1 Wednesday, 14 January 2009
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.18 p.m.
6 JUDGE ORIE: Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon Your Honours. Good afternoon to
8 everyone in and around the courtroom. This is case number IT-06-90-T,
9 The Prosecutor versus Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Mr. Konings, I would like to remind that you the solemn
12 declaration you gave yesterday at the beginning of your testimony is
13 still binding you.
14 Mr. Russo, are you ready to continue your examination-in-chief.
15 MR. RUSSO: I am Mr. President. Thank you.
16 I'd like to begin, Mr. Registrar, please, with Exhibit P1259 MFI.
17 WITNESS: HARRY KONINGS [Resumed]
18 Examination by Mr. Russo: [Continued]
19 Q. Colonel Konings, I'd like to begin your discussion today with
20 regard to some of the principles you set forth in your expert report with
21 respect to targeting and, in particular, the planning of artillery
22 operations in civilian-populated areas.
23 And if we could turn to section 4 of your expert report. Again,
24 that's at tab 2 of your binder, Colonel Konings. Section 4 appears at
25 the bottom of page 4 of the English version and on page 10 in the B/C/S
2 Now, in this section, Colonel Konings, you discuss the
3 considerations that go into artillery targeting in civilian-populated
4 areas and at sub-section a, you state:
5 "On the basis of the higher commanders intention and guidelines
6 and the results of the decision-making process, DMP, the high pay-off,
8 Can you please explain to the Trial Chamber what exactly you mean
9 by a high pay-off target?
10 A. A high pay-off target is a target that is crucial for the
11 positive outcome of your own operation.
12 So combatting that target with a certain effect that you want to
13 achieve is crucial for the success, as I said, of your own operation.
14 Q. And does the mere fact that a commander identifies a particular
15 target as a high pay-off target does that automatically mean that it is
16 appropriate to fire artillery at it?
17 A. No. At this stage that -- that this all is planned, it is just a
18 matter of designating a target that it has a very high value for your own
19 operation. And those high pay-off targets are coming from the so-called
20 high-value target list which are those targets that are very interesting
21 or very crucial for the operation of the enemy. And only in a later
22 stage once you have designed those high pay-off targets you start working
23 on the process of choosing the appropriate weapon systems for bringing
24 the effect that you want to achieve.
25 Q. And the decision-making process and the selection of high pay-off
1 targets that you discuss, can you tell Chamber whether this process
2 happens at the highest operational level or at some other levels, in
4 A. Well, the -- a decision-making process takes place at every
5 command level inside -- inside a military organisation. That runs from
6 the strategic level, the very high level, which is connected to the
7 political level, down to the tactical level.
8 Also, a commander of a company or even a platoon commander has
9 his own decision-making process although that is very quick and it's --
10 it's only -- it's not formalised it's not in a way of written down. But
11 on the level of divisions, brigades and battalions, have you a
12 decision-making process and all those levels you also have a targeting
13 process. From brigade level and above, the targeting process is getting
14 more formal, so it is a formalised process in which -- which is done in
15 formal and informal meetings inside a staff. On battalion level and
16 lower, you only have a very quick and informal targeting process, but the
17 outcome is nevertheless the same.
18 Q. Thank you. And if a high pay-off target which is identified by a
19 commander is located in a civilian-populated area can you please explain
20 to the Chamber what the commander has to consider before deciding to
21 attack that particular high pay-off target with artillery?
22 A. Well, first of all, even before you take the decision to attack
23 such a target which is in the middle of the civilian-populated area, you
24 have to be absolutely sure that the value of that target for your own
25 operation is such -- is such that combatting a target with any weapon
1 systems is proportionate and that the risk that you take for collateral
2 damage will be -- well, in words like acceptable. And that's very often
3 a very high-level decision. That is, not on the level of a brigade
4 commander's decision at least not in the NATO case.
5 So after you have designated that the target is absolutely a very
6 valuable target you have to see what is the nature that the target is, is
7 it in a concrete building; is it in a command post; is it in -- which
8 kind of terrain is it; what are the elements of such a target; is it a
9 large target; is it a small target; how is the best way to -- to put an
10 effect on at that target; do you neat to destroy it completely to take it
11 out; to take it out of action or is neutralising; taking it temporarily
12 out of action; is that sufficient for the purpose that you have; so you
13 have to discuss the effect you want to achieve.
14 Very important is, of course, how close is the civilian
15 population; how is construction of that area; how is the infrastructure
16 laid out. That is the one of the most important points to decide upon
17 which weapon system you can use, and, of course, you can use every weapon
18 system, but then you have to realise that once you start using artillery
19 in a civilian-populated area that you will have to -- a high risk of
20 collateral damage and whether you accept that yes or no, that's a very
21 high strategic level decision.
22 Q. Thank you. In the last sentence of section 4 a you state:
23 "Artillery assets can only be used in case the safe distance
24 between the expected impacts and the civilian population is big enough to
25 avoid casualties."
1 Now I'd like you to please explain to the Trial Chamber how this
2 requirement is addressed when using artillery in civilian-populated
3 areas. Practically speaking, how does a commander meet this requirement
4 of a safe distance?
5 A. Well, in practice we develop for that soldier collateral damage
6 estimates which are given facts to a commander in a field which gives him
7 exactly which measures he has to take into account before he starts using
8 either artillery, either close air support, either precisions guided
9 munitions or other means that you have available.
10 And as we discussed yesterday, artillery weapon systems combined
11 with regular, I will call it, old-fashioned ammunition, so non-guided
12 ammunition, the normal high-explosion round has a certain level of
13 inaccuracy caused by the system, caused by the ammunition that is used
14 which will -- will give you collateral damage. Besides that you have, I
15 may remind you to the fact that -- that artillery projectiles produce
16 thousands of shrapnel that can fly several hundred metres.
17 To give you an example, in the current mission in Afghanistan
18 use collateral damage estimate for non-guided artillery ammunition even
19 for the modest guns of 500 metres. That means that when you have
20 designated an enemy target and there are civilians within that distance
21 of 500 metres, you are not allowed to use the regular artillery weapon
22 systems. The only one who is allowed to give permission if the value of
23 that target is so high is Commander Isaf [phoen] himself, which is the
24 highest operational level in Afghanistan
25 operation, and I think that gives an idea how you should handle a
1 round -- targeting military targets inside a civilian area. It's a
2 complex process, with all the factors and even more factors than I
3 provided you before.
4 Q. Thank you. Can you explain to the Chamber how this requirement
5 for a safe distance or whether this requirement for a safe distance also
6 applies to mobile targets which may be moving through a
7 civilian-populated area?
8 A. Well, I don't see any difference, once -- once a target -- the
9 there is no difference in between because when a target moves inside a
10 civilian-populated area, the same distance applies of 500 metres. Let's
11 take the example from Afghanistan
12 target is moving this distance of 500 metres is also moving with the
13 target. And so you get an even more complicated situation with -- with
14 more risk on collateral damage and not knowing the exact effect that you
15 achieve by combatting with artillery, a moving target. It is a complex
16 thing to do that with artillery. It requires very experienced personnel,
17 it requires forward observer that can constantly see the target moving,
18 and it's a complicated procedure. I would not be in favour of combatting
19 a moving target in a populated area, with artillery.
20 Q. Thank you. I'd like to move now to an application of some of
21 these principles we have been discussing to the specific facts of this
22 case. In section 16 of your expert report, Colonel Konings, which
23 appears at page 14 of the English version and page 32 of the B/C/S, there
24 you were asked to comment on some of the orders and reports in this case,
25 and I'd like to go through some of those with you.
1 Now, under section 16 a you quote a portion of General Gotovina's
2 offensive operation order relating to the tasks which are assigned by him
3 to the artillery rocket groups, including:
4 "Putting the towns of Drvar, Knin, Benkovac, Obrovac and Gracac
5 under artillery fire?"
6 Now, in the middle of the last paragraph of your report, which
7 appears on page 33 in the B/C/S, you address this particular language
8 ever General Gotovina's order and you state:
9 "This specific part of the orders gives commanders the green
10 light to use the effect of harassment at a maximum by firing randomly
11 into the named cities. Doing so, fear and casualties will occur,
12 infrastructure will be destroyed, the population will be forced to leave,
13 thus prohibiting the enemy troops to execute their mission in a proper
14 way. This means that the civilian population is targeted to force
15 military units to retreat or even to surrender."
16 I'd like you to please explain to the Chamber, Colonel Konings,
17 why exactly you have reached this particular conclusion based on
18 General Gotovina's order to put those towns under artillery fire.
19 A. Well, first of all, we have to remind the discussion that we had
20 just before about the use of the process of targeting. When you use that
21 process, you try to come up with the best weapon systems or the best
22 combination between a target and the effect that you want to achieve.
23 Once you have designated the effect that you want to achieve with your
24 military operation or the de-effect then you start thinking about the
25 weapon systems and the means that you have available to use those against
1 enemy targets in order to achieve effects. And what you see in the
2 orders that I was presented is that up to a certain level, it is clearly
3 described how the artillery support in that operation should be used,
4 where it says against enemy front line, command post, communications,
5 artillery firing positions, up so far that is, to my opinion, normal
6 military explanation of what you want to do with your artillery.
7 I haven't read over -- in the same positions what the effects
8 should be. The effect is it could be neutralising enemy command post or
9 destroying enemy command post or interdiction of logistical supply. I
10 haven't seen that. But, again, the targets that are named in that
11 specific part of the order are, to my opinion, in itself regular military
12 targets that can be combatted with artillery. But in the same sentence
13 you find the words shelling the town of Knin, and I was asked
14 specifically to look at the town of Knin
15 Without any further explanation, there is no explanation given,
16 what part of the town should be shelled; what military targets in the
17 town should be shelled; what effect should be achieved. It is just one
18 sentence that gives no further explanation whatsoever. And shelling
19 well, means to my part is firing shells against a city with all the risk
20 that are involved: With collateral damage; killing of people; injuring
21 of people; neutralizing or destroying infrastructure; and I cannot help
22 it, but I have to think about the same situation that I witnessed for
23 five months in Sarajevo
24 any military purpose the city was shelled; and, to my opinion, was the
25 only purpose of bringing fear to the people, bringing chaos and bringing
1 disorder, and by doing that forcing the defending troops to surrender.
2 Because when you see that civilian population is in anger, is in chaos,
3 is suffering, military troops around an area may be forced to surrender
4 because they see their relatives, their countrymen being harassed. And
5 missing every single detail, every single effect, what you want to
6 achieve by shelling a town, I cannot help coming to the conclusion that
7 seems to me a quite strange military order facing up in a military
8 operational plan that, for the biggest part, looks like a NATO order, if
9 I would have been writing it myself.
10 Q. Now, in your opinion, Colonel Konings, would a reasonable
11 commander issue such an order if his intent was to fire only upon
12 military targets within the town specified?
13 MR. KEHOE: I object. Needs some clarification. A reasonable
14 commander under what standard, and what country, what background is he
15 talking about? I need more clarification on that issue.
16 JUDGE ORIE: Mr. Russo --
17 MR. RUSSO: Your Honour, I believe if Mr. Kehoe wants further
18 clarification on that he is free to ask.
19 JUDGE ORIE: No. I think in order understand the answer of the
20 witness, I think it would be good to know what he understand to be
21 reasonable commander.
22 MR. RUSSO:
23 Q. Perhaps first, Colonel Konings, you would give us your opinion as
24 to the standards which a reasonable commander applies in giving orders
25 with respect to artillery.
1 A. Well, we have been debating the facts around the use of artillery
2 already in the last 30 minutes and yesterday. And we have seen that
3 artillery is not the best means - to say at the least - to combat or to
4 attack a civilian-populated area in the first place, and to destroy or
5 even neutralise a stronger infrastructure. Artillery, we have to remind
6 is at its best on combatting unarmoured targets and personnel. But what
7 we did not talk about so far - I have to bring that up now - is the
8 effect of artillery and mortars and everything that is called fire
9 support is the morale aspect, is the fact that artillery causes well,
10 what you -- what we all know what we call the shell-shock: The
11 psychological effect of artillery, which is beyond every imagination.
12 That's what we have to keep in mind. And that effect is an
13 effect that a commander, and I will -- I had not call it reasonable
14 commander. I think any commander should realise that there is always a
15 large psychological factor when you use these type of weapon systems.
16 And especially against civilian population that are not protected, that
17 have no clue whatsoever what is happening around them, and here falling
18 rounds close to the house far away, one hour, one hour at a time, two
19 hours, three hours, 24 hours, that is devastating to go an un-- to a
20 civilian population. And a military commander should that bear in mind
21 always and should try to minimise the risk against a civilian population
22 at the first place.
23 For that reason, you should aim as a commander, using your
24 military force against military targets. And once civilian targets are
25 in the environment, in the direct environment, there is only one thing to
1 do, I think is to act in a proportionate way which means that you have to
2 avoid inflicting damage to a civilian population and civilian
4 Q. Thank you. Colonel Konings, the answers that you have been
5 giving here today to my questions and to the questions I put to yesterday
6 and indeed the principles which underlie the expert report and the
7 addendum which you have submitted, are these done under the standards of
8 NATO or of a particular country or of several particular countries?
9 Perhaps you could enlighten the Trial Chamber as to that.
10 A. First of all, they are coming, of course, from the fact I am an
11 officer of the Royal Netherlands Army. I am educated and trained in the
13 about these things and in writing them down in our doctrine is the Dutch
14 way, the Netherlands
15 first of all, the most important thing.
16 But being a small country inside NATO, we rely in a quite heavy
17 way on those aspects that are described and are discussed and are done in
18 NATO; so I can give you my answer that my background in dealing with
19 these aspects, and the way I think about these aspects, and the way it is
20 reflects also in our current doctrine is a combination of first of all my
22 experience in dealing with various NATO working groups and writing teams.
23 MR. RUSSO: If the Court is satisfied, Your Honour, I will
24 proceed with my question.
25 JUDGE ORIE: Please proceed.
1 MR. RUSSO:
2 Q. Now given the standards which you have discussed here in your
3 opinion, Colonel Konings, would a reasonable commander issue an order to
4 put towns under artillery fire if his intent was to fire only upon
5 military targets within those towns?
6 A. Well, as I said before I would clearly expect a very clear,
7 detailed clarification of which targets inside the city of Knin
8 the military targets to be fired upon with artillery. The order given
9 now is so generic and can bring so many misunderstanding inside the
10 military chain of command that I never would give that order without any
11 further clarification to my sub-commanders, especially the artillery
12 commanders, but every commander in what to achieve, what effect to
13 achieve inside the city of Knin
14 "shelling the town of Knin
15 Q. Thank you. And again in your opinion, would a reasonable
16 commander leave it to his subordinate commanders to determine how to
17 implement this order without either reviewing or approving what target
18 selections they have made in those particular towns?
19 MR. KEHOE: Excuse me, Your Honour, is that a legal standard? If
20 it is, I would like some legal clarification on that. Certainly there is
21 a legal standard to answer that, but if counsel looks like they're
22 eliciting just the opposite, I would like some frame of reference for
24 JUDGE ORIE: Mr. Russo --
25 MR. RUSSO: Again Your Honour I think that is it something that
1 Mr. Kehoe is free to go into on cross-examination simply asking for his
2 opinion as to whether or not a reasonable commander would do as appears
3 to have been done in this case.
4 MR. KEHOE: That wasn't the question.
5 JUDGE ORIE: You're asking about the opinion. Perhaps you could
6 ask whether usually it's left to and then we heard from this witness how
7 he described a reasonable commander, and a reasonable commander seems to
8 be a mixture of a lot of things. Perhaps some legal matters, perhaps
9 some morale matters. You have asked the question. I can't say that it
10 is -- well, it's clear in its mixed composition of that concept, which
11 might not be able to clarify much further, at the same time, raises still
12 some questions.
13 So perhaps you ask him what is usually done here or there and
14 then whether that is on the basis of what the witness considers to be
15 reasonable command.
16 Please proceed.
17 MR. RUSSO: Thank you, Mr. President.
18 Q. Colonel Konings, in your experience, is this the type of order
19 which is issued to subordinate commanders without further explanation or
20 specification and simply giving them the authority to implement the order
21 in any way they see fit?
22 MR. KEHOE: Excuse me, Your Honour, just one point of
23 clarification. Pardon me for interrupting, and, Colonel, my apologies.
24 I trust, Your Honour, that Your Honour is looks for his experience and
25 not in fact a legal conclusion. So I trust that was what the Chamber was
1 referring to on lines 18 to 25.
2 JUDGE ORIE: Yes. But I think the question is asking for
3 experience. Yes. And so therefore to some extent this interruption was
4 unnecessary and let's try to refrain when it's not necessary to
6 Mr. Russo, perhaps you repeat the question so that Mr. Konings
7 is --
8 MR. RUSSO: Certainly.
9 Q. I'll simply read my question back to you, Colonel Konings:
10 In your experience, is this type of order, the order to put towns
11 under artillery fire, is this type of order issued to subordinate
12 commanders without further explanation or specification and simply giving
13 them the authority to implement such an order in any way they see fit?
14 A. With my background and my experience and as we've said before, as
15 I explained to you before, I'm first of all a member of the Netherlands
16 armed forces; and secondly, we operate very close to many NATO forces. I
17 would say it is not appropriate and not done to issue such an order with
18 any further explanation and not leave it to the lower-ranking commanders.
19 Not -- neither to artillery commander, neither to lower brigade
20 commanders or any commander in the chain of command.
21 This type of order would need such level of clarification that no
22 misunderstanding can be done and at least it needs mentioning or
23 explanation of rules of engagement which military targets can be attacked
24 inside a city; what are the effects that you want to achieve with such
25 targets, if it has to be done with artillery. And commanders in the
1 chain of command have to be clear that everything has done to chose the
2 appropriate mean to attack such a military target inside a civilian area
3 because I cannot stop repeating the fact that artillery is maybe the
4 worse system to use inside a civilian-populated area. And it should be
5 very well thought over balance, between the value of that target and the
6 disproportionate use of artillery and the amount of collateral damage
7 that you achieve once using artillery inside a civilian-populated area.
