Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21128

 1                           Monday, 7 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.13 a.m.

 5             JUDGE ORIE:  Good morning to everyone in and around the

 6     courtroom.

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

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

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

10     Prosecutor versus Ante Gotovina et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Before we start with the next witness, a few procedural matters.

13     I'll try to go through them as quickly as possible.

14             First, I'd like to put on the record that the Chamber has not

15     been sitting on the 2nd to the 4th of September, because the

16     Gotovina Defence had informally withdrawn Witness Pokaz.

17             The Chamber regrets but at the same time understands that no

18     other witness was available for these days.  The Gotovina Defence is

19     invited to withdraw the defendant Ante Gotovina's submission of expert

20     report of Brigadier General Ivan Pokaz, pursuant to Rule 94 bis which was

21     filed on the 9th of July.

22             Then I'd like to move into private session for a second.

23                           [Private session]

24   (redacted)

25   (redacted)

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11  Page 21129 redacted. Private session.















Page 21130

 1   (redacted)

 2                           [Open session]

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

 4             JUDGE ORIE:  Thank you, Mr. Registrar.

 5             The Chamber still has to deliver its reasons for the -- for a

 6     Prosecution request in relation to Witness Sterc.

 7             These are the Chamber's reasons for its decision to strike

 8     paragraphs 3, 5.1, 5.2, 5.3, 5.4, and 7 from Witness Sterc's Rule 92 ter

 9     statement and admit the remaining parts of the statement into evidence.

10             On 9 July 2009, the Gotovina Defence submitted a Rule 92 ter

11     statement for Witness Sterc.  On the same day, the Prosecution filed an

12     objection to the statement, arguing that portions of the statement were,

13     in substance, an expert report which should have been tendered pursuant

14     to Rule 94 bis and that it had not received proper disclosure of

15     underlying documents to be able to assess the witness's opinions, and for

16     these reasons the Prosecution requested that paragraphs 3, 5, and 7 of

17     the statement be stricken, or, alternatively, that the Prosecution be

18     provided adequate time to prepare for cross-examination following

19     disclosure of the underlying documents.  The matter was also addressed in

20     court that day and was the subject of informal communications between the

21     parties and the Chamber on the 10th of July, 2009.

22             On the 14th of July, the Rule 92 ter statement was orally

23     tendered into evidence and subsequently marked for identification as

24     D1607.  This can be found at transcript pages 20.260.

25             On the 15th of July, 2009, the Chamber partially admitted

Page 21131

 1     Witness Sterc's Rule 92 ter statement, excluding paragraphs 3, 5.1, 5.2,

 2     5.3, 5.4, and 7.  This decision can be found at transcript pages 20.343

 3     and 20.344.

 4             The Chamber previously considered that parties are not

 5     necessarily precluded from eliciting opinions from fact witnesses, that

 6     clear lines cannot always be drawn between fact and opinion and very

 7     simple statements can also include elements of both.  When a fact witness

 8     offers an opinion as part of his testimony, the Chamber considers whether

 9     that opinion has a factual basis in what the witness has personally

10     experienced, and whether the witness needed any special knowledge,

11     experience, or skills in order to substantiate it.

12             In determining whether a piece of evidence can be admitted, the

13     Chamber further considers whether the evidence predominantly consists of

14     opinions or facts.  However, when a witness provides opinions or

15     conclusions that are of an expert character, that is, they require that

16     the person providing them has some sort of specialised knowledge, skill,

17     or training, the Chamber expects this witness to provide this expert

18     opinion in full transparency of the established or assumed facts he or

19     she relies upon and of the methods used when applying his or her

20     knowledge, experience, or skills to form his or her expert opinion.

21     Whenever possible, the parties should be given the opportunity to test or

22     challenge the factual basis and methodology on which the expert has

23     reached his or her conclusions.  Moreover, a minimum degree of

24     transparency in the sources and methods used in an expert report is

25     required at the stage of admission into evidence in order for the Chamber

Page 21132

 1     to determine the report's probative value.  The Chamber should be

 2     satisfied that the expert witness has at his or her disposal the special

 3     knowledge, experience, or skills needed to potentially assist the Chamber

 4     to understand or determine issues in dispute.

 5             The fulfilment of these requirements is usually ensured through

 6     the mechanisms of Rule 94 bis of the Rules.  In the present case, the

 7     witness was not proposed by the Gotovina Defence pursuant to this Rule.

 8     The Chamber considered paragraphs 3, 5.1, 5.2, 5.3, 5.4, and 7 of

 9     Witness Sterc's Rule 92 ter statement, which described the results of

10     demographic and scientific analysis and contain further conclusions that

11     were drawn on the basis of these results, to be of an expert character.

12             In order to prevent expert testimony being presented under the

13     guise of a witness of fact, the Chamber expects the evidence presented by

14     Witness Sterc to meet the requirements which apply in relation to expert

15     witnesses set out above.  However, the Chamber found that, in the present

16     case, the opinions and conclusions of Witness Sterc were not provided in

17     full transparency of the established or assumed facts he relied upon and

18     of the methods he used to form these opinions and conclusions.

19     Consequently, the Chamber found that the parties were not in a position

20     to explore the basis on which Witness Sterc reached these conclusions and

21     the Chamber was not in a position to adequately assess the probative

22     value of these portions of the witness's 92 ter statements.

23     Paragraphs 3, 5.1, 5.2, 5.3, 5.4, and 7 of Witness Sterc's Rule 92 ter

24     statement were therefore not admitted into evidence.

25             The Chamber was satisfied that the remains parts of

Page 21133

 1     Witness Sterc's witness statement are relevant and of probative value and

 2     could be admitted pursuant to Rule 92 ter (A) of the Rules.  For these

 3     reasons, the Chamber decided to partially admit Witness Sterc's

 4     Rule 92 ter statement into evidence, excluding paragraphs 3, 5.1, 5.2,

 5     5.3, 5.4 and 7.

 6             And this concludes the Chamber's reasons for its decision on the

 7     admission of the Rule 92 ter statement for Witness Sterc.

 8             The Chamber also has to give the reasons for the decision on the

 9     Prosecution's objection to the Barkovic Rule 92 ter statement.

10             These are the Chamber's reasons for denying the Prosecution's

11     objection to the Gotovina Defence's submission of the Rule 92 ter

12     statement of Witness Barkovic.

13             On the 10th of June, 2009, the Gotovina Defence submitted a

14     Rule 92 ter statement for Witness Barkovic.

15             On the 23rd of June, the Prosecution filed an objection to the

16     statement, requesting both that a portion of the statement be stricken

17     and that the witness be precluded from testifying as an expert on certain

18     matters, due to lack of qualifications.

19             On the 25th of June, 2009, the Gotovina Defence requested leave

20     to reply.  The Chamber granted the request and informed the parties

21     accordingly through an informal communication on the 29th of June, 2009.

22             The Gotovina Defence's reply, filed on the 30th of June, 2009,

23     asserted that the testimony would focus on facts, not on expert opinions

24     and that the witness had sufficient experience in the relevant field to

25     provide a factual basis for his statements.  Additionally, the reply

Page 21134

 1     cited an earlier decision from this case, which held that there was no

 2     need for an order preventing the Prosecution from seeking opinions from a

 3     fact witness.  This decision can be found at transcript pages 1927

 4     through 1929.

 5             In court on the 9th of July, 2009, the Chamber denied both the

 6     Prosecution's objection to the admission of portions of the statement and

 7     its request to prevent the witness from testifying on certain matters.

 8     This decision can be found at transcript page 20.117.

 9             In the decision cited by the Gotovina Defence, the Chamber noted

10     that, although the testimony of any witness might contain opinions, the

11     parties have sufficient opportunity to challenge these in court and are

12     instructed to explore their factual basis.  The Chamber remains mindful

13     of this reasoning.  Clear lines cannot always be drawn between fact and

14     opinion, and very simple statements can also include elements of both.

15             As the Chamber has already set out in its reasons for its

16     decision to strike paragraphs 3, 5.1, 5.2, 5.3, 5.4, and 7 from

17     Witness Sterc's Rule 92 ter statement, when a fact witness offers an

18     opinion as part of his testimony, the Chamber considers whether that

19     opinion has a factual basis in what the witness has personally

20     experienced.  When a witness provides opinions or conclusions which are

21     of an expert character, the Chamber expects this witness to provide its

22     expert opinion in full transparency of the established or assumed facts

23     he or she relies upon and of the methods used when applying his or her

24     specialized knowledge, experience, or skills to form his or her expert

25     opinion.  In determining whether a piece of evidence can be admitted, the

Page 21135

 1     Chamber further considers whether the evidence predominantly consists of

 2     opinions or facts.

 3             In the present case, the Chamber was satisfied that in

 4     Witness Barkovic's 92 ter statement where he described having worked for

 5     several years in the field that was the subject of his testimony, the

 6     witness focuses on facts, not opinions of an expert character, and that

 7     the statement concerns his own experience and observations.  The Chamber

 8     concluded that the factual bases for the challenged portions of Witness

 9     Barkovic's statement and oral testimony could be explored sufficiently

10     with reference to his personal experiences, and that the conclusions were

11     not of a kind to require some specialised knowledge, skill or training,

12     and for these reasons, the Prosecution's request -- should say requests

13     to strike parts of the witness statement and to limit the scope of his

14     testimony were denied.

15             And this concludes the Chamber's reasons for its decision on the

16     Prosecution's objection to the Rule 92 ter statement for

17     Witness Barkovic.

18             The last decision to be delivered is the Chamber's decision on

19     the admission into evidence of Exhibit P2593.

20             On the 17th of July, 2009, during the cross-examination of

21     Witness Sterc, the Prosecution tendered into evidence the transcript of a

22     meeting between members of the Croatian leadership on, amongst other

23     matters, the reintegration of Serbs into Eastern Slavonia.  The Gotovina

24     Defence objected to the admission into evidence of the document.  The

25     Chamber subsequently invited the parties to make further submissions on

Page 21136

 1     the issue.  This can be found at transcript pages 20.433 to 20.437.

 2             On the 20th of July, 2009, both the Gotovina Defence and the

 3     Prosecution filed further submissions.  Neither the Cermak Defence nor

 4     the Markac Defence made any submissions.

 5             In its submissions, the Gotovina Defence argues that the

 6     Prosecution failed to comply with its obligations under Rule 90(H)(ii) of

 7     the Rules to introduce the document P2593 during cross-examination of

 8     Witness Skare Ozbolt, who, unlike Witness Sterc, was present at the

 9     meeting that P2593 transcribes.  It argues that the document should

10     therefore not be admitted into evidence.  The Prosecution submits that

11     P2593 is relevant to, and of probative value on, the views of members of

12     the Croatian leadership on the desirability of a largely ethnically

13     homogeneous Croatia.  It further submits that, by putting its case on

14     this matter to Witness Skare Ozbolt, it had fulfilled its obligations

15     under Rule 90(H)(ii) of the Rules during cross-examination of this

16     witness.

17             Rule 90(H)(ii) of the Rules provides as follows, and I quote:

18             "In the cross-examination of a witness who is able to give

19     evidence relevant to the case for the cross-examining party, counsel

20     shall put to that witness the nature of the case of the party for whom

21     that counsel appears which is in contradiction of the evidence given by

22     the witness."

23             In its Judgement in the case of Momcilo Krajisnik, the

24     Appeals Chamber explained that this rule seeks to facilitate the fair and

25     efficient presentation of evidence whilst affording the witness being

Page 21137

 1     cross-examined the possibility of explaining himself on those aspects of

 2     his testimony, contradicted by the opposing parties' evidence.  This

 3     would saving the witness from having to reappear needlessly in order to

 4     explain him or herself and would enable the Trial Chamber to evaluate the

 5     credibility of the testimony more accurately.  The Appeals Chamber

 6     concluded that in order to fulfil the requirements of this rule, it is

 7     sufficient that the cross-examining party puts to the witness the general

 8     substance of its case conflicting with the evidence of the witness.

 9             In the present case, the Prosecution put to Witness Skare Ozbolt

10     various documents, apparently aiming to show that the policy of the

11     Croatian leadership was to minimise the number of Serbs in

12     Eastern Slavonia and the Krajina region, and that their primary concern

13     was to permanently settle Croats in these areas.  This can be found at

14     transcript pages 18.148 to 18.165; at pages 18.188 to 18.196; and at

15     pages 18.202 to 18.212.

16             The Chamber therefore considers that Witness Skare Ozbolt had

17     sufficient opportunity to explain herself on those aspects of her

18     testimony relating to the policy of the Croatian leadership with regard

19     to Eastern Slavonia which were contradicted by the Prosecution's

20     evidence.

21             In the Krajisnik Appeals Judgement, the Appeals Chamber moreover

22     found that there is no need under Rule 90(H)(ii) for the cross-examining

23     party to explain every detail of the contradictory evidence and that the

24     rule allows for some flexibility depending on the circumstances of the

25     trial.  Consequently, the Chamber finds that there is no obligation under

Page 21138

 1     Rule 90(H)(ii) for the cross-examining party to put to the witness all

 2     documents or any specific document which might relate to a witness's

 3     evidence which is contradictory to a party's case.

 4             Considering this, and in view of the purpose of the Rule, the

 5     Chamber finds that the Prosecution has, in this case, not breached its

 6     obligation under Rule 90(H)(ii).  Notwithstanding this, the Chamber

 7     reiterates that it is best assisted if documents are tendered in a

 8     meaningful way through witnesses who are in a position to provide the

 9     best possible contextualisation.

10             The Chamber proceeds to consider whether the document meets the

11     requirements for admission into evidence under Rule 89 (C) of the Rules,

12     that is, whether the documents are relevant and of probative value.  No

13     argument was advanced by the Gotovina Defence challenging either the

14     relevance or the probative value of the document.

15             P2593 is the transcript of a meeting between members of the

16     Croatian leadership, including persons who allegedly were members of the

17     alleged joint criminal enterprise, which could provide an insight into

18     their views and policies relating to the return of Serbs to Croatia and

19     on issues related to the re-integration of Serbs.  While noting that the

20     territorial scope of the indictment is not focussing on Eastern Slavonia

21     but, rather, the municipalities listed in Counts 1 through 9, the Chamber

22     is satisfied that Operation Storm cannot be viewed in temporal or

23     geographical isolation but forms an episode in a continuum and the

24     document is relevant and of probative value.

25             The Chamber hereby admits document P2593 into evidence.

Page 21139

 1             The Chamber notes that the English translation of the exhibit is

 2     missing the cover page included in the B/C/S original, and therefore,

 3     instructs the Prosecution to add the missing page to the English

 4     translation and to notify the Registrar, the Chamber, and the parties

 5     when this has been done.

 6             And this concludes the Chamber's decision on the admission into

 7     evidence of P2593.

 8             The Chamber would like to put on the record that an extra session

 9     has been scheduled for the afternoon of Friday, the 11th of September, in

10     order to finish the testimony of witness Corn before the weekend.

11             The Chamber was informed that the Prosecution's objections to the

12     use of certain documents with Witness Corn, focussing on three documents,

13     has become moot because the Gotovina Defence does not intend to use those

14     documents anymore.

15             MR. KEHOE:  On direct, that's correct, Mr. President.

16             JUDGE ORIE:  On direct.  Yes.

17             Mr. Russo, I see you're rising your eyebrows.

18             MR. RUSSO:  I'm only raising my eyebrows, Mr. President, because

19     it seems that the answer not intending to use them in direct seems to

20     suggest that there's an intent to use them perhaps on redirect or at some

21     other time.

22             JUDGE ORIE:  May I take it, Mr. Kehoe, that you -- that you would

23     leave it open whether cross-examination could create a situation in which

24     you -- although not using the documents in direct, that would create a

25     need to use them in re-examination.

Page 21140

 1             MR. KEHOE:  Yes, Mr. President.

 2             JUDGE ORIE:  Thank you.

 3             Then, finally, the Chamber was informed that there is an issue

 4     which the Chamber does not intend to deal with at this very moment, an

 5     issue about disclosure of exculpatory evidence.  We'll hear from the

 6     parties at the appropriate time, what the objection or what the

 7     complaints exactly are about, and how to further deal with them.

 8             MR. KEHOE:  One issue on that score, and I'm not sure if

 9     something would come up in cross-examination which would trigger our

10     potential use of this document.  Again, it's an issue that just came to

11     my attention.  We have not gone through it.  I will tell you,

12     Mr. President, as an officer of the court, we have not gone through it

13     and made it a part of Professor Corn's expert report.  But I just simply

14     can't anticipate everything that is going to be brought up by the

15     Prosecution on cross, and it could very well be something that could be

16     relevant on re-direct.

