Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5120

1 Monday, 24 November 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.16 a.m.

5 JUDGE LIU: Call the case, please, Mr. Court Deputy.

6 THE REGISTRAR: Good morning, Your Honours. This is Case Number

7 IT-02-60-T, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

8 JUDGE LIU: Thank you.

9 Good morning, everybody. I'm sorry for the delay, but I think

10 that the little delay for changing of a bigger courtroom is worth it. Are

11 there any matters that the parties would like to bring to the attention of

12 this courtroom?

13 MR. McCLOSKEY: Yes, Mr. President. I've heard on Friday that

14 the -- as you know, there is an ongoing appeal hearing in Krstic. And the

15 Defence in that case as well as the Prosecution would like Mr. Butler to

16 briefly come to their hearing on Wednesday morning to, I believe, just

17 affirm his testimony in this case so that portions of it can be used in

18 that appeal hearing. And I believe the Appellant Chamber has either

19 ordered that or at least has agreed to that. I hope that won't take much

20 time from us. It shouldn't, though you never know who might have

21 questions. I've heard that the Defence don't want to ask questions and I

22 don't think the Prosecution does either. But, as you know, there is an

23 outstanding order from this Chamber that Mr. Butler should not speak to

24 anyone about his testimony. And this, of course, has to do with his

25 testimony, so if we could just loosen that order to include talking

Page 5121

1 potentially to the Defence and the Prosecution in preparation for that

2 testimony, that would be helpful. And I'm sure the Court of Appeals -- I

3 imagine that order doesn't apply to the Court of Appeals, but if it does

4 we should allow them to question him too.

5 JUDGE LIU: Any response, Mr. Karnavas?

6 MR. KARNAVAS: In principle I don't have any objections. I would

7 think it would be proper for the meeting to take place while the Defence

8 and the Prosecution are there at the same time. So that way there is no

9 ex parte-ing on either side and then both can communicate to Mr. Butler

10 what it is and come to an agreement.

11 JUDGE LIU: Defence. What do you mean by Defence? The Defence in

12 this case are in the Krstic --

13 MR. KARNAVAS: In the Krstic case. I don't have any -- I have

14 no -- I have nothing to do with that particular case, but I would suspect

15 that if we are going to allow Mr. Butler to have communication with the

16 Prosecution, I would prefer that that communication take place in the

17 presence with the Defence at the same time in that case.

18 JUDGE LIU: Thank you.

19 Mr. Stojanovic?

20 MR. STOJANOVIC: [Interpretation] Your Honour, we have already

21 discussed this issue, and as far as we are concerned there is no reason

22 for Mr. Butler not to start preparing for cross-examination in the Krstic

23 case. So as far as we are concerned, you have our full cooperation.

24 JUDGE LIU: Thank you.

25 Ms. Sinatra.

Page 5122

1 MS. SINATRA: Yes, Your Honour. Briefly on that issue, I just

2 wanted to make sure that the Court would allow whatever ample time is

3 taken up in Mr. Stojanovic's cross-examination time that he may be added

4 on Thursday if it runs into his cross-examination, 330-something minutes

5 that the Court has allowed. And I believe the Court will, of course,

6 allow for that if Mr. Butler is not present in the courtroom on Wednesday.

7 But also I'd like to ask this Court's indulgence. We have all filed

8 objections to the intercept evidence motions for the admission of the

9 intercept evidence on November 17th, as ordered by the Trial Chamber. But

10 I would like the indulgence of the Trial Chamber for an extension of time

11 to file our final response to the Prosecution's motion after the final

12 intercept witness who is P -- he's another intercept witness coming as a

13 protected witness, as the last witness listed here before the Christmas

14 holiday. I would like to have the Court's indulgence for an extension of

15 time just a few days after his testimony to file our final objections.

16 JUDGE LIU: Thank you. Well, let's deal one matter to another.

17 As to Mr. Butler's testimony on another case, I think this Trial Chamber

18 will allow him to talk to the Prosecution as well as for the Defence.

19 Whether the Defence counsel should be present during the talks with the

20 Prosecution, I don't think it is a matter of this Trial Chamber to decide.

21 I leave it to the Appeals Chamber to decide on this matter.

22 So, Mr. McCloskey, your request is granted.

23 As for the response to Prosecution's submissions concerning the

24 intercept witness, we believe that Ms. Sinatra's request is reasonable, so

25 we could grant you some extension of time for that response, but we have

Page 5123

1 to bear in mind that we have to move fast. So how long do you think, Ms.

2 Sinatra, do you need for that response?

3 MS. SINATRA: Well, Your Honour, if the scheduling goes as planned

4 from the Prosecution's witness list, it seems that witness would testify

5 on December 19th, which is the last day before the Christmas break. If we

6 could have four or five days to file our motion after that time, we would

7 appreciate it, or we would be willing to work out some agreement with the

8 Prosecutor to put that witness up in front of some of the other witnesses

9 that they have listed so that it would not run into the Christmas

10 holidays. Either way, we would like three or four days after the witness

11 testifies to file our final response to the Prosecution's motion for

12 admission.

13 JUDGE LIU: Thank you very much. So I will give you five days to

14 file your response whenever this witness is going to testify.

15 MS. SINATRA: Thank you.

16 JUDGE LIU: But as I understand the Prosecution's case will be

17 finished after the Christmas recess, maybe in two or three weeks. I hope

18 that we could make the rulings before his case is finished.

19 MS. SINATRA: I'm sure that will be possible, Your Honour. We

20 will work expeditiously as possible.

21 JUDGE LIU: Thank you. As for the time allocated to your case,

22 we'll see the calendar to see whether there's any way out. Thank you.

23 Having said that, could we have the Witness, please.

24 Well, Mr. Karnavas, I got a new list of documents today.

25 [The witness entered court]

Page 5124

1 MR. KARNAVAS: It's short, isn't it?

2 JUDGE LIU: I'm not sure, I haven't looked at it.

3 MR. KARNAVAS: I can assure you, Mr. President, Your Honours, that

4 I will be finished perhaps even earlier than I had anticipated.

5 JUDGE LIU: Oh, thank you very much. That will make up the time

6 that the Jokic case lost.

7 Well, good morning, Witness.

8 THE WITNESS: Good morning, sir.

9 JUDGE LIU: Did you have a good rest during the weekend.

10 THE WITNESS: For as much as the weather allowed, I guess.

11 JUDGE LIU: Well, we'll try our best to send you back for

12 Thanksgiving.

13 THE WITNESS: I appreciate that, sir. But of course, I'm at the

14 disposal of the Court. If you need more time, I'm available.

15 JUDGE LIU: I'm not sure about that.

16 Mr. Karnavas.

17 MR. KARNAVAS: Thank you. Mr. President, Your Honours, good

18 morning.


20 Cross-examined by Mr. Karnavas: [Continued]

21 Q. Mr. Butler, I'd like to go back to Mr. Nikolic and discuss that a

22 little bit, kind of nail that down before we move forward. It's my

23 understanding that based on your assessment of the events, that on the

24 night of the 11th to the morning of the 12th, the VRS were under the

25 impression that in all likelihood the 28th Division would be somewhere in

Page 5125

1 the vicinity of the Bandera triangle. Is that correct?

2 A. Yes, sir, that is correct.

3 Q. And in fact, on page 4.384, you testified to that effect. And as

4 I understand it from your testimony, you also state that sweeping

5 operations or sweep operations began, and you used the bulk of the VRS

6 military forces -- began on the morning of the 12th, those sweep

7 operations. Is that correct?

8 A. Yes, sir, that is correct.

9 Q. And of course when they got there, the 28th Division wasn't there,

10 but nonetheless it would be fair to conclude that the VRS were in that

11 vicinity and therefore some of the units that Mr. Nikolic indicated were

12 at Potocari on the morning of the 12th could not have been there.

13 Correct?

14 A. Again, I'm not sure of the specific units that he mentioned;

15 however, certainly the elements of the Zvornik Brigade, the Birac Brigade,

16 the 2nd Romanija Brigade were actively sweeping the Bandera triangle on

17 the morning of the 12th, to the best of the knowledge that we have. I

18 don't believe any of the units of the 65 Protection Regiment were involved

19 in that sweep operation. At the same time, again, I have no evidence that

20 they were in Potocari either that morning.

21 Q. Okay. Well, have you had a chance before coming here today to

22 review his statement of facts and acceptance of responsibility, the one

23 that is dated -- I believe it was introduced as P82 in this case, and it

24 was, I believe, an annex to the plea agreement, and it's dated 6/5/2003.

25 Did you get a chance to look at that?

Page 5126

1 A. I believe I looked at the day it was signed and finalised. I

2 looked over the entire thing for the first time.

3 Q. Now, did you look at it as a matter of curiosity, or was it that

4 they showed it to you in order to get your impression as to whether or not

5 Mr. Nikolic was being accurate and, of course, it would follow, truthful

6 in his rendition of his participation, at least on that -- during the

7 events of -- after the fall of Srebrenica?

8 A. Well, to be clear, while that's the first time I saw the document

9 as a package, during the process where he was being interviewed, I was

10 party to meetings afterwards where the Prosecution attorneys would lay out

11 things that he said and ask me to go back and see if it was possible for

12 me to corroborate those issues or not.

13 Q. Okay.

14 A. So I was part of that process and so I think I can answer the

15 questions that are coming up on that.

16 Q. All right. Well, thank you, thank you -- I was inching to that,

17 but it would now appear that though you were not inside that room when

18 there were discussions with Mr. Nikolic which we have no tape-recording to

19 see what -- to hear what was said, what was asked and what was answered,

20 it appears now that you would get a debriefing on what he was -- what

21 Mr. Nikolic had said, and thus, they would run it by you to see whether

22 his account would be consistent with or supported by the evidence known by

23 you during the many years of your investigation in this case. Correct?

24 A. I wouldn't say consistent with. I would -- they would raise

25 issues, and as an issue of credibility they would ask me to go back and

Page 5127

1 see if I was able to corroborate those issues or not.

2 Q. Right. In other words, they would say: Nikolic has told us the

3 following, what do you think? Is there evidence that would support this?

4 Would this be accurate? And so on and so forth, that sort of line of

5 questioning. Correct?

6 A. Yes, sir, that's fair.

7 Q. And would there be any occasions during that period of time when

8 you might suggest a series of questions to the investigator and the

9 Prosecutors that were involved in that process to ask Mr. Nikolic to

10 expound on?

11 A. Yes, sir. And perhaps the best example would be of that was when

12 I was told by the investigator and Mr. McCloskey that Momir Nikolic had --

13 I don't know if the phrase is taken responsibility, but essentially he

14 told the investigators and the Prosecutor that he was involved in and

15 directed the Kravica warehouse massacre. I understood that from the body

16 of evidence that we had, that there was no evidence which would indicate

17 that. And I did sit down with the Prosecutor and the investigator in

18 question, and we laid out a series of questions that would be useful in

19 trying to determine whether or not he was being truthful in that regard.

20 Q. All right. And do you think whether those questions were raised,

21 and as a result of those questions that perhaps if we could call it a

22 confrontation, and by that, I mean the form of presenting him with any

23 evidence, that Mr. Nikolic came clean, as it were, or was it that

24 Mr. Nikolic on his own saw the errors of his ways, recognised his sins,

25 and then came forward to confess? Which of the two?

Page 5128

1 A. My understanding is that before we could be confronted on the

2 issue the next day or the next morning, that he in fact had recanted that

3 story. So, to my knowledge -- and, again, I wasn't there, but I have been

4 told that he had recanted prior to being questioned on the issue.

5 Q. Okay. So he pre-emptively struck and came up with the truth. But

6 nonetheless you were prepared at that point, you had armed the Prosecution

7 team with the questions and the evidence to confront Mr. Nikolic, because

8 in your opinion, with respect to those events, you were convinced that

9 there was no evidence that could or would support Nikolic's version. Is

10 that correct?

11 A. Notwithstanding some of the more colourful statements, I did

12 provide information to the Prosecutor and the investigators that would

13 allow them to question Mr. Nikolic and determine whether he was being

14 truthful on that issue.

15 Q. All right. Now, as I understand it, as I understand it, on Friday

16 you told us that -- I believe you used the word that there isn't evidence

17 to corroborate that portion of Nikolic's testimony regarding -- that is

18 the issue of the VRS units in Potocari on July 12th and 13th. And this

19 could be found, if you want us to go to it -- could be found on page 72,

20 lines 4 to 5, of the document that we received.

21 A. Well, just to be clear on that, the units that we're talking about

22 specifically are the 65th Protection Regiment, the Drina Wolves, and the

23 10th Diversionary. Those are the units we are discussing, correct?

24 Q. Those are the units we are discussing.

25 A. When you use the umbrella of VRS, that implies more and that's

Page 5129

1 just why I wanted to bring that up.

2 Q. All right. Okay. Now, I want to show you what has been marked as

3 P82 for identification purposes. And if you could look at it. I have an

4 extra copy here if you want to look at it --

5 A. Do you want me to put it on the ELMO, sir?

6 Q. It's up to you. I don't know whether you like to read it from the


8 A. It's actually easier reading it off of paper.

9 Q. If we could put the extra copy on the ELMO.

10 Now, if I could focus your attention to paragraph number 6, it

11 would be on page 2, it would be at the bottom of it. And it goes -- it

12 runs all the way into the next page by a couple of lines.

13 A. Yes, sir.

14 Q. Now, if we look at this paragraph, we see that he is talking about

15 coordinating with the Drina Wolves, correct, among others -- I'm not going

16 to read everybody, but the Drina Wolves. Correct?

17 A. Yes, sir.

18 Q. The 10th Sabotage Detachment. Correct?

19 A. Yes, sir.

20 Q. Elements of the 65th Protection Regiment, the military police.

21 Correct?

22 A. Yes, sir.

23 Q. All right. Now, we'll just focus on that for now. I don't

24 believe we will need the assistance any longer. Thank you.

25 Now, it would seem to me, it would seem to me, that if you were

Page 5130

1 able to identify that, at least with respect to Kravica, Mr. Nikolic was

2 confabulating, potentially, since you have no other evidence that would

3 support that, and since you've told us here that there is no evidence to

4 corroborate the portion of Nikolic's statement, that these particular VRS

5 units, that is, the Drina Wolves of the Zvornik Brigade, the 10th Sabotage

6 Detachment of the Main Staff, and elements of the 65 Protection Regiment

7 military police of the Main Staff, since there was no evidence to

8 corroborate it, did you bring this to the Prosecution's attention and then

9 provide them perhaps with some questions in order to smoke out, if you

10 will, Nikolic in order to provide some verification that indeed these

11 units were in Potocari on the 12th, the morning of the 12th, and that he

12 indeed did in fact coordinate these units among the other units that had

13 been there?

14 A. Yes, sir. In this particular respect I do recall raising the

15 issue. The Prosecution is well aware that we have no evidence with

16 respect of these issues. I understand that he was confronted on the

17 general subject of this, and this remains his story. So we -- certainly I

18 understand that there is nothing that could corroborate these parts of his

19 statement.

20 Q. All right. Might I ask why is it that there is nothing -- that no

21 supplemental was prepared by you with respect to perhaps your narration,

22 and there was no mention by you in your direct examination that at least

23 with respect to this portion of Nikolic's testimony, there no evidence to

24 support it. Might I ask why this was never mentioned by you.

25 A. Well, Mr. Karnavas, as I've indicated a number of times, my

Page 5131

1 narrative is not something where I include the issues of witness

2 testimony. It was, however, discussed. The Prosecution -- you know,

3 obviously we knew Momir Nikolic would be testifying before this Trial

4 Chamber. And the Prosecutor was well aware of the fact that you may well

5 be cross-examining me on issues of Momir Nikolic's credibility. And he

6 knew what I would say in that regard. So I don't know that there's a

7 problem and I don't know that that was something, given the fact that the

8 individual had testified, that was required for me to do on my direct

9 examination.

10 Q. Well -- let me take a deep breath at this point.

11 A. Okay.

12 Q. Don't you think it would have been part of your duty as an analyst

13 to point out to the Honourable Members of this Trial Chamber, that at

14 least with respect to the star witness of the Prosecution on this

15 particular issue with respect to coordination, which was hotly contested

16 during the cross-examination of Mr. Nikolic, that you had a duty, a

17 fundamental duty, to come forward and say: With respect to this portion

18 of Nikolic's testimony, I cannot find any corroborating evidence. Don't

19 you think that you had that duty?

20 A. No, sir, I don't. And if that, in fact, is going to be an implied

21 duty, we might be here an awful long time as I go through each and every

22 witness determining where I can and cannot corroborate their story.

23 Again, the purpose of my being forward as an analyst for the Office of the

24 Prosecutor in this respect is to provide context behind the documents and

25 the intercepts, not to pass value judgements as to whether or not I

Page 5132

1 believe or whether or not I can corroborate witnesses who have testified

2 before the Trial Chamber. Obviously when I'm asked that question, I will

3 offer an opinion, but that is not something that is envisioned by me as a

4 primary duty.

5 Q. All right. I'm going to skip forward a little bit. I wasn't

6 going to get there until the end, but I think I'm just going to have to

7 get there a little bit sooner just for the point of raising it. On

8 Friday, sir, we heard a speech by you with respect to how conservative and

9 fair-minded you were, this can be found on page 30 to 31, line 16 to line

10 5. Now you indicated, as you said, that as a military man you had more in

11 common with the accused here and therefore you wanted to be, and you

12 strive to be, conservative and fair in analysing documents.

13 Can we not conclude from that little statement of yours that by

14 that which is -- what you were trying to tell us is that when in doubt,

15 the doubt would -- the accused would have the benefit of it, when in doubt

16 in analysing documents. Correct?

17 A. Yes, sir, I would analyse them as conservatively as possible, that

18 is correct.

19 Q. Do you not think that you as an analyst, the fact that you have

20 been working on this case for five to six years, the fact that you have

21 questioned many, many witnesses in the field, the fact that you've had at

22 your disposal all of the evidence, all of the disclosure material that has

23 been available to the Prosecution, the fact that you have been sitting and

24 strategising with the Prosecution, do you think that providing that

25 information openly, fairly, reasonably to this Tribunal would have been -

Page 5133

1 not to the Defence, but at least to the Tribunal - would have been

2 necessary as part of your duty to provide exculpatory information, not

3 merely inculpatory information?

4 A. If I understand your question correctly, the question is with

5 respect to -- is it my obligation to go through Prosecution witnesses and

6 witness statements, highlighting the issues where I can either corroborate

7 their story or I believe they're being untruthful, and that as a component

8 of my Rule 68, pass them to Defence, or basically pass them to the

9 Prosecution to pass to Defence. That's the question, I believe, correct?

10 Q. That is the question, but also a component of that question is in

11 informing the Honourable Members of this Trial Chamber, that with respect

12 to this portion of the testimony on a hotly contested issue, because we've

13 been talking about whose responsibility these people -- these prisoners

14 and refugees were, do you not think you had an obligation to say:

15 However, there is one portion of the testimony of Momir Nikolic, a portion

16 that was in his statement of facts and his acceptance of responsibility,

17 that I as an analyst cannot and will not adopt because there is no

18 evidence to corroborate that portion of his testimony. Do you not think

19 you had an obligation?

20 JUDGE LIU: Yes, Mr. McCloskey.

21 MR. McCLOSKEY: Objection. There is -- Mr. Butler is under no

22 duty to adopt Mr. Nikolic's testimony, which his counsel is suggesting by

23 his question. This is getting into repetition upon repetition, and it's

24 becoming argumentative.

25 JUDGE LIU: Yes, Mr. Karnavas, I understand that your question has

Page 5134

1 a point, but it's really a repetitive question. You have asked this

2 question again.

3 MR. KARNAVAS: I'm not getting a sufficient answer; that's the

4 problem, Your Honour.

5 JUDGE LIU: Well, it happens.

6 MR. KARNAVAS: It does. It does. Trial and error, I guess.

7 Q. Well, let me -- I don't want to move on too far off this subject

8 before I cover one other point. Did you get a chance, did you get a

9 chance, to listen to the Prosecutor's statement during Nikolic's

10 sentencing hearing?

11 A. I don't recall, sir.

12 Q. All right.

13 A. I don't know that I did.

14 Q. Well, with respect to this particular issue, he states, and I

15 quote, it's on day -- it's on page -- I can provide a copy to everyone.

16 It's on page 18, if we could have it. If we could put -- if you could

17 locate -- it's kind of hard to find the pages, but if you could go to

18 page, I believe it would be 18, page 18. And I'll read from line 2. It

19 states: "The task of understanding Potocari, what happened there, the

20 units that were involved, is made so much clearer by Mr. Nikolic's

21 testimony because we know what happened. We know from the" -- and then it

22 goes on.

23 Now, this portion of that statement would seem to contradict what

24 you've indicated to us, and that is that it's not made clearer because

25 certain portions of Mr. Nikolic's testimony with respect to the units

Page 5135

1 involved in Potocari on that particular day, there is no evidence to

2 corroborate it. Correct?

3 A. Yes, sir, that is correct. There is no evidence to corroborate

4 it.

5 Q. So it's not made clearer, is it?

6 A. I don't know whether it is or not. That will be up to the Trial

7 Chamber.

8 Q. All right.

9 A. I mean, I understand that in many cases Mr. Nikolic's statement

10 and testimony certainly isn't as complete as I would personally like to

11 see it, and it is my understanding that at the end of the day with

12 Mr. Nikolic that the Prosecutor is only going to ask the Court to believe

13 that which we can corroborate for it.

14 Q. All right.

15 A. So how much or how little clearer it gets is a very subjective

16 opinion, sir, and I agree with you.

17 Q. All right. But you -- I'm going to move on. I'll resist asking

18 that question.

19 Then if we go on to line 8 and 9, and Mr. McCloskey --: "We now

20 know without a shadow of a doubt what happened there. This is very

21 valuable."

22 Now, we don't know without a shadow of a doubt what happened

23 there, at least not as a result of Mr. Nikolic's testimony, because as you

24 indicated there is no evidence to corroborate his version of the events

25 that he -- that certain VRS units were there, and that he was coordinating

Page 5136

1 them.

2 JUDGE LIU: Mr. McCloskey.

3 MR. McCLOSKEY: Your Honour, if we're going to put me on trial,

4 can we have the entire statement put in evidence, and I don't understand

5 the relevance of this. I know particularly what I meant. It's being

6 taken out of context, and I don't really understand the relevance of

7 taking argument by counsel. And if it's going to be allowed, the entire

8 context should be allowed in.

9 MR. KARNAVAS: I agree -- totally agree with Mr. McCloskey. I

10 would move to have the entire statement from the sentencing hearing moved

11 into the record for this particular case, Your Honour. I 100 per cent

12 absolutely agree with that. And my intention is not to take anything out

13 of context, but merely to point out: Here is an instance where perhaps

14 there was an obligation on the part of the Prosecution to at least point

15 out that there might be some problems with Mr. Nikolic, as opposed to

16 adopting it, which in fact shows that's what they did.

17 JUDGE LIU: Yes, Mr. McCloskey.

18 MR. McCLOSKEY: I don't see the linkage between putting me on

19 trial and a duty. We have not been able to corroborate everything that

20 Mr. Nikolic has said. That's very clear. We can't corroborate everything

21 all our witnesses have said. That's very clear. Mr. Butler can certainly

22 be cross-examined on all those points. But putting a counsel's statement

23 at a sentencing hearing into evidence is certainly not relevant. And if

24 counsel thinks it's relevant, fine. I have a lot I can say on that point,

25 but ...

Page 5137

1 JUDGE LIU: Mr. Karnavas, I think you have already made your

2 point. It's quite clear.

3 MR. KARNAVAS: I'm moving on, Your Honour.

4 JUDGE LIU: I hope you not submit this opening statement into the

5 evidence.

6 MR. KARNAVAS: Well, if the Court does not wish to have it, then

7 that's fine.

8 JUDGE LIU: Because is point is very clear here in the transcript.

9 MR. KARNAVAS: Your Honour --

10 JUDGE LIU: There is no need for you to submit it into the

11 evidence, this is first. Secondly, well, it's a very rare practice to put

12 an opening statement into the evidence.

13 MR. KARNAVAS: Very well, Your Honour. Very well.

14 JUDGE LIU: You may move on.

15 MR. KARNAVAS: Yes, I'm moving on.

16 Q. But while I'm still with Mr. Nikolic, one other issue that I think

17 we need no cover with respect to this, this issue of the units. He also

18 talks that there were units, VRS, military police units over there, does

19 he not?