8 So to summarize my answer, it is maybe a bit long, but it is a
9 complicated question, so to summarize my answer, in Netherlands case, or
10 NATO case, this type order would need lots of clarification and would
11 never be given in such a way.
12 Q. Thank you. I'd now like to take a look at how General Gotovina's
13 order was passed down, and then I will ask you for some comments.
14 MR. RUSSO: If we could please, Mr. Registrar, have Exhibit D970.
15 Q. Now the document on your screen, Colonel Konings, is the
16 attachment for artillery to General Gotovina's order. It is drafted by
17 the general's chief of artillery and looking at the middle of the first
18 page, under section 1 B, it directs the formation of artillery and rocket
19 artillery groups in three different operational groups.
20 Now, if we could please move to page 3, under section 3, which is
21 also the same page 3 in B/C/S.
22 MR. KEHOE: If I may, that order says five different operational
24 MR. RUSSO:
25 Q. In any event, page 3 you can see that it directs the artillery
1 and rocket artillery groups to engage in certain specific actions and
2 then directs them to: "Shell the towns of Knin -- of Drvar, Knin,
3 Benkovac, Obrovac, and Gracac."
4 MR. RUSSO: Now, Mr. Registrar, if we could please have a look at
5 65 ter 2210 -- I'm sorry, 2211.
6 Q. Now, this is an order for attack for one of the operational
7 groups ordered to be formed in the previous order, and this is the order
8 for attack for the operational group Zadar. Which was supported by
9 artillery group TS-5.
10 Now if we can move to page 8 of this order, and that appears in
11 B/C/S on page 4. And can you see again here, Colonel Konings, where the
12 tasks for the artillery group are laid out and can you again see certain
13 specific instructions they're given and then an order to: "Lay down fire
14 on the towns of Benkovac and Obrovac."
15 MR. RUSSO: And if we could finally have Exhibit P1201.
16 [Trial Chamber and registrar confer]
17 JUDGE ORIE: Mr. Russo, could you give the 65 ter number because
18 the Registry has difficulties in uploading.
19 MR. RUSSO: Sure. That's 65 ter 2209.
20 Q. Now, this is the attachment for artillery to the operational
21 group Zadar order for attack, which we have just seen; and it is drafted
22 by the OG Zadar, chief of artillery. And if we move to section 3, which
23 is towards the bottom of page 3 in the English and bottom of page 2 in
24 the B/C/S, you will see there, and moving through that there actually to
25 the next page in the English, you'll see here specific tasks for the
1 artillery and then another order to:
2 "Put the following towns under artillery fire, Benkovac, Obrovac,
3 and Gracac."
4 So, what we have, Colonel Konings, General Gotovina's order at
5 the level of the Split Military District to put certain towns under
6 artillery fire. We see that this same order is then passed down through
7 his chief of artillery to the artillery and artillery rocket groups in
8 the operational groups. And we've seen the operational group order with
9 the same order to put towns under fire, again, passed down through their
10 artillery units without further clarification or explanation or
12 MR. KEHOE: Your Honour, I would ask the leading to stop. I
13 object to it.
14 JUDGE ORIE: Yes.
15 You have brought the attention to what we see here --
16 MR. RUSSO: I haven't asked my question yet so ...
17 JUDGE ORIE: No, but you are describing what you do not see and
18 there is, of course, a certain suggestive effect, at least could be
19 expected. You understand that you are drawing the attention to what is
20 not there, and that is for the witness to find out what is and what isn't
21 there. So --
22 MR. RUSSO: I understand, Your Honour.
23 JUDGE ORIE: If you just refer him to these texts and say, The
24 orders as written down on paper, then the witness can consider what is
25 there and what is not there.
1 MR. RUSSO: Very well, Your Honour.
2 Q. Looking at the orders as you've seen them here, Colonel Konings,
3 I would like you to please comment for the Chamber on the nature of these
4 orders and explain whether you believe that this is consistent with what
5 you would expect to see in orders for artillery operations in
6 civilian-populated areas.
7 A. Well, first of all, when you draw up orders and give them to --
8 in this case, to artillery units, or I prefer to call it fire support
9 units, you have to mention, you have to clarify what effect you want to
10 achieve by using those specific weapon systems on specified targets. So
11 you have to come up with the effects that you want to have. Otherwise,
12 an artillery commander of an artillery units is not able to make his
13 choice about what types of ammunition to use, how many rounds to use, how
14 the order of fire should be, so the effect is crucial.
15 Mentioning the effect, establishing the effect is coming down
16 from the mission which is given to you by the highest commanders and
17 dictates the way that you use your weapon systems. That is not only for
18 artillery, not only for mortars, same counts for the close air support,
19 same counts for the use of every weapon system that have you in your
20 inventory. The same counts, by the way, for the non-lethal use of
21 various systems that we have in our inventory.
22 So I would expect as we see in this order terms like neutralize
23 command post or destroy command post or attack enemy positions, there,
24 there, and there, with this effect, I would require to have specified the
25 terms put a town under fire or shell a town, with which purpose, with
1 which effect. What should be the outcome of the shelling; is there a
2 certain period; what type of ammunition do I need to use; what effect
3 does the overall commander want to achieve by framing his order in this
5 That's what I'm missing. And I think that's crucial that you
6 state what you want to achieve as you do it with attacking military
7 targets; and if you have the intention to attack certain military targets
8 inside a civilian-populated areas you better say so; you better explain
9 to your lower commanders what you want to achieve there; what is the
10 effect of taking the risk in attacking with artillery military targets in
11 a civilian-populated area; so that everybody is aware what he has to do,
12 what the effect should be, and what the risks involved are. Underlying
13 commanders, lower commanders are obliged to know that. That is what we
14 call mission command.
15 Q. Thank you.
16 MR. RUSSO: Your Honour, at this time I would move for the
17 admission of 65 ter 2211. That was the OG Zadar order for attack.
18 MR. KEHOE: No objection, Your Honour.
19 JUDGE ORIE: Mr. Registrar.
20 THE REGISTRAR: Your Honours, that becomes Exhibit P1263.
21 JUDGE ORIE: Is admitted into evidence.
22 MR. RUSSO: Thank you, Mr. President.
23 And for the Court's information, I'm not moving 65 ter 2209
24 because I believe that already has an exhibit number.
25 Now if we could move to, Mr. Registrar, again P1259, MFI.
1 Q. And, Colonel Konings, if you could refer again to your expert
2 report at section 13 --
3 JUDGE ORIE: Mr. Russo, even if you're not asking for a number,
4 it might be good for those who might ever wish to read these transcripts
5 to know the exhibit number because otherwise it takes them quite a while
6 to find it on the basis of the 65 ter number you mentioned.
7 MR. RUSSO: Certainly, Your Honour, it is my understanding it's
8 65 ter 2209 has been assigned Exhibit P1201.
9 JUDGE ORIE: Thank you.
10 Please proceed.
11 MR. RUSSO:
12 Q. Now section 13 of your expert report appears at page 13 in the
13 English version and page 31 in the B/C/S. And there in section 13 you
15 "Uncorrected fire should not be used in civilian-populated
17 I'd also like to you turn to section 8F of your expert report.
18 This appears at page 8 in the English version and page 18 in the B/C/S.
19 Now looking at section 8F there you state:
20 "The use of artillery and mortars against targets in
21 civilian-populated areas without having these targets under observation
22 of a forward observer should not be done, unless the target is beyond the
23 already described collateral damage distance and the exact location is
25 MR. RUSSO: Mr. Registrar, if we could now please have 65 ter
2 Q. Colonel Konings, this is a report of the 134th Home Guard
3 Regiment which was one of the units participating in Operation Storm and
4 I would like you to look at page 2 and if you like in your binder, this
5 is at tap 10.
6 Now at page 2 the last part of the section, section B which in
7 the B/C/S appears on page 1.
8 MR. RUSSO: Sorry, I have two -- it appears I have two B/C/S
9 versions up on my screen.
10 JUDGE ORIE: It's better now.
11 MR. RUSSO: Thank you.
12 Q. There at the top of the page in English which is at -- appears at
13 the end of section B, you will notice where it states:
14 "In the first few hours we had no support from the Zadar OG
15 except for the shelling of the general area of Benkovac without
16 monitoring and the message at 530 hours of the following contents, 'Is
17 anything following on Benkovac?'"
18 Now, I'll ask you to assume for purposes of this question,
19 Colonel Konings, that Benkovac was a civilian-populated area at the time,
20 and given that, and what --
21 MR. KEHOE: Excuse me, excuse me, civilian populated area. If I
22 may, Your Honour. A civilian-populated area with military installations
23 in it.
24 JUDGE ORIE: Yes. I think that until now the focus of the
25 questions was mainly on targets within areas where a civilian population
1 existed and not to exclude any military target in there. And apart from
2 that, I do not think that the witness has any knowledge about that, is
4 MR. RUSSO: That's correct, Your Honour.
5 JUDGE ORIE: So let's just assume that civilians were living
6 there but that military targets are not excluded to be present as well.
7 Please proceed.
8 MR. RUSSO: Thank you, Mr. President.
9 Q. Mr. Konings, with that assumption, and given what you have read
10 or what have I read to you of this report do you consider the shelling of
11 the general area of Benkovac without monitoring to have been an
12 appropriate or lawful use of artillery?
13 A. Well, as we said before, if you assume it is civilian-populated
14 area and in that populated area various military targets are established,
15 I would prefer to know, first of all as a military commander, to know
16 exactly what -- how -- no, I have to state that -- rephrase that.
17 I would like to have the area under observation so that I could
18 see what -- if I achieve the facts that I want to achieve. So if I don't
19 know, have a clue, if I reach the effects that I want to achieve with my
20 weapons systems or with my whole operations, I cannot conclude in going
21 to the next step.
22 So that's the reason that commanders do the utmost to try to see
23 and to monitor, to observe what the -- what the effects are that weapon
24 systems are building in the field; and I would particularly be interested
25 in having an area where a combination is of civilian area was in there
1 with mixed military targets, I would be very interested in having that
2 area under observation knowing what is happening there. So that in case
3 when something goes wrong, when something goes totally out of hand, I'm
4 able to stop anything I'm doing there.
5 So putting an area under shelling without any observation, to me,
6 is an at least an inappropriate thing to do. It's dangerous and can
7 cause a lot of trouble, it can cause a lot of damage to infrastructure
8 and worst of all, people that you don't want to harm at all.
9 Q. Thank you.
10 MR. RUSSO: Mr. President. I move for the admission of
11 65 ter 4600.
12 MR. KEHOE: No objection, Judge.
13 JUDGE ORIE: Mr. Registrar.
14 THE REGISTRAR: Your Honours, that becomes Exhibit P1264.
15 JUDGE ORIE: P1264 is admitted into evidence.
16 MR. RUSSO: Thank you.
17 Q. I would like to move now to the addendum to your expert report
18 and ask to you explain a few areas to the Chamber.
19 Now, your addendum appears at tab 3 in your binder and this is
20 Exhibit P1260 MFI
21 Now, before getting to my questions, Colonel Konings, I would
22 like you to first explain to the Chamber the methodology that you used to
23 create this addendum. And you touch upon it briefly in section 1 of the
24 addendum itself but I would like you to please explain it to the Chamber,
25 how you approached the task of answering the questions put to you by the
1 OTP, what materials you reviewed, and what assumption you made?
2 A. As told by Mr. Russo, I have been given information on the
3 situation in and around Knin. I have approached that information, trying
4 to analyse it in the same way as we do analysing an operation in -- in
5 NATO. I did that, of course, in a simplified form, and the way you do
6 that is you take into account all the facts that are around you, so you
7 try to describe for yourself the whole operating environment. That means
8 you have a look upon all the actors that operate in the environment. I
9 mean by that the enemy or the opponent or the adversary, no matter how
10 you call it.
11 You look to population, you look upon your own forces, you look
12 upon the geography of the area, how is the infrastructure, you look at
13 factors like weather and that kind of stuff. And when you look upon the
14 infrastructure or the area, you also look upon the fact which military
15 targets are in that area, how are they connected to the enemy, and what
16 is their value, do I need to combat them, and if so do I need to do that
17 with artillery, with close air support or with any other means that I
18 have in my inventory. And the last thing I describe is, of course, the
19 targeting process.
20 So building -- I have tried to building my answer to the OTP
21 around that analysis that we do inside a military operation.
22 Q. Thank you for that explanation.
23 Now, let's begin with section 2 a 1, on page 1 in the English
24 version and also on page 1 of the B/C/S. And in that section you
25 indicate that an element of your analysis included the fact that Knin was
1 a high-value target and its capture was important to the Croatian army.
2 And you state that this is reflected in the "Op order of the Croatian
4 And if we could just very quickly have Exhibit P1125, brought up
5 on the screen, and, Colonel Konings, P1125 is at tab 6 of your binder.
6 Now, can you please have a look at Exhibit P1125 and can you
7 clarify for the Chamber whether this order General Gotovina's offensive
8 operation order is the Op order to which you are referring in the
10 A. Yes, that is the order that I'm referring to.
11 Q. And can you explain to the Chamber what you found in this
12 offensive operation order that led to you conclude that Knin was a
13 high-value target?
14 A. Well, there are various places that Knin is called upon. For
15 example one of the main forces are grouped to work along various axis.
16 One of them is Bosansko Grahovo to Knin, and you can read there that
17 troops working along that axis have to cut off communications leading
18 from Knin, have to encircle Knin, and have to take control of Knin.
19 So that brings me to the conclusion that Knin is seen as a very
20 important city. Cutting off the city and circling the city and taking
21 control of that seems to me to be a high-value target. It is -- its loss
22 of the city is a major blow for the opposite party and taking of the city
23 is a crucial factor in the Operation Storm.
24 Q. Thank you. Now, in section 2 c of the addendum and if we could
25 move back to that, that's P1260, MFI
1 Colonel Konings.
2 In section 2 c, you detail the list of alleged military
3 objectives which you were asked to consider and comment upon, and you
4 discuss the military value for each and whether under facts assumed in
5 your analysis you considered it to be legitimate to fire artillery at
6 each of the objectives.
7 I would like to take you through some of those objectives and
8 have you briefly explain your position with respect to each. However,
9 I'd first like to take a look at section 2 c i, which is also on page 1
10 in the English but appears in page 2 on the B/C/S.
11 And there you state:
12 "The list of targets contains a mix of military targets and
13 non-military targets. The majority of the military targets are in the
14 direct environment of civilian populated areas which makes them not
15 acceptable for attack with any indirect fire support means."
16 Now can you please explain for the Chamber why being in the
17 direct environment of a civilian populated area makes a military target
18 not acceptable for attack with artillery?
19 A. That has in the first place to do with the legality effects that
20 occur when artillery is used. We have discussed yesterday the
21 possibility of a blast and shrapnels, especially shrapnels can fly very
22 far away. And it has to do with the inaccuracy that artillery
23 projectiles have in their basis. That's something that belongs to the
24 ballistic behaviour and you cannot prohibit that in using artillery
1 So you have a chance in hitting a target and you have a chance at
2 a certain number of projectiles is not hitting a target and falling in
3 the direct environment of the target. And depending on how dense the
4 buildings around -- the civilian buildings around a military target are,
5 you have the risk of giving of -- of getting collateral damage to
6 property and worse to personnel, to people.
7 And the third thing is what we discussed for the first time today
8 is the psychological effect that you will have throughout a
9 civilian-populated area when using artillery projectiles not only in the
10 close proximity but also further away.
11 JUDGE ORIE: Mr. Russo, if you would allow me, I would like to
12 seek clarification on one issue.
13 In your report, Mr. Konings, you give the surface, the area,
14 which is covered by the fragments of 120-millimetre projectiles,
15 1600 square metres, and even up to 2100 metres, if the projectile
16 explodes at three metres high. You give for 81-millimetre mortars, you
17 give also similar cyphers.
18 Now could you tell us, the largest area covered by an artillery
19 projectile would be -- would that be the 203 millimetres and what area
20 would that cover?
21 THE WITNESS: I do not have those exact figures available,
22 Your Honour. I have taken the 120 because that is a quite commonly used
23 mortar projectile. I'm quite sure those are for 155 and 203 available,
24 and the area covered by those types of projectiles will be bigger than
25 the 1600 square metres that you describe for 120, but I do not have the
1 exact figures available.
2 JUDGE ORIE: Even if not the exact numbers, could you give us
3 more or less in what size - I have to think - would it be double the
4 surface, would it be triple?
5 THE WITNESS: No, it is very hard to guess that. I prefer to say
6 it will be bigger, but I have no figures available; and I didn't study
7 that in the late period in order to find that out, so I cannot be more
8 precise than I say now.
9 JUDGE ORIE: Thank you. Is there any way, perhaps, that during
10 the breaks you find out about and find a source or -- or would you know
11 about a source or would the parties -- could the parties assist me in --
12 because we now it for 81-millimetre, 120-millimetre but not for the --
13 for the heavier weapon systems.
14 THE WITNESS: Given some time, I can find it out. I have sources
15 inside the Dutch army that I can rely on. It may take either a day or
16 two to get that information.
17 JUDGE ORIE: I'm also addressing the parties. Would the parties
18 have information because this usually comes from tables, isn't it, which
19 are --
20 MR. KEHOE: Just in the spirit of accuracy, Judge, it is not
21 necessarily square metres. It's radius that is the important effect.
22 JUDGE ORIE: I take it that, of course, depending on the angle of
23 descent but if we're talking about maximum, that would be if the
24 projectile falls under a 90-degree angle because then it is the widest.
25 It doesn't touch the ground easily, it doesn't have to climb up on the
1 other side.
2 MR. KEHOE: That's correct.
3 JUDGE ORIE: So therefore I take it that there must be tables --
4 I mean if we know it and the surface, of course, usually at the -- I
5 would say at the ideal landing giving the largest area covered.
6 THE WITNESS: To be honest, there are no ideal circumstances and
7 the fact that you are describing a projectile landing on a 90-degree
8 angle, first of all that will never happen. That's theoretical approach.
