Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9414

 1                           Tuesday, 27 October 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.15 p.m.

 5             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 6     courtroom.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

 9     everyone in and around the courtroom.

10             This is case number IT-04-81-T, the Prosecutor versus

11     Momcilo Perisic.  Thank you.

12             JUDGE MOLOTO:  Thank you so much.

13             Could we have appearances for today, please, starting with the

14     Prosecution.

15             MR. SAXON:  Good afternoon, Your Honours.  Dan Saxon,

16     Barney Thomas, and Carmela Javier for the Prosecution.

17             JUDGE MOLOTO:  Thank you very much, Mr. Saxon.

18             And for the Defence.

19             MR. GUY-SMITH:  Good afternoon.  Chad Mair, Tina Drolec,

20     Novak Lukic and Gregor Guy-Smith on behalf of General Perisic.

21             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

22             You can call the witness in.

23                           [The witness takes the stand]

24                      WITNESS:  ROBERT ADAM MUNGO SIMPSON MELVIN [Resumed]

25             JUDGE MOLOTO:  Good afternoon, Major General.

Page 9415

 1             THE WITNESS:  Good afternoon, Your Honour.

 2             JUDGE MOLOTO:  You may be seated.

 3             Just to remind you, Major General, that you are still bound by

 4     the declaration you made at the beginning of your testimony, to tell the

 5     truth, the whole truth, and nothing else but the truth.

 6             THE WITNESS:  I understand that, Your Honour.

 7             THE COURT:  Thank you so much.

 8             Mr. Guy-Smith.

 9             MR. GUY-SMITH:  Thank you.

10             JUDGE MOLOTO:  You're welcome.

11                           Cross-examination by Mr. Guy-Smith:  [Continued]

12        Q.   Before I ask you any questions, sir, I just want to make sure

13     that I can be heard by the various translators, because this is a room in

14     which I sometimes have troubles with the microphones.

15             MR. GUY-SMITH:  If I can get some affirmation with regard to

16     people being able to hear me, I would appreciate it.

17             JUDGE MOLOTO:  I can hear you, Mr. Guy-Smith.

18             MR. GUY-SMITH:  Very good.  Thank you very much, Your Honour.

19        Q.   We left our conversation last night discussing that Jackson was

20     under national command.  Do you recall that, sir?

21        A.   Yes, I do.

22        Q.   And with regard to that particular issue, I'd like to expand it

23     for a moment, if I could, and discuss with you, if I understand it

24     properly, the principle of unity of command.  And I take it that's a

25     principle you're aware of; correct?

Page 9416

 1        A.   I'm aware of that, as I am equally aware of the associated

 2     principle of unity of effort.

 3        Q.   Okay.  Well, you have me there.  And with regard to the issue of

 4     unity of command, could you kindly explain to the Chamber what that

 5     principle is?

 6        A.   Unity of command is a principle that serves to provide coherence

 7     to either a national or multinational force.  It involves, as far as

 8     possible, the use of a common doctrine, an approach to operations, and,

 9     more particularly, a clear chain of -- chain of command.

10        Q.   Okay.  And with regard to the clear chain of command, part of

11     what we were discussing yesterday was that the clear chain of command for

12     Jackson ultimately rested within the British military?

13        A.   Ultimately, it did.

14        Q.   You've mentioned another notion, and I don't want to leave you

15     alone with that, and since it's of some importance to you.  What is the

16     associated principle of unity?

17        A.   The associated principle of unity of effort is to ensure that the

18     activities or actions of a joint, combined, or multinational force are

19     directed towards a common -- a common aim or a common objective, unity of

20     effort.  So it's associated to unity of command.

21        Q.   I understood.  Now, I want to see if I can understand, for

22     purposes of our discussion, a couple of general ideas, and one of them

23     has to do with the notion of misinformation as a tool of war.

24             So my first question to you is -- my first question to you is:

25     With regard to --

Page 9417

 1             JUDGE MOLOTO:  Mr. Saxon.

 2             MR. SAXON:  Your Honour, this -- General Melvin is here appearing

 3     as an expert, and my concern is that my colleague is now going to an area

 4     that is beyond his expertise.

 5             MR. GUY-SMITH:  I believe I'll be able to tie it up with a

 6     question or two, and I don't believe I'm going beyond his expertise at

 7     all.

 8             JUDGE MOLOTO:  In what way, Mr. Saxon, is Mr. Guy-Smith going

 9     beyond the expertise of the expert?

10             MR. SAXON:  Well, as far as I can recall, nothing in the four

11     corners of General Melvin's report or the questions that were asked of

12     him relate to misinformation or the use of misinformation.

13             JUDGE MOLOTO:  That is true, but can that then come under the

14     rubric of lack of expertise in this topic or does it come under any other

15     rubric?

16             MR. SAXON:  Well --

17             JUDGE MOLOTO:  Is your ground of objection, then, appropriate?

18             MR. SAXON:  It is -- well, I will take your point.  I would say

19     it does -- it may fall under the ground of lack of expertise, and it

20     certainly falls beyond the scope of General Melvin's report and what he

21     was asked to do.  He was not asked to comment about issues of

22     misinformation.

23             JUDGE MOLOTO:  Is the basis of your objection relevance or the

24     lack of expertise in the question asked?  That's what I'm asking you.

25             MR. SAXON:  Both, Your Honour.

Page 9418

 1             JUDGE MOLOTO:  Are you saying that a military expert would not

 2     have knowledge of whether or not misinformation does get used as a tool

 3     of war or not?

 4             MR. SAXON:  Your Honour, I'm going to withdraw that objection.

 5     I'm hearing you.  Thank you.

 6             JUDGE MOLOTO:  Thank you so much, Mr. Saxon.

 7             MR. GUY-SMITH:

 8        Q.   Do you have my question in mind, sir?

 9        A.   I'm waiting for your question.

10             JUDGE MOLOTO:  The question, sir, was:  Does misinformation get

11     used as a tool of war?  Or something to that effect.

12             THE WITNESS:  Thank you, Your Honour.

13             The more common military term which I'm familiar with is the term

14     "deception."  And under that heading of "deception," which seeks --

15     "deception" seeks to confuse one's opponent, to deny him an insight into

16     your plans, and to put him off balance, misinformation could - and I

17     believe does - belong under the general heading of "deception."

18        Q.   Using your term, then, "deception," which I'm happy to adopt,

19     when a commander receives information from sources other than through his

20     own chain of command, is the question of whether or not the information

21     that is received, one that falls into this general rubric of deception,

22     one of the considerations which is taken into account when analysing the

23     information received?

24        A.   In an estimate of the situation, a commander and staff at any

25     headquarters, certainly at a headquarters -- a higher-formation

Page 9419

 1     headquarters, will review the information they receive particularly with

 2     a view -- the information they've been receiving, particularly their

 3     assessment of enemy strengths, dispositions, and assessed intentions, may

 4     be designed to mislead and, therefore, would come under "deception."

 5             JUDGE MOLOTO:  If I may just go back to a question that

 6     Mr. Guy-Smith asked you earlier, when he still used the word

 7     "misinformation."  Do you agree with that question that he raised, that

 8     then deception, to use your term, is used as a tool of war?

 9             THE WITNESS:  Yes, it is.  It has --

10             JUDGE MOLOTO:  Thank you.

11             MR. GUY-SMITH:

12        Q.   I'm noting your answer with regard to the question of deception

13     and the kinds of areas.  I take it that it goes beyond issues of enemy

14     strength, dispositions, and assessed intentions.

15        A.   I was only giving you some examples of --

16        Q.   Sure.

17        A.   -- those areas in which intelligence staffs would advise their

18     commander to look at.  This is part of the normal military estimate

19     process.  And to clarify, in that process, one, through training and

20     experience, looks out for potential areas where a deception might be

21     occurring.

22        Q.   Understood.  And with regard to one of the areas where a

23     deception might be occurring, and you've mentioned on a couple of

24     occasions in your testimony that we've moved into, I think it would be

25     fair to say, a new technological age where information is moving much

Page 9420

 1     more quickly, you used, for example, e-mails, is what you'd referred to.

