Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27646

 1                           Thursday, 19 April 2012

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness takes the stand]

 5                           --- Upon commencing at 11.11 a.m.

 6             JUDGE KWON:  Good morning, everyone.  As you see, the proceedings

 7     have been delayed due to technical difficulties.  Thanks to the diligent

 8     endeavour of the ITSS people, I'm very pleased to -- to restart right

 9     now.

10             Okay.  Mr. Karadzic, please continue.

11             The common LiveNote is working, while personal LiveNote doesn't

12     seem to be working at the moment, but let's continue in the meantime.

13             Yes.  I was told that in order to see the personal LiveNote, you

14     need to restart the computer.

15             THE ACCUSED: [Interpretation] Good morning, Your Excellencies.

16     Good morning, everyone.  [In English] Did you get me -- no.  Good

17     morning, I said.

18             THE WITNESS:  Good morning, sir.

19                           WITNESS:  RICHARD BUTLER [Resumed]

20                           Cross-examination by Mr. Karadzic:

21        Q.   [Interpretation] Yesterday, we discussed the situation in

22     Kotor Varos as an intro into what I want to show you concerning directive

23     number 4, but before that I want to show you one more document.

24             THE ACCUSED: [Interpretation] D1324, please, in e-court.

25             MR. KARADZIC: [Interpretation]

Page 27647

 1        Q.   While we're waiting, Mr. Butler, do you believe me if I say that

 2     after what happened in Kotor Varos -- no, that's not the right document.

 3     D1324.  D12 -- 1324.  Not 1234 but 1324.

 4             Do you take my word for it that many traumatic events occurred

 5     for both sides?  There was a lot of revenge, the civilians had gone, the

 6     combat unit remained, and then fierce fighting developed.  There were

 7     personal settlement of accounts, killings, revenge, et cetera.  I don't

 8     know if you dealt with it yourself, but would you believe me if I say

 9     that happened?

10        A.   I cannot speak specifically to Kotor Varos, but clearly the

11     description of the situation that you've described would also easily fit

12     the territory of Eastern Bosnia in 1992 through 1995 as well.  So I would

13     agree with your general premise, although like I said, I cannot comment

14     on what did or did not happen in Kotor Varos.

15        Q.   Thank you.  Look at item 2, please, second paragraph.

16     Captain Zupljanin informed the War Presidency of a report that the

17     soldiers from Vecici have abandoned the village.  The population also

18     left and is in Hadzirica Potok.  And now the populous is gone, and they

19     went further on towards Central Bosnia, and they passed through safely.

20             Very well.  Let's look at directive number 4 now, P976.  You are

21     familiar with it; right?

22             JUDGE KWON:  Yes, Mr. Nicholls.

23             MR. NICHOLLS:  Excuse me.  I may be missing it.  Does this

24     document say that they passed through safely?  I'm --

25             THE ACCUSED: [Interpretation] No, it's not written there, but

Page 27648

 1     it's written that both left but going in two different directions.  The

 2     civilians went to Hadzirica Potok.

 3             MR. NICHOLLS:  Thank you.  I just -- from the record and the

 4     transcript it looked as though that was written on the document.

 5             THE ACCUSED: [Interpretation] 976 is the number, I believe.

 6     P976.

 7             THE WITNESS:  Yes.  In answer to your question, I am familiar

 8     with this document.

 9             MR. KARADZIC: [Interpretation]

10        Q.   Thank you.  Could we now look at item 6 relating to the

11     Drina Corps.

12             MR. NICHOLLS:  Page 5 in English.

13             THE ACCUSED: [Interpretation] Thank you.

14             MR. KARADZIC: [Interpretation]

15        Q.   Item (d) says the Drina Corps.  Now, I'd like to ask you this:

16     Do you recall, and I believe I asked you the same thing yesterday, how

17     many requests were made through Morillon and in other ways for civilians

18     to be moved from the area of combat operations in Eastern Bosnia?

19        A.   Again, my answer from yesterday is that I am aware that on a

20     number of occasions there were requests made and that the UN did seek to

21     in Eastern Bosnia facilitate the movement of civilians out of active

22     combat areas.  I do not recall a number of those requests.  However, I

23     believe that they are well laid out in the United Nations report relating

24     to the fall of Srebrenica, and so those details are available in that

25     document.

Page 27649

 1        Q.   Thank you.  Here in directive 4 it is written somewhere, but I

 2     can't locate it now because I don't have hard copy --

 3             THE ACCUSED: [Interpretation] Can I see the next page in Serbian.

 4     "Mladic requested."  I beg your indulgence for a moment.

 5             MR. KARADZIC: [Interpretation]

 6        Q.   Yes.  Under (d) it says -- I'll be reading in English because

 7     I've lost the Serbian page.

 8             "[In English] First offered the disarming of able-bodied and

 9     armed men, and if they refuse, destroy them.  Then unblock the

10     Milici-Konjevic Polje-Zvornik road," and so on and so on.

11             [Interpretation] It seems to have been revised because earlier it

12     sounded -- asking them to surrender, but it's really to disarm them.

13             I want to ask you -- I don't know if it's the same thing in

14     English as in Serbian.  If you were going somewhere, would there be a

15     difference if I said your wife would be going with you and that your wife

16     would be -- that you would be going with your wife?  Does it make a

17     difference in English?  Who leads in one case and who leads in the

18     alternative?

19        A.   I'm not sure I can help you with that particular transliteration

20     on my experience.  I've been married for 31 years and I've never been in

21     charge, so in all scenarios, I'm going wherever my wife's going.

22        Q.   Thank you.  It's much the same in my case, but let's say that

23     it's going with your brother.  If we say Dr. Butler would be going with

24     his brother as opposed to Mr. Butler's brother would be going with him,

25     who is leading and who is following?

Page 27650

 1        A.   Again, I don't know whether it's an issue of linguistics with

 2     respect to directive 4, but, I mean, to raise the issue -- I mean, the

 3     issue as it is written is whether or not the military is the object of

 4     attack and that as the military withdraws, the civilians attempt to go

 5     with them or whether the civilian population itself is one of the objects

 6     of attack, presumably with the military.  And therein lies the issue of

 7     the language in this particular paragraph.

 8        Q.   However, it is a very essential issue.  I'll show you.  When it

 9     says, "and forced them with the Muslim population to leave Birac,"

10     [In English] What if I would change the order or the sequence of the

11     words and say, "and forced them to leave with the Muslim population" as

12     it is in original?

13        A.   Well, the, sir, the version that I'm looking at in English says

14     as follows, and I'll start with the clause in question:

15             "Inflict the heaviest possible losses on them and force them with

16     the Muslim population to leave Birac, Zepa, and Gorazde areas."

17             This is what it says on the English language translation that I'm

18     looking at.

19        Q.   [Interpretation] Thank you.  But let's look now at this.  Does

20     the sense change if we put the word "leave" before "the population," "and

21     forced them to leave with the Muslim population"?

22        A.   Not wishing to quibble over linguistics on this issue, for me as

23     a military analyst, the definition of what this meant to the military

24     commanders on the ground would be best reflected by how the campaign was

25     conducted by those military officers within the Drina Corps and within

Page 27651

 1     the various brigades that were conducting them.  And it is my position,

 2     having looked at that and looked at how that particular campaign was

 3     conducted, I conclude that at least in part the civilian population,

 4     their structures, and their towns and villages were objects of attack.

 5     So attacking the civilians were not a by-product or a collateral impact

 6     of the military operations.  Moving the civilian population more or less

 7     permanently from the region was a military goal.

 8        Q.   However, Dr. Butler, look at this analogy.  This is two weeks

 9     after the incident in Vecici.  Two weeks later after an identical

10     incident, the civilians want to go, the army wants to stay.  Mladic

11     orders here the army to follow the civilians, not the civilians to follow

12     the army.  So it's not the army leading the civilians.  It is -- the

13     civilians who want to go anyway are to take the troops with them, because

14     a similar dispute occurred in Kotor Varos in the case of Vecici.  Do you

15     see that one follows from the other?

16        A.   First, sir, while I appreciate the sentiment, I am not a doctor

17     or professor.

18             Second, in light of the geographic distance and the fact that one

19     incident is occurring in the zone of the Krajina corps and one is -- and

20     one operation or planned series of operations is occurring in the

21     Drina Corps, I don't believe that there's a causal link between the two.

22             Again, it may reflect your particular wish that this is how a

23     campaign may be conducted.  However, in the operative document it is not

24     drafted or written that way, and if one were to examine the conduct of

25     the campaign, it is my belief that it was not fought that way.

Page 27652

 1        Q.   I appreciate your saying that it's your opinion, but do you agree

 2     that two weeks earlier, in the case of Vecici, when there was a dilemma

 3     whether only civilians should go while the army should surrender, wasn't

 4     Mladic involved in the same dispute two weeks earlier opposing my

 5     instructions initially?  Does Mladic conflate these two events?  He had

 6     an experience with it two weeks earlier, and now he's making a slightly

 7     different order after the traumatic experience in Kotor Varos.  It's the

 8     same player in both cases, Mladic.

 9        A.   Yes, sir.  I mean, I -- I agree to the extent that what happened

10     in Kotor Varos happened in Kotor Varos.  My point is that in a country

11     that is seeing significant conflict and these issues are arising up in

12     various locations on a daily basis, to take one isolated data point or

13     issue in time and seek to extrapolate that into a cause and effect

14     mechanism I don't believe is a sound analytical practice.  So again, it

15     might very well be as you describe the situation.  However, looking at

16     one solitary incident that happened in another area of the country and

17     under the control of other military forces, albeit General Mladic, and

18     seeking to extrapolate that to other areas I don't believe is sound.

19        Q.   Thank you.  But if I tell you that if I had read this directive,

20     which I didn't because I didn't sign it, if I had seen this directive and

21     knowing what had happened in Kotor Varos, do you believe that I would

22     have known what it's all about or that his colleagues in the staff

23     understood why this order was different, that troops also had to leave,

24     because it was not -- not done in Kotor Varos, but here it's going to be

25     different.  Mladic orders the troops to leave as well.

