1 Thursday, 24 January 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.24 p.m.
6 JUDGE AGIUS: Good afternoon.
7 Madam Registrar, could you call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours. This is the case
9 number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
10 JUDGE AGIUS: Thank you, ma'am.
11 All the accused are here. From the Defence teams, I only notice
12 the absence of Mr. Meek. The Prosecution is just Mr. McCloskey today.
13 Mr. Butler, good afternoon to you.
14 THE WITNESS: Good afternoon, sir.
15 JUDGE AGIUS: We are going to proceed with Mr. Bourgon's
17 WITNESS: RICHARD BUTLER [Resumed]
18 JUDGE AGIUS: Mr. Bourgon, good afternoon to you.
19 MR. BOURGON: Good afternoon, Mr. President. Good afternoon,
20 Judges. Good afternoon, colleagues. Good afternoon, Mr. Butler.
21 THE WITNESS: Good afternoon, sir.
22 Cross-examination by Mr. Bourgon [Continued]
23 Q. When we left off yesterday, we were in the Brigade Rules which is
24 65 ter number 694, and we were looking at -- at least I was hoping to look
25 at paragraph 208 of this publication, which is in English on page 61, and
1 B/C/S, page 99.
2 Can I have this on e-court, please.
3 Q. My aim in showing you this document, Mr. Butler, was to -- as we
4 were exploring the avenue or the differences between the intelligence
5 officer and the assistant commander for security, and we were looking at
6 different tasks which are performed by the intelligence officer in support
7 of combat activities. And we were looking at paragraph 208, which
8 mentioned that the intelligence officer would use the intelligence --
9 process and use intelligence about the enemy, the area of combat
10 operations, and weather conditions in the zone of intelligence
11 responsibility. Do you see this in paragraph 208?
12 A. Sir, yes, in 208 it talks about the purposes of intelligence
13 support. It doesn't particularly name an intelligence officer, but
14 obviously the intelligence officer would be behind this process.
15 Q. And at the end of this paragraph, of course we see that the focus
16 in wartime must be on gathering data relevant for making decisions for the
17 deployment of forces. And I take it you agree with that.
18 A. Yes, sir.
19 Q. And we also are looking at paragraph 209, which also highlights
20 what the intelligent officer does, and where it is mentioned that he
21 actually carries out intelligence support tasks, and that within the
22 brigade, there would be a plan for gathering the data, and that this plan
23 would be drafted by the intelligence organ. Does that correspond to your
24 understanding of the intelligence officer within the VRS?
25 A. Yes, sir. Again, it describes what the intelligence organ is
1 required to do, and then obviously the intelligence officer is responsible
2 for the implementation of that, although, again as it notes, the brigade
3 commander is ultimately the person responsible for the organisation of
4 intelligence support.
5 Q. And it is my understanding that in preparing your VRS brigade
6 command responsibility report, you would have studied these brigade rules,
7 especially with regards to the intelligence officer and the assistant
8 commander for security, in order to be able to tell the difference between
9 the two. Is that what you did?
10 A. Not necessarily tell the difference between the two, but certainly
11 to understand the difference in functions between the two services, yes,
13 Q. Now, in light of these duties and responsibilities of the
14 intelligence officer, I take it you will agree with me that this officer
15 works, of course, in the Operations Department of the Command Staff, that
16 he is involved in the planning of operations, and if there's someone in
17 the brigade, after of course the chief of staff and the commander, who is
18 aware of what is going on on the operations side, it would be the
19 intelligence officer. Would that be a fair statement?
20 A. Well, after the commander and chief of staff, the next person who
21 would have the broadest view of what was going on would be the chief of
22 operations. Obviously, the chief of intelligence, who's required to
23 support that operational process, should have, you know, at least an equal
24 view of what the proposed operation is in order to be able to properly
25 support it.
1 Q. Thank you. Now, using the example of the information which was
2 apparently available to the Main Staff, the Drina Corps Command,
3 concerning the column, and I take it you describe or you label this
4 information as being inaccurate, or at least in the beginning, would you
5 agree with me that incorrect intelligence, inaccurate intelligence, or
6 late information can have disastrous consequences for the successful
7 conduct of combat activities?
8 A. Yes, sir, and, you know, perhaps going back to the paragraph 208
9 from the intelligence manual we were looking at yesterday, it specifically
10 reflects the issue of having to deal with inaccurate, incomplete, or late
11 intelligence information and the ramifications on combat. So, yes, not
12 having an accurate intelligence picture, or having an accurate
13 intelligence picture too late, certainly will adversely impact a military
15 JUDGE AGIUS: Mr. Bourgon, I don't mean to interrupt you, but do
16 you think we really need a military expert to tell us something like what
17 we have just heard?
18 MR. BOURGON: Well, Mr. Butler has been labelled as an
19 intelligence analyst, and if I want to highlight the duties and
20 responsibilities of the assistant command for security, I feel it is of a
21 necessity to first highlight what is intelligence, what intelligence does,
22 and then I move to the assistant commander for security.
23 JUDGE AGIUS: Go ahead.
24 MR. BOURGON: Thank you, Mr. President.
25 Q. Turning to counter-intelligence, Mr. Butler, you will agree with
1 me that although counter-intelligence also deals with information, it is
2 an entirely different domain; would that be correct?
3 A. Yes, sir. The domain of counter-intelligence, while it may
4 include the actual collection of intelligence-related information, the
5 overall purpose behind counter-intelligence is to deny what are known as
6 essential elements of friendly information to a potential enemy force.
7 Q. So you will agree that the aim of counter-intelligence, and I use
8 your words, to deny the enemy's intelligence-gathering function, and in
9 doing so to protect all of the information -- information, sorry, which
10 would be available and circulating within the brigade, the brigade command
11 and the brigade subordinate units; would that be correct?
12 A. Well, within the general purview of every officer's and unit's
13 responsibility to take basic security measures, that is one part of
14 denying information to a potential enemy. The role of
15 counter-intelligence, in large part, deals with those issues that are
16 normally beyond the purview of basic security functions that a unit would
17 do. So, again, it's all within the same role, although different manners
18 of how it's accomplished.
19 Q. So would you agree that counter-intelligence includes the
20 following, and you can answer by "yes" or "no" unless you wish to
21 elaborate, that counter-intelligence includes: The evaluation of
22 manifested and expected intelligence gathering activity and other
23 subversive activity of the enemy? Is that one of the things that
24 counter-intelligence does?
25 A. Counter-intelligence does, in fact, evaluate the anticipated
1 subversive activity of the enemy. Again like all other forms of
2 collecting information, it evaluates it with respect to determine
3 accuracy, validity, and then in a military context, to predict forward
4 what that threat will be in the future to allow a commander to deal with
6 So, I mean, yes, they do evaluate information, but they don't
7 evaluate it in the same manner that traditional tactical intelligence
8 would be evaluated.
9 Q. And this includes the detection and prevention of hostile
10 activities by individual groups or organisations against the brigade and
11 members of the brigade; do you agree with that?
12 A. To the respect that we're defining "hostile actions" to not
13 necessarily be military attacks but would include a larger body of things
14 such as subversion directed against the authority of commanders or of
15 actual military discipline, things of that nature, so it's much broader
16 than just the phrase "a military hostile threat."
17 Q. I thank you for this. It's an important clarification.
18 Now, with respect to enemy, if we consider any relationship
19 between the assistant commander for security and the enemy, his focus
20 would have to be on special forces elements which, of course, may be
21 infiltrated in friendly territory; do you agree with that?
22 A. That would be one aim that he would be looking for is in an effort
23 to collect information that could be used to prevent that type of
24 infiltration. That's one of his aims, yes.
25 Q. And in performing his counter-intelligence duties, there are many
1 things which the assistant commander for security can and may do. One
2 example would be dealing with secret sources of information. I'll give
3 you a few examples: Informants, secret collaborators, or any other person
4 willing to provide information. Do you agree with that?
5 A. Yes, sir. That falls under his -- what are described as his
6 operative tasks.
7 Q. And he may do some -- he may also use some technical means, such
8 as wiretapping, for example, or he can also be controlling incoming and
9 outgoing mail?
10 A. Certainly with the issue of wiretapping or monitoring the
11 brigade's communications as a way of trying to evaluate whether
12 information is being -- is leaving the brigade from that way would be
13 within his purview. Mail -- the controlling of mail -- and I assume when
14 we're talking about mail, we're talking about soldiers' mail and things of
15 that nature. I mean, in that regard it would potentially be a function to
16 ensure that soldiers either are, by design or, you know, inadvertently,
17 are making, you know -- putting stuff in letters and things back to family
18 members which could be potentially used to compromise future plans,
19 operations, or capabilities.
20 Q. Now, one of the other things that the assistant commander for
21 security does is he may be investigating persons who may present, in his
22 view, a threat to the security of information within the brigade? Is that
23 something that he would do?
24 A. Yes, sir, that would fall into one of his functions.
25 Q. And when he does all these functions, the assistant commander for
1 security, I mean, his work, would you agree with me, is quite different
2 from that of the intelligence officer?
3 A. In fact, sir, I mean, the tasks that you have essentially
4 described are those same tasks that we saw in the October 1994 memo from
5 General Mladic, which reflect that they want their security officers to be
6 performing 80 per cent of these types of functions -- or these types of
7 functions as 80 per cent of their time. Most of these functions are
8 outside of the normal role of what an intelligence officer would be
9 expected to perform as part of their duties.
10 Q. And within the Zvornik Brigade, you've already testified to this,
11 that the intelligence and the security functions were managed by two
12 different branches, where you had the assistant commander for security was
13 Drago Nikolic, and the intelligence officer was the -- or assistant chief
14 of staff for intelligence was Dusko Vukotic. That's in accordance with
15 the information that you have; is that correct?
16 A. Yes, sir, that's what I understand for July of 1995.
17 Q. And you've also described, looking at one of the documents which
18 was shown to you, that this situation is different from the what it was in
19 a light infantry brigade, at least before January of 1995?
20 A. That is correct, sir.
21 Q. And in January of 1995, there was an instruction which was
22 published which even in a light infantry brigade, the two tasks were
23 separated; is that correct?
24 A. Yes, sir, that is correct, at least in theory and practical
25 reality, to the best degree possible, given the shortage of qualified
2 Q. And if I look at -- just so that we understand by what is a light
3 infantry brigade, it would be much smaller and a much simpler structure
4 and would use light weaponry which would enable it to carry out combat
5 tasks with a greater degree of independence; would you agree with that?
6 A. Not necessarily. I would categorise the difference between a
7 standard infantry brigade and a light infantry brigade along the lines of
8 a standard infantry brigade, while having more people, would also have a
9 wider variety of either heavier forces with respect to motorised forces, a
10 motorised company, an armoured company, more heavy mechanised tools of
11 warfare than a traditional light infantry brigade. Each has its place on
12 the battlefield. A heavier infantry brigade or a standard infantry
13 brigade has more combat power to achieve particular objectives. A light
14 infantry brigade has less combat power, but because of its mobility can
15 operate in areas of the battlefield that a heavier unit may not be able
17 Q. Now that's probably why, in a light infantry brigade in the
18 beginning or within the JNA doctrine, they tried to have less people as
19 possible within the command and they say maybe intelligence and security
20 can be doubled up into the same person; would that be a fair statement?
21 A. Yes, sir, I mean within the context of the JNA it does reflect a
22 smaller structure.
23 Q. And I suggest to you that the reason why, in January of 1995, when
24 they decided to split the two functions for all brigades within the VRS,
25 this was because, simply, the two functions is too much for one person;
1 would you agree with that?
2 A. Again, given -- given the orders and memos with respect to the
3 security branches that came out in late 1994, I believe it is fair to
4 conclude that there was a recognition on the part of the military
5 leadership that at some point, because of competing requirements, that
6 until this individual -- these tasks were split between different people,
7 one of the particular tasks would suffer. And in this case, it appeared
8 that the security tasks suffered.
9 Q. And that's why they -- there was this instruction by the Main
10 Staff, which we referred to yesterday, 65 ter number 2741, which says --
11 talks about the 80 per cent which would be devoted to tasks of security;
12 do you agree with that?
13 A. Well, in part. That particular memo is less with respect to
14 active intelligence collection, but also defines the fact that the -- that
15 within the role of security, you know, you have your strictly
16 counter-intelligence and operative tasks, but also the fact that within
17 the doctrine of the JNA and adopted by the VRS, security also included a
18 law enforcement or crime prevention avenue that had to also be undertaken.
19 And I think what that particular issue revolved around was the
20 fact that more and more security officers were getting detailed to spend
21 more time doing crime prevention work as opposed to doing strictly
22 security organ work.
23 Q. Now, if we look at whether it is from the security rules, the
24 document we looked at yesterday, or within the document which you have not
25 considered, the means and methods for security officers, would you agree
1 with me that that 80 per cent that they were focusing on in that Main
2 Staff instruction was 80 per cent for counter-intelligence solely?
3 A. I'm sorry, which document didn't -- I not consider? We're talking
4 about this document -- the document that you --
5 Q. The means and methods of security. You told us yesterday that it
6 was too low or too technical of a manual for you to consider in making
7 your VRS command responsibility report.
8 A. No, sir, I didn't say that I didn't consider it, because I did in
9 fact review it. What I said was that given the technical issue related to
10 it, and -- there was not anything relevant in that particular manual
11 dealing with the context of the report that I needed and what I was
12 looking for. So, I mean, I did review it, and, you know, where applicable
13 in my analysis, I considered it.
14 Q. My point is just I'm trying to get back to the answer you just
15 gave concerning the law enforcement and crime prevention. You called it,
16 at page 10, lines 20: "... Crime prevention work, as opposed to doing
17 strictly security organ work"?
18 A. Yes, sir. I mean, the VRS wanted to stress the
19 counter-intelligence work and de-emphasise the time that security officers
20 spent on crime prevention, yes, sir.
21 Q. And that crime prevention is not included in the 80 per cent they
22 were looking for? That's my point.
23 A. I think in the context that they're talking about, while crime is
24 obviously a security issue, I would agree with that. Crime prevention,
25 per se, does not fall within that 80 per cent.
1 Q. During your examination-in-chief, you testified about paragraph 4
2 of the January order. Maybe we can take this one up. It's 3031. If we
3 can have this in e-court, please. And I take it you have a binder beside
4 you, and Mr. Butler if you can look at tab 26. And that was at page
5 19648, lines 8 to 13, where you provided some information concerning
6 paragraph 4, which reads as follows:
7 "Security organs and intelligence organs shall exchange the
8 information of importance on a daily basis."
9 You stated during your testimony that this recognised the fact
10 that some information obtained through intelligence channels may have
11 importance to maintaining the overall security posture of the unit, and
12 that some information obtained through security channels may have
13 intelligence value. Do you agree with that?
14 A. Yes, sir.
15 Q. So you would agree that the information which will be shared
16 between the intelligence function and the security organ, this will not be
17 all the information which they gather in their respective organ, but
18 rather the information that is important for the other?
19 A. I would think that the flow of information from the intelligence
20 to the security organ would probably be more comprehensive than the flow
21 of information from the security organ to the intelligence organ in that
23 Q. But you would not expect, based on your own experience, to see the
24 intelligence officer sharing all of the information in his possession
25 concerning the upcoming combat activities, for example?
1 A. I -- like I said, I would disagree with that, because I would
2 think that with respect to intelligence, the security officer, as a
3 function of being able to perform his job, has to have a very detailed
4 view of the incoming intelligence, particularly with respect to an
5 operational nature, as we've discussed, with the issue relating to
6 diversionary units or potential issues of sabotage or things like that.
7 So certainly in the abstract that the intelligence officer might withhold
8 information that he deems the security officer would not have a
9 professional interest in. As I said before, I mean, in practice, if the
10 flow of information going from the intelligence officer to the security
11 officer would probably be much wider than going the other way around.
12 Q. Okay. Much wider, but my point is, for example, if the
13 intelligence officer has information on special forces of the enemy, of
14 course that would be of interest to the security officer, but overall
15 information concerning enemy activities, he would not share unless he be
16 requested to do so?
17 MR. McCLOSKEY: Asked and answered. We're getting into the
18 abstract upon abstract.
19 JUDGE AGIUS: I quite agree.
20 MR. BOURGON: I'll go on, Mr. President.
21 Q. Moving on to the management of the security organ, this is a topic
22 that was covered during your examination-in-chief and that you also
23 covered in your report at paragraph 3.13. I'm talking about the VRS
24 command responsibility report. And you've confirmed already, I take it,
25 that the assistant commander for security is the directly subordinated to
1 the brigade commander, as confirmed by the rules.
2 A. Correct, sir. I mean, we're talking, again in this case, within
3 the command sense, he is a superior officer in that regard.
4 Q. Now nonetheless, pursuant to paragraph 18 of the rules, where we
5 know that the security organ of the Drina Corps provides specialist
6 administrative services for the brigade assistant commander for security,
7 and he provides also assistance to that organ, you've testified about that
8 in your examination-in-chief; do you recall this?
