Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14753

 1                           Tuesday, 20 January 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.05 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

 6             Mr. Registrar, would you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 8     everyone in the courtroom.  This is case number IT-06-90-T, The

 9     Prosecutor versus Ante Gotovina et al.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             There are two matters I'd like to raise.  The first one being

12     that the Chamber invited, as I said, if possible submissions by the

13     parties in relation to where we exactly now stand and what still should

14     be done in the 54 bis application.

15             I don't think we have received anything from the parties yet

16     although there was a related issue.

17             MR. RUSSO:  The Prosecution made its submissions late last night,

18     Your Honour.

19             MR. MISETIC:  The same is true for the Gotovina Defence.

20             JUDGE ORIE:  Then I should have checked that, but that's done.

21             Then there was -- I a number here, P1265, that is another

22     excerpt, I think, but I'm a bit in doubt about the number.  I was just

23     checking.

24             The new selection from this Dutch military --

25             MR. RUSSO:  Yes, Your Honour.  The Prosecution will be offering

Page 14754

 1     no additional sections.

 2             JUDGE ORIE:  Yes, I think there were two issues.  First is

 3     whether you wanted to add anything, and the second is what the section

 4     exactly was.  And could you remind me about the number, because I thought

 5     it was P1265, but I'm a bit --

 6             MR. KEHOE:  I believe that's it, Judge.

 7             JUDGE ORIE:  Yes.  If I look at P1265 in e-court I find a Knin

 8     photo presentation rather than an excerpt from ... and there's a

 9     surrogate sheet.

10             MR. RUSSO:  I believe it must be D1265.

11             JUDGE ORIE:  D, yes that of course makes sense.  Let me just

12     check what we have at this moment.  Yes, Netherlands army publication.

13             I then understand that the -- I have a 103-page document, and I

14     think part of it was already in evidence.  I think it was pages 19 to 22,

15     or something like that.  And another selection would be made and

16     Mr. Russo would express his views as to whether to add something.

17             Well, there is not much to be added if all 103 pages are in

18     evidence.

19             Mr. Kehoe, what is your selection.

20             MR. KEHOE:  My selection, Your Honour, if I can upload it right

21     now.

22             JUDGE ORIE:  We will hear from you then later this morning.

23             MR. KEHOE:  [Overlapping speakers] ...  I can give you the

24     selection and then Mr. Russo.

25             JUDGE ORIE:  Then Mr. Russo, then you really can answer the

Page 14755

 1     question whether you want to add something, yes or no.

 2             Having dealt with that matter, I think that we are ready to

 3     continue with the witness.

 4             Madam Usher, could you please escort the witness into the

 5     courtroom.

 6                           [The witness entered court]

 7             JUDGE ORIE:  Good morning, Mr. Konings.

 8             THE WITNESS:  Good morning, Your Honour.

 9             JUDGE ORIE:  Same procedure as the other days.  I would like to

10     remind that you are still bound by the solemn declaration you gave at the

11     beginning of your testimony.

12             And Mr. Kehoe will now continue his cross-examination.

13             Mr. Kehoe.

14             MR. KEHOE:  Thank you, Mr. President.

15                           WITNESS:  HARRY KONINGS [Resumed]

16                           Cross-examination by Mr. Kehoe: [Continued]

17        Q.   Good morning, Colonel.

18        A.   Good morning to you.

19        Q.   Colonel, we want to go back to where we left off yesterday in

20     talking about P1125 which is Judge Gotovina [sic] order of 1 August 1995

21     that you referred to - General Gotovina - his order of 1 August 1995.

22             So if we could do that and put that up on the screen.

23             I would like to take to you page 4 of this document just as a

24     reference point before we go to another document, Colonel, so we can put

25     this in context and towards the bottom of that page we are talking about

Page 14756

 1     the task of the Split Military District and talking about carrying out a

 2     joint offensive going to the last two lines "after the following task":

 3             "In a vigorous attack with intense artillery and air support of

 4     several axes directed at the main military and political transportation

 5     features in the enemy's operational depth."

 6             Now you read that to mean when you are talking about in the

 7     operational depth, in this instance that would have been the town of

 8     Knin, wouldn't it?

 9        A.   Yes.  I think certainly that Knin belongs to the enemy's

10     operational depths.

11        Q.   Now let's put this particular reference in context, and I want to

12     show you a document that I'm not certain if you have seen before and

13     reviewed some of the documents but it -- I'm not certain if you have

14     received this.

15             MR. KEHOE:  If we could bring up D956.

16        Q.   Colonel, this is a directive coming from the HV Main Staff dated

17     26 June 1995.  As you can see up in the right-hand corner it deals with

18     Operation Oluja, or Storm.

19             Have you seen this, sir?  Let's just page through it and maybe

20     give it a little context.  That's page 1 where the Main Staff and in this

21     instance this is signed by General Bobetko.

22        A.   I'm not quite certain about it.  I don't think have I seen it,

23     but I cannot give you the full 100 percent.

24        Q.   Okay.  I'd just like to give you -- apologies.  A bit of a feel

25     for this document, Colonel.  This is the front page, talking about the

Page 14757

 1     military situation.

 2             And if we could just page through this and -- as you glance at

 3     it, Colonel, please if you want to stop at any point to review it more

 4     thoroughly, please say so.

 5              Next page as towards the top it gives the status of the enemy.

 6             If we can go to the next page.

 7             The deployment of forces.

 8             Next page is the decisions of the Main Staff.

 9             If we can go to the next page.  As we can see in point 3 on this

10     page, going over to the next page, we are talking about specific tasks

11     for the Split Military District.

12             Now, this is a normal type of directive coming from a Main Staff

13     being sent down to a commander, such as General Gotovina, on the

14     operational level, is it not?

15        A.   As far as I have seen, yes.

16        Q.   Okay.  And let me just turn your attention to item 7, which is

17     the artillery and rocket support.

18             MR. KEHOE:  And if we can just read that.

19        Q.   "Artillery and rocket support shall be provided by 14th and 20th

20     artillery and rocket battalions and an additional 203-millimetre battery.

21             "The support should focus on neutralising the Republika Srpska

22     Army Main Staff and the 7 Corps command post in Knin, the brigade [sic]

23     command posts, concentrations on enemy manpower, armour, and artillery in

24     the area of Knin and Benkovac, including ammunition and fuel depots,

25     while [sic] the supporting the main forces in attack and preventing an

Page 14758

 1     enemy counterattack from the direction of Knin, Kastel Zegarski and

 2     Benkovac."

 3             So looking at this, General Gotovina is being ordered by the

 4     Main Staff to uses his artillery and his rockets and direct those

 5     artillery and rockets against specific military targets, isn't he?

 6        A.   Yes.

 7        Q.   Okay.  And when -- in this instances and you're using these

 8     artillery and rocket systems, you are trying to direct them towards

 9     specific military targets, aren't you?

10        A.   As it is -- as described here, yes, you are.

11        Q.   Well, let's take it one step further.  I mean, using artillery

12     and rockets I mean you say yes, their Main Staff is doing that because

13     artillery and rocket systems are capable of being directed against

14     specific military targets, aren't they?

15        A.   They are -- can be directed against any target.

16        Q.   Now, taking this, when this comes down to General Gotovina, he

17     then comes up with the actual plan as to how to executed what the

18     Main Staff wants, knowing that he has been ordered by General Bobetko to

19     direct his artillery against these military objectives that have been

20     listed in paragraph 7 of D956; that's correct, isn't it?

21        A.   I assume that that were his thoughts when he received this order.

22     I don't know what he thought, but I assume that he has been reading this

23     order, the complete order, and not only on the artillery support and that

24     he analysed it and that he took from this order the general task that

25     were given him by the -- by the overall staff, yes.

Page 14759

 1        Q.   Well, okay.  You don't have any evidence to conclude that

 2     General Gotovina did not follow General Bobetko's order?

 3        A.   No, no.  I have no -- I assume that he analysed what he received

 4     in a way that a military commander does.

 5        Q.   Let's turn your attention back to 1125.  And 1125, General, again

 6     this is -- this is General Gotovina's order on the 1st of August.  I hate

 7     to throw these numbers out without putting it in context, but that's what

 8     it is.

 9             MR. KEHOE:  And if we could turn to page 14 of the document.

10        Q.   Now, looking at this item, we again note that it's the use of the

11     various artillery pieces that are at the disposal of the Split Military

12     District that is noted in the initial item.

13             And then we move down to the tasks of the artillery rocket

14     groups:

15             "Groups and organise the TS and TRS-2 along the main attack axes

16     focus on providing the artillery support to the main forces in the

17     offensive operations through powerful strikes against the enemy [sic]

18     front line, command posts, communications centre, artillery firing

19     positions, and by putting the towns of Drvar, Knin, Benkovac, Obrovac,

20     Gracac under artillery fire.  Create conditions to secure the flanks of

21     the units that are involved in the offensive operations along the main

22     axis."

23             Now when we read that, we know that the directive coming from the

24     Main Staff is that it should be directed towards the military targets,

25     objectives that we discussed in D956, the order from the Main Staff.  And

Page 14760

 1     looking at this particular order, General Gotovina lists the specific

 2     items of interest for the Main Staff, command posts, communication

 3     centres, artillery positions.

 4             Now do you know, sir, whether -- let's put Knin aside, whether

 5     command posts, communication centres and artillery firing positions

 6     existed in Benkovac, Obrovac, and Gracac?

 7        A.   I don't know.  I haven't studied the specifics of those cities.

 8        Q.   You note in your report at page 14 of -- this is paragraph 16,

 9     page 14 of P1259, that you were unhappy with the specificity in the order

10     because you say that:

11             "It would give the green light to use the effect of harassment at

12     a maximum by firing randomly into named cities."

13             Have you seen any evidence and we'll talk to Knin at some length

14     have you seen any evidence that the artillery groups under the command --

15     under General Gotovina in the Split Military District fired randomly at

16     Drvar, Benkovac, Obrovac or Gracac?

17        A.   I haven't seen that but did not state that it happened.  I said

18     that the point is that by putting this sentence specifically in the order

19     you create the conditions that you allow commanders to do that.

20     Stronger, you order commanders to do that.

21             That's -- that's the point.  And the intention may even be worse

22     than the actual fact of doing that.

23        Q.   Well, sir, have you no evidence that it happened?

24        A.   I do not have that, no.

25             JUDGE ORIE:  Mr. Kehoe the witness answered that the question.

Page 14761

 1             MR. KEHOE:  That was a preface to a follow-up question.

 2             JUDGE ORIE:  Because I don't know how long you wouldn't to pursue

 3     this matter, but it is clear from the report that this witness has no

 4     information, at least as far as I understand, about what actually

 5     happened.  He stopped at the point of where he -- for what it is worth he

 6     analysed and looked at the reports and formed the opinion about that.

 7             MR. KEHOE:  My comment with that, Judge, with that -- and I was

 8     continuing on with the question, so ...

 9             JUDGE ORIE:  Please do so.

10             MR. KEHOE:

11        Q.   You know, with that lack of evidence, sir, what we are talking

12     about here is you don't think that this order was written well enough or

13     certainly not according to the doctrine that you were educated in.  Isn't

14     that right?

15        A.   First of all, this is -- the way this specific sentence is

16     phrased here is not only -- not according to our doctrine.  It is a

17     sentence that -- and I specifically mean on the sentence:

18             "And by putting the towns of Drvar, Knin, Benkovac, Obrovac and

19     Gracac under artillery fire," that is in our view and I consulted some

20     time ago my colleague who is a legal officer in our organisation is an

21     illegal entry in a document because in the first -- in the complete order

22     of General Gotovina is -- everything is focussed on the use of military

23     means against military targets, and I stated over and over again, I do

24     not have any problem with that because it seems to be a quite normal

25     regular order written according to the standards of the Croatian army

Page 14762

 1     which is somewhat different than in NATO but the intention is the same.

 2             And if you read the task of the artillery groups, it is in the

 3     first part of that tasks it directs the artillery support against enemy

 4     front line, absolutely normally.  Command post, absolutely normal, and

 5     consistent with the orders from the higher staff.  Communication centre,

 6     artillery firing positions, that's all normal; and that should include

 7     the cities of Knin, Drvar as well because if a command post, a military

 8     command post is in Knin, then it belongs to that general sentence.  And

 9     then suddenly out of the blue, as an extra, because it says, "And by

10     putting the towns of Drvar, Knin Benkovac Obrovac and Gracac under

11     artillery fire," I would expect there the sentence, comma, in order to

12     attack command post or specific military targets.

13             There is no explanation where this extra sentence is there.  That

14     is the point.

15        Q.   Well, let us analyse what you just said, Colonel, because a fair

16     reading of this quite clearly could be that the artillery groups were

17     ordered to come up with target lists in Drvar, Knin, Benkovac, Obrovac

18     and Gracac that were directed towards the enemy's front line, command

19     post, communication centres and artillery firing positions.

20             Isn't that correct?

21        A.   Why not putting in that here?

22        Q.   I'm not saying it is a perfect order, General.  But isn't the

23     interpretation of this order a valid interpretation of the artillery

24     group and in fact what they did was go and look at the enemy front line,

25     the command posts, communication centres and artillery firing positions

Page 14763

 1     in Drvar, Knin, Benkovac Obrovac and Gracac --

 2        A.   No.

 3             JUDGE ORIE:  Mr. Russo.

 4             MR. RUSSO:  My apologies.  I wasn't sure if he was asking if that

 5     is in fact what he did or putting to the witness that is, in fact, what

 6     they did.

