1 Tuesday, 22 January 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.07 a.m.
6 JUDGE AGIUS: Yes, good morning.
7 Madam registrar, could you call the case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
10 JUDGE AGIUS: Thank you, ma'am.
11 All the accused are present, all the Defence teams are present,
12 and today it's Mr. McCloskey on his own. The US government
13 representative, Ms. Schildge, is also present.
14 Good morning to you, Mr. Butler.
15 THE WITNESS: Good morning, sir.
16 JUDGE AGIUS: Welcome back. What are your travel arrangements,
17 Mr. Butler?
18 THE WITNESS: I'm not sure about travel; but certainly with
19 respect to scheduling, I have, in fact, checked and my schedule is clear
20 for me to be available for the Court here through Friday, the 1st of
21 February. If it is anticipated I'll be here beyond that, I will have to
22 make some additional arrangements.
23 JUDGE AGIUS: All right. Okay. I hope we won't keep you that
25 THE WITNESS: So does my wife, sir.
1 JUDGE AGIUS: Yes. Thank you. So, in the meantime, I do
2 encourage you to cut down on your cross-examination as much as you can,
4 Yes, Mr. Zivanovic.
5 WITNESS: RICHARD BUTLER [Resumed]
6 MR. ZIVANOVIC: Thank you, Your Honour.
7 Cross-examination by Mr. Zivanovic: [Continued]
8 Q. Mr. Butler, in the meantime, via the Registry, I forwarded the
9 translation of the document that was missing yesterday, and I also
10 provided hard copies for both the Prosecution and the Bench as well, as
11 well as for you. And I believe you were able to go through it in the
12 meantime. My question will not go to the contents of the conversations
13 mentioned, which take the most part of the document. My question, rather,
14 refers to the chronology.
15 You saw the intercepts being in chronological order between pages
16 3 or 4 until the end of the document. Did you notice that between the
17 12th and the 19th of July, there is not a single intercept that would be
18 in that document?
19 A. No, sir. There's not a single intercept with respect to the
20 actual text of them. Some of the material in these documents appear to be
21 analytical abstracts of that material, but, for example, there's no
22 verbatim text, as we're accustomed to seeing.
23 Q. However, those pieces of text refer to a particular date; that is
24 clear from the document?
25 A. Yes, sir. Some of them refer to dates. Some of them refer to
1 events that are happening on the ground that, when you look at the context
2 of the statement, it's clear where it originated from.
3 Q. Let us go back to the first paragraph of the first page again.
4 Did you notice that there, the General Staff of the Army of
5 Bosnia-Herzegovina state that all of the tapes they had in their
6 possession, referring to the events, they forwarded to the Agency for
7 Research and Documentation back in 1995?
8 A. Yes, sir, that's correct. And to further clarify, now that I've
9 read this document in English, I can tell you that I have seen it at an
10 earlier date, probably around 1997, 1998. So I can confirm now that I did
11 have access and I did see this document at the early part of my work.
12 Q. My last question pertaining to this document is this: Did this
13 raise any doubts, this fact that the AID has not been forwarding any tapes
14 to you since 1995; although, they had them in their custody?
15 A. Yes, sir. In fact, this, among other information, was, in part,
16 why I was prepared fully to not accept the broader body of intercepts at
17 face value until the work of the OTP could independently corroborate them.
18 This is just one of the many reasons.
19 Q. Thank you. Let us have a look at some specific intercepts.
20 MR. ZIVANOVIC: [Interpretation] First, I'd like to go to Exhibit
22 Q. Please go through the text for yourself and tell me when you're
23 done so that I can put the question to you.
24 A. Yes, sir, go ahead.
25 Q. Based on this intercept, do you conclude that one of the
1 participants, and this is the only audible participant, is looking from
2 the other collocutor a list of those suspected of having committed war
3 crimes in Srebrenica, Zepa, and Gorazde?
4 A. Yes, sir. That is the apparent thrust of the intercept, that the
5 individual named "Zile" is doing that.
6 Q. Can you see, from this intercept, that the request was being made
7 so that those war crime suspects would be prevented from fleeing, as we
8 can see from the text itself?
9 A. I don't know that it's necessarily fleeing, but it certainly
10 implies so there won't be a loss of near misses with respect to whether
11 it's fleeing or whether it's the screening process. I see, and I also
12 take your point, up in the beginning, "We'll miss them and they'll get
13 away scott free." You can read that as fleeing, yes, sir.
14 Q. Would you be able to draw any conclusions, from the context of
15 this intercept, as to the participants in the conversation, and them not
16 knowing of any existence of a plan to execute all Muslim men which had
17 surrendered or which had been captured from Srebrenica?
18 A. I believe that when I testified with respect to this intercept
19 before, my interpretation was that the individual going under the name of
20 "Zile," you know, believes that there is still going to be a screening
21 process and that they're looking for information to support that, and that
22 this particular individual is not aware at this time that there will, in
23 fact, be no screening.
24 Q. Thank you. Since you were able to see lists of many members of
25 the VRS and the Ministry of the Interior, and you were also able to
1 identify some of them, could you draw any conclusions from this intercept
2 as to who the person under the nickname of "Zile" is?
3 A. I believe I've noted prior that I believe the individual named
4 "Zile" is General Zivanovic.
5 Q. Thank you. In this particular intercept, we can see the time,
6 which is 1829 hours; is that correct?
7 A. Yes, sir, that's what it says.
8 Q. Do you know what date it was?
9 A. Offhand, I don't recall whether this is dated -- has been dated as
10 the 12th or the 13th of July. Memory is escaping me right now on that
12 Q. Our information states that the conversation happened on the 13th
13 of July, but I presume you cannot recall the date correctly, and I won't
14 insist on you doing so.
15 Let us move on to the intercepts pertaining to my client,
16 Mr. Popovic.
17 MR. ZIVANOVIC: [Interpretation] Let's have a look at P1189A and
19 First of all, let us go to page 2, line 3, since there is a
20 technical error in the transcript of the conversation; that is, the name
21 is spelled incorrectly. It is page 20005, line 12.
22 Q. The name stated there is "Rocevic." However, if we look at line 3
23 of this intercept and of this page, perhaps you can confirm for us that
24 the name appearing there is "Rosevic."
25 A. Given my poor command of the language, I would probably be the
1 last person you would want to ask that question of. I will certainly
2 defer to your pronunciation of it.
3 Q. The name appearing in the third line is "Rosevic"; would you agree
4 with me?
5 A. Yes, sir.
6 Q. It's not "Rocevic"?
7 A. As in the name of the town, correct, sir, yes.
8 Q. Thank you.
9 MR. ZIVANOVIC: [Interpretation] Let us go back to page 1, please.
10 Q. You are quite familiar with this intercept, since it was referred
11 to on several occasions; therefore, there's no need to go through the
12 whole of it. But on the face of it, it seems that it was intercepted at
13 1358; that is, two minutes before 2.00 p.m.. Would you agree?
14 A. Yes, sir, that's what it says on the document.
15 Q. Based on this intercept, you testified here that your conclusion
16 was that a request was being made for 500 litres of fuel and that it might
17 have to do with the transport of those captured at the school building at
18 Kula to the Branjevo Farm, where they were subsequently executed.
19 That was your testimony, was it not?
20 A. Yes, sir, that is correct.
21 Q. As a military analyst and expert, can you confirm that for you to
22 draw that conclusion, it is of great importance for you to know at what
23 time the executions at Branjevo actually took place?
24 A. Yes, sir. That's -- the context around what happened in that
25 entire village area of Pilica and the timing of that would be important,
1 yes, sir.
2 Q. We have information, and it is based on a testimony of one of the
3 participants of the shooting at Branjevo.
4 MR. ZIVANOVIC: [Interpretation] It is page 10972, line 21 of the
5 4th of May, 2007.
6 Q. He said that the executions at Branjevo began at 10.00 a.m. and
7 were completed at 3.00 or 4.00 p.m. that day. Were you familiar with that
9 A. Yes, sir. That's consistent with the testimony, as I understand,
10 that Drazen Erdemovic gave.
11 Q. Looking at this intercept that was intercepted just prior to 2.00,
12 my conclusion is that the process of executions had been completed by that
13 time. Would you agree?
14 A. No, sir. I mean, you've just told me, you know, going back to
15 Mr. Erdemovic's testimony, that they were completed at 4.00 p.m. You're
16 showing me an intercept that's at 2.00, so obviously they're not completed
17 at this point, if one believes Mr. Erdemovic. And, further, I would note
18 that while the intercept itself is dated as being intercepted at 1358
19 hours, we don't know at what juncture Colonel Popovic, at that location,
20 actually asked for the fuel. So, no, I don't agree with your conclusion
21 on that.
22 Q. Mr. Erdemovic said that the executions were completed between 3.00
23 and 4.00, not at 4.00 p.m. But if the time you chose suits you best, then
24 I have no objection to that. Another thing --
25 A. I will even use your time at 1500. We'll use the earlier time. My
1 conclusion remains the same. I don't think the 60 minutes makes a
2 difference for why I've concluded what I have.
3 Q. In order for you to make that conclusion, is the distance between
4 the school at Kula and the Branjevo Farm of any relevance?
5 A. No, sir.
6 Q. In other words, it is unimportant whether we are talking about
7 three or 100 or 200 kilometres; is that what you're trying to say?
8 A. No, sir. What I'm saying is that the distance, the relevant
9 portion for me, as part of my analysis and placing Colonel Popovic in the
10 crime scene, is -- you know, has nothing to do with the relevant distance.
11 What it has to do with is the actual context of the activity that he's
12 involved in.
13 Whether Colonel Popovic needs 500 litres of fuel because of
14 distance or because of other variables, you know, I have no way of knowing
15 whether he needs it or not. But for the context of my analysis, this
16 document, you know, places and puts Colonel Popovic involved in that
17 execution process in some manner. That was the relevant part of it.
18 Q. And you draw your conclusion on his participation from this
19 intercept; is that so?
20 A. In part, not totally.
21 Q. You have some additional sources of information that we don't?
22 Can we agree on that?
23 A. No, sir. In fact, the very next exhibit that I was shown by the
24 Prosecutor with respect to this intercept was, in fact, the fuel dispersal
25 log, which is not only a document that tends to heavily validate the
1 authenticity of this particular intercept, but again in its own right
2 reflects the fact that there is a specific request by Colonel Popovic for
4 So, again, in part this, in part that particular fuel document, in
5 part other evidence of intercepts and documents, and references within the
6 IKM log of the Zvornik Brigade that show Colonel Popovic in that
7 particular region on this day. Based on all of that information, that's
8 what I draw my conclusion on.
9 Q. Briefly put, based on that, you concluded that the fuel mentioned
10 was used to transfer the captured from the school to Branjevo?
11 A. Sir, I don't know that the fuel was used primarily for that. I
12 can't tell you that that fuel wasn't held up there and then the next day
13 used for the burial operation, and I'm sure some of it may well have been,
14 because the fuel ultimately wasn't returned -- or the remainder of the
15 fuel wasn't returned back to Standard until later on the 17th.
16 What I can tell you is that based on my analysis of all of the
17 other activities that were happening or were not happening in Pilica on
18 that day, particularly with respect to military operations, that that is
19 the -- the use of that fuel, in part, for the conduct of the crime, you
20 know, is the most logical explanation for it.
21 MR. ZIVANOVIC: [Interpretation] Let us have a look at another
22 intercept. It is 1D692. It is Intercept 662.
23 Q. It seems that we do not have it translated, and I will read it out
24 for you. It is rather brief.
25 MR. ZIVANOVIC: [Interpretation] Let us go back to the top of the
1 page so as to see the date.
2 Q. This conversation was intercepted on the 16th of July, 1995, by
3 the SDB in Tuzla.
4 MR. ZIVANOVIC: [Interpretation] Let us go down to the Intercept
5 662 itself.
6 Q. It says: "On the day mentioned, monitoring the RR axis of
7 Zvornik-Vlasenica, at 7.85 megahertz frequency, Channel 9 at 1355, we
8 registered a conversation between two unidentified males, X and Y."
9 The conversation went as follows:
10 X: "90 litres, 100 litres now."
11 Y: "Fuck it."
12 X: "We did our math on the map. 200 kilometres one way and two
13 back. I don't know. What did you decide?"
14 Y: "I don't know. I thought of going via Kotromanjica."
15 X: "Where is that?"
16 Y: "It's there, Dobrun Grada."
17 X: "That's the direction?"
18 Y: "Yes. Vito is going there, and he's going to stay in Uzice
19 for 15 days."
20 X: "I don't have that much fuel. Well, I don't know, I was
21 thinking of telling that guy that he should give us some, and then when we
22 are going to return, to know where to go."
23 Y: "Well, if I am going to have any problems, then we should
24 forward the old one. I'm not sure that's so far away."
25 X: "Of course it is. I was looking at the map with one of the
1 people from the traffic section. I'll see with my people whether I can
2 secure that fuel; and if I do, we'll go together."
3 Y: "I only called you to tell you."
4 X: "It goes further by some 450 kilometres."
5 Mr. Butler, have you seen this intercept before?
6 A. No, sir, I have not.
7 Q. Thank you. The requested quantity of fuel, namely, 500 litres,
8 plus one bus with a tank full of fuel, does this quantity tell you that
9 the transport required ought to cover larger distances?
10 A. Sir, I'm not really following the logical path of what you're
11 asking. I have no idea if this particular intercept that you have read to
12 me has any relation to what we're talking about. I mean, are you
13 attempting to use it to illustrate how much fuel or how far a bus -- one
14 bus should go, if that's, in fact, what we're talking about? I mean, I
15 don't understand.
16 Q. It is not my intention to tell you why I'm putting a question to
17 you. Merely answer my question, if you can. My question is --
18 JUDGE AGIUS: One moment. He's telling you, "Your question, I
19 can't see clear," and you ought to either repeat your question in a
20 different manner that is intelligible for your witness, or else you move
21 to your next one.
22 MR. ZIVANOVIC: [Interpretation]
23 Q. Let me be quite clear. You said that you haven't seen this
24 intercept before, and I'm not asking you to analyse it. I'm going back to
25 the intercept you did see, and I will later on go back to the document
1 requesting 500 litres of fuel plus a bus with a tank full of fuel.
2 As a military expert and analyst, does this not lead you to
3 conclude that such a large quantity of fuel would be used for
4 long-distance travel?
5 A. Okay. Now I see where you're going. As was the practice of the
6 VRS, they would only provide enough fuel that a particular vehicle or a
7 particular mission required to prevent that fuel from being siphoned off
8 for non-military reasons. I guess one conclusion that you can draw, if I
9 guess this is where you're trying to go, is that you wouldn't issue that
10 much particular fuel unless you were planning to go a particularly long
12 I mean, I assume that's what you're trying to get through the
13 illustrative point of this intercept. I mean, that's one interpretation.