9 A. Yes, sir, that's the management or technical chain that exists.
10 Q. And that's at page 19646, line 1 to 16, and you define this
11 relationship as being a technical or management chain that runs along but
12 certainly does not supersede the command chain?
13 A. Correct, sir, yes.
14 Q. Now, this issue itself was not included in your VRS command
15 responsibility report, was it?
16 A. Which issue?
17 Q. The issue of the technical management.
18 A. I believe it was discussed in some degree in the brigade command
19 report with respect to the roles and responsibilities of the security
21 Q. Well, I won't -- I won't question you, but I believe it wasn't,
22 and I'll move on to another topic.
23 Now, when I look at the way you describe this technical or
24 management chain, I'd like you to use an example for you to confirm how
25 this works within the brigade. And I take it you're familiar with the
1 fact that security officers or the assistant commander for security was
2 not supposed to be on duty, to perform the duty of operations duty
3 officer. Do you agree with that?
4 A. I am aware, particularly, you know, with respect to the Zvornik
5 Brigade, that that was an issue of whether or not the assistant commander
6 of security could be used for non-security functions such as being a duty
7 officer, yes, sir.
8 Q. Okay. You're aware of an issue, but are you aware of the rule
9 that the assistant commander for security is not supposed to be -- to
10 perform brigade operations duty?
11 A. I don't think I'm aware of that as a VRS rule. I don't recall
12 ever seeing that in any document.
13 MR. BOURGON: If I can have 65 ter 407, which is the rules on
14 security, and I have paragraph 93, page 32 in English and page 26 in
15 B/C/S. If I can have this in e-court, please.
16 Q. If we look at paragraph 93, at the last part of this paragraph,
17 can you read this and say whether this confirms that the security officer
18 or the assistant commander for security was not supposed to be or to
19 perform the duty of operations duty officer? The last part.
20 A. I'm just trying to figure out -- within the context, it's kind of
21 tough to figure out what the phrase "in the interior service." I can
22 see --
23 Q. If you're not familiar with this fact, I mean, as I say we can
24 move on.
25 A. Like I say, it may well have been within the JNA context, that was
1 it. I just -- if we read "interior service," to be within, you know, a
2 traditional military unit, then that rule would be in place within the
3 JNA, yes, sir.
4 Q. Now, on this basis, you know that when this issue came up about
5 whether a security officer -- what the role and duties of the security
6 officer were to be, that at a certain point in time the commander of the
7 Zvornik Brigade imposed some new modus operandi on the assistant commander
8 for security with respect to handling of the mail, with respect to being
9 on duty, and with respect to the car being put at his disposal. Is that
10 something that was -- that came out in your analysis of the facts?
11 A. No, sir, primarily because the information that -- that was
12 derived from was almost exclusively witness based. So although I'm aware
13 of it with respect to the construction of my reports, it's not reflected
14 as such.
15 Q. But Is that an issue you came across when you did your analysis?
16 A. Yes, sir. Specifically with respect to Zvornik, I'm aware that
17 there was a -- there was an issue with respect to the roles of the
18 security officer within the larger context of the command and staff, yes,
20 Q. And when the Main Staff instruction was issued, that was in
21 October of 1994, are you aware that the situation was almost put back to
22 the way it was before those problems came out? Is that something that was
23 revealed by your investigation?
24 A. I am aware of it from -- from the testimony of other individuals.
25 I mean, I don't think that that was a subject of investigation, per se.
1 Q. Then did you explore, while you were analysing the facts of this
2 case, did you explore the issue that the only officer within the -- the
3 only assistant commander for security within the Drina Corps who was
4 doing -- performing duties as operations duty officer was Drago Nikolic?
5 Is that something that you looked into?
6 A. No, sir.
7 Q. Is that a fact -- is that something that could influence or have
8 an impact on the manner and the availability of the assistant commander
9 for security to perform his duties?
10 A. It would presumably, in abstract, be a factor. But within the
11 context of my analysis, it wouldn't be relevant.
12 Q. Now, as I've just mentioned, when the Main Staff instruction was
13 issued, Drago Nikolic was given back his mail rights, if I can use this
14 term, and also a better use of the car put at his disposal. However, he
15 was -- he remained as somebody who was called upon to preform the duties
16 of brigade operations officer. Are you aware of this fact?
17 A. I'm aware that while he was given back those -- his car and the
18 ability to pass, you know, mail in a separate channel, that he was still
19 required to perform his functions as a duty officer, yes, sir.
20 JUDGE AGIUS: Mr. McCloskey.
21 MR. McCLOSKEY: Sorry, just to clarify, I think you meant "brigade
22 duty operations officer," not "operations officer."
23 MR. BOURGON: I thank my colleague. I was talking about duty
24 operations officer, and I may have used this wrong term earlier, too.
25 JUDGE AGIUS: You may have, actually. You did use it correctly
1 earlier on, but I think in the interim you did make the same mistake.
2 Go ahead. It will be corrected, Mr. Bourgon.
3 MR. BOURGON: Thank you, Mr. President.
4 Q. Mr. Butler, if this was contrary to the rules for Drago Nikolic to
5 be called upon to perform the duties of brigade duty operations officer,
6 what could he do about it?
7 A. In a practical sense within the structure at the time, he had a
8 course of recourse, which would be to complain about that to his immediate
9 superior within the technical chain, which would be Colonel Popovic.
10 Q. And then what could Colonel Popovic do about it?
11 A. Colonel Popovic would either make a decision to take that to the
12 corps commander, who could then potentially direct Colonel Pandurevic to
13 rescind the order, Colonel Popovic could take that up to the Main Staff
14 security and intelligence sector, which would then presumably send an
15 order to the Drina Corps commander to instruct the brigade commander to
16 rescind that, or he could do nothing and learn to live with it.
17 Q. Now, my interest here is to -- is whether you would agree with me
18 that the only one who could actually order the brigade commander to change
19 this would be his immediate superior, the corps commander. Would you
20 agree with that? Or a higher level, but at least at the corps level,
21 Colonel Popovic could not give that order to the brigade commander, the
22 only one that could do that was the corps commander, Krstic?
23 A. Well, at that time we're talking about Zivanovic, but, yes, that
24 would be the corps commander.
25 Q. And that is a fair illustration of the unity of command principal?
1 A. And the separation of authorities between command and technical
2 management, yes, sir.
3 Q. And that's exactly my point, that this shows that technical
4 management is not a command authority in any way. Would you agree with
6 A. Yes, sir. I mean, any command authority that -- that might be
7 implied, it would be, in effect, derived from the authorities provided by
8 the commander, not inherent within their own position.
9 Q. I move on to the authority over the military police, also an issue
10 that was discussed during your examination-in-chief. And we've already --
11 I've already asked you this question. You confirmed that the commander of
12 the military police, the first commander was Jasikovac, who was the
13 commander of the military police company?
14 A. He was the immediate company commander in July of 1995, yes, sir.
15 Q. And his immediate supervisor or superior, sorry, not supervisor,
16 but his immediate superior, his commander, was the brigade commander?
17 A. Yes, sir, that is correct.
18 Q. And Drago Nikolic did not exercise command over the military
20 A. That is correct.
21 Q. Nonetheless, there is some kind of a relationship between the
22 military police and the assistant commander for security?
23 A. Yes, sir, that's correct.
24 Q. And that would be, for example, specialised -- I'm looking to the
25 rules here, specialised management, recommending the use of the military
1 police to the commander, and being responsible to the commander for the
2 state of activity -- sorry, the state and the activity of the military
3 police unit?
4 A. I'm not sure "state of activity" -- I mean, if you're referring to
5 the state of training of the military police unit or something of that
6 nature, yes, sir.
7 Q. Well, in paragraph 3.15 of your report, you say that the assistant
8 commander for security makes suggestions to the commander on the use of
9 the military police?
10 A. Yes, sir. That is, by position, one of his functions.
11 Q. And according to the rules, you would agree that the -- it says
12 here that he would be responsible for the combat readiness of the military
13 police. Do you agree with this term, "combat readiness"?
14 A. I would agree with it in so much as it -- it means traditional
15 military police tasks. I take -- you know, in fact in reality in the VRS,
16 the military police were often not used on traditional police tasks but
17 were, in fact, used on tasks that are traditionally used by infantry.
18 So --
19 Q. And that's why I'd like you to define and to explain the term
20 "combat readiness." Even in your own military experience, the term
21 "combat readiness" does not necessarily mean being ready for combat, but
22 rather it means being ready to perform whatever your task is in a combat
23 environment; would you agree with that?
24 A. That is correct, sir. I mean, obviously the criteria of combat
25 readiness for an infantry unit and the tasks that it would be able to --
1 would need to perform would be different from that of a logistics unit or
2 that of a police unit or -- you know, just go down the list. So the
3 phrase "combat readiness," you know, means the ability of that unit to
4 perform the tasks that it, by doctrine, is supposed to be able to perform
5 in a combat environment.
6 Q. And if the brigade commander decides to use the military police
7 company, or parts thereof, in combat, it is not Drago Nikolic who will
8 tell him how they will perform combat activities; would you agree with
10 A. For the most part, a -- how they will actually implement combat
11 activities, like I said, if in an infantry role it wouldn't normally be
12 the job of the security officer to do that. The unit would be
13 resubordinated or attached to an infantry formation, and it would be the
14 higher combat commander who would tell the military police, through their
15 commander, you know, how to employ, how to organise, and what tasks needed
16 to be accomplished.
17 Q. And in this regard, you will agree that the role of the assistant
18 commander for security is rather to advise the commander as to whether it
19 is appropriate at any given time to devote military police resources to
20 combat rather than to their traditional role?
21 A. Yes, sir, that would be something that the security officer would
22 be obligated to raise to the commander as part of the performance of his
23 duties, yes, sir.
24 Q. And once the commander decides to use the military police, with or
25 without the advice of the security officer, then that's it; he's the
2 A. We salute and follow orders.
3 Q. And this can be confirmed, and I would ask you whether your
4 analysis of the facts on the 12th, 13th and 14th of July, when military
5 police resources were used by the chief of staff to fight the column, that
6 this is an illustration that really Drago Nikolic had nothing to do in
7 terms of where those military police would be used to fight or to defend
8 against that column.
9 A. Yes, sir. With respect to the 12th and the 13th, at the time that
10 the chief of staff decided that he was going to use the military police in
11 a combat role, Drago Nikolic would -- there's no evidence that he was
12 consulted on the best employment on terrain or other locations as a
13 security officer.
14 Q. Now, on the 12th of July, to be more precise, that's -- on that
15 day, there was some elements of the military police were sent to Konjevic
16 Polje to perform some traffic duties, and I take it that you will agree
17 with me, based on your analysis of the facts, that they were sent there by
18 Obrenovic without consulting Drago Nikolic.
19 A. I certainly know that Obrenovic, as the chief of staff, gave the
20 order. I have no way of knowing whether he did or did not consult with
21 Drago Nikolic on that issue.
22 Q. Did your investigation or your analysis of the facts, of course
23 based on your military experience, did that reveal that Drago Nikolic, on
24 the 12th of July, was not present within the Zvornik Brigade?
25 A. No, sir, it did not.
1 MR. BOURGON: May I have 65 ter 311 in e-court, please. And
2 that's tab for you, Mr. Butler, in your binder -- that would be tab 28 in
3 your binder.
4 Q. You're familiar with these kinds of reports?
5 A. Yes, sir, I am.
6 Q. And if we go to the line which refers to Drago Nikolic, and if you
7 look under the date for the 12th of July -- it's on the second page, I'm
8 sorry. Can I have the next page up, and it's number 38. And what does
9 that show for the 12th of July?
10 A. The symbol is a "C."
11 Q. And are you familiar with what was meant by the "C"?
12 A. There is usually a legend on these particular documents. I mean,
13 I believe either that the "C" or the "O" symbol is often used to symbolise
14 a day off, so to speak. You're not performing your military functions.
15 Q. I agree with that, if that is the case, because I don't want you
16 to say something that you don't know. But if that is the case, this
17 report would confirm that Drago Nikolic was not there on the 12th of July?
18 A. Well, this would -- this report would be an indicator of that,
19 yes, sir. I don't know that it would definitively confirm it, given the
20 fact that orders were being given to ensure all units were at full combat
22 I mean, the presumption is that somebody like the assistant
23 commander for security is not going to be able to sit and enjoy his day
24 off while the rest of the units were being told to bring all their other
25 people in from leave. So I agree it's an indicator that he might not be
1 there, but I can't say that definitively.
2 Q. So you agree with me that whenever you use these reports that talk
3 about the presence or absence of the military police in any given place or
4 date, that would also be an indicator and nothing else?
5 A. Yes, sir, it is an indicator. I mean, I don't take it as a
6 definitive fact, I mean. And given the fact that particularly in the
7 military police log, you know, there has been evidence of altering, you
8 know, I think that -- that's why.
9 Q. I'd like to move on to another topic, which is responsibility for
10 prisoners of war. And I'd like to have in e-court 3D275. And I'd like to
11 go to paragraph 134. The page in English is 39. I don't have the page in
13 You would agree that, first of all, Mr. Butler, that while we wait
14 for this to appear in e-court, that the security rules themselves, that's
15 the document we were referring to earlier, 65 ter 407, are silent on the
16 role of the security officer concerning prisoners of war, but admittedly
17 you gave a reason for that yesterday?
18 A. With respect to the issue of security officers and the prisoners
19 of war, there is a role, but within the defined limits of what they're
20 trying to accomplish; that is, trying to identify individuals who they
21 could potentially cultivate as sources of information. That's within the
22 limits of the JNA rules, yes, sir.
23 Q. Now, with regards to military police themselves, and -- first,
24 let's take this one. So we have this paragraph 134 here, and if you can
25 say -- paragraph 134 of 3D275. That's the means and methods of the
1 security organs, and this confirms, does it not, that prisoners of war,
2 for the security officer, are but another source of information?
3 A. Yes, sir, they are a source of information. I agree.
4 Q. And in your report on the VRS command -- brigade command
5 responsibility, at paragraph 3.19, you stated that at the brigade level,
6 the commander was responsible for ensuring the proper interrogation of
7 prisoners of war; is that correct?
8 A. You'd have to show me that paragraph. I'd have to read it in
9 context. "The proper interrogation of prisoners of war" sounds --
10 Q. That's your report. If we can go to that --
11 A. If I can look at the whole paragraph, maybe I can put it in
12 context, because right now I'm not sure what that line in isolation is
13 relevant to.
14 MR. BOURGON: 65 ter 684 [Realtime transcript read in error "364"]
15 in e-court, please, paragraph 3.19.
16 THE REGISTRAR: Could counsel please repeat the 65 ter number.
17 MR. BOURGON: 684. I'm sorry, the transcript indicates "364," but
18 it's "684", sorry, "684". And the paragraph should be, in English, page
19 19, and also B/C/S, page 19.
20 Q. I don't have this one in your binder, because it was too -- too
21 many pages, but you can read from the screen that what you wrote is that:
22 "At this level" --
23 A. That explains it. At the --
24 Q. Where it says: "At the brigade level ..." And in the middle of
25 the paragraph, you're at the right page, 3.19?
1 A. Yes. There it is. Yes, sir. Yes.
2 Q. This one, now we have the right page. And where it says in the
4 "At the brigade level, the brigade commander is responsible for
5 ensuring the proper interrogation of prisoners of war, and of course
6 through the intelligence organ"?
7 A. That's the part that was left out of your initial phrase, and
8 that's why I was kind of confused about that. I mean, obviously that is a
9 responsibility exercised through his intelligence organ, yes, sir.
10 Q. And so of course you would agree that the interrogation of
11 prisoners of war as a - I was going to use "per se," but you're going to
12 ask me to define "per se" - is more an intelligence function than a
13 security function; would you agree with that?
14 A. Yes, sir, for the immediate concerns of a brigade-level commander,
15 the combat information that can be obtained from those types of
16 individuals is of a priority to him. Obviously, while it's recognised
17 that there will be a potentially longer-term intelligence collection
18 effort, which may involve again the security officers trying to turn these
19 people as potential long-term agents, a brigade commander, his primary
20 goal is the tactical use of that information in order to increase his
21 combat effectiveness.
22 Q. And just to finish with the brigade commander, if you read a
23 little further down, you mention that at the same time he is also
24 responsible to ensure that the provisions of the Geneva Conventions were
25 strictly complied with in the treatment of prisoners of war?
1 A. Yes, sir.
2 Q. Now, this paragraph, the meaning of this paragraph in your report,
3 it was my understanding that you were trying to say that in the end, or
4 the lower you get, the two functions, that of intelligence and security,
5 kind of get closer together, because at the battalion level you only have
6 one individual who does intelligence and security.
