1 Thursday, 31st January 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.07 a.m.
6 JUDGE AGIUS: We are seated.
7 Madam Registrar, could you call the case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is the case
9 number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
10 JUDGE AGIUS: Merci, madam. All the accused are here. From
11 amongst the Defence teams, I only notice the absence of Mr. Meek. For the
12 Prosecution, it's just Mr. McCloskey today.
13 Mr. Butler is present all right. We are going to proceed with the
14 cross-examination, and then we'll see where we get to.
15 WITNESS: RICHARD BUTLER [Resumed]
16 JUDGE AGIUS: Mr. Haynes.
17 MR. HAYNES: Before I ask a further question of Mr. Butler, I
18 wonder if we could just go into private session for a moment.
19 JUDGE AGIUS: Certainly, Mr. Haynes.
20 Let's go into private session, please.
21 [Private session]
23 [Open session]
24 Cross-examination by Mr. Haynes: [Continued]
25 Q. Good morning, Mr. Butler.
1 A. Sir.
2 Q. I've done my level best to reduce the amount of questions I have
3 for you to try and finish sometime today. This may involve a bit of
4 corner-cutting, so bear with me. If we have to amplify, we will, but I
5 want to turn to another topic now, which is really the creation of the
6 Army of Republika Srpska.
7 And as you have said in your reports and in your evidence, part of
8 the composition of the Army of Republika Srpska were Serbian officers of
9 the JNA who returned to Bosnia and joined VRS; is that correct?
10 A. When you mean "Serbian," I take it that we're talking Bosnian
11 Serb, ethnic officers.
12 Q. Yes.
13 A. Yes, sir.
14 Q. And as I understand your analysis, you contend that those officers
15 imported with them the rules of the JNA because they understood them and
16 they had been trained in them and because they were the only rules
17 available. Is that correct?
18 A. Yes, sir.
19 Q. And can we remind ourselves that throughout the time of the war in
20 Bosnia, all sides were effectively fully mobilised; is that right?
21 A. I would disagree with that, because I think one of the main
22 contentions the VRS had during the course of the war is that until the
23 civilian government declared an imminent threat of war in May or June of
24 1995, that the RS government wasn't in fact fully mobilising all of the
25 available manpower and resources it needed for the war.
1 Q. Well, I'll live with that, Mr. Butler.
2 A document you were shown during the course of your
3 examination-in-chief revealed that the numerical strength of the VRS was
4 approximately 220.000 men. Does that ring a bell with you?
5 A. Roughly, yes, sir. I mean, I'm familiar with that number.
6 Q. And of those, according to the document that was on the screen,
7 about 14.000 had been officers or soldiers in the former JNA; do you
8 recall that?
9 A. I think we're talking about the Utaga-92 [phoen] document.
10 Q. Yes.
11 A. Yes.
12 Q. So of the manpower of VRS, about 6 per cent were former officers
13 in the JNA; is that right?
14 A. Yes, sir.
15 Q. Now, it would be right, wouldn't it, that the JNA officers
16 returning or forming the Army of Republika Srpska tended to fulfill the
17 offices from the top downwards?
18 A. Yes, sir. That was -- that was actually by design. The VRS
19 leadership, I mean, I believe correctly, you know, rationalised that by
20 putting the experienced officers at the higher headquarters, that you
21 could get the benefit -- or the best force multiplier for the limited
22 amount of officers that you had.
23 Q. The effect of that was the Main Staff was almost entirely
24 comprised of JNA officers, the corps substantially comprised of JNA
25 officers, whilst the brigade had very few professional officers and the
1 battalions virtually none at all?
2 A. Yes, sir, that is the practical reality of the policy.
3 Q. And of course the battalions comprised the vast majority of the
4 brigades' manpower?
5 A. Correct, sir.
6 Q. Can we just briefly deal with the Zvornik Brigade, and I'm going
7 to give you some figures. I can produce documents, if you'd like. I'd
8 prefer not to because it slows things down. But we'll deal with the
9 Zvornik Brigade.
10 We've established through documents from other witnesses in this
11 case that in July 1995, the Zvornik Brigade notionally comprised about
12 5.500 men. Is that a figure that rings a bell with you?
13 A. Yes, sir, I would agree with that.
14 Q. Do you know how many of those men were former professional
15 officers in the JNA?
16 A. I would -- probably -- if the number is 40, that might be on the
17 high end. It might actually even be less. It's certainly not anywhere
18 near an appreciable number, so ...
19 Q. Well, it was 14, 1-4.
20 A. 1-4. Well, that would be a little low, but certainly under this
21 context, I would accept that, yeah.
22 Q. Within the rules of the JNA, Mr. Butler, do you know how many
23 officer positions there were in the Zvornik Brigade? I'm not going to
24 expect you to be exact, but at least 20?
25 A. Yeah, easily a hundred, I mean.
1 Q. Well, it was 388, in fact.
2 A. Yeah, I mean, platoon leaders and everything else, yes, sir,
3 that's about right.
4 Q. And do you know how many of those positions were actually filled
5 by anybody, professional or otherwise?
6 A. No, sir. Under the circumstances --
7 Q. I'll be fair.
8 A. -- none, I mean, if even that. I mean, most of the platoon
9 leaders and even company commanders were in fact individuals who had been
10 mobilised from the enlisted ranks, so, I mean, I would be surprised if you
11 had any appreciable number.
12 Q. Well, I'll answer the question for you. It was about 30 per cent
13 were actually filled at all.
14 A. I thought we were talking about within the context of JNA.
15 Okay, I --
16 Q. No, no, no, I probably phrased the question badly. I meant filled
17 at all.
18 A. Okay, vacant positions.
19 Q. Yes.
20 A. Yes, sir.
21 Q. So of the five and a half thousand soldiers, 14 were former JNA
22 officers, and only 30 per cent of the officer positions were filled by
23 anybody at all. In organisational terms, the Zvornik Brigade was a
24 million miles from the brigade as envisaged by the JNA rules, wasn't it?
25 A. Yes, sir. I mean, a fair characterization for Zvornik Brigade,
1 and I think, you know, as discussed before, Bratunac Brigade and other
2 brigades as well. It was a universal problem.
3 Q. Now, moving on, I hope I don't mis-characterize your evidence thus
4 far if I suggest to you you really offered us your opinions in two ways;
5 firstly, you considered a rule or regulation and then you offered us your
6 opinion as to its practical effect. Would that be right?
7 A. Yes, sir. It does happen in context, so, I mean, I do take into
8 account that certainly under the circumstances, that, you know, rules
9 aren't going to be rigidly applied and that units and commanders are going
10 to make allowances when necessary.
11 Q. To borrow a phrase from Mr. Josse - I may have used a different
12 one myself - your analysis of the rules and regulations of the VRS is thus
13 academic rather than practical; you would accept that, would you?
14 A. It reflects what -- or what my goal of the analysis of the rules
15 and regulations is that it reflects the framework, the common framework of
16 the military organisation. I don't think I've ever made the contention
17 that, you know, they were such -- so rigidly applied to defy reality.
18 It's just a common framework how a military organisation runs.
19 Q. Right.
20 A. So certainly I make allowances for modifications, as necessary, by
21 the battlefield.
22 Q. And just to clarify again a line that Mr. Josse took up, you've
23 never spoken to the commander of the Zvornik Brigade; is that right?
24 A. Correct, sir.
25 Q. And you've never spoken to any of the assistant commanders of the
1 Zvornik Brigade; is that right?
2 A. I believe that's correct, yes, sir.
3 Q. You've never spoken to the security officer of the Zvornik
4 Brigade, nor the assistant security officer of the Zvornik Brigade?
5 A. Correct, sir.
6 Q. And you've never spoken to a single battalion commander of the
7 Zvornik Brigade; is that right?
8 A. No, sir, I wasn't present for the battalion interviews, that's
10 Q. Now, can you assist me, because I'm really not clear as to this.
11 Is your failure to speak to those people of your choice or because of lack
12 of opportunity? And I ask you that because of two answers you've given
13 during the course of your examination in this case.
14 A. I'm sorry, I thought you were going to explain what the answers
15 were. The answer is: It's a combination of both. One, it's a practical
16 aspect that, at least as far as the Office of the Prosecutor was concerned
17 and its work in cooperation with the Republika Srpska, we did not have
18 access to interviews of VRS officers until, the earliest was December of
19 1999, and then under very structured conditions. The second one is also a
20 function of the practical ability of myself to, every time an interview
21 mission was going down, to determine whether or not I needed to be a part
22 of it at that nature.
23 Given the first few years, the focus of the analytical effort was
24 on the issues of corps command. Going out and participating in the direct
25 interviews of battalion commanders of the Zvornik Brigade didn't seem to
1 be a productive use of my time.
2 Q. Well --
3 THE INTERPRETER: Kindly make pauses between questions and
4 answers, the interpreters ask.
5 MR. HAYNES: I apologise completely to the interpreters.
6 Mr. Butler, you and I are getting involved in a conversation
7 here. We better go back to the more formal process of question and
9 Q. I'm going to read you the two answers which have perplexed me.
10 Yesterday, you said to Mr. Josse, in cross-examination, the following:
11 "I had a keen interest in talking particularly to those military
12 officials who could provide information as to whether or not I was in fact
13 pursuing a correct theory on the applicability of those issues. I mean, I
14 felt that it was vital to my analysis to be able to get that opinion from
15 these individuals."
16 Do you remember saying that?
17 A. Yes, sir.
18 Q. On the 21st of January, page 20059, in answer to a question by
19 Mr. Ostojic, you said:
20 "As a matter of practice in my reporting, as I've indicated in my
21 reports, I was not prepared to be put in a position where I would be
22 cross-examined on information that was derived from a witness who, by his
23 position, would be testifying before this Tribunal. So within that
24 broader context, my goal has always been only to use witness-based
25 information when it was absolutely necessary to set the context of a
1 particular event, so that my other analysis with respect to documents and
2 with respect to other intercepts would make sense. The omission of
3 witness statements by almost all of the parties involved was by design.
4 It was not by a lack of awareness or any other information."
5 Those two statements appear to me, Mr. Butler, forgive me, to be
6 polar opposites. Do you agree?
7 A. I understand your confusion, and I think maybe I can clarify it.
8 The issue with respect to the witnesses and the crime bases, that
9 is the issue where I did not want to talk to these individuals or include
10 their material into the report, because that's a component part of the
11 case. On the other end, I did -- with respect to the applicability of the
12 rules and regulations, did want to talk to individuals, some of whom
13 weren't necessarily even viewed as witnesses at the time for trial
14 purposes, to confirm those. So while I take your criticism about, you
15 know, what about talking about brigades and brigade commanders, I go back
16 to the fact that, you know, to answer those questions, I did participate
17 in interviews with General Andric, who was a brigade commander in the
18 Drina Corps during the war, and with Colonel Trivic, who was also a
19 brigade commander in the Drina Corps during the war and, as a course of
20 those interviews, put forth the necessary questions to determine whether
21 or not my analysis of the applicabilities of these rules were valid or
23 So, I mean, maybe that's the proper way to parse it, I mean. I
24 did make, you know, an effort to confirm with individuals who had
25 significant expertise in these topics and whom at the time we would
1 believe would have no reason to misrepresent anything to the Office of the
2 Prosecutor, as they weren't directly involved in the case. I saw them as
3 a neutral party by which I could ask these questions, and did so.
4 Q. Thank you. Well, I may return to that with specific examples
5 later, but I'm going to move on now.
6 During the course of your testimony in the Blagojevic case, and
7 for the benefit of others, it's page 4272 on Monday, the 10th of November,
8 2003, you said the following, and I quote:
9 "In essence, unity of command is the general military philosophy
10 that only one individual can be in command of one unit or of one series of
11 units. You cannot have a function where you have multiple commanders in
12 one unit. I think historically that approach has been found not to work
13 effectively on the battlefield."
14 Is that still your position?
15 A. Yes, sir. I mean, that is -- that is the principle that's
16 embodied in the RS laws and in the regulations that we've talked about.
17 Q. The unity of command means this, doesn't it: Only one person can
18 be in command of a unit at one time?
19 A. I mean, I think we can qualify even further on what the JNA rules
20 have to say about it, which is that the commander is the individual who
21 has the sole right to command.
22 Q. The exclusive right to command?
23 A. Exclusive, well, okay.
24 Q. I want to be clear about this in relation to my client's position.
25 In the period between the 4th and the 15th of July, 1995, either
1 Vinko Pandurevic or Dragan Obrenovic was in command of the Zvornik
2 Brigade; that's right, isn't it? It can't be both.
3 A. No, sir. My view is that between the 4th and 15th of July,
4 Colonel Vinko Pandurevic was in command of the Zvornik Brigade. However,
5 the question which is part of these proceedings should presumably be: How
6 much practical control did Colonel Pandurevic have to influence the
7 day-to-day or hour-to-hour operations, given his proximity from his
8 command and in light of the fact that Major Obrenovic, as his chief of
9 staff, was functioning, in essence, as the deputy commander? My position,
10 and I think it's well supported by the rules, is that Colonel Pandurevic
11 does not officially relinquish command every time he leaves his brigade
12 zone, but I certainly acknowledge that his material ability to manage to
13 the degree that he would if he were there is somewhat compromised by
14 distance and communications.
15 Q. Well, I understand your position, and again so that we're clear,
16 your position as to who was in command is a theoretical one rather than a
17 practical one; is that right?
18 A. Well, sir, again, it's not that I haven't asked, because as the
19 fact basis of this case revolves around, Colonel Andric, as the brigade
20 commander of the Sekovici Brigade, found himself in the identical
21 circumstances at the identical time of Colonel Pandurevic at Srebrenica,
22 and so did Colonel Trivic, and when the question was put to them, did they
23 consider that they were not in command of their organisations or did they
24 somehow relinquish command of their organisations, both of those people,
25 as the peers of Colonel Pandurevic, made it clear that they didn't view
1 that they were relinquishing command of their organisation to participate
2 in operations at Srebrenica.
3 So I believe that in the both theoretical sense as well as the
4 practical aspect of Mr. Pandurevic's counterparts, I'm on solid ground
6 Q. Well, that's a very interesting answer you give. Presumably,
7 therefore, if you had had the opportunity of speaking to either the
8 commander or the chief of staff of the Zvornik Brigade, and they expressed
9 their view as to who was in command during that period, you would have
10 factored that in and taken full account of it?
11 A. Correct, sir. But again, as a matter of practicality, again, I
12 have to go back to the historical fact that the individual in question in
13 this case, Colonel Pandurevic, was indicted prior to the RS government
14 allowing the OTP access to these individuals. So while in the abstract it
15 would have been a certainly wanted opportunity to interview Colonel
16 Pandurevic, it wasn't an opportunity that technically could avail itself.
17 Q. Now, you've amplified your views on this topic during the course
18 of your brigade command report, and it might be helpful now if we have a
19 look at that. It's P684. It's pages, unhelpfully, 11 and 12 in the
20 English and page 11 in the B/C/S, and we need to look at paragraphs 2.15
21 and 2.16.
22 A. I'm sorry, I'm still on page 8, sir.
23 Q. No, no, no, I was just going to check, as a matter of courtesy,
24 Mr. Butler, if it was clear and big enough for you to read. I see you've
25 got your glasses today.
1 A. Page 11 and 12, I thought that's what -- which paragraph --
2 JUDGE KWON: Page 11 in e-court.
3 THE WITNESS: I'm sorry, I apologise. What paragraph are we
4 talking about, specifically?