 7             JUDGE ORIE:  No.  The objection is therefore not formulated and

 8     neither could it stand.

 9             Please proceed, Mr. Kehoe.

10             MR. KEHOE:

11        Q.   Colonel, that is a more than fair interpretation of this order

12     that those particular military objectives were in those cities and that

13     General Gotovina was directing his subordinates to come up with target

14     lists consistent with that for those locations; isn't that right?

15        A.   Sir, with all due respect I don't think that this is -- I do not

16     have that opinion.  I read this in the following way that it is put there

17     as an extra order on top of whatever -- what already has been said in the

18     same sentence command post, communication centre, artillery firing

19     positions because the phrasing is such putting a town under artillery

20     fire without any further explanation, without any reference to the rest

21     of the sentence, that it is and an extra order.  And that order, at least

22     in the information that I have, is -- is on no place specified because in

23     order to means that you formulate a clear effect, and I have seen some

24     target lists, we have debated about that in the past days.  Those target

25     list didn't gave also no effect, and I think we have to realise when you

Page 14764

 1     put out an order that you have to put a town under artillery fire, that

 2     you have to be very, very clear in what you mean by that.  Because why

 3     mentioning that powerful strikes should be done against command post,

 4     communication centre, artillery firing positions, and then suddenly say,

 5     And by putting ... why not specify it there?  I think that's crucial.

 6        Q.   Sir, I understand that -- that you -- you're -- I understand that

 7     you disagree with the terminology and I understand what you're saying is

 8     that you if you, in the Royal Dutch Army, were doing this, you would have

 9     been more specific, right?

10        A.   We would never use the term put a town under artillery

11     cease-fire.  No way.

12        Q.   Would you be specific?

13        A.   We would very specific.

14        Q.   That's pursuant -- excuse me, General, we're going too fast.

15             And would you be more specific because that would be done

16     pursuant to both your doctrine and your rules of engagement; correct?

17        A.   It has not only to do with doctrine and it has not only to do

18     with specific the rules of engagement.  It has do with the way do you

19     your command.  It has to do with the fact that once you make such generic

20     phrase in an order, in a mixed, in a complex situation like war is,

21     underlying commanders may understand wrong what is happening here, what

22     is meant from them.  What is asked from them.  Because specifically when

23     you translate this in a certain way, in this sentence, the order is

24     giving to fire at civilian targets.

25        Q.   Were you aware that prior to this order that the towns of Knin,

Page 14765

 1     Benkovac, and Obrovac and Gracac - put Drvar aside - those towns were off

 2     limits to HV artillery, pursuant to their rules of engagement.  Were you

 3     aware of that?

 4        A.   You mine before the Operation Storm started.

 5        Q.   Before Operation Storm?

 6        A.   I did not know that.

 7        Q.   Okay.  Now, if those towns were off limits this order is

 8     specifically notifying the artillery officers that you're now getting

 9     permission to fire on those towns that were previously off limits,

10     firstly; and secondly, that you are to fire on the military objective

11     listed in this paragraph?

12        A.   Sir, with all respect it does not state it.  It does not refer in

13     the whole order that restrictions are taken away and I would expect that

14     to be referred to at least.  And it still gives very simple but putting

15     in the word "and by," gives the authority to shell a complete city.  It

16     doesn't refer to the previous parts of that sentence because the word

17     "and by putting" is used.

18             I do not understand why such a sentence added to here without any

19     explanation as an extra to the already mentioned command post,

20     communication centre, and artillery firing positions because it

21     introduces in this task a new element, a non-explained element, which

22     again I told before, which has the possibility that artillery is directed

23     against non-military targets.

24             JUDGE ORIE:  Mr. Kehoe --

25             MR. KEHOE:  Yes, Mr. President.

Page 14766

 1             JUDGE ORIE:  We've --

 2             MR. KEHOE:  I'm moving to another subject.

 3        Q.   Let's take this order and let's go further.

 4             As a commander and you as an officer and General Gotovina as an

 5     officer, when you give an order you as a senior officer are entitled to

 6     presume that your subordinates are going to carry out that order in

 7     accordance with the laws of armed conflict; isn't that correct?

 8        A.   I presume I know it for the fact of my own organisation.  I

 9     cannot look into the head of General Gotovina or Croatian officers.

10        Q.   Well, the General -- the General accepted military practical that

11     you're familiar with, not only in NATO but throughout the world, is that

12     a senior officer unless he has evidence that his artillery group in this

13     instance that been randomly shelling civilian targets he is allowed to

14     presume that they are operating in accordance with the laws of armed

15     conflict; right?

16        A.   Then I do not understand why you -- why you create such a

17     misunderstanding or such a very vague order in order to avoid, as I said,

18     misunderstandings and complications in a complex operation.

19        Q.   I don't mean to cut you off, sir, but that is not my question,

20     with all due respect.

21             My question is:  And if we look back at -- I don't want to repeat

22     the whole thing, on line 14 it's on the screen there:  That general

23     accepted military practice, that you're familiar with, not only in NATO

24     but throughout the world.  Is that a senior officer unless he has

25     evidence that his artillery group in this instances has been randomly

Page 14767

 1     shelling civilian targets he is allowed to presume that they are

 2     operating according with the laws of armed conflict.

 3             Isn't that correct?

 4        A.   I can only answer the question for my own army.  I will -- so I

 5     will not answer this question.  I'm not able to answer your question.

 6        Q.   Well, let's look at what General Gotovina did because you didn't

 7     discuss this in your report.  We take this particular order and let's --

 8     if we go two lines down, he notes that in line with the established

 9     groups.

10             Do you see that?

11             "The chiefs of artillery in the operations group shall devise

12     artillery plans of use and plans of action each for the representative TS

13     artillery or for their MRL groups the TS or the TRS."

14             So General Gotovina is giving them specific orders to come up

15     with an artillery plan that entails artillery lists tabular textual

16     lists, et cetera; is that right?

17        A.   That's what the order says.

18        Q.   Okay.  Why don't you explain to the Court how this process goes

19     for the artillery group and the mapping, the coming up with the tabular

20     textual coordinates, et cetera, talk to us about that procedure that

21     General Gotovina is ordering?

22        A.   Well, this in fact means that the underlying artillery groups,

23     and I expect in combination with manoeuvre forces, plan the whole

24     operation, which means they -- they go into the -- the expected enemy,

25     the expected enemy behaviour.  They put against that their own courses of

Page 14768

 1     action that they have planned to do, and by doing that, they start

 2     preparing a list of planned targets, targets that are important that they

 3     expect to see on a certain moment in time on a certain location, and they

 4     start formulating for each of those targets what they want to do about it

 5     in that phase of the operation.

 6             And those targets are listed in what we call target lists or a

 7     target matrix or whatever it is; and that list specifies the target, the

 8     behaviour of the target, the elements of the target.  It specifies most

 9     and for all the effect that you want to achieve on that target, and it

10     can combine the delivery means that you want to use against it.  It is a

11     broad target matrix what you achieve then.  And those lists are used as a

12     basis forever the plan target because you also have the planned or

13     prepared targets but you have also unplanned target by opportunity and

14     that are the targets that pop up once are you in the battlefield and you

15     are fighting and something occurs that you didn't -- what you were not

16     able to plan for.

17             So what is said here in line with the established groups, the

18     chiefs of artillery and operating groups shall devise artillery plans of

19     use and plans of action, in itself, is a normal procedure.

20        Q.   Now, you would expect from this -- by the way, before we go down

21     the process from there.  I mean, do you have any evidence or have you

22     been shown any evidence that General Gotovina's subordinates

23     misunderstood this order to mean shell civilian targets or that they had

24     a green light to shell civilian targets?

25        A.   Well, in the underlying artillery order they in a separate line,

Page 14769

 1     not in the text but as a separate order they just repeated that, and in

 2     the target list that have I been shown I haven't seen anything back of

 3     that.  I haven't seen any effects.  I only have seen some targets that --

 4     well, we debated that:  Hospital, church, medical stations.

 5             But when you give the order, shell the city of Knin, you don't

 6     need to specify that.

 7        Q.   Okay putting aside this particular order you haven't shown any

 8     other documentation or seen any other documentation that noted there was

 9     some green light to attack civilian targets.

10             MR. RUSSO:  Your Honour, I think that question has already been

11     asked and answered.  I only say that this order could imply that.

12             JUDGE ORIE:  Mr. Russo.

13             THE WITNESS:  I'm not suggesting that.  I'm not suggesting that.

14     I only say that this order could imply that.  Sorry.

15             JUDGE ORIE:  Mr. Russo wants to intervene then we should give him

16     an opportunity to do so.

17             Mr. Russo.

18             MR. RUSSO:  Your Honour, I was just making the objection that

19     that question had been asked already an answered.

20             JUDGE ORIE:  Yes.  And -- well, the questions are slightly

21     different now and then but are apparently seeking similar or the same

22     answers, and I earlier indicated --

23             MR. KEHOE:  We will move ahead, Mr. President.

24             JUDGE ORIE:  Yes, and moving ahead means also making progress and

25     leaving behind you what is said.

Page 14770

 1             MR. KEHOE:  Yes, sir.

 2             JUDGE ORIE:  Please proceed.

 3             MR. KEHOE:

 4        Q.   Now let turn to the document that was -- the Prosecution put in,

 5     the map, P1274.

 6             Now, sir, this is the type of planning map that you would expect

 7     to see that indicates the general areas that you want to put indirect

 8     fire into, and I'm talking about the squares; is that right?

 9        A.   Yes, that's right.

10        Q.   And I think you focussed on the ones down that are down in the

11     Knin area and during cross we talked about many others.

12             Now within those squares you then would expect individual targets

13     to be identified with the grid coordinates; isn't that right?

14        A.   This overlay is a part of the whole operational plan or the

15     artillery plan and you have at one hand an overlay and at the other hand

16     that's combined with the target list and the target list gives you the

17     grids.

18        Q.   And what we do is we go from the macro, the large plan, and move

19     down the steps to the next item, which is P1271.  Putting aside your

20     disagreement of the terminology on church and hospital, this is the type

21     of target list with the grid coordinates you would expect to take from

22     the larger map, down to a table that identifies the targets with grid

23     coordinates; right?

24        A.   With the exception that in this type of list there is nowhere an

25     effect required mentioned.  So I cannot really judge what -- what the

Page 14771

 1     troops had to achieve here.

 2        Q.   Well, when you say effect, that's something that your doctrine

 3     requires in an order.  There is no law of armed conflict that requires an

 4     order to have effect?

 5        A.   No.

 6        Q.   So just going down to this particular target list this is what

 7     you would expect to see.

 8             And then if we go to P1272, this is yet a further artillery prep

 9     document with those coordinates and the time of actual fire.

10             So, Colonel, going back to P1125, page 14, towards the bottom of

11     the page, from the evidence that you saw, in fact General Gotovina's

12     subordinates did in fact follow his order and the chiefs of artillery

13     devised artillery plannings and use and plans of action for each of their

14     respective units or the artillery groups; isn't that right?

15             JUDGE ORIE:  Mr. Russo.

16             MR. RUSSO:  Your Honour, I'm going to object because the question

17     is based on the assumption that what he has been shown the map and the

18     two target lists were drawn up by the chiefs of artillery.  I don't think

19     that has been put to the witness.

20             JUDGE ORIE:  Apart from that, Mr. Kehoe, what exactly are you

21     seeking?  Are you seeking the witness to interpreter this document.

22             MR. KEHOE:  Of course, [Overlapping speakers] ... that given what

23     he has been shown that he can conclude that General Gotovina's

24     subordinates followed his orders, came up with the artillery plan with a

25     map, tabular textual sheets that have grid coordinate, et cetera.

Page 14772

 1             JUDGE ORIE:  Yes.  Whether at least it was reported to him what

 2     they done and that whether this witness agrees that this was in line with

 3     the order given.

 4             MR. KEHOE:  Yes.

 5             JUDGE ORIE:  Could you answer the question.  If you need more

 6     time to read it, tell us.  If not, please answer the question.

 7             THE WITNESS:  Everything you showed me, as far as my opinion is,

 8     my judgement of the operational order is in line with the order with the

 9     exception of any logic explanation of the sentence, and by putting the

10     towns of Knin under artillery fire.  Because the task of the artillery

11     group is clearly stated, support main forces in offensive operations

12     through powerful strikes against the enemy front line, command post,

13     communication centres, artillery positions.

14             For that purpose, that is it clear enough because they are all

15     military targets.  That is clear enough.  For all that purpose, target

16     lists have been build, plans have been made, maps have been drawn.

17     That's all very logic.  But those plans that I have been shown, those

18     artillery target lists that I have been shown do not reflect the point by

19     putting the towns of Drvar, Knin under artillery fire.  I think that is

20     an extra, understand necessary order that is given in this and is not

21     reflected in the points that you showed me.

22             That is my opinion, whatever you think about that.

23             MR. KEHOE:

24        Q.   So let's go to P64 for our final document on this score.

25             Once again, looking at Colonel Hjertnes's conclusions that the --

Page 14773

 1     the general shelling was concentrated against military objectives and if

 2     we look back -- and this is just for Knin.  And if we look back at the

 3     order, the order says to hit command posts, communication centres,

 4     artillery positions.  What in fact happened in Knin was that military

 5     objectives, pursuant to this order, command posts, communication centres,

 6     and artillery positions, were in fact hit by the HV and according to

 7     General Hjertnes they were all concentrated -- not all.  They were

 8     concentrated around those targets; isn't that right, sir?