7 A. Not only is it reflected in the rules, but, yes, in the practical
8 application, the lower that the echelons are, brigade or even corps,
9 brigade, and battalion, you see a much more closer relationship between
10 the intelligence and the security officers because the goals are
11 different, yes, sir.
12 Q. But the fact that the security and intelligence officer at the
13 battalion level, because he's got two hats, has a primary responsibility
14 for prisoners of war, that doesn't give any specific responsibility in
15 that regard to the brigade assistant commander for security; do you agree
16 with that?
17 A. Yeah, I think that's fair, I mean, in the context where he would
18 be functioning, you know, primarily as an intelligence officer pursuant to
19 his -- the role of the responsibilities of his battalion commander, his
20 activities related to dealing with prisoners of war would stay along that
21 command chain. It wouldn't be a security issue, per se.
22 Q. Now, with respect to the military police, now that we've finished
23 with the chain of command, if I can have 707 -- 65 ter 707 up on e-court,
24 and I'd like to refer you to paragraphs 25(h) for "hotel," as well as
25 paragraphs 55 and 57.
1 Unfortunately, I don't have the page number. Maybe we can avoid
2 looking at the document itself if you can confirm, Mr. Butler, that with
3 respect to prisoners of war, according to these regulations, 707, those
4 are the service regulations of the armed forces concerning the military
5 police. And you said at the beginning of my cross-examination that you
6 did refer to these -- these regulations, and that the role of military
7 police, pursuant to the rules, is very limited concerning prisoners of
8 war. Would you agree with that?
9 A. I don't know that I would say it's very limited. The military
10 police do have a role in issues related to prisoners of war, in so much as
11 they are probably one of the primary means by which the commander will
12 safeguard prisoners, keep them under appropriate guard, until such time
13 that the prisoners keep them under appropriate guard until such time that
14 the prisoners can be moved to the superior command or to an area, you
15 know, designated by the superior command.
16 Q. Now, is that based on your experience in the United States Army or
17 in the VRS, based on the rules that you have there?
18 A. I believe that somewhere in the military police rules, it
19 discusses that -- the fact that they do have a role in safeguarding the
20 transport of prisoners, which would include prisoners of war. I think if
21 you go up to 55, which is on the same page --
22 Q. 55 and 57.
23 A. Yes, paragraph 55.
24 Q. Now, 55 talks about escorting persons under arrest who have
25 committed a crime. Now, that's not a prisoner of war, is it?
1 A. No, but if you look at the last sentence.
2 Q. Prisoners of war and certain military property. And then that
3 would go with paragraph 57, which says that they will escort prisoners of
4 war, but that would be upon special order?
5 A. Yes, sir.
6 Q. So we cannot make a statement outright that the security of
7 prisoners of war is a military police matter; do you agree with that?
8 A. I disagree. I think the regulations say that the military police
9 have some competence in dealing with this issue, yes, sir. I don't agree
10 with your statement.
11 Q. Maybe I will state my statement once again. We agree, and you've
12 just confirmed, that it is in the rules, upon special order they may
13 escort prisoners of war and they may have -- they may have some role to
14 play. But as a given, there's nowhere in the rule that says that the
15 military police has a responsibility for prisoners of war?
16 MR. McCLOSKEY: If he's going to ask the question that broadly, he
17 needs to give Mr. Butler a chance to review these regulations. But given
18 that, this is getting awfully abstract again, to the point where I think
19 we're wasting time.
20 JUDGE AGIUS: Yes, Mr. Bourgon. You obviously don't agree with
22 JUDGE KWON: I think the question has been asked and answered. We
23 can move on.
24 MR. BOURGON: Thank you, Judge.
25 JUDGE AGIUS: Okay, I'm in agreement, so I suggest you take a more
1 practical view of the matter, not necessarily to please Mr. McCloskey.
2 MR. BOURGON: I'll move on to a different area, just to end the
3 matter with respect to the duties and responsibility of the assistant
4 commander for security.
5 I'd like to have the Main Staff instruction in e-court, and that
6 is 2741. It will be at tab 25 in your binder. That will be easier for
7 you, Mr. Butler.
8 Q. In this document, Mr. Butler, it addresses the relationship with
9 military police and also the technical and management, so we won't cover
10 that. We've done that already. The only part I would like to cover with
11 you is whether, based on this instruction, what type of information, if
12 any, can be withheld from the commander of the brigade.
13 And I refer you, maybe to save some time, to the last part of
14 paragraph 3 and paragraph 4.
15 A. I mean, you're asking me a question somewhat by exclusion. It
16 reflects the fact that a security -- members of the security organs must
17 provide to their immediate superiors information and assessments that
18 directly impact the security of their units or institutions. It reflects,
19 you know, also as part of their larger things, that information that
20 doesn't fall into that criteria might not necessarily be shared with the
21 relevant commander.
22 Q. Now, what I'm looking for is your experience, not just to read
23 this instruction, but rather your understanding of the instruction as to
24 what type of information, if any, can the assistant commander for security
25 withhold from his commander.
1 A. I would expect that the information with respect to the operative
2 tasks, interviews related to individuals who might have information on
3 subversive activities by some members of the unit, at least in the early
4 investigative phase -- as I indicated in one of my Prosecution exhibits,
5 an investigation that they were running of a potential threat to General
6 Mladic and other members of the Main Staff, holding open the possibility
7 that brigade commanders or other officers might be part of such a plot,
8 things of that particular nature would be, you know, pieces of information
9 that might not routinely be shared with a unit commander.
10 Q. And, of course, if the assistant commander for security is
11 investigating in any way into the activities of the brigade commander,
12 then he will keep that confidential at least until conclusions are
14 A. Yes, sir. I mean, as a matter of practical reality, he would.
15 Q. And there's always the possibility that the commander may become
16 aware that there was such an investigation, which may be quite detrimental
17 to their relationship; would you agree with that?
18 A. I think that's a fair statement, yes, sir.
19 Q. Now, also from a professional reason, an investigation on one of
20 the other assistant commanders, for example, that would also or could also
21 be kept confidential from the commander, and one of the reasons, based on
22 your experience, I take it you would agree with me, would be not to hurt
23 the other assistant commander until the proper conclusions have been drawn
24 from this investigation?
25 JUDGE AGIUS: Yes.
1 MR. McCLOSKEY: Objection. This is all common sense. We don't
2 need Mr. Butler's opinion for. And if it does refer to -- if he's going
3 to specific facts related to this case, I think it's appropriate that he
4 gets to those facts. Otherwise, it's not relevant, either.
5 MR. BOURGON: Mr. President, I disagree with my colleague. He
6 says that we don't need Mr. Butler to comment on a situation like this.
7 On the contrary, I think that if he is to comment or give any expert
8 opinion as to why information can be withheld from the commander, he is in
9 a right position to explain that this can have a detrimental effect and
10 why such information can be withheld.
11 JUDGE AGIUS: But do you expect the security officer or assistant
12 commander for security, investigating his own superior, going to his
13 superior and telling him that he's investigating him? So let's move, and
14 I think you can build an argument later on on this.
15 MR. BOURGON:
16 Q. If I look at this Main Staff instruction, there is a mention here
17 concerning any disciplinary measures which the commander can take against
18 his assistant commander for security. That's in paragraph 5, that's the
19 third bullet.
20 It says here that "He can take disciplinary measures or punitive
21 measures, but that he must first consult with the technical supervisor at
22 the next level," which would be Popovic; right?
23 A. In the case of Drago Nikolic, yes, sir, that would be correct. If
24 Colonel Pandurevic wished to take some form of a disciplinary action
25 against his security officer, he would have to clear that through Colonel
2 Q. What's the reason for this, based on your experience?
3 A. Well, the practical reason is to prevent a commander from
4 retaliating against a security officer for any variety of reasons. You
5 know, a commander has broad abilities to relieve people or reassign them,
6 you know, as he sees fit, and certainly a commander who thinks he's under
7 investigation for something, you know --
8 Q. But let's get away from that scenario. I'm not talking about that
9 scenario at all. I'm talking about any other scenario, other than this
10 one, can the commander still take disciplinary action after consulting the
11 superior technical officer?
12 A. Yes, if the superior technical officer concurs with the
13 commander's assessment of the situation and the discipline that he wants
14 to invoke, assuming the technical officer, in this case Colonel Popovic,
15 agrees, the commander can take those actions, yes, sir.
16 Q. And I suggest to you that the reason why it is, according to this
17 instruction, necessary to consult the technical superior, is to ensure
18 that the commander has all the information because he doesn't know
19 everything that the assistant commander for security is doing concerning
20 his operative work?
21 A. I would disagree with that, in so much as, you know, I can foresee
22 a whole set of issues that might arise that a commander might want to take
23 disciplinary action on that would have nothing to do with a professional
24 function, such as a scenario where, again hypothetically, where your
25 security officer is habitually drunk, a situation where he is habitually
1 absent without leave, where his performance or his duty or his behaviour
2 is out of line. Those types of functions would not have anything to do,
3 for the most part, with his professional military responsibilities, but
4 would be within the purviews of his commander to have to take action
6 Q. And his commander, once he confirmed that this has nothing to do
7 with his functions, then he can take those measures?
8 A. Yes, sir.
9 Q. You're familiar, based on your military experience, of personnel
10 evaluation reports, aren't you?
11 A. Yes, sir, I am, not only in my own experience but within the VRS
13 Q. And you're familiar with the fact that within the military and
14 within the VRS, a personnel evaluation report is a "make it or break it,"
15 as far as your military career goes?
16 A. It is a -- it is a key -- key document with respect to
17 professional officers and their continued career aspirations, yes, sir.
18 Q. And you would not expect somebody who has received an outstanding
19 personnel evaluation report to be someone with whom you have problems
20 with, disciplinary problems or other professional problems?
21 A. If a superior officer, and in this case a commander, is fairly
22 evaluating his officers with the goal of trying to promote and encourage
23 the best officers for the service and at the same time to take the
24 measures necessary so that substandard performers, you know, don't receive
25 those promotions, yes, he would evaluate them that way, I agree.
1 Q. Maybe my question was not rightly put, but if there is a
2 problem -- if the commander has a problem with an officer, that proper
3 document to put that information in, over and above any disciplinary
4 measures, is in the personnel evaluation report?
5 A. Yes, sir, I agree.
6 Q. My last question concerning the management of security officers by
7 the commander is simply: Overall, this instruction here, which was
8 published by the Main Staff under the signature of General Mladic, you've
9 already said that it does not change the application of the JNA rules or
10 doctrine to the security organ, but your professional opinion, did that
11 deprive the commander of any authority or anything with respect to his
12 assistant commander for security?
13 A. It certainly does carve in to the limits of authority that the
14 brigade commander has over his assistant commander, yes, sir.
15 Q. It carves in, but it doesn't prevent him from taking the same
16 actions that he would do against one of his other assistant commanders?
17 A. Correct, sir. I mean, only those areas that were specifically
18 designated as being beyond the authority of the actual commander are those
19 he cannot deal with. Otherwise, the command relationship remains the
21 Q. Thank you. I move on to a different topic altogether. But also
22 in your VRS brigade command responsibility report, yesterday you -- sorry,
23 not yesterday, the day before you said that "You did not have a law
24 degree, that you are not an expert on the law of war, like most military
25 officers." Do you recall saying this in response to a question by my
2 A. Yes, sir. Most military officers that I know are not -- do not
3 have law degrees.
4 Q. And are not experts on the law of war?
5 A. Fair, I'll say that they're not experts on the law of war, yes,
7 Q. And you're not either?
8 A. No, sir, not in that same sense. I agree.
9 Q. Now, in your report, even though you -- this statement you just
10 made, in section 4 of your report, you address issues such as the
11 disciplinary authority of a VRS brigade commander, and you address this
12 topic pursuant to laws and regulations. Now, I quote from your report,
13 where you assess disciplinary authority on the basis of VRS service
15 "Republika Srpska Law on the Army. Republika Srpska Law on
16 Military Courts," and "Republika Srpska Law on Military Courts, on Courts
17 Martial during a State of War."
18 Now, I submit that you are not qualified to look at these texts
19 and to provide an interpretation that would be of assistance to the Trial
20 Chamber in this case.
21 A. Well, I would disagree, in so much as that if one looks at this
22 material, it is written in a fairly self-evident manner, and while I don't
23 necessarily hold a law degree, you know, my ability to read and process
24 information, and certainly my ability to, down the line, you know, work
25 with the investigators to interview the individuals within the VRS who had
1 to apply it to ensure that my interpretations were correct, did exist.
2 So, again, my analysis is always conservative, and that's why I
3 extensively document these laws, so that anyone who reads the reports and
4 reads these laws are able to draw their own conclusions, in the event that
5 I don't make the proper conclusion.
6 Q. Now, when you reviewed the materials, so it would be my
7 understanding that you read all this -- all those laws, which are written
8 in a plain language, trying to understand what the disciplinary authority
9 of a brigade commander is.
10 A. Yes, sir. I believe that was crucial with respect to
11 understanding, you know, the authority limits as well as the potential
12 league limits that a brigade commander or even a corps commander would be
13 faced with with respect to his role in ensuring the discipline of his
15 Q. And did you try to make a parallel between your experience in the
16 United States Army?
17 A. No, sir. That's why we have about a million lawyers to do that.
18 Q. And did you obtain any assistance from the lawyers within the OTP
19 in drafting this part of your report?
20 A. No, sir. Like I said, my goal was not to find out what our
21 lawyers were saying about it. My goal was to go out, via the
22 investigation, and to find out what the appropriate VRS military
23 prosecutors and military judges were saying about how these were applied.
24 Q. So would I be right in saying that in this section, section 4, it
25 is, in your capacity as a former soldier, your layman understanding of
1 this most important topic?
2 A. Yes, sir, it is my understand of this topic. And if I'm defined
3 as a layman, so be it.
4 Q. Now, also when I look at section 5 of your report, here you
5 address specifically the relevant national law and military regulations
6 concerning the responsibility of VRS brigade commander. And this specific
7 section of your report deals with the prevention and prosecution of war
8 crimes and crimes against humanity. And just as a reminder, in this
9 section you quote the following:
10 "The order on the application of the Rules of War in the Army of
11 the Serbian Republic ..."
12 At paragraph 5.1, "The interim provisions on the Army of the
13 Republic," "The RS Law on Defence," "The RS Law on the Army," and "The RS
14 Law on the Refugee Care," on the care of refugees. You also address, at
15 paragraph 5.4, guidelines for determining criteria for criminal
16 prosecution and the Criminal Law of the RS for criminal offences against
17 humanity and international law. I will stop here, but the list goes on a
19 Would you agree that you don't have the qualifications which would
20 allow you to provide an interpretation of these laws or regulations or an
21 expert opinion in this regard?
22 A. I would disagree with that, yes, sir.
23 JUDGE AGIUS: Is your answer the same as before, Mr. Butler?
24 THE WITNESS: My answer is the same as before, yes, sir. I
25 believe that --
1 JUDGE AGIUS: So let's have the break now.
2 Thank you, 25 minutes.
3 --- Recess taken at 3.45 p.m.
4 --- On resuming at 4.17 p.m.
5 JUDGE AGIUS: Mr. Bourgon.
6 MR. BOURGON: Thank you, Mr. President.
7 Q. Mr. Butler, just when we left before the break, your last answer
8 was that your answer is the same as before with respect to section 5 of
9 your report, which deals with those laws, so I take this to mean that what
10 we find in your report is your layman understanding of these laws and
11 regulations at face value. Is that correct?
12 A. What you have in that section of my report is the laws and
13 regulation as they are stated and my opinion as to how they were being
14 applied within the context of the VRS, yes, sir.
15 Q. Thank you. What I -- I'm interested, nonetheless, in getting your
16 military interpretation of a few or some of these regulations which you
17 refer to in your report. And the first one in this regard is paragraph
18 7.11 of your report, and that is the RS Criminal Law, Article 239. It's
19 in tab 35 of your binder.
20 A. Thank you.
21 Q. This comes from the Criminal Law, and I can read it for you. I've
22 only included in your tab just this specific Article 239. It's 65 ter
23 424, page 17 in English and page 104 in B/C/S. This Article 39 reads as
25 "A subordinate shall not be punished if he commits a criminal act
1 by order of a superior officer which relates to official duties, unless
2 the purpose of the order was to commit a war crime or another serious
3 criminal act, or if he knew that the carrying out of the order constituted
4 a criminal offence."
5 I'm interested in your understanding, from a military perspective,
6 of this regulation.
7 A. Yes, sir, I believe that it deals with two principles, not
8 necessarily competing, with reflection of command and knowledge. For
9 example, there are other laws, as well as longstanding military practices,
10 where, you know, subordinates, you know, are required to comply with the
11 orders of their superiors. As a broad military function, no military can
12 deal successfully with a fact where subordinates are frequently or
13 constantly challenging either the authority or responsibility of the
14 superiors to give those orders.