20 A. Yes, sir, he did.

21 Q. Drina Corps, he says corps military units, and then also he talks

22 about MUP being over there, and specifically Mr. Jevic, Stalin aka Stalin?

23 A. Yes, sir.

24 Q. Okay. Now, it would seem to me, if we follow the reasoning, that

25 if there's no evidence to corroborate that at least some of those units

Page 5138

1 were there, we might be able to say that there is no evidence to

2 corroborate that Mr. Nikolic ever received any orders from Colonel

3 Jankovic on the morning of the 12th while he was in front of the

4 Hotel Fontana to go and coordinate certain units. Correct?

5 MR. McCLOSKEY: Objection, Your Honour.


7 MR. McCLOSKEY: This is again argument for the credibility of

8 Mr. Nikolic, which is the Court's -- it's the Court's duty. It is a fine

9 argument to make, but this is not relevant to this Witness. If he has

10 particular facts, figures, documents, fine, but this is a credibility

11 argument, which is a fine credibility argument, but there is not the

12 proper witness for that.

13 JUDGE LIU: But we believe Mr. Karnavas has the might to make sure

14 which units were present at that time.

15 Maybe you could put your question in another way.

16 MR. KARNAVAS: I'll rephrase it, Your Honour.

17 Q. Okay. According to Mr. Nikolic, there are units there from the

18 Main Staff. Correct?

19 A. Yes, sir.

20 Q. There are units there from the corps. Correct?

21 A. Yes, sir.

22 Q. He says that there are units there from the Bratunac Brigade.

23 Correct?

24 A. Yes, sir.

25 Q. And then he also says that there are civilian units from MUP?

Page 5139

1 A. Yes, sir.

2 Q. Okay. Now, we know, do we not, that Momir Nikolic is a captain in

3 the Bratunac Brigade. Correct?

4 A. Yes, sir, that's correct.

5 Q. Now, we talked a little bit on Friday about a couple of concepts

6 regarding the unity of command and function of relationships. Do you

7 recall that?

8 A. Yes, sir, that is correct.

9 Q. Now, Colonel Jankovic is with the Main Staff, is he not?

10 A. Yes, sir.

11 Q. Now, I take it you've had an opportunity to read Mr. Nikolic's

12 statement of facts and also to read his testimony when he testified in

13 this case, have you not?

14 A. With respect to the issue of Colonel Jankovic, yes, sir.

15 Q. Okay. And it would seem to me -- well, here is a captain of a

16 brigade being ordered by the Main Staff to go and coordinate, issue orders

17 to a certain extent, to higher echelon units, is he not?

18 A. Yes, sir.

19 Q. All right. Now, that certainly is not in keeping with the

20 principle of unity of command, is it?

21 A. No, sir, it's not.

22 Q. And would you not also agree with me that it's not even -- it's

23 not in keeping with the concept of functional relationships as we

24 understand it and as we analyse it in accordance with the rules?

25 A. That is correct, sir.

Page 5140

1 Q. All right. So did that bother you at all? When you read that,

2 did you scratch your head a little bit and say, you know, something just

3 doesn't seem right. How could this captain, not even first class, in

4 their terms - that is, first class in ours - how could he be given an oral

5 task to go to Potocari and to give orders to higher-echelon officers from

6 the Main Staff and the Drina Corps as well as MUP? How is that possible?

7 Did it raise a red flag, as they say?

8 A. Well, there are two questions here, so let me answer them in turn.

9 The first question is: Yes, I was -- it did raise at least a professional

10 interest on my part with this respect. And the problem, of course, that I

11 have is I have no information that would confirm or deny this. There's

12 nothing in the documents or the intercepts which would allow me to

13 corroborate that portion of his story.

14 As to the second question, the only way I believe that the

15 relationships or the order process that you described can occur, is if the

16 fact that all of the commanders in question had been informed exactly what

17 the plan would be and that Captain Nikolic, Captain First Class Nikolic

18 would be the person who would be coordinating to make sure that all the

19 actions worked.

20 Q. Okay.

21 A. But like I said, going back to the first part of your question

22 which I think is the most important part of it, is that I have no evidence

23 one way or another that could confirm or deny that series of his

24 testimony.

25 Q. Okay. Now, I want to go back -- I want to go to the second part

Page 5141

1 of your answer, because you said that they would have to have a meeting,

2 they would have to know that Nikolic is in charge. Can we also throw into

3 the mix that it would be incumbent upon Mr. Nikolic to also know what each

4 of these units was tasked to do?

5 A. Yes, sir, for that to work, he would have to know that.

6 Q. Okay. Now, we don't find that in his testimony, do we, that he

7 actually knew what they had been tasked to do. We don't find that. Do

8 you recall reading that?

9 A. No, sir, I don't.

10 Q. Okay. If it were in the transcript, and I can dig it up, and if

11 it were and you're willing to trust me that it is in the transcript, would

12 that give you some further pause as to perhaps what Nikolic is telling us,

13 given his rank and given the fact that we know that there is no evidence

14 with respect to some of the units and all the other things that we know

15 was happening, can we reach some kind of conclusion that in all

16 probability, perhaps even a very high probability, that what Mr. Nikolic

17 is telling us about his role as a coordinator in Potocari is

18 unsubstantiated by the weight of the evidence?

19 A. The issue of his role as a coordinator is unsubstantiated with

20 respect to the documents and the intercepts. Whether or not

21 substantiation is derived by the video or what little video evidence we

22 have of that is an open question; my opinion is that it is not. We know

23 that there are some events that occurred prior that, for example, at 8.00

24 in the morning on the 12th, there was a meeting between Mladic, Krstic,

25 presumably other army principals, and representatives of the MUP. And we

Page 5142

1 don't know all of the details that were discussed at that meeting. So we

2 are dealing with a lot of unknowns, and because of that we don't have the

3 ability -- or certainly I don't have the ability to corroborate that.

4 Q. All right. Now, you would agree with me that the task of

5 coordinating all of these particular units, given the events on the

6 ground, was rather a significant role, a significant task. Correct?

7 A. Yes, sir.

8 Q. All right. And does it not trouble you that not only do we not

9 have any corroborating evidence, but Mr. Nikolic indicates that he is told

10 of this order, or he's given this order by Jankovic orally outside the

11 Hotel Fontana. Doesn't that piece of evidence, piece of his testimony,

12 doesn't that give you pause into thinking that perhaps Mr. Nikolic is

13 confabulating here also?

14 MR. McCLOSKEY: Objection, Your Honour. That is a massive

15 misstatement of the evidence. There is tremendous amount of evidence on

16 the record. I won't go into it all, but Mr. Nikolic was coordinating from

17 the DutchBat, from the Muslims, from the Serbs that have testified. For

18 Mr. Karnavas to say there is no support that he was coordinating is

19 absolutely absurd and a misstatement of the evidence.

20 JUDGE LIU: Well, Mr. Karnavas, I believe that the Witness already

21 told us that he has no evidence to confirm that piece of the evidence.

22 Also, there is no evidence for him to deny that.

23 MR. KARNAVAS: Very well, Your Honour.

24 JUDGE LIU: I don't think it could get very far on that point, but

25 your point has already been made.

Page 5143

1 MR. KARNAVAS: Your Honour, I will no respond to the Prosecution

2 and I don't want the record to reflect that I'm acquiescing to his account

3 to his objection. The fact that I'm -- I just want to save time and move

4 on, so rather than argue the point.

5 Q. Okay. Why don't we move on to another topic. Let's talk about

6 the Cerska incident. And as I recollect your testimony on this particular

7 case, you had indicated to us that this was perhaps the -- that you had an

8 intercept that you believed specifically related to the beginning of the

9 organised mass execution process. Do you recall stating that?

10 A. Yes, sir. I believe that the Cerska Valley execution was the

11 first visible manifestation of the organised mass execution process, and

12 we have two intercepts several hours apart, which I believe are related to

13 that.

14 Q. Okay. Now, let me show you now a portion of your testimony, just

15 so you have it handy there. It's pages -- we'll start with page 4463. It

16 dates Thursday, 13 November 2003. I'm not going to read it all, so

17 there's no need to get alarmed. But you will see from page 3 -- do we

18 have one for the ELMO?

19 A. I can put this one on the ELMO, sir, that's fine.

20 Q. We have an extra one for the ELMO. We will see that you're being

21 shown Exhibit 208 and it states there that there is an intercept, I

22 believe, dated on the 13th, and it reflects that it was 1355, which would

23 mean 5 minutes before 2.00 in the afternoon. Correct?

24 A. Yes, sir.

25 Q. And I believe this is the exhibit that you're telling us is the

Page 5144

1 first intercept that at least -- it's the first indication or is

2 indicative of the beginning of the organised mass execution process.

3 Correct?

4 A. That is related to it, yes, sir.

5 Q. And in this particular intercept, you noted that it was

6 Colonel Milanovic who was making an inquiry from Palma regarding the

7 availability of a bulldozer. Correct?

8 A. He was making it to Palma.

9 Q. To Palma, right, regarding the availability of a bulldozer.

10 Right?

11 A. Yes, sir, or bucket loader, or earth-moving machine. Yes.

12 Q. Then you indicate that this particular piece of corresponds,

13 corresponds, I'm underscoring that, to the testimony you believe is before

14 the Court with respect to the mass execution which occurred in the

15 Cerska Valley area at approximately 1.00 on the 13th, 1995. Correct?

16 A. Yes, sir, that is correct.

17 Q. All right. Now here you say 1.00, 1300. Now, I would like to

18 show you a portion of the transcript where the particular witness

19 testified in the Krstic case. And I'm referring to page 2737; it's dated

20 Wednesday, 12 April 2000. The witness is identified as Witness M.

21 A. Okay. Got it.

22 Q. And -- now, do you recall seeing this at any particular point in

23 time, seeing this or being aware of it?

24 A. Yes, sir. This is the testimony I'm talking about.

25 Q. All right. Now, it says -- he says that it was the 13th of July.

Page 5145

1 And then he says on line 3: "It was about 2.00 in the afternoon and I

2 noticed trucks and buses passing by, moving from Konjevic Polje towards

3 Nova Kasaba."

4 Correct?

5 A. Yes, sir.

6 Q. That is -- just to stop there before we go any further, that would

7 be slightly different from the 1300 hours that you have. This is 1400

8 hours that he's talking about. Correct?

9 A. Yes, sir. I'm one hour off.

10 Q. You're one hour off, although we know from the intercept that you

11 referred to earlier, Exhibit 208, that that is 1355, which is closer to,

12 at least this point in time when the gentleman indicates that he sees

13 buses passing by moving towards Konjevic Polje. Correct?

14 A. Yes, sir.

15 Q. All right. And then he describes who he was with and that at some

16 point the buses, the two buses, you know, took a turn off the asphalt

17 road. Correct?

18 A. Yes, sir.

19 Q. All right. And then that -- further down he indicates that there

20 was an APC following them. And that on line 18 he says: "Maybe five or

21 ten minutes after that, a yellow backhoe started out in the same direction

22 and I could watch it travel as well and at that point, we could only hear

23 fire of small firearms."

24 Correct?

25 A. Yes, sir.

Page 5146

1 Q. So if we were to analyse this and maybe synthesise it, it would

2 appear that based on the gentleman's testimony back on 12 April 2000, it

3 is his recollection that it was approximately 2.00 and that sometime after

4 five or ten minutes of seeing the buses, which would place it somewhere

5 around 2.05, 2.10, 2.15, maybe slightly later, 2.20, whatever, somewhere

6 around that vicinity, but no more than five or ten minutes after seeing

7 the buses is when he sees the backhoe. Correct?

8 A. Yes, sir.

9 Q. So here we have, here we have, at least with Exhibit 202, we have

10 Milanovic, Colonel Milanovic asking, asking for a bulldozer just about the

11 same time that this gentleman sees the buses veer off. Correct?

12 A. Yes, sir.

13 Q. Now, how far is Palma duty station to Konjevic Polje or to this

14 area, to this area where they need to get the bulldozer to?

15 A. Roughly 15 to 20 kilometres.

16 Q. Okay. And how long would it take, how long would it take, given

17 the conditions of the road, what was happening, and the speed that one of

18 these vehicles would travel, how long would it take for them to get to

19 that location?

20 A. Well, that's the problem, sir. I don't know the speed that they

21 would travel, so I couldn't speculate on that.

22 Q. All right.

23 A. But I will -- give or take an hour, an hour and a half.

24 Q. Okay. I take it since you're speculating with us, and I don't

25 have any reasons to doubt that you're in a ballpark figure, this was a

Page 5147

1 question that was never asked.

2 A. Which question?

3 Q. The one that I just asked you: How long would it take for a

4 bulldozer to get from point A to point B, in other words from the Palma

5 area where the request is being made to the area where the buses have

6 veered off.

7 A. No, sir, that is correct, because with the intercept indicating

8 that the equipment was not available, that kind of negated a path of

9 investigation which would be how long to get from point A to point B.

10 Q. Okay. Would it be fair to say that at least with respect to these

11 two -- with what we've just seen, that it's not quite as clear as you may

12 imply it to be, in other words here we are five minutes before 2.00 a

13 request is made. 2.00 a gentleman sees the buses. Five to ten minutes

14 later he sees the backhoe. Would you say that there is a disconnect with

15 respect to these two pieces of evidence?

16 A. No, I wouldn't say there is a disconnect at all.

17 Q. Okay. All right. Now, you indicated, you indicated, that there

18 was another piece of evidence, another intercept, that further assisted

19 you - and I believe it might be on another page - that further assisted

20 you in your analysis.

21 A. I believe that's back to P459.

22 Q. P45 -- right -- well, hold on.

23 A. Is this the portion of the transcript you're talking about?

24 Q. If you look at the transcript, I believe it's P211.

25 A. Okay.

Page 5148

1 Q. On the transcript we see it's page 4466.

2 A. I think I have it up here.

3 Q. All right. And here we have the same gentleman,

4 Colonel Milanovic, making a request - this is on P211 - for an excavator

5 or a bulldozer. Correct?

6 A. Yes, sir.

7 Q. And now the time, now the time, is 1553. So that would be around

8 3.53 in the afternoon. Correct?

9 A. Yes, sir.

10 Q. Close to two hours, close to two hours, after the initial request

11 and after the gentleman who had been the eyewitness to this event says

12 that he saw the truck -- the buses veer off the road. Correct?

13 A. Yes, sir.

14 Q. And yet it would appear, would it not, that Colonel Milanovic is

15 still looking for that bulldozer or excavator that he had requested two

16 hours earlier. Correct?

17 A. Yes, sir.

18 Q. And so it would appear -- now, if we take this into consideration,

19 this piece of evidence into consideration, along with the eyewitness

20 account, assuming that that is accurate, in other words that the date is

21 accurate -- and incidentally we have no corroborating evidence that that

22 date is accurate - that is the 13th - that perhaps he didn't see it on the

23 14th or the 15th?

24 A. No, sir. What the witness says is what he says, and we can't

25 corroborate that, yes, sir.

Page 5149

1 Q. And in fact when the bodies were exhumed from those graves, there

2 was no way to corroborate what exactly, the exact date that they had been

3 killed?

4 A. With respect to the exhumation process, that's correct. I'm -- I

5 seem to recall that there were additional witness statements which

6 indicate people passing over that grave site, which they may have used as

7 a way to time when the grave was installed. So I'm unclear on that but I

8 think there is some other information with respect to when we believe the

9 grave was created.

10 Q. Okay. But I guess what I'm getting at, there is a possibility,

11 given that we don't have any other evidence, other than this gentleman's

12 testimony, that the date could have been the 14th as opposed to the 13th

13 or the 15th. Correct?

14 A. There is that possibility, yes, sir.

15 Q. All right. Now, if we look at, if we look at, these two

16 intercepts plus the gentleman's testimony, it would seem that it raises

17 some questions, does it not?

18 A. Yes, sir.

19 Q. So I guess what I'm asking is: It would appear that you may wish

20 to somewhat qualify your earlier position and that this particular

21 intercept, the one that I first showed you which was P208, is really not

22 as conclusive in determining, in determining, the beginning of the

23 organised mass execution process. Correct?

24 A. I don't know understand what you mean by conclusive. My comment

25 was that this is the first piece of evidence that we have, notwithstanding

Page 5150

1 witness testimony, of the beginning of the mass execution process.

2 Q. All right.

3 A. I believe that's true.

4 Q. All right. Now, assuming, assuming, because that's why I asked

5 you, is it possible that this gentleman was wrong, since we don't have any

6 corroborating evidence, that this gentleman was wrong and the execution

7 actually took place on the 14th, then would it not follow that this

8 incident would not have been the beginning of the organised mass execution

9 process, and perhaps another incident further down in time or maybe even

10 earlier might have been the beginning of the organised mass execution

11 process?

12 A. Well, there's two pieces to that. First, working on your

13 assumption and perhaps where maybe there's some confusion in correlating

14 the two, I never assumed that with respect to the particular witness that

15 the one piece of earth-moving equipment that he described was the only one

16 that everyone was looking for. The general pattern with the grave sites

17 that we have is that it was multiple pieces of equipment. So I always

18 hold open the possibility -- and I believe it is exactly what had happened

19 in this case is that they were looking for additional equipment because

20 they needed more for the grave.

21 Now, for your second piece, clearly if the witness is mistaken on

22 the date and it is, in fact, the 14th or the - excuse me - or the 15th,

23 then certainly you're correct, that wouldn't be the first manifestation of

24 the mass execution process.

25 Q. All right. And I guess the bottom line is at this point in time

Page 5151

1 is that there is insufficient evidence to make a -- to form a conclusion

2 as to whether it happened on the 13th or the 14th or the 15th or even as

3 late as the 16th?

4 JUDGE LIU: Yes, Mr. McCloskey.

5 MR. McCLOSKEY: Again, that is a legal argument calling for a

6 legal conclusion.

7 JUDGE LIU: Yes, I agree with you.

8 MR. KARNAVAS: I'll move on, Your Honour.

9 JUDGE LIU: Well, it's time for a break.

10 MR. KARNAVAS: Okay. Very well.

11 JUDGE LIU: Did you finish that --

12 MR. KARNAVAS: I just have -- it may get a little messy, so we'll

13 save it for after the break. I'll regroup so I can streamline.

14 JUDGE LIU: Yes. Well, we'll have a break and we'll resume at 10

15 minutes to 11.00.

16 --- Recess taken at 10.25 a.m.

17 --- On resuming at 10.52 a.m.

18 JUDGE LIU: Yes, Mr. Karnavas, please continue.

19 MR. KARNAVAS: Thank you, Mr. President, Your Honours.

20 Q. Now, Mr. Butler, we were on the Cerska incident when we left off,

21 and we were discussing the issue of this -- of these two intercepts where

22 Colonel Milanovic is asking for a bulldozer. Now, were you aware of that

23 the Prosecution brought forward a witness who goes by P140? Were you

24 aware of that?

25 A. The number in abstract doesn't mean anything to me. I would have

Page 5152

1 to have a bit of a description of the witness of what he said.

2 Q. You're like me. This was a gentleman that apparently was asked to

3 participate in the burying of the bodies in Glogova on the 11th and the

4 12th -- or the 12th and the 13th. Correct?

5 A. Yes, sir, now I know who you're talking about.

6 Q. Okay. And in fact he indicated sometime in the middle of the

7 night on the 13th, someone whom he believed was from Sarajevo because of

8 the accent came and asked him to go to Kravica, but it wasn't until the

9 following day that he set off. That's the same person that we're talking

10 about. Correct?

11 A. Yes, sir.

12 Q. All right. Now, he had indicated that he spent the -- those -- I

13 believe it was the 12th, 13th or the 11th, 12th, and 13th, one, first

14 burying the bodies of the Serb soldiers, and then secondly, I believe it

15 was for the 12th and 13th, he was burying bodies who he thought were --

16 had been out there decomposing for three or four days. And these would

17 have been bodies of Muslim soldiers or Muslim men. Do you recall that?

18 A. I believe that is his testimony, sir, yes.

19 Q. And given where -- and I believe in Glogova where he was doing

20 this sort of work at that time?

21 A. I'm sorry -- with respect to burying the bodies of the Bosnian

22 Muslims?

23 Q. Yes.

24 A. I believe he says that he started creating the grave -- I want to

25 be sure on this one. I believe he says he started creating the grave on

Page 5153

1 the 13th, and then he was -- he started creating the open -- the hole on

2 the 13th and then he was taken to the warehouse on the 14th.

3 Q. All right.

4 A. I think -- I don't want to misstate his evidence, obviously. I

5 think that's the way it was, though.

6 Q. Well, his testimony was on page -- with respect to this particular

7 issue goes from page 3.407 and it's not until 3.418 that he indicates that

8 the bodies that he was asked to bury on that particular day or days seemed

9 to him to be about three or four days decomposing and infection was

10 spreading, so he had to bury them as soon as possible. And this could be

11 found on lines 6 to 8.

12 My question, however, is this: In light of this activity, is it

13 possible, and in light of what we know from this gentleman who was called

14 by the Prosecution and of course his account that these bodies had been

15 out there for three or four days, or as much as three or four days and

16 that they were decomposing and infection was spreading, is it possible or

17 is it not possible that Colonel Milanovic might have been calling for a

18 bulldozer to assist this particular gentleman with that particular task.

19 Is that not within the range of possibilities, particularly since we have

20 him making a request at 2.00 in the afternoon, or five minutes to 2.00,

21 and then again two hours later?

22 A. No, sir, I believe it is because I don't think that the timing

23 issue works. I could explain that in detail, if you want, but I just

24 don't think the timing synchronises on that. Again, the problem is, to

25 our knowledge, significant -- where you would find bodies of Bosnian

Page 5154

1 Muslims on those early days. Certainly there were bodies of Bosnian

2 Muslims in Srebrenica town on the 11th and 12th. There would be

3 presumably some in and around Potocari. The column did not start to come

4 into significant contact until the 12th and 13th. The only bodies that

5 were showing up on the road where they could be retrieved were those from

6 later on in the afternoon of the 13th, at least according to what the

7 witnesses have testified to. So other than Bosnian Muslims who had been

8 killed in Potocari, I don't know of another group. My understanding is

9 they didn't start removing the dead bodies out of Srebrenica until almost

10 the 15th or 16th. That's the problem I have. I just don't think the

11 timing of where we have large groups of bodies synchronises with that

12 conclusion.

13 Q. All right. Now are you making any particular conclusion as to

14 whether this gentleman, or witness P140 called by the Prosecution was

15 being truthful on this particular matter?

16 A. Whether he's truthful or not, it's not for me to say. However,

17 I've had some issues with respect to what he's testified. And for

18 example, to my knowledge no soldiers of the Bratunac Brigade were killed

19 with respect to the takedown of Srebrenica. The question that raises in

20 my mind is that who is he burying on 12 July 1995, because my

21 understanding of the customs at the time were if soldiers from other units

22 were going to be buried, they would be brought to their home villages and

23 buried there. They would not be buried in Bratunac. So there are a lot

24 of issues that raise questions with me, and one of the things that I

25 always do have to try and keep into account is that many of these people

Page 5155

1 are recalling events that occurred five and six years ago, and there may

2 be day-off periods.

3 Q. Okay. Now, earlier there was one question I asked you and you

4 made a -- you took a stab at it, and that was with respect to how long it

5 would take the bulldozer to go from the Palma area to where it was being

6 requested by Colonel Milanovic, and I believe you said an hour and a half,

7 an hour to an hour and a half.

8 A. I assume that's a wheeled one. I mean, it may be the same. I

9 don't know what it would take if it was a tracked one. They would

10 probably obviously want to put it on a flatbed, rather than run it on its

11 tracks.

12 Q. Just for comparative purposes, if I could -- the gentleman here,

13 P140, I can provide you with the statement or I can just read it into the

14 record, lines 4 to 7, he stated: "It would have taken us," meaning him and

15 his colleague, "at least one and a half hours, up to two hours, to reach

16 Kravica," that is, from where -- from Bratunac to Kravica that's where

17 he's talking about. Now --

18 A. If he's crawling on tracks on its own power, that's probably

19 reasonable.

20 Q. Okay. Now, would you agree with me that between Bratunac and

21 Kravica, the distance is much shorter, or shorter, than between -- the

22 area where Colonel Milanovic is requesting these bulldozers to come to

23 from Palma?