9 JUDGE ORIE: Yes, I do understand because then we have to fire
10 just in the air and then it comes down.
11 THE WITNESS: And then it comes down to your own positions. So
12 That doesn't work but the -- the angle of impact, the 1600 square metres
13 is never an exact square. It is just to give you an idea how large that
14 area is. The same we say for the when you use a DPICM - and I know that
15 this is a tricky issue, but I don't mean anything with that - but the
16 coverage of one DPICM emission is as large as a football field. But can
17 you imagine this a shrapnel doesn't stop at the end of the field. So
18 shrapnels fly around, they have a very irregular pattern. Only to give a
19 reader an idea how large an area is that can be covered by a mortar
20 projectile hitting the ground in an average angle of impact, I have given
21 this example of 1600 square metres.
22 JUDGE ORIE: And that is then the 1600 square metres is as far as
23 the shrapnel flies?
24 THE WITNESS: That is it as far -- that is the theoretic approach
25 as far as most of the shrapnels fly. It gives you an idea of an area how
1 large it is, but there are, of course, shrapnels that fly further. For
2 that reason, in Afghanistan
3 civilian target because we are then 100 percent sure that no shrapnel of
4 a 155-projectile will fly beyond the distance of 500 metres. That is the
5 reason why we take 500 metres from the point of impact. There must be
6 analysis tables we use tables for analysis of targets which gives you
7 coverage and gives you the numbers of the projectiles that have you to
8 use. I can try to get the tables but that will cause time.
9 JUDGE ORIE: The reason I am asking because I heard several
10 times, I heard you saying several times shrapnel flies hundreds and
11 hundreds of metres. And at the same time, I have some difficulties in
12 reconciling this with the 1600 or the 2100 square metres because that
13 would be -- if it would be a circle, and I do understand it is not a
14 circle, but if it would be a circle that would be radius of far less than
15 100 metres. So if you say that is where most of the shrapnel flies or
16 lands, then -- I am trying to understand what it actually means because
17 from what I know is a football pitch is already some 5.000 so that would
18 be half a football pitch, approximately, even less, 2100.
19 So, therefore, the 500 metres, the several tens of metres, half a
20 football pitch, I'm trying to understand what it actually means when you
21 say shrapnel flies several hundreds of metres.
22 THE WITNESS: Well, shrapnel can fly several hundreds of metres.
23 That depends on, first of all, the projectile itself, the way it
24 explodes, the angle of impact; and in a theoretic circumstances where you
25 test exploding -- where you test artillery projectile there have been
1 known measurements. And I know that these measurements are there. And
2 then you can find shrapnels back up to 300 metres. And to be sure that
3 no shrapnel will hit anything else than a military targeting, that is the
4 reason that NATO choses 500 metres distance in Afghanistan related to a
6 So there are many figures around, but shrapnels can do strange
7 things and can fly very far. They can go up to 2, 300 metres. They have
8 been found during tests - I have seen that in Sarajevo - that they can
9 go beyond that distance and that you find them beyond that distance and
10 they may have capacity to injure people.
11 The 1600 metres, 2100 square metres are more related to the
12 lethal capacity of a projectile. If you are inside a 1600 square metre,
13 you have a fair chance to get killed, but you never can predict how far
14 shrapnels will fly and how the blast of a projectile will work because
15 that is all to do with the place the explosion takes place, the angle of
16 impact, and all circumstances around it.
17 That's -- you cannot predict that and because of this
18 unpredictability, it is the most strongest thing to try to avoid the use
19 of artillery in a civilian-confined area unless you have good reasons to
20 do so because the military target over there has such high value that
21 taking out that target it is acceptable to -- to kill civilians.
22 JUDGE ORIE: You're now going beyond my question.
23 THE WITNESS: I'm sorry, sir.
24 JUDGE ORIE: Mr. Russo, please proceed.
25 MR. RUSSO: Thank you, Mr. President.
1 Q. Before we move on, I just wanted to clarify something that you
2 had said to His Honour Judge Orie with respect to the 500 metres distance
3 that you use in NATO, currently uses in NATO, can you clarify whether
4 that distance is used with respect to precision-guided munitions or other
5 kinds of munitions?
6 A. That distance is used in relation to non-guided artillery
8 Q. Thank you. Before we move on to discussing the specific alleged
9 targets that you opined on in your addendum, I would like to show you an
10 interactive aerial photograph that we have of Knin, we're going to be
11 showing this through sanction, Your Honours. This 65 ter 4776.
12 MR. RUSSO: And you'll give us just a moment here to pull this
14 Q. Colonel Konings, do you recognise this aerial photograph of Knin
15 here on your screen?
16 A. I do recognise it.
17 Q. And did you make use of a similar photograph in your analysis for
18 the addendum?
19 A. I did.
20 Q. And I'll just tell you and also inform the Chamber and counsel
21 that the red dots which appear on this photograph are vantage points from
22 which particular photographs were taken, and I trust that there's not
23 going to be any objection with respect to some of the photographs we've
24 shown have been disclosed. I'll be showing some of these throughout the
25 course of this presentation.
1 But, first, let's begin with the northern barracks and for the
2 Chamber's information this is addressed at section 2 c ii of the
4 In your addendum, Colonel Konings, you identify the northern
5 barracks as a military target and I'd like to you please explain to the
6 Chamber what your assessment was of the value of that as a military
7 target given the information that you were provided?
8 A. Well, first of all, the information that was given to me said
9 that there would be possible -- a possible presence of a corps HQ and
10 when that is actually a fact that makes it a military target, and I can
11 state that is a valuable military target if the corps headquarter
12 commander is there and has his HQ in a barracks. It is a valuable
13 target. I would estimate it to be there.
14 Besides that, the information given to me was that there were
15 very few other troops in there. No combat troops, no real reserves, only
16 some logistic troops and also the possible presence of the headquarters
17 is also not confirmed or is not stated; so it is very well possible that
18 the headquarters isn't even present. That was the information that was
19 given to me.
20 Q. And can you explain to the Chamber why you say in your addendum
21 that it should not have been attacked with artillery on the 4th of
23 A. Well, there are numerous reasons that I came to that conclusion.
24 First of all it is -- the barracks are surrounded on various sides by
25 civilian-populated areas, and as I was informed on the first day of the
1 attack, still some 15.000 people were inside the city.
2 Secondly, the barracks contain, the barracks, the buildings on
3 the barracks are rather strong concrete either brick-built building, so
4 the effect of artillery attacking those buildings would be very low
5 unless you use large numbers of artillery projectiles which would even --
6 which would endanger the environment.
7 And lastly, since are you not sure if the corps commander is
8 there, have you to be sure that he is there and even if he would be in
9 the barracks he would have his headquarters somewhere in one of these
10 buildings. You have to be absolutely sure which building it is, and
11 where he is in that building. You have to know the moment, the place,
12 every single detail; and I assume that he will not have his headquarters
13 on the roof or somewhere close to the roof or in the ceiling. He will
14 have his headquarters somewhere in a protected area, in a basement in a
15 cellar where he is reasonable protected against artillery attacks, having
16 seen those buildings.
17 So that brings a lot of uncertainties against the use of
18 artillery weapon systems for attacking these barracks.
19 Q. Thank you, Colonel Konings. Now looking at this particular
20 photograph, which is a photograph of one of the buildings there in the
21 barracks, can you give the Chamber some idea of what effect, if any,
22 artillery fire would have on a building like this.
23 A. Well, the effect of an artillery projectile on there building,
24 first of all if it hits the building it might -- it will explode. I
25 don't think it will go -- it will even go through the building. It go
1 through the wall. If in case you use a concrete piercing fuse, it will -
2 I guess - I think it will go through, but I'm not quite sure I haven't
3 seen the construction of the buildings myself.
4 But the construction is such that even if the projectiles hit the
5 building it will -- it will take lots of projectile, and I really mean
6 lots, more than hundred to be able to destroy a part of the building. So
7 you can imagine if a HQ is in the lower basement or in the cellar of this
8 building that an artillery shelling of this building will not close down
9 this -- this headquarters in the first place.
10 Projectiles that will miss the building will only leave some
11 marks at the outside or will shatter windows, will blow out a door,
12 et cetera. So it will be superficial damage. It will not be structural
13 which will bring down the building because artillery projectiles in a way
14 that they were used in 1995 are not fit for that unless - what I told you
15 before - you use a lot of projectiles then you are able to bring down a
16 part of the building.
17 Q. Thank you. Now looking at the photo here, can you tell the Court
18 if artillery shells were fired at the building we just looked at what
19 effect that would also have on this building which we see here across the
21 A. Well, first of all it depends on the distance that the artillery
22 projectile falls between the two buildings but as we discussed before
23 this distance is such that shrapnels will reach that building that is now
24 on the screen so they will bring damage to that building. They will not
25 destroy the building, but will form a serious danger for people living
1 that are living there in bringing down glass windows, shrapnels that fly
2 into living rooms. People might be on the street and so there will be
3 injuries caused, and in certain cases, people will have the possibility
4 to be -- to be killed. The distance is such that that is capable by
5 doing -- by using high-explosive projectiles.
6 Besides that shelling such a building in the barracks, and I
7 cannot stop saying that, will cause huge psychological effect on the
8 people that are living in those buildings closely in the close
9 environment of the -- of the barracks.
10 Q. Let's move now to the Senjak barracks which is this facility
11 which see here on the screen --
12 JUDGE ORIE: Mr. Russo, could we go back to the previous -- to
13 the northern barracks for a second so --
14 MR. RUSSO: Sure.
15 JUDGE ORIE: So as to allow us to --
16 MR. RUSSO: Would you like that photograph in particular,
17 Your Honour?
18 JUDGE ORIE: Well, I'm just trying to ...
19 Mr. Konings, could you tell us what the distance was between the
20 buildings across the street and the building which may have housed the
22 THE WITNESS: I think that it is less than 100 metres.
23 JUDGE ORIE: Please proceed, Mr. Russo.
24 MR. RUSSO: Thank you, Mr. President.
25 Q. Now moving to the Senjak barracks, which, again, is this
1 particular facility we see here on the screen.
2 This you address at subsection c iii of your addendum and you
3 also identify the Senjak barracks as a military target, and I would again
4 ask you to explain to the Trial Chamber what you consider to have been
5 the value of that target on the 4th of August, given the information you
6 were provided.
7 A. I first have to look exactly what -- where the information is on
8 what you gave me. Can you give me a moment?
9 Yeah, have I it here. The Senjak barracks was the information
10 given to me was on rear logistic headquarter with only 40 soldiers
11 manning these facility during artillery attack. So there was some
12 administrative offices, bakery, clothing and food supply. That all in
13 all brings me to the fact that, of course, this is military stuff,
14 military personnel but if you look to the whole of the setting, to the
15 whole of the operation, 40 logistical soldiers cannot bring any -- any
16 direct danger to an attacks forces that wants to attack the city or wants
17 to take control of the city.
18 For that reason, I came to the conclusion it is a military target
19 but of very low value.
20 Q. And can you then explain to the Chamber why you indicated that
21 this facility should not have been attacked with artillery on the 4th of
23 A. It's the same as we discussed before. It's surrounded on various
24 sides, up to the north as well, by civilian-populated areas. The
25 information was given to me that 15.000 people were in Knin on that day.
1 So the risk is very serious, that when you start attacking the barracks,
2 that you will inflict damage to the civilian population as well.
3 Besides that, attacking these buildings, first of all the
4 military target to me is a low-valuable target. So taking out of the
5 target doesn't bring anything directly to the success of the operation;
6 and secondly, these are again strong buildings, so if you want to destroy
7 taking out those 40 soldiers in those building you need to gain a lot of
8 artillery ammunition to do that with the risk we described before of
9 injuring, damaging property and people.
10 Q. Now, if there were trucks carrying logistical supplies or even
11 carrying weapons inside of this facility on the 4th of August would that
12 change your opinion that it should not have been attacked with artillery?
13 A. In, itself it changes if these trucks especially with weapons
14 would be available, it would change something in the possible value of
15 the target. But again taking the risk that you tried to take out some
16 trucks inside the barracks with artillery, opposite the fact that you
17 have the risk that you bring a lot of damage to a civilian area would
18 bring me to the conclusion that I would try to -- to see whether these
19 trucks are staying there so that the weapons are not used by any troops
20 at all; and when they are moved, I would try to see that I could attack
21 them on a place where there is -- much less problem maybe outside the
22 city or on an abandoned road where you can try to attack and destroy
23 those moving -- or moving trucks.
24 Q. Thank you.
25 MR. RUSSO: Mr. President, this is probably a good time for a
2 JUDGE ORIE: It is it, Mr. Russo. But let me go back again for
3 one minute to the -- to the last photograph.
4 I asked you, Mr. Konings, what would be the distance and you said
5 less than 100 metres. Now, let me -- and you told us that it should not
6 be attacked by artillery.
7 You earlier told us that if you have an air-burst that the area
8 covered by a 120-millimetre mortar projectile, 120-millimetre projectile
9 would be 2.000 square metres. Now just for me to -- if I would therefore
10 be able to hit that building well, let's say, within 40 metres of it so
11 that makes 60 metres remaining for the distance of 100 metres, then if it
12 would be circular, the area covered and it usually will not be circular
13 but -- then I would have to think of 60 metres remaining. 60 metres in a
14 circle surface being a little bit over 10.000 square metres. I would
15 then find for a 120-millimetre projectile, I would -- in order to be --
16 to effectively injure or kill people, I would need an area far larger,
17 and you said that 2.000 metres was where it would cause -- have a real
18 effect. So not one piece of shrapnel flying exceptionally far, but
19 that's where the real damage is done.
20 Now, for 60 metres as radius, I would have an area of 10.000
21 metres which is five times the 2.000 metres you said. Could you help me
22 to better understand what the real risk was of persons being injured or
23 killed at that distance, of 60 metres?
24 THE WITNESS: First of all, Your Honour, we are now talking very
25 theoretically about the explosion of one projectile. If you would attack
1 those barracks, if you value that as a military target, and if you know
2 the strength of the building, and in case you choose to use artillery for
3 that for combatting the target you would use much more than one
4 projectile. That means automatically that the chance that in the area
5 between the two buildings, the civilian building on the one hand and the
6 HQ at the other hand, more projectiles will falling.
7 So there will be not one explosion. Several projectiles will hit
8 the building. Several will be at the back side of the building at the --
9 well, away from the civilian building and others will fall between but --
10 JUDGE ORIE: May I interrupt you a second. I try to be a very
11 cautious commander; so knowing that civilians will living at the other
12 side of the building, I'm targeting at a distance of 60 or 80 metres in
13 the opposite direction and with the intention to adjust fire, once I have
14 observed where the projectiles landed.
15 Could you include this in your --
16 THE WITNESS: That is, of course, a possibility to do, that you
17 keep -- try to keep the artillery fire on the safe side in comparison
18 with the civilian population. But you never can be sure that no rounds
19 will fall further than you -- than your intention is. Besides that, if
20 you keep the artillery fire on the safe side of that building, the effect
21 that you will achieve on that building, I don't know what the effect
22 should be, either neutralisation or destruction, it will be less because
23 the bigger part of the projectile will either -- will not hit the
24 building so the effect that you want to achieve will be less.
25 That is it a possibility. The risk will still be there that some
1 rounds will fly further than your intention is, and I come back to my
2 most important effect that you achieve by targeting those buildings with
3 artillery is the psychological effect because it doesn't -- it doesn't
4 make any -- any difference whether the rounds are falling left, right,
5 plus, minus from this building, the civilians in that area, in a wide
6 area, and I mean a really wide area, even kilometres away will be
7 panicked. They will be caused chaos because you don't know where the
8 rounds are falling, to whom they are addressed, and what is happening;
9 and that may be the most important thing that a commander -- no, I have
10 to rephrase that. That is the most important thing that a commander has
11 to think about in judging whether he should use artillery - yes or no -
12 against the value of a military target.
13 JUDGE ORIE: Thank you for that answer.
14 We'll have a break and resume at a quarter past 4.00.
15 --- Recess taken at 3.50 p.m.
16 --- On resuming at 4.17 p.m.
17 JUDGE ORIE: Mr. Russo, you may proceed.
18 MR. RUSSO: Thank you, Mr. President.
19 Q. I'd like to move now to the ARSK HQ which you discuss at
20 subsection c vii of your addendum, that we can find ... that's this
21 facility here in the middle between the top and bottom red dots.
22 Now in your addendum, Colonel Konings, you do not specifically
23 state that you consider this to be a military target. So first I'd ask
24 you to clarify for the Chamber whether you consider the ARSK HQ to be a
25 military target.
1 A. I do think that you can designate that to be a military target.
2 Q. And based on the information which you were provided, can you
3 explain to the Chamber what your assessment is of the value of that
4 military target on the 4th of August?
5 A. Well in itself, an overall HQ in the Ministry of Defence to me
6 seems to be a high-valuable, high-valid target, high-priority target to
7 call it like that. So in itself, attacking such a target or trying to
8 neutralise or destroy such a target seems to me to be a regular military
9 act to do.
10 Q. And you then explain why you say that it should not have been
11 attacked by artillery on the 4th of August.
12 A. Well, it comes back to what we have been discussing before. It
13 is in a very densed built infrastructure area where the possibility of
14 the presence of -- of civilians is very likely. That's not one thing.
15 The other thing is that the building that was showed to me where
16 the HQ and the Ministry of Defence is located seems to me to be a very
17 strongly-built, multi-storage building. So if you want to achieve a
18 certain effect, and I don't know what effect Croatian forces wanted to
19 achieve there, that was not in my information, I think it is highly
20 unlikely or even impossible that you can destroy such a building with the
21 use of artillery, unless you start using maybe more than 100 rounds, and
22 even then I doubt that can you destroy the building. You will have
23 damage. You will have a part of the building being neutralised but
24 seeing the fact that a HQ will not being on the top floor - it's the same
25 discussion that we had before - it will be in a protected area in this
1 building somewhere in the lower floors or even in the basement. So it is
2 just impossible to bring any effect to an important target somewhere
3 headed in this building with the use of artillery.
