grubor, nor
7 Colonel Ilic, the remaining officers of the Main Staff, none of them had
8 been assigned within the JNA 2nd Military District headquarters?
9 A. I know obviously the case of Milovanovic because I've heard his
10 testimony as how he came to be his position. I understand Colonel Beara
11 at the time was a naval officer, so it would make sense obviously that at
12 that time he wasn't part of the 2nd Military District. Colonel Ilic I
13 know was operating, he was associated early on with one of the brigades
14 of what would later be the Drina Corps, so I know he didn't join the
15 Main Staff until later. Colonel Grubor I think ultimately became a corps
16 commander of Herzegovina corps. I don't know his background prior to
18 Q. Okay. In relation to the JNA 2nd Military District, do you know
19 how many of those officers would have been ethnically non-Serb and that
20 may have joined any of the other armed entities that were operating
21 between 1992 and 1995?
22 A. I can't give you a percentage. What I can tell the Court is as a
23 result of my research, I was able obviously to establish that through
24 middle of 1991 and 1992, the broader pattern that was occurring within
25 the JNA was that officers who were JNA or TO officers serving with the
1 JNA, who were not ethnically Serb, were leaving JNA service in part
2 because they no longer believed that the JNA represented their interests.
3 So whether it was by design or whether it was by default, the end result
4 was that coming into the early months of 1992, most of the key positions
5 within the JNA with respect to Bosnia and Herzegovina were held by
6 individuals who were ethnic Serbs, either from Bosnia itself or I think
7 in larger numbers, frankly, ethnic Serbs from Serbia.
8 Q. I'm trying to wrap my mind around your assertion earlier that the
9 VRS and that the Serbs inherited all of the command processes and
10 structures of the 2nd Military District. Would you agree that personnel
11 of other ethnicities who had been in positions within the
12 2nd Military District headquarters for longer than a few days, who had
13 been there for years or months, might also be considered to be a nucleus
14 of the 2nd JNA military district and, in fact, would have taken that
15 knowledge and expertise to the various armed forces that they joined
16 after leaving the JNA as you've now stated in the early months of 1992?
17 A. I wouldn't disagree with you. I don't see where that assertion
18 is inconsistent. Obviously, JNA-trained officers from all the parties
19 are going to take their knowledge with them and attempt to use that
20 knowledge to the best of their ability. What my position is is that the
21 VRS in general got the better of that deal because they were able to
22 operate, one, because by 1992, most of the JNA structures were ethnic
23 Serbian, again, by either design or default. And that when you look at
24 the origins of many of the VRS corps commands particularly, they have
25 direct lineage back to previous JNA commands. That is not something
1 that, you know, in most cases, that the ABiH can lay claim to.
2 MR. IVETIC: One moment, Your Honours, if I may briefly consult.
3 JUDGE ORIE: You may briefly consult. Keep the volume down.
4 [Defence counsel and Accused confer]
5 MR. IVETIC:
6 Q. Now, sir, in relation to your conclusion that the VRS got the
7 better of the deal, I'd like to ask a couple of follow-up questions.
8 Generals Halilovic and Delic from the Armija BiH, had they in fact been
9 at command positions within the structure of the 2nd Military District in
10 the JNA?
11 A. I -- I seem to recall General Halilovic, I don't know off the top
12 of my head whether General Delalic was or not.
13 Q. Are we talking about Delalic or Delic?
14 A. Delic, I'm sorry.
15 Q. Now in reaching your conclusion, did you have the information or
16 take into account that the physical headquarters of the
17 2nd JNA Military District remained in the hands of the Bosnian Muslim
18 armed forces with the VRS relegated to Crna Rijeka near Han Pijesak which
19 was the rear command post of the district as well as the fall-back
20 command post of the JNA 2nd Army?
21 A. Sir, with respect, the document that I relied on the most for
22 that, my conclusion, is the VRS's own analysis of their combat operations
23 for 1992. The assertions that I raise with respect to how effective the
24 VRS was, particularly compared with the other armed entities are those
25 that the VRS themselves were telling their audience. This is how they
1 were -- this is the conclusion that they were coming to, not my
3 Q. Well, I'd like to know about your conclusion which you just gave
4 to us, and I'm asking you if you had this information available. You're
5 telling me what you relied upon, but did you disregard this information?
6 Did have you it available to you?
7 JUDGE ORIE: Mr. McCloskey.
8 MR. McCLOSKEY: I'm unclear which conclusion we are talking about
9 from my listening here. Are we still on that innocuous comment about the
10 nucleus of where the people came from or is it something else?
11 MR. IVETIC: If I can assist, Your Honours. It is at transcript
12 page 57 of the temporary transcript where the witness in giving his
13 answer says, "What my position is that the VRS in general got the better
14 of that deal because they were able to operate," and then he keeps going
15 on and on. So if this is not the individual's position then I don't know
16 what to rely upon anymore.
17 JUDGE ORIE: Well, let's re- read the portion you just referred
18 to. You said page 56 -- 57.
19 MR. IVETIC: Seven. For the record, I do have to state the
20 Defence's position where an expert witness is concerned, I don't believe
21 there can be anything to be considered an innocuous conclusion. All
22 conclusions are expert and are able to be cross-examined by the Defence.
23 JUDGE ORIE: Yes. Could you answer the question, your question.
24 The question is about the conclusion in terms of getting the better deal
25 of the former JNA officers. What you relied upon and whether you
1 disregarded the information, the information being summarised,
2 Mr. Ivetic, as that much of the knowledge, experience and skills had
3 flown to other armed forces.