14 Within the context of what we have been talking about, I don't think that
15 that's the particular interpretation I would give it.
16 Q. Can you confirm or can you tell what the distance is between the
17 Kula school and Branjevo, where the executions took place?
18 A. I have personally never been up to that particular area. I have
19 seen it on a map. I think we're talking about a distance of between five
20 and ten kilometres, if I recall correctly.
21 Q. I know that the distance is far less, and I'm sure you know that,
23 MR. McCLOSKEY: Objection, Your Honour. That's argumentative and
25 JUDGE AGIUS: Correct.
1 Mr. Zivanovic.
2 MR. ZIVANOVIC: [Interpretation]
3 Q. What I'm certain of, and what I'm inviting you to tell me, is can
4 you link up the quantity of fuel requested with the short-distance travel
5 involving one or two buses holding prisoners?
6 MR. McCLOSKEY: Objection, Your Honour. That -- that hypothetical
7 does not reflect the facts on the ground, and, as such, is not
9 JUDGE AGIUS: Mr. Zivanovic. If we need to discuss this any
10 further, it will have to be in the absence of the witness.
11 MR. ZIVANOVIC: [In English] No, no. It's not necessary.
12 JUDGE AGIUS: All right. Then move to your next question.
13 MR. ZIVANOVIC: [Interpretation]
14 Q. The next issue I'd like to ask you about is the order for fuel
15 which you looked at, which is Prosecution Exhibit number--
16 THE INTERPRETER: Can Mr. Zivanovic please repeat the number.
17 JUDGE AGIUS: Mr. Zivanovic, could you kindly repeat the number.
18 MR. ZIVANOVIC: [Interpretation] 291.
19 JUDGE AGIUS: Thank you.
20 MR. ZIVANOVIC: [Interpretation]
21 Q. Please look at the bottom of the document, the end of the
22 document, that is.
23 MR. ZIVANOVIC: [Interpretation] Can we please not broadcast the
25 Q. At the bottom right corner of the document, there's a name of an
1 individual, stating that he received the fuel concerned. Do you know if
2 that individual was a member of the Command of the Drina Corps?
3 A. Which name are we talking about, sir? If -- there are two names I
4 see at the bottom.
5 Q. There is only one name in the bottom right-hand corner and a
7 A. Okay. So we're talking -- oh, yes. No. I don't know offhand if
8 that individual is a member of the Drina Corps or not.
9 Q. Have you ever come to know who the individual is?
10 A. No, sir. I don't believe I've personally looked at who that
11 individual is.
12 Q. Did you receive any information about this individual from the
14 A. I don't believe that I did. I mean, I'm not aware of this
15 particular individual at all. I mean, I assume he's a member of the
16 Zvornik Brigade, but I don't know that as a fact, either.
17 Q. You didn't go looking for it?
18 A. No, sir. I didn't go interview this person.
19 Q. Can you confirm that nowhere in this document can the signature of
20 Vujadin Popovic be found?
21 A. I don't have a working knowledge of what his signature looks like,
22 so I can't confirm or deny that. I don't know. I mean, I don't know if
23 Colonel Popovic's signature is on this document or not.
24 Q. In the translation of the document, can you perhaps find his
25 signature or any other signature that is unclear or illegible to you in
1 this particular document?
2 A. Sir, I mean, I see his name listed. I don't see a signature
3 listed with him. I mean, if you're telling me that he didn't sign this
4 document, I will have no reason to doubt you.
5 Q. I don't want you to believe anything I say. I just want you to
6 look at the document and tell me if you see that signature or a place
7 where the signature should be put. If you don't know, that's fine. I
8 won't insist.
9 A. Yes, sir. All I can tell you is I see his name written down there
10 in handwriting. I don't see anything which I would purport to be his
12 MR. ZIVANOVIC: [Interpretation] I'd like us to go back to the
13 earlier document; namely, 1189. That's an intercept.
14 Q. Do you agree that at the time the conversation took place, from
15 Vlasenica to Zvornik, the quantity of two tonnes of fuel was being
16 dispatched? Can this be concluded on the basis of the intercept?
17 A. Could you please scroll down on the English language version?
18 Q. Perhaps it's on page 2, but you can go through the entire
19 intercept if that's easier.
20 A. I think what you're referring to is at the bottom of page 1, sir,
21 and it is a reference there, after, "Don't you have 500 litres of oil?"
22 The next sentence is: "They're asking for two tonnes loaded."
23 I can't make that conclusion, only because the next sentence says,
24 from the Palma duty officer, "Well, I don't know." The Palma duty officer
25 is certainly not aware that there is already two tonnes of fuel coming up
1 to Zvornik. Whether other members of the Rear Services Branch know or not
2 is unclear, so I don't know the answer to that. I can't say that it is.
3 Q. Very well.
4 MR. ZIVANOVIC: [Interpretation] Let us move on to the other
5 document; namely, 1201, another intercept, and I'm interested in the items
6 A and C.
7 Q. This is a conversation between Popovic, himself, and Rasic. It
8 was on the basis of this conversation that you concluded, on the basis of
9 his words, that he had finished his business. You concluded that he was
10 referring to him having finished the executions or completed the
11 executions. Is that -- was that your testimony?
12 A. In part, that's what I believe the testimony -- that's what my
13 testimony was concerning one portion of the intercept. The first portion
14 of the intercept, I believe Colonel Popovic is talking about the fact that
15 he was up with Pandurevic. He has discussed issues related to the column
16 with Pandurevic, and he's referring to Colonel Pandurevic's interim combat
17 report of 16 July.
18 I think the second part, where we start into, you know:
19 "... I finished the job."
20 "You finished?"
21 "I finished everything."
23 "I'll come there tomorrow when I'm sure that it's all been taken
24 care of."
25 That, I conclude he's now talking about the murder operation.
1 Q. In view of the function held by Vujadin Popovic at the time, do
2 you find his -- that his stay in Zvornik may have been related to the
3 affairs that fell within his purview under the rules?
4 A. The implication that there's an ongoing counter-intelligence
5 mission that requires his presence there? I'm not aware --
6 Q. In addition to other matters.
7 A. I'm not aware of any other matters that he might be conducting,
8 you know, within the context of the legal prosecution of his rules, you
9 know, his purpose being there was to facilitate the murder operation. The
10 fact that he was there and that General Krstic sent him out as the nearest
11 Drina Corps staff officer to find out personally from Colonel Pandurevic
12 what was happening and why is certainly within his competence to do.
13 I'm not aware of any other mission that he is performing that
14 would be strictly related to his counter-intelligence role as a security
16 Q. You told us that at the time, the column which was retreating from
17 Srebrenica was posing a threat to Zvornik; do you agree with that?
18 A. From the 13th and -- you know, the 12th and 13th, from where the
19 column was moving up, it did pose a threat particularly to the town of
20 Zvornik. By 16 July, it was evidently clear to everybody, to include
21 Colonel Pandurevic, that there was no military threat to the town of
22 Zvornik at that time. The threat was to the military units in the front
23 lines, and that was the predication for letting the column through.
24 So, you know, Zvornik is a large municipality. If we're talking
25 about Zvornik town, the threat is greatest on the evening of 12/13 July,
1 when the column would have had the ability to attack the town. That
2 threat didn't exist by the 16th of July, 1995.
3 Q. And what about the 14th of July?
4 A. Based on my understanding of where the column would have been the
5 morning and afternoon of 14 July, I would say that there would be an
6 outside possibility that they could have switched their direction and
7 attacked Zvornik proper; but at that point, as far as the column was
8 advancing in the other direction, it would have been a very, very
9 difficult military task to do, probably beyond their ability. But, you
10 know, in the abstract, I will grant them that they had that capability.
11 Q. According to your estimate, the column was even farther away on
12 the 15th and was an even less a threat to Zvornik?
13 A. The town of Zvornik, correct. Conversely, since the army was
14 deployed west of the town, along the confrontation lines, that raised the
15 military threat to the Zvornik Brigade military forces.
16 Q. You told us that mobilisation was declared in Zvornik. You
17 probably can't recall when this occurred, in light of the earlier dates,
18 the other dates.
19 MR. ZIVANOVIC: [Interpretation] I'll show another document, which
20 is 698. It's in e-court. We have the translation as well.
21 This isn't the document.
22 Q. This isn't the document I was asking for, but I have a hard copy
23 and I'll ask you to look at it.
24 MR. ZIVANOVIC: [Interpretation] I have the B/C/S version. I don't
25 know if it's possible to place both versions at the same time.
1 Q. This is the request sent by the commander of the Drina Corps,
2 General Krstic, for non-assigned conscripts to be mobilised, and the date
3 is the 15th of July. I don't know if you've had time to look at it, but
4 tell me, it arises from this that mobilisation was ordered on the 15th of
5 July, or rather, this is a piece of evidence that mobilisation was sought
6 on the 15th of July.
7 MR. ZIVANOVIC: [Interpretation] I have a document here ordering
8 it, which is document 697, and I don't think it's in the system either.
9 THE WITNESS: Yes, sir, that's correct.
10 MR. ZIVANOVIC: [Interpretation]
11 Q. It arises from this that on the 15th of July, mobilisation was
12 ordered in Zvornik, and it's on this basis that I conclude that there was
13 a threat to Zvornik. Would you agree with me?
14 A. Well, sir, I believe the key phrase in these particular documents
15 are "those conscripts that have not been assigned to the war formations."
16 As you will note, there was an earlier mobilisation order, in some units
17 as early as the 9th, as late as the 12th, which reflect the mobilisation
18 of all individuals assigned to the Zvornik Brigade who might have
19 otherwise been there.
20 Certainly, the fact that they want to now mobilise even more
21 individuals and have them report to the Zvornik Brigade reflects the
22 military situation at the time and their understanding of it. Having said
23 that, we also know, from the other information, exactly where the military
24 threat is, because it's reflected by where Colonel Pandurevic is sending
25 the units. They're not being sent to Zvornik town. They're in fact being
1 sent to the area of Baljkovica.
2 JUDGE KWON: Mr. Zivanovic, I want to let you know that they are
3 in e-court. You should put "1D" before the numbers.
4 MR. ZIVANOVIC: [In English] 1D697. It is a document of -- it is
5 an order for mobilisation of -- a request for mobilisation of the Drina
6 Corps commander. And 697 is order of Ministry of Defence.
7 JUDGE AGIUS: You didn't put "1D," so they could find it. They
8 are there.
9 MR. ZIVANOVIC: "1D," yes.
10 Q. [Interpretation] We have the document in the system now as well.
11 Do you see that the mobilisation was ordered with a view to securing the
12 territory in the area of responsibility from infiltrated sabotage groups
13 and broken-up Muslim groups from Srebrenica, as the text says? Is that
14 what paragraph 1 of the order says?
15 A. That's correct, sir.
16 Q. Tell me, please, are the security organs duty-bound, as part of
17 their duties, to detect such groups through counter-intelligence methods?
18 A. In the abstract, they are, yes, sir.
19 Q. Thank you. Do you know if security organs have any duties
20 pertaining to mobilisation?
21 A. I don't recall a specific notation of that. However, given the
22 broader responsibilities of the security branch, I could foresee a
23 situation where, during particularly the initial screening of
24 mobilisation, where they're getting information from potential conscripts,
25 that there would be a reason to -- for security personnel to look over
1 that to determine if any of the individuals might be potential security or
2 counter-intelligence threats.
3 Q. Another question: Since you had occasion to read a number of
4 military rules applied in the VRS Army, did you have occasion to read the
5 Rules of Mobilisation of the Armed Forces, called "PRAMOS," for short?
6 A. No, sir. I don't believe that I did.
7 JUDGE AGIUS: Mr. Zivanovic, yesterday you took three hours and 31
8 minutes. Your time will -- of five hours will expire at 10.30, so you
9 need to finish by that time.
10 MR. ZIVANOVIC: [In English] Okay. Yes, I'll do that. Thanks.
11 JUDGE AGIUS: Okay.
12 MR. ZIVANOVIC: [Interpretation]
13 Q. Very well. I will not be asking you, then, if you know whether
14 the security organs carry out the so-called securing -- or providing
15 security for mobilisation.
16 Tell me, why is it that you did not consider the stay of Vujadin
17 Popovic as the security organ in Zvornik as one required by his usual
18 duties? Do you wish to state that he did not, in fact, perform his duties
19 at all?
20 A. I considered the location of where Colonel Popovic was; but as you
21 will note, on the basis of the intercepts and other information, Colonel
22 Popovic wasn't in Zvornik on -- for most of the time on the 16th and 17th.
23 He was, in fact, up in Pilica. Under your supposition that he's in
24 Zvornik somehow shepherding the mobilisation, the conscripts are being
25 mobilized at Standard and he's a dozen, 15, 20 kilometres to the north? I
1 don't make the connection that you do, sir.
2 Q. What about his counter-intelligence work? Was he supposed to do
3 that at Standard alone or in the field as well?
4 A. Colonel Pandurevic [sic], by function and responsibility, could
5 have performed his counter-intelligence mission anywhere that he deemed
6 necessary. Again --
7 JUDGE KWON: "Popovic," you mean?
8 THE WITNESS: I'm sorry, my apologies. Colonel Popovic.
9 But, again, I have -- I have come across no information whatsoever
10 that reflects a particular counter-intelligence threat that would have
11 warranted his presence up in Pilica at the time in question.
12 MR. ZIVANOVIC: [Interpretation]
13 Q. In your understanding, does counter-intelligence work or activity
14 take place only in a location where there is an attack or any combat
15 activity, or can it be performed at other locations as well?
16 A. I agree, sir. It can be -- it can be performed wherever it needs
17 to be performed. Counter-intelligence has no direct correlation to a
18 particular military attack. It doesn't even have a direct correlation to
19 an armed conflict. It occurs in peacetime as well.
20 Q. And you will agree that it needn't take place or be linked to the
21 same location where there is combat?
22 A. Yes, sir. I believe I just said that.
23 Q. You testified here that the corridor at Baljkovica was opened on
24 the 16th of July and that Popovic was issued with an order to go and see
25 why that happened and to check whether it was done properly. Do you agree
1 with that?
2 A. I testified that the information was that Colonel Popovic was
3 directed to go out and find Colonel Pandurevic and get an explanation as
4 to whether a corridor had been opened and why. I think it's a foregone
5 conclusion that it wasn't done properly, because no one on the Drina Corps
6 Main Staff had directed it.
7 Q. You were shown a note, I believe, from the duty officer's logbook,
8 and it states there that he was to go there. Do you not understand that
9 as an order that was given to him?
10 A. Yes, sir. I believe I've testified that he was -- he was directed
11 to go there, yes.