17             JUDGE ORIE:  Yes, when you said, "We have not gone through it and

18     made it a part of Professor Corn's expert report," which is ambiguous

19     language, that you wanted to say you have not gone through it and you had

20     not made it part --

21             MR. KEHOE:  That's right, sir.  I apologise for the in-artful way

22     that I phrased that, but the essence is as Your Honour has articulated.

23             JUDGE ORIE:  Thank you.

24             Then I have no further procedural matters which would oppose

25     against now hearing the testimony of the expert, Mr. Corn.

Page 21141

 1             Mr. Russo.

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

 3             Before I begin I just wanted the opportunity to introduce to the

 4     Trial Chamber and to counsel a new attorney on our team,

 5     Ms. Adria Delandry [phoen].

 6             JUDGE ORIE:  Welcome in the courtroom.

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

 8             JUDGE ORIE:  I wouldn't consider that just a procedural matter,

 9     Mr. Russo.

10             Mr. Kehoe, are you ready to --

11             MR. KEHOE:  Yes, Mr. President.

12             JUDGE ORIE:  -- to examine Mr. Corn.

13             Then, Madam Usher, would you please escort Mr. Corn into the

14     courtroom.

15             May I urge the parties, and I'm aware that the Chamber has taken

16     close to one hour this morning, that I could nevertheless urge the

17     parties to use their time as efficiently as possible so that we are not

18     running in any trouble on Friday afternoon.

19                           [The witness entered court]

20             JUDGE ORIE:  Good morning, Mr. Corn.

21             THE WITNESS:  Good morning, Your Honour.

22             JUDGE ORIE:  Mr. Corn, before you give evidence in this court,

23     the Rules of Procedure and Evidence require that you make a solemn

24     declaration that you'll speak the truth, the whole truth, and nothing but

25     the truth.  The text is now handed out to you by Madam Usher, and I would

Page 21142

 1     like to invite you to make that solemn declaration.

 2             THE WITNESS:  I solemnly declare that I will speak the truth, the

 3     whole truth, and nothing but the truth.

 4             JUDGE ORIE:  Thank you, Mr. Corn.  Please be seated.

 5             THE WITNESS:  Thank you.

 6             JUDGE ORIE:  Could I already invite you, and remind Mr. Kehoe,

 7     that since you are speaking the same language to make short pauses

 8     between question and answer, and answer and question, so that the

 9     interpreters and transcribers are able to catch up with the speed of

10     speech.

11             THE WITNESS:  Yes, Your Honour.

12             JUDGE ORIE:  Mr. Kehoe will now examine you.

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

14                           WITNESS:  GEOFFREY CORN

15                           Examination by Mr. Kehoe:

16        Q.   Good morning, Professor.  Professor, can you state your name for

17     the record and spell your last name.

18        A.   Geoffrey S. Corn.  Last name is spelled C-o-r-n.

19             MR. KEHOE:  Mr. President, with the ease of moving through this

20     testimony I've provided the Registrar with a hard copy of some of these

21     documents, so if we can -- with the Court's permission if he could be

22     given that binder.

23             JUDGE ORIE:  Yes, as usual, permission is granted.

24             MR. KEHOE:

25        Q.   Professor, I would like to turn to your tab 1, which is 1D2949.

Page 21143

 1     The document just has to wait a minute to come up on the screen in front

 2     of you, so you will see both the document that have in your binder as

 3     tab 1, Professor, as well it coming up on the screen.

 4        A.   Okay.  I see it.

 5        Q.   Professor, do you recognise this document?

 6        A.   I do.

 7        Q.   And what is it?

 8        A.   This is my curriculum vitae.

 9        Q.   Sir ... Professor, we're not going to through everything in this

10     curriculum vitae, but can you briefly give your qualifications as well as

11     your education and military training to the Trial Chamber, sir.

12        A.   My civilian education began with my undergraduate bachelors of

13     arts degree from Hartwick College in Oneonta, New York, which I received

14     in 1983 with a degree -- a specialisation in history.

15             In 1989, I began my law degree education at George Washington

16     University.  I graduated from George Washington in 1992 with a juris

17     doctorate.  I graduated highest honours with that degree, which indicates

18     that my performance placed me in the top two per cent of my graduating

19     class.  In 1996, I attended the US Army Judge Advocate General's school.

20     The US Army Judge Advocate General, or JAG school, is the only military

21     school in the United States that's accredited by the American Bar

22     Association to grant an advance degree in law.  It's accredited to grant

23     a master's of law degree, an LL.M.  I was awarded the LL.M. at the end of

24     that ten-month course of study with a specialisation in international and

25     operational law.  And I graduated from that course first in my class as

Page 21144

 1     distinguished graduate.

 2             My military education began when I chose to enlist in the US Army

 3     in 1993.  I have been to numerous military schools.  I started as a

 4     private, attended basic combat training.  From there I attended US Army

 5     Officer Candidate School at Fort Benning, Georgia.  It's a four-month

 6     commissioning course.  I graduated as a distinguished military graduate

 7     from that course in 1984, June 1st.  From there I was branched a military

 8     intelligence officer.  I attended the US Army Military Intelligence

 9     Officers Basic Course at Fort Huachuca, Arizona.  That's a six-month

10     course focussed on training as a tactical intelligence officer.

11             I returned to Fort Huachuca in 1988 to attend a six-month

12     military intelligence officers advance course.  The focus of that course

13     is to teach you more of a specialty.  At that time I specialized in a

14     course on imagery analysis and exploitation.  While I was in that course

15     I was selected by the army to attend what's called the Funded Legal

16     Education Programme.  That's a programme the US Army offers to

17     approximately 10 to 15 officers every year to attend law school at

18     government expense in exchange for a commitment to serve as a Judge

19     Advocate for six years following your graduation.  It was after that

20     selection that I attended George Washington University to earn my law

21     degree.

22             When I graduated from law school, I then attended the Judge

23     Advocate General's Corps basic course in Charlottesville, Virginia, which

24     is the initial introductory course for new JAG officers, military

25     lawyers.  I went off to my first assignment as a JAG after that.  I

Page 21145

 1     returned to the JAG school in 1996 to attend the masters of law

 2     programme.  After completing that programme I served on the faculty at

 3     the Judge Advocate General's School in the International and Operational

 4     Law Department as a professor of international operational and national

 5     security law for three years.  During that time I was selected to attend

 6     the army's command and general staff college.  That is not a course that

 7     is designed for military lawyers.  It's a course designed primarily to

 8     teach field-grade level operations.  It's attended by about 1100 officers

 9     from all the services to include about 100 international officers.  Only

10     about 15 Judge Advocate General officers are selected each year to attend

11     that course.  It is a ten-month course at Fort Leavenworth, Kansas.  I

12     attended that course from 2000 -- the summer of 2000 till graduation in

13     May of 2001, and graduated at that time.  That was the last military

14     school I attended during my career.

15        Q.   Professor, when you use it's acronym JAG, J-A-G, I take it that

16     you're referring to the Judge Advocate General?

17        A.   The -- the organisation in the US Army for military attorneys is

18     called the JAG Corps, the Judge Advocate General Corps.  The Judge

19     Advocate General is the senior military lawyer for the United States

20     Army, and the navy and air force have their own TJAG, The Judge Advocate

21     General.  But when I refer to the JAG Corps or serving as a JAG, it is

22     synonymous with stating that I served in the capacity as a military legal

23     advisor.

24        Q.   Professor Corn, what rank in the military did you achieve prior

25     to your retirement and when did you actually retire from the military?

Page 21146

 1        A.   My official retirement date was 1 November 2004.  I retired in

 2     the rank of lieutenant-colonel.  I was promoted to each rank at the

 3     normal point in time, based on the statistics for the military, and that

 4     culminated in approximately 21 years of military, active military

 5     service.

 6        Q.   And since that time, Professor, have you continued to work in the

 7     field of the Law of Armed Conflict and other areas involving

 8     international humanitarian law in your subsequent endeavours?

 9        A.   Well, in fact, when I made the decision to retire from active

10     military service, I then applied and was selected for a position as a

11     civilian legal advisor with the Department of the Army that.  That

12     position was in the Office of the Judge Advocate General in the

13     international law division and I was the chief of the law of war branch.

14     The position is also designated as the special assistant for law of war

15     matters to the Judge Advocate General of the army.  But what -- the

16     position really was, was the army's senior law of war expert and I took

17     that position at the -- after I retired in the fall of 2004, with the

18     expectation that I would spend a good deal of time serving in that

19     civilian capacity with the army.  It was about halfway through that year

20     that I was offered the opportunity to join a law faculty as a full-time

21     professor, and I made a decision that that was what I wanted to do and I

22     thought that it was an opportunity that might not present itself again.

23     So it was a difficult choice, but at that time, I chose to leave

24     government service and move to academia.

25        Q.   And I note from your curriculum vitae that, as we speak, you are

Page 21147

 1     an associate professor of law at South Texas College of Law.

 2        A.   That's right.  I have been at South Texas for a little bit more

 3     than four years.  I teach criminal law, constitutional criminal

 4     procedure, the Law of Armed Conflict, comparative counter-terrorism law,

 5     and during that time, my scholarship has focussed almost exclusively on

 6     issues related to the Law of Armed Conflict, to includes a book that I've

 7     written with some colleagues, former JAG officers, that is going to be

 8     published in about two weeks, I think, by Oxford University Press, titled

 9     "The Law of War and the War on Terror."

10        Q.   Professor, directing your attention to the field of artillery and

11     can you just give a brief over view to the Trial Chamber of your

12     knowledge and training with respect to the artillery and how your

13     experiences qualify you to provide an expert analysis of the application

14     of Law on Armed Conflict and the use of artillery during military

15     operations?

16        A.   Well, obviously from my discussion of my military education, I --

17     it's clear I never served as an artillery officer, but both in my

18     capacity as a tactical intelligence officer and in my capacity as a

19     military legal advisor, I had routine experiences related to the

20     assessment and analysis of the use of artillery and artillery support in

21     the planning and execution of planned and military operations for

22     training and some planing involving military operations for actual

23     combat.

24             This really began when I started my military career as a tactical

25     intelligence officer in Panama.  I was an assistant intelligence officer

Page 21148

 1     in a infantry brigade, and I was the intelligence staff officer for a

 2     paratroop infantry battalion in Panama, and in that capacity you're

 3     constantly involved in the targeting process during training and

 4     preparation for operations, training both with our forces and

 5     multi-national forces all over South and Central America.

 6             The interrelationship between the tactical intelligence officer

 7     and the fire support officer is -- it's just in -- indelible connection

 8     because the fire support officer is responsive to the intelligence

 9     information that's being produced related to the tactical execution of

10     the operation.  That continued, obviously, during the military education

11     I had.  All military education in the US Army has a core component, so

12     when you intend [sic], for example, the intelligence basic or advanced

13     course, you begin with a ten-week core curriculum that all military

14     officers are provided, and part of that is learning the basic aspects of

15     the fire support system and the fire support process.

16             I think my -- actually my understanding of fire support increased

17     when I began serving as a JAG officer.  My first assignment as a JAG was

18     at fort Campbell, Kentucky, with the 101st Airborne Division.  And while

19     I served in that position I was the legal advisor for a brigade combat

20     team, the 3rd Brigade combat team, and in that capacity I was the officer

21     responsible for providing the commander advice and his staff advice on

22     the legality of the employment of combat power during the training and

23     execution of military operations.  So I was routinely involved in

24     targeting meetings, target assessment, target analysis, and there is a

25     close interrelationship between the JAG and the fire support officer

Page 21149

 1     because, obviously, fire support missions have a significant potential

 2     for implicating compliance with the Law of Armed Conflict.

 3             That experience continued at the JAG school.  One of the things

 4     we endeavoured to do was to make sure we taught student not only the law

 5     but the context in which the law would be applied.  So in our education

 6     and training at the JAG school for US Army and multi-service and some

 7     international military legal advisors, they were required to gain a basic

 8     understanding of the role of fire support and the capability and effects

 9     of fire support assets that are routinely used in US military operations.

10             And then when I went to Germany as the chief of international law

11     for US Army Europe, one of the -- I was there from 2001 to 2003, and

12     obviously during that time there was significant preparation for

13     US military forces to participate in operations Enduring Freedom in

14     Afghanistan and Iraqi Freedom in Iraq.  As a matter of fact, the unit

15     across the street from us in Heidelberg, the 5th United States Army

16     Corps, was designated as the land force component command for Operation

17     Iraqi Freedom in March of 2003.  And we were extensively involved in the

18     training and preparation of the JAG officers that would participate in

19     that military operation and also in review of plans and orders related to

20     that operation, to ensure they complied with the Law of Armed Conflict

21     and any established policy mandates.

22             So my interaction with the fire support system has been extensive

23     from the beginning of my military career till the time I retired.

24             JUDGE ORIE:  Would you please slow down.

25             THE WITNESS:  I apologise.

Page 21150

 1             MR. KEHOE:  Your Honour, at this time, we will offer into

 2     evidence 1D2949, the curriculum vitae of Professor Corn.

 3             MR. RUSSO:  No objection, Mr. President.

 4             JUDGE ORIE:  Mr. Registrar.

 5             THE REGISTRAR:  Your Honours, that becomes Exhibit D1641.

 6             JUDGE ORIE:  And is admitted into evidence.

 7             MR. KEHOE:

 8        Q.   Professor, in your experience have you testified as an expert

 9     before in a court of law?

10        A.   I testified as an expert on the Law of Armed Conflict in the

11     military commission trial of Salim Hamdan in the summer of 2007.

12             MR. KEHOE:  Mr. Registrar, I'd like to bring up 1D2772.

13        Q.   And that is tab 2 in your binder, Professor, your report.

14             Professor, do you recognise the report that's on the screen --

15        A.   Yes, I do.

16        Q.   -- as well as the tab 2 in your binder as the report that you

17     prepared at the request of the Gotovina Defence team?

18        A.   Yes, I do.

19             MR. KEHOE:  Your Honour, at this time, we'll offer into evidence

20     1D2772.

21             MR. RUSSO:  Mr. President, the objections we put in our notice

22     still stand.

23             JUDGE ORIE:  Then, Mr. Registrar, could you please assign a

24     number for this document, which will be marked for identification.

25             THE REGISTRAR:  Your Honours, that will become Exhibit D1642,

Page 21151

 1     marked for identification.

 2             JUDGE ORIE:  Thank you, Mr. Registrar.

 3             Please proceed, Mr. Kehoe.

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

 5        Q.   Before going into the substance, Professor, I would like to talk

 6     to you just a bit about the retention by the Gotovina Defence, what you

 7     were asked to do, and if you can give us a basic general chronology of

 8     how this relationship transpired, starting with your retention as an

 9     expert by the Gotovina Defence.

10             Do you recall that, sir?

11        A.   I was initially contacted by the Defence --

12             JUDGE ORIE:  If you would not mind I would like to briefly

13     interrupt.

14             The Chamber is aware that there was a supplemental information

15     sheet which was created which covers many, if not all of what you're

16     going to ask the witness.

17             Mr. Russo, it seems all to be of rather factual character.  The

18     Chamber was also informed that the parties disagreed on whether this

19     could be introduced, whether it should be introduced, but also whether it

20     could be introduced under Rule 92 ter.  It is quite a lengthy document,

21     it's quite a lot of information.  Is there any way of -- for the Chamber

22     to save time in just reading how this developed?

23             MR. KEHOE:  I think there is, Mr. President.  I informed your

24     Court Officer that we no objection to it coming into evidence.  It has

25     been written and signed on the last page by Professor Corn.  I will

Page 21152

 1     dispense with this entire section of preparation that is delineated in

 2     the supplemental information sheet if it just comes in and the Chamber

 3     can read it.

 4             JUDGE ORIE:  Mr. Russo, what's the problem with admission under

 5     Rule 92 ter?

 6             MR. RUSSO:  Well, procedurally I don't think there is any problem

 7     with admitting a supplemental information sheet under Rule 92 ter.  My

 8     problem with this particular supplemental information sheet has to do

 9     with the latter half of paragraph 2, and all of paragraph 3, to the

10     extent that the witness is offering a personal assessment of credibility

11     determination of another witness.

12             JUDGE ORIE:  Mr. Kehoe.

13             MR. KEHOE:  That, of course, I think we're talking about the --

14     the assessment of Lieutenant-Colonel Konings.  I intend to develop some

15     of that here.  If Your Honour wants to MFI this particular document, and

16     decide after cross-examination whether or not, or direct examination, for

17     that matter, whether or not sufficient underpinnings need to be presented

18     with regard to this, we will gladly do so.

19             I do think, though, that it would abbreviate the direct

20     examination significantly if this document just came into evidence at

21     this point.