4 THE WITNESS: Yes, sir. I mean, I don't disagree with
5 Mr. Ivetic's general assertion with respect to the fact that particularly
6 those two headquarters that he had announced as well as other former JNA
7 garrisons fell under the control of the various warring factions, some of
8 them that were not ultimately what would be the VRS. There were
9 thousands of former JNA weapons that found their way into the hands of
10 the other warring factions. But I believe, again, when one looks at the
11 totality of the information, and again, the VRS concludes the same thing
12 in their own analysis, that they believe that they ended up in a much
13 superior position, as far as war fighting capabilities go, as they came
14 into the end of 1992 and early 1993. And, frankly, one of the things
15 that they attribute to the success that they are having is their superior
16 abilities at the command and staff levels that allowed for a superior
17 employment of their own forces. It was something that they noted that
18 they were doing quite well, that their adversaries were not doing as
20 MR. IVETIC:
21 Q. Sir, are you here as an expert witness giving us expert opinion
22 or are you here to tell us what the VRS was pumping its chest about in
24 MR. McCLOSKEY: Objection, argumentative.
25 JUDGE ORIE: Mr. Ivetic, the witness explained on what, as you
1 asked him, he based his conclusion. Your question apparently is: Have
2 you considered the possibility that the VRS, in stating so, was
3 exaggerating and was trying to show to be better than they really were.
4 That is your question I take it, Mr. Ivetic?
5 MR. IVETIC: That would be my follow-up question, yes.
6 JUDGE ORIE: Then I don't understand the question that you put to
7 the witness. Could you please answer that question?
8 THE WITNESS: If one looks and reads the entire combat analysis,
9 which in the English language runs somewhere I think around 150 pages,
10 the VRS talks about the things that they think they are doing very well
11 and it also talks about the things that they are doing poorly. At the
12 end of the day, their own combat analysis of their battlefield
13 performance and the role of -- and how their army is performing is not
14 designed to be a public document. It's designed to be a document for
15 their benefit as part of their self-analysis. As professional officers I
16 don't think they would be inflating their positives and deflating their
17 negatives if the purpose of that report ultimately is to draw conclusions
18 on how to be more effective in the combat environment in the outlying
20 MR. IVETIC:
21 Q. From your study and research and expertise, can you tell us how
22 many officers would be needed in order to have the VRS Main Staff
23 functioning at full strength as it was intended under the formative
24 regulations or structure of the VRS?
25 A. Again, sir, as I've testified before, I know that the
1 Office of the Prosecutor has those documents, and I've seen them in the
2 past. I don't recall a specific number that I can give you to answer
3 that question at the moment. I mean, I know the information is available
4 out there. It's something I probably knew and forgot years ago.
5 Q. Okay. If we can look at paragraph 1.1 of the document which is
6 up on the screen which is the VRS brigade Command Responsibility Report.
7 We see here -- you again are focusing on the structures of the
8 2nd Military District and its subordinate units including a corps
9 command. Do you consider that the prevalence of references within your
10 reports to the pre-existing structures of the 2nd Military District of
11 the JNA in terms of explaining VRS structures are at least misleading or
12 misplaced, given all these factors that we have discussed today?
13 A. No, sir. I don't. If I understand your question correctly,
14 I think the implication is that because I relied very heavily on the JNA
15 corps related documents and extrapolated them up for the
16 2nd Military District, I'm somehow being inaccurate as to the total
17 picture. I mean, is that what you're implying, sir?
18 Q. No, sir. I'm implying to the fact that this concept of the
19 2nd Military District and the nucleus of the same being inherited by the
20 VRS and that these comparisons between the VRS and the
21 2nd Military District imply that this finished, organised military entity
22 that had been in existence for some time was basically good to go and
23 ready and became the VRS. And I'm asking you if, in fact, that rosy of a
24 picture is misleading given these factors that we have been discussing
25 here today.
1 A. I -- if that's the inference you're drawing, you're incorrect.
2 I -- I -- in both the idea I tend to push in my reports and certainly
3 I've testified to, is the fact that 1992 was a very chaotic time.
4 Nobody -- it wasn't rosy for anyone let alone the situation where
5 General Mladic is trying to effectively organise an army out of what was
6 at that time in Bosnia a disparate group of municipal-backed military
7 formations, paramilitaries and other entities, you know, conducting
8 combat operations against each other without centralised direction, it
9 seems, at least with respect to military centralised direction. I don't
10 think I've ever tried to lay out the idea that somehow there was a magic
11 seamless transition from the JNA as it existed until its collapse and
12 when the VRS stood up.
13 Q. Okay. I'd like to move away from that topic and go to another
14 topic with you. One thing I didn't ask you about in relation to your
15 background is the time period after the Office of the Prosecutor, and I'd
16 like to spend some time briefly going through that now. In the course of
17 your employment within the US Immigration and Customs Enforcement, have
18 you remained at the same position or have you been promoted?
19 A. I have -- when I started in 2003 with Immigration and Customs
20 Enforcement I worked out of the office of Atlanta with respect to dealing
21 with traditional criminal issues, specialising in human smuggling and
22 human trafficking. I was promoted from that office and brought to
23 Washington, D.C., within a short time frame, in order to begin the
24 process of helping to establish for the agency what is now the
25 Human Rights Violators & War Crimes Centre.
1 Q. Okay. I'd like to look at document 1D1233 with you. Perhaps on
2 the safe side we should maybe not broadcast the same. I don't know --
3 I haven't received any information to that effect but I think to be on
4 the safe side, perhaps we should not broadcast the same. Sir, this is
5 dated 22 September 2006. I believe it indicates that it originated from
6 you. Do you recognise this?
7 A. Yes, sir. I authored this document.
8 Q. Okay. And at this time you were an intelligence research
9 specialist, human rights violators unit from Atlanta, Georgia. Would
10 this have been before or after you were promoted to Washington, D.C.?
11 A. This would be about the time I was going up there, so I couldn't
12 tell you if this -- you know, I was still sitting in Atlanta when I wrote
13 this memorandum and I can't tell you how shortly thereafter I got
14 promoted and moved to Washington.
15 Q. Okay. Looking at the subject of this document, and I guess I'll
16 read it into the record. It says:
17 "Background primer on the genocide, crimes against humanity, and
18 war crimes associated with the capture of the UN safe area of Srebrenica
19 in July 1995 during the Bosnian war and associated ICE human rights
20 violations -- violation cases presently under investigation."