5 MR. HAYNES: 2.15.
6 THE WITNESS: Yes, sir.
7 MR. HAYNES: And 2.16. And 2.15 gives us:
8 "A final component in the brigade deputy command and the JNA
9 regulates the basis of responsibility and authority of the brigade deputy
10 commander. This is not a singular position (as common in many Western
11 militaries); instead, a position concurrently filled as part of the normal
12 duties of the brigade chief of staff. In this function, the chief of
13 staff has the authority, and the obligation of to exercise command over
14 subordinates in the brigade where the situation warrants. However, in
15 examining this 'command function' one must do so within the greater
16 context of the roles and responsibilities of the chief of staff. In this
17 regard, he is the principal adviser to the brigade commander and the
18 primary facilitator through which the commander's intent commands," et
19 cetera, et cetera.
20 And we see, both at footnote 29 and 30, you cited authority for
21 really the whole of that paragraph, paragraph 116 of what are the
22 brigade -- are the rules of the brigade under the JNA; is that correct?
23 A. Yes, sir.
24 MR. HAYNES: I've got to slow down, apparently.
25 Well, can we just have a look at that, that's P694 at page 64 in
1 the B/C/S and 37 in the English.
2 I'm sorry, Mr. Butler, this is where things slow down a bit. It's
3 really the second half of that article we're looking at:
4 "The chief of staff directs the work of the staff. He is also the
5 deputy commander of the brigade. The chief of staff, in accordance with
6 the commander's decisions, has the right to assign tasks to subordinates.
7 The staff consists of an operations and training organ, an intelligence
8 organ, a recruitment, personnel organ, organs for combat arms, and the
10 Well, Mr. Butler, you were telling us yesterday how careful you
11 were to accurately footnote your propositions, but whilst Article 116
12 certainly could lead you to the conclusion that the chief of staff is
13 concurrently the deputy commander, it's quite a feat of interpretation,
14 isn't it, to make the deductions you do on page 9 of your report on a mere
15 reading of Article 116?
16 A. No, sir, I disagree. I mean, you have to look at it in context
17 of, you know, the same as 115, the brigade commander, when he's exercising
18 that -- that same authority as the deputy. I mean, I don't see that this
19 is a stretch at all, sir.
20 Q. Well, that may not be the kernel of the dispute between us. Can
21 we go back, therefore, to P684 and look at paragraph 2.16. Thank you.
22 "The functional empowerment of the chief of staff to issue orders
23 as necessary should not be construed as an abdication or limitation of the
24 commander's authority or responsibility. Rather, this authority vested in
25 the chief of staff/deputy commander is designed to allow the timely and
1 efficient issuing of orders or instructions necessary to facilitate the
2 overall intent and directives of the commander or to deal with situations
3 which require action when the commander is 'absent.'"
4 Why the inverted commas around "absent," by the way?
5 A. Sir, that was a function of just the limits of times PP. I would
6 have put one single thing around it, but as you're aware, if you type in
7 times PP the one character, you get a Cyrillic character. It's not meant
8 to be a direct lift from anything.
9 Q. Right. Now, the footnote 31 refers us back to footnote 18,
10 Article 10. We're going to have to hop back three pages in the document
11 to find footnote 18, so if the court clerk could do that for us.
12 I think we're looking for page 9 in e-court, so it will be page 6
13 in the actual report itself. So we need to go forward three pages from
14 there. And I think we'll see that footnote 18 gives us the JNA Rules for
15 Land Forces Corps (Provisional) of 1990; is that right?
16 A. Yes, sir.
17 Q. So your proposition in paragraph 2.16 is derived from Article 10
18 of those rules, is it?
19 A. We're talking footnote 18; correct?
20 Q. Yes.
21 A. I think it says -- footnote 18 says "paragraph 65."
22 Q. No, no, no, no. You referenced back to footnote 18, under 2.16 --
23 A. Yes.
24 Q. -- saying it was Article 10 of those regulations. Article 10 of
25 those regulations is P412, page 7.
1 Could we have P412, page 7, in e-court, please.
2 That's apparently about operative disposition.
3 A. You really have me confused, because I'm not -- I'm not tracking
4 here with you at all. Let me ...
5 MR. HAYNES: Yes. I wonder whether he could be given a hard copy
6 of his report.
7 THE WITNESS: Tracking through here.
8 JUDGE AGIUS: Thank you, Mr. McCloskey.
9 MR. HAYNES:
10 Q. The proposition at paragraph 2.16 of your report is the functional
11 empowerment of the chief of staff to issue orders, as necessary, should
12 not be construed as an abdication or limitation of the commander's
13 authority --
14 A. I'm familiar with that. I'm just trying to track through on the
15 footnotes, sir.
16 Q. Yes. Footnote 31, supra, number 18, Article 10.
17 A. I believe we're -- we're talking about a citing error. I think
18 that's what we're wrapped around on, because this -- I mean, the footnote
19 that we're tracking back to is the corps rules, and I don't think we're
20 looking at those to -- I mean --
21 Q. A technical error, would it be?
22 A. Yeah, I think we could identify it as a tracking error on the
24 Q. So footnote 31 is in no way any sort of authority for the
25 proposition you cite?
1 A. I think what we're tracking back to is -- I think what we're
2 talking about in 18 is a JNA Land Forces Rule provisional. I don't
3 think -- so I suspect that, yeah, somewhere in the footnote
4 transliteration, this one got mixed up. I think that seems to be the
5 logical explanation.
6 Q. Well, can you help us, as you sit there now, as to what regulatory
7 authority you have for the proposition you cite in paragraph 2.16?
8 A. Well, sir, like I said, I would probably, like I said, go back to
9 what we were talking about with the JNA corps rules, and I think that's --
10 if we're talking about cite 18 correctly, I mean, it's something I could
11 check on. I don't know --
12 Q. Mr. Butler, it's a bit late to be checking on it now, isn't it?
13 A. Well, sir, I will acknowledge that if there's a citation error,
14 obviously it's my fault.
15 Q. Yes. Of course, at the time you wrote the brigades command report
16 in 2002, I take it you were aware that there were indictments relating to
17 substantially the same subject matter in existence against both the
18 commander and the deputy commander of the Zvornik Brigade. Is that right?
19 A. Certainly the commander. I'm -- I'm not sure about the deputy
20 commander at that juncture, timing-wise. It may be the case. I just -- I
21 don't recall exactly when he was indicted and how that worked out. I
22 mean, it may very well be you're correct. I just don't know.
23 Q. Well --
24 A. If you want to show me the day, I can confirm that for you or not.
25 Q. We'll come on to something in due course that will confirm to you
1 he must have been indicted by that stage, but --
2 A. Okay, that's fair. I mean, I just -- it's been a couple of years,
3 so, I mean, my memory is not exactly clear on that one.
4 Q. Just before we leave that page of your report, glancing at 2.17,
5 you cite there the interim provisions on the service in the Army of the
6 Serb Republic, published on the 18th of August, 1992. That's a valid and
7 legitimate source for looking at rules of the Army of Republika Srpska for
8 our purposes, isn't it?
9 A. Yes, sir. It's actually one of the few service rules that the
10 Army of the Republika Srpska, on its own, did publish, rather than
11 adopting the JNA ones in their largest extent.
12 Q. Yes. Well, owing to your mistake, we've had to second-guess what
13 regulation you might have been referring to, so let's see if we can find
15 And as a preliminary to that, I'd like to ask you a few questions
16 about other units in the VRS. There were regiments in the VRS, weren't
17 there, artillery regiments? We have in this case the 65th Protection
19 A. Yeah, that's the unit that I'm thinking about, the 65th Protection
20 Regiment. I think each brigade -- or certainly the Sarajevo Romanija
21 Corps had an artillery regiment. I think there was a rocket regiment
22 somewhere along the lines. So, yeah, I mean, in abstract, yeah, there
23 were regimental formations.
24 Q. Regiments were much more common in the JNA prior to 1995; you
25 agree with that?
1 A. Yes, sir. I mean, it used to be, as I recall correctly, the
2 structure was the JNA at that time had an organisation that was along the
3 lines of division, with regimental subordination, and then sometime during
4 the mid-1980s they started to switch that to a corps and a brigade
5 organisational structure.
6 Q. And brigades and regiments were units of the same size, at the
7 same sort of level, at that time?
8 A. I don't know that I've done a lot of research on infantry
9 regiments, so, I mean, I will accept your word on that. I just don't know
10 it's a fact. I just have not studied regiments.
11 Q. So what rules would have governed a regiment in the VRS?
12 A. I presume that there would have been JNA regimental rules.
13 Q. Thank you. Just to give us an example to develop the point I made
14 with you earlier, the commander of the 65th Protection Regiment was ...?
15 A. That would be Lieutenant Colonel Savcic at the time.
16 Q. Thank you. So he was a lieutenant colonel, precisely the same
17 rank as my client, who was a brigade commander?
18 A. Sure.
19 MR. HAYNES: Can we have 7D717 into e-court, please, page 6 in the
20 B/C/S and page 2 in the English.
21 And I'd like you to focus your attention on Article 17, please.
22 Q. Now, these are the regulations of the brigade command authority in
23 the regiment of the JNA, and they state:
24 "In the absence of the commander, the chief of staff or the deputy
25 commander stand in for him, with all the commander's rights and duties."
1 A. Yes, sir.
2 Q. Command is a right, isn't it?
3 A. Yes, sir.
4 Q. So the chief of staff stands in for the commander, with all the
5 rights of command; would you agree with that?
6 A. That's what that article says with respect to regiments, yes,
7 sir. I'm kind of at a disadvantage because I don't exactly know what date
8 we're talking about, so I can't particularly date this.
9 Q. I'm going to move on to what I'm going to suggest to you is your
10 mysterious Article 10.
11 P410, please, into e-court, page 8 in the English and page 10 in
12 the B/C/S, and these are the regulations on the responsibilities of the
13 Land Army Corps Command in Peacetime of 1990.
14 Is this P410? I think it might be P412 you've put up. Can we see
15 P410. And I think we may need to go back a page.
16 THE WITNESS: I think we had the particular one --
17 MR. HAYNES: I'm very sorry. You probably saw it quicker than I
18 did, Mr. Butler. Go forward again.
19 THE WITNESS: Yeah, we're on the right one, Article 10 right
20 there, yes, sir.
21 MR. HAYNES:
22 Q. "The chief of staff shall replace the commander when the latter is
23 absent and shall have all rights and duties."
24 A. Yes, sir.
25 Q. Did that apply to the brigade of the VRS?
1 A. Well, sir, I mean, as I indicated before, you know, the phrase is
2 defining "absent," you know, and as a practical matter, certainly the VRS
3 was able to define "absent" when they wanted to, because you have the
4 situation in July of 1995 where Major Obrenovic is the chief of staff,
5 signing as the deputy commander or even still as the chief of staff; yet
6 because of the extended absence of Colonel Pandurevic in August, suddenly
7 he's signing it as acting for the commander, an entirely different role
8 and function. So, I mean, maybe we're getting mixed up on the definition
9 of what the VRS qualifies as "absent" with respect to the surrendering of
10 command, temporary or otherwise.
11 Q. You've prepared reports in relation to each level of the Army of
12 the VRS, haven't you?
13 A. I've prepared brigade report, corps, and Main Staff.
14 Q. And what is it that makes the relationship between the brigade
15 commander and his chief of staff unique, or is the relationship between
16 the chief of staff and the commander the same at every level?
17 A. I believe that certainly with respect to the corps and with
18 respect to the brigade that the relationship is almost identical.
19 Q. I only ask because on the 28th of January, in answer to a question
20 from Madame Fauveau, you said the following, and it's page 20541, lines 8
21 to 15:
22 "Would you agree that General Milovanovic, as the chief of staff,
23 was the deputy commander of General Mladic because of the establishment;
24 he did not need to receive any particular order to fulfill that position?"
25 And you said:
1 "Yes, ma'am, I agree. I mean, the inherent authorities that he
2 had as the chief of staff of the Main Staff and as deputy commander meant
3 that he did not need any specific order to function in that role when
5 Do you remember saying that?
6 A. Yes, sir, but I don't -- I hope you're not suggesting that that
7 same near commonality would apply to some -- an organisation like the Main
8 Staff. I mean, the situation is a bit more complex at that level. I
9 wouldn't agree with that, that it's the same as at a brigade command
10 level. I mean, I think we're inherently clear with the fact that by
11 position, the chief of staff concurrently functions as the deputy
13 Q. Very well. Let's move on to reality and practice. And can we
14 have a look at P417, the interim provisional service regulations of August
15 1992. It's page 21 in B/C/S and page 18 in the English. And we need to
16 look at Article 60.
17 "The hand-over of duties by commanding officers of squads,
18 platoons and companies and the commanders of battalions, regiments,
19 brigades and officers of the same rank, takes place in the form of a
20 ceremony before the unit on parade."
21 Were you aware from your analysis of witness testimonies of any
22 formal ceremony and hand-over of the command of the Zvornik Brigade prior
23 to the departure of Vinko Pandurevic on the 4th of July?
24 A. I am aware that there was a customary parade that normally
25 occurred prior to -- not just that deployment, for all deployments. I
1 have never heard it characterized as a formal relinquishing of command. I
2 mean, so, I mean, I can't agree with that characterization of it.
3 Q. Did you ever consider, as part of your analysis, the interview of
4 the sadly deceased Milan Maric?
5 And perhaps to remind you, it's 7D72, page 9 in the English, lines
6 5 to 14, the same page in the B/C/S, 15 -- in B/C/S page 15 to 16.
7 A. What would help my memory is, is there a date associated with this
8 interview, sir?
9 Q. Yes. It's certainly within your terms of reference, Mr. Butler.
10 It was at the 30th of June, 2002.
11 A. Okay.
12 Q. It begins, line 5: "DM" I assume is Dean Manning, probably says so
13 at the bottom. "Now as Pandurevic is in the Srebrenica operation, who is
14 in command of the Zvornik Brigade. This was made as a public announcement
15 to all the troops in the morning session. It was said that Lieutenant
16 Colonel Obrenovic will take over from Pandurevic and will remain in
17 command until the return."
18 "When did this announcement occur and where?"
19 "This announcement was made maybe on the 7th or 8th, when the
20 troops were getting ready to leave for Srebrenica and they had their
21 pulling out in the field, and just before they left the announcement was
22 made that Obrenovic will take over the command."
23 Had you considered that in -- before you gave your answer to this
24 Court the other day?
25 A. No, sir, I wasn't aware of it. But having said that, it doesn't
1 change my opinion. I mean, I don't see this -- and I guess maybe the way
2 that I can best qualify it is that if I were to accept your theory as to
3 where you're going, it would certainly raise the question as to why Major
4 Obrenovic, who is now commander, you know, would be signing all of his
5 documents and material still as the chief of staff. It kind of raises the
6 prospect that the only person who doesn't know that he is the commander
7 during the period is the actual commander.
8 So I have difficulty, under the circumstances, accepting your
9 thesis because of that practical issue.
10 Q. You have difficulty accepting the thesis that Major Obrenovic
11 didn't know he was the commander; is that what you're saying?
12 A. Well, I mean, that's the logical extension of your argument, is
13 that Major Obrenovic somehow is unaware that he's the commander and he's
14 still peddling around as the chief of staff, and he never affords himself
15 the opportunity to say, "Hey, I'm the deputy commander," or "acting
16 commander," or no orders that note that formally. And then if you look at
17 his actions down the intervening lines, particularly when we were talking
18 about the situation in the zone of the Zvornik Brigade, I mean, he's
19 frantically looking to get in touch with a commander, his commander, which
20 he considers to be Pandurevic, not anybody else.