4 Q. Thank you. And looking at this photograph here of the building
5 and seeing the proximity of the buildings across the street and from your
6 review of the aerial photograph, the buildings around there, can you give
7 the Chamber an idea of the risk that firing artillery projectiles at the
8 HQ, what's the risk that the projectiles themselves will strike the
9 buildings across the street or further down the street?
10 A. Well, as you can see on the photograph it's a -- it is not such a
11 wide street. It is it not an alley. It is a distance of well, I
12 estimate that less than at least 50 metres, 40 metres maybe. It's a
13 normal, regular two-lane street with a sidewalk.
14 Projectiles not hitting the HQ but hitting street will be able to
15 produce a lot of casualties or damage to infrastructure, but especially
16 casualties. Because of the fact that if you see that some of the
17 buildings are rather high so the blast will be -- the pressure will be
18 even higher than when you have an explosion more in the open. I have
19 witnessed unfortunately such an effect in Sarajevo where we had more or
20 less the same situation as here where one mortar projectile fell in
21 between two rather high buildings and killed 40 people on the spot and
22 that was just talking about one projectile.
23 So I can imagine -- first of all, I can imagine that this target
24 is a high-value target for any attacking force because it hides a HQ, it
25 hides -- it has in itself a Ministry of Defence, but the likelihood of
1 hitting civilian population and sheer impossibility in bringing
2 structural harm to this type of buildings and their inhabitants bring me
3 to the conclusion that artillery is not the proper thing to use here.
4 Q. Thank you. Now, referring back to your expert report and we
5 don't need to bring this up but for reference it's at section 1 c, you
6 state that one of the purposes of artillery support is to:
7 "Disrupt the enemy/opponent command and control system his combat
8 support means and his capacity/ability to execute the operation for a
9 longer period?"
10 Now wouldn't the destruction or neutralisation of this command HQ
11 disrupt the ARSK's command and control system?
12 A. I'm quite sure that it will influence any compatibilities of the
13 army when highest headquarter is taken out of action. That doesn't
14 matter from which origin that headquarter is, either it is NATO or
16 But in the military chain of command, lower headquarters at the
17 beginning of an operation know what they have to do and will be able to
18 operate, to take the operation further. I do not have any insight in the
19 morale affects of destroying any higher headquarter because it is also
20 known that when you take out the highest commander or a high -- a
21 minister or minister president that can have such a morale effect on
22 troops in the field that they stop fighting. That's a possibility. But
23 that differs from situation from situation, that differs from country to
24 country, it can also have the opposite effect: One should take out the
25 highest commander. Troops can be more determined to defend their own
1 case. So that is speculating on an outcome of what were to happen.
2 Q. Now, Colonel Konings, if one or even possibly two shells struck
3 this building, in your opinion, would that disrupt the ARSK's command and
4 control system?
5 A. Well, that is hard to say. I assume that the bigger part of the
6 RSK facilities building up of the command post will be in a protective
7 part of this building, will not be on the high floor, on the top floor,
8 or on the ceiling. The only thing you might hope to damage, or in any
9 other case, to destroy may be some aerials that can be on a roof which
10 you use for radio communication. But I'm quite sure that such an
11 important headquarters has more means to communicate with its lower
12 commands in the field, that they will not rely on only one system of
13 radio communications. They probably have double communications, make use
14 of land lines of all types of things that you can think about.
15 Q. Thank you. Let's now discuss the RSK telegraph and post office.
16 And this you address at section 2 c 14 of your addendum.
17 And let me just see here.
18 Now, you indicate in your addendum that this is not a military
19 target and should not be attacked with artillery. And in forming that
20 opinion, Colonel Konings, did you consider that the ARSK might
21 potentially have made use of the communication facilities which were in
22 this building?
23 A. Yes. That's a thought that crossed my mind. But it's still --
24 but then it is still my opinion it is from origin a civilian structure, a
25 civilian part of the infrastructure. Post and -- telegraph and post
1 offices are civilian things, are part of the civilian society.
2 So taking them out, first of all, without any presence of
3 military in there or military use is, I think, not the right way to do.
4 I may call, it is attacking a civilian target.
5 Besides that, commanders have to take into account that when you
6 are able to destroy such an infrastructure, you destroy an important
7 piece of the whole society; and you might want to use that infrastructure
8 later on after the operation is finished yourself.
9 When -- not only that is important but when you destroy it, you
10 deny the civilian population in the area once the conflict is over - and
11 we all hope that a conflict finishes somewhere - you destroy a vital
12 piece of infrastructure and that are all things that have you to take
13 into account when you designate something as a target, yes or no.
14 The fact that these facilities may be used by military, to my
15 opinion, doesn't change immediately to a full, valuable military target.
16 Beside that, the area -- it is in an area with normal houses, civilian
17 houses besides it which brings you they are close to each other,
18 absolutely close to each other, as you can see; so it brings a high risk
19 of collateral damage. And as a last point, I doubt that you can bring
20 any level of destruction to this building. You might again be able to
21 damage the aerial that is on the roof, but you -- I doubt that you can
22 destroy there building in such a way that are you not able to uses any
23 land line afterwards you have done the shelling.
24 Q. And judging from the size of the building there, as you can see
25 relative to the cars out in front of it and the proximity as you indicate
1 of the civilian buildings around it, what's the likelihood that you be
2 able to hit this particular building with artillery without any
3 projectiles landing on the buildings next to it or behind it?
4 A. Well, I think that is quite impossible. It is depending on -- on
5 the accuracy of your systems that you have. But I think that using the
6 average system in a range of between 105 and 155 that you will have a
7 very large chance that you will -- that will you hit or at least inflict
8 damage to one of the buildings at the left or the right side of the
9 telegraph and telephone building.
10 Q. Thank you. And with respect to the railway communication centre
11 which you address at 2 c 13, and that I believe is in this building here
12 that -- where you can see the cursor moving. I don't have a particular
13 photograph of that.
14 But in any case, would your answers --
15 JUDGE ORIE: For the record, it will not be easy to know exactly
16 where the cursor was moving, if it ...
17 MR. RUSSO: Perhaps if we can describe it as the building --
18 well, the red dot immediately to the south of the main railway station
19 moving to the left as we view the photograph, it's the first building as
20 you cross the street, which is to the left of that red dot.
21 JUDGE ORIE: Yes. May I take it that you consider to be south
22 downwards? Which appears not to be the case in this --
23 MR. RUSSO: That's correct, Your Honour. I believe --
24 JUDGE ORIE: You could then try to describe it again but now with
25 the ...
1 MR. RUSSO: Yes, from the main railway station moving immediately
2 west, you find are a red dot and from there moving immediately north once
3 you hit the first street the main railway station is the building
4 immediately across that street. And I believe this is the building which
5 was identified as the railway communication centre. I'm sure counsel
6 will correct me if I am wrong. But in any case --
7 Q. Colonel Konings, would your answers be the same with respect to
8 the use of artillery against this particular building and the
9 communications facilities which may have been inside of it?
10 A. I don't think I have anything to add to my previous answer.
11 Q. Thank you. Moving now to the RSK power distribution centre which
12 you address at 2 c 16. And that is it this facility that we see on the
14 Now can you please explain to the Chamber why you state that this
15 is not a military target and that it should not be attacked with
17 A. Well, it is a -- to my opinion in the description that was begin
18 to me it is a purely civilian target. It supplies power for the civilian
19 society, powers for civilian infrastructure. So I don't see any reason
20 to take that out because military installations, military forces will use
21 their own power supplies. They have mobile generators that they can use
22 besides that.
23 If you take out such power station, you might loose for a longer
24 period power supply in that region; and I don't think that's the thing to
25 do and not to decide for a military commander to take that -- that such
1 kind of power supplies out because you deny the civilian population the
2 use of appropriate means to build up their life again. There is no
3 military necessity to take it out, that building out because it is a pure
4 civilian installations.
5 JUDGE ORIE: Mr. Russo, could I ask a few clarifying questions.
6 Now -- and I'm also addressing you to some extent. You said
7 there is no military necessity. Even if there is no military necessity
8 it might bring some advantage even if you might have achieved that
9 advantage in a different way. Another matter you just said, Well, the
10 military will use their own power equipment.
11 Well, let's just assume that that is damaged by other means of
12 attack, and the military are only too happy that they have still got the
13 civilian power supply and can use it, and perhaps in circumstances here
14 where it is not just military in the field but in -- in a civilian
15 environment, that they may easily use that, for example, and I'm
16 referring to one of your previous answers, in relation to the telephone
17 company. You say, Even if it is used by the military well, that wouldn't
18 change anything.
19 Let's just assume that it was -- and the data do not give a lot
20 of information about that, that land lines were still frequently used in
21 this context by the military, and they were using power supply.
22 Now, do you say it is prohibited, or do you say it doesn't bring
23 you sufficient advantage by saying it's not militarily necessary? I'm a
24 bit lost with the criteria used in relation to questions and answers
25 because we are dealing here not with what would have been the best
1 military way of taking Knin. We're dealing here with an indictment
2 brought against three accused for having committed crimes.
3 It's not entirely clear to me at this moment to what extent we're
4 really touching upon what should be our focus, what should be our core
5 attention, and to what extent we're talking about trying to accommodate
6 concerns for psychological inconvenience to civilians. I'm just trying
7 to understand fully what our focus is at this moment. It is not entirely
8 clear to me, Mr. Russo, and it's -- you certainly will understand,
9 Mr. Konings, that we are not here in a military class how to do the best,
10 but we're here because we're having three indicted persons before us who
11 are charged with crimes.
12 So therefore I would very much like to have a focus on that and
13 not to mix up matters, what would be the best way to do it; but we're
14 talking about what was prohibited or what was not prohibited. And if you
15 say it would not make it impossible to use any land line anymore, that's,
16 of course -- if that would be the criteria that all land lines should be
17 destroyed in order to make it an acceptable attack within those means
18 then, of course, I'm a bit lost as far as criteria are concerned. This
19 is perhaps not a question but an attempt to get both questions and
20 answers focussed again on what really matters in this courtroom.
21 Mr. Russo.
22 MR. RUSSO: Thank you, Mr. President. Perhaps I can ask a few
23 questions of the witness to lay some foundation for the reason we're
24 approaching it in this fashion.
25 Q. Colonel Konings, in order to attack a particular target with
1 artillery -- well first, let me ask it another way. Would it be
2 prohibited in your understanding of the laws or customs of war to attack
3 a facility which -- of which no military use is being made?
4 A. Well, to be honest, I don't have that answer. I don't know
5 whether this is prohibited or not prohibited. I am not a legal guy. I
6 try to explain how we in Netherlands and in NATO approach these aspects,
7 the questions you ask me. And there are enough examples, unfortunately,
8 around us where we see that all types of power supplies, power supply
9 stations, or even civilian targets are attacked by military means. But
10 the position that I have to represent here is the fact that we put the
11 civilian population at the first place. Any operation that you do, you
12 do it between the population and you do it for the population. So that
13 means that you try -- your obligation is to inflict as less damage as you
14 can do to any population that is in your area of operation. And for that
15 reason Dutch armed forces and NATO forces have legal advisors in their
16 staff which are exactly aware of what you allowed to do or which you are
17 not allowed to do.
18 In this case, taking this power supply station as an example, I
19 would like to say that all -- no, all the examples, all the targets that
20 we are discussing about is a mixture of partly military use, military
21 precision, military occupation inside a civilian area, no matter what you
22 think about that. A lot of these infrastructure issues that we are
23 talking about are, in itself, meant to be used by civilians, and also
24 after the conflict. And that's the reason that I say when you attack an
25 area and when you attack military targets in itself that is valid; but
1 the value of all the targets in this area, I seriously doubt about,
2 because hardly any target in this area, no, not any target in this area
3 as was described by me by the OTP is of any high value.
4 In the whole city of Knin were less than 500 soldiers. There
5 were no defence lines, there were no prepared positions. There were no
6 combat troops I try to aim at --
7 JUDGE ORIE: Are these -- are you now --
8 THE WITNESS: I try to build up --
9 JUDGE ORIE: Yes, let me just interrupt you for one second. When
10 you say there were no more than 500 soldiers, are you referring to the
11 facts as they were put to you or do you have any --
12 THE WITNESS: Yes.
13 JUDGE ORIE: Yes. So you say in forming your opinion about the,
14 matter we're talking about a city with less than 500 soldiers.
15 THE WITNESS: To be very clear, Your Honour, I'm talking about --
16 I use the information when I say something here, I use the information
17 that the OTP gave me. I studied that information and as we have
18 discussed before, I have been in Knin; but I have not been in Knin on the
19 moment that this all happened. I have been UNMO in Sarajevo but that is
20 a totally different place, and I may have drawn some experience from
21 there. But that is something else.
22 The point I tried to make in explaining what I'm explaining now
23 is that the combination of the low value of those military targets, the
24 fact that the bigger part of those military targets in the
25 civilian-populated area in combination with the fact that -- especially
1 the first day of the attack, 15.000 people were still there make it very
2 likely, very crucial that you consider artillery not to be the most
3 proper means to use in this area because of its ineffectiveness because
4 of its inaccuracy and because of the fact there is no real military value
5 in that area.
6 And when you say assume that this power station would be used by
7 the military, well, I'm not quite sure that -- that there are rules that
8 this is on legal basis that it is then forbidden to destroy, I don't
9 know. That's another consideration that have you to make.
10 If the destruction of that power station, if it would be used by
11 the military, would cause the collapse of a defence force of Knin within
12 a few hours time or within a day's time and which would spare a lot of
13 other misery that would be a good consideration then to destroy that
14 building. Absolutely true. But you have to consider the fact that when
15 you destroy a power supply station, that you destroy, maybe, for a longer
16 period, a power supply that helps a civilian population to recover from a
17 conflict. That's what I tried to explain.
18 JUDGE ORIE: Thank you.
19 Please proceed, Mr. Russo.
20 MR. RUSSO: Thank you.
21 Q. Let's move to the traffic roundabout, and this you address at
22 section 2 c 28 of your addendum.
23 Now, can you explain to the Chamber why you say that this traffic
24 roundabout is not acceptable as a target for artillery?
25 A. I have to fall in some repetition. First of all with the
1 information given to me, there is no direct proof there is any military
2 presence on that roundabout but, of course, that roundabout can be used
3 by military troops to cross that.
4 Secondly, it is again in a rather densed populated area, and a
5 roundabout is not too large, so the possibility of when you use artillery
6 against such a roundabout, it is very well present that you hit one of
7 the buildings or that you inflict damage to people around there.
8 Once a roundabout or a traffic junction is used by military
9 forces to cross about that, of course, then it becomes another status
10 because I can understand or I can imagine that that might be the next
11 question. But seeing the circumstances, that roundabout, I would not
12 choose that roundabout when troops are crossing there to use artillery to
13 try to achieve destruction of troops that are moving around that -- using
14 that roundabout because of the possibility that you inflict damage,
15 severe damage to people that are living around that area.
16 JUDGE ORIE: Mr. Russo, where exactly is the roundabout we are
17 talking about? Could we zoom out a tiny little bit so that we know
18 exactly. Where's -- I expect a circle in a roundabout.
19 MR. RUSSO: I understand, Your Honour. It's this area that I'm
20 moving the cursor over. I don't know is the Court wants me to again give
21 some reference.
22 JUDGE ORIE: The only thing, I hardly see any roads there. But I
23 now see what you mean.
24 MR. RUSSO: So if the Court will follow me. This is the main
25 road here, coming across the main railway bridge, crosses the roundabout
1 and proceeds in this direction, and then another road follows this way.
2 JUDGE ORIE: Yes, it is clear to me.
3 MR. RUSSO:
4 Q. Now, Colonel Konings, can you explain to the Chamber whether
5 there is any military advantage to be gained from firing artillery at a
6 roundabout when enemy forces are not actually present on that roundabout?
7 A. Well, it depends on what you want it achieve in using artillery
8 against a roundabout. If you wanted to take that roundabout completely
9 out so that no military vehicle can use it anymore, that could be the
10 effect that you want to achieve. Then it totally depends on how the
11 surface of the roundabout is built and what type of ammunition you will
12 use. Normal tarmac or concrete on a road will be damaged by an exploding
13 120- or 155-shell but not in a way that is unusable anymore. Doing,
14 destroying a cross-road or a roundabout by means of artillery, you need a
15 lot of rounds for that to make it absolutely un-surfacible [sic]. Seeing
16 the fact that most military vehicles have four-wheel traction or are
17 tractor vehicles they will possibly be able to pass around.
18 Secondly, in this area, they will find another road to -- to get
19 across the city, so they will detour and will found another road.
20 So destroying or neutralising a roundabout or a junction with
21 artillery well, it belongings to the possibilities but you need a lot of
22 rounds for that. It depends on how the structure of the surface is, and
23 I would be against it because you will need lots of ammunition in this
24 civilian-populated area.
25 Q. Thank you. Let's move now to the Tvik factory, and this you
1 address at subsection c 20.
2 Now, you indicate with respect to the Tvik factory:
3 "Targeting this area with artillery is highly unadvisable and can
4 cause substantial collateral non-proportional damage to the civilian
5 population. Although the production of ammunition could be a reason to
6 do so. However, the information in Annex A seems to describe that hardly
7 any activities were noticed before the attack."
8 First, can you explain to the Chamber why the production of
9 ammunition would be a reason to attack the Tvik with artillery?
10 A. Well, an ammunition factory is clearly an important military
11 target depending on what is produced and if it has production on that
12 moment, but a military ammunition factory is a military target.
13 That's -- there is no question about that.
14 Q. And if the ammunition -- if this facility was in fact producing
15 ammunition, if that ammunition was not being actively moved out of the
16 facility and sent to enemy troops on the front lines on the 4th of
17 August, can you explain to the Chamber what the military value would be
18 of attacking that facility with artillery?
