1 Monday, 26 October 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.18 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
6 courtroom. Mr. Registrar, will you please call the case.
7 THE REGISTRAR: Thank you, Your Honours. Good afternoon to
8 everyone in and around the courtroom. This is case number IT-04-81-T,
9 the Prosecutor versus Momcilo Perisic. Thank you.
10 JUDGE MOLOTO: Thank you so much. Could we have appearances for
11 this afternoon, starting with the Prosecution.
12 MR. SAXON: Good afternoon, Your Honours. Dan Saxon,
13 Barney Thomas, and Ms. Carmela Javier for the Prosecution.
14 JUDGE MOLOTO: Thank you very much, Mr. Saxon.
15 And for the Defence.
16 MR. GUY-SMITH: Good afternoon, Your Honours. Chad Mair,
17 Tina Drolec, Novak Lukic and, Greg Guy-Smith on behalf of
18 Momcilo Perisic.
19 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
20 Just before we carry on to say that the Chamber is sitting this
21 afternoon pursuant to rule 15 bis because -- in the absence of
22 Judge David who is not in town. He is out of town.
23 Yes, Mr. Saxon, you wanted to say something?
24 MR. SAXON: Yes. I was going to call the next witness,
25 Your Honour.
1 JUDGE MOLOTO: Before we do that, can we do a little bit of
2 housekeeping matters.
3 First of all, just to say that it may be that a message was sent
4 to the parties, but just to make it abundantly clear, there is a Plenary
5 this afternoon at 5.00. Members of the Chamber are expected to attend.
6 So hopefully it will be a very short Plenary, just one item on the
7 agenda. That's that.
8 Secondly, there is an oral decision that the Chamber would like
9 to render in relation to some of the motions that have been coming
10 through quite recently, and which I think -- about which I think a
11 decision should be rendered before we call the next witness.
12 This is going to be an oral decision. The Trial Chamber is
13 seized of a Prosecution motion for leave to file a 10th supplemental
14 Rule 65 ter list and a request to tender certain exhibits from the bar
15 table filed on the 16th of October, 2009, hereinafter referred to
16 separately as Prosecution 65 ter list motion and third bar table motion.
17 On the 23rd of October, 2009, the Defence filed a response to the
18 Prosecution's 65 ter list motion only with respect to the expert report
19 and associated documents therewith. In light of the arguments submitted
20 by the Prosecution, the Trial Chamber, pursuant to Rule 54 and 65 ter of
21 the rules, finds the amendment of the Prosecution ter list in to the
22 expert report of Major-General Melvin and the associated documents to be
23 in the interests of justice. The Trial Chamber remains seized of the
24 Prosecution's 65 ter list motion with respect to the remaining documents.
25 The Trial Chamber is also seized of a motion for extension of
1 time to response to both Prosecution second bar table motion and
2 Prosecution motion for leave to file a 10th supplemental Rule 65 ter list
3 and request to tender certain exhibits from the bar table filed
4 confidentially on the 22nd of October, 2009.
5 The Prosecution filed its response to this motion today
6 requesting that the Trial Chamber should deny the Defence motion for
7 extension of time or alternatively that the Defence be ordered to respond
8 to the Prosecution 65 ter list motion within 48 hours of a decision by
9 the Trial Chamber on this matter.
10 The Trial Chamber notes in this regard that pursuant to rules
11 126 bis of the rules, the Defence has time to file its response to the
12 Prosecution 65 ter list motion until the 30th of October, 2009.
13 The Trial Chamber has considered the arguments advanced by the
14 Defence, in particular related to the complexity of bar table motions and
15 the circumstances in which the motions were filed and has decided as
16 follows: To grant in part the motion of the Defence for extension of
17 time pursuant to rule 127 of the rules. Accordingly, the Trial Chamber
18 authorises the Defence to file its response to both the Prosecution's
19 second and third bar table motions by the 5th of November, 2009. Two, to
20 deny the Prosecution request to expedite the Defence response to the
21 Prosecution 65 ter list motion.
22 Mr. Saxon. You may call your witness.
23 MR. SAXON: Thank you, Your Honour. At this time, then, the
24 Prosecution calls Major-General Mungo Melvin.
25 JUDGE MOLOTO: Thank you.
1 [The witness entered court]
2 JUDGE MOLOTO: Good afternoon, Major-General. Will you please
3 make the declaration.
4 THE WITNESS: I solemnly declare that I will speak the truth, the
5 whole truth, and nothing but the truth.
6 JUDGE MOLOTO: Thank you very much. You may be seated.
7 Mr. Saxon.
8 MR. SAXON: Thank you, Your Honour.
9 WITNESS: ROBERT ADAM MUNGO SIMPSON MELVIN
10 Examination by Mr. Saxon:
11 Q. Good afternoon, sir. Will you state your full name for the
12 record, please.
13 A. My name is Major-General Robert Adam Mungo Simpson Melvin.
14 Q. Thank you. And today I will address you as General Melvin; is
15 that all right?
16 A. That is fine.
17 Q. Very well. And General Melvin, are you currently a -- actually,
18 before I begin, I see you've brought in a small binder and it's on the
19 desk in front of you. Just so that it's clear to the Chamber and to the
20 Defence, it's my understanding that that binder contains a copy of your
21 expert report for these proceedings and the source materials that you
22 refer to in the footnotes. Is that correct?
23 A. That is correct. It is solely my report, together with the
24 source material for the footnotes that I put in my note -- in my report.
25 MR. GUY-SMITH: Just so we are clear, is it my understanding
1 there are no other notes contained within the documentation in front of
2 the gentleman?
3 MR. SAXON:
4 Q. And you heard the question of my colleague, so then your binder
5 contains no other notes?
6 A. That is correct. The only exception to that is I've made one or
7 two -- underlined a couple of parts of my report.
8 JUDGE MOLOTO: Perhaps for everybody's comfort, may we give the
9 Defence half a second to just glance at the document.
10 THE WITNESS: Yes, of course, Your Honour.
11 MR. GUY-SMITH: Thank you very much. I note that in the report,
12 the final version of the report of General Melvin consisting of some
13 24 pages, there are a number of interlineation and handwritten notes
14 contained in his report distinct from the issue of footnotes. There are
15 some names and some other matters that are contained in his report that
16 are not in the report that I have. I'm wondering if at some point it
17 would be convenient just for me to get a copy of the actual document that
18 the General is using during his testimony. I think that probably will
19 settle or resolve any concerns that I might have.
20 MR. SAXON: That would be perfectly fine with the Prosecution.
21 We can do it at the first break.
22 MR. GUY-SMITH: And I thank you.
23 MR. SAXON: Thank you, Mr. Guy-Smith.
24 If we can please show General Melvin and the persons present what
25 is 65 ter 9571, please, it's the curriculum vitae of General Melvin.
1 Q. While we are waiting for that, General Melvin, I'm not going to
2 take you completely through your CV, but can you just tell us about your
3 military education?
4 A. My military education started formally with attendance at the
5 Royal Military Academy
6 followed by various courses, the most significant of which was attendance
7 at the German Armed Forces Commanded Staff College at Hamburg
8 1986 and 1988.
9 I then attending the British Armed Forces Higher Command
10 and Staff course in 1998, and that completes my military education.
11 Q. Now, in the second paragraph of your CV you list a number of
12 positions and operational service and in command during your career, so
13 I'm not going to ask you to repeat that.
14 Approximately how many years have you served in the army of the
15 United Kingdom?
16 A. Since entering the British army in the summer of 1974, I have
17 served 35 years.
18 Q. And your present position?
19 A. Currently I'm held strength of the Chief of General Staff of the
20 British army. I am in fact between two formal appointments. My last
21 formal appointment was as the general officer commanding the
22 United Kingdom support command in Germany
23 month to be the senior army member at the Royal College of Defence
24 studies in London
25 Q. General Melvin, have you written any publications related to
1 military affairs?
2 A. Several. The most prominent of which I was the principal author
3 of the "British Army Doctrine Publication Volume 2 Command," which I
4 wrote in 1994 and was published in 1995. Ten years later, I was the
5 editor and co-author of a successor publication, "Army Doctrine
6 Publication Land Operations," which was written in 2004 and published in
8 In addition to that, I've contributed widely to joint and
9 multinational doctrine works and have written on them.
10 Q. And since the publication of your work on command in 1995, have
11 you returned to that subject?
12 A. Indeed. I wrote the chapter on command in "Army Doctrine
13 Publication Land Operations," Chapter 6, which I've quoted in my report.
14 That is a condensed version and revised version of what I wrote ten years
16 Q. Is command considered -- the subject of command per se, is that
17 considered to be an academic specialisation?
18 A. Not at all. Command, first and foremost, is a practical matter
19 which is exercised on a daily basis across all military forces. I have
20 been privileged to research the matter and have written about it. And my
21 writings are based on both personal practical experience and that which
22 I've researched and observed on others.
23 Q. You mentioned a publication called "Land Ops Doctrine," which was
24 published in 2005. Are you doing any additional work on that
1 A. Yes. Further to submitting my CV, I've been asked to mentor the
2 next edition which is due to be written in 2010. I will be looking at
3 all aspects of that publication. I will assist it. I will not be
4 directly responsible, however, at this stage for writing it.
5 Q. Have you taught any courses related to military affairs?
6 A. Yes, several. I was a member of the directing or teaching staff
7 at the British Army Staff College
8 member of the directing staff and the deputy director of our higher
9 command and staff course at the Joint Services Command and Staff College
10 between 1998 and 2000. And subsequent to that, I've been a guest
11 lecturer at that college and other institutions on a number of occasions.
12 MR. SAXON: Your Honour, at this point I would ask that the
13 Chamber admit this curriculum vitae, 65 ter 9571.
14 MR. GUY-SMITH: No objection.
15 JUDGE MOLOTO: Thank you. Just before we do that, I notice that
16 in Prosecution confidential submission of expert report of
17 Major-General Mungo Melvin dated the 12th of October, 2009, the
18 Prosecution says that in August 2010 Major-General Melvin left the
19 position of General office of commanding the United Kingdom support
20 command. And I just -- is there something that needs to be corrected
22 MR. SAXON: The correction, that was a typographical error by
23 myself, Your Honour, for which I apologise. It should say 2009.
24 JUDGE MOLOTO: Thank you very much. 65 ter 9571 is admitted into
25 evidence. May it please be given an exhibit number.
1 THE REGISTRAR: Yes, Your Honours. This becomes Exhibit P2771.
2 Thank you.
3 JUDGE MOLOTO: Thank you very much.
4 MR. SAXON:
5 Q. Now, I'd like to direct your attention, General Melvin, to your
6 report itself, if I may.
7 MR. SAXON: And can we please call up what is now 65 ter 9572.
8 Q. And, General -- we'll wait for the B/C/S version to come up.
9 General, at paragraphs 1.1 through 1.6 of your report, you
10 describe your task and the four questions that you were asked to respond
11 to. At paragraph 1.2, which is on the very first page, you describe how
12 General Dannatt had asked you to take on the task of preparing an expert
13 report for this case. And you say:
14 "I had already read into the case to some extent."
15 Are you following me?
16 A. Yes, sir.
17 Q. Can you be more specific about what you had read at that point?
18 A. I had read, at that stage, two documents. One was the -- your
19 set, Mr. Saxon's -- the original six questions which you had sent to
20 General Dannatt's office. And secondly, before I looked at those in
21 order to give me some context, I had looked on the internet and had read
22 the indictment against -- against General Perisic.
23 Q. And at that time did you see a document titled
24 "Command and Control"?
25 A. Yes, I did.
1 Q. All right.
2 A. But I did not spend -- I did spend enough -- I did not have
3 enough time to read it in full. I glanced at the document.
4 Q. At paragraph 1.4 --
5 MR. SAXON: And this is on page 3 of the English version and also
6 the same page of the B/C/S version, it begins there in the English
7 version and then continues on to the next page.
8 Q. On page 3 of the English version, the last sentence of that
9 paragraph 1.4 refers to the Ministry of Defence's Trials and
10 Inquiries Unit, TIU. Do you see that?
11 A. Yes.
12 Q. Is that reference correct?
13 A. No. And on my original I've deleted the word "trials" and
14 inserted "Tribunals." That was a typographical error of mine which I'd
15 failed to spot prior to the final submission of the report dated the
16 17th of September.
17 Q. And if we could move down just to the next paragraph,
18 paragraph 1.5, in the very first line of paragraph 1.5, you say:
19 "I can confirm that I received some input on factual [measures]
20 from others."
21 Can you explain what you mean by that?
22 A. Yes, indeed - and I'm referring here to my notes here - I
23 received advice from two members of the Ministry of Defence
24 United Kingdom legal services, Mr. Stewart Howard and a Mr.
25 Humphrey Morrison who gave me some advice on legal phraseology. They
1 gave me no advice on the doctrinal input to my report.
2 Q. Very well. At paragraph 1.6, we see the four questions that you
3 were asked to consider, and I'm not going to ask you to read them now
4 because we are going to look at each one of those questions as we go
5 through your report.
6 MR. SAXON: If we could turn to paragraph 2.1, please, which is
7 on page 4 of the English and B/C/S.
8 Q. I'd like to ask you about the methodology that you used to answer
9 these four questions. And there -- at paragraph 2.4 it has a subtitle
10 called "Background." And can you just briefly summarise what you are
11 trying to convey in that paragraph?
12 A. Yes, may I take your first question about methodology first and
13 then I'll return to background, if I may.
14 Q. If you prefer.
15 A. The methodology which I've described if my report from pages 4
16 onwards is an attempt to give an explanation to the approach that I took
17 in writing the report. It parallels an approach I would take for writing
18 the majority of the military reports that I have to do. It -- in the
19 starting point is an explanation of the approach that you are taking and
20 to provide some context and background as necessary.