21 MR. HAYNES: Can we have 7D86 into e-court, please.
22 Q. This is a document dated the 20th of May, 2003, and I imagine you
23 had quite a deal of input into it. It's Dragan Obrenovic's statement of
24 facts appended to his plea agreement.
25 A. No, sir, actually you're incorrect, I had almost no input into
1 this whatsoever.
2 Q. Well, let's just read the one, two, three, four -- fifth paragraph
3 down. Were you still employed by the Office of the Prosecutor in May of
4 2003 when Dragan Obrenovic pleaded guilty?
5 A. Yes, sir.
6 Q. "I acknowledge that I was in command of the Zvornik Brigade during
7 the absence of my commander, Vinko Pandurevic, until his return at about
8 midday on the 15th July. On hearing of this plan to kill the prisoners,
9 I, as acting commander, took responsibility for the plan and supported the
10 implementation of this plan."
11 Do you still contend that Dragan Obrenovic didn't know he was in
12 command of the Zvornik Brigade?
13 A. No, sir, I believe what we're referring to in this context is
14 Dragan Obrenovic does understand that, you know, he's functioning as the
15 deputy commander, in his mind he is the authority.
16 MR. HAYNES: I think we better go into private session.
17 JUDGE AGIUS: Let's go into private session.
18 [Private session]
11 Pages 20789-20791 redacted. Private session
11 [Open session]
12 MR. HAYNES: Okay. We're moving on now.
13 THE WITNESS: Just to say no offence taken, sir. I understand
14 your --
15 MR. HAYNES: No, I understand you've been here a long time. It's
16 a very tiring experience for both of us, but more so for you, because
17 you've been sitting there for a long time.
18 Q. Now, I'm moving on now to another topic. I want to see if we can
19 agree with a few propositions about the responsibility of the commander.
20 The responsibility of the commander is for the units of the
21 brigade and possibly for any further units subordinated to it; is that
23 A. Yes, sir.
24 Q. In short, the military responsibility of a commander is for men,
25 or women, I suppose?
1 A. I'm not tracking what your -- for men or for -- I --
2 Q. Well, the responsibility of a commander is not and never can be
3 for territory, can it?
4 A. That's not necessarily true, but I certainly, within the context
5 of what we're talking about -- I believe it's fair. I mean, Colonel
6 Pandurevic's responsibility, you know, is to his soldiers, it's to his
7 mission, whatever that mission will be, and in the context of that
8 mission, whether or not he has terrain-related responsibilities or not is
9 a function of the mission.
10 Q. Thank you very much. And not just to his men, but for his men?
11 A. Yes, sir.
12 Q. Thank you. Now, each unit of an army, whether in a defence,
13 attack, or on the move, has an operational area for which it's responsible
14 or a tactical area for which it's responsible?
15 A. Yes, I mean, I understand it and, yes.
16 Q. And this includes the units of the JNA, whose rules describe
17 operational responsibilities or areas of responsibility from its smallest
18 unit up to corps level?
19 A. Correct, sir.
20 Q. Not a quiz, Mr. Butler, but could you tell me the name of the
21 smallest unit in the JNA?
22 A. I probably think we're talking about a squad level, which is
23 roughly six to ten or eleven. I mean, we may go down even lower, but I
24 think a squad is --
25 Q. No, I think we're on -- that's about as low as it goes. It's
1 called an "odeljenje," which roughly translates to "squad." And the
2 terrain for which a squad is responsible is literally marked out by the
3 soldiers' boots; would you agree with that?
4 A. Yes, sir. I mean, again, it's all mission dependent whether
5 you're attacking, whether you're defending, things of that nature, but
6 certainly at that individual level the territory that you're responsible
7 is usually marked for you by your non-commissioned officer in charge, who
8 says, "You here, you there."
9 Q. But for our purposes, let's begin with the battalion of the JNA.
10 You'd agree, would you, that the rules of the battalion described for it
11 an area of defence?
12 A. Yes, sir, correct.
13 Q. And would you agree that within the VRS, the battalions retained
14 the same terrain responsibility and area of defence?
15 A. Yes, sir. I mean, size, obviously, is going to be variable, based
16 on terrain and by the number of soldiers that are available, but I guess
17 the most important criteria is that at the battalion level, it's going to
18 be the brigade commander who will identify those particular zones for the
19 battalion. They don't pick their own real estate. The brigade commander
20 would do that for them.
21 Q. And just to quite literally put it into evidence, I wonder if we
22 could have a look at P2077, paragraph 320, at page 99 in the English and
23 page 172 -- I'm sorry, page 100 in the English -- no, 99 in the English,
24 page 172 of the B/C/S.
25 I dare say it's a little while since you've had a look at this,
1 Mr. Butler, so take your time to read it through.
2 A. Okay, sir, yes.
3 Q. And just so that we have a practical illustration of that, can we
4 have a look at page 172, the diagram of that principle. I'm warned I
5 might be one page out. It may be 173. No, it's 172, obviously, or is
6 that English? It's 100 in English, but the English is pointless. We
7 might as well just have the B/C/S, 173.
8 That shows how a battalion should organise its area of defence,
9 and how the company should be arranged, and gives the dimensions of the
10 front it should achieve, and the depth, and how it should position its
11 artillery, its command post and the like. Do you agree with that?
12 A. Yes, sir. We would call this a doctrinal template. It kind of
13 reflects what it would look like in the perfect world, without any
14 considerations of terrain or other battlefield issues. So, yes, sir,
15 that's a fair characterization.
16 Q. Now, I think we're probably coming to the moment you've been
17 waiting for, Mr. Butler.
18 A. The break?
19 Q. No. I'm with you on that one. But just prior to the break, let's
20 have a little look at the map we've got behind you.
21 The Zvornik Brigade attempted, as best it could, to arrange its
22 battalions in that sort of formation. In fact, the battalions of the
23 Zvornik Brigade were strung out along a confrontation line principally
24 with the 2nd Corps of the Bosnian Muslim Army; is that right?
25 A. Yes, sir, that's correct.
1 Q. I don't know if you've ever seen a map like that before that set
2 out the areas of defence of the battalions. Were you aware of those
3 positions in doing your analysis or carrying out your analysis?
4 A. Yes, sir. I've actually -- I have seen map graphics that have
5 what I believe is an accurate representation of those battalion positions
6 in July of 1995, yes, sir.
7 Q. Now, PW-168, who was on the ground, examined that map and eight
8 others and confirmed that they accurately depicted the defence positions
9 of each of the battalions of the Zvornik Brigade in July 1995. Do you
10 have any reason to suppose that he's not correct about that?
11 A. The only -- the only thing I would note is it's somewhere -- I
12 think it's around 18/19 July, the former 8th Battalion, which was deployed
13 down in Bratunac, comes back into the zone, so I'm not sure if that's
14 accounted for or not. I don't even know if that's relevant for what you
15 want to discuss, but I just --
16 Q. No, no, no. Thank you for that, it's very helpful.
17 Within the meaning of the brigade and battalion rules, there was a
18 difference in terms of terrain responsibility between the battalion and
19 the brigade, and we need to have a look at the brigade rules now, P694,
20 pages 19 and 20 in the B/C/S and pages 6 and 7 in the English, at points
21 12 and 13.
22 Again, Mr. Butler, you know, I'm not here to trick you or take you
23 by surprise. Take your time to refresh your memory of those provisions,
24 which you may not have seen for a little while.
25 A. Yes, sir, okay.
1 Q. Thank you. And we can see from that that under the rules of the
2 JNA, the brigade was assigned a zone of operations; is that correct?
3 A. Yes, sir.
4 Q. And the zone of operations could take, I suggest to you, really
5 three forms. It could be a zone of defence, when the brigade was in
6 defence; a zone of attack when it was in attack; and a zone of march when
7 it was on the move. Do you agree with that?
8 A. I mean, I would -- I would catagorise that as fair under the --
9 the JNA rules. I mean, you're obviously going to have static positions or
10 logger positions or things of that nature, but I think we're fair on that
12 Q. Thank you. Now, just glancing back at the map, given, as it were,
13 the position of the brigade and the combat disposition of its battalions,
14 effective command -- or the effective command post of the Zvornik Brigade,
15 in terms of its defensive operations in 1995, was the IKM at Delici rather
16 than the barracks in Zvornik; would you agree with that?
17 A. Yes, sir, I mean it is -- it is the function of the forward
18 command post to control the immediate fight, so that's -- that's a fair
20 Q. And I want again to -- it may be a cultural thing, Mr. Butler, but
21 where I come from, we invite people who are experts to review evidence
22 that we've heard and see what their opinion is on it, so I'm going to
23 invite you to review some evidence that we've had in this case that you
24 may or may not know about and see whether you agree or disagree with it.
25 The area of defence of the Zvornik Brigade would be the deployment
1 of the subordinate units in the territory on the ground where they were
2 deployed, and that was PW-168 on the 10th of October, 2007, page 1613,
3 lines 3 to 22. Do you agree with that?
4 A. I'm not sure, because I'm not sure exactly what the particular
5 witness is -- I mean, are we referring to the static battalion locations,
6 for example, on this map?
7 Q. Yes. He spent quite a lot of time looking --
8 A. Okay, so, in part that's correct. I mean, I don't believe it's
9 correct in totality. I believe in part it's correct.
10 Q. And I think you and I may come to an agreement and I may come to
11 the realisation that I've wasted man-hours over the course of the last 18
12 months, but we'll see.
13 Anything outside the combat disposition of the brigade units is
14 not within the zone of defence, Miodrag Dragutinovic [Realtime transcript
15 read in error "Martinovic"] on the 14th of June 2007, page 12654.
16 A. I would disagree with that, based on the demonstrated behaviour at
17 the time.
18 Q. "The brigade has jurisdiction only in the zone of defence and
19 within the combat disposition of its units and in buildings that were
20 requisitioned for the purpose of the Zvornik Brigade. Everything else was
21 under the authority of the local civilian authority."
22 Again, Miodrag Dragutinovic, the 14th of June, 2007 at 12658.
23 A. Partially agree, and I think that the difference is that a
24 recognition of that there is a difference between the zone of defence and
25 a recognition of a combat disposition of units, which we know in July of
1 1995 there were a lot of Zvornik Brigade units running around a lot of
2 real estate that didn't necessarily fall in those zones, so that's why as
3 long as we distinguish that, I mean, it -- he's correct. I mean, where
4 the Zvornik Brigade is actually conducting operations, it's in their zone.
5 Q. "When we are talking about the brigades, I read in the rules of
6 the corps operative and strategic components, the corps and the Main
7 Staff, there is a zone of responsibility. When we are talking about the
8 brigades, there is no zone of responsibility." PW-168, October 2007, page
10 A. Correct, sir. In the context of the JNA doctrine, that makes
11 sense. I mean, it's envisioned that within the context of a conventional
12 fight, your brigades will be doing your active combat operations, they
13 will be given a designated axis or zone to operate in, and at a point in
14 time when they need to be replenished, brigade's going to be pulled out
15 and a replacement's going to move in to its place. A corps is not
16 envisioned to be such a dynamic organization and in that context -- you
17 know, a corps is going to be expected to operate on the same real estate
18 for a longer purpose for a wider variety of reasons.
19 It also recognises that within the context of a corps, you have a
20 number of logistical or other organs that have to perform their missions
21 and are not tied to terrain, they're in fact tied to where other people
22 are on the battlefield or other functions on the battlefield.
23 So, again, we can't keep looking at this in the context of an
24 infantry battalion because it's not a fair characterization of a
25 commander's full range of responsibilities.
1 Q. Well, I don't think I've got time to conclude this particular
2 topic before the break, particularly because one of my colleagues would
3 like to raise a procedural matter before the break, so I will sit down now
4 for a little while.
5 JUDGE AGIUS: Thank you, Mr. Haynes.
6 Mr. Josse. Do we need Mr. Butler?
7 MR. JOSSE: We do, Your Honour.
8 JUDGE AGIUS: Okay.
9 MR. JOSSE: It involves the documents.
10 JUDGE AGIUS: Yes, one moment.
11 What's -- are you giving Mr. Josse orders?
12 MR. SARAPA: [Interpretation] No, no. I just wanted to direct your
13 attention at page 36, line 11, it stands -- or, rather, there is a last
14 name mentioned there which was transcribed inappropriately. It
15 is "Martinovic." At line 18 of the same page, both the first and last
16 name are wrong. Instead of "Mirodrag Dragutinovic," it says "Drago
18 Could we please have that corrected.
19 JUDGE AGIUS: Thank you, Mr. Sarapa.
20 Mr. Josse, please, we've very few minutes and I have an
21 appointment at 10.30.
22 MR. JOSSE: Your Honour, it needs to be dealt with now. It
23 involves the documents that the witness promised yesterday. I understand
24 there has been some conversation between him and the helpful court staff,
25 and I think there may be a suggestion that Mr. McCloskey and I see him at
1 the next break in the presence of someone from the VWS for these documents
2 physically to be handed over. So long as we don't engage in any
3 conversation with him, I hope the Chamber has no objection.
4 THE WITNESS: I would just -- for my part, I think I can dispose
5 of the issue rather quickly. It's just I just need to confer with counsel
6 on both sides to make sure that what I think is a naming issue which has
7 been causing confusion, to make sure we're actually talking about the
8 right name. Once I get that squared away, I think I can dispose of
9 confusion real fast on this issue.
10 JUDGE AGIUS: Yes. Thank you, Mr. Butler. Thank you, Mr. Josse.
11 Mr. McCloskey.
12 MR. McCLOSKEY: There's the other issue involving the sensitivity
13 of document issue, and I may need more communication with Mr. Butler if he
14 is to identify if anything he's referred to goes to a sensitive nature
15 portion of an exhibit, and that was part of what he was looking for. It
16 would be very brief, but I think it's important to protect the interests
17 of the --
18 JUDGE AGIUS: Yes, Mr. Josse.
19 MR. McCLOSKEY: Absolutely.
20 MR. JOSSE: If I could be present for that, then there could be no
21 possible objection.
22 JUDGE AGIUS: Do you have an objection to Mr. Josse's presence?
23 MR. McCLOSKEY: No, I would appreciate his presence.
24 JUDGE AGIUS: Thank you. I would have thought so. So that solves
25 the problem.
1 We authorise this meeting. You need to be present as well. I
2 don't need to state that.
3 [Trial Chamber confers]
4 JUDGE AGIUS: Shall we reconvene in 25 minutes' time. Thank you.
5 --- Recess taken at 10.30 a.m.
6 --- On resuming at 11.01 a.m.
7 JUDGE AGIUS: Yes, Mr. Haynes.
8 MR. HAYNES: Well, Mr. President, Mr. Butler, to start this
9 session with an announcement, I think we're making very good progress, you
10 will be pleased to know, and I'd just like to regroup on the topic that we
11 were dealing with.
12 Q. Let's be realistic, Mr. Butler. If there had been an incursion by
13 the enemy into the municipality of Zvornik, it would have been a unit of
14 the Zvornik Brigade that was tasked to deal with it, wouldn't it?
15 A. Yes, sir, in almost all probability, I mean. And even if the
16 police were involved, they would be doing it under military control.
17 Q. Yes. And the Zvornik Brigade drew its name from the town or the
18 municipality from where most of its foot soldiers were drawn, didn't it?
19 A. Yes, sir, that was the custom.
20 Q. And so over and above, as it were, the area of defence on the
21 front, the brigade had a general responsibility to defend the civilians
22 who lived within that area from enemy attack?
23 A. Yes, sir, I believe that's a fair characterization of it.
24 Q. And I probably telegraph this. There may not be too much daylight
25 between us. To that extent, the Zvornik Brigade had a responsibility for
1 that zone, to defend people within it?