 9             JUDGE ORIE:  Mr. Russo.

10             MR. RUSSO:  I object to this question because the P64 clearly

11     doesn't indicate and Hjertnes is not indicating that command posts,

12     communication centres, or artillery positions were hit.

13             JUDGE ORIE:  Mr. Kehoe, you're asking again, again to the witness

14     what happened.  And I already tried to assist you in rephrasing your last

15     question because this witness apparently has no personal observation.  He

16     can read the documents as we can do.  And then, of course, you could ask

17     him whether this document is an indication for a report that is in line

18     with.  That's something which could be understood.

19             But you ask him again and again, Isn't this what happened?  He

20     apparently doesn't know.

21             THE WITNESS:  I don't know.

22             JUDGE ORIE:  But if you phrase your questions correctly, you will

23     certainly avoid any objections by Mr. Russo and, of course, the point is

24     perfectly clear what keeps you and Mr. Konings divided.

25             MR. KEHOE:  I understand.

Page 14774

 1             JUDGE ORIE:  Yes.  That point is perfectly clear.  So --

 2             MR. KEHOE:  Mr. President, I understand and if I ask one last

 3     question, I will sit down and you won't hear from for the rest of the

 4     day.

 5             JUDGE ORIE:  That's not what I'm aiming ago.

 6             MR. KEHOE:  I understand I'm just being --

 7             JUDGE ORIE:  Yes, yes, and I'm responding with just a similar

 8     smile on my face as I see on yours.

 9             Please proceed.

10             MR. KEHOE:  Yes.

11        Q.   General -- Colonel, apologies.  You can be a General, I believe

12     you.  Just promoted you.

13        A.   Thank you very much.

14        Q.   Colonel, isn't paragraph 2 in P64 an indication that when they

15     were firing on Knin, the firing was on command posts, communication

16     centres, artillery positions, such as was ordered by General Gotovina in

17     P1125.  Isn't that an indication of that?

18        A.   It is it only an indication that the fire was concentrated

19     against military objectives.  I do not know which objectives.  I really

20     don't know, and it also says that there is damage caused to civilian

21     establishments.

22             And I would clearly like to disconnect this -- what happened in

23     practice, with the intention that I read in the order of General Gotovina

24     with that specific sentence.

25             MR. KEHOE:  Mr. President, might I just have one moment?

Page 14775

 1                           [Defence counsel confer]

 2             MR. KEHOE:

 3        Q.   And one last question, Colonel.

 4             Your knowledge concerning General Gotovina's intentions in these

 5     regards are strictly what you read or what you have been provided by the

 6     OTP.  You don't have any other information on that, do you?

 7        A.   I do not have any other information.

 8        Q.   Colonel, thank you very much.  You have been very patient with my

 9     questions, and I appreciate it.

10             MR. KEHOE:  Mr. President.  I have no further questions.

11             JUDGE ORIE:  Thank you, Mr. Kehoe.

12             No cross-examination by the Cermak Defence.

13             Mr. Kuzmanovic for the Markac Defence.

14             Mr. Konings, Mr. Kuzmanovic is counsel for Mr. Markac, and he'll

15     now cross-examine you.

16             MR. KUZMANOVIC:  Thank you, Your Honour.

17                           Cross-examination by Mr. Kuzmanovic:

18        Q.   Good morning, Mr. Konings.

19        A.   Good morning.

20        Q.   Colonel, it's fair is it not to state that in the reports that

21     you were provided there is no opinion critical of, or even discussion of,

22     or an awareness of the Ministry of Interior special police and their use

23     of artillery in Operation Storm; that's correct, is it not?

24        A.   That's correct, sir.

25        Q.   Do you know who, if anyone, controlled the use of artillery for

Page 14776

 1     the Ministry of Interior special police in its axis of attack?

 2        A.   No, sir, I do not know.

 3        Q.   Were you even aware that the Ministry of Interior special police

 4     had artillery at its disposal in its axis of attack?

 5        A.   No, sir.  I concentrated fully on those aspects that we discussed

 6     before, the three days.

 7        Q.   It's fair to state that the Office of the Prosecutor in this case

 8     never spoke to you about any specific issues relating to the use of

 9     artillery in Operation Storm by the special police.

10        A.   Not that I can recall now, no.

11        Q.   Were you -- did the Office of the Prosecutor speak with you at

12     any point in time about the testimony of a gentleman by the name of

13     Josip Turkalj?  Does that name ring a bell to you?

14        A.   No, not at the moment, no.  No.

15        Q.   It's fair to say that you don't flow who Josip Turkalj is;

16     correct?

17        A.   I have no include.

18        Q.   Did the Office of the Prosecutor at any point in time discuss

19     with you the testimony of a gentleman by the name of Mile Sovilj?

20        A.   No.

21        Q.   And again it's fair to say that are you unaware of who

22     Mile Sovilj is; correct?

23        A.   That's fair to state.

24        Q.   Your report made a fairly long analysis regarding artillery use

25     in Knin.  There is no analysis in your report of the use of artillery in

Page 14777

 1     Gracac, Obrovac, or Benkovac; correct?

 2        A.   That's correct.

 3        Q.   As a result, you do not know whether or not there were any

 4     civilian casualties as the result of artillery use in Gracac, Obrovac, or

 5     Benkovac; correct?

 6        A.   That's correct.

 7        Q.   And you were not aware of what collateral damage occurred, if

 8     any, as the result of the use of artillery in Gracac, Obrovac, or

 9     Benkovac; correct?

10        A.   That's correct.

11        Q.   At no point in time during the course of the Operation Storm did

12     the military of the ARSK or their civilian authorities proclaim any of

13     the cities in Sector South, in particular, to be a free or open city;

14     correct?

15        A.   I haven't been reading such a text in any of the documents that I

16     had.

17        Q.   Other than in Knin, did the Office of the Prosecutor make you

18     aware of any military targets in places like Gracac, Benkovac, or Otocac?

19        A.   No.

20        Q.   There was some discussion regarding Exhibit P1273, and for

21     purposes of my question, we don't need to pull that.

22             If you can recall, Colonel, that was the map of Poskok 93 with a

23     list of targets and there was some discussion regarding some of those

24     targets using a word "stacionar," which in some instances was interpreted

25     as a medical station.

Page 14778

 1             Do you remember that discussion in your direct examination?

 2        A.   Yes.

 3             MR. KUZMANOVIC:  I'd like the registrar to please pull up

 4     1D65-0257.

 5        Q.   This particular document is dated the 29th of July, 1995.  And it

 6     isn't specifically related to artillery, but if you will see in

 7     paragraph 3, on the B/C/S version of the document, there is the use of

 8     the word "stacionar," and it is translated in this particular document to

 9     mean stationary facility and not medical facility.

10             Were you given any information at all, Colonel, about whether or

11     not "stacionar" meant anything other than medical facility?

12        A.   Well, as far as I can recall, we have never debated about the

13     word "stacionar."  I have been shown the target list where the word

14     medical station came on, and I only have one explanation for the word

15     medical station.

16        Q.   Okay.  For example in paragraph 3 of this order, and I will read

17     it.  It says:  "After the handover of positions, the POB shall withdraw

18     to the Sveti Filip i Jakov stationary combatant accomodation with the

19     task of conducting preparations for occupying the pp."

20             In this particular context at least stationary combatant

21     accommodation is a place in which troops are quartered; correct?

22             JUDGE ORIE:  You're reading apparently from a translation which

23     is not the same as I have on my screen.

24             MR. KUZMANOVIC:  I'm sorry, Your Honour.

25             JUDGE ORIE:  You apparently are reading from a translation which

Page 14779

 1     is not the same as I have on my screen.

 2             MR. KUZMANOVIC:  I will read it from the screen, Your Honour, if

 3     it's -- I have a hard copy.

 4             JUDGE ORIE:  Especially because there is just one word that you

 5     read, which might be relevant in this context.

 6             MR. KUZMANOVIC:  Thank you, Your Honour.

 7        Q.   Yes, the word is in my document, in my hard copy different from

 8     the document on the screen, you're correct, Your Honour.  I will read

 9     from the screen.

10              "After the handover of positions the POB shall withdraw to the

11     Sveti Filip i Jakov stationary facility with the task of conducting

12     preparations for occupying the pp."

13             And I will get back to my previous question, Colonel.  At least

14     in this particular order, "stacionar" is not referenced as a medical

15     facility?

16        A.   Well, apparently it says here stationary facility which can mean

17     well, a lot of things.

18             MR. KUZMANOVIC:  Your Honour, I'd like to tender this.

19             JUDGE ORIE:  Yes.

20             Mr. Russo.

21             MR. RUSSO:  No objection, Your Honour.

22             JUDGE ORIE:  Then, Mr. Registrar, the number would be ...

23             THE REGISTRAR:  Exhibit D1269, Your Honours.

24             JUDGE ORIE:  Exhibit D1269 is admitted into evidence.

25             I immediately add to that, Mr. Kuzmanovic, that resolving an

Page 14780

 1     issue of interpretation but putting another document for which also

 2     exists apparently, two different translations might add to the confusion,

 3     rather than to resolve it.

 4             What I would very much like to know, as a matter of fact, I take

 5     it that Saint Filip and Jakov I think that's -- SV stands for saint, but

 6     I'm not quite sure about that, would refer to an existing facility.  I

 7     don't expect them to invent new names.

 8             Now, what I, of course, would like to know is what the facility

 9     was apparently in this area which was known by the name Saint Filip and

10     Jakov rather than to further focus on confusing translation issues.  I

11     don't know whether you come to that or not.  But --

12             MR. KUZMANOVIC:  Your Honour, I guess the whole purpose of using

13     this particular item was just to show the Court there are multiple

14     meanings to the word -- for the use of the word "stacionar. "

15             JUDGE ORIE:  Well, if Saint Filip and Jakov was a medical

16     facility.  I don't know.  I've got no idea what they did there, whether

17     they were baking break or whether -- [Overlapping speakers] ...

18             MR. KUZMANOVIC:  Your Honour, that's a city.  It's a city in

19     Croatia.

20             JUDGE ORIE:  It's a city.

21             MR. KUZMANOVIC:  I follow you now.  I didn't quite understand.

22             JUDGE ORIE:  Because in the translation it says the Saint Filip

23     and Jakov stationary.  I don't know whether that was a name of a village

24     or of a stationary and then of course what stationary was referred to in

25     this document is at least from the mere reading of it not clear.

Page 14781

 1             Apparently a stationary of whatever kind, now I understand within

 2     this village.  It -- the only thing it -- it makes it more complex and

 3     not to blame you for making matters that are complex showing that they

 4     are complex; but I think I invited the parties to see whether there was

 5     any better linguistic approach but a very practical approach could help

 6     as well.

 7             MR. KUZMANOVIC:  We could do that, Your Honour, and we haven't

 8     had the chance to do that.

 9             JUDGE ORIE:  Mr. Misetic.

10             MR. MISETIC:  Mr. President, I apologise for the interruption.

11     Mr. Russo and I, as a matter of fact this morning, talked that we need to

12     resolve that issue as soon as possible.  I do want to state, however,

13     what with respect to your asking what does stationary facility mean,

14     the -- in the context of Sveti, Saint Filip and Jakov, we'll certainly

15     look into that for you.  However it is just our position that it just

16     means in a military context any fixed, hard facility which could mean

17     anything it could mean a school, it could mean a house, it could mean ...

18             JUDGE ORIE:  Well, that's the issue whether it has the medical

19     connotation necessarily or not; I think that's the issue.

20             MR. MISETIC:  Well, but -- from our perspective, Judge, obviously

21     in someplace, somewhere it could have meant a specific medical facility

22     that was being used for a military purpose, a fixed facility.  What I'm

23     saying is it's a general term that can mean any facility that is fixed.

24             So here we could find out what was there in that particular

25     village but we would have to do it on a case-by-case basis.

Page 14782

 1             JUDGE ORIE:  Because Mr. Russo has presented us with a dictionary

 2     which gives a more specific meaning.  Whether or not that is a good

 3     dictionary or not is still to be seen.  That, of course, keeps you apart

 4     whether it is a very general term or whether it has a specific

 5     connotation, medical facility.  And I don't know Saint Filip and Jakov,

 6     whether it brings up any further or whether it throws us further back is

 7     still to be seen.

 8             Please proceed.

 9             MR. KUZMANOVIC:  Thank you, Your Honour.

10        Q.   Colonel, you have no evidence or you have not received any

11     evidence any way with regard to whether medical stations were actually

12     hit by artillery in -- in Operation Storm; correct?

13        A.   I have no information on that.

14        Q.   Your CV is P1258 and I just have a general question about your

15     background, Colonel.

16             At least from my interpretation from the CV it is silent whether

17     have you commanded a field artillery unit in combat.  Can you tell us

18     whether you did so or whether you did not?  And maybe I misread the CV.

19             Have you ever commanded a field artillery unit in combat?

20        A.   No.

21        Q.   Has the Office of the Prosecutor ever given you any estimation

22     what the amount of civilian casualties were in any of the cities or

23     villages during Operation Storm as a result of artillery?

24        A.   We might have touched on some figures.  But I cannot recall that

25     now, it's apparently too long ago.  I don't know that, so the answer is

Page 14783

 1     no.

 2        Q.   At least none of that is contained in your report; correct?

 3        A.   It is not contained in my report.

 4        Q.   And you said you were in Sarajevo for a considerable period of

 5     time; correct?

 6        A.   I have been in -- stationed in Sarajevo for nearly seven month,

 7     yes.