24 A. Yes, sir, that's correct.

25 Q. Okay. How much of a difference would that be?

Page 5156

1 A. Probably about 14 kilometres. I'm thinking it's about 9 from

2 Bratunac to Kravica, it may be less. I said 20, so probably -- certainly

3 10 to 15. Let's put it in a ballpark range there.

4 Q. So if it would take one to one and a half -- one and a half hours

5 up to two hours from Bratunac to Kravica, would it take perhaps anywhere

6 from three to four hours if it was coming from Palma all the way to where

7 it was being requested by Colonel Milanovic? Would that be a fair

8 estimation?

9 A. Again, Mr. Karnavas, the unknown variable is, one, whether we're

10 talking a wheeled vehicle. And they did have wheeled engineer equipment.

11 If we're talking a tracked vehicle, that would be a fair one. If it was a

12 tracked vehicle that came on a flatbed, it might not be valid. So it is

13 all dependent upon the vehicle and the mode by which they want to do it

14 by. That's why I was always reluctant to do that. There are too many

15 variables in your equation to make an answer on that.

16 Q. All right. Thank you. Now, if we could move to another subject.

17 I want to talk to you a little bit about Kravica. Now, you've testified

18 with respect to Kravica and you have indicated that it's your

19 understanding that the incident that occurred there would have taken place

20 sometime around 5.00 in the afternoon. Correct?

21 A. Yes, sir, that is what the witness accounts, or the survivor

22 accounts in this instance claim.

23 Q. Is that survivor singular or is that survivors plural?

24 A. I believe it's the two survivors, and I believe the range, time,

25 that they give is between 1600 and 1800.

Page 5157

1 Q. Okay. If I could show you, just so we can have some precision

2 here, a thing that we strive for in this courtroom, page 4483 of the

3 transcript. If I could give that to you. I if could have the assistance

4 of Madam Usher. Thank you. And this was an Thursday, 13 November 2003.

5 Just for contextual purposes, on line 20 to 21, you were asked about a

6 particular exhibit, Exhibit 220. Do you -- Mr. Butler, if you would like

7 to have an extra copy, we have one here for your convenience.

8 A. I believe I know what that is.

9 Q. All right. So here you're asked about Exhibit 220, and then you

10 begin to answer that it's a conversation between Krstic and Borovcanin.

11 Correct?

12 A. Yes, sir.

13 Q. Now, if we go into the next page -- that was just for context. If

14 we go on to the next page, you are asked, you are asked - and this would

15 be page 4484 of the record - you're asked a question on line 17 and it

16 states: "And at 2040 hours on 13 July, would that have been anywhere here

17 the time the Kravica warehouse killings?"

18 And you answer, same page, line 19: "This conversation would be

19 occurring approximately three hours, three and a half hours from the

20 beginning of the executions. And if survivor accounts are accurate,

21 approximately an hour after the last of the series of shootings."

22 Now, do you recall giving us that answer, sir?

23 A. Yes, sir.

24 Q. Okay. So if we were to work it backwards, then it would appear

25 that your understanding is based on at least the testimony of one of the

Page 5158

1 survivors, correct, as far as when the shooting began?

2 A. My testimony is based on what I believe both of the survivors, or

3 the range that they give, as well as the -- I believe there is a time hack

4 on the Borovcanin video as well as the corresponding records from the

5 Bratunac centre, which show people who were there at approximately that

6 time. So I believe -- that's what I'm hinging my 1700 time on.

7 Q. Okay. Now if I could show you a part of the transcript with

8 respect to Witness P106 who testified in this courtroom.

9 Thank you, Madam Usher. I apologise for having you walk back and

10 forth.

11 And actually what I've handed you starts with page 1243, it's

12 Monday, 14 July 2003. And actually I've given you more than enough. But

13 if we could turn to page 1245. Now I'm cross-examining here the

14 individual, and I state, question, line 12: "And it's my understanding

15 that you've described the shooting taking place from 5.00 in the

16 afternoon."

17 "A. In my opinion, it was about that time, perhaps it was later,

18 perhaps it was earlier, but I think it was about 5.00."

19 I then go down -- I then ask a question on line 20: "Okay. Now,

20 as I indicated, there's another individual who was there at the time that

21 you were there, and he's given a statement and has indicated that: 'There

22 was an earlier incident that occurred outside the warehouse, sometime

23 perhaps around 5.00 or so - it's unclear - and that the shooting, the

24 actual shooting took place at around 9.00 at night or 10.00, when it was

25 dark.'"

Page 5159

1 And then I ask: "My question is: Do you recall any shooting

2 taking place?"

3 The answer is: "No, it wasn't. The shooting started before night

4 fell. It starred before dark and continued until night fell."

5 And then I tried to pin the gentleman down. There's some

6 objections, and I move on.

7 Now, sir, did you have an opportunity to be acquainted with this

8 portion of the testimony that came into this courtroom before you coming

9 here to testify?

10 A. No, sir, I did not.

11 Q. All right. Let me provide you what has been marked for

12 identification purposes as D11. I believe this may already have been

13 introduced by the Defence, and if I could show you this document.

14 MR. KARNAVAS: If we could go into private session.

15 JUDGE LIU: Yes, we'll go into private session.

16 [Private session]

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 5160

1 [Open session]

2 MR. KARNAVAS: Now, if we could -- are we back?


4 MR. KARNAVAS: Thank you.

5 Q. Now, if we were to turn our attention to page 6, sir, page 6. And

6 I believe we can put this safely on the ELMO because there are no names.

7 There are some initials, but I don't think that would compromise anything

8 at the bottom of the page. If we were to go there --

9 MR. McCLOSKEY: If we could - I'm sorry - keep the initials off

10 the ELMO.

11 MR. KARNAVAS: Yes. I have no problem. I have no problem.

12 Q. In fact, I don't need the last paragraph. What I do need is the

13 paragraph before.

14 JUDGE LIU: Yes, we may fold that part.


16 Q. I just need the part that says -- the paragraph that starts with:

17 "Before the execution."

18 A. Okay we're fine.

19 Q. Okay. Now, I believe it might be relevant for all of us here if

20 I -- if we would just go through the entire paragraph, though the specific

21 part that I'm looking for is only three or four lines, but it gives a

22 slightly different account. Now, this particular witness indicates, and I

23 read on page 6 of his statement taken by the Office of the Prosecution.

24 And this was on -- I can't see the date here, but in any event it says:

25 "Before the execution actually started as reported in the statement I gave

Page 5161

1 in 1996, the following event happened. All of a sudden, explosions

2 started very nearby while the soldiers were still inside the warehouse.

3 The blasts were close and I heard a tyre of a bus leaking air with a very

4 characteristic noise. A lot of automatic fire was to be heard and from

5 the opening I saw a Chetnik firing in direction of the woods. I could

6 also hear a nearby tank and anti-aircraft gun shooting. The Serb soldiers

7 were shouting that they were attacked by our people but I don't understand

8 how this could have been possible since our people had no weapons with

9 them which could fire grenades. Once this first wave of fire calmed a

10 bit, the soldiers ordered two prisoners to get out in order to help

11 collect alleged Serb soldiers which got wounded. They went out for less

12 than a minute and returned. They did that a few times, running out and

13 then returning inside. They did not tell what they saw outside. The

14 shooting then became sporadic for a while. Once the shooting stopped, the

15 soldier with a blue helmet who was guarding at gunpoint wanted to shoot at

16 us, but one younger soldier did prevent him to shoot. I did not

17 understand what was happening. The soldiers were shouting at us saying

18 "We have opened a corridor for your people to get out and look what they

19 do to us."

20 After that, the soldiers were then standing next to the entrance

21 getting in and out and about a half an hour later, when it was getting

22 dark, so I assume around 1100 hours these soldiers --

23 A. No, sir, that's 2100 hours.

24 Q. Or 21, I'm sorry. I apologise. That would be 9.00 p.m.. "These

25 soldiers who were guarding us started to open fire at us from the entrance

Page 5162

1 without any apparent reason."

2 Now, do you recall ever reading this portion of one of the

3 survivors' statements?

4 A. Yes, sir, I'm sure I did.

5 Q. Okay. Now, you would agree with me, would you not, that it is

6 different in time as the account of the other survivor, is it not?

7 A. Yes, sir.

8 Q. And in fact this would place the shooting to have taken place,

9 that is the shooting that -- the atrocity itself, sometime on or about

10 9.00 p.m. at night. Correct?

11 A. Yes, sir, that's correct.

12 Q. And he says it was getting dark. We know that time of year, the

13 days seem to be slightly longer. Correct?

14 A. That is how it works.

15 Q. All right. So his account, at least to when the shooting would

16 have taken place, would be consistent with the -- what we all know are the

17 hours, the daylight hours during that period of the year. Correct?

18 A. I assume, yeah, with 2100 hours would be getting dark. That's

19 correct.

20 Q. And he seems to indicate that perhaps prior to this incident -- in

21 fact, several hours before this incident that there was an earlier

22 incident outside, which was smaller, much smaller. Correct?

23 A. He indicates it was a shooting incident earlier, yes, sir.

24 Q. Which also might be consistent with what we now know -- the

25 incident that occurred where a Muslim prisoner got a hold of a weapon and

Page 5163

1 shot and killed one of the Serb soldiers. Correct?

2 MR. McCLOSKEY: Objection. That is a -- there is speculation to

3 that effect, but I don't think that fairly can be interpreted and

4 something we know as a fact.


6 MR. KARNAVAS: I'll rephrase, Your Honour, I'll rephrase.

7 Q. We do have information, do we not, that reflects that sometime

8 earlier -- sometime during that afternoon, a Muslim soldier was able to

9 get a hold of a weapon from one of the Serb soldiers and was able to kill

10 one of the Serb soldiers. Correct?

11 A. The data that we have indicates that one of the Serb soldiers, and

12 to be specific, he is a member of the Sekovici Special Police Brigade --

13 or the 2nd Sekovici detachment - was killed at 1700 hours. In various

14 interviews with some of the Bosnian Serbs, they recount the story that

15 that is in fact how he died. A Bosnian Muslim did come out and attempt to

16 take his weapon and in fact shoot him.

17 Q. Well, not that a Muslim soldier came out, but rather as I recall

18 it, and correct me if I'm wrong, that this particular individual wanted to

19 make some inquiries with respect to how one of his relatives had been

20 killed?

21 A. I don't remember the specifics.

22 Q. All right.

23 A. It may very well be, but I just don't remember.

24 Q. But nonetheless, nonetheless, at least we have some accounts from

25 Serbs, Serb soldiers, that would in some way with consistent with a

Page 5164

1 portion of this gentleman's testimony that we just read, that an incident

2 had occurred sometime at or around 5.00 or 5.30. Correct?

3 A. Yes, sir, that's correct.

4 Q. And that this gentleman's statement - and that is reflected in

5 D11 - is indeed slightly different with respect to the timing of the

6 atrocity to the other survivor who testified as a Prosecution witness in

7 this case as P106. Correct?

8 A. Yes, sir. There would be a discrepancy.

9 Q. Right. And it would appear that given that we have these two

10 divergent statements and given your account as you gave it on 13 November

11 2003, you made a preference. Correct?

12 A. I believe I indicated that I feel that the 1700 one is accurate,

13 and I believe that because a large body of other evidence supports that.

14 Q. All right. Now, if you could look at those pages that I provided

15 you, from page 4483 all the way to 4484, if you could find anywhere in

16 those pages where we are talking about this particular incident and this

17 particular witness, where it is that you have also informed the

18 Honourable Members of your Trial Chamber, that there was another witness

19 with a much different time frame, one that would reflect 9.00 or later --

20 the incident to have occurred. And where is your explanation as to why

21 you discount that version versus the one that you liked -- that you have

22 accepted, which is the earlier one. Is there anywhere in your testimony

23 that you can see that?

24 JUDGE LIU: Yes, Mr. McCloskey.

25 MR. McCLOSKEY: Objection to compound, especially when there's

Page 5165

1 these sorts of suggestions in the question, if we could go point by point.

2 MR. KARNAVAS: I'll break it down, Your Honour, I'll break it

3 down.

4 JUDGE LIU: First of all, we'll see whether the Witness gets it or

5 not.

6 THE WITNESS: I believe I can answer the question.


8 Q. Okay.

9 A. First of all, I peg the time at 1700.

10 Q. But that's not my question, I want --

11 A. I'm trying to explain this, sir. You will have to be patient.

12 Q. Give me the --

13 JUDGE LIU: No, no, no, no, no, Mr. Karnavas. Let the Witness

14 finish.

15 MR. KARNAVAS: All right. Very well, very well. I apologise.

16 Q. Go ahead.

17 A. I base it off the testimony of the first witness that was

18 discussed. I didn't know and I still don't know at this point whether the

19 testimony we just discussed is or is not before the Court. I just -- I

20 can't that one. Is it my -- okay, I assume that it is. Again, I don't

21 believe that it's my function as the analyst, and that's why I don't

22 include this type of information in my report except to set context, that

23 it's my role to try and determine before the Trial Chamber which witnesses

24 are truthful or accurate in which particular issue. I believe that with

25 this respect I hinge on the time of 1700, and I believe I've been able to

Page 5166

1 forward a series of exhibits which corroborate that.

2 If it's an omission on my part that I should have mentioned as

3 part of this that another witness had indicated a later time - and to be

4 quite honest, Mr. Karnavas, apparently it slipped my mind that as far as

5 9.00 is when he thinks the actual execution part in large scale takes

6 place, then that is an omission on my part and I will apologise before the

7 Court.

8 Q. Okay. All right. Thank you for the admission, however you would

9 agree with me that you do mention the one account. And so -- and I just

10 want to tag you a little bit on that one, because you do seem, you do

11 seem, when it's favourable to the Prosecution to be providing some of that

12 information, maybe not in your report but certainly in your testimony.

13 And so, I would say that your answer is rather inconsistent with what we

14 have here, because your other statement was helpful, beneficial, in favour

15 of the Defence, perhaps. Certainly it was not consistent with the

16 Prosecution's theory, and that is that these -- this incident occurred at

17 or around 5.00. And so would it be fair to say that a conclusion can be

18 drawn that here is yet, here is yet, one more example where you are cherry

19 picking, you are selectively stating that we have this information from

20 this witness while at the same time failing or omitting, albeit in this

21 instance, and I take your point, by accident, but failing and omitting

22 other evidence that might be equally as valuable to this Honourable Trial

23 Chamber in determining what exactly happened.

24 JUDGE LIU: Yes, Mr. McCloskey.

25 MR. McCLOSKEY: I'm going to object on the form of the question,

Page 5167

1 and it completely misconstrues both the evidence that the witness -- the

2 two Kravica warehouses -- if you look at this both Kravica warehouse

3 witnesses say shooting started at roughly the same time. You may recall

4 how big and long the Kravica warehouse is and how it's divided into two

5 different chambers,. So this is a complete misconstruction of the facts,

6 and we'll hear Dean Manning will describe the warehouse and some of the

7 damage that was in the warehouse. But aside from being undecipherable,

8 just look at that question, it's a misconstruction of the evidence.

9 JUDGE LIU: Well, we came to the situation that the Defence

10 counsel made a long statement which seems to me that is his conclusion.

11 And also the Prosecution gives some explanations which might be to testify

12 instead of the Witness. I'm not quite happy with this kind of practice.

13 Mr. Karnavas.

14 MR. KARNAVAS: Yes, Your Honour.

15 JUDGE LIU: I think you have made your point.

16 MR. KARNAVAS: I was moving on --

17 JUDGE LIU: Yes, you have to move on.

18 MR. KARNAVAS: I was moving on. I was moving on before the

19 objection.

20 Q. Okay. Now with respect to -- just take a, maybe, a lighter note.

21 You testified with respect to the documents that were sent by the

22 Bratunac Brigade daily reports or others that occasionally if the

23 commander or the designated person who was supposed to -- whose name was

24 on the paper was supposed to sign it, that if he did not sign it, that you

25 would find the word za there, which meant for so and so. Correct?

Page 5168

1 A. That is the practice, yes, sir.

2 Q. Okay. And I take it -- and then you indicated that it would be

3 poor -- it would be irresponsible, it certainly would not be correct, for

4 someone to sign for the commander without having the "for" before it,

5 because it might give the wrong impression that perhaps the commander

6 himself had signed the document, should the reader of the document not be

7 familiar with the commander's signature.

8 A. Yes, sir, that is correct.

9 Q. All right. And just -- I just wanted to show you. There's

10 several documents here, all Prosecution documents. If I could have the

11 assistance of Madam Usher. Just I call these little vignettes, just to

12 show you -- if you could go through the documents I'm handing you, and if

13 you could read for the record the numbers of the documents at the bottom

14 of the page. They all have P numbers.

15 A. Yes, sir. In this particular case it's P416.

16 Q. Is there za there for the commander?

17 A. No, sir. It's the commander's signature block, and this is

18 Lieutenant Micic's signature.

19 Q. And in fact for the typewritten version we don't have a za and in

20 the handwritten version we don't have a za. Correct?

21 A. You generally won't find a typewritten version in the -- za in the

22 typewritten one, but where you're supposed to see it is the handwritten

23 one.

24 Q. Okay. If we go to the next one, the next document --

25 A. She didn't give me the whole stack.

Page 5169

1 Q. I apologise. We can put them on the ELMO. We can go through

2 those real quickly.

3 A. 503 would be the next one, sir?

4 Q. 503.

5 A. And I assume you want me to go back and --

6 Q. I would like you to go through all of the handwritten versions,

7 and if you could find one that says -- if you can find one that has za.

8 A. This is 18 July, and it just has the name, no signature.

9 Q. Okay. So that's 18 July. Okay.

10 A. 503.

11 Q. All right.

12 A. This is 419.

13 Q. What date is that?

14 A. This would be 11 July. And this is just a signature block, no

15 signature.

16 Q. Okay.

17 A. And this is P501, a signature block, no signature.

18 Q. Okay.

19 A. And P502, in what appears to be the same handwriting, a signature

20 block and no signature.

21 Q. Okay. So can we glean anything from this?

22 A. Mr. Karnavas, clearly in this particular respect, four of the

23 documents I believe have no signature at all, and the fifth one has

24 Lieutenant Micic's signature with no za.

25 Q. All right. So I take it that the rules are not always followed,

Page 5170

1 it would appear?

2 A. In this particular case they were sloppy with practice, yes, sir.

3 Q. Okay. That's all for the za's. I think we finished that chapter

4 rather quickly. All right. Now, there's one other matter, another small

5 vignette. And what I would like to do in this particular case, I would

6 like to hand you some documents. And it would be -- okay. If I could

7 hand you these two documents. One is -- we'll just identify them first.

8 You will note that one document is from chapter 5 of your, this is the

9 narrative I believe.

10 A. Yes, sir.

11 Q. And we're going to be focusing on paragraph 5.4. If we could put

12 that on the ELMO, and I don't know whether --

13 A. Which one do you want on the ELMO --

14 Q. This would be from page 40 of your narrative, and on top of the

15 page it has an ERN number 01134334. And I wanted to -- if we could read

16 it, read the portion of it, the first sentence for context. And then

17 we'll discuss it.

18 "The order also stated that the corps command had sent a message

19 to the RS Ministry of Defence requesting that busses from state and

20 private companies be mobilised and placed under brigade commands in whose

21 area the buses were being sought."

22 Do you recall writing that?

23 A. Yes, sir.

24 Q. In fact I believe you might have discussed it because there is an

25 exhibit, is there not, Exhibit P427, from which you derive your

Page 5171

1 information for this particular portion of your narrative?

2 A. I'm sorry. I need to see that exhibit.

3 Q. I'm sorry, I --

4 A. I have 427. No, that's -- I don't -- okay, I've got 427.

5 Q. If you look at the third paragraph?

6 A. 5.3?

7 Q. Yeah. Well, 5.4 is the one that we talked about.

8 A. Yes, sir. Okay.

9 Q. Okay. Well, I mean if we compare the two, and I'll read the

10 last -- I'll read that paragraph from paragraph 4 to P427, so you can put

11 that on the ELMO, if you wish, third paragraph.

12 It states: "The corps command has sent a request to the Ministry

13 of Defence of Republika Srpska demanding that the Ministry of Defence

14 office in Sarajevo and Zvornik obtain by 12 July 1995 all the buses

15 available from state and private owners for the use of the commands of the

16 brigades in whose areas the buses are being sought. The areas concerned

17 are: The municipality of Sokolac, Rogatica, Visegrad, Han Pijesak,

18 Vlasinica, Milici, Bratunac, and Sekovici. They shall help the municipal

19 offices of the Ministry of Defence to procure the buses rapidly and direct

20 them to Bratunac."

21 Okay. Now, if we look at that translation of this particular

22 document, which is dated 12 July 1995, and we look at your paragraph that

23 you attribute, we can conclude that you are accurately describing in your

24 narrative what purports to be on this particular document, correct, on

25 P427?

Page 5172

1 A. I believe so, yes, sir.

2 Q. Now, here is -- I would like to show you now a document, a revised

3 translation, a revised translation, of this particular document that was

4 done today. And we have extra copies for everyone, but if you could put

5 one on the ELMO and we could put -- we could distribute the others to

6 the --

7 MR. McCLOSKEY: Could we identify, revised by who.


9 MR. KARNAVAS: Mr. McCloskey may not ask that question. He should

10 know by now that we have the official translators. This was done on an

11 expedited basis, and I also want to thank on the record the Registry,

12 because we had them do it twice today, twice. So we would like to commend

13 the Registry for assisting us in this matter.

14 Q. If we look at this paragraph and we will -- if I could read it

15 now. It says here, this is the corrected version, and in fact I've also,

16 for the record, discussed this with the translators in the booth to make

17 sure that we had the correct translation. Now let's look at the revised

18 translation, based on the original document.

19 "The corps command has sent a request to the Ministry of Defence

20 of Republika Srpska demanding that the Ministry of Defence office in

21 Sarajevo and Zvornik obtain by 12 July 1995 all the buses available from

22 the state and private owners and place them on disposal. The commands of

23 the brigades in whose areas the buses are being sought: The municipality

24 of Sokolac, Rogatica," and it goes on.

25 Do you see the difference?

Page 5173

1 A. Yes, sir.

2 Q. And also it would appear that -- it also indicates that they

3 are -- if we go on: "That they shall help the municipal offices of the

4 Ministry of Defence."

5 Correct?

6 A. Yes, sir.

7 Q. And in fact my certainty is not so good, but having discussed this

8 matter with the gentlemen in the booth, it would appear even one word or

9 two words are missing even from this corrected version, and that's the DK

10 which can be found on the original version, which would mean Drina Corps.

11 And if we were to look at the original in Srpski, and I have it -- do you

12 have it available?

13 A. I have it. Is this what you're looking at?

14 Q. You'll see right before the date 12.07.1995, right immediately

15 before that, you see DK, do you not?

16 A. Yes, sir.

17 Q. Okay. And would that not reflect the Drina Corps, unless you

18 don't know?

19 A. I don't know. I mean, I've seen it as DK. I've seen it as KDK.

20 So I mean it may well mean that, I just don't know.

21 Q. All right. Now, having looked at this corrected translation,

22 which of course you are not to blame at all --

23 A. Apparently that will be the first thing in the last six days I'm

24 not responsible for.

25 Q. Now, now. Mr. Butler, would you not agree with me that perhaps

Page 5174

1 with respect to this one paragraph in your narrative, we might need to

2 revise it slightly?

3 A. Clearly I would revise it on the basis of this revision.

4 Q. And so -- and the revision would take place in a way that it would

5 reflect that it's -- they're under the Drina Corps with the brigades

6 assisting and not that these buses from state and private companies are

7 placing them under the brigade commands. Correct?

8 A. I don't believe that -- yeah, in this respect it would be to the

9 Drina Corps and not down to the brigade commands. I mean, that's the

10 change in the language, yeah, that's fair.

11 Q. All right. I thought so. Okay. Now, we took care of that

12 vignette. That will be the last vignette for today.

13 Now, I just wanted to end with discussing a little bit about the

14 MUP. That will be our last topic more or less.

15 JUDGE LIU: Well, Mr. Karnavas, I think the new translation should

16 have a number.

17 MR. KARNAVAS: We are going to get a number today, Your Honour.

18 JUDGE LIU: Yes, please inform the Court Deputy about it.

19 MR. KARNAVAS: I didn't want to make the list grow any longer, but

20 it appears that it's growing on its own, Your Honour. It would be D86/1.