21 So I've done that in two ways: I've provided general context,
22 particularly in terms of terminology and doctrine before I answer the
23 four questions; and then, using similar approach, I've tried to provide
24 some background or context to each of the four answers I've given to the
25 four questions. That, I think, I hope answers the first part of your
2 Q. Yes, it does.
3 A. Moving on to the rationale --
4 Q. No, no, General. I'm really only interested for now in
5 paragraph 2.1, thank you.
6 A. Okay.
7 Q. I think you've dealt with that.
8 MR. SAXON: If we can turn to paragraph 2.4, which is on page 8
9 of the English version and page 8 of the B/C/S version. Paragraph 2.4
10 has the subtitle "Approach of This Report" can you explain to the Judges
11 please, General, what was the general approach that you took in the
12 writing of your report.
13 A. Well, my approach was, bearing in mind that I was asked four
14 questions which are largely of a doctrinal nature, was to provide a
15 general document which provided an explanation of command, gave some
16 examples of definitions, and then gave some specific answers to the
17 questions that you had posed. I wanted to stress in the approach of my
18 report that I wasn't going to go into any specific matters pertinent to
19 the case or the indictment of General Perisic. I didn't think I was
20 qualified to do so, and, in any case, I did not have time to research
21 that. So I wanted to make that a very clear constraint or, as you were,
22 limitation to my report very clear to the Court.
23 JUDGE MOLOTO: I notice, Major-General, that you do say in that
24 paragraph that you consider the general context of command rather than
25 the specific, and then the next sentence you go to say that in so doing,
1 you provide some background doctrinal material on command drawn from the
2 United Kingdom and the NATO forces. Can you reconcile those two views?
3 It looks to me like you first say you are giving your general doctrinal
4 context and then you move on specifically to the UK and NATO without
5 giving us a general context of command. But it looks like you are being
6 specific to NATO and British forces.
7 THE WITNESS: Your Honour, I apologise if the wording wasn't
8 sufficiently clear. Let me try and elaborate to answer your question.
9 The -- when I was referring to the general context of command, I was
10 referring to a general doctrinal context of command rather than a
11 specific circumstances of command pertaining to any commander at a
12 particular place or time.
13 JUDGE MOLOTO: Fine.
14 THE WITNESS: And I, from my own experience, my quoting of UK
15 national and NATO done doctrine with which I'm familiar, I used that to
16 mean the general context of command. May I -- Your Honour, I see I've
17 not clarified it for you. My --
18 JUDGE MOLOTO: Yes, I understand what you say, and I just failed
19 to understand how UK
20 understood in the UK
21 context of command.
22 THE WITNESS: Well, I perhaps have -- I have by over-familiarity
23 and bearing in mind that my service of 35 years has been within the --
24 with a very minor exception has been entirely within the British and NATO
25 command, I have taken it with respect largely as read as that as a
1 general context.
2 JUDGE MOLOTO: Well, that's the universal knowledge for you.
3 THE WITNESS: From my experience.
4 JUDGE MOLOTO: From your experience. But it is not the universal
5 context of command. Because an Afghanistan
7 might have other commands which you are not familiar with.
8 THE WITNESS: Indeed, Your Honour.
9 JUDGE MOLOTO: Thank you. You may proceed.
10 MR. SAXON: If we can -- one moment, please.
11 JUDGE MOLOTO: While you are asking for a moment, the "Muslim"
12 after Afghanistan
14 MR. SAXON:
15 Q. Following up on His Honour Judge Moloto's questions to you a
16 moment ago, you -- in paragraph 2.4 when you refer to the general context
17 of command -- I'm going to leave this for now. I may come back to this.
18 Are you aware of any modern armies, General Melvin, in which what
19 you describe as the general context of command would not apply based on
20 your knowledge and experience?
21 A. If I may refer back to what I wrote in my report at
22 paragraph 2.3.1, I think that would be important to stress what I meant,
23 bearing in mind the discussion with His Honour on the subject, what I
24 mean by "general context." For a specific army coalition or alliance
25 there is a -- or a commanders within such a force, there is a general
1 context. I've suggested here in my report that it is based on a
2 foundation of education and training.
3 That's what I mean here by the general context. And I've also
4 set out that I believe it to be uniformly the case that in modern armies,
5 modern forces, that that context command will be set up formally in laws,
6 regulations, administrative instructions, and doctrine publications, and
7 notes. I've also said in my report at the top of page 7, that that
8 general context is also passed on informally through established custom
9 and practice.
10 My experience of modern armies has been, as I've tried to clarify
11 to the Court, primarily of the British army and of fellow NATO forces. I
12 have some other experience of other forces, but that's much more limited.
13 But I believe, in answering your question, what I've said is the basic
14 issue of the general context.
15 Q. Does that mean your answer -- well, let me go back to my original
16 question then. Are you aware of any modern armies in which what you
17 describe as the general context of command would not apply based on your
18 knowledge and experience?
19 A. Based on my knowledge and experience, I'm not aware of any modern
20 armies where this generally written context would not apply, that is
22 MR. SAXON: If we can turn, please, to paragraph 2.5 of
23 General Melvin's report, which -- this is on page 8, I believe, in both
24 versions. Bottom of page 8 in the English version. There it is in the
25 B/C/S version.
1 Q. Paragraph 2.5, General, is subtitled, "Detailed Method." Can you
2 explain, please, what was the detailed method that you used in responding
3 to these four questions?
4 A. As I've outlined earlier, my approach in answering any question
5 is to examine the context first; and therefore, in attempting to answer
6 each of the four questions posed, I have first undertaken a general
7 examination of the question trying to gain an understanding of what is
8 meant by the question, what may lay behind that question, in simple terms
9 an analysis of the question.
10 I then set out specific answers to the questions and, as stated
11 in my report, where the question consisted a number of sub-questions,
12 I've addressed those sequentially in the order presented.
13 Q. Thank you very much. Let's turn our minds now to question 1,
14 which is at -- starts at paragraph 3.1, page 9 of the English version and
15 of the B/C/S version. The very first part of that question says the
17 "Describe the generally accepted principles governing cooperation
18 between the military forces of two countries."
19 Now, in paragraphs 3.1.1 through 3.1.10, you describe these
20 principles. I'd like to take you, please, to paragraph 3.1.11, which is
21 on page 12 of the English and B/C/S versions.
22 And there we see the next portion of question 1 which says:
23 "Describe the concepts of command and control, operational
24 control, tactical control, et cetera, as they apply in this context."
25 Can you please explain to us briefly what the concept of command
1 means, the concept of control means?
2 A. Well, I -- in order to help you and the Court, I would request
3 respectfully that we return to an earlier part of the report and to
4 page 5 of my report and subparagraph 2.21, where I describe the terms
5 "command" and "control." That's paragraph 2.21.
6 Q. Are these terms distinct are or are they synonymous?
7 A. They are often informally intermixed, but they are not, as I
8 stress here, not synonymous. I have quoted here, directly from the NATO
9 doctrine, command and control terms which are differentiated.
10 Q. And command, very briefly?
11 A. A command, as doctrinally set out here, is the more inclusive of
12 the two terms, it is the authority vested individual to direct,
13 coordinate, or control armed forces.
14 Q. And --
15 A. Whilst control is more of a process through which a commander,
16 assisted by his staff, actually organises or directs or coordinates those
17 activities which he has directed. So in clarifying the difference
18 between command and control, as I make clear in the next paragraph,
19 control, by my understanding, by my writing, and by my teaching, control
20 is a subset of command.
21 MR. SAXON: All right. If we can turn back, please, to page 12
22 in the English and B/C/S version. And we'll take a look at
23 paragraph 3.1.13.
24 Q. And in that paragraph, General, you refer in the very first line
25 to a concept called "command states." Can you explain that concept,
2 A. The term "command state" is a military term used widely across
3 NATO. I cannot confirm whether or not it's used in other armies. I
4 suspect it is. And what it does is define formally the command
5 relationship between superior commanders and subordinate commanders,
6 between formations and subordinate formations. Those command states are
7 carefully defined in the NATO glossary, and I've set those terms out on
8 pages 13 and 14 of my report.
9 Q. One of those command states that you described is full command.
10 Can you describe what that is, please?
11 A. I quote that the full command is:
12 "The military authority and responsibility of a commander to
13 issue orders to subordinates. It covers every aspect of military
14 operations and administration, and exists only within national services."
15 MR. SAXON: If we could turn to page 13, please.
16 Q. I believe still on the bottom of page 12 we saw full command. We
17 see at the top of page 13 in English the concept of full command. Then
18 we see --
19 MR. SAXON: And if we could turn to the next page in B/C/S,
21 Q. You refer to a command state called "operational command." Can
22 you explain what that means?
23 A. When we move out of the national realm into the multinational
24 realm certainly within NATO and in coalition operations involving NATO
25 forces, the most frequent command states used are those of operational
1 command and operational control. Taking the operational command first,
2 to answer your question, is, I quote:
3 "The authority granted to a commander to assign missions or tasks
4 to subordinate commanders, to deploy units to reassign forces, and to
5 retain or delegate operational and/or tactical control as the commander
6 deems necessary."
7 And I further quote, and this is the important distinction
8 between operational command and full command:
9 "It doesn't include responsibility normally for administration or
11 Q. And operational control, can you tell us what that is?
12 A. Operational control is a lesser command state than operational
13 command. Again, I quote:
14 "An authority delegated to a commander to direct forces assigned
15 so that a commander may accomplish specific missions or tasks which are
16 usually limited by function, time, or location."
17 I would stress, however, that the power to a commander given in
18 operational control is significantly less than that he would otherwise
19 have under operational command. And quoting again from the NATO doctrine
20 in my report, under operational control:
21 "It does not include authority to assign the separate employment
22 of components of the units concerned."
23 Q. Would operational control then include the authority and
24 responsibility to discipline or not?
25 A. Not -- not normally. The disciplinary chain is normally retained
1 through a full command or national command chain.
2 Q. So if we just look -- if we are looking at page 13 of the English
3 version where we see full command, operational command, and operational
4 control, which command state would be the broadest and which would be the
5 most restrictive on this page?
6 A. The broadest one is, without doubt, full command. And the most
7 limited of the three is operational control.
8 Q. Very well. And --
9 JUDGE MOLOTO: If I may just ask, is it possible to envisage or
10 have you come across a situation where two competent parts of full
11 command, namely military operations and administration, vest in two
12 separate organs of command and not in one?
13 THE WITNESS: Your Honour, as far as I understand it, no, because
14 the administrative, as I said, and full command chains are normally the
15 one. But to clarify, there can be - this is why we have to couch the
16 term "normally" in doctrine - there can be situations by which, under
17 multinational arrangements, some aspects of administration or logistics
18 could be provided on a multinational basis. For example, water, fuel,
19 could be provided on a multinational basis, not on a national basis. But
20 that's unlikely to pertain when we get to discipline. In my experience,
21 discipline is retained by the national command.
22 JUDGE MOLOTO: On that point, in your knowledge of command, have
23 you come across the concept of resubordination? And if so, how is
24 command exercised in the situation where there's been a resubordination
25 of some units to some other command other than the national command?
1 THE WITNESS: Are you referring to, Your Honour, to
2 subordination, I'm not aware of the term you are specifically using here.
3 JUDGE MOLOTO: The term "resubordination," you are not aware of
4 that term?
5 THE WITNESS: No.
6 JUDGE MOLOTO: If you are not aware of the term, then there's no
7 point asking the question. I will drop the question. Thank you. You
8 may proceed.
9 Before you proceed, sorry, Mr. Saxon. You have indicated,
10 Major-General, examples of administration as relating to provision of
11 fuel and water. My actual question was, well, I was envisaging under the
12 heading of administration, payment of salaries, promotions of officers,
13 pensioning of officers, that kind of administration. Are you aware of
14 that kind of administration --
15 THE WITNESS: Yes.
16 JUDGE MOLOTO: -- being vested in a separate organ of command
17 from the organ which bears operational command?
18 THE WITNESS: Yes, Your Honour. Thank you for clarifying that
19 for me. It terms of administration -- personnel administration, there
20 can be cases where another force will undertake some administrative
21 functions on behalf of another one. But I -- but as I set out later in
22 my report, when it comes to things like pay and pensions and discipline,
23 those are normally retained by the national command authority, i.e., that
24 authority that sends either forces or individuals to join another command
25 either on a multinational basis or on another nation's basis.
1 JUDGE MOLOTO: How does the national office or the national
2 command exercise discipline if it is not operationally close to the
3 theatre of war to observe any misdemeanors or any crimes committed by the
5 THE WITNESS: That is simply answered, Your Honour, that in
6 almost all cases there will be appointed, whatever the nation concerned,
7 a national contingent commander who will be appointed for that specific
8 circumstance to deal with discipline.
9 JUDGE MOLOTO: Sure. You deal with the national contingent
10 commander later in your report.
11 THE WITNESS: Indeed.
12 JUDGE MOLOTO: In a situation where there's no such office, how
13 does that get implemented?
14 THE WITNESS: Well, if for the example that there were no
15 formally appointed national contingent commander, it would be incumbent
16 on the senior national officer in pursuance of his normal duties to
17 maintain good order and discipline of his unit, of the soldiers, sailors,
18 or airmen under his command. Those of his own nation. So he would have
19 first and foremost that responsibility to ensure good order and military
21 JUDGE MOLOTO: Okay. As I understand you, Major-General, within
22 this unit that is operating in a multinational situation, there would be
23 a commander, whether he is an NCC or some other commander, but the most
24 senior commander from the contributing nation who is directly responsible
25 for the maintenance of discipline within the unit under him.
1 THE WITNESS: That is correct, Your Honour.
2 JUDGE MOLOTO: Okay. Thank you so much.
3 MR. SAXON:
4 Q. General Melvin, following up on Judge Moloto's last question,
5 suppose there is no in-theatre - if I can use that term - national
6 commander appointed to oversee matters of discipline, what
7 responsibility, if any, would the national military commander or
8 commanders back in the sending nation have if they are aware that their
9 troops that are part of a multinational force or serving with another
10 nation have engaged in criminal conduct?