Page 27653

 1        A.   As -- as -- to answer the first part of your assertion, I have no

 2     way of knowing whether you read this particular directive or not.  The

 3     fact that you did not sign this directive anywhere, in my opinion is not

 4     proof that you had no ability to read this directive at some juncture or

 5     even to comment on it at some juncture.  It just simply means that there

 6     is no signature from you on it.

 7             Again, to the second particular issue, I don't know what you did

 8     or did not consider related to this and again how it linked up to the

 9     incident that you discuss in Kotor Varos.

10        Q.   Very well.  But you have no proof that I had read this directive

11     or commented upon it; correct?

12        A.   Again, sir, your assertion was that you did not read this

13     directive because you did not sign this directive.  I don't know whether

14     that's the case or not.  I have no information one way or another.

15        Q.   Thank you.  I would like to ask you this:  I have seen and I'm

16     thankful that in the examination-in-chief you provided a few

17     clarifications and views that follow from your knowledge of the

18     international laws of warfare.  Is it true that you are familiar with the

19     international laws of warfare?

20        A.   I -- I would qualify my familiarity with the rules and laws of

21     international warfare as that ironically enough, my primary knowledge of

22     them is derived from my understanding of the SFRY rules on the

23     application of the international laws of war and my research on that

24     particular document as it related to the greater body of my research.  As

25     you are aware, I am not a legal professional or lawyer in that sense or

Page 27654

 1     academic, so I can't comment on broader issues.

 2        Q.   Thank you.  I was waiting for the interpretation.  But you were

 3     able to say yesterday that a certain type of military conduct is legal or

 4     customary, lawful; correct?

 5        A.   Yes, sir, in the context of how it is described in those SFRY

 6     regulations which by your decree were applicable to the army and the

 7     armed forces of the Republika Srpska.

 8        Q.   Thank you.  Do you agree that the party that declares war has

 9     certain obligations both to its own civilians and the civilians of the

10     other party?

11        A.   My understanding is that all parties to a conflict, not just the

12     party that declares war, have certain obligations inherent in the

13     Geneva Conventions, the Additional Protocols, and whatever customary laws

14     are in effect related to the protection of various classes of

15     noncombatants, as well as civilian properties.  I don't believe that

16     protections raise or lower or there are different standards depending

17     upon which party initiated an armed conflict.

18        Q.   Thank you.  Did you notice which party in Bosnia-Herzegovina

19     declared war?

20        A.   As part of my research into what happened, the actual designation

21     of who started it wasn't a relevant issue.  The work that I was asked to

22     do by the Office of the Prosecutor was to examine the military situations

23     in various contexts, and again, frankly, you know, who was the good guys,

24     who were the bad guys, who were the friendlies, and who were the enemies

25     was not relevant to that.

Page 27655

 1             JUDGE KWON:  Although it is not relevant, do you know the answer?

 2             THE WITNESS:  No, sir, I don't.

 3             JUDGE KWON:  Thank you.

 4             MR. KARADZIC: [Interpretation]

 5        Q.   Would you agree -- did you come across somewhere in the document

 6     to the reference that the Muslim side, on the 22nd June, 1992, declared

 7     war against Serbia, Montenegro, and the Serbian autonomous regions in

 8     Bosnia-Herzegovina, effective as of 22nd June?  And to assist you, did

 9     you find in my appeals to the Muslim side to cancel the war and to

10     terminate the war as a short-term conflict?

11        A.   Again, sir, that may be the case with respect to declarations,

12     but the starting point of armed conflict, at least with respect to my

13     research, begins on 1 April 1992, with the first battles and activities

14     that take place in the town of Bijeljina.  Now, again, I can see that

15     it's not a complete view of the entire country and conflict involving

16     Bosnia-Herzegovina and Republika Srpska, but that was the starting point

17     with respect to my analytical work.

18        Q.   Very well.  Thank you.  So on the 1st of March there was a

19     ceremony, there was a wedding, and someone was killed in Sarajevo.  And

20     you don't take that event to be the beginning of the war.

21        A.   Again, sir, given that my mandate with respect to focusing my

22     analysis was on Eastern Bosnia, what incidents in other parts of the

23     country that might have "triggered the war," it was just not a topic that

24     I -- that I passed judgement on or even looked at.  For me, the effective

25     date of the start of hostilities was 1 April.

Page 27656

 1        Q.   Thank you.  But wouldn't the beginning have been on the

 2     25th or 26th of March when the Muslim forces killed in Bosanski Brod,

 3     they looted the possessions of entire families.  But would your opinion

 4     perhaps be that if there was no resistance, then there was no war being

 5     waged?

 6        A.   No, sir.  My answer is I don't know.  What -- given that I

 7     already had a full plate with the tasks that I already had to do, and

 8     particularly given the context of my focus of study being July of 1995,

 9     what happened in 1992 in other locations outside of Eastern Bosnia was

10     not relevant to my work.  I just did not pay attention to it, and it is

11     not an issue that I believe has any bearing on what happened in July of

12     1995.

13        Q.   Thank you.  Nevertheless, given the context in Eastern Bosnia,

14     you referred to directive number 4.  You referred to events in the spring

15     of 1993 when the Serbian side liberated Podrinje.  Isn't that right?  And

16     then there were certain events in Eastern Bosnia, and so to speak it was

17     the first half-time with respect to these events.

18        A.   As you note, sir, in my report I do discuss from the historical

19     context portion the military operations that did occur in Eastern Bosnia

20     in 1992 and the beginning of 1993 through the establishment of the

21     United Nations safe areas, and I agree that with the establishment of the

22     United Nations safe areas, particularly in some regions of

23     Eastern Bosnia, armed conflict ebbed down to a much lower level than one

24     had seen or one had observed in November, December, of 1992, and then

25     January through March and April of 1993.

Page 27657

 1        Q.   Thank you.  I still want to deal with these general issues and

 2     I'll rely on your familiarity with the events and your familiarity with

 3     our regulations.  You did read the indictment, did you not, the

 4     indictment brought against me?

 5        A.   I do not believe I have read the latest version of your

 6     indictment, no, sir.

 7        Q.   But you have read the first and second version of that

 8     indictment, haven't you?

 9        A.   Correct, sir.

10        Q.   Thank you.  You have also read other indictments that relate to

11     other cases that you testified in.  Isn't that correct?

12        A.   Correct, sir.

13        Q.   And in those other cases, you adapted your report.  You adapted

14     your report to those cases, to those accused?  Isn't that correct?

15        A.   Partially.  I would answer that I tailored particularly issues

16     related to command and control, the relevant regulations, as well as the

17     applicable rules to reflect those that were most pertinent to the rank

18     and position of the accused during that particular case, and that was my

19     motivation for not changing previous reports but, in fact, authoring new

20     reports that would reflect that information more tailored for the use of

21     the Office of the Prosecutor and, as it turned out, ultimately the

22     Trial Chambers.  So in that sense I did tailor the document to the

23     relevant issues at hand as I understood them.  I did not change issues of

24     the reports or the factual issues in them in any way to correlate more

25     closely to the actual language of the indictment.

Page 27658

 1        Q.   Thank you.  Was this your choice or did the Prosecution request

 2     that you proceed in this way?

 3        A.   No, sir.  I had an almost unlimited autonomy with respect to the

 4     content, the context, and what material I would or would not put in my

 5     reports.  So the Prosecution, you know -- in previous discussions and as

 6     it's noted I've been -- at that time I'd been a member of the Prosecution

 7     team -- or investigative team with respect to Srebrenica since April of

 8     1997, so I was very cognisant, obviously, of the level of command or rank

 9     of the various accused.  So I already intrinsically knew in my mind what

10     type of products I would produce that would be, again, most useful

11     initially to the investigative teams as they were looking at these cases

12     and then ultimately, as it turns out, for the Office of the Prosecutor to

13     tender in the various cases.

14        Q.   Thank you.  As a loyal member of the Prosecution, you didn't make

15     any efforts that might be useful to the Defence, did you?

16        A.   My mandate with respect to my military analysis was to present

17     the situation as to what the military documents meant within the

18     conduct -- or within the context as best that I understood them.  I will

19     tell you that obviously much of that material clearly was favourable to

20     the Prosecution in light of the crimes that occurred.  I can also tell

21     you that information that I raised in those reports was also deemed to be

22     beneficial to the Defence in some cases.  And certainly in the case of a

23     clarification on some issues related to testimony with General Krstic, my

24     clarification on some issues was instrumental, I believe, in the

25     Appellate Court reducing his sentence to some degree.

Page 27659

 1             So the information that I provide is the information that I

 2     provide as a result of my work.  Who it benefits and under what

 3     circumstances ultimately is a decision for the relevant Trial Chamber.

 4        Q.   Thank you.  So given the huge amount of material, and you didn't

 5     use or the material available, you had to make a selection of the

 6     material that you would produce.  Isn't that right?

 7        A.   Yes, sir, and in fact, I believe I discuss as part of the

 8     forwards in the various reports that I've authored the fact that I'm not

 9     seeking to undertake a full historical accounting of all of the events in

10     Eastern Bosnia.  This is not -- you know, this is a legal forum.  This is

11     not an academic forum.

12             I had to obviously tailor the information to reflect the issues

13     that were under consideration by the Trial Chambers.  So to the degree

14     that I can explain that in the forwards, I did.  Clearly, the Prosecution

15     and Defence in various cases throughout the, I guess, intervening

16     12 years now have had numerous opportunities to add information, to raise

17     those various issues, and my willingness to explore those new issues as

18     they come up as necessary.

19        Q.   Thank you.  But in the course of your work as an investigator,

20     you became -- you came to come to certain -- you came to have certain

21     convictions with regard to the responsibility certain individuals had and

22     with regard to the way in which events unfolded.  Isn't that right?

23        A.   Yes, sir.  I have opinions as to those.  Many of those opinions

24     are in my reports and are the basis of a number of the conclusions that I

25     make in those reports.

Page 27660

 1        Q.   Thank you.  It seems that the Prosecution also used you for

 2     certain searches.  Did you in fact participate in any of the searches

 3     that were conducted?