12 Q. Did you know that the corridor was opened on the next day? It
13 wasn't open and closed the same day, but it remained open for a period of
14 about 24 hours or a bit longer?
15 A. Yes, sir, that is correct. That is my understanding.
16 Q. Do you link that to his words, when he said that he was going to
17 come the next day when he will be certain that everything is fine? Did
18 you understand that to mean that he was to wait until the corridor was
19 closed and things completed so that he can submit his final report?
20 A. No, sir. I don't believe that that was the context that he was
21 talking about.
22 Q. Why do you think he wasn't supposed to do that or that he did not
23 do that?
24 A. His original purpose up there, as I've indicated, was to
25 facilitate the executions. He was drawn off of that original purpose by a
1 direct order of the Drina Corps, presumably General Krstic personally, to
2 find out what was going on with Colonel Pandurevic.
3 Once Colonel Pandurevic either reported back to Colonel Popovic
4 what had happened, and in conjunction he had written his interim combat
5 report of that day, explaining in great detail what he did and why he did
6 it, General Krstic had the answers that he'd needed. In context,
7 obviously, so did the Main Staff, which resulted in the dispatch of a
8 number of officers, on the morning of the 17th, from the Main Staff to
9 inquire, themselves, what was going on.
10 There's no information that I'm aware of that Lieutenant-Colonel
11 Popovic was part of that inquiry process. So, if he wasn't out at
12 Baljkovica, talking with Colonel Pandurevic and Major Obrenovic, and
13 either with Colonel Stankovic, Colonel Turkulja, Colonel Sladoje -- let me
14 pronounce that correctly, Sladojevic, I believe, the only other issue that
15 was again occurring at that time was the burial operation of the bodies at
16 the Branjevo Farm.
17 So because I could not place him at the legitimate military
18 activity, the information that I have, as well as other information,
19 places him up at Pilica during that period.
20 Q. Mr. Butler, having in mind Mr. Popovic's position and duties, can
21 you explain, the way you see it as an expert, why was he supposed to be
22 singled out to assist the executions and assist the burial of the corpses,
23 rather than to perform his regular duties?
24 A. Given the context of the large-scale crimes that were occurring -
25 and I take it as, you know, that even they recognised at the time, at face
1 value, it was a crime - there was a vested interest in making sure that
2 evidence of that crime was appropriately covered up. That would require,
3 in large part, you know, the ability to, you know, use military police,
4 facilitate the use of engineers, things of that nature.
5 The commanders obviously felt that the security officers would be
6 the best individuals to either facilitate -- you know, to facilitate the
7 executions as well as to ensure that there would be as little evidence
8 around as possible after the fact.
9 Q. And in your belief, such a complex operation could only be
10 performed by person number 3 in the corps and that plain officers and
11 soldiers could not do such a thing, such as burying corpses and checking
12 whether they had been buried properly?
13 A. No, sir. I certainly hold open that possibility, and I believe
14 that the activity at other crime scenes reflects the involvement of those
15 individuals as well. This was not an activity that Colonel Popovic
16 exclusively was in charge of or even did individually, but his role up
17 there at that location was to facilitate the accomplishment of that
18 particular mission.
19 Q. Your conclusion, again, points to the fact, and perhaps you can
20 confirm this to us or not, that the duties that Popovic was supposed to
21 perform, and the only ones he could - this being counter-intelligence,
22 since he couldn't delegate those to anyone else - remained not taken care
23 of, since he was delegated to do other things. Can you confirm that for
25 A. I'm not aware of what counter-intelligence tasks he was involved
1 in at that particular time, so I don't know whether or not they were being
2 taken care of or not. I just don't have an answer to that question.
3 Q. From the mobilisation order, you saw that there was mobilisation
4 precisely because of the terrorist groups that had been infiltrated, and
5 counter-intelligence was there to locate and gather knowledge about those
6 groups. In your words, Popovic was not engaged in that, since he was busy
7 burying corpses, in your words. Is that your assertion?
8 A. I'm -- yes. It's my assertion; although, I just -- I still don't
9 understand the connection that, you know, the activity that was occurring
10 in the Zvornik Brigade zone of identifying these small groups of Muslims
11 who were either trapped behind the lines or things of that nature, how
12 that's a classic counter-intelligence function.
13 Colonel Popovic, you know, isn't beating the bushes, you know,
14 with operative sources looking for these individuals, and certainly
15 interviewing recently-mobilised conscripts isn't going to get him any
16 answers, either, as to where these people are located.
17 So I'm just not sure how a task that is defined as strictly a
18 counter-intelligence task is assisting the military situation at hand at
19 that moment.
20 Q. From your answer, I conclude that detecting sabotage groups is one
21 of the tasks under the remit of security organs, and they have their own
22 counter-intelligence measures for that. Do you stand by that, since I
23 never said that security organs set up ambushes or fight the groups?
24 A. No, sir, but - and, certainly, I didn't mean to make the case that
25 you did - what I'm saying is that the Drina Corps and particularly the
1 Zvornik Brigade at that time, you know, despite what they were labelled in
2 this particular mobilisation order, you know, knew that the military
3 threat was not what we would call a sabotage and terrorist group
4 infiltrating the lines in order to conduct a specific act of sabotage or
5 terrorist in an area.
6 What the military threat was is dozens of groups who had been
7 separated from the main body of the column, many of them who were armed,
8 many who were presumably lost, who were wandering around the zone -- or
9 the rear areas of the zone of Zvornik Brigade and, as such, posed a
10 potential military threat.
11 You know, as I indicated earlier, in -- given that that's the
12 context of the military threat, you know, I'm not aware how the classical
13 functions of a counter-intelligence officer assists in a military
14 commander getting a better handle on what that threat is and dealing with
16 The only way that that particular officer would be able to provide
17 any information of relevance to someone like Colonel Pandurevic or Major
18 Obrenovic would be following the capture of individuals and their
19 interrogation in order to provide information from those individuals as to
20 the sizes and locations of other units of stragglers.
21 Q. Are you stating that such matters cannot be ascertained via the
22 network of cooperatives that security organs usually have in place?
23 A. For a situation where there was a source of information that may
24 have come from a cooperative at 2nd Corps or things of that nature on a
25 specific sabotage group, I concede that would have been a likely function,
1 but that wasn't the situation facing the Zvornik Brigade on that
2 particular day or the next.
3 They didn't -- the VRS didn't have operatives with those straggler
4 groups, collecting information on their intentions and things of that
5 nature. What they had, in fact, was, through their radio intercepts,
6 through interviews with captured prisoners, as well as, you know, in the
7 case of Colonel Pandurevic, the negotiations with Semso Muminovic - I hope
8 I pronounced his name correctly - Colonel Pandurevic had a fairly good
9 reading of what the military objective of the column was in that context.
10 So, I mean, I agree with your point, exactly what
11 counter-intelligence people can do; but in the context of the time and the
12 threat that we're talking about here, they weren't doing that.
13 Q. In other words, you exclude the possibility that the security
14 organs were busying themselves with their counter-intelligence tasks
16 A. No, sir. I mean, I never exclude possibilities, but I have no
17 information whatsoever which supports that possibility.
18 Q. You will agree that such information is otherwise confidential and
19 they are not made public?
20 A. No, sir. I would agree and remind you that we're sitting on
21 approximately 350.000 VRS documents that are also confidential and state
22 secret that are not otherwise made public. That goes for all military
23 documents; and in those documents, there are some security-related
24 material. I mean, there -- again, we never exclude a possibility
25 analytically, certainly I don't, but there's just no evidence to support
2 Q. Thank you. I have a general question concerning the intercepts
3 you referred to. You noticed that in certain places in those
4 conversations, dots appear. We were given information that if a part of a
5 conversation was inaudible, such dots would appear. That was the
6 explanation given by the operators. When interpreting such intercepts,
7 how did you interpret such dots, in other words, the parts of those
8 conversations which remained inaudible?
9 A. The same way you did, sir. I mean, my understanding of the dots
10 was either that parts of the conversation were either inaudible or that
11 there was an indeterminate time delay where there was silence or something
12 else and then the conversation picked up again. I mean, that's how I
13 understand that those symbols are used.
14 Q. Did anyone tell you that those dots might be there to mark a
15 period of time, for example, a moment of pause in a conversation, when the
16 collocutor are not saying anything?
17 A. I believe I've heard that once or twice, yes, sir.
18 Q. The words that are missing and the words that we have dots
19 appearing instead for, can they change the thrust of a conversation, give
20 it a different direction or mean something that could influence your
22 A. Obviously, sir, words that are either unintelligible or otherwise
23 not included in intercepts certainly could change the context by which I
24 would read that intercept or read it for a specific piece of information.
25 I mean, as a matter of doing any form of analysis, you'd like as
1 much complete information -- you know, you'd like to get the complete
2 story behind it, the complete set of information.
3 Q. Mr. Butler, just one more question: You were the Prosecution's
4 expert in this case, which is completely fine; but to say it outright, I
5 am one of the people who doubted your objectivity, since I believe that
6 your close ties with the Prosecution and the investigation, as you took
7 part of to a significant degree, compromised your objectivity.
8 JUDGE AGIUS: Yes. Mr. McCloskey didn't like that.
9 MR. McCLOSKEY: Everything is fine except the personalising of it,
10 his view of it. It's just not appropriate; it's never relevant.
11 JUDGE AGIUS: You're right, but Mr. Zivanovic, I'm sure, will
12 appreciate that.
13 MR. ZIVANOVIC: [In English] This is my last question, fortunately.
14 JUDGE AGIUS: Well, I could gather that. I could gather that, but
15 go straight to it, please.
16 MR. ZIVANOVIC: [Interpretation]
17 Q. Can you tell me this: In your opinion, the close ties I just
18 referred to, did they have any impact on the objectivity of your
19 conclusions in this case?
20 A. Well, sir, I am human, so I'm not going to tell you that I don't
21 have human characteristics, despite what some people will say about me.
22 As an analyst, I recognise there are dangers of bias creeping in.
23 As to my close ties, my close personal ties with these people, I would
24 also remind you that, you know, as a career military intelligence officer
25 in my own army, I have very close ties to the success or failure of the
1 United States Army. That doesn't mean that in serving my commanders, I
2 serve them best by slanting information to the way they want to hear it.
3 I am trained by profession to, as much as I possibly can, provide
4 the information in as accurate a form as possible, because that's how I
5 best serve the people who are in leadership positions over me. Sometimes
6 that means telling them things that they don't want to hear.
7 Q. Sometimes. Thank you.
8 MR. ZIVANOVIC: [In English] Those are my questions. Thank you.
9 JUDGE AGIUS: Thank you. Mr. Butler can leave the courtroom, and
10 we'll have the break.
11 In the meantime, Mr. Haynes, Mr. McCloskey, Mr. Zivanovic;
12 Mr. Zivanovic is the least concerned, even though this document is a"1D"
13 document. Earlier on in the day, Mr. Haynes and Mr. Zivanovic,
14 Mr. Zivanovic made available the English translation of the document he
15 made use of yesterday, and I'm talking of 1D221.
16 You will recall he asked the witness whether he would agree that
17 there were no intercepts between the 12th and the 19th of July of 1995.
18 It's not that that I am referring to.
19 But under the entry of the 19th of July, 1995, page 7 in the
20 English version, we'd like you to look at the translation, Mr. Haynes and
21 Mr. McCloskey. We only want to know whether you agree that the
22 translation is a correct translation, and that's it. We don't want any
23 further comments. We just want to make sure that this is a correct
24 translation of the original, and you can come to us at your convenience
25 later on.
1 We'll have a 25-minute break now. Thank you.
2 --- Recess taken at 10.31 a.m.
3 --- On resuming at 11.03 a.m.
4 JUDGE AGIUS: Who's next?
5 Mr. Ostojic.
6 MR. OSTOJIC: Thank you, Mr. President, Your Honours.
7 Cross-examination by Mr. Ostojic:
8 Q. Mr. Butler, my name is John Ostojic, and I represent Ljubisa
9 Beara. Good morning.
10 A. Good morning, sir.
11 Q. Sir, I'm going to start by -- where my learned friend left off,
12 and that is with your curriculum vitae; and in reviewing that --
13 MR. OSTOJIC: And for the Court, it's 65 ter 681 on the exhibit
15 Q. Sir, I note, in your educational background that you provide for
16 us, that you have no law enforcement education. Is that correct?
17 A. I'm not sure which version you're looking at. I believe one of
18 them should -- that particular document, 2007, should reflect the
19 education at the Law Enforcement Centre in Glencoe, Georgia, where as an
20 intelligence professional now with law enforcement, I was required to
21 attend a six-week course.
22 I believe that will be on page 2 of the English version.
23 JUDGE AGIUS: At least on the page that we have on the monitor,
24 the third paragraph under "Professional Background," is "Six years of
25 combined military and criminal analytical ..."
1 I was reading --
2 THE WITNESS: Page 3.
3 JUDGE AGIUS: Okay.
4 "Six years of combined military and criminal analytical
5 intelligence support for international prosecutors and related law
6 enforcement professionals, conducting investigations into violations," et
8 Is that what you mean, Mr. Butler?
9 THE WITNESS: No, sir. That reflects my work here. What I'm
10 specifically referring to I believe is on page 3.
11 MR. OSTOJIC: It's page 4, Mr. Butler.
12 THE WITNESS: Is it page 4? Okay, sir.
13 JUDGE AGIUS: Then let's go to page 4, please.
14 MR. OSTOJIC:
15 Q. Sir, my question, though, is: This was a training course, was it
17 A. Yes, sir, a basic intelligence training course. It was a six-week
18 course at the Federal Law Enforcement Training Centre.
19 Q. Well, I'm talking specifically about your period prior to the time
20 that you came to work for the ICTY and the OTP. Prior to that, you had no
21 education, no background, whatsoever, in law enforcement; is that correct?
22 A. Yes, sir.
23 Q. And prior to coming to work for the OTP, you also had no criminal
24 law education, to speak of; correct?
25 A. Yes, sir.
1 Q. Now, let's stay with this page 4 for a moment. And you list three
2 training courses or seminars that you attended, including the one where
3 you received the technical certificate, a technical certification course.
4 Can you tell me how long -- you told us the first one in 2004 was
5 a six-week course. The one in 1997, how long was this advanced course
6 that you took in Arizona?
7 A. The course is structured into two components. The first component
8 was roughly an 18-month curriculum that was a non-resident part. The
9 actual attendance part was a six-week curriculum.
10 Q. And what about with respect to the 1988 course where you received
11 a technical certification course, as you put it?
12 A. That was just a six-week residence course.
13 Q. Now, now that we know that you had no law enforcement or criminal
14 law experience -- strike that. Now that we know that you had no law
15 enforcement education and no criminal law education prior to coming to the
16 OTP, let's turn to your experience, sir.
17 Am I also correct that prior to coming to work for the OTP, you
18 did not have any law enforcement experience or criminal law experience?