21 JUDGE LIU: Thank you.


23 Q. Okay. Now, if we could -- okay. Now, if we could switch to MUP a

24 little bit. It's my understanding from hearing your testimony that your

25 interpretation of one of a particular order that was issued by Mr. Kovac

Page 5175

1 on 10 July 1995, which has been marked for identification purposes as

2 P157 - and I will give it to you shortly but I'm sure you know what I'm

3 talking about. This is the one that places the MUP under the -- or

4 resubordinates MUP under the Drina Corps. Correct?

5 A. Specifically it resubordinates the second Sekovici and the 1st

6 Company of the PJP to the Drina Corps. Yes, sir.

7 Q. Okay, now --

8 A. Not all MUP in general, but those formations.

9 Q. Okay. If we could look at it just a little bit, and then we're

10 going to go backwards. It's the last paragraph --

11 A. Paragraph 5.

12 Q. Paragraph 5. It says that: "On arrival at the destination, the

13 unit commander shall contact General Krstic of the corps chief of staff."

14 Correct?

15 A. Yes, sir.

16 Q. Now, he must. He doesn't have an option. He has to contact him.

17 Correct?

18 A. That is how I read this, yes, sir.

19 Q. Now -- and it's my understanding from listening to you that you

20 interpret "shall contact" as shall be resubordinated to the Drina Corps?

21 A. Yes, sir. When we discussed this issue specifically with

22 Lieutenant Colonel Borovcanin and asked him specifically what that meant,

23 that is what he told us. He says that he took this to be him contacting

24 General Krstic and putting himself under Drina Corps -- or General

25 Krstic's direction. So that's where we derived that from.

Page 5176

1 MR. KARNAVAS: At this point, Your Honours, I would ask that we

2 strike that answer from the record, only in the sense that Mr. Borovcanin

3 is on the lam. In other words, he is not to be found. We don't have

4 access to him. There is a statement, but again We cannot confront him

5 with respect to whatever he might have said to the Office of the

6 Prosecution. So in light of that, there is no other basis from -- in

7 light of that, I would ask that that portion, that answer, be struck or at

8 least, at the very minimum, that the Trial Chamber recognises that we are

9 at a distinct disadvantage in not being able to confront the

10 gentleman. And therefore, this answer should be given no weight at all.

11 JUDGE LIU: Yes, Mr. McCloskey. Any response to this request?

12 MR. McCLOSKEY: Yes. As I think we've discussed, I have asked

13 Mr. Butler to try to refrain from answering hearsay from major figures

14 that we don't have available to cross-examine if his answer did not

15 involve that. And I think he has tried hard over the several days to do

16 that. And his questions regarding some hearsay, even though an expert

17 under the common law can refer to hearsay, for the reasons Mr. Karnavas

18 stated, we have tried to have Mr. Butler avoid going into statements like

19 Mr. Borovcanin. And I can only assume Mr. Butler felt an answer -- to

20 properly answer the question, he needed to reference Mr. Borovcanin. And

21 of course Mr. Butler wants to tell you the complete truth regarding my

22 instructions, he's taking them into account. So I would leave that with

23 you and Mr. Karnavas and Mr. Butler to sort it out. Again, part of that

24 instruction to Mr. Butler is based on my common law experience because

25 Mr. Borovcanin is not available and is a potentially vital character in

Page 5177

1 this. So it makes it difficult to use his information before you.

2 JUDGE LIU: Well, it is a rare practice for the Trial Chamber to

3 strike something off the transcript, but we have heard both parties on

4 this issue. And later on when we elaborate this piece of the evidence we

5 will take the submission of both parties into consideration. You may move

6 on.

7 MR. KARNAVAS: Thank you, Your Honour. I know you can't strike

8 it, but I have to at least go into it.

9 Q. So we have here contact, but we don't have anything that would

10 give us some comfort, at least in this -- from this particular paper that

11 would give specific instructions to Mr. Borovcanin as to what exactly his

12 tasks will be once he contacts General Krstic. Correct?

13 A. In this paper it does not specify anything beyond what his task

14 would be. No, sir.

15 Q. All right. And if we look at the preceding paragraphs, we can see

16 what Mr. Borovcanin was tasked, at least with respect to the mobilisation

17 and to where he was supposed to go to and at which time he was supposed to

18 report and to whom. Correct?

19 A. With respect to the mobilisation, which units would be pulled, and

20 where he was to deploy, yes, sir.

21 Q. All right. Now, I don't want to go into great detail on the rules

22 and the law, though just a fair warning, I'm fully prepared to. But I

23 believe you've already testified to the effect that when the special

24 police that are under the Ministry of the Interior are to be

25 resubordinated to the VRS, in other words, attached to them, that there

Page 5178

1 would need to be, one, authorisation from the President or the Ministry,

2 or his designated representative. Correct?

3 A. Yes, sir.

4 Q. And we also touched a little bit upon this, that to ensure that

5 the MUP would not be mistreated or placed unnecessarily, perhaps, in

6 harm's way by the military, that along with that order, one, the VRS, the

7 army itself, would first have to specify in detail the exact nature of

8 their request for having the assistance of or for needing the assistance

9 of the MUP. Correct?

10 A. The limits are that the army has to specify the tasks and that the

11 MUP can only be employed within the confines of those tasks. Yes, sir.

12 Q. And if I understand it correctly, not only does the army have to

13 specify the tasks, but also the Ministry of the Interior in its own order,

14 the order that would resubordinate the MUP to the army, would also specify

15 in great detail the tasks that would be given to MUP. Correct?

16 A. I assume that would normally be the case, yes, sir.

17 Q. All right. And it would appear, it would appear, that somewhere

18 along the line there must have been some sort of a dispute between the

19 army and the Ministry of the Interior, because there was a document that

20 was generated by none other than the highest authorities with respect to

21 the usage of MUP and resubordination. Do you recall that?

22 A. There are a number of them. If you can get me in the

23 neighbourhood.

24 Q. I'll get you in the neighbourhood. I thought I was -- I just

25 wanted to tease you a little bit. The document is from Dr. Karadzic. He

Page 5179

1 issued an order. It's -- it looks like it has a D number, D62. Do you

2 see that? I think we go on to paragraph --

3 A. Yes, sir. I'm familiar with this.

4 Q. You're familiar with this. And this is dated April 22, 1995.

5 Correct?

6 A. Yes, sir.

7 Q. And it seems to have been signed -- it would have the original, a

8 copy of the original, it has the official stamp and a signature that I

9 would suspect is that of Dr. Karadzic, the supreme commander.

10 A. I don't know that it is or not.

11 Q. Right. But his name is there and the stamp is there. And I take

12 it you do not have any particular reservations as to whether this order

13 was in effect or came into effect. Correct?

14 A. No. I believe this order or the general guidance is in effect,

15 yes, sir.

16 Q. Now, we already have a law that clearly outlines what we've been

17 discussing, that is, when MUP can be used, under what circumstances, and

18 how their tasks are to be defined. Correct?

19 A. Yes, sir.

20 Q. But here it would appear that irrespective or regardless of the

21 law, the supreme commander felt compelled to issue a specific order,

22 grounded in the law that was already in existence and expected by the

23 various parties to comply with. Correct?

24 A. Yes, sir. There was as a -- because of -- or what this reflects

25 is a result of confusion or, more accurately, disagreement between the

Page 5180

1 army and the MUP as to what that meant on any given occasion.

2 Q. All right. So on paragraph 1 it states: "The Main Staff of the

3 Army shall henceforth define more precisely and concretely their request

4 for engagement and employment of MUP units in combat, in accordance with

5 provisions of Article 14 of the Law on Application of the Law on Interior

6 Affairs during imminent threat of war and state of war, item 4 of the

7 order," and it describes the Official Gazette which happens to be a

8 special edition number 1.

9 So from here it would appear that the President, the commander in

10 chief, is saying to the Main Staff that they must define concisely and

11 concretely their requests for engagement and employment of MUP units.

12 Now, question: Do we have anything that would give us an

13 indication of what exactly the Main Staff had asked of the MUP, that would

14 be precisely and concretely?

15 A. With respect to just Srebrenica?

16 Q. Yes.

17 A. The one document that I have is the document from the morning of

18 12 July from Vasic where he describes the contents of -- or he describes

19 in some detail, the 0800 meeting on 12 July, and he notes that the army

20 and the MUP have received their tasks from General Mladic. I don't know

21 that that particular report goes into specific detail exactly with what

22 those tasks are. It may and it's just slipping my memory, but that is the

23 one -- the first report with respect to the MUP that I have in that

24 nature.

25 Q. Okay. But here we have a document that was generated on 10 July,

Page 5181

1 and obviously if Mr. Borovcanin is to report to the commander of the Drina

2 Corps --

3 A. Chief of staff.

4 Q. The chief of staff, I apologise. The chief of staff. At that

5 time it was still chief of staff, one would expect, would they not, that

6 there would be some sort of request in writing by the Main Staff that's

7 spelled out with specificity, precision, and concretely their request, and

8 also a document that would correspond to that. In other words, an order

9 to the MUP, so as to when there was this contact between Borovcanin and

10 Krstic they could -- they would at least be on the same wavelength. Would

11 you not expect that?

12 A. Yes. And --

13 Q. We don't have it.

14 A. We don't have it, and to my understanding the army did not request

15 that this unit be withdrawn and brought into the Srebrenica area. So --

16 Q. Okay.

17 A. I think that's probably why we don't have it and why there is some

18 ambiguity.

19 Q. So if they were not requested, if they were not requested, by the

20 Main Staff, as one would expect, then I take it they came into the area

21 uninvited?

22 A. I'm not -- uninvited by the army, I would probably agree. But

23 certainly they were directed there by superior authority.

24 Q. Okay. And if they came without any specific order and if we are

25 to believe the laws in this particular order were in application and were

Page 5182

1 being followed, one cannot then, one cannot then, conclude, as you have,

2 at least based on the face of the particular document from Mr. Kovac, that

3 on the 10th when Borovcanin is asked to contact, to contact, the chief of

4 staff of the Drina Corps, that that in and of itself meant that those MUP

5 units were being resubordinated to the Drina Corps. Correct?

6 A. In isolation, this one order does not do that. Again, a lot of it

7 for me is the context of what occurs afterwards.

8 Q. All right.

9 JUDGE LIU: Well, Mr. Karnavas, it's time for a break.

10 MR. KARNAVAS: Okay. All right.

11 JUDGE LIU: We'll resume at 12.30.

12 --- Recess taken at 12.02 p.m.

13 --- On resuming at 12.31 p.m.

14 JUDGE LIU: Yes, Mr. Karnavas.

15 MR. KARNAVAS: Thank you, Your Honour.

16 Q. Okay. Mr. Butler, we were talking about MUP before we took our

17 break. Now, as I understand it, the rules provide, the law provides as

18 well as this order, that when there is a resubordination, the logistics

19 support for the police unit are to be provided by the other unit, that is,

20 the unit of the VRS. Correct?

21 A. Yes, sir. The unit in which zone they're going is responsible for

22 providing support.

23 Q. Okay. Now, I want to show you then something that might help us

24 out a little bit. It's P458 for identification purposes. If we were to

25 look -- do you recognise this document, sir?

Page 5183

1 A. Yes, sir.

2 Q. Okay. And it would appear that this document is a request made by

3 Mr. Vasic. Correct?

4 A. Yes, sir. There is his report up to his MUP leadership.

5 Q. Okay. And does he not state -- and this report is to his

6 superiors, right, within the Ministry of the Interior?

7 A. Yes, sir. The Republika Srpska, the office of the Minister, the

8 Bijeljina public security department, and the police forces headquarters,

9 which is the police staff.

10 Q. All right. And from reading it, at least from the top of the

11 page, it's unclear whether it's a report, whether it's a request, or maybe

12 a combination of both. But if we were to go to the paragraph that is

13 numbered number 1, he does seem to indicate, does he not, that he urgently

14 needs 10 tonnes of petrol. Correct?

15 A. Yes, sir, that is correct.

16 Q. And that would be on July 13, 1995. Correct?

17 A. Yes, sir.

18 Q. All right. And would petrol not be part of the logistics support

19 that would be expected of the army to provide to a resubordinated unit

20 from the Ministry of the Interior?

21 A. Petrol would, but I think the 10 tonnes part is the indicator that

22 this is -- the requirements are well outstripping the unit's abilities to

23 provide them. We are talking about, my understanding, the 10 tonnes of

24 petrol needed to move the civilian population. So I think that's

25 different than the organic requirements of the unit itself.

Page 5184

1 Q. I think there is very little disagreement that the MUP was

2 involved of the evacuation of the civilians on 12th and 13th in Potocari.

3 Correct?

4 A. Yes, their presence is noted on 12th and 13th, I believe.

5 Q. And you indicated to us earlier that a request had not been made

6 by the VRS for them to appear there, correct? Or at least you're unaware

7 of that they were requested by the VRS to be there and to be

8 resubordinated to them. Correct?

9 A. Yes, sir. That is correct. There's nothing that indicates that

10 the VRS had asked for their presence prior to their arrival.

11 Q. All right. And of course, and of course, here it is that they're

12 asking for 10 tonnes of petrol to their Ministry of the Interior.

13 Correct?

14 A. Yes, sir.

15 Q. And there's no indication in this particular report or request

16 that the reasons that they urgently need the 10 tonnes of petrol is

17 because the army to whom -- or the army unit to whom they are

18 resubordinated are unable or unwilling to meet the logistics support, as

19 they are required under Article 14 of the law promulgating the

20 implementation of the law on internal affairs during an imminent threat of

21 war or state of war in the order from Dr. Karadzic of 22 April 1995.

22 Correct?

23 A. I'm sorry. I'm confused by the question.

24 Q. Okay.

25 A. I believe the answer is that in paragraph 1 they're specifying

Page 5185

1 that they need the fuel to finish the evacuation. I hope that was the

2 question.

3 Q. Right. And it appears, does it not -- well, what I'm saying is

4 that in this request, though they're saying this is what they needed for,

5 they're not stating here that the reason they need the fuel is because the

6 VRS, or in more particular terms, the Drina Corps, is unable to meet its

7 obligations under Article 14, that is, to provide the logistics support to

8 the MUP unit that's resubordinated to the VRS, as prescribed by the law

9 and by Dr. Karadzic's order.

10 A. No, sir, it doesn't specify why they can't get the fuel from the

11 local institutions in Bratunac.

12 Q. And from this, therefore, we cannot conclude from this particular

13 document, we cannot conclude or it will not assist us in determining

14 whether indeed the MUP has been resubordinated to the Drina Corps?

15 A. In isolation, the document doesn't say that.

16 Q. Doesn't say that.

17 A. And certainly the issue of fuel isn't an indicator of that one way

18 or the other.

19 Q. All right. But even if we were to look at Mr. Kovac's order

20 that's dated the 10th of July, where he requests Mr. Borovcanin to contact

21 or he orders Mr. Borovcanin to contact the chief of staff, General Krstic,

22 and we look at this particular request, together they both don't provide

23 us any additional assistance in getting us to where we might wish to go,

24 and that is in determining whether the MUP were indeed resubordinated to

25 the VRS pursuant to the order of 10 July 1995 issued by Mr. Kovac.

Page 5186

1 Correct?

2 A. I agree, sir. Linking these two together won't get you to that

3 conclusion.

4 Q. All right. Now, there was one minor point I wanted to point out.

5 It has nothing to do -- this is the second time in one day that I will

6 point out something that may be of some contention and which is of no --

7 you are not a participant of. And that is in the translation. Now let me

8 show you what has been -- the other exhibit. It has been marked as -- it

9 has a 65 ter number; it's 51. It's -- and it's D64/1, D64. So now if you

10 could just briefly look at it and you will see at the top, one says:

11 Draft translation, that's D64. And then of course we have Prosecutor's

12 P458. And if we could focus on the very first sentence.

13 It would appear, would it not, sir, that in the very first

14 sentence it states that, and I'll just read it: "During the meeting held

15 this morning with General Mladic, we were informed that the VRS, Army of

16 Republika Srpska, is resuming with the operation towards Zepa and is

17 yielding," and I'm underscoring that word, "yielding all other tasks to

18 MUP," and then it lists the tasks.

19 Now, if we go to the translation, the translation is slightly

20 different. Rather than say "yielding," it says: "Leaving all other tasks

21 to MUP."

22 I was wondering whether you caught that distinction.

23 A. The version that I used in the narrative I believe is cited by --

24 is the draft translation. We didn't have final translations when I had to

25 have the narrative published.

Page 5187

1 Q. Okay.

2 A. I didn't catch that as a difference, and I'm not sure that

3 yielding or leaving may be just a term of semantics. I don't know that

4 there's a whole lot of significance behind it. I await your view on that.

5 Q. All right. Well, when you see the word "yielding," what is your

6 interpretation to that, just so we can have a -- I want to make sure that

7 my interpretation is similar to yours.

8 A. In this respect, I look at it as -- that the army is giving all

9 the tasks to the MUP.

10 Q. Well, are they giving or are they allowing?

11 A. No, I believe it's directive in nature. I mean, if that is the

12 bone of contention, I believe this is directive in nature.

13 Q. All right. Now, from this, just from this, if we were to use

14 yielding or leaving it all up to either one, this doesn't get us any

15 closer either to our earlier question, our earlier dilemma?

16 A. I would disagree.

17 Q. All right.

18 A. Insomuch as, and again the key piece that's still missing in this

19 context is the one from Vasic on 12 July, which notes that the army and

20 the MUP are taking their orders from General Mladic. And again, this

21 is -- if you insert that and you continue on through time and events,

22 again the fact that now here on the 13th at some time in the morning,

23 they're now being informed that the army is resuming their operations

24 towards Zepa and is directing -- again, yielding, in my sense, is

25 directing in nature. A variety of these tasks with respect to moving the

Page 5188

1 civilian population out of Potocari and also dealing with the Muslim

2 column, I think it does play in context.

3 Q. All right. Okay. So in other words, because of that you seem to

4 be implying or inferring that indeed they were resubordinated, because it

5 has the word "yielding" in it?

6 A. No, sir.

7 Q. All right. Well, is it possible that you can have the VRS and the

8 MUP operating in the same zone of responsibility whereby they are

9 cooperating with each other, they are coordinating with each other, yet

10 one is not subordinate to the other?

11 A. The problem that you have is that, again, coordinating and

12 cooperating is something that's directed by the superior command.

13 Somewhere there has to be some level of superior command which will

14 dictate that. Now, taking that model and the practical application, on

15 the ground I believe that you have the elements of the army along that

16 road or adjacent to each other, which would be Bratunac, the MUP, the 5th

17 Engineers, the 65 Protection Regiment, they're coordinating their

18 activities. The next step up would be the superior command which would do

19 that. Would it be the Drina Corps or would it be the Main Staff? And I

20 believe that given the wide range of activities, I believe that it's the

21 Drina Corps. So that's why I say -- that's why I have problems in

22 abstract, because somewhere along the line between cooperation and

23 coordination, there has to be a command relationship involved which would

24 dictate that.

25 Q. All right. Are you familiar with Mr. Obrenovic's statement in

Page 5189

1 which he gave to the Prosecution after he had negotiated his plea

2 agreement, where this issue of subordination, resubordination, came up?

3 A. I'm generally familiar with it. I don't know the specifics.

4 Again, I have to remind you, during the period I was moving my family back

5 to the States, so there might be gaps in my knowledge.

6 Q. Fair enough. Let me show you then, it might help you a little

7 bit. We've discussed this already with Colonel Obrenovic. Let me show

8 you page 110, 110, of the transcript of Mr. Obrenovic's statement. It

9 was, I believe, introduced as -- the entire statement I believe was

10 initially introduced as D52/1. And this is a statement of 4 June 2003.

11 And we have a question. I'm going to go to line 10 and it's a question

12 PM, that would be for Peter McCloskey.

13 "Okay. The MUP were under the command of the army at this time.

14 Is that right?"

15 And the answer is: "On the 19th, I don't think that it was,

16 unintelligible. We were conducting the sweeps separately. After the

17 corridor was closed, each group was conducting its sweeps separately.

18 Already on the 18th and further, unintelligible. On the 22nd, there was a

19 joint operation between the asphalt road and the gravel road in which

20 combined units participated.

21 "Q. It's hard for me to imagine the MUP working in the same woods

22 that you are working in, without being under the control of the army.

23 That would be very dangerous situation for both of you.

24 "A. You are correct, but it was separate."

25 Now, are you familiar with this line of questioning and the

Page 5190

1 answers to which Colonel Obrenovic gave after, after, he had already pled

2 guilty to one of the counts in the indictment?

3 A. Yes, sir, I'm familiar with this.

4 Q. Okay. And it would appear, would it not, that in his answers here

5 that we have a situation where MUP and a unit of the VRS are working in

6 the same general vicinity, and it would appear that they must be

7 coordinating and cooperating in order to -- in order for both units

8 execute their own tasks, while at the same time not posing a danger to the

9 other and not one being resubordinate to the other. Correct?

10 A. Yes, sir. In this respect, I believe that is what he's trying to

11 describe.

12 Q. All right. And in fact he even went further and described the

13 same thing when he testified under oath to the general -- to the same line

14 of questioning. Is that correct, or are you unaware of that?

15 A. I don't think -- I may have seen it somewhere after the fact, but

16 I'm not aware of that. I take your word that he probably said the same

17 thing.

18 Q. Okay. And the record would reflect that. Now, let me -- so here

19 we have at least one instance where we see that you have MUP and a unit of

20 the Drina Corps working side-by-side, and yet one is not resubordinated or

21 subordinated to the other. Correct?

22 A. In this particular instance I believe you have the Zvornik Brigade

23 and you have the MUP operating in adjacent areas, and they are not

24 subordinate to one or the other; that's true.

25 Q. All right. So in light of your answer when we get back to the

Page 5191

1 document that's dated 13 July 1995, one by Mr. Vasic, when we look at that

2 and we look at the first sentence, the one that is not numbered, where we

3 seem to have this interpretation difference, whether it's yielding or

4 leaving it all, it would appear, would it not, that we could easily

5 conclude as well that at this point in time, MUP is coordinating and

6 cooperating with the VRS, yet not being resubordinated to them. Correct?

7 A. I don't know that I would do that, because we do have the 17 July

8 order from both the VRS, which designates a zone that their forces are

9 going to operate in. We do have a 17 July order from Kovac which

10 designates a zone, and then we have the Zvornik Brigade doing their

11 operation. I don't have those same specific separation orders on the

12 13th. So that's why I'm reluctant to conclude that.

13 Q. Okay. But also what we do have -- we also have missing in this

14 particular case with respect to the 10th, the 11th, the 12th, the 13th, we

15 don't have, one, anything that is precisely and concretely -- a request

16 that is precisely and concretely to the MUP with respect to assistance

17 from them?

18 A. Yes, sir, that's correct.

19 Q. And we also don't have --

20 A. For the 10th --

21 Q. For the 10th, right. And also likewise we do not have anything

22 that precisely specifies the responsibility of the units -- of the MUP

23 units that are going to be resubordinated to the VRS, the corresponding

24 one. We don't have that either?

25 A. No, sir. We don't have -- and we do not have the internal

Page 5192

1 discussions of those meetings, other than what is on paper.

2 Q. All right. Yet, pursuant to the order by Dr. Karadzic, which is

3 grounded on Article 14 of the law itself, we can both, we can both

4 conclude, or we can both agree that those -- that request and that order,

5 that is, the requests of the MUP which would be -- which would precisely

6 and concretely specify their needs and the order from the MUP that would

7 precisely and concretely outline MUP's responsibilities, those things are

8 required by law. Correct?

9 MR. McCLOSKEY: Objection.

10 JUDGE LIU: Yes, Mr. McCloskey.

11 MR. McCLOSKEY: That's compound. I think he meant requests from

12 the army also.


14 Q. Request by the army and also the order by MUP to its own units of

15 exactly what their responsibilities would be, those are mandated by law.

16 Correct?

17 A. Yes, sir. Both those are directed under the law. I agree.

18 Q. And those are missing in this case?

19 A. Whether they are missing or whether they were never published, I

20 don't know. But we don't have them.

21 Q. Or they were never issued.

22 A. That is a possibility.

23 MR. KARNAVAS: Okay. All right. With that, Mr. President, Your

24 Honours, I have no further cross. I do have one technical issue that has

25 been brought to my attention that I believe last week, it must have been

Page 5193

1 last Friday, I noted for the record that the rules of services of security

2 organs in the armed forces was D84, when in fact it is D85. So I want to

3 make that correction, and other than that I have nothing further, Your

4 Honours. And I appreciate your indulgence in giving me the additional

5 time.