 4        A.   Yes, sir.

 5        Q.   Thank you.  Now I'd like to know the following:  Given that you

 6     were an investigator and a member of the Prosecution and given that you

 7     came to have certain convictions, how did it come to pass that you became

 8     an expert witness?  And by definition, an expert witness has to be

 9     neutral, unbiased.

10        A.   What I can tell you is that I don't invite myself to these

11     parties.  I am called, in most cases, by the Office of the Prosecutor.  I

12     am aware that issues relating to my appearance before various

13     Trial Chambers have been litigated in prior Trial and Appellate Chambers.

14     My position is as it's always been.  I'm called by the Office of the

15     Prosecutor as a witness, and that ultimately it will be the Trial Chamber

16     who will accept or not accept issues that I have raised or have said or

17     opinions that I may or may not have made or agreed with, and ultimately

18     they will draw their own conclusions and put the weight where they see it

19     needs to be, and in reading past judgements related to Srebrenica, it is

20     clear that Trial Chambers do exactly that.

21        Q.   Thank you.  Since you tailored and updated, I assume, your report

22     in other cases if, for example, other documents were found, how is it

23     that in this case where the Supreme Commander is accused and the head of

24     state, how is it in this case you didn't produce a special report, you

25     didn't tailor your report?

Page 27661

 1        A.   I wasn't asked.  The -- I mean, I won't speak for the Office of

 2     the Prosecutor, but it appears that the previous reports that I had

 3     authored were sufficient for their needs in this particular case.

 4        Q.   Thank you.  That's why I asked you whether they had asked you to

 5     proceed in this way in other and earlier cases, and you said that they

 6     hadn't made such a request.  You said you were autonomous.  If you could

 7     act autonomously in those cases, did you feel the need to produce a

 8     special tailored report in this case, a report that would concern me,

 9     myself, and my responsibility?

10        A.   Well, there are several answers.  First off, I don't publish

11     friends of the court reports.  When specifically asked by a party to do

12     that, in most cases -- I guess in all cases, it's been the Office of the

13     Prosecutor in various forms I've testified.  If my time allows, I'm happy

14     to undertake that, given the technical restrictions that, one, are on my

15     time, as well as the fact that I do not have daily, immediate access to

16     the vast archives of material that I understand have come into the

17     possession of the ICTY since my departure here in November of 2003.  So,

18     ultimately, if the Prosecution had asked for me to draft a report, I

19     would.  Or I could, I should say.  Once I'm asked to draft that report,

20     what I am to say in it, what conclusions I draw, and what material I

21     elect to use or not use is entirely my own.

22        Q.   Thank you.  If the Prosecution made such an admission, well,

23     would you have responded to a Defence request to conduct such an

24     analysis?  And my question only concerns the Supreme Command.

25        A.   As a member of the United States government and particularly

Page 27662

 1     within the Department of Homeland Defence - okay - there are various

 2     governmental regulations with respect to United States government

 3     employees testifying on behalf of defendants.  So the reality of that

 4     situation is that any such request would have to be cleared by various

 5     individuals within the Department of Homeland Security before I could

 6     even entertain such a question.

 7        Q.   Thank you.  Does that mean that according to the government's

 8     rules, you are not prohibited from testifying on behalf of the Defence?

 9     Is this allowed?

10        A.   Correct, sir.  The rules do not specifically prohibit me.  It

11     requires that I seek the permission of various other agencies within the

12     Department of Homeland Security who will ultimately make that decision.

13        Q.   Thank you.  In any event, you're aware of the fact that during

14     the crisis there was a disagreement between us and the US government?

15     Isn't that right?

16        A.   That's a pretty broad phrase.  I mean, if you're willing to be

17     specific, I can make specific answers to that to the degree that I know

18     them.

19        Q.   Would you agree that the US government unreservedly supported the

20     Muslim side even when it came to illegally providing them with arms, let

21     alone when it was a matter of conducting negotiations and finding

22     solutions?  Wouldn't that be something you became convinced of?

23        A.   I am aware through my work here at the Tribunal and the research

24     that I have done that various UN reports, as well as reports from the

25     various warring parties at the time, do indicate that there was some

Page 27663

 1     support with respect to the supply of weapons to Bosnian Muslim military

 2     forces that were reported to have originated from the United States.  I

 3     have no firsthand knowledge of that, obviously, and again, my knowledge

 4     of that is done based off of the reporting done either by the

 5     United Nations or that is incorporated in the various reports of the

 6     warring parties.  So in that respect, I can't really comment further on

 7     that.  I am aware of it, but I do not know the specific details, and it

 8     was not a particular topic which I looked into.

 9        Q.   Thank you.  To conclude with this issue, I'm wondering whether it

10     would be possible for you to be unbiased in this case given your loyalty

11     to the Prosecution and given your loyalty to the US government?  Is it

12     possible for you to make such an effort?  Is it possible for you to

13     remain unbiased?

14        A.   I can tell you that as a professional analyst, the issue of bias

15     creeping into reports and analysis by any individual is an obvious

16     concern.  I am aware of that.  And while I can be, as described by some

17     people, ruthlessly analytical, I am human.  I cannot escape the fact that

18     there may be bias.  Hence the purpose of cross-examination as well as the

19     ability of the Trial Chamber to review those issues and put whatever

20     appropriate weight they deem necessary on the information I'm providing

21     in light of that potential bias.

22        Q.   Thank you.  Can you tell us whether you went through all the

23     documents that the Prosecution had access to?  And at least in respect to

24     Eastern Bosnia.

25        A.   With respect to Eastern Bosnia, up to the end of my period of

Page 27664

 1     work here with the Office of the Prosecutor, in November of 1993 I had

 2     access to all material in that respect that was in the possession of the

 3     Office of the Prosecutor.  It worked out convenient that way since it was

 4     my people actually having to catalogue the material.

 5             Obviously, once my time here was completed, it would no longer be

 6     possible for me to have complete access to all of the material.  In light

 7     of the fact that it was recognised that I would be potentially coming

 8     back to the Tribunal in various capacities and might be asked to do

 9     additional reports, arrangements were made with the permission of the

10     Office of the Prosecutor and the United States government that allowed

11     for me to access the Office of the Prosecutor's document collections

12     through the EDS system.  So as I was asked to do additional research, I

13     had access to the base material if I so elected to use it.

14             So even in the context of the updated reports, one, the

15     Prosecutor sent me all documents that I requested, not just the ones that

16     they felt might be relevant, and even independent of that, I had the

17     ability to independently search through material to be able to include

18     any material that I believed was relevant regardless of what the

19     Office of the Prosecutor might have thought.

20        Q.   Thank you.  So the initial selection of material was made by the

21     Prosecution; right?  And then they sent you documents that were relevant

22     to them; right?  That's what you said a moment ago, didn't you?

23        A.   No, sir.  I did not say that the initial sort or selection was

24     made by the Office of the Prosecutor.  At the time that I was making the

25     reports while I was here, I had sole control over all of the documents

Page 27665

 1     that I chose to include in my reports for whatever reason.

 2             With respect to the Main Staff Responsibility Report that I was

 3     asked to undertake in 2006, I believe, clearly I was not here at the

 4     time, but I already had a basis for much of that report from material

 5     that I had already accumulated from my previous reports.  I was also sent

 6     material by the Office of the Prosecutor for potential consideration, and

 7     that's the key.  They offered material for consideration.  It was

 8     ultimately my decision whether to place such material in the report or

 9     not and to conclude what I thought that material meant in context of the

10     report I was writing.

11             What I've also said in that regard is the fact that even beyond

12     that, I still retained a capability to independently review material

13     myself directly via EDS at the time so I could ensure myself that I had a

14     full, complete, or at least representative selection of all of the

15     material that I would be potentially including in my report and drawing

16     conclusions on.

17        Q.   Thank you.  Now I'm going to embark on a series of questions that

18     would probably lend themselves to mere yes or no answers.

19             Did you focus on documents that pertained to me personally, or

20     did you make a sub-file that would pertain to my indictment?

21        A.   With respect to which report, sir?

22        Q.   The reports that were a basis for your report, for your findings,

23     everything that you came across.

24        A.   The framework for that is I obviously focused on brigade-level

25     materials for the brigade command report, corps materials for the corps,

Page 27666

 1     Main Staff materials for the Main Staff report, and in the original

 2     narrative document, as well as the revised narrative document, I have a

 3     broad spectrum of documents related to the entire crime base.  I don't

 4     recall ever having a Dr. Karadzic file in that particular sense that one

 5     day I presumed I would be writing a report about you in your role as the

 6     Supreme Commander.

 7        Q.   Thank you.  In your work did you come across what is known as

 8     mitigating documents or potentially mitigating, and, if so, what did you

 9     do with them?

10        A.   Yes, sir, I did.  As a member of the Office of the Prosecutor

11     then and even today, I considered myself bound by the provisions of ICTY

12     Rule 68, which deals with the disclosure to the Defence of any materials

13     which are deemed to be potentially exculpatory for any defendant.

14             During the military analysis phase where we were reviewing the

15     documents, where I was writing the reports and even afterwards, there was

16     a process in place where any document that I or any member of my review

17     team believed could be potentially exculpatory to any defendant, that

18     particular document would be flagged, and I would personally bring it to

19     the attention of the senior trial attorney on any given case.  I would

20     lay out why I believed the document was exculpatory, and if additional

21     justifications were needed, I would provide those justifications.  And I

22     believe that perhaps the best explanations of that were probably outlined

23     in the Krstic appeal brief and judgement where issues of Rule 68

24     violations were raised by the Defence and the Prosecution's answers to

25     them as well as the Court's findings.

Page 27667

 1             I think particularly from a military perspective, I'm highly

 2     confident that during my time here any document that we believed was

 3     potentially exculpatory was disclosed to the Defence.  I'm not aware of a

 4     particular situation where I believed that a document that was

 5     potentially exculpatory wouldn't have been disclosed.

 6        Q.   Thank you.  However, you did not include them in your report;

 7     right?

 8        A.   I included the documents that were relevant to the entire crime

 9     base as well as the various issues in my report.  I guess it's a question

10     of interpretation as to what is exculpatory to whom.  I would remind you

11     that in the Popovic case, the basic Defence theories lined up between the

12     commanders were responsible for the actions of all of their subordinates

13     versus the security officers had taken independent charge of various

14     forces.  Documents that might be viewed as exculpatory to military

15     commanders would not be viewed the same as exculpatory to security

16     officers and, of course, vice versa.  The material was included in the

17     reports for all concerned.