2 A. Yes, sir.
3 Q. And so when we talk in terms, as you have from time to time done,
4 of the zone of responsibility, that's an incomplete phrase. What you
5 really mean is the zone of responsibility for combat operations, isn't it?
6 A. Given that the term of art doesn't exist in the JNA doctrine to
7 that -- to that extent, I do agree that it is a fair characterization of
8 what we're actually talking about and actually saw on the ground.
9 Q. Well, thank you very much indeed. Just a few other things.
10 A battalion did not have any, as it were, zone of responsibility
11 to the same extent it had an area of defence as defined by the rules,
12 didn't it?
13 A. Yes, sir. I mean, we talk about the issue of schools in the
14 battalion zones, and we say that in the context of, you know, in the
15 proximity of where those battalions are operating. There is not, to my
16 knowledge, fixed geographic points of a rear boundary that, you
17 know, "This is your specific zone." So, I mean, that's when we talk about
18 the issue of zones, what we are talking about.
19 Q. Well, that's led neatly to my next question on the topic, and that
20 is that PW-168 examined a series of similar maps to that and indicated the
21 position of each of the schools that are relevant to the Zvornik area. I
22 don't know whether you want to look at the maps, but he indicated that
23 each of the schools was outside the areas of the battalion's defence
24 areas. Would you agree with that, as described on that map?
25 A. Yes, sir. I mean, they -- I mean, again noting what we're calling
1 battalion defence area, that is correct, those schools would be behind the
2 lines, sure.
3 Q. And lastly on this topic, I'm -- this is quite a long quote, so
4 you might like to either listen to it carefully or watch it on the
5 screen. I want to see if you agree with this proposition. It was a
6 question from the President of the Court to PW-168, and it was on the 10th
7 of October, 2007, at page 16137, lines 16 to 25. And the President asked:
8 "Now, we are talking of an area of responsibility of the Zvornik
9 Brigade which, let's imagine, is within those red boundaries. ."
10 And if you glance behind you, you'll see he did join some dots on
11 the map:
12 "Not to complicate it, there is a building in there which is not
13 administered or held or controlled by the Zvornik Brigade. Crimes are
14 committed in that building by people who are not part of the Zvornik
15 Brigade. Do you attribute any kind of responsibility to the Zvornik
16 Brigade for crimes committed by people who are not members of it and
17 having committed them in a building which is not under the control of the
18 Zvornik Brigade, or would you say that the Zvornik Brigade is completely
19 alien to such activity?"
20 And he replied:
21 "Your Honours, I think that in the situation as you put it, it
22 would not be the responsibility of the commander of the Zvornik Brigade."
23 Would you agree with that?
24 A. I concur with that with respect to it would not be his
25 responsibility for actions of soldiers under his control and of certainly
1 which he would have had no knowledge, so I think that's a fair
2 characterization of that. I can't see how a commander would be held
3 accountable for that under that scenario. There are obviously other
4 things that go -- involve at what point in time does the commander find
5 out and what actions are taken, but I don't think that's part of what
6 we're looking at here, so I do agree with that. The key issue is the fact
7 that it's soldiers not under his command or control and a facility by
8 which he has, you know, absolutely no authority or control over. I mean,
9 those are the key qualifying points.
10 Q. Thank you. Well, that's really all I want to ask you about the
11 question of zone of responsibility, and you'll forgive me this comment.
12 It seems that I may have started conducting this case thinking there was
13 more distance between you and I than in fact there is.
14 But can we move on to the relationship, please, between the
15 brigade commander and his security officer. Let's look at what you know.
16 In October 1994, an instruction was written and sent to the
17 brigades; that's correct, isn't it?
18 A. Yes, sir. I mean, are we -- we're talking about the Main Staff
20 Q. Yes, I am. And it dictated the way that the security and
21 intelligence organs operated?
22 A. Yes, sir.
23 Q. Now, just as a preliminary, this -- it was a directive to the
24 security and intelligence organs, which were united as one service at the
25 Main Staff level in the VRS; that's correct, isn't it?
1 A. Correct, sir.
2 Q. And they were subordinate to General Mladic?
3 A. Through General Tolimir, yes, sir.
4 Q. Of course. I'm sorry, I didn't mean that to sound the way it
5 did. But that was not the system under the JNA, was it? In the JNA,
6 there were two separate services, a security service responsible to the
7 Ministry of Defence, which was a civil organ, and an intelligence service
8 responsible to the General Staff, which is a military organ, and that's
9 the system common throughout the rest of the world, isn't it?
10 A. I certainly can't comment on the rest of the world, but certainly
11 I think with respect to what we're talking about, within the SFRY Armed
12 Forces there were parallel organisations, one dealing -- you know, one
13 serving the civilian branch of the armed forces, I think it's working with
14 the SSNO, and one that was involved with dealing with the issues of the
16 Q. So in looking at the security and intelligence service or organ of
17 the VRS, through the regulations of the JNA, we have to bear in mind it's
18 a fundamentally different organisation, isn't it?
19 A. Yes, sir, certainly within the context of where the Yugoslav
20 National Army had a well-developed civilian infrastructure that operated
21 under the Ministry of Defence, which dealt with many of those issues and
22 was in fact -- the Ministry of Defence was an active decision-making
23 authority for that. You do have to contrast that with the VRS, where, you
24 know, in 1992, you know, the Ministry of Defence existed perhaps in name
25 only and was in no way able to assume any of those other functions. So, I
1 mean, the VRS had to do double duty in many respects, not only within the
2 military context, but also deal with the issues that would normally be
3 under the military/civilian apparatus of a government.
4 Q. And I don't know the extent to which you're qualified to deal with
5 this, but there are very good reasons, aren't there, for keeping your
6 security and your intelligence services separate, because to combine them
7 in one body really creates an extremely powerful body?
8 A. Certainly within the context of the former JNA, where, you know,
9 you did have to deal with the socialist apparatus and the inherent
10 political structure, there -- there was never going to be, at the
11 political level, you know, the desire to want to create a body that's so
12 strong that one day it wakes up and decides it should be in control. So
13 it is a function, in large respect, to those types of communist or
14 socialist governments and, to a lesser extent, Western governments.
15 Q. You took the words right out of my mouth, Mr. Butler. Thank you.
16 A. Although, arguably, in my country, some days that's a disputable
18 Q. So when we look at the document, which I'm going to have in
19 e-court in a minute, P2741 - can we put it up now - we do have to bear in
20 mind, don't we, that things have changed radically since the JNA rules
21 were written, in terms of the organisation it's directed to?
22 A. Well, yes, sir. I mean, when we look at these rules -- and again
23 I qualify them always as foundational, you know, we have to keep in mind
24 that these types of rules, these types of issues, were designed to be
25 implemented by an army operating under a coherent manner, in a way that it
1 was planned and structured. No military plans for the day that their
2 country disintegrates into civil war and everyone says, "Oh, here's the
3 backup plan in case we all fracture," you know, "What do we do next?" So
4 it is to a large extent taking what you know and trying to apply it to a
5 particular situation.
6 Q. Thank you. Now, if you'd mind just considering with me again
7 instruction number 2, and in particular the second paragraph of that
9 A. Yes, sir.
10 Q. Can you help us as to what the second paragraph of that
11 instruction signifies to you?
12 A. With respect to State Security Department?
13 Q. Well --
14 A. I mean, are we talking about --
15 Q. Well, perhaps it's easier if I put the question. This instruction
16 grants powers to the security and intelligence organ of the VRS, analogous
17 to the State Security Department; that's right, isn't it?
18 A. Yes. They're authorised to act and work on a task in their field
19 analogous to the authority of the members of the RS State Security, yes,
21 Q. And correct me if I'm wrong, but that was a novel power, wasn't
22 it; it was not something they'd ever had before?
23 A. With respect to the JNA or VRS, I mean, I think what -- we're
24 reading this along the lines is the idea that while the -- with the RS MUP
25 being empowered to conduct its own investigations and limited powers of
1 arrest for these types of things of that nature, that you wanted to see a
2 parallel ability to conduct those same types of investigations as the RS
3 MUP. I would disagree that they didn't have that the same power before,
4 because I would think that certainly those security members, operating at
5 the highest levels of the JNA or at the SSNO, would have had those same
6 types of investigative powers and ability to implement decisions on
7 arrest. So, I mean, I don't think that these are unique powers that we're
8 talking about.
9 Q. Well, I'm not suggesting they're unique. I'm suggesting they're
10 new and additional. Would you agree with that? I mean, perhaps the
11 foundational question is whether you are familiar with the authority of
12 the state security system to act.
13 A. In general terms, I am; certainly not specific, but I don't read
14 it as that. I read it along the lines of that it's a reminder that these
15 individuals are entitled to act up to that level. I don't -- I don't
16 believe that at this point where an instruction -- in the instruction this
17 is a new power being granted.
18 Now, having said that, I mean, if there's -- I mean, that's my
19 opinion. If there's evidence that suggests otherwise, I will certainly
20 entertain it, but I don't -- my understanding is that wasn't the case.
21 Q. Well, let's put it this way: In practical terms, in relation to
22 the Zvornik Brigade, which is the only brigade we're concerned with in
23 this trial, you have no information that would lead you to believe that
24 this instruction was not acted upon in a way that led to additional or
25 extended powers, do you?
1 A. No, sir. I mean, I think the practical aspect of this
2 application, when it hit the ground, at least as far as the security
3 branch people were concerned, it was a reminder of the fact that, you
4 know, they needed to get out of their office and they needed to stop
5 playing with the MPs, and they needed to start engaging in this type of
6 work to this type of level.
7 Q. Thanks. Now let's move on.
8 You've been shown a number of sets of regulations both by
9 Mr. McCloskey and Mr. Bourgon which related to the security and
10 intelligence organ or organs. Some of them were available to you when you
11 prepared your analysis and some were not; is that correct?
12 A. Yes, sir. I believe that Mr. Bourgon did show me one document
13 which was not available to me at the time.
14 Q. In relation --
15 A. A JNA manual, yes, sir.
16 Q. Yes, of course. Can you tell us how many of those sets of
17 regulations were available to brigade security officers in 1995?
18 A. I have no way of knowing that, I mean.
19 Q. So --
20 A. I mean, I know that when we got there in 1997, they had a -- a
21 fairly complete set, and I know that a number of those were taken from
22 other locations associated with Zvornik as well, but, I mean, I can't
23 speak for what their state of library was in 1995. I just don't know.
24 Q. So, I mean, it comes to this, perhaps a point I've already made:
25 You've got no idea to what extent, in practice, those regulations that you
1 were referred to impacted upon their work?
2 A. The idea that I have, in practice, is the reflection of those
3 activities that we see in the broader body of documents. So, I mean,
4 that's where I base my, you know, opinion on that.
5 Q. And how many documents have you reviewed from the security organ
6 of the Zvornik Brigade?
7 A. It's been a long time. I wouldn't be able to hazard a number at
8 this juncture. I mean, I -- I mean, I can give you anecdotal documents
9 that I remember that came out of those types of places, and I think some
10 of these have even come before the Court, but I just couldn't hazard a
11 guess on that one.
12 Q. Well, just to put a point -- use an inoffensive example: Do you
13 have any information to say that Milorad Trbic ever read the rules of the
14 security organ or the instructions or methods to be employed by security
15 officers, or any other JNA booklet concerning the security organ?
16 A. I don't know if that question was ever raised to him or not, so I
17 don't know the answer to that.
18 Q. Do you have any knowledge of the security training of the security
19 officers in the Zvornik Brigade?
20 A. Yes, sir, actually, because one of the documents that is out there
21 is -- and if I'm getting the date right, it's a late 1993 document which
22 does in fact list out the issues of security and how they were to be
23 applied to the battalion officers. So, I mean, I have seen that.
24 Q. Now, therefore, based on your interpretation of the rules, as
25 opposed to any direct evidence you have from those who operated them, I
1 wonder if you could deal with a few questions.
2 In the terms of paragraph 1 of these instructions, who was it that
3 determined that a security officer's work was to be classified as
4 counter-intelligence rather than anything else?
5 A. Well, again, the instruction originates from the Main Staff, so, I
6 mean, they were making that determination as to what they viewed the tasks
8 Q. No, I mean on a day-to-day basis, in practical terms.
9 A. Oh, in practical terms, yeah, the person who would be making those
10 day-to-day decisions would be the security officer, Drago Nikolic.
11 Q. Within the terms of that instruction, hypothetical, I know, but if
12 a security officer committed a crime whilst engaged on what he determined
13 to be counter-intelligence work, would the security officer be under any
14 duty to tell his brigade commander about it?
15 A. I guess that entirely depends on the context of the crime. If he
16 committed a crime, you know, let's say in be abstract, if he committed a
17 crime that involved the unlawful wiretapping of an individual that he
18 thought was a suspect, I don't think that that would be something along
19 the gravity that he would report to his brigade commander. That would --
20 if he were being a conscientious officer, would go up through the security
22 Conversely, if he were effecting an arrest or something like that
23 and it involved the physical beating of a suspect or something of that
24 nature, you know, I think that's an issue that his brigade commander is
25 going to want to know about, and it would be expected he would report to
1 that. So, I mean, that's an entirely situational-dependent issue.
2 Q. I have to ask you this: On what basis do you come to that
3 opinion, if your theory is based entirely on a reading of the rules?
4 A. Well, sir, I always try and default back to the idea that these
5 are professional military officers and as a part of their obligations,
6 that they're going to try and carry out their duties and their roles and
7 responsibilities within the light of how they're there. I don't take the
8 default value that as professionally-trained officers, these people are
9 going to operate in a way that I would give credit to somebody like Milan
10 Lukic, or Arkan, or somebody of that nature. I mean, I give them the
11 benefit of the doubt based on their professional expertise and
12 experience. So that's why when I say -- you know, that's my basis for
13 making that. I mean, I make the expectation, perhaps wrongfully, and I
14 certainly will be corrected on that where I have to, that by and large,
15 these individuals are doing their best to do the duty as they understand
17 Q. Thank you. Well, at least we know the basis upon which you opine
18 in that way.
19 If a security officer or his deputy, for that matter, needed
20 assistance, in terms of manpower, in carrying out counter-intelligence
21 work, where would he get it from?
22 A. If it were an immediate need of manpower that didn't require, you
23 know, specialised purpose, I mean, presumably his first port of call would
24 be the military police company commander. I assume that, you know, we're
25 not talking about he needs individuals who can do detailed surveillance
1 work or things of that nature, so, I mean, it might very well be from his
2 superior, Popovic. It depends on the situation.
3 Q. It would follow, wouldn't it, that if he wanted to use military
4 policemen for counter-intelligence work, he would be obliged not to tell
5 the commander?
6 A. Not entirely. If he were going to use military intelligence
7 police for counter-intelligence work, for a task that's going to take them
8 away from an already pre -- another order or another issue, I agree he
9 wouldn't tell the commander he has to take him away for
10 counter-intelligence work, but he's going to have to tell the commander
11 that, you know, "I need to use these military policemen for a function,
12 for a certain amount of time, that's related to my competence." You just
13 don't wander over and pick the guys up. So, I mean, there is a practical
14 aspect to this.
15 Q. I follow that, but once he'd been allowed to pick the guys up,
16 their purpose would have been his business and his business exclusively,
17 wouldn't it?
18 A. Yes, sir, within the field of counter-intelligence, absolutely.
19 Q. Thank you. Which he, himself, determined?
20 A. Yes, sir.
21 Q. Now, just to revisit briefly a couple of questions you were asked
22 the other day, I just want to go back, and forgive me if it is a question
23 that you feel you've been asked before.
24 But how is it that you interpret the words in this document that
25 forbid the commander from determining the legality of the work of the
1 security officer?