19 MR. KEHOE: Excuse me, Your Honour. I would ask for foundation
20 for that question.
21 MR. RUSSO: I'm putting a hypothetical to the witness which
22 doesn't require foundation.
23 JUDGE ORIE: No, there is a lot of hypothesis in the testimony of
24 this witness.
25 MR. RUSSO: On top of that the fact, Your Honour, that there has
1 been no evidence that ammunition was being produced. In fact, there has
2 been evidence that nothing was being produced.
3 MR. KEHOE: Mr. President, to the contrary. There is evidence
4 that shortly before this attack -- as a matter of fact in July of 1995,
5 there was a video played - and we will pick it up - of the General for
6 the ARSK walking through, talking about the Tvik factory making military
7 supplies for the army.
8 JUDGE ORIE: I think as a matter of fact -- let's not repeat all
9 the evidence we have on the Tvik factory being active, not being active,
10 what producing exactly.
11 And, Mr. Russo, of course, a question that came to my mind and
12 which here again comes to my mind is if there was no transportation of
13 any ammunition produced - let's just assume that, that ammunition was
14 produced there - would that -- perhaps we should ask the witness.
15 Would you have to wait until you see any movement of the
16 production before you would make up your mind as to what to do, or would
17 you say, Well, if I know that there is production of ammunition I'd
18 rather not wait until they drive out with their lorries and bring it to
19 the front lines.
20 THE WITNESS: That is of course a consideration that you make,
21 yes. When you talk about every target and especially about an ammunition
22 target in this case, you try to consider all the factors that give you
23 the decision either to attack it now or attack it later on.
24 JUDGE ORIE: Yes. Including that even if there is no
25 transportation at this moment of the --
1 THE WITNESS: Including --
2 JUDGE ORIE: -- production, it might be there tomorrow.
3 THE WITNESS: Including you can take it out as a -- in a factor,
4 a head of an operation to make sure that that factory will not produce
5 any projectiles or ammunition anymore.
6 But that depends also, I think, on the fact that what is exact
7 produced there, what are the amounts, what is its destination; and in
8 this case, what is the likelihood of causing such a damage because when
9 you fire at an ammunition factory it might well blow up and then you have
10 a huge fire explosion, projectiles flying around which can cause a lot of
11 damage to the environment.
12 And considering all those factors together, and given the fact to
13 me by the OTP that there was no production and no transportation visible
14 and seeing the proportions of the whole operation, I said, Well, then
15 since it is in the civilian environment, it is an unadvisable to attack
16 that area with artillery because you might have secondary explosion. You
17 might cause a lot of extra damage.
18 JUDGE ORIE: Please proceed, Mr. Russo.
19 MR. RUSSO: Thank you.
20 Q. Moving now to the main railway station and also the main railway
21 yards, and these you address at subsection 2 c 23, can you explain to the
22 Chamber why you say that these should not have been attacked with
24 A. Well, we keep focussing, of course, on artillery. But I come
25 back to my fact that this type of displacement railroads is in itself a
1 civilian installations. It is -- that's the first things. So if you
2 destroy this and destruction of such an emplacement needs a lot of
3 ammunition from one time or the other, if you destroy it, it is not
4 serviceable anymore for nobody, not for yourself and not for anybody
5 after the operation. So that is a fact that have you to consider once
6 you decide to attack such an emplacement, yes, and no.
7 Besides that, when you start using artillery against such an
8 emplacement you will need a lots of ammunition to take that emplacement
9 out of action unless you focus on certain choke points where tracks are
10 coming together, where you can more easy take that out. But then are you
11 talking about firing at a point target which artillery is not the most --
12 easy thing to use.
13 I'm not saying that it is impossible to attack these emplacements
14 with artillery, but I do think that it is very hard to bring any level of
15 destruction that you might need and take out civilian installations that
16 might be used by either yourself or by others later on.
17 Q. Thank you. Let's now move to the ARSK mortar section. And this
18 you address at subsection c 5, and that was indicated to you as having
19 been located at the school which we see here.
20 Now, you state that targeting this mortar platoon with artillery
21 is a possibility but would not be a high priority, and suppression would
22 be the best effect to be achieved.
23 First, can you explain why you say that attacking this mortar
24 platoon with artillery would not be a high priority?
25 A. Well, a mortar platoon in itself is a very small target and
1 mortars operate a few metres from each other. So it is -- can be
2 considered to my opinion to be a point target, and point targets in
3 itself are not the ideal suited to be combated with artillery. It is
4 like shooting on a fly with a rifle.
5 Secondly, mortars when they are fired upon, they are light. They
6 are -- they can be very easy pack up and move to another place, so if you
7 do not take them out of action with the first rounds, they will displace
8 and go somewhere else and do their work again.
9 Thirdly, one mortar platoon or one mortar section in the whole
10 context of the operation well, being a commander of a brigade or a task
11 force, I would not really worry about that one mortar section and not use
12 my artillery to try to take them out off action because my artillery are
13 valuable assets. I need them for other things, for the whole of the
14 operation. So I cannot see the real value of one mortar section in this
15 moment I have over a whole operation. I could imagine if on that
16 location was a full-sized artillery battalion located that would be
17 another thing but not a section of mortars of 81-millimetre.
18 Q. Thank you. Now moving to the southern army barracks, and this
19 you discuss at section c 4 of your addendum. And that's actually located
20 on this -- in this area.
21 Now, you identify this as one of the few acceptable military
22 targets, and I'll ask you to explain to the Chamber why.
23 A. Well, through information given to me and the picture it seems to
24 be in a forested area without the direct presence of civilians, so that's
25 one of the few areas that you could target with artillery. Having not
1 seen the infrastructure itself, how the buildings are taken, how they are
2 built: Is it brick? Is it concrete? And when that's the case, I come
3 back to what I said. If you want to destroy troops inside barracks,
4 inside buildings, artillery not most appropriate means.
5 But all the other factors here make it a more appropriate
6 artillery target than all the others that we discussed before.
7 Q. And given the information that you were provided regarding what
8 this facility was being used for, can you give the Chamber your opinion
9 about what the value would be of attacking this particular facility with
11 A. Well, the information given to me is that it was a storage
12 facility for small-arms, medication, and clothing with only five soldiers
13 manning this facility during the attack which brings me to the fact that
14 well, again this is a target that would not bring anything extra to any
15 form of defence of the city of Knin; and being a commander of an
16 attacking force, I would not really worry about the possibilities that
17 those five soldier would have on the effect of my own operation. And for
18 that reason I would not use my artillery, my scarce and very valuable
19 artillery in trying to take out some of the -- the points of that -- of
20 that barracks.
21 Q. Now, considering, Colonel Konings, I'll ask you to consider that
22 the remainder of the facility was in fact being used by UN forces on the
23 day of the attack and ask you whether and how that would factor into your
24 calculation about whether or not it was appropriate to fire artillery at
25 that storage facility.
1 A. Well, that's a very hard question for me to answer because I'm
2 not quite sure the way UN forces were looked upon as officially they were
3 peacekeeping forces, but unfortunately my own experience is that we were
4 never looked upon as that.
5 So I don't think I can give a proper answer on that, putting
6 myself in a position. The presence of the UN forces should have been
7 enough not -- should have been enough not to use artillery on that
8 facility because the UN forces were not involved in the conflict and had
9 be looked upon as an independent, impartial force which should not be
10 attacked by or being subject of any artillery attack at all. And using
11 artillery in that area with close proximity of UN forces would have given
12 that risk. But I do think that is a very tricky issue and -- well, let's
13 leave it at that.
14 Q. Thank you. Let's move now to the police station which you
15 address at section c 17.
16 Now, can you explain to the Chamber why you say that this is a
17 target of no military value?
18 A. Well, the information given to me was that there were ten police
19 officers. It might have been that they were militarised, so they were
20 part of the military forces being -- occupying Knin, but I can still see
21 no value, no added value of ten police officers with no addition weapon
22 systems in being able to defend in any way or the other the city of Knin
23 in a proper way. So again I would not bother about those ten soldiers.
24 Again seeing the risk that using artillery against such a facility will
25 cause all the other troubles that we already discussed several times
2 So it is hardly any military target. It is -- well, no value for
3 the whole operation whatsoever.
4 Q. Thank you. Now, given -- let me get back to it.
5 Given the location of the police station which is at the red dot
6 here on your screen, given its proximity to the surrounding areas which
7 are civilian-populated areas can you explain to the Court your assessment
8 of the risk of firing artillery at this building what the risk would be
9 to the surrounding civilian population what is the likelihood is that
10 they would be struck by artillery projectiles.
11 A. Well, I can, of course, not predict the exact likelihood. But as
12 we discussed before the likelihood if -- is there that you will -- that
13 you will inflict damage on civilian personnel in that area. And that
14 depends totally on the effect that you want to achieve in either
15 destroying the whole police station or neutralising because that dictates
16 the number of rounds that you start using. Destroying will mean lots of
17 rounds with a high chance that several of them will fall not on the
18 building but on the populated area and neutralising or another effect
19 will cause -- then you will use less rounds, so the effect in the area
20 around it will be less.
21 So I cannot -- cannot be more precise as that.
22 Q. Thank you. Let's move now to the RSK president's office and the
23 radio TV and Radio Knin building, and this you address at section c 15 of
24 your addendum.
25 That's the facility in the picture with the tower on top of it.
1 Now you identify this as a high-value target, and I'd like to you
2 explain to the Trial Chamber why it is that you nevertheless state that
3 it should not have been attacked with artillery on the 4th of August.
4 A. Well, in itself in the description begin to me, it described is
5 the office of the president and his staff. And I can fully imagine that
6 is designated to be a very high-value target because the loss or the
7 taking out of a -- of a president of a nation, a country, may cause --
8 may bring the effect that -- that -- that a state will collapse or will
9 stop doing things.
10 But again here we have the crucial thing that is a combination of
11 a high-value target in combination with the use of civilian facilities,
12 radio and TV Knin although that can be used for propaganda or that kind
13 of stuff as well. But the point is that the information was given that
14 the president was not present during the attack.
15 So then one main important reason to attack this building, and
16 I'm not saying attack with artillery, one main important reason to attack
17 this building in order to try to take out the president is taken away
18 with the absence of the president. Taking out this building, and in the
19 case the president would be dead, taking out the president with artillery
20 is coming back to the arguments that I used. It is a strong building.
21 The president will not be on the top floor. He will be in a protected
22 area. There is a highly likelihood of hitting of at least damaging
23 civilian properties or civilians; so artillery is not the means to be
24 used here again. Taking out the presidency like that and trying to avoid
25 damage to -- collateral damage needs guided missiles, needs guided
1 artillery projectiles; and guided missiles - I'm not aware whether they
2 were available - guided artillery projectiles were - as far as I know -
3 in 1995 not available, not in any army in the world.
4 So the choice using artillery against this building is not a good
5 one, I think, because you cannot achieve the effect that you want to
6 achieve and have to look for other means if you want to take a president
7 of a country out. If you wanted to do that, but that is a political
8 decision of the parties or the states that are in conflict with each
9 other. I'm not the one who should judge about that.
10 Q. Thank you. Now, turning to the residential apartment building
11 where the RSK is alleged to have lived and this you address at section c
12 11. Let me find the area of that.
13 Now, the area being one, I believe, is one of these two apartment
14 complexes. I'm sure counsel will correct me if I'm wrong, but I believe
15 it is this particular one on the end.
16 But in any case, you -- can you explain to the Chamber why you
17 say that this apartment building, even if it contains the president of
18 the RSK, is not acceptable as a target for artillery?
19 A. Well, it's the same thing I keep repeating over and over is the
20 fact that it is a combination of factors together. Again it is a strong
21 building. You do not know if the president is present in which location
22 he is; and if is he there, he will probably be not again on the top
23 floor. He will be somewhere else. And seeing that area, seeing that it
24 is a residential apartment you will have the likelihood of -- the high
25 likelihood of inflicting injuries, killings, damage to civilians, and
1 civilian property. But the uncertainty that you are even able to do
2 something about the presence of the president in that area, it is not
3 artillery that you get a certainly that you take a president or one
4 person out in such a building with artillery. You might be able to do it
5 with other means if you accept the risk that you kill civilian people,
6 but artillery even thus giving you a chance in achieving the effect that
7 you want to use. Again for that you need guided weapon systems that
8 cause much less collateral damage, that are much more precise, that can
9 fly through a window or the latest development of precision guided
10 artillery munitions. But as I stated, before they were not available as
11 far as my knowledge is in that time-frame.
12 Q. Thank you.
13 MR. RUSSO: Your Honour, at this I would move to admit this
14 particular Knin photo presentation. That's 65 ter 4776.
15 MR. KEHOE: No objection, Your Honour.
16 JUDGE ORIE: Mr. Registrar.
17 THE REGISTRAR: Your Honours, this becomes Exhibit P1265.
18 JUDGE ORIE: And is admitted in evidence.
19 MR. RUSSO: Thank you.
20 Q. I'd now like to focus on some of the answers that you gave to
21 specific questions put to you by the OTP in the addendum and these appear
22 in section 3 -- section 3 a i appears on page 4 of your addendum on the
23 English version, page 7 of the B/C/S, and the addendum is P1260, MFI.
24 Now in section 3 a i, you address the question of whether a
25 reasonable commander would have engaged in the artillery attack on Knin
1 given the information that you were provided about it and you stated:
2 "The use of artillery seems to be disproportionate especially
3 during the first 90 minutes of the attack. One would expect attacking
4 troops to enter immediate behind this intensive shelling, but the actual
5 seize of the city took place more than 24 hours later."
6 And I'd like you to please explain to the Chamber why you say you
7 would expect the HV troops to have entered Knin immediately behind the
8 initial shelling?
9 A. Well, that's what we call in a military operation preparation
10 fires which are connected to the whole scheme of manoeuvre that you do in
11 an operation. So the purpose of that is you are using artillery and
12 close air support in direct fire weapons that you have is that you try to
13 weaken certain spots in a defence area where you make your own troops
14 able to get through to achieve their goals in the operation.
15 That means that preparation fires need to have a combination,
16 need to have a connection, with what is happening with the rest of the
17 troops of an operation, so as a brigade force, you attack a defence
18 force, a defence area, you do your preparation fire and connect to that,
19 you start manoeuvering and start following that preparation fire in order
20 to achieve your objectives. Because if the period between the
21 preparation fire and the attack is a prolonged one, it might be that the
22 enemy gets the opportunity to move back to its own positions and to
23 re-group and to recreate another defence.
24 So the fact that there is first a rather strong preparation fire
25 during 90 minutes and that nothing happens then that there is an
1 prolonged period of artillery fire with irregular intervals with single
2 shots with some volleys and that even after that the troops enter the
3 city gives me well, the -- the idea that I have written down my addendum.
4 JUDGE ORIE: Could I ask you one clarification there. You were
5 asked by Mr. Russo why you would expect the HV troops to enter the city
6 of Knin immediately after the initial shelling.
7 You started your answer by saying what is what we call
8 preparation fires. So your whole answer is that if the shelling was
9 preparation fire then you would expect the troops to follow.
10 THE WITNESS: Yes.
11 JUDGE ORIE: Now what if it was not preparation fire? I mean I'm
12 seeking the basis for your answer because your answer is entirely based
13 on this to be preparation fire. If it was not, what then remains of your
15 THE WITNESS: Well, my point is that when you look to the
16 structure of what -- what happened in that period and due to the
17 information that was given to me, is that you find a rather structurised
18 first 90 minutes where artillery fire is heavy, a lot shots are used; and
19 that brings me to the conclusion that that could have a preparation fire
20 in order to weaken the defences, the defences, if any, of a city.
21 And when you do that, you expect that enemy attacking troops
22 follow that preparation fire afterwards because otherwise if you don't do
23 that, if you only use artillery then the enemy -- you give the enemy a
24 chance to re-group and to reconstruct the damages that have been done.
25 And then I don't see a reason why you keep up a prolonged
1 artillery attack without any manoeuvre action so far on a city where, due
2 to the information, hardly any troops were available to make any defence.
3 It makes it all strange to me what happened there.
4 JUDGE ORIE: Please proceed.
5 MR. RUSSO: Thank you.
6 Q. Colonel Konings, staying with that same answer in section 3 A i,
7 you also state:
8 "With the exception of the shelling of two or three military
9 targets, the use of artillery against the city of Knin is of no direct
10 military essence of limited effectiveness and could have been avoided by
11 entering the city with combat troops from various directions having the
12 information that there would be practically no defence."
13 Now can you clarify for the Chamber what you mean or what you
14 consider to be a lack of defence in the town?
15 A. Well, the information given to me showed no evidence of any
16 prepared position of roadblocks, of defence lines around or in the city,
17 so I purely base my assumption on what was given by the OTP.
18 Also the fact that the numbers and qualifications of the soldiers
19 present in the city as I said before the information states about less
20 than 500 soldiers, no combat soldiers, only small groups of logistical
21 soldiers, administrative personnel, some staff personnel. Given that,
22 they are not able to form a defence, a real defence against an attacking
23 force of a certain size. Those military -- those -- those limited value
24 of all the military targets in the city, the fact that artillery is very
25 ineffective against most of targets because they are in strong buildings
1 or a populated area brought me to the conclusion - as I was asked to do
2 by the OTP - that you could have entered the city from various direction
3 with a strong force like the Croatian forces had available, again,
4 presented to me by the OTP.
5 Q. And would your opinion about that, Colonel Konings, change if
6 sometime during the 4th of August the evening of the 4th, that is the
7 first day of the shelling ARSK units which were on the front line were
8 re-deployed into the areas around Knin in order to defend the town?
9 A. Well, of course, an operation can change on any moment in time
10 and military commanders have to take that into account. So the whole
11 situation could change indeed that reserve forces were moved in to take
12 positions around Knin to defend the city against the attacking force.
13 I haven't seen any information on that from -- from the OTP, but
14 if that happens, then as a commander of an attacking force you have to
15 take your measures and you have to re-evaluate, re-analyse your plan
16 that. Is it quite sure. That's quite obvious.