18        Q.   Perhaps my question may sound strange to you, but we do not have

19     an adversary system in our part of the world.  Our investigations are

20     supposed to be comprehensive and two-sided, if you will.

21             Let me ask you this now:  Did you mention at least in the

22     footnotes that there may be another explanation as well, because there is

23     a document that is potentially exculpatory, or did you stick to what the

24     Prosecution expected of that report?

25        A.   I attempted to make my reports as balanced and reflective of the

Page 27668

 1     military situation and the command and control situation, as well as the

 2     legal authorities that were in place at the time, as I possibly could.

 3     Again, even in the event that such material was not incorporated in my

 4     reports, and I don't believe that I didn't do it in such a manner that I

 5     excluded material like that, Defence counsel for numerous cases have had

 6     the opportunities over the last 12 years now of raising those specific

 7     issues and those specific documents to me on the basis of my testimony

 8     here, hearing my explanations as to why they are in the report or why

 9     they are not in the report, and perhaps of more importance to the Court,

10     what it means in context to what is occurring in Srebrenica and making

11     their own determinations as to the document's relevancy as well as my

12     motivations for either including the document or not including the

13     document.

14        Q.   Thank you.  Did you have an opportunity to quote documents

15     exactly?  Did you have a service that could check whether what you were

16     quoting in the English language was properly and accurately translated in

17     the first place?

18        A.   Yes, sir.  Just like everybody else, we used the offices of the

19     ICTY's translation service, the CLSS, and the overwhelming majority of

20     the documents were translated by that service.  There was one or two

21     documents because of time constraints that may have been interpreted or

22     translated by other individuals assigned to the OTP, but again, just like

23     everyone else, I am completely dependent upon the translations provided

24     by CLSS for the interpretations that I make in the English language

25     documents.

Page 27669

 1        Q.   Thank you.  Does that also pertain to transcripts of intercepts?

 2     Did you have an opportunity to listen to some intercepts?  Did you check

 3     the transcripts, whether they were correct?  Of course I don't mean you

 4     personally.  I mean your services, the staff.

 5        A.   Again, sir, the intercepts to my knowledge, most of them were

 6     translated by CLSS.  So that's the first question.

 7             And second, with relation to the intercepts, yes, I did have

 8     opportunities to listen to various audiotapes.  Not that I could

 9     understand the language, but being a military intelligence officer, I at

10     least have some layman's familiarity with signals intercepts to at least

11     verify for myself that what I was listening to and that was purported to

12     be an intercept was an intercept.  And further, I actually had occasions

13     to visit at least one of the intercept sites, examined the equipment

14     there to satisfy myself that the Bosnian Muslim military at the time had

15     the technical capability of collecting on the information that was

16     purported to be by everyone an intercepted communication -- or an

17     intercept of VRS communications.

18        Q.   Thank you.  Did you know -- actually, I think that you showed in

19     the examination-in-chief that you were familiar with the laws of the SFRY

20     and thereby of Bosnia-Herzegovina and Republika Srpska as well, laws that

21     pertain to the military and to defence; is that right?

22        A.   Yes, sir.  And the relevant portions, I believe, are incorporated

23     in my reports.

24        Q.   Hank you.  Does that also pertain to provisions of the

25     Law on All People's Defence and social self-protection?  Are you familiar

Page 27670

 1     with this particular wording from the period of Socialist

 2     self-management, All People's Defence and social self-protection and the

 3     law governing it?

 4        A.   I am familiar with the phrase and general concept of All People's

 5     Defence.  I believe -- I mean, clearly that was the military doctrine

 6     under which many of the regulations and manuals were drafted in order to

 7     implement during various stages of an armed conflict in the former

 8     Yugoslavia.  So while I do for the most part quote those actual military

 9     regulations and manuals with respect to how they apply to various

10     military echelons and not so much going back to the -- the general

11     principles of All People's Defence, I do have some awareness of them.

12        Q.   Thank you.  Were you also made aware of laws of other countries

13     in the field of the military and defence in general, and in that sense,

14     did you notice anything that might be termed as a differentia specifica

15     as far as our laws and the military and defence are concerned?

16        A.   I did not do a comparative study of the Law on the Army and the

17     Law on Defence and how that may compare or contrast to laws of other

18     countries.  I did not believe that that type of analysis was necessary

19     for understanding the events as they occurred with respect to Srebrenica

20     in July of 1995 or necessary to understand how the military programme of

21     command and control worked within the Army of the Republika Srpska.

22        Q.   However, you will agree that that could be important for

23     understanding the role of the president of the republic, who is at the

24     same time the civilian head of the military; right?

25        A.   Again, understanding how the supreme leadership of the

Page 27671

 1     United States or Canada or Mexico, for that matter, and how it might

 2     relate to your roles and responsibilities under the law of the

 3     Republika Srpska might be interesting and perhaps even instructive in an

 4     abstract sense, but I don't believe it was relevant with respect to how

 5     command and control functioned within the armed forces of the

 6     Republika Srpska.

 7        Q.   Thank you.  Did you notice any difference between our laws and

 8     the laws of the SFRY?  We took over the laws of the SFRY, but we did

 9     change certain things.  Did you notice any of these changes?

10        A.   There are a lot of circumstances, as you note, where there were

11     wholesale adoptions of various blocks of law by the Republika Srpska of

12     the former SFRY law.  One comes to mind, of course, is the wholesale

13     adoption of the RS Criminal Code or the former SFRY Criminal Code by the

14     Republika Srpska and there were some minor deviations.  Having said that,

15     there were other laws that there were more detailed deviations on to more

16     clearly meet the requirements of the government of the Republika Srpska.

17             There are hundreds of these types of changes, and again, if you

18     wish to, you know, show me a specific passage, I can hopefully be

19     instructive there, but I don't know that I can get more specific than

20     that.

21        Q.   Thank you.  Well, let me be more specific then.  Did you notice

22     that there was a difference between the General Staff of the Army of

23     Yugoslavia and the Main Staff of the Army of Republika Srpska, or more

24     specifically, from a doctrinary establishment and practical point of

25     view, is there anything special in the existence of a General Staff on

Page 27672

 1     the one hand and a Main Staff on the other?  From the point of view of

 2     the role of the head of state.

 3        A.   There may well be, sir, but it was not an area that I examined.

 4     For the relevant period in July 1995, the Army of the Republika Srpska

 5     was managed by a Main Staff.  My goal was to understand to the degree

 6     that I could how that staff worked.  How that compared with the command

 7     and control apparatus of the Federal Army of Yugoslavia or even the

 8     Republic of Croatia, I did not believe to be relevant.  The

 9     Republika Srpska Army and the Supreme Command are bound by the laws that

10     are enacted by and in effect within the Republika Srpska.  They're not

11     bound by the laws and procedures of other states.

12        Q.   Thank you.  However, from that point of view --

13             JUDGE KWON:  Mr. Karadzic --

14             THE ACCUSED: [Interpretation] Just one question, Excellency,

15     please, and then the break?

16             MR. KARADZIC: [Interpretation]

17        Q.   From that point of view, did you establish whether there was a

18     difference in terms of the relationship with the head of state if there

19     is a Main Staff or if there is a staff of the Supreme Command?  And then

20     in that case there is a Chief of Staff, whereas in the Main Staff there

21     is a commander.

22             Let me remind you of this as well:  You noticed that this

23     situation with the Supreme Command staff, I wanted to deal with that in

24     the beginning of August 1995, and I did not succeed; right?

25        A.   What I would say in answer to your first question is that since I

Page 27673

 1     did not do a comparative study of how the Main Staff worked in comparison

 2     to how, for example, the federal staff worked within the Yugoslav army,

 3     the General Staff there, I can't answer that question with respect to

 4     those specific issues.  I just don't know enough about the former

 5     Yugoslav General Staff to be able to answer that question.

 6             As to your second question, I am aware of issues between you and

 7     the VRS in August of 1995.  They are rather complex and detailed and

 8     might -- I could answer the question now rather lengthily, or it might be

 9     more appropriate to wait after the break.  It's not going to be a short

10     answer.

11        Q.   Food for thought.  In documents, did you find any elements of my

12     dissatisfaction with the level of control that I had, and was the reason

13     for this change in August based on that?  You don't have to answer now.

14     If you wish, you can answer after the break.

15        A.   I can answer quickly that, yes, I found evidence of that in the

16     documents.  Expanding as to what to the basis on that may or may not have

17     been and all of the variables, again I would leave it up to the Court

18     whether they wish to go into that before or after the break.

19             JUDGE KWON:  Very well.  Before we take a break and before we

20     move away from the document which is before us, i.e., directive number 4,

21     I'd like to deal with the translation issue the accused raised.

22             Could we collapse the B/C/S version and zoom in to the English

23     version.  I take it this is page 5, para (d), relating to the Drina

24     Corps.

25             Yes, Mr. Nicholls.

Page 27674

 1             MR. NICHOLLS:  Yes, Your Honour.  I don't mean to interrupt, but

 2     if my memory serves me, this -- a similar issue came up with the

 3     testimony of General Milovanovic, and I believe that the version we have

 4     in e-court is a revised translation that has already been revised once.

 5     I just wanted to alert --

 6             JUDGE KWON:  I'm not sure whether this part I'm going to raise is

 7     also dealt with.  In any event, in the middle paragraph in para (d), the

 8     last part of the first sentence reads as follows:

 9             "... and force them with the Muslim population to leave the Birac

10     Zepa, and Gorazde areas."

11             However, as noted in the accused's question on transcript page 5,

12     lines 6 to 9, and I think he raised this issue before as well, it seems

13     to be his submission that the correct translation should be as follows:

14              "... and force them to leave the Birac, Zepa, and Gorazde areas

15     with the Muslim population."

16             Therefore, whatever a nuance there may be, it seems prudent to

17     clarify this issue.  So therefore I ask the CLSS to file a written filing

18     before the Chamber, paying attention to the sequence or location of the

19     phrase "with the Muslim population."