11 A. As I think I make clear in my report, there is always a duty to
12 act in the event of criminal actions or activity being detected. As I've
13 stated to His Honour the Judge, that even if a national contingent
14 commander is not appointed, it would fall on the senior ranking national
15 officer to report any incidents along the lines you've suggested and to
16 take appropriate steps at the very least to launch some form of
17 investigation and to report that immediately up his command chain to the
18 sending or contributing force.
19 Back in the nation, or back in the home country, there would be
20 likewise a responsibility to take action on that report or on information
21 being received by other sources. And in my experience where this has
22 happened, then there has been investigations launched within the theatre
23 of operations and, if necessary, an investigative team may also be sent
24 out by the contributing nation to investigate that in the theatre.
25 Q. And would that responsibility to take action that you've
1 described back in the home country, would that apply even when the troops
2 that were sent to the receiving nation were serving under the operational
3 control of that a receiving nation?
4 A. Very much so because as the command states -- a differentiation
5 between the command states are made clear, even if that national force
6 was operating under the operational control of a different national
7 commander in a multinational context, the disciplinary chain will remain
8 primarily a national one and therefore there is a responsibility to act
9 both in theatre and as necessary to act from the sending state.
10 JUDGE MOLOTO: Back to my question. That would depend, of
11 course, on reports being given to the contributing state of commissions
12 of crime by the contributed members of the force on the theatre?
13 THE WITNESS: Yes, Your Honour, primarily. But I don't think -
14 and no specific example springs to mind - I don't think we can exclude
15 the possibility of the sending state reacting purposefully and
16 appropriately if it were to receive information from another source.
17 JUDGE MOLOTO: That's true. But all I'm saying is in the normal
18 course of events, as I understand, and you correct me here because you
19 are the specialist on command and control, I would imagine that command
20 and control has as its inherent -- as a systemic composition of it a line
21 of communication from the theatre up the chain of command to the national
22 commander and back?
23 THE WITNESS: Absolutely, Your Honour. The whole system would
24 depend on timely reports and returns on that basis.
25 JUDGE MOLOTO: That's correct. And, therefore, it is through
1 this reporting mechanism that the national commander gets to know of any
2 commission of crimes that takes place on the theatre of war which then
3 triggers his duty to do something?
4 THE WITNESS: I would say that is by far the most important and
5 the most reliable source. I, in my earlier response, was indicating I
6 couldn't exclude a responsive and responsible national command authority
7 from taking action.
8 JUDGE MOLOTO: On hearing it from another source.
9 THE WITNESS: On hearing it from another source. That is all,
10 Your Honour.
11 JUDGE MOLOTO: I hear that. That's why -- okay. Thank you so
13 Yes, Mr. Saxon.
14 MR. SAXON: Your Honour, I note the time, would you like to take
15 the first break now?
16 JUDGE MOLOTO: At half past.
17 MR. SAXON: Half past, very well.
18 Q. General Melvin, is the distinction between the two terms
19 "command" and "control" always the same for all armies?
20 A. I think in the practical usage, as I've tried to indicate in my
21 report, there can be some difference because informally the terms command
22 and control in certainly my 35 years' experience can often be
23 interchanged. But it doctrinally and in specific circumstance of the
24 command states they are not interchanged.
25 The emphasis between command and control does change. What is
1 not helpful is the expression common in all armies and all armed forces,
2 command and control. I have waged a lone fight to remove this term
3 unsuccessfully because, as I've argued and have written and has been
4 largely accepted, but not fully, that command is an element -- I correct
5 myself, control is an element of command and not the other way about. So
6 there is some -- to answer your question, across armies, there is some
7 difference of emphasis.
8 Q. What about in the context of particular command states such as
9 full command, operational command, operational control, et cetera?
10 A. Here I make an important distinction whereas the terms command
11 and control are loosely used in general military conversation,
12 publications, when we get down to the specific issues of command states,
13 the terms command and control, particularly when they are applied in the
14 specific terminology, full command, operational command, operational
15 control, tactical command, or tactical control, are very precisely used.
16 Q. And why is that?
17 A. Coming back to the multinational context, the command states are
18 a very specific and very particular way in which the freedom of
19 multinational commanders are limited by the troop contributing nations.
20 And I give a specific example, I think, in my report. The
21 distinct between, for example, operational command and operational
22 control is significant. The operational control command state is more
23 limiting and it specifically does not include the authority to split up
24 component units. Why would a national commander be concerned about that?
25 Well, it could be, and this is often the evidence given to have a
1 restrictive command state, that though tactically the national commander
2 might be well within his rights to request the break-up of a specific
3 formation, the national command authority might not be able to provide
4 the appropriate logistic support for it.
5 So these command states represent a set of check and balances
6 within a multinational framework.
7 Q. Very well. General, focusing again on page 13, and there's a box
8 on page 13 with the subtitle "Important Note." I want you to turn your
9 mind to that for a moment. How is the term "command" used in an
10 international context, or in the context of a multinational military
12 A. Well, so you've referred the Court and me to the boxed important
13 note on page 13?
14 Q. Yes.
15 A. May I first of all stress, that is a direct quote from the NATO
16 glossary. And what that note is trying to do is to make it clear that
17 within the multinational context internationally, the term "command" does
18 not imply full command. It is going to imply a command of a lesser state
19 either operational command or operational control or tactical command or
20 tactical control. In the NATO or coalition context, no multinational
21 commander would exercise full command, so therefore when a multinational
22 commander gives an order by virtue of his appointment when he commands
23 subordinate commanders and their formations, he cannot exercise full
24 command because he doesn't have it. That is retained by the troop
25 contributing the national command chain.
1 Q. Very well.
2 MR. SAXON: If we can turn, please, to the next page in English
3 and B/C/S. This will be paragraph 3.1.16.
4 Q. And it has the subtitle "Role of the Sending Country (or State)."
5 What is the role of a sending country or state which contributes forces
6 to a multinational military operation?
7 A. The sending state, as you would imagine, it would be responsible
8 for preparing -- preparing the force and training it. That's one of its
9 responsibilities. As an issue, I did not go into it in my report. But
10 what the troop contributing nation, as I state in my report, retains the
11 responsibility to administer the individuals concerned and as previously
12 discussed in court, pay promotion and retirement issues.
13 Q. Would disciplinary powers also be retained?
14 A. Disciplinary powers are usually retained within the national
15 command chain. Ultimate authority remaining with the national command
17 Q. Very well.
18 MR. SAXON: If we can turn, please, to page 15 in the English and
19 B/C/S versions.
20 Q. We'll take a look at question 2, General Melvin. Question 2
22 "Describe any historical context that you are aware of in which a
23 military has seconded personnel to the operational control of the
24 military of another country while continuing to provide all remuneration
25 including enhanced pay and pension rights for combat service in that
1 other country, as well as retain its right to make final determination on
2 the promotion and retirement of those officers, and does not exercise its
3 ability to discipline those soldiers for breaches of military or
4 international law."
5 MR. SAXON: Can we go to the next page, please, in both versions.
6 Q. And, General Melvin, there we see paragraph 3.2.3 that in order
7 to answer the question you created this table. Can you explain -- can
8 you please explain why you created this table and what you intend to
9 demonstrate by it?
10 A. Well, first of all, in -- it's a response to answering your
11 question 2 which was set a number of conditions. This table is my own
12 formulation, because in my experience and my knowledge of both national
13 and multinational doctrine, I hadn't seen a question formulated in this
14 manner before. And, therefore, I attempted to answer the question from
15 first principles and took each of the three conditions which were
16 contained in the question and analysed them to expose what I believe to
17 be a general application, but also, where appropriate, I observed any
19 Q. So if we look, General, at the upper left-hand corner, the
20 left-hand column "Condition." And the first condition is where the
21 sending state continues to provide all remuneration including enhanced
22 pay and pension rights for combat service in that other country, what
23 then, according to -- would be, according to your knowledge, would be the
24 general application?
25 A. Well, as I state in the table, the sending state under its full
1 command responsibilities is normally -- remains responsible for that
2 administration, pay, and pensions, et cetera.
3 Q. Might there be an exception to that?
4 A. The exception could be that the sending state might elect to pay
5 the individual or top up that individual's pay. That could be done
6 either directly to the individual, or more likely, it would be indirectly
7 in, i.e., from a government-to-government basis under a bilateral
9 MR. SAXON: General --
10 JUDGE MOLOTO: But on this box you are not talking the bilateral
11 government-to-government agreement. You are talking of actually some
12 kind of securing their release from the sending state as if this is a
13 luring of the soldiers. This is what I wanted to understand from you.
14 What do you mean by securing release from the sending state. Are you, by
15 that, suggesting that they would then, sort of, desert their national
16 state army --
17 THE WITNESS: Not at all, Your Honour.
18 JUDGE MOLOTO: -- and then join -- what do you mean?
19 THE WITNESS: Not at all, Your Honour. What I'm meaning here is
20 that the sending state might wish to have some recompense for sending its
21 forces or individuals to another nation, and in addition to that, that
22 the receiving nation might wish to make it attractive to the sending
23 state or the individuals of the sending state. I'll give you an example,
24 that the --
25 JUDGE MOLOTO: But wait a minute. The box clearly says:
1 "The receiving state may elect to pay seconded individuals" - not
2 to pay the sending state, seconded individuals - "in order to attract
3 suitably qualified personnel or to secure their release from the sending
5 It almost suggested to me, and I want you to clear my mind if I
6 misread you, it almost suggested a clandestine move on the part of the
7 receiving state to attract soldiers of the sending state onto its side.
8 I'll pay you better than your state is paying you. Is that what should
9 be read into that statement?
10 THE WITNESS: I think, with respect, Your Honour, you may be
11 reading a little bit too much into what I'm saying.
12 JUDGE MOLOTO: Okay.
13 THE WITNESS: But if I may, just to clarify the point, I made two
14 qualifying remarks to what I said in the box. I made the point the paid
15 seconded individuals, that doesn't need to be directly paying the
16 individuals, that could be through the sending -- the sending state. If
17 I were, I could expand that box to make that point further clear. I'm
18 just trying to condense what I wrote there.
19 JUDGE MOLOTO: Okay. Can I be just clear, what you are saying
20 here, is this covered by the caveat you make at the bottom of page 15?
21 THE WITNESS: Yes, I made a specific caveat here because my
22 reading this --
23 JUDGE MOLOTO: You are just giving your opinions here. This is
24 not professional opinion?
25 THE WITNESS: No, it is a professional opinion, but it's not
1 based on a large amount of documentary evidence. There's no doctrinal
2 foundation for what I'm saying. That's why I put the caveat, a very
3 clear caveat there, Your Honour. Because the question as posed --
4 JUDGE MOLOTO: And you said, therefore, I've offered --
5 including, I've offered only opinions here based on my personal knowledge
6 and experience.
7 THE WITNESS: Correct, Your Honour.
8 JUDGE MOLOTO: And you have source documents to substantiate what
9 you mention in these blocks here on page 16?
10 THE WITNESS: No, that's my point. There's no -- I have found no
11 doctrinal foundation for these observations. I've only produced this
12 table to my best knowledge and experience to assist answering the
13 questions as put to me by Mr. Saxon to help the Court.
14 JUDGE MOLOTO: Okay. Thank you.
15 Yes, Mr. Saxon.
16 MR. SAXON:
17 Q. Before we break, General, just so that the record is clear, when
18 I asked you, and, Your Honours, I believe this is on page 30, line 11 of
19 the LiveNote which is now gone from my screen, when I asked you about the
20 first exception in this table, you started off by answering the sending
21 state may elect to pay, did you mean to say the receiving state?
22 A. I have -- I have stated in the general application the sending
24 Q. I see.
25 A. And in exception, I've talked the receiving state.
1 Q. Very well. And in the exception column where you use the phrase
2 "or to secure their release from the sending state," did you mean to
3 imply their permanent release?
4 MR. GUY-SMITH: Excuse me. I'll object to the leading at this
5 point. He can explain to us what he meant to imply as opposed to you
6 suggesting to him what he means to imply.
7 JUDGE MOLOTO: I would uphold that, Mr. Saxon.
8 MR. SAXON: Well then I've got to rephrase my question then.
9 JUDGE MOLOTO: Please do so, and let's take a break after he has
11 MR. SAXON:
12 Q. What did you mean by the phrase "secure their release"?
13 A. I meant here, and it was implicit, I hope, that the release would
14 be for a period of service. And hence I eluded to, in my exception, an
15 example of loan service which occurs in the British army where
16 individuals are detached from their service with the British army to
17 serve in the armed forces of another nation such as the Sultan of Oman's
18 armed forces for a specific period of time.
19 I did not mean here any notion of a permanent release of the
20 individual. This was for specific periods of duty.
21 JUDGE MOLOTO: Thank you very much.
22 MR. SAXON: Shall we take the first break, Your Honour.
23 JUDGE MOLOTO: We'll take the break and come back at 4.00.
24 Court adjourned.
25 --- Recess taken at 3.34 p.m.
1 --- On resuming at 3.59 p.m.
2 JUDGE MOLOTO: Yes, Mr. Saxon.
3 MR. SAXON: Thank you, Your Honour. If we can turn again to
4 paragraph 3.2.3 of 65 ter 9572, page 16, there we have it, of
5 General Melvin's report.
6 Q. And we were reviewing this table, General, that you had created
7 to answer question number 2. And the second condition I see in the
8 middle row where the sending state retains its right to make final
9 determinations on the promotion and retirement of those officers, and you
10 say, in the next column, that the general application would remain as in
11 the -- with respect to the first condition already discussed, but might
12 there be an exception in that circumstance?
13 A. I could only envisage very rare exceptions to that, hence I put
14 in general application that I believe the issues which you raise in your
15 second condition, determinations of promotion, retirement, those should
16 be retained by the sending state. The reason for that is that they would
17 normally take a career view of you on the overall perspective of an
18 individual's career taking into the individual's past activities and
19 future potential into account. And that could not be done by the
20 receiving state.