15 Particularly with respect to official duties, it is the right of
16 the subordinate to take and accept any order and believe that it is given
17 to him lawfully, just like it's also a collateral obligation for the
18 superior who gives that order to him to have the requisite competence and
19 authority to give that order. However, it also reflects the fact that
20 merely following out orders with respect to war crimes is not a defence.
21 It reflects the fact that under international law, that -- and it has been
22 codified obviously in SFRY law as well as military regulations, reflects
23 the fact that subordinates have a responsibility not to follow orders
24 which they believe are patently unlawful at face value.
25 So that is how I interpret Article 239.
1 Q. If I can help you to be a little more precise with the exact text
2 that is before you, would that mean that if a soldier abides or executes
3 an order of his superior, he will not be punished unless the order was a
4 specific order to commit a crime - that would be the first scenario - or
5 the second scenario, if it was obvious that by carrying out the order, a
6 crime would be committed. Would you agree with this interpretation?
7 A. And, again, the issue would be the specific knowledge of the act.
8 And maybe it's easiest to explain it by analogy.
9 An artillery unit firing at a specific grid location, when its
10 undertaking its military mission, you know, has a right to expect that the
11 coordinates given to it correspond to a legitimate military target. They
12 have no way of knowing whether it does or not. They assume that. And if
13 it turns out afterwards that, in fact, the coordinates were given to a
14 hospital, I mean, at face value a war crime has occurred. The fact that
15 the subordinates do not have knowledge of the criminal target in that
16 respect, you know, they have the right to assume that those orders were
17 given -- well, those orders were given under proper authority. They don't
18 have that specific intent.
19 Conversely, when you're given -- as a soldier, you're given an
20 order to execute a wounded prisoner of war, in most aspects of societies
21 that have militaries, that's going to be recognised at face value as an
22 inherently unlawful act. So, I mean, that's perhaps the best way I can
23 explain it.
24 Q. Thank you. Let's move on to the next provision I'd like to have
25 your opinion on, and that was Article 22 of the regulations on the
1 application of the rules of International Law of War in the Armed Forces
2 of the SFRY, quoted in your report at paragraph 7.11. And Article 22, if
3 I have it, 65 ter 409, page 15 in English, page 16 in B/C/S, and tab 36,
4 Mr. Butler, in your binder.
5 A. Thank you, sir.
6 Q. Again, I only included in this in your binder Article 22, which I
7 am interested in, which I will quote for you:
8 "Responsibility for violations of the laws of war committed on
9 orders. A member of the armed forces shall be liable to criminal
10 punishment also for violations of the laws of war committed by following
11 orders resulting in the commission of a war crime or other grave criminal
12 offence, if he knew that the orders were intended to bring about a
13 violation of the laws of war which constitutes a criminal offence."
14 What is your interpretation, from a military perspective, of this
16 A. Well, sir, I mean, in this context, being a military regulation,
17 and why I like it, is it doesn't leave much room for interpretation. It
18 means wait says.
19 Q. And that is?
20 MR. McCLOSKEY: Objection. Asked and answered.
21 JUDGE AGIUS: Let's move, Mr. Bourgon, please.
22 MR. BOURGON: I'd also -- Mr. President, I will move on, because
23 you're telling me to move on, but I disagree with my colleague that this
24 has been asked and answered.
25 Q. Mr. Butler, would you agree with me that this highlights the fact
1 that if a superior gives an order which the subordinate knows was intended
2 to bring about a crime, it constitutes a criminal offence? Do you agree
3 with that?
4 A. Yes, sir. It says specifically if he knew that the orders were
5 intended to bring about a violation of the law of war.
6 Q. And my last question in this regard is: On the basis of your
7 understanding, from a military perspective, of both articles we just
8 saw -- I mean, we have just seen, can we conclude that officers and
9 members of the VRS had the obligation to refuse to follow an order which
10 was understood to be or bring about a violation of the law of war?
11 A. My understanding is that under their rules and regulations, that
12 is in fact correct, they were required to not follow that order.
13 Q. I move on to a different topic, which is the levels of land
14 warfare on which you testified about at pages 19581 to 19583. You have
15 defined these levels as being: Strategic, operational, and tactical
16 levels; is that correct?
17 A. Yes, sir.
18 Q. Based on your experience, can you confirm the fundamental
19 importance of understanding these levels of war in respect of the planning
20 and conduct of military combat activities?
21 A. Yes, sir. With respect primarily with my background in the
22 operational and tactical level, yes, sir.
23 Q. And if we look at the VRS brigade rules or at brigade level, can
24 you confirm that the rules define a brigade as being a higher combined
25 tactical unit whose components may vary?
1 A. Yes, sir. I believe under the JNA and VRS doctrine, a brigade is
2 what's called a tactical formation, yes, sir.
3 Q. Brigade subordinate units, such as battalions and companies, other
4 than in an exceptional circumstances, would be then considered as tactical
5 units also?
6 A. Correct, sir.
7 Q. And you would agree with me that when we compare these three
8 levels of warfare, the strategic level drives the operational level, which
9 in turn drives the tactical level?
10 A. Yes, sir.
11 Q. And at the tactical level, commanders are given specific combat
12 tasks that they will achieve within a short time frame, and I believe you
13 stated in your examination-in-chief normally not exceeding 48 hours.
14 A. Yes, sir. I mean, that's the goal, is that brigades are usually,
15 where they can, in a conventional environment, given tasks that they can
16 accomplish within the 48- 72-hour -- or 48 hours, because in a
17 high-intensity environment, or even in sharp medium-intensity environment,
18 at the end of a 48-hour engagement, the unit is usually at the point where
19 needs substantial resupply and replenishment.
20 Now obviously, in the context of the VRS and in a much static
21 environment, those time frames didn't normally apply with respect to
22 employment of entire units.
23 Q. And you would agree that tasks which are assigned to tactical
24 units fit into the operational plan and objectives design at a higher
1 A. Yes, sir, that's -- that's how it's supposed to work.
2 Q. And based on your experience, would you also agree that it is not
3 always easy to determine where a combat task at the tactical level fits
4 within the operational battle plan?
5 A. I would disagree with that, in so much as that under a normal
6 practice, before the brigades or the lower formations are going to be
7 constructing their particular battle plans, that they would have some
8 knowledge or appreciation of what the larger or the higher headquarter's
9 plan was. You don't do those in isolation.
10 Q. Let me give you an example to make things easier for you. A
11 commander who is given the tactical task to take a hill, where he knows
12 that he will lose half of his brigade, may have trouble understanding the
13 overall contribution of taking that hill to the operational plan; do you
14 agree with that?
15 A. No, sir. I would expect that a brigade commander, under those
16 circumstances, would have a fairly good understanding of what the overall
17 operational objectives were, particularly given the expectations of his
18 unit's sacrifice. In that respect, I would disagree.
19 Q. But you never commanded troops yourself, Mr. Butler, have you?
20 A. Not at this level, absolutely.
21 Q. And not even at a lower level?
22 A. Detachment level.
23 Q. So you've never commanded a battalion?
24 A. No, sir.
25 Q. You've never commanded forces in wartime, have you?
1 A. No, sir.
2 Q. Would you agree with me that regardless of their understanding of
3 the -- of the tasks they are assigned, commanders who work at the tactical
4 level are expected to focus on the task they are given, whether or not
5 they understand their contribution to the operational objectives?
6 A. There are three echelons of -- or four, if you count platoon
7 leaders, echelons of command at the tactical level. I would agree with
8 your analysis in the case of platoon or company commanders. I would not
9 agree with your analysis in the case of battalion or brigade commanders.
10 Those higher commanders are expected to have a broader perspective of what
11 they're doing and why.
12 Q. But it would not be surprising for officers who worked at lower
13 tactical units, especially battalions and companies, not to understand or
14 be fully informed of the operational objectives of the corps or the Main
15 Staff, for example?
16 A. I can agree with respect to the operational objectives of the Main
17 Staff. The corps, it may be a case-by-case basis. I think with respect
18 to -- a good example may very well be the Krivaja-95 op. plan, where the
19 tactical battalion commanders did have appreciations of what the
20 larger-level operational objectives were in this particular case. So,
21 like I say, at that level it's a case-by-case basis.
22 Q. And this case, to look at the Krivaja-95 operation itself, the
23 battalion commanders were in fact brigade commanders who had assigned
24 themselves as battalion commanders; do you agree with that?
25 A. No. I mean, each tactical group had two battle groups associated.
1 That would be the appreciation of the individuals I'm talking about, those
2 battle group commanders.
3 Q. And officers who worked, Mr. Butler, at the tactical level,
4 they're not likely to have input on the adoption of operational
5 objectives, nor on the planning of combat activities at the operational
6 level; would you agree with that?
7 A. I would agree that commanders at the tactical levels would
8 probably not likely have input as to the operational objectives. They
9 certainly would have input with respect to their opinions as to whether or
10 not their particular units were capable of achieving the missions that
11 they were -- being given to them.
12 As a matter of broader military command and staff, you're not --
13 as a higher headquarters, you're not going to give tasks to lower
14 formations without an appreciation whether or not they have the resources
15 or material ability to accomplish those tasks. The only way that the
16 higher commands and staffs know that is from the input of their
17 subordinate commanders, who will give them that information.
18 Q. But I think we're off on the right track. I was talking about the
19 setting of operational -- of operational objectives or the setting of
20 strategic objectives.
21 A. Yes, sir. I mean, in that context, certainly company and
22 battalion commanders would not be expected to play a role in that.
23 Q. Now, if I look at the situation of Drago Nikolic himself as a
24 second lieutenant working in the security organ of a tactical unit, would
25 I be right in saying that you do not expect him to have an input into the
1 setting of operational or strategic objectives?
2 A. Correct, I wouldn't expect a second lieutenant in the security
3 branch, at a brigade headquarters, to be engaged in that.
4 Q. And you cannot assume, unless you have evidence to the contrary,
5 that he was aware or that he understood and he adhered to the operational
6 and strategic objectives of the VRS?
7 A. I impart no knowledge of operational directives to that particular
8 individual. I have no information one way or another, so I don't make
9 that assumption.
10 Q. But you could not -- you can't assume, based on what you know of
11 him, that he was aware of these things?
12 A. No. I mean, the normal process that would have occurred is that
13 the relevant portions that he would have needed to be aware of would have
14 gone down separate security channels in that respect, but would -- you
15 know, would they have hand-delivered a copy of an operational directive to
16 him in its entirety? I would say that would be unlikely.
17 Q. I move to a different topic, which is basically the scope and aim
18 of your narrative. This was covered by -- in your examination-in-chief,
19 and I'd like to go a bit deeper in these things.
20 You mentioned, at page 19587, that the first aim or the first task
21 you were assigned was to engage in the study of the military and armed
22 forces apparatus that was believed to be responsible for the crime base,
23 in which case that would be the Armed Forces of the Republika Srpska, to
24 understand their doctrine and how they would have engaged in operations.
25 That was your first task; is that correct?
1 A. Yes, sir.
2 Q. And this -- the information or your conclusions in this regard, we
3 would find those in your VRS brigade command responsibility report, corps
4 responsibility report, and Main Staff report; would that be correct?
5 A. Correct, sir.
6 Q. And would you agree with me that your conclusions in your other
7 reports, and I refer here to your narrative and your revised narrative,
8 are of a completely different nature?
9 A. The conclusions in the narratives deal with issues with respect to
10 linkage of military units or specific military personalities to the known
11 crime base, yes, sir.
12 Q. So you agree that the conclusions are completely different in your
13 narrative and revised narrative than what we find in the other three
15 MR. McCLOSKEY: Asked and answered.
16 MR. BOURGON: I disagree, Mr. President.
17 JUDGE AGIUS: Where has it been asked and answered, Mr. McCloskey?
18 MR. McCLOSKEY: The same question was asked, Mr. Butler gave an
19 answer. This is, I think, about the fourth time that we've talked about
20 this subject.
21 MR. BOURGON: I think, Mr. President, it's an objection in the
22 abstract, but it's okay.
23 JUDGE AGIUS: Let's move, Mr. Bourgon.
24 MR. BOURGON: Thank you, Mr. President.
25 Q. Okay, Mr. Butler, we've established and you've already testified
1 that you're not either a criminal law expert, a law of war expert, and
2 what I'd like to turn to is how -- or the modus operandi of drafting this
3 narrative of yours. Explain to us how it worked in the Office of the
4 Prosecution on a day-to-day basis for the years that you were there.
5 JUDGE AGIUS: If I were the witness, I would ask you to clarify
6 the question. I don't understand it, to be honest with you.
7 MR. BOURGON: Thank you, Mr. President. I will clarify the
9 Q. I look at -- let's take it from a different angle. Your narrative
10 was drafted for the specific purpose of the Krstic trial; is that correct?
11 A. No, sir.
12 Q. Then explain to us, what was the purpose exactly of your
13 Srebrenica narrative?
14 A. The initial purpose of the narrative, particularly in the draft
15 forms, was to create a knowledge base for the team's investigators, as
16 well as the Prosecutors with respect to the teams, to get an appreciation
17 and understanding of the military formations that we believed, based on
18 the documents that were coming out of searches, that had a role with
19 respect to the crime base. As you might expect, this knowledge base
20 increases over a point of time.
21 In 1997, when I first arrived here, the Drina Corps was nothing
22 more than an abstract name. It was not defined, it did not have real
23 estate, very few names were associated with it. And as -- you know, as a
24 tool of the investigative process, you know, it would make it very hard
25 for investigators to be able to go out and ask informed questions of
2 So the initial goals of the narrative were to provide for the
3 Office of the Prosecutor that specific knowledge base so that they would
4 be able to more effectively conduct their investigative activities with
5 respect to the crime scene.
6 Q. Now, in your -- in your Srebrenica narrative, you say that the
7 original version of the narrative dealt exclusively with the case of the
8 Prosecution versus Krstic?
9 A. Yes, sir. At a point in time after the indictment and arrest of
10 General Krstic, there was discussion on finalising the particular
11 narrative product for the purpose of using it as a potential Prosecution
12 exhibit. The key issue and in my mind is that, you know, the product in
13 draft forms, it was always a living document for the benefit of the
14 investigative staff dealing with this. It was not a product that was
15 created from scratch post-indictment or pre-trial in any circumstance.
16 Q. Now, when you were working in the Office of the Prosecution,
17 preparing this report, you stated in your examination-in-chief that you
18 initially were a member of the military analysis team; is that correct?
19 A. Yes, sir, and throughout my entire tenure with the OTP I was with
20 the military analysts team.
21 Q. And the role of those people who work in the MAT, military
22 analysis team, is to provide advice to the people who were preparing these
24 A. Yes, sir. We advised the investigators and the lawyers who are
25 preparing these cases, yes, sir.
1 Q. Because most of these lawyers don't have a clue of the military,
2 and you're there to assist them?
3 A. I'm really glad you said that and not me, sir.
4 Q. Is that true or is that not true?
5 A. Yes, sir. I mean, in reality, you know, one of the reasons why
6 my - not personal presence - but why people of my calibre were invited to
7 come to the Office of the Prosecutor was simply because they did recognise
8 that legal professionals and investigators didn't necessarily have the
9 scope of military background and -- that we would as professional military
10 officers, and that absence was adversely impacting their investigative
12 Q. And I suggest to you that initially the plan was for them, "them,"
13 them being the lawyers and the prosecutors to go to you, but in your case
14 the relationship was reversed and you went to them and you told them how
15 this investigation would be conducted. Would that be a fair statement?
16 A. Within a refined avenue. I'm not sure how it works in other
17 militaries, but in the United States military, intelligence is a customer
18 service enterprise. We are expected and trained to be able to push
19 information to our relevant commanders. In the context that I was
20 working, you know, the investigative team and the lawyers therein were my
21 designated commanders. I would provide intelligence product to them in
22 the form of my analysis and opinions, and I would make recommendations as
23 to avenues that I felt the investigators should pursue with respect to
24 individual -- well, not only individuals, but areas that we wanted to be
25 able to confirm or deny not only with respect to military issues but crime
1 base issues. So in that respect, you know, I had the lane I was
2 responsible for, and I walked down it.
3 Q. So if I try to portray this, you were an investigator with special
5 A. No, sir, I was a military analyst who assisted the investigators.
6 I was not an investigator.
7 Q. But when you were determining avenues of investigation, you were
8 actually acting as an investigator?
9 MR. McCLOSKEY: Objection. You know, what we call Mr. Butler at
10 this point is really --
11 JUDGE AGIUS: Okay, Mr. McCloskey. Let's move, Mr. Bourgon.
12 MR. BOURGON: Thank you, Mr. President.
13 Q. And at page 19588, you stated that "The second component was to do
14 the analysis necessary to identify and place the military units on the
15 ground at the time so that the investigation had determined that crimes
16 had occurred, but the aim was to start making it to the next step, which
17 is to determine who the leaders in those units were and whether or not
18 they would have any potential criminal culpability for the acts." That's
19 what you did with the investigators and the prosecutors in the Office of
20 the Prosecution?