 8        Q.   From when to when?

 9        A.   From April 1995 up to the end of October 1995.

10        Q.   So during the course of Operation Storm, you were actually in

11     Sarajevo?

12        A.   I was actually in Sarajevo.

13                           [Defence counsel confer]

14             MR. KUZMANOVIC:  Thank you, Colonel, I don't have any further

15     questions.

16             JUDGE ORIE:  Thank you, Mr. Kuzmanovic.

17             Mr. Russo, any need to re-examination the witness.

18             MR. RUSSO:  Yes, Mr. President.

19             JUDGE ORIE:  Please proceed.

20                           Re-examination by Mr. Russo

21             MR. RUSSO:  Thank you.

22        Q.   Colonel, just to address one of the last questions you got

23     Mr. Kuzmanovic asked you if you had ever commanded an artillery unit in

24     combat.  Can you tell the Chamber whether the laws of armed conflict as

25     you understand them, and as you were educated in them, whether they apply

Page 14784

 1     the same in combat situations and in non-combat situations?

 2        A.   Well, it depends on how you describe the word combat.  I think

 3     laws of armed conflict are -- are in -- in application throughout any

 4     kind of conflict, and currently we don't make any difference anymore

 5     between a combat operation or a peace support operation.  We talk about

 6     the involvement of military forces inside any operation in a conflict and

 7     as far as my knowledge goes, the application of violence the application

 8     of military means is subject to the laws of armed conflict, no matter you

 9     talk about combat yes or no because the definition, the description of

10     combat is the application of military violence against a responsive

11     enemy.  That's what we describe on combat.

12             So combat can occur inside a peace support situation.  It is not

13     necessarily that we talk about a state to state to conflict in which

14     large armies are combatting each other.  Combat also occurs in an

15     irregular situation, like in Afghanistan, where what we have depicted to

16     be counterinsurgency.

17             So I think that -- that all is applicable -- to all the

18     situations the laws of armed conflict is applicable with my knowledge.

19        Q.   Thank you.  Now, Colonel, you were asked some questions by

20     Mr. Kehoe regarding the military advantage of destroying enemy cohesion

21     by means of fear, panic, shock, and surprise.

22             If you recall that, can you tell the Chamber whether artillery is

23     the only means by which one can achieve these effects against an enemy?

24        A.   No, definitely not.  There are much more means available.

25        Q.   Would you mind giving the Chamber just an example or two of what

Page 14785

 1     else can be done, other than the use of artillery?

 2        A.   Well, every weapon system that you have in your inventory that

 3     can range from the use of small-arms up to the use of close air support

 4     or even larger -- the use of larger air assets, like bombing planes,

 5     everything have you in between, the use of lethal means will cause panic

 6     or chaos and, of course, have you a whole variety of what we try to

 7     summarise under the word information operations where you can use

 8     psychological warfare or where you can try to use everything from the

 9     non-lethal means that have you available to cause panic, to cause fear,

10     you can threat [sic] people.  If people are sensitive for that, you don't

11     need to use your weapons.  If you threat people that you will do such,

12     such and such when you come somewhere, people might panic already by

13     that.

14        Q.   Thank you.  You were also shown some evidence about the use of

15     railroads by the ARSK to move ammunition sometime between the end of

16     July and the 5th of August, 1995.

17             None of this evidence included any reference to the ammunition

18     being actually in Knin itself or being moved through the town of Knin

19     itself --

20             MR. KEHOE:  [Overlapping speakers] ...  leading nature of this

21     question, Your Honour, if he wants to go into a particular document,

22     that's fine, but a speech by the counsel is not appropriate.

23             JUDGE ORIE:  Mr. Russo, would you please reformulate your

24     question.

25             MR. RUSSO:  Certainly, Mr. President.

Page 14786

 1        Q.   Now, in asking about the use of the railroads, Mr. Kehoe asked

 2     you the following, and this occurred at 14684, line 2, to 14688 line 7,

 3     this discussion.

 4             Mr. Kehoe asked you:

 5             "Now if in fact, Colonel, the ARSK was using these railway lines

 6     to move ammunition and if in fact there was some activity in these

 7     railway lines on the 4th, you would agree with me that the HV could

 8     achieve a significant military advantage by attacking those rail lines

 9     and preventing the ARSK from moving any of this ammunition.  Isn't that

10     right?"

11             Your answer was to that that, yes, that was right.

12             What I'd like to ask you, Colonel, is if the HV could have used

13     artillery to attack the rail lines at choke points outside of Knin, which

14     were not in the direct environment of civilians why would it be

15     reasonable in your opinion for them to choose instead to shell the main

16     railway station and railway yards inside Knin?

17        A.   Well, I don't know the background of the choice they made to --

18     to shell the main railway station and the reasons that were behind that,

19     but I look to it in the following way, is that when you try to destroy or

20     stop a -- an ammunition convoy on the train, first of all, you have to

21     realise that when do you that, you might cause a lot of devastation when

22     a train like such depending on the amount of ammunition is in there blows

23     up, and that happens inside a civilian-populated area you will have a

24     major disaster.  That's the first thing you have to realise.

25             Secondly, when you choose -- no.  When you decide to that on a

Page 14787

 1     major railway station, you might destroy a significant part of that

 2     railway station, including tracks, including infrastructure.

 3             JUDGE ORIE:  I think we're moving away from what the question

 4     was.

 5             THE WITNESS:  I'm sorry.

 6             JUDGE ORIE:  You were asked by Mr. Kehoe whether -- if railway

 7     lines are used for transportation of ammunition, whether the HV could

 8     achieve a significant military advantage by attacking those rail lines

 9     and preventing the ARSK from moving this ammunition.

10             Now, what Mr. Russo asks you is would it be reasonable to attack

11     the rail lines in a city or would it be more reasonable to do it outside

12     the city, and you are introducing new elements such as trains exploding

13     and that appears not to be the focus of the question.

14             Please proceed -- could you please focus your answer on that

15     question.

16             THE WITNESS:  Then the answer is simple, I would do that outside

17     the city.

18             MR. RUSSO:

19        Q.   And likewise with the Senjak barracks Mr. Kehoe showed you some

20     evidence that the ARSK had plans to move quartermaster materiel from this

21     location and told you that this was the main logistics supply centre for

22     the 7th Krajina Corps.  This was at transcript pages 14677, line 23, to

23     14680, line 10.

24             Now again, Colonel, if the ARSK could have used artillery to

25     attack logistic supply convoys in an area outside of Knin, which did not

Page 14788

 1     endanger civilians, would it be reasonable in your opinion for them to

 2     choose instead to fire in the city or outside the city?

 3             JUDGE ORIE:  Mr. Russo, your question is certainly confusing,

 4     because the questions put by Mr. Kehoe was an attack to a fixed facility,

 5     isn't it?  And now you are introducing a new element that is convoys,

 6     which are moving --

 7             MR. RUSSO:  I believe the evidence that Mr. Kehoe presented was

 8     the destruction of trucks inside the Senjak barracks.

 9             JUDGE ORIE:  I think what he introduced was a report in which it

10     was said that three trucks were demolished but in such a way that it did

11     not suggest, and I'm just talking from the top of my head, it said three

12     trucks were destroyed but whether that was part of it, consequence,

13     whether it was an introduction to whether the destruction of these trucks

14     would have made it more difficult to perform the functions that was at

15     least rather unclear for me from that document.

16             So I'm -- I have some difficulties in putting questions on

17     attacking convoys to say isn't that -- if you are talking about the

18     function of supply, which is you have your supplies somewhere, then you

19     move them to a place where they are needed and what would be the best --

20     but it's now just as if you say, Do it outside the city, but then, of

21     course, you would have to wait until they start moving, isn't it?  And if

22     the trucks are destroyed it might well be that there is no ability to

23     move them anymore.

24             So it's a rather complex matter, and if you want to deal with the

25     matter with the witness, fine, as far as I'm concerned.  But then let's

Page 14789

 1     clearly analyse on the basis of the documents what we exactly see, what

 2     the question is, what the -- apparently what you're hinting at

 3     alternative options, what they exactly are and not mix everything up.

 4             Please proceed.

 5             MR. RUSSO:  Yes, Mr. President.

 6        Q.   Colonel, what would be the military advantage in attacking a

 7     logistics supply base in any event?  What's the military advantage to be

 8     gained from attacks logistics supply?

 9        A.   Logistics supply form the basis for -- for an operation, so

10     depending on the role of a specific logistical supply base, and the

11     amount of supplies that troop in the field have available, that can --

12     attacking a logistical supply base can have -- can mean a significant

13     military advantage.

14        Q.   I'd like you to describe what -- how you achieve that.  If the

15     supplies just stay in the logistics facility and they are not moved out

16     to anyone on the front line or anywhere what advantage is there in

17     attacking that facility?

18        A.   Well, in itself, then there is no direct advantage to be achieved

19     in attacking that -- that logistical base.  And then various factors come

20     into the decision-making process whether to do that, yes or no.  You can

21     anticipate on what you expect that that logistical base will do in the

22     future and take nevertheless the decision that you want to destroy it.

23     That's very hard to give any exact meaning about without knowing any

24     further specifics.

25             JUDGE ORIE:  You're using the word nevertheless.  Let me try to

Page 14790

 1     see whether I can understand.

 2             I have a logistical supply base that I have to provide the units

 3     wherever they are with whatever is in this supply base.  Now wouldn't

 4     that save a lot of efforts to destroy the supply bases rather to wait

 5     until one truck is moving to the north, you have to hit it when it's

 6     moving; another truck is going to the south, have you to hit it when it's

 7     moving; then the next day new trucks come in and start transporting.  I

 8     mean, merely from a point of view of efficiency.  If you paralyse the

 9     supply system as a whole, you don't have to attack five or ten or 20

10     trucks trying to distribute the supplies.

11             THE WITNESS:  It depends on the function of that specific

12     logistical base, Your Honour.  If that is the only logistical base in

13     the -- for an operation of an army, then you are absolutely right.  But

14     you can have -- in most times you have situation that logistical bases

15     are split up and that each subunit has its own smaller supply area and --

16             JUDGE ORIE:  Which is then fed by the main supply?

17             THE WITNESS:  Well, yes.  But so if you dry up that main supply

18     area, but there are also situations that -- from a central airport, the

19     smaller supply areas are -- are supplied, and then the convoys are coming

20     in.  What you see in Afghanistan now is that convoys are the Achilles'

21     heel not the supply areas but convoys are the Achilles' heel in bringing

22     stuff from Pakistan up to Afghanistan.

23             So it is both.  I fully agree with you if you have a large supply

24     base.  You can take that out for several weeks then you will hamper the

25     operation.

Page 14791

 1             JUDGE ORIE:  We were fed with evidence that it was the main

 2     supply bases now.  I can imagine that -- I try to understand what the

 3     word quartermaster exactly meant.  But from what I understand but please

 4     correct me if I'm wrong.  He can take care of the military uniforms and

 5     the socks to be resupplied but also ammunition.

 6             I mean, main supply, of course, is a rather generic term.

 7             MR. RUSSO:  I believe it was put to the witness that the Senjak

 8     barracks was the main supply for the 7th Krajina Corps.

 9             JUDGE ORIE:  Yes, but I still then do not know whether it is

10     about socks, whether it's about food, whether it's about ammunition,

11     whether it's about spare parts for vehicles.

12             MR. RUSSO:  Again, Your Honour, I don't think that is something

13     that we can come to agreement on.

14             MR. KEHOE:  Yes, I mean, I think that it is the main supply depot

15     for everything.

16             JUDGE ORIE:  For everything.

17             MR. KEHOE:  That's not to say that they weren't -- some of their

18     locations up near the front that the Colonel was talking about.

19             JUDGE ORIE:  Only for you to know that in order to fully

20     understand the issue, it -- it might assist the Chamber in knowing what

21     was supplied from there.

22             MR. RUSSO:

23        Q.   Now, Mr. Kehoe also asked you about the St. Ante monastery where

24     according to the facts you were asked to assume the headquarters of the

25     special police forces were located and this was at transcript pages --

Page 14792

 1     page 14659, lines 18 to 22.

 2             Mr. Kehoe also told you that 20 cases of ammunition were found in

 3     that monastery after the operation.  Now can you tell the Chamber whether

 4     even assuming that those 20 cases of ammunition were in fact in that

 5     monastery whether that would change the opinion you expressed in your

 6     addendum regarding whether it would be reasonable to shell that

 7     particular facility.

 8        A.   No, it will not change my opinion.

 9        Q.   Thank you.  And Mr. Kehoe also read to you from the book of a

10     former ARSK officer, indicating that the Guards Brigade of the special

11     unit corps of the ARSK had abandoned their positions on the Dinara and

12     assembled in the norther barracks prior to Operation Storm and this

13     appears at transcript pages 14667, line 10 to 14668, line 1.

14             Now, Colonel, if this is what actually happened and more

15     importantly if this is what General Gotovina believed to have happened at

16     the time and believed that this unit had abandoned its position on the

17     Dinara and assembled in the northern barracks is that the kind of

18     information he would expected him to pass along to the artillery units

19     whom he was ordering to fire at the northern barracks?

20             JUDGE ORIE:  Mr. Misetic, I take it that you would expect

21     Mr. Kehoe to object for leading is that what I understand from --

22             MR. KEHOE:  What the -- the problem being raised by Mr. Misetic

23     is that the actual fact that counsel is referring to this Guards Brigade

24     in the northern barracks is actually in P1125 which of course I would

25     have raised again in redirect, but now that we're on the subject - I can

Page 14793

 1     at the break - go and talk to my learned friend and show him where in

 2     that order the actual Guards Brigade is listed as being in Knin.