21 Now, this is a very legal sounding title, sir. Did you have any
22 legal assistance in drafting this primer report?
23 A. No, sir. This is my document entirely. The conclusions that
24 they were genocide, crimes against humanity and war crimes, in part, are
25 related to previous judgements of previous courts on the issue.
1 Q. Okay. I'd like to ask you about portions of this 14-page report,
2 but, first, if I may am, I correct that the work of your unit focused --
3 at the ICE, I should say, focuses on prosecuting Bosnian Serbs who
4 emigrated to America, or have you also worked on cases prosecuting ethnic
5 Bosnian Croat or Bosnian Muslim suspects as well?
6 A. I can tell you that your perception is incorrect. I can tell you
7 broadly that we are investigating individuals of all of the ethnic
8 groups, and a number of those have been brought to trial. I obviously am
9 not in a position to discuss before this Chamber ongoing investigations.
10 Q. Are you in a position to tell us what portion of the all-time
11 case load of your unit have been ethnic Serbs as opposed to
12 Bosnian Muslims or ethnic Bosnian Croats?
13 A. No, sir, I'm not in a position to do that.
14 Q. All right. Are you in a position to tell us how many criminal or
15 removal proceeding trials you have testified in against ethnic Serbs as
16 opposed to ethnic Croats and ethnic Bosnian Muslims?
17 A. I can tell you that I have -- that the overwhelming majority of
18 the trials that I have testified in are related to ethnic Serbs from
19 Bosnia primarily because that is where my expertise lies.
20 Q. Okay. If we can turn to page 3 of this primer by you, and I'd
21 like to focus on some language in the middle of the first paragraph up at
22 the top that says:
23 "These locations and the associated offences have been
24 extensively investigated and documents by the ICTY and in almost all
25 cases, significant forensics evidence and witness testimony exists
1 concerning these crime scenes. In all cases, these crime scenes are well
2 substantiated as being located outside the context of any ongoing
3 military combat operations. This precludes any potential defence by an
4 accused that his acts are associated with lawful combat as opposed to war
6 Are you wearing a prosecutor's hat when you're drafting this memo
7 for your bosses at ICE, do you believe?
8 A. No, sir. I'm wearing the hat of somebody who is capable of
9 reading previous judgements on the subject and being able to relate what
10 they say.
11 Q. And what are you relying upon when you are making an affirmative
12 statement that accused are precluded from any potential defences? Is
13 that also what prior judgements would have to say about future defendants
14 or are you making a pre-judgment, sir?
15 A. No, sir, I'm drawing a conclusion on the fact that there will be
16 cases in investigations where individuals will claim that their
17 activities were legitimate combat operations, which would mean that under
18 US immigration law it wouldn't necessarily mean that they were involved
19 in potential acts of persecution. For individuals who were assigned to
20 various small military units that were engaged or that were somehow
21 associated with criminal acts related to Srebrenica 1995, they would not
22 be able to claim that, you know, based on the results of the forensics of
23 those grave sites, that they were involved in lawful combat operations,
24 and that was the point I'm trying to make.
25 Q. If we can turn to the next page, I'd like to focus on the first
1 half of the first paragraph which reads as follows:
2 "Kravica warehouse massacre. On 13 July 1995, several thousand
3 Bosnian Muslim soldiers and male civilians who were retreating to
4 friendly territory were captured by Bosnian Serb military units. They
5 were disarmed and collected at various locations."
6 And I'd like to stop there and I'd like to turn to page 9 of your
7 report, the last sentence of the page:
8 "A much smaller group includes males who escaped by joining a
9 column of BiH 28th Division soldiers that fought their way to friendly
10 lines after their capture," and then on the next page, "capture of
12 Sir, in both instances, are we talking about the same
13 Bosnian Muslim column, those that you first identify as retreating and
14 then those that you identify as fighting their way through enemy lines?
15 A. You really lost me when you flipped back and forth. I just don't
16 understand the context. Could you try that again, sir?
17 Q. Sure, if we could turn to page 4. Page 9 was talking about males
18 who left Srebrenica after it was captured and joined a column of the
19 28th Division that fought their way through enemy lines. Would that be
20 the same group of people that are on this page described as several
21 thousand Bosnian Muslim soldiers and male civilians who were retreating
22 to friendly territory?
23 A. In the context of the first line of page 4, what I am talking
24 about are, as part of the larger column, the thousands of people who were
25 captured starting the evening of 12 July 1995 and through the 13th and
1 14th who were captured by Bosnian Serb military units, so that's the
2 group I'm talking about in that particular line.
3 Q. Okay.
4 A. So I got that part.
5 Q. Okay. And would you agree with me, militarily speaking, the
6 descriptions of retreating and fighting through enemy lines are not
7 identical? They don't have the same meaning? They are not very precise?
8 A. I'm again in the context -- if you can go back to the second
9 notation you did so I can look at ...
10 Q. Page 9, last line.
11 A. Thank you. I take your point with respect to that. I mean,
12 I don't see any particular conflict with respect to the column retreating
13 from Srebrenica and fighting its way to friendly lines. I understand
14 that you could, and again I take your point on that.
15 Q. Will you also agree with me that irrespective of whether they
16 were retreating or fighting through enemy lines, that ambushes by Serb
17 forces upon the column would be considered legitimate and lawful military
19 A. Again, as I've testified many times before, the column as
20 constituted, despite the fact that the mixed character of the column, in
21 my view the column constituted a legitimate military target which meant
22 that it was subject to attack by ambush. Again, ultimately it will be
23 for the Court to conclude whether that was a lawful exercise or not.
24 [Defence counsel and Accused confer]
25 MR. IVETIC: I apologise to the witness and to Your Honours for
1 attending to my client without first seeking leave.