22             JUDGE ORIE:  Is there any possibility that where the objections

23     are just about the latter half of paragraph 2 and paragraph 3 that you

24     elicit that evidence --

25             MR. KEHOE:  No problem.

Page 21153

 1             JUDGE ORIE:  -- orally?  And then may I take it --

 2             Mr. Russo, would that be --

 3             MR. RUSSO:  That's fine, Mr. President.  Although --

 4             JUDGE ORIE:  Then that's -- of course, the first half of

 5     paragraph 2 is of a factual basis.  I don't know where your objections

 6     start, whether it's at:  "I explained," or "this was because my critique

 7     focussed on systematic" --

 8             MR. RUSSO:  Actually, Mr. President, my objection begins at the

 9     word "however."

10             "However, I also suspected ..."

11             JUDGE ORIE:  Yes.  Wouldn't be the solution that be the

12     supplemental information will be tendered under Rule 92 ter with the

13     exception of the second half of paragraph 2 starting from the word

14     "however," and paragraph 3.

15             If the parties would agree on that.

16             MR. RUSSO:  We have no objection to that, Mr. President.

17             MR. KEHOE:  We can do that, Mr. President.  I -- I, in fact, will

18     go through some of those issues with the witness in the latter portion of

19     his direct.

20             JUDGE ORIE:  Okay.  Whether you want to deal with that not

21     separately in the context of this supplemental information sheet but in

22     the course of the -- of the testimony in chief, I leave that entirely to

23     you.

24             Could then the Gotovina Defence upload into e-court a redacted

25     version of the supplemental information and could you seek the

Page 21154

 1     attestations, and if need be, the witness could read, over the next break

 2     perhaps, again the supplemental information sheet.

 3             MR. KEHOE:  I believe we can do that now, Mr. President.

 4             JUDGE ORIE:  Okay.

 5             MR. KEHOE:  I think the witness would be comfortable enough.  He

 6     in fact read this and signed it last night.  And --

 7             JUDGE ORIE:  Okay.  That's fine.

 8             Please proceed --

 9             MR. KEHOE:  Yes.

10             JUDGE ORIE:  -- as you suggest.

11             MR. KEHOE:

12        Q.   If -- at this point if we could turn to tab 5, Professor, in your

13     binder.

14             MR. KEHOE:  And if we could put on the screen 1D2956.

15        Q.   Do you recognise this, Professor?

16        A.   Yes, I do.

17        Q.   And do you recognise it as a series of information that you

18     provided to the Gotovina Defence that was written with your participation

19     last night, the 9th [sic] of September, 2009?

20        A.   Yes, I do.

21             JUDGE ORIE:  You said that --

22             MR. KEHOE:  Excuse me, 6th of September --

23             JUDGE ORIE:  Yes, Mr. Kehoe, I understand your wish to proceed as

24     quickly as possible but yesterday was the 6th.

25             MR. KEHOE:  I am looking at the 6th of September.  I apologise.

Page 21155

 1     Getting ahead of myself.

 2        Q.   Professor, when you provided this information to the Gotovina

 3     Defence, was it truthful?

 4        A.   It was.

 5        Q.   And if I ask you questions concerning the information that's

 6     contained herein, would you provide the same answers?

 7        A.   Yes, I would.

 8        Q.   And is there anything other than the paragraphs that we are not

 9     to consider -- sentences we are not to consider, which is in paragraph 2

10     from "however" to the end of that paragraph, and all of paragraph 3.  Is

11     there anything in that particular -- those -- those four pages that you

12     wish to correct, modify or delete, or is this a fair and accurate

13     representation of the information provided yesterday?

14        A.   There is nothing that I would ask to change, and yes, this is a

15     fair and accurate representation of the discussions we had to overview

16     the relationship and how it developed yesterday.

17             MR. KEHOE:  Your Honour, at this time, I'll offer into evidence

18     1D2596, with -- subject to, of course, Your Honours' guidance.

19             MR. RUSSO:  No objection, Mr. President.

20             JUDGE ORIE:  Mr. Registrar, that would become number.

21             THE REGISTRAR:  Exhibit D1643, Your Honours.

22             JUDGE ORIE:  Yes, and as it is uploaded now, exempted from the

23     admission is the second part of paragraph 2 starting with:  "However, I

24     also suspected," up to the end and paragraph 3, and the Gotovina Defence

25     is invited to inform the Registrar once it has uploaded a redacted

Page 21156

 1     version of this document.

 2             Apart from that, D1643 is admitted into evidence.

 3             Please proceed.

 4             MR. KEHOE:  Thank you, Mr. President.  If I might just have one

 5     moment, Mr. President.

 6                           [Defence counsel confer]

 7             MR. KEHOE:

 8        Q.   Professor, I would like to address with you the areas that we've

 9     deleted from this, and that goes to basically the focus of

10     Lieutenant-Colonel Konings's report which you were asked to examine at

11     the outset of your retention by the Gotovina Defence.  And if we could

12     turn our attention to tab 4, which is P1259.  And P1259 is tab 4 in your

13     book.

14             MR. KEHOE:  Mr. President, before we talk about P1259, as part of

15     my prior presentation of going through the work that was employed, and in

16     the effort for full transparency I was going to admit into evidence the

17     first one of the letters that was used by Professor Corn when he was

18     preparing his report, and that is in 1D2952, that's the letter of

19     27 March 2009, and we would offer that document into evidence as well.

20             MR. RUSSO:  No objection, Mr. President.

21             JUDGE ORIE:  Mr. Registrar.

22             THE REGISTRAR:  Your Honours, that will become Exhibit D1644.

23             JUDGE ORIE:  And is admitted into evidence.

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

25        Q.   Just going back to the document, Professor, that's on the screen,

Page 21157

 1     which is the -- in tab 4, which is Lieutenant-Colonel Konings's report.

 2     And before we go into the specifics of this report can you give a general

 3     overview, Professor, of the issues that you had with this report at the

 4     outset, when you were retained by the Gotovina Defence, and then we're

 5     going to talk about specific portions of it.

 6        A.   Well, this was the -- this was related to the first contact I had

 7     with the Defence team.  I was asked in December of 2008 if I would be

 8     willing to review a report that had been submitted by an expert on behalf

 9     of the Prosecution, with the view of essentially critiquing it from the

10     perspective of whether it was an accurate or effective explanation of the

11     law, as it related to the employment of indirect fire artillery.

12             So I was provided with this report, and so obviously my first

13     step in this process was to do my own self-assessment of the report.  And

14     as I read through the report, I became convinced that the report included

15     a substantial number of significant misstatements of the law, and I also

16     became concerned that the report included modifications of what appeared

17     to me to be regurgitations of doctrine, military doctrine related to the

18     use of fire support assets, and based on that conclusion, I informed the

19     Gotovina Defence that I did feel that I could and that I should offer my

20     opinion on what I considered to be the flaws or the errors in the report.

21        Q.   Let us talk about a few items in this report and maybe we can

22     elaborate on your last statement just a bit more.

23             And let us begin, for instance, on the first page under 1(c)(iv).

24             Without reading everything that is above, the statement that

25     Lieutenant-Colonel Konings had was:

Page 21158

 1             "The above-stated purpose of the support -- of fire support leads

 2     to the preliminary conclusion that fire support should not be used

 3     against civilian targets."

 4             Now was that particular comment significant to you when you read

 5     it, Professor, and why?

 6        A.   It was significant to me, and it really jumped out at me right at

 7     the beginning for a number of reasons.

 8             First off, I am more than familiar with the style of US Army

 9     doctrinal writing.  It was apparent to me that, reading up to that point,

10     what I was reading was a copy of US Army military doctrine and I didn't

11     pull the fire support doctrine to validate that.  It was kind of an

12     instinctual reaction.  But that number 4 was inconsistent with the rest

13     of the provision, so it looked to me like it was an addition to what had

14     otherwise been a statement of military doctrine, and it was somewhat

15     internally contradictory.  As an expert on the Law of Armed Conflict my

16     reaction was there is no such thing as a civilian target.  A target is

17     lawful military objective.  A civilian is presumptively immune from being

18     made the object of attack, unless and until the civilian takes a direct

19     part in hostilities at which point they cease to benefit from their

20     civilian immunity.

21             So the terminology that fire support will not be used against

22     civilian targets is -- it's axiomatic, that the notion that you will make

23     a civilian a target is a -- it wouldn't be -- you wouldn't use that

24     terminology in military doctrine.  You would say fire support should

25     never be used to target immune people or places, or civilians are immune

Page 21159

 1     from being made the object of attack, not conflating the words "civilian"

 2     and "target."

 3        Q.   If we can turn the page in English, and I would like to show you

 4     another portion and that is in the paragraph towards the bottom of the

 5     page where you see H.

 6             MR. KEHOE:  Can you scroll down just a little bit there.  That's

 7     right.

 8             JUDGE ORIE:  Mr. Kehoe, if you would not mind that I'm trying to

 9     seek clarification of the previous answer of the witness.

10             You're mainly concerned about the language used.  You do not

11     disagree in any way, would you?

12             THE WITNESS:  I certainly do not disagree with the proposition

13     that civilians are immune from being made the object of attack.

14             JUDGE ORIE:  And therefore should never be targeted.

15             THE WITNESS:  Should not be targeted.

16             JUDGE ORIE:  Yes.

17             THE WITNESS:  I was concerned that the terminology reflected both

18     a supplement to the doctrinal provision that -- that it was connected to

19     and also --

20             JUDGE ORIE:  In what way a supplement?

21             THE WITNESS:  In other words, up to that point, I'm reading what

22     is operational doctrine.  That Roman numeral IV is an addition of -- it's

23     an effort to supplement that with a rule from the Law of Armed Conflict,

24     but it is inartfully phrased which suggests to me that it was not written

25     by a Judge Advocate General who was involved in the doctrinal development

Page 21160

 1     or review process.

 2             JUDGE ORIE:  You explained to us that you would never use the

 3     word "civilian target" because civilians are immune from -- at least

 4     should be.  It is self-exploratory; you don't have to tell it.  Could the

 5     difference be that the language used by Mr. Konings allows for the

 6     possibility that someone is illegally targeting civilians and that he

 7     expresses that.  Whereas you say, Don't use that language because you

 8     would never fire at a target which -- of the kind Mr. Konings considers

 9     to be civilian; that is because of its civilian character immune from

10     attack not being a military target which could be attacked.

11             THE WITNESS:  That it was my absolute conclusion.  That's exactly

12     what I felt.  I -- I had no problem understanding the import of what was

13     said.  It was an indication to me, though, my first indication as I'm

14     reading this that something had been added to the doctrinal discussion

15     that led up to it.

16             JUDGE ORIE:  And what now exactly was added?

17             THE WITNESS:  That provision that was an obvious effort to

18     articulate a basic rule of the Law of Armed Conflict, that because

19     civilians are immune from being made the object of attack they should

20     not -- shall never be made the object of the use of indirect fire.  But

21     the terminology caught my attention.

22             JUDGE ORIE:  Yes, but there's nothing --

23             THE WITNESS:  The word choice.

24             JUDGE ORIE:  But there's nothing in the substance --

25             THE WITNESS:  No.

Page 21161

 1             JUDGE ORIE:  -- with which you would disagree.

 2             THE WITNESS:  No.

 3             JUDGE ORIE:  Okay.  Thank you.

 4             Please proceed, Mr. Kehoe.

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

 6        Q.   Well, let us move on to the next page that we were about to

 7     address, and that is in paragraph 8.  Excuse me, H.  The -- should be on

 8     page 2 and it says:

 9             "The fire support system is a system that supports and enables

10     military operations and should therefore only be used for targeting

11     military targets.  Only in a case of self-defence military -- only in a

12     case of self-defence military units (including fire support units) may be

13     forced to fire on civilian targets."

14             Can you comment on that inclusion in Lieutenant-Colonel Konings's

15     report?

16        A.   Yes, that's another provision that immediately caught my

17     attention, again because, while I think I understood the essence of what

18     was being said, the -- the way it was expressed I thought was dangerously

19     overbroad.  The suggestion, I think, or the intent was to suggest that

20     civilians are immune from being made the object of attack, unless and

21     until they trigger a right to act in self-defence because they've taken a

22     direct part in hostilities.  But the way it's phrased is far more

23     overbroad than that.  It would suggest that any time a military commander

24     felt that targeting an immune civilian would contribute to the defence of

25     his or her forces, then would it would be justified.  And that's

Page 21162

 1     improper.  And so, again, it looked to me like an area that -- or a

 2     provision that was included in another -- in an otherwise broad adoption

 3     of a doctrinal statement, but the way it was phrased suggested to me it

 4     was not written by somebody with expertise in the Law of Armed Conflict

 5     because of its overbreadth.

 6             MR. KEHOE:  Mr. President, I was going to proceed in this vein.

 7     I don't know if you want to take a break at this point, or have me

 8     proceed.  I will gladly do either.

 9             JUDGE ORIE:  I think it's the right time to have a break.

10             Mr. Corn, we will have a break.

11             We resume at five minutes to 11.00.

12                           --- Recess taken at 10.33 a.m.

13                           --- On resuming at 11.00 a.m.

14             JUDGE ORIE:  Mr. Kehoe, please proceed.

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

16        Q.   Professor, if we could move to page 5 of

17     Lieutenant-Colonel Konings's report, and I'd like to address a couple of

18     other items.

19             And on that first carry-over paragraph, Professor, before the

20     (b), I would just like to focus you on the sentence of:

21             "Artillery assets can only" --

22             Do you see that see, sir?

23             "Artillery assets can only be used," do you see that sentence?

24        A.   Just a moment.

25        Q.   It's the carry-over paragraph, the last sentence.

Page 21163

 1        A.   On page 5?

 2        Q.   On page 5 of the report.

 3             Do you see paragraph (b), sir?

 4        A.   Yeah.

 5        Q.   Okay.  Right above paragraph (b).

 6        A.   Mm-hm.

 7        Q.   And it's the sentence that begins:

 8             "Artillery assets can only be used in -- in case ..."

 9        A.   Excuse me, I'm not seeing it.

10        Q.   Okay.  Let me put it on the screen.

11             JUDGE ORIE:  Yes.  It is before paragraph 5 on this page, so

12     apparently paragraph 4, last line before subparagraph (b).

13             THE WITNESS:  Okay I see it, I'm sorry.

14             MR. KEHOE:

15        Q.   Okay.  That sentence written by Lieutenant-Colonel Konings:

16             "Artillery assets can only be used in case of the safe distance

17     between the expected impacts and the civilian population is big enough to

18     avoid casualties."

19             Can you give us your assessment of that comment by

20     Colonel Konings?

21        A.   Well, once again I think I understood the general idea that he

22     was trying to convey, but it was an imprecise and potentially dangerous

23     imprecise articulation of the rule.  What he essentially is saying is

24     that you are only permitted to use artillery assets when you know that

25     they will not cause civilian casualties.  If that were it the rule in the

Page 21164

 1     Law on Armed Conflict we wouldn't have a proportionality rule.  Because a

 2     proportionality rule is in effect an acknowledgement in the law that

 3     commanders conducting operations will inevitably have to make a judgement

 4     as to whether an attack that they know is probably going to cause

 5     civilian casualties may or may not be conducted.  And that judgement is

 6     based on the assessment of the anticipated collateral damage or

 7     incidental injury and a comparison of that damage to the anticipated

 8     military advantage, and a determination as to whether or not that

 9     anticipated civilian harm will be excessive.

10             This is a misstatement of the law, because what it says is, you

11     cannot use artillery unless you know that it won't cause civilian

12     casualties.  If that -- again, if that were the law we wouldn't need the

13     proportionality rule.  So it jumped out at me as not only an addition to

14     the doctrinal statement that it was connected to, but an addition that

15     suggested a rule that was more restrictive than the law actually

16     establishes.

17        Q.   Staying with the -- that page, Professor, I'd like to move down

18     to the first several sentences in paragraph (b):

19             "Targeting of pure civilian targets will be out of the question,

20     since an operation at the tactical level is planned and executed against

21     military targets.  Military targets" -- excuse me.  "Military targets

22     inside civilian-populated areas will only be attacked according to the

23     rules of engagement and collateral damage estimates set by the highest

24     tactical commander or in some cases even by the operational or strategic

25     commander."

Page 21165

 1             And there are a lot of concepts in there that talk about rules of

 2     engagement and collateral damage, but could you give us your assessment

 3     of that comment by Colonel Konings?

 4        A.   Well, first off, the first sentence is under-inclusive.  It says:

 5             "Targeting of pure civilian targets will be out of the question,

 6     since an operation at the tactical level is planned and executed against

 7     military targets."

 8             Operations at the tactical, operational and strategic level may

 9     only be planned against military objectives.

10             So -- I mean, it's accurate in the sense that tactically you're

11     only allowed to engage military objectives but it's under-inclusive but

12     it seems to limit the rule to the tactical context.  But what really

13     struck me about that paragraph was I started to realise at that point

14     that this author was conflating the restrictions of rules of engagement

15     with the Law of Armed Conflict.