 2        A.   Yes, that - if I recall correctly - was in the context in

 3     clarifying a point raised by the Judge over the powers of discipline from

 4     a -- as far as I can recall from my testimony.

 5        Q.   Right.  It was the Commonwealth [overlapping speaker] --

 6        A.   Yes, that is correct.

 7        Q.   But I'm taking it in a slightly different area for the moment to

 8     see whether this is accurate or not, which is:  One of -- one of the

 9     areas or one of the features of war has become, in a way, different from

10     days gone by because of technology is news reporting?

11        A.   I think news reporting has been a very important aspect of

12     warfare, certainly since the Crimean War.

13        Q.   Okay.  Well, once again, you know much better than I do in this

14     regard.  And with regard to the issue of news reporting, this is also an

15     area where forces or a commander would have to engage in an analysis with

16     regard to the question of deception as to whether or not the information

17     that is being promulgated through the news is accurate information or

18     not.  Is that a fair statement?

19        A.   That is a very fair statement.  Certainly, in my own experience,

20     in any military operation, or planning of operation, one has to take into

21     account the perception -- public perception, that which is reported in

22     the news.

23        Q.   And with regard to the whole issue, when trying to understand the

24     accuracy of information that's received, I take it that one of the things

25     that a commander would do, and I'm asking, once again, is -- would rely

Page 9421

 1     upon the intelligence information that was promulgated by their own

 2     forces?

 3        A.   Yes, that would be a very important source of information, but

 4     not the only one.

 5        Q.   Okay, understood.  And when there's a contradiction because of

 6     this issue of deception, I'm sure there's no hard-and-fast rule as to --

 7     as to how determinations are made, but it would be more likely than not

 8     that in such a situation a commander would rely on the intelligence

 9     received from his own sources internally, that information, would it not?

10     I'm asking as a general proposition.

11        A.   As a general proposition, and I'm not an expert on intelligence,

12     but I would -- from my own recollection, it's very important, in

13     assessing information, intelligence, to rely on as many -- or to use and

14     assess as many sources as possible.  But within that, clearly, as I think

15     you, yourself, have indicated, one would apply a particular emphasis on

16     one's own intelligence sources.

17        Q.   And when dealing with, for example, and once again going back

18     to -- well, no, we won't go back to that.  When dealing with a decision,

19     in the multinational force context, whether or not to red-card or not,

20     and I'll ask you for a definition of red-carding in a second, whether or

21     not to red-card or not, the reliance would be on one's own forces in

22     determining whether or not to take a particular action or not?

23             And before you answer the question, you should probably define

24     "red-card," because I put a term in that I don't think we've discussed,

25     but I read in your report which is --

Page 9422

 1        A.   Would it assist you if I tried to clarify what I meant by

 2     red-carding first?

 3        Q.   Sure.

 4        A.   "Red-carding" is a non-doctrinal term that is used widely within

 5     the military domain.  It tries to express the eventuality or potential

 6     eventuality that a national contingent commander, in certain

 7     circumstances, might feel that he cannot carry out the orders of a

 8     multinational commander.  There are potentially, you know, three

 9     circumstances -- at least three circumstances in which that could happen.

10     Firstly, he could, inverted commas, "red-card," inverted commas, a task

11     or omission, if that went beyond the command state, which we discussed

12     yesterday.

13        Q.   Understood.

14        A.   The second area where a potential red-card could be applied is

15     over rules of engagement.  And the third area is that the -- which is

16     linked to the command state, the national contingent commander could

17     argue that what he's being asked to do goes beyond the mission given to

18     him and the intent of either the multinational commander or the intent of

19     the troop-contributing nation or the national command chain.

20             JUDGE MOLOTO:  Or couldn't he also red-card an illegal -- an

21     unlawful instruction?

22             THE WITNESS:  That's what I was going to come on to, Your Honour.

23     Those were what I call the doctrinal areas.  And as I stated in my

24     report, that ultimately, if he felt what he was going to be asked to do

25     was illegal, he, on that basis, could say, I'm not prepared to carry out

Page 9423

 1     that task.

 2             MR. GUY-SMITH:

 3        Q.   I take it, then, that the question that I asked you with regard

 4     to red-carding was a bit off, really, then.

 5        A.   No.  I think it was useful to clarify, for the Court, the term

 6     "red-carding," but I'm not quite sure I've quite understood the link

 7     between your first question and the red-carding.

 8        Q.   There's the issue of -- let me withdraw the question, because

 9     I think in your explanation of red-carding, you've taken us -- you've

10     taken us to an explanation that is of help and does -- and does, in

11     another way, clarify what I was thinking about, without going into it any

12     further.

13             We've talked about one aspect of a tool of war, which is

14     deception.  And another aspect of operating within the military is the

15     importance of secrecy; correct?

16        A.   That is correct.  And as more normally termed within the

17     military, operation security.

18        Q.   Okay.  And when talking about military secrecy or, as you've put

19     it, operation security, now that is a feature that exists in every

20     standing army in the world, I would think.  Is that --

21        A.   Certainly within my experience, all armed forces will try to

22     protect the security of their operations and plans, and hence a great

23     deal of documentation will be classified.

24        Q.   And with regard to the -- with regard to the issue of the

25     information being classified, using, for example, what we discussed here,

Page 9424

 1     which is multinational forces, even in a situation where you have forces

 2     that are working together, they independently have operational security

 3     issues which are not shared with each other; correct?

 4        A.   In principle, you're -- you are correct, but I think it would

 5     help if I elaborate that within an alliance or coalition, normally you

 6     see two types of classification being used.  One will be that

 7     classification which will be used more generally within the alliance or

 8     the coalition; i.e., it is an agreed classification state that is used by

 9     all the members of that alliance or coalition, and that will be the

10     general norm.  That will be the default setting.  If it weren't the

11     default setting, that operation or command structure would not function

12     effectively.  But as you've indicated, within that command structure

13     there could be particular classifications, particularly in the

14     intelligence arena, where one or more nations might decide to retain a

15     certain amount of their information and not disclose it to all of their

16     allies or coalition partners.

17        Q.   Is there any particular standard that's used for that or is that

18     something that happens on an ad hoc basis, and by that I mean what is

19     deemed to be practical at the time by that particular army and those

20     particular commanders?

21        A.   Well, there are -- to my experience and knowledge, there are --

22     within the NATO alliance, you'll see classifications states such as "NATO

23     unclassified" or "NATO restricted" or "NATO secret," but in -- within

24     that general alliance framework, I have seen a documentation marked, for

25     example, for US or US and UK eyes only.  And I imagine other countries

Page 9425

 1     have similar arrangements, but I'm not an expert in this area.

 2        Q.   But that would not be an uncommon feature?

 3        A.   I don't think it is.

 4        Q.   In your experience, have you come across a situation where a

 5     single army broke up into several armies, using the same officers, rules,

 6     regulations and laws, both fighting against and with each other?

 7        A.   I can only offer two broad recent historical examples, but may

 8     not meet all the conditions of your question.  I'm aware, through

 9     personal direct experience, and this is maybe where you are heading with

10     the thrust of the question, that the Army of the former Republic of

11     Yugoslavia split into various elements, but another example would be on

12     the break-up of the Soviet Union, elements of the resulting states, and I

13     know with more experience of the Ukraine, for a long time followed quite

14     a lot of the doctrine and procedures of the former Soviet Union, but over

15     time has evolved its own structures and doctrine and has gone its own

16     independent way.  But it doesn't meet the condition.  They've never been

17     engaged in any but friendly relations with each other.

18        Q.   Okay.  And you mentioned, in that, the matter of over time, and

19     I think it would be fair to say - and you would agree - that an

20     institution being built is something that does not happen in a day or

21     even a week, but rather it's something that takes a period of time to

22     develop in its own fullness.

