Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8612

1 Wednesday, 16 April 2008

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 8.59 a.m.

6 JUDGE MOLOTO: Good morning to everybody in the courtroom.

7 Madam Registrar, could we please call the case.

8 THE REGISTRAR: Good morning, Your Honours, good morning to

9 everyone in the courtroom. This is case number IT-04-83-T, The

10 Prosecutor versus Rasim Delic.

11 JUDGE MOLOTO: Thank you very much. Could we have the

12 appearances today, starting with the Prosecution.

13 MR. MUNDIS: Thank you, Mr. President. Good morning, Your

14 Honours, to my learned colleagues from the Defence, General Delic,

15 Dr. Cornish, and everyone in and around the courtroom. Daryl Mundis and

16 Kyle Wood for the Prosecution, assisted by Alma Imamovic-Ivanov our case

17 manager.

18 JUDGE MOLOTO: Thank you very much.

19 For the Defence.

20 MS. VIDOVIC: [Interpretation] Good morning, Your Honours, good

21 morning to my colleagues from the Office of the Prosecutor, to everyone

22 in and around the courtroom. Vasvija Vidovic and Nicholas Robson for the

23 Defence of General Rasim Delic, with our legal assistant Lejla Gluhic.

24 JUDGE MOLOTO: Thank you very much, Madam Vidovic.

25 Good morning, Dr. Cornish. May I just remind you that you are

Page 8613

1 still bound by the declaration that you made at the commencement of your

2 testimony to tell the truth, the whole truth, and nothing else but the

3 truth.

4 THE WITNESS: Yes, Your Honour.

5 JUDGE MOLOTO: Judge Harhoff.


7 Questioned by the Court: [Continued]

8 JUDGE HARHOFF: Good morning, Dr. Cornish. I started out

9 yesterday with my last question, and I'm going to put it to you now.

10 Doctor, you told us that for a leader to be able to command and

11 control his army efficiently, he needs to be fed information about what

12 is happening below him, underneath him. I asked yesterday what are the

13 principles governing the passing of information from below upwards, and

14 you told us that there were really no rules, but, of course, everything

15 essential needed to be passed up, so that the information that finally

16 gets to the Supreme Commander would enable this commander to take the

17 appropriate measures to carry on with the battle.

18 My question to you is: What do you do if the system doesn't

19 work, if the information that is being passed up is incorrect or

20 insufficient, meaning that, through all or at each of the levels,

21 essential information is dropped, doesn't get further, is being sifted

22 away for reasons that you don't know?

23 What's the commander to do then and can he be held responsible?

24 A. Thank you, Your Honour.

25 If I might beginning by making two comments which I think are

Page 8614

1 germane to my response. The first is to say that the passage of

2 information, as I think I touched on yesterday, should always be a

3 balance of speed, on the one hand, and accuracy, on the other. The ideal

4 would to be have all information passed up to as near as instantly as

5 possible, but that obviously isn't going to be achievable; and,

6 therefore, you have a system of warning and alerting followed by a system

7 of providing more information as time makes it possible.

8 It is that point about system, you said, sir, quite rightly that

9 there are no rules in this, quite obviously. There is plenty of system.

10 There are plenty of procedures and processes by which information should

11 be passed. As I said yesterday, I think, an army in combat can be

12 curiously and counter-intuitively quite a bureaucratic system. It

13 doesn't look as if it ought to be that way, but it often can be.

14 Going directly to the question, when this system doesn't work,

15 when it is imperfect, as I guess it must most of the time be given the

16 circumstances, that's when you come to the point at which the commander

17 has to make judgments on the basis of what does know and on the

18 information that he does have. I think this comes back to our discussion

19 yesterday when, I think, we went into the higher realms of Western

20 strategy and Clausewitz, and the idea that the commander has to have the

21 confidence to take responsibility for his command.

22 That, in a sense, is what this person has been trained to do.

23 The system ought to run perfectly or it would be good if it ran perfectly

24 and provided everything. But we all know, and circumstances will

25 suggest; that at times, perhaps more often than not, he will not have

Page 8615

1 perfect information; therefore, he has to make the best judgment he can.

2 It follows from that when more information does then come that might

3 change the picture in front of him, he should, again, in a position and

4 have the confidence to change his plan and adapt to what he knows.

5 It is difficult to describe, I think, in concrete terms, but I

6 think it is a matter of judgment and confidence interplaying all the time

7 with the information that is available.

8 JUDGE HARHOFF: Thank you for this reply, which raises a question

9 about the duty of the Supreme Commander to actively seek information from

10 below if, for any reason, he has suspicions about the efficiency of the

11 information that is being passed up to him.