19 A. Correct, sir.
20 Q. And on January 14th, when you first started testifying here - on
21 page 28, line 10 from my learned friends - you said something to the
22 effect as follows, quote, that you "learned techniques and tactics" while
23 you were dealing with law enforcement in your position with the OTP. Do
24 you remember that?
25 A. Yes, sir.
1 Q. Tell me what those techniques and tactics were that you learned
2 with respect to dealing with law enforcement, since you had no education
3 and experience in those areas prior to that.
4 A. Well, by virtue of having access to not only a world-class body of
5 lawyers, but also investigators from both common law and civil law
6 backgrounds, what I was able to do is, by watching them work, looking at
7 what they were doing and what they were trying to accomplish with respect
8 to their own investigations, it gave me the foundation to be able to look
9 at what types of military information they would need to support their
10 investigative process.
11 Q. I honestly don't know if I understand you. Was that a technique
12 or a tactic that you explained to me?
13 A. That would be a combination of both.
14 Q. Well, list out any other technique, if you will, that you learned
15 relating to law enforcement while you were with the OTP, sir.
16 A. Well, one technique I would use, and I still use today, is a
17 technique that many civil law investigators use, where, in an interview,
18 even if they believe that the subject is not providing accurate
19 information or is misrepresenting them, rather than initially confronting
20 the individual, they will allow the interview to go through an entire
21 statement, from beginning to end, and only at that juncture will they
22 intervene to ask specific questions.
23 Conversely, many of the particularly American and Canadian and
24 Australian investigators would not take that approach and would, in fact,
25 as soon as it became clear to them, they would intervene in an attempt to
1 get the individual who they were interviewing to give information that
2 they believe was more truthful. So, I mean, that is an example of a
3 technique that I learned while here.
4 Q. How about a tactic? Share with me a tactic that you may have
6 A. A tactic with respect to law enforcement that we would often use
7 is that when we set up a particular interview mission, looking to confirm
8 or deny specific facts, what we would often do is structure the targets
9 that we were interviewing to start with the lowest-ranking person first in
10 order to establish not only what their own personal activities were during
11 a relevant period, but also to give us information as to what their
12 superiors were doing.
13 So we would take that particular tactic into account, so that when
14 we finally got to the point where we were interviewing the superior, you
15 know, by virtue of earlier interviews, we felt that we had a good idea
16 what this individual's activities were during a relevant period. So
17 that's how I would define it as a tactic.
18 Q. Okay. Prior to working with the OTP, am I correct that you were
19 never involved in a criminal investigation?
20 A. That's correct, sir. As a US Army intelligence officer, I'm
21 forbidden by law to have been involved in criminal investigations in the
22 United States.
23 Q. And prior to working with the OTP, am I correct that you never
24 authored a report with respect to your analysis to be used in a court of
1 A. Yes, sir. To be used in a court of law, that is correct.
2 Q. Or to be published anywhere?
3 A. I have authored a number of classified reports that were published
4 that are not in courts of law.
5 Q. Prior to working with the OTP, sir, am I correct that you were
6 never retained or requested to be a witness in a local, national, or
7 international criminal proceeding?
8 A. Correct, sir.
9 Q. So the only experience you have with respect to testifying would,
10 in fact, be when it started here with the OTP; correct?
11 A. Yes, sir.
12 Q. I want to talk a little bit about -- we discussed independence or
13 you were kind enough to say you were human, as we all can see, and that
14 you may have certain biases. Do you agree with me, sir, that you're not
15 an independent outsider?
16 A. Yes, sir.
17 Q. And would you also agree with me that you're not independent, per
19 A. That entirely depends on how you define "per se."
20 Q. Okay. Well, let's look at your testimony in the Blagojevic case,
21 pages 4755, lines 13 through 18, where you say, quote, you are not
22 "independent, per se," end quote. Why don't you tell me, sir, what you
23 mean by "per se."
24 A. Okay. I am not independent insomuch as I work for the Office of
25 the Prosecutor; and in that context, the material that I am reviewing for
1 the most part is within the possession of the Office of the Prosecutor. I
2 am independent insomuch as the purpose, the focus and the conclusions of
3 my analysis.
4 Q. Okay. We'll get to that shortly, I'm sure. And you also describe
5 yourself, sir, as being an integrated member of the OTP; correct?
6 A. I believe it was an integrated member of the investigative team.
7 If I said "OTP," I certainly mean within the Srebrenica team.
8 Q. And you also describe yourself not only as being integrated but as
9 a strategic member of the OTP, do you not?
10 A. With respect to the Srebrenica team and investigation, yes, sir.
11 JUDGE AGIUS: Mr. Ostojic, Mr. Butler, could you slow down a
12 little bit and allow a short pause between question and answer for the
13 interpreters, please. Thank you.
14 MR. OSTOJIC: Thank you, Mr. President, and thank you, Mr. Butler.
15 I apologise.
16 Q. Sir, let's talk a little bit about bias. With respect to bias,
17 will you agree with me that one issue, analytically speaking, that remains
18 out there is the fact that there is a bias in one direction or another,
19 and it's because there may be a lack of information that an analyst may
20 look at?
21 A. A bias is generally -- with respect to internal factors, I don't
22 view bias as an issue of a lack of information. That's a completeness
23 issue. A lack of information can lead to potentially a biased conclusion.
24 So, I mean, in that context, I agree with what you're saying.
25 JUDGE AGIUS: One moment, Mr. Ostojic. Let's cut through this in
1 a radical way.
2 You're here as an expert witness brought forward by the
4 THE WITNESS: Yes, sir, that's correct.
5 JUDGE AGIUS: How do you understand your role or what do you
6 understand your role to be now, as an expert, Prosecution expert witness,
7 vis a vis the Trial Chamber and parties in this case?
8 THE WITNESS: Sir, as I've always understood my role when
9 testifying before this Chamber and prior Chambers, I am a witness at the
10 disposal of the Court, not for the Prosecutor, not for the Defence, but to
11 provide whatever information that the Court deems necessary to make its
12 decision. I'm not going to say I'm an independent arbitrator of facts,
13 such as an expert who's had no association with the Office of the
14 Prosecutor could say, but I believe that the way my reports are written
15 and my information is provided, that I am being as fair and as technically
16 accurate as I can for the assistance of the Court.
17 JUDGE AGIUS: Thank you.
18 Mr. Ostojic.
19 MR. OSTOJIC: Thank you, Mr. President. And with all due respect
20 to Mr. President and Your Honours, I do not believe you are an expert,
21 Mr. Butler.
22 Q. Let me read what you said in Blagojevic on November 17th, 2003, on
23 page 4692, lines 2 through 9. Here's what you say when you were asked by
24 Defence counsel there:
25 "Well, Mr. Karnavas, with respect to my own personal feelings and
1 opinions, I try to keep them out as much as possible. However, with
2 respect to bias, the one issue, analytically speaking, that remains out
3 there is the fact that as -- myself personally, as an analyst, and all
4 analysts engaged in this field, we are limited to the amounts and types of
5 information that we have available to us at the time. So if there is, in
6 fact, a bias in one direction or another, it may very well be in fact
7 because of lack of information."
8 Do you agree with that?
9 A. Yes, sir. I believe I've said earlier that a lack of information
10 can, in fact, lead -- you know, is a cause of bias.
11 Q. Now, let's look at some information that you may not have examined
12 in evaluating and in preparing your report, if you don't mind.
13 Did you, sir, at any time review or request intercepts that may
14 have been received from other countries or taken by other countries for
15 the period in July of 1995?
16 A. I am aware that the investigative team did request that
17 information, yes, sir.
18 Q. And can you list for me the countries that they requested that
19 information from?
20 JUDGE AGIUS: Yes, Mr. McCloskey.
21 MR. McCLOSKEY: We're getting into the area of Rule 70.
22 MR. OSTOJIC: And, Mr. President, I'd like to be heard
23 specifically on that point, but perhaps outside the presence of the
25 Also, I would add --
1 JUDGE AGIUS: Yes, go ahead.
2 MR. OSTOJIC: -- when we addressed this issue before, at the
3 beginning of the case with another witness, the Court instructed me not to
4 go further with those questions because a representative from the United
5 States government was not present, and we complied. We're grateful, and
6 we do have a representative from the United States government here, so I'm
7 sure that she can protect the interests, if it even borders on a Rule 70
8 issue, which I don't believe that it does.
9 JUDGE AGIUS: Yes, but you are jumping to the conclusion that the
10 information was drawn from the US government, so --
11 MR. McCLOSKEY: That's absolutely correct, and that would be Rule
12 70 protected. And I can tell you that there's many countries involved
13 here; and the US, whether they are a country or not, is not an issue.
14 JUDGE AGIUS: Mr. McCloskey, I wouldn't like to proceed with this
15 discussion in the presence of the witness. So if you are going to make
16 further submissions, then the witness must leave the courtroom, and then
17 we'll see.
18 I think you can safely move to your next question, Mr. Ostojic.
19 MR. OSTOJIC: I think, Your Honour, I'd like to be heard,
20 because --
21 JUDGE AGIUS: Yes, of course, but not in the presence of the
23 MR. OSTOJIC: So should I wait or should the Court invite the
24 witness to leave?
25 JUDGE AGIUS: No, no. I've already said that if you want to
1 discuss this further, the witness must leave the courtroom.
2 MR. OSTOJIC: I would like to discuss it further, Your Honour.
3 JUDGE AGIUS: So the witness must leave the courtroom now.
4 [The witness stands down]
5 JUDGE AGIUS: Yes, Mr. Ostojic.
6 MR. OSTOJIC: Thank you.
7 This witness, in prior testimony, specifically identifies that
8 there were intercepts from other countries, and he says that they were
9 from many other countries, and he identifies one country being the United
10 States. So I don't know at that time why there wasn't an objection.
11 There was not. I consider it to be waived at this point.
12 Nevertheless, since we do have counsel from the United States
13 government, we'd like to hear from her on that issue. But I don't believe
14 that Rule 70 extends to the other countries as well.
15 We know and believe that there were other countries who were
16 trying to and did obtain intercept information that would be exculpatory.
17 We need to know when they were requested by the Office of the Prosecution,
18 if they received those intercepts, in order for the Court to get the
19 complete picture with respect to what the Prosecution has only offered
20 evidence of one side; namely, the ABiH intercept operators.
21 I can tell the Court I believe, it's my understanding, based on
22 understanding and belief, that the Croatian government also was conducting
23 intercept operations and have, from articles that we've seen from time to
24 time, suggested that they do have intercept material in connection with
25 July of 1995.
1 JUDGE AGIUS: Thank you, Mr. Ostojic.
2 Mr. McCloskey.
3 MR. McCLOSKEY: Regarding Croatia, Mr. President, we have provided
4 intercept material related to the Croatian government that's nothing to do
5 with Rule 70, and that is part of the information provided to the Defence.
6 JUDGE AGIUS: All right. Yes, anything else?
7 MR. McCLOSKEY: Well, and if -- I would like to be directed to
8 where Mr. Butler has mentioned US intercepts in the past. I am --
9 JUDGE AGIUS: Well, that I can't tell you. What I can remember
10 vividly is that during his testimony here, he did hint or affirm that
11 apart from the intercepts that we've been talking about here, the ones
12 allegedly obtained or captured by the BiH, there were intercepts from
13 other countries. That he did say, but he didn't specify the name of any
14 source or country as a source of these intercepts.
15 Anyway, let's hear what Mr. Bourgon has to say, and then we'll
17 Yes, Mr. Bourgon, in the meantime, if you can indicate to
18 Mr. McCloskey where the witness alleged or mentioned the US as a source of
19 information in relation to intercepts, please do so.
20 Mr. Bourgon.
21 MR. BOURGON: Thank you, Mr. President.
22 Mr. President, the Prosecution's objection at this time highlights
23 a fundamental problem with the testimony of this witness. Mr. Butler was
24 completely integrated into the Prosecution team. He has had access to
25 everything that the Prosecution had access to. Today, he's testifying
1 before you, and we want to say that even though he had access to
2 information, whether substantive or information in the sense of who was
3 contacted, he cannot be -- we cannot say that today he cannot disclose
4 this information as part of his testimony or else his testimony will be
5 incomplete. It's a fundamental problem.
6 If the Prosecution elects to pick one of their own to testify
7 before this Chamber, saying that he does not have a bias and that he is
8 independent, he must be able to disclose all of the information in his
9 possession. My colleague from the Prosecution should have requested the
10 authorisation from any Rule 70 provider so that the testimony of
11 Mr. Butler can be complete. If it cannot be complete, it should be
12 stopped right now.
13 Thank you, Mr. President.
14 JUDGE AGIUS: Thank you, Mr. Bourgon.
15 Mr. McCloskey.
16 MR. McCLOSKEY: He cites no authority. There is none that
17 suggests that because the witness takes the witness stand, Rule 70
18 disappears. Rule 70 is a crucial rule in order to obtain the assistance
19 of governments, and it is a rule that we must support.
20 Just going back in my memory regarding other intercepts, I think
21 one of the things Mr. Butler, I believe, was referring to was the JNA or
22 the VRS ability to take, to do intercepts and that they were intercepting
23 as well. He made a reference to that. But as for countries beyond the
24 former Yugoslavia, I'm not aware of any reference that has been made.
25 JUDGE AGIUS: Thank you, Mr. McCloskey.
1 Mr. Ostojic.
2 MR. OSTOJIC: Thank you.
3 I think Mr. McCloskey, my learned friend, misunderstands our
4 question. We support Rule 70 as well. However, once the Prosecution
5 decides to call a witness, we believe that anything and everything he
6 reviewed should be provided to the Defence and should be open for
7 discussion during, at the very least, cross-examination.
8 Now, the Court's ruling was rather specific when we questioned
9 Mr. Ruez, that the absence of a United States government counsel
10 restricted us from going further, and I believe my learned friend
11 Mr. Bourgon is correct. This should have been anticipated, and I
12 discussed it, quite frankly, with Mr. McCloskey, among other issues
13 including aerial imagery, and I also discussed it with my learned friend
14 with the United States government, that I would be asking these types of
15 questions. They should be prepared now to share their position on that.
16 Perhaps the United States government does not object to this
17 question, and I would invite the Court to, if allowed, respectfully, to
18 hear the position from the United States government.
19 JUDGE PROST: Mr. Ostojic, before we get to that, your question
20 didn't relate just to the United States government. Your question related
21 to other countries, requiring the witness to then outline which other
22 countries, which could include a vast array of countries, as far as we
23 know. So I think it's a bit premature to get to the question of the
24 United States.
25 JUDGE AGIUS: Exactly, I couldn't agree more.
1 MR. OSTOJIC: But I should not -- and thank you, Your Honour. I
2 should not be prohibited in asking the question of what countries. If in
3 fact there were more countries, then it's the obligation, I believe, of
4 the Prosecution to get Rule 70 clearance.