20             THE ACCUSED: [Interpretation] If I may, Excellency, may I suggest

21     something.  Could the CLSS clarify this for us:  In the spirit of the

22     Serbian language, who does this verb "to force" refer to, the civilian

23     population or the armed forces?

24             JUDGE KWON:  Very well.  I would ask the CLSS to take that into

25     account as well.

Page 27675

 1             Then we'll take a break for half an hour as indicated.  So we

 2     will resume at 10 past 1.00.

 3                           --- Recess taken at 12.38 p.m.

 4                           --- On resuming at 1.12 p.m.

 5             JUDGE KWON:  Yes, Mr. Karadzic.  Please continue.

 6             THE ACCUSED: [Interpretation] Thank you.

 7             MR. KARADZIC: [Interpretation]

 8        Q.   Before the break, we were dealing with the difference between the

 9     General Staff and the Main Staff -- or, rather, the General Staff with

10     the chief at its head.  How are things organised in your country?  In my

11     time, there was Colin Powell there.  I don't know what the case is now,

12     but was he a commander or the Chief of Staff?

13        A.   At that time, General Colin Powell was, I believe, the chairman

14     of the Joint Chiefs of Staff.

15        Q.   Thank you.  Given all your knowledge, if we asked you to create a

16     legal basis for the Defence for the VRS, well, is there anything that

17     would change there?  Is there anything that bothered you or that one

18     might think bothered us, was a hindrance to us?

19        A.   I'm sorry, I'm not sure I understand your question, whether it's

20     referring to -- I mean, the defence with respect to the legal defence

21     here before the Tribunal, or are you talking about defence and army laws

22     or -- I just am not clear as to what you're trying to get at, sir.

23        Q.   I apologise.  That was my mistake.  When examining the documents

24     that pertain to the war we waged, did you notice any structural

25     weaknesses, any legal restrictions, and if you were to create a legal

Page 27676

 1     basis for the defence of the republic and for the army in that republic,

 2     is there anything you yourself would change within our system?  I'm

 3     referring to the organisation and command and control.

 4        A.   Again, respectfully, sir, my role first as a military analyst in

 5     my own army was to be able to analyse and understand how a military

 6     system worked, particularly at an operational and tactical level for the

 7     purpose of being able to understand it and against a potential armed

 8     adversary degrade or destroy it.  The various legal underpinnings of why

 9     a Department of Defence or a Ministry of Defence works, how it is

10     inter-related with the civilian system and all of those particular

11     functions is an area of many other people's great expertise.  So again,

12     my role here is to understand the current system as it was operating and

13     how it was relevant, particularly in the month of July of 1995, not to

14     examine it with respect to how it might be made better or whether I

15     believed it was the perfect system.

16             I mean, the fact is, I guess as underscored by the Prosecution of

17     the conflict for three years until it was terminated in November of 1995,

18     was, whether it was perfect or not, it was good enough to allow for the

19     necessary interrelation between the civilian political branches of

20     government and the armed forces in order to defend the requirements of

21     the state.

22        Q.   Thank you.  You mentioned the operational and tactical level of

23     command.  Who was responsible for these two levels of command given the

24     information that you came across in the documents that pertain to that

25     issue?

Page 27677

 1        A.   For the most part, the day-to-day military operations, at least

 2     with respect to the army, were under the control of the Main Staff and

 3     their subordinate formations, those being the corps of the VRS and their

 4     subordinate brigades.

 5        Q.   Thank you.  Did you notice that our law contained provisions

 6     according to which the president of the republic can delegate operational

 7     and tactical issues to the Main Staff?  And this, in fact, was done in

 8     one of the documents concerning the army's organisation and

 9     establishment.

10        A.   I believe that there is specific language to that effect in the

11     Republika Srpska Law on the Army.  I can't quote you verbatim what

12     paragraph or article it might be, but it is incorporated in my reports.

13        Q.   Thank you.  So is it customary for the civilian head of the state

14     and of an army to be involved only in strategic matters and operational

15     tactical matters are for the army, for the Main Staff, or for the

16     headquarters that had its own commander?  Or was this an exceptional case

17     that you came across?

18        A.   I don't believe that it is exceptional in that sense.  I guess

19     I -- notwithstanding my military roots, I believe it was former

20     President Lincoln in the United States during the Civil War who noted

21     that war was too important to be left strictly to military commanders.

22             War is a means to achieve political objectives through the use of

23     force, in its simplest definition, I guess.  So the military component of

24     that, the armed forces component of how that will be prosecuted cannot be

25     divorced from the political goals of the state as articulated by its

Page 27678

 1     leadership.

 2        Q.   If everything functions as it should do.

 3        A.   The -- how the apparatus is set up is, of course, dictated by

 4     first the laws and then the rules and regulations that are affected to

 5     implement the laws.  How they are implemented ultimately depends upon the

 6     various political and military leaders of the state.  Leadership is, at

 7     the end of the day, a personal function.

 8        Q.   Thank you.  Did you come across in our laws a provision of any

 9     kind that directs or orders the commission of crimes?  Could anyone refer

10     to such a provision as a justification for having committed a certain

11     crime?  And I think you can answer that question simply by saying yes or

12     no.

13        A.   I -- the answer is:  I did not come across any document like

14     that.

15        Q.   Thank you.  Did you come across any documents that provides for

16     impunity for perpetrators of war crimes?

17        A.   I can tell you that within the context of the Criminal Code of

18     then the Republika Srpska, which was, of course, adopted from the SFRY,

19     as well as various other orders and documents, there was no legalistic

20     provision for impunity.  In fact, in the SFRY regulations relating to the

21     application of the laws of armed conflict, as well as within the

22     RS Criminal Code, it specifically noted that, you know, committing war

23     crimes on orders was not a defence in that particular sense.  So there's

24     nothing codified under law or regulations that I am aware of that would

25     allow any individual to claim immunity for acts that are clearly

Page 27679

 1     recognised as war crimes.

 2        Q.   Thank you.  Did you come across a single document, for example,

 3     from myself or from the government or other civilian structures, in which

 4     it was ordered that a crime should be committed or in which the order was

 5     not to sanction a crime that had, in fact, been committed?

 6        A.   Well, sir, I guess, one, first limiting this to the documents

 7     that I have reviewed with respect to Eastern Bosnia, I would say that is

 8     an interpretational issue.  For example, as I have testified before, not

 9     here, but I believe in a previous Srebrenica-related case, that looking

10     at the language of directive 4, as I understand the English language

11     translation of have, it is my view that that wording as written would

12     constitute an unlawful order insomuch as the fact that it directs in part

13     a military attack against a civilian population.

14        Q.   Well, we'll get to that perhaps later, but since you mentioned

15     it, let me ask you the following:  Are you aware of the fact that

16     according to our Law on All People's Defence it's obligatory to evacuate

17     the civilians from war zones regardless of whether this is what they

18     want?

19             JUDGE KWON:  Yes, Mr. Nicholls.

20             MR. NICHOLLS:  No objection, but I would like a cite to that

21     provision, if he can give me one.

22             THE ACCUSED: [Interpretation] Well, in the law that we adopted.

23     I wasn't going to produce that, but I just wanted to know whether

24     Mr. Butler took this into consideration when compiling his report.  Did

25     he take into consideration the fact that it is obligatory to evacuate the

Page 27680

 1     civilians?  And that is also the case in his country.

 2             MR. KARADZIC: [Interpretation]

 3        Q.   When there is a hurricane, evacuating the people is obligatory.

 4     Orders are then issued to that effect.  Isn't that correct?

 5        A.   Sir, maybe to get to the first point, while it may be the case, I

 6     am not aware of a decree that the former SFRY Laws on All People's

 7     Defence were adopted and incorporated as the Republika Srpska Law on

 8     All People's Defence.  Maybe it was redesignated as the RS Law on Defence

 9     and they left out the "All People," but I don't know that to be the case.

10     So I don't know that it was your law, first of all.

11             And second, as I've testified previously, I don't know the whole

12     Law of All People's Defence and all of its underpinnings, so again, if

13     you wish to show me that and I can comment on it, I can, but I'm not

14     familiar with the provision that you're talking about under law.

15        Q.   Thank you.  If we have time, I'll show you the relevant document.

16     But are you aware of the fact that as of the 11th of April, 1992, up

17     until the 1st of October, 1992, well, during that period, in fact, we

18     signed a number of agreements under the auspices of the UNHCR, under the

19     auspices of Lord Carrington and Ambassador Cutileiro, agreements on

20     obligation to make it possible to move the population out and also to

21     make it possible for them to return when possible.

22        A.   Again, sir, that may very well be the case for the period of

23     April through October of 1992.  It was not a particular area that I

24     studied in detail, because it was not necessarily applicable to what

25     happened in my understanding in July of 1995.  Again, if there are

Page 27681

 1     specific documents you wish to show me on that and I can comment on, I

 2     will, but I can't make a statement as to a broad number of documents I'm

 3     just not familiar with.

 4        Q.   Very well.  We'll deal with that set of agreements.  One of the

 5     agreements hasn't been admitted here.  It's dated the 11th of April.

 6     But, for example, on the 22nd of May, an agreement was signed according

 7     to which the parties would make it possible for the population to be

 8     moved out in an organised manner and under police escort.  The

 9     municipalities that the population would pass through would also be

10     notified and the municipality they were being taken to would have to

11     agree to this transfer of population.  Were you aware of that agreement?

12        A.   Again, sir, it may or may not exist, and I may have even seen it

13     during some of my portion, but I'm not familiar with it at the moment,

14     and I can't comment as to the details of it at this time.

15        Q.   Thank you.  Did you come across any documents in which the return

16     of refugees was prohibited, or did you come across documents that in fact

17     provided guarantees for the return of the refugees during the entire

18     period that we are concerned with?

19        A.   With respect to Eastern Bosnia, I don't know that I have ever

20     come across a document, at least with respect to the military documents,

21     which specifically says that the return of refugees into Eastern Bosnia

22     is prohibited, in that language.  Along the same vein, I don't recall

23     ever coming across a document in that same category of material which

24     notes that the return of Bosnian Muslim refugees into Eastern Bosnia

25     during that period of the conflict would somehow be protected or ensured.