17 Q. And if there were units re-deployed to the areas outside of Knin,
18 would you then consider it appropriate to shell the targets that we've
19 identified inside of the town?
20 A. Well, I keep repeating that I don't see any -- any added value of
21 those military targets that were described in the city by the OTP, and
22 not in the first case, not in the -- in the situation that you described
23 to me now. I would rather see then that the positions of the troops that
24 were taking positions in the area around Knin would be attacked by
25 artillery because that is an appropriate thing to do if you have a change
1 of defence position of defence lines then that is the first priority that
2 you start attacking with artillery either to prevent that even defence
3 positions are taken, or once they are taken that you try to destroy them,
4 or at least neutralise them in order that you can keep up your own
6 Q. Regarding your statement that --
7 JUDGE ORIE: Mr. Russo.
8 MR. RUSSO: I'm sorry.
9 Q. Regarding your statement that combat troops should have been used
10 to take Knin, did you consider the difficulty of close fighting even
11 against a small number of enemy troops in an urban area?
12 A. Yes, I consider that because operating in urban environment is
13 one of the difficult things to do. Due to the presence of civilians, due
14 to close environments, due to the very difficult circumstances, the other
15 effect that weapon systems have inside cities like I described
16 [indiscernible] all other weapon systems have to be used in another way.
17 You have no long sides, you have short sides, you have very chaotic
18 situations even for trained military; so I fully realise that entering a
19 city is a very tricky thing to do.
20 I'm not saying that you should avoid that and there are cases
21 that have you to do that in order to control that city. But given the
22 fact here and again I base my assumptions on what the OTP presented to me
23 that there were only those very small numbers of RSK troops inside the
24 city, I have no information of strong defence forces, roadblocks, or
25 whatever you can use as defence, and know you can use every house as
1 defence - I'm quite aware of that - and of course those 400 soldiers
2 could have tried to defend the city on certain spots. But if you compare
3 that strength, their strength and if it's not an organised strength
4 against the strength of a mechanized larger unit ever nearly 2.000 people
5 with main battle tanks infantry available then I do think that the
6 possibility is there to enter the city from various sides. And I know
7 that the attacking force had to take the risk in casualties on their own
8 side. But in doing so, you could have avoided a lot of destruction or a
9 lot of the use of artillery fire at -- in preparation of that operation.
10 And that's an assumption that a commander has to make between maximum
11 force protection of his own force and taking casualties in order to end a
12 battle as soon as possible because the military trade is not the most
13 easy one in the world, and taking casualties on your own side belongs to
14 that. And that is an assumption, a decision that every commander has to
15 take on every moment of an operation.
16 Q. Thank you. Now, in section 3 a i you further stated:
17 "The 4th Guards Brigade that had received the order to take
18 control of the city counted around 1900 personnel and can be clarified as
19 a larger combat unit capable of taking control of the city by means of a
20 fast, well coordinated and controlled action. Doing so, collateral
21 damage to civilians and their property could have been minimised as much
22 as possible."
23 You also mentioned in your previous answer that possibly 500
24 troops in the town of Knin defending against an attacks force of
25 approximately 2.000. I'd like you to explain to the Court where you got
1 the information that the 4th Guards Brigade numbered around 1900
3 A. That was in the information that I was given by OTP.
4 MR. RUSSO: And if we could, Mr. Registrar, please have
5 65 ter 4684, please.
6 Q. For your information, this appears at tab 11 of your binder. If
7 we could focus on the lines 1 through 4 in the column on the immediate
8 left-hand side, focus on the rows 1 through 4. Colonel Konings, do you
9 recognise this as the document which you were provided by the OTP?
10 A. Yes, I recognise it.
11 Q. And is this why you got the information that approximately 1900
12 troops made up the 4th Guards Brigade?
13 A. Yes.
14 MR. RUSSO: Your Honour, at this time I would move for the
15 admission of 65 ter 4684.
16 MR. KEHOE: No objection, Your Honour.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: As Exhibit P1266, Your Honours.
19 JUDGE ORIE: P1266 is admitted into evidence.
20 Mr. Russo, I'm looking at the clock could you find a suitable
22 MR. RUSSO: I believe this is one, Your Honour.
23 JUDGE ORIE: Yes.
24 Then we will have a break, and we will resume at ten minutes to
1 --- Recess taken at 5.31 p.m.
2 --- On resuming at 5.54 p.m.
3 JUDGE ORIE: Mr. Russo, please proceed.
4 MR. RUSSO: Thank you, Mr. President. And, Your Honour, before I
5 move on to the next topic, I wanted to make clear to the Chamber because
6 I understand there may be some problems locating the particular areas
7 that we looked at on the last video presentation. But if the Court
8 refers to Exhibit P1261 MFI
9 provided to lieutenant-Colonel Konings, including in the annexes to those
10 terms of reference is a map of Knin with each one of the locations
11 identified by number which corresponds to the information in the annex
12 hypothetical to the name of that location and the information provided
13 regarding that particular location.
14 JUDGE ORIE: And P1261 MFI
15 MR. RUSSO: Those were the terms of reference which the OTP
16 provided the hypothetical facts, the maps, and a few artillery orders.
17 JUDGE ORIE: Oh, yes. That's the -- yes.
18 MR. RUSSO:
19 Q. Now, Colonel Konings, I would now like to review some of the HV
20 artillery documents which you specifically addressed in your addendum.
21 MR. RUSSO: If we could please have, Mr. Registrar, 65 ter 4511.
22 Q. Colonel Konings, you'll recall that this document was a regular
23 report of the TS-4 artillery group, commanded by Captain Bruno Milin.
24 This is a report dated 4th of August at 1300 hours. And for the
25 Chamber's reference, this is addressed in the addendum at section 6 a,
1 which appears in the English on page 6 and B/C/S on page 10.
2 If we could please move to the second page of this order. And
3 focussing on the entry for 0630 hours where it indicates that five
4 projectiles from a 130-millimetre gun were fired at the hospital in Knin.
5 And, Colonel Konings, I'd like you to please tell the
6 Trial Chamber whether you believe this to reflect a lawfully use of
7 artillery against this hospital?
8 A. Well, I honestly think I'm convinced you should not use any
9 weapon systems at all against a hospital.
10 Q. Can you explain to the Chamber why.
11 A. I do think that that a hospital is a protected civilian
12 installation and should be free of any war combat activities, no matter
13 how you call it, so it should not be used -- no weapon system should be
14 used against a hospital.
15 Q. And supposing, Colonel Konings, for the sake of argument, that
16 there was an enemy tank or an enemy troop position located in the area
17 near the hospital, would that change your opinion?
18 A. No, it would not change my opinion.
19 Q. And can you explain why it wouldn't change your opinion.
20 A. Well, first of all, the destination of that facility is not
21 changed. It is still a protected -- protected civilian installations
22 where wounded people should get comfort and should be treated. The mere
23 fact that an enemy or an opponent places a weapon system and it doesn't
24 matter whether it is a tank or a mortar system in such a proximity of
25 the -- of a hospital, is - to my opinion - also a very illegal act to do
1 that because doing so you deliberately place weapon systems in the
2 vicinity of a protected installation and you can count on the fact or you
3 may recognise the fact that the opposing party will try to take those
4 weapon systems out.
5 As the other party, you may -- have you to realise that when you
6 start using weapon systems against enemy tanks or other system close to a
7 hospital that you are going down a road that you might not want to go
8 because you -- you will have the possibility to inflict damage to this
9 protected facility, so you should not make the same mistake or the same
10 error as your opposing party has made by involving combat systems or
11 weapon systems with a protected civilian area.
12 So you have to find other solutions to take out the tank is that
13 in the vicinity of a hospital, and the fact is also there that -- I know
14 that is a hypothetical question but one tank is not a direct threat for
15 your own operation.
16 Q. Now if indeed this artillery group had fired at something at or
17 near the hospital, is that something that you would expect to be
18 reflected in an artillery report?
19 A. Well, I would from every fire, from every fire for a fact that an
20 artillery unit does, I do think that -- that commanders need to know what
21 the effect is, so what has been achieved by using an artillery effect for
22 a fire against a certain area. And that doesn't matter to which target
23 you refer. For the purpose of achieving the objectives of an operation,
24 you need to know what effects you have achieved by using artillery
25 because that's essential. If you do not achieve the effect that you want
1 to achieve you might be willing to repeat that effect for fire, or you
2 might be willing to choose another weapon system in order to reach the
3 effect that you want to achieve.
4 So having a report, what effect you have achieved in using
5 artillery against a specific target is essential for a commander to know
6 how his operation is -- whether his operation is successful, yes or no.
7 Q. And does the lack of any information in this report regarding the
8 effects any of these projectiles indicate to you about what the aim of
9 this firing was?
10 A. Well, no, this report not only specific talking about the
11 hospital, this report is a summary of timings and number of projectiles
12 and types of artillery pieces used against a certain area or against a
13 target. It doesn't tell me as an artillery man or as a commanding
14 officer not anything. So I can see no added value to this document.
15 Q. Let's move to the entry for 0800 hours where it indicated that
16 six projectiles from a 130-millimetre gun were fired at a residential
17 area in Knin. And I'd ask you to please provide the Trial Chamber with
18 your opinion as to whether or not you consider that to a be a lawful use
19 of artillery.
20 A. As I said before, it doesn't tell me anything. It just states
21 the fact that there were six rounds fired at a residential area in Knin.
22 There is no effect, there is no result, there is no purpose; so I don't
23 have any information about that. The only fact is that a residential
24 area gives you the information that it might be an area where still
25 civilian people are living, are working, are doing their things, or
1 trying to get away; so the chance is there -- that there is collateral
2 damage done. But this specific document doesn't give me any information
3 on that whatsoever.
4 In the same place, it could have been that some enemy vehicles
5 were in the vicinity of this residential area which triggered the firing
6 of the six projectiles. But I do not have that information.
7 Q. And taking that example, if there were some enemy troops inside
8 of a residential area would you then consider it appropriate to fire
9 artillery into that residential area?
10 A. Well, you specifically state inside the residential area that
11 makes it even more impossible to use artillery against it. Deciding on
12 where they were in the residential area, what the construction of the
13 residential area is that are all factors that you need to take into
14 account before you even decide to use artillery or any other weapon
16 So it is very difficult to -- to speculate on that kind of
17 information that is now given to me.
18 Q. Let's move to the entry for 1220 hours. And this is on the third
19 page in the English and second page in the B/C/S.
20 And the entry for 1220 indicates that eight projectiles from a
21 130-millimetre gun were fired "at Knin."
22 And I'd like you to comment for the Chamber on whether you think
23 it is lawful to simply fire artillery at a town in general.
24 MR. KEHOE: I would have -- this is obviously a document that the
25 witness said is counting the amount of projectiles without a targeting
1 system, and I think that that's what the witness said. Counting exactly
2 what they're doing without some -- counsel has some additional
3 information, without that I object.
4 JUDGE ORIE: If the witness would give a similar comment as to
5 the last question he would have raised the issue where he said
6 residentiary doesn't tell me anything at all.
7 Yes, Mr. --
8 MR. MISETIC: There's a more important issue here, Your Honour,
9 which is that there is a translation error. That is not what it says in
10 the original at 1220.
11 JUDGE ORIE: Let me have a look.
12 We have two entries for --
13 MR. MISETIC: I believe it's the entry above the one that says
14 the ten projectiles at 1240, which is where we are in the English at the
16 JUDGE ORIE: Yes, we have in the original, I see two entries for
18 MR. MISETIC: Yes, it's the second entry.
19 JUDGE ORIE: It's the second entry that we are talking about
20 eight projectiles.
21 MR. MISETIC: And then I can read what it really says.
22 JUDGE ORIE: If you read it in the original language then we'll
23 hear the conversation.
24 MR. MISETIC: Yes.
25 [Interpretation] "At 1220 from T-130, with eight projectiles upon
1 the bridge in Knin."
2 JUDGE ORIE: Mr. Russo, let me just check one second.
3 Yes. It looks as if there's a translation issue, Mr. Russo. So
4 would you please rephrase your question, rephrase any reference to this
5 entry to bridge in Knin.
6 MR. RUSSO: Actually, Your Honour, I'll simply ask a different
7 question with respect to the other 1220 entry which appears.
8 JUDGE ORIE: Yes, the four projectile which appears on the
9 previous page.
10 MR. RUSSO: Yes.
11 JUDGE ORIE: Could we have the previous page.
12 MR. RUSSO: No I'm sorry, Your Honour, it is the entry directly
13 above the one Mr. Misetic just read. Yes, in the English translation.
14 JUDGE ORIE: In English it would be the previous page, isn't it.
15 MR. RUSSO: Correct.
16 JUDGE ORIE: Could we have a look at the previous page in
19 MR. RUSSO:
20 Q. And there, Colonel Konings, you will see that at 1220 hours four
21 projectiles were fired from a T-130 at Kistanje. And, again, I'll simply
22 ask you to comment for the Court or for the Chamber as to whether or not
23 you believe it to be a lawful use of artillery to fire artillery at a
24 town in general.
25 A. Well, taking a -- a town as a general target for artillery
1 without specification of what you want to achieve there and which targets
2 you exactly want to hit, I do think that is not the way of using
3 artillery. Whether that is unlawful or lawful, I do not think I am -- I
4 have the capacity to judge that. I do think that you have the risk that
5 you target -- the high risk that you target civilian property, civilian
6 personnel; and I can recall that that is against the humanitarian law in
7 aiming artillery weapon systems or any weapon systems at unprotected or
8 even at civilian personnel.
9 But I have to say that only the statement that four projectiles
10 were fired at Kistanje doesn't say to me anything as I said before. I do
11 not know the intention. I can imagine that it is it connected with
12 the -- with the statement in the operational order shelling of cities.
13 But that information is it not here, so everything I say further is
15 Q. That was actually my next question, Colonel Konings, as to
16 whether you can tell the Chamber that the entries that you see in these
17 reports are consistent with your interpretation of General Gotovina's
18 order to put downs under artillery fire?
19 MR. KEHOE: Judge.
20 JUDGE ORIE: Mr. Kehoe.
21 MR. KEHOE: If I may --
22 JUDGE ORIE: There was no general order to put -- we have seen a
23 line, and, Mr. Russo, I would insist on -- you see that in the last
24 answer of the witness where he is apparently struggling with what it
25 means, he sees on paper because he says, Whether it is lawful or unlawful
1 I do not know. And just two seconds later, he says, Firing is against
2 humanitarian law under those circumstances.
3 So there are two issues, first, what do these entries here
4 exactly tell us from a factual point of view; and if we are able to
5 establish that, then, of course, the next question, whether or not for
6 witness to answer is whether that would be prohibited under international
7 humanitarian law, yes or no.
8 So I haven't seen any order by General Gotovina on paper to shell
9 cities, but I think we have seen three towns mentioned in an order, and
10 we have paid some attention to that.
11 Would you please be very precise in quoting and referring to
12 other texts.
13 MR. RUSSO: Your Honour, if I could first move this document,
14 65 ter 4511, into evidence.
15 MR. KEHOE: No objection, Your Honour.
16 JUDGE ORIE: Mr. Registrar.
17 THE REGISTRAR: As Exhibit P1267, Your Honours.
18 JUDGE ORIE: Which is admitted into evidence.
19 MR. RUSSO: Thank you. And if we could now please have 65
20 ter 4512.
21 Q. Now, this is a report by the same artillery group,
22 Colonel Konings, and you'll see this is the report which is dated later
23 in time 2000 hours on 4th of August. You'll see an entry -- if we can
24 look on the first page the entry for 1330 hours. And if we could also
25 find there in the B/C/S. And you will see there that it indicates eight
1 projectiles from a T-130 fired at Knin. And I think opposing counsel
2 will agree with me that this is an accurate translation of what appears
3 in the B/C/S.
4 And with respect to that, I'll ask you the same question, whether
5 or not you consider this firing at Knin to be a lawful use of artillery,
6 as you understand international humanitarian law?
7 MR. KEHOE: If I may.
8 JUDGE ORIE: Mr. Kehoe, I think I asked Mr. Russo to make a clear
9 distinction between two facts.
10 Perhaps we first would ask do you have any information as to how
11 to understand this entry here that eight projectiles from a T-130
12 millimetre were fired at Knin.
13 THE WITNESS: As I told you before, Your Honour, it is this type
14 of information, doesn't give me any information at all. So it just said
15 there were eight projectiles fired at Knin without telling me where and
16 what has happened. So if they were fired specified against a residential
17 area then it gives me more information, or if it was specified that they
18 were fired against the HQ of the president, it gives me a specification.
19 I cannot say anything on this.
20 JUDGE ORIE: If there would be no further specifications as what
21 we find here, would you be able to form an opinion about the use of
22 artillery in such a way? But this is hypothetical.
23 THE WITNESS: Eight projectiles is referring to a rather small
24 target because with eight projectiles especially in an urban environment
25 as I tried to explain before, you cannot reach a large effect. You can
1 reach neutralisation or some interdiction. That is it something that I
2 can try to derive from what I read here. I dont' have any clue - Knin is
3 a large city - so I don't have any clue where these rounds were falling
4 or what the effect was that the appropriate command tried to achieve. It
5 might have been any effect that you can take out of the box of the use of
6 artillery fire.
7 So I don't want to speculate about what -- against which targets
8 those eight projectiles may have been used.
9 JUDGE ORIE: And if just hypothetically if just an order would
10 have been given - how odd it may have been - fire eight projectiles at
12 THE WITNESS: Well, to my opinion, then you get in another area.
13 If you give that hypothetical order then you take willingly and
14 deliberately the risk that those rounds are falling in an area where only
15 civilians are living. So then I will call it, I will classify it as
16 harassing fire with only one effect, psychological effect on the civilian
18 The moment you start specifying where these eight rounds should
19 fall then you get there another direction because then you might specify
20 it to attack with military targets inside a city with all the risk that
21 you take and that we have discussed before. But that is a decision that
22 a commander in a force takes and in every force, it might be arranged
23 differently on which level commands are allowed to take these decisions.