2 A. I'm sorry, which -- are we with the same document that's still up
3 on the ELMO? I mean --
4 Q. Yes.
5 A. Okay. Where -- where I interpret that is the phrase that's in
6 paragraph 2, you know, with regard to the professional activities, you
7 know, they are centrally controlled by the security and intelligence
8 organs of the superior command. I mean, I think that's -- and you take
9 the next sentence there, their full independence with the implementation
10 of intelligence, counter-intelligence and operative tasks, so, I mean, I
11 think that's where I derive that.
12 Q. I think perhaps we need to look at another paragraph of the
13 instruction. I think it's paragraph 7. So we need to go over two pages.
14 Yes, it is paragraph 7.
15 A. Yes, sir. I mean, that's -- that's fairly clear right there.
16 Q. Well, help me. What does it mean? What does it mean, that --
17 A. I'm not sure how to amplify. It means what it says. I mean, you
18 know, monitoring the professionalism, legality and correctness of work in
19 the organs is exclusively -- is carried out by the first superior, except
20 for the part of their engagement relating to command and staff affairs. I
21 mean, I think we've beat that one to death, haven't we?
22 Q. Maybe. Mr. Bourgon asked you the other day a question, and I'll
23 give the reference, January the 24th, page 20348, he asked you this
25 "But let's get away from that scenario. I'm not talking about
1 that scenario at all. I'm talking about any other scenario, other than
2 this one. Can the commander still take disciplinary action after
3 consulting the superior technical officer?"
4 And your answer was:
5 "Yes, if the superior technical officer concurs with the
6 commander's assessment of the situation and the discipline that he wants
7 to invoke, assuming the technical officer agrees, the commander can take
8 those actions, yes, sir."
9 You were describing a system where if the brigade commander became
10 aware of illegal behaviour by his security officer or, I suppose, his
11 deputy security officer, would have to go through the security officer
12 higher up in the professional chain; is that right?
13 A. Yes, sir.
14 Q. Well, just suppose this: Suppose a brigade commander was informed
15 by his chief of staff and deputy commander that in his absence, crimes had
16 been committed by his security officer and his professional superior, what
17 realistically could the brigade commander do in those circumstances?
18 A. I think his most realistic course of action is going to be he's
19 going to be sitting in his -- his corps commander's office, explaining
20 that situation. I mean, the fact that -- the fact that he is limited with
21 respect to raising legal charges, I mean, and let's put words to the -- to
22 the hypothetical here. Colonel Pandurevic encounters that situation and
23 he wants to, you know, raise charges against Drago Nikolic, he's going to
24 obviously have to go to Colonel Popovic first. If Colonel Popovic either
25 non-concurs or Colonel Popovic himself is involved in this, Colonel
1 Pandurevic's actions doesn't stop. His next port of call is his corps
2 commander, and we go up that same issue. You involve your next superior
3 operational commander, and your next superior operational commander starts
4 to get involved in why his security officer may have been involved in
5 this. And if we don't -- you know, and we go to the next operational
6 commander, Mladic.
7 Q. Right.
8 A. I mean, that's how it would work.
9 Q. So his course of action would be to report the matter to his corps
11 A. Yes, sir.
12 MR. HAYNES: I wonder if we could have P334 in e-court, please.
13 English, page 2; B/C/S, page 5.
14 Q. This is an interim combat report of the 18th of July, sent by
15 Commander Pandurevic to his corps command or his corps commander.
16 "It is inconceivable to me that someone who's brought in 3.000
17 Turks of military age and placed them in schools in the municipality, in
18 addition to the 7.000 or so who've fled into the forests ..."
19 Isn't that Colonel Pandurevic doing precisely what you describe?
20 A. Well, sir, I mean, that's one interpretation, and I would have to
21 tell you it's certainly not an interpretation that his corps commander at
22 the time would acknowledge that it is. Whether -- I mean, there's an open
23 interpretation, obviously, as to whether or not at this point he is
24 basically trying to euphemistically say, "And, yes, somebody killed them,"
25 that he didn't know about the plan, or that he was aware of the plan and
1 that his -- you know, he's just upset about the way it was implemented,
2 not the fact that it was implemented.
3 Q. I think I'll settle for, "Yes, that is one interpretation."
4 A. Yes, sir. Again, I mean, unfortunately, it's not an
5 interpretation that his corps commander shares.
6 Q. Well, and I know it's not one you share, either.
7 A. No, sir, but my opinion doesn't matter on that.
8 Q. Well, that's why you're here. Just while we're on that particular
9 topic, can we go back to a document we discussed yesterday, which is P329,
10 and could we have that just briefly into e-court?
11 I imagine you dream about this document, Mr. Butler.
12 A. More so than you probably even realise, sir.
13 Q. It's an experience we share.
14 A. No, I've got a -- I've got a long-head start on you on this
15 document, sir, I can assure you of that.
16 Q. It's just a simple couple of questions on this.
17 It's your evidence, I believe, that in communications, VRS
18 officers and soldiers used certain euphemisms to refer to prisoners of war
19 in and around this time?
20 A. Certainly on the unsecured telephone network, yes, sir.
21 Q. And I believe it is your further evidence that they did this
22 pursuant to instructions from somebody.
23 A. I'm sorry, say --
24 Q. Yes. I mean, they were told not to --
25 A. Oh, not to discuss -- not to discuss sensitive --
1 Q. Yes.
2 A. Yes, sir, okay.
3 Q. In your analysis of the documents, have you found any other
4 written report which refers so explicitly to the identity of the people
5 detained as these two examples of Vinko Pandurevic's writings?
6 A. Not until the -- setting aside hospital documents and things like
7 that, in a command document it would not be until the 23rd of July, where
8 the Zvornik Brigade starts asking the question, "What do we do with the
9 prisoners that we've been capturing?" So, I mean, these are -- I agree,
10 they're extremely explicit documents in what they describe with respect to
11 the prisoners.
12 Q. Yes. Now, a document analyser could draw certain inferences from
13 that, couldn't they, Mr. Butler? And I'll put them to you for your
14 comments. They could draw the inference that Vinko Pandurevic may never
15 have heard that he was not supposed to talk about prisoners, let alone
16 write about them?
17 A. That's a -- that's certainly an open option, yeah.
18 Q. And they may also draw the inference that Vinko Pandurevic didn't
19 know that someone was putting prisoners in the municipality of Zvornik?
20 JUDGE AGIUS: Yes, Mr. McCloskey.
21 MR. McCLOSKEY: This is completely speculative. There's a --
22 there's a hundred ways different people might talk about anything. We
23 don't need the Court -- the Court, I don't think, is assisted by this.
24 MR. HAYNES: I'm very sorry. There's going to be an application
25 to put this man's report into evidence in which he purports to interpret
1 what was in my client's mind when he wrote these documents, and I think
2 it's right that he should be cross-examined on that.
3 MR. McCLOSKEY: I have no objection to that, but the particular
4 question, as it's asked, "Could somebody possibly say this or that," you
5 know, anything is possible, I'll agree with that, but that doesn't move
6 the ball forward.
7 JUDGE AGIUS: Well, there's a simple solution to this. The
8 question -- let me block it here first. The question was whether they may
9 also draw the inference that Vinko Pandurevic didn't know that someone was
10 putting prisoners in the municipality of Zvornik.
11 THE WITNESS: Yes, sir, and I think I can clear that up.
12 JUDGE AGIUS: And I think you can answer that, because what you're
13 being asked is not to speculate, but to confirm or deny whether such an
14 inference could be drawn, and I think you are in a position to answer
16 THE WITNESS: Yes, sir, and in fact it was by me at one time, it
17 was openly held open by me and my analyst that that was a possibility that
18 what we were looking at, with respect to this 15 July 1995 order, was the
19 first mark in the sand that Vinko Pandurevic gains an awareness of these
20 prisoners in his area. I -- we -- I certainly, and my analyst, we
21 certainly never -- you know, given the fact that Vinko Pandurevic was not
22 present in the zone, we don't give him historical basis of knowledge on
23 this issue. The 15 July 1995 combat report in large part reflects what he
24 learned almost immediately upon returning to his zone. So we held that
25 possibility open and then we -- you know, as part of the investigative
1 process and as part of looking for material, we started looking for
2 information that might confirm that as a working hypothesis.
3 The problem that we had on that, from an analytical level, is --
4 and again it kind of leads back to the issue of does "asanacija" mean what
5 we interpret "asanacija" to mean; is it possible that Vinko Pandurevic can
6 be aware of the prisoners in his zone but can be unaware of the fact that
7 they're being killed, given the fact that the same officers who would be
8 telling them -- him that they're in his zone, you know, would those same
9 officers be instructed not to tell their brigade commander about the fact
10 that they're being killed? And you start to go along the lines where the
11 plausibility of those theories starts to fall off to the side.
12 I mean, I take it as an article of, you know, my respect for
13 Colonel Pandurevic that, you know, he's recognised within the Drina Corps,
14 and I'd argue the army, as one of the most competent brigade commanders of
15 the war. This is a man, when you draft this report, you know, obviously
16 understands the security implications of these prisoners and is rightfully
17 wanting to know: Where are they? Are they under control? Do I have to
18 worry about escape? He's taking these measures as a prudent commander.
19 He may even be taking measures as a prudent humanitarian and taking the
20 next step and saying, "Are these people being fed? Are their medical care
21 being done?" Not because he either likes them or dislikes them, but on a
22 practical sense. He's got to feed 3.000 more people. His brigade can't
23 do that. Where is he going to get the food? Somebody in the staff has to
24 deal with that.
25 And so when we start putting all of these things together and look
1 for evidence, that's where we start running into the problem. We're not
2 seeing evidence of those types of inquiries. And that's why -- you know,
3 it sounds great in the abstract and certainly is part of my own feeling of
4 what Rule 68 meant, you know, we looked down these issues.
5 And I guess in fairness to Mr. Haynes, I mean, not having to live
6 through that process, it might seem somewhat invisible to him, but we
7 spent months, if not years, going through these worm holes to determine
8 whether or not these alternative readings of the document held any
9 weight. And I hope -- it's a little long and I apologise, but I hope I
10 was clear about where we went with -- on that.
11 Q. No, thank you very much. I want to move away from that, please,
12 and just move to an entirely different area about which you were
13 cross-examined earlier in the week.
14 In terms of your analysis of this case, and to borrow your word,
15 what was the visibility of Petar Salapura is relation to the detention,
16 interrogation and execution of prisoners?
17 A. He was the invisible man, so to speak. There is, I believe, one
18 intercept that talks about him. Nobody else really talks about him in the
19 context of individuals who've talked to him. And as I understand that as
20 we've investigated, the information that we have come up with, at least in
21 the early stages, is the fact that with the exception of one or two days,
22 he wasn't even around there. So, I mean, he is the invisible man in that
24 Q. And to just remind ourselves, he was the Main Staff chief of
1 A. Yes, sir.
2 Q. Svetozar Kosoric, what was his visibility in terms of the
4 A. Svetozar Kosoric is Krstic's chief of intelligence. I mean, our
5 ability to track that reflects that almost exclusively Kosoric was in the
6 company of General Krstic.
7 Q. And Dusko Vukotic, the Zvornik Brigade assistant chief of staff of
9 A. I think that's more of a questionable issue. Dusko Vukotic puts
10 himself on a hill in Divic and spends days out there. Other people kind
11 of put him closer to Standard at various points in time. I mean --
12 JUDGE AGIUS: Mr. McCloskey.
13 MR. McCLOSKEY: An extremely broad question about visibility.
14 That opens the door to the entire investigation, including statements of
15 people who I've pretty much stayed away from, like Milorad Trbic. So I'm
16 not sure these kind of broad, open-ended questions are, unless you want to
17 go into all that, something that is -- is something the Defence wants to
18 do, because it's opening the door to the other critical information that,
19 for obvious reasons, I have stayed away from.
20 JUDGE AGIUS: Do you wish to comment on that, Mr. Haynes?
21 MR. HAYNES: It wasn't Mr. McCloskey who ventured into this area
22 that I want to deal with, it was somebody else, and I'll put the question.
23 Q. Whatever the rules may say, did you conclude that the intelligence
24 service had little or nothing to do with the arrest, detention -- arrest
25 and detention of prisoners of war in the area of Zvornik?
1 A. With the exception of the one intelligence report reflecting the
2 capture of a radioman from the 28th Infantry Division, there is very
3 little information that I'm aware of that the intelligence organs of the
4 brigade had any dealings with these prisoners of war in that area. So, I
5 mean, I do agree with your -- with your statement.
6 Q. Thank you. That was really all I wanted to get from you.
7 Now, moving on to an entirely different topic, in your evidence in
8 the Blagojevic case, at page 4281 on the 11th of November, 2003, lines 13
9 to the end of the page, I'm going to summarise this and others can look at
10 it, you told the Court that a brigade commander would be bound to follow a
11 direct order from General Mladic, effectively skipping the corps level.
12 Do you still stand by that?
13 A. Yes, sir, and I think we've seen practical applications of that.
14 They're not -- you're not going to be in a situation where your brigade
15 commander is going to turn around and say, "You can't give me that order,
16 it only has to come from General Krstic," so that's fair.
17 Q. And in fairness to you, you went on to say that there would be a
18 responsibility on the inferior officer, as it were, the brigade commander,
19 to let his corps commander what he had been tasked to do when it was
20 practicable to do so; is that right?
21 A. Yes, sir, I mean -- yeah.
22 Q. At a lower level, PW-168 told us that officers from the Main Staff
23 could come to the brigades and give commands to brigade units without
24 seeking permission from anybody. Would you agree with that?
25 A. No, sir. I mean, I think that's, you know, a complete distortion
1 of the concept of effective and professional command.
2 Q. Have you anything -- any material that would cause you to be able
3 to say that, in practice, that did not happen from time to time?
4 A. Sir, I think as a matter of practical aspect, it probably would
5 have happened from time to time. I mean, I can easily foresee a
6 circumstance where, you know, a colonel is going to come to a lieutenant
7 and say, "I need this accomplished," and this lieutenant is going to view
8 this as, you know, an officer who's entitled to give the orders that he's
9 giving. He's going to follow it. And, you know, if it comes to a point
10 where it's impacting his previous mission that was done by his other
11 commander, he's going to tell his commander about it, let him know
12 that, "I've received these instructions to do this. Is this okay with
13 you, sir? You know, you're my boss."
14 Q. And I suppose the sort of time when that might have occurred is
15 when the commander was absent on another operation and the deputy
16 commander was fighting ambushes 10 or 20 kilometres up the road and was
17 not in radio contact.
18 A. That's one circumstance where it could occur.
19 Q. I'm going to suggest to you that there are actually provisions in
20 the regulations of the Army of Republika Srpska that provide for this.
21 And could we please have P417 placed into e-court, please. It's
22 page 10 in both the English and the B/C/S. I apologise. I'm interested
23 in, as it were, reading this backwards. There seems to be an illogicality
24 in the order these rules as set out. But can we start with Article 17,
25 which reads:
1 "Members of the army shall carry out the orders of their superiors
2 without demure, in full, accurately and punctually. If by any chance the
3 order was not given in good time, the person is required to take measures
4 and act in accordance with the specific situation. Members of the army
5 shall carry out the orders of the most senior officer present when the
6 superior officer is absent."
7 Now, before we move on to the questions: These rules are rules of
8 the -- the Rules of Service of the Army of Republika Srpska?
9 A. Yes, sir.
10 Q. And if the average battalion soldier was aware of anything, these
11 are the rules he's likely to be aware of, aren't they?