23        A.   Yes.  I can venture another historical example which may be

24     equally familiar.  On the break-up of the British Empire, the armed

25     forces of the sovereign states of the British Commonwealth, for a very

Page 9426

 1     long time, followed similar procedures and doctrine, and one can remark

 2     today that quite large elements of the Indian and Pakistani Army's

 3     structures, doctrine and procedures, are similar to that which the

 4     British Army had a good number of years ago.  But, again, this is outside

 5     my report of command, but I'm relying here on my general knowledge and

 6     experience of military affairs.

 7        Q.   And in regard to that last comment that you have made, those

 8     armies, and by that I'm referring to the Indian and Pakistani Army, those

 9     are completely independent armies from the British?

10        A.   Absolutely.

11        Q.   I see.

12        A.   Absolutely.

13             MR. GUY-SMITH:  If I could have a moment.

14             JUDGE MOLOTO:  You do.

15                           [Defence counsel confer]

16             MR. GUY-SMITH:

17        Q.   Looking at the conclusions in your report, sir, and I'm referring

18     to section 4.1, you state:

19             "Although this report refers both to national British and

20     multinational NATO doctrine, the principles are broadly the same.

21     Indeed, it is stated British doctrine that NATO doctrine applies unless

22     separate and specific national direction and guidance is required."

23        A.   That is correct, and similar terminology to that is often

24     appended in NATO publications issued within Britain to say -- and it is

25     standard NATO procedure that nations, if they have any reservations to

Page 9427

 1     any part of that doctrine, states -- states specifically so.

 2        Q.   And you go on to be really -- in a very specific manner, to

 3     identify the parameters of your report, which is something that we talked

 4     about a bit yesterday also when we were referring to I believe it's

 5     paragraph 2.6, which I will not reiterate at this point in time, but here

 6     you say at 4.2:

 7             "No attempt has been made to compare UK or NATO doctrine with

 8     that of the FRY or Serbia."

 9             Correct?

10        A.   That is absolutely correct.

11        Q.   And the report that we have before us, as you've told us, is a

12     report that deals with an understanding of general principles, mainly

13     defined through NATO glossary, and is generic in nature?

14        A.   That is correct.

15             MR. GUY-SMITH:  Thank you very much, sir.

16             JUDGE MOLOTO:  I guess you're signifying that you have no further

17     questions, Mr. Guy-Smith.

18             Just before I hand you over to counsel for the Prosecution to

19     re-examine, Major General, you've just referred to the Army of the former

20     SFRY when asked about an army that breaks up into pieces and then fight

21     amongst one another, against one another, and with each other.  What I

22     would like to ask you is:  Against the background of your report that

23     deals mainly with multinational forces, how would you characterise the

24     resulting armies that emerged out of the break-up of the SFRY Army in the

25     milieu they found themselves in the period of 1992 to 1995?

Page 9428

 1             THE WITNESS:  With respect, Your Honour, that's a very big

 2     question.  Would you please give me a minute or so to get my thoughts

 3     together to give the Court a good answer to that question?

 4             JUDGE MOLOTO:  Please do.  Take as much time as you need.  I just

 5     want an umbrella kind of characterisation.

 6             THE WITNESS:  Your Honour, I think I'm prepared now to offer you

 7     an answer to your question, but first of all I would just, for the

 8     record, state I'm not an expert on this issue and, therefore, would

 9     caveat my answer which is based on my general military knowledge.

10             In answering your question, I would state the following:  The

11     Yugoslav National Army was, as its name suggests, a national army that

12     reflected in its composition of members of the various ethnic groups that

13     made together the former Republic of Yugoslavia.  On the break-up of the

14     former Republic of Yugoslavia and, hence, of the Yugoslav National Army,

15     the various resulting armies had at least a common tradition and one

16     based on historical developments from 1945 to 1991.

17             Therefore, it is reasonable to suppose that certain aspects of

18     doctrine could and were applied in a similar manner, but that's as far,

19     really, as I'm prepared to go at this stage, Your Honour.

20             JUDGE MOLOTO:  Just allow me to push you just a little.

21             Would you -- would you regard the emerging armies as a

22     multinational force, or how would you regard that?

23             THE WITNESS:  No, I certainly would not regard them as a

24     multinational force, because they were quite disparate forces.  They were

25     no longer operating under a unified command structure.  In fact, for much

Page 9429

 1     of the time, as I recall, those elements were engaged in combat against

 2     each other.

 3             JUDGE MOLOTO:  Given that answer that you have just given, to

 4     what extent would you say your report is or is not relevant to the

 5     situation?

 6             THE WITNESS:  With respect, Your Honour, I don't think it's fair

 7     to ask whether -- having been invited here, whether my report is relevant

 8     or not.  I don't think you can, with respect, sir, ask me to answer that

 9     question.

10             JUDGE MOLOTO:  Let me withdraw the question.  If I substituted

11     the word "applicable" for the word "relevant," would you go along with my

12     question?  To what extent is your report applicable to the situation that

13     pertained in the former Yugoslavia?

14             THE WITNESS:  Well, with respect, Your Honour, that would depend

15     on how -- how the Court wishes to use the information I've provided.

16     What I was asked to do was to provide answers to four questions, specific

17     questions, and in so doing I provided some context to that.  And through

18     my knowledge and experience, I gave some context to the medium of NATO

19     and national doctrine.

20             JUDGE MOLOTO:  Okay.

21             THE WITNESS:  I did not, if I may add - and as I've stated, and

22     both counsels, and you're aware of this - did not in my report to compare

23     and contrast, as it states, I think, paragraph 4.2, with the former

24     Yugoslav command-and-control principles.  Had I been asked to do that, I

25     would have done so.

Page 9430

 1             JUDGE MOLOTO:  Now, I understand that.  And I'm awfully sorry I

 2     used the word "relevant" earlier, and I see you take very strong

 3     exception to that to the extent it percolates into subsequent questions,

 4     and I just want to say I didn't mean to be unfair to you or be unkind to

 5     you or to ridicule you.

 6             THE WITNESS:  No offence is taken, Your Honour.

 7             JUDGE MOLOTO:  But what I really do want to understand is, yes,

 8     you were given questions to answer, you gave your answers to those

 9     questions within a context, and the context you provided was the context

10     of multinational forces.  You used NATO and the British Army, together

11     with the Gurkha and French armies and the foreign legions.  My only

12     question that I would really like to understand from you is:  Within that

13     context of multinational forces, do you see, and if you do, can you tell

14     us how, is -- how are your answers to the questions put to you applicable

15     to this situation, if you're able to help us?  If you're not able to

16     help, then you're not able to help.

17             THE WITNESS:  I'm here to assist the Court, so, Your Honour, I

18     will first of all stress I take no offence from your question --

19             JUDGE MOLOTO:  Thank you so much.

20             THE WITNESS:  -- and I will do my very best to answer all

21     question from the Court, and that's why I'm here.

22             I think there is two aspects, to answer your question.  First of

23     all is of direct applicability.  Had I been asked and had the time to

24     write a more comprehensive report, I could have done, and this

25     theoretically, written a much more detailed and lengthy report that would

Page 9431

 1     have, as I said, compared and contrasted a wider section of military

 2     doctrines and specifically would have, perhaps, looked at the details of

 3     the former Republic of Yugoslavia.  So that you may regard and I see that

 4     as a limitation.

 5             But there is a second approach where I believe my report does

 6     have a good degree of validity because it provides a standard.  It

 7     provides a standard through custom of usage being used by a large number

 8     of nations over many years, and when particularly one wants to explore

 9     the terms "command and control" and how multinational forces operate,

10     which was incumbent on me, I believe those were valid examples to use.

11             Let me try to bring that point to life in another way.  In terms

12     of experimentation, one normally applies -- has a standard test applying

13     based on known evidence so that one can compare and contrast this when

14     one's looking at new experimental methods.  I just try to make the point,

15     I don't think it's invalid to look at NATO command and control or at

16     British national doctrine when one's asked some questions about command

17     and control.  It is up to others and the Court to assess, not I, its

18     validity in relation to this present case.  I was acutely aware of that

19     fact and pointed out that limitation in my report, and specifically made

20     very clear those limitations which were clear to me on a normal

21     professional basis.