2 JUDGE ORIE: That's no problem. Mr. Ivetic, just to understand
3 your line of questioning, are you saying the witness has ignored more or
4 less that there may have been a lot of combat casualties and ignores that
5 in this document? Is that what you are about to establish?
6 MR. IVETIC: No, I was trying to establish what we just discussed
7 that whether or not they were retreating or fighting through, that it
8 would -- the ambushes upon them would still be a lawful exercise which
9 I think the witness has just answered.
10 JUDGE ORIE: Yes. Please proceed.
11 MR. IVETIC:
12 Q. If we could turn to page 4 of the document again, I'd like to
13 take up where we left off, in the first paragraph. And it says:
14 "One of these locations was the Kravica warehouse, approximately
15 8 kilometres from Bratunac. At around 1700 hours on 13 July 1995,
16 Bosnian Serb Special Police, and Bosnian Serb soldiers, some identified
17 from the Bratunac Brigade, began shooting prisoners in the warehouse."
18 Now, sir, yet again, another report authored by you, this one
19 well after you would have known about the facts of the attempted escape,
20 the wounding of one Serb policeman, the killing of another, does not make
21 mention of that. Do you think that you're being entirely accurate or is
22 this portion of your report misleading the reader as to the genesis of
23 this event?
24 JUDGE ORIE: Mr. McCloskey.
25 MR. McCLOSKEY: That is a conclusion that has not been
1 established by the facts of this case, that this is a fact. This is an
2 allegation that's been made by some people. There are certain facts
3 related to it. But to treat the story of the burned hands as if it's a
4 fact that is established, is incorrect, is not borne out by the record.
5 It can be stated much simpler the account of the burned hands or the
6 account of the shooting or the account of something. Why aren't you
7 taking that into account? Fine. But to establish it as some sort of a
8 fact is wrong.
9 JUDGE ORIE: That's what Mr. Ivetic apparently is seeking is to
10 know from the witness why nothing has been said about the burned hand
11 issue, which, as you said, Mr. Ivetic, the witness was aware of by then.
12 MR. IVETIC: Correct.
13 JUDGE ORIE: Could you answer that question?
14 THE WITNESS: Yes, sir. I mean, first of all, with respect to
15 this particular document, again, as I've discussed in my prior testimony,
16 the issue of Kravica warehouse being a crime scene is the ultimate fact
17 in question that I'm trying to draw the reader -- and, again, my readers
18 in this particular document would be agents who have no familiarity
19 whatsoever with the events that occurred in Srebrenica in 1995. I've
20 talked at length about my issue of the Kravica warehouse. Whether or not
21 it was predicated by an escaping Bosnian Muslim prisoner or whether or
22 not it was predicated by an order by the people there at the time to
23 shoot everybody, I again go back to what I said previously: At some
24 point clearly the intention was to kill everyone who was stored in that
25 warehouse. That ultimately has been the finding of various
1 Trial Chambers, and, again, I rely on those legal issues and legal
2 findings for this memorandum. Not my own personal views on issues.
3 MR. IVETIC:
4 Q. This memorandum has no footnotes; correct, sir?
5 A. Correct, sir. This memorandum was an internal document for our
6 investigators to give them a basic context of how the programme is
7 conducting these investigations. The fact that I've been cross-examined
8 about it a number of times doesn't exclude the fact that it was always
9 meant to be an internal document, it was never meant to be disclosed, and
10 it was never meant as a -- to be a public document with respect to an
11 authoritative source. It was -- as the business goes, this is internal
12 work product.
13 Q. And was it intended to give officers who were working on
14 investigations a full picture or was it meant to advocate a particular
16 A. It was neither. What it was meant to do was to give officers who
17 had absolutely zero knowledge on east Bosnia in general or Srebrenica
18 specifically enough background information so that they would at least
19 understand why they were conducting these investigations in the first
21 Q. And wouldn't such a -- strike that. And with no citations to
22 footnotes, no citations to, for instance, this set of accounts from
23 Kravica that are of importance, that they could only find by looking
24 through their testimony which I'm sure that they would not have had
25 access to or know how to easily find without more assistance, don't you
1 think that you're being unfair to the officers doing the investigation by
2 giving them one side of the facts rather than an impartial picture of
3 both sides?
4 MR. McCLOSKEY: Objection. The judgements that he's referred to
5 where this incident has been repeatedly concluded is a strong indication
6 that this is not a one-sided version. And I don't normally go to
7 judgements but that question, ignoring the judgements, suggesting
8 otherwise is absolutely inappropriate.
9 MR. IVETIC: I'm sorry, is counsel's position that this trial is
10 inappropriate? Does he stand on his objection?
11 JUDGE ORIE: Are you serious, Mr. Ivetic? Are you serious in
12 that question? Tell us.
13 MR. IVETIC: I'm asking --
14 JUDGE ORIE: No, no. My question is are you serious when you put
15 that question to Mr. McCloskey?
16 MR. IVETIC: I was reacting to Mr. McCloskey's objection,
17 Your Honour.
18 JUDGE ORIE: I'm asking whether you were serious.
19 MR. IVETIC: I was reacting to Mr. McCloskey's question, Your
20 Honour, I said that.
21 JUDGE ORIE: You refuse to answer the question.
22 MR. IVETIC: I take exception, Your Honour.
23 JUDGE ORIE: The Chamber will consider how seriously it should be
24 taken. Whatever the case is, you have put approximately seven questions
25 in one with a lot of suggestions. Could you perhaps put clear questions
1 to the witness. If this would be about a subject matter you wanted to
2 touch upon, please do so, but in a different format.
3 MR. IVETIC: Well, Your Honour, then I need guidance from the
4 Chamber. I'm reciting back to the witness his testimony that he's
5 already given. Do I need to ask him again if there are no footnotes and
7 JUDGE ORIE: Well, that's not the same question you asked before
8 because you implied a lot of other observations in there. But, then, now
9 the question simply is: Whether there are no footnotes and citations, it
10 seems that looking at the document, Mr. Ivetic, I see no footnotes on
11 none of the pages.