21 A. Yes, sir. I mean, in a broad sense, that was the role I
23 Q. So along with the investigators and legal personnel, you look at
24 all the material that was available to them and you made a call whether
25 such material was relevant or no to determine the culpability of
2 A. In part, yes. As an all-source intelligence analyst, I was
3 looking at all measures of information, and the results of the
4 investigative process, you know, were a form of information that I would
5 take into account. I would identify, as part of my military analysis,
6 those individuals who held either command positions or whom the
7 investigation had identified personal presence at locations, and figure
8 out where they fit within the structure of the militaries.
9 As for an issue of culpability, implying that, you know, I was the
10 one who determined which commanders were responsible and which ones should
11 be indicted or not, you know, again, you know, while I may have a voice on
12 the table on that regard with respect to my opinion, based on my military
13 background, I don't get a vote, and those decisions were made by the
14 career investigators and the career prosecutors.
15 Q. Now, in making those calls and by -- in order for you to have a
16 voice at the table, you reviewed that material and you selected which
17 material was relevant for the purpose of establishing culpability?
18 A. No, not exactly. I mean, not even close. I mean, I reviewed the
19 material with respect to laying out the broad framework of the events on
20 the ground, what happened, and what military units were at those locations
21 at times, and the events before and after. Obviously, as part of an
22 indictment review process, you know, my analysts did assemble documents
23 that would be used to support legal aspects that were required to
24 determine whether or not an individual could be indicted and under what
25 mode of liability.
1 So, I mean, we gathered documents, in the case of Colonel
2 Pandurevic, since he is indicted under a theory of superior responsibility
3 as well. You know, we would gather documents and present them which
4 reflect that Colonel Pandurevic, during the time in question, was the
5 commander of the Zvornik Infantry Brigade.
6 Q. And you participated in the selection of these documents, and the
7 documents which are used in your narrative are the result of this
8 selection that you made?
9 A. Yes, sir.
10 Q. Now, you would agree with me that since you first began in this
11 field, a lot of documents have been acquired or obtained by the Office of
12 the Prosecution?
13 A. Yes, sir.
14 Q. In your revised narrative, and I look at the date here, which was
15 published on the 1st of November, 2002, you state specifically that there
16 was a necessity to update your conclusions in the first narrative because
17 of information coming in?
18 A. Correct, sir.
19 Q. So between the publication of your first Srebrenica narrative and
20 the publication of the second Srebrenica narrative, you considered many
21 additional sources of, if I can use the term, evidence?
22 A. No, sir. I considered the new information that we were receiving.
23 I mean, I wouldn't qualify it as evidence. I just considered, you know,
24 all of the new information that we were receiving to determine where it
25 fit into the -- the context.
1 Q. And that was according to what you say in the introduction to your
2 revised narrative, this was meant to service specifically the trial of
3 Blagojevic, Nikolic, Obrenovic, and Jokic?
4 A. Correct, sir.
5 Q. And that was done in -- your report was published on 1 November
6 2002, at a time when that trial had already begun?
7 JUDGE AGIUS: To be precise, you're talking of Momir Nikolic?
8 MR. BOURGON: Yes, Mr. President.
9 JUDGE AGIUS: Just for the record. I knew that, but ...
10 THE WITNESS: Yes, sir.
11 MR. BOURGON:
12 Q. Now, here we are in 2007 [sic], and would I be correct in saying
13 that your narrative has not been updated in the same manner that it was
14 updated for the Blagojevic trial, and it was not updated for this trial in
15 the same manner?
16 A. Yes, sir, that's correct.
17 Q. So we can say that your narrative is quite out of date concerning
18 the numerous documents obtained by the Prosecution since your 2002 report?
19 A. Yes, sir. I mean, there's been a five-year lag in the last time
20 that I have worked to revise that. That's fair.
21 Q. And I say that you testified that you in response to a question by
22 my colleague, you said that of course you have a day job, and despite the
23 understanding that you continue to service the Office of the Prosecution
24 as an expert, that there was no way you could have the necessary time to
25 analyse all the new information with a view to producing an updated
2 A. Yes, sir, with a view to producing an updated report is correct. I
3 did, at various points of time, come over and look at the new information
4 primarily to ensure that the new information that was being generated,
5 particularly from the Drina Corps collection, you know, reflected the work
6 of my older products, the narrative -- revised narrative, and in cases
7 where new information would come out that would have to be addressed,
8 would we do that at a testimony state.
9 So, you know, in that respect, I've been reviewing it, but, no,
10 there was not an intention on my part to ever physically re-revise the
11 narrative, to update it at this juncture.
12 Q. And anyone who wants to use this report today, in order to apply
13 it to this trial, would necessarily have to take all the new documents
14 that came in since and to try and update your conclusions in order to have
15 a product that could be useful?
16 A. Again, within the context, yes, sir. I mean, but that's the whole
17 point of doing this.
18 Q. And that's not -- that's not a criticism on you at all. It's just
19 a fact that this report is five years old.
20 JUDGE AGIUS: One moment, Mr. Bourgon, because the last part of
21 your question could have multiple meanings. You said "and try to update
22 your conclusions in order to have a product that could be useful?" I
23 would take it that there are areas that do not need any revision at all,
24 and therefore the report would be useful. There are areas where the
25 update would just confirm what the report contains, and therefore the
1 report will remain useful. And then there may be areas - I'm sure there
2 are - where an update would alter the conclusions that Mr. Butler would
3 have reached in his last report. And unless he's testified about those,
4 then obviously one has to assess what weight to give to his report in
5 relation to those areas.
6 So let's be precise. In other words, the way you put the question
7 would mean that since -- if one does not review all the new documents,
8 then the conclusions reached by the witness in his reports are absolutely
9 useless. This is how -- if you read the question, this is what it says,
10 what it implies.
11 MR. BOURGON: But that's certainly our position, Mr. President.
12 JUDGE AGIUS: I'm telling you this so that you know also that we
13 don't consider you -- at least I don't consider your question to be a fair
15 MR. BOURGON: I will rephrase the question, Mr. President, thank
17 Q. Mr. Butler, you are aware that -- you already said that a number
18 of new documents have been obtained by the Office of the Prosecution.
19 Would you agree with me that the documents obtained impact on every single
20 aspect of your report because they were from the Drina Corps collection
21 and it touches upon everything; would you agree with that?
22 A. I would believe -- or I would concur that they are relevant. In
23 many cases, they would not impact the report because they are -- in some
24 cases, they're the identical documents, or in other cases, they're just
25 larger collections of documents which serve to confirm an earlier analysis
1 that I've conducted. So while every document is obviously important,
2 whether it's relevant or whether it would change my conclusions is a
3 case-by-case issue.
4 Q. That's it, you don't know that.
5 A. No, sir, I don't know the unknown.
6 Q. The new documents might infirm and might confirm, but you don't
7 know until you look at all the new documents along with your report; is
8 that correct?
9 A. Yes, sir, in the perfect world I would have the several years
10 necessary to do that.
11 Q. In the -- with respect to documents, are you aware of the fact
12 that you have used a lot of documents in your narrative and that you have
13 testified, both in this trial and previous trial, to a number of documents
14 which have not been presented to any witness in court; are you aware of
15 this fact?
16 A. In this particular Trial Chamber or in --
17 Q. In both. Let's take this one here.
18 A. I can't answer that fairly because I have not followed the
19 day-to-day proceedings, so I don't know what has or has not been presented
20 to other witnesses, sir. I can't answer that.
21 Q. Fair enough, that was my question, whether you knew that, because
22 that's something I can use later in argument, but it was important for me
23 to establish whether you were aware of this fact.
24 But you will agree with me, nonetheless, that if a witness has
25 drafted a document -- if somebody was involved in drafting a particular
1 document, he would be in a better position than you are to comment on the
2 document; is that correct?
3 MR. McCLOSKEY: Your Honour, at this point, with all these
4 abstractions and hypotheticals not based on any fact, I'm going to object.
5 I think it's time for the counsel to put his money where these
6 questions are. If he's got documents, if he's got specifics, let's hit
7 them up. We've been going for two and a half hours. Most of what he said
8 has been material that I don't disagree with, that Mr. Butler has already
9 testified to. But if he's got some material, let's put his case to the
10 witness. Otherwise, we're going nowhere.
11 JUDGE AGIUS: And, in addition, what's even more important than
12 what you said, Mr. McCloskey, not to diminish the importance of what you
13 said, what is important is: Isn't it a natural conclusion to draw, that
14 the person who draws up a document knows more about it and can testify
15 more about it than a person -- an outsider who is looking at it, even if
16 he is the best of military experts, which I am sure Mr. Butler would
17 concede he isn't?
18 Let's move, Mr. Bourgon. I mean, I think I've made my point
20 MR. BOURGON: Thank you, Mr. President.
21 Q. Mr. Butler, I'd like to move on to the topic of intercepts.
22 Would I be right in saying that -- you answered some questions in
23 this regard concerning the validity of the intercepts, and you said that
24 initially you had your own doubts about the validity of these -- of this
25 material; is that correct?
1 A. Yes, sir. My default position, when the Office of the Prosecutor
2 first identified this material, is that, you know, it might very well be a
3 scope of deception and that it would be, at least from my perspective -- I
4 would look at it very harshly in that light.
5 Q. Now if I look at -- you're aware that there was this intercept
6 project that was conducted within the Office of the Prosecution?
7 A. Yes, sir.
8 Q. What was your role in the intercept project?
9 A. My role in the intercept project was limited because of my lack of
10 language skills in that regard, obviously. What my military analysts and
11 I did was that when information would come up in the context of a
12 discussion or a topic, where we felt that we could go back to a Zvornik
13 Brigade or a Bratunac Brigade document as a way of potentially
14 corroborating that information, you know, my office did that. But the
15 actual day-to-day project itself was not something I was involved in.
16 Q. And in the intercept project, this is what was attempted, to take
17 ten examples and to see whether there was corroborating material, to see
18 whether there was any reliability to the intercepts. Are you aware of
20 A. Yes, sir. And, I mean, again like I said, to the extent that
21 military documents were used to corroborate those intercepts, myself or my
22 analysts were involved.
23 Q. And when you, yourself, used the intercepts, did you every time
24 look at this type of exercise to determine the reliability of the
25 intercept or did you simply say, "The intercept project has concluded
1 they're reliable" and they're all reliable?
2 A. No, sir. What I did as part of my own analytical practice was
3 that until the intercept project, as it were, you know, had completed
4 the -- a month worth of the intercepts, and the month that I directed was
5 1 to 30 July, I didn't look at them from an analytical perspective. What
6 I wanted to do is I did not want to fall into a trap where I was looking
7 at each individual intercept in or out of context and then somehow finding
8 a way to rationalise that it did or didn't fit.
9 What I wanted to do, from an analytical perspective, was to look
10 at the entire 30-day block, overlay that on the military activities that
11 we understood to occur over that same 30-day block, from the military
12 documents of Zvornik and Bratunac, and essentially see if it fit. I mean,
13 that's the first test of determining whether or not you're a victim of
15 In the broader context of reality as you understand it, if you're
16 a victim of a deception plan, that deception plan becomes self-evident
17 really fast.
18 Q. And once --
19 A. If it fits, it's your first indicator that you're looking at
20 authentic information.
21 Q. That's your first indicator. And then would I be right in saying
22 that from that moment on, whenever you quoted an intercept in your report,
23 you took the information on the intercept, including the date, the names
24 and the content, at face value. Would that be a fair statement?
25 A. If it was included in my intercept, I was satisfied that I could
1 take it at face value, yes, sir.
2 Q. The other part I'd like to go through with you is the use of
3 witness information. You testified that you tried to stay away from
4 witness information into this report; is that correct?
5 A. Yes, sir.
6 Q. And you gave the reason that there might have been
7 cross-examination conducted at a later time; is that correct?
8 A. Well, sir, I mean, in a military world, I obviously would have
9 included human information, which witness statements would fall under, as
10 part of my all-source analysis, again with a caveat that I would do my job
11 to be able to either verify or refute what was being said. Now, I did
12 obviously have to make an allowance for the fact that, you know, now I
13 don't live in a military world now, I'm living in a legal one, and that
14 that particular role was not mine, it belonged to the triers of fact.
15 So it is a known artificiality of my narrative reports that I make
16 up front, that, you know, I don't wish to try and completely wrap in the
17 human aspect of the information, because that is essentially why this
18 Court exists.
19 Q. And if you -- at the beginning I can understand that, of course,
20 witness information might draw you on a tangent concerning your report,
21 but what happens if information is confirmed in a trial, accepted and put
22 into a judgement, that comes from a witness, then would I be right if this
23 information contradicts your conclusion, that it does invalidate your
25 A. No, sir, and the reason why I say that is, again, living in a
1 legal world and having to go through a second trial, it was quite
2 apparent, legally speaking, that whatever factual conclusions or legal
3 conclusions that the Krstic trial came to, the Blagojevic Trial Chamber
4 was not only not bound by them, as whether or not they were factually
5 correct, but certainly Defence counsel wasn't going to accept that as
7 So as a result, you know, while the Krstic Trial Chamber made its
8 various findings and everything else, for the purpose of my analytical
9 product, you know, I could not take those as confirmed fact that they were
10 in fact the case, and conversely analysis or judgements that the Judges
11 made, I could not take that as confirmed fact for the purpose of my
12 analysis that they weren't true. So --
13 Q. So how did you decide when and -- to take witness information in
14 and when not to take information in, in your report? How did you make
15 that call?
16 A. Only in situations, as I've used a witness testimony, only when
17 the description of a crime scene from a witness was necessary just to set
18 the context by which the military was involved around. And maybe the best
19 way to explain that is that, you know, I had to use the statement, and I
20 guess later the testimony in the second case, you know, of survivors from
21 the Orahovac execution site because they were the ones who established a
22 location of a school, they were the ones who established the location of
23 the killing field. They don't -- you know, they don't establish which
24 military units may or may not have been around or who or who did not do
25 anything. So I used the witness statement to establish that particular
1 context in time so that my subsequent analysis with respect to where
2 particular military units were, where particular vehicles were located,
3 what particular individuals were talking about in conversations, made some
5 Q. And when this information changes in time with the witnesses that
6 you use in your report, and their information changes over time because of
7 cross-examination in further trials, don't you think that this is
8 something that you should have revised in order to update your report?
9 MR. McCLOSKEY: Objection. That's so broad and abstract.
10 JUDGE AGIUS: And apart from that, I mean, did he have the task of
11 updating his report?
12 MR. BOURGON: Mr. President, whether or not he had the task of
13 updating his report, what we have now is a report that has not been
14 updated, and we can draw conclusions from that.
15 JUDGE AGIUS: That's what you have, and you deal with that. I
16 mean, of course you can confront the witness with what you are confronting
17 him with, arguments and all that, but basically I don't think you can
18 assume that it was the responsibility of the witness to prepare an updated
19 report based on everything that you are mentioning.
20 MR. BOURGON: I will rephrase my question, Mr. President.
21 Q. Mr. Butler, whether or not it was your responsibility, the
22 consequences of this report not having been reviewed with this kind of
23 information has a bearing on the use that can be made of the report; is
24 that correct?
25 JUDGE AGIUS: Mr. McCloskey.
1 MR. McCLOSKEY: Objection. The indefinite references in that make
2 the question -- "this," "that," I mean it's so general, it really doesn't
4 JUDGE AGIUS: Can you be specific, Mr. Bourgon, or skip to your
5 next point.
6 MR. BOURGON: Thank you, Mr. President.
7 Q. Mr. Butler, how many -- are you -- you mentioned that you tried to
8 stay away from witness references. Are you aware of the fact that in your
9 report, in your narrative, the revised narrative, out of 676 footnotes,
10 you've used 74 references to witnesses?
11 A. I'll take your word for the answer, yes, sir.
12 Q. Would I be right in saying you use whenever a witness testimony
13 could assist you in establishing culpability, you would then turn to
14 witness evidence?
15 A. Given that you're talking about, what, 12 per cent of the
16 references involved, I would disagree with that. And I think if you've
17 read the context of the report, that would not be a fair characterisation
18 of my use of the witness testimony.
19 Q. In order for you to be firm with your conclusions in your report,
20 the fact is that it is important to look at the testimony, and your report
21 cannot be read without considering the testimony; is that correct?
22 A. My report is designed to be read to allow, you know, the audience,
23 and the audience in this case being, of course, the legal audience of
24 these Chambers, as a road map to what the military documents are, what the
25 intercepts are, how they fit in within the broader context of what the
1 Court may or may not be looking at, and also to establish the regulatory
2 framework by which the various defendants, you know, conducted their
3 military service or police service within the Republika Srpska at the time
4 the crimes occurred.
5 Q. But you'll agree with me that the regulatory framework you're
6 talking about, that's in your command responsibility report?