24 I tried to explain that in NATO only the highest commander can take that
1 JUDGE ORIE: Yes, please proceed, Mr. Russo.
2 MR. KEHOE: If I may.
3 JUDGE ORIE: Yes, Mr. Kehoe.
4 MR. KEHOE: Just by way of one clarification, Judge, and I don't
5 know if I misheard what you said with regard to an order at page 80, line
6 2 and 3; but this is a report and not an order. So I wasn't sure if Your
7 Honour was referring when you used the word order to this document but
8 this --
9 JUDGE ORIE: No, I was referring to the hypothetical situation
10 that what we find in this document would be in a similar way be reflected
11 in an order which again is hypothetical entirely.
12 The document in itself doesn't say anything about who ordered,
13 whether it was done by mistake, whether it was -- it doesn't say anything
14 about this. So there is no misunderstanding about that.
15 Mr. Russo.
16 MR. RUSSO: Thank you.
17 Q. Now, Colonel Konings, you answered His Honour Judge Orie's
18 question about what an order to simply shell or fire projectiles into a
19 town and you said that you would classify that as harassing fire. Let me
20 ask you if you would consider harassing fire in a town to be lawful under
21 your understanding of international humanitarian law?
22 MR. KEHOE: If I just may say, Judge, with regard to opinions on
23 the law, I think the witness said that he is not lawyer and has no
24 opinion on what the law is.
25 JUDGE ORIE: Well, he has given a few opinions on the law, but he
1 is not a lawyer but what we can ask him whether during his training,
2 whether -- or during his professional experience, whether he ever was
3 formed an opinion about whether that was prohibited or allowed. That --
4 could we ask him, that's a factual question.
5 I have rephrased the question it's --
6 THE WITNESS: I understand your question completely, Your Honour.
7 During my education, my training, and my experience formulating
8 an order like you did before like firing eight rounds randomly into a
9 city without specifying anything to my opinion and to the opinion that we
10 have in our army, and our habits is it that we don't, that that's
11 prohibited because you should aim at military targets and not use
12 artillery in the way that we are now discussing because of the collateral
13 damage, et cetera, et cetera, that we discussed before. And I'm not
14 going into the area, whether that is not lawful against any humanitarian
15 law. In our country, in my army, we are teached not to use artillery in
16 this way.
17 JUDGE ORIE: Please proceed, Mr. Russo.
18 MR. RUSSO: Thank you.
19 Q. Colonel Konings, referring back to your original expert report,
20 we don't need to bring it up. We went through it earlier what you
21 referred to and quoted under section 16 a:
22 "The portion of General Gotovina's offensive operation order
23 directing the artillery to 'put the towns of Drvar, Knin, Benkovac
24 Obrovac and Gracac under artillery fire.'" I would like your opinion as
25 to whether or not what you read in this report that is on the screen and
1 in the previous report whether you believe those to be consistent with
2 your understanding of what has been ordered in the line to put the towns
3 of Knin --
4 JUDGE ORIE: Mr. Kehoe.
5 MR. KEHOE: I believe that is just speculation, Judge, what he
6 believes. We are asking for an expert opinion at this point and that is
7 complete speculation without some support.
8 JUDGE ORIE: Well, let me just re-read the question carefully.
9 Yes, I think that an opinion about consistency in relation to
10 this doesn't require the kind of expertise the witness brings; and,
11 second, there is a factual shortcoming that the one is part of an order
12 and the other is only a report on fire that was -- artillery that was
13 fired, projectiles that were fired.
14 Mr. Russo, let me just try to understand. If I say firing at
15 Knin or firing at three towns, whether that -- apart from whether it
16 happened whether that -- there is some consistency the consistency being
17 that there are no further specifics, then even without a thorough
18 military training, I could say that the lack of specifics gives a
20 Is that what you were seeking to ...
21 MR. RUSSO: A bit more specifically, Your Honour. The witness
22 has opined in his expert report that that particular language in his
23 opinion gives the green light to lower commanders to use as he says the
24 effect of harassment at a maximum.
25 JUDGE ORIE: Yes.
1 MR. RUSSO: He has answered Your Honours question with respect to
2 what do these reports seem to indicate to you and he says this seems to
3 be what I would call harassment fire. I'm simply asking him to link that
4 up to his understanding of the order.
5 JUDGE ORIE: Yes. One second.
6 [Trial Chamber confers]
7 JUDGE ORIE: Mr. Russo, this question and the possible answers in
8 the opinion of this Chamber will not assist it in making determinations
9 it will have to make.
10 Please proceed.
11 MR. RUSSO: Thank you, Your Honour. Staying with this particular
12 report if we can move to the entry for 1500 hours where it indicates that
13 18 projectiles were fired from a T-130 millimetre at the general area of
14 Knin -- actually, if we could move to the next page. Yes.
15 Q. My apologies, I meant to stay at the first page. I wanted your
16 opinion as to whether or not you consider the use of artillery against
17 the general area of a civilian-populated town to be lawful?
18 MR. KEHOE: If I may, Judge --
19 JUDGE ORIE: Does it say anything about a town, Mr. Russo? Does
20 it say -- we know that Knin is not only a town but ...
21 MR. RUSSO: But a civilian-populated area, Your Honour.
22 JUDGE ORIE: A municipality as well. Let's ask the witness
23 whether he -- in reading this, whether it gives him a clue also in view
24 of his knowledge. He apparently has been in Knin. How do you understand
25 this entry; that is, that is that:
1 "In irregular intervals, a total of 18 projectiles were fired
2 from a T-130 millimetre at the general area of Knin."
3 THE WITNESS: Well, to be as honest as I can be, and I have been
4 asked by the Court to be that, the word at irregular intervals is already
5 a step towards the fact that I call it harassing fire because when you
6 use artillery against military targets, you do it quite recognisable way
7 like you fire with various guns, various rounds against specific military
8 target. And a total of 18 projectiles against irregular intervals -- on
9 irregular intervals bring me to the feeling, to the idea - and, of
10 course, I do not have the hard proof of that in this case - that this is
11 a random use of artillery against the so-called general area of Knin
12 which can be everything. It's not confined. It can indeed be some
13 forest areas. It can be indeed the military area, but it can be
14 damn-well a civilian area because they are the most in Knin.
15 And by doing so, firing 18 projectiles in irregular intervals
16 against an area where we cannot deny that there are a lot of civilians in
17 there, you advocate here the use of artillery in a harassing way. There
18 is no proof of that. It is only a report. I know that, but it is
19 already ordered in the OP order that we discussed in the beginning that
20 the artillery had to put the town of Knin under artillery fire under
21 shelling also there without any specification without any effect, without
22 any objective to be reached by that artillery.
23 And I have to go back to my own experience being six months
24 inside the city of Sarajevo
25 no military purpose the only purpose of using artillery in this way was
1 harassing a civilian population with the objective to make them flee, to
2 get them out of the city, or to harass them or to create chaos or
3 whatever you want to achieve. I cannot help it. I have to say it in
4 this clear way because that is the connection that I find in using the
5 word irregular intervals, 18 projectiles in the general area of Knin and
6 then the connection with the OP order that we discussed before.
7 JUDGE ORIE: Please proceed, Mr. Russo.
8 MR. RUSSO: Thank you, Mr. President. I'd like to move for the
9 admission of 65 ter 4512.
10 MR. KEHOE: No objection.
11 JUDGE ORIE: Mr. Registrar.
12 THE REGISTRAR: Exhibit P1268, Your Honours.
13 JUDGE ORIE: P1268 is admitted into evidence.
14 Please proceed.
15 MR. RUSSO: Thank you, Mr. President. At this time there's a
16 document I'd like to move into evidence across the bar table. I don't
17 believe this is an necessity to show it to the witness. It is a similar
18 report of TS4 artillery group for the following day, 5th of August. And
19 that is 65 ter 4535.
20 JUDGE ORIE: Any objections from --
21 MR. KEHOE: I had no notice this was coming across the bar table,
22 but I will take a look at it, and I just reserve if we could MFI it at
23 this point.
24 MR. RUSSO: It was provided in the list of exhibits to be
25 admitted to the witness.
1 JUDGE ORIE: I think the Chamber gave some guidance as how to
2 deal with bar table exhibits.
3 MR. RUSSO: This was also part of the artillery bar table motion,
4 Your Honour. I should have mentioned that.
5 JUDGE ORIE: If that's the case then -- but is then is there any
6 need to tender it again?
7 MR. RUSSO: Yes, Your Honour.
8 JUDGE ORIE: If we -- yes.
9 MR. RUSSO: I believe the Court's guidance was that those
10 documents were denied admission without prejudice and the Court strongly
11 encouraged the Prosecution to bring them in, in the context of a witness,
12 and that's what I'm attempting to do with this document here.
13 JUDGE ORIE: Yes, you would say that you have established the
14 context on the basis of the reports of the previous days.
15 MR. RUSSO: Correct, Your Honour.
16 JUDGE ORIE: Mr. Kehoe.
17 MR. KEHOE: If I can take a look at it, Judge. I mean, I have no
18 knowledge this was coming across the bar table --
19 JUDGE ORIE: We'll have it MFI
20 MR. KEHOE: I don't have a theoretically have a -- I don't know.
21 JUDGE ORIE: We'll have it MFI
22 Mr. Registrar.
23 THE REGISTRAR: Your Honours, that becomes Exhibit P1269 MFI'd.
24 JUDGE ORIE: Yes, and it keeps that status for the time being.
25 Please proceed, Mr. Russo.
1 MR. RUSSO: Actually I had a second document which also comes
2 from the artillery bar table document motion to move in at this point,
3 this being the report of OG Sibenik which was the Operational Group to
4 which this particular artillery group belonged and is relevant to the
5 damage caused by combat activities if that needs to be MFI'd also that is
6 fine; or I can simply show it to the Court to establish what I believe
7 the relevance to be.
8 JUDGE ORIE: Let's -- if you could provide the Court with hard
9 copies one of these days because -- no, if it is MFI'd, we can find it on
10 our computers as well. But if it is MFI'd, we'll first hear whether
11 there is any objection.
12 MR. KEHOE: Just MFI
13 and not have an objection.
14 MR. RUSSO: Sure, Your Honour, that is 65 ter 4560.
15 JUDGE ORIE: And that would receive, Mr. Registrar, number.
16 THE REGISTRAR: Your Honours, that becomes Exhibit P1270 also
17 marked for identification.
18 JUDGE ORIE: Thank you. Mr. Kehoe and other Defence counsel
19 could we hear from you tomorrow whether there is any objection for 1269
20 and 1270.
21 MR. KEHOE: Yes, yes, Mr. President.
22 JUDGE ORIE: Please proceed, Mr. Russo.
23 MR. RUSSO: Thank you, Mr. President.
24 I'd like to now have a look at some of the HV target lists. If
25 we could please have 65 ter 6119. And for the Chamber's information,
1 this document is addressed in the addendum at section 6 c which appears
2 at page 7 of the English, page 11 of the B/C/S.
3 Q. Taking a look at this target list, Colonel Konings, you will see
4 that the first target listed is a church in Knin; and I'd like to you
5 please tell the Chamber, given your training and experience, what your
6 opinion is as to whether or not placing a church on a target list is
7 lawful or a lawful use of artillery?
8 A. Well, with my background, it struck me when I saw this first for
9 the first time that you even find a thing like a church on a target list
10 for artillery because a church is a social, cultural, civilian
11 institution that should be looked upon as a no-fire area. So it should
12 not be attacked by any military means if at all.
13 MR. KEHOE: If I may, Judge, and I I'll let the witness -- answer
14 go. If we have some foundation from the Prosecution as to what church
15 this is and ask the question based on that, given this was HV fire.
16 MR. RUSSO: Mr. President my question doesn't distinguish between
17 which kind of church, my question is aimed at whether or not any church
18 in the witness's opinion is appropriate to include on a target list.
19 JUDGE ORIE: Well, is it your view that independent on any
20 circumstances that putting a church on a target list is, under all
21 circumstances, inappropriate; or I'm hesitant to elicit any legal
22 opinions from you.
23 THE WITNESS: Well, the basic point, the starting point is that
24 you are given the correct status as we look to that, a church should
25 never be on a target list as a starting point. And if a church is on a
1 target list then they are very, very valuable and high ordered reasons to
2 do so. But the basic answer is, a church should not be on a target list.
3 JUDGE ORIE: Now we -- that's a very general statement.
4 No, there was another matter apparently raised. That is, whether
5 this was a HV target list. I'm just looking at the document at this
6 moment. Could you please, Mr. Kehoe, let me just have a look at the
7 document, and it says table of identified targets.
8 Is there any --
9 MR. RUSSO: Your Honour --
10 JUDGE ORIE: Is there any basis for -- you haven't asked the
11 witness so.
12 MR. RUSSO: Your Honour, I can tell the Court that this was a
13 document received by the Office of the Prosecutor from the government of
16 JUDGE ORIE: Yes.
17 MR. RUSSO: And specific target lists.
18 JUDGE ORIE: From Croatian target lists.
19 MR. RUSSO: Correct, Your Honour.
20 JUDGE ORIE: Yes.
21 Is there any further information about it I don't know whether --
22 MR. KEHOE: Yes, there is.
23 JUDGE ORIE: There is. Is it information which could be
24 discussed -- let's first ask, do you know anything about this target list
25 and this church on this list, or do you have any knowledge about that,
1 Mr. Konings.
2 THE WITNESS: I do not have any knowledge specifically about the
3 church that is the matter here, that is listed here. But I have a
4 knowledge about the -- about target lists in general.
5 JUDGE ORIE: Yes, we have heard that you -- your starting point
6 is that churches should not appear on target lists.
7 THE WITNESS: Exactly.
8 JUDGE ORIE: Yes. We have heard that. Then I don't think it
9 would be necessary for the witness to ask -- to ask him to leave the
10 courtroom but this document is, although the witness has no specific
11 knowledge about this document, there seems to be some information which
12 might be helpful for the Chamber to hear.
13 MR. KEHOE: Yes, Your Honour.
14 JUDGE ORIE: Mr. Russo, we heard from that you it was received in
15 response to a request for assistance from the Croatian government.
16 MR. KEHOE: There is some additional information about this for
17 clarity sake that the Chamber, I believe, would want to take into
18 consideration as opposed to a hypothetical discussion that a church and I
19 understand General [sic] Konings is just saying, generally speaking,
20 houses of worship should not be placed under attack.
21 JUDGE ORIE: Well, is the information about the list that it was
22 a Serb Krajina list which got lost in Croatia, or is it about the church
24 MR. KEHOE: It is it about the church itself.
25 JUDGE ORIE: I would invite the parties to first discuss because,
1 Mr. Kehoe, with all due respect, of course, you couldn't give evidence on
2 this matter.
3 MR. KEHOE: Yes.
4 JUDGE ORIE: Therefore, I invite you to first briefly discuss the
5 matter with Mr. Russo and to see whether there are any specifics in
6 relation to this church which would assist the Chamber in evaluating this
7 document in relation also to the testimony of this witness.
8 MR. KEHOE: Yes, Your Honour.
9 MR. RUSSO: If we could move a bit further down the target list,
10 you will notice that the target which is third from the bottom is
12 Q. And I'll ask you the same question, Colonel Konings, given your
13 training and experience, whether or not you believe it is appropriate to
14 include a hospital, any hospital, on a target list.
15 A. A short answer, no.
16 Q. Thank you.
17 MR. RUSSO: Your Honour, at this time I would move for the
18 admission of 65 ter 6119.
19 MR. KEHOE: Mr. President, just I have been told by Mr. Misetic
20 on something in this that the translation is off. I'm not really clear
21 if I can turn to Mr. Misetic to clarify this. I don't speak the
23 MR. MISETIC: Yes, Your Honour, I think OTP needs to revise the
24 translation. The coordinates for each of the targets are one off, and
25 early in the list somebody when they were transposing the numbers in the
1 English missed one and then misnumbered all the rest of them as a result.
2 So I think it needs to be fixed -- the translation needs to be
3 fixed by OTP before it can be admitted.
4 MR. RUSSO: Your Honour, if I could, we're not admitting it for
5 the coordinates, we're admitting it for the hospital being on the target
7 MR. MISETIC: The coordinate will be important later.
8 JUDGE ORIE: Coordinates might be of importance because if the
9 coordinates attached to the hospital would be coordinates which cannot be
10 in any way -- as a matter of fact, I had on my mind to ask this witness
11 about what the coordinates would mean here because we have usually in
12 a -- in a flat country you usually need two coordinates. Now it seems
13 that coordinates approximately the same appear under Z which suggests
14 that that might be elevation, for example.
15 Is that correctly understood, Mr. Konings?
16 THE WITNESS: I think that is correctly understood, Your Honour.
17 JUDGE ORIE: And the target coordinates here, is that a grid
19 THE WITNESS: I assume that this is a grid system. It might be a
20 different grid system than we use in NATO, but in the basis they are all
21 the same. They give you an accuracy of the target up to either a single
22 metre or ten metres or 100 metres.
23 JUDGE ORIE: That's dependent on the -- how many digits we have.
24 THE WITNESS: Yes, whether you use ten digit or eight digit or
25 six digit, yes.
1 JUDGE ORIE: Do I understand that the Defence will pay further
2 attention to the target coordinates.
3 MR. KEHOE: Absolutely, Judge.
4 JUDGE ORIE: Yes, then I don't have to ask any further questions
5 in --
6 MR. RUSSO: Your Honour, that's fine. I don't see why that would
7 prevent the original B/C/S document from coming into evidence. We will
8 simply revise the translation as we have done for others.
9 JUDGE ORIE: Yes. It's not even a translation matter. I do
10 understand, but it is just a matter of putting the right numbers at the
11 right places.
12 May I take it there is no objection against this document as such
13 if the English version is adjusted.
14 MR. KEHOE: Yes, Your Honour.
15 JUDGE ORIE: Then, Mr. Registrar, could you please assign a
17 THE REGISTRAR: Your Honours this becomes Exhibit P1271.
18 JUDGE ORIE: P1271 is admitted into evidence but still needs a
19 better translation to be uploaded.