Page 27682

 1        Q.   What you have in mind is the right to return.

 2        A.   No, sir.  What I have in mind is a military document that

 3     specifically says that Bosnian Muslim refugees, individuals who may have

 4     been displaced prior to -- in this context prior to the establishment of

 5     the Srebrenica safe area would have some right to return in that

 6     particular context.  I mean, in fact, many of the military documents that

 7     I have seen make it clear that in some particular municipalities --

 8     there's one particularly related to Bratunac where the brigade commander

 9     is essentially saying to create ultimately the conditions so they all

10     leave.  So I can't agree with your assertion that there are military

11     documents with respect to Eastern Bosnia that somehow can be construed to

12     encourage or that the army supports a process to allow Bosnian Muslim

13     refugees back into those areas during the period of the conflict.

14        Q.   Given that I believe that you will agree that there wasn't a

15     military regime in place in Republika Srpska, would you agree that those

16     issues were dealt with by the civilian authorities, and did you come

17     across a document from the government or drafted by the president that

18     stated that the return of refugees wouldn't be authorised?  Or did you

19     come across numerous documents, in fact, in which the return of refugees

20     was guaranteed?

21        A.   With respect to the military document collections I'm aware of

22     related to Eastern Bosnia, no, sir, I did not.

23        Q.   So you didn't come across a document prohibiting the return or

24     guaranteeing the return of refugees.  But, Mr. Butler, Eastern Bosnia

25     wasn't the only battle-field.  In the case of the entire area of

Page 27683

 1     Bosnia-Herzegovina, did you see any documents of mine that concerned the

 2     protection of civilians, and did you see any agreements with the other

 3     sides that concerned the guarantees issued for the return of refugees

 4     once the conditions were right for such a return, once hostilities had

 5     ceased, once the fighting had ceased?

 6        A.   Again, sir, I take your point that Eastern Bosnia is not the

 7     whole of the conflict in Bosnia and Herzegovina.  Such documents may

 8     exist, but given the focus of my military analysis work, again it --

 9     they're not relevant to what I was looking at.  I may have seen them and

10     they not registered.  I don't dispute that they may exist, but with

11     respect to the territorial area I was looking at, my answer remains the

12     same.  I did not see them.

13        Q.   Thank you.  Did you see any documents in which it said that the

14     return of refugees was guaranteed apart from cases in which the return of

15     refugees to Eastern Bosnia was concerned?

16        A.   Again, sir, as I've stated prior, having not seen the documents

17     that you're discussing or not being familiar with them, I'm not sure I

18     can qualify what subset they're in.  I have to repeat my previous answer.

19     I'm not aware of those documents if they exist.

20        Q.   But then you would agree that if they exist at the level of

21     Bosnia-Herzegovina, they also apply to Eastern Bosnia; right?

22        A.   I'm not sure that I agree or disagree to anything.  At this

23     point, all I'm saying is that I'm not aware of the documents that you're

24     referring to.  Since I'm not aware of the documents that you're referring

25     to, I have no basis by which to either agree or disagree as to what they

Page 27684

 1     mean.

 2        Q.   Then, Mr. Butler, would you agree that you have no basis for

 3     qualifying the act of moving the population from Eastern Bosnia, because

 4     you don't know on what basis the move was done?

 5        A.   The basis for -- under which the moves were done, I believe, are

 6     incorporated in the various military directives, specifically 4,

 7     directive 7, directive 7/1, as well as in other military documents which

 8     reflect how military operations in Eastern Bosnia were carried out.  So

 9     that is the basis of my expertise to make these conclusions.

10             If there are -- and I will -- you know, there may very well be,

11     although I have not seen them, documents from the political leadership or

12     the Supreme Command that reflects that it should not be done this way and

13     that those orders were disobeyed by the military, but again I don't see

14     them, I've not come across them.

15             JUDGE KWON:  Yes, Mr. Nicholls.

16             MR. NICHOLLS:  Your Honours, I would just say in this series of

17     questions leading up to the ultimate question, Mr. Karadzic put a lot of

18     hypothetical questions about documents which were vaguely suggested it

19     would provide some kind of legal basis for the movement of virtually the

20     entire Muslim population out of the Cerska-Konjevic Polje, et cetera,

21     area in 1992 and then is putting it to the witness, Well, you don't know

22     about these documents so you have no basis to say why they have been

23     moved out.  So I think it's only fair if he's saying there is a document

24     that he has, that exists, that would show that the movements of the

25     population out in late 1992, early 1993, was pursuant to some legal order

Page 27685

 1     which has been vaguely alluded to, he should put it to the witness before

 2     saying to the witness, Well, you don't know about this document, you have

 3     no basis.  Sorry for that lengthy explanation.

 4             JUDGE KWON:  Yes, Mr. Karadzic.

 5             THE ACCUSED: [Interpretation] With all due respect, Mr. Nicholls,

 6     I'm not intending to convince or convert this witness.  I will yet have

 7     opportunity to convince the Trial Chamber.  All I'm interested in is to

 8     find out the basis for his report.  If Mr. Butler is making a report

 9     without knowing about key documents regulating the move of civilians,

10     then some of his conclusions may be groundless.  That is my point.  That

11     is the Defence case.

12             JUDGE KWON:  I would like you to concentrate on more specific

13     issues, Mr. Karadzic.  Just general questions and answers do not help you

14     or the Chamber.

15             THE ACCUSED: [Interpretation] Thank you, Your Excellency, but I

16     do have to deal with 1992 and 1993.

17             MR. KARADZIC: [Interpretation]

18        Q.   You said that directive 4 orders an attack on civilians.  Can you

19     show me where it says "Attack civilians"?

20        A.   Again with the provision that the language as translated is

21     accurate, the line is:

22             "While the rest of the wider forces in the Podrinje region are to

23     exhaust the enemy, inflict the heaviest possible losses on them, and

24     force them with the Muslim population to leave the Birac, Zepa, and

25     Gorazde areas."

Page 27686

 1             Clearly in the context of a directive -- a military directive,

 2     the only way to inflict the heaviest possible losses relates to military

 3     attack.  Again, I don't specifically see the phrase in there that the

 4     army is to attack civilians in the same context as they would attack a

 5     military force.  However, I believe that it is absolutely implicit that

 6     in a broad sense, given the fact that one of the operational objectives

 7     here is to force out the army and the Muslim population, and the phrase

 8     here is "force them with the population to leave the area," it does make,

 9     at least in part, the civilian population an object of military attack.

10        Q.   With all due respect, Mr. Butler, these are minor aberrations

11     with major consequences.  There is a clear distinction here between an

12     attack and killing of the enemy and the reference to the civilian

13     population, which is quite separate.  It does not say anywhere here there

14     would be an attack on the civilian population or that the civilian

15     population should be expelled.  That's why it is important to know that

16     the civilian population was willing to leave, as they were willing to

17     leave Vecici, and that their return was guaranteed.

18             This is the Defence case, that these minor aberrations and --

19     which are insufficiently understood have major consequences.  Where do

20     you draw from here that civilians would be attacked?  Does this text make

21     a distinction [Realtime transcript read in error "addition continuation"]

22     between the enemy and the civilians?

23             MR. NICHOLLS:  Well, Your Honour, I'm late, but I'm going to

24     object to that long argument which a question that has already been asked

25     and answered was thrown in at the end.

Page 27687

 1             JUDGE KWON:  Correct.  The simpler your question is, the better

 2     off -- the better off you will be, Mr. Karadzic.

 3             THE ACCUSED: [Interpretation] Thank you.  Still I would like

 4     Mr. Butler to say does the mention of inflicting as great losses as

 5     possible refer to civilians or only to the enemy?  But I don't want an

 6     opinion from him.  I want only facts.

 7             THE WITNESS:  Again, sir, as I testified previously, the language

 8     says what it says, and also one has to look at how the actual operations

 9     were conducted by the VRS military forces on the ground.  I take your

10     point that, you know, my interpretation of the language isn't the

11     controlling factor.  It is the interpretation of your military commanders

12     as to what the language says, what the language means, and how it was

13     implemented that should be the controlling factor.

14             MR. KARADZIC: [Interpretation]

15        Q.   It is not by chance that I asked you whether the warring parties

16     have certain obligations, primarily the warring party that declared war

17     against the civilian population.

18             From your point of view, is it lawful and legal to seek shelter

19     behind your own civilians, to mix your troops with civilians, and to turn

20     your own civilian population into an army on a daily basis?

21        A.   What I can say is that obviously international law on armed

22     conflict applies to all parties and that they should seek, wherever

23     possible, to minimise civilian casualties.  I can't speak in broad terms

24     as to the lawfulness of -- or legality of military forces, as you say,

25     potentially shielding behind a civilian population or turning a civilian

Page 27688

 1     population into an army on a daily basis.  Those are specific situations.

 2     And where examples come forward, I can comment on them if that's what you

 3     desire, but I can't speak in more detail than that.

 4        Q.   Here's the example, Mr. Butler:  It is my assertion that in the

 5     sector which in that spring of 1993 -- in fact, we'll show you a map made

 6     by your own government.  In the sector controlled by the Muslims in 1993

 7     and which we had accepted would eventually belong to the Muslim federal

 8     unit, the Muslim army was mixed with civilians, civilians who, as

 9     required, put on uniforms and fought, and they were inflicting heavy

10     losses on us.  Do you agree with that?

11        A.   With respect, sir, this question is so vague that I don't know

12     that I can answer it.  I mean, what sector are you referring to

13     specifically?

14             MR. NICHOLLS:  And again, I --

15             JUDGE KWON:  Before we move on, probably I need your assistance,

16     Mr. Nicholls.  Page 40, line 22, the last part of Mr. Karadzic's earlier

17     question which you referred to as the real question.  The transcript

18     reads like this:

19             "Does this text" - directive 4 - "make addition continuation

20     between the enemy and the civilians?"

21             I take it that it should read:  Does this text make distinction

22     between the enemy and the civilians?