12 My question is really: Do commanders have a special duty to

13 actively seek information about what is going on underneath him, but,

14 more precisely, because that is what leaders also should do, I guess,

15 about crimes.

16 THE WITNESS: I think, sir, in general, I would say that the

17 commander at any level would have such a duty. That is, after all, why

18 he has been put in this position. I've been saying that he needs

19 information and intelligence, and this person knows that he needs that

20 information and intelligence; therefore, it follows there must be some

21 duty on him to provide it.

22 But I would say two things: The first is that, in a sense, that

23 duty is largely executed in the form of the commander ensuring that the

24 system below him is functioning, and the way he achieves that is by

25 ensuring that he has the right people in the right positions below and

Page 8616

1 around him. That is precisely the idea behind command chain and

2 hierarchical structures and so on. This one person cannot be everywhere

3 all the time, so his duty is, in a sense, manifested in ensuring that he

4 has a functioning commander chain.

5 I think the other thing I would say is that the duty aspect of

6 this works in two directions; that's to say, this is a system in which

7 every level of the hierarchy is functioning under a duty, and it is the

8 duty of junior commanders to ensure that their senior has the

9 information.

10 So, in a sense - and I know I'm beginning to portray that, as we

11 said yesterday, begins to look as if it might be a perfect model - but,

12 in a sense, the idea behind this is that it should be a self-correcting

13 system. If there is an problem somewhere, then something ought to be

14 down to correct it and ensure that the information is passed.

15 JUDGE HARHOFF: Thank you very much.

16 JUDGE MOLOTO: Dr. Cornish, could I take you to the very first

17 question that the Prosecutor asked you yesterday, relating to this part

18 of the military group which refuses to wear uniforms yet carries out

19 commands in combat.

20 Do you remember that question?

21 A. Yes, I do, Your Honour.

22 JUDGE MOLOTO: I just wanted to add another variable to that

23 equation and ask for your comment, and the variable that I would like to

24 add is, that same paramilitary group, what would your comment be if, in

25 fact, it does not belong to the same national group as the army?

Page 8617

1 A. Thank you, Your Honour.

2 Once again, if I might take the opportunity to preface my answer

3 with my one remark, which is to say that, in essence, my comments on the

4 paramilitary hypothesis were that coincidence of effort, military effort,

5 might be seen by the local commander to be a good thing, but that

6 commander would also know that coincidence of effort is not the same as

7 unity of effort in the military sense.

8 Again, going directly to your question, sir, if the paramilitary

9 group is not of the same nationality, then I would say that the -- the

10 problems, or at least the unease that I commented on and expressed

11 yesterday, I think would be magnified a number of times, because it might

12 then be possible that, as well as not wearing the uniform and not using

13 the same insignia and the flags and all these other paraphernalia of

14 military activity, there might then be a grave problem of a lack of

15 common language, in which case, as I said yesterday, there are or there

16 would ordinarily be special mechanisms to try and cater for that problem.

17 But it seems to me that if this paramilitary organisation were

18 both distinct and of another language, that there would be next to no

19 chance of organizing proper liaison functions and so on, simply because

20 it would not be trained in the same way.

21 JUDGE MOLOTO: Shall I just add another factor; whereas, there is

22 an problem of language, there is interpretation. This is an interpreter

23 who helps.

24 A. Well, in that case, that moderates the problem somewhat, sir.

25 But I would then go back to my earlier comment that this remains a

Page 8618

1 paramilitary organisation, which, I think, we agreed yesterday or the

2 hypothesis went yesterday, that it might even be paid from some other

3 source and replenished by some other non-standard means. And in those

4 circumstances, I would say that this body looks far closer to a mercenary

5 organisation that happens to be operating on the same battlefield and

6 might be providing a coincidence of effort. But in my judgment, on the

7 basis of knowledge and understanding of these matters, it would be

8 difficult to equate that with a formed part of the same hierarchy.

9 JUDGE MOLOTO: Thank you very much.

10 Yesterday, Judge Harhoff asked you if you know how would the

11 regular army's military police handle crimes or violations of

12 international humanitarian law committed by a paramilitary unit. You

13 said you have no doubt acknowledge it, but you think this would be a very

14 large-scale challenge, because the system that we are talking about would

15 have a certain capability in military police and military discipline that

16 would be predicated on their there being a general disciplined

17 understanding of what to do and what not to do.

18 Do you remember that answer?

19 A. Yes, I do, sir.

20 JUDGE MOLOTO: While you gave us this answer, I was keen to hear

21 how you would suggest how this situation could be handled though, and

22 your answer did not go as far as handling that situation and dealing with

23 that situation.