22             JUDGE MOLOTO:  Thank you very much.  I understand what you say,

23     and I just want to reassure you once again that there is no measure of

24     suggestion on my part that there is no validity in your report.  There is

25     absolute validity in it, and my only -- what I'm trying to do here, I'm

Page 9432

 1     trying to take lessons from your report to be able to use those lessons

 2     in the task that is placed before me.  And I appreciate that you

 3     mentioned the limitations in your report, but I'm asking you -- let me

 4     back off.

 5             I also appreciate that you didn't go into as much detail as you

 6     otherwise would have had you been asked to do, and I'm just asking you,

 7     as you stand there, in a sentence to tell us, given the apparent

 8     difference in context -- and let me tell you what I mean there.  When you

 9     talked about the multinational forces in your report, you talked about

10     forces that are cooperating.  You have mentioned that the forces in the

11     former Yugoslavia were not cooperating or were fighting amongst

12     themselves, and I'm saying:  Given those two different contexts, how

13     would you suggest to the Court it applies and uses your answers to the

14     questions in this situation, which seems to be so dissimilar, almost

15     contradictory, from the one that you describe in your report?  And if you

16     are able to help there, I would appreciate it.  If you are not, please

17     say you're not able to.

18             THE WITNESS:  No, I think, well, Your Honour, I'm prepared to, as

19     I say, answer all questions, again bearing in mind my general knowledge

20     and experience.

21             I believe that there are a great deal of aspects of my report

22     that have general validity.  For example, in the command model which I

23     described, though it may not be doctrinally defined in identical terms

24     across all armies, but by primary functions, I think it is reasonably

25     fair to propose that a commander has to make decisions, he has to lead

Page 9433

 1     and inspire his force, and he has to control his force, as we discussed

 2     yesterday.  So I think when it comes, in particular, to the control

 3     function, I believe the Court should be able to use the information I've

 4     proposed in my report and analyse the various actions which are being

 5     presented towards this case.  But I have no knowledge of the detail, but

 6     I suggest that one could use that, in particular, as a useful starting

 7     point, because I believe that applies to a national contingent or

 8     national force and is not particular to a multinational context which you

 9     are making the point is quite distinctive from the one that -- that which

10     pertained during the break-up and subsequent conflict with the former

11     Republic of Yugoslavia.

12             JUDGE MOLOTO:  I thank you very much, and once again your answers

13     are very much appreciated.  And I repeat, no offence was ever intended.

14             Mr. Saxon, any re-examination?

15             MR. SAXON:  Yes, Your Honour.  If I can take a moment to get the

16     podium, please.

17             JUDGE MOLOTO:  Take your time.

18                           Re-examination by Mr. Saxon:

19        Q.   General Melvin, I think to start I will focus on the discussion

20     that you just had with Judge Moloto.  And you told the Chamber that

21     the -- in your view, the emerging armies of the former Yugoslavia that

22     emerged following the break-up were not a multinational force; they were

23     quite a disparate force because they fought each other.  Do you recall

24     that?

25        A.   Yes.  At times, they were engaged in combat against each other.

Page 9434

 1        Q.   And, General Melvin, you're basing this comment on your general

 2     knowledge; is that right?

 3        A.   That is correct.

 4        Q.   You're not basing that comment on your specific knowledge of the

 5     specific facts of this case?

 6        A.   Not at all.

 7        Q.   And when you say that these forces fought each other, again from

 8     your general knowledge and recollection, which forces were fighting each

 9     other after the break-up?

10             MR. GUY-SMITH:  Excuse me.  I find myself in somewhat of an

11     awkward position because Mr. Saxon is engaged, I guess, in a redirect

12     that has taken into account your questions, Your Honour, as opposed to

13     dealing with my cross-examination, although I know obviously that

14     questions asked by the Chamber can generate questions from the parties.

15     However, in the manner that Mr. Saxon is presently questioning the

16     general, it seems that he is now engaged in impeaching his own witness,

17     and I'm not clear as to whether or not that is appropriate based either

18     on the questions that you have asked nor certainly on my direct

19     examination.

20             JUDGE MOLOTO:  I'm not aware of a prohibition of counsel asking

21     questions arising from the Judges' questions, even questions that were

22     asked while either the witness was testifying either in-chief or in

23     cross, because the Bench intervenes at any stage, and at any stage after

24     intervening, counsel is entitled to ask questions arising from those

25     questions.

Page 9435

 1             MR. GUY-SMITH:  Very well.  That's why I wanted --

 2             JUDGE MOLOTO:  I am also not under the impression that there is

 3     an attempt to impeach.  On the contrary, I see an attempt to clarify.

 4     But you and I are guessing here until the next or subsequent questions

 5     have been asked.  We will be able to say whether there was an impeachment

 6     or a clarification, but I seem to be seeing a clarification, rather than

 7     an impeachment.

 8             MR. GUY-SMITH:  Very well.  That's why when I started my remarks,

 9     I said I find myself in a somewhat of an awkward position.

10             JUDGE MOLOTO:  It was, in fact, a very awkward position,

11     Mr. Guy-Smith.

12             MR. GUY-SMITH:  And I thank you for your guidance.

13             JUDGE MOLOTO:  You're welcome.

14             MR. SAXON:  I'll repeat my question, General Melvin.

15        Q.   When you say that the forces that arose after the break-up of the

16     former Yugoslavia fought each other, to your knowledge and recollection,

17     which forces were fighting each other?

18        A.   I -- I recall, and as is stated in my curriculum vitae, I had a

19     short period of operational service in the -- in the Balkans in 1995 and

20     returned on a number of occasions to visit that operational theatre, and

21     also in Kosovo.  There were three principal parties to that conflict.

22     There were predominantly Serb-based forces, there were Bosniak

23     Muslim-based forces, and there were largely Croatian-based forces.  I do

24     not have precisely, as I once did, the defined names of those forces in

25     my head.  I have -- I think I have some of them in my head, but that's as

Page 9436

 1     far as I can recollect at this point in time, Your Honour.

 2        Q.   And, again, going back to your initial response to His Honour

 3     Judge Moloto that these were disparate forces because they fought each

 4     other, so the fact that one force fought against another force, is that

 5     for you an important criteria in determining whether emerging armies have

 6     a multinational character or not?

 7        A.   No.  I think, with respect, we're in danger of confusing

 8     ourselves here.  What I was -- what I was trying to -- to make clear to

 9     the Chamber was that on the break-up of the former Republic of

10     Yugoslavia, the various military elements split up according largely to

11     their ethnic divide.  They had a common tradition, had common doctrine,

12     and to a large extent had common -- had common weapons.  They were

13     disparate, first and foremost, because they were no longer under a

14     unified command structure of the Yugoslav national army.  That -- they

15     were never a multinational force because it was a unified national army.

16     The fact -- I was illustrating the point that they were no longer -- they

17     could not be regarded as a multinational force because they were fighting

18     each other.  And by -- I think by common and self-definition, you can't

19     have a multinational force fighting each other, I mean, because it's no

20     longer a multinational force, it's a force -- it is no longer that -- a

21     case.

22             But I don't think one can extend my point to provide a general

23     condition or general requirement for not being a multinational --

24     multinational force, the issue of fighting.  I think, with respect,

25     Counsel, you've taken -- taken my words a bit far.

Page 9437

 1        Q.   Then let me try to simplify things, if I can.  If emerging

 2     armies, by contrast, work together, support each other in common

 3     objectives, might that be one consideration in determining whether it's a

 4     multinational force or not?

 5        A.   If -- if they were working together to commonly agreed-to

 6     objectives, then some aspects of their actions and behaviour could be

 7     regarded that they would be acting in a multinational manner.  But,

 8     again, as I've said in my report, one needs to clarify the specific

 9     context, and within a coalition, as I think I've quoted in one of the --

10     the books I've used, there is a very wide spectrum of cooperation in a

11     multinational force.