 3             MR. RUSSO:  I'm happy to do that, Your Honour.  I was actually

 4     going to show the witness the order where --

 5             JUDGE ORIE:  Let's -- I do understand the concern about leading

 6     and what you are putting to the witness.  If you would ask him questions

 7     about the documents that and then formulate them in rather neutral terms

 8     that would be preferred.

 9             MR. RUSSO:  Sure.  If we could have Exhibit P1125.

10             And we'll be going to page 3 in the English and also the same in

11     the B/C/S.

12        Q.   Looking, Colonel, at the first paragraph where it indicates

13     information about the enemy, General Gotovina lays out whom they're

14     facing.  It indicates in the area of responsibility of the Split Military

15     District the Operational Group north is confronted with the forces of the

16     7th Knin Northern Dalmatia Corps, the 2nd Drvar Krajina Corps, the

17     special forces corps and -- of the ARSK, and parts of the 1st Banja Luka

18     Krajina Corps and the Drnis corps with about 15.000 troops.

19             And then he lays out how those forces are grouped themselves.

20             MR. RUSSO:  And if we move over to the next page, you will see up

21     at the top the second paragraph indicates that the combat group Dinara

22     comprised part of the forces of the 7 Knin Corps units, the Knin MUP,

23     Ministry of Interior battalion and part of the special forces or special

24     units that were indicated earlier.

25        Q.   Now, if we move even further down to the paragraph where it says:

Page 14794

 1     "In the area of Knin."

 2             It says:

 3             "In the area of Knin the enemy has the following reserve forces.

 4     Part of the KSS, Mindjusari Ear-ring Wearers, reconnaissance, sabotage

 5     company up to 800 conscripts and on the right axis as an operational

 6     reserve there is currently the 5th Glamoc," I believe, that it is light

 7     anti-armour brigade, I'm not positive, LPBR.

 8             In any case the following paragraph indicates that in addition to

 9     the aforementioned units there will be support from the airport -- the

10     air force at Udbina and Banja Luka airfields and if we could move to the

11     last paragraph of that section you will see it indicates:

12             "In addition to the problems with personnel reenforcements in

13     this area, the enemy is also encountering problems with a lack of

14     equipment and ammunition manoeuvring impediments, inadequacy of the

15     command system, increasing defeatism a drop in morale, insecurity and

16     panic, particularly in Knin and Drvar."

17             Now, in laying out the forces whom they are facing and where they

18     are and particularly the information of who is in the area of Knin you

19     will see that it doesn't indicate the portions of the 7th Krajina Corps

20     or the -- I am sorry the special unit, Guards Brigade being in the

21     northern barracks --

22             MR. KEHOE:  Excuse me, Your Honour.

23             JUDGE ORIE:  Mr. Kehoe.

24             I asked you to focus on the documents and you are now telling the

25     witness what is not in the document.  We could ask him whether he sees

Page 14795

 1     something in the documents, whether it's -- gives a clue.  Then you can

 2     ask him whether he has explanation or what he would expect.  But you

 3     are -- you have not finished your question, but you were at the risk to

 4     suggest an answer, which, of course, makes the question a leading

 5     question.

 6             Please proceed.

 7             MR. RUSSO:  Yes, Mr. President.

 8        Q.   Colonel, is this where you would expect to find some information

 9     regarding the location of the units that General Gotovina desired to

10     attack?

11        A.   This part of an operational order in the paragraph of enemy is a

12     generic description.  I would expect to see the more detailed

13     organisational aspects of this in annexes of this order, where you

14     describe the specific locations of enemy, with grids, et cetera,

15     et cetera.

16        Q.   Thank you.

17             MR. RUSSO:  Your Honour, I think it is probably time for a break

18     before I move to my next topic.

19             JUDGE ORIE:  It is time for a break.

20             We will resume at 11.00.

21                           --- Recess taken at 10.36 a.m.

22                           --- On resuming at 11.15 a.m.

23             JUDGE ORIE:  The Chamber apologises for the late start.  At the

24     same time, the Chamber finds itself in a situation where time appears to

25     be left today which we had not expected then asked for some additional

Page 14796

 1     preparation.

 2             Mr. Russo, please proceed.

 3             MR. RUSSO:  Thank you, Mr. President.

 4        Q.   Colonel, you were asked a number of questions yesterday regarding

 5     the military advantage of knocking out communications systems and

 6     communications centres.  And I'd just like to ask you, whether artillery

 7     is the only means by which one can disable or disrupt the communications

 8     systems of the enemy?

 9        A.   No.  Artillery is definitely not the only means.

10        Q.   And let's deal first with radio communications.  Can you give the

11     Chamber some examples of how else one might disrupt or disable radio

12     communications of an enemy.

13        A.   Other possibilities are the usage of other lethal means that you

14     have available, like depending on the value of that specific

15     communication system or station the use of aircraft with special -- with

16     guided missiles available, or you can also use non-lethal means I mean by

17     that germing or electronic war fare.

18        Q.   Would destroying the radio relay stations of an enemy's radio

19     communication system would that knock out their long-range radio

20     communications capabilities?

21        A.   Well, I cannot be specific in that.  It depends on how the system

22     is laid out.

23             If in the case that this is the only -- if there is only one

24     long-range radio relay system, if you knock that out, you will bring down

25     the whole system.

Page 14797

 1        Q.   And with respect to land line communication systems -- first of

 2     all how can you use artillery to disrupt a land line communication

 3     system?

 4        A.   As artillery has the capacity to destroy things or to neutralise

 5     things, and if you are -- if have you available the information about how

 6     the land lines are constructed and laid out in the terrain or

 7     concentrated in a certain area, for example in a building then in itself

 8     artillery can be one of the choices to try to take that out.

 9        Q.   Are there means other than artillery that you could use to

10     disable or disrupt land line communication systems?

11        A.   Well, I think that every mean in your inventory is one, is one

12     possibility.  You can use precision strike with aircraft to take out a

13     the concentration point of land lines, provided they are military.  You

14     can send in a Special Forces team to destroy a very important crossing

15     point of land lines.  So there are various possibilities.

16             JUDGE ORIE:  May I invite Defence counsel from refrain from face

17     expressions which are not primarily an expression of a thorough

18     understanding and appreciation of what the witness tells us.

19             Could I ask for your professional attitude in this respect.

20             Please proceed.

21             MR. RUSSO:  Thank you, Mr. President.

22        Q.   I'd like to refer to one of the US manuals that was shown to you

23     by Mr. Kehoe.

24             MR. RUSSO:  Madam Registrar, if we could please have

25     Exhibit D1264.

Page 14798

 1             And if we could move to -- I believe it's the last page.  The

 2     last uploaded page was page 15.

 3        Q.   And concentrating there at subsection 2 which is towards the

 4     middle of the page it indicates:

 5             "The direct fire system is the most effective fire support in

 6     built-up area.  Once a target has been [sic] located in a building one or

 7     two direct fire rounds can accomplish what entire salvos of indirect

 8     artillery cannot."

 9             JUDGE ORIE:  Mr. Russo, you read, "has been located" where the

10     text is "can be located. "

11             MR. RUSSO:  My apologies, Mr. President.

12             JUDGE ORIE:  Please proceed.

13             MR. RUSSO:

14        Q.   Colonel, do you agree with the information I have just read from

15     that manual?

16        A.   I can agree with that.

17        Q.   And can you tell the Chamber what direct fire systems in a

18     built-up area, what kind of direct fire systems are meant by this?

19        A.   Well, some of them are already explained here.  I think that BFV

20     stands for, I don't know the B but FV stands for fighting vehicle.  That

21     is it an armoured fighting vehicle that's used by infantry troops.

22             Tanks is mentioned, Howitzers are mentioned, and it is meant to

23     be Howitzers when they are used in the directed fire role as a kind of

24     tank; but, of course, there were numerous other direct fire weapon

25     systems like anti -- various anti-tank weapon systems.  Machine-guns,

Page 14799

 1     light -- light guns that are in -- that most times are built in, in a

 2     fighting vehicle like a 20-millimetre gun.

 3             So there are a lot of possibilities.

 4        Q.   Thank you.  And you were shown a fair amount of evidence by the

 5     Defence during cross-examination and I'd like you to tell the Chamber

 6     whether any of the evidence that you have seen or any of the evidence

 7     that has been presented to you causes you to change any of the opinions

 8     which you expressed in the addendum to your expert report?

 9             JUDGE ORIE:  Mr. Kehoe.

10             MR. KEHOE:  Your Honour, this is not redirect examination on

11     particular issues.

12             JUDGE ORIE:  I think in the earlier stages and, therefore, I will

13     take over soon, I gave the assurance to Mr. Konings that if he would like

14     to add anything that he thought of importance, that he would given an

15     opportunity to do so.  I'll do that at the end of his examination, and

16     that, of course, would include any further observation, in relation to

17     what was put to him and whether that would change his opinion.  That's --

18             So, therefore, you don't have to answer this question at this

19     moment, and I will give you an opportunity to add anything to your

20     testimony at the end of -- at the end of hearing.

21             Mr. Russo.

22             MR. RUSSO:  I have no further questions but I did wish to tender

23     a few additional items or a few items that were covered throughout the

24     course of the direct.  The first being the video-clip, 65 ter 3759, and

25     for Your Honours' information, we did check the timing and this portion

Page 14800

 1     does run from 1 minute 45 seconds to 5 minute and 52 second, and the next

 2     one from 7 minutes and 2 seconds to 21 minutes, 35 seconds.

 3             The other portion of this video which is in evidence as P59

 4     covers a different time section of the same video, so I would like a

 5     separate P number of this portion that was played.

 6             JUDGE ORIE:  Let me just try to understand.  What you said now is

 7     that you tendering into evidence the -- those portions of what was played

 8     which is not yet in evidence.

 9             Is that ...

10             MR. RUSSO:  That's correct, Mr. President.

11             JUDGE ORIE:  Yes.  Because you're now tendering some four

12     minutes.  The first portion, and the next one, did you say 7 minutes 2

13     seconds to 7 minutes 25 seconds?

14             MR. RUSSO:  It was 7 minutes 2 seconds until 21 minutes 35

15     seconds.

16             JUDGE ORIE:  21 minutes, 35 seconds, okay.

17             And that's the entirety of what you played.

18             MR. RUSSO:  Correct, Your Honour.

19             JUDGE ORIE:  Yes.  I was a bit confused by the length of the

20     second portion.

21             Any objections against ...

22             MR. KEHOE:  No, Mr President, we have no objection to the items

23     that were played in evidence, the video-clips.

24             JUDGE ORIE:  Yes.  And that's true for other Defence teams as

25     well.

Page 14801

 1             Madam Registrar, the two clips because we'd like to have them

 2     separate.

 3             MR. RUSSO:  Those can be together.

 4             JUDGE ORIE:  The portions played in court, Madam Registrar, would

 5     be.

 6             THE REGISTRAR:  The first portion would be Exhibit P1271 -- 78,

 7     Your Honours, and the second portion would be P1279.

 8             JUDGE ORIE:  I think I created the confusion.  Mr. Russo would be

 9     happy to have them both under one number, that then would be P1278, Madam

10     Registrar; is that correct?

11             THE REGISTRAR:  Yes, Your Honour, the two portion would be

12     Exhibit P1278.

13             JUDGE ORIE:  Yes.  Yes, and that's the totality of close to 20

14     minutes of video.  And P1278 is admitted into evidence.

15             Mr. Russo.

16             MR. RUSSO:  Yes, Your Honour, the next thing are two maps which

17     underlie the Google Earth map overlay that the Defence placed into

18     evidence as D1260.  Two of the maps in that presentation are not yet in

19     evidence.  I'd like to move those in under their 65 ter numbers. .

20             JUDGE ORIE:  Is there any objections against --

21             MR. KEHOE:  No, Mr. President, we intended to do so, so counsel

22     would like to do it, that's fine.  We were going to do that as a bar

23     table submission but we agree.

24             JUDGE ORIE:  Mr. Russo do you have the --

25             MR. RUSSO:  Yes.

Page 14802

 1             JUDGE ORIE:  -- numbers, the 65 ter numbers.

 2             MR. RUSSO:  The first one would be 65 ter 5041, and the second

 3     one would be 65 ter 7030.

 4             MR. KEHOE:  Mr. President, if I just ask counsel or maybe we

 5     could do it at a different point because I didn't have a 65 ter number

 6     what I did on those documents was put the ERN numbers down at the bottom

 7     of what we submitted.  So maybe we can get together and coordinate what

 8     those are.  Whatever it happens to be ...

 9             JUDGE ORIE:  If you'd check that, that these 65 ter numbers that

10     they correspond with the ERN numbers.

11             MR. RUSSO:  Yes, Mr. President, we were provided with the ERN

12     numbers by counsel's assistant and one of them had already been uploaded

13     as 65 ter 5041.  We uploaded the other at 7030.

14             JUDGE ORIE:  So that having been verified of course you can

15     always check and if there's any problem with that --

16             MR. KEHOE:  If I can ask a question to the Chamber and counsel

17     would it be expeditious if we took that exhibit and replaced that exhibit

18     with the actual P numbers for those maps.  It may ease the handling down

19     the line not preventing that the Chamber from -- or eliminate a step

20     because just go to a P document as opposed to some ERN.