24 A. Thank you, Your Honour.

25 So to be clear, we, in my own mind, we have a paramilitary

Page 8619

1 organisation of some sort which might or might not be of the same

2 nationality and the same linguistic grouping, albeit with translators;

3 and there is an suggestion that this organisation might have committed a

4 grave violation.

5 The problem that I see is that the military police and

6 investigative capacities of, if you like, our model army is limited, as I

7 said yesterday, in its capacity; and I think there would also - and here,

8 forgive me, but you know I don't have a legal background - but it seems

9 to me that there would be a very pressing problem of jurisdiction here:

10 Precisely what is this organisation, what is the jurisdiction, and who

11 has jurisdiction over that body in the case of this alleged crime.

12 In a sense, Your Honour, I'm not answering your question because

13 I'm really not -- I've not come across this scenario, this hypothesis

14 before. But those seem to be the sort of practical and jurisdictional

15 problems that could prove to be so overwhelming at that time that, in

16 effect, our model army's command structure would simply be unable to

17 address the problem.

18 JUDGE MOLOTO: I'm sorry for the piecemeal supply of information

19 to you. Let me extend the scenario so as to enable you to deal with the

20 jurisdictional problem.

21 This paramilitary group, what would you say if it was actually

22 subordinated and incorporated into the army.

23 A. If it had been fully incorporated?

24 JUDGE MOLOTO: There is an order that subordinates it.

25 A. In which case, I would suppose that the command structure would

Page 8620

1 have worked out, or would have calculated, that all aspects of the

2 support and disciplining of that paramilitary structure would have been

3 thought through. What I mean here is, if it is to be fully integrated,

4 then it needs fuel just as it much as it might need the back-up from the

5 military police requirement. So there should be a sense in which it does

6 not stretch the capacity of our model army too far.

7 I think that would be my answer, sir.

8 JUDGE MOLOTO: And in that scenario, you talked about mercenaries

9 a little earlier when Judge Harhoff was talking to you; and without

10 suggesting that this paramilitary group that we are talking about would

11 or would not be a mercenary group, what would your answer be to the

12 question of the responsibility of the commander of the army over this

13 group? Would the commanders of the army be responsible for any crimes

14 committed by this group?

15 A. I think, Your Honour - and I'm straying here into an area in

16 which I'm not expert - my understanding is that the idea of command

17 responsibility is still developing, and I think this might be one of the

18 examples where we can see just how undeveloped it is.

19 I think it would essentially depend on the extent to which this

20 paramilitary organisation had been integrated and had been seen to be

21 integrated. How far had this organisation agreed to accept and abide by

22 the frameworks of discipline, logistics, and all these other aspects of

23 the military command structure; and had it not accepted those, then I

24 think we would come back to the same problem. How much jurisdiction can

25 be assumed by our commander, because let's not forget, that the

Page 8621

1 commander, in a sense, in any combat situation is relying on a very great

2 deal of assumed jurisdiction. This doesn't have to be said. It is

3 simply axiomatic that he is in command and that he has authority, both of

4 the military and jurisdiction sort, over these he commands. If these

5 assumptions cannot be made in these pressing circumstances, then I think

6 it could be difficult.

7 And if I could make one final point. I use the term mercenary,

8 by which I meant, I suppose that there might be some uncertainty about

9 how and why these paramilitary troops were being paid. That would create

10 a certain impression among the ranks of our model army. They would see

11 an organisation that appeared to be being paid perhaps better, perhaps

12 more quickly, whatever, from somewhere else; and, very quickly, the term

13 "mercenary" I think, would begin to be used, and that would have certain

14 implications as far as morale and everything else is concerned.

15 But more to the point, the fact that this organisation is

16 receiving pay from outside would symbolise, I think very powerfully that

17 it was not part of the overall organised command structure and could not,

18 therefore, be fully integrated; and it was not part of an alliance either

19 and, therefore, was in a separate category all on its own.

20 JUDGE MOLOTO: Thank you very much, Dr. Cornish.

21 Any questions arising from the questions by the Bench.

22 Mr. Robson.

23 MR. ROBSON: Thank you, Your Honour, just one issue.

24 Further re-examination by Mr. Robson:

25 Q. Dr. Cornish, yesterday, His Honour Judge Harhoff asked you about

Page 8622

1 how information would be sent up through the various layers of command

2 and the way that this information would be condensed; and, again, His

3 Honour touched upon it this morning.

4 Yesterday, you said that no rules applied, and you said that it

5 would involve an officer at a level having a close sense of what the next

6 level commander would require.

7 If I can ask you about the senior professional head of the army,

8 sitting at the top of the army structure at the strategic level, what

9 level of detail would you expect to find in the information coming up to

10 that man?