12             One can have a very close cooperation, bound by law and rules and

13     regulations, such as NATO, or one can have a much looser, ad-hoc

14     coalition, where parties come together purely for very pragmatic reasons,

15     and that coalition can be very -- of short duration.  So, again, the time

16     factor can be relevant, but is not the only condition.

17        Q.   Thank you.  Moving on, General, to a different topic.  Today, in

18     response to a question from my colleague, Mr. Guy-Smith, you described a

19     concept called "unity of effort."  Do you recall that?

20        A.   Yes, I did.

21        Q.   And I hope I jotted down your definition correctly.  What I wrote

22     down was:

23             "Unity of effort is necessary to ensure that the actions of a

24     joint, combined, or multinational force are directed toward a common aim

25     or common objective."

Page 9438

 1             Have I caught the essence of your definition correctly?

 2        A.   Broadly.  It is -- what I've said I don't believe matches word

 3     for word the NATO lexicon, but if -- to assist you and the Court, I'm

 4     prepared to elaborate further.

 5        Q.   No.  General, is what I've just read back to you, is that a

 6     broadly accurate --

 7        A.   Broadly, broadly so, that is correct.

 8        Q.   Thank you.  My question, then, is:  Does unity of effort by

 9     parties to a multinational force require planning?

10        A.   As I say -- as I said in an earlier answer to the other counsel,

11     that unity of command and unity of effort go together, and unity of

12     effort does require a degree, and sometimes a very close degree, of

13     cooperation over planning.  Without cooperation, without combined

14     planning, it is highly unlikely that you will achieve a unity of effort.

15     One of the ways in which you achieve that unity of effort is through the

16     unity of command, so they are linked in that manner.

17        Q.   Very well.  Later on in -- during your cross-examination today,

18     you explained to my colleague that when assessing information -- when a

19     commander is assessing information, it is important to use as many

20     sources as possible, with a particular emphasis on intelligence sources.

21     Do you recall that discussion?

22        A.   I do.

23        Q.   And I know we've used this phrase, I guess, quite a bit

24     yesterday, "modern army."  For a commander of a modern army, would

25     international news reporting about events that the commander's forces are

Page 9439

 1     participating in, might that be a source of information for his or her

 2     use?

 3        A.   In a general sense, yes.

 4        Q.   And suppose that the commanding officer hears from either local

 5     news reports or international news reports that his forces are engaged in

 6     crime.  What duty would that commander have?

 7        A.   He would have a duty of -- of initiating an investigation to get

 8     to the facts of the matter.

 9        Q.   I'd like to direct our attentions to some discussion that you had

10     with Mr. Guy-Smith yesterday, General Melvin.  First of all, this is at

11     page 9406 of the transcript, lines 20 to 23, Mr. Guy-Smith had asked you

12     about your use of the word "normally," and this is what you said:

13             "I've used the word 'normally' both in my report and in my

14     testimony because, as the Court will have noted, that my report is based

15     both on doctrine and on my understanding borne of experience."

16             And then you say this:

17             "And either doctrine --" or at least this is what the transcript

18     says:

19             "And either doctrine nor experience can account for all

20     eventualities."

21             My question for you is:  Did you use the word "either" in that

22     last sentence?

23        A.   I'm just seeing it coming up on the screen now.  If I said

24     "either" there, either I spoke badly or it's been badly quoted.  I think

25     it is fair - and the Court will understand - that the sentence should be

Page 9440

 1     "neither doctrine, nor experience, can account for all eventualities."  I

 2     think this is either a simple slip of my tongue or a mistake in the

 3     transcript.

 4        Q.   Thank you.  And at page 9407 of the transcript, lines 3 to 13,

 5     and again in a discussion with Mr. Guy-Smith, you said that you drew your

 6     conclusions and information in your report from NATO national doctrine

 7     and your experience with the British armed forces and within NATO.  Do

 8     you recall that?

 9        A.   I do.

10        Q.   My question for you is:  To your knowledge, how many states

11     participate in NATO?

12        A.   As far as I can recall, 27.

13        Q.   Thank you.  At page 9409 of the transcript of yesterday, lines 20

14     through 23, in response to a question from Mr. Guy-Smith about

15     mercenaries and the definition of the term "mercenary" that you provide

16     in footnote 16 of your report, you said:

17             "I included this to make it clear that I was referring to the

18     legitimate secondment of individuals from Nation A to Nation B and not --

19     and, therefore, not anything that could be confused with mercenary."

20             Do you recall that?

21        A.   Yes, I do.

22        Q.   General, very simply, when you refer to the "legitimate

23     secondment of individuals" from the army of Nation A to Nation B, which

24     individuals are you talking about?

25        A.   I'm talking about here the secondees.  I'm talking about

Page 9441

 1     individuals that are posted or seconded from their home nation state to

 2     another state.  I had in particular mind when I wrote that passage,

 3     because I'm familiar with the example, of soldiers and officers of the

 4     British armed forces being seconded to the armed forces of the Sultan of

 5     Oman, as a good example.

 6        Q.   So what you were referring to when you refer to the legitimate

 7     secondment of individuals from the army of Nation A to Nation B would

 8     include soldiers and officers of the army of Nation A; is that correct?

 9        A.   That is correct.  Their secondment is authorised by their home

10     nation and contributing -- contributing nation.

11             MR. SAXON:  Can we please take a look at what has been marked for

12     identification P2772.

13        Q.   General, this is your report.

14             MR. SAXON:  And if we could turn to paragraph 3.1.6, please.

15     3.1.6 should be on page 11 in the English e-court version, and if we

16     could go to the same page in the B/C/S version, please, and if we go back

17     to page 10 in the B/C/S version.

18        Q.   Paragraph 3.1.6 introduces the subject of mercenaries, but the

19     first two sentences read thusly:

20             "The least formal method of cooperation is the recruiting of

21     individuals of one nation (and hence nationality) by another, which is

22     tolerated, if not encouraged, by the individual's sending nation.  Within

23     the British Army, for example, recruits comprise individuals across the

24     whole of Ireland, Nepal (the Gurkhas) and from the member states of the

25     Commonwealth."

Page 9442

 1             Have you been following me, General?

 2        A.   Yes, I have the text in front of me.

 3        Q.   General, must members of the army of a nation always be citizens

 4     of that nation?

 5        A.   Sorry, I don't quite follow your question.  What are you --

 6        Q.   Well, in this paragraph, you're talking about the British Army

 7     recruiting, amongst others, individuals across the whole of Ireland,

 8     people from Nepal, et cetera, and my question, then, is:  Must members of

 9     the army of a nation always be citizens of that nation?

10        A.   Not necessarily, but I would wish to draw your attention to the

11     whole area of citizenship.  But my experience, and I'm not legally

12     trained in this matter, is a very complex area, but I can inform the

13     Court that Gurkha soldiers, on retiring from the British Army, now have

14     rights of citizenship.

15        Q.   And, General, though, that means implied in your answer is that

16     those same Gurkha soldiers, while they're serving with the British Army,

17     are not necessarily citizens of the United Kingdom?

18        A.   They may not have relinquished their citizenship, as far as I

19     understand.  Again, this is a very complex area.

20        Q.   All right.  And going back to your testimony from yesterday about

21     the legitimate secondment, very simply, must the individuals seconded

22     from the army of Nation A to the army of Nation B always be citizens of

23     Nation A?

24        A.   And that's a very hypothetical question.  I broadly, broadly said

25     I would suggest the answer to that is, Yes, but I don't think I could

Page 9443

 1     exclude all -- all eventualities or other possibilities.

 2        Q.   Okay.  So it's possible that they might -- that individuals

 3     seconded from the army of Nation A to the army of Nation B might not be

 4     citizens of Nation A; it's possible?