7 A. Yes, sir.
8 Q. But in the narrative, you're talking about facts and you're making
9 conclusions of facts based on much more than documents; is that correct?
10 A. No, sir. Most of my conclusions are strictly based on the -- my
11 analysis of the documents and the intercepts.
12 Q. And your conclusions are of little assistance unless it is
13 considered along with the witness testimony in any given case?
14 A. Is that a question for me to answer, sir?
15 JUDGE AGIUS: No, I don't think it should be a question for you.
16 Let's move, Mr. Bourgon.
17 MR. BOURGON: Thank you, Mr. President.
18 Q. And the fact, Mr. Butler, that despite the witnesses that were
19 quoted in your revised narrative, there has been 28 new witnesses that are
20 not quoted in your report and have testified in this case?
21 MR. McCLOSKEY: Objection. That's directly connected to the
22 ruling of the Court and contrary to it.
23 JUDGE AGIUS: Let's move, Mr. Bourgon.
24 MR. BOURGON: I'm not sure, Mr. President, what ruling he's
25 talking about, but I will move on.
1 JUDGE AGIUS: We are quite sure. It's obvious that this line of
2 questions is getting you nowhere, in the sense that these can become
3 arguments and we can deal with your submissions in due course. But the
4 fact that there have been 28 witnesses that have testified, that's got
5 nothing to do with the witness.
6 You can make submissions in relation to his reports and his
7 testimony based on the evidence of other witnesses and other facts that
8 have been collected here during the evidentiary stage, and we can proceed
9 along -- along that line, but not along this line.
10 MR. BOURGON:
11 Q. Mr. Butler, I will ask you one last question in respect of your
12 revised narrative.
13 JUDGE AGIUS: One moment. Certainly, we don't want to stop you if
14 you have got a specific instance that you want to put to the witness and
15 ask him whether, having been told this, he is prepared to revise his
16 assessment or his conclusion, but you need to be specific then, not
17 generic and abstract as you have been so far.
18 MR. BOURGON: Well, Mr. President, I -- I take the view that
19 asking the witness to conclude that if there are 28 witnesses that he's
20 not aware of, that have not been considered in drafting a report, that he
21 is in the position to say that his report is not complete. And that is an
22 important argument.
23 JUDGE AGIUS: I'm sorry. The report has to be looked at as a
24 concrete piece of evidence, and just like every other piece of evidence.
25 Are you going to tell each witness that has come here, "Your testimony is
1 not complete because other witnesses have testified on the same events,
2 which you haven't commented about"? You can't move along these lines.
3 MR. BOURGON: Thank you, Mr. President.
4 Q. Mr. Butler, I have one last question for you on your revised
5 narrative, and I simply suggest to you that your revised narrative is,
6 one, the result of selection of evidence, that it is both incomplete and
7 out of date. Do you agree with this statement, Mr. Butler?
8 A. I agree that it is five years old. At this juncture, I have not
9 been shown any information which would tend to make me change my mind that
10 the information in it, as well as the conclusions that I've reached, are
11 no longer relevant. So in that regard, you know, I look at it as so far
12 its durability has survived, unless you're prepared to show me something
13 to the contrary.
14 Q. Let me move on to a different topic, Mr. Butler.
15 The events -- I look now at the contents of your revised
16 narrative, and the first issue I'd like to address in this regard deals
17 with the situation which you describe as having taken place in and around
18 Srebrenica, the enclave, between the 2nd and the 13th of July.
19 The first thing I'd like to look at is 65 ter 107, which is tab 33
20 in your binder.
21 A. We're referring to the Krivaja-95 plan of 2 July 1995, sir?
22 Q. Yes, we are, 2 July 1995, an order from the commander of the Drina
23 Corps, an order for active combat activities. Is it your military
24 interpretation that the task of the corps at that time was to split apart
25 the Zepa and Srebrenica enclaves and to reduce them to their urban areas?
1 JUDGE AGIUS: Yes, Mr. McCloskey.
2 MR. McCLOSKEY: This area has been gone over repeatedly,
3 especially by Defence counsel who had people somewhat involved in this,
4 and the Prosecution will acknowledge Drago Nikolic is up in Zvornik and is
5 really not involved in any sense that the Prosecution can think of that --
6 yes, this is a joint criminal enterprise, but this is a question of time
7 and our valuable time spent here. This question has been dealt with over
8 and over again.
9 JUDGE AGIUS: Thank you, Mr. McCloskey. I assume that this is a
10 prelude to another question, and let's hear the other question, because
11 this he has confirmed already.
12 MR. BOURGON: Mr. President, this is indeed a prelude to many
13 other questions which deal with the events in Potocari. I will move to
14 the question, and depending on the answer, I'll see if I have to go back
15 to the documents.
16 Q. Mr. Butler, based on this order from the Drina Corps, so you're
17 familiar with this order, and based on the subsequent warning order or
18 preparatory order that was issued by the commander of the Zvornik Brigade,
19 so bearing in mind these two orders, from -- and on the basis of your
20 report, you concluded that two courses of actions were taken by the people
21 in the Srebrenica enclave, starting on the evening of 10 July 1995; is
22 that correct?
23 A. No, sir. You -- the -- my conclusions with respect of the two
24 courses of action were along the basis of decisions that were made by the
25 Muslim civilian and military officials, meetings on 10 July in Srebrenica.
1 The Krivaja-95 order and the subsequent order you're referring to, I'm
2 assuming you're talking about the Zvornik Brigade operations order, not
3 the Drina Corps preparatory order. I don't know that the decisions that
4 the Muslim leadership made about the column had any basis with what the
5 VRS was saying.
6 Q. Okay, Mr. Butler, I will rephrase my question to try and make it
7 more precise.
8 A. Please.
9 Q. According to your analysis, and that is in your report, three
10 things are happening simultaneously on 12 July and the morning of 13 July.
11 I'd like you to confirm that this is your -- a result of your analysis.
12 Firstly, you have the woman and children and older men are being
13 transported by bus to Muslim free territory. That's happening starting
14 the 12th of July, in the morning. Is that correct?
15 A. Correct, sir.
16 Q. At the same time, the Drina Corps is in the process of assembling
17 military units in the preparation for upcoming combat activities in Zepa;
18 is that correct?
19 A. I don't believe that that's on the 12th of July. That's the 13th
20 of July they're doing that. On the 12th of July, they're sweeping through
21 the Bardera [sic] Triangle.
22 Q. And the forces being included, whether it is on the 12th or the
23 13th, your report talks about simultaneous activities on the 12th and the
24 13th, so I look at the period from the 12th, in the morning, until, let's
25 say, the 13th at noon. And in your report, you say that the -- those
1 forces were being assembled for activities in Zepa, and I would ask you to
2 confirm that according to your analysis, this includes the 1st Tactical
3 Group from the Zvornik Brigade.
4 MR. McCLOSKEY: Could we have a reference to the report? He's
5 clearly looking at it, and I think it would be helpful given the confusion
6 we have.
7 JUDGE AGIUS: Thank you, Mr. McCloskey.
8 Mr. Bourgon, could you help us on that.
9 MR. BOURGON: Yes, I can, Mr. President, but I don't think there's
10 too much confusion. Those three basic conclusions of his refers to what
11 is happening on the 12th and 13th, but we can go into --
12 JUDGE AGIUS: Can you follow so far, Mr. Butler, or do you need to
13 have more specific reference?
14 THE WITNESS: I think what is being referred to is the three
15 actions that I talk about are the movement of the civilians out of
16 Potocari is one action. I'll -- you know, it's the 12th and the 13th, the
17 12th -- the sweep through the Bardera [sic] Triangle on the morning of the
18 13th, the uploading of those units and movement towards Zepa as the second
19 action, and then as the third action would be the military activity
20 related to the Muslim column. So, I mean, those are the three things that
21 I'm talking about.
22 MR. BOURGON:
23 Q. And that's exactly what I want you to confirm, that those three
24 things are happening simultaneously, and then in the meantime, while this
25 is happening, would I be right in saying that your military analysis has
1 revealed that the Zvornik Brigade, or what was left of it, was doing two
2 things; they were holding the confrontation line facing the 2nd Corps of
3 the ABiH Army, and, secondly, under the command and control of the chief
4 of staff, it was preparing to fight and actually fighting elements of the
5 column which had succeeded in crossing the Konjevic Polje intersection?
6 Is that what the Zvornik Brigade is doing this at that time?
7 A. Well, I am uncomfortable of giving a broad "yes" or "no" over what
8 are -- a very fluid situation happening over the 12th and 13th of July.
9 Certainly with respect to the first issue, yes, the brigade, over those
10 two-day periods, had a responsibility to maintain the confrontation lines
11 against 2 Corps. However, what the brigade was engaged in during the
12 hours of the 12th of July and what the brigade was engaged in in the hours
13 of 13 July, there were substantial differences, because of course the
14 military situation changed in those intervening 24 hours. So I just want
15 to try and be technically accurate on that one.
16 Q. Mr. Butler, in regards of the answer you've just provided and what
17 is happening at that time, and in light of your analysis, you will agree
18 with me that the Zvornik Brigade was not involved in any way in the
19 decision-making, the planning, and the actual transport of the group of
20 women, children and elder men from Potocari to free territory under the
21 control of the 2nd Corps of the ABiH?
22 A. I don't know that. I mean, there's no evidence that the Command
23 in Zvornik was involved in that, and at present I have no way of knowing
24 whether the brigade commander -- whether he was or was not involved in
25 that. So, I mean --
1 Q. The answer to your question is your analysis has revealed that it
2 was not involved; is that correct?
3 A. Well, it was involved in so much as the fact that buses and trucks
4 were sent to that unit, from that unit to Potocari, but I have no
5 information that says that the Command of the Zvornik Brigade was
6 instrumental in the decision on moving those individuals, you know, from
7 the Command at Zvornik. I have no information on whether or not Colonel
8 Pandurevic, as the commander of the brigade, had any input or opinion,
9 from where his vantage point was down in Srebrenica.
10 Q. But you have not seen any evidence to the contrary, either?
11 A. No, I have no information on that.
12 MR. BOURGON: May I have, please, 65 ter 110, which is tab 11 in
13 your binder. This was one request to provide buses which was sent to the
14 Zvornik Brigade.
15 Q. And I ask you to confirm that your understanding, from a military
16 perspective of this order, is that it cannot be concluded in any way that
17 there was any understanding that sending buses was part of any illegal
19 A. Yes, sir, I mean, there's no indication, from the context of this,
20 that it specifies any unlawful act. I agree, sir.
21 MR. BOURGON: May I have 65 ter 377, and that's the duty
22 operations officer logbook for 12 July. This one is not in your -- in
23 your binder. Maybe my friend wants to give you the original. Usually, he
24 does. If not, it's on ERN page, for 12 July -- ERN 5732. That's in
25 English. 377 is the 65 ter number.
1 JUDGE AGIUS: I don't think the one we are looking at is the one
2 you want, Mr. Bourgon.
3 MR. BOURGON: I don't have any in front of me, Mr. President, so I
4 can't --
5 JUDGE AGIUS: I see, it's coming. Okay.
6 MR. BOURGON:
7 Q. Actually, Mr. Butler, this one is -- was included, I believe, in
8 your binder. Let me just give you the right tab.
9 MR. BOURGON: Do you have the ERN page or ...
10 Q. I take it, Mr. Butler, that you have reviewed this operations duty
11 officer logbook, have you, as part of your analysis?
12 A. Yes, sir, I mean, I have in so much as the analysis of it is not
13 included in my narratives because this particular piece of information
14 arrived after it was published, but I have -- I have seen and reviewed
15 this document, yes, sir.
16 Q. And you would agree that, of course, this duty operations officer
17 logbook contains plenty of information which could have been of assistance
18 in drafting your narrative?
19 A. If I had it available, I'm quite sure that it is something that I
20 would have included as a relevant part, yes, sir.
21 Q. If we look at the page which is 5732, if we can have the English
22 also on the left side or just -- the entry here, Mr. Butler, talks
23 about -- it's a message which is communicated to the chief of staff, who
24 is standing at the 7th Battalion, and the message reads as follows:
25 "Eight buses from Drinatrans and two of our buses from military
1 police and four of our trucks are going to Bratunac today."
2 My question is: Would you agree that from this entry and any
3 other entries on the 12th of July, there is no indication here that either
4 the duty officer or any other member of the Zvornik Brigade had any
5 knowledge of illegal activities that they are taking part in by sending
7 JUDGE AGIUS: We don't need to hear your objection.
8 Please proceed to your next question, Mr. Bourgon.
9 MR. BOURGON:
10 Q. Mr. Butler, you will agree with me that requests which are sent
11 for buses to the Secretariat of Defence of the Ministry in Zvornik, that
12 this is an entity that is completely separate from the Zvornik Brigade; do
13 you agree with that?
14 A. Yes, sir, the Ministry of Defence office is an independent entity
15 from the Zvornik military brigade unit.
16 MR. BOURGON: And I'd like to have 65 ter 157, and it's tab 37 in
17 your binder.
18 Q. Do you see that this is an order where the Drina Corps is
19 addressing the commands of the Zvornik Brigade as well as the Bratunac
20 Brigade, asking for military police to regulate traffic control at the
21 Konjevic Polje junction? Would you agree with me that from the context of
22 this order, and your analysis of it from a military perspective, that no
23 illegal activity can be deducted from this order?
24 JUDGE AGIUS: Mr. McCloskey.
25 MR. McCLOSKEY: Mr. Butler is not here to comment on whether
1 activity is legal or illegal. Opening up that Pandora's Box opens up
2 redirect into a whole other area which is -- I'm not sure that's where we
3 want to go. "Illegal," I mean that --
4 MR. BOURGON: Mr. President, my colleague has done it, but I will
5 reformulate the question.
6 JUDGE AGIUS: All right, reformulate the question, and let's hear
7 the next one, then.
8 MR. BOURGON:
9 Q. From a military perspective, Mr. Butler, you look at this order,
10 is there anything that is not in accordance with the doctrine or the rules
11 that you have reviewed?
12 A. No, sir, this is a standard military order. I mean, there's
13 nothing improper about it.
14 Q. Now, I mentioned a little earlier that in -- concerning this
15 request, and I'd like to have now 65 ter 322, which is a Zvornik Brigade
16 combat report, and it's 12 July 1995, tab 14 in your binder, and I draw
17 your attention to the second paragraph, where it says: "Primary tasks for
18 the unit," and I ask you, when you analyse this document from a military
19 perspective, can you see anything improper being conducted on the military
20 basis, based on what is reported in this combat report?
21 A. This is -- this is a normal -- this is a normal combat report with
22 respect to structure, context, and substance.
23 Q. And if I look at the paragraph where it says:
24 "We sent to Bratunac, pursuant to your order, eight buses," and
25 then the following paragraph where it says:
1 "One military police detachment was sent to Konjevic Polje,"
2 would the drafter of this document, from your military perspective, be of
3 the view that he was doing anything improper?
4 MR. McCLOSKEY: That's so speculative. Please.
5 JUDGE AGIUS: The drafter doesn't mean that he was the person who
6 sent the buses to Bratunac or whatever. The drafter is the drafter. The
7 Drina Corps is the Drina Corps.
8 MR. BOURGON: I will rephrase my question, Mr. President.
9 Q. Mr. Butler, the -- either the drafter of the document, the sender
10 of this document, or anyone else within the Zvornik Brigade involved in
11 the activities described in these two paragraphs, would anyone have -- be
12 of the view that they were conducting anything improper, from a military
14 JUDGE AGIUS: Again, you don't need to even spell out the
16 Let's move on, Mr. Bourgon, please.
17 MR. BOURGON: I'd like to move now to Chapter 6 of your narrative.
18 Q. In this chapter, Mr. Butler, you deal with detention sites and
19 executions in and around Bratunac Municipality. Or, sorry, maybe one last
20 question with the last -- the last part, which is Chapter 5, and that was
21 the transport or transfer of the women, elderly men, and children from
22 Potocari to the free territory.
23 I would suggest to you that your analysis of the material at your
24 disposal has not revealed any involvement whatsoever on the part of Drago
1 A. No, sir, I mean, I have no documents or evidence which would
2 suggest that, yes, sir.
3 Q. Moving on to Chapter 6 of your narrative, that's the one where you
4 talk about executions in and around the Bratunac Municipality. Just as a
5 reminder, you address in this -- in this part the assembly and detention
6 of Muslim males in and around Bratunac, and you refer to places such as
7 the hangar, the old school, the buses in front of the Vuk Karadzic school
8 and the old school, the buses and trucks at Vihor, the trucks at other
9 locations in Bratunac, and, finally, trucks at Kravica.
10 Based on your analysis of the facts, you would agree with me that
11 the Zvornik Brigade, nor any of its members, were involved in these events
12 as you describe them in your narrative?
13 A. No, sir, I wouldn't -- I wouldn't make that broad conclusion that
14 no members of the Zvornik Brigade were not potentially involved.