21 Q. I'm not sure if the transcript picked up the first start of your
22 answer because I see at line 17 when I asked whether there might be an
23 exception in that circumstance you said "I could only envisage it
24 very ..." and there's a word missing.
25 A. Rarely. Rarely is the word I used, rarely.
1 Q. General, before I forget, you and I are speaking in the same
2 language, and that makes it -- that makes communication easier for the
3 two of us but can make life very difficult for the interpreters. And
4 they've requested that we try to pause between question and answer. If
5 we could try to remember to do that.
6 In the bottom row of the same column, 3.2.3, the same table, the
7 condition where the sending state does not exercise its ability to
8 discipline those soldiers for breaches of military or international law.
9 And in your general application you say this happens very rarely. Why is
11 A. As I stated in my report, that is because the sending state
12 usually retains full powers of discipline over its seconded personnel.
13 Q. Might there be an exception, however?
14 A. The only exception that I could find in my research, but it was a
15 very specific one so I didn't put it in the report, was a historical
16 exception. And that was the case where British commonwealth forces were
17 attached to British forces during the Second World War, and powers of
18 discipline were passed from the sending state to the receiving state, in
19 this case to Britain
20 be practical for the sending state, in this case perhaps Canada or
22 were stationed in Britain
23 That is the historical exception I found, but I could not find a
24 contemporary one, therefore I did not include that in my report.
25 JUDGE MOLOTO: And what would make impossible for a state like
2 who are in Britain
3 THE WITNESS: Well, nowadays and with modern communications,
4 Your Honour, I don't think it would be very difficult at all. I think
5 that's -- hence I very carefully made the point in answering my question
6 this was an historical example where I think it was a pragmatic response
7 but would not necessarily apply today. Today, you are absolutely right.
8 There would be a national contingent commander and all but for the most,
9 I imagine, trivial issues the -- as I've stated and as you've indicated,
10 Your Honour, the nations would retain their disciplinary powers.
11 JUDGE MOLOTO: And what in modern days has happened that makes it
12 easier to maintain -- to retain that control which was absent during
13 World War II? Was it World War II or World War I?
14 THE WITNESS: I was making the example of the Second World war.
15 JUDGE MOLOTO: The Second World War, yes.
16 THE WITNESS: I think, Your Honour, the answer is a simple one.
17 I think modern communications and both in passage of information and
18 modern communications in terms of being able to move people around the
19 world so much more quickly has made it much easier for the nations of
20 contributing nations to exercise their disciplinary powers. So I think
21 that is the simple reason for that.
22 JUDGE MOLOTO: I think my specific question really relates to
23 what in the modern communications is there which was not there in
24 World War II which make it is easier to --
25 THE WITNESS: Well, both electronic communications, phone,
1 e-mail, but also physical communications.
2 JUDGE MOLOTO: Was phone not there in World War II?
3 THE WITNESS: The e-mail certainly wasn't.
4 JUDGE MOLOTO: The e-mail wasn't there, but the telegram and --
5 THE WITNESS: Telegram and --
6 JUDGE MOLOTO: -- and phone were there.
7 THE WITNESS: But it was not only a matter of communications, I'm
8 also talking about physical communications. In the time of World War II,
9 it was simply not as easy to move around the globe as it is today. And
10 also, I would suggest, there were different historical conditions
11 pertaining at the time. I can imagine that the -- during the
12 Second World War, and again I made the specific example here, Canadian or
13 Dominion forces or Australian forces, could be put under British command
14 in a way that could not be envisioned today. Times have changed.
15 JUDGE MOLOTO: What role would a factor that the commonwealth
16 forces would have looked up to Britain
17 scenario as compared to states that are equal?
18 THE WITNESS: I think, Your Honour, that's a very important
19 distinction. Historically, I think you are absolutely right to observe
20 that those dominion countries looked then to the United Kingdom as a
21 mother country. In terms of states of equal rank or equal quality, then,
22 I think, there would be that -- those conditions would not pertain.
23 JUDGE MOLOTO: And in World War II there were allies.
24 THE WITNESS: Indeed.
25 JUDGE MOLOTO: And did -- apart from the dominion countries, did
1 any countries of equal state ever relinquish their right of discipline to
2 any other state other than the dominions?
3 THE WITNESS: This is an area, Your Honour, I've not researched
4 in any detail, but from my general military historical knowledge, I
5 cannot recall such a case.
6 JUDGE MOLOTO: Thank you so much.
7 Yes, Mr. Saxon.
8 MR. SAXON: I'm going to move on now. If we can take a look --
9 if we can scroll down on the bottom of the page in B/C/S, please. All
10 right. If we could turn to the next page in B/C/S and on the same page
11 in English.
12 Q. Paragraph 3.2.4, General. The first sentence says:
13 "Rephrased within an alliance or coalition context, it is normal
14 for contributing nations not only to retain responsibility for pay,
15 promotion, and retirement, but also for discipline of their seconded
16 personnel under operational control."
17 Might there been exceptions to this general rule? Just yes or
19 A. There could be exceptions.
20 Q. And to your knowledge and experience, are such exceptions common
21 or rare?
22 A. The only general range of exceptions is that which I cover in the
23 following paragraph of 3.2.5 which relates to stationing of forces.
24 Q. 3.2.5 you refer to a major exception. Can you briefly discuss
25 what that exception is or explain what it is.
1 A. This is where I'm trying to explain an exception to the general
2 rule I've described hitherto. Under a status of forces agreement, a NATO
3 one with which I'm familiar, there is a split of jurisdiction between the
4 sending and receiving states. As I state in my report, normally all
5 internal military offences would be considered as those which should be
6 retained in jurisdiction terms by the sending state. However, if the
7 receiving state had a particular interest in a case, a serious criminal
8 offence affecting a national of that receiving state would be a good
9 example, in my experience it would be unlikely to waive jurisdiction in
10 this case. I have personal experience of dealing with this.
11 JUDGE MOLOTO: But this is an exception that you are aware of
12 that comes as a result of some agreement as you say in paragraph 3.2.5?
13 THE WITNESS: Yes, Your Honour.
14 JUDGE MOLOTO: Without an agreement you are not aware of this
15 because this is what I was asking you just before Mr. Saxon asked you the
16 question, this is what I was asking you, apart from the dominions, you
17 were not aware of any other such retention of disciplinary jurisdiction
18 by the receiving state?
19 THE WITNESS: No, I'm not Your Honour. That's why I made that
20 exception clear.
21 JUDGE MOLOTO: That's right. And in the absence of any
22 agreement, you are not aware of anything?
23 THE WITNESS: That is correct, Your Honour.
24 JUDGE MOLOTO: And in this exception, you are saying the
25 receiving state, if it has an interest maybe because of the involvement
1 of its national would then want to retain jurisdiction, would that
2 receiving state be retaining jurisdiction to try an officer of another
3 state for a war crime, or only for compensation towards its officer, or
4 for an ordinary criminal case?
5 THE WITNESS: I cannot give you, from my personal experience
6 here, Your Honour, a substantive answer for the issue of war crime. But
7 for a serious crime against a person, I can give a recent example within
8 my competence and my last job as the general officer commanding of the
9 United Kingdom support command. I had to deal with a case in which a
10 British soldier was alleged to have raped a German national away from a
11 military base and, therefore, the German legal system, in my view
12 rightly, did not waive its jurisdiction, it retained jurisdiction. That
13 individual appeared in front of a German court to answer --
14 JUDGE MOLOTO: And where had the rape allegedly taken place?
15 THE WITNESS: Had taken place in a German town.
16 JUDGE MOLOTO: German territory?
17 THE WITNESS: German territory, yes, Your Honour.
18 JUDGE MOLOTO: And that would have been an ordinary criminal
20 THE WITNESS: That was an ordinary, though a very severe,
21 criminal case.
22 JUDGE MOLOTO: Very severe. But ordinary criminal -- not a war
24 THE WITNESS: That is correct, it was not a war crime,
25 Your Honour.
1 JUDGE MOLOTO: Thank you.
2 Yes, Mr. Saxon.
3 MR. SAXON:
4 Q. General Melvin, I'd like to ask you, please, to turn your mind to
5 question number 3.
6 MR. SAXON: If we could go -- keep the same page in English but
7 go forward one more page in the B/C/S version, please.
8 Q. Question 3 says:
9 "Summarise the basic principles governing military discipline and
10 how they apply in settings in which multinational forces are cooperating.
11 What are the obligations of the commander of one of the contributing
12 forces in the event he becomes aware that his personnel that have been
13 placed under the operational control of another force are being engaged
14 in criminal conduct by the foreign commander with operational control."
15 MR. SAXON: If we can go forward one more page in English,
16 please, remain in the same page in the B/C/S version.
17 Q. General, if you could turn your mind to paragraph 3.3.3, which is
18 subtitled "The Nature of Disciplinary Responsibility." Can you summarise
19 that paragraph for us, please?
20 A. Yes. As I've stated, discipline is an absolutely essential part
21 and basis of the efficiency and effectiveness of a military force.
22 Without discipline, a force cannot operate properly. And therefore, both
23 the individuals within a force have the responsibility to act in a
24 disciplined manner, and their commanders, at all levels, have a
25 responsibility to ensure that discipline is maintained. And further, as
1 I have clarified within my report, it is incumbent on a commander to
2 intervene if he is aware, or he or she is aware of a failure of
4 Q. Can you command soldiers without discipline?
5 A. No. Soldiers cannot be commanded effectively without being --
6 without them, either the commander or those commanded, without being
7 within a framework of good order and discipline.
8 Q. Can modern armies operate without discipline?
9 A. No armies can operate effectively without discipline.
10 JUDGE MOLOTO: For an effective maintenance of this discipline,
11 how closely -- how close must the commander be to the operations?
12 THE WITNESS: The -- as I've stated, Your Honour, within a
13 command system, there are commanders at all levels. For discipline to
14 work effectively, actions must be monitored at all levels. And it also
15 requires that any failings of discipline are reported up that chain of
16 command without delay.
17 A senior commander cannot be present everywhere to monitor the
18 action of his subordinates so in the first instance he must rely on his
19 subordinates to monitor and to ensure good order and discipline.
20 JUDGE MOLOTO: Thank you.
21 MR. SAXON:
22 Q. Following up on Judge Moloto's question, can actions be monitored
23 without reporting up? Can a commander learn about disciplinary issues
24 from other sources?
25 A. A commander should use all available sources in order to monitor
1 the situation, but as previously stated, and in fact in one of my answers
2 to His Honour the Judge, I've stated that it's important that regular
3 reports, reports and returns, are maintained up a chain of command. So
4 that is information coming up from below. But in my view, and in my
5 experience, a commander has also responsibility to take active steps
6 himself and that is why, whether it's on peacetime training or on
7 operations, any good commander visits his subordinate commanders and
8 units to confirm their state of operational efficiency which includes
9 their state of discipline.
10 Q. In paragraph 3.3.4 which is subtitled "Discipline Within a
11 Multinational Context," what is the general point that you make in this
13 A. I think this has already been raised in my responses about the
14 national contingent commander. When a sending state deploys forces into
15 a theatre of operations and subordinates its forces under multinational
16 command, the full command, and hence responsibility for disciplinary
17 matters, is retained under the national command chain.
18 To facilitate that, normally a national contingent commander
19 would be appointed and he has, in the first instance, responsibility to
20 ensure that discipline is maintained within the national element of a
21 multinational force.
22 MR. SAXON: If we can go to the next page, please, in English and
24 Q. Paragraph 3.3.5 -- excuse me, 3.3. -- and 3.3.6 regarding the
25 obligations of the commander of one of the contributing forces in the
1 event he becomes aware that his personnel that have been placed under the
2 operational control of another force are being engaged in criminal
3 conduct by the foreign commander with operational control, you actually
4 have answered this question in a previous response in the last session.
5 If we turn to paragraph 3.3.8, what further options would be
6 available to the troop contributing nation, in particular if there isn't
7 an appointed national commander in theatre responsible for discipline?
8 A. Well, as I've stated, even if a national contingent commander is
9 not appointed formally, de facto there will be a senior national officer
10 present. So either way the action should be available to a responsible
11 individual in a theatre of operations. But notwithstanding that, the
12 contributing nation clearly has in its only interests and its own
13 responsibilities with respect to the action of its forces be they under a
14 multinational command.
15 What I've tried to do here in paragraph 3.3.8 is explore some of
16 the theoretical options available to the troop-contributing nation or
17 sending state. In my experience, however, is that these matters are
18 normally conducted in an informal matter either within the theatre of
19 operations or in more serious cases could be again dealt with in
20 military-to-military contacts at national level.
21 Q. And when you say dealt with by military-to-military contacts,
22 what kind of contacts do you mean?
23 A. Well, that could be -- and again, I would stress to the Court
24 here, I'm painting a theoretical picture here. I'm not giving any --
25 because I could not find any recent historical examples to clarify this
1 point, so I'm painting a theoretical picture. I imagine that those
2 contacts will be on the basis of phone calls, letters, or whatever. The
3 historical example I gave above that was a real example, but was just to
4 indicate there are limitations to the execution of multinational command
5 when a senior national commander has grave concerns as to the planned
6 conduct of operations. There are systems available for that national
7 commander to air his concerns.
8 Q. Thank you.
9 JUDGE MOLOTO: Obviously this presupposes a discussion of the
10 plans between the multinational commander and the national commander?
11 THE WITNESS: Yes, Your Honour. And that is the nature of
12 multinational operations because of sensitivities. It's my experience on
13 operations myself or observing operations that multinational operations
14 normally include a degree of prior discussion which would not normally be
15 required of national operations. This is, Your Honour, to avoid nations
16 objecting to executed plans after the event. It is much easier and much
17 better for all parties concerned to have that discussion beforehand so
18 any concerns can be raised.