 5        A.   Well, I think you'd have to have, in this case, two conditions --

 6        Q.   Can you just tell me, yes or no, is it possible?

 7             MR. GUY-SMITH:  I think he should be allowed to answer the

 8     question, Mr. Saxon.

 9             THE WITNESS:  With respect, it's not a simple yes-or-no answer

10     here.  The -- a number of conditions would have to be met.  For example,

11     if an individual had been recruited, let's say an individual from Nepal,

12     as a Gurkha, had been recruited into the British Army, so he is a

13     citizenship -- citizen still of Nepal, he's now in the British Army, and

14     let's say he puts himself forward and volunteers for a secondment post to

15     another State B.  Let's take Oman, for example.  So in that theoretical

16     example, you could have the condition you are describing, but I do not

17     know whether it's a practical example, I do not know whether it's ever

18     happened or not.

19             MR. SAXON:  All right.

20             JUDGE MOLOTO:  You are not privy to the arrangement between

21     Britain and Nepal on what Britain may or may not do with Nepalese

22     soldiers serving in the British Army?

23             THE WITNESS:  Not in -- not in great detail.  All I researched

24     for this report was the raw statistics.  I know in my own experience,

25     Your Honour, having dealt with it in my previous appointment, the

Page 9444

 1     stationing issues of Gurkha soldiers in Germany, for example, is a

 2     complicated issue, so I'm familiar with some aspects of this, but I --

 3     but, again, it is a complicated area which we have expert staffs dealing

 4     on these very complicated issues of citizenship and right of access into

 5     various countries, and, indeed, on any following-on issues of -- of

 6     secondment.

 7             JUDGE MOLOTO:  Thank you.  You may proceed, Mr. Saxon.

 8             MR. SAXON:  Thank you, Your Honour.

 9             I have no further -- excuse me.  I may have one further question.

10        Q.   Perhaps one final question for you, General.  You were talking

11     today, on cross-examination and then just a moment ago as well, about the

12     concept of unity of command and unity of effort.  Can you explain how the

13     concept of unity of command would apply to a seconded force where the

14     national commander of the sending state retains full command, but at the

15     same time the commander of the receiving state has operational command or

16     operational control?

17        A.   There is no general contradiction here.  The unity of command

18     within an alliance or coalition or multinational context is already

19     within that framework where it is understood that nations retain the full

20     command.  The unity of command applies as a general principle to provide

21     cohesion in the planning and conduct of operations, and it applies

22     generally across command states and rules of engagement, so it is a --

23     it's a principle.  If -- and it's laid out and explained in NATO doctrine

24     along those lines, and in fact it is quoted in one of the exhibits taken

25     into the court.

Page 9445

 1             MR. SAXON:  Thank you.

 2             Your Honours, I have no further questions.

 3             Thank you, General.

 4             THE WITNESS:  Thank you.

 5             JUDGE MOLOTO:  There are no further questions from the Bench.

 6             That brings us to the end of your testimony, Mr. -- I beg your

 7     pardon, Major General Melvin.  Thank you so much for taking the time off

 8     to come and testify before the Tribunal.  You are now excused.

 9             You may stand down, and please travel well back home.

10             THE WITNESS:  Thank you, Your Honour.  It's been an honour to be

11     here to assist the Court.

12             JUDGE MOLOTO:  Thank you so much.

13                           [The witness withdrew]

14             JUDGE MOLOTO:  Are you going to have any witness for this

15     afternoon, Mr. --

16             MR. SAXON:  Your Honour, before we discuss issues of witnesses,

17     we still have exhibits that have been marked for identification, and I

18     believe there will be some discussion.  Perhaps we should take the first

19     break now and then come back, and I believe the parties will have some

20     arguments to provide to the Trial Chamber.

21             JUDGE MOLOTO:  Okay.  We'll take a break and come back at 4.00.

22             Court adjourned.

23                           --- Recess taken at 3.31 p.m.

24                           --- On resuming at 4.01 p.m.

25             JUDGE MOLOTO:  Mr. Saxon.

Page 9446

 1             MR. SAXON:  Your Honour, at this time I would move for the

 2     admission of the following materials that have been marked for

 3     identification:  This is P2772, which is the expert report of

 4     General Melvin; P2773, the allied joint publication doctrine at footnotes

 5     8 and 10 of the report; P2774, the ADP land operations publication at

 6     footnotes 9 and 17 of the report; P2775, the British Army doctrine

 7     publication called "ADP, Volume 2, Command," at footnote 11 of the

 8     report; P2776, NATO document known as "AAP-6" referred to at footnotes 18

 9     to 21 of General Melvin's report; and P2777, the excerpt from the United

10     Kingdom Manual of Military Law referred to at footnote 22.

11             JUDGE MOLOTO:  Thank you, Mr. Saxon.

12             Mr. Guy-Smith.

13             MR. GUY-SMITH:  Yes.  We would object to the admission of the

14     report and the supporting documents to that report that have just been

15     listed by Mr. Saxon.

16             I'm not going to spend time going through the history of the

17     Prosecution's various rendering or submissions of experts before this

18     Chamber.  I'm sure the Chamber is well aware of that history and of the

19     varied individuals and reports that theoretically were going to be

20     involved with regard to this particular issue.  I would point out two

21     specific matters because I think they are of some importance.

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 9447

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7             And the importance there, obviously, being the warning back a

 8     number of years ago, over three years ago, that generic reports would not

 9     be availing.

10             On the 17th of September in this year, this Chamber issued its

11     decision with regard to the Prosecution's motion to substitute expert

12     witnesses, something that, as the Chamber's aware of, the Defence

13     resisted for the reasons that have previously been mentioned.  And of

14     importance, this Chamber said, at paragraph 7:

15             "The Trial Chamber notes that Major General Melvin's anticipated

16     evidence relates to the interrelationship between the VJ, VRS, and SVK,

17     and the accused's authority over members of these armies, key issues in

18     the present case.  The Trial Chamber is satisfied that this evidence is

19     prima facie relevant and of probative value."

20             The testimony that you have heard from Major General Melvin,

21     coupled with the remarks that he made in his report, are very clear.  In

22     paragraph 2.4, he says:

23             "The approach taken in this report when answering the four

24     questions are considered a general context of command rather than

25     specific.  In so doing, I provide some background doctrinal material on

Page 9448

 1     command drawn from the United Kingdom and NATO sources.  It is important

 2     to note that I make no attempt whatsoever to refer to the specific

 3     matters raised in the indictment of Colonel General Momcilo Perisic, nor

 4     do I try to 'get into his mind' (and his decision-making) in providing

 5     some form of commentary based on speculation on his understanding of his

 6     responsibilities, including his adoption of Yugoslav command-and-control

 7     doctrine procedures."

 8             THE INTERPRETER:  Microphone for the President.

 9             JUDGE MOLOTO:  I just said could I just interrupt you for a

10     while, and I have requested that we move into closed session for a

11     moment, please.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 9449

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

 5             THE REGISTRAR:  We're back in open session, Your Honours.

 6             JUDGE MOLOTO:  Thank you so much.

 7             MR. GUY-SMITH:  At paragraph 2.6 of his report, entitled

 8     "Limitation on Conclusions," the general states:

 9             "I offer only the most general of conclusions, noting that I am

10     not qualified to provide, within this expert witness report, detailed

11     observations, let alone conclusions, on the specifics of the case against

12     Momcilo Perisic."

13             And, of course, as we discussed late in his testimony today, in

14     his report he makes it very clear at section 4.2:

15             "No attempt has been made to compare UK or NATO doctrine with

16     that of the FRY or Serbia.  It has not been possible to research this

17     matter in sufficient detail within the time available to the author of

18     this expert report."