21             JUDGE ORIE:  The problem is they were introduced, and they were

22     admitted at the moment when no P numbers were assign to the underlying

23     map so that could create some confusion as to what happens here in court,

24     that P numbers are used already far in advance of them ever being

25     assigned, let alone being admitted.

Page 14803

 1             MR. KEHOE:  Yes, sir.

 2             JUDGE ORIE:  So therefore perhaps we leave it as it is, and it is

 3     now clearly on the record that it has been verified, that the ERN numbers

 4     appearing on the bottom of those maps are the ERN numbers which

 5     correspond with the maps which are now tendered into evidence by

 6     Mr. Russo under 65 ter numbers 5041 and 7030.  That's on the record.

 7             Madam Registrar, the map, 65 ter 5041 would be ...

 8             THE REGISTRAR:  Would be Exhibit P1279, Your Honours.

 9             JUDGE ORIE:  And is admitted into evidence.

10             65 ter 7030 would be ...

11             THE REGISTRAR:  Exhibit P1280, Your Honours.

12             JUDGE ORIE:  Yes.  I -- yes.

13             P1280 is admitted into evidence.

14             Mr. Russo.

15             MR. RUSSO:  Mr. President, with that I would simply move again

16     for the admission -- I don't know if the Court choses to defer again for

17     the admission of P1259 through P1262, which is the expert report addendum

18     corrigendum in terms of reference.

19             JUDGE ORIE:  Yes, we will deal with that in a second, Mr. Russo.

20     They have been tendered and a decision was deferred by the Chamber.

21             MR. RUSSO:  Apologies, Your Honour, there was one additional

22     thing I forgot to do.

23             JUDGE ORIE:  Yes.

24             MR. RUSSO:  I need to vacate Exhibit P1264.  It turns out that

25     that's a duplicate of P1200.

Page 14804

 1             JUDGE ORIE:  And that is what document, because numbers ...

 2             MR. RUSSO:  It was the report of the 134th Home Guard Regiment.

 3     I have used it in direct examination.

 4             JUDGE ORIE:  Madam Registrar, P1264 is vacated.

 5             THE REGISTRAR:  Yes, Your Honours.

 6                           [Trial Chamber confers]

 7             JUDGE ORIE:  Judge Kinis has one or more questions for you.

 8             JUDGE KINIS:  Thank you, Mr. President.

 9                           Questioned by the Court:

10             JUDGE KINIS:  I have some questions for you.  As the first --

11     based on two requisites you know military doctrine its application of

12     principle of proportionality and military necessity.  Could you please

13     explain competence of principle proportionality in military, sense in

14     military doctrine but in very short way.

15             JUDGE ORIE:  You're reading the transcript, and I think that the

16     transcript is not complete on what you said.  I think, Judge Kinis, that

17     you invited the witness to explain briefly in the military sense, the

18     military sense, the military doctrine, the principle of proportionality

19     to start with.

20        A.   Yes, Your Honour.

21             That principle does mean that you if you are forced to apply

22     military violence that you do that in such a way that it is in accordance

23     with the effect that you want to achieve.  That means that said in other

24     words that you have the intention to use as less violence as possible.

25             JUDGE KINIS:  It is just only one indication?

Page 14805

 1        A.   That is the idea that we use in describing shortly

 2     proportionality.

 3             JUDGE KINIS:  Paragraph 52 -- Article 52 on paragraph 2 from

 4     Geneva Convention protocol, second protocol -- first protocol of

 5     Geneva Convention which the times, what is a military target mentions

 6     that it should be justified if there is an first place by military

 7     necessity.

 8             Could you please explain whether between terms military necessity

 9     and proportionality is possible to put equality?

10        A.   Well, if you take a military target, if you have defined that a

11     target is a military target, even then, you have to take into account the

12     principle of proportionality, even then you have to take into account,

13     for example, in your targeting process, the best means to achieve the

14     effect that you want, and you can even consider in killing as much enemy

15     soldiers as you like; but have you another option, is to try to take them

16     as -- as prisoners of war and have various options in between, and that

17     depends on the overall effect that you want to achieve with an operation

18     and from there, I think you look what is proportionate to achieve your

19     end state.

20             JUDGE KINIS:  But I would like ask you what is your opinion, what

21     is competence of military necessity in this particular case.  If

22     attacking force wants to assess -- do assessment for military necessity

23     what kind of competence they should take into account.

24        A.   Well, military necessity is linked to, first of all, to every

25     target in itself, what does that target bring to the whole of the

Page 14806

 1     operation of an enemy, and once you have designated that from there you

 2     build the picture how the combination of those military targets together

 3     will bring that -- the end state that you want to achieve in an

 4     operation.  Because an operation may be used as a -- may be aimed at

 5     total go destruction of an enemy but an operation may also be aimed at

 6     separating two warring factions so everything you do in combatting

 7     military targets has to do with the goal you want to achieve and that is

 8     not something that is done purely by military.  That is also something,

 9     especially something that is directed to you by -- well, your political

10     superiors.

11             JUDGE KINIS:  Are you familiar with concept of critical

12     information infrastructure, the determination of critical information

13     infrastructure of the state.

14        A.   I know the term.  I'm not really familiar with that.

15             JUDGE KINIS:  It means that there should be included all objects

16     which are very important for state security.

17        A.   Yes.

18             JUDGE KINIS:  My question is would be possible to get anticipated

19     military advantage without attacking objects of critical information

20     infrastructure like post, telegraph, radio, communications, and

21     et cetera.

22        A.   Well that depends on how the critical information infrastructure

23     is connected to the military structure.

24             JUDGE KINIS:  I mean in this particular case.

25        A.   You mean in relation to Operation Storm?

Page 14807

 1             JUDGE KINIS:  Yes.

 2        A.   Well, apparently in this case, several of the critical

 3     information infrastructures were used in one way or the other by the

 4     military.  And some of these critical infrastructures had a real critical

 5     role because apparently they were the only one in the region that

 6     provided communication or else, and then you come into a situation

 7     that -- that this is, of course, real critical to take it out, yes or no;

 8     and especially if that is a combination of military personnel and

 9     materiel, and civilian personnel and materiel and civilian personnel and

10     materiel involved well, then this is a very hard solution to make or a

11     very hard decision to take.

12             JUDGE KINIS:  But based on this information that you got

13     during -- during this court hearing, and based on this reviewing of

14     documents what would be your conclusion?

15        A.   Well, when I look to the information that was given to me by the

16     OTP, then I can say that -- that I'll -- I'll keep to my -- my

17     conclusions that I made in my report and my addendum.

18             During the discussions of the past days, various scenarios were

19     described to me by -- by the Defence counsel and every scenario was a

20     different one, and once a scenario changes all the factors in such a

21     scenario or operation changes, and have you to -- that's one thing that

22     in a military operation is very important that a commander and his staff

23     analyse the operation continuously and take into account all new

24     information that you have.  That's something I tried to do during the

25     past days as well, and if suddenly the situation changes from there is

Page 14808

 1     hardly anybody in the barracks or in a location, towards there are --

 2     there is an complete brigade in that location, well, that changes the

 3     whole analysis, and due to the -- to the sometimes the lack of

 4     information that I did not have, or that was not given to me, then it's

 5     coming very close to impossible to say something very -- very specific

 6     about that.

 7             JUDGE KINIS:  It means that you cannot state direct conclusion

 8     whether it is possible or not.

 9        A.   I cannot say a direct conclusion no.

10             JUDGE KINIS:  Okay.  Based on documents what you reviewed, could

11     you draw conclusion that operation, this artillery attack to Knin,

12     creates collateral damage?

13        A.   Well, first of all, as we said, I have not been there, so I don't

14     know that.  I -- I -- and from -- given from the information the very

15     scarce information about the real results, I can come to the conclusion

16     that there was collateral damage.

17             JUDGE KINIS:  And could you please specify something about this?

18        A.   No.  I cannot.  And that's the point in that.  We were reading

19     that UNMO report, where it stated that civilian property was hit and from

20     that I conclude there must have been some collateral damage but we also

21     said that, and I agreed with that, that there is no specific mention

22     about that and I have no information about that.

23             So everything beyond I say now from my side will be speculation.

24             JUDGE KINIS:  Okay.  Thank you.

25             JUDGE ORIE:  Mr. Konings, I have one question for you.

Page 14809

 1             When I was listening to the sound on the video-clips, I thought,

 2     but I'm not experienced at all in that area, I thought that I heard

 3     different types of sounds, some of them being explosions but I think in

 4     the first portion I also hard a kind of whistling sound rather than

 5     explosions.

 6             Could you assist me in, first of all, whether I made this

 7     distinction by listening well, whether you heard the same; and, second,

 8     how I should interpret these different sounds.  I heard the whistling

 9     sound only once but I might not have been focussed enough.

10        A.    Yes, Your Honour.

11             First of all, I think that you came to a correct conclusion that

12     there were different sounds and that is possible through the fact that

13     different calibres might have been used or different types of weapon

14     systems might have been used.

15             I give me -- maybe I can give you an example, that in the -- in

16     the -- in the war in Vietnam, US forward observers specialised in sounds

17     because they could not see the point of impact of a projectile into the

18     jungle so they specialised in the sound of the exploding projectile and

19     that is a possibility; and I must say that I learned that in Sarajevo as

20     well, in distinguishing between 81, 120 and 152 or 155 or rocket systems

21     that is very well possible.  And you don't need to be trained for that to

22     hear the difference.

23             The whistling sound that you heard is -- means that was an

24     artillery projectile because artillery projectiles when fired and when

25     they pass you, you hear that.  You may hear that sound, not in all cases.

Page 14810

 1     Depends on where you are in -- in comparison with the projectile

 2     trajectory.  But normally that means it is an artillery projectile.

 3             JUDGE ORIE:  So do I then have to understand that where I heard

 4     the whistling sounds that it must have been a projectile which passed

 5     close enough to the microphone that was used so as to hear it pass rather

 6     than to hear it explode from a distance, where it may have not passed --

 7     where the trajectory may not have passed the area but where the

 8     microphone was because I heard it only, as I said, once but -- I'm not

 9     sure whether you heard that more.

10        A.   I heard some more because I have seen a somewhat longer part of

11     that --

12             JUDGE ORIE:  The part played.  Everything else --

13        A.   The part played.  I know, I think I heard two or three times the

14     same noise.  But normally it come through the fact that the projectile is

15     passing roughly above you.  When it is passing on the side of you, you

16     might not hear that.

17             So that means that it is fired somewhere behind you, it's passing

18     on top you, and it will explode somewhere in the area before you.

19             JUDGE ORIE:  And it does not in any way indicate a different type

20     of weapon or it could be all artillery fire could create such a whistling

21     sound and if it would pass by other trajectory you might not hear that

22     whistling sounds.

23        A.   Yes.  The only thing you hear with a mortar projectile you hear a

24     similar sound but that is very close before impact.  There is then only a

25     split second when you hear such a sound when a mortar is used and

Page 14811

 1     immediately afterwards you hear the impact and you have to be quite close

 2     otherwise you don't hear that.

 3             JUDGE ORIE:  Yes.  Thank you for those answers.

 4             As I said before, I would give you an opportunity to add anything

 5     and I'm not inviting you to repeat anything, but to add anything to your

 6     testimony before I give a final opportunity to the Defence to -- to ask

 7     further questions, triggered by the re-examination and the questions by

 8     the Bench.

 9             Is there anything that you'd like to add?

10             THE WITNESS:  No, sir, everything has been said, so I have

11     nothing to add.

12             JUDGE ORIE:  Thank you.

13             Any need to put further questions to the witness.

14                           Further Cross-examination by Mr. Kehoe:

15        Q.   Just one question.  The whistling that Judge Orie ask you about

16     that whistling on an artillery fire would be whistling either outgoing or

17     incoming, wouldn't it?

18        A.   Yes that.  Distinction is hard to make.  You can connect that

19     whistling to either its incoming or outgoing when you are able to hear

20     the -- the actual fires of the Howitzer.  Otherwise, it is very hard to

21     define where it coming from.

22        Q.   Once against, thank you, Colonel.

23             JUDGE ORIE:  Mr. Konings, there are no further questions for you.

24             I suggest to the parties that any further submissions or any

25     further argument to the extent needed on the question of admission of

Page 14812

 1     1259 up to and including 1262 an issue that P1259 that can be dealt with

 2     in the absence of the witness.

 3             Then, Mr. Konings, I would like to thank you very much for

 4     coming, usually I add to that a long way to The Hague, but that might not

 5     be true for you.  But for coming to this Court and for considerable time

 6     having answered all the questions that were put to you by Prosecution,

 7     Defence, and by the Bench.  And this concludes your testimony.  You are

 8     excused.

 9             Madam Usher.

10                           [The witness withdrew]

11             JUDGE ORIE:  Before we deal with a few procedural matters, I'd

12     first like to pay attention to the more general question on how will

13     you -- we will use the remaining time this week.

14             Is my understanding correct, Mr. Russo, or Mr. Waespi, or

15     Mr. Hedaraly, that there's one more witness to be called this week,

16     without protective measures, which would be Mr. Marker-Hansen.  Is

17     that --

18             MR. HEDARALY:  That is correct, Mr. President.

19             JUDGE ORIE:  Yes.  He was scheduled for one half another in

20     chief, as a 92 ter witnesses.

21             MR. HEDARALY:  That is correct, Your Honour.  In the 92 ter

22     submission we had provided a revised estimate of two and a half hours,

23     but I am hopeful that examination will be concluded within a session or a

24     little more than a session, perhaps.