5 JUDGE AGIUS: But I think we are missing -- we are missing the
6 most important point in this whole discussion; namely, if the Prosecution
7 is telling you Mr. Butler, at the time he worked for the Prosecution, may
8 have become privy to information and the sense that other countries
9 outside the former Yugoslavia may have provided intercept information
10 relating to the July 1995 events, does not mean that the witness now, who
11 is a witness, an expert witness and no longer part of the Prosecution
12 team, is free to divulge that information if he couldn't divulge it at the
13 time he was working for the Prosecution because it was covered by Rule 70
14 privilege. This is the whole point.
15 Does the fact that a witness who was part of the Prosecution and
16 who ceases to be part of the Prosecution and becomes an expert witness
17 here, even albeit a Prosecution expert witness, mean that he has no longer
18 the obligation to keep Rule 70 protected evidence protected? This is the
19 whole issue.
20 MR. OSTOJIC: And I agree, Mr. President, and that's the very
21 reason why his lawyer's in court today, and his lawyer from the United
22 States government can take that position, if they so desire, that it's
23 confidential and should remain confidential. But the Court, I should
24 suggest, and certainly not the Prosecution, can make that ruling with
25 respect to this witness.
1 JUDGE AGIUS: Right.
2 Yes, Mr. Bourgon.
3 MR. BOURGON: Mr. President, we believe that you have exactly --
4 [Trial Chamber confers]
5 JUDGE AGIUS: Yes, go ahead. Sorry for interrupting you like
6 this, Mr. Bourgon.
7 MR. BOURGON: Thank you, Mr. President.
8 We believe that the Trial Chamber has pinpointed the exact
9 situation. If the witness has had access to information, information
10 which is relevant to his expertise and information which he cannot
11 disclose today, for whatever reason, Rule 70 or another reason, then the
12 witness is not in the position to give a complete testimony in all
13 fairness to the accused in this courtroom; and, therefore, his testimony
14 should be stopped.
15 If my colleague wants to put a witness on the stand who has worked
16 before with the Office of the Prosecution, he should have obtained the
17 necessary clearance for the witness to be able to answer these questions.
18 Thank you, Mr. President.
19 JUDGE AGIUS: Thank you, Mr. Bourgon and Mr. McCloskey, and that
20 will be the end.
21 JUDGE KWON: Just before hearing from you: Mr. Bourgon, just a
22 brief question.
23 On your part, having known that the witness had access to whatever
24 material, why did you not ask for the access to it beforehand, before the
25 witness comes to the courtroom? Why did you not bring the attention of
1 the Chamber to that issue?
2 MR. BOURGON: Because the burden is not on us. We don't know what
3 the witness is testifying about. We don't know what we will do, what we
4 will cross-examine the witness on until we've heard examination-in-chief.
5 It is not for the Defence, Judge, to identify the positions.
6 JUDGE KWON: That did not appear in the examination-in-chief, the
7 intercepts, potential intercepts, by other countries.
8 MR. BOURGON: But one of the things the Defence will necessarily
9 do, as part of cross-examination, is go to the sources that were used or
10 that were available to the expert to make his testimony. If we have
11 information of material that was used, it is normal for the Defence to
12 take it for granted that the witness will be able to go back to these
13 sources and talk about them.
14 Today, we are surprised to hear that at the first question that is
15 asked about some material, about some of the sources, by my colleague
16 Mr. Ostojic, that we have an objection from the Prosecution saying the
17 witness can't do that. It was for the Prosecution to seek the Rule 70
18 clearance if there is a Rule 70 issue. The Defence is not in a position
19 to know whether there is a Rule 70 issue or not until it comes up.
20 It is for the Prosecution. The burden is on the Prosecution to
21 identify these issues and to make it sure that the witness will be able to
22 give full and complete testimony in all fairness to the accused in this
24 Thank you, Mr. President.
25 JUDGE AGIUS: Thank you.
1 Mr. McCloskey.
2 MR. McCLOSKEY: Mr. President, as Judge Kwon pointed out, we have
3 not elicited from Mr. Butler anything to do with intercepts from any
4 countries aside from the former Yugoslavia, and there is no law supporting
5 this outrageous argument that it is incumbent upon us to seek Rule 70
7 There has been no suggestion by the Prosecution of any such thing
8 in any country. This is a fishing expedition on whether or not even the
9 United States has a dog in this fight, and we cannot assume, by calling on
10 the United States, that they do. That would be, in itself, a Rule 70
11 violation. They're not here as Mr. Butler's personal lawyer. They're
12 here to look after the interests of the United States, and I'm here to
13 look after the interests of Rule 70 in this case.
14 We have not used any such material. This door needs to remain
15 closed. We can't fish on whether or not any country has provided us
16 information that we're not relying on. It's just inappropriate and goes
17 well beyond the scope of Rule 70.
18 JUDGE AGIUS: Thank you.
19 Mr. Bourgon, I said that --
20 MR. BOURGON: May I add one short detail, Mr. President?
21 JUDGE AGIUS: Come on, and that's the end of it.
22 MR. BOURGON: Mr. Butler is testifying because he was a former
23 employee of the United Nations and the Office of the Prosecutor. Once
24 the -- the day that he is called as a witness, it is fair for the Defence
25 to assume that my colleague from the Prosecution has obtained the
1 necessary clearance so that the testimony can be complete.
2 Thank you, Mr. President.
3 JUDGE AGIUS: Mr. Haynes.
4 MR. HAYNES: I'm going to make four points as briefly as I can.
5 The first, I think, Mr. Bourgon has sought to make, and it's the
6 answer to Judge Kwon's observation, is that the duty of disclosure,
7 whether it be material supportive of their case or exculpatory of the
8 case, is upon the Prosecution.
9 The second point is this: I don't think anybody here contends
10 that Mr. Butler today is not an OTP witness. If Mr. McCloskey wants to
11 contend that, I will put before him an e-mail he sent me only a couple of
12 weeks ago in which he used the phrase, "We all agree Butler has his OTP
13 hat back on." He's an OTP witness, plain and simple.
14 The third really goes to the substance of where we've got to. The
15 point that Mr. Ostojic is seeking to make is a simple one, and I'm sure
16 we're all following it. The point he's seeking to make is that
17 conclusions that Mr. Butler has come to in his narrative are necessarily
18 biased because he has ignored material that might have pointed him in a
19 different direction.
20 The objection that is made at this moment is premature.
21 Mr. Ostojic has really not got past first base, to use an expression he'd
22 understand. It is not the question that is protected by Rule 70, it's the
23 material itself. There's really a three-stage process. Did the OTP ask
24 for it? Did they get it? Where from? And what was it?
25 And so far, all Mr. Ostojic has asked is, "Was it requested?" And
1 I simply do not see how it can sensibly be contended that the answer to
2 that question is in some way protected by Rule 70. It may be that
3 Mr. Ostojic cannot go to base 2 or base 3.
4 But to make his point that Mr. Butler's conclusions are biased
5 because he has been blinkered to material or been denied material, to use
6 the words he used in the Blagojevic case, the answer to this question is
7 not protected by Rule 70 and can't be.
8 Those are the submissions I make in support of Mr. Ostojic's
10 JUDGE AGIUS: Thank you.
11 Do you wish to add anything, Mr. McCloskey?
12 MR. ZIVANOVIC: I'd just like to join to the submission.
13 JUDGE AGIUS: All right.
14 MR. McCLOSKEY: Just in brief response to his honoured QC from
15 Mr. Pandurevic --
16 MR. HAYNES: That is offensive, I'm sorry. That is offensive, and
17 I want an apology for that.
18 MR. McCLOSKEY: I'm sorry. In my knowledge, I thought I was
19 paying you respect.
20 MR. HAYNES: No. I don't believe you did think that for a minute.
21 MR. McCLOSKEY: I'm sorry. I thought that was an appropriate
22 title. I'm sorry if it wasn't.
23 JUDGE AGIUS: Okay. Let's move. I can understand Mr. Haynes
24 perfectly well, but it's probably the American approach, as distinct from
25 the English approach. Two great countries divided by the same language,
1 as they say.
2 MR. McCLOSKEY: I will seek his guidance on the appropriate --
3 JUDGE AGIUS: You are usually --
4 MR. HAYNES: "Mr. Haynes" will do fine from now until the end of
5 the trial.
6 JUDGE AGIUS: Usually, we have the same problem between husband
7 and wife.
8 MR. McCLOSKEY: True.
9 The question is: Question 1, on whether or not Mr. Butler has or
10 the investigation has sought Rule 70 is not relevant, because question 2
11 can never be answered, because it must remain in secret if any country
12 responded in any way, because that answer provides the kind of
13 intelligence information that those countries do not want public.
14 So the first question is not relevant because the second part can
15 never be relevant. You've got to get to first base before you get to
16 second base.
17 JUDGE AGIUS: All right.
18 Mr. Ostojic, do you wish to add anything, very briefly?
19 MR. OSTOJIC: Certainly, I endorse what my learned friend Mr.
20 Haynes said. But to just respond to what the OTP said earlier, when they
21 say that the United States government doesn't have a dog in the fight and
22 his analogy about fishing, really, if we look at the aerial images, we
23 know that they've asked for them. They've produced them with no problems
24 with respect to Rule 70. We were allowed to see that there were some
25 differences, and I'm going to inquire of that of Mr. Butler, as learned
1 friend knows, as does my friend from the United States government. So to
2 suggest that is just not correct, and it's simply not true.
3 We have a right to know this information. It is not our
4 obligation to ask them every day for materials that witnesses have relied
5 on. This Court has ordered it. The Rules of this Tribunal require it,
6 and they've simply fail to abide by both these rules and the Court's order
7 in connection with producing all the materials in their possession with
8 respect to witnesses.
9 JUDGE AGIUS: Right. But you're, again, singling out the United
10 States government, when the Prosecution has made it clear that we're not
11 talking of any one particular country, but possibly of multiple countries.
12 Yes, Mr. McCloskey, and let's finish it, please. Let's bring it
13 to an end.
14 MR. McCLOSKEY: Absolutely, Mr. President.
15 Mr. Ostojic now brings the discussion to aerial imagery, and
16 that's different.
17 JUDGE AGIUS: We're not dealing with aerial imagery here.
18 MR. McCLOSKEY: I was just responding to that argument.
19 JUDGE AGIUS: Okay. You don't need to.
20 [Trial Chamber confers]
21 JUDGE AGIUS: So, Mr. McCloskey, before we proceed any further,
22 particularly before we proceed with any kind of decision, we would like to
23 know from you the following:
24 You've identified one country, that being Croatia, in respect of
25 which there are no Rule 70 restrictions. We're only talking of possible
1 intercepts. Is there any other country that has imposed the Rule 70
2 embargo in respect both -- or has asked for Rule 70 application, both in
3 respect of the fact that they may have received a request from you for
4 such information, from you, I say the Office of the Prosecutor, or that
5 they may have supplied such information or has not supplied such
7 MR. McCLOSKEY: Mr. President, just -- just to clear up Croatia
8 briefly, they have provided us a body of intercepts which we have provided
9 the Defence, and there's been testimony on them. The actual workings of
10 how those intercepts were taken and all is currently part of another
11 investigative team, and they're dealing with, I think, some issues along
12 this line. But as for the body of Croatian intercepts that are out there,
13 yeah, that's -- that's not Rule 70.
14 There are other countries. There are multiple countries involved
15 in requests of these kind.
16 JUDGE AGIUS: And are you invoking the Rule 70 in respect of each
17 and every one of these other countries?
18 MR. McCLOSKEY: Absolutely.
19 JUDGE AGIUS: Absolutely.
20 MR. McCLOSKEY: As was expected when requests of this nature are
21 made, they're made under Rule 70 and they don't go -- you know, we never
22 get involved in the -- in the requests, nor of course the responses.
23 JUDGE AGIUS: Okay. Thank you.
24 JUDGE KWON: Any other country that has not put Rule 70 condition
25 in relation to intercept, other than Croatia?
1 MR. McCLOSKEY: Well, I don't want to suggest that there's any
2 countries that have even, because that's really not appropriate. But as
3 for countries -- well, we had the RS and there's some intercepts from the
4 RS, very few, but there's never -- there's been lots of requests, but I
5 don't think they're saying or I've never heard them say Rule 70 in
6 response to that. That's a little more complicated issue. But -- I'm
7 sorry, let me look again at your question, Judge Kwon.
8 JUDGE AGIUS: The question is what Judge Kwon -- or I was going to
9 say "Mr. Justice," because that's what I'm used to. What Judge Kwon
10 highlights, very simply put, is the following: You may have, when
11 approaching these countries yourself, indicated Rule 70 privilege. What
12 he is suggesting is that, however, in providing you with information or
13 material, these countries may not have insisted on Rule 70 privileges.
14 MR. McCLOSKEY: I'm not aware of any other -- any other
15 information relating to intercepts that's out there in a non-Rule 70
16 world. None, not right now, and I'm trying to think if I'm missing
17 something, but, no. Just that there's a few references to the RS, there's
18 one intercept we picked up in the Bratunac Brigade that had to do with
19 Naser Oric and Halilovic in 1992, which the Defence should have. But
20 other intercepts out there or intercept information, I can't think of
21 anything right now, but I'll continue to think. I can't think of anything
23 JUDGE AGIUS: Thank you.
24 JUDGE KWON: And the conditions of Rule 70 are such that whether
25 the country has been asked itself, the fact should not arise in the course
1 of trial?
2 MR. McCLOSKEY: You know, I was thinking about that question as
3 well. Perhaps the question to test the Prosecution's -- well, have we
4 done our homework, "Have you gone and asked for information out there in
5 the Rule 70 world," I think that's probably, by itself, a fair question to
6 test our ability or to test whether or not we've done what we should do.
7 But anything, any inference related to that, aside from whether
8 we've done proper investigative work, I don't think should be allowed; for
9 example, who we ask such a question to, anything that would cause an
10 inference that a country did or did not have it, answered or did not
11 answer. Because, of course, if we'd ask a particular country, someone may
12 infer that we knew something about that country that led us to believe
13 they had that information, which -- so in the intelligence world, the
14 question is sometimes as important, if not more so, than the answer.
15 So the question, the broad question, "Have you gone besides your
16 own investigation, you know, and asked outwardly," I think to test whether
17 we've done a proper job, is okay. So, in that respect, I would pull back
18 a bit from my more definitive position, but it needs to be general. It
19 shouldn't be directed to one country or another, because inferences should
20 not be drawn in that context, in my view.