23             MR. NICHOLLS:  I think that's correct, Your Honour.

24             JUDGE KWON:  Before we move away, can you answer that question.

25             THE WITNESS:  I'm sorry.  The previous question relating to the

Page 27689

 1     text making a distinction between the enemy and civilians, is that --

 2             JUDGE KWON:  Yes.  Drina Corps --

 3             THE WITNESS:  Yes, sir, I'm looking now.  It says "force them

 4     with the Muslim population to leave the areas."  So again if -- assuming

 5     that the language syntax is correct in the English language, I read that

 6     that the objective is not simply to force the Bosnian Muslim military

 7     forces away from the area.  It takes also the fact that part of the goal

 8     is to force the Muslim military -- I'm sorry, the Muslim civilian

 9     population as well.

10             JUDGE KWON:  Okay.  I will leave it at that.

11             Yes, Mr. Karadzic.

12             THE ACCUSED: [Interpretation] With your leave, Your Excellency.

13             MR. KARADZIC: [Interpretation]

14        Q.   The question was:  Is there any difference between inflicting

15     losses on the enemy or does it stretch to inflicting losses on civilians?

16     More precisely, are the civilians integrated into this passage about

17     inflicting losses on the enemy?

18        A.   No, sir.  I believe the -- again, matter of syntax language,

19     perhaps, but the way that it's written, inflict -- when it says the

20     phrase "inflict the heaviest possible losses on them," I take that to be

21     the military forces.  And for -- and force them with the Muslim

22     population to leave Birac.

23             Now, having said that in a syntax sense, in a military sense I

24     don't know how that you could divorce the two, particularly if you

25     understand where the Bosnian Muslim civilian population is in those areas

Page 27690

 1     and where the military forces are defending them.

 2        Q.   That was not the question, Mr. Butler.  I'm now beginning to

 3     wonder about your bias.  Does this reference to inflicting losses apply

 4     only to the army, and is it the case that civilians are mentioned only

 5     later?

 6             JUDGE KWON:  Mr. Karadzic, Mr. Butler has given his answer, and

 7     it's for you to make submission later on based upon what he said.  If you

 8     continue, it's just an argument.

 9             THE ACCUSED: [Interpretation] Could we see 1D5548 in e-court.

10             MR. KARADZIC: [Interpretation]

11        Q.   I will now try, Mr. Butler, to put short questions that can be

12     answered with yes or no, but you are free to expand whenever you see fit.

13             Is this zone familiar to you?

14             THE ACCUSED:  Could we lower the picture a little so Mr. Butler

15     can see that this is the map of Srebrenica and Cerska.  Could we scroll

16     down a little so as to see the top.  No, the other way.  Could you please

17     zoom in for the witness.

18             I believe this has been notified.  Can we now see the whole

19     picture again.

20             MR. KARADZIC: [Interpretation]

21        Q.   Is this Podrinje, the area you dealt with, Mr. Butler?

22        A.   This is the area that was the primary focus of my military

23     analysis work.  I believe it's referred to generally as the upper

24     Podrinje area.

25        Q.   Do you know that in all peace plans it was envisaged and accepted

Page 27691

 1     by the Serbian side that this area would become part of the Muslim

 2     constituency, Muslim entity?

 3        A.   I am aware that under at least one iteration of the

 4     Vance-Owen Peace Plan as it was forwarded, parts of this area would be

 5     under the -- or it would be awarded to the Bosnian Muslim side, because

 6     at that time they represented the dominant population group there.

 7        Q.   Do you know that the pre-war plan, Cutileiro's plan, that is to

 8     say, the Lisbon agreement that was accepted by Serbs, Muslims, and Croats

 9     alike, envisaged this area to become part of the Muslim constituent unit?

10        A.   I'm not familiar with the Cutileiro Plan, so I cannot comment one

11     way or another on that.

12        Q.   Thank you.  Do you know that in this sector all the way up to

13     March, April, 1993, until the proclamation of the protected area, there

14     were 15- to 18.000 active combatants of the BH Army?  The 8th Operative

15     Group it used to be called, the 28th Division, and the 8th Operative

16     Group alternatively.

17        A.   In answer to your second question first, the 8th Operative Group

18     ultimately becomes the 28th Infantry Division.  So there are no --

19     they're not two separate units.  It's one particular unit.

20             I don't know that I've ever seen a number as high as 15- to

21     18.000 combatants associated with those units at the time, but -- and

22     again, as you note, by the size of territory under their control, there

23     was a sizable Bosnian Muslim military presence in that area that

24     represented a significant threat to the VRS there.

25        Q.   Do you agree that they posed a threat not only to the VRS but

Page 27692

 1     also to the Serbian civilians?  And do you know that before the

 2     proclamation of the protected area they had killed over 1.300 Serbian

 3     civilians in this area that they controlled?

 4             THE ACCUSED: [Interpretation] I think the map can be enlarged

 5     again, this area that is marked.

 6             THE WITNESS:  I can -- again, I don't know the number

 7     1300 civilians, but I agree with your broad assertion that Bosnian Muslim

 8     forces did attack Serbian-held villages and Serbian civilians were

 9     casualties.

10             MR. KARADZIC: [Interpretation]

11        Q.   Did you note what were the objectives of this military group in

12     this sector in 1992 and 1993?  Was it their aim to link up with

13     Central Bosnia, with the 2nd Corps in Tuzla?

14        A.   My understanding was ultimately the goal of the Muslim military

15     forces at that time was to, in fact, establish a ground link with the

16     2nd Corps so there would be a continuous territory that was held by the

17     Bosnian Muslim forces, yes, sir.

18        Q.   Have you analysed our military opponents at all, their

19     intentions, their forces, their actions, in order to better understand

20     the actions of the VRS?

21        A.   I did to a limited degree look at the military operations carried

22     out by, well, first OG8 and later the 28th Infantry Division, but I have

23     to emphasise to a limited degree.  There was a separate investigation

24     team at the Office of the Prosecutor at the time who was investigating

25     human rights allegations and war crimes allegations related to the

Page 27693

 1     military forces of the 28th Infantry Division, and Naser Oric

 2     specifically, against the Serbs in that particular area.  So in that

 3     particular context, it was a separate investigation.  They had separate

 4     military analysts who worked on that particular issue.

 5             So while I don't have details of that, I try to at least keep

 6     myself apprised enough to be able to put -- as you say, understand the

 7     history and the context of what had happened and how that may have played

 8     a role in what later happened in July of 1995.

 9        Q.   Thank you.  Is it true that you noted in your report that

10     Bratunac was reduced to a very small territory?  And we can see that on

11     this map.

12        A.   Yes, sir, particularly January and February of 1993.

13             THE ACCUSED: [Interpretation] We'll leave this document for a

14     moment.  Can we see 1D4027, please.

15             MR. KARADZIC: [Interpretation]

16        Q.   While we're waiting, Mr. Butler, did you know that I had issued

17     an appeal to the Muslim people that they should not fight, that their

18     area would probably go to their constituent unit, and that they should

19     just stay put and wait for a solution, for a peaceful solution?

20        A.   You're referring to Eastern Bosnia; correct, sir?

21        Q.   I issued that during the fighting.  It was meant in general

22     terms, for all Muslims, but specifically for this populous there, because

23     this area was meant to become Muslim territory.

24        A.   It's a two-part question.  The first part is, no, I'm not aware

25     of that particular proclamation, and secondly, from my review of the

Page 27694

 1     military documents, I don't recall ever seeing a document which would any

 2     way reflect that the territory that the VRS was presently fighting on

 3     with respect to those areas in question were intended ultimately to fall

 4     back under Bosnian Muslim control.

 5             JUDGE KWON:  Mr. Karadzic, I note the time.  So we'll take a

 6     break now, if it is convenient for you, for 20 minutes and resume at

 7     2.30.

 8                           --- Recess taken at 2.10 p.m.

 9                           --- On resuming at 2.32 p.m.

10             JUDGE KWON:  Yes, Mr. Karadzic.

11             THE ACCUSED: [Interpretation] Unfortunately, Your Excellency,

12     this document hasn't been translated yet, but I was not counting on using

13     it in the first place.

14             Can I please ask for it to be zoomed in.

15             MR. KARADZIC: [Interpretation]

16        Q.   I'm going to read it out to you and let the interpreters check

17     what I'm saying.  This is a document dated the 1st of October, 1992.

18             The staff, the District Staff of Tuzla is asking the Main Staff

19     for different things.

20             Number 1:

21             "From the free territory of Bratunac, Zvornik, Srebrenica, and

22     Vlasenica, a group of officers and soldiers managed to get to the

23     District Staff of Tuzla in order to co-ordinate action and render

24     assistance, namely, penetrating the corridor, sending personnel and

25     resources for waging struggle, assisting in food and medicine for about

Page 27695

 1     70.000 refugees."

 2             JUDGE KWON:  I note that the French booth is empty, and

 3     Judge Flavia Lattanzi does not get any interpretation.

 4             THE ACCUSED: [Interpretation] Can we proceed now?  Oh.  We'll

 5     wait.

 6             JUDGE KWON:  Judge Lattanzi kindly agreed to follow in English,

 7     so shall we continue.

 8             THE ACCUSED: [Interpretation] Thank you.

 9             MR. KARADZIC: [Interpretation]

10        Q.   So for example, paragraph 4, I'll move on to that straight away.

11             The commander of the staff of Bratunac is saying the following,

12     the second sentence:

13             "Since the beginning the war we have held a large part of the

14     territory of our municipalities and no Chetnik has ever arrived in our

15     territory and no Chetnik foot will ever step on our soil."

16             As you know, they called all Serbs Chetniks; right?

17        A.   I'm aware that is a derogatory term that Muslims would address

18     Serbs as, yes, sir.

19        Q.   Thank you.  Please take a look at the penultimate sentence.  It

20     says:

21             "In Tuzla we have a few units that have completed their training

22     and are awaiting mobilisation.  Right now in that area, there are

23     large-scale attacks, and we have many casualties and many wounded,

24     especially in the area around Zvornik, Snagovo, Kamenica, and Novo Selo.

25     Could something please be done with the convoy of humanitarian aid.

Page 27696

 1     Could it be sent to this territory."

 2             So on the 1st of October there was fighting in that area.  Did

 3     you know that?