6 Q. Thank you very much, Mr. Butler.

7 JUDGE LIU: Thank you very much, Mr. Karnavas.

8 Any cross-examination, Mr. Stojanovic?

9 MR. STOJANOVIC: [Interpretation] Yes, Your Honours, I believe that

10 we will stick to the time limits that you have set for us, and we planned

11 to use this afternoon and then also Wednesday, just as you said. We have

12 changed and amended some of our questions. And we are prepared at this

13 point to begin, but perhaps it would be good to perhaps have a five-minute

14 break, because I provided Mr. Butler with the list of all the exhibits

15 which I will be asking him about and also these are exhibits provided by

16 Mr. Butler in the two binders of his. So I think it would be more

17 effective and faster if we can just arrange the questions chronologically

18 and in order and that will help us to save time for our cross-examination.

19 [Trial Chamber confers]

20 JUDGE LIU: Well, yes, we'll break for ten minutes and we'll

21 resume at ten minutes past 1.00, I guess.

22 --- Break taken at 12.58 p.m.

23 --- On resuming at 1.10 p.m.

24 JUDGE LIU: Yes. Are you ready, Mr. Stojanovic?

25 MR. STOJANOVIC: [Interpretation] Yes. Now we are ready to begin,

Page 5194

1 Your Honours.

2 Cross-examined by Mr. Stojanovic:

3 Q. [Interpretation] Good afternoon, Mr. Butler.

4 A. Good afternoon, sir.

5 Q. Since I come from the continental system, I will first of all

6 stick to what is written in the indictment which is the reason we are

7 here, and secondly, I will try to put more direct questions as necessary

8 in order that we can achieve or attain the truth.

9 I would like to look at Exhibit P398; it is a document which is

10 the personal card of Dragan Jokic. Am I right?

11 A. Yes, sir, that is correct.

12 Q. Every superior officer in the Zvornik archive had such a card

13 reflecting his status and position in the Army of Republika Srpska and the

14 rights and duties arising from that. Am I right?

15 A. We found a large number of these. For the most part they were for

16 the officers serving in the brigade command, yes, sir. I'm not sure if it

17 was everyone.

18 Q. Could you perhaps tell us, if you know, which service in the

19 Zvornik Brigade worked on these personal files, the cards, where were they

20 found?

21 A. If memory serves, these were found in the office of the assistant

22 chief of staff for personnel- and mobilisation-related issues.

23 Q. Would I be wrong if I said that that person in question is named

24 Mihajlo Galic?

25 A. That would be correct for July of 1995. I could not tell you if

Page 5195

1 that was still correct at the time we seized these records.

2 Q. Thank you. I would like just to focus on column 12, the date of

3 joining the Army of Republika Srpska. In your testimony you stated that

4 this is 16th of May, 1995. Is that correct?

5 A. No, sir. It should be 16 May 1992. I hope I didn't misstate

6 that.

7 Q. Yes, you're right, the 16th of May, 1992. Could you please look

8 at Exhibit D39 first and then we can comment on it.

9 Could the usher please hand the document to the Witness.

10 MR. STOJANOVIC: [Interpretation] Your Honours, for the record I

11 would just like to say that this is a document which we received from our

12 investigator on the ground. Page 2 is the translation of the original

13 document, the translation into English. The origin of the document is the

14 command of the 359th Engineering Battalion.

15 Q. Mr. Butler, can we agree that this is a record on the effectuated

16 [as interpreted] transfer of duty dated the 19th of June, 1992. It was

17 carried out in the barracks at Ladjevci and the transfer of duty was

18 effected of -- for the position of assistant commander for morale between

19 Lackovic Dragoslav duty assuming officer and Captain First Class Dragan

20 Jokic, the duty relinquishing officer?

21 A. Yes, sir. I believe you said 19 and it reflects 16, but yes, sir

22 I agree with what the document is.

23 Q. Yes. It is the 16th of June 1992. According to this document it

24 appears that Captain Dragan Jokic came off duty and relinquished his

25 duties in the Army of Yugoslavia on the 16th of June, 1992. Is that

Page 5196

1 right?

2 A. He -- in this particular instance he relinquished the position for

3 assistant commander for morale and guidance. The unit is the 359

4 Engineering Battalion. So he did officially relinquish it on this date,

5 yes, sir.

6 Q. Can we conclude, based on this, he then took up his duty in the

7 Zvornik Brigade on the 16th of June, 1992, and that it can also happen

8 that perhaps the numbers were switched when this information was entered

9 into his personal card?

10 A. With respect to item 12 or line 12 of his personal card, it is not

11 uncommon that the date 16 May 1992 is used as the date joining the VRS,

12 because it is my understanding that that is the day that it turns out that

13 they used to designate the official standing up or creation of the Army of

14 Republika Srpska. So in that respect, this date is fairly common among

15 many personnel records. He may have arrived shortly after; he may have

16 arrived before. So I'm not sure -- I don't tag the date 16th May, as an

17 indicator of exactly when he may have arrived.

18 Q. Thank you. That is precisely what we wanted to say. Would you

19 agree with me that it's possible that this was also on the 16th of June,

20 1992?

21 A. Yes, sir. It is a possibility.

22 Q. Thank you. I just also want to ask, since I'm again basing this

23 on what is stated in the indictment, could you please repeat to us exactly

24 when the Zvornik Brigade was established.

25 A. The information that I have indicates that the Zvornik Light

Page 5197

1 Infantry Brigade, as a component of the VRS, was established on 1 June

2 1992.

3 Q. So if it states in the indictment that Dragan Jokic was a member

4 of the Zvornik Brigade from the moment that brigade was formed, and it was

5 formed as you say on the 1st of June and there is the possibility that he

6 actually joined it on the 16th of June, so can we agree that this was

7 after -- he came to Zvornik after the Zvornik Brigade was formed?

8 A. Well, I mean, certainly based on this document, and I again forgot

9 the exhibit number, it indicates that he officially left his duty at the

10 359 Engineering Battalion command on 16 June. He may well not have

11 arrived until 16 June 1992, or sometime, a day or two or five, after. I

12 don't know.

13 Q. Thank you. Let's go a bit further. On the 5th of November, 1992,

14 a meeting was held at the Drina Corps command in Vlasenica. And this

15 meeting was devoted to the operations or actions in Srebrenica. I know

16 that you did not focus in your report on the period of 1992, but still I

17 would like to ask you if in the documents which were seized from the

18 Drina Corps you had the opportunity to have access to the minutes of this

19 meeting of the 5th of November, 1992, where Dragan Jokic refused as the

20 chief of staff of the Zvornik Brigade to take part in this attack, with

21 the explanation that it was his task to defend Zvornik and not to attack

22 Srebrenica.

23 A. Perhaps if I can clarify. The records that we have do not include

24 the Drina Corps records for this period. We were unable to locate them in

25 the course of the investigation, therefore we did not search the Drina

Page 5198

1 Corps headquarters. So I think because we don't have those records, I

2 have no way to confirm or deny that.

3 Q. Thank you. I assumed that, but it was my duty to put the question

4 to you. The next question is: Would you be surprised if in the course of

5 the proceedings we offered evidence that this fact was actually one of the

6 reasons why shortly after this meeting Dragan Jokic was replaced from his

7 duty as the chief of staff of the Zvornik Brigade. Would this possibly be

8 the reason for his being replaced?

9 A. It may well be. It wouldn't surprise me insomuch as shock, but if

10 there's evidence that supports that, I mean, it may be a fair conclusion,

11 sir.

12 Q. Thank you. Could we now move to Exhibit P372. These are the

13 instructions for the work of the commands and the staffs; is that so?

14 A. Yes, sir, that is correct.

15 Q. I know that on Friday you responded to Mr. Karnavas's questions on

16 this document already, so that is why I reduced the number of my questions

17 on this exhibit. But I would just like to briefly go through this

18 document with you.

19 A. Yes, sir.

20 Q. Could you please tell us what is implied under the term

21 "management" or "control" in the instructions for the operation of the

22 staffs and headquarters.

23 A. I don't know that it's implied. I believe it is implicit in these

24 regulations, that control is a function of management or control -- it may

25 be that management is how one exercises control. I believe, again going

Page 5199

1 back to 13, 14, and 15, I prefer to use their definitions rather than my

2 own. Now, with respect to the phrase "management," and that is generally

3 used with respect to a supervisory function, although it can be used with

4 respect to a command designation. It is most often used with a

5 supervisory function.

6 Q. So let's not try to analyse what the supervisory function in the

7 control aspect means; this is item 3 in the instructions. And it states

8 there that: "Control in the armed forces is characterised by two forms.

9 Control, as a social relationship, and control as a process of work of the

10 superior officers and the staff commands and other bodies."

11 Am I right when I say that?

12 A. I believe so. I'll pull the exact page up; it's not on the

13 exhibit. So if I can get right to that. This is paragraph 3 that you've

14 just discussed, sir? Yes, sir.

15 Q. Let's move to paragraph 4. It states -- it says that: "Three

16 kinds of relationships are essentially manifested in the control system of

17 the armed forces: Command relationship, functional relationship, and

18 staff relationship."

19 Is that correct?

20 A. Yes, sir, that is correct.

21 Q. So from this definition of the term "control," can we conclude

22 that the term "control" is broader than the term "command"?

23 A. Yes, sir.

24 Q. I know that we have an additional problem, and that is

25 interpreting. In the indictment, control and command were defined with

Page 5200

1 one and the same term, direction. For the record let's just make it

2 clear. Let's repeat that control is a broader term than the command, and

3 it contains the command structure, the command activity, as well.

4 A. Yes, sir. The phrase "control" is a broader one, and the command

5 portion of that is one of the components. Yes, sir.

6 Q. The other two terms contained in the control are the function and

7 the staff.

8 A. Yes, sir, that is correct.

9 Q. Kindly, Mr. Butler, let's -- let me draw your attention to item

10 10, where it says that: "The control and the command as a process of work

11 is a process based on the principle of joint staff work in which the most

12 important thing is that every task has to be planned, organised, and set

13 by a command document, and it has to be coordinated and controlled."

14 A. Yes, sir, that is correct.

15 Q. The way I understand this provision, and you correct me if I'm

16 wrong, control implies the realisation through command, amongst other

17 things. Am I right in thinking that?

18 A. Yes, sir. Control is how the task is realised, and command is

19 part of that. Yes, sir.

20 Q. Thank you. And now I would like to direct your attention to item

21 13 of this instruction on the work of command staffs, which says:

22 "Command is a process function of control and command acts communicate

23 command decisions and activate the process of task execution, and it is

24 reflected in commands, orders, directives, and instructions."

25 So we are talking about five forms of command as documents. Am I

Page 5201

1 right in thinking that?

2 A. I believe it says it's the four forms and in 13 it's: Command,

3 orders, directive, and instructions. Decisions -- or the act to

4 communicate, they communicate the command's decisions, so I think we're at

5 4, not 5. Am I misreading this?

6 Q. I believe that you're right, because in the original text there

7 are orders and instructions, so these are the two documents issued by the

8 commander to issue -- to exercise command and then follow other things

9 that you've just mentioned.

10 A. Yes, sir.

11 Q. Thank you. And now let me draw your attention to item 19 of the

12 instruction which says as follows: "The system of command and control in

13 the armed forces has three levels."

14 A. Yes, sir.

15 Q. The three levels are as follows: Strategic, operational, and

16 tactical. Am I right, sir?

17 A. Yes, sir, that is correct.

18 Q. Who is in charge of the strategic level of control?

19 A. If I can put up the last part of that paragraph that wasn't on

20 this list, maybe it will help us in that respect. If we transmit this to

21 the Republika Srpska VRS, it would be the supreme command or in this case

22 the supreme commander.

23 Q. Thank you. And who is in charge of the operational level of

24 control and command?

25 A. At this level, it would be the combination of the Main Staff and

Page 5202

1 the corps command, I believe, would make up the operational level.

2 Q. Can we also talk about the republican stance of the Territorial

3 Defence, at least up to the point when units of the Republika Srpska were

4 formed?

5 A. If we're referring to the early 1992 period, yes, sir, the -- not

6 necessary -- the republic ones would be the strategic level, and the

7 provincial TO staffs would be the operational level -- or not provincial,

8 probably regional would be the better word that I've seen it translated

9 as, regional TO staffs.

10 Q. I agree, the state was not organised as a federation with

11 provinces. I'd rather call these regions or even lower levels of the

12 organisation of the Territorial Defence. And finally, the lowest level,

13 the tactical level of command and control, who is it who deals with that

14 level?

15 A. Well, within the context of the military units, it would be --

16 there was, in fact, one division still in the VRS, but for the most part

17 we're talking about brigade level and below. And if you were going to the

18 TO staff level, that would be at the municipality level. And then below

19 that, many of the larger villages or areas had their own subordinate TO

20 units or TO staffs.

21 Q. Let me see if I understood you correctly. So at the lowest

22 levels, the tactical level of command is discharged by brigades as

23 tactical units?

24 A. Yes, sir. That is correct.

25 Q. Thank you. And in that sense, the way I understand this concept

Page 5203

1 of control, this is a process involving several participants and

2 institutions. Am I correct in thinking that?

3 A. Again, depending on which point in time we're discussing, by 1995

4 the process of control with respect to the military is generally much

5 clearer with respect to the supreme command through the Main Staff and the

6 military chain of command. If we're referring to the period of May -- or

7 April/May 1992, it is much more fragmented and you will have a much

8 greater degree of control by the various regional and municipal TO staffs

9 at the time, yes, sir.

10 Q. But in any case, in 1995 when the structure of the Army of

11 Republika Srpska was well-defined, the control implied a chain of several

12 participants involved in that activity. Am I correct?

13 A. I think by 1995, the chain is well-defined. You have -- and again

14 as we've defined, you'll have the command relationship, you'll have the

15 functional relationship, and you'll have the staff relationship. I do not

16 believe what you'll find is outside non-military entities which would be

17 exercising control through this chain.

18 Q. Precisely so. And if we take such a concept of control and if we

19 take these three levels of control, the strategic, the operational, and

20 tactical, can we define and say that one staff officer can be in charge of

21 control?

22 A. Depending on the level, I don't know that one staff officer could

23 be in charge of control, but one staff officer through a functional

24 relationship could exercise within the competencies control over

25 subordinate staff in that respect. So I don't know that it's broadly --

Page 5204

1 one staff officer could be in charge of control, but again going down the

2 functional relationships, a senior staff officer could exert some control,

3 again limited within that -- the competencies of that particular staff

4 officer.

5 Q. The way I understand it, direction or control, with these three

6 levels your answer is no, a staff officer cannot do that. Am I right in

7 thinking that?

8 A. I'm not sure we're on the same issue. If we're talking about for

9 a staff officer at the strategic level, could he exercise control all of

10 the way down to the tactical level, he can do it indirectly through a

11 functional relationship, yes, sir, again limited to within the

12 competencies within that particular staff officer's assignment.

13 Q. I'm trying to understand you. Let's one again define one thing.

14 A staff officer cannot be involved in the strategic control, in the

15 operational control, or in the tactical control. He only can assume a

16 part of the functional side of the control within the scope of his

17 authorities as a staff officer. Am I right in thinking that?

18 A. Yes, sir, I agree with that.

19 Q. Precisely so. What I'm trying to do is take us back to the

20 indictment and our objections to the indictment. Direction, the term

21 direction, the term control, according to the instructions on the work of

22 staff commands is a broader term than the function that a staff officer

23 has. Am I right in thinking that, in saying that?

24 A. The term "control" is broader than the specific function of a

25 staff officer. That is correct, sir.

Page 5205

1 MR. STOJANOVIC: [Interpretation] Your Honour, this may be a good

2 opportunity for a break. I'll be moving on after the break, and I will

3 take the witness through various counts in the indictment.

4 JUDGE LIU: Yes. I hope we could come into something more

5 specific after the break. And we'll resume at 3.00 in the same courtroom.

6 --- Luncheon recess taken at 1.45 p.m.

7 --- On resuming at 3.01 p.m.

8 JUDGE LIU: Well, before we start, I think there's a scheduling

9 announcement. First, on Wednesday afternoon we'll sit in Courtroom II,

10 starting from 2.15 until 7.00. We'll try to finish the testimony of this

11 witness on that afternoon. And because of other obligations, I myself

12 won't be able to attend the first sitting and possibly the second, but

13 definitely I will be here during the third sitting, if there is.

14 Another announcement is that we'll cancel the sitting in this case

15 on Thursday and Friday, since today we sit extra time.

16 Yes, Mr. Stojanovic. Please continue your cross-examination.

17 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I would

18 kindly ask before we proceed to try and remove a misunderstanding that was

19 pointed to me when we checked the transcript. All my questions when I

20 mentioned the word "control," I wanted to say direction. That is the term

21 which is used in the indictment. All of these questions in the transcript

22 are interpreted as "control." I understand that this is not just a

23 grammatical difference. In my language, the meaning of the word control

24 is just a segment of the word direction, one segment of direction.

25 Your Honour, in the indictment -- in seven counts of the

Page 5206

1 indictment, my client is charged with direction and not with control. So

2 in that sense, I would kindly ask for a correction. All my questions were

3 about direction; a term found in the indictment. From Mr. Butler I

4 received an answer that an officer, a duty officer, cannot be engaged in

5 direction in the way it is defined in the instruction on the work of

6 command staff. So that would be all in that respect.

7 JUDGE LIU: Well, your correction is in the transcript already.

8 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I would

9 like to move on. I would like to explain why I have asked all of these

10 questions.

11 Q. Mr. Butler, good afternoon once again. May we please proceed?

12 A. Yes, sir.

13 Q. Can you please tell us, in your analysis what information have you

14 reached, who was involved in the burials in Orahovac on the 14th and the

15 15th of July, 1995?

16 A. The assets that were involved in the burial operation in Orahovac

17 were personnel and equipment from the engineering company of the

18 Zvornik Infantry Brigade.

19 Q. On the 15th in the morning hours, were there any other assets

20 which were used in the burials, I particularly refer to the communal

21 company, and this was testified here by a witness. So did you find

22 anything else in your analysis? Were there any other assets or

23 institutions involved?

24 A. I believe that some of the equipment came from Birac Holding,

25 which was one of the state-owned companies, and there were other pieces of

Page 5207

1 equipment - perhaps not directly subordinate to the engineer company, but

2 belonging to the greater logistics branch of the Zvornik Brigade, although

3 I think the trucks in question did come from the engineer company or those

4 that were assigned to the engineer company.

5 Q. Are you aware of the fact that on the 15th of July in the morning,

6 a unit of the public utility company or, better say, employees of the

7 public utility company from Zvornik also participated in the burial

8 operations?

9 A. I do not know if it was a unit per se. I believe that there were

10 perhaps one or two individuals that were associated with the public

11 utility company.

12 Q. Thank you. Did you learn about the assets which were involved in

13 the burial operations in Branjevo?

14 A. Yes, sir.

15 Q. Please, can you tell us which institutions were involved in the

16 burial operations in Branjevo on the 17th.

17 A. Again, there would be elements of the engineering company of the

18 Zvornik Brigade. I believe one of the vehicles again listed from Birac

19 Holding, and we have references of a BGH-700, from which I don't know

20 where it originated from, although the -- it was also apparently in

21 Orahovac and it was moved on the 17th from Orahovac to Branjevo.

22 Q. Are you familiar with the fact that in the burial operations in

23 Branjevo, there were also elements of the civilian protections of Zvornik

24 municipality and the R Battalion of the Zvornik Brigade?

25 A. I am aware of members of the R Battalion, as well as some

Page 5208

1 incidents of, perhaps, the 1st Battalion moving bodies from Pilica Dom to

2 Branjevo. I don't believe I've heard of elements of civilian protection

3 in Zvornik with -- associated with the burial at Branjevo. That doesn't

4 sound familiar.

5 Q. Thank you. Who participated in the burial operations in Petkovci?

6 A. We have no specific records which would indicate which actual

7 pieces of equipment were involved in Petkovci. Again, all we have in this

8 regard is the notation from the engineer company's workbook that pieces of

9 equipment were there digging graves -- or working at the dam, actually.

10 Going over the documents which reflect the engineer equipment used, none

11 of them reflect work at Petkovci on either the 15th or 16th.

12 Q. Were there any members of military formations in Petkovci? If so,

13 do you know which formations those were?

14 A. The formation in question in Petkovci would be the 6th Infantry

15 Battalion of the Zvornik Infantry Brigade. And with respect to the

16 6th Infantry Battalion, we do have vehicle records which note a series of

17 trips on 15 July 1995 to the dam.

18 Q. Can you then conclude that members of the 6th Battalion did indeed

19 participate in the burial of the bodies there?

20 A. I suspect their activity involved the movement of numbers of

21 bodies from the school at Petkovci to the dam. I don't know whether -- I

22 mean, we have that from some -- from the documents or the records in that

23 respect. I don't know if they were actually present with respect to the

24 actual excavation of the burial site at the foot of the dam.

25 Q. Can we then agree that the process of burial also implied this

Page 5209

1 segment, the transport of the bodies from Branjevo and from Pilica to the

2 site of burial and in part Petkovci -- the transport from the school to

3 the place where they were buried in Petkovci. Would that also be involved

4 in this whole thing?

5 A. I believe that would be a fair statement. We know that from

6 witnesses that at least of the detention sites, Orahovac, Petkovci, and

7 the school at Kula, that there were various numbers of Bosnian Muslims who

8 were killed in those facilities. So while the bulk of the people executed

9 did so or died on the killing fields, so to speak, there were bodies at

10 each of the schools, which presumably would have to be policed up and

11 brought to the burial site itself.

12 In the case of Pilica Dom, or the dome of culture in that respect,

13 all of those bodies would have to have been brought from the Dom to the

14 Branjevo Military Farm where they were buried with the other bodies.

15 Q. Mr. Butler, can the chief of engineering, in view of his

16 authority, ever direct elements of a battalion and can the chief of

17 engineering direct the commander of an infantry battalion?

18 A. No, sir. Within his competence, the chief of engineering directs

19 the activities of the engineer company. He does not have the competence

20 to give orders to infantry battalion commanders unless specifically

21 directed to do so by the chief of staff or brigade commander in that

22 instance. That is not something he would do as a normal basis of his

23 functions.

24 Q. Thank you, Mr. Butler. This is what I wanted to get in the

25 answer. Can the chief of engineering, as a rule, direct - again the term

Page 5210

1 "direction" - direct the utility company or direct the civilian protection

2 units?

3 A. With respect to the utility company, my understanding is that the

4 assistant commander for rear services would be the most logical focal

5 point or individual to do the interface and coordination between the

6 military logistics branch and the civilian economic infrastructure. With

7 respect to civilian protection units, I suspect that that would be

8 something that would be -- that would have to be coordinated by the

9 brigade commander or chief of staff. They may choose to do it through the

10 assistant commander for rear services, but I do not believe that within

11 his competence that assistant commander can independently direct those

12 units.

13 Q. If I understood you properly, it's obvious that the chief of

14 engineering in any situation cannot be the one to direct any of these

15 assets.

16 A. I agree. I mean, certainly the chief of engineering would be the

17 person who would have the largest or the most comprehensive background on

18 the general availability of civilian engineering assets which might have

19 military uses. But according to the rules, the procedure should be that

20 once those assets have been identified as being required for requisition

21 by the military, the requisition process would go through the assistant

22 commander for rear services.

23 Q. Precisely, Mr. Butler. We are prepared to also show how this

24 works in practice, but we'll come to that. As far as I have understood

25 you, direction, according to the instructions on the work of commands and

Page 5211

1 staff, implies planning, organising, commanding, coordination, and

2 control. Am I right when I say that?

3 A. I believe using the phrase "direction," yes those are all part of

4 the overall process by which a -- I don't want to say just a commander,

5 but a person in charge at the superior level enforces his tasks or

6 directions on subordinates.

7 Q. So am I right when I say that the term "direction," the chief of

8 engineering cannot be the person or cannot be at the level strategic,

9 operative, or tactical which would be able to plan, oversee, organise, and

10 execute a certain activity in the brigade?

11 A. I would disagree. I would say that with respect to the brigade

12 that his responsibility as the chief of engineering, it is within his

13 competence to be able to plan engineer operations. And at the -- he

14 recommends them to the commander or chief of staff. Once these

15 recommendations are accepted, he then works on behalf of the commander or

16 chief of staff to oversee them, to ensure they're organised properly, and

17 if necessary give supplemental orders in order to ensure that the task is

18 carried out.