16             I obviously knew this report was written by a career officer from

17     the Netherlands.  I know from my experience that the Dutch Army has

18     extensive experience dealing with NATO rules of engagement.  I was really

19     unsurprised at this point that this condition flakes was occurring

20     because this is a very common mistake that operators make.  They're used

21     to operating within the constraints established by rules of engagement.

22     Rules of engagement are a tactical and operational control measure

23     imposed by national or multi-national authorities to manage the battle

24     space and the application of combat power, and make sure that that

25     application is consistent with political objectives, policy objectives

Page 21166

 1     and the Law of Armed Conflict.  Rules of engagement must be consistent

 2     with the Law of Armed Conflict but they are not synonymous with the Law

 3     on Armed Conflict.  In many instances they are more restrictive than the

 4     Law of Armed Conflict.

 5             And when I read that paragraph, it illuminated for me what was

 6     going on in this report.  This was an officer that was assuming that the

 7     experience he had had operating under restrictive rules of engagement

 8     was, in fact, the law that operated to define what was or what was not

 9     the permissible application of combat power in an armed conflict, and it

10     produces a mischaracterisation of the law.  For example, in that

11     paragraph, in the second sentence, he tells us that:

12             "Military targets inside civilian populated areas will only be

13     attacked according to the rules of engagement and collateral damage

14     estimates set by higher-level command."

15             If you're operating in an operation for NATO, or for the United

16     States, or for the United Kingdom, that has an extensive process of

17     issuing rules of engagement, that may indeed be true, but that is not

18     because it is required by the Law of Armed Conflict.  So if you are not

19     operating under that operational paradigm, then that is not an accurate

20     statement.

21             The ultimate obligation of a commander is to make sure that the

22     engagement of military targets in a populated area is consistent with the

23     Law of Armed Conflict.  If that commander's superior authorities impose

24     additional restraints on the execution of operations, whether they call

25     it rules of engagement, operational orders, tactical control measures, or

Page 21167

 1     this is what you're allowed to do, then, as a matter of command

 2     obligation, that commander has to further restrict his application of

 3     combat power, but that's not because the law of war mandates it, or the

 4     Law of Armed Conflict.  So that revealed to me what I concluded was a

 5     systematic flaw in this report, this conflation of two disparate sources

 6     of constraint and obligation under the law that -- and policy that

 7     regulates contemporary military operations.

 8             JUDGE ORIE:  Mr. Kehoe, could -- would you allow me to seek some

 9     clarification.

10             You say he is wrong here because he is not reflecting Law of

11     Armed Conflict.

12             THE WITNESS:  No, Your Honour.  My point is that it's overbroad

13     because it suggests that the rules of engagement are the definitive

14     source of obligation for a military commander.  That's true if they

15     exist, if they have been issued, but they cannot modify the obligations

16     of the Law of War by granting additional authority.

17             JUDGE ORIE:  Yes.  But at least that's how I understood it, your

18     testimony, you say, He's defining matters in a broader sense which goes

19     beyond the limits of what the Law of Armed Conflict allows you to do.

20             THE WITNESS:  Yes, Your Honour.

21             JUDGE ORIE:  Now, my question to you would be:  Where do you read

22     that paragraph 4 sets out the limits formulated by the Law of Armed

23     Conflict?  Because if I look at it, apparently he's invited, Please

24     explain the considerations that go into targeting, including the levels

25     at which targeting decisions are made, particularly with respect to

Page 21168

 1     targets in civilian-populated areas.

 2             Where do I find that he is setting out the Law of Armed Conflict,

 3     or is he just explaining what, according to him, would be appropriate to

 4     do irrespective of what dictated him to do this?

 5             THE WITNESS:  Well, the paragraph is titled -- he is asked to

 6     explain considerations that go into the targeting process.

 7             JUDGE ORIE:  Yes.

 8             THE WITNESS:  And then, yes, Your Honour, I agree with you, what

 9     he does is he lists doctrinal statement of that targeting cycle.

10             JUDGE ORIE:  Yes.

11             THE WITNESS:  The intelligence preparation of the battlefield

12     leads to the selection and identification of targets and then other

13     factors go into the process.  Then he lists operational constraints on

14     the application of combat power but he focuses exclusively on RoE.  And

15     I'm not -- I don't want to suggest that, as I say, if RoE is a factor in

16     that process, it is critical factor.  I understand that.

17             What it revealed to me was that it seem to be suggesting an

18     assumption that the predominant source of constraint in this targeting

19     process is RoE, and as I say, that's accurate for a country or command

20     that is operating under restrictive RoE, but not necessarily for every

21     armed force or every commander.

22             JUDGE ORIE:  But, well, I do not see -- apparently in paragraph 4

23     he sets out what should be done without putting it clearly in a context

24     of whether this is Law of Armed Conflict --

25             THE WITNESS:  Correct.

Page 21169

 1             JUDGE ORIE:  -- or not.  I do understand that you say if you

 2     would focus on Law of Armed Conflict, this would be incorrect, because it

 3     goes beyond what is required by the Laws of Armed Conflicts.  It is

 4     rather rules of engagement.  But there is no claim, or at least could you

 5     say that it's imprecise, not giving the proper and precise context of

 6     these conclusions.  Is that ...

 7             THE WITNESS:  If I may, Your Honour --

 8             JUDGE ORIE:  Yes.

 9             THE WITNESS:  -- i think within a little bit broader context it

10     lead to the follow-on of the paragraph.  The basic rule will always be

11     not to inflict casualties or damage to civilians or their property.

12             Your Honour, with all due respect, I do not believe that's the

13     basic rule of the Law of Armed Conflict.  The basic rule of the Law of

14     Armed Conflict is to always distinguish between lawful military

15     objectives and civilians and civilian property.  The proportionality

16     rule establishes the balance that a commander must engage in when he

17     knows an attack on a lawful military objective will produce civilian

18     casualties, collateral damage or incidental injury.  So it seemed to me

19     that he -- he takes that rule of engagement and -- and it becomes the

20     basic rule and as -- we know that Additional Protocol I uses that same

21     terminology, the basic rule.  The basic rule to distinguish between

22     lawful military objectives and civilians and civilian property.  So

23     it's -- in that one specific paragraph or subparagraph, I -- I certainly

24     understand the point that you're raising, that he does not explicitly

25     purport to be defining the Law of Armed Conflict.  What it suggested to

Page 21170

 1     me was a broader confusion between the constraints that are imposed by

 2     policy dictates of commands and the limits on permissible conduct

 3     pursuant to the Law of Armed Conflict.

 4             JUDGE ORIE:  You interpret where he said basic rule is a rule of

 5     law rather than a rule of any other kind.  That's how you interpret his

 6     text?

 7             THE WITNESS:  Well, within the -- within the broader context of

 8     the report, my understanding is he's writing this report to define the

 9     legal obligations or to eliminate the permissible use of authority to use

10     artillery during the conduct of a military operation related to this

11     trial, so when he uses the term "the basic rule" there, did I

12     automatically say, He's trying to tell us that's the Law of Armed

13     Conflict?  No.  What I understood that to mean is he is suggesting to us

14     that it is basic principle in the execution of any military operation,

15     including this one, that he's been asked to critique.

16             JUDGE ORIE:  That's clear.

17             Thank you.

18             Please proceed, Mr. Kehoe.

19             MR. KEHOE:

20        Q.   Well, with this conflating of these two rules can you just,

21     before we move off this particular area, just synopsise what problems

22     come to bear when you conflate these two and make statements like, as we

23     saw previously, artillery assets can only be used in case the safe

24     distance between the expected impacts and the civilian population is big

25     enough to avoid casualties.

Page 21171

 1        A.   This is a -- what I would consider a routine issue when you

 2     serve -- in my experience serving as a legal advisor in the US Army.  Our

 3     commanders and staff officers are so inundated with the rule of

 4     engagement process that they start to -- they're essentially taught by

 5     implication that rules of engagement are the definitive source of

 6     authority and obligation for the conduct of military operations.  The

 7     danger with that is that rules of engagement are policy restrictions that

 8     can be removed just as quickly as they can be established.  What they

 9     can't do is they can't authorise a scope of authority that exceeds the

10     limits of the Law of Armed Conflict.  But they certainly can authorise a

11     scope of authority that's co-extensive with the Law of Armed Conflict.

12             For example, you had rules of engagement during Operation Just

13     Cause in Panama where there was really one rule of engagement:  The

14     Panamanian Defence Force has been declared hostile.  That meant that

15     military commanders could employ combat power pursuant to the full scope

16     of authority granted under the Law of Armed Conflict.  And what this --

17     the danger here is that it suggests that routine restrictions on that

18     full scope of authority have taken the form of permanent restrictions.

19     And therefore, I've had the personal experience of dealing with

20     commanders in -- in -- in training events where I would give advice that

21     the use of a certain method or means of warfare is legally permissible,

22     and I would get -- the response would be, Well, we -- we're normally

23     allowed to do that under the RoE so that cannot be right.  And you had to

24     go through the process of kind of reorienting them to understand that the

25     RoE is a circle of constraint within a broader circle of authority called

Page 21172

 1     the Law of Armed Conflict, and it can be modified by whatever authority

 2     imposes it.  And in fact, a NATO RoE, US RoE, routinely have provisions,

 3     even in the most restrictive scenarios.  For example, a very common

 4     provision, no unobserved indirect fires in populated areas.

 5             But in most cases there is a qualifier that that rule is waived

 6     under certain tactical situations, when you're in contact, when it's

 7     necessary to suppress enemy indirect fire, and that's tactically logical

 8     because you will identify an enemy asset that is firing on you through

 9     counter-battery radar.  Now that's not observed fires because you don't

10     know what is around that artillery asset, but you know exactly where the

11     rounds are coming from.  And so there a waiver because there is a

12     tactical or operational necessity that is anticipated that justifies

13     restoring the authority to the full scope permissible under the Law of

14     Armed Conflict.

15             And so the danger with this conflation, and I think it was

16     manifested in this report, is that policy-based constraints take on the

17     character of legal constraints.  And I understood this report as a

18     statement of -- from an artillery expert on the permissible use of

19     artillery in populated areas, and it starts to use RoE constraints to

20     suggest that it's not permissible to use artillery per se when there's

21     not a safe distance to ensure an absence of collateral damage and

22     incidental injury.  That's overbroad.

23             JUDGE ORIE:  Could I invite you again to slow down --

24             THE WITNESS:  Yes, I'm sorry.

25             JUDGE ORIE:  -- for the interpreters and transcribers.

Page 21173

 1             MR. KEHOE:

 2        Q.   If can you scroll down to the bottom of page 5 going into

 3     point 6, and there are several considerations mentioned by

 4     Lieutenant-Colonel Konings.  And if we can turn to the next page, I would

 5     like to direct your attention to a portion of his report at the top of

 6     the page and focussing on the two (ii) provision on the top of page 6.

 7             Are you with me, Professor?

 8        A.   Yes.

 9        Q.   "Once these and other aspects have been considered, the best

10     available asset for the attack will be designated.  As accuracy of the

11     attack in order to minimise the risk of collateral damage will be a very

12     crucial aspect, artillery and especially rockets and mortars will be low

13     on the list.  Only in case the target is beyond the distance within which

14     collateral damage can occur, the choice to use artillery can be made.

15     This distance is variable and depends on many factors, such as weapon,

16     projectile, weather conditions, position and distance."

17             Now focussing on that particular paragraph, Professor, can you

18     give us the assessment of those comments -- your assessment of those

19     comments by Colonel Konings?

20        A.   Well, I think it starts off perfectly:

21             "Once these and other aspects have been considered the best

22     available asset for the attack will be designated."

23             That's what we call in the process weaponeering, determining

24     which weapon is best suited under all the circumstances to achieve the

25     desired effect:

Page 21174

 1             "As accuracy of the attack, in order to minimise the risk of

 2     collateral damage, will be very crucial ... artillery and especially

 3     rockets ... will be low on the list."

 4             Well, the first prong of that sentence is accurate.  That's what

 5     military lawyers do in the targeting process.  They critique whether or

 6     not the weaponeers have selected an asset that comports with the

 7     commander's obligation to minimise the risk of collateral damage and

 8     incidental injury, and that part again implicates the proportionality

 9     analysis.  But then the statement rockets and mortars will be low on the

10     list, I think is more of a tactic technique and procedure than doctrine.

11     What weapons system will be low or high on the list is going to be

12     dictated primarily by two considerations:  Desired effect and the risk of

13     collateral damage and incidental injury.

14             There may be situations where the nature of the target and the

15     desired effect, and the resources available to the commander, and the

16     enemy situation, and the civilian situation, might produce a conclusion

17     that a use of one of these assets would be higher on the list than --

18     than cannon artillery or close-air support or -- or -- or rotary-ring

19     aviation or helicopter assets.  There is no per se rule, what system is

20     better than another.  That is a dangerous proposition because it's that

21     case by case contextual analysis that enables a commander to package the

22     application of combat power in a manner that comport with the fundamental

23     balance that the law seeks to strike between necessity and humanity.

24             He goes on in that paragraph to say:

25             "Only in case the target is beyond the distance within which

Page 21175

 1     collateral damage can occur, the choice to use artillery can be made."

 2             That sentence directly contradicts the first sentence of that one

 3     paragraph.  The first sentence says, that you -- I'm sorry, the second

 4     sentence.  The second sentence says that you have to consider collateral

 5     damage as an element in the targeting process.  The follow-on sentence

 6     creates per se prohibition on collateral damage.  If the -- if the

 7     follow-on sentence were accurate, then you wouldn't have to consider

 8     collateral damage, because would you never be allowed to use a weapon

 9     that produced collateral damage.

10             And we know that that's what the Law of Armed Conflict requires.

11     So it's a mix of legitimate considerations and accurate considerations

12     for an artillery expert or an artillery staff officer.  I have to

13     consider the weapon, the effect, the enemy, the desired effect for the --

14     to achieve the commander's intent, the potential collateral damage.  But,

15     again, because I think that the instinct to assume that restrictive RoE

16     are in fact the definitive statement of the law has influenced this

17     analysis, it produces these incongruities.

18        Q.   One last comment on this page, if we turn to 3(i), talking about

19     the effect.  Do you see that, sir?  "The effect required is also

20     important."

21        A.   Yes.

22        Q.   "Artillery is not the weapon system to destroy ... buildings ...

23     capability as a non-lethal weapon system, influencing the" -- and it says

24     "moral" but I believe morale, "component of any opponent."

25             You talk a little bit about this weapon system and the

Page 21176

 1     destruction of buildings.  Do you have a comment on that, sir?

 2        A.   Yes.  So we have to start on page 5 and the question that's

 3     posed, subparagraph 6:

 4             "Please explain the considerations and constraints that go into

 5     determining whether and how to use artillery fire in civilian-populated

 6     areas."

 7             In subparagraph 3 -- three (iii), the author makes the definitive

 8     statement that:

 9             "Artillery is not the weapon system to destroy strong buildings."

10             Well, what jumped out at me there was at the very beginning of

11     his report, when he's explaining artillery doctrine, he acknowledges that

12     the fire support system, artillery, is used for many effects other than

13     destruction; harassment, interdiction, neutralisation.  It is extremely

14     common for a commander to employ artillery with full knowledge that

15     destruction is not going to be the effect that is going to be achieved

16     because that is not what he needs to achieve.  And artillery may, in

17     fact, be an ideal weapons system to produce other affects.

18             So I thought that that was somewhat under-inclusive, because it

19     didn't fully articulate the consideration of use of artillery in a

20     populated area when the effect desired was something other than

21     destruction.

22             And even on the statement itself, I think most experts in

23     military operations would concede that artillery might not always achieve

24     a destructive effect of a building, but what the case by case situational

25     analysis leads to is the requirement of the commander to assess the

Page 21177

 1     capability available and the effect he needs to achieve, and select the

 2     capability that's most likely to produce that effect.

 3             If I'm in a light infantry unit and my heaviest weapons system is

 4     cannon artillery, and I believe I have to try and destroy a building,

 5     that may in fact be the best capability I have to attempt to achieve that

 6     effect.  It -- it just depends, as so much of this analysis does.

 7             So, again, then the follow-on sentence, to me, jumped out at me

 8     because he skips over the other legitimate doctrinal purposes of

 9     employment of artillery and seizes on an assertion of what he suggests is

10     an improper purpose, the use of artillery to influence civilian morale.

11     And I don't dispute that.  That is an improper purpose of artillery.  But

12     what it seemed to me to suggest was that because you can't destroy a

13     target with artillery in a city, then the only other reason you might use

14     it, the only other rational inference is that its use was for the illicit

15     purpose of damaging civilian morale.  And by omitting harass, interdict,

16     neutralize, these classic disruption missions, he skips an entire range

17     of possibilities that produce alternate rational inferences other than

18     the two extreme that he offers.