12 MR. IVETIC: Yes, Your Honour. And then the witness has said
13 there are none. So I'm asking where is the compound part of my question.
14 I need your guidance to know how to break it up, since I was only
15 reciting the witness's prior testimony.
16 JUDGE ORIE: Just take them one by one. And that's my guidance
17 at this moment.
18 MR. IVETIC: Okay.
19 Q. Is it correct, sir, that there are no citations and footnotes in
20 this document?
21 JUDGE FLUEGGE: This question is already answered.
22 JUDGE ORIE: Next question, please.
23 MR. IVETIC:
24 Q. So with your testimony that there are no citations and footnotes
25 in the document, don't you think that it would be unfair to the officers
1 investigating this -- these matters, not to give them a full account but,
2 rather, giving them one side of the account?
3 JUDGE ORIE: There is one thing implied in this question, that is
4 by not giving footnotes, you are not giving them a full account but a
5 one-sided account. Now, a full account and a one-sided account is not --
6 are not two opposing matters. You have a full account and an incomplete
7 account, and you have a neutral account and you have a one-sided account.
8 So therefore the question from an analytical point of view, Mr. Ivetic,
9 may need some further explanation, but let's try to take it one by one.
10 By not adding footnotes, have you given not a full account of the events
11 you describe?
12 THE WITNESS: I agree, sir. This is a -- by design this is a
13 summary account, not a one-sided one.
14 JUDGE ORIE: Yes. That -- the first question was simply whether
15 it was a full account or not. You say it is summary. The next question
16 is whether it is a one-sided account, whether you wanted to highlight one
17 side rather than both sides.
18 THE WITNESS: No, sir. My intention was to, I hope, correctly
19 summarise the facts of the previous judicial findings in these matters.
20 JUDGE ORIE: Yes. You say it's not one-sided in respect of the
21 judgements you want to summarise here.
22 THE WITNESS: I don't believe so, no, sir.
23 JUDGE ORIE: Then the next question is by giving this summarised
24 account without footnotes, would you consider this to be unfair to the
25 readers, the officers, who would read this document?
1 THE WITNESS: Not only would I not consider it to be unfair, the
2 officers who were involved in these cases thanked me for providing enough
3 background information so they had, at least beginning their portion of
4 the investigations, enough knowledge to be able to understand what the
5 department level and what the agency level leadership was looking for in
6 these investigations that we were asking them to conduct on a
7 case-by-case basis.
8 JUDGE ORIE: I do understand your reasoning. Would you agree
9 with me that if it would have been a misleading account, that they might
10 have praised you nevertheless because they were not aware of the
11 misleading character of the information they received and they thanked
12 you for?
13 THE WITNESS: That is a conclusion that -- obviously when you're
14 giving information to people who are completely ignorant of a particular
15 situation, yes. I mean, I obviously take your point that the fact that
16 they were praising me doesn't mean that I was giving them accurate
18 JUDGE ORIE: Yes. Mr. Ivetic, we'll first take a break. The
19 guidance you were further seeking is contained in the few questions I put
20 to the witness. I hope that will assist you.
21 Could the witness be escorted out of the courtroom.
22 [The witness stands down]
23 JUDGE ORIE: We take a break and we will resume at 20 minutes to
25 --- Recess taken at 1.20 p.m.
1 --- On resuming at 1.41 p.m.
2 JUDGE ORIE: The witness will be escorted into the courtroom.
3 [The witness takes the stand]
4 JUDGE ORIE: Please proceed, Mr. Ivetic.
5 MR. IVETIC: [Microphone not activated] thank you, Your Honour.
6 Q. Sir, when drafting this document, and in particular the paragraph
7 that we still have up on the screen, did you anticipate and expect for
8 the investigating officers to undertake on their own to go back and check
9 the transcripts of all your prior testimony, to learn about, for
10 instance, the Kravica account of detainees having overtaken guards and
11 having engaged in a fire-fight leading to casualties on both sides?
12 A. No, sir. All I -- my expectation was that simply was with this
13 information, if they interviewed an individual who stated that he was at
14 Kravica, that the investigating agent would simply have enough background
15 information to know that that might be of some significance.
16 Q. Do you know, sir, that one of the individuals who was removed
17 from the United States as a result of the work of the unit based upon
18 this report was exonerated by the state court of BiH this year?
19 Mr. Nedjo Ikonic?
20 A. Yes, sir, I am aware of that. He's not the only one.
21 Q. How many have been exonerated?
22 A. I believe there was an individual who was removed in 2005, since
23 he was exonerated, I don't know that I want to give his name in open
24 court. That's obviously a discretionary matter for the Court. But --
25 JUDGE ORIE: I do not -- the Chamber does not insist on
1 mentioning the name.
2 MR. IVETIC: I don't either. I'm asking numbers. I'm happy
3 with numbers.
4 JUDGE ORIE: Please proceed.
5 THE WITNESS: Again, our position is when -- recognising those
6 issues, you know, the fact that as far as the United States government is
7 concerned, our equity in investigating these issues has circles around
8 whether or not the individual was truthful to the United States
9 government as part of his process to becoming a refugee into the
10 United States. We do not have jurisdiction over these actual war crimes
11 simply as a restriction of the laws that are or were in place in the
12 United States. So, again, I take your point that he was acquitted in
13 Bosnia but he did acknowledge his guilt in the United States for
14 misrepresenting material facts on his immigration applications to come to
15 our country.
16 JUDGE ORIE: Mr. Ivetic, could I ask you something? You earlier
17 used the word "was exonerated," is that the witness used "acquitted."
18 That's not exactly the same. Did you intend to refer to being acquitted?
19 MR. IVETIC: I did, Your Honours and I apologise. I was
20 translating the B/C/S into English and it sometimes comes out wrong.
21 JUDGE ORIE: I just wanted to seek clarification of the use of
22 those words. Please proceed.
23 MR. IVETIC:
24 Q. If I could turn to page 6 of this document, just a few more
25 questions and then we can move on to another topic.