11 A. Thank you. I think the term "no rules apply" is an interesting

12 one in retrospect; and I think I would stand by that term, but I would

13 embellish it, if I might, by saying this: There is, in a sense, a

14 realistic expectation that, no matter how many rules you have, it

15 probably won't be possible for those rules to be met; therefore, there is

16 it an emphasis on the systems and processes which I described a little

17 while ago. It would be good if the rules could apply but they won't, so

18 we have to some more dynamic and realistic sense of a way of going about

19 things.

20 As to the professional head of the army, sitting there in his

21 capital, he really would expect the most general picture but with very

22 little detail, because the assumption would be that the detail is

23 properly the concern of much more subordinate commanders than him; and if

24 he were to be involving himself with a very high level of detail, it

25 could look as if he were checking on the subordinates or perhaps even be

Page 8623

1 in a position of being about to contradict them with orders or something.

2 So should keep distant from that level of detail; allow it to be dealt

3 with at the proper level wherever it might be, platoon or brigade or

4 division; and should concern himself with bigger ideas, and his thinking

5 upwards to his political level.

6 What he should be especially concerned with is the detail of a

7 grave problem that arises. That should come back through the system to

8 him, if, for example, as a two or three levels below him, it transpires

9 that mechanized divisions have all of a sudden -- it has completely

10 impossible to find any fuel, there is none available to be requisitioned,

11 and none of the allies are providing it, et cetera, et cetera, et cetera.

12 That becomes a grave matter of pressing detail that is right that he

13 should be about; but, otherwise, it should be dealt with at the level at

14 which it can be dealt with.

15 Q. Thank you.

16 MR. ROBSON: I have no further questions.

17 JUDGE MOLOTO: Mr. Mundis.

18 MR. MUNDIS: Thank you, Mr. President.

19 Further cross-examination by Mr. Mundis:

20 I have, Dr. Cornish, just a couple of questions, but let me pick

21 up with where my learned colleague Mr. Robson left off.

22 In this situation where the Supreme Commander, the overall

23 commander, has this large staff working for him, one would assume that

24 information coming to them is going to be further filtered and made known

25 to the commander when those issues are of importance, wouldn't you agree

Page 8624

1 with that?

2 A. Yes, I think I would sir. It's not something which I have seen

3 at close hand, but my imagination and understanding suggests that the our

4 Supreme Commander would be given a general impression and would be told

5 only if there was something urgently problematic that he needed to know

6 about.

7 Q. In fact, that is the whole point of having that staff around that

8 commander who is receiving -- that staff receiving information from the

9 field, so that all problems can be dealt with?

10 A. Yes, I think I would agree with that precisely, sir. I would

11 say, thought, that we shouldn't forget that this very, very high level of

12 the command structure, our Supreme Command, is more about the

13 organisation and equipment of our model army than about the operational

14 direction of it, and it shouldn't actually be about the operational

15 direction of it. That is to do with people who are in the theatre of

16 operations.

17 Q. But certainly that overall the Supreme Commander is going to have

18 strategic responsibilities with respect to what is go on?

19 A. Yes, sir.

20 Q. And, sir, would you not agree with me that notwithstanding this

21 structure where this is an staff, where information is coming to the

22 staff, in no means does that staff structure permit that overall

23 commander to forgo or not be responsible for what happens?

24 A. No. I think would agree with your earlier statement, sir, that

25 the very idea of the staff structure is so that he is actually able to be

Page 8625

1 better briefed and in control of the whole thing. That is why he has the

2 staff around him. I think I would agree with you.

3 Q. And that staff structure is put in place precisely so that

4 Supreme Commander can exercise the authority that is vested in him?

5 A. Yes, sir.

6 Q. And so that he can be accountable to the political leadership for

7 what goes on in the army?

8 A. I would say so. Again, at that level, it must go both ways. He

9 needs to represent the army to the political level, and he needs also to

10 ensure that, to the extent it is relevant, that the political message is

11 going down to the right level in the command chain.

12 Q. Let me turn, sir, to the last issue I'd like to talk to you

13 about, and this concerns some questions and answers that were put to you

14 this morning, concerning paramilitary groups and/or mercenaries.

15 If there was an order subordinating a paramilitary group into the

16 army, you would not characterise such a paramilitary group as a mercenary

17 group, would you?

18 A. I think -- I don't think I would. I think I would assume, in the

19 scenario that you paint, that the important tests would have been passed,

20 that this organisation would be integrated in the circumstances that we

21 referred to in logistics and so on, and discipline, and perhaps even, but

22 not necessarily, in terms of uniform and insignia.