19             I would note one other matter because I think it's of some

20     importance with regard to a full and complete understanding of what the

21     report is based on.  At paragraph 1.3, in discussing his journey to

22     writing this report, he says, in the middle of the paragraph:

23             "Mr. Saxon agreed and sent me the next day (3 September 2009) a

24     revised list of four 'general' questions for answer by Monday,

25     21 September 2009, set out below in section 1.6 which would not, in his

Page 9450

 1     view, require a detailed examination of the documentation pertaining to

 2     the case.  I was encouraged, however, to read into this material handed

 3     over to me in the form of a CD-ROM, should I have time, after completing

 4     my expert report."

 5             So not only is it clear that the report is one which is general

 6     in nature, generic in nature, clearly in contradiction to an admonition

 7     given several years ago by this Chamber or the Chamber seized with the

 8     matter.  He has made it very clear in his report that he is neither

 9     qualified to deal with the specific issues that were germane to this

10     Chamber's decision of the 17th of September, and I believe that the

11     question and answers between, most specifically, the Chamber and the

12     gentleman pointed out the very difficulties that this report presents for

13     purposes of its introduction and its reliance, because there is virtually

14     no ability to apply it in any way or other than the most general of

15     senses.

16             And in that regard, it is, in our respectful submission, not

17     worthy of admission because, in large measure, it will not assist the

18     Chamber with regard to the issues that it identified specifically

19     concerning the relationship of the various identified military armies.

20     Once again, I include in the report -- when I object to the report, I

21     include the materials that were in support of that, because I look at the

22     entirety of this as being one package as opposed to parsed out

23     sequentially.

24             That is our submission.

25             JUDGE MOLOTO:  Just before you sit down, Mr. Guy-Smith, you make

Page 9451

 1     a very subtle concession at the end and you say -- give me time.  You

 2     say, at page 37, line 3 -- line 3, you say "other than the most general

 3     of senses."  Is it your submission that that most general of senses

 4     wouldn't be perhaps the extent to which it could be used?

 5             MR. GUY-SMITH:  It's always the difficulty in being, I think, as

 6     honest as possible and as candid as possible with regard to one's

 7     argument.  I can see, in a very general fashion, some limited potential.

 8     So with regard to your question, to answer your question directly --

 9             JUDGE MOLOTO:  I would appreciate it.

10             MR. GUY-SMITH:  -- because I know you want a direct answer --

11             JUDGE MOLOTO:  Indeed.

12             MR. GUY-SMITH:  -- my answer would be that there is a limited

13     value, in the theoretical sense.  We're dealing with it in an abstract

14     fashion.  But I rely upon and I fall back upon the guidance that the

15     Chamber gave in the first instance in its decision.

16             JUDGE MOLOTO:  I understand that.  The Chamber may have given its

17     guidance in the first instance, without the hindsight of the content of

18     the specific report, to be able to determine whether or not there is even

19     a general sense in which the report could be useful, and I'm saying if,

20     indeed, we concede that in that very limited general sense it could be

21     used, is this now a question of weight?  There may be very little weight

22     to attach.  I'm not suggesting there is or there isn't.  But just

23     following your argument and taking, for argument's sake, for the time

24     being that your argument is acceptable, then the weight that would be

25     given to the report would be to the extent of its helpfulness in that

Page 9452

 1     very general sense.

 2             MR. GUY-SMITH:  Well, dealing with it as a theoretical matter, I

 3     would agree with what you've said.  If we were only dealing with it as a

 4     theoretical matter and only as an abstract matter, then the answer would

 5     most definitely have to be, of necessity, yes.  The question of weight

 6     would come in, and obviously I would at that point say it has little if

 7     no weight whatsoever.  But I'm arguing actually more vigorously than that

 8     at this time, and the reason for that is because the man has told us, and

 9     with all due respect to what his knowledge may be, that he never focused

10     on the issue as presented here.

11             JUDGE MOLOTO:  I understand that.

12             MR. GUY-SMITH:  And in that regard, I think there is a very good

13     possibility, and this is with a full recognition that the Chamber is not

14     only insightful but incisive with regard to the information that's

15     presented to it, that it will be in a position where it's looking at

16     information that essentially becomes irrelevant to its considerations,

17     because there are -- there are, in fact, without a doubt, questions that

18     arise concerning the very matters the Chamber alluded to in its decision

19     that have not been answered by this man.

20             JUDGE MOLOTO:  That's understood, Mr. Guy-Smith.

21             Let's bear in mind that we're dealing here with an expert

22     witness, not a fact witness.  And if we wanted the expert witness to

23     pronounce specifically on the facts of the case as an expert, then he

24     should have been given the facts of the case, and he would have

25     pronounced on them as an expert.  That was not done, and what was done

Page 9453

 1     was, Come and give us what a general idea would be -- general answers to

 2     the questions that are being put to you.  And it is for the Chamber then

 3     to extrapolate from those answers, whatever it finds applicable to the

 4     facts of the case, to extrapolate that.

 5             MR. GUY-SMITH:  Once again, Your Honour, I can't -- I can't in

 6     any fashion whatsoever, in good faith, argue with you on a theoretical

 7     level.  There's no way for me to do that, nor would I.

 8             JUDGE MOLOTO:  But I'm not talking -- you see, this is the thing.

 9     You lose me when you talk about it's a theoretical abstract -- on a

10     theoretical level itself.

11             MR. GUY-SMITH:  I see what -- I see where I'm not being clear.

12             JUDGE MOLOTO:  I'm dealing with a practical level.  I'm just

13     saying that to the extent where it gives generalities, the Chamber could

14     use those generalities to guide itself and, of course, would bear in mind

15     the fact that the report is not intended to comment specifically on the

16     facts of this case.  That's why he was not given the facts of the case.

17             MR. GUY-SMITH:  Well, but he was given the facts of the case.

18     That's what I'm -- that's what I'm telling you.  The CD-ROM that he was

19     given included information about the facts of the case that he chose not

20     to review because of pressure of time.

21             JUDGE MOLOTO:  But he was told not to look at that, and he can

22     look at it later, if he's interested.  But, I mean, whatever he says, he

23     says he didn't use the CD-ROM for purposes of this report.  He gave a

24     report in response to the questions put to him, as he understands them

25     generally.

Page 9454

 1             Now, I understand that it is not on all fours with the facts of

 2     the case.  That I understand, but I'm saying to the extent that there are

 3     general principles that can be extrapolated from it, wouldn't it be of

 4     some assistance to the Chamber to that extent?

 5             MR. GUY-SMITH:  Well, with regard to a general principle, if

 6     there is a general principle that the Chamber is not aware of or familiar

 7     with that requires reliance upon an expert's opinion, my answer, of

 8     necessity, to that question would have to be, Yes, because that would be

 9     a responsible answer to the question, I mean, if that's the manner in

10     which the question is being -- being asked.  And I don't have any other

11     way of answering that question, to be perfectly honest with you,

12     Your Honour, but to say, Yes.  If there's some conceivable help that it

13     could be to you, then I want you to have that conceivable help.  I mean,

14     that I would agree with.  I don't think it would either be prudent or

15     responsible as an advocate, no matter what my position may be, to say

16     anything other than that.  I'm taking -- as I'm saying, I'm taking a more

17     strident position here, because I, as you said, it's not on all fours.  I

18     don't think it's even -- we're even on a unicycle with regard to this

19     particular report, and part of the difficulty is the models that have

20     been put forth in the abstract may have some theoretical basis upon which

21     reflection can be had, but they also have the potential of being

22     confusing because they have not been tied in to the fact-specific

23     questions that this Chamber needs to decide, which is part of the reason

24     why I keep on pushing the fact issue.

25             Having said that, I understand your position, and I don't want to

Page 9455

 1     say, Yes, and you know I don't want to say, Yes, but if I'm being --

 2             JUDGE MOLOTO:  But you say, Yes.

 3             MR. GUY-SMITH:  Yeah, but I do say, Yes, in terms of the manner

 4     in which you frame the question, because otherwise -- otherwise I would

 5     be incredible.

 6             JUDGE MOLOTO:  How else would you like me to phrase my question?

 7             MR. GUY-SMITH:  Well, in only the most honest way that you think

 8     of it and the most honest way that I can answer.