19        Q.   We touched on the subject of forward observers, and Colonel

20     Konings talks about this on page 8.

21             MR. KEHOE:  And if we could move ahead to page 8 of this report.

22        Q.   And we are talking about the use and significance of forward

23     observers and the appropriate use of them.

24             And if we can turn to paragraph (f) in -- excuse me,

25     subparagraph (f) in paragraph 8.

Page 21178

 1             Do you see that, Professor?

 2        A.   I do.

 3        Q.   I'm interested in this paragraph -- at least these sentences of

 4     the paragraph:

 5             "The use of artillery and mortars against targets in civilian

 6     areas without having these targets under observation of a forward

 7     observer should not be done, unless the target is beyond the already

 8     described collateral damage distance and the exact location is known.

 9     But also in this case the commander will want and will need to know the

10     effects of the attack."

11             Can you give us your assessment of that paragraph?

12        A.   Yeah.  Again, we start with the question:

13             "Please explain the use and significance of forward observers,

14     including whether it is appropriate to use artillery without forward

15     observers against targets in ... populated areas."

16             So the question seems to invite an assessment of what is legally

17     permissible through the use appropriate [sic].  Now I guess you could say

18     appropriate doesn't necessarily infer that, but it seems to me to

19     certainly suggest that.

20             There is absolutely no dispute that the use of a forward observer

21     for the employment of indirect fires is an ideal situation.  It's ideal

22     from an operational standpoint and from a humanitarian standpoint.

23     Operationally it enhances the probability of achieving the desired effect

24     with minimum resources; from a humanitarian standpoint, it gives the

25     commander a better picture of the potential collateral damage and

Page 21179

 1     incidental injury.  So the suggestion that commanders should always

 2     endeavour to place targets under observation or it's ideal would be

 3     thorough accurate.  The word he uses there is "should."  Now "should" is

 4     not "must," and I understood that.  "Must" would have been more

 5     problematic.  But again, the tone of that paragraph suggests to me that

 6     what the author is -- is saying is that unless you can place targets in a

 7     populated area under human observation, you should not target them.

 8             I used the example before of counter-battery fire.  You just have

 9     to imagine one hypothetical.  A commander is conducting an operation.

10     Just like his assessment, he knows the enemy will have his command post

11     as one of the highest-value targets on his target list.  Now let's

12     imagine his command post starts to come under indirect fire, disrupting

13     the operation, placing the success of his own operation in serious

14     jeopardy.  Neutralising the source of that enemy fire is a critical

15     mission.  That commander may have counter-battery radar.  That radar can

16     precisely identify the source of the enemy artillery to an eight-digit

17     grid coordinate, and it's linked directly to his fire support

18     coordination centre.  Literally within seconds, the determination of the

19     source of that artillery can produce a fire mission with his own indirect

20     fire assets, to neutralise that threat.

21             Now, obviously that commander, in that hypothetical, does not

22     have forward observers.  He doesn't know if the enemy has located its

23     artillery in a school-yard, in a hospital compound, in a

24     civilian-populated area.  He can't know that.  But he has to make a

25     tactical judgement as to whether the risk of firing blind is offset by

Page 21180

 1     the value of protecting his critical command, control and communications

 2     function.

 3             In most cases I think a military commander would authorise that

 4     counter-batter mission.  If you asked the commander, Would you prefer to

 5     have eyes on target?  Every commander will say, Of course, but it is not

 6     an absolutely requirement.  It is not a per se prohibition to employ

 7     indirect unobserved fires in a populated area.  It is, however, a routine

 8     constraint in NATO and Western rules of engagement, subject to

 9     situational qualifiers that I mentioned before.

10             So for me that explained you shouldn't do this.  Because I'm sure

11     that this author's experience was, We will refrain from doing this unless

12     it is absolutely necessary.

13             JUDGE ORIE:  Mr. Kehoe, let me try to fully understand the

14     testimony of the witness and the paragraph.

15             Apparently in this paragraph, in the beginning, it says you

16     shouldn't -- that shouldn't be done.  And then unless, and then part of

17     what you described for us is included in what apparently the author

18     considers to be an exception.  That is, the exact location is known as

19     one of the criteria.  Whereas, you explained to us that if you have this

20     radar system that more or less is an expression of the same, that you

21     have technical means by which you could very precisely identify the

22     target and you're telling us you might not know whether it's a hospital

23     or not.

24             If you would know the area, would you take that into

25     consideration when finally deciding whether or not you would use that

Page 21181

 1     weapons system for that target?

 2             THE WITNESS:  Absolutely.

 3             JUDGE ORIE:  Yes.

 4             Now -- so to that extent it seems that, although in different

 5     wordings, that Mr. Konings, You shouldn't do it is conditional as well,

 6     just as you explained that there may be many circumstances which would

 7     allow for such an action.

 8             THE WITNESS:  Well, Your Honour, the one portion of that

 9     sentence, I think, that exposes a significant divergence between his view

10     and mine is he leads into that by saying:

11             "... unless the target is beyond the already described collateral

12     damage distance and its location is precisely known."

13             That suggests to me that what is he saying is, you can fire blind

14     so long as you know that there are no civilians in the area because it

15     would be -- or you're using a weapon that will have an effect that will

16     be confined to an area in that populated environment that cannot affect

17     civilians.

18             JUDGE ORIE:  Well, if you look at the context of the report,

19     you'll find the language sometimes to be the anticipated risk of

20     collateral damage, which is not a total exclusion of collateral damage.

21             You said if what he says is right, you wouldn't need any rule of

22     proportionality anymore, whereas in the report, he accepts that a rule of

23     proportionality does exist.  So to that extent, I'm asking myself where

24     actually you take a substantial different position and where you're

25     unhappy with perhaps sometimes the inconsistency mentioning this and then

Page 21182

 1     explaining it a little bit later in a different way.

 2             So I'm just trying to find out for myself where actually there is

 3     a -- a substantial difference in view on what is permitted and not.

 4             THE WITNESS:  Well, Your Honour, my reaction to this, obviously

 5     is based on my understanding of what it -- what it purports to suggest.

 6             JUDGE ORIE:  Yes.

 7             THE WITNESS:  My understanding, as I read it, was, when he used

 8     the qualifier "is beyond the already established collateral damage" --

 9     "the already described collateral damage distance," that meant to me that

10     he was saying, You can fire blind so long as you know beforehand that

11     will not produce collateral damage.

12             If that's what it means then I have a substantive disagreement

13     with it.  If it means something more tempered, in other words, that if

14     you're going to fire blind you should consider the general location where

15     you've identified the target as part of your proportionality analysis,

16     then I would have no disagreement with it, because I think that is a

17     thoroughly accurate, totally accurate statement of the law.

18             But in the broader context of this paragraph, as the concluding

19     portion of it, the suggestion to me was, unless you have forward

20     observers, unmanned aerial vehicle, video, or some other asset that can

21     you give you full situational awareness, you should not fire unobserved

22     indirect fires.  And I think that is a good principle but it is not a --

23     a per se rule.

24             JUDGE ORIE:  In this context could I ask you, the expression used

25     by Mr. Konings, the CDEs, the Collateral Damage Estimates, that is

Page 21183

 1     apparently a technical term.  I'm not very much familiar with ...

 2             First of all, you are familiar with CDEs.

 3             THE WITNESS:  Mm-hm.

 4             JUDGE ORIE:  Is that the estimate of where no collateral damage

 5     could be caused anymore; or is it what is still acceptable as a risk?

 6             THE WITNESS:  No, I think -- well, let me -- let me try and

 7     answer the CDE question first and then put it in the context of this

 8     paragraph if I may.

 9             A collateral damage estimate is produced in a very mature

10     targeting process for pre-planned targets.  So, for example, you identify

11     potential targets, and then the experts on the effects of weapons and the

12     civil affairs experts, who can kind of give their best estimate of what

13     civilians are in that area, work together to estimate that if we used

14     this weapons system what is the probability that there will be collateral

15     damage or incidental injury, and what is the scope of that collateral

16     damage or incidental injury, so that when it comes time to execute that

17     mission the commander has a pre-established assessment that can he use to

18     inform him in his proportionality analysis.  So it is an estimate of

19     risk.

20             What he says in this paragraph is unless the target is beyond the

21     already described collateral damage distance, in other words, that you've

22     pin-pointed the target but because of your pre-existing assessment, you

23     can say with a certain degree of certainty that targeting that target

24     with this weapons system will not produce collateral damage, then you can

25     use it blind.

Page 21184

 1             And that's certainly true.  I mean, that would be ideal.  Right?

 2     If can I take out that enemy artillery with a high degree of confidence

 3     that I will not produce collateral damage, that's an ideal scenario.

 4     What I don't think he accounts for is the risk that the use of the system

 5     will not be beyond the pre-determined collateral damage estimate, and yet

 6     you still have a pin-point location.

 7             JUDGE ORIE:  Yes.  You very much therefore interpret, then, the

 8     language of Mr. Konings to be that when he talks about in accordance with

 9     collateral damage estimates that that he aims at excluding or an almost

10     zero probability of collateral damage instead of a risk of collateral

11     damage which is in accordance with generally accepted rules.

12             THE WITNESS:  Yes, Your Honour.  And that's mainly because of the

13     word "distance" instead of "estimate."

14             But if the understanding is he means it is a factor in the

15     proportionality analysis, I thoroughly agree with that.

16             JUDGE ORIE:  Thank you.

17             Please proceed, Mr. Kehoe.

18             MR. KEHOE:

19        Q.   One last comment on this report that I would like to bring to

20     your attention would be at page 13, paragraph 12.

21             And maybe we can look at these paragraphs 12 and 13 together.

22     But in paragraph 12, the question for Colonel Konings is:

23             "Please explain the use and/or constraints in using the weapons

24     ... in question 9 against targets in civilian-populated areas."

25             And weapons, number 9, uses a variety of weaponry.

Page 21185

 1             I'd like to focus towards the end of that paragraph:

 2             "The relative inaccuracy and high number of projectiles

 3     needed ..."

 4             Do you see?

 5        A.   Yes, sir.

 6        Q.   "... form a high risk towards civilians in the same area, it is

 7     the balance between the importance of the target, the enormous negative

 8     effect of causing casualties to the civilian population, the risk of

 9     their own forces, and the availability of alternatives that will bring a

10     commander to decide to use artillery or not.  And practically 100 per

11     cent one will decide not to use artillery."

12             If we go down to the last sentence in paragraph 13:

13             "Therefore, uncorrected fire should not be used in

14     civilian-populated areas."

15             Tell us your commentary on those two provisions, Professor.

16        A.   Let's start with the last sentence of paragraph 13.  It relates

17     back to the dialogue that I just had with the Court.  And I think it is a

18     fairly categorical statement that the meaning of that prior paragraph we

19     discussed was unobserved indirect fires may not be used in populated

20     areas.  "Uncorrected" is a synonym for "unobserved."  Correcting fire is

21     the product of having an observer adjust fire from the point of that

22     indirect shot.  So uncorrected means it's firing without direct

23     observation.

24             As for the prior paragraph, and what we are talking about here

25     are a variety of cannon and rocket artillery assets.  And that last

Page 21186

 1     sentence is -- I mean, I just have to say it is incredibly overbroad.  In

 2     practicality, 100 per cent of the time a commander will decide not to use

 3     artillery in a populated area.  In fact, the history of even contemporary

 4     military operations totally rebuts that assumption.

 5             My own experience, my first real experience with the realities of

 6     combat, and I wasn't there at the time but I had recently left Panama and

 7     my unit was involved so I was very -- obviously very concerned what was

 8     going on.  In Operation Just Cause, in 1989, one of the highest value

 9     targets was the Panamanian Defence Force Comandancia, their headquarters

10     building.  That Comandancia couldn't have been located in a worse

11     position for purposes of collateral damage.  It was in the heart of a

12     neighbourhood called Chorillo [phoen], which was an impoverished area of

13     Panama City that was basically a community of ramshackle wooden

14     structures, and that Comandancia was put under intense indirect fire at

15     the very outset of the mission, resulted in substantial civilian

16     casualties, which were very unfortunate.  I think the commander must have

17     known that there was a high probability of producing civilian casualties.

18             We can fast-forward to the first Gulf war, the use of indirect

19     fires against populated areas in both the air and ground phase of that

20     operation.  A cruise missile is indirect fire.  And there were literally

21     hundreds of cruise missiles fired against military objectives in the city

22     of Baghdad during that mission.  The air war against Serbia; another

23     example.  The operation in -- against Iraq in 2003.  There were -- the

24     enemy used populated areas as strongholds and allied forces routinely

25     used indirect fires to facilitate the defeat of these enemy forces.

Page 21187

 1             What is essential is that a commander contemplating the

 2     employment of that compatibility be aware of the obligations under the

 3     law and factor in the risk of collateral damage and incidental injury

 4     into the equation of whether that asset should be used.

 5             But there are many -- we could literally spend hours going over

 6     hypotheticals where a commander with an arsenal of capabilities would

 7     make a determination that indirect fire was the best capability to

 8     achieve a certain effect in a populated area.  And that's an unfortunate

 9     reality of warfare.  But to suggest that because indirect fire cannot

10     achieve a destructive effect and the targets in a populated area

11     oftentimes are structures that can't be destroyed easily with indirect

12     fire you're never going to use indirect fire in that area, I think is --

13     is a distortion of both doctrine and the law.

14             JUDGE ORIE:  Mr. Kehoe, could I seek clarification.

15             How do you read the line:

16             "In practically 100 per cent one will not decide to use

17     artillery."

18             Would that mean in close to 100 per cent or effectively you would

19     never use that?

20             What's -- how do you understand the line?

21             THE WITNESS:  I understood it as effectively you would never use

22     this asset in a populated area.

23             JUDGE ORIE:  Yes.  I -- I -- I'm a native-speaking person of the

24     same language as Mr. Konings is.  It sounds to me very much practically

25     here a translation of a Dutch word "praktisch" which would mean "close

Page 21188

 1     to."

 2             Your comments were based on your understanding.  Could you give

 3     your comments as well on the understanding of this line, to say that in

 4     close to 100 per cent, almost 100 per cent, one will decide not to use

 5     artillery.

 6             THE WITNESS:  I think that's equally overbroad, Your Honour.  I

 7     think that it is a -- and that's not from a legal perspective.  That's

 8     from an operational perspective.  I think if you go back and review the

 9     very doctrine that's been included in this report, as you note -- noted

10     in your discussion with me earlier, even the author acknowledges that

11     collateral damage assessments and proportionality are routine elements in

12     the assessment of the use of indirect fires in populated areas.  The

13     doctrine itself reveals to us that there's expectation that commanders

14     are going to have to make these assessments and employ this asset for

15     certain effects.  This is a routine aspect of military operations.

16             So even if we qualify it and say, Not 100 per cent of the time,

17     but almost never, I think is overbroad.

18             JUDGE ORIE:  Do I understand you that your comment and your main

19     criticism of the report is that where it may contain all the relevant

20     elements for decision making, that at the end we always find sweeping

21     statements which you say are not justified by what the author said

22     before.

23             THE WITNESS:  That's one of my criticisms of the report,

24     Your Honour.

25             JUDGE ORIE:  Thank you.

Page 21189

 1             Please proceed, Mr. Kehoe.

 2             MR. KEHOE:

 3        Q.   And if we can just follow up on Judge Orie's statement.

 4             That's one of your criticisms.  Can you synopsise, before we move

 5     off this document, the balance of your criticisms concerning this report

 6     with -- taking into consideration what you talked about the conflation of

 7     rules of engagement and Laws of Armed Conflict?

 8        A.   I think the first point is that I -- I believe that many of the

 9     rules of a constraint that were included in the report were not derived

10     from the doctrine that was generally reproduced in the report.  It was an

11     addition to the doctrine, which, theoretically is -- I have no objection

12     to.  I mean, that's -- you're an expert and you're rendering a report and

13     if you think that you -- it is appropriate or beneficial to the finder of

14     fact to add or modify doctrine, great.

15             But then what troubled me was the doctrine or the language that

16     was added, in my view, was not an accurate statement of the law that it

17     purported or the constraints that it purported to articulate.  That, I

18     think, was produced primarily from this systemic conflation of rules of

19     engagement and the Law of Armed Conflict.  So I -- I have -- as a matter

20     of fact, I'm sympathetic to it because I have experienced this with

21     operators I have dealt with all through my career.  I understand -- I

22     think I understand what happened.

23             What troubled me more than that, however, was the modifications

24     to the doctrine itself, like the last portion of the report we just

25     discussed, Your Honour, where you take a series of legitimate doctrinal

Page 21190

 1     considerations for the employment of indirect fire in a populated area,

 2     and you produce a conclusion that I think is inconsistent with the

 3     practice of military operations that inform the doctrine, and that to me

 4     was more troubling.