12 A. Yes, sir.
13 Q. And just to complete the picture, these rules were in force in
14 1995 and carried on being in force until they were revoked in 1997. Did
15 you know that?
16 A. I wasn't aware when they were revoked, but I certainly knew they
17 were in force during the period that we're talking about.
4 MR. HAYNES: Can you stop, Mr. Butler? I don't think we're not
5 getting transcript at the moment.
6 THE WITNESS: My apologies.
7 JUDGE AGIUS: Let's --
8 MR. HAYNES: It stops at the word "hypothetical."
9 JUDGE AGIUS: Yes, you are a hundred percent right --
10 THE WITNESS: Mine's still running for some reason.
11 JUDGE AGIUS: Yes, but it's running on the main monitor, it's not
12 running on LiveNote, so we have that problem.
13 Yes, yes, it's okay now. It has come on.
19 JUDGE AGIUS: Mr. Haynes, his answer, his reply --
20 MR. HAYNES: Can we go into private session just a second?
21 JUDGE AGIUS: Yes, let's go into private session.
22 [Private session]
3 [Open session]
4 MR. HAYNES: I wonder if you could -- I can't actually remember
5 what the question was now.
6 THE WITNESS: I think I can go back to what you were saying.
7 MR. HAYNES: Yes.
8 THE WITNESS: Certainly, I agree with the application of this, so
9 I think, you know, you have a situation where you see it on 14 July where,
10 because of the inability of Major Obrenovic to get in touch with his
11 brigade commander or even his corps commander, you know, he does get in
12 touch with General Zivanovic, who has no command authority at the time,
13 but recognising the situation on the ground, you know, tells
14 Obrenovic, "Take this as an order, here's what you've got to do." I mean
15 superior officers, you know, are expected to do that.
16 Now, taking it back to the issue that you raised directly, I mean,
17 I'm not going to deny that I can't foresee a circumstance where an
18 individual like Colonel Popovic or Colonel Beara is going to walk over to
19 a group of soldiers and say, "Here's what I need you to do." I mean,
20 they're going to -- they're going to say, "Yes, sir" and move out, draw
21 fire. Where you start to stretch the boundaries of that is as you start
22 working your way up the chain of command to officers who have the
23 knowledge of both the powers and limitations of these individuals as well
24 as the knowledge of what their orders are supposed to be, because these
25 are the types of people who are going to start recognising the inherent
1 conflicts here and are going to be the ones that have to deal with these
3 So, like I said, I certainly hold open that issue, but it is a
4 sliding scale.
5 MR. HAYNES:
6 Q. Of course. But as I began today, apart from 14 men, the Zvornik
7 Brigade was comprised of five and a half thousand unprofessional soldiers,
8 wasn't it?
9 A. Yes, sir, but many of those individuals are part of the 14 men.
10 People who acknowledge awareness of what's going on, to degrees, are the
11 professional soldiers. I mean, understanding that he hasn't testified,
12 you know, an individual of the calibre of Major Jokic, you know, isn't
13 going to be ambiguous about what this all means. Even an individual like
14 perhaps, you know, Captain Sreten Milosevic, Captain Milorad Jasikovac.
15 You know, these are not the type of people who are going to be ambiguous.
16 And certainly, you know, while your battalion commanders may be of lower
17 level, they're certainly not uneducated men, and at a point in time when
18 they start realising that the orders that are being given them, you know,
19 are resulting in the machine-gunning and murder of individuals or
20 detention in facilities that's plain wrong, you know, these people are not
21 going to just blindly follow, in theory. They're going to, as responsible
22 junior commanders -- you know, their first port of call ought to be their
23 superior officer, either Major Obrenovic or Colonel Pandurevic at the
24 time, wanting to know if this is what's really -- "what we're really
25 supposed to be doing."
1 Q. And --
2 A. So that's why I say, it's a sliding scale.
3 Q. Is that a military expertise you're using in giving that answer?
4 A. Again, it's a military expertise based on, you know, my knowledge
5 of the way that things were working in the Zvornik Brigade and the
6 professionalism of the individuals in question. I am not, to be fair,
7 trying to impart my potential military values on their system. I
8 recognise that that's not a fair characterization and it certainly would
9 be an unprofessional one.
10 Q. Now, can we go to Article 16:
11 "When several units are given a joint task, a commanding officer
12 shall be appointed in good time to direct the execution of the task. If
13 this is not regulated beforehand, the role of superior officer shall be
14 assumed by the most senior officer, who shall direct the execution of the
15 task. If a unit or an institution is suddenly left without a commanding
16 officer, command shall be assumed by his deputy or the highest ranking
17 officer in that unit until a new commanding officer is appointed."
18 Within the meaning of that rule, would you regard the movement of
19 prisoners from Bratunac to Zvornik, involving, as it did, soldiers from
20 different units, as a joint task?
21 A. Yes, sir.
22 Q. And would you say that that rule applied in terms of who was in
23 command of that joint task?
24 A. In -- in theory, with respect, what should have been happening was
25 given that these were the joint tasks, your command entity would have been
1 the Zvornik -- I'm sorry, the Drina Corps headquarters or an officer
2 thereof who's exercising direction of that, yes, sir.
3 Q. But in the absence of that, the person who was giving commands to
4 those soldiers to get on the buses, guard the prisoners, get the prisoners
5 off the buses, would be the commanding officer, wouldn't he?
6 A. I'm differentiating between the senior officer present and the
7 commanding officers. I mean, are we -- you're talking the senior officer
9 Q. Yes.
10 A. To some degree, it would, yes, sir.
11 Q. Thank you.
12 A. Providing again that the soldiers obviously would understand that
13 it's in his competence to do these orders.
14 Q. Right.
15 A. Soldiers sitting in Bratunac and some strange officer comes up and
16 says, "Get on the buses, you're going to Zvornik," you know, is probably
17 not going to react to that. If it's somebody within their chain of
18 command, they will react to that.
19 Q. Or if it's a colonel, I suppose.
20 A. That is a possibility. Again, it's situation dependent.
21 Q. Now, during the course of your evidence-in-chief, you told us that
22 General Mladic convened a meeting of his senior brigade commanders at the
23 Bratunac Brigade headquarters on the 12th of July. That's page 19869,
24 lines 7 to 21, on the 17th of January. What is the source of your
25 information for that assertion?
1 A. In that particular assertion, there are no documents, so in order
2 to set the context, that is where I've had to rely on testimony or
3 statements of individuals who were present at that meeting.
4 Q. Well, let's not beat about the bush. An individual or more than
5 one individual?
6 A. Well, I remember certainly Colonel Trivic. Like I say, it may
7 be -- it may be more than one, but I'm -- I'm just not recalling at this
8 juncture. But I know Colonel Trivic did discuss this in some detail at
9 some juncture.
10 Q. Well, I'm venturing to suggest to you that the only person you can
11 have spoken to or place at that meeting on the 12th of July was Colonel
12 Trivic, wasn't it?
13 A. No, sir, because I believe that at some juncture, Captain Nikolic,
14 the Bratunac Captain Nikolic, understood that -- you know, said that he
15 knew that that was going on as well. But, no, as for the actual inside
16 guts of the meeting, I think Colonel Trivic is the only person who's
17 present to acknowledge the internals.
18 Q. But you were present at the interview of Momir Nikolic, and
19 without going through pages and pages of interview, we can probably
20 stipulate this as a fact: He said the meeting took place on the 11th of
21 July, didn't he?
22 A. I don't recall that, no, sir.
23 Q. You were present --
24 A. I think he was -- look, he -- there are other discussions that
25 he's had on the issue. I mean, I don't recall him saying it is the 11th
1 of July. My information that it's the 12th of July.
2 Q. Did you see General Krstic give evidence in his defence?
3 A. Yes, sir, I did.
4 Q. Did he not refer to this meeting being on the 11th of July?
5 A. I don't believe so. I mean, I could stand to be corrected, but I
6 don't believe so.
9 A. No, sir, I was gone at that juncture.
10 Q. Perhaps you'll take it from me. He placed this meeting on the
11 11th of July. Are you aware of what the discussion was at that meeting
12 from, for example, the account of Colonel Trivic?
13 A. From the account of Colonel Trivic, the topic of discussion at
14 that meeting was the initial planning process with respect to Mladic's
15 decision to quickly move on to the Zepa enclave.
16 Q. And according to Colonel Trivic, did you understand there was any
17 opposition to that plan?
18 A. Yes, sir. I believe both -- you know, Colonel Trivic reflected
19 that he had some opposition and that Colonel Pandurevic had some
20 opposition, not necessarily with the conduct of the plan, but the fact
21 that their units had been in the field for a long time and there was an
22 open question whether or not, you know, they would be able to motivate
23 them and get them to accept this next mission and move on with good order.
24 Q. And any other reason? I mean, didn't Colonel Pandurevic say at
25 this meeting, according to your understanding, that it would be madness to
1 go to Zepa when the whereabouts of the column was not known?
2 A. Yes, sir, I do recall that being attributed to him.
3 Q. Now, by the evening of the 12th of July, we've -- it's clear from
4 intercepts you reviewed, the direction and whereabouts of the column was
5 perfectly well known, wasn't it?
6 A. Well, in that context, I think it was, you know, the fact that the
7 column was out there and moving was known, but as I've testified before,
8 there was a great deal of ambiguity about the size of the column and the
9 potential military threat that it posed.
10 Q. The other thing was, and I'll have a document put into e-court
11 here, please.
12 Can we have P181 placed into e-court.
13 And you will need to look or read it all through. But this is a
14 document dated the 10th of July. It's from the Main Staff of the Army of
15 Republika Srpska. It's signed by General Ratko Mladic. And, in
16 particular, I'm interested in your looking at paragraph 4.
17 A. Scroll down in the English, please. Thank you. Yes, sir.
18 Q. Now, according -- according to this order, the offensive on Zepa
19 was to be commenced on the 12th of July?
20 A. Well, only on that issue. And to be clear, in case, like I said,
21 there's -- there's a need to be clear on why we're debating the 11th and
22 the 12th, one of the things that I also take into account in these issues
23 is that the officers in question also report that when they went from the
24 headquarters to this meeting, that they drove through the UN compound on
25 the evening 11th to get to this particular meeting. Now, I think there's
1 plenty of evidence that the UN has noted that they weren't letting anyone
2 through the compound on the evening of the 11th, they weren't disarmed
3 until the 12th. So, I mean, I take that as part of the fact that maybe
4 some of these officers are mistaking what particular day it was. Their
5 remembrance of the context may be correct, but, you know, they weren't
6 driving to this meeting through Potocari on the evening of the 11th.
7 Q. Sorry, what officers? What officers say that and where?
8 A. I believe that General Krstic says that, and I believe that
9 General Trivic indicates that that was the path that he took.
10 Q. Were you aware that General Trivic --
11 A. I'm sorry, not "General." "Colonel." My apologies.
12 Q. Colonel Trivic referred to the fact that there was a meal during
13 the course of this meeting, a celebratory meal?
14 A. Yes, sir, I am.
15 Q. There was a celebratory meal at the headquarters of the Bratunac
16 Brigade on the 11th of July, wasn't there?
17 A. I don't believe so, no, sir.
18 Q. Wasn't there?
19 A. I just told you I didn't believe so, so, I mean, you're asking me
21 Q. And where was General Mladic during the evening of the 11th of
23 A. I don't know where he was on the evening of the 11th of July.
24 Q. Is that -- is that a serious answer, Mr. Butler?
25 A. Well, sir, the answer is: I don't know. I mean, he's -- he had
1 accommodations at the Hotel Fontana, but I can't tell you where General
2 Mladic was on the evening of 11th July. I mean, I can track his movements
3 through -- well, let's go back. The evening of the 11th of July would
4 have been, what, the first meeting and the second meeting, so he was at
5 the Hotel Fontana --
6 Q. Thank you.
7 A. Okay. Let me get my dates right. The first and second meetings,
8 he's on videotape, so he's at the Hotel Fontana until, what, 9.00?
9 Q. Yes.
10 A. So maybe longer than that.
11 Q. And where is the Bratunac Brigade headquarters in relation to the
12 Hotel Fontana?
13 A. It's down the road at the old ceramic factory.
14 Q. Walkable?
15 A. I assume so.
16 Q. What time did the meeting take place that Colonel Trivic told you
18 A. I believe, if memory serves, it's 10.00 in the evening.
19 Q. Do you remember Colonel Trivic telling you about General Mladic
20 leaving the meeting, he had to go after the meal?
21 A. I don't recall that fact, but I certainly won't dispute it.
22 Q. What time was the second meeting at the Hotel Fontana?
23 A. I don't know. I mean, I'm sure I've got it in my report. I mean,
24 we can go through the timelines on it. If you want, I'll look.
25 Q. 11.00.
1 A. Okay.
2 Q. In essence, you rely on, for your assertion that this meeting was
3 on the 11th rather than the 12th, on the witness interview of one man,
4 don't you?
5 JUDGE AGIUS: Yes, Mr. McCloskey.
6 MR. McCLOSKEY: Sorry, I know everyone's getting tired, but you
7 just reversed the dates.
8 MR. HAYNES: Did I? I'm very, very sorry. I'm very sorry. I'll
9 leave the point. I think the point's made.
10 JUDGE AGIUS: Actually, when he said, "Everyone is very tired," he
11 was suggesting that he is less tired than you are.
12 Yes, let's proceed.
13 MR. HAYNES: We'll see when we get to redirect.
14 Q. A wholly separate issue. On the 28th of January -- well,
15 actually, I can -- I can cut this short.
16 Can we just have a look at P110.
17 A. Is this document you want up is dated 12 July and you had
18 preambled as 28 January?
19 Q. I was going to refer to you some questions you had been asked on
20 the 28th of January --
21 A. I'm sorry, my apologies.
22 Q. -- but it's not necessary, Mr. Butler, to read back to you what
23 you said previously. Just help us very, very briefly with what this
24 document represents.
25 A. Again, I think as I've testified, this is one of the
1 manifestations of the work you see out of the various commands and staffs,
2 who are scrambling around in order to get buses, in order to start moving
3 the population.
4 MR. HAYNES: And can we now have a look at P156, please. Is that
5 the first document on the page? Yes.
6 Q. We can just confirm the first document is timed at 0835. This
7 document is timed at 10.00 in the morning, an hour and a half after the
8 first one. Help us as to what this document is. Who is it from, and who
9 is it to, and what's it about?
10 A. From the commander of the Drina Corps to the Republika Srpska Main
11 Staff and their associate -- their main command post, rear command post,
12 for information. They're asking for additional fuel pursuant to the Main
13 Staff commander's orders.
14 Q. Right. Now, it's no use doing this in English, so can we just
15 have the B/C/S copy of this document on the screen, and there should be a
16 second and third page to the B/C/S document.
17 THE REGISTRAR: The document has only one page.
18 MR. HAYNES: I'm very sorry.
19 Q. Are you familiar with this document, from your past dealings with
20 the documents in this case, and are you aware that attached to the back of
21 it were a list of vehicles and registration numbers and indications of
22 what fuel they'd been supplied with?
23 A. I believe I've seen the face of this document. I don't know that
24 I'm aware of seeing the back end of the document. I mean, if you can show
25 it to me, I can -- I can probably confirm that one way or another.
1 Q. All right. Well, I'll tell you what I'm going to suggest,
2 Mr. Butler, because I'm very nearly done, that we have a break now and I
3 can tidy this up in my last topic with you and then that will be over. I
4 ask that respectfully, of course.
5 JUDGE AGIUS: Is that okay with you, Mr. McCloskey?
6 MR. McCLOSKEY: Absolutely.
7 JUDGE AGIUS: So we'll have -- one moment.
8 [Trial Chamber confers]
9 JUDGE AGIUS: So this time the break will be of 30 minutes from
10 now. Thank you.