21 [Trial Chamber confers]
22 JUDGE AGIUS: So let's go back a little bit in time to page 39.
23 There were two questions put by Mr. Ostojic. One was a generic one, which
24 has been answered and which we would have allowed, anyway:
25 "Did you, sir, at any time review or request intercepts that may
1 have been received from other countries or taken by other countries for
2 the period in July of 1995?"
3 The witness answered: "I am aware that the investigative team did
4 request that information, sir."
5 Then it's the second question that we will not allow:
6 "Can you list for me the countries that they requested that
7 information from?"
8 Our decision is that the witness, because of Rule 70 restrictions
9 that have been indicated by Mr. McCloskey, should not be in a position to
10 identify countries that may have been asked or provided or not provided
11 such information.
12 I need to discuss one further point with my colleagues.
13 [Trial Chamber confers]
14 JUDGE AGIUS: We also decide, I just wanted to make it clear, that
15 we are unanimous on this, that as a follow-up to Mr. Ostojic's first
16 question and the witness's answer, namely, that: "I am aware that the
17 investigative team did request that information, yes, sir," it's perfectly
18 legitimate for Mr. Ostojic to put a further question, namely:
19 "Does that mean that you had at your disposal other intercepts
20 from other countries?"
21 The witness can answer that question, but the matter stops there.
22 You cannot proceed any further with asking questions which would tend to
23 identify one or more of these countries that we have the assurance of the
24 OTP are covered by Rule-- or information which is covered under Rule 70
1 Yes, Mr. McCloskey.
2 MR. McCLOSKEY: Could you perhaps explain that to Mr. Butler so
3 it's clear to him? He knows about the Croatian intercepts and will
4 probably want to respond to that.
5 JUDGE AGIUS: Probably, if there were others, he knows about
6 theirs as well. Okay. All right. I will, Mr. McCloskey.
7 MR. McCLOSKEY: I think he knows about the Croatian.
8 JUDGE AGIUS: Thank you.
9 Let's bring Mr. Butler back in, please.
10 [The witness entered court]
11 JUDGE AGIUS: Welcome back, Mr. Butler.
12 THE WITNESS: Sir.
13 JUDGE AGIUS: At the end of the day, you would have had more
14 breaks than we have.
15 You were asked a question by Mr. Ostojic some minutes ago, which
16 was the following: "Did you, sir, at any time review or request intercepts
17 that may have been received from other countries or taken by other
18 countries for the period in July of 1995?"
19 To which you answered: "I am aware that the investigative team
20 did request that information, yes, sir."
21 You did not answer whether, in fact -- you did not state whether,
22 in fact, you had at your disposal and reviewed and consulted other
23 intercepts possibly provided from or by other countries. So if you are
24 asked that question, you are requested to answer it, whether you did
25 consult other intercepts from other countries.
1 However, if you are asked to give an indication or to list which
2 are these other countries that provided such intercepts, with the
3 exception of Croatia, you're not allowed, you're not permitted to mention
4 or identify any other country.
5 Is that clear?
6 THE WITNESS: Yes, sir.
7 JUDGE AGIUS: Okay. Thank you.
8 Mr. Ostojic.
9 MR. OSTOJIC: Thank you, Mr. President.
10 Q. Sir, I'll put the question the Court permits. Did you -- first
11 let me ask you this: You mentioned that the investigative team requested
12 that information, and certainly you were part of that team; correct?
13 A. That is correct, sir.
14 Q. Who, in particular, requested that information?
15 A. That information was all bundled into the request and done so
16 under the direction of Mr. Jean-Rene Ruez, the investigation team
18 Q. And we'll talk about the commander in a little bit, but did you
19 have at your disposal, in order to review, these other intercepts from
20 other countries?
21 A. No, sir. I never had that material at my disposal at all.
22 Q. Now, we were discussing the material that you haven't received or
23 reviewed, which would, for lack of a better term, as you put it, create
24 some bias in your report. We covered the intercepts for now, and we'll
25 come back to them.
1 What about the documents from the ABiH Army? Did you obtain and
2 review all the documents with respect to the ABiH military from July 1995?
3 A. No, sir. I did not do a comprehensive review of all of the
4 documents from the ABiH Army. The -- we did review, for the month of
5 July, material that we were able to obtain in a subsequent search of
6 2 Corps that the Office of the Prosecutor did, as well as some ABiH Army
7 documents that the VRS Zvornik Brigade had by virtue of their capture of
8 the 28th Infantry Division records at Srebrenica.
9 Q. Did you review any records from the ABiH Army in connection with
10 the period of July 1995 to determine their strategic, operational, or
11 tactical orders from the ABiH Army?
12 A. Yes, sir. From the context of the documents that I just
13 described, that was one of the reasons why I did look at them, yes, sir.
14 Q. And can you tell me, sir, if you reviewed documents which would
15 reveal the military strength of the Bosnian Muslims in Srebrenica in July
16 of 1995?
17 A. Yes, sir. I believe some of those documents did give either in
18 broad terms or actually troop lists.
19 Q. And what was the number that you saw?
20 A. I don't recall, off the top of my head, what the end strength was
21 for the 28th Infantry Division from those documents. You probably could
22 refresh my memory, but I just don't recall offhand.
23 Q. What about the weapons that were smuggled into Srebrenica in
24 1995? Did you get a comprehensive list or data from the ABiH Army with
25 respect to that?
1 A. The material and my understanding of that is again from the
2 documents that we've discussed. Investigatively, we didn't go to the ABiH
3 and ask for a laundry list accounting of that material.
4 Q. Let me turn to another subject, and that's aerial photographs. We
5 discussed it briefly with Mr. Ruez, your commander, as you put it. Did
6 you receive aerial -- or did you request and receive aerial photographs as
7 to how many Muslim soldiers or combatants made it to Tuzla in July of
9 A. No, sir, not to my knowledge.
10 Q. Did you ever request --
11 A. I don't know how you're going to get that, but okay.
12 Q. Tell me your understanding of what an aerial photograph is.
13 A. Overhead aerial imagery, that's either taken from what we call
14 air-breather platforms, which would be aircraft, or non-air-breathing
15 platforms, which is satellite imagery.
16 Q. And is that done on a continuous basis, do you know, in July of
17 1995, or was that done sporadically?
18 JUDGE AGIUS: Yes. That is covered by Rule 70, Mr. Ostojic.
19 MR. OSTOJIC: Thank you, Mr. President.
20 Q. Sir, help me with this: Did you analyse the aerial photographs?
21 A. The overhead imagery that was provided to the Office of the
22 Prosecutor, I did, in fact, look at and used it as a component of my
24 Q. And we'll call it an overhead imagery, if you'd like, although we
25 were asked to call it, I thought, an aerial photograph. But just so we
1 understand from looking at the transcript, that we're talking about the
2 same thing. This overhead imagery that you looked at, was that given to
3 you in hard copy or on disc or CD?
4 A. It was provided to us hard copy.
5 Q. Now, was anyone able, including Mr. Ruez, to remove any of the
6 data that was on this hard copy of this aerial photograph or overhead
7 imagery that you referred to?
8 A. I don't think that was possible, no, sir.
9 Q. And why wouldn't it be possible?
10 A. The -- well, I mean, for the same reasons, you know, on any hard
11 copy product, if you start trying to modify or change a hard copy imagery
12 product, like a photograph, there's going to be, you know, presumably
13 noticeable marks on that. You know, I guess there's, you know, with newer
14 technology, obviously the possibility of scanning hard copy and making a
15 digital copy, doing the Photoshop and then spitting it out that way. But,
16 I mean, to my knowledge, the substance of the images were not altered by
17 Mr. Ruez for any reason.
18 Q. And now, sir, do you remember if these overhead imageries that you
19 reviewed, whether they had the symbol from NIMA, which is the National
20 Imaging and Mapping Agency of the United States?
21 A. I don't recall whether they had them on the original hard copies
22 that were provided under Rule 70 or not. They may have. I just don't
23 recall at the time.
24 Q. Each and every one of them would have had it?
25 A. Each and every hard copy was labelled with respect to basic
1 information as to what the title of the image was, as well as with respect
2 to which direction north was so we could orient it. I remember a stamp
3 saying, "Property of the United States Government, Rule 70," but I can't
4 recall at this juncture whether a particular image had a particular agency
5 reference on it.
6 Q. And what about dates? Did they have dates that were in a block
7 that were on the overhead imagery at all?
8 A. I believe, on the original overhead imagery, it did give us a date
9 block, yes, sir.
10 Q. Did it give you a description of what it is that is purportedly
11 reflected in the imagery?
12 A. The original Rule 70 ones, there was an analyst description, one
13 or two lines, as to what the analyst believed the -- a particular part of
14 the image described.
15 Q. I want to go back -- and we'll come back to the aerial imagery a
16 little later, but I just want to cover this other material that perhaps
17 was not in your possession or you didn't review.
18 How about documents from the Main Staff? Do you, sir, think that
19 you got a complete list of all the documents from the Main Staff?
20 The reason I ask you that, just to put it in context: On January
21 16th, 2008, well, during your testimony here on page 11 through 12, you
22 stated that you don't recall if you have any records relating to the Main
23 Staff duty officer.
24 So my question to you is: Did you obtain a comprehensive group of
25 documents from the Main Staff?
1 A. I'm not aware that the OTP has ever obtained a comprehensive list
2 of documents from the Main Staff.
3 Q. Do you know, sir, if at any time you reviewed a vehicle log or
4 vehicle logs from the Main Staff?
5 A. No, sir.
6 Q. Did you ever endeavour to search and obtain such information?
7 A. Yes, sir, we did; and, in fact, that was the genesis of a future
8 OTP search at the RS Ministry of Defence. As part of that search, we also
9 talked to individuals who allegedly had information about Main Staff
10 related documents, and those particular individuals were not able to tell
11 us where the Main Staff archives, as we used to call them, were located.
12 Q. So you never obtained them; correct?
13 A. To my knowledge, we still do not have a comprehensive collection
14 of material that we call the Main Staff archives, no, sir.
15 THE INTERPRETER: Interpreter's note: Please pause between
16 question and answer. Thank you.
17 JUDGE AGIUS: Did you hear the interpreters asking you to pause
18 between question and answer?
19 MR. OSTOJIC: Rather clearly.
20 THE WITNESS: Yes, sir.
21 JUDGE AGIUS: Okay. Thank you. Please comply.
22 MR. OSTOJIC:
23 Q. Sir, you also state, in your prior testimony and I think here
24 during your testimony in this case, that you also don't, as a general
25 rule, cite or attribute substantive information to witness interviews. Is
1 that correct?
2 A. Yes, sir, that is correct.
3 Q. And the reason you don't is because you're being brought here as
4 an analyst for the OTP to provide context behind the documents and the
5 intercepts, not to pass value judgements as to whether or not you believe
6 or don't believe a witness and whether you can corroborate or not
7 corroborate such witness's testimony. Would that be fair?
8 A. I'm not sure if that's the -- the complete accurate of what I'm
9 trying to say behind this. My view is: It's not my job, with respect to
10 these proceedings, to comment as to whether or not a particular witness is
11 accurate or is not accurate or is complete.
12 As an analyst, my ability to make a determination as to the full
13 truthfulness of an individual who's given a witness statement is limited,
14 particularly in the more advanced stages of our analysis, when, you know,
15 there was an understanding that we would be going into court in the
16 General Krstic case.
17 You know, as a matter of practice, I didn't want to be in a
18 position where I was relying for substantive issues on statements of
19 individuals who I was aware that the Office of the Prosecutor was going to
20 call as a witness and that, in that context, you know, the Court would
21 make the determination as to the information and to the usefulness or
22 veracity of it.
23 Q. Thank you, Mr. Butler. And let me just try to end before the
24 break, if it's still at the same time. You know, people have called you a
25 military expert, an intelligence analyst; but the truth of the matter,
1 isn't it, Mr. Butler, that the report that you're giving here today and
2 that you gave is more of as a historical analyst, is it not?
3 A. In the particular context of the crime scene that we are working,
4 yes, it is a historical analytical report. I am not being asked to do
5 predictive analysis.
6 Q. So --
7 JUDGE AGIUS: In respect of the rest --
8 MR. OSTOJIC: I'm sorry, Your Honour. I wasn't looking at
9 Mr. President. Was that directed to me?
10 JUDGE AGIUS: No, no. It was directed to Mr. Butler.
11 THE WITNESS: I don't understand what you're asking, sir.
12 JUDGE AGIUS: What I'm asking is and the question was: "Isn't it
13 correct, Mr. Butler, that the report you're giving here today and that you
14 gave is more of a historical analyst, is it not?"
15 Then you said: "In the particular context of the crime scene that
16 we are working, yes, it is a historical and analytical report. I'm not
17 being asked to do predictive analysis."
18 In respect to other sectors of your report?
19 THE WITNESS: No, sir. My report obviously deals with a fixed
20 point in time, either with respect to the crime base of July of 1995; or,
21 with respect to the command reports, the past practices and rules and
22 regulations of the VRS as they were applied in July of 1995. In that
23 context, they're historical.
24 However, as I've noted in the context of my very first report,
25 it's not designed to be a historical overview. There are many political,
1 there are many military, there are many diplomatic issues that are
2 obviously related to these things that are beyond my ability to analyse
3 and intelligently comment on.
4 So, in that respect, you know, I go back to the original purposes
5 of my report, which were to set the framework for the military context and
6 how they related to the crime bases that were being investigated, with
7 respect to the actual linkage of military units to crime scenes and the
8 actual roles and responsibilities of individuals designated as commanders
9 or other members of those units with respect to their roles and
10 responsibilities under the VRS rules as they applied.
11 By design, that is where I limited my analytical focus to.
12 JUDGE AGIUS: Okay. That's clear enough.
13 Mr. Ostojic.
14 MR. OSTOJIC: Thank you, Mr. President.
15 Q. Sir, let me ask you, before we go on this break, with respect to
16 Rule 68, are you familiar with that rule?
17 A. Yes, sir, I am.
18 Q. And you were familiar with it when you were working for the OTP
19 for those six years; correct?
20 A. Yes, sir. I mean, beyond even my own analytical practices of
21 keeping other options open, particularly as we got into the situation
22 where individuals were indicted and subsequently apprehended, and
23 particularly in the case of General Krstic, where he was interviewed and
24 did articulate some of these various other -- I don't want to say -- I
25 mean, in short, the fact -- yes, it is.
1 Q. You are familiar with it?
2 A. Yes. I mean, the fact that we held that open, those possibilities
3 open, specifically because that was part of meeting our Rule 68
5 Q. I'm just talking about you right now. We'll come back to Mr. Ruez
6 and other people on this investigative team. But is it true that in the
7 Krstic case, you were primarily used by the OTP as a vehicle to provide
8 information that was believed to be Rule 68 in that regard?
9 MR. OSTOJIC: Just so my learned friends have the cite, November
10 17, 2003, page 4717.