1 The middle of the second paragraph of this paragraph reads as
3 "Notwithstanding the general co-operation between the ICTY and US
4 government, the specific names of over 11.000 Bosnian Serb military
5 personnel assigned to units associated with the Srebrenica crimes was not
6 made available to US Immigration and Customs Enforcement until
7 July 2003."
8 Now, I note, sir, that this is, I believe, just before you left
9 the OTP. Were you involved in the transfer of this information or do you
10 have any knowledge of the same? Apart from what's written here?
11 A. Yes, sir. I was involved in the transfer of that information.
12 The United States government was investigating the case relating to
13 Marko Boskic, who was a member of the 10th Sabotage Unit in July 1995.
14 Their investigators were here at -- for a point in time investigating
15 that. They made a request with respect to the Office of the Prosecutor,
16 if they could get additional names of individuals associated with Eastern
17 Bosnia in July 1995. And since I was travelling back to the United
18 States on home leave, I was designated by the chief of investigations to
19 hand carry that list and deliver it to the immigration authorities.
20 Again, at that time, I was a UN employee and at that time I did not even
21 have an application in to Immigration and Customs Enforcement. So in
22 that capacity, I was operating strictly on orders from the OTP.
23 Q. Did that information that you provided assist you in getting
24 hired by ICE?
25 A. No, sir, it did not.
1 Q. Okay. If we can turn to page 10, I have just one more section
2 from this and one more question to ask you about. The second to last
3 sentence on the page reads as follows:
4 "All ICE requests should be forwarded to IRS Butler who will
5 co-ordinate them and ensure no duplications of requests or efforts."
6 Now, here, they are talking about requests of immigration and
7 naturalisation to the ICTY. Can I assume that IRS Butler refers to you?
8 A. Yes, sir, that's correct.
9 Q. Okay. And am I understanding this correctly that you in your own
10 memo are volunteering or appointing yourself as official liaison between
11 the US immigration service and the Prosecutor of the ICTY?
12 A. I don't know that I appointed myself into that motion, but the
13 decision was taken that in light of the OTP's position that they didn't
14 want to be bombarded by requests, and our position that we did not want
15 dozens of agents in disparate communities doing different investigations
16 to bombard them with requests, a decision was made by my agency that the
17 request would come through me and that I would at least organise them.
18 I would also add that while it's not visible in this memorandum, again
19 our requests from Immigration and Customs Enforcement particularly in
20 these days did not go directly to the ICTY but also had to go through the
21 legal attache office at the US embassy. So, again, part of this was to
22 ensure that the established process by which various organs of the
23 United States government communicated with the ICTY and the
24 Office of the Prosecutor, which are tracked by the Department of State,
25 are maintained and we did not get into a scenario where an individual
1 case agent would try to pick up the phone and directly call people at the
3 Q. Okay. I forgot one other critical point, if we can turn to the
4 last page of this document. And while we are waiting for that, sir, you
5 list and direct for among other information sources that the officers
6 should look at the Karadzic and Mladic case. So I have to ask you: Do
7 you believe a conviction of Mr. Mladic would further the efforts of your
8 office in prosecuting people in the US for crimes that you say occurred
9 in Srebrenica?
10 A. No, sir.
11 Q. Okay. Then we can leave this document behind and move on.
12 You testified during direct examination for the Prosecution on
13 the topic of the ABiH intercepts. Would you agree with me that the ABiH
14 intercepts figure prominently in your conclusions and your reports,
15 especially in the narrative Srebrenica report?
16 A. I do agree that they are catalogued in the report, and clearly
17 I do rely on them, as well as my other -- the other documents to form my
18 conclusions, yes, sir.
19 Q. Now, at transcript page 16116 on last Tuesday you said that you
20 were personally very skeptical about the intercepts themselves,
21 particularly since their source was the other party opposed to the Serbs,
22 until you verified them. Now, first of all, when you say intercepts,
23 I would like to make sure we are talking about the same things. Are
24 we -- are the intercepts that you are talking about limited to those from
25 the ABiH 2nd Corps and relating to Srebrenica and July 1995 and the
1 surrounding area, or do your comments and review relate to intercepts
2 from other sources relating to other areas and other time periods?
3 A. What I'm relating that comment to are the intercepts that I have
4 had an opportunity to review as part of the first part of my
5 investigation, when I was actually here, which includes those -- I
6 believe they are commonly called the ABiH 2 corps intercepts, which we
7 received from various collection sites and ABiH 2 corps itself. I've
8 testified in the past about what I think the OTP refers to as tactical
9 intercepts. They are not in my reports because the OTP obtained them
10 after my departure here. But, I again, the same situation is applied.
11 I mean, I look at them skeptically at first but I have come to believe
12 that they are authentic, and that is why I testified to them in certain
13 cases. I know that there is a broader body of intercept information that
14 encompasses 1993, 1994, and from other sources. I don't believe I've
15 ever reviewed that particular information, so obviously I'm not in the
16 position to corroborate anything outside of the collections that I just
17 spoke of.
18 Q. And in relation to these intercepts, at transcript page 16119 of
19 this trial, you have testified that there are two aspects to apprising
20 the reliability of these intercepts which you and other analysts were
21 involved in. Before we get to those two aspects themselves, can you
22 please identify for me who apart from yourself was involved in this
23 verification process of the intercepts?
24 A. Well, with respect to the military analysts, again my primary
25 assistants were Ms. Amanda Brettle and Sally Latin. I understand and
1 obviously was involved in part of the process with authentication which
2 Ms. Stefanie Frease undertook as part of a member of the Srebrenica team.
3 Q. Did you consider yourself personally to be qualified to perform
4 this type of analysis?
5 A. I would tell you yes. The reality is that as an intelligence
6 officer, I am required, as part of my position, to analyse incoming raw
7 information, as it were, and make determinations as to the reliability of
8 that information. The fact that I was doing it here -- again, I've done
9 it in other locations for the US government. So I'm not unfamiliar with
10 not only the capabilities but also the limitations of information that
11 intercepts can bring.