19 Q. During the work and the analysis of what happened in the Zvornik

20 Brigade on the 14th, 15th, 16th, and 17th of July, did you come across any

21 written document which implied planning of these activities and which was

22 signed by the chief of engineering, Dragan Jokic?

23 A. With respect to orders or things of that nature, I do not have any

24 orders signed by Dragan Jokic as the chief of engineering during that 14th

25 through 17th July period. So in that respect, I do not have documents

Page 5212

1 which would manifest such a planning process.

2 Q. Thank you, Mr. Butler. Did you come to any knowledge about there

3 being a written document in the form of a travel or a work authorisation

4 conducive to sending the mechanical equipment to Petkovci?

5 A. No, sir. I don't have a document which reflects that.

6 Q. Thank you, Mr. Butler. I think that you've also said that when

7 you -- in your testimony -- so I just wanted to continue. In the course

8 of your analysis of the evidence that was available to you, did you ever

9 come across information that Dragan Jokic was physically present at any

10 one of those burial sites that we mentioned, Orahovac, Petkovci, Kozluk,

11 and Branjevo?

12 A. No, sir, I don't believe that I have come across any evidence

13 which physically puts him -- during the periods that the burial operation

14 took place, from the 14th through the 18th.

15 Q. Thank you, Mr. Butler, for that answer. And another question from

16 this particular area and then I will be finished with it. I understood,

17 and I learned today, that the elements of command, the instruments,

18 documents of command, orders, commands, instructions, and directives. Am

19 I right in that?

20 A. Yes, sir, I believe those definitions come out of the manual for

21 the work of command and staff.

22 Q. In your analysis, did you ever come across any document in this

23 period - we're talking about the whole period of July 1995 - in the form

24 of an order, a command, an instruction, or a directive which was signed by

25 Dragan Jokic?

Page 5213

1 A. I don't believe that we have one of those, sir, no, during this

2 period of July 1995. There may be some towards the back end of the month

3 that we haven't examined, but certainly from the period to 23 July 1995,

4 other than, for example, the duty book that we've received recently from

5 Colonel Obrenovic, there are no orders or other documents that are signed

6 by, at that time, Major Jokic.

7 Q. Thank you for this answer, Mr. Butler. Although I asked whether

8 there was an order, a command, an instruction, and a directive, so the

9 notes in this book are not in the form or are not the contents of an

10 order. Am I right?

11 A. Not in that same respect, so then the answer would be: No, there

12 are no documents that I am aware of that reflect that.

13 Q. Thank you. We will come to that book, and we will analyse each

14 note that is written down in that book, but let's continue. Could you

15 please help me, in order to clarify certain practical situations which

16 occurred in that period, on the 14th and the 15th. Could you please tell

17 me what the term "resubordination" means, what does it imply?

18 A. The term implies or defines the act where a unit or formation

19 which is normally organic to one formation or its parent formation is -

20 and I don't want to mix terms of art here, but it is attached to another

21 unit for either a specific time or specific tasks. I don't want to mix,

22 again, Western term of art and JNA, but it essentially is the taking of a

23 unit from where it normally belongs and then putting it under the command

24 of a different unit in order to conduct its military tasks. It is

25 temporary in nature; it is not considered to be a permanent type of

Page 5214

1 change.

2 Q. You said that the unit is placed under the command of another

3 unit. Under the term "command," does that imply control of the legality

4 of the execution of the combat tasks of this subordinated unit?

5 A. Within the -- the way it was to be defined within the JNA and

6 later VRS, it would with respect to not only the execution of the combat

7 tasks but -- and also a wider role with respect to other issues. For

8 example, in a Western term of art with respect to this, attached or put

9 under the operational control of one unit is a limiting term which means

10 for the use in combat tasks or other tasks that have been agreed to.

11 Within the VRS, as I understand it as it was exercised in 1995, it could

12 be broader. For example, if a soldier in a unit that had been

13 resubordinated from one command to another had committed a criminal act,

14 under their doctrine it would be the responsibility of the unit command

15 which he had been resubordinated to to initiate the procedure for criminal

16 sanctions. That's different than in the Western system where it normally

17 would still be the responsibility of the parent command or the original

18 command to do that.

19 In other areas, for example, such as personnel administration,

20 while the unit is resubordinated for combat tasks, the parent unit still

21 maintains responsibility for personnel administration of the soldiers or

22 officers with respect to pay, with respect to various other forms of

23 administrative routine. So it doesn't compare equally to the Western term

24 of art, which is just with respect to combat operations, but it is also

25 not a full change over of permanency within command. I hope that came out

Page 5215

1 clear the way I explained it.

2 Q. If I understand you properly, we're talking about the relevant

3 period, so we're talking about July 1995. The rules provide that with

4 resubordination, the soldier or the unit which participates in a crime is

5 responsible to the command or the officer to whom it is resubordinated.

6 Am I right?

7 A. Yes, sir. That is how the VRS chose to delineate that particular

8 responsibility. It would be the responsibility of the command that had

9 received that unit and whose subordination they were under at the time to

10 initiate the actions there.

11 Q. Can I conclude, based on that, that the commander of the units,

12 that is sending a part of its manpower to the resubordinated would be

13 responsible up until the moment those soldiers came under the jurisdiction

14 of the superiors of the unit to whom they are being resubordinated?

15 A. Yes, sir, that is correct. And again the practical application

16 that we see of that with respect to many of the actions of the military

17 prosecutor is a situation where before charges can be filed or

18 investigations can be started against various soldiers, the effort is made

19 to find out under whose command they were at the time the offence

20 occurred. If, for example - and again using this as nothing more than a

21 hypothetical example - if a unit or if soldiers from the Bratunac Brigade

22 which had been subordinated or resubordinated to the Sarajevo Romanija

23 Corps committed a number of criminal acts in that area and then returned

24 to Bratunac, the process would be that it would be the responsibility of

25 the Sarajevo Romanija Corps, whom they were under at the time of the

Page 5216

1 commission of the acts, to initiate proceedings. So hopefully that

2 example -- and again, it's completely hypothetical with respect to

3 players, underscores the idea that I'm trying to get across.

4 Q. Yes, precisely Mr. Butler. I just want to ask you: Would you

5 agree with me that resubordination, because of the requirements of the

6 combat operations in the VRS, was something that happened quite

7 frequently?

8 A. Yes, sir.

9 Q. There were frequent occurrences of being transferred from the area

10 of responsibility of the Drina Corps to the IB Corps or the Sarajevo

11 Corps, so because of a lack of manpower the situation was that

12 resubordination was something that was resorted to quite frequently?

13 A. Yes, sir, that is correct.

14 Q. Mr. Butler, I would just like to ask you to help us with the term

15 "resubordination." Could we clarify the following situation. I will try

16 hypothetically, using hypothetical examples in order to make it clear to

17 me and everyone else here. So could you please try to answer the

18 questions that I will put to you first. First we have the following

19 hypothetical situation: Parts of the Zvornik Brigade are participating in

20 the Krivaja 95 operation. I assume that you know that this was actually

21 the practical situation, wasn't it?

22 A. Yes, sir, that is correct.

23 Q. The commander of the Zvornik Brigade, Pandurevic, is given a task.

24 He forms, I would call it, an ad hoc unit and goes to execute his task to

25 the area of the Srebrenica safe area. Amongst others, he takes two

Page 5217

1 members of the engineering company with him. They're pioneers, as they're

2 called, or people who are qualified for demining activities. In the

3 Krivaja 95 operations in the area of Srebrenica, one of the members of the

4 engineering company commits a war crime. Who does he belong to as a

5 soldier? Who is his commander? Who needs to report the act? And who is

6 supposed to punish him?

7 A. In this particular respect, and given the fact that while the

8 units of the Zvornik Brigade are involved in Krivaja 95, that they did not

9 resubordinate under the command of the Bratunac Brigade, the soldier to

10 whichever battle group that he particularly belonged to or directly to the

11 command element of the ad hoc unit which was created and then from there

12 to its commander, which would be Pandurevic in this particular case.

13 Q. Is there any situation in this relationship that such a unit would

14 be directly accountable to the Drina Corps, because it was moved from the

15 zone of operational activities of the Zvornik Brigade and was transferred

16 to the Srebrenica area?

17 A. I would say that given the physical presence of the brigade

18 commander, first of all; and second, as a Drina Corps unit it would always

19 be under the general jurisdiction of the Drina Corps. The fact that

20 Pandurevic is leading the unit means that it goes through him. I do not

21 believe that you can say that because they're operating out of the brigade

22 zone, even though the brigade commander is present, that because he's out

23 of his zone he would not have that command function and responsibility.

24 So the chain of command exists, it just existed in a different location

25 than the normal zone.

Page 5218

1 If, for example, to look at the other side of this hypothetical,

2 if the battle group in question had not been led by the brigade commander

3 or members of the staff and in fact had been placed directly subordinate

4 to the Drina Corps IKM or to, perhaps, another brigade to reinforce them,

5 then you would have a situation where perhaps the brigade commander is not

6 involved and it would be a different brigade commander or directly to the

7 command and staff of the Drina Corps.

8 Q. Very well. Can we then agree that in this hypothetical situation,

9 a crime committed by a member of the engineering company is not something

10 that the commander of the engineering company would ever be held

11 responsible for?

12 MR. McCLOSKEY: Your Honour.

13 JUDGE LIU: Yes.

14 MR. McCLOSKEY: I object at this point. Hypotheticals for general

15 background -- to give us an idea of general background questions, I'm not

16 objecting to. But if we're getting very specific, in order for it to be

17 relevant it should reflect facts that the counsel anticipates coming into

18 the record or that have already been in the record so that it has some

19 relevance to what we're doing. I'm not aware of any facts that are

20 relevant regarding the pioneers committing any crimes. As a general

21 hypothetical to give us a broad picture, I have no objection. But now

22 we're getting into deeper hypotheticals that really didn't exist. I think

23 one did exist that counsel may be getting to, but at this point I'm

24 objecting any further going into this hypothetical for relevancy.

25 JUDGE LIU: Yes, I think that objection is quite relevant.

Page 5219

1 Mr. Stojanovic, you have to show a specific case rather than give

2 some very general, hypothetical questions to this witness, otherwise we'll

3 get no where.

4 MR. STOJANOVIC: [Interpretation] I agree, Your Honour. I shall

5 now refer to 46.4 of the indictment and I will move to a specific

6 situation. This was just a background for the question I am about to put

7 and I will refrain from further hypothetical questions; there is no need

8 for them.

9 Q. Mr. Butler, let's go back to more specific issues. A second

10 situation in which I would like you to talk about resubordination and I'm

11 asking for your opinion is the following: An officer of the Main Staff

12 comes to the command of the Zvornik Brigade and asks to use an engineering

13 unit. The way he asks is for -- the equipment of the Zvornik Brigade

14 engineers should be sent to the zone of responsibility of the 2nd Brigade.

15 Who's supposed to approve such a move? Who is it in the system who is to

16 approve for this engineer or for that unit to go to the zone of

17 responsibility of the 2nd Brigade? And I apologise for using the term

18 "zone of responsibility." I know how disputable it is.

19 A. Assuming that we're talking about an officer on the Main Staff who

20 is in fact in the engineering branch and within his competence to do so,

21 and again assuming that it has gone through the next level of command

22 which is the Drina Corps, given that you have the physical movement of

23 brigade troops and resources from one unit to another unit, this is

24 something that would have to be cleared through by the brigade commander.

25 It is something that would involve him.

Page 5220

1 Q. Thank you, Mr. Butler. This was an answer that I expected; that's

2 why I laid a hypothetical background. And another thing about

3 subordination. The units of the civilian protection, their command, can

4 they be subordinated or resubordinated to the army or, alternatively, do

5 they work according to their authorities and coordinate their activities

6 with the army?

7 A. I believe that it is the latter. They work according to their

8 authorities which are a part under the auspices of the Ministry of

9 Defence, they coordinate their activities with the army. There may be

10 times when they can be physically subordinated to units of the army, but

11 again that is not something that the army itself can manifest. That

12 direction would have to come from the Ministry of Defence.

13 Q. Yes, precisely. So the Ministry of Defence of the Republika

14 Srpska is the one that can order the use of civilian protection and

15 coordination of the units of the civilian protection with the army. And

16 it is never a brigade commander or the commander of any other tactical

17 unit. Isn't that so?

18 A. Presumably if the brigade commander needed to use the civilian

19 protection assets, the permission to actually use them may be delegated

20 down to the Ministry of Defence office in that specific municipality, but

21 it is certainly something that has to at least go through the Ministry of

22 Defence chain of approval. It is not an independent act that that brigade

23 commander can do on his own.

24 (redacted)

25 (redacted)

Page 5221

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 A. I probably have. It may have been a while. I believe -- let me

6 take a moment here to just kind of scan through it. Okay, sir, I believe

7 I'm familiar with this statement. Yes, sir.

8 Q. So this is a statement by a member of the engineers; his name is

9 mentioned on the list that you have analysed and who -- that we are going

10 to look at today. This is the person which is mentioned in one part of

11 the indictment against Dragan Jokic.

12 MR. STOJANOVIC: [Interpretation] Your Honour, I have been told

13 that maybe if I mention the name of this witness, although he's not a

14 protected witness, that if -- maybe we should go into private session if

15 the Prosecution wants us to do so.

16 JUDGE LIU: Yes, Mr. McCloskey.

17 MR. McCLOSKEY: Yes. Just for a second I think if we could go

18 into private session, I think we can clear up the issue.

19 JUDGE LIU: Yes, we'll go to private session, please.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 5222












12 Page 5222 redacted, private session














Page 5223

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

6 JUDGE LIU: Now we are in open session. You may proceed.

7 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. And

8 thank you to my learned friends. So I can use the name of the witness, so

9 I will use P178.

10 Q. Mr. Butler, can you please comment on what you see on page 8, line

11 20 of this witness's statement, that is, the English version of the

12 statement.

13 MR. STOJANOVIC: [Interpretation] The interpreters have this

14 statement in B/C/S as well, so I believe we will be able to follow this

15 part of the statement.

16 Q. I'm going to read the relevant part that I would like to ask you

17 something about. So the question was where he was on the 14th. He says:

18 "On Friday morning, Major Jokic told me to get ready, together with a

19 truck, to report to the civilian protection in Zvornik. I didn't know

20 where I was headed for. I reported to the civilian protection when I

21 prepared the truck and they told me to wait. I was in the lorry, and

22 after noon, we left for Bratunac. Together with me, there were Rajko

23 Djokic from the civilian protection and Dragan Mirkovic and Arsen Krunic.

24 Those people worked in the civilian protection."

25 And then the investigator asks him to repeat the names and he

Page 5224

1 repeats the names and says at the end: "Once we started," and he refers

2 to these people, "the told me that we were on our way to Bratunac, and

3 that we would stay there for 15 to 20 days to clean Srebrenica.

4 Srebrenica was very dirty."

5 Could you follow this part? Could you -- did you find it could

6 you read it, and could you and follow it, Mr. Butler?

7 A. Yes, sir, that is correct. I was able to track it and I

8 understand.

9 Q. So these questions are relative to the situation that we have just

10 discussed. This is a member on the engineering unit and he's talking

11 about being sent by Jokic to the civilian protection in Zvornik. Isn't

12 that correct?

13 A. Yes, sir, that is correct.

14 Q. He spends about half a day there, and after that together with

15 three other members of the civilian protection from Zvornik, he leaves for

16 Bratunac to execute a task which consisted of the clean-up operation of

17 Srebrenica. This is the task he was given by the people who were in his

18 company. Is that correct?

19 A. It was a task that he was given by the civil protection people,

20 yes, sir. Whether or not -- I mean, I have to assume that the task was

21 cleared through the engineer company, although it doesn't specify in this

22 part of the interview. But I mean, I think it's a fair assumption that

23 the task was cleared through the engineer company, particularly if it was

24 going to be 15 to 30 days.

25 Q. Yes. We shall come to that and we shall see whether the documents

Page 5225

1 of the engineer's company did back up such an activity. But let's not

2 waste time reading this document. This member of the engineering arrives

3 in Bratunac, does not receive any task, stays at the Hotel Fontana on the

4 night between Friday and Saturday. Then on Saturday from members of the

5 civilian protection of Bratunac, he is escorted by a member of the

6 civilian protection from Bratunac. He goes to the Kravica warehouse and

7 he receives a task to transport bodies of the killed civilians from the

8 Kravica warehouse to the mass grave in Glogova.

9 My question to you, Mr. Butler, is as follows: In view of what

10 you have told us about resubordination, who does this soldier belong to on

11 the 15th of July when he finds himself in the Kravica warehouse?

12 A. In this particular instance -- again, probably the most

13 conservative way to look at it would be that he would have been detached

14 from his company in Zvornik and attached or resubordinated to the civilian

15 protection people and would still be under their direction, leading to

16 these tasks at the Kravica warehouse. So I think that's probably, again,

17 the most conservative way to look at that. I mean, again given the

18 fact -- at least with respect to this particular individual, the function

19 that he's being asked to do, at least from his respect, is not criminal

20 in nature. Again, his responsibility would be to -- the fact that he was

21 attached to the civilian protection regiment -- or, I'm sorry, probably on

22 the civilian protection organisation, not regiment.

23 Q. If I understand you well, on arrival in Bratunac and on receiving

24 his orders from the civilian protection in Bratunac, from that moment on

25 he is subordinated to them. Is that correct?

Page 5226

1 A. I'm not sure how it would work with respect to he was detached

2 from his company in Zvornik, the engineer company, and then put at the

3 disposal of the civilian protection people in Zvornik. They sent him down

4 pursuant to a task in Bratunac. I don't know enough about the organs of

5 the civilian protection with respect to how they exercise control of their

6 people to be able to make an observation as to whether he's working for

7 the civilian protection people in Zvornik down in Bratunac or whether he's

8 working directly for the civilian protection people in Bratunac. But I am

9 comfortable saying that while he's conducting this particular activity,

10 he's certainly not under the direct command of the engineer company in

11 Zvornik.

12 Q. Yes, precisely, Mr. Butler. Does that mean then that in legal

13 terms according to the rules of the Army of Republika Srpska he should be

14 processed if he had participated in the war crimes by those that he was

15 resubordinated to?

16 A. I don't know the answer to that, again primarily because I don't

17 know enough about the civilian protection organisation with respect to how

18 that works. Whether the civilian protection organisation would go through

19 the armed forces or whether they would request that the parent unit take

20 legal action, I just don't know the answer to that.

21 Q. Do you have any information as to whether at any point in time

22 somebody from the civilian protection of Bratunac or Srebrenica informed

23 the commander of the Zvornik Brigade that this particular soldier of the

24 engineering company of the Zvornik Brigade participated in any sort of

25 crime?

Page 5227

1 A. No, sir, I don't believe so.

2 Q. Thank you, Mr. Butler. Just one more thing to clarify. If I

3 understood you well, the arrival in the zone of responsibility of a

4 different brigade or by a soldier of the Zvornik Brigade and a piece of

5 equipment of the Zvornik Brigade implies that the commander has been

6 informed and has approved that; I'm talking about the brigade commander

7 here.

8 A. In this particular case, the implication is both the commander of

9 the brigade which is detached that soldier or equipment and if it's

10 resubordinated to the other brigade the implication that the receiving

11 commander is aware of that fact as well.

12 Q. Do you agree with me that the commander of the engineers according

13 to the rule is not authorised, does not have the authority, to send one of

14 his soldiers together with equipment to the zone of responsibility of a

15 different brigade if his commander is not aware of that?

16 A. I would agree. I don't think that the engineer company commander

17 would be able to do that unless he were doing it pursuant to the orders of

18 the brigade commander.

19 JUDGE LIU: Yes.

20 MR. McCLOSKEY: Just a clarification there. It's not clear if

21 we're talking about the chief of engineering or commander of the

22 engineering company, and that of course is an important distinction.

23 JUDGE LIU: Yes.

24 MR. STOJANOVIC: [Interpretation] Next question. I have put my

25 question precisely in the way it was answered. I asked about the

Page 5228

1 commander of the engineers company.

2 Q. My next question is: Am I right in assuming that not even the

3 chief of the engineering company can do something like that without a

4 prior approval of the commander of the brigade?

5 A. Yes, sir. I believe that's a fair assumption.

6 Q. Thank you, Mr. Butler. I would like to go back to one segment of

7 the indictment, since we are talking about item 46.4 of the indictment

8 where my client is charged with being in command [as interpreted] of this

9 soldier of the engineers company and that he was the one in charge of the

10 removal and burial of the bodies in the Kravica warehouse.

11 In such a situation, Mr. Butler, can we talk about the chief of

12 engineers being in a position to plan such an activity if the event indeed

13 happened in the way portrayed by this particular witness?

14 A. With respect to the statement by this individual witness, the

15 witness indicates - and I'm at page 8, line 20 of the English language

16 translation - that he was ordered by Major Jokic to - with his truck - to

17 go to and report to civilian defence in Zvornik. The witness, at least to

18 my knowledge in this particular part, does not indicate whether or not

19 Major Jokic had an advanced knowledge of where this individual would be

20 going and what he would be doing.

21 JUDGE LIU: Well, Ms. Sinatra, what's the problem?

22 MS. SINATRA: Yes, Your Honour, there is a problem with the

23 transcript and it's a very important one to the defence of Mr. Jokic. On

24 line 22, 16.09.57, it says: "My client is charged with being in command

25 of the soldier." And Mr. Stojanovic never said "command", he said "under

Page 5229

1 the direction." And it's a very important distinction in the record. So

2 I would like for the record to reflect that we need to make that

3 correction before we go any further, because command and direction are two

4 different things.

5 JUDGE LIU: Mr. McCloskey.

6 MR. McCLOSKEY: Yes, that is correct, Your Honour. And just to

7 further clarify it, the indictment -- that's what the indictment says,

8 that this soldier was under the direction of Mr. Jokic. There's not this

9 talk about him being in command and planning the operation. That's not

10 there and it's not in the indictment, and I know we have sometimes

11 translation issues which is why I had spoken earlier.

12 JUDGE LIU: Thank you very much.

13 Well, Ms. Sinatra, I think you made a very good point, but you

14 have to bear in mind that I can only deal with one counsel to this

15 witness. So if you have some problems, just pass it over to the lead

16 counsel and I think we will make that correction.

17 MS. SINATRA: Your Honour, this was just such a very important

18 piece of technical transcription, and Mr. Stojanovic can't see the monitor

19 at the time I'm viewing it. But also I do want to bring to the

20 Trial Chamber's attention that when Mr. Viada from Spain was

21 cross-examining, Ms. Issa was allowed to assist him at the same time on

22 the Prosecution's team. I just ask for equal treatment for the Defence

23 team as well.

24 JUDGE LIU: Well, it depends what kind of issue, whether it's a

25 procedural issue or a substantive issue. Here we come across a

Page 5230

1 substantive issue, so I hope that one counsel should deal with one witness

2 at a time. But if there's a procedural issue, you may raise your

3 suggestions and comments on this part. Whether it's a substantive or

4 procedural can be decided by the Bench.

5 MS. SINATRA: I would like to bring to the attention that

6 Mr. Stojanovic's doesn't read English so he doesn't know what the

7 translation is coming up. And reflecting -- and I would like to ask the

8 Trial Chamber's permission during this cross-examination to assist in any

9 way that I can.

10 JUDGE LIU: Well, of course you could but the best way is to maybe

11 put it down on a piece of paper and pass it to your interpreter and to

12 Mr. Stojanovic. But anyway, your intervention has got a point. Thank

13 you.

14 You may proceed, Mr. Stojanovic.

15 MR. STOJANOVIC: [Interpretation] I believe that we have

16 interrupted Mr. Butler, if I'm not mistaken. So let me just resume.

17 Q. Mr. Butler, you started talking about page 8, line 20, and this

18 witness says that Major Jokic ordered him. And then you said: I don't

19 know whether Major Jokic knew anything in advance about all this, and

20 apologise, I'm just paraphrasing what you said before we interrupted you.