15 Q. Well, tell me which ones, then, and where, and how?
16 A. Well, certainly within the context of geographic proximity, the
17 8th Battalion of the Zvornik Brigade, which is also the 4th Battalion of
18 the Bratunac Brigade, is physically located down there. The activities
19 potentially of the military police at the check-point at Konjevic Polje,
20 which I have -- again from documents, I mean, we know they're present
21 there. What their activities were or were not, I don't know. So, I mean,
22 I can't agree with your blanket statement on that.
23 Q. Well, let's take your answer step by step. The 8th Battalion
24 you're talking about, is it correct that you concluded in your report that
25 on that occasion, the 8th Battalion, which may have belonged to the
1 Zvornik Brigade in some way or having returned there after 19 July, at
2 that time was under the command and control of the Bratunac Brigade? Yes.
3 Is that your conclusion in your report?
4 A. Yes, sir, I agree that they're under the command of the Bratunac
5 Brigade. However, you know, I also note that there is information that
6 reflects that there's still a relationship with Zvornik and that, you
7 know, we do have information that reflects that particular unit is still
8 in contact with the Zvornik Brigade with respect to issues on needing
9 ammunition, with respect to issues on needing reinforcements, and even in
10 one case with respect to the notification that they've captured at least
11 one Muslim prisoner.
12 Q. I will leave the -- those links to you and to the assessment of
13 the Trial Chamber, but I'll ask you to confirm that that occasion, it is
14 your conclusion that it was under the command and control of the Bratunac
15 Brigade. Is that correct?
16 A. Yes, sir, the battalion was formally commanded by Colonel
17 Blagojevic of the Bratunac Infantry Brigade.
18 Q. And concerning the activities of the military police at the
19 Konjevic-Polje intersection, you do not have any information of any
20 wrongdoings of those military police at that time; is that correct?
21 A. Of the specific military police patrol at that intersection at
22 that time, that would be correct, I don't have any specific information
23 that would show their direct involvement in anything.
24 Q. And I would rephrase my earlier question. Looking at members of
25 the Zvornik Brigade, excluding the tactical group that was away from the
1 brigade and excluding the 8th Battalion, do you see any involvement from
2 any member of the brigade or the brigade itself in those activities
3 described in Chapter 6 of your narrative?
4 A. Would we also exclude the various drivers of the vehicles that
5 came from Zvornik as well because most of them were military members?
6 Just to be clear in that context, I mean, vehicles and buses that came
7 down, a number of the drivers were members of the Zvornik Brigade. They
8 were involved in that activity.
9 MR. BOURGON: I'll move on to a different question, but --
10 JUDGE AGIUS: I think we'll have a break now and also, in the
11 meantime, decide whether you still believe that his report is not useful
12 because of the evidence collected in these five years or whether it is
14 Let's have a 25-minute break.
15 --- Recess taken at 5.45 p.m.
16 --- On resuming at 6.14 p.m.
17 JUDGE AGIUS: Yes, Mr. Haynes.
18 MR. HAYNES: I rise at this point, I hope, to aid the
19 administration of the Court. Of course, all these things are your
20 decision, but I'm conscious of the fact you encourage us to cooperate.
21 There appear to be --
22 JUDGE AGIUS: I also must concede that you do, most of the time.
23 MR. HAYNES: Thank you.
24 There appear to be three current legal issues which are fairly
25 urgent, without necessarily being on fire. They include the new witness
1 who was the subject of the motion yesterday, some issue regarding the next
2 witness, who I will not name, lest there be any protective measures sought
3 for him, and some issues concerning material relating to the DNA witnesses
4 who are coming after that. And these will involve some discussion, and,
5 doing the best we can, we think they will occupy about half an hour of
6 court's time.
7 Now, in that event, and Mr. Nicholls is here to deal with at least
8 one of the issues, we've spoken during the break and we felt it would be
9 more convenient, particularly to Mr. Butler, if we allocated a slot
10 tomorrow to deal with those matters, perhaps first thing in the morning,
11 rather than cause you to stop early tonight and not have enough time to
12 deal with all the issues.
13 So as I say, respectfully, of course, you run the court, but that
14 would be, I think, our joint suggestion.
15 [Trial Chamber confers]
16 JUDGE AGIUS: Mr. Bourgon, will you make an effort to finish your
17 cross-examination today?
18 MR. BOURGON: I don't think so, Mr. President. I've got two and a
19 half hours done, and I believe I have an hour and a half --
20 JUDGE AGIUS: You have three hours and 53 minutes, and that's --
21 MR. BOURGON: And I need an hour and 10 minutes or 9 minutes or
22 whatever to bring it to five hours, Mr. President.
23 [Trial Chamber confers]
24 JUDGE AGIUS: All right. Mr. Haynes, and of course I take it that
25 you were representing your colleagues --
1 MR. HAYNES: I hope so.
2 JUDGE AGIUS: Yes. We hope so, too. Okay. We'll -- do you wish
3 to say you agree or --
4 MR. McCLOSKEY: We do agree. Well said.
5 JUDGE AGIUS: So we'll postpone the discussions, which we had in
6 mind to deal with -- to have at the end of this sitting, no matter that
7 you think 30 minutes will be required, to tomorrow morning first thing, so
8 then Mr. Butler comes in after the bit and will continue with the
10 Okay, Mr. Bourgon.
11 MR. BOURGON: Thank you, Mr. President.
12 Q. Mr. Butler, we left off on the issue of whether the Zvornik
13 Brigade was involved in the activities described in Chapter 6 of your
14 narrative, and my next question is the following: Will you agree with me,
15 from a military perspective, that once those -- when the Zvornik Brigade
16 did dispatch buses and trucks as requested by the Drina Corps, that those
17 drivers, at least from a factual point of view when they reported to the
18 person requesting the buses, were under command and control of those
20 A. Yes, sir, in that context I agree.
21 Q. My next question deals -- just to finish on Chapter 6 of your
22 narrative, which deals with the issue of these events. Would I be right
23 in saying that your analysis of the information at your disposal did not
24 reveal any participation whatsoever on behalf of Drago Nikolic in either
25 sending buses or sending military police to Konjevic Polje?
1 A. I have no information that he participated in sending buses or
2 sending the military police to Konjevic Polje, yes, sir. That's a fair
4 Q. And if we look at the first two executions which are described in
5 your report, which took place in Cerska as well as Kravica, would it be
6 fair to say that your analysis, from a military perspective, did not
7 reveal any involvement on the part of Zvornik Brigade?
8 A. I don't know that I can make that particular blanket statement for
9 two reasons. The first reason is that, as I note in my narrative on, on
10 13 July the travels of one military police vehicle do put it in the
11 Kravica area at around the afternoon hours of 13 July. I also am aware of
12 the statements that Milorad Trbic has provided to the Office of the
13 Prosecutor with respect to his presence at that location on 13 July, at
14 the time the executions were occurring or had occurred.
15 So I am aware of those two facts. And, of course, given the
16 relationship between Drago Nikolic and Milorad Trbic, I'm not prepared to
17 make that conclusion.
18 Q. Well, leaving aside Trbic, because he's -- of course, not evidence
19 that we've heard in this case, at least not to this day, but focusing on
20 that vehicle that you're talking about, I'd like to look at 65 ter, which
21 is exactly this -- this vehicle log that you have, 65 ter 136, which is in
22 tab 38.
23 In your Srebrenica narrative, you highlighted the places where
24 this vehicle travelled to.
25 A. I'm sorry. Could you say again the tab?
1 Q. The tab would be tab 28.
2 A. I'm sorry, I misheard you.
3 Q. Sorry, not -- tab 19. And that is 65 ter 904.
4 In your report, Mr. Butler, and that was on page -- the paragraph
5 7.3 of your report, the Srebrenica narrative, you indicated where the
6 vehicle or the Opel Record that you've just referred to was travelling on
7 13 July. That's the document that you have in front of you. And from 13
8 July, we have Standard IKM, Zvornik local, Orahovac, Standard, Bratunac
9 and Zvornik; do you agree with that? Is that what you have in this
10 document which you have in your binder and which is now on e-court for the
11 13th of July?
12 A. Yes, sir, that's correct.
13 Q. With respect to travelling to Bratunac on that day, I'd like now
14 to turn to 65 ter 136, which is at tab 38. And I suggest to you that this
15 document -- I will ask you to confirm that this document shows that there
16 was a UNHCR convoy that travelled on 13 July from Karakaj to Bratunac.
17 Can you confirm this, from your reading of this document?
18 A. Yes, sir, paragraph 3.
19 Q. Paragraph 3. Now, we had evidence in this case from a witness
20 that he was driving this car and he accompanied this convoy on this
21 vehicle. In light of this conclusion, if it was to be accepted, would
22 that show that your conclusions of the possible involvement of Zvornik
23 Brigade in those two executions in Cerska and Kravica would not be the
25 A. Well, I understand that the individual -- I don't know that he's
1 testified and I won't mention his name, because I don't know what the
2 circumstances are, so I don't know what he may or may not have said about
3 that travel. I --
4 Q. Let's go to the point where --
5 A. If the witness said that, then certainly for the purpose of
6 escorting the convoy down to Bratunac, that's what he would be doing.
7 Q. That's what is written there?
8 A. Yes, sir.
9 Q. And on the same document, when you indicated that there was some
10 travel, Standard to IKM, the fact that your investigation has revealed
11 that Drago Nikolic was on duty at the IKM on the 13th of July, could that
12 also be accounted for -- or account for what is indicated, "Standard-IKM,"
13 on 13 July?
14 A. Yes, sir.
15 Q. And is there any possibility, I say "possibility," that the
16 locations indicated in that vehicle log that you just saw, and we looked
17 at the locations, that on that day the vehicle travelled to those
18 locations for military police business, unrelated to any execution; is
19 that a possibility?
20 A. It's a possibility with respect to Kravica and, as you said
21 before, potentially Cerska, because I just have no information about that.
22 I don't know whether I hold that as a possibility, as an extension of the
23 travels to Orahovac.
24 Q. Fine, I accept your conclusion, because I -- we will have evidence
25 to the contrary. But now I'd like to turn to 65 ter 377, which is
1 something that you mentioned during your examination-in-chief. That's the
2 duty officer or duty operations officer logbook. I'd like to have page 16
3 in English and page 122 in the B/C/S language. And that was for the 13th
4 of July, 1995. And during your examination-in-chief, you referred to a
5 request for a bulldozer, which was addressed to the duty officer of the
6 Zvornik Brigade on 13 July. You recall testifying to that effect?
7 A. Yes, sir.
8 Q. I would simply ask you to look at the duty officer's logbook,
9 which will appear in front of you. I do not have this one in your
10 logbook. From your analysis of the information in the duty officer
11 logbook, where it says: "Bulldozer," is there any possibility to conclude
12 that the person drafting -- or the person or the officer on duty knew what
13 the bulldozer was requested for?
14 MR. McCLOSKEY: I object to the term "any possibility." This is a
15 term that helps no one.
16 JUDGE AGIUS: Mr. Bourgon.
17 MR. BOURGON: I will rephrase to please my colleague,
18 Mr. President.
19 JUDGE AGIUS: Thank you.
20 MR. BOURGON: I like to please my colleague.
21 JUDGE PROST: Mr. Bourgon, also I'm not seeing -- maybe it's just
22 me, but I'm not seeing "Bulldozer" on the English version.
23 MR. BOURGON: It's there.
24 JUDGE PROST: Oh there, thank you.
25 MR. BOURGON:
1 Q. From your analysis of this duty officer's logbook, can you
2 conclude where the bulldozer or why the bulldozer is requested?
3 A. I believe, again looking at this one specific reference, it's
4 impossible to say why. I mean, I think we've coupled this with the
5 intercept which talks about, you know, requesting the bulldozer, so again
6 I don't look at it in isolation, but from this, there's nothing that would
7 refer that the individual who wrote this down in the log has any
8 indication of why it's being asked for.
9 Q. And that was my next question. The intercept that was coupled
10 with this information, would that allow you, from your military
11 perspective, to determine why the bulldozer was requested?
12 A. Well, I believe I've testified that I believe why the bulldozer
13 was requested. I think what you're looking for, if I understand the line
14 of questioning correctly, is that I don't believe there's anything in the
15 intercept that would give the correspondent who's taking this at Palma an
16 idea of what the bulldozer was being -- or what the bucket loader was
17 being asked for in that respect. They just wanted to know whether it was
18 available or not.
19 Q. I move on to a different topic, which is your -- the events which
20 you review in Chapter 7 of your narrative or revised narrative, and
21 there's only a few questions I'd like to ask you here.
22 You recall that you concluded that "The 4th Battalion of the
23 Zvornik Brigade was involved in the planning, detention, execution and
24 subsequent burial at the Orahovac site"?
25 MR. McCLOSKEY: Could we have a reference to where that's -- that
1 it sounds like a quote is coming from?
2 MR. BOURGON: Again, I will be happy to please my colleague. At
3 paragraph 7.6 in your report.
4 THE WITNESS: Can I see it on the screen or --
5 MR. BOURGON: And 7.6 -- this is 6. The number of your report was
6 684, and that was in English on page, I believe it would be, 63, but
7 that's the paragraph 7 -- 7.6. I will read you your conclusion in there,
8 and it says first:
9 "This area falls within the zone of the 4th Battalion of the 1st
10 Zvornik Infantry Brigade."
11 And it goes on to say:
12 "Survivor testimony and documents from the Zvornik Brigade
13 indicate that elements of the brigade command, the Engineer Company, the
14 Military Police Company and elements of at least the 4th Infantry
15 Battalion were all involved in the planning, detention, execution and
16 subsequent burial of Muslim men at the Orahovac site."
17 My question relates specifically to the 4th Battalion. Would I be
18 correct in saying that your conclusion, in respect of the 4th Battalion,
19 rests solely on two things, which is: Survival testimony of someone
20 called Gojko Simic and also the fact that what you refer to, the 4th
21 Battalion or the Orahovac being in the zone of responsibility of the 4th
22 Battalion? I simply suggest to you that you have no other element which
23 suggests that the 4th Battalion was involved in the events in Orahovac.
24 A. I disagree, I mean, and certainly contemporary interviews with not
25 only members of the Command of the 4th Battalion as well as members of the
1 Command of the Zvornik Infantry Brigade note that soldiers from the 4th
2 Battalion were directed to go to that location in order to guard prisoners
3 there that were getting out of control.
4 Q. I will make my question more precise. I was talking about the --
5 the killings in Orahovac, and is it your conclusion that in respect of the
6 killings in Orahovac, other than for the survivor testimony of Gojko
7 Simic, that is your sole source of information to say that they were
8 involved in the killings?
9 JUDGE AGIUS: Yes --
10 MR. McCLOSKEY: You mean the killings at the meadows, not the
12 MR. BOURGON: Allegedly.
13 MR. McCLOSKEY: Allegedly, the meadows, not the schools?
14 MR. BOURGON: The killing places where people were executed.
15 MR. McCLOSKEY: Objection. There were different places. If we
16 could be specific.
17 JUDGE AGIUS: Yes, Mr. Bourgon.
18 MR. BOURGON: In Orahovac, Mr. President, and there's only one
19 killing zone with two places, and that was Lezete 1 and Lezete 2.
20 MR. McCLOSKEY: People died at the school in our case, and that's
21 a clear part of our case, so we need to be specific.
22 JUDGE AGIUS: You need to be specific, Mr. Bourgon, please.
23 MR. BOURGON: Thank you, Mr. President. I'm referring to Lezete 1
24 and Lezete 2.
25 Q. Those are terms you're familiar with?
1 A. Yes, sir, with respect that Gojko Simic was an individual who was
2 identified by a witness, and who we were able to corroborate was a member
3 of that particular unit.
4 Q. And my question is: In addition to that, you have no other source
5 of the involvement of members of the 4th Battalion in the executions in
6 Lezete 1 and Lezete 2?
7 A. I would actually like to go back to my report on that, because my
8 memory is unclear as to whether or not I identified a vehicle associated
9 with the 4th Battalion that I believed was moving people back and forth to
10 the school. I mean, it may be I'm confusing it with the 6th or 7th
11 Battalion, but I believe that there is a reference in my report. If there
12 isn't, then I am confusing it.
13 Q. Then I will look at your report and get back -- and we will come
14 back on this point a little later.
15 One of the issues that --
16 JUDGE KWON: Why don't you let him have his report in hard copy?
17 MR. BOURGON: We're trying to have the report up on the screen,
18 but I do not have a hard copy with me, other than one that is highlighted.
19 MR. McCLOSKEY: That would be an excellent idea. I mean, we can
20 try to go track one down. But given the degree of these questions, it
21 would be best if he had a hard copy, I agree.