11 Q. Is that correct?
12 A. I'm sure that during the Krstic case, that there were times that I
13 did testify about material that was deemed to be Rule 68, and my presence
14 in the courtroom made it a mechanism to do that, yes, sir.
15 Q. Were you the person who's in charge and used as a vehicle to
16 provide information which was believed to be Rule 68?
17 A. I was not in charge of Rule 68, no, sir.
18 Q. Who was on your investigative team while you were there?
19 A. The lawyers collectively were the ultimate arbitrators of whether
20 or not information was Rule 68. The analysts and the investigators, when
21 they recognised information that might fall into that category, we brought
22 it to the trial attorneys.
23 Q. And what was the mode of communication that you brought it to the
24 trial attorneys; written, oral, or any other type?
25 A. Usually, I would park in their office and explain it to them.
1 Q. And you would not keep a memo of it or record contemporaneously
2 that you thought document X, Y, and Z may potentially be Rule 68?
3 A. Those discussions that may exist would be relevant to e-mails --
4 Q. No, no.
5 A. -- yes. So, I mean, there are, I'm sure, written references to
6 it. I know, from my own purposes, there were notes and everything else
7 that I would be keeping; and if there were issues that I believed -- or
8 discussions on Rule 68, I would note that. So, certainly, notes do exist.
9 Q. And that's from every member of the team; correct?
10 A. I can't speak for every member of the team. I can only speak for
11 the military analysts who were working for me.
12 Q. Did you, sir, you yourself, ever assemble or gather materials that
13 may be deemed Rule 68 for any of the accused in this case?
14 A. In this particular case, with respect to Colonel Pandurevic, yes,
15 simply because he was someone who we had indicted early on. After leaving
16 the OTP, my ability to do that, you know, to rifle through document
17 collections and things of that nature, was considerably more limited. So
18 I can't say that I specifically went through the volume collections
19 looking for Rule 68 information.
20 Q. How many military analysts were there with the OTP on this
21 investigative team that was led by Mr. Ruez?
22 A. Myself; my partner, Ms. Amanda Brettell; my research assistant or
23 our research assistant, Ms. Sally Lattin; and a group of either
24 translators or language assistants who would rotate through.
25 Q. Who in that group was in charge of gathering materials that may be
1 deemed Rule 68 for Mr. Ljubisa Beara?
2 A. I don't know the answer to that. I mean, my understanding, in the
3 case of Beara, was that I was gone by that time, so I can't answer the
5 JUDGE AGIUS: Shall we continue after the break, Mr. Ostojic?
6 MR. OSTOJIC: Yes, Mr. President. Thank you.
7 JUDGE AGIUS: Thank you.
8 We'll have a 25-minute break. Thank you.
9 --- Recess taken at 12.32 p.m.
10 --- On resuming at 1.04 p.m.
11 JUDGE AGIUS: Mr. Ostojic.
12 MR. OSTOJIC: Thank you, Mr. President.
4 Q. What about the dates that may appear on these various images? Was
5 that ever altered or erased by Mr. Ruez?
6 A. No, sir. The dates, no.
7 Q. Right. I wouldn't expect it to be, because that would even - we
8 can agree on this, I'm sure - that would be not only unethical. It would
9 be wrong, biased, and it would be something that is not comprehensible;
11 A. Like I said, I mean, you know, there were issues where we went
12 through and tried to determine better times and everything else; but I'm
13 not aware that on US government imagery, that a date was arbitrarily
14 changed by the Office of the Prosecutor to reflect what day it was.
15 Q. How about erased?
16 A. I don't know what the imagery products look like in this trial, so
17 I don't know whether they were erased or not. I mean, I know that in
18 previous trials, as a practice, we did not erase dates. When we made
19 products for court, we asked for the unannotated versions from the US
20 government, and then the dates were put on by the Office of the
21 Prosecutor. They reflected the same dates.
22 Q. But to change or alter or to erase dates, to answer the question
23 that I posed earlier, would you consider that to be unethical?
24 MR. McCLOSKEY: Objection. This was dealt with Mr. Ruez, the
25 person that was involved with this, and that's the appropriate place to
1 deal with it, not to -- not having Mr. Butler speculate on products that
2 were made for this court.
3 JUDGE AGIUS: And the witness has already agreed with Mr. Ostojic
4 in any case, so let's move to your next question, please.
5 MR. OSTOJIC: Thank you, Mr. President.
6 Q. Let's look, if you don't mind, on Exhibit P02103, which is a photo
7 book that was used and provided by Mr. Ruez in his testimony of the 18th
8 of September, 2006.
9 MR. OSTOJIC: And I'd like us to look at image number 236, if we
11 Do you have that in front of you, Mr. Butler?
12 A. Yes, sir, I do.
13 Q. Great. Now, you see the emblem on the box in the centre of the
14 image on the left side?
15 A. Yes, sir, I do.
16 Q. And that's from NIMA; correct?
17 A. It's a little small, but I'll take your word for it. If you want
18 to blow it up, I can confirm it, but I don't believe it's necessary.
19 Q. I don't believe it is, but we can confirm it if you have any
21 A. I can confirm it, sir, yes.
22 Q. Okay. Thank you for that. Now, did every -- since you received
23 these aerial images in hard copy, to the best of your recollection, did
24 every aerial photograph or imagery contained this emblem?
25 A. From the material provided by the US government for the -- part of
1 the investigation, I don't recall whether it did or not. No, sir, I don't
3 Q. Did it include the little box right under the emblem with the date
4 or was that something that was placed there by the Office of the
5 Prosecution and their investigative team?
6 A. No, sir. The captions that are encircled in white are placed by
7 the United States government. Any annotations to the image, at least was
8 the policy that -- when I was here, annotations to the image in yellow are
9 those that are placed by the Office of the Prosecutor.
10 Q. Help me with the white box on the lower right-hand side, where I
11 believe it's, "February 1st, 2000," or maybe I'm misreading it. But it
12 has some digital numbers and then it has the "1" and then space, two
13 zeros, and then "FEB." Do you see that?
14 A. Yes, sir, I do.
15 Q. Having worked with the United States military, can you tell us
16 what that means?
17 A. No, sir. That particular sequence number is not a number that is
18 normally associated with products like this. I don't know what it means.
19 Q. Well, what sequence -- what sequence numbers would be associated
20 with products like these if this is isn't one --
21 JUDGE AGIUS: Yes, Mr. McCloskey.
22 MR. McCLOSKEY: I think we've gone far enough into something he
23 doesn't know, and this is obviously trying to break the veil of Rule 70.
24 MR. OSTOJIC: Mr. President, if I can just be heard briefly, and I
25 know we probably -- I've probably exhausted your patience on this, and I
2 These were the very same questions we asked of Mr. Ruez on the
3 14th of September, 2006, and I can give you the page cite. They objected
4 and said, "We'll wait," and the Court said, "We'll wait and we can get
5 those answers when there's a US government attorney here." So --
6 JUDGE AGIUS: Okay. But independent and irrespective of all that,
7 the witness has told you he hasn't got a clue. So if he hasn't got a
8 clue, what that means, how can you proceed with your next question, the
9 one that you put?
10 Mr. McCloskey is right. I mean, you can't ask a second question
11 when the witness has told you, "I haven't got a clue."
12 MR. OSTOJIC: I think if we read his answer -- I won't debate it
13 with the Court. I'll just move on, but we may come back to it.
14 Thank you, Mr. President.
15 Q. Can we now look, sir, at, in this same group of exhibits, P02103,
16 Exhibit 122.
17 MR. OSTOJIC: And just to help, it should be the Bratunac city,
18 Bosnia and Herzegovina, but the pages might be off by one, as we've
19 learned during the break.
20 JUDGE AGIUS: I can't help you there.
21 MR. OSTOJIC: Yes. It would be --
22 JUDGE AGIUS: Is it what you were looking for?
23 MR. OSTOJIC: No, no, Mr. President. The very next one, I think,
24 and they're getting it.
25 JUDGE AGIUS: Is it the right one?
1 MR. OSTOJIC: Yes, it is. Thank you, Madam Usher and Registry.
2 JUDGE AGIUS: Go ahead.
3 MR. OSTOJIC: And am I correct, just for the record, that it's
4 "123"? Would that be correct?
5 "121", you're right. "121", just so we have a clean record.
6 Q. Sir, this is another aerial image. Do you see it?
7 A. Yes, sir, I do.
8 Q. Now, in this aerial image, the NIMA emblem does not appear;
10 A. That is correct, sir.
11 Q. And the digitalised information that we saw in the prior exhibit,
12 236, on the lower right-hand corner does not appear as well; correct?
13 A. Yes, sir.
14 Q. How is that?
15 THE INTERPRETER: Interpreter's note: Please pause between
16 question and answer. Thank you.
17 JUDGE AGIUS: Yes, Mr. McCloskey.
18 MR. McCLOSKEY: Objection. Those kinds of questions are not
19 authorised by the United States, as far as I know. How things are made,
20 why things like that are on the net is an area that I'm fairly clear is
21 something that is not part of the Rule 70 clearance.
22 JUDGE AGIUS: Madam, do you want to intervene?
23 MS. SCHILDGE: Thank you, Your Honours.
24 JUDGE AGIUS: We just need a confirmation or otherwise.
25 MS. SCHILDGE: Yes, I am not exactly -- excuse me. I'm not
1 certain where counsel is going with this, but I think we have been quite
2 clear with the Court and the Defence counsel as to the conditions under
3 which the images were provided to the Office of the Prosecutor and
4 authorised for use in court under Rule 70.
5 I think we submitted two letters to Mr. McCloskey on November 3rd,
6 2006 and August 13th, 2007, that explained how we provided the images.
7 The process of what the Office of the Prosecutor did with those images
8 after they were provided, we did make clear, in a letter that we
9 authorised Mr. McCloskey to share with the Court, that the OTP was
10 authorised to use the imagery to produce materials for use in court,
11 including applying markings that would be clearly distinguishable from the
12 original US government markings.
13 However, we are not or the United States is not in a position to
14 provide any further information about these images. They were provided
15 under Rule 70. I think we have been quite forthcoming about the process
16 by which we provided them.
17 I also do not believe Mr. Butler would be in a position to speak
18 to the US process for providing these images and authorising them for use
19 in court. I understand he was working with the OTP, so he may be in a
20 position to speak to the OTP process for dealing with them, but certainly
21 not with the US government side of it.
22 JUDGE AGIUS: Okay. Thank you.
23 MS. SCHILDGE: Thank you.
24 JUDGE AGIUS: Yes, Mr. Ostojic.
25 MR. OSTOJIC: Shall I continue? I guess not.
1 [Trial Chamber confers]
2 JUDGE AGIUS: Once more, we are fine tuned, and this is a
3 unanimous decision: You pointed out, Mr. Ostojic, to the witness, and
4 actually asked him: "And the digitalised information that we saw on the
5 prior 236 on the lower right-hand corner does not appear as well?" In
6 this one, I mean one-to-one.
7 He answered: "Yes."
8 Then you asked him: "How is that?"
9 That is not the kind of question that we can allow. You can
10 rephrase it in the sense of asking the witness whether the Office of the
11 Prosecutor did any alterations on one-to-one to the extent of removing any
12 such digitalised information that shows in other exhibits, like Exhibit
14 Am I clear or do you want a further explanation? Okay. Thank
16 MR. OSTOJIC: Quite clear.
17 JUDGE AGIUS: And the witness has understood what I said?
18 THE WITNESS: Yes, sir.
19 JUDGE AGIUS: Okay. Thank you.
20 MR. OSTOJIC: Thank you, Mr. President.
21 Q. Now, my learned friend from the US government said that the OTP
22 was instructed that they can apply markings, but, sir, I'm really focusing
23 on eraser of markings from documents given to the OTP by the United States
24 in their original form.
25 The Court put that question to you, sir: Was there anything
1 erased by the OTP?
2 A. I don't know. I was not involved with the process of imagery with
3 respect to the presentation or anything of that nature. I can't tell you
4 what happened, why it happened, or what the motivations were. So, I mean,
5 the short answer is I don't know.
6 Q. Okay. Well, help me with this. Who would know?
7 MR. McCLOSKEY: Objection. Mr. Ruez has spoken specifically to
8 this issue. I don't know if anyone remembers it, but it was a long time
9 ago, and we're getting pretty far afield with this witness.
10 MR. OSTOJIC: Well, again I have to go back; and if the Court
11 looks at the testimony, we were prohibited from asking Mr. Ruez these very
12 questions, Your Honour, specifically --
13 JUDGE AGIUS: Can you answer the question that has been put to you
14 by Mr. Ostojic, in any case?
15 THE WITNESS: No, sir. I mean, I was out of the Office of the
16 Prosecutor in November of 2004. I have no idea what might or might have
17 transpired post that date.
18 JUDGE AGIUS: Okay. So let's move to your next question,
19 Mr. Ostojic.
20 MR. OSTOJIC: Thank you.
21 Q. Sir, with respect to the requests that were made for these aerial
22 images, do you know if they were date-specific or were they general
24 A. The initial collection of aerial images that were provided to the
25 OTP were already here before I had arrived. I don't know the genesis of
1 the request behind that. I know that when we came across a specific piece
2 of information with respect to the investigation, that we felt, for
3 example -- you know, something obvious that we felt that maybe there could
4 be assistance on, like a mass grave or a particular location, we would ask
5 for imagery product of a specific geographic area.
6 What the United States government or what anyone else provided,
7 and the dates surrounding that, were outside our control. We didn't go by
9 Q. Looking at this exhibit from P02103, number 121, do you see the
10 box immediately below the word "Bratunac" on the top left-hand or near the
11 top left-hand corner?
12 A. Yes, sir, I do.
13 Q. Now, is that a box, to the best of your knowledge, that contained
14 a date at some time?
15 A. Sir, to the best of my knowledge, it's a box. I have no way of
16 being able to tell you what was in there.
17 Q. You don't know if, in that box, there was a date and a time?
18 A. No, sir, I don't.
19 Q. As an analyst, did you ever see or do you know why your
20 investigative team would remove dates from the box, if at all?
21 MR. McCLOSKEY: Objection. Same objection.
22 JUDGE AGIUS: Yes, objection sustained.
23 Mr. Ostojic, your next question, please.
24 MR. OSTOJIC: Thank you, Mr. President.
25 Q. Help me with this, with your logic, if you will, Mr. Butler. If a
1 date can be removed from a box such as this on 121, it can be also
2 replaced with a different date and time, can it not?
3 MR. McCLOSKEY: The same objection. This issue has been dealt
4 with by Mr. Ruez. He was allowed to ask questions and answer questions on
5 that. Now he's bringing Mr. Butler in just to speculate.