25             JUDGE ORIE:  Then I'm asking the Defence what the estimates are

Page 14813

 1     at this very moment in relation to this witness.

 2             MR. CAYLEY:  Your Honour, I would estimate at most three-hours

 3     from us, probably less.

 4             JUDGE ORIE:  That makes three sessions all together.

 5             MR. KUZMANOVIC:  Your Honour, at least one hour from me.

 6             JUDGE ORIE:  Yes.  That take it as a rough figure that makes four

 7     sessions.

 8             MR. KEHOE:  Mr. President, I would say at least three hours.

 9             JUDGE ORIE:  Which makes it six sessions.

10             The reason why I'm explore is the following:  We have a few

11     relatively simple procedural matters we could deal with today.  The

12     Chamber is a bit surprised by the efficiency in relation to the last

13     witness, to the extent that, on the basis of the estimates, we expected

14     that we would finish this witness by today.  I had planned to prepare

15     fully for the pending issues, MFI list, et cetera tomorrow and then deal

16     with it after we finished this witness.

17             Now we have some time left.  I'm not fully prepared.  Other hand,

18     of course, the Chamber would like to avoid that the next witness would

19     have to stay over the weekend because we are running out of time.

20             Now, six sessions is two hearings.  We have as a matter of fact,

21     nine sessions because we are scheduled Thursday, half a day, and Friday,

22     the whole of the day.  Can I be confident that if the MFI list will not

23     take more than two sessions, I don't know exactly how much time it will

24     take, that we would nevertheless could conclude this witness if he would

25     start on Thursday because my calculation now is six sessions for the next

Page 14814

 1     witness and that means that two or three sessions would remain.

 2             MR. HEDARALY:  Mr. President, the only thing that I would like to

 3     inform the Court is that the witness did arrange a schedule to be able to

 4     testify Thursday and Friday but he must leave at the end of the day on

 5     Friday.  I would suggest although we had expressed a preference earlier

 6     to have the MFI session at the conclusion of this witness's testimony,

 7     would prefer to call the witness on Thursday morning to ensure that he is

 8     done and deal with the MFI in the last hearing scheduled on Friday

 9     afternoon, if possible.

10             JUDGE ORIE:  Yes.  At the same time, I asked for the estimates in

11     order to make a calculation on whether we could do both.  And I do see

12     your point, Mr. Hedaraly.  The Chamber will consider it.  But I would

13     urge the parties that where we have an estimate of six sessions for the

14     witness, and that my estimate for the MFI session would not go beyond two

15     sessions, and hopefully within one session, that we would deal with both

16     the issues, that is, the testimony of the next witness and the

17     housekeeping matters Thursday and Friday.

18             It, at least --

19                           [Trial Chamber confers]

20             JUDGE ORIE:  The information by the parties leads the Chamber to

21     decide that we'll not try in an unprepared way to deal with major

22     portions of MFI list/housekeeping sessions today and that we will try to

23     do it all on Thursday and Friday.

24             Then I have a few -- yes, Mr. Hedaraly.

25             MR. HEDARALY:  There is one procedural matter that we'd like to

Page 14815

 1     address.  We can do it later today.

 2             JUDGE ORIE:  I have a few if it is not dealt with by me, then, of

 3     course, you're invited to raise the issue.

 4             There was a request by the Cermak Defence to go beyond the word

 5     limit on admission of a 300-page document, objections against admission,

 6     at least I take it that it will be objections.  I do understand that the

 7     OTP does not oppose the limited extension of the word limit because the

 8     issue was 3.000 or 3900.

 9             Now, is that -- 3900 is that what you really need, I mean if we

10     would say 4.000, would that meet your request.

11             MS. HIGGINS:  We have drafted the motion, Your Honour, as Your

12     Honour will be aware that the deadline is tomorrow.  If the Chamber would

13     say 4.000 then that would encompass all the footnotes which we have had

14     to include to try and assist the Chamber with this determination which is

15     where the problem has really arisen.

16             JUDGE ORIE:  So that would fully satisfy --

17             MS. HIGGINS:  Yes, it would, Your Honour.

18             JUDGE ORIE:  The request is granted and the limit is set at 4.000

19     words.

20             One second, please.  Yes, the Chamber is informed that progress

21     was made although perhaps not the progress which we would finally need to

22     hear stipulations by the parties on the possible testimony of Mr. French.

23             Is that -- when do the parties think that they could conclude

24     their discussions on the matter because the Chamber, of course, if you do

25     not agree on the matter, then, of course, we would have to well, at least

Page 14816

 1     consider our scheduling that time will be needed to call that witness.

 2             MR. HEDARALY:  Your Honour, the question actually is a little

 3     more complex because it is not only about professor French, but other

 4     witnesses that would testify about the 31 July transcript.  We have

 5     talked to the Defence on numerous occasions, and we were informed that

 6     there would not be an objection to the report of Professor French coming

 7     in.

 8             With respect to the other witnesses, we have received from the

 9     Defence some issues that they have with that transcript.  We just

10     received that this morning, so we will review and hopefully have a final

11     answer by the Friday hearing on -- because it will be related to

12     scheduling in any event.

13             MR. MISETIC:  Yes, Mr. President, under Rule 94 bis we've have

14     had a chance to review the report and assess it and we no longer require

15     cross-examination under Rule 94 bis of Mr. French.

16             JUDGE ORIE:  Yes, and for the other Defence teams as I said

17     progress has been made but whether that extends to all the Defence teams

18     is unclear.

19             MR. CAYLEY:  We are in the same position, Your Honour, as

20     Mr. Misetic.

21             JUDGE ORIE:  Mr. Kuzmanovic.

22             MR. KUZMANOVIC:  Yes, Your Honour, the same position as well for

23     us.

24             JUDGE ORIE:  Which means that -- let me just ...

25             That professor French, that his evidence, will be introduced

Page 14817

 1     through an expert report and that the parties then, I take it, that there

 2     is no -- it's not contests that he qualifies as an expert because that

 3     is, of course, the first question; and then the second question whether

 4     is there any need to cross-examine him.  I do understand that it is not

 5     needed.  So, therefore, the expert report is ready to be decided upon as

 6     far as admission is concerned.  And that for other witnesses, the

 7     situation is still unclear but that the Chamber most likely will hear by

 8     this Friday whether the parties could come to an agreement as far as the

 9     need to hear the testimony of those witnesses or the way to introduce

10     their evidence.

11             Is that correctly understood?  Then that's clear.

12             Then there is -- I do understand that the parties would agree

13     that a witness statement could be tendered.  Let me just check whether

14     there is in the confidentiality there.

15             Could we go into private session for a second.

16                           [Private session]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 14818

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

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

20             JUDGE ORIE:  Thank you.

21             Let me just verify one thing on my computer.

22             Yes, the Chamber was informed that the further selection to be

23     made by you, Mr. Kehoe, of the Royal Netherlands Army publication that we

24     could expect that tomorrow or at the -- that would mean that we --

25     effectively we will hear about it on Thursday.

Page 14819

 1             MR. KEHOE:  Yes.

 2             JUDGE ORIE:  If, however you could already give an indication to

 3     the registrar so that it can be -- or did you uploaded the selected

 4     portion so that we don't have to spent too much time on it.

 5             Then the one remaining issue then at this movement would be the

 6     admission of the expert report by Mr. Konings, of the addendum, the terms

 7     of reference, and the corrigendum, and the P numbers provisionally

 8     assigned to them were P1259 up to and including P1262.

 9             The Chamber would like to give a brief opportunity to the parties

10     to make further oral submissions on the matter, but it is not seeking any

11     repetition of the arguments that were already put before the Chamber and

12     which were considered in the -- in the decision on the expert report and

13     addendum of Harry Konings which was given on the 18th of December and the

14     parties are invited to focus primarily on the issue that was raised in

15     paragraph 12 of that decision where it said that the Chamber expects the

16     Prosecution to establish this expertise - the qualification as an expert

17     of Mr. Konings on the record - at the outset of the testimony of Konings.

18     We added to that that with this proviso the Chamber is satisfied that the

19     expert report and addendum are prima facie relevant and probative.

20             A practical way of dealing with the matter would give a brief

21     opportunity to make further oral submissions on the matter.  Mr. Russo is

22     here.  Mr. Kehoe is here.  I don't know whether the other parties would

23     like to make submissions as well, Mr. Kuzmanovic; you are nodding yes.

24     Mr. Cayley is nodding no, which doesn't come under the present

25     circumstances as a surprise.

Page 14820

 1             I would suggest that we spend the next 15 minutes to add anything

 2     and I would say three times four minutes, first round and then second

 3     round of three times one minute.

 4             Mr. Kehoe, I think it would be appropriate that you start.  Then

 5     Mr. Kuzmanovic, then Mr. Russo.

 6             MR. KEHOE:  Yes, thank you, Mr. President.

 7             I will be very brief and we're not certainly going to repeat the

 8     arguments that we set forth before.  But I think two things are very

 9     clear at this juncture.  Number one, going through an expert report, any

10     opinions that the expert was not an expert in international humanitarian

11     law nor an expert in law of armed conflict.  So any opinions he rendered

12     that remotely touch on either one of those issues should not be

13     considered by the Chamber because he is not an expert in that regard.

14             What he has given us is quite clearly what his assessment of the

15     situation is pursuant to either doctrine or the rules of engagement for

16     NATO and/or for the Royal Dutch Army which for his purposes is perfectly

17     fine.  It is not fine for what's to be considered by this Chamber where

18     the standard is the laws of armed conflict.

19             So on the first stage, anything that remotely touches the laws

20     on -- international humanitarian law or the laws of armed conflict should

21     not be considered his area of expertise and should not be considered by

22     the Chamber.

23             I think probably the more disturbing and difficult issue is the

24     94 bis issue, and I know Your Honours touched on this to some degree when

25     Your Honours were talking about the addendum which is P1206 [sic] but

Page 14821

 1     going back to Rule 94 bis, the Prosecution was required to give us their

 2     entire expert report, and what Colonel Konings told us during the course

 3     of the cross-examination was that when his initial report was presented

 4     it was contemplated that he would provide yet another report which is the

 5     addendum.

 6             Now, without rearguing some of the items in the report, Judge, it

 7     is a very disturbing issue because the items that were set forth in his

 8     addendum go directly to targeting issues for instance and actions by our

 9     client, General Gotovina, which because of a conscious decision by the

10     Prosecution not to provide us with that information precluded us from

11     addressing some of those items with witnesses such as Captain Berikoff,

12     such as Colonel Williams, such as a variety of different witnesses,

13     individuals who were actually present at the -- present on the spot.

14             Now, that is with all of those witnesses who talked about targets

15     and that the Prosecution brought in here, we were prevented from

16     cross-examining any of those individuals based on this report because

17     they made a decision not to give it to us.  Not to do it until well into

18     the case, knowing full well, according to Colonel Konings, that when they

19     did the first report, there was going to be a second report.

20             Now, that frankly, Your Honour, is one of the most difficult and

21     disturbing things when one considers what exactly transpired here because

22     quite clearly it violates Rule 94 (a) bis, which is the specific

23     provision.  But it significantly hurt the Defence because we missed this

24     opportunity to cross-examine based on these statements, and I can go

25     through a list of witnesses that that applies to.

Page 14822

 1             So again without repeating what we did before.  I don't want to

 2     do that, Judge.

 3             JUDGE ORIE:  Like you say, there is a new factual element in the

 4     testimony of --

 5             MR. KEHOE:  And we now know what this witness was told that sheds

 6     an entire different light on this.

 7             JUDGE ORIE:  Yes.  Thank you.

 8             Mr. Kuzmanovic.

 9             MR. KUZMANOVIC:  Your Honour, the only thing I would add to that

10     is with respect to opinions that he had regarding shelling of civilian

11     areas outside of Knin, he had no information although he commented on the

12     specific order he had no specific information relating to what the damage

13     was, what the sites were, what the targets were, and in that regard, I

14     mean, that would be the only further submission that I would have with

15     regard to his testimony.

16             JUDGE ORIE:  Thank you, Mr. Kuzmanovic.

17             Mr. Russo.

18             MR. RUSSO:  First of all, Your Honour, with respect to the

19     qualifications to Lieutenant-Colonel Konings, I believe we covered that

20     to some extent during the beginning of direct examination.  It is clear

21     that he has significant expertise in the use of artillery, the

22     application of artillery in the field, the rules regarding the use of

23     artillery, and he did give some information of his understanding of

24     international humanitarian law.  It is clear that the doctrine, as he

25     also indicated, the doctrine which he learned and can you see from his CV

Page 14823

 1     in fact teaches to other members of the Royal Netherlands Army is

 2     informed by the considerations of international humanitarian law.

 3             So I don't think it is appropriate to say that anything which

 4     remotely touches on, which I'm not sure of the preciseness of that

 5     standard, anything in the report that remotely touches on international

 6     humanitarian law or the laws of armed conflict should be immediately

 7     disregarded.

 8             In any case, I think General Konings -- I'm sorry,

 9     Colonel Konings's report is quite specific in terms of what it provides

10     to the Court and that is the first report being an understanding of the

11     general nature of artillery, the use of artillery, and the applications

12     of artillery in civilian-populated areas as well as his interruption as

13     an artillery officer and as someone with significant experience in the

14     application of artillery his interpretation of the orders in the case.

15             The addendum clearly addresses from a military perspective the

16     considerations that the Court needs to take into account in determining

17     whether or not the artillery attack was illegal.  That is one whether a

18     military advantage is there to be gained from attacking a particular

19     target given all the information and to what effect it would have on the

20     civilian population in order to apply both the rules of proportionality

21     and the principle of distinction.