19 JUDGE MOLOTO: And are you aware from your professional
20 experience of a situation where in a multinational effort there's no such
21 prior discussion of plans before execution?
22 THE WITNESS: Other than the most minor tactical activity, I'm
23 not aware. My own personal operational experience, and again visiting
24 operational theatres, any substantive plan within a multinational context
25 would be normally discussed and rehearsed beforehand, and specifically to
1 allow the national contingents to look at those plans and to agree to
2 them beforehand, Your Honour.
3 JUDGE MOLOTO: Thank you so much.
4 Yes, Mr. Saxon.
5 MR. SAXON:
6 Q. Following up on one of Judge Moloto's questions -- actually, no,
7 in one of your responses, you said, General:
8 "It is much easier and much better for all parties concerned to
9 have that discussion beforehand so that any concerns can be raised."
10 Of course, would that exclude the possibility of if plans do not
11 go well?
12 JUDGE MOLOTO: Do we have a cell phone ringing?
13 MR. SAXON: I hear something, Your Honour, but it's not my cell
15 JUDGE MOLOTO: I didn't suggest it's yours, Mr. Saxon. Okay.
16 It's probably ringing deep in the pocket somewhere. That's fine. Carry
17 on, Mr. Saxon.
18 MR. SAXON:
19 Q. If, for example, a plan in a multinational context goes awry,
20 does not turn out well, discussions about -- can discussions about any
21 problems also take place military to military?
22 A. Yes.
23 MR. SAXON: If we could, please, turn to page 21 in the English
24 version. The bottom of page 21 in the B/C/S version.
25 Q. On page 21 we see question 4:
1 "Based on commonly accepted principles of military doctrine and
2 practice, what evaluation and review is done before a professional
3 soldier is promoted to a higher rank? Are you aware of any military in
4 which promotion of an officer does not take into account a review of
5 allegations of criminal activity by that officer?"
6 If we can focus, General Melvin, please, on paragraphs 3.4.3 and
7 3.4.4, page 21, both versions. Those paragraphs deal with the first part
8 of question 4. What kind of evaluation and review is done before a
9 professional soldier is promoted to a higher rank, at least in modern
10 armies that you are aware of?
11 A. In my experience across the military forces I've either worked
12 with or am aware of or have researched, it is common to say that
13 promotion is based on evaluation of two fundamental matters. Firstly,
14 the performance of the individual, and secondly, his or her potential at
15 a higher rank, and with that, greater degrees of responsibility.
16 Q. And what about the selection of officers to very high-ranking
18 A. This varies across armed forces according to their national
19 traditions and systems. Clearly, I'm most familiar with my own armed
20 forces and the British army. All I can say is promotion to the highest
21 ranks is taken in a deliberate manner to ensure that the right quality
22 comes to the top. And I think it's only fair to say that an army or an
23 armed force can only be led if it has individuals of high quality at the
24 top, and therefore, it is in the interests of the armed force to ensure
25 that the promotion system is based on meritorious principles.
1 MR. SAXON: If we could turn, please, to page 22 of the English
2 and page 23 of the B/C/S version. Paragraphs 3.4.5 and 3.4.6 of your
4 Q. General Melvin, are you aware of any military in which the
5 process of promotion of an officer does not take into account a review of
6 any allegations of criminal activity by that officer?
7 A. I'm not a legal expert, but to my experience and to my knowledge,
8 I would find it hard to envisage. And I am certainly not aware of any
9 force that would not take into account any allegation of criminal
10 activity. Whether there is a formal review in place, I cannot be that
12 Q. Do we take that response to my question as a yes or a no?
13 A. I think you should take my answer as if to repeat the question --
14 could you repeat more specifically the question?
15 Q. Of course I can. Are you aware of any military in which the
16 process of promotion of an officer does not take into account a review of
17 any allegations of criminal activity by that officer?
18 A. The answer to that is, I repeat, no. But I qualify my answer
19 carefully by saying that I cannot state here that in all cases there
20 would be a formal review. All I'm saying here is I'm not aware of any
21 military force would not take into account any allegations of criminal
23 Q. If you can turn your mind, please, to paragraph 3.4.7. In your
24 experience, General Melvin, what happens if there are allegations of
25 serious offences against an officer who has been recommended for
2 A. In my experience, if an individual has been recommended for
3 promotion and subsequent to that recommendation there are allegations of
4 a serious offence, then that promotion would normally be stayed, i.e.,
5 put on hold, until those allegations are investigated and the individual
6 is cleared.
7 Q. And, General Melvin, what is the rationale for holding the
8 promotion process in abeyance?
9 A. I think that should be self-evident. No military force would
10 wish, in terms of its efficiency, effectiveness or standing, to promote,
11 unwittingly, individuals who would subsequently be found to have
12 committed serious criminal offences.
13 MR. SAXON: If we could turn, please, to page 23 in the English
14 version and page 24 in the B/C/S version.
15 Q. General, these are your conclusions, and if you could simply
16 focus on paragraph 4.3 briefly, please. In summary, what does any system
17 of command need to function effectively?
18 A. I go back to an earlier part of my report where I talk about
19 command involving decision-making, a leadership, and control. In this
20 conclusion, I wanted to highlight the importance of that control
21 function. That control function rests on commanders and staffs
22 monitoring the situation and, where necessary, actively taking part or
23 taking active steps to get further information and to give direction and
24 guidance to their force.
25 The command system cannot function without this responsive
1 feedback system.
2 Q. You mention that the control aspect of command requires effective
3 communications. Why are -- why is a system of good communications
4 important for command?
5 A. Because without good communications neither the commander or the
6 commanded will be aware of what is going on. It's important that
7 communications work both ways. I think that's clear. Forces cannot be
8 coordinated and directed or monitored without good communications.
9 Likewise, any subordinate units or formations will not be able to act
10 purposefully if they do not receive the appropriate direction and
11 guidance. And within the overall context, discipline cannot be
12 maintained across the force if that normal communications involving
13 reports and returns are not maintained.
14 Q. Thank you, General Melvin. I would like to review with you a few
15 of the authorities or source materials that you relied upon in the
16 drafting of your report.
17 MR. SAXON: If we can turn back, please, to paragraph 2.2, which
18 is on page 5 of the English version and page 4 of the B/C/S version.
19 Q. General, I know this is something very dear to your heart and
20 mind. What -- generally, why is the application of terminology important
21 when discussing issues related to command?
22 A. Command is one aspect of a doctrine and its practical
23 application. Doctrine, so that it's widely understood and practiced,
24 requires clear definition. And that is why all armed forces, to my
25 knowledge, and certainly the ones that I deal with closely within the
1 alliance, rely on a common understanding based on a common doctrine which
2 in turn is based on a common language. And that's why I've referred here
3 in my report to both NATO and national doctrine and specifically to the
4 NATO glossary of terms.
5 MR. SAXON: Can we turn, please, to 65 ter 9588, please.
6 Q. General, this is --
7 JUDGE MOLOTO: Before we do that, what do you want to do with
9 MR. SAXON: I'm grateful, Your Honour. In consultation with my
10 colleague, if that could be marked for identification at this time,
11 pending arguments about this report.
12 JUDGE MOLOTO: 65 ter 9572 is marked for identification, may it
13 please be given an exhibit number and marked for identification.
14 THE REGISTRAR: Yes, Your Honours. This document becomes
15 Exhibit P2772 marked for identification. Thank you.
16 JUDGE MOLOTO: Thank you.
17 THE WITNESS: Your Honour, can I ask a question to you, sir,
19 JUDGE MOLOTO: Yes. Don't be guaranteed -- you are not
20 guaranteed an answer.
21 THE WITNESS: No, but purely procedural terms. Do I understand
22 what is going on now is the supporting material being annotated as
23 documents to my report, or my report being annotated? I would like that
24 to be clarified for my own understanding so I can answer subsequent
25 questions effectively.
1 JUDGE MOLOTO: I'm not quite sure I understand what you mean by
2 annotated? You said annotated as what?
3 THE WITNESS: My question here, Your Honour, is I'm trying to
4 understand what is being talked about at the moment. I've produced a
5 report and various, I think the prosecuting counsel is referring to
6 documents I've used as source material. Is that source material now
7 being used as part of the documentary evidence?
8 JUDGE MOLOTO: I see what you say. Not at this stage yet.
9 THE WITNESS: Thank you, Your Honour.
10 JUDGE MOLOTO: Am I right?
11 MR. SAXON: Essentially yes, you are right, although I do need to
12 review this material with the witness.
13 JUDGE MOLOTO: Do you confirm that I'm right?
14 MR. GUY-SMITH: I do, Your Honour.
15 JUDGE MOLOTO: Thank you so much.
16 MR. SAXON: Can we please see 65 ter 9588, please.
17 Q. And General Melvin, this is the document that you refer to in
18 footnote 8 of your report. And we see on the first page it says
19 "Allied Joint Doctrine" then below that "AJP-01(C)." First of all, just
20 briefly, can you tell us what this publication is in general terms?
21 A. This publication represents the highest level allied joint
22 doctrine produced by the alliance, and it's specifically designed to
23 cover the operational level of war.
24 Q. And, General Melvin, when you use the term the "alliance" you are
25 referring to the NATO alliance; is that right?
1 A. That is correct, as indicated on the top of the document.
2 Q. Okay.
3 MR. SAXON: Can we turn, please, to section 0502, which is on
4 page 3 of the English and page 3 of the B/C/S.
5 Q. General, you see section 502 is subtitled "Command and Control
6 Terminology." Can you tell us, please, what is significant about this
7 section for the purposes of your report?
8 A. It confirms the statements I've already made, although the terms
9 "command" and "control" are closely related, they are not synonymous.
10 I've demonstrated that, I think, in my earlier responses. It's important
11 to differentiate between the terms command and control, and that's why I
12 have quoted this document.
13 Q. Thank you.
14 MR. SAXON: Your Honour, I would seek to -- I would ask that
15 65 ter 9588 be marked for identification, please.
16 JUDGE MOLOTO: It is so marked. May it please be given an
17 exhibit number.
18 THE REGISTRAR: Yes, Your Honours. This document becomes
19 Exhibit P2773 marked for identification.
20 JUDGE MOLOTO: Thank you.
21 MR. SAXON: Could we please see 65 ter 9587.
22 Q. And, General, this will be the document that you referred to in
23 footnote 9 of your report. General Melvin, this document is titled
24 "Army Doctrine Publication Land
25 published this?
1 A. This document was published by the British army's General Staff.
2 Q. Did you right this document?
3 A. I wrote parts of it, and I was the editor responsible for its
4 design and final publication.
5 MR. SAXON: Can we turn, please, to section 609 which starts on
6 page 5 in the English version, page 8 in the B/C/S version.
7 Q. We see a subheading called "Decision-Making, Leadership and
8 Control." If you could focus your attention, please, to section, for
9 now, just section 609.
10 MR. SAXON: And if we could, please, in the English version move
11 to the next page, please, page 6.
12 Q. And at the top of page 6 in the English version in that same
13 section we see the world "control" in bold letters. Do you see that?
14 A. Yes, I do.
15 Q. Why did you select this section and sections I believe 607, 611
16 as source material for your report?
17 A. I did so because I wanted to elaborate on the nature of command
18 and demonstrate the interrelationship between the functions or
19 constituent elements of that have command: decision-making, leadership
20 and control. And it was natural for me to refer back to doctrinal
21 material with which I was very familiar because I had written an earlier
22 version of this in "ADP Volume 2 Command" in 1984, published in 1985, and
23 I returned to that material ten years later, edited it, and produced a
24 new condensed version which you see here in chapter 6 of
25 "ADP Land
1 JUDGE MOLOTO: So you author this Chapter 6?
2 THE WITNESS: I authored the chapter 6 of "ADP Land Operations"
3 in entirety.
4 JUDGE MOLOTO: Thank you. Just for interest sake, who authored
5 the previous document, the NATO document that you referred to at
6 footnote 8 of your report?
7 THE WITNESS: That would be difficult to find one author,
8 Your Honour. The NATO doctrine writing process depends on a system of a
9 nation being appointed custodian - and that's the NATO term used,
10 custodian - of a document. As far as I can recall, the custodian for
11 allied joint operations is the United Kingdom, and the responsibility for
12 that now rests with a department of our joint structures. But it's
13 written very much more in a collective basis, and I cannot give you the
14 name of the individuals concerned in that writing. I don't know, sir.
15 JUDGE MOLOTO: Given that the custodian nation was Great Britain,
16 is it -- is there by any chance that you may have contributed to its
18 THE WITNESS: In the past, and I'm talking about in the period
19 2002 to 2004, I certainly commented on drafts of this doctrine. And I
20 think it's fair to say that part of the allied joint doctrine does bear a
21 very close resemblance to what I've written, particularly in its
22 description of mission command. But I've not written the NATO doctrine,
23 I've commended on drafts, and I believe, and have good reason to believe
24 that those who have written the NATO doctrine have read what I and my
25 colleagues have written on a national basis.
1 JUDGE MOLOTO: Thank you so much.
2 Yes, Mr. Saxon.
3 MR. SAXON:
4 Q. General Melvin, in section 609 that word "control" is bolded. Is
5 control a passive process, exercise of control?
6 A. No, very much is an active process. It requires not just a
7 matter of receiving reports and returns, active measures have to be
8 taken. And as I've previously stated, a commander and his staff have got
9 to take active steps to make sure they keep abreast of the operational
10 situation. Staff officers will often, on behalf of a commander, inquire
11 of subordinate units and formations as to their operational posture and
12 as senior commanders whether on training or on operations are required,
13 in order to exercise their duty, to visit and keep abreast of the
14 activities of their subordinate formations. So control is very much an
15 active matter and not a passive one.
16 Q. Very well.
17 MR. SAXON: Your Honour, I would ask that 65 ter 9587 be marked
18 for identification, please.
19 JUDGE MOLOTO: It is so marked. May it please be given an
20 exhibit number.