 5             Now, I don't purport to be -- I have never been an artillery

 6     officer.  I haven't attended artillery courses, and I don't purport have

 7     the expertise on artillery that Colonel Konings has.  I'm sure he knows

 8     about artillery.  But at -- I can't help but look at this as a lawyer,

 9     because that's what I am, and what I saw was a distortion of the rules of

10     constraint that was explicable but a distortion of doctrine that was less

11     explicable, and that's what I tried to point out to the Defence team.

12        Q.   Let us ...

13                           [Defence counsel confer]

14             MR. KEHOE:  If I may, Mr. President, I would like to shift back

15     and just make some final clarifications on some acronyms, if I can, in

16     Professor Corn's report and then I will be completed.

17             So if we can go back to D1642, MFI.

18                           [Defence counsel confer]

19             MR. KEHOE:  And if we can go back to this report.  As we note

20     that the date on the bottom of this report, Mr. President, is -- actually

21     was provided on June the 22nd, and that would have to be corrected on --

22     in paragraph 10.  Our records reflect it was sent on -- not on July 22nd,

23     as you see in paragraph 10 of the supplemental information sheet, D1643.

24     So we would like to correct that erroneous -- if you see paragraph 10

25     says July, Professor Corn provided that in June 22nd.

Page 21191

 1             Mr. President, it's from the proof -- in the supplemental

 2     information sheet, paragraph 10 --

 3             JUDGE ORIE:  Yes.  But for Mr. Corn to be informed that the first

 4     Monday of the month, there's a testing system of our sirens for other

 5     circumstances.  That's what you hear at this moment, Mr. Corn.

 6             THE WITNESS:  Your Honour, I noticed an error in the English

 7     transcript.  May I point that out because I think it is an important

 8     point.

 9             JUDGE ORIE:  Yes, please do so, although it will be reviewed

10     overnight anyhow --

11             THE WITNESS:  Oh, okay.

12             JUDGE ORIE:  -- but please -- no, but, please, it could that be

13     it would be overlooked.

14             THE WITNESS:  On 20 -- on line 21, 12:01:07, the word

15     "explicable" should have been "inexplicable."

16             JUDGE ORIE:  Thank you for that.

17             MR. KEHOE:  Mr. President, I think that is page 59, line 20 --

18     excuse me, 21, excuse me.  That was explicable but a distortion of

19     doctrine that was inexplicable.

20             THE WITNESS:  Correct.

21             JUDGE ORIE:  Yes, that's what I remember Mr. Corn told us.

22             Yes.  Please proceed.

23             MR. KEHOE:  Yes, Mr. President, if I can just take a few minutes

24     just to clarify some of these acronyms.

25        Q.   If we can turn to page 23 in your report, Professor.

Page 21192

 1             And about midway through that first paragraph you are talking

 2     about -- before you start talking about these military objectives you use

 3     this line, middle of that paragraph:

 4             "General Gotovina's intelligence indicated that in addition to

 5     being a C3I centre for enemy forces, there were other aspects of the

 6     enemy disposition within Knin."

 7             I'm focusing on the C3I and what that means?

 8        A.   It's an acronym for command, control, communication, and

 9     intelligence.

10        Q.   Staying on that page, and if we just focus on the paragraph B

11     with the 7th Krajina Corps headquarters, would your opinion concerning

12     this target change whether the commander of the 7th Krajina Corps was

13     present in that headquarters or not?

14        A.   Not at all.

15        Q.   Let's move to page 27 and the first full paragraph on page 27.

16     This is the section of your report where you talked about

17     Falkland Islands campaign, and I'm looking at the first full paragraph,

18     Professor, and I believe it is -- begins four lines down:  "Even if his

19     assets were insufficient ..."

20             Do you see that, sir?

21        A.   Yes, sir.

22        Q.   "Even if his assets were insufficient to destroy targets in Knin,

23     creating the perception of 'full spectrum operational dominance' would be

24     beneficial to degrade the ability of the enemy to respond to his attack."

25             I'm interested in this comment of full spectrum operational

Page 21193

 1     dominance, and essentially what is that?

 2        A.   The notion of full spectrum operational dominance is convincing

 3     your opponent that you possess the initiative at every phase of that

 4     military operation, every aspect; the close fight, the deep fight, the

 5     future fight.  Sometimes you will see this referred to attacking in

 6     operational depth, all right.

 7             So what I'm discussing here is that -- particularly during a

 8     deliberate attack of prepared defensive positions, a commander wants to

 9     convey to the enemy that he possesses the initiative at every phase of

10     the fight and that the enemy -- and he wants to dictate the terms of the

11     battle to the enemy.  He wants to control the tempo of the battle, and

12     that requires him to demonstrate to the enemy his ability to effect the

13     outcome of the battle in operational depth, across the full spectrum of

14     the operation, so that the enemy thinks that all aspects of this fight

15     are dominated by the opponent.  The greater the ability to demonstrate

16     full spectrum dominance the greater the probability that your enemy will

17     capitulate rapidly, because the enemy will see the futility in trying to

18     match your attack at any level or at any phase.

19        Q.   Let me turn to page 28.  Again, this is another clarification,

20     Professor.  In the centre of that page, the paragraph beginning:  "Based

21     on these facts ..."

22             Do you see that, sir?

23        A.   Yes, sir.

24        Q.   "Based on these facts, General Gotovina could have reasonably

25     assumed that the substantially reduced civilian population of Knin would

Page 21194

 1     have 'gone to ground' and would generally not be exposed to the effects

 2     of indirect fire [sic] during curfew hours."

 3             This concept that you put in there, "gone to ground," what are

 4     you talking about there?

 5        A.   It is a colloquialism for seeking shelter, finding the best place

 6     to be out of harm's way.  It's a common term in the US military

 7     vernacular, The enemy or the civilians have gone to ground.  They're out

 8     of -- they've gotten as much safety as they can find.

 9        Q.   And understand these circumstances did you conclude that that was

10     reasonable assumption by General Gotovina of these individuals going to

11     ground?

12        A.   As I say in the report, I think that would have been a reasonable

13     assumption.  I think if I had been in the targeting cell during the

14     planning for this mission, under those facts and assumptions, I think I

15     would have had the same assumption, that this is a time of day, under the

16     circumstances, where there's a high probability that the civilians will

17     have done their best to be out of harm's way.

18        Q.   My last clarification is on page 31 of your report, sir.  As it's

19     the paragraph beginning:  "The timing of employment ..."

20             Do you see that, sir?

21        A.   Yes, sir.

22        Q.   And I'm interested in your comment five lines -- excuse me, four

23     lines down, where you note:

24             "Surging fires against C3I logistics and reinforcement targets at

25     this point would contribute to the sense of confusion and isolation among

Page 21195

 1     defending forces."

 2             I'm interested in the clarification on the concept of what you

 3     mean by surging fires?

 4        A.   Maximising.  Applying the principle of mass.  This is written in

 5     relation to the overall -- the facts and assumptions that explain to me

 6     the overall employment pattern of indirect fires.  Based on those facts

 7     and assumptions, I concluded that the primary objective of indirect fire

 8     was to support the close fight, the tactical execution of the deliberate

 9     attack and penetration of enemy defensive positions.

10             Each morning, presumptively when that close fight kicked off,

11     there was a surge of artillery indirect fire assets at command, control

12     and communications facilities in the enemy's rear area in Knin.  To me,

13     that is consistent with a logical doctrinal application of that combat

14     power because it is at that decisive point in the tactical fight where

15     you have the greatest need to confuse the enemy, and more importantly, to

16     render the enemy's higher level command and control blind as to what is

17     happening at the close fight, because that contributes to the isolation

18     of the defending forces, their sense that they're out of contact with

19     their support elements, and the probability that it's going to contribute

20     to the capitulation or penetration of those defensive positions.

21        Q.   My last acronym that you use in several instances through your

22     reports is the concept of METT-T-C, M-E-E-T-T-T-C [sic], can you tell us

23     what that is and can you explain it?

24        A.   METT-T-C is a US military acronym that stands Mission, Enemy,

25     Troops, Terrain, Time, and Civilians.

Page 21196

 1             It's a shorthand acronym that is used to remind a commander or an

 2     operational leader at every level, from a team leader to a corps

 3     commander, that operational decisions are always driven by the

 4     situational analysis of these factors.  And even you can see this

 5     throughout Colonel Konings's, he talks about the considerations that go

 6     into the target decision-making process.  He doesn't uses the term

 7     METT-T-C, but if you think about it, it is exactly what he is saying.

 8     You look at the resources he has, troops; you look at the mission you

 9     have to acquire, effects; you look at the enemy, intelligence;

10     preparation of the battlefield.  You look at the terrain.  That's part of

11     the IPB process, intelligence preparation of the battlefield.  You look

12     at the time.  What is the time constraint for achieving this mission or

13     this effect, and you look at the effect on civilian population.

14     METT-T-C.  And I use it throughout the report to emphasise that target

15     decision-making processes are inevitably situationally driven, and all of

16     these factors are variable in any given situation.  That's why the per se

17     conclusions troubled me, because you can change the weight of each of

18     these factors in any given situation and produce a different outcome.

19             MR. KEHOE:  Mr. President, I have no further questions of the

20     witness.

21        Q.   Thank you, Professor Corn.

22             JUDGE ORIE:  Thank you.

23             I would have -- in a similar area I would have -- I'm seeking

24     clarification of one term you're using.

25             You are talking about operational law.  Now, I do understand that

Page 21197

 1     it's not -- that there is operational and non-operational law, but is my

 2     understanding right, that you call operational law that portion of the

 3     Law of Armed Conflict which directly deals with operations; or is it --

 4     because you're talking about international law and operational law.

 5             THE WITNESS:  Right.

 6             JUDGE ORIE:  And it was -- it's not a term I'm very familiar with

 7     it but I see that you have handbooks on international operational law.

 8             THE WITNESS:  Yeah.

 9             JUDGE ORIE:  I don't know exactly -- I think it was in your CV,

10     as a matter of fact.

11             THE WITNESS:  Probably as a professor of international and

12     operational law.

13             JUDGE ORIE:  Yes.  It's -- publications, I see, international and

14     operational law desk book.  I saw it ... well, you're using this term a

15     couple of times.  It is only one of the sources.

16             THE WITNESS:  Operational law, Your Honour, would refer to the --

17     the full body of law that would regulate the planning and execution of

18     military operations.  In the context of my report, operational law would

19     mean what you -- as you characterize it, the Law on Armed Conflict that

20     regulates the application of combat power, because that's what I was

21     opining on.

22             If you talk about what is the operational law handbook, the

23     operational handbook is much broader than that because it addresses

24     national legal authorities that influence the planning and execution of

25     military operations.

Page 21198

 1             JUDGE ORIE:  Yes, that could be to some extent constitutional

 2     law, administrative law, all kinds of law --

 3             THE WITNESS:  Absolutely.

 4             JUDGE ORIE:  -- but the Law of Armed Conflict directly related to

 5     operational matters --

 6             THE WITNESS:  Yes.

 7             JUDGE ORIE:  -- would be part of that.

 8             THE WITNESS:  Absolutely.

 9             JUDGE ORIE:  Yes.  Then now I better understand what operational

10     law means.

11             Mr. Russo, I'm looking at the clock.  Would it not be better that

12     we first have a break and that you would -- but first let me inquire.

13     There was no -- was there any cross-examination by the other Defence

14     teams.

15             Mr. Cayley.

16             MR. CAYLEY:  There will be no questions from us, Your Honour.

17     Thank you.

18             JUDGE ORIE:  Mr. Kuzmanovic.

19             MR. KUZMANOVIC:  Your Honour, likewise, no questions from us.

20     Thank you.

21             JUDGE ORIE:  No questions.  Yes, that was what was in my memory,

22     so therefore I was addressing you, Mr. Russo.

23             Wouldn't it be better that we would start cross-examination after

24     the break.  You would then have another one hour and five minutes.

25             MR. RUSSO:  That's fine with me, Your Honour.

Page 21199

 1             JUDGE ORIE:  Yes.  We will have a break first, and we will resume

 2     at 20 minutes to 1.00.

 3                           --- Recess taken at 12.19 p.m.

 4                           --- On resuming at 12.44 p.m.

 5             JUDGE ORIE:  Mr. Corn -- no, I should say, Professor Corn,

 6     because you appear as an expert witness, you will now be cross-examined

 7     by Mr. Russo.  Mr. Russo is counsel for the Prosecution.

 8             Mr. Russo, please proceed.

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

10                           Cross-examination by Mr. Russo:

11        Q.   Good afternoon, Professor.

12        A.   Good afternoon.

13        Q.   Professor, I wanted to begin by asking you a few questions about

14     the information contained in your supplemental information sheet, which

15     has now been marked as Exhibit D1643.  If you could turn that to that in

16     your package there; I don't have if you have the page.

17             I want to be sure and maybe you can help me, does this document

18     contain information about every contact you've had with the

19     Gotovina Defence?

20        A.   I mean, there have been numerous e-mails that have been sent on

21     scheduling issues, and when we were going talk and setting up

22     discussions, but substantively, to the best of my recollection, this is

23     an accurate description of the substantive interactions we've had related

24     to the different products that have been produced.

25        Q.   So you're comfortable stating that none of the e-mails or other

Page 21200

 1     items of correspondence that have been passed between yourself and the

 2     Gotovina Defence, none of those contain anything substantive regarding

 3     questions you asked them, questions they may have asked you, anything

 4     substantive with regard to either your report or your addendum or your

 5     anticipated testimony.  Is that right?

 6        A.   To the best of my recollection, that's correct.  Because I always

 7     knew that there were meetings in the future so I would write an e-mail

 8     and say I have some ideas I want to bring up when we meet, but those

 9     would have been contained here.

10        Q.   Now, you were originally retained to offer advice on the expert

11     report and addendum of Lieutenant-Colonel Konings; is that correct?

12        A.   I was originally contacted and asked to -- to consider whether I

13     could do that and possibly be a witness for the Defence, but I was told

14     at that point the initial focus was to give my views on the report and

15     that we weren't -- they weren't sure at that point whether they would

16     need me as a Defence witness or not.  We would address that in the

17     future.

18        Q.   But you did have discussions with them at that point, I believe

19     early December 2008, that there was a possibility that you could testify

20     as a Defence expert; is that right?

21        A.   I was told that they might want to call me as a Defence expert.

22     We didn't discuss the substance of that.  The focus then was on this

23     report.

24        Q.   And if I understand your supplemental information sheet

25     correctly, the first time that you delivered to the Gotovina Defence your

Page 21201

 1     opinion about the expert report and addendum of

 2     Lieutenant-Colonel Konings came in late December of 2008, at a meeting in

 3     Tampa, Florida; is that correct?

 4        A.   Just one second.

 5             I -- my recollection is that I had a meeting with one of the

 6     counsel in -- my home in Houston before I went to Tampa.  So there was a

 7     meeting in Tampa -- in Houston, I believe, before I went to Tampa.

 8        Q.   Yes.  Looking at paragraph 2 of your supplemental information

 9     sheet, it indicates that shortly after some time-frame in early December

10     2008, you met with a member of the Defence team --

11        A.   That's right.

12        Q.   -- at your home in Houston.  And it says "to discuss my review of

13     the report and addendum.  And then it indicates that at that time you

14     were offered a DVD with a number of documents relating to the use of

15     artillery but you explained that it was not necessary for your analysis

16     at that point to review any documents.

17             So I take it that at that time that you had been offered those

18     documents when counsel came to your home, you hadn't actually conducted

19     your analysis of Lieutenant-Colonel Konings's report.  Is that correct?

20        A.   No, that is incorrect.  When I received the report I did my

21     initial review of it.  And I notified them that I was ready to talk to

22     them about some concerns I had with the report.  The -- the general

23     nature of those concerns is consistent with the discussion that I just

24     engaged in during the direct examination and with the Court.

25             One of the members of the Defence team flew to Houston to meet

Page 21202

 1     with me so I could explain to him what I considered to be these errors in

 2     the analysis in the report.  At that time, he brought this CD but my

 3     critique of the report was focussed on the type of systematic flaws that

 4     I just explained in the direct examination, and it was after that, when

 5     he took my initial critique -- I guess, a summary of my initial critique

 6     back to the team that I was invited to meet with the entire team to

 7     review the same information with them.

 8        Q.   And I just want to be clear:  Had you delivered any indication to

 9     the Gotovina Defence regarding what your opinions were prior to being

10     offered the DVD with the documents?  Even of a general nature.

11        A.   Before the counsel flew to Houston to meet with me, I had gone

12     through the -- Colonel Konings's report and I had told them that I think

13     there are significant flaws with it that I would like to review with

14     them.