11 --- Recess taken at 12.17 p.m.
12 --- On resuming at 12.54 p.m.
13 JUDGE AGIUS: Yes, Mr. Haynes.
14 MR. HAYNES: Thank you, Mr. President.
15 Q. On the last lap, Mr. Butler, so far as I'm concerned, anyway. I'm
16 sure you're glad to hear that.
17 A. I'm here at your disposal, gentlemen. I mean, it's part of the
18 job, and I understand that.
19 Q. All right. Before I move to my last topic, I just want to ask you
20 one question about your approach to the analysis of this case.
21 Do you or did you ever admit of the possibility that a soldier of
22 the Army of Republika Srpska might have been at a crime scene, either of
23 his own choice or because of the orders of a high-ranking officer not in
24 his chain of command?
25 A. Yes, sir, I certainly agree that that could be a possibility.
1 Q. Thank you. I want to move on now. And as a preliminary to
2 dealing with this last issue, can you help us as to your understanding of
3 precisely who Semso Muminovic was?
4 A. At the time of July 1995, I presume we're talking about, I think
5 he was a -- an official with -- he was one of the brigade commanders of
6 the 24th Infantry Division, if I recall correctly.
7 Q. And your understanding of where he would have been located
8 physically when he was talking to Vinko Pandurevic over the Motorola?
9 A. No, sir, I wouldn't know where he would be physically on the
10 ground at that time.
11 Q. Right. I mean, just so that we're clear, and I fully understand
12 that time has passed, but did you understand him to be somebody who was
13 associated with the column or somebody who was associated with the 2nd
14 Corps in Tuzla?
15 A. No, sir. I mean, I -- I associate him as an individual. He is
16 with the 24th Division, obviously part of 2nd Corps Tuzla, but I don't
17 believe he was ever in the body of the column. My understanding of his
18 role is he was on the ABiH side of the lines and doing it from that
20 Q. That's fine. It was just something that you said earlier caused
21 me to think you might have been confused about where he was.
22 Now, at the time you wrote your initial reports, were there
23 available to you personnel records from the Zvornik Brigade relating to
24 July of 1995?
25 A. Yes, sir, I believe -- yes, we had them.
1 Q. And I take it there were available to you the regular and
2 irregular combat reports from July of 1995.
3 A. Yes, sir, at least from the Zvornik Brigade. We didn't have the
4 Drina Corps-related material at the time.
5 Q. All right. I'd like to start, really, by putting back into
6 e-court a document that you and I have looked at several times during the
7 course of this morning. It's P334, the regular combat report of the 18th
8 of July. And I really want to --
9 A. Did you characterize that correctly, because this is the interim
10 combat report of 18 July.
11 Q. No, I mis-characterized it. Thank you for pointing that out to
13 A. Okay.
14 Q. I'm really only interested in paragraph 3, in which the dead and
15 wounded are listed, and you will see that it lists that there were 27 dead
16 people. And if we go over the page, 100 or so injured and 13 missing.
17 Was that a document that you saw and considered before you wrote your
18 report or gave your evidence in this or indeed any case?
19 A. Yes, sir, although earlier I may have slighted overstated the
20 number. I attribute it to 40. But I think my base of knowledge is also
21 on the death certificate records. So, I mean, certainly, on July 18th, if
22 he's saying 27 dead, I mean, I'm happy with that number.
23 Q. Well, actually, it's rather less than that, because if we go to
24 P321, on page 2 of the document in English, you'll see at page 7 -- sorry,
25 paragraph 7 -- I'm mis-characterizing everything now -- that there are
1 five men named there who apparently died in the combats around Srebrenica,
2 who we have discovered were included in the figure of 27. So it's 22. Is
3 that a figure you are happy with? If not, we can look at another
5 A. I mean, yeah, I'll -- like I said, I don't think I've ever gone
6 through each and every death certificate to parse that out, so I mean in
7 that context, I mean, if you have guys have done that, that's fine. At
8 face value, I'll accept your numbers.
9 Q. Right. I mean, not to beat the thing to death, but that doesn't
10 make it, does it, the most serious day's casualty in the history of the
11 VRS, as was suggested to you by Mr. McCloskey?
12 A. No, sir, and in fact I'm thinking that through a later date, I
13 would probably say that the people in Bratunac might argue about that one,
14 simply because they took a heavy hit at Kravica in January of 1993.
15 Q. Quite.
16 A. So I will acknowledge that that might have been an
18 Q. Quite. But the figure of 40 has come into your mind from
19 somewhere. Do you recall where it came in your mind?
20 A. Yes, sir. I mean, as -- as a function of what I was looking at
21 with the personnel documents and everything else, we had a number of the
22 death certificates, the certifications of when soldiers died on the
23 battlefield and what the circumstances were, that the battalions were
24 required to fill out, so that at a point in time not only would
25 certificates of death be issued, but it would be a way that the families
1 could continue to claim any form of veterans' benefits. That is my
2 understanding of what those documents were for.
3 Q. Just so that we're clear on that and we can chase that one to
4 ground, 7D421, please. I'm not going to go through all of this, because
5 it's a long document, but is that the document you're talking about?
6 A. No, sir, but I can confirm that I have seen this document.
7 Q. And you can see that we've taken the trouble, during the course of
8 this trial, to put asterisks by those who died on the 16th of July, and
9 we've come to the figure of 23, I think.
10 Have you always approached, as it were, the events of the 16th of
11 July on the basis that 40 people or more died?
12 A. Not -- the number to me is abstract. I mean, again, because of
13 the focus of my analysis on this, the combat within the column, while a
14 part of it wasn't relevant to what I was looking at with respect to the
15 linkage to crime scenes, so whether it was 20 or 40 or more, I mean, I
16 don't think that that would fundamentally change the character of my
17 analysis. If there's a point to be made, certainly I'll entertain it, but
18 at face value, I wouldn't see how that changes anything.
19 Q. Well, I'll come to that.
20 A. Okay.
21 Q. Your assertion, I think, in evidence-in-chief was that the
22 numerical superiority of the 28th Division was a major factor, as well as
23 the losses he was suffering, in Colonel Pandurevic allowing the column to
24 pass. Is that something you still stand by, now that you know that the
25 dead are about half as many as you thought they were?
1 MR. McCLOSKEY: Objection.
2 JUDGE AGIUS: Mr. McCloskey.
3 MR. McCLOSKEY: That -- that is a contested issue of how many are
4 dead, and they're not including the police and the missing, and so I think
5 to question that as a fact is not fair. I think he can put his position,
6 but not as a fact.
7 MR. HAYNES: Well, I may have to argue this in the absence of the
8 witness, because I've put the missing figures into evidence, and it wasn't
9 challenged in redirect. You've had your opportunity to challenge that,
10 and I'll put it to this witness that the figures for missing people show
11 one --
12 JUDGE AGIUS: One moment.
13 [Trial Chamber confers]
14 JUDGE AGIUS: Mr. Haynes, perhaps you can rephrase the question by
15 making it clear that, in relation to the missing or what Mr. McCloskey has
16 been complaining about, that this is your position.
17 MR. HAYNES: Well, I'm going to -- I'm going to go the long way
18 around, given the objection. I'm going to ask that P2089 be put into
19 e-court, please.
20 MR. McCLOSKEY: I have no objection as he puts it to his case, but
21 I don't think we're going to prove, with Mr. Butler at this late time, the
22 number of casualties.
23 JUDGE AGIUS: No, and I don't think that the question, as put, was
24 categorically asking Mr. Butler to confirm with precision the amount of
25 casualties. I think Mr. Butler was being invited to state whether he
1 would be prepared to cut that figure that he mentioned earlier by a half
2 if the contention of the Pandurevic Defence team is correct. That's how I
3 understood the question, and of course you've argued that before, and you
4 can continue arguing it.
5 MR. HAYNES: This is a document which was generated five years
6 after the events of Baljkovica on the 15th of March, a little less than
7 five years after, and it is the details of Bosnian Serb soldiers still
8 missing. And, again, we've been through this with some care, and you'll
9 see there's an entry at number 1 and an entry at number 4 of soldiers who
10 disappeared on the 14th and 16th of July respectively.
11 Q. Is this a document you've seen before?
12 A. I don't believe so, sir.
13 Q. So in making your conclusions about what motivations Lieutenant
14 Colonel Pandurevic may have had in letting the column go, you didn't know
15 that in the final analysis, as we now contend, 23 people died and two went
16 missing, did you?
17 A. No, sir, but, I mean, maybe if I can get us right to where I think
18 the issue is going on this, my analysis of the situation is done off of
19 the basis that Colonel Pandurevic at the time is reporting up his chain.
20 And I hope I've never done this in the context of my testimony. I mean,
21 I've never made a conclusion whether or not his decision was justified or
22 not. That's certainly not my position to make, even as another military
23 professional. The point that I'm making is the fact is that on this is
24 that Colonel Pandurevic, as a military professional, is arguably operating
25 off of incomplete and potentially erroneous information, and he made the
1 decision that he made based on the information that he had at the time.
2 The fact that in the cold light of the peacetime world, everyone
3 learns that it wasn't quite that way, is totally unsurprising.
4 Q. That's an interesting assertion. How many dead do you recall he
5 reported up his chain of command on the 15th or 16th of July?
6 A. I don't know that he gave a number in the 16th July in his interim
7 combat report.
8 Q. Right. Shall we have a look at it?
9 A. Sure. I mean, if he did, he did, but I don't recall the number
10 there. I just recall the basic guts of the situation.
11 MR. HAYNES: That would be P330. Can we have P330 into e-court,
12 please. And we'll need to look at the second page in English, certainly.
13 Q. In that report, there's apparently no awareness of casualties or
14 fatalities at all, but that's an interim report, so --
15 A. I disagree. Go back to the first page, please.
16 Q. Sorry, I might have missed something. Yes, I'm sorry --
17 A. Paragraph 2.
18 Q. Yes, about 10 dead. So, in fact, what we now know years later is
19 that Colonel Pandurevic's comprehension of the situation is actually not
20 as bad as it turned out to be; is that right?
21 A. Sir, in the cold light of reality, yes, it may very well have been
22 that way, but you're certainly not going to get a value judgement from me
23 saying he made the wrong decision under the circumstances.
24 Q. No, but you have made a value judgement as to why he made it,
25 haven't you, both in your reports and here?
1 A. Yes, sir, and I believe it's, again, not my value judgement, a
2 reflection of the value judgements that he has sent forward to his
3 superior command.
4 Q. Now, can you give us your analysis of what motivation there was on
5 the part of the Muslim forces to agree to a ceasefire?
6 A. Well, the obvious motivation that I would understand would be that
7 they wanted to completely withdraw from the territory with as little loss
8 of life as possible.
9 Q. It seems both sides reached an agreement that suited their
10 purposes, then?
11 A. It certainly appears that way. Having said that, let's
12 define "both sides." Is it at the tactical level? It didn't suit,
13 particularly from the VRS perspective, it did not suit the objective of
14 their leadership.
15 Q. I thank you for that answer sincerely, because of course I'm only
16 concerned with defending somebody at the tactical level.
17 Did you, in reaching your conclusions in your report or before
18 this Court, ever consider information as to the state of the column, in
19 humanitarian terms, on the 15th and 16th of July?
20 A. I don't believe I've ever done a detail analysis. I may have made
21 comments about the fact that my understanding is with respect to
22 percentage that were armed and issues like that, but I don't think I've
23 ever tried to parse through walking wounded and things of that nature. I
24 hope I haven't. I don't know the issues for that.
25 Q. Yeah, well, I'm going to give you the opportunity now if you never
1 have because of course we want your analysis of things, and if there's new
2 material, you should have it. Can you have a look at 7D234, please, at
3 page 9 both in English and B/C/S.
4 Does the name Sabic, Vejiz mean anything to you?
5 A. No, sir.
6 Q. No. So I take it this is a witness statement you haven't seen
8 A. If I saw it, it certainly didn't register as something I'm
9 remembering. I just -- I don't think so.
10 MR. HAYNES: Well, can we now go to page 9, please.
11 Q. And I'm looking at the very bottom of the page, and I think I'm
12 going to have to read this into the record, because I don't think it's a
13 document that is in e-court in B/C/S. But about halfway down the last
14 paragraph, it says:
15 "The men who were not injured carried us who were wounded back to
16 the brow where we were before. It could have been around 1700 hours. I
17 sent couriers to the forest where the rest of the column was to ask for
18 some help, and around 50 people came to help us. After seeing what
19 happened to us, the group that came to help us started to panic, and on
20 that occasion they informed me that the rest of the column that was hiding
21 in the woods was in a complete chaos. The people in the column had no
22 more control of themselves. People were in panic and many of them were
23 committing suicides. Ekrem Salihovic, a.k.a. Eka, reported this to me.
24 "I concluded that it was now a question of minutes before the
25 people in the column went completely crazy and Chetnik attacks were
1 continuously going on. I suggested that we try to break enemy lines by
2 ourselves as fast as possible and that help was coming from the other side
3 (the BiH Army), but we couldn't wait for them anymore. We had no other
4 option than to attack from our side in order to join our army on the other
5 side. I tried to make a radio contact with the 24th Division, but the
6 Chetniks would block any attempt."
7 Did you understand that to be, as it were, the state which the
8 column was in on the 15th and 16th of July?
9 JUDGE AGIUS: Mr. McCloskey.
10 MR. McCLOSKEY: If that's going to be fair, he's going to need to
11 be able to read the -- a bit more of that, especially if it's date --
12 date-specific, you know, I mean.
13 MR. HAYNES: We can go over the page.
14 JUDGE AGIUS: I think that's fair enough, unless the witness is in
15 a position to answer the question based on the knowledge that he has
16 already amassed in his mind.
17 THE WITNESS: Okay, sir.
18 MR. HAYNES:
19 Q. I can go back to the front page of the document, if you want, but
20 it would only be to establish that this was a witness statement taken in
21 April of 2002 so -- ?
22 A. I think -- I mean, while I obviously, you know, have got a little
23 bit of an uncomfort level taking one report and extrapolating it forward,
24 I mean, this seems to be, in large degree, you know, a consistent story
25 from what I understand that the conditions were in the column. It was in
1 an extremely ragged state. They had not eaten and probably had very
2 little fresh water for a number of days. But at least towards the front
3 of the end of the column, I mean, they were still capable of conducting
4 military operations and attempting to do so, to the limited degree that
5 they had left. So, I mean, I think it's a fair characterization, and I
6 wouldn't -- you know, like I said, I wouldn't normally be comfortable
7 extrapolating it to the whole situation of the column, but it's not
8 inconsistent with other stories that I've heard.
9 MR. HAYNES: Can we go back to P329, please. And this time, I'm
10 interested in you looking at a paragraph below the two that we have been
11 concentrating on thus far:
12 "I made an offer to the commander of the other side to separate
13 out civilians and have the others surrender, but he refused, asking that
14 they should all be released together."
15 Do you have any reason to doubt the veracity of that assertion in
16 a document written at about 7.00 p.m. on the 15th of July, that by then,
17 Vinko Pandurevic had already made an offer to allow people to pass and to
19 A. No, sir, and I -- I believe that I have heard, either in
20 statements or whatever, you know, similar language from the ABiH side,
21 because their, of course, primary concern is they didn't want to be in a
22 situation where they were parsing out between their soldiers and the
23 civilians. They wanted everyone out, and so, in part, they weren't going
24 to accept that, because what the VRS was asking was unacceptable.