21 THE REGISTRAR: Yes, Your Honours. This document becomes
22 Exhibit P2774 marked for identification.
23 JUDGE MOLOTO: Thank you so much. Mr. Saxon, would that be a
24 convenient point?
25 MR. SAXON: If it's convenient for you, Your Honour, yes, it
1 would be.
2 JUDGE MOLOTO: Thank you so much.
3 Sorry, we are going to have to take an early break because of
4 other commitments, and we'll come back. I guess we'll, for safety sake,
5 the break was supposed to come at quarter past, we'll come back at
6 quarter to 6.00. Court adjourned.
7 --- Recess taken at 4.55 p.m.
8 --- On resuming at 5.44 p.m.
9 JUDGE MOLOTO: Mr. Saxon.
10 MR. SAXON: Can we please show the witness what is 65 ter 9586.
11 Q. General Melvin, this will be the document that you refer to at
12 footnote 11 of your report, page 7. Can you tell us, General, what this
13 document is, please?
14 A. "Army Doctrine Publication, Volume 2, Command" was the second in
15 a series of new army doctrine publications written in the early to
16 mid-1990s. "Command," as the number indicates, was the second of these
17 volumes, the first being "Operations." And I was the principal author of
18 this publication, which I wrote in 1994 and it was published in 1995.
19 MR. SAXON: Can we please go to page 3 in the English version,
20 page 3 in the B/C/S version.
21 Q. General Melvin, we see a subtitle here "The Role of the
22 Commander," and then below that we see another subheading "Creating the
23 Command Climate." Can you tell us, please, what is the command climate
24 and why is it important?
25 A. In civilian terms, the command climate could be loosely ascribed
1 as the working environment. It's the environment in which a commander
2 and staff within a headquarters operate, and more generally across a
3 force it indicates the environment or atmosphere between various levels
4 of command and between various commanders. That's what is meant by the
5 command climate.
6 Q. And why is this concept important?
7 A. The command climate is important because at the end of the day
8 command has to be exercised through individuals. The command climate or
9 working environment reflects an understanding that personal
10 relationships, behaviour, command style, personality are all very
11 important. This is valid, I believe, in all walks of life, but it's
12 especially so under the stress and strain of military conditions.
13 MR. SAXON: Your Honour, could this exhibit please be marked for
15 JUDGE MOLOTO: It is so marked. May it please be given an
16 exhibit number.
17 THE REGISTRAR: Yes, Your Honours. This document becomes
18 Exhibit P2775 marked for identification. Thank you.
19 JUDGE MOLOTO: Thank you.
20 MR. SAXON: If we could show, please, 65 ter 9592.
21 Q. General, this is the document that you refer to at notes 18 to 21
22 of your report. General, can you explain what this document is, please?
23 A. This document, as its title clearly indicates, is the NATO
24 glossary of terms and definitions. It's importance is, as I've indicated
25 earlier, in that it spells out, as a lexicon, definitions of important
1 military terms that are acquired in order to affect a common
2 understanding across the alliance, and as the two primary noted languages
3 are English and French, the glossary is so laid out in this manner.
4 MR. SAXON: Can we turn, please, to page 3 in the English version
5 and page 3 in the B/C/S version. And if we could focus on the bottom
6 half of the page in the English version, please.
7 Q. General Melvin, in the right-hand column in the lower half of the
8 page we see the phrase "full command." Did you use this in your report?
9 A. Yes, I did, and I laid that out in the section titled "Full
10 Command," which we've referred to earlier on page 13.
11 Q. And are there other definitions contained in this NATO document
12 that you used as well in your report?
13 A. Yes, indeed. I drew and quoted not only the definition of full
14 command, but I quoted the definitions of operational command and
15 operational control, also on page 13 of my report. And also from the
16 very same glossary, I dealt -- I quoted "tactical command" and "tactical
17 control" which are reflected on page 14 of my report.
18 Q. And just so the record is clear, General Melvin, what is the
19 difference between operational control and tactical control?
20 A. The difference between operational control and tactical control
21 is, as the definition and the key word of the definition of tactical
22 control, it really relates to local direction movement, et cetera. It
23 has less power authority than operational control. Tactical control
24 really only gives the Superior Commander the authority to coordinate and
25 marshal forces, typically it's used for movement. It can be used, as the
1 name suggests, in a more wider tactical or manoeuvre sense. But it is a
2 lesser command state than operational control.
3 Q. And perhaps, actually, my question should be more precise. The
4 terms "operational" and "tactical," can you describe the difference then
5 between the two?
6 A. I'll have to provide a slightly extended answer to this question
7 because it is important to understand that the terms operational and
8 tactical here are used in a slightly different way than the terms
9 operational and tactical are used when being ascribed as to a level of
11 Let me try and explain what I mean by levels of war, because I
12 did not spell those out in my report. Certainly within NATO doctrine and
14 tactical, operational and strategic. Tactical control and tactical
15 command do relate to the tactical level more or less. The difficulty is,
16 and this is just a difficulty of both doctrine and practice, operational
17 command and operational control are not specific to the operational
18 level, although on first reading you might assume them to be.
19 Operational command and operational control are used rightly and
20 frequently at the tactical level. This is just a problem of the NATO
21 language and the English language that operational is used for several --
22 has several meanings.
23 I hope that answers your question satisfactorily.
24 JUDGE MOLOTO: It doesn't to me, Major-General, I'm sorry. When
25 you say tactical control is used at tactical level, it's almost saying to
1 me that technical means technical, and I don't understand. What I'm
2 saying is if you are defining a word and in your definition you use the
3 very word, then I don't get it.
4 THE WITNESS: With respect, Your Honour, perhaps you misheard me.
5 I deliberately used the word tactical. I did not use the word technical,
6 that has another meaning.
7 JUDGE MOLOTO: Tactical. I'm talking tactical too. If I said
8 technical, I am sorry, I meant to say tactical.
9 THE WITNESS: Thank you, Your Honour.
10 JUDGE MOLOTO: But what I am saying is -- let me give you an
11 example. You say at page 59, line 15:
12 "Tactical control and tactical command do relate to the tactical
13 level more or less."
14 THE WITNESS: That is correct. Because the -- but with respect,
15 Your Honour, let me try to elaborate on this because this is very
16 complicated business and it's difficult even for those who are using the
17 terms regularly.
18 The difficulties -- we've got the term tactical being used in
19 slightly different senses, and certainly that is the case in operational.
20 Operational is being used -- can be used in the military in at least two
21 ways. It can define a level of war, such as the operational level of
22 war, or, as is here the case, it can be used more widely. The -- in
23 terms of operational command or operational control.
24 I reiterate, and I use my words very carefully here, the terms
25 operational command and operational control are not restricted to either
1 the operational or the tactical level. It is quite correct within the
2 military terminology to apply the term operational command or operational
3 control solely at the tactical level.
4 Do you wish me to elaborate further, Your Honour?
5 JUDGE MOLOTO: You don't have to. That doesn't mean I understand
6 you. Probably I'm slow on the uptake. My problem is the question to you
7 was, What is the distinction between the words tactical and operational?
8 And you explain, as I understand you, tactical as applying at the
9 tactical level.
10 THE WITNESS: Correct.
11 JUDGE MOLOTO: And for me whether it's the first tactical or the
12 second tactical which is in the level, I still don't understand what the
13 difference is between the word tactical and operational as used in this
15 THE WITNESS: The -- the difficulty, Your Honour, is that the
16 word operational command -- I correct myself, the command state,
17 operational command and operational control are not confined to the
18 operational level of war.
19 JUDGE MOLOTO: Yeah, but what are they? And I understand what
20 they are not confined to, but what is operational command?
21 THE WITNESS: The operational command as a command state is that
22 which I've defined and quoted word for word on page 13. That's what
23 operational command is.
24 JUDGE MOLOTO: Okay.
25 THE WITNESS: Would it help, Your Honour, if I clarified to the
1 Court the distinction between the tactical, operational, and strategic
2 levels? I'm prepared to do that, though it's not contained in my report.
3 JUDGE MOLOTO: I don't know. Now, if you are going to strategy,
4 you are probably going to confuse us even more. Let me just say for my
5 purposes it's fine. Let me hand you back to Mr. Saxon.
6 MR. SAXON: Thank you, Your Honour, perhaps I could assist.
7 Q. Very briefly, General Melvin, you used the phrase tactical level.
8 Very briefly, what does that mean?
9 A. The tactical level is that level of war where actions are planned
10 and conducted at the lowest levels, the actions in the land environment
11 of anything from a platoon maybe up to a battalion or even brigade level.
12 But that will depend on the context of that particular operation.
13 Q. Thank you. And the term operational level that you refer to,
14 what does that mean?
15 A. The operational level is an intermediate level between the
16 tactical and strategic that refers to the higher level planning and
17 conduct of campaigns and major operations.
18 MR. SAXON: Thank you very much. Your Honour, I would ask that
19 65 ter 9592 be marked for identification.
20 JUDGE MOLOTO: It is so marked. May it please be given an
21 exhibit number.
22 THE REGISTRAR: Your Honours, this document becomes Exhibit P2776
23 marked for identification. Thank you.
24 JUDGE MOLOTO: Thank you so much.
25 MR. SAXON: Can we, please, show the witness 65 ter 9593.
1 Q. General, this will be the document that you referred to at
2 footnote 22 of your report. What is this document, General Melvin,
4 A. This is the "United Kingdom Ministry of Defence's Manual of
5 Military Law," which is a document that goes back a great deal and has
6 been amended continuously. And what I've quoted here is the most
7 up-to-date version.
8 MR. SAXON: Can we turn, please, to page 5 in the English version
9 and page 3 in the B/C/S version, please.
10 Q. And we see section 69 there, and what was it or what is it in
11 section 69 that is significant for your report?
12 A. What I wanted to do here was to demonstrate that the notion of
13 good order and military discipline had legal force, that it was codified
14 in an act and provides part of the foundation of a military law and
15 military discipline, and one that is quoted regularly to remind
16 individuals that a good order and military discipline is an essential
17 part of an effective and efficient military force. So it's just an
18 example because the terminology within it was close to some of the
19 terminology particularly in terms of discipline which you posed in your
21 MR. SAXON: Your Honour, could this exhibit be marked for
22 identification, please.
23 JUDGE MOLOTO: It is so marked. May it please be given an
24 exhibit number.
25 THE REGISTRAR: Yes, Your Honours. This document becomes
1 Exhibit P2777. Thank you.
2 JUDGE MOLOTO: Marked for identification.
3 THE REGISTRAR: Marked for identification.
4 JUDGE MOLOTO: Thank you so much.
5 MR. SAXON: Your Honour, at this time I have no further questions
6 for the witness.
7 JUDGE MOLOTO: Thank you so much.
8 Before I hand you over to the Defence, Major-General, just one
9 little question: In your experience, does -- has it ever happened that
10 withholding of salaries or promotions or pensions being used in armies as
11 a means of command and control -- as a means of implementing command and
13 THE WITNESS: Your Honour, to my knowledge, not directly.
14 However, they, as we've discussed earlier, the sanction, particularly in
15 the -- to the effect that a promotion would be stayed when a serious
16 offence has been committed or is alleged to have been committed, I think,
17 does have some force within the disciplinary system of an armed force.
18 What it does ensure is that notwithstanding an individual being selected
19 for promotion, it doesn't give him or her any freedoms. He or her
20 remains -- he or she remains subject to continuing good, ordinary
21 military discipline, good behaviour, and good military efficiency. So
22 only as far as I understand your question, Your Honour, I see it as an
23 indirect role.
24 JUDGE MOLOTO: Yeah. The reason I ask is precisely because of
25 this very last exhibit that we have seen which prescribes a term of
1 imprisonment as a sanction for breach of any law, and I don't see any
2 reference to withholding of the benefits that I've talked about. And, in
3 fact, I would imagine that it is very seldom that an officer would be up
4 for discipline at the same time as he is up for promotion.
5 THE WITNESS: I agree.
6 JUDGE MOLOTO: So at the time of disciplining, you are not
7 entertaining promotion at that stage, you are entertaining the crime that
8 he has committed and you want to discipline him for that.
9 THE WITNESS: I fully agree, Your Honour. I fully agree.
10 JUDGE MOLOTO: And does it ever happen that then the court
11 marshal would then say, Because of her behaviour that is reprehensible
12 and which is illegal, you are not going to be promoted in the future. Or
13 is that an issue that gets considered when promotion comes and not at the
14 time of discipline?
15 THE WITNESS: I think in all cases the disciplinary issue would
16 always take precedence. I think the issue of any -- as I've said, any
17 question of promotion would be stayed during any investigation. And I
18 think it is fair to say, Your Honour, as I think you yourself have
19 indicated that the disciplinary process would take its path and,
20 therefore, the question of promotion would not apply.
21 JUDGE MOLOTO: But let me try to put my question one more time.
22 My question really is: Has it ever happened that, as a form of
23 punishment at the time of disciplining, an officer is told that in fact
24 your right to promotion is now being withdrawn, so don't even hope for a
25 promotion in the next couple of months or so?
1 THE WITNESS: Yes, it's certainly within the British military
2 system, a sanction, one of the sanctions that could be applied to an
3 individual is a loss of seniority and the individual could be held to
4 marked time and his promotion could be delayed.
5 JUDGE MOLOTO: Can you show it to us in this exhibit that has
6 just been admitted into evidence?
7 THE WITNESS: I dont' -- Your Honour, I do not believe that issue
8 is raised or detailed in the exhibit.
9 JUDGE MOLOTO: But that exhibit deals with punishment for
11 THE WITNESS: Indeed. But it's only one of many examples of
12 punishment for wrong-doing. It doesn't, with respect, specify the full
13 legal process which I've indicated which could include a sanction,
14 disciplinary sanction, being taken which has the effect, as you've
15 indicated, of delaying or nullifying a promotion. That can happen.
16 JUDGE MOLOTO: That can happen. Has it happened?
17 THE WITNESS: Yes, to my knowledge, disciplinary or
18 administrative action can happen, has happened, where individual's
19 promotion has been either delayed or stopped.