6 JUDGE AGIUS: And Mr. Butler can only speculate, having already
7 stated that he doesn't know what could and what couldn't be done. He's
8 also explained to you that maybe if there is a scanning and a reproduction
9 of a hard copy, then one can play around, but that's as far as he could
10 get. So your next question.
11 MR. OSTOJIC: Thank you.
12 Q. Sir, it's our position that not only were the dates in the boxes
13 able to be manipulated or erased, but also the data that's contained in
14 the center larger box that you see from members of the investigative team.
15 My question to you is, sir: Do you know if the investigative team had
16 that capacity to do that?
17 A. I have no idea whether they would have or not after my departure.
18 I don't know the answer to that.
19 Q. Let me ask you this question: Do you know if they had the
20 capacity to do it, sir, the technical wherewithal to do it?
21 MR. McCLOSKEY: Objection. We've talked about that.
22 JUDGE AGIUS: Again, we are just in a purely speculative mode
23 here. So let's move, Mr. Ostojic.
24 MR. OSTOJIC: He didn't answer my question. He answered it --
25 [Trial Chamber confers]
1 JUDGE AGIUS: To us, a question asked and answered. So let's move
2 to the next question, Mr. Ostojic.
3 MR. OSTOJIC: Thank you, Mr. President.
4 Q. Mr. Butler, my learned friend at the Office of the Prosecution
5 said that you're kind of an expert or an analyst with respect to documents
6 and that you could really kind of -- when you look at something like, for
7 example, an intercept, that you can determine whether or not it's
8 authentic, or reliable, and things of that sort.
9 Do you remember giving that testimony in your direct examination
10 on January 14th, 2008?
11 A. I'm quite sure that -- I don't think I ever said I could look at
12 an intercept and determine whether it's authentic and the source of a
13 document expert. So I mean --
14 Q. For the sake of time, you are not a document expert; correct?
15 A. In a forensic/technical sense, no, sir.
16 Q. In any sense, sir?
17 A. My expertise is the ability to look at the documents and to
18 determine what they mean contextually on the basis of this crime scene.
19 That's it; that's all I advertise.
20 Q. And you can't tell, by looking at either the aerial images or the
21 intercept, whether or not those documents, from a forensic standpoint,
22 have been altered, modified, changed; correct?
23 A. I can't look at a particular image and tell you, with any degree
24 of reliability, whether it's been altered, doctored, changed, or
25 otherwise. No, sir. It's not my technical field of expertise.
1 Q. Now, in trying to give us this objective review, historically,
2 that you're analysing for us, wouldn't that be something that you would
3 consider in your purported analysis?
4 A. That the national providers of these images might have altered the
5 information in order to make it appear as other things?
6 Q. Not quite.
7 A. Okay.
8 Q. For example, if members of the investigative team that you worked
9 with did that, would that be helpful for you?
10 A. It clarifies it, but, no, I did not consider the fact that for the
11 use of my analysis and what I used the images for, that that was a
13 Q. Did you ever discuss with Mr. Ruez or inquire about this empty box
14 or the ability to remove things from a box on an aerial photograph?
15 A. I have not spoken with Mr. Ruez for the better part of two years,
17 Q. So that means that you have not talked to him at all while you
18 were here, up until November 2004, and subsequent to that, up to the last
19 two years that you've spoken to him, about these empty boxes and the
20 ability of the OTP to alter or change them; correct?
21 A. That is correct, sir.
22 Q. Now, let's talk about the intercepts for a moment. You mentioned
23 them in some of your reports. You didn't obtain any information as to
24 whether or not any of the intercepts that you reviewed were modified,
25 altered, or changed in any way; would that be correct?
1 A. By members, I assume, of the investigative team, as opposed to the
2 provider of the material?
3 Q. We can start there.
4 A. Well, which one is "there"?
5 Q. The investigative team.
6 A. No, sir. I received no information from members of the
7 investigative team that they were deliberately altering the content of
9 Q. What about from the provider, the Bosnian Muslim intercept
10 operators, did you obtain any such information?
11 A. The -- as part of the authentication process, when there were
12 questions as to whether or not there were discrepancies between the
13 versions that were what we call the printout versions or the handwritten
14 versions, I understand that the investigative team and Ms. Frease and her
15 people went out and resolved them.
16 So we knew that there were always going to be minor discrepancies.
17 We've had numbers of occasions where two or three different intercepts
18 appear for the same date and there are discrepancies.
19 Q. Yes. Well, how would you define a major discrepancy? Being this
20 analyst, what would constitute a major discrepancy to you?
21 A. A major discrepancy with the -- with the intent of an intercept
22 would be, for example, where we would have two or three versions of the
23 same intercept and that not only would there be missing gaps, which could
24 be explained by an intercept site not having access to the full component
25 of the transmission, but would be an entirely different context of the
1 discussion. So, in that context, that's what I would call a major
3 Q. Would you also call a major discrepancy if a letter identifying,
4 purportedly, one of the participants was changed or modified on a couple
5 of occasions, so that it would be a different initial or different
6 initials as opposed to the one in its original form?
7 A. I am aware that the names, in Serbo-Croatian, the same last name
8 can be pronounced or even spelled a little bit differently for cultural or
9 parentage reasons, but I'm not aware of a situation where initials that
10 are attributed to correspondence are being arbitrarily changed.
11 Q. Okay. That information is something that you've never come
12 across; correct?
13 A. I may have come across it, but I'm not aware of a situation that's
14 standing out at the moment.
15 Q. Okay. And it's certainly not included in any of your reports, is
16 it, that you said: "Well, this intercept may not be as reliable or
17 authentic because the provider altered or modified, on a couple of
18 occasions, the identity of the purported speaker"?
19 A. Sir, the short version is if I believe that that was the case, it
20 wouldn't be in my report.
21 Q. It would not be?
22 A. Yes. If I believe that that was the case, it would not be in my
24 Q. That analysis or that intercept?
25 A. That intercept. I wouldn't reference it and I would not count on
1 it for any particular reason if the origins -- if I understood that the
2 origins were questionable or if there had been a deliberate attempt to
3 alter it or modify it for the purpose of changing my analysis or steering
4 me somehow.
5 Q. And that would be Rule 68 material, would it not, in your opinion?
6 A. I suspect that misconduct on the part of the Office of the
7 Prosecutor would qualify as Rule 68 if it were done by the investigators.
8 Q. We're speaking of the provider, with all due respect now?
9 A. I believe that if the investigative team had information that
10 providers had altered it, that it would fall under the rubric of Rule 68,
11 because it would call into question parts of the authenticity process.
12 Q. Now, I just want to cover a couple more aerial images, and then
13 we'll move from this topic for the day.
14 MR. OSTOJIC: That would be if you'd look at aerial image I
15 believe it's 249, if we have the correct numbering system.
16 Q. Sir, you have that image now in front of you; correct?
17 A. Yes, sir, I do.
18 Q. Okay. And just to make sure I have my complete record on this, we
19 know there's no emblem there and nothing on the lower right-hand side
20 that's digitalised. There's not even an empty box underneath the broader
21 box identifying the area purportedly; is that correct? You don't see a
22 blank box there, do you?
23 A. No, sir. I don't see a blank box.
24 Q. Now, do you know how, in this specific aerial image, there is no
25 date that's below the description? Do you know?
1 JUDGE AGIUS: Yes, Mr. McCloskey.
2 MR. McCLOSKEY: Objection. That's asking him to speculate on the
3 provider in this particular area, and that's not appropriate.
4 JUDGE AGIUS: Necessarily, I think he either knows or he doesn't.
5 If he doesn't, we move. If he's in a position to give us information
6 related to OTP only, not to the US government, then I think you can safely
8 THE WITNESS: The answer is, no, I have no idea why there or is
9 not one there.
10 MR. OSTOJIC: Let's look, if we may, at - and I thank you for your
11 patience, Your Honour, on this, and the Registry and the Usher - Exhibit
12 27 of this collection.
13 Q. You have that in front of you, do you not, sir, this image 27,
14 which is of purportedly a bus convoy at Nova Kasaba? Do you see that?
15 A. Yes, sir, I do.
16 Q. And the box below that has both the date and what seems to be the
17 time. Do you see that?
18 A. Yes, sir, I do.
19 Q. Do you know, looking at now these four or five pictures, why
20 they're different, in the sense that some pictures have the emblem, some
21 don't; others have a box which is empty, some have only the date, and some
22 have the date and the time on the specific photograph?
23 JUDGE AGIUS: Mr. McCloskey.
24 MR. McCLOSKEY: As that material is referenced to the black and
25 white, that's US material, and why it's on one and not on the another, is
1 not appropriate. He can ask him all day long about the yellow markings.
2 That's not a problem.
3 MR. OSTOJIC: With all due respect, I don't know that
4 Mr. McCloskey is here testifying that the black and white is necessarily
5 US material.
6 JUDGE AGIUS: He doesn't have to specify on that. If he makes a
7 statement, that's enough. If he makes a statement to that effect, and I
8 think we have heard it also from Mr. Ruez, that's enough.
9 MR. McCLOSKEY: Absolutely. That is part of the explanation we
10 gave way back when.
11 JUDGE AGIUS: It's not testimony. So let's move to your next
12 question. And in any case, it's a question which has been already put and
14 MR. OSTOJIC: I'll have to look at the transcript for that,
15 Your Honour, but thank you for that.
16 Q. Sir, being a historical analyst, let me ask you: How many reports
17 did you generate with respect to the Srebrenica issues?
18 A. The first report was the --
19 Q. Just give me the number, if you don't mind.
20 A. I think related to Srebrenica, a total of five.
21 Q. Okay. And one was the brigade command structure; correct?
22 A. Well, one was the corps command report; one was the brigade
23 command report; the original version of the Srebrenica military narrative;
24 the revised version of that, which came out several -- well, two years
25 later; and, most recently, the Main Staff report.
1 Q. Would you agree with me, sir, that when you describe yourself as a
2 historical analyst, that that would really be what the two Srebrenica
3 narrative reports are? They are simply your historical analysis of the
4 events; correct?
5 MR. McCLOSKEY: Objection. We've been through this. This is
6 asked and answered.
7 JUDGE AGIUS: At least in relation to what he is testifying and
8 the report that we have in this case, it has certainly been asked and
10 MR. OSTOJIC: Thank you, Mr. President. I'll look to the
11 transcript for your guidance on that. Thank you.
12 JUDGE AGIUS: He also specified which part of the report he
13 considers to be historical, a historical account. I put a question in
14 addition to yours, too.
15 MR. OSTOJIC: And that's what I -- excuse me.
16 JUDGE AGIUS: So let's move to your next question.
17 MR. OSTOJIC: That's precisely why I was following up, but we'll
18 look at it again. Thank you.
19 JUDGE AGIUS: Thank you.
20 MR. OSTOJIC:
21 Q. Sir, with respect to your testimony on the 14th of January, 2008,
22 on the military prosecutor's office, on page I think it's 19607, you state
23 the following - and just in the moments that we have here, I want to get a
24 better understanding- you state, "In 1992, at the time this memorandum was
25 published..." I think we're referencing 65 ter 28, and that was what I
1 added to your statement.
2 "In 1992, at the time this memorandum was published, the military
3 prosecutor's office, the military court system, were under the
4 administration of the VRS. At a later point in the war, those
5 responsibilities were relinquished by the army and, in fact, picked up by
6 the Ministry of Defence."
7 Do you remember giving that testimony, sir?
8 A. Yes, sir. I don't know if I used the phrase -- if I used the
9 phrase "relinquished." It's more accurately they were transferred. But
10 yes, sir.
11 Q. I was just quoting you verbatim, but that's fair if you want to
12 use the word" transfer." Help me with this: When was it exactly this
13 period that you refer to at a later point in the war?
14 A. If memory serves, it was sometime either in late 1993, early 1994.
15 It was after the Banja Luka mutinies. I know that there is a considerable
16 amount of documents related to that. It's hopefully somewhere in a binder
17 where my desk used to be, but I can't tell you exactly, offhand, what the
18 date is.
19 Q. You had a group of binders with you here last week, and I did
20 notice you don't have them this week. Are those binders available to you
21 to bring tomorrow, so that we could see specifically the rule or the
22 reference that you made, that in 1993 and 1994, these responsibilities
23 were transferred and/or relinquished by the VRS to the Ministry of
25 A. The material won't be in those binders, because those are only the
1 exhibits that were tendered or asked by the Prosecutor for me. I don't
2 think that that was an issue that was one that was going to be tendered
3 through exhibits or anything else like that, so I don't think that there's
4 going to be a document that says that.
5 Q. In the minute or two or three that we have, can you identify the
6 document more precisely for us?
7 A. There should be - and I'm reaching back on this one - some form of
8 either a Main Staff directive that notes that or an Official Gazette
9 directive that talks about the military prosecutor's office, under the
10 Ministry of Defence, as opposed to the army. I mean, I know the
11 information's out there, but I'm just drudging back through old memory on
12 that one.
13 JUDGE AGIUS: Mr. Ostojic, Mr. McCloskey, can you reach a
14 stipulation on this?
15 MR. OSTOJIC: I'm sure we can, Mr. President.
16 JUDGE AGIUS: Yes, but it takes two.
17 MR. OSTOJIC: We're always willing.
18 JUDGE AGIUS: It takes two to tango.
19 MR. McCLOSKEY: I will look for the documents. It's not something
20 I recall off the top of my head, either, but I know there's documents that
21 Mr. Butler is referencing, and we can start looking.
22 JUDGE AGIUS: Okay. Thank you.
23 MR. OSTOJIC: If we can break now for the day, Your Honour, I'm
24 about to go on to another subject area.
25 JUDGE AGIUS: All right.
1 MR. OSTOJIC: Thank you.
2 JUDGE AGIUS: We'll continue tomorrow morning at 9.00.
3 Mr. Butler, thank you so much.
4 Yes, Mr. McCloskey.
5 MR. McCLOSKEY: Just logistically, Mr. President, while it's
6 always hard to tell how long Mr. Butler will go, but if we go with the
7 estimates, he's going to run out of cross-examination at our deadline
8 date, and we still have Mr. Vasic, these DNA people, and one other short
9 witness that you had approved. So we need some planning guidance.
10 JUDGE AGIUS: Yes, we're thinking about that, Mr. McCloskey.
11 Yes, Mr. Meek.
12 MR. MEEK: If it please the Court, I'd just like the Chamber to
13 know that we are attempting to reach a stipulation which would allow the
14 Prosecutor not to have to call Mr. Vasic. We don't know if we can do
16 JUDGE AGIUS: All right. Thank you.
17 We stand adjourned until tomorrow morning at 9.00. Thank you.
18 --- Whereupon the hearing adjourned at 1.45 p.m.,
19 to be reconvened on Wednesday, the 23rd day of
20 January, 2008, at 9.00 a.m.