15        Q.   And do you know what documents were on that DVD?  Did you ever

16     look at them?

17        A.   There were documents that were on that DVD that I believe I was

18     provided in hard copy at a later date.  I didn't look at the DVD at that

19     point in time.

20        Q.   And what makes you believe that the hard copy documents you later

21     looked at were actually on that DVD?

22        A.   Because my understanding was documents on the DVD were documents

23     from the trial, and other exhibits, and then I was told later that they

24     would send me hard copy versions of them.

25        Q.   But in fact you hadn't actually reviewed any documents other than

Page 21203

 1     the report and the addendum before you drew your conclusions and offered

 2     your opinions about the problems you perceived in the report.  Is that

 3     right?

 4        A.   That is correct.

 5        Q.   And when you say that you reviewed Colonel Konings's report and

 6     addendum, there are attachments to both of those.  Did you review all of

 7     the attachments to both the expert report and the addendum, if you can

 8     recall?

 9        A.   What I recall was that the addendum had assumptions related to

10     different target sets that I did review, as part of the review.

11        Q.   There was also a list of documents which

12     Lieutenant-Colonel Konings had reviewed, which was submitted along with

13     his addendum.  Did you see that list of documents?

14        A.   I don't recall.

15        Q.   After the meeting you had with counsel at your home, the next

16     meeting you had was the meeting at Tampa; is that right?

17        A.   That's correct.

18        Q.   And that meeting is addressed in paragraph 4 in your supplemental

19     information sheet.  And you indicate:

20             "At that time, I recall reviewing some of the documents that

21     purportedly were used by Lieutenant-Colonel Konings in preparing his

22     report and addendum."

23             Can tell the Trial Chamber what those documents specifically

24     were?

25        A.   Specifically I don't recall the title of every document.  I think

Page 21204

 1     I reviewed a document -- I know I looked at a document of an initial

 2     summary of effects of targeting.  I looked at the facts and assumptions

 3     related to the target sets that he was analysing in the addendum, so it

 4     may have been the same information that was embedded within his addendum.

 5             The -- I was shown some aerial photographs.  The thing that was

 6     most significant for me at that point in time was an oral kind of laydown

 7     of Operation Storm, kind of an operational summary that was provided and

 8     we used photographs, we used some maps.  There were -- periodically a

 9     counsel would pull out a document that would corroborate something

10     related to the oral explanation.

11        Q.   I want to get to the oral explanation in a minute but I just want

12     to pin down first the documentation that you indicate was purportedly

13     used by Lieutenant-Colonel Konings in preparing his addendum and report.

14             Were any of those documents HV documents?

15        A.   I know that I looked at operational summaries produced by the HV.

16     I don't know if -- when I talk about the information used by

17     Colonel Konings, my recollection is I was looking at the information, the

18     facts and assumptions embedded in the report that described each target

19     and target set, and effects that occurred on that target.

20             So did I see operational summaries produced by the HV in that

21     meeting?  My recollection is probably yes.  But I don't know that that

22     was given to me and -- in the context of, This is something that he

23     considered.

24        Q.   Thank you.  Now, with respect to the oral presentation, I'd like

25     you to be as specific as you're able to be and recall for us what

Page 21205

 1     information you were provided with during that oral presentation.

 2        A.   As specific as I can be, I needed -- I felt I needed to get a

 3     better sense of the operational situation before I could start giving my

 4     own assessment of the propriety of using a certain asset in a certain

 5     context.

 6             So I was given a -- there was a map on the table, there was

 7     another one on the wall and there was a broad-brush explanation of the

 8     operational objectives of Operation Storm, the general disposition of

 9     friendly and enemy forces leading up to Operation Storm, the

10     relationship -- the strategic relationship between Operation Storm and

11     relief of an area that was -- a Bosnian Muslim area that was besieged at

12     the time.  Then there was a discussion of the initiation of the

13     operation.  I saw photographs and maps that identified some of the

14     targets that were listed in the addendum within Knin.  I wanted to see

15     the dispersion of targets in the city, because I thought that was

16     important.  There was explanation of what -- what those some of those

17     assets were.  I would probe that to a certain degree, what units were

18     there, what was manufactured there, where did this bridge lead to, where

19     did this rail line lead to.  And then was a kind of discussion of the

20     progression of the battle, the first day, the assault, the pincer assault

21     on the Serb -- there was like an intrusion, the Serb lines, the actions

22     of the first night where there was a decision to evacuate civilians from

23     Knin and to tighten the Serb defensive lines, to shorten their defensive

24     lines.  The second-day operations.  The egress route was in existence for

25     the Serb civilians and military personnel.

Page 21206

 1             There was a discussion of the disposition of General Gotovina's

 2     artillery assets prior to the battle.  The -- there was some visual

 3     explanation of the location of those assets and the ability of those

 4     assets to put in range of their fires, targets and other area within Knin

 5     leading up to the battle.  There was discussion of the fact that indirect

 6     fire was not used until the assault was commenced.  There was discussions

 7     ever opportunities that existed to -- to close the egress route by

 8     General Gotovina's forces or to target -- potentially target mixed

 9     civilian and military personnel that were withdrawing from the pocket,

10     the decision not to do that.  And then was some discussion of the concept

11     of the operation for follow-on operations, although I wasn't particularly

12     interested in the next phase of the operation, once Knin had been -- Knin

13     had been taken.

14        Q.   You have quite a capacious memory, Professor, and thank you for

15     that level of detail.

16             I want to be clear.  This was -- sounds to me as though it was a

17     bit of a back-and-forth discussion.  They were informing you about the

18     operational situation.  You were asking specific questions, and they were

19     providing answers to those questions.  Is that right?

20        A.   Yes.

21        Q.   You did mention photographs and documents that you were shown.

22     Do you know whether those photographs and documents are contained within

23     the list of exhibits in paragraph 12 of your supplemental information

24     sheet?

25        A.   I couldn't say with absolute certainty that every photograph or

Page 21207

 1     document is listed there.

 2        Q.   I -- --

 3        A.   May I continue?

 4             I can tell you that -- that I can recall from that meeting which

 5     ones I considered to be significant.

 6        Q.   Can you tell us what those were?

 7        A.   There was a -- there was a battle damage assessment that was

 8     conducted -- a report of a battle damage assessment that was provided by

 9     a UN observer, I believe.  I thought that was significant, because --

10        Q.   Let me stop you there.  Is that the same document which is

11     addressed, in fact, in the last question of your addendum.

12        A.   Let me go back and look.

13        Q.   Exhibit P64.

14        A.   Let me go to the last page.

15             Yes, that's the provisional assessment I'm referring to.

16             And I thought that it was useful to see the location of the

17     military objectives that were within Knin on photographs.

18        Q.   And was this one photograph of -- an aerial photograph of Knin or

19     was it several photographs?

20        A.   As I recall, there was more than one aerial photograph.

21        Q.   Were there any other documents that stand out in your mind as

22     significant?

23        A.   Not that I can recall from that meeting, as me leaving with a

24     sense that that was a pretty important piece of information.

25        Q.   Did you take any of these documents with you when you left the

Page 21208

 1     meeting?

 2        A.   No.

 3        Q.   Were any of those documents sent to you prior to the drafting of

 4     either your expert report or the addendum?

 5        A.   Yes.

 6        Q.   Can you tell me which of those documents you received prior --

 7     and why don't we take this piece by piece, because I understand that the

 8     report and addendum were done at different times.

 9             Did you receive documentation prior to the drafting of the expert

10     report?

11             JUDGE ORIE:  Mr. Russo, I noticed that Mr. Misetic, in his role

12     as slowing down everyone, has now extended his functions to the

13     Prosecution.  He is hinting with his hand that you should perhaps slow

14     down, and I agree with him.

15             MR. RUSSO:  I will pay more attention to Mr. Misetic.  Thank you,

16     Mr. President.

17        Q.   Would you like me to repeat the question, Professor?

18        A.   No, I understand the question.

19             As the information sheet indicates, I was given a CD prior to

20     writing my critique of Colonel Konings's expert report.  At that point,

21     my critique was focussed on methodology, and I didn't rely on any of that

22     information in that initial report.

23             Prior to writing my addendum, I was sent a -- a number of

24     documents.  I went as -- as is indicated in the information sheet, I went

25     back to the Defence team and proposed an alternate methodology.  My view

Page 21209

 1     was that if I was going to write the addendum which was offering my

 2     opinion on the legality of engaging targets with certain weapons systems,

 3     I needed to have a sense of the facts and assumptions that were available

 4     to General Gotovina that were established by the record, and I felt that

 5     it would be much more legitimate for me to have counsel identify those

 6     facts and assumptions than for me to go through the record and attempt to

 7     discern what information had been well established, what information was

 8     contradicted.  I haven't been sitting through the trial.

 9             So I asked -- may I finish?  I asked Defence counsel to give me

10     that information, because the first step in the target assessment process

11     is to gather facts and come up with your assumptions related to the

12     mission.

13             Now what I asked for them to do was to provide facts and

14     assumptions based on their sense of confidence that those facts and

15     assumptions were supported by the record.  After they sent them to me,

16     which is in the letter requesting the addendum, I went back to them as I

17     was preparing it, and I asked them very directly if they were confident

18     that these are facts and assumptions that are before the Tribunal.  Their

19     response was they were very confident that, based on their assessment of

20     the case, these are legitimate facts and assumptions.  They said there

21     are several that they think are more in controversy than others, but that

22     they were comfortable with me framing my opinion or building my opinion

23     on that factual and assumptive foundation.

24        Q.   Thank you, Professor, although you jumped ahead of me a little

25     bit, I certainly do want to discuss your suggestion of the alternative

Page 21210

 1     method.  But I was first trying to determine what documents you actually

 2     reviewed prior to the drafting of your expert report before discussing

 3     what you did with the addendum.

 4             Now, if I understand the situation correctly, you had a DVD in

 5     hand with documents, at least in late December.  You hadn't reviewed

 6     those documents before coming to an opinion about Konings's report and

 7     addendum.  You were then asked to produce your own report addressing some

 8     of those issues.

 9             Did you, before you drafted the first report, review the

10     documents contained on that DVD?

11        A.   No.

12        Q.   Did you review any other documents before you drafted the first

13     report?

14        A.   Well, it was drafted after the meeting in Tampa, so, as I said,

15     there were documents that I looked at during that meeting in the context

16     of the overall explanation of the operation.  But when I sat down to

17     write that report, what I was asked to write was to summarize or explain

18     the legal principles related to the use of indirect fire, in large

19     measure to correct what I saw were overbroad or imprecise assertions of

20     obligation in Colonel Konings's report.  So it was more a discussion of

21     relevant law and principles than a discussion of the specific application

22     in the case.

23        Q.   Thank you.  And to be clear, your first report, as you indicate,

24     was an exposition on the state of the Law of Armed Conflict as it relates

25     to the use of artillery in civilian-populated areas and the

Page 21211

 1     considerations attendant to that, but I also get the sense that it was in

 2     response to the problems you identified in the Konings's report and

 3     addendum.  Is that right?

 4        A.   I don't know about addendum.  It was primarily focussed on the

 5     initial report, and it was responsive because I was -- I was memoralising

 6     the oral critique that I had provided of that report to Defence counsel,

 7     both at my home and in Tampa during the meeting.

 8        Q.   And is there any particular reason why in your expert report you

 9     didn't specifically reference Colonel Konings's report or point out the

10     particular parts that you took issue with, or, for that matter, give any

11     indication that the genesis of your report was a response to

12     Colonel Konings's report?

13        A.   No.  I mean, I was asked after I had the oral discussions -- I

14     guess that's redundant.  After I had the discussions in Tampa with

15     Defence counsel, they followed up based on some of the points I had

16     raised with a letter requesting me to address specific points, okay?

17     When I got that letter, I responded to them and suggested modification of

18     some of them because I thought that some were either redundant or weren't

19     an accurate articulation of the general subject that I had discussed in

20     the meeting.  They responded that I could modify it any way I thought

21     made it consistent with my oral discussions, and that was the framework

22     of questions that I responded to in the report.

23        Q.   And attached to your expert report is a May 19th letter, and

24     we've also seen today D1644 which is the March 27th letter.  The

25     March 27th letter is the one that lays out the questions for your initial

Page 21212

 1     report.

 2             Now, did you make modifications to the questions in the March 27

 3     letter or was there earlier correspondence that had different questions

 4     which you changed?

 5        A.   No.  I had a phone call, and -- after the meeting in Tampa, and

 6     there was a discussion of the points that I had raised from counsel's

 7     notes that they thought it would be useful to have a written explanation

 8     of.  I suggested that they put those points in writing and provide them

 9     to me.  When I got them, and I started to basically scope out my response

10     to these questions, I felt that it would facilitate my written, or

11     product, to modify some of those questions, so I went back to them and

12     told them I wanted to modify some of the -- the style or the focus of

13     some of the questions, and they said, That was our best recollection of

14     the points you'd made but this is your report, so modify it any way you

15     want.

16        Q.   Thank you.  What I'm trying to get at is, is the March 27th

17     letter, is that after the modification, or did you modify the questions

18     in the March 27th letter?

19        A.   I -- I don't know the exact date I wrote the report.  My

20     recollection is that I told them after I got the letter I was going to

21     change the form of some of the questions.

22        Q.   So we wouldn't expect to find two letters sent to you with

23     questions in them; is that right?

24        A.   Not that I recall.

25        Q.   Looking at your supplemental information sheet, paragraph 6, you

Page 21213

 1     indicate that you provided the Defence with a draft report on or about

 2     April 10th, 2009, and that you didn't receive any substantive comments

 3     about that report.

 4             Were you asked any questions concerning what was contained in

 5     that report?

 6        A.   I was not.  In fact, I didn't hear anything after I sent it, and,

 7     you know, pride of authorship, I'm wondering if -- how it was received.

 8     So after waiting a few weeks I contacted them and I said, Are you

 9     satisfied with the report?  And they said, There are just a couple of

10     typographical errors we noticed and we'll let you -- and we'll send that

11     to you, but, otherwise, we think it's fine.

12        Q.   The next paragraph indicates:

13             "During this time-frame, I was provided with a copy of the

14     complete transcript of the trial testimony of Lieutenant-Colonel Konings,

15     as well as the 92 ter witness statement of Marko Rajic and the complete

16     trial transcript of his testimony."

17             Did you receive those materials before you drafted the expert

18     report or did you receive those materials after you drafted the expert

19     report?

20        A.   My recollection is I received them after.  I can -- I know that I

21     didn't factor them into that initial report.

22        Q.   Did you factor them into the addendum you later drafted?

23        A.   I think I did consider Marko Rajic's, some of the information

24     from his testimony, into the addendum.  But I was in Santiago, Chile,

25     when I wrote the addendum; I wasn't in the United States.  I was there

Page 21214

 1     teaching a course and I didn't have the documents with me, and that

 2     report, that addendum is driven by facts and assumptions that are

 3     provided by counsel which I asked them to provide.  That was the

 4     predominant source of information upon which I assessed each target.

 5             Now, I can't say that other information I saw at some point, I

 6     can't say absolutely it did not influence my assessment.  But the -- the

 7     predominant source of information that I relied on were those facts and

 8     assumptions.

 9             I did remember a fact I thought was significant that I had

10     learned, I believe, in the meeting in Tampa, and when I got the facts and

11     assumptions, I remember it was a Skype call from Tampa to here, and I

12     said, you know, I think this -- I've always thought this was a

13     significant factor.  And they said, If you think it's a significant

14     factor, you can add that as a fact.

15        Q.   Professor, as a former advocate yourself and you have obviously

16     have significant experience in criminal trials, you do understand that

17     one of the hallmarks of the reliability of an expert's report is the

18     transparency in the sources relied upon by the expert to draw their

19     conclusions; right?

20        A.   Absolutely.

21        Q.   And if there were time considerations or logistical consideration

22     with documentation that you didn't have at the time, I understand that.

23     I just want to know why, if you couldn't do it at the time, why you

24     didn't follow up later to specifically indicate which documents you

25     relied upon for which portions of your addendum?

Page 21215

 1        A.   Well, for the addendum specifically, because I made a decision

 2     that I needed to make -- render that opinion based on the information

 3     that was -- had been presented to the Tribunal, and I felt the most

 4     efficient and logical way to do that would be to ask counsel to give me

 5     what they believed were the relevant facts and assumptions.

 6             JUDGE ORIE:  Mr. Russo, sorry to interrupt, but the witness in

 7     one of his previous answer referred to one specific fact he made a phone

 8     call about.

 9             Could you tell us what that fact was, what considered of such

10     importance that you would verify whether you could use it.

11             MR. RUSSO:  Actually, Mr. President, I'm sorry to interject, that

12     was part of my next follow-up.

13             JUDGE ORIE:  Then I'll not -- you can already think about the

14     question, but Mr. Russo will put some other questions to you.