25 Q. Now, I know that you're aware that by mid-afternoon on the 15th of
1 July, all units of the Zvornik Brigade were back in position to fight the
2 column. That's right, isn't it?
3 A. It may be a matter of timing. I know the last units getting in
4 place were the Drina Wolves and -- I think the police units actually got
5 there before the Drina Wolves did, so, I mean, most of them were
6 certainly, by the time the sun was going down, they were in positions
7 where they could substantially contribute.
8 Q. And you've listed in your reports the many and various
9 reinforcements from other areas that were sent to help them as well,
10 haven't you?
11 A. Yes, sir.
12 Q. But I want to know what your knowledge of the artillery capability
13 of the Zvornik Brigade was on the afternoon of the 15th and morning of
14 16th of July. Did you have any awareness of that when you wrote your
15 report or as you sit here today?
16 A. I mean, I have a general awareness, and it wasn't very much, but,
17 no, I can't tell you that I specifically examined the details of the
18 artillery units.
19 Q. In order not to go into private session, nor to compromise
20 anybody, I'm going to read to you something that PW-168 said in, in fact,
21 his proofing session. He said -- he briefly recounted his previous
22 statements regarding the opening of the corridor for the column to pass:
23 "The witness reiterated that this was Pandurevic's decision. The
24 witness went on to state that Pandurevic could have withdrawn his troops
25 from the battlefield area on the 16th of July and showered the Muslim
1 groups in the area with full artillery, killing many more of them, but
2 instead Pandurevic chose to allow the column to pass for 28 hours before
3 closing the corridor."
4 Had you read that or considered any evidence to that effect before
5 coming to the conclusions you did in your report or in your evidence
6 before this Court?
7 A. No, sir. I mean, the phrase "full artillery" I think within the
8 context of the Zvornik Brigade is not much, but certainly, yeah, Colonel
9 Pandurevic had an option where he could do that at that juncture, if he
10 chose to do so.
11 Q. You were asked a question by Mr. McCloskey. I'm going to ask you
12 a couple.
13 Knowing now that the numbers of dead are suggested to be far fewer
14 than you thought, that the conditions that the column was in were
15 terrible, that there were offers to let them go on the 15th of July, and
16 that he could have withdrawn his troops and showered the column with
17 artillery and killed thousands of them, do you want to revise your views
18 as to his motivations for letting the column pass?
19 A. Revise them from what? I mean, what do you attribute my view as
20 to letting the -- what do you attribute to be my view of his motivation
21 for letting the column pass?
22 Q. Well, I think you said earlier on in your evidence that he pretty
23 much had to let them go. Do you stand by that or do you not suggest that
25 A. Oh, no, I stand by that. I mean, sure, could -- could the AB --
1 the Muslim -- the Serb forces tried to withdraw and get enough clearance
2 that the Muslims could have, you know, gone out and then showered them
3 with artillery fire, in abstract. Would the Muslims have allowed them to
4 engage once they saw that happening and do that? No. I mean, the Muslims
5 understood that, you know, their best chance of survival with respect to
6 indirect fire was to be in as close contact with the VRS as possible so
7 they wouldn't shoot.
8 I stand by my analysis, that when I look at this material, I mean,
9 he made the decision to let the column go based on the factors that he had
10 available to him at the time. He concluded he had no choice, not me.
11 Q. He also concluded that it would be better not to kill thousands
12 more of the Muslims in the column, didn't he, according to what I've just
13 read to you?
14 A. Oh, I'm sorry, I was looking at this, not -- not -- I take it what
15 you read to me, you were referring to PW-168.
16 Q. Yes.
17 A. Well, certainly that witness attributes that motive to him. I
18 mean, I don't know that as a fact or not.
19 Q. Well, and he was on the ground, wasn't he?
20 A. Yes, sir. I mean, I'm not going to parse that particular motive.
21 I just don't know the answer to that.
22 Q. And he presumably knew better than you do what the artillery
23 capability of the Zvornik Brigade was on the 16th of July, 1995, and you
24 don't, do you?
25 A. At the moment, I will certainly grant him that, yes, sir.
1 Q. The other question Mr. McCloskey asked you was whether you saw any
2 evidence of Pandurevic standing up to Mladic in relation to the killing
3 operation. Isn't his decision not to withdraw his troops and shower the
4 column and kill thousands of them just that?
14 I have no further questions.
15 JUDGE AGIUS: Thank you. Thank you, Mr. Haynes.
16 Let's redact that.
17 Mr. Bourgon.
18 MR. BOURGON: Thank you, Mr. President.
19 Mr. President, at this time, before moving on to redirect from the
20 Prosecution, I would like to seek leave from the Trial Chamber for a short
21 extended cross-examination arising from the questions that were posed by
22 my colleague. I've got four specific and short questions which arise from
23 the questions that were put by my colleague at lines 15 [sic], 10 to 25,
24 lines 10 to 25 and lines -- and page 12, lines 9 to 24. So two questions
25 that were put by my colleague, and I'd like to have leave to do some
1 further cross-examination with four specific and short questions to
2 clarify these issues, in the interests both of clarifying and for the
3 Trial Chamber.
4 JUDGE AGIUS: Yes, Mr. Josse, Mr. Haynes.
5 MR. JOSSE: I think perhaps it's best if I go next.
6 I, too, wish to ask some further questions. They relate to the
7 document the witness has brought to court today. I suspect it will take
8 no more than two or three minutes. It's really a rather different
9 application to Mr. Bourgon's, but I better put it on the record at this
11 JUDGE AGIUS: Thank you.
12 Mr. Haynes.
13 MR. HAYNES: We have met repeatedly about the evidence of this
14 witness and been fairly candid about the topics of cross-examination we
15 were going to employ. I went first for a considerable time with another
16 substantial witness in this case, and others were allowed to cross-examine
17 after me, and I lived with that. I object to anybody having the right to
18 further cross-examination. There's an indictment order. It's a
19 multi-handed case. These things happen.
20 JUDGE AGIUS: Yes, thank you.
21 Mr. McCloskey.
22 MR. McCLOSKEY: I'd spoken to Mr. Josse about the issue he spoke
23 of, which I think is something that we agree that needed to be cleared up
24 as one of the items I think the Court is familiar with, so no problem.
25 Given the cross and the -- if there are specific areas
1 Mr. Bourgon, as he says he has, I don't object to short, specific -- just
2 a few to clear up those issues.
3 JUDGE AGIUS: All right. Yes, one moment. We haven't given you
4 the go-ahead as yet, Mr. Bourgon.
5 [Trial Chamber confers]
6 JUDGE AGIUS: Yes. Mr. Bourgon, could you tell us first what your
7 first questions are, please, what your two or four questions are?
8 MR. BOURGON: That's what I wanted to do, Mr. President.
9 First, the -- the first question has to do with the information
10 which can be provided to the commander by the assistant commander for
11 security, and this arises from a question that was put by my colleague on
12 page 12 of the transcript. Now, I might not have the right page, because
13 I think they started again the numeration of pages. That was on page 12,
14 lines 9 to 24. The questions was at lines 9 to 12, and the answer was at
15 lines 13 to 24. So my first two questions deal with what kind of
16 information can be put by the security officer to his commanding officer.
17 So that's the first two questions.
18 And the next two questions deal with the measures which can be
19 taken by the brigade commander if he believes that his security officer
20 has committed a crime. And that was raised specifically by my colleague
21 at page 15, lines 10 to 25, and page 16, lines 1 to 3; four specific and
22 short questions with no more than five minutes, Mr. President.
23 JUDGE AGIUS: Yes, Mr. Haynes.
24 MR. HAYNES: First observation: All asked and answered in his
25 first cross-examination. Secondly, bring it as part of the Defence case.
1 [Trial Chamber confers]
2 JUDGE AGIUS: Our decision is as follows, and it's unanimous:
3 In relation to your request, Mr. Bourgon, our conviction is that
4 the areas you wish to cover have already been covered sufficiently, in our
5 minds, in a way that does not require any further clarification. So we
6 are dismissing your request.
7 In regard to Mr. Josse, we see the importance of clarification,
8 particularly because this document came to the surface only today, and so
9 you are allowed two minutes to conclude.
10 Yes, Mr. Bourgon.
11 MR. BOURGON: Thank you very much, Mr. President.
12 I would like to seek certification of this decision from the Trial
13 Chamber on the basis of past practice before this Trial Chamber, which
14 this decision I feel is different, and I would like to know if you wish me
15 to do this orally or in writing, Mr. President.
16 JUDGE AGIUS: Yes, Mr. McCloskey.
17 MR. McCLOSKEY: If he comes over and talks to me afterward, maybe
18 we can avoid certification.
19 JUDGE AGIUS: All right. We'll deal with that after you have
20 spoken. If you wish to speak to Mr. McCloskey, of course we are not
21 imposing any such requirement. But if you bring this up again tomorrow,
22 we'll tell you whether you need to raise it orally or in writing.
23 Mr. Josse.
24 MR. BOURGON: Thank you, Mr. President.
25 JUDGE AGIUS: Thank you, Mr. Bourgon.
1 MR. JOSSE: Your Honour, I'm aware that there is an urgent
2 Prosecution motion --
3 JUDGE AGIUS: There are many things that are urgent, Mr. Josse.
4 MR. JOSSE: Your Honour, the position is this: I suspect the
5 Trial Chamber would like to hear our submissions on that. We are quite
6 anxious to ask for more time, and it might be the best use of the next
7 five minutes for the Court to hear why we need more time. The Court can
8 then decide whether to grant more time, and I could ask Mr. Butler the two
9 minutes worth of questions tomorrow morning.
10 JUDGE AGIUS: All right.
11 MR. JOSSE: That's what I would suggest.
12 JUDGE AGIUS: You still have two minutes and not more than that.
13 MR. JOSSE: That's all I need, honestly.
14 JUDGE AGIUS: We've got barely five minutes. There are two urgent
15 motions. One is the latest one, to add another witness to the 65 ter
16 list. I'm not mentioning the name in case there is a request for
17 protective measures. It concerns mainly you, Mr. Josse. We would have
18 preferred if you could give us your response today, but it seems that you
19 require time.
20 MR. JOSSE: Well, could I briefly deal with the issue of time
21 first of all?
22 JUDGE AGIUS: Yes.
23 MR. JOSSE: As the Trial Chamber are aware, under Rule 126 bis,
24 our response is generally within 14 days, but of course a Trial Chamber
25 can order otherwise. This trial has proceeded smoothly and at a very
1 sedate pace, for which we are very grateful, for the last 18 months. The
2 Court has shown patience of all parties throughout that period. This
3 motion is of real and fundamental importance to my client. Before
4 responding to the motion, we want to be in a position to respond fully and
5 accurately, and a non-exclusive list of the areas that we would like to
6 examine before responding are: Research into the law on amending a 65 ter
7 list so late; research into the law of this Tribunal as to what amounts to
8 prejudice to an accused in these circumstances; research on the issue of
9 the Office of the Prosecutor seeking to substantiate a further and
10 significant allegation that's not on the indictment. And in addition to
11 that, we want to be in a position to identify to you the type of
12 investigations necessary if the motion is granted before we're in a
13 position to cross-examine the witness.
14 Your Honour, we are fully aware of the knock-on consequence to the
15 schedule of this trial of what we are saying, because I should also add
16 one other thing. In the course of our response, we will probably wish to
17 identify those witnesses we would ask to be recalled if this witness is
18 allowed to give her evidence.
19 Your Honour, we are, as I've already said, fully aware of the
20 knock-on consequence to the schedule of this trial if the application that
21 I'm making at the moment is adhered to. But realistically, we suggest
22 that we are entitled to a proper period of time before we respond to this
23 motion. Clearly, the Court, with respect, isn't a bargaining shop, and
24 I'm not seeking to enter into any negotiation with the Trial Chamber, but
25 we would ask for a significant number of days for -- perhaps seven, before
1 we respond to this motion.
2 We would rather respond orally, frankly, but we'll respond in
3 writing if we have to, but we do require more time.
4 I repeat, we are aware of the knock-on consequences, but the
5 situation is not of our own making. Whether it's of the Prosecution's
6 making is something in fact we'll address in response, but it's neither
7 here nor there. The fact is it's not of General Gvero's making nor of his
8 lawyer's making, and we're entitled to time before we proceed to address
9 this extremely important motion.
10 JUDGE AGIUS: Mr. McCloskey.
11 MR. McCLOSKEY: Just briefly, clearly regarding the issue of 65
12 ter, we've -- we're all experts in those issues. There's no more research
13 that is necessary to be done. The same thing with prejudice. This is not
14 a genuine issue, in my view.
15 And I can tell you this does not change the indictment or the
16 charges in any way, shape, or form against the general, the Zepa events
17 and the Main Staff's contribution to them. They remain the same.
18 Having said that, yes, it's important. A few days to respond, you
19 know, we don't have any objection to. But I also believe it's in part in
20 the motion, this information that generated this was -- came out of I
21 believe it was cross-examination and the constant hammering on this point
22 over and over again by the Defence, and this is something that we're
23 naturally following up on, and that from the moment that this came out of
24 the witness's mouth, this has been an issue that everyone should have been
25 ready for. So I don't see it as the big surprise that the Prosecution has
1 created, but, yes, he should have some time to get the thoughts together
2 and be able to respond to this. I think the weekend, and I guess we're
3 not sitting on Monday, should be enough.
4 JUDGE AGIUS: Yes, Mr. Bourgon.
5 MR. BOURGON: Thank you, Mr. President.
6 I would like, on my part, to address the Prosecution motion to
7 seek to have admitted into evidence four 92 quater witnesses.
8 JUDGE AGIUS: I was going to suggest, because it's time, that we
9 deal with that. I mean, please, if you can take a joint position on that,
10 it will be even better, and we'll deal with it tomorrow.
11 MR. BOURGON: That's what I was going to propose, Mr. President,
12 because it does raise some serious issues.
13 Thank you, Mr. President.
14 JUDGE AGIUS: Yes, definitely.
15 Also, please think, because you mentioned the question of
16 prejudice, try to remember the recent decision that we have taken, where I
17 think we sent out a message that we believe that a witness is still
18 important. We reserve the right to call that witness ourselves. So keep
19 everything in perspective.
20 We'll continue tomorrow -- yes.
21 MR. McCLOSKEY: Can I send Mr. Butler -- we have another witness
22 that has to testify and finish tomorrow, and --
23 JUDGE AGIUS: What do you mean, send Mr. Butler?
24 MR. McCLOSKEY: To his hotel to get some rest for the weekend.
25 JUDGE AGIUS: Yes, yes, yes. No, no, what do you mean for the
1 weekend? We are sitting tomorrow.
2 MR. McCLOSKEY: Yes, but we have a witness that we have -- we need
3 to get on because he's not available to testify --
4 JUDGE AGIUS: I understand Mr. Butler was flying back home on
6 MR. McCLOSKEY: Mr. Butler, I believe, is available to do what
7 he -- to finish this up, and I certainly have some redirect to do with
8 Mr. Butler. And given the -- this ICMP witness and the time that we see
9 estimated by the Defence, we don't --
10 JUDGE AGIUS: Well, I also suggest you sit down together, because
11 tomorrow we'll need to issue a revision -- an order revising the date for
12 the conclusion of the Prosecution case.
13 [Trial Chamber confers]
14 JUDGE AGIUS: We'll start with Parsons tomorrow. You have a time
15 limit within which you need to finish that -- the testimony of that
16 gentleman, after which we need Mr. Butler here, and we'll continue until
17 we finish with Mr. Butler.
18 --- Whereupon the hearing adjourned at 1.50 p.m.,
19 to be reconvened on Friday, the 1st day of
20 February, 2008, at 9.00 a.m.