21 A. That's correct, sir. The statement, or at least this segment of

22 it, does not indicate that Major Jokic instructed the witness in this case

23 why he was going down to Kravica and what the purpose was. So again, not

24 knowing that, it's hard to infer criminal or other intent behind it. I

25 mean, again most conservatively, at a point in time the command of the

Page 5231

1 Zvornik Brigade was instructed to send individuals down for -- to begin

2 the clean-up operation at the Kravica warehouse or to assist in the

3 operation. It would not presumably have been necessary as a component of

4 that for anyone who initiated the order from Bratunac or from the Drina

5 Corps or from the Main Staff to have explained in detail to the Zvornik

6 Brigade why they needed the individual and what the greater context of it,

7 whether it was a criminal act or a legitimate act or something of that

8 nature. So like I said, there are a lot of facts, that obviously I don't

9 know associated with this, but there certainly -- the interpretation that

10 there's nothing intrinsically incorrect or unlawful about at this point

11 what Major Jokic is asking this particular individual or directing him to

12 do and who to report to.

13 Q. Thank you, Mr. Butler. We will continue on to prove exactly where

14 Major Jokic sent him, and this witness will probably tell us that, but we

15 wanted to hear from you that in all of these actions there is nothing

16 criminal in any of them. Thank you very much.

17 MR. STOJANOVIC: [Interpretation] I don't know if I am mistaken,

18 but it is the time for a break now or are we planning to take a break at

19 4.30?

20 JUDGE LIU: Well, we are going to take a break at 4.30, but if you

21 like we could break now and have an early start.

22 MR. STOJANOVIC: [Interpretation] We say tie the horse where the

23 aga tells you, so I am completely in the Court's hands. I can either wait

24 until after the break or I can move on to the next topic now.

25 JUDGE LIU: Well, let's sit ten minutes more. We'll break at

Page 5232

1 4.30.

2 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

3 Q. Mr. Butler, I would just like to at least start on a new topic

4 which I think could be very interesting, and that is the command of the

5 engineering company.

6 And I would just like the usher to help us to show the witness

7 Exhibit D26 and D41, and then we can comment on them together.

8 Mr. Butler, could we first look at Exhibit D26/3. These are --

9 and this is Rule 24, company and then engineering platoon.

10 A. You have me at a bit of a disadvantage. The versions which I have

11 do not have the exhibit number on them, so I'm just -- let me put it on

12 the ELMO and you'll tell me, I assume, if it's the right document. This

13 particular one, sir?

14 Q. Yes, it is. You're right. That's the one. You did not include

15 this exhibit in your analysis, but the Defence used it already when it was

16 examining Mr. Obrenovic. So it has its ID number, and that's D26/3, but I

17 just want to ask you if we can try to comment on this, Article 25.

18 What commands the engineering company, Mr. Butler?

19 A. It would be the engineering company commander.

20 Q. So in this controversial period, in July 1995, did the Zvornik

21 Brigade have an engineering company or platoon in its composition?

22 A. Yes, sir. They did have an engineering company in its

23 composition.

24 Q. And I think that during the examination-in-chief, you said that

25 this engineering company numbered approximately 90 men. Am I right?

Page 5233

1 A. Yes, sir, I believe that is correct.

2 Q. Could you please help us a little bit about the structure of the

3 Zvornik Brigade Engineering Company, how many platoons did it have and

4 what were they called?

5 A. It was organised into three platoons. One, I believe, was a

6 pioneer platoon; the other was a general engineering construction platoon;

7 and I believe the third platoon was heavy equipment and road building.

8 Q. And these three platoons, did they have their commanders in July

9 1995?

10 A. Yes, sir. There were designated platoon commanders for each

11 platoon.

12 Q. And in view of their training and education, were these platoon

13 commanders able to carry out the tasks and duties of platoon commanders?

14 A. The education and training of both the company commander at the

15 time and the platoon commanders were certainly not up to what the JNA

16 would have envisioned for its officers under those circumstances. In many

17 cases, and I believe probably an excellent example is in the case of the

18 company commander, they were civil engineers, some of who had very limited

19 military background -- or in some cases with the platoon commanders,

20 civilian construction workers, who because of their technical training

21 were placed in those positions.

22 Q. That is exactly what I wanted to ask you. Would you agree with me

23 that two platoons of the engineering company - so we're calling it the

24 road-building platoon and this one -- you called it general engineering

25 and construction and this other one for heavy equipment and road building,

Page 5234

1 by their structures don't they imply the know-how of people who are

2 involved in construction, road building, and things like that; whereas,

3 the pioneering platoon which is involved in laying down mines, demining,

4 and so on is one that is more dealing with strictly military tasks and

5 requires more of military know-how in order to do that. Would you agree

6 with me?

7 A. The other two functions are also military tasks, so I think it's

8 just a question of focus. All three functions are military-related

9 functions. All three, ideally you would have experienced individuals.

10 And certainly in the case of the Zvornik Brigade at that time, the level

11 of experienced officers who could have performed that function would not

12 be what a commander would obviously like to have. They were doing the

13 best that they could under the circumstances, like everyone else.

14 Q. But we agreed that they were all people who were qualified for

15 construction equipment and construction activities. So as civilians, they

16 had undergone training to carry out such tasks. Am I correct in saying

17 that?

18 A. I believe that's a fair assumption, sir, yes. I can't say that as

19 a fact, I don't know, but I agree it's a fair assumption.

20 Q. Let's try to go back to this Article 25 we have in front of us,

21 Mr. Butler. You said a company is under the command of a company

22 commander. You also used the daily orders book or logbook of the

23 engineering company. Isn't that so, you used that in your testimony?

24 A. Yes, sir, that is correct.

25 Q. Would you agree with me if I say that the daily order logbook of

Page 5235

1 the commander of the engineering platoon is a book of commanding?

2 A. I believe it reflects the daily orders which were given either by

3 the engineering company commander or in his name. I'm not sure what you

4 mean by the phrase "is a book of commanding." So maybe there's, again, a

5 linguistic issue that could get some clarification.

6 MR. McCLOSKEY: I just noticed we're getting to the break, and

7 since we're going so long it would be nice to have a full break.

8 JUDGE LIU: Do you agree?

9 MR. STOJANOVIC: [Interpretation] I always agree with what the

10 Court says.

11 JUDGE LIU: Well, we'll have our break. We'll resume at 5.00.

12 --- Recess taken at 4.30 p.m.

13 --- On resuming at 5.01 p.m.

14 JUDGE LIU: Yes, Mr. Stojanovic, please continue. We'll sit until

15 6.30.

16 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

17 Q. Mr. Butler, we left it off with the question about the command

18 document. What does such a document imply? I'll try and clarify. I

19 believe we are on the same page; however, if you remember when we were

20 talking about control and command or directing and the command, we said

21 that command is carried out through instruction, command, order, and

22 directive, and here we have a book or a log of commands issued. Am I

23 right when I say that this is one aspect of documents used within the

24 process of commanding?

25 A. In that respect, sir, yes, this particular book reflects the

Page 5236

1 commands and orders that have been given. That is correct. So I believe

2 we are on the same sheet of paper again.

3 Q. Precisely. In that sense, I put my question to you. I said that

4 in view of the fact that companies commanded by the company command and

5 that his command are issued through orders and that this is what this book

6 is all about, the logbook of command orders?

7 A. Yes, sir. They reflect the orders and the tasks.

8 Q. Kindly look at the Defence exhibit under number 41/3. We are

9 talking about Article 21 of this book of rules. I assume that you have

10 already seen this and that you have already analysed this in the course of

11 your work?

12 A. Again, I don't believe we have the specific 1974 book. I've read

13 it over at the break, of course. But the roles and responsibilities of

14 the company platoon commander are not inconsistent with other regulations

15 that we have with that respect. So even though I say I haven't seen it

16 until recently, I can discuss it.

17 Q. Thank you. Just in brief outlines. If I understand you well,

18 Article 21 of these combat rules says that a platoon commander is in

19 command of a platoon and then Article 21 also lists the duties of the

20 platoon commander.

21 A. Yes, sir, that is correct.

22 Q. Line 5, duties of the company commander, it says that the

23 commander is the person who organises and implements the participation,

24 and then it lists the types of combat activities and defence activities.

25 Then line 6: Organises and controls the implementation of all the orders

Page 5237

1 issued and other measures of security prescribed. Then the next line, it

2 says: He controls the replenishment status of his company with all the

3 materiel and equipment. And then the last line: Controls the execution

4 of tasks, provides his subordinates with necessary assistance, and

5 informs. Am I right in saying that all of these are duties of a company

6 commander?

7 A. Yes, sir, that is correct.

8 Q. So according to the rules he is the one in command, who organises

9 the work of the company, who controls the implementation of orders, he is

10 one who controls the way these tasks were carried out, whether they were

11 carried out in a proper manner, and he is also the one who provides his

12 subordinates with the necessary assistance in the implementation of tasks

13 and orders. Am I right in assuming all this?

14 A. Yes, sir. With respect to his -- the direct command of his

15 company, all of this is as listed.

16 Q. Will you agree with me that at that time the engineering company

17 of the Zvornik Brigade had a deputy commander who was also the commanders'

18 existent for morale and religious matters. He was a member of that

19 company as well. Is that right?

20 A. I know there was one individual acting as the deputy commander in

21 the absence of the commander. I don't know that at the company level

22 there was a formalised position as a commander's assistant for morale

23 matters. I thought -- I think that was a little low with respect to where

24 you find those positions. I could be mistaken, but I think we're talking

25 about the same individual certainly functioning as the deputy commander.

Page 5238

1 Q. So what we have to agree on is the fact that at the time there was

2 a person who discharged the duties of the deputy commander and who

3 replaced the commander in his absence?

4 A. Yes, sir, I agree.

5 Q. Thank you, Mr. Butler.

6 I would kindly ask the usher to show -- to show you a part of the

7 transcript from the trial which took place on the 10th of October when

8 Obrenovic testified. So can this be put in front of you so that you could

9 provide us with some comments on this.

10 Kindly look at the first page at 11.31.19, can you please,

11 11.31.19. Can you please start reading from that line. At that moment, a

12 question was put by the Chamber and the witness answered: "The commander

13 of the engineers in July 1995 was Dragan Jevtic. He had all the

14 authorities and all the rights regulated by the rules which were then in

15 effect. He could command the unit. He could issue orders. In more

16 simple terms, he could issue tasks. At that time in July 1995, the chief

17 of engineers was Major Dragan Jokic. His position in the service was not

18 a command position. He was more like an advisory body. Looking from that

19 perspective, he was in the position to issue orders or to distribute

20 tasks. He could only provide professional advice."

21 And now we come to a paragraph that I would like you to comment

22 and help us with.

23 "However, according to a previous order issued by Lieutenant

24 Colonel Pandurevic, and in view of the complexity of the tasks that had to

25 be carried out by the engineers' company and because the commanders of

Page 5239

1 that company were not professionals and were not qualified in the field,

2 the commander authorised the chief of engineers to command the engineering

3 unit, which he did from time to time."

4 Within the context of this part of Obrenovic's testimony, I would

5 like to ask you a few questions. During your investigation, sir, did you

6 come across a document, a written exhibit that would prove that this

7 statement is correct? Have you come across a document proving that there

8 indeed was a transfer of command from the superior commander to the

9 subordinate commander in this matter?

10 A. There is nothing in writing to my knowledge with respect to a

11 transfer of command order which Colonel Pandurevic places Major Jokic in

12 command of the engineer company.

13 Q. Within the system of decision-making in such a serious matter,

14 could one expect that authorities were transferred from one company

15 commander to another company commander or to another officer -- should be

16 issued in a written form?

17 A. If we're talking about an actual transfer of command, yes, sir, it

18 would be in a written form.

19 Q. Would you then agree that the commander of the engineering unit

20 should be aware of something like that, that some of his authorities are

21 taken away from him by a certain decision if indeed there was a decision

22 of that kind?

23 A. That would be something that the company commander would be aware

24 of.

25 MR. STOJANOVIC: [Interpretation] Can I please ask the usher's

Page 5240

1 assistance again. Can you put Exhibit Number D47/1 and D40/3 and D47/2/3,

2 those are two statements given by the commander of the engineering company

3 when the OTP were carrying their investigation.

4 Q. Mr. Butler, kindly look at the English version, page 57, line 26,

5 in the statement given by this particular witness to the OTP.

6 A. Yes, sir, okay.

7 Q. Are you ready for my questions concerning this statement,

8 Mr. Butler?

9 A. Yes, sir.

10 Q. Thank you. If I'm not mistaken, Mr. Butler, you were present when

11 the commander of the engineering unit gave this statement. Is that

12 correct?

13 A. Yes, sir, that is correct.

14 Q. I'll try and read this part of the statement which is relevant,

15 and then I'll ask for your comment. Mr. McCloskey asks the question:

16 "Did you ever, meaning you the commander of the company, sign the bottom

17 of this book where the company commanders are mentioned." And the witness

18 says: "It is possible."

19 Then: "And what does that mean when you sign that bottom of the

20 orders, when you sign this page?"

21 And the answer: "It means basically that the order from the

22 brigade was forwarded and those are daily orders, what is being planned

23 for that particular day."

24 "Q. So it is just an acknowledgment of the commander's orders?

25 "A. Yes. I don't understand, which commander?

Page 5241

1 "Q. That would be Mr. Jokic, wouldn't it?

2 "Witness: Yes, yes. That's it.

3 "Q. Or maybe Obrenovic?

4 "A. Command of the brigade, because Jokic just passed it on

5 because Jokic couldn't issue orders."

6 If what the commander of the engineering unit is put in the

7 context of what you were talking about a little while ago, and that is

8 that if authorities were being taken away from the commander of the

9 engineers' unit, he should be aware of that. Would you then agree with me

10 that it is right to conclude that this simply did not exist, there is --

11 there was no authorities being taken away and there was no authorities

12 being passed on to somebody else. You said that there was no written

13 order to that effect and that the commander of the engineering unit should

14 be basically aware of any such thing.

15 A. Yes, sir, I agree. From this -- this passage -- this comment from

16 Mr. Jevtic reflecting that his understanding of the responsibility of the

17 engineer staff officer and the fact that you do -- you have a situation,

18 there's certainly no written order which might reflect that the command

19 competences of an engineer company -- of the engineer company commander

20 were somehow limited, I agree with your preposition on this.

21 Q. If I may conclude, thank you Mr. Butler. This part of Obrenovic's

22 testimony was not corroborated by anything that you came across during

23 your investigation in terms of any material evidence?

24 A. Certainly with respect to documents, nothing in the orders or

25 things of that nature. With respect to some other material, again it was

Page 5242

1 the general view that because of the lack of military experience that --

2 of the commander's, be it the company commander or the platoon commanders,

3 that the expectation was that the engineer staff officer would have an

4 additional burden with respect to making sure that orders from the brigade

5 being transmitted down to the engineer company were as precise and as

6 simple and as appropriately detailed as possible, knowing that once those

7 orders were received at the company level, they would do their best to

8 carry them out without having a long -- or a military background, so to

9 speak. Those are an increased emphasis on the roles of the staff officer.

10 Those are not abrogations of the company commander's own right to command.

11 So in that respect while Major Jokic is expected to play perhaps a

12 greater role in engineering-related functions in detailing the commander's

13 requirements down to the company, again from these two pieces of

14 information, it's not an abrogation or a limitation on the authorities or

15 the responsibility of the company commander.

16 Q. Mr. Butler, it has never been the objective of this Defence to say

17 that the chief of engineers is not duty-bound to transfer authorities.

18 Yes, he is a professional who can do that. But it has been our objective

19 to say that there is no written order to the effect of authorities being

20 taken away from the commander of the company and given to the chief of

21 engineers. Can we agree on that?

22 A. Yes, sir, I agree. I have not come across any document which

23 would reflect that.

24 Q. Thank you, Mr. Butler. And let's bring this to an end. Have you

25 ever during investigation come across any written order by which Jokic

Page 5243

1 issues any order to the engineering company?

2 A. The scope of the focus with respect to me and what we were doing

3 is generally in the July time frame. I can't say that of the roughly

4 15.000 Zvornik documents that we have, that I've gone back over prior

5 points in time just to look for something like that. It may exist, it may

6 not. I just don't know that I can give you a valid answer for that. I

7 haven't seen it but, outside of the July time frame, I haven't been

8 looking for it either.

9 Q. Thank you, Mr. Butler. Now, I would like to go back to Exhibit

10 Number 47, item 1, again the testimony of this same witness. And let's

11 look at page 75, line 26. The first statement, page 75, line 26 of the

12 English version, please.

13 Let's confirm what we have already said.

14 MR. STOJANOVIC: [Interpretation] I'll read the passage which I

15 think is important, Your Honours, on page 75, line 26. Again, the same

16 interview with the commander of the engineering unit, and the Prosecution

17 asks: "Okay. So if the 15 of you were in the field on the 13th, meaning

18 the 13th of July, 1995, how many of the 60 remaining were out in the field

19 on the 13th?"

20 The witness says: "I don't know. But I know when the 15 of us

21 lived in the company, there were maybe three or four persons left behind."

22 "Who were they?

23 "Slavko Bogicevic. I know that he stayed the time because he was

24 the assistant commander for morale and he was practically my replacement.

25 "Q. Who else?

Page 5244

1 "A. There were two or three other men and so on and so forth."

2 And then the next answer, page 76, line 12: "No, Slavko remains

3 there as the deputy of the company commander. I'm not sure who else

4 stayed.

5 "Q. How old was he?

6 "A. Who, Slavko? He was about 50.

7 "Q. What experience does he have in operating heavy construction

8 machinery and supervising construction works?

9 "A. Slavko was a member of the engineering unit before I joined.

10 He is a mechanical engineer by trade.

11 "Q. Could he run a large-scale operation in order to dig up a

12 number of holes?

13 "A. I don't know."

14 Can we agree, Mr. Butler, judging by this paragraph from the

15 statement that at that time the commander of the engineers who was not

16 there at the time, he had a deputy and that the deputy was the person who

17 is mentioned in this paragraph? Can we agree on that.

18 A. Yes, sir, that is correct.

19 Q. Can I, therefore, conclude, given what you said about single

20 officers, that there is always one officer present when commands are being

21 issued about the unity of command?

22 A. I'm not sure what -- I understand the question. There's always

23 one officer present? I mean, in a physical sense -- can you rephrase the

24 question perhaps.

25 Q. I'll rephrase the question. My understanding is that commanding

Page 5245

1 means that the chain of command is not interrupted. There must always be

2 someone who is in command, who issues commands. So the unity of command

3 means that there is always one person who is in command. Am I correct?

4 A. Yes, sir, that's correct.

5 Q. So it's within that context that I want to ask you this question:

6 We have a company commander, when he isn't present, when he isn't

7 physically present we have a deputy company commander. One of the

8 officers is always present in the company. Am I right?

9 A. Certainly someone within the chain of command is always going to

10 be present. I believe in this case the individual in question is

11 functioning as the deputy commander. I mean, he is an officer in that

12 respect. I'm not sure what his actual rank is. But within the context

13 that you mean this, that is correct. There is always going to be somebody

14 in command.

15 Q. That was my question. Could you just have a look at this addition

16 to the statement of the company commander. This is Exhibit 47.2/3. It's

17 a conversation between the Prosecution and the company commander dated the

18 17th -- the 11th of July, 2002. And at one point the Prosecutor asks the

19 witness, I think it's on page 2. He asks the witness whether he

20 remembered -- the Prosecutor asked the witness whether he remembered

21 telling them that Bogicevic was responsible for burials.

22 The witness replied, yes, when he wasn't in the company,

23 Bogicevic was in charge. And then the witness further stated that

24 Bogicevic on that day came with him 11th of July, 2002. He went with him

25 to Banja Luka and they spoke with him about the matter, but that he is not

Page 5246

1 sure whether Bogicevic would be prepared to tell the Prosecutor

2 everything. Have you found the place where this conversation took place?

3 A. Yes, sir.

4 Q. Would you agree that this is just a continuation of what we spoke

5 about a minute ago, if the company commander is not present, in such cases

6 his deputy takes over and replaces him?

7 A. Yes, sir, I agree.

8 Q. Thank you.

9 JUDGE LIU: Yes, Mr. McCloskey.

10 MR. McCLOSKEY: Your Honour, this appears to be -- we've gone over

11 this before, they're just using prior testimony or information reports not

12 to question or impeach or refresh the recollection of the witness, but to

13 establish factual points, and that is not -- that's not proper

14 cross-examination. He hasn't asked Mr. Butler any relevant questions

15 related to that. So I would object to the use of this material in such a

16 way. It's just -- we're going to just -- reading it over and saying: Is

17 that right. And he's saying yes. And then we go on to the next one. I

18 mean, there's a lot of witnesses out there. We could be here for a long

19 time. They're supposed to bring these folks in.

20 Though, on the other hand, I may be able to save some time that

21 Mr. Jokic is not charged with being a commander and it is the

22 understanding of the Prosecution that Mr. Bogicevic was the deputy

23 commander who was in command while Mr. Jevtic was in the field during

24 these critical days.

25 JUDGE LIU: I understand there is no dispute on those facts

Page 5247

1 between the parties.

2 Mr. Stojanovic, maybe the best way is you put a question to this

3 witness first, then you can show the documents in your hands to impeach

4 this witness. Maybe this is the best way. I understand you have tried to

5 identify a kind of chain of command which may be relevant to this case.

6 You may move on.

7 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I'm

8 aware of the fact that my client has never been charged with being in a

9 command position, but I'd just like to remind you that we're basing

10 ourselves on the testimony of Dragan Obrenovic in response to a question

11 by Judge Vassylenko. That's what we're basing ourselves on and on the

12 statements and the documents and the testimony of witnesses, we have

13 confirmed this. I won't ask any more questions about this. I will ask

14 Mr. Butler another question.

15 Q. I said I turn to 47/2/3, but I have no other questions about it.

16 Thank you.

17 I would now like to move on to another field which I think is of

18 great importance for the defence of my client that has to do with the

19 duties of the duty officer and the presence of officers from the Zvornik

20 Brigade and brigade command on the 14th and on the 15th.

21 Could you have a look at the transcript from the hearing of the

22 11th of November. D43/3 is the number of the document. Mr. Butler, could

23 you have a look at line 21 of the transcript when you answered

24 Mr. McCloskey's question about the duties of the duty officer.

25 "Most of the duties that the duty officer receives require that

Page 5248

1 he informs the commander of them, because this requires a commander's

2 decision or the decision of the chief of staff. But this means that the

3 duty officer," and this is what I want to ask you about. If the commander

4 and the chief of staff for any reason are not accessible - and we will

5 discuss this matter - are not accessible or it's not possible to establish

6 contact with them or you can't establish contact with them, the duty

7 officer, according to the rules, has the authority to take over the

8 initiative and issue the orders that are essential in accordance with the

9 combat situation at the time. That was your answer.

10 So I wanted to ask you a few questions about this. Could we have

11 a look at Exhibit P394. That's a rule that's called instructions on the

12 work of the command and staff. Is that correct, Mr. Butler?

13 A. Yes, sir, that is correct.

14 THE INTERPRETER: Microphone, please.

15 MR. STOJANOVIC: [Interpretation]

16 Q. And here you referred to Article 65 and Article 66 of these

17 regulations. Is that correct?

18 A. Yes, sir, that is correct.

19 Q. Could you please just show me when it is stated in the regulations

20 that the duty officer can, as you said, take over the initiative and issue

21 essential orders in these two cases if he is not available and if

22 communication cannot be established.

23 A. That is covered, in my opinion, by this first bullet here, which

24 is essentially to receive and dispatch orders and reports when other

25 organs are resting or when ordered to do so.

Page 5249

1 Q. For the sake of the transcript, could we read this. In Article 66

2 it says: "The duties of the duty officer include receiving and

3 dispatching orders and reports when other organs are resting or when

4 ordered to do so."

5 It doesn't state that he can take over the initiative and issue

6 orders. Am I correct?

7 A. It doesn't explicitly state that -- or does not, let me make sure

8 that's clear.

9 Q. Can I then draw the conclusion that this opinion of yours is based

10 on your interpretation of this decision?

11 A. I believe it is based on this as well as the practical

12 applications of the duty officer position that is reflected in other

13 documents. But with respect to this alone, yes, this is my interpretation

14 of it.

15 Q. So the rules do not state that he can issue orders, but

16 interpreting this in a broad sense, this is the conclusion you came to

17 with regard to those two cases when we're speaking about the commander not

18 being available and it being impossible to establish communication. Am I

19 correct?