20 JUDGE MOLOTO: Do I understand you, sir, to be may saying that
21 the court marshals in Britain
22 in the law?
23 THE WITNESS: Not at all. Those -- any punishments imposed in a
24 court marshal is fully within the law.
25 JUDGE MOLOTO: Sure.
1 THE WITNESS: I have only --
2 JUDGE MOLOTO: But the punishments seem to be qualified in that
4 THE WITNESS: Yes, it is.
5 JUDGE MOLOTO: And I'm asking if there is any qualification of
6 that kind of punishment in that manual.
7 THE WITNESS: Your Honour, I'm not an expert on the manual of
8 military law. What I wanted to do here, as I said, was to give an
9 example. I would need to research that issue further to give you a
10 comprehensive answer. I cannot give you in this court a full exposition
11 of the British legal process and the sanctions imposed. All I can tell
12 you is to my certain knowledge that the sanctions taken are legal and
13 those sanctions can include a postponement or delay in -- have the effect
14 of postponing or cancelling promotion.
15 JUDGE MOLOTO: But you have no authority for that proposition?
16 THE WITNESS: I have no authority insofar as I have not quoted
17 that authority in my report.
18 JUDGE MOLOTO: Okay. Fair enough. And you can't think of one as
19 you sit there?
20 THE WITNESS: Well, I know because I'm -- one of the areas in
21 which I deal with is -- have dealt with and we -- we distinguish in the
22 British military between disciplinary action and administrative action,
23 and it can be where an individual who may not have gone to -- the weight
24 of evidence may not be sufficient for a court marshal can be held under
25 administrative action and one of the sanctions which can be applied under
1 administrative action is a reprimand or a severe reprimand which will
2 have the effect of delaying an individual's promotion. That reprimand or
3 severe reprimand is also a sanction that could be awarded by a court
5 JUDGE MOLOTO: Is it possible for you, sir, to research this
6 further and submit to the Court your authority?
7 THE WITNESS: Yes, I will have to take further advice on that,
8 but if so directed I will endeavour to do my best to supply supplementary
10 JUDGE MOLOTO: You are so directed.
11 THE WITNESS: Thank you.
12 JUDGE MOLOTO: Thank you. Counsel.
13 Cross-examination by Mr. Guy-Smith:
14 Q. Often times, when dealing with matters of military, one hears the
15 phrase "a fog of war," which I believe is something that a gentleman by
16 the name of Clausewitz discussed rather extensively with regard to
17 military command and military behaviour. Would you agree?
18 A. Yes, sir. A fog of war is quoted and described by
19 Carl van Clausewitz in his work "On War."
20 Q. And with regard to the issue of fog of war, obviously --
21 JUDGE MOLOTO: Yes, Mr. Saxon.
22 MR. SAXON: I'm very sorry to interrupt, but what I think is
23 happening is that General Melvin is trying to take note of the
24 Trial Chamber's directive, and I'm wondering whether he might have a
25 moment to do that before the questions continue. So he doesn't get mixed
2 MR. GUY-SMITH: Absolutely. If that's what's going on, I do
4 JUDGE MOLOTO: I thought he was writing "fog of war." Okay.
5 MR. GUY-SMITH: I thought he was too. I thought he was writing
6 down what I was asking him, but I'll wait to see.
7 THE WITNESS: Thank you, Your Honour. Could I be provided one
8 minute to complete my note on your direction. Thank you.
9 JUDGE MOLOTO: You are welcome.
10 THE WITNESS: Thank you, Your Honour. I think I've made
11 sufficient note on your direction and am available to answer the
12 counsel's question.
13 JUDGE MOLOTO: Thank you very much, Major-General.
14 Yes, Mr. Guy-Smith.
15 MR. GUY-SMITH:
16 Q. I take it that you were mindful of the question that I asked you
17 while you were writing and don't need to elaborate any further with
18 regard to that question; is that correct?
19 A. I hope I've answered it.
20 Q. Excellent. With regard to the underlying issues contained within
21 that description, the fog of war, one of the matters that I believe not
22 only Clausewitz but since certainly that time military theoreticians and
23 practitioners have been concerned about is the clarity of language with
24 regard to orders in the first instance; correct?
25 A. Yes, I believe I've already elaborated on that, the need for a
1 common understanding and the need for a common military lexicon as
2 evidenced by the requirement for a NATO or national glossary of
4 Q. Independent of the issue of NATO glossary of definitions, it's
5 something which is of consistent importance within the military; correct?
6 A. That is correct.
7 Q. Good. Now, with regard to the need for this clarity of language
8 and specificity of understanding, in large measure, the need for such
9 clarity is so that there aren't mistakes being made at any level within
10 the military command either during peace or during war, to the extent
11 that that could be achieved; correct?
12 A. That is correct.
13 Q. And with regard to the report that you've drafted and the
14 analysis that you underwent in considering the questions asked as well as
15 your testimony here today, I take it you've paid similar attention to
16 detail and clarity of definition of words and concepts; correct?
17 A. I hope that is the case.
18 Q. One of the questions that was asked of you by Mr. Saxon was with
19 regard to section 1.5 in which you were asked what input on factual
20 matters you had received from others, and your response was that you had
21 received some input with regard to legal phraseology; correct?
22 A. That is correct.
23 Q. Now, am I to understand that a factual matter here is a matter of
24 legal phraseology, that you were using those terms interchangeably? Just
25 so I'm clear about the terminology used. Legal phraseology would be
1 definition a concept perhaps, not a fact, which is -- I'm trying to
2 understand just for the moment?
3 A. I'm not following, counsel, your question.
4 Q. Let me put it to you in other terms. Which -- which factual
5 matters with regards specifically to legal phraseology did you receive
6 from others?
7 A. I will need to refer to my report in an attempt to give you an
8 answer on that.
9 Q. Thank you. If you could do so, please.
10 A. Yes, I'm in a position now to give you a specific example where I
11 received advice from a member of the Ministry of Defence's legal
13 Q. Excellent. Where would that be, sir?
14 A. That is on page 19.
15 Q. Thank you. What legal advice --
16 A. And I was advised, and this was inserted at the request of one of
17 the legal officers that I should stress, and I quoted the advice, it is
18 the boxed important note near the top of the -- my report page 19.
19 JUDGE MOLOTO: May I just interrupt you a little bit,
20 Major-General. Could you sit slightly back away from the microphone.
21 Apparently there are some other noises that get through to the
22 interpreters or somebody else in here. Yeah, that's fine. I think
23 that's a reasonable distance.
24 MR. GUY-SMITH: You also might be able to reduce the volume.
25 That might be of some help as well.
1 Q. You were -- I take it you were suggesting that where it says a
2 box important note that is the legal phraseology that you were eluding to
3 as being a factual matter that you received from someone else; correct?
4 A. I was stating that this was advice I had been given by a legal
5 officer, and he advised me to include that note.
6 Q. My question is, that is what you were referring to with regard to
7 section 1.5, which is "I can confirm that I received some input on
8 factual matters from others," so that is the legal phraseology that you
9 are referring to, since that's how you termed it?
10 A. Indeed. That is one example that I can immediately draw the
11 Court's attention to where I received advice from others.
12 Q. Now, just to be clear - because what we are trying to do is be
13 quite specific with our language - advice may be factual or otherwise, so
14 you're use now of the term "advice" as it relates to factual matters. My
15 question to you now, sir, is: Are you equating advice with factual
16 matters? Just so I'm clear about the terminology that you are using,
18 A. I'm equating advice and input. My use in paragraph 1.5 some
19 input I could have alternatively used the word some advice.
20 Q. Okay. And with regard to either of those terms, either advice or
21 input, the important note that you've given us as an example that it must
22 be stressed that individual members of a national contingent at all times
23 remain subject to the military law of their own troop contributing nation
24 and to international law is the fact that you are referring to; correct?
25 That's a factual matter in your estimation?
1 A. I think you are trying to, with respect, trying to trip me up
2 here. What I'm --
3 Q. No, I'm not trying to trip you up at all, sir. I'm trying to
4 understand the language that you've used.
5 A. I'm -- I'm being very careful here to reiterate that this
6 terminology, this phraseology on page 19 is an example of the advice I
7 was given.
8 Q. Sure.
9 JUDGE MOLOTO: You see, when you look at 1.5, sir, you're saying
10 that the advice you were given was on factual matters. And the question
11 that's being put to you is, Is the statement in the box a fact or not a
12 fact? Is it a factual matter or is it a legal postulation?
13 THE WITNESS: I don't think I'm qualified to differentiate so
14 precisely between a legal postulation and a fact. All I can say is I
15 took that advice in good faith. I cannot neither confirm nor deny
16 whether you -- whether it is a fact or otherwise. I took it as a piece
17 of advice. I used that example to assist the Court in good faith.
18 MR. GUY-SMITH:
19 Q. Just so we are very clear, no one is doubting your good faith,
20 sir. It is merely an attempt to understand what the language is that you
21 have he a used in your report to make sure it's of benefit and assistance
22 to the Chamber. Nothing more than that. So I want you to rest assured
23 that I believe and I'm sure that all of us here do believe that the
24 report written is a report that's written in good faith.
25 A. Well, I'm also trying to establish and try to help the Court
1 understand that what I meant here - and, of course, in reflection one can
2 always review one's words - is that I was responsible for the final
3 wording of the report and the analysis contained in that report. I drew
4 advice. I may have given you a bad example of that advice, but I was
5 also advised, for example, to include some NATO definitions. Those NATO
6 definitions are that -- they are definitions, and I've extracted them. I
7 think that is a factual matter.
8 Q. Very well. Now, there's been a term which has been bandied about
9 in our conversation, certainly not our conversation but the conversation
10 you've had today, and that is the term "modern army." And I'd like you,
11 if you could, to please define what a modern army is for the Chamber.
12 A. First of all, I think I would just need to refer to one of the
13 questions, if I may.
14 Q. I'm sorry, sir, I'm not asking you to refer to a question, I'm
15 asking you to refer to a definition of a modern army. Excuse me. And if
16 you could define for us what modern army is because --
17 JUDGE MOLOTO: Yes, Mr. Saxon.
18 MR. SAXON: Your Honour, it seems entirely appropriate that if
19 the witness needs to refer to a portion of his report to answer a
20 question, that he be allowed to do so. He certainly was allowed to do
21 that on direct examination.
22 JUDGE MOLOTO: Mr. Guy-Smith.
23 MR. GUY-SMITH: Submitted.
24 JUDGE MOLOTO: Thank you.
25 THE WITNESS: I'm now ready to answer the question as put.
1 MR. GUY-SMITH:
2 Q. I attend to your answer.
3 A. I -- well, first of all I'd like to draw the Court's -- to draw
4 the attention that I don't believe in my report I've used the term
5 "modern army." I referred to modern nation states. What I tried to do
6 here in my report was to distinguish between the historic example and
7 today's contemporary example. Modern army, I don't think can be easily
8 defined in a few words. I will attempt to do so to assist the Court.
9 It's not defined doctrinally anyway, but I will attempt to give you a
10 concise answer.
11 A modern army is a army that uses modern, current, up-to-date
12 equipment, doctrine, training methods, takes into account recent lessons
13 from operations, keeps itself up to date, and addresses the challenges of
14 today. I.e., it is an army fit for today's conditions.
15 MR. GUY-SMITH:
16 Q. How would you distinguish, for example, the army fighting in
18 are familiar with - the Army of the United Kingdom? Are all three of
19 those modern armies - using your definition - those are armies that -- my
20 question is: Do all of those armies fit within the definition that you
21 have given us, or is there some distinct as between the three of them?
22 JUDGE MOLOTO: Mr. Saxon.
23 MR. SAXON: The question refers to the army fighting in
25 MR. GUY-SMITH: Mr. Gregor Guy-Smith is referring to what is
1 called commonly the Taliban.
2 JUDGE MOLOTO: Thank you for the clarification.
3 THE WITNESS: Yes, I'm happy to answer that question. The notion
4 of modern army does not imply any similarity in terms of approach. It
5 can be an organisation such as the Taliban can use, in my knowledge and
6 experience, certain modern equipments, modern technologies. We are in a
7 difficult area here because we are talking about a state of modernity and
8 also talking about the symmetry of armed forces. One army's modernity
9 can be counter-matched by quite different type of forces' modernity as
10 well. I can elaborate further, if you wish.
11 MR. GUY-SMITH:
12 Q. Well, let me see if I understand what you are saying then and
13 then if I don't, I will be more than happy to have the elaboration. The
14 basic premise of a modern army as I understand what you've just told us
15 is it is an army fit for today's conditions? Is that a fair statement?
16 A. That is correct.
17 Q. Okay. And would you agree with me that one of the challenges in
18 today's military response is that there are a variety of symmetrical and,
19 if I could, asymmetrical approaches to war that are quite distinct from
20 that which we saw up to perhaps the Korean war? And once again, here is
21 a place where I'm not a historian of war and I, of course, I bow to your
23 A. Well, I think, counsel, you've picked up what I was trying to
24 establish, that one force's modernity can be matched in a different
25 manner. And as you say quite correctly, and reflected my terminology,
1 the forces don't have to be symmetric. And what we are saying today in
2 contemporary conflict, and largely that which we see in Afghanistan, is
3 an asymmetric conflict where the strengths of the western modern warfare
4 are being counter-matched by techniques such improvised explosive devices
5 which are being used in asymmetric manner by the Taliban.
6 However, it is a common misunderstanding, with respect, to
7 believe this is entirely a modern phenomenon. Asymmetric warfare is as
8 old as the Roman Empire. The Second World War, for example, experienced
9 asymmetric warfare, bipartisan, and resistant movements. So warfare has
10 always had a blend of symmetric and asymmetric approaches. The emphasis
11 is that which has changed the character of war.