22             So I think his qualifications to address those have been clearly

23     been established, so I don't think there is any reason to strike anything

24     either in the report or from the testimony he has offered here in court

25     over the last few days.

Page 14824

 1             The argument with respect to putting or the loss of the chance to

 2     put the report to other witnesses, I don't think that first of all that

 3     that bears out under the practice.  In fact, the expert report which

 4     indicates his interpretation of the order of General Gotovina and several

 5     other orders including the general principles of the nature of artillery

 6     how it should be used in civilian-populated areas questions regarding

 7     those specific areas were asked of a number of fact witnesses, a number

 8     of UNMOs, a number of other UNCRO people about how you should artillery

 9     in civilian-populated areas, and General -- Colonel Konings's report was

10     never put to him.  His original expert report does address those

11     concerns.  They never asked any of the witnesses whether they would agree

12     or disagree with those conclusions that he has come to.

13             In any case, asking them whether they agree with

14     Colonel Konings's assessment of the military advantage of a particular

15     military target certainly wouldn't necessarily be relevant for this Court

16     in terms of either evaluating the evidence of Mr. Konings or the evidence

17     of that particular witness.  So I don't think that's a valid argument to

18     put forward in terms of --

19             JUDGE ORIE:  Mr. Russo.  Yes, I was about to invite the

20     Prosecution also to find someone who keeps an eye on your speed of speech

21     as is so done in the Gotovina Defence at this moment which is highly

22     appreciated.

23             Please proceed.

24             MR. RUSSO:  My apologies, Mr. President.

25             The addendum, of course, addresses the military advantage to be

Page 14825

 1     gained versus the risk to the civilian population of particular

 2     establishments.  Now there were other witnesses in the case who testified

 3     with respect to many of those locations and again the addendum for

 4     Colonel Konings was not put to -- or the expert report was not put to any

 5     of them to address the issues the conclusions that he draws about whether

 6     artillery should or should not be used in civilian-populated areas.  They

 7     were never put to those witnesses.

 8             So I think that that is in essence a red-herring argument for

 9     this Court.  It doesn't really bear on the admissibility of either the

10     expert report or the addendum.

11             Therefore, I think his qualifications to offer the opinions which

12     he does offer in both the expert report and in the addendum are fully

13     supported by the qualifications which he has testified to and the answers

14     to the questions he has given before this Chamber.

15             JUDGE ORIE:  Mr. Kehoe.

16             MR. KEHOE:  May I respond very briefly.

17             JUDGE ORIE:  Yes, you may briefly respond.

18             MR. KEHOE:  Mr. Russo interestingly never addressed the issue as

19     to why the Office of the Prosecutor violated the rule.  The rule says

20     that we were supposed to have the report.  I heard no explanation as to

21     how they violated the rule, why they violated the rule.

22             Now for them to argue that we didn't put the first report to

23     these witnesses is an argument that is specious at best.  The article

24     is -- that report is 99.9 percent doctrine.  His addendum, and I mean

25     Colonel Konings's addendum, 1260 is the list of items that the Colonel

Page 14826

 1     maintains shouldn't have been attacked in a rhetorical nature would you

 2     not think, Mr. President, that we would have asked somebody like Captain

 3     Berikoff or Colonel Williams or General Forand whether or not they

 4     considered the northern barracks as Colonel Konings put it in his report

 5     that we got in November of a low military value?  An item that was the --

 6     the headquarters for the 7th Krajina Brigade.  I mean, that's just one of

 7     them.

 8             Let's say the telegraph office.  No military target, don't you

 9     think, the communications that the ARSK had going through those

10     facilities that with that information we would have asked the senior

11     officer like General Forand whether or not that would have been something

12     that we would have -- would have been a military target that should have

13     been engaged?  I mean that's just two.  I mean, there are 30 different

14     items.  I can go down each one of them.

15             And the fact that the Prosecution has made a decision not to give

16     us that report, and we did not have the opportunity to ask senior

17     military officers about all of these items, and Mr. Russo has failed to

18     explain to this Chamber why.  Why they didn't give it to us.  The

19     burden -- there is a clear violation based on what Colonel Konings said.

20     The burden is on the Prosecutor to tell us why.  And I harken back to

21     what Mr. Russo just finished saying.  He said nothing about it.

22             Thank you, Mr. President.

23             JUDGE ORIE:  Thank you, Mr. Kehoe.

24             Mr. Kuzmanovic, anything to add.

25             MR. KUZMANOVIC:  No, Your Honour, thank you.

Page 14827

 1             JUDGE ORIE:  Mr. Russo any need to respond.

 2             MR. RUSSO:  Yes, Mr. President.

 3             The reason I didn't address what Mr. Kehoe terms the violence of

 4     the rule is simply because there was no violation of the rule.  We

 5     certainly don't agree that there was a violation of the rule.

 6     Mr. Konings seems to recall being told or mentioned to him that he would

 7     have to create an addendum at the time of the expert report.  That's not

 8     the recollection of the OTP.  We certainly weren't planning on springing

 9     an addendum on the Defence at the last moment.

10             In any case, again, that argument goes to what the Defence has

11     already argued in terms of good cause as to why addendum should not have

12     been received into evidence.  The Court, I believe, has already found in

13     its decision there was no good cause established for why an addendum

14     couldn't have been submitted earlier, but that nevertheless the Court

15     decided to consider the admission or that would hear the admission of the

16     addendum.

17             Therefore, the issue of good cause having already been

18     established irrespective of the OTP's disagreement as to the facts of

19     whether or not the rule is violated, that issue has already been resolved

20     by the Chamber.

21             JUDGE ORIE:  Mr. Russo, if I just may intervene for one second.

22     I think that we established that there was a new element in this -- in

23     this debate and that is that it had been -- it was -- that the need for

24     another report was already considered when the first report was -- was

25     drafted.  I think that's the new element, and I very much asked Mr. Kehoe

Page 14828

 1     to focus on new matters and we established that this was at least a new

 2     piece of information; and I haven't heard much about that because if you

 3     refer to our decision, at least that piece of information was not

 4     available to us at that moment.  Not to say what consequence I'm not --

 5     I'm inviting to you specifically address that matter as well.

 6             MR. RUSSO:  Yes, Mr. President.

 7             The OTP did not intend at the time the original expert report was

 8     solicited from Colonel Konings.  There was no intent to later seek an

 9     addendum.  I'm not sure why Colonel Konings seems to recall a discussion

10     of that with Mr. Tieger.  In any case we did provide to the Defence at

11     their request all communications that we had with Colonel Konings, since

12     the beginning of his involvement with the trial team, and those in fact

13     reflect that there was no intent to seek an addendum at the time his

14     original report --

15             JUDGE ORIE:  Doesn't it then come as a surprise that as far as I

16     remember you did not put any question to Mr. Konings on this subject in

17     re-examination.

18             MR. RUSSO:  I didn't believe that was a matter which the Court

19     would have invited testimony on.

20             JUDGE ORIE:  Well, you are now challenging the testimony of the

21     witness in that respect without it having been put to him.

22             MR. RUSSO:  That's correct, Mr. President.  I certainly didn't

23     think that it was necessary to do that.

24             In any case, that is our position, that the communications do in

25     fact support the OTP's position, that this wasn't discussed with him and

Page 14829

 1     certainly wasn't contemplated at the time.

 2             MR. KEHOE:  And I would like to see those communications.  I

 3     received communications from the early summer, but there is no

 4     communications that we received concerning contact with Colonel Konings

 5     early on when he was developing his first report.

 6             MR. RUSSO:  Mr. President, I believe we provided all

 7     communications that we had with Colonel Konings.  I'm not sure what else

 8     there is to provide.

 9             JUDGE ORIE:  Well, then I suggest that apparently you are hinting

10     at communications and the inter -- such that it gives Mr. Kehoe the

11     impression that -- that it is communication is he not aware of, and if

12     you would sort that out, to start with, so that we know what we're

13     talking about and what keeps you divided.

14             MR. KEHOE:  And I will supplement that to one degree.  I do

15     believe that the witness noted that his oral communications on this score

16     were with Mr.  Tieger.  I can go back and check the transcript.  But I

17     seem to recall that is what he said.

18             JUDGE ORIE:  At least he was in touch with Mr. Tieger, I would

19     have to check that as well.

20             Could I leave the rather factual issue of what the communications

21     had been.  We've heard from you Mr. Russo.  Mr. Kehoe would like to seek

22     verification on the basis of any recording of such communications.  It

23     doesn't seem to me to be a subject which could be fruitfully further

24     explored at this moment in Court.

25             If there is anything that comes up in relation to this specific

Page 14830

 1     issue not anything else, then the Chamber would like to be informed

 2     tomorrow, noon.

 3             MR. KEHOE:  Yes, Mr. President.

 4             JUDGE ORIE:  Mr. Russo, tomorrow noon.

 5             MR. RUSSO:  Yes, Mr. President.

 6             JUDGE ORIE:  Then this then concludes the --

 7             MR. RUSSO:  Your Honour, I'm sorry.  I didn't address the

 8     remaining arguments that remained.

 9             JUDGE ORIE:  Yes, please proceed.  Yes, I interrupted you.

10             MR. RUSSO:  Also the issue about what could have been presented

11     to earlier witnesses, first of all, whether General Forand or

12     Mr. Berikoff or whomever what they think of Colonel Konings's opinion

13     about the military advantage to be gained from shelling the northern

14     barracks or any other establishment is simply not relevant.  They can be

15     asked themselves as they were what they believed the military advantage

16     was to be gained or not gained and why.  Asking one witness to offer an

17     opinion about the validity of another' witness's evidence about that

18     simply doesn't assist this Chamber in any way, and that would have been

19     objected to by the OTP, in any case.

20             I'll just slow down for the translation.

21             And again, Your Honour, as I indicated the -- this argument that

22     the addendum would have been put to other witnesses is clearly

23     contradicted by the fact that the addendum was filed and given to the

24     Defence prior to the testimony of witness 40, Kosta Novakovic, the ARSK

25     officer who provided firsthand knowledge with respect to many of the

Page 14831

 1     installations which Colonel Konings addresses.  They did not put the

 2     addendum to him.  And he is the one to testify here who has the most

 3     direct knowledge about what the military advantage would or would not

 4     have been.

 5             MR. KEHOE:  If I can respond to --

 6             MR. RUSSO:  I'm not finished I'm waiting for the translation.

 7             MR. KEHOE:  [Overlapping speakers] ...

 8             JUDGE ORIE:  Let Mr. Russo first finish.  The second round was

 9     one minute Mr. Russo and you were the one who took most time in the first

10     round so would you please --

11             MR. RUSSO:  I have nothing further to say, Your Honour.

12             JUDGE ORIE:  Yes.  That's -- then unless there is something

13     totally new.  I think we started with Defence, Prosecution, Defence,

14     Prosecution; so before I give you an opportunity, Mr. Kehoe, then first

15     explain why it would be appropriate to give, again, an opportunity to the

16     Defence, rather than to stick to as it is said in Latin, litis finiri

17     oportet.  There has to be an end to submission or to debate to

18     proceedings.

19             MR. KEHOE:  I guess my first point is I just know you wanted to

20     hear my eloquence for yet a few more minutes.

21             JUDGE ORIE:  I can play the audios as much as I want to,

22     Mr. Kehoe.

23             MR. KEHOE:  It is quite simple with regard to getting into

24     objections as to what would have been allowed or not allowed.  That is

25     completely up to the Trial Chamber whether or not those things could have

Page 14832

 1     been confronted.

 2             What our overall position is that we were precluded from even

 3     attempting to that, and it would have been up to the Chamber as to how it

 4     would have been allowed.

 5             Mr. Russo's idea of cross-examination is quite limited in these

 6     terms because certainly throughout cross-examination, we asked Witness A

 7     based on something else that Witness B would have said and to say that

 8     the Chamber would not have been assisted by the testimony of professional

 9     officers who were there at the scene while this was taking place --

10             JUDGE ORIE:  We do understand.  Mr. Russo is thinking for us but

11     this Chamber finally will do the thinking itself.  And --

12             MR. KEHOE:  I do have the page reference where Colonel Konings

13     said he spoke to Mr. Tieger.  It's at 14494, line 6.

14             JUDGE ORIE:  Yes.  Thank you for that.

15             Then we'll conclude for the day.  I had forgotten to mention that

16     in my estimates for Thursday and Friday, of course, also some time should

17     be reserved for brief submissions on timing for the future.  But I take

18     it that that would not consume more than, all together, I would say 20

19     minutes.  It's just a brief information to the Chamber.  We would need so

20     much for that, we would need so much for that, and that would not heavily

21     influence our time scheduling for Thursday and Friday.

22             The parties should prepare whether we do it at the beginning,

23     Mr. Hedaraly, or at the end of Thursday and Friday's sessions, but the

24     parties should be prepared to respond to all the outstanding issues on

25     the -- on the pending issues list, and I take it that this will be

Page 14833

 1     updated, if possible, even this afternoon so that the registry can

 2     distribute all the issues which we still have to deal with.

 3             Then we adjourn for the day and we we'll resume on a Thursday,

 4     the 22nd of January, 2009, at 9.00 in the morning, Courtroom I.

 5                            --- Whereupon the hearing adjourned at 12.34 p.m.,

 6                           to be reconvened on Thursday, the 22nd day of

 7                           January, 2009, at 9.00 a.m.