12 Q. Okay. Now, at page 16119 of the transcript, you say that the
13 first prong of analysis is that you look at the technical perspectives to
14 see if a party had the technical capability of intercepting the
15 communications. And if I understand you correctly, your testimony is
16 that in your opinion, the ABiH did have the technical capability to
17 intercept these communications. Am I correct?
18 A. Yes, sir. I mean, I've actually in the course of the
19 investigation, I recall visiting at least one of the collection sites
20 where the equipment was. I know that I have looked at various maps
21 pertaining to where the individual collectors or their antennas were
22 located and verified that appropriate line of sight existed. So, you
23 know, they weren't trying to collect through a mountain. I mean,
24 obviously you have to be able to have some line of sight to the various
25 radio emitters that you're seeking to select on, that the equipment that
1 they had was technically capable of doing that, and that the operators
2 themselves had enough of an understanding of the target environment in
3 order to understand what they were collecting.
4 Q. Now, I'm sure, based upon what you've just told us, that you
5 sound like you've logged quite a number of hours sitting in front of an
6 RRU-800 radio device of the type used by the VRS. Can you please tell us
7 how often you've had occasion to utilise such a device in the US army to
8 send and receive such communications?
9 A. None. But then again my qualification is not talking on a
10 particular radio. My qualification is reading and analysing what is
11 captured from those particular radios by intelligence collectors.
12 Q. In the course of your duties as an intelligence officer with the
13 United States armed forces, have you had occasion to personally
14 participate hands on in the technical aspects of signal interception of
15 communications carried over an RRU-800 radio relay network?
16 A. I am about at the limit of what I can discuss with respect to my
17 specific work with signals intelligence. So at this point I don't
18 believe I can comment any further.
19 JUDGE ORIE: What does impose that limit?
20 THE WITNESS: Sir, I would be at the risk of potentially
21 disclosing classified information, or at least information my government
22 considers classified with respect to the capabilities and limitation of
23 our own collection equipment. Again, as I've testified, and I can
24 testify, I obviously was not involved with intelligence collection
25 related to Bosnia in the pre-war years or even, you know, through the
1 conflict. But I cannot exclude the possibility obviously that some of
2 the equipment he is discussing I've not had some involvement with in
3 other environments in the world. So I don't know how to get past that.
4 JUDGE ORIE: If we take out the reference to the specific
5 equipment, then the question would remain whether, in the course of your
6 duties as an intelligence officer with the United States Armed Forces,
7 whether you had occasion to personally participate, hands on, in the
8 technical aspects of signal interception.
9 THE WITNESS: I can answer that question affirmatively, yes, sir.
10 JUDGE ORIE: Please proceed, Mr. Ivetic.
11 MR. IVETIC: Thank you.
12 Q. I'm going to try and phrase this in a careful enough way to see
13 if you can answer this one. Am I correct, sir, that your duties at the
14 US army that we went through the other day, generally speaking, dealt
15 with analysis of SIGINT that others had intercepted rather than actually
16 personally intercepting such communications?
17 A. Correct, sir. It was not my primary duty. It was simply, again,
18 as a focus of an analyst's ability to understand the limits of
19 intelligence collection and the conditions that it's done under because I
20 have to understand that in order to pass a judgement as to whether or not
21 the information is reliable as a component of my own broader analysis.
22 So, again, just like, you know, not only in the SIGINT field but in the
23 HUMINT field I am called upon to make judgements pertaining to the
24 ability, the reliability of various intelligence collection methods and
25 means as part of relying on them.
1 Q. Now, as to your conclusion that the ABiH had the technical
2 capability of intercepting communications from the VRS, did you rely
3 solely upon your own knowledge and experience or did you rely upon any
4 other technical experts, either within the OTP or external to the OTP?
5 A. I relied on, one, the testimonies and, first the statements and
6 the testimonies of many of the individual collectors. I relied on
7 looking at analysis of the information and cross-indexing it against
8 other facts that we knew to exist, such as documents and orders or other
9 events that occurred on the ground that would tend to confirm or deny
10 that the intercepts were valid. I am aware that we had several
11 individuals who were -- or at least one individual who was a member of
12 the -- I think it was Alcohol, Tobacco, and Firearms Bureau in the
13 United States who was an expert in audiotapes because the Tribunal or the
14 OTP had obtained audiotapes of some of these intercepted conversations
15 and we went to the degree of looking at those audiotapes in order to
16 determine if they were also authentic. So those are the resources that
17 I used.
18 Q. Can you tell me, sir, were you able to physically review the
19 actual radio equipment that the ABiH 2nd Corps were using or their
20 antenna setup that they were purportedly using to intercept VRS
21 communications in situ?
22 A. Well, again, not in a contemporary setting. I did go to one of
23 their collection sites. I did see their and antenna array and get a
24 description of the antenna array that they used in 1995. They did bring
25 out for us some of the short-wave or radio equipment that they were using
1 in 1995. But, again, what they were using in 1995 at that site and what
2 they were using when we inspected in 1998 was different. So we could see
3 the equipment but we couldn't actually see it working because it was a
4 live site.
5 Q. And when you say that you got a description of the antenna array
6 and the equipment and they brought out short-wave or radio equipment,
7 were you relying upon the written documents from 1995 as to what the
8 technical capabilities of both the DX radio [Realtime transcript read in
9 error "video"] equipment and the antenna arrays attached there to were?
10 A. I was relying on my discussions with the various individuals at
11 that one site.
12 MR. IVETIC: One correction to the transcript, page 85, line 12,
13 should be "DX radio equipment," unless I misspoke, which is shorthand for
15 Q. But, sir, in relation to the radios themselves and the antennas
16 themselves, did you visually examine them? Did you take any -- take
17 anything apart or perform any technical test to determine the
18 capabilities of those pieces of equipment, or was it solely based upon
19 these discussions that you just mentioned with the various individuals at
20 that one site?