20 A. Yes, sir. The position as defined leaves open the possibility, at

21 least with respect to my interpretation of it, that when critical orders

22 have been passed down from the superior command, if the commander or chief

23 of staff are not in the position to give the required orders, that the

24 duty officer as, in effect, the commander's representative is in power to

25 do so. That is why if one examines the duty officer rosters of the

Page 5250

1 brigades, it makes it clear that the position is only held by those people

2 who are considered to be superior commanding officers in deference to the

3 fact that they may need to make these decisions and should be experienced

4 people to do so.

5 Q. And you're saying that this is the case if the commander isn't

6 present or is not available or there is no telephone line that can be

7 established to speak to the commander?

8 A. It should be either the commander or the deputy commander, or even

9 if you were to take it one step further by position, the chief of

10 operations, who in the absence of the commander or deputy commander would

11 fill in as the acting deputy commander. If in a position where all three

12 of those are either not available or because of the military situation are

13 outside of the means of communication, it would be the duty officer

14 who would be expected to take over and pass or give the orders that would

15 be required under the situation.

16 Q. I have understood you, Mr. Butler, but I just want you to confirm

17 that this is your interpretation and not something that is contained in

18 the regulations. Is that correct?

19 A. No, sir. In this respect, it's not explicitly contained in

20 Article 66.

21 Q. Thank you. This new exhibit might help us to understand what the

22 duties of the commander are.

23 I would like to ask the usher to take our exhibit, D57. This is

24 the military encyclopedia dated from 1969 which provides the definition of

25 the duty officer. It's from the military encyclopedia. It's very brief.

Page 5251

1 I'd just like to read through it.

2 "The duty officer is the most senior organ of internal service

3 within a unit, command, institution, military compound barracks, and is

4 directly subordinated to the unit commander that positions him and on

5 whose behalf he issues the necessary orders and directs the activities of

6 the internal service and he maintains order in the unit. His duty lasts

7 for 24 hours."

8 Can you help us to understand what this means in the senior organ

9 of internal service, what does this mean, internal service in a brigade

10 command?

11 A. In this respect, when we're talking about the internal services of

12 a brigade command, that would be the operations section, that would also

13 include perhaps the rear services and morale personnel, those types of

14 general issues. I think that's what we're referring to in this respect

15 within the internal services of a unit or command if we try and translate

16 this to brigade. It's a very generic description. So I think that's what

17 we would be referring to in this context. The operational related

18 services of the brigade command.

19 Q. For us, the organ of general service means the lowest level of

20 service, the purpose of which is to provide services for the brigade

21 command - and through our expert we will discuss this matter in greater

22 detail. But the essence of the issue is that your interpretation of the

23 provisions of Article 66 is also based only on the fact that this occurs

24 when the commander is not available or when it's not possible to speak to

25 the commander over the phone.

Page 5252

1 In the course of your investigations, did you ever come to the

2 conclusion that the commander of the Zvornik Brigade or his deputy at the

3 time, on the 14th, the 15th, and the 16th, were not available and were not

4 in a position to perform their duties as commanders?

5 A. No, sir. Alternatively the brigade commander and the brigade

6 deputy commander were performing their duties. They were in, if not

7 always physical contact, certainly radio communications with the duty

8 operations section and the duty officer or his representative during the

9 period from the 14th through -- or even before that, the period of the

10 13th through the 17th. So in that context the deputy commander and

11 commander were always available with respect to the issuance of orders.

12 Q. Thank you, Mr. Butler. I think that all further questions are

13 superfluous now. I know we are not charged with command responsibility,

14 but for the sake of the Trial Chamber I wanted to demonstrate the position

15 of Dragan Jokic as a duty officer. I wanted to demonstrate what that

16 position actually was. This is why I want to go through what we have

17 prepared with you. Have you analysed the presence of Dragan Obrenovic in

18 the command of the Zvornik Brigade on the 14th of July, 1995?

19 A. His physical presence I assume which you're talking about?

20 Q. Yes. We've agreed that the -- there's always the possibility of

21 communication, but I wanted to clear up the matter of his physical

22 presence. On the 14th and 15th, up until that time -- the 14th and the

23 15th and the morning of the 15th.

24 A. Yes, sir. I have analysed that.

25 Q. And what conclusions did you come to, Mr. Butler?

Page 5253

1 A. Well, certainly there is differences -- I mean, first of all, with

2 respect to documents or intercepts, there is nothing that leads me to

3 conclude his physical presence. I am aware that not only Mr. Jokic but at

4 least one other witness has stated that on the 14th that Major Obrenovic

5 was present for at least some periods of time in the headquarters of the

6 Zvornik Brigade. It may be actually two other witnesses as well. On the

7 15th I believe that then Major Obrenovic acknowledges his presence with

8 respect to the meeting that occurred approximately noon on the 15th with

9 Mr. Vasic and then later Colonel Pandurevic arriving back from the Zepa

10 battlefield. And that would include individuals from the MUP and from --

11 specifically Colonel Borovcanin, Milos Stupar, Vasic was there, Obrenovic

12 was there, and then Pandurevic was there at various times within that

13 about one hour time frame.

14 So again, with respect to the 14th, there is conflicting

15 information. With respect to the 15th, I think most of the witness

16 accounts are fairly consistent.

17 Q. Mr. Butler, I'll try to say this as directly as possible, because

18 I think your joint objective is to establish the truth. Our Defence

19 claims that Dragan Obrenovic was in the command of the Zvornik Brigade in

20 the morning on the 14th of July. And up until about 1400 hours, after

21 that, he went to the frontline where there was fighting and he stayed

22 there until about 2000 hours on the 14th of July. At that time, at 2000

23 hours on the 14th of July, he returned again to the command of the Zvornik

24 Brigade and stayed there until the morning, until about 7.00 or 8.00 in

25 the morning. Then he returned to the frontline, Parlog, Snagovo,

Page 5254

1 Krizevici, we'll mention other places later, and then returned at about

2 10.00 to the Zvornik Brigade command. That is what we want to prove, we

3 want to establish before the Trial Chamber. Although, we know that there

4 is no reason to say that Jokic was in a position of command, we have

5 cleared this matter up. But we want to establish the truth, we want to

6 demonstrate what the truth is. And this is why I want to go through all

7 the exhibits that deal with what we are discussing and the Trial Chamber

8 will determine whether this is correct or not. I would like to go through

9 all these exhibits with you systematically, could you help me to do this?

10 A. Of course, sir, I'm at your disposal.

11 Q. Thank you, Mr. Butler. I assure you that we'll try to deal with

12 this very rapidly and to prove all of this. Could you please have a look

13 at Exhibit D57, it's the book of the notes of the duty officer in the

14 brigade. It's Exhibit 507, 5-0-7, 507.

15 THE INTERPRETER: Microphone, please. Microphone for Defence

16 counsel.

17 MR. STOJANOVIC: [Interpretation].

18 Q. I will also show you our exhibit, D53.

19 Could the usher please show it to the witness, because it's at the

20 beginning of the book that was provided by Obrenovic and I would like to

21 have some comments on this, too. It's marked D53.

22 Can we do this, Mr. Butler? When you carried out your analysis,

23 did you conclude that at a given moment in time, in July 1995, that the

24 9th Battalion was in the Zvornik Brigade, too?

25 A. I'm not familiar with a designation of a 9th Infantry Battalion.

Page 5255

1 I'm wondering if what we're talking about in the Nisici [Realtime

2 transcript read in error "Nedzici"] Battalion, if that wasn't the

3 battalion that was assembled by the Zvornik Brigade and became part of the

4 4th Drinski Brigade which then went to Trnovo. But organisationally

5 speaking, I'm not aware of a 9th Battalion, per se.

6 JUDGE LIU: Yes, Mr. McCloskey.

7 MR. McCLOSKEY: Yes, Your Honour. At this point I'm going to be

8 objecting to the impeachment of Dragan Obrenovic on this issue, whereas

9 Dragan Obrenovic was not presented with this material when he had a chance

10 to be questioned. It's improper to impeach a witness through another

11 witness when you have not given the witness in question a chance to

12 respond. Now we're in the situation where we, you can see, have to bring

13 people back. It's just -- now, that is something of the common law, and I

14 understand Mr. Stojanovic is new and didn't do the cross-examination of

15 Mr. Obrenovic, but this does put the -- a problem.

16 JUDGE LIU: Yes. In this respect I agree with you, Mr. McCloskey.

17 Mr. Stojanovic, I'm a little bit puzzled by your kind of opening

18 statement of seeking the truth of this matter. I think in your

19 cross-examination the question you asked should be closely related with

20 the testimony of this witness in the direct examination or with the

21 interest of your client. I know there is a dispute about whether

22 Mr. Obrenovic was at the brigade headquarters on the 14th or not. I think

23 this is a point, and you mentioned it before on another occasion is about

24 the meeting in the corridor or at the end of the stairs, that occasion.

25 I think this is a point which is closely relevant to that issue. But if

Page 5256

1 you are going to ask all the questions concerning of the deployment of

2 the army of the Zvornik Brigade at that time, that subject is too big. I

3 don't think they are quite relevant to the case we are faced with.

4 MR. STOJANOVIC: [Interpretation] I understood, Your Honour, and I

5 accept it. But I just wanted to say one sentence. I am using the exhibit

6 that was delivered to the OTP by Obrenovic and then this document was

7 forwarded to us by the OTP. That was the book that was in Obrenovic's

8 possession until the moment he pleaded guilty.

9 And secondly, I'm trying to use this expert to corroborate a

10 thesis that Mr. Butler analysed, and that is the presence of the members

11 of the inner circle of command of the Zvornik Brigade on the 14th in the

12 headquarters.

13 And thirdly, I am trying to say that the part that he had

14 mentioned now, and that is the meeting on the 15th between Obrenovic and

15 Jokic is not true. So if I depart from any of these thesis that were

16 given to me to prove, I'm going to withdraw my questions. But I'm not

17 intending to cross-examine Obrenovic through Mr. Butler. I would never do

18 that. And if at any point you think that I'm doing that, I'll withdraw my

19 questions.

20 JUDGE LIU: Well -- yes, Mr. McCloskey.

21 MR. McCLOSKEY: Your Honour, I don't have an objection to

22 Mr. Stojanovic getting into this topic of who was present at the various

23 command posts. My concern was particular instances that he's referring to

24 that may deal specifically with Obrenovic presence should have been

25 questioned by -- should have been put forward to Mr. Obrenovic. Now, at

Page 5257

1 this stage I will not object to it. In fact, I've asked counsel before if

2 they do have any information on this subject, the Prosecution would of

3 course like to see it. But I'm just saying that as a point of practice.

4 JUDGE LIU: Yes, Mr. Stojanovic, let's come directly to your

5 second and third point you mentioned.

6 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour. I will

7 speed up then.

8 Q. Mr. Butler, we are talking about the unit that you have mentioned,

9 we can call it the 9th Infantry Battalion or the Drina Battalion, in any

10 case it was the unit that was transferred to Nisici. Do you know who the

11 commander of that unit was?

12 A. The name escapes me, but that is something I can get my hands on

13 very quickly.

14 Q. If I put it to you, Mr. Butler, that this could be somebody called

15 Milenko Kajtaz, would that refresh your recollection and agree with me?

16 A. I believe that is correct, sir.

17 Q. This unit was lined up in the morning hours of the 14th and the

18 person that I've just mentioned reported and then they went to Nisici to

19 carry out there task in the presence of Obrenovic. I am going to try and

20 prove it in the later course of this trial. I just wanted you to confirm

21 that this unit did indeed go to Nisici on the 14th, in the morning hours

22 of the 14th?

23 A. I would dispute your date. My understanding, if we are talking

24 about the same unit, is that this particular unit was sent down to the

25 Sarajevo battlefront back in late June of 1995. And maybe, like I said,

Page 5258

1 I'm thinking Nisici and I keep seeing on the screen Nisici. And I know

2 they're two different places, so -- there may be some confusion. We're

3 not talking about the same unit. The unit that I'm referring to deployed

4 to the Sarajevo battlefront in late June of 1995.

5 Q. I agree with you. You are talking about the departure for Trnovo

6 in June 1995. But we are talking about the unit which was sent to Nisici

7 on the 14th. This is an area between Sarajevo and Kladanj and Olovo. But

8 this is not the unit you're referring to. If you're not in a position to

9 confirm this, I completely understand. In any case, thank you very much.

10 A. In that respect, I am not familiar with the deployment that you're

11 talking about.

12 Q. Thank you. Let's look at the logbook of the duty operations

13 officer that you have in front of you. We are talking about the 14th of

14 July, the 2nd or the 3rd remark entered by Jokic.

15 A. Can I ask you to direct me to a page number, sir, that might just

16 make it a little faster.

17 Q. I can't give you the page number in the English version, but let

18 me help you. This is making a note of the units that need to be employed,

19 in other words, how many troops came from which battalion. This

20 battalion, the 3rd Battalion, the 4th Battalion, the 2nd Battalion, and

21 the 5th Battalion, this is the third order which was issued on the 14th of

22 July.

23 JUDGE LIU: Yes, Mr. McCloskey.

24 MR. McCLOSKEY: Excuse me. For clarification, is counsel now

25 agreeing that this book is valid and that Jokic did, in fact, make these

Page 5259

1 writings, because inferred in his question that would be correct.

2 JUDGE LIU: Well, I think you are too eager to confirm that.

3 Could I hear from Mr. Stojanovic.

4 MR. STOJANOVIC: [Interpretation] Obviously I'm not going to say

5 anything about that today, however the further course of this trial will

6 show clearly what Dragan Jokic did write, what he didn't write. We will

7 certainly get the answer to this question and the answer is not even going

8 to be disputable at all.

9 MR. McCLOSKEY: I object to playing games, offering this -- we're

10 guessing whether this is valid. Inferred in his question was that it was

11 valid. Let's just get down to -- what is your position? We shouldn't

12 have to guess and play games.

13 JUDGE LIU: Well, maybe Mr. Stojanovic is not in the position to

14 answer this question.

15 But you may continue your question and you may answer it tomorrow

16 or you may not. Anyway, the Bench will arrive at a conclusion at a later

17 stage.

18 MR. STOJANOVIC: [Interpretation] Very well, Your Honour. It is up

19 to the Chamber to decide on the quality of this exhibit. We have already

20 stated our position about this exhibit and we will continue stating our

21 position on every entry in this log. However, the Prosecutor has already

22 used this exhibit, Mr. Butler has already commented upon this document on

23 the chief, and I believe it is my right to ask questions about this

24 document without actually stating my position on the quality of

25 authenticity and validity of this exhibit.

Page 5260

1 MR. McCLOSKEY: No objection, Your Honour. I just -- the form of

2 the question.

3 JUDGE LIU: You may move on, Mr. Stojanovic.

4 THE WITNESS: Is this the passage that you're referring to, sir?

5 MR. STOJANOVIC: [Interpretation]

6 Q. Yes. And I just wanted to ask you to give us your comments. It

7 says: Transport pursuant to Obrenovic's approval.

8 Can you comment on this, sir? Immediately after that, if you can

9 help me, at one page later there is a digression in which it says: The

10 Prime Minister talks to the duty operation officer and asks him when will

11 Avala arrive in the base. Can you tell us whose secret code was Avala on

12 the 14th of July?

13 A. On the preceding page or the next page?

14 Q. Five pages later, five pages later.

15 A. Let's do page 8 first, if you don't mind, sir. I don't know what

16 this means. It does, in fact, look like there are arrangements being made

17 for a rotation of soldiers or the deployment of a number of soldiers. It

18 says, again: "Transport pursuant to Obrenovic's approval", and that's all

19 I know about it. I don't know whether they're going in a -- where they're

20 going or whether or not they, in fact, even went. It's not evident from

21 this at all. And my understanding of the broader situation within the

22 Zvornik Brigade is that -- just like, for example, in the Bratunac

23 Brigade, while they were planning for unit rotations, I don't believe that

24 they actually sent them during this period because of the military

25 situation. So this may reflect part of the planning process. That's

Page 5261

1 probably about all I can tell you was my understanding on this. I don't

2 really know all of what it means.

3 Q. Can you agree with me that this implies, if it is correct, that

4 this order can only be carried out on Obrenovic's approval. So Obrenovic

5 is there and he is in command, because his order is executive and gives

6 the green light to this -- these soldiers to start moving?

7 A. Well, again the order can only be given out on Obrenovic's

8 approval, that's correct. So Obrenovic is there -- I don't know his

9 physical location. Certainly he's in the zone of the Zvornik Brigade. He

10 is in command on the 14th, so I don't know that his physical presence is

11 or is not required in order to make this happen. So like I said, I can

12 agree with two of your positions, that Obrenovic is in command and he's

13 making this happen. I just don't know the data as reflected on this page

14 would lead me to conclude his physical presence or not. I just don't

15 think we can make that conclusion, sir.

16 Q. Thank you, Mr. Butler. I think it's on page 13 or 14 of the

17 English version of this book and there is an entry: The Prime Minister

18 then Mamba asked when Avala was going to come to the base and asked you

19 whether you knew who had that pseudonym Avala at the time on the 14th of

20 July?

21 A. My understanding is Premijer is the code name for the radio

22 reconnaissance element of the Zvornik Brigade, not the Prime Minister. My

23 understanding is that is what Premijer means in that context. I don't

24 know who Avala is. So I can't be of assistance in that one. I have not

25 heard that name before. I don't know where to associate it with.

Page 5262

1 Q. If I said that Obrenovic confirmed that Avala was his pseudonym,

2 would you accept that?

3 A. This would be the first time that I'm hearing it. I must have

4 missed it in the testimony. I would see no reason why you would

5 misrepresent that, so okay, that's fair.

6 Q. If that were correct, could I draw the conclusion that the radio

7 relay device which was called Premijer, and which monitored Avala, was it

8 via this means that he was asked when he was coming to the base, and on

9 this basis can we conclude that the arrival of the person called Avala was

10 expected in the command of the Zvornik Brigade?

11 A. I don't know whether it's expected, but -- and again, maybe it's

12 an issue of translation, but the reading that I get off of the English

13 language translation is that they're asking when he's coming to base. I

14 don't know that there's a response or any indication as to when he'll

15 return or if he'll return. Again, maybe -- I leave open the fact that

16 maybe the translation is not giving me a clear indication, but I can't

17 make that conclusion from the English language translation that I'm

18 reading, sir.

19 Q. On the following page, could you just comment in response to the

20 Prosecution question. Jokic, the heart of the delegation from Pilica.

21 Are you aware of the fact that in the 1st Battalion, or the Pilica

22 Battalion there was a man called Dusan Jokic and he was the commander of a

23 mortar platoon in July 1995? His name was Dusan Jokic.

24 A. No, sir I'm not aware of that fact.

25 Q. Would you agree with me that the surname Jokic is one that one

Page 5263

1 comes across very often that you have come across it in a number of

2 situations?

3 A. Oh, yes, sir, I agree.

4 Q. Thank you. We'll discuss this in greater detail. On the

5 following page, there is a note that says: Report for the corps. You

6 have also discussed this subject in the course of the

7 examination-in-chief.

8 A. Yes, sir, that is correct.

9 Q. It starts with the words: "Tonight around 2020 in the wider area

10 of Maricici," et cetera and you also mentioned when it was sent from the

11 Zvornik Brigade to the Drina Corps. Is that correct?

12 A. Yes, sir. I believe that is indicated in the interim combat

13 report for 14 July.

14 Q. I assume that you read the statement of Dragan Obrenovic in which

15 he said how this interim combat report was sent to the corps command.

16 Just to refresh your memory, I will say the following. He says that he

17 was in position and this telegram is one that he dictated to his

18 communications officer who sent it to the Zvornik Brigade command. They

19 copied it out and then took it to the teleprinter room and sent it on to

20 the Drina Corps. Do you remember that part of his testimony?

21 A. I believe that's accurate, sir. Yes, sir.

22 Q. I assume that you also remember that in the course of his

23 cross-examination he said that it was possible that this text hadn't been

24 intercepted, even though before and afterwards JNA operatives intercepted

25 conversations that they had, but this telegram wasn't intercepted. Is

Page 5264

1 that correct?

2 A. Had or had not, that by -- and I'm assuming by intercepted, we're

3 talking about the Bosnian Muslim tactical intercept operators. Is that

4 what we're talking about, sir?

5 Q. Yes. We're talking about the fact that the Bosnian operatives, BH

6 army operatives didn't intercept this conversation, wasn't recorded by

7 them. Is that correct?

8 A. Yes, sir. So my knowledge that this particular intercept was not

9 recorded or intercepted by the BH army.

10 Q. So could we draw the conclusion that is possible, and later we'll

11 talk about other pieces of evidence. Could we conclude that at that time

12 Dragan Obrenovic was in command of the Zvornik Brigade and dictated the

13 text of the interim report to the duty officer. Would you say that this

14 was a possibility?

15 A. It is a possibility. I would just, however, have to add that even

16 in the body of this particular document where we see this particular text,

17 we don't see extensive blocks of reporting that later show up in a daily

18 combat report. There is another document which Obrenovic did provide

19 which does reflect what is going to be or what later becomes the text of

20 the daily or the interim combat reports. But like I said, I don't know

21 that -- while it's a possibility, I don't know how much weight I would put

22 on it as something definitive. It looks to be a one-off example of that,

23 and I don't know that I could draw a very hard conclusion on that.

24 Q. Thank you, Mr. Butler. With these two exhibits, we'll now try to

25 get you to corroborate what we have been claiming.

Page 5265

1 Could the usher just help us now. The exhibit marked D44, which

2 is the statement given by Nenad Simic, could it be shown to Mr. Butler so

3 that we can comment on it.

4 Mr. Butler, could you just have a look at page 15, line 13 in

5 Nenad Simic's statement.

6 MR. STOJANOVIC: [Interpretation] I'd just like to draw the Trial

7 Chamber's attention to the fact that this statement was given on the 19th

8 of September, 2001, to the Prosecution after Dragan Jokic was taken to the

9 Detention Unit in The Hague.

10 Q. And Mr. Butler, the Prosecutor asked him about the circumstances

11 under which he was in the brigade on the 14th and 15th. And he said

12 within the context of whether Obrenovic was present in the brigade, the

13 witness answered: "Well, for example, a colleague of mine whom I know, he

14 came to the office and ordered him -- gave him a task in the evening, at

15 8.00 in the evening. It was perhaps on the 12th or on the 13th. This

16 administrator who hadn't come and on the 17th of July, Obrenovic was

17 supposed to come. This was about the 14th after midnight, something like

18 that. I know that he," and he is referring to Obrenovic, "would come to

19 his office and he would leave his office. He would make phone calls, who

20 knows what he did. He must have been speaking to someone."

21 The Prosecution asked him: "Just a minute, before you go on.

22 When did Obrenovic assign a task to your officer, Bojanovic [phoen]?"

23 And the witness replied: "After midnight on the 14th."

24 The Prosecutor then asked him: "What did it say? What did it

25 tell him to do?"

Page 5266

1 And the witness replied: "There was a point, there was an area in

2 Zvornik, Zvornik was literally empty and civilians were engaged."

3 This testimony clearly shows that a response to the Prosecution's

4 question, the witness said: Around midnight on the 14th, Obrenovic was

5 there. So with regard to your questions about the interim report, I would

6 like to show the statement marked 45 through 3 if the usher could help me,

7 please. It is Ljubo Bojanovic's testimony.

8 JUDGE LIU: Yes, Mr. McCloskey.

9 MR. McCLOSKEY: I'm going to object to the use of these

10 statements. It's not asking Mr. Butler any question or refreshing his

11 recollection or impeaching him. It's just used as additional evidence

12 that Mr. Obrenovic was there on the 14th. We have 92 bis, we have a whole

13 foundation of material that is designed to deal with these issues. So

14 again, I would object to the form of the question of these statements

15 coming in like this.

16 JUDGE LIU: Yes. I think there's some problems in the using of

17 those documents.

18 Well, Mr. Stojanovic, it's time for the break. Maybe you could

19 think this issue over tomorrow and try to have your materials well

20 organised. I hope you have to put a question to this witness. I

21 understand that some issues here are relevant to your case, but the issue

22 is that you have to put a question to this witness.

23 So --

24 MR. STOJANOVIC: [Interpretation] I understand, Your Honour.

25 JUDGE LIU: Yes.

Page 5267

1 So we'll resume on Wednesday afternoon, 2.15, in Courtroom II.

2 --- Whereupon the hearing adjourned

3 at 6.30 p.m., to be reconvened on Wednesday,

4 the 26th day of November, 2003,

5 at 2.15 p.m.