12 JUDGE MOLOTO: And what has changed the character of war?
13 THE WITNESS: The character of war, Your Honour, is largely
14 defined by the balance between symmetric and asymmetric approaches. The
15 character of modern war, what we are experiencing today in Afghanistan
16 is largely defined by the crass distinction between a western force and
17 its asymmetric opponents. Of the Second World War, though it did include
18 asymmetric approaches as I've indicated by partisan and resistance
19 forces, the main character of that war was characterised by the
20 conventional and symmetric approaches of both army, navy, and air forces.
21 MR. GUY-SMITH:
22 Q. With that as a working definition of a modern army, we will move
23 on. Now, in your report as well as in your testimony, you have indicated
24 your approach is a detailed and obviously an accurate approach. And I
25 would like to take a moment here with regard to the language that I find
1 on page 13 of your report, and specifically when you were speaking about
2 operational command, or op com. Okay?
3 When you were testifying earlier with regard to this, you quoted
4 on the definition of op com. I just want to make sure once again we are
5 very clear about the language that we are using. You said, this is page
6 18, line 14, with regard to the question asked by Mr. Saxon, operational
7 command, your answer is:
8 "When we move out of the national realm into the multinational
9 realm certainly within NATO coordination operations involving NATO
10 forces, the most frequent command states used are those of operational
11 command and operational control. Taking the operational command first,
12 to answer your question, is, I quote:"
13 And I take it by that what you mean is that this will be a
14 verbatim recitation of the definition.
15 "... I quote: 'The authority granted to a commander to assign
16 missions or tasks subordinate commanders" -- and then there's a word
17 that's missing here, it says "talks retain or delegate operational or
18 tactical control as the commander deems necessary."
19 Then it says -- and there's an end quote.
20 Now, is that a full verbatim quote of what you are referring to
21 when you guided us to the definition of op com in the operational command
22 definitions which I believe now has been marked as -- excuse me, I'll get
23 it for you. MFI'd as -- I believe it's MFI'd 2775. Is that correct?
24 A. Your Honours, I cannot answer that question because I don't have
25 in my memory the exhibit number.
1 Q. Okay. Well, I'm referring to -- I'm referring to, I'm referring
2 to the NATO glossary of terms and definitions. And it's 2776. So it
3 wouldn't have been of any help to you in any event. But it's the NATO
4 term glossary.
5 A. Yes, the glossary. Well, I think I can now assist you. I can
6 confirm to the Court that what I stated on the subparagraph (b) on
7 page 13 is a verbatim quote from the NATO glossary, AAP6, 2009 on page
8 203, which I referred to at footnote 20 in my report.
9 Q. Now, here, and I really don't mean to punch a horse at all, but
10 you go on to say:
11 "I further quote this is the important distinction between
12 operational command and full command, it doesn't include responsibility
13 for administration or discipline."
14 And as I read the definition from whence you read, it doesn't
15 make any mention of discipline in the quote, now, does it?
16 A. No, it doesn't mention -- neither does the definition on full
17 command, but, as I think we've tried to previously establish, that
18 discipline comes under the term administration.
19 Q. With regard to the issue of quoting, because once again I started
20 my conversation with you in terms of detailed accurate clarifying
21 information, and the importance of the word being used precisely.
22 When I look at this definition, it does say "note" it does not
23 include responsibility for administration. And had you stopped there,
24 sir, I would not be asking you the question that I'm asking you right
25 now. But the definition that you've given us, including those extra
1 words, is not the definition that we have here, is it? And go back and
2 you can look at your glossary.
3 A. I've done that, and I can clarify that the word "or discipline"
4 does not appear either on page 13 of my report, nor does it appear in the
6 Q. I understand that. But it did appear in your testimony, sir, and
7 that's what I'm referring to. "And I further quote ..." that's what the
8 transcript says. "I further quote." And that's what I'm asking you
10 A. If I used ill-advisedly the term "I further quote" with relation
11 to discipline, then I apologise to the Court for so doing.
12 Q. Thank you.
13 A. But I wanted to make it very clear the distinction on
14 administration, and the Court had already asked me questions as to
15 whether discipline was included under administration. So I was only
16 trying to assist the Court.
17 Q. I see. Now, one of the words that you have used throughout your
18 testimony is the word "normally." And I take it that normally has some
19 specific significance with regard to the analysis that you have given us?
20 JUDGE MOLOTO: Mr. Saxon.
21 MR. SAXON: Can we have, at least, an example where that's been
23 JUDGE MOLOTO: Mr. Guy-Smith.
24 MR. GUY-SMITH: Yes, I'd be more than happy to.
25 Q. At page 18, line 23:
1 "And I further quote: 'This important distinction between
2 operational command and full command, it doesn't include responsibility
3 normally for administration or discipline.'"
4 JUDGE MOLOTO: Line?
5 MR. GUY-SMITH: That was line 23. Page 19, line 11:
6 "Q. Would operational control then include the authority and
7 responsibility to discipline or not?
8 "A. Not normally. The disciplinary chain is normally retained
9 through a full command or national command."
10 I can continue, but I believe that if counsel were to go through
11 a word search on the transcript, he would find numerous examples where
12 the witness has used the word normally in his testimony.
13 Q. My question to you is with regard to the use of the word
14 normally. Does that have some particular significance with regard to the
15 report that you have penned for us here so we can have some understanding
16 of that?
17 A. Are you taking issue with my use of the word normally?
18 Q. No, not at all. I'm trying to appreciate what it means. I'm not
19 taking issue with your use of the word normally at all.
20 A. Well, I've used the word normally both in my report and in my
21 testimony because, as the Court will have noted, that my report is based
22 both on doctrine and on my understanding borne of experience. And either
23 doctrine nor experience can account for all eventualities. Doctrine, by
24 definition, provides a framework of understanding, and as an experienced
25 doctrine writer, I will often have to caveat what I write and say by
1 using the word normally because one can never exclude the possibility of
2 variation to the standard approach.
3 Q. Well, perhaps I'm asking a subtler question, and I don't mean to
4 offend whatsoever. But as I understand your report, your report centres
5 around the following realities, which is, an examination and
6 understanding of the British military system and an examination and an
7 understanding of NATO. And it is these two institutions and the
8 considerations, rules, and regulations that have been promulgated by
9 these institutions from whence you have drawn your conclusions as well as
10 given us the information that you've given us; is that fair?
11 A. That is correct. As I've stated, I've drawn on NATO national
12 doctrine and my experience within the British armed forces and within
14 Q. And with regard to the issue of "normally," what I'm driving at
15 is that you are referring to a condition, that being the British army,
16 which has operated in a particular fashion and under a particular, not
17 only military, but political environment for some considerable period of
18 time; correct?
19 A. That is correct.
20 Q. And NATO is a combination, as I understand it, and I may well be
21 wrong, but it's a combination of nation states that have come together,
22 each of them having operated in a particular fashion, both of a political
23 as well as military environment of some stability, would that be correct?
24 A. That is correct.
25 Q. Okay. And with regard to the issue of your report, so we are
1 clear, and I think you've alerted us to this right at the very beginning,
2 you said at 2.6, limitation on conclusions, and I want to make sure that
3 I read it properly, so you may want to take a look at it to make sure
4 that I don't offend the accuracy of the words written.
5 "I offer only the most general of conclusions noting that I am
6 not qualified to provide within this expert witness report detailed
7 observations let alone conclusions on the specifics of the case against
8 Momcilo Perisic."
9 Is that -- did I read that accurately?
10 A. That is correct, and I stand by what I've written there.
11 Q. I understand that. So would it be fair to say - and when I ask
12 you this question, I mean absolutely no disrespect whatsoever - but it
13 would be fair to say that the report as written is of a generic nature
14 with regard to the issues of command, control, and the questions that
15 have been posed to you?
16 A. That is correct.
17 Q. Okay. One of the -- one of the terms that you used in your
18 testimony and you used it -- at one point you said you were talking about
19 "his own nation," and I believe you were referring to the question of
20 somebody's own nation when you were dealing with what was incumbent upon
21 the senior national officer who had been sent from country A to
22 country B. First of all before we go any further, do you recall that
23 testimony? By that I'm referring to the language "those of his own
25 A. I cannot recall the exact context in which I used the term "his
1 own nation."
2 Q. Okay. Let's see if we can work together here just so we
3 understand what the terminology is that you were using. When you were
4 talking about the senior national officer in the first instance, and you
5 used the term "of his own nation," I take it that what you were referring
6 to is that that senior national officer was a national or a citizen of
7 the sending nation?
8 A. Yes. Yes.
9 Q. Okay. And he was not, for purposes of our understanding, a
10 mercenary which you have defined actually in your report?
11 A. Not at all.
12 Q. Okay. And so we are clear with regard to mercenary, a mercenary
13 is a person who is neither a national of a party to the conflict nor a
14 resident of the territory controlled by party to the conflict. That's
15 one of a series of definitions, I'm -- please, take a look. This, I
16 believe, is your footnote 22. No, that's not correct. I don't mean
17 to --
18 A. I think you mean footnote 16, counsel?
19 Q. Yes, yes, I do. Thank you so much.
20 A. I included this to make it clear that I was referring to the
21 legitimate secondment of individuals from nation A to nation B and not --
22 and therefore not anything that could be confused with mercenary, and
23 therefore to give substance to that point, I included a reference to the
24 international convention. That's all I did, to clarify.
25 Q. And with regard to your -- with regard to your clarification in
1 that regard, I note that the international convention is a document that
2 I believe was promulgated in 2001; correct?
3 A. That is the -- the quote or the reference I used. That's the one
4 I found. I'm not aware of any other convention.
5 Q. Okay. However - and please do correct me if I'm wrong - the
6 principle, the underlying principle therein, that of a mercenary is
7 neither a national of a party to the conflict nor a resident of the
8 territory controlled by a party to the conflict, is something which has
9 been consistently understood and recognised for some number of years, and
10 by that I mean eons, not decades?
11 A. Counsel, I'm afraid I really can't speculate on that. I think
12 that's a fair point, but I'm not an expert on this issue on mercenaries.
13 Q. Okay. But with regard to the issue of those -- with regard to
14 the issue of "his nation," I take it that was an important component part
15 in your analysis of where the individuals from the sending nation owed
16 allegiance to, and by that I mean they were citizens and owed allegiance
17 to that sending nation?
18 A. Correct. And remember, this was purely put in to give some
19 context to the secondment. Because that was the questioned asked. It
20 was not about mercenaries, it was asked about seconding of individuals.
21 Q. With regard to the issue, since you continue to, and I think
22 rightfully so, relate the issue of secondment to the question posed,
23 within the context of secondment is a principle and underlying
24 understanding that the individual or individuals seconded are citizens of
25 a particular nation, that being the sending nation?
1 A. Absolutely.
2 Q. Got it. Thank you. That's really quite helpful because I was
3 somewhat confused there. Now, you also mentioned that there were some
4 important issues that existed when dealing with multinational armies or,
5 is the word -- is the phrase "task forces" admissible, or is that taking
6 somewhere we don't want to go?
7 A. That's, sir, I think, too specific.
8 Q. Okay. Then let's just deal with multinational armies with regard
9 to multinational armies --
10 A. Can I interrupt.
11 Q. Please do.
12 A. More precisely, bearing in mind our discussions on language, you
13 should be talking about multinational forces.
14 Q. Excellent, thank you. I appreciate the correction.
15 Multinational forces. We both get the chance to write something down.
16 With regard to the issue of multinational forces, one of the
17 things that you pointed out was the importance of not breaking up the
19 A. Yes, and I used the specific example under the command state of
20 operational control that does not empower the multinational commander to
21 break up a subordinated unit of another nation.
22 Q. Okay. So put in terms -- put in some concrete terms, just for
23 the moment, looking at the example that you'd given us with regard to
24 Jackson and Clark, Clark
25 A. He was the supreme allied command Europe at the time.
1 Q. SACEUR?
2 A. SACEUR.
3 Q. SACEUR. He would not have been able to have broken up any of the
4 British units, that was not an authority that he would have had?
5 A. That is correct, he did not have that authority. Though I used
6 that term "example" to show the limitations of orders, I cannot recall
7 precisely the command's names pertaining, but as far as I can recall, the
8 national contingents at the time were under the operational control of
9 headquarters Allied Rapid Reaction Corps, that is as far as I can recall.
10 I visited Kosovo 10 years ago.
11 Q. Oh. With regard to the issue of authority, his authority derived
12 out of, and I think you've explained this to us, agreements that had
13 occurred before he obtained his position, and that was agreements between
14 a number of nation states who were part of NATO?
15 A. Yes, because again as far as I recall there would have been
16 appropriate NATO orders giving substance to the deployment and employment
17 of the multinational force which in this case was the
18 Allied Rapid Reaction Corps.
19 Q. And I think one last question, and I think we'll have to end for
20 the evening, which is: With regard to the agreements, and now speaking
21 specifically about the Jackson/Clark situation that you alluded to in
22 your report, each nation, specifically the UK, had prior to entering in
23 into this joint -- sorry, this multinational force mission?
24 A. A multinational force conducting a mission, a multinational
25 mission. But the substantive point, a multinational force.
1 Q. Multinational force that the chain of command as far as Jackson
2 was concerned ultimately rested within the British military?
3 A. Yes, because Jackson
4 was under -- as far as I can recall, under the operational control of
6 MR. GUY-SMITH: Thank you so much, and I will see you tomorrow.
7 JUDGE MOLOTO: Major-General, we are not done with you yet.
8 You'll have to come back tomorrow and -- but before I say when, I need to
9 say to you that between now and when you come back tomorrow, you are not
10 allowed to discuss the case with anybody until you are excused from
11 further testifying.
12 The Court stands adjourned to tomorrow afternoon in
13 quarter past 2 in Courtroom III, not Courtroom II. Court adjourned.
14 --- Whereupon the hearing adjourned at 7.00 p.m.
15 to be reconvened on Tuesday, the day of 27th day
16 of October, 2009, at 2.15 p.m.