20 Please proceed, Mr. Russo.
21 MR. RUSSO: Thank you, Mr. President.
22 If we could now have 65 ter 6210.
23 Q. You'll see, Colonel Konings, at the top here this indicates
24 artillery preparation and the duration being 60 minutes, and you have
25 already offered some testimony to the Chamber about what exactly
1 artillery preparation fire is. And I'd like to look at the targets for
2 artillery preparation.
3 MR. RUSSO: And if we can move down to the fourth line there,
4 the -- the second from the bottom.
5 Q. You will see one target listed as a block of flats, and I would
6 like you to please comment for the Chamber on whether or not you believe
7 that's an appropriate thing to list on a target with no further
9 MR. KEHOE: Judge, that's pure speculation without giving the
10 witness these grid references so that he can find it himself.
11 MR. RUSSO: The grid references are there.
12 JUDGE ORIE: Mr. Russo, Mr. Russo, there is further
13 specifications, the specifications being the references, apparently the
14 grid references or the coordinates.
15 Now, I don't think it makes much sense to ask this question as
16 if -- I mean a block of flats could house everything, isn't it? So in
17 order as to -- whereas earlier we had no opportunity to better understand
18 what was fired at, here there may be a possibility at least if we do
19 understand the coordinates, to find out whether this block of flats was
20 housing civilians or military offices or police offices.
21 So, therefore, I don't think that it makes much sense to ask
22 whether the description as such which is accompanied by apparently clear
23 grid references whether that would be acceptable or non-acceptable.
24 MR. RUSSO: Thank you, Mr. President. In that case, I will
25 simply move to the next page -- actually the third page of the
1 document --
2 JUDGE ORIE: May I ask you, has the Prosecution been able to
3 identify the exact locations here, so that we would know what we might
4 like to know.
5 MR. RUSSO: That will be provided, Your Honour.
6 JUDGE ORIE: Yes. And then we may know more than we do now.
7 Please proceed.
8 Yes, Mr. Kehoe.
9 MR. KEHOE: One other issue just considering -- pardon me, Judge,
10 with regard to this document my understanding is that the Office of the
11 Prosecutor has a copy of this document without the redactions that we
12 just saw, the black lines through it.
13 JUDGE ORIE: Yes, as a matter --
14 MR. KEHOE: It was the page we had just before that.
15 JUDGE ORIE: Yes, the previous page.
16 Do you have a copy without redactions Mr. Russo?
17 MR. RUSSO: I will check if we do, Your Honour. I'm not sure
18 that those are actually redactions. They may, in fact, be highlighted
19 things which were copied. In any case, we will pull out the original and
20 determine whether or not we can upload something that doesn't have those
21 markings on it.
22 MR. KEHOE: Thank you.
23 MR. RUSSO: I don't actually know if the original contains that
24 or not, but I will pull it out of the evidence locker and determine that.
25 JUDGE ORIE: Yes. If you would try to find such a copy and
1 upload it.
2 MR. RUSSO: If we could magnify the English version a bit.
3 Q. Again, the second target listed you'll notice, Colonel Konings,
4 is a hospital, and I take it that your opinion with respect to the
5 appropriateness of including this on the target list remains the same?
6 MR. KEHOE: Again, Judge. I objects if we're taking about the
7 grid references, let's clarify the grid references. I think we have the
8 witness's answer concerning theoretically --
9 JUDGE ORIE: Yes, yes.
10 MR. KEHOE: [Overlapping speakers] ...
11 JUDGE ORIE: The Chamber would not expect the Chamber to change
12 his mind as far as hospitals should appear or not. I mean it was a
13 superfluous question.
14 But again, Mr. Russo, here we have - at least it appears to me -
15 that there may be an opportunity to really identify in the field what
16 we're talking about, and therefore if it is a hospital then we might find
17 out whether it's a hospital which is still functioning or whether it's a
18 building which was used 20 years ago as hospital and is still called a
19 hospital or whether it is the hospital and then what location exactly --
20 MR. RUSSO: Yes, Your Honour, I do agree --
21 JUDGE ORIE: Wouldn't that be a more useful way of using this
23 MR. RUSSO: Certainly we will connect this up with further
24 evidence to establish to the Court where this particular hospital is
1 JUDGE ORIE: But may I take it that you have already made an
2 effort and have already attempted to find out which hospital this would
3 have been?
4 MR. RUSSO: Yes, Your Honour, I don't want to offer that
5 testimony myself and this witness --
6 JUDGE ORIE: No, it has been done so you know at least have you
7 an impression for yourself on -- that this was really a hospital.
8 MR. RUSSO: Yes, Your Honour.
9 MR. KEHOE: Outside the presence of the witness, I would like to
10 discuss that particular issue that these grid references have been
11 brought up by the Office of the Prosecutor, and it is in fact a hospital
12 in those grid references. I would like a good faith basis for at that
14 JUDGE ORIE: What I -- as a matter of fact, what I would like --
15 the parties to do is to sit together and see whether they agree on the
16 system of coordinates used here, and also to briefly discuss whether they
17 come to the same conclusions apparently -- you have formed an opinion
18 about that, Mr. Russo. Because if the parties would agree that X 79300,
19 Y 97140, and Z 230 is a specific location, why not agree on that? Why
20 not present it to the Chamber so that the Chamber can either understand
21 or perhaps not understand what we're talking about.
22 I mean, Mr. Russo --
23 MR. RUSSO: I'm happy to do that, Your Honour.
24 JUDGE ORIE: Because the witness can't help us out from what I
25 understand. Yes?
1 Let's proceed.
2 MR. RUSSO: Your Honour, I would still move for the admission of
3 65 ter 6120.
4 JUDGE ORIE: Yes. And on the assumption that you upload a fully
5 legible original. There are no objections.
6 MR. KEHOE: As long as we have those redactions, we have no
8 JUDGE ORIE: Mr. Registrar.
9 THE REGISTRAR: Your Honours that becomes Exhibit P1272.
10 JUDGE ORIE: P1272 is admitted into evidence. But the OTP will
11 take care that -- that a legible original will be uploaded.
12 MR. RUSSO: Yes, Your Honour. I have just been informed that
13 those are in fact highlights, so we can upload a more legible version.
14 JUDGE ORIE: Yes. Please proceed.
15 MR. RUSSO: Thank you. If we could now have 65 ter 6128.
16 Q. Colonel Konings, this is a coded map which lists various kinds of
17 information in the tables, and the tables that -- which you see on there,
18 one of them includes the list of targets identified on the map.
19 MR. RUSSO: If we could have the English translation of this
20 brought up. And if we could move to page 8 of the English translation.
21 And, again, Your Honour, I will simply make the proffer that this
22 was a map which was received by the Office of the Prosecutor in response
23 to a request for documents from the Croatian military archives.
24 Q. Now, you will see on this target list, Colonel Konings, you'll
25 notice targets 10, 11, and, I believe, 28 list medical stations, and I'd
1 like your opinion, again in light of your training and experience, as to
2 the appropriateness of including medical stations on targets, what you
3 were taught about that and in fact what you teach to others about the
4 appropriateness of targeting medical stations.
5 A. Well, again, my answer can be very short. First of all, it
6 doesn't indicate whether it is a military medical station or a civilian
7 medical station, but basically it doesn't care, because also military
8 medical stations are designated units, designated parts of the military
9 organisation, that should not be targeted. Wounded people are treated
10 there, so they should not be targeted and definitely not be on the list
11 of targets for artillery.
12 MR. KEHOE: If I may, Judge, this map is from 1993. It was for a
13 training exercise in 1993 and has nothing to do with Operation Storm.
14 MR. RUSSO: Your Honour, if that's the Defence's position.
15 JUDGE ORIE: Yes, then you can -- I don't think, as a matter of
16 fact, that there's any -- if that is relevant, and it may well be
17 relevant, and not to say that sometimes maps keep validity, sometimes
18 not, that's all to be established, it certainly will assist the Chamber
19 in receiving more information about this map. And, of course, to the
20 extent that the parties can agree on that, it's a map that was made in
21 1993, I've got no idea yet on where --
22 MR. RUSSO: Your Honour, the title of the map is Poskok 93. I'm
23 certainly willing to accept the fact and certainly agree to the fact that
24 it may have been created for an exercise in 1993. However, we have
25 received additional evidence from the government of Croatia which
1 indicates that this map was in fact used in Operation Storm.
2 JUDGE ORIE: Then share that information with the Defence, see to
3 what extent you do agree, you do disagree, and then the Chamber would
4 like to have the matter further explored during the presentation of
6 MR. RUSSO: That's fine, Your Honour. We have provided the diary
7 which indicates that this map was used that was provided to the Defence,
8 I believe, on 26 November by e-mail but that is besides the point. I'm
9 happy to get together with the Defence to discuss that.
10 MR. KEHOE: And I just have a -- I don't know if it -- two issues
11 concerning this and also the questions along this line, if I could bring
12 it outside the presence of the witness, I would appreciate it, as we come
13 close to the end of the day.
14 JUDGE ORIE: Yes.
15 Mr. Konings, Mr. Kehoe would like to --
16 MR. RUSSO: I'm happy to break here for the day, Your Honour.
17 JUDGE ORIE: Yes, yes, yes. Okay.
18 Mr. Konings, we have to stay for another few minutes but you're
19 free to go, but not after I have instructed you not to speak with anyone
20 about your testimony, whether already given or still to be given, and
21 we'd like to see you back tomorrow, the 15th of January, quarter past
22 2.00 in this same courtroom, number I.
23 THE WITNESS: Yes, Your Honour.
24 JUDGE ORIE: Yes.
25 [The witness stands down]
1 MR. RUSSO: I would also like to --
2 JUDGE ORIE: Before we raise other issues, I'm just trying to --
3 you said that it was page what of the translation page?
4 MR. RUSSO: Page 8 is where this appears of the English
5 translation of the map, Your Honour, if that's what the Court is asking.
6 JUDGE ORIE: Yes, that is what I'm asking. And, as a matter of
7 fact, in the original, it is a one-page document. So I have difficulties
8 to find in the original where we see what is found in the list of targets
9 in the translation.
10 MR. RUSSO: If the Court can see the map, you will see that there
11 are several boxes of text in the map.
12 JUDGE ORIE: Which one is it, Mr. Russo?
13 MR. RUSSO: I'm not exactly sure. I believe it's one that is not
14 currently on the screen; it's on the right-hand side of the map.
15 JUDGE ORIE: Oh, we have more there, yes.
16 MR. RUSSO: And it's these which have been translated, including
17 the text which appears at the top of the map. All of that is translated
18 into the pages of the English translation.
19 JUDGE ORIE: Just trying to find it. Oh, yes, I think I found it
20 at the -- yes, at the right-hand top. It's the one on the right-hand
21 side the second from the top that table, yes. Thank you.
22 Mr. Kehoe.
23 MR. KEHOE: [Microphone not activated] ... with regard to this
24 map, and I think you just saw that it said 1993 on the map, just scroll
25 down on there, I think it was over on the right-hand side we saw that, we
1 do know that it is not during the time of Operation Storm. Whether or
2 not it was used as a basis thereafter, I'm not clear. But in the upper
3 left-hand side, it will show the rank of General Gotovina as a brigadier
4 and certainly at the time of Operation Storm he was not. And I do seem
5 to think, as we were going through this, I did see a date of 1993 at some
7 I think the larger issue here -- and there it is, 1993 in the
8 right-hand corner.
9 The larger issue here, Judge, is this, and that has to do with
10 this expert testimony. There has been no testimony whatsoever that the
11 HV targeted medical facilities in some school or anywhere else, and to
12 put before this Chamber the fact that there is something on a list with
13 grid references when, in reality, those facilities weren't targeted is
14 completely misleading, and it is misleading to this witness.
15 Now, to lead this witness to believe with this grid coordinates
16 that the Knin hospital was shelled, we know, based on all of the Canadian
17 witnesses and UN witnesses that have come in here, and there have been
18 many, that it wasn't shelled. That it wasn't shelled at all. Yet
19 Mr. Russo is putting forth items to this witness as if it had, and it
20 is -- as a matter of fact, we all know that it had not.
21 MR. RUSSO: Your Honour, this is argument. I'm not sure where
22 this is going. If this is a --
23 MR. KEHOE: [Overlapping speakers] ... because of the good faith
24 effort of the Prosecutor.
25 JUDGE ORIE: First of all, don't speak at the same time.
1 MR. KEHOE: I apologise.
2 MR. KUZMANOVIC: May I add something, Your Honour.
3 JUDGE ORIE: Yes, let me just ... if you add something and then I
4 will give an opportunity to Mr. Russo to briefly respond, and I would
5 like to keep this within certain time-limits.
6 MR. KUZMANOVIC: Certainly, Your Honour.
7 If we look at page 98, line 12, in the question in the
8 transcript, it says: "Now, will you see on this target list, Colonel
9 Konings, targets 10, 11 and 28," and if you enlarge the map -- and
10 they're presented as being medical stations. There's nothing in those
11 points in the map that lists these things as medical stations. It says:
12 "Stacionar u skoli." That has nothing to do with medical stations.
13 JUDGE ORIE: That seems, then, to be a translation issue. It
14 says then station, school.
15 MR. KUZMANOVIC: Yes.
16 JUDGE ORIE: And without the word medical, from what I
17 understand. Let me -- I have to find my way.
18 MR. KUZMANOVIC: 10 and 11 are "stacionar u skoli"; and 28 just
19 says "stacionar."
20 JUDGE ORIE: I have to enlarge that to see whether I can follow.
21 Mr. Russo, there seems to -- there may be a translation issue
23 MR. RUSSO: Your Honour, if there is a translation issue, we will
24 certainly have it corrected. However, I believe on the whole target list
25 there are, in fact, several entries for medical stations. We will
1 certainly revise the translation, as appropriate. I may have called off
2 the wrong numbers.
3 But, that aside, I'm not sure what the Court wants me to respond
4 to. I'm not sure if this is an objection to this particular exhibit that
5 Mr. Kehoe was making or ...
6 MR. KEHOE: I'll clarify the objection. My objection is the good
7 faith basis of questions concerning artillery attacks on a hospital when
8 the Prosecutor knows that those the grid coordinates are not grid
9 coordinates on the Knin hospital.
10 JUDGE ORIE: Well, if it would be on another hospital, it might
11 be relevant as well.
12 But, therefore, I think I -- we don't have to decide the matter
13 because we invited you to sit together and to see to what extent you can
14 agree on what these coordinates or grid references, in whatever system,
15 mean. If you cannot reach an agreement then, of course, the Chamber
16 would like to hear what the issue is, why one party is relying on a
17 system which apparently does not -- is in line with the other system, but
18 let's first try to see whether we can get as close as possible to the
19 facts on the basis of specific information we find in the material which
20 is offered in evidence.
21 MR. KUZMANOVIC: Your Honour, I would like to add that Mr. Russo
22 was very specific about points 10, 11, and 28. In the translation, it
23 says medical station; in the original, it says nothing about a medical
25 JUDGE ORIE: Yes, I think, as a matter of fact, we established
1 that, that it was "stacionar u skolu" and on 28 only "staciona."
2 Now we have to find out whether this has a specific meaning.
3 That is still possible even it's -- and why it is translated as it is
5 You're invited to first seek verification for the translation.
6 Perhaps you also already include, Mr. Russo, those references for medical
7 institutions or medical stations which you referred to but of which we do
8 not know the number yet so that we don't end up in a similar situation
9 tomorrow. And as far as the suggestions are concerned, you're invited -
10 but then not with Mr. Kuzmanovic but now with Mr. Kehoe - to see what
11 progress you can make on the coordinates.
12 MR. KEHOE: Yes, Judge.
13 MR. RUSSO: And, Your Honour, I will be moving 65 ter 6128 into
14 evidence, but I do want to address the objection to the extent -- I'm not
15 sure about the good faith basis portion of the objection. But where the
16 witness indicates that putting something on a target list or something
17 appearing on a map, whether or not it happens to be fired at is
18 immaterial to the question. It is relevant to the determination of
19 intent. Placing something on a target list establishes what the intent
20 may be with respect to the attack in general. It doesn't certainly need
21 to be proven that an artillery projectile actually hit that particular
22 target, and we, of course, have already seen a report that projectiles
23 were, in fact, fired at the Knin. Whether they hit the hospital or not
24 is immaterial.
25 JUDGE ORIE: We'll -- that's --
1 MR. KEHOE: Your Honour, may I respond just briefly.
2 Then that raises an interesting point that the Prosecutor knows
3 full well when he went into the Knin church, that was the St. Anthony's
4 Monastery, a Catholic church that had been destroyed by the Serbs prior
5 to Operation Storm, and that was never told to this witness by the
7 MR. RUSSO: That's correct. It was never told to the witness --
8 MR. KEHOE: That's exactly right. It makes a big difference
9 [Overlapping speakers] ...
10 MR. RUSSO: [Overlapping speakers] ... it's irrelevant, Your
11 Honour. It's irrelevant.
12 MR. KEHOE: Oh my God.
13 MR. RUSSO: The point of the witness's testimony was that a
14 church on the target list --
15 JUDGE ORIE: Well, I think, as a matter of fact, you need this
16 evening, the two of you, and then tomorrow we'll see where we are, and
17 then we also have given an opportunity to our transcriber to recover from
18 this event.
19 And, Mr. Kehoe, I do understand the link but to say, Oh my God,
20 and then specifically in relation to churches, and even in this context
21 seems not to be the appropriate way of addressing --
22 MR. KEHOE: I stand corrected.
23 JUDGE ORIE: We adjourn, and we'll -- I apologise for the
24 interpreters and transcribers and everyone else who witnessed the last
25 ten minutes, and we'll resume tomorrow, 15th of January, quarter past
1 2.00, Courtroom I.
2 --- Whereupon the hearing adjourned at 7.10 p.m.,
3 to be reconvened on Thursday, the 15th day of
4 January, 2009, at 2.15 p.m.