 9             JUDGE MOLOTO:  I can assure you that you can trust the Chamber

10     not to be confused.  I heard you say -- suggesting that the report might

11     just add some confusion, but I just want you to understand that the

12     Chamber would not be confused.

13             MR. GUY-SMITH:  Well, I -- when the word came into my mind, I was

14     a little concerned about using it in any event, and I meant no disrespect

15     whatsoever.

16             JUDGE MOLOTO:  I'm not suggesting you did.

17             MR. GUY-SMITH:  Okay.

18             JUDGE MOLOTO:  I'm not suggesting you did.  I'm just reassuring

19     you that you can trust the Chamber not to be confused.

20             MR. GUY-SMITH:  All right, thank you.

21             JUDGE MOLOTO:  Are we agreed now?

22             MR. GUY-SMITH:  We are -- we are -- I guess, we are agreed.

23             JUDGE MOLOTO:  Do I need to ask Mr. Saxon to reply, if he wants

24     to?

25             MR. GUY-SMITH:  Based upon where the Court is thinking, I think

Page 9456

 1     the answer is, No --

 2             JUDGE MOLOTO:  Thank you very much.

 3             MR. GUY-SMITH:  -- because I believe you've been pretty clear

 4     about what your thinking is.

 5             JUDGE MOLOTO:  Thank you very much, Mr. --

 6             MR. GUY-SMITH:  Thank you, Your Honour.

 7             JUDGE MOLOTO:  I tried not to show my hand.  If I've been so

 8     callous, I'm so sorry.

 9             MR. GUY-SMITH:  I think you were more guiding than showing a

10     hand.

11             JUDGE MOLOTO:  I like your diplomacy, and I appreciate it.  Thank

12     you so much.

13             Well, then, given that it will then be admitted into evidence.

14             MR. SAXON:  Your Honour, in the interests of completeness, I

15     would like to raise an administrative matter now, in case that affects

16     your decision and in case counsel wants to say anything about it.

17             There remains the outstanding question of the additional

18     assignment that you directed General Melvin to perform yesterday, and he

19     has -- moments ago, he has communicated to the Prosecution that he would

20     need approximately three weeks to do a short report based on the

21     direction that you gave to him.  He might need to engage the assistance

22     of others.  And so I wanted to make sure that that knowledge is on the

23     table before any final decisions.

24             JUDGE MOLOTO:  Thank you very much.

25             Do you have any comment on that, Mr. Guy-Smith?

Page 9457

 1             MR. GUY-SMITH:  It seems to me that with regard to the directions

 2     made by the Chamber, that would be a subsequent -- a subsequent secondary

 3     report, and in the event that an examination need be on that report, that

 4     would be an entirely different matter.  I can see them as being distinct

 5     issues, quite frankly.

 6             JUDGE MOLOTO:  Thank you very much.  I thought so, too.  Thank

 7     you very much, Mr. Guy-Smith.

 8             Does that then dispose of that part of the business?

 9             MR. SAXON:  Yes, Your Honour.

10             JUDGE MOLOTO:  Do you have any other business to raise with the

11     Court?

12             MR. SAXON:  No, Your Honour.

13             JUDGE MOLOTO:  Mr. Guy-Smith?

14             MR. GUY-SMITH:  Not at this time, Your Honour.

15             JUDGE MOLOTO:  Okay.  The Chamber has some business to raise.

16             Just in case I wasn't clear, the admission of the report includes

17     the associated documents.

18             MR. GUY-SMITH:  That was my understanding.

19             JUDGE MOLOTO:  Thank you so much.

20             Just an oral decision on some motion that's been outstanding for

21     some time.

22             Just to make sure, we are in public session, aren't we?  Thank

23     you so much.

24             On the 19th of October, 2009, the Prosecution filed its notice

25     withdrawing Prosecution submission on decision on Prosecution's first Bar

Page 9458

 1     table motion of the 5th of October, 2009, and filing of a corrected

 2     version, hereinafter referred to as the "19th of October notice" whereby

 3     it addressed several issues pertaining to the Chamber's decision on

 4     Prosecution's first Bar table motion of the 5th of October, 2009,

 5     hereinafter referred to as the "5th October decision."

 6             The Trial Chamber hereby decides as follows:

 7             1.  The Trial Chamber notes that in its 5th October decision, it

 8     admitted several documents under the condition that the revised

 9     translation be provided by the Prosecution.  The Chamber notes that the

10     Prosecution, in its 19th of October notice, submits that the relevant

11     translations are now up-loaded to e-court and thus confirms that the

12     following documents are now part of the trial record, under seal:

13     Rule 65 ter numbers 09480, 09486, 09492, 09497, and 09499.

14             2.  The Trial Chamber notes that the 19th October notice

15     specifies the exact portions of the two voluminous items which the

16     Prosecution seeks to be admitted.  The Trial Chamber is satisfied as to

17     the relevance and probative value of the following:  Rule 65 ter

18     number 09567, pages 12 to 15, 33, 53 to 54, 79 to 80, 209 to 215, and 229

19     to 230.  As a consequence, the above-mentioned portions are admitted into

20     evidence, under seal.

21             Similarly, the Trial Chamber admits into evidence, under seal,

22     the following portions of the video marked as Rule 65 ter number 09562;

23     that is, at 20 minutes 49 seconds to 21 minutes 33 seconds, 27 minutes 42

24     seconds to 28 minutes 11 seconds, and 46 minutes 49 seconds to 47 minutes

25     55 seconds.

Page 9459

 1             May I just pause here.  I know there is too much detail here.

 2     You can be provided with a document detailing this at the end.  I see you

 3     struggling very hard to write, and you're asking your colleague there,

 4     Mr. Guy-Smith, whether he's following what I'm saying.  You'll get the

 5     document.  Okay?

 6             3.  The Trial Chamber notes that the 19th October notice submits

 7     that the full translations of the relevant pages of Rule 65 ter

 8     number 07305 have been up-loaded to e-court.  The Trial Chamber is

 9     satisfied as to their relevance and probative value, and therefore admits

10     pages 7 and 10 of this exhibit, under seal.

11             4.  The Trial Chamber finds that the B/C/S versions of

12     Rule 65 ter numbers 09481, 09513, and 09540, up-loaded to e-court, are

13     now sufficiently legible.  The Trial Chamber also notes that the 19

14     October notice submits that the revised translations have now been

15     up-loaded to e-court.  The Trial Chamber finds that 65 ter numbers 09481,

16     09513, and 09540 are relevant and of probative value.  They are,

17     therefore, admitted into evidence, under seal.

18             5.  Finally, the Trial Chamber notes that the 19 October notice

19     submits under 65 ter numbers 09468 and 09469 should be treated

20     confidentially.  The Trial Chamber orders that these documents be placed

21     under seal.

22             That's the end of the decision.  Can I suggest that parties be

23     given copies of this oral decision, because it's just too complicated.

24     Thank you so much.

25             That's the end of the business.

Page 9460

 1             Yes, Mr. Saxon.

 2             MR. SAXON:  Your Honour, the next witness of the Prosecution is

 3     scheduled to testify on Monday, 2nd of November, so we ask that we

 4     adjourn until Monday, 2 November.

 5             JUDGE MOLOTO:  Thank you very much, Mr. Saxon.

 6             Do you know what time we are sitting on Monday and in which

 7     court?

 8             MR. SAXON:  If you give me about 10 seconds, Your Honour, I think

 9     I can tell you.

10             JUDGE MOLOTO:  Mr. Registrar is going to be able to help us.

11                           [Trial Chamber and registrar confer]

12             JUDGE MOLOTO:  I'm told it's in the morning, in Courtroom II.

13             Then, in that event, the case stands adjourned to Monday, the 2nd

14     of November, at 9.00 in the morning in Courtroom II.

15             Court adjourned.

16                           --- Whereupon the hearing adjourned at 4.37 p.m.,

17                           to be reconvened on Monday, the 2nd day of

18                           November, 2009, at 9.00 a.m.