15             I thought you had left the area, but apparently not.

16             Please proceed.

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

18        Q.   The Presiding Judge has hit on the -- what you just mentioned.

19     It is also discussed in paragraph 9 of your supplemental information

20     sheet where you point out that the assumption which we find at page 30,

21     subparagraph (d) in your addendum, is it's an assumption that you made in

22     the report but you recalled it from the meeting you had in Tampa.  You

23     gave the Gotovina Defence a call to either refresh their recollection or

24     yours about that and find out if that was a defensible point that you

25     could use in your analysis.

Page 21216

 1             Is that right?

 2        A.   That's correct.

 3        Q.   This is where my concern begins because, obviously, if you were

 4     confining your addendum only to the facts and assumptions which were

 5     provided to you in the May 19th letter, you wouldn't have had to call

 6     them to ask to add additional factors in there.  So it's clear, at least

 7     to me, and please correct me if I'm wrong, that you also did, in fact,

 8     rely on the oral presentation during late December in drafting your

 9     addendum.

10             Is that right?

11        A.   I don't think could I have written it without having that general

12     concept of the operation in my mind.  So yes.  The answer your question

13     is yes.  I did rely on the overview of the operation, the general -- what

14     we would call in military parlance the concept of the operation.  But

15     this was a specific fact related to the General's decision-making

16     process.  And before I allowed that to influence my opinion, I made a

17     decision that I needed to validate that as consistent with the other

18     facts and assumptions, was that one that was -- they were confident had

19     been established in the record.  And that's why I addressed that specific

20     one.

21        Q.   And knowing the concern for transparency in the report, why

22     didn't you insist that the entire discussion that you had, at least all

23     of the information that was provided to you and the documents shown to

24     you, why didn't you insist that that be memorialised either as facts and

25     assumptions or in some other way and attached to your addendum?

Page 21217

 1        A.   I mean, I don't know if I even contemplated that question.  I

 2     know that what I wanted to do was to make sure that I was rendering an

 3     opinion that applied the standard of prospective critique properly.  I

 4     didn't want to look at what happened and look back and say, In my

 5     opinion, because this happened, it was illegal.  Because, as I stated in

 6     the first report, I think that is not the proper application of the legal

 7     standards that regulate combat operations as they're transformed into a

 8     source of criminal responsibility.  And therefore, I felt it was critical

 9     for me to render this opinion that the opinion be based on facts and

10     assumptions available to General Gotovina as revealed in the record --

11     the proceedings of the trial.

12             So candidly, I -- I -- my expectation was I might have been given

13     information that he wasn't aware of at the time.  I don't think that's

14     relevant in me critiquing his battlefield judgement at the time he makes

15     a decision because I have to look at -- I have to apply the objective

16     standard of the law through his subjective perception of the situation at

17     the time, and that's what I asked the Defence to provide me.  That was a

18     decision, the decision not to engage those fleeing forces, that stood out

19     in my mind, because it seemed quite significant.  And when that was not

20     in that list of facts and assumptions, I thought that it was something

21     that I needed to raise, and that's why I addressed that one specifically.

22        Q.   Professor, you said:  "I didn't want to look at what happened and

23     look back and say, In my opinion, because this happened it was illegal."

24             For the record, we find that at draft transcript page 85, lines 9

25     to 11.

Page 21218

 1             This sounds to me to be something of a limitation on the opinions

 2     you've offered.  I want to see if I'm correct in that.

 3             First of all, there's a difference, you would agree, in what

 4     somebody tells you they knew at the time and what other people may find

 5     based on other evidence was, in fact, the situation at the time.

 6             Do you agree with that?

 7        A.   There's a difference between direct and circumstantial evidence.

 8     If somebody tells me they saw it, it's direct evidence.  If there's a

 9     fact that creates an inference, that's circumstantial evidence.  I

10     understand that.

11        Q.   And for purposes of your addendum, you weren't -- am I right, you

12     weren't interesting in hearing or looking at evidence of what happened

13     and then determining whether -- what actually happened constituted a

14     violation of the laws of armed conflict.  Do I have that right?

15        A.   No, I think that's overbroad.  You look at effects because that

16     is a source of circumstantial evidence from which can you infer certain

17     conclusions.  But what I was opposed to was looking at only effects and

18     then considering facts that were unavailable to the defendant at the time

19     he made his decision, and then concluding from that, that he made a

20     flawed decision.

21        Q.   I want to take this sort of step by step.

22             First of all, there's -- if you look at what actually happened,

23     that can include evidence both of what General Gotovina claims to have

24     known at the time, and also include evidence of what he should have known

25     at the time.  Isn't that right?

Page 21219

 1        A.   Yes.  Facts that were available to him at the time of the

 2     decision.

 3        Q.   Right.  And it's -- that's part of the concern I have with the

 4     alternate method you suggested by asking the Defence to provide you only

 5     with facts and assumptions that General Gotovina claims to have relied

 6     on.  Wouldn't you agree with me that you're essentially closing your eyes

 7     to evidence that could have demonstrated to you what he should have known

 8     and should have relied on?

 9        A.   Well, I think that you're -- you're missing the distinction

10     between facts and assumptions, okay?  Facts are facts established that

11     are established by the record related to the mission.  Assumptions are

12     assumptions that were made by the commander.  They're both relevant in

13     the decision-making process.

14             I agree with you 100 per cent that you could have a situation

15     where there was an objective fact that was available for the defendant

16     that he ignored or failed in his duty to make himself aware of, and that

17     would be relevant in assessing whether or not he discharged his

18     responsibility in accordance with the law.

19             But facts, some of the facts that were listed in that -- in the

20     response to my request were facts related to effects.  So I'm not

21     suggesting that effects are not relevant.  They're -- they're -- you can

22     see that they talk about -- that the targets that were placed under fire,

23     okay?  If you change that fact, if you tell me that those targets were

24     never placed under fire, that the only things placed under fire were

25     hospitals, schools and civilian buildings, then it fundamentally alters

Page 21220

 1     the opinion.  So the facts and assumptions, I think, certainly my

 2     expectation was that they were not simply what the Defence could tell me

 3     for certain the General knew.  They were general facts related to the

 4     situation and then the commander's assumptions.

 5        Q.   I do -- I understand that, Professor.  What I'm putting to you is

 6     that the analysis that you conducted is based on -- on the methodology

 7     that you saw fit to employ necessarily not independent that by refusing

 8     to take a look -- an independent look at the evidence itself, you

 9     deprived yourself of the opportunity to find evidence which could either

10     suggest to you that General Gotovina was acting in bad faith or that an

11     assumption he made was not in accordance with the actual situation or was

12     in some way disingenuous.  How do you respond to that?

13        A.   I think that is always a potential risk when you render an

14     opinion, and my assumption is if there is a significant fact or

15     assumption that I failed to make myself aware of, then that is part of

16     the adversarial testing of the opinion and that you would have the

17     opportunity to expose that to me and ask me if that would modify my

18     opinion.  So I would readily concede that for -- and for my opinion to be

19     absolutely perfect, it would have been ideal to sit in this courtroom and

20     listen to the entire case.  It would have been even more ideal to sit in

21     General Gotovina's command post in Croatia and monitor the

22     decision-making process.

23             There's no question that the degree of information you have

24     enhances the foundation for the opinion you render, and -- and that's why

25     I -- I was insistent with Defence counsel that they not give me what they

Page 21221

 1     ideally hoped would be the factual conclusions of the adversarial process

 2     or the trial process, but they give me facts and assumptions that they

 3     have a degree of confidence were established by the record.  Now, I know

 4     that is not foolproof, and I know that the Prosecution certainly is

 5     likely to contest some of those facts and assumptions, but that's what I

 6     based the opinion on.

 7        Q.   Thank you very much for that explanation, Professor.  I do

 8     understand you come from an adversarial system, as do many of the lawyers

 9     in the courtroom.

10             I want to step back from this particular line of questioning so I

11     want to just touch on this today before we move on.

12             Looking at your curriculum vitae, which is Exhibit D1641, I

13     notice on page 5, under the heading "International and National Security

14     Law Experience," the second position you list there, chief, international

15     law and operations division office of the Judge Advocate, US Army Europe,

16     June 2001 to July of 2003, the third bullet point there indicates that

17     you provide expert advice in support of all military lawyers involved in

18     active operations throughout the Balkans.

19             Can you give us a little explanation of the involvement you had

20     in the Balkans at that time?

21        A.   The military lawyers that I advised were US military lawyers

22     involved in operations in Bosnia and Kosovo.  The IFOR mission in Bosnia,

23     the US component of that mission, and the SFOR mission in Kosovo, the US

24     component of that mission.  I was not an advisor to NATO commands so I

25     did not advise or provide assistance to the IFOR headquarters or the SFOR

Page 21222

 1     headquarters.  But in both of those missions there was a large US

 2     contingent and those contingents had a strong presence of US military

 3     lawyers, and when they would get legal issues related to the planning and

 4     conduct of military operations that they felt they needed assistance on,

 5     that was the function of my office, was to provide that next level of

 6     expert assistance to them.

 7             And -- and I can tell you with fair -- a fair degree of certainty

 8     what the primary focus of that was.  It was detention operations in

 9     Kosovo.  That was the -- 90 per cent of our focus was dealing with those

10     issues.  Bosnia, by that point in time, had been -- become a relatively

11     stable environment.  And for whatever reason, the -- the US military

12     legal officer in Bosnia was always senior to the officer in Kosovo.  So

13     there was always a colonel in Bosnia and usually a major in Kosovo, so

14     the -- the qualification of the senior officer in Bosnia rendered the

15     need for our involvement there less significant.

16             The other area that caused a lot of challenge was fiscal law,

17     what you're allowed to spend money on and what money you're allowed to

18     execute the operation.  Those were the two primary focus of our legal

19     assistance to those missions.

20        Q.   Thank you, Professor.  Now were --

21             JUDGE ORIE:  No.

22             Professor Corn, from the fact that we had to wait such a long

23     time you may understand this to be an encouragement to further slow down.

24             THE WITNESS:  Yes, Your Honour.

25             MR. RUSSO:

Page 21223

 1        Q.   Professor, at paragraph 12 of your supplemental information

 2     sheet, you list documents that you were provided with by the Gotovina

 3     Defence and you indicate this was subsequent to the drafting of your

 4     report.

 5             It's unclear to me, though, if you got them after the report and

 6     before the addendum, or if you got them after both the report and the

 7     addendum were drafted.

 8        A.   I know I did not consider any -- any of this when I wrote the

 9     initial report.  I know I received a FedEx box with a number of documents

10     in it.  I think I received it before I wrote the addendum, although I am

11     not positive.  I know that when I wrote the addendum I was in Chile, and

12     I didn't bring those documents with me.

13        Q.   Can I take it from that answer that you did not specifically

14     consider these documents in the drafting of your addendum?

15        A.   I mean, I think some were -- were copies of photographs that I

16     had seen in the meeting in Tampa, so if they were related to the general

17     concept it probably was something that I would have factored in.  But, as

18     a general proposition, that's an accurate statement.

19        Q.   Beyond this list we find in paragraph 12 and the oral

20     presentation you were provided with at the end of December 2008, were

21     there any other documents or pieces of information -- also, the testimony

22     of Konings and Rajcic, with the exception of those, is there anything

23     else that you were shown or told with respect to the substance of this

24     case?

25        A.   Well, I can't immediately correlate the number with the document.

Page 21224

 1     I can tell you other information that I have considered in my preparation

 2     to come over here.  There was a transcript from a meeting between the

 3     president and members of the military staff, including the General; I

 4     think it was in Brioni.  I looked at that.  There were some psychological

 5     operations directives that I looked at related to information to

 6     influence the conduct of the civilian population.  Rajcic's testimony was

 7     something that I looked at extensively.  As I said, the visual

 8     disposition of military objectives in Knin was obviously something that

 9     was important, in my mind.  So, I mean, that's a candid kind of offer of

10     the -- of the information that I think had a significant influence on my

11     thought process.

12        Q.   Now, in paragraph 13 --

13             MR. RUSSO:  Actually, Mr. President, this particular line of

14     questioning may take more than a few minutes.  I understand we only have

15     a few left.

16             JUDGE ORIE:  We have only a few left.  Therefore, perhaps better

17     start with that tomorrow.

18             Yes.  Is there any procedural matter anyone would like to raise

19     at this moment because then we will see whether we need Professor Corn

20     for it.  If not, then we could use those five minutes for ...

21             MR. KEHOE:  We don't need Professor Corn for the procedural

22     matter that I will address.

23             JUDGE ORIE:  Professor Corn, we'd like to adjourn for the day and

24     we'll resume tomorrow morning, 9.00, in this same courtroom.  But before

25     I let you go I would like to instruct you that you should not speak with

Page 21225

 1     anyone, whoever it is, about your testimony, whether testimony already

 2     given or still to be given.

 3             Madam Usher will escort you out of the courtroom and we'd like to

 4     see you back.

 5             THE WITNESS:  Thank you, Your Honour.

 6                           [The witness stands down]

 7             JUDGE ORIE:  Mr. Kehoe.

 8             MR. KEHOE:  Yes, Mr. President.  At this time the Gotovina

 9     Defence would like to make an ore tenus motion to withdraw the expert

10     report of Mr. Pokaz.

11                           [Trial Chamber confers]

12             JUDGE ORIE:  Leave is granted to withdraw the application for

13     admission into evidence of an expert report of Mr. Pokaz, so that

14     Mr. Pokaz now is not part of the record anymore, apart from procedural

15     history but not as far as the substance is concerned.

16             Any other matter?

17             MR. KEHOE:  The only other matter is the issue that we briefly

18     touched on this morning concerning the Rule 68 issue, and the only reason

19     I raise that at this juncture, Mr. President, is I'm not sure exactly

20     where that's going to take us with having to incorporate that additional

21     information, either in a bar table submission or requesting, you know, to

22     bring witnesses back or incorporating it in the witness that Mr. Misetic

23     will address next week.  I simply don't know.  Given I do have the

24     exhibit that was sent about last week by Mr. Misetic that was presented

25     in the Popovic case that apparently had been extant in the records of the

Page 21226

 1     Office of the Prosecutor for some time.

 2             But given the fact that we are coming to the end of the

 3     Prosecution -- excuse me, the Defence case for General Gotovina, we

 4     certainly would like to see if we can incorporate or obtain this

 5     information to make the correct decisions as we move to the end of the

 6     case.

 7             JUDGE ORIE:  Yes.  Perhaps for the record, there is an issue of

 8     disclosure of -- from what I understood is an order preparing for

 9     operational activity issued by Mr. Mladic which dates from the early days

10     of August.

11             MR. KEHOE:  3 August, Your Honour.

12             JUDGE ORIE:  3 of -- 3rd of August, and the issue is that the

13     Defence considers this to be exculpatory evidence which should have

14     disclosed, where they found it only recently on the public record in the

15     Popovic case.

16             Just to see whether I understood you well, Mr. Kehoe, you'll

17     consider -- now it's on the record what we are talking about.  You'll

18     consider in which way you want to approach this matter procedurally and

19     that we'll hear from you as soon as you have made up your mind, and that

20     for the time being, it is just put on the record that there is a

21     disclosure issue.

22             MR. KEHOE:  Yes, Mr. President.  The further disclosure issue is

23     this is an attack order from the 3rd where General Mladic orders an

24     attack for 6.00 in the morning on the 5th.  It is an operation that is

25     called Vaganj, V-a-g-a-n-j, 95.  And what we are looking for is the

Page 21227

 1     documents that are encompassed in this because there are any number of

 2     documents, and I will tell that it concerns not only this offensive that

 3     was planned by the VRS and General Mladic to kick off on the 5th.  There

 4     are also some documents, it appears in the Popovic case, that detail the

 5     redeploying of units from the Drina Corps to fight the HV as early as the

 6     9th of August in that area.

 7             So that's a series of items and we're just looking for as much as

 8     possible to see in fact what we're going to do with them and how we will

 9     proceed, if we will just bar table them or is there some other

10     appropriate measure to take.

11             JUDGE ORIE:  Yes, I do understand that you have to further

12     explore the matter of the context of it, other documents and then you

13     will come back to the Chamber and tell us in which way you would like to

14     proceed in relation to this.

15             That is on the record.

16             This being the case, Mr. Russo, I will not invite you at this

17     moment to respond.  Of course, if there's any useful communication

18     possible between the parties on the issue, the parties are encouraged to

19     use the opportunity to do so.

20             We will adjourn for the day, and we will resume tomorrow, the

21     8th of September, 9.00, Courtroom I.

22                            --- Whereupon the hearing adjourned at 1.47 p.m.,

23                           to be reconvened on Tuesday, the 8th day of

24                           September, 2009, at 9.00 a.m.