23 I think it might be, therefore, right to assume that there would

24 be a single command chain and unity of command and all of the other

25 things spoke been yesterday; and, indeed, that there would be no

Page 8626

1 uncertainty about payment, so picking up all the other things that we

2 have been touching on in this scenario.

3 Q. And I think, sir, the final question is whether your view on this

4 issue of this paramilitary group or mercenary group, is this any

5 different if the request to be subordinated to the army came from that

6 paramilitary group?

7 A. I think probably not, because, again, thinking yesterday to our

8 discussion yesterday, we can all conceive that in times of crisis and

9 confrontation that there might be a miniature levee en masse, that there

10 might some civilians or some reasonably armed people turning up an

11 offering services. And, in a way, it would have to be regarded in that

12 sort of light. The commander of our new model army meeting these people

13 in the field would or should, in my estimate, be asking him self: Who

14 are people, how well are they trained, where did they come from, how long

15 are they staying, can I trust them, et cetera, et cetera. And if unable

16 to answer those questions, then I would think he would be forgiven for

17 not relying on that organisation overly.

18 Q. Well, let me take part of your answer and take it again a little

19 bit further.

20 You talked about or you just answered "reasonably armed people

21 turning up and offering services," and this is on line 15 of page 14.

22 These reasonably armed people turning up and offering services.

23 If that group of reasonably armed people who turned up and

24 offered their services proposed themselves to be a unit of the army and

25 an order then resulted forming them into a unit of the army, what

Page 8627

1 conclusions would you draw in that situation?

2 A. Not, I'm afraid, all that different from those I've just painted.

3 This body of people, let's say they are wearing crisp new

4 uniforms and they look well equipped, and they all have an assault rifle,

5 let's say, and perhaps even various other weapons, my point would be that

6 none of those things are actually all that difficult to get hold of.

7 They are all available on a market somewhere. Therefore, we come back to

8 the same challenge to the commander in place: I know nothing about these

9 people, I know nothing about what they can do. They have asked if they

10 can become part of my brigade; and, to be honest, I would be completely

11 mad to allow that happen.

12 I might, though, as I said yesterday, I might involve them, let

13 us say, in a defensive position or as part of an overall operation, but I

14 would expect to disperse them among my own resources, rather than rely

15 upon them specifically in one area or for one task.

16 Q. Perhaps, I'm not clear being in my question. My question goes,

17 sir, to these reasonably armed people who turn up, offer their services,

18 request to be formed into a unit, and the commander, in fact, does issue

19 an order forming them into a unit.

20 What conclusions would you reach -- the commander, in other

21 words, issues that order forming them into a unit.

22 A. I see. Thank you.

23 In which case, he has satisfied himself that all those tests have

24 been passed: That this organisation can be fully integrated into his

25 command chain, that it understands the command chain, that it -- its

Page 8628

1 training background and military capacity is of a certain level that

2 would be useful and could be integrated with his own force. All those

3 tests having been passed, it might be in his judgment to integrate it

4 fully.

5 Q. Thank you Dr. Cornish.

6 MR. MUNDIS: The Prosecution has no further questions.

7 JUDGE MOLOTO: Thank you. Dr. Cornish, that brings us to the end

8 of your testimony. Thank you very much taking time off your very busy

9 schedule to come and testify to the Tribunal to testify. You are now

10 excused, and you now stand down. Please travel well back home.

11 Thank you very much.

12 [The witness withdrew]

13 JUDGE MOLOTO: May the Chamber please move into private session.

14 [Private session]

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

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21 (redacted)

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23 (redacted)

24 (redacted)

25 (redacted)

Page 8629

1 (redacted)

2 (redacted)

3 (redacted)

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7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 [Open session]

13 THE REGISTRAR: Your Honours, we're in open session.

14 JUDGE MOLOTO: Thank you very much. The window is open, we are

15 not in open session.

16 Madam Vidovic, next witness.

17 MS. VIDOVIC: [Interpretation] Your Honours, as far as I have been

18 informed by the registrar, the witness is a witness of the Prosecution,

19 whom we have called for additional examination; and as communication was

20 not allowed with him, we have been informed by the registrar's office

21 that the witness is coming today and we plan to have him testify

22 tomorrow.

23 JUDGE MOLOTO: Thank you very much, Madam Vidovic.

24 In that event, then the Court stands adjourned to tomorrow 9.00

25 in the morning, same courtroom.

Page 8630

1 Court adjourned.

2 --- Whereupon the hearing adjourned at 9.37 a.m.,

3 to be reconvened on Thursday, the 17th day of

4 April, 2008, at 9.00 a.m.