21 A. No, sir. I did not take any equipment apart or conduct any
22 technical tests of that nature.
23 Q. Were the short-wave radios that were shown to you at this time in
24 1998 civilian or military models?
25 A. They were civilian models.
1 Q. Okay. Would you agree that --
2 JUDGE ORIE: Could I ask one thing? How do you see the
3 difference between a civilian model radio equipment and military?
4 THE WITNESS: Most -- the radio frequency spectrum in most
5 countries are divided between frequencies that are available for the
6 general public's use, frequencies that are available for government use,
7 frequencies that are available for commercial use. It mattered because
8 obviously off-the-shelf civilian equipment normally does not have the
9 crystal or the frequency setting in order to reach up into -- or to
10 monitor frequency waves that are dedicated government or military use,
11 particularly if they are from a certain country.
12 JUDGE ORIE: Yes. Now, I understand that answer. Is it on the
13 basis of documentation of that equipment or by type numbers that you
14 established whether it was civilian or military?
15 THE WITNESS: My personal observation, I can see that it was
16 civilian, and of course that is what predicated my question in the
17 discussion with some of the radio operators, which was how they were able
18 to use civilian equipment to essentially intercept frequencies that were
19 authorised or used by military and government forces in that particular
20 region, which then led to the discussion about how they were able to
21 modify the radios in order to reach those particular frequencies.
22 JUDGE ORIE: Yes. So they were modified civilian models? Is
23 that how I have to understand it?
24 THE WITNESS: Yes, sir, as it was discussed with me with the two
25 radios that I saw what they said is they basically were able to go in and
1 using crystals or other circuits that they were able to obtain abroad,
2 outside of the former Yugoslavia, they were able to modify these civilian
3 radios to be able to listen to frequencies that correspondingly the VRS
4 was using during the conflict.
5 JUDGE ORIE: Thank you.
6 Please proceed, Mr. Ivetic.
7 MR. IVETIC:
8 Q. The two radios that were presented to you, were you able to
9 visually see any modifications to them or did they look like stock,
10 off-the-shell, civilian models?
11 A. They looked like off-the-shelf civilian models. I could not
12 visibly ascertain anything from the outside.
13 Q. RM279 identified the receivers, civilian receivers in question as
14 being a Kenwood 450 and ICR-100, and that's at transcript page 13553 of
15 this trial. Did you, in fact, at any point in time, attempt to review
16 the technical manuals published by the manufacturers and find out the
17 technical specifications in relation to those devices?
18 A. No, sir, I did not.
19 MR. IVETIC: If we can look at P1646 briefly in e-court. If I've
20 got my numbers right this should be a photograph.
21 Q. Sir, this has been represented to be one of the radio receivers
22 used by the ABiH 2nd Corps. Does this look like one of the ones that was
23 presented to you on this occasion, at this location -- at one of the
24 locations in 1998?
25 A. It may have been. I mean, I have a memory of one of the radios
1 being white. It may have been one of the ones they showed me or not. I
2 don't recall.
3 Q. That's fair enough. At this time I would like to ask you, sir,
4 what is your understanding of the types of radio communications equipment
5 that were in use by the VRS at the various echelons of the Main Staff,
6 the corps, the brigade and the battalion echelons on the territory of
7 Srebrenica, Bratunac, Zvornik, et cetera, in July of 1995? Did you have
8 that? I mean, I'm not asking you to recite them now.
9 A. I appreciate that. I could answer that. Boy, I knew that
10 question dead on back in 2000, obviously because one of General Krstic's
11 primary defences was that the intercepts were essentially fake or in
12 their entire body and that we had to go through an entire drill to
13 validate that. I can say generally, you know, what the VRS was using was
14 what most militaries use which is a standard ultra-high frequency
15 multi-channel radio relay setup. I believe that many of the documents
16 that the OTP has actually lays out the entire communication schematic of
17 the VRS. The key thing for me, frankly, was that this particular network
18 operated what we call in the clear or in the red, which means that they
19 were not operating this network in an enciphered mode. For whatever
20 reason they were either unwilling or unable to obtain the necessary
21 cipher from the FRY. I don't know the reason behind that. But they were
22 operating the radio equipment, the encryption -- it was not encrypted,
23 and as a result it could be intercepted because the frequency spectrum
24 that it operated on lended itself to be intercepted.
25 Q. Was it your understanding that none of the radio communications
1 equipment of the VRS was being operated in encrypted mode? Is that your
2 understanding of the circumstances?
3 A. No, sir. I mean, clearly when one looks at the teletype messages
4 that are going back and forth, those are encrypted, and as a result, the
5 ABiH was not able to collect against them. I'm sure some of the tactical
6 communications among key officers would have been encrypted by encryption
7 devices that you might find, for example, on the RU 12 or things of that
8 nature. But in July of 1995, in at least the portion of the VRS
9 communications backbone that was in Eastern Bosnia on the multi-channel
10 network, those communications were not encrypted.
11 JUDGE ORIE: Mr. Lukic, I'm looking at the clock -- Mr. Ivetic,
13 MR. IVETIC: We can take the break for the day. Sorry.
14 JUDGE ORIE: Then, Mr. Butler, I again would like to instruct you
15 that you should not speak or communicate in whatever way with whomever
16 about your testimony, whether already given or still to be given.
17 THE WITNESS: Yes, sir.
18 JUDGE ORIE: And we would like to see you back at 9.30 tomorrow
19 morning in this same courtroom.
20 THE WITNESS: Yes, sir.
21 JUDGE ORIE: You may follow the usher.
22 [The witness stands down]
23 JUDGE ORIE: We adjourn for the day and we'll resume tomorrow,
24 Friday, the 13th of September in this same Courtroom I at 9.30 in the
1 --- Whereupon the hearing adjourned at 2.15 p.m.,
2 to be reconvened on Friday, the 13th day of
3 September, 2013, at 9.30 a.m.