22 MR. BOURGON: I can move on to a different issue, Mr. President.
23 Thank you.
24 Q. My next issue, Mr. Butler, deals with the decision to move the
25 prisoners in the area of the Zvornik Municipality. Would you agree that
1 whoever made that decision, on the basis of your military expertise, that
2 sending the prisoners in the same geographical area where the column was
3 heading, with a view to joining forces with the 2nd Corps of the ABiH,
4 makes very little sense from a military perspective?
5 A. The -- in the first view, working under the assumption that the
6 actual movement and execution of the prisoners in the Zvornik Brigade made
7 any sense whatsoever from a military perspective, the decisions may well
8 have been made with respect to the fact that they were still
9 underestimating the size and the threat posed by the column. So --
10 Q. Well, that was my next question.
11 A. And that may very well have been one of the thought processes
12 behind why they would be safer -- or why Zvornik would be a more suitable
13 location than keeping them in Bratunac.
14 Q. Let me begin, then, by saying: Looking at the risks associated
15 with such a decision, it would be possible -- it would not be sound, from
16 a military perspective, because prisoners might escape and attack the
17 population? Would that be a fair risk that could happen if you have the
18 two in the same area?
19 A. Obviously, in the abstract, it's a risk. However, when you look
20 at the context of what was happening in Bratunac, where the civilians were
21 jammed into structures in the heart of the town, there was certainly less
22 risk to the civilian population under that context of storing them in
23 schools away from Zvornik.
24 Q. Mr. Butler, I'm not talking about the abstract, I'm talking about
25 the concrete, I'm not -- and the situation is that --
1 JUDGE AGIUS: Don't argue with the witness. Go to your next
3 MR. BOURGON: I'm making my question more precise, not dealing
4 with an abstract situation.
5 JUDGE AGIUS: Don't argue with him, please. Go to your next
7 MR. BOURGON:
8 Q. Did your analysis of these events reveal the possibility -- not
9 the possibility, reveal that the presence of prisoners in the municipality
10 of Zvornik and other close municipalities made the soldiers very nervous
11 on the line, and some of them actually wanted to go and protect their
12 families? Are you familiar with that? You can answer by "yes" or "no."
13 A. I -- it's a broad -- it's a broad statement, and I think there --
14 I'm just trying to -- I know there was a general awareness among the
15 [indiscernible] of the soldiers that their families were in some form of
16 threat. I -- most of that threat was related to the column. I'm not aware
17 of -- I'm not aware of information going forth that in places like Pilica
18 -- I'm just not aware of it.
19 Q. Let me move on, Mr. Butler. Are there risks associated with
20 placing the column and the prisoners in the same geographical area, from a
21 military perspective? Please answer "yes" or "no." You may say "no" if
22 you want, but I want to know if it's a sound military decision? That's
23 all I'm asking for.
24 JUDGE AGIUS: Mr. McCloskey.
25 MR. McCLOSKEY: Objection. "place the column," I don't think I
1 understand. "Place the column," how do you place the column anywhere?
2 You can fight the column.
3 JUDGE AGIUS: Yes, Mr. Bourgon.
4 MR. BOURGON: I like to please my colleague, but enough is enough.
5 My question is quite clear. Mr. Butler knows exactly which column I'm
6 talking about, and the fact that they decide to bring the prisoners in the
7 Zvornik area while that column is going on, Mr. Butler knows what I'm
8 talking about, and he can answer "yes" or "no," whether this is a sound
9 military decision.
10 MR. McCLOSKEY: If that is the question, it's been asked and
12 JUDGE AGIUS: Have you understood the question, Mr. Butler?
13 THE WITNESS: Yes, sir, I think I understand.
14 JUDGE AGIUS: Okay. Then can you answer it, please.
15 THE WITNESS: Well, with respect to risk, you know, the decision
16 to move the prisoners up to the Zvornik Municipality, in the broad sense,
17 did represent an acknowledgment that there was some risk involved. They
18 had to get them out of Bratunac. They were directed to do so. They
19 assumed a risk there. They marginalised that risk. There was far less
20 risk dealing with detention centres in places like Pilica and Rocevic and
21 even the Petkovski school that were far removed by terrain and distance
22 from the fact that the column could potentially reach them and liberate
23 the prisoners.
24 As a matter of the school of Orahovac, that is probably the
25 closest place where there was an assumption of risk, because it's the
1 closest point of approach between a known holding and detention facility
2 and the column. But I think if I noted in my analysis that, you know, at
3 best there was a three-kilometre separation, so, you know, while it was an
4 acceptance of risk, in part, to make this decision, in light of the
5 alternatives that were happening in Bratunac, someone apparently made the
6 decision that the risk was acceptable.
7 MR. BOURGON:
8 Q. You can confirm, Mr. Butler, that you concluded in your report
9 that whoever decided to send the prisoners to the Zvornik area was not
10 someone from the Zvornik Brigade?
11 A. The documents and intercepts that I have don't reflect that. I
12 can't make that conclusion as a broad statement because I don't know
13 whether Colonel Pandurevic was or was not involved in that decision
15 JUDGE AGIUS: Yes, Mr. McCloskey.
16 MR. McCLOSKEY: If he has a specific reference to a conclusion,
17 he's incumbent, in asking that question, to direct Mr. Butler to it. He
18 said he concluded that in his report.
19 JUDGE AGIUS: Yes, Mr. Bourgon.
20 MR. BOURGON: I'll move on to a different topic, Mr. President. I
21 do have a reference in Chapter 9, and I will bring it to the witness when
22 I conclude my cross-examination.
23 Q. For now, you --
24 JUDGE AGIUS: Mr. McCloskey.
25 MR. McCLOSKEY: A brief objection, Your Honour, to going to one
1 area and then bouncing away and then bouncing back. This takes an
2 incredible amount of time and is inappropriate.
3 JUDGE AGIUS: I think he is Canadian, not Australian.
4 MR. BOURGON: I won't repeat what my colleague said. Depending on
5 the number of objections, I'll know when I'll complete my cross.
6 JUDGE AGIUS: It's being suggested that you abandon the kangaroo
8 MR. BOURGON:
9 Q. Mr. Butler, you said earlier on that one of the reasons they
10 decided to bring the prisoners in the area of the Zvornik Municipality
11 might have been because they had wrong information on the column; is that
13 A. No, what I -- the question was whether there was risk involved. I
14 don't know whether they had -- I mean, they knew about the column,
15 obviously. Whether -- you know, whether that was a factor, you know, I
16 don't know. But you didn't ask me whether they were -- because they had
17 wrong information and that's the reason why they did it. I don't know why
18 they did it.
19 The information that we have, with respect to the broader context,
20 is that there was a decision that they had to be taken out of the Bratunac
21 area. Was that the sole driver behind the decision? I don't know.
22 Q. Let me read your answer here, and that was on page 93. Your
23 answer was:
24 "In the first view, working under the assumption that the actual
25 movement and execution of the prisoners in the Zvornik Brigade made any
1 sense whatsoever from a military perspective, the decisions may well have
2 been made with respect to the fact that they were still underestimating
3 the size and the threat posed by the column."
4 Is that an answer that you gave me; "yes" or "no"?
5 A. Yes, sir. I don't believe that's inconsistent with what I've just
7 Q. I suggest to you that one of the reasons why the prisoners might
8 have been sent to Zvornik is because when they were sent there, there was
9 no intention to kill and it was the closest place to the exchange area.
10 Would that be, in your evaluation from a military perspective, a
12 JUDGE AGIUS: Go to your next question, Mr. Bourgon. You can't
13 expect the witness to testify on the intent.
14 MR. BOURGON:
15 Q. Are you aware, Mr. Butler, that the Zvornik Municipality was the
16 closest area where, if an exchange was to be organised, the prisoners
17 should have been -- should be placed there?
18 A. I disagree. And given the fact that the civilians were being led
19 out of the area under the control of the Vlasenica Brigade, if proximity
20 to the confrontation lines was the sole driving criteria, it would have
21 made sense to bring them there.
22 Q. We'll get somebody else to counter what you say, so I accept -- I
23 accept your answer.
24 I believe --
25 JUDGE AGIUS: Please, Mr. McCloskey, let's continue.
1 MR. BOURGON:
2 Q. I'd like to move to a different topic, which is tactical
4 Are you familiar with the fact that tactical intercepts were
5 obtained by the Office of the Prosecution? And I'm referring to the
6 intercept of VHF radio communications.
7 A. Yes, sir, I was.
8 Q. Are you aware when this material was obtained, and was it
9 considered in producing your revised narrative?
10 A. Yes, sir, I'm aware when it was generally received, which I
11 believe was roughly a year or 18 months after the multichannel intercepts.
12 I don't believe, and I have noted in my narrative, I don't believe I that
13 I had relied on them, because I don't think at the time that I was
14 convinced that they were fully -- had been fully authenticated. I mean,
15 that's how I recall, and I think I've said that in my narrative.
16 MR. BOURGON: May I go to 65 ter 2232, which is the tactical
17 intercepts, and you can find them in tab 24 of your binder. I'd like to
18 go to page 5 in English, and the top part where it says: "1800 hours."
19 And we're talking about the --
20 Q. Do you have it with you in your binder?
21 A. I have it -- oh, which page in the English or --
22 Q. Page 5 in English.
23 A. Okay, thank you. Yes, sir, I have it.
24 Q. You see where it says: "1800 hours. The road to Crni Vrh was
1 At the top part.
2 A. Yes, sir, I do.
3 Q. Just a little bit down, it says: "Omega 21 is in Pilica." So
4 you agree with me that Pilica is one of the areas where prisoners were
5 taken; is that correct?
6 A. Yes, sir.
7 Q. If Omega 21 is identified as being a member of the MUP, would that
8 be, sir, an important factor that was omitted in your narrative?
9 A. No, sir. I mean, in what context, the fact that there's MUP in
10 Pilica means, you know, they're supposed -- it's a village area. I don't
11 know why there wouldn't be -- I mean, are we talking about a MUP company
12 is deployed, or are we talking about a specific patrol car?
13 And that's why I always hate to use on the tacticals, because some
14 of these are just so abstract that it's difficult to put a meaning to.
15 Q. So you say today you're of the opinion, that as the Prosecution's
16 expert, we should not consider these tactical intercepts; is that what you
17 say, that they're not reliable?
18 A. No, sir, what I'm saying is that I have not -- because the
19 reliability hasn't been established to me because they were, I assume,
20 authenticated before, or after I arrived, or after I left, I didn't rely
21 on them. If the Court does rely on them, I presume it will do so in the
22 context of witnesses who have testified as to what they mean, and as well
23 as with the other intercepts, to testify as to the product and process
24 behind that. I'm just not aware of that, so I can take what it says at
25 face value when I can understand what it means, but these -- I don't
1 generally do that with the tactical intercepts, and particularly what
2 you've just referred to.
3 Q. I move on to a different but related topic, and that is, of
4 course, communications using VHF radio.
5 From your military experience, you would agree that it is the norm
6 for commanders, using radios on the battlefield, to be accompanied by a
8 A. Yes, sir, especially with their radios, yes, sir.
9 Q. And signalmen would be used, based on your military experience, to
10 receive messages sent to the commander or to transmit a message from the
11 commander to another station?
12 A. Yes, sir. I mean, their general -- their general function is to
13 manage and operate the radio. I mean, obviously there will be times when
14 the commander will grab the radio, microphone himself, and give direct
15 orders. But, you know, as a general rule, the general practice is that
16 the commander is going to basically tell the radio operator, you know, who
17 he wants to talk to and what message he wants to relay, if it's a short
19 Q. And taking you up on what you just answered, which is exactly my
20 point, if two commanders are speaking to one another, on the basis of your
21 experience on the handling of this type of radio, they would not go
22 through their signalman, they would speak directly to each other; do you
23 agree with that?
24 A. I mean, if they wanted to speak to each other in person about a
25 relatively complex issue, yes, it would make sense that the commanders at
1 both stations spoke personally to each other.
2 Q. Now, I'm not -- whether the issue is complex or not, my question
3 relates to the difficulty in communicating via radio, and if two
4 commanders speak to one another, based on your military experience, they
5 are not likely to go -- to do so through their signalman, but they will
6 speak directly, one on one, using the device themselves; is that your
7 military experience?
8 MR. McCLOSKEY: That's asked and answered, and it's really
9 speculative as well.
10 JUDGE AGIUS: Asked and answered, Mr. Bourgon.
11 MR. BOURGON: I'm not sure where the answer is and for sure,
12 Mr. President, it's not speculation.
13 JUDGE AGIUS: He's explained to you that under certain
14 circumstances, the two commanders would speak directly.
15 MR. BOURGON: But my question is he's supposed to be a military
16 expert, and I'd like him to say how it works in the practice, in the real
18 JUDGE AGIUS: He's told you already.
19 MR. McCLOSKEY: Your Honour, objection. You know, a soldier
20 doesn't get in the face of his commander and question his orders, nor
21 should a lawyer to the Judges. You've made your ruling. That should be
23 JUDGE AGIUS: Mr. Bourgon --
24 MR. BOURGON: Give me a break, Mr. President.
25 JUDGE AGIUS: Move --
1 MR. BOURGON: Come on, Mr. -- come on.
2 JUDGE AGIUS: Mr. Bourgon, you can have a drink together
3 afterwards, but in the meantime, let's proceed, please.
4 MR. BOURGON: Final couple of questions before we end today,
5 Mr. Butler.
6 Q. Chapter 2 of your revised narrative, you speak about members of
7 the Zvornik Brigade at paragraph 2.8. One of the individuals you refer to
8 is Captain Trbic, and that was on page 20. My sole question is: Did your
9 analysis reveal that before being appointed as assistant to the assistant
10 commander for security in March of 1994, that Trbic was the deputy
11 commander of the 2nd Battalion? Are you aware of this, on the basis of
12 your analysis of the material at your disposal?
13 A. No, sir. Again, I might have seen a vague reference to that as
14 a -- as a component of my research, but tracking back that far, no, I
15 don't recall that. It may very well be the case, but I just don't recall.
16 Q. On the basis of your military experience, would you agree with me
17 that a battalion commander and his deputy, involved especially in combat
18 activities, are likely to develop a very close relationship?
19 A. There's a lot of human-nature factors involved. I mean, from a
20 professional perspective, a commander and a deputy commander represent the
21 command team, and as a matter of professional ethics and work product and
22 everything else, I mean, they should work very much in harmony with each
24 Obviously, you know, people are people, and that may not be the
25 same some time even in war. But certainly from a professional
1 perspective, the battalion commander and a battalion deputy commander
2 ought to work in almost a seamless manner.
3 Q. On the -- in this section there is one person that was missed out,
4 a certain Major Galic, who was the assistant chief of staff for personnel.
5 Are you aware of who this individual is?
6 A. Yes, sir, I am.
7 Q. Did you -- did you consider, when assessing the material at your
8 disposal, the involvement of this individual, Major Galic, in operational
9 matters within the Zvornik Brigade?
10 A. In what context? I mean, in July 1995?
11 Q. In July of 1995, is he an individual, based on your analysis of
12 the material at your disposal, who was involved in operational matters?
13 A. He -- I can't tell you whether he was or was not. I mean, he may
14 very well have been during some period of that month, you know, as a duty
15 officer at the IKM or as a duty officer at the main headquarters, which
16 would have inserted him into some of the operational issues.
17 Q. But it's not an issue that stood out for you, in terms of his
18 involvement into operational matters?
19 A. No, sir, it's not an issue that stood out for me.
20 Q. And just again from your military experience, if his name appears
21 on the working map which was in the operations room, as the person who
22 drafted the map, would that be an indicator that this man was at least
23 knowledgeable of operational matters?
24 A. Yes, sir, it would be an indicator again, depending when the map
25 was drafted and what his state of knowledge was, yes, sir.
1 MR. BOURGON: Mr. President, that's my last question. Tomorrow, I
2 only have one area I'd like to get into, and it is based on a hypothetical
3 scenario which I would like to give to the witness so he can look at it,
4 and tomorrow we'll ask some questions based on this hypothetical scenario,
5 as an expert witness.
6 JUDGE AGIUS: Okay. Mr. McCloskey will stay awake all night
7 thinking about possible objections already, or --
8 MR. BOURGON: [Overlapping speakers] Mr. President, he can do it
9 any time.
10 JUDGE AGIUS: Yes. Let's adjourn until tomorrow morning at 9.00.
11 THE WITNESS: I'm sorry, I was confused. Is the intent to give me
12 the hypothetical now or tomorrow morning? You know, I thought you had
13 indicated you wanted me to think about it. I don't know what the answer
14 is --
15 JUDGE AGIUS: No, no, no, let's stop, let's stop now. I mean,
16 tomorrow morning we won't start at 9.00 sharp with you because we will
17 have other things to discuss which are unrelated to your testimony, and
18 after we have discussed those, then we'll call you in.
19 Thank you and have a nice evening.
20 THE WITNESS: Yes, sir.
21 --- Whereupon the hearing adjourned at 7.02 p.m.,
22 to be reconvened on Friday, the 25th day of
23 January, 2008, at 9.00 a.m.