 4        A.   Again, sir, I can't give you a specific date, but I agree with

 5     your assertion that at this point in time, particularly October/November,

 6     that the Bosnian Muslim military forces do control a rather large swathe

 7     of the area that we've previously described as the upper Podrinje area.

 8             THE ACCUSED: [Interpretation] Thank you.  Can this be marked for

 9     identification?

10             JUDGE KWON:  Yes.

11             THE REGISTRAR:  As MFI D2331, Your Honours.

12             THE ACCUSED: [Interpretation] Thank you.  We're looking for other

13     ones, too, but, well, basically you accept that they held this under

14     their control.  Can we please go back to the map, 1D4888.

15             MR. KARADZIC: [Interpretation]

16        Q.   Generally speaking, Mr. Butler, according to your findings what

17     was the objective of the Muslim part of the Army of Bosnia and

18     Herzegovina?  What was the objective of the HVO?  And what was the

19     objective of the Army of Republika Srpska?  Or let me help you with all

20     of this.  Did the HVO aspire to control all of Bosnia-Herzegovina, and

21     did the Army of Bosnia-Herzegovina aspire for control over all of

22     Bosnia-Herzegovina?

23        A.   With respect to the question relating to the HVO, I did

24     absolutely no research related to the HVO, so I cannot comment with any

25     authority as to what their war aims were.

Page 27697

 1             With respect to the Army of Bosnia and Herzegovina, the

 2     government in Sarajevo of Bosnia and Herzegovina viewed themselves as the

 3     legitimate government of the entire country of Bosnia and Herzegovina, so

 4     ultimately the war aim of the army of the -- Army of Bosnia and

 5     Herzegovina was to, to the degree that they could, seek their political

 6     leadership's control over all of that territory.  You know, at the

 7     beginning their primary missions were to defend the territory that they

 8     had relative to the beginning part of the war, but ultimately one would

 9     say that the goal of the Army of the Republika Srpska [sic] was to

10     reassert the authority of the government in Sarajevo over the entire

11     country.

12        Q.   I'm not sure that I understood this properly.  Did you say that

13     the aim of the Army of Republika Srpska was to establish the authority of

14     the Sarajevo government throughout the territory or what?

15        A.   I see your point, and I clearly misspoke.  The goal of the

16     Army of Bosnia and Herzegovina was to establish their control over the

17     entirety of Bosnia and Herzegovina as the military arm of the government

18     in Sarajevo.  If I said "Republika Srpska," I certainly didn't mean to in

19     that sense.

20        Q.   Thank you.  We'll get to the six strategic objectives that you

21     mention, although they're not from 1995 and not from Podrinje only.

22     However, do you agree that the Army of Republika Srpska did not have as

23     its aim exercising control over all of Bosnia and Herzegovina as opposed

24     to the Army of Bosnia and Herzegovina?

25        A.   Yes, sir, I agree.

Page 27698

 1        Q.   Thank you.  And do you agree that the Serb side, as far as this

 2     enclave is concerned, it tolerated it until the spring of 1993?  That is

 3     to say, they did not take any measures or did not conduct any operations

 4     to resolve that.

 5        A.   I'm sorry, sir, the phrase that's translated in English is "as

 6     far as this enclave is concerned."  Are you referring to again the map

 7     where you're talking about the territory under the control of the

 8     Bosnia-Herzegovina military forces at this time, or are you referring to

 9     one of the UN enclaves?

10        Q.   I'm sorry.  I thought that you had the same thing on your screen

11     as I do.  The map that we saw a few moments ago from Zvornik to -- to the

12     Drina to Zepa --

13             THE ACCUSED: [Interpretation] Could the witness please be shown

14     this in e-court.  Could something be done with e-court?

15             MR. KARADZIC: [Interpretation]

16        Q.   Do you have this map in front of you?

17        A.   I have this map, sir, yes.  It's just the phrase that you used,

18     "enclave," threw me off and that was how it was translated in English.

19     I -- so I just wanted to be clear exactly what we were talking about.

20             I would disagree with your comment.  The answer that I come to

21     based on the military documents is that beginning in late December and

22     continuing through January and February and March of 1993, specifically

23     the Zvornik Infantry Brigade, the Birac Infantry Brigade, and elements of

24     the Milici and Vlasenica Infantry Brigades engaged in military operations

25     which ultimately reduced the size of the Bosnian-Muslim-held territory by

Page 27699

 1     at least a third, their primary objective being to capture and control

 2     the Cerska region.  So given what was occurring in that part of the area

 3     at the time, no, sir, I can't agree that there were no measures taken by

 4     the VRS to resolve the enemy situation as it existed.  I believe they

 5     were very active during that period.

 6        Q.   I kindly ask you the following:  Let us be very precise with our

 7     wording.  This is what I'm asking you:  Before the spring of 1991 -- no,

 8     1993, did the Army of Republika Srpska conduct an operation?  I'm not

 9     talking about actions.  I'm not talking about fighting.  Conducted by a

10     single brigade, a single battalion, two brigades, parts of a single

11     corps.  I hope that you make a distinction between a military operation

12     and a skirmish or a military action.  Were there any military operations

13     aimed at liberating this area before the spring of 1993?

14             MR. NICHOLLS:  Just for the record, the previous question that

15     Mr. Butler answered was:

16             "Thank you.  And do you agree that the Serb side, as far as this

17     enclave is concerned, it tolerated it until the spring of 1993?  That is

18     to say that they did not take any measures or did not conduct any

19     operations to resolve that."

20             MR. KARADZIC: [Interpretation]

21        Q.   The point is operations.  There were clashes on a daily basis

22     throughout Bosnia, but do you agree, Mr. Butler, that an operation is a

23     planned activity of a strategic formation of the military, not of

24     two brigades?

25        A.   I would disagree with your definition.  My definition of an

Page 27700

 1     operation-level activity would raise to a multi-brigade operation within

 2     a single corps.

 3             If I were to accept your definition, which would appear to be

 4     larger, that an operation had to at least involve multiple corps-level

 5     organisations, you would exclude a lot of military activity under that to

 6     include Krivaja 95, which was again a multi-brigade military operation

 7     conducted by a single corps.  Hence why I don't agree with your

 8     definition as to what an operation is.  I believe that, again,

 9     multi-brigade military operations meet that definition.

10        Q.   All right.  Can we agree that the Army of Republika Srpska took

11     more comprehensive action only in the spring of 1993 and liberated this

12     area with the exception of Srebrenica and Zepa in April 1993?

13        A.   Yes, sir.  In fact, given the severity of the winter conditions

14     in January and February of 1993 particularly, conditions so severe that

15     there were humanitarian food drops by various national groups related to

16     Bosnia to try and parachute food in there, there was only so much that

17     you could do during that period because of the adverse weather

18     conditions, but once the spring started and the weather conditions

19     improved and the roads became far more passable, the scale of military

20     operations increased.

21        Q.   I hope that you believe that it was winter-time for the Muslims,

22     too, and that there was snow for them as well, and that did not prevent

23     them from attacking us all the time; right?

24        A.   Well, correct, sir, in the sense that military operations were

25     not suspended by either side during the winter conditions.  The winter

Page 27701

 1     conditions just impacted the ability of both sides to really conduct

 2     wide-ranging military operations, but the war didn't stop.

 3             THE ACCUSED: [Interpretation] Your Excellencies, can we have this

 4     map admitted?

 5             JUDGE KWON:  Did you ask any question about this map to the

 6     witness?

 7             THE ACCUSED: [Interpretation] I put a question about the zone

 8     that was controlled by the Muslim army in January 1993, and the witness

 9     said that that corresponds to his knowledge, namely that this zone was

10     under the control of the 8th Operative Group.

11             JUDGE KWON:  Mr. Nicholls.

12             MR. NICHOLLS:  I don't object.

13             JUDGE KWON:  Yes.  We'll receive it.

14             THE REGISTRAR:  As Exhibit D2232, Your Honours.

15             MR. KARADZIC: [Interpretation]

16        Q.   Do you know, Mr. Butler, that it was I who stopped our army on

17     the outskirts of Srebrenica, and I even prohibited war crime

18     investigations in order to stop vengeful behaviour on the part of the

19     Serbs who were in the army and who hailed from that area?  Did you come

20     across any such document?

21        A.   I don't know whose order it was to stop military operations.  If

22     General Mladic gave the order, then I assume that he did so under your

23     authority, so again if it turns out that it ultimately was your order to

24     do that and he followed that, it certainly wouldn't surprise me.

25             I am not aware of an order that you have given that prohibited

Page 27702

 1     Bosnian Serb military or police forces from conducting war crimes

 2     investigations in that particular area for any reason, so -- again, I'm

 3     not -- I don't recall ever seeing a document that reflects that.

 4        Q.   Thank you.  If we have enough time, we're going to show you that

 5     document.  It's already been admitted.

 6             All right.  Did you know that we had agreed to have Srebrenica

 7     and Zepa declared safe havens and that that was supposed to be done on

 8     the basis of a bilateral agreement signed by Mladic and Halilovic?

 9        A.   Again, sir, I understand that General Mladic and

10     General Halilovic did sign a bilateral agreement.  I know I've probably

11     put this material in my report, but I can't recall at this particular

12     instant where that fell chronologically in time with the creation of the

13     safe area, whether it was before or after, sir.  I just don't recall

14     right now.

15        Q.   You are certainly familiar with the terms "a demilitarised area"

16     and "an undefended area," right?

17        A.   Yes, sir.  And I think the sense where I think you're going with

18     this question, I do understand the terms as they're used with relation to

19     Srebrenica.

20        Q.   This is a mistranslation.  The right word would be "non-defended"

21     for "undefended."  "Non-defended" would be right.  [In English] Would be

22     probably non-defended or -- non-defended are one kind and another kind is

23     demilitarised.

24             [Interpretation] Do you agree?

25        A.   Yes, sir, I understand -- I understand there are differences

Page 27703

 1     between a non-defended area and a demilitarised in that sense.  Again,

 2     the creation of the United Nations safe area related to Srebrenica had

 3     provisions for it being demilitarised.  So again I understand the

 4     terminology is where I think you're going to go with this.

 5             JUDGE KWON:  Could you share your understanding with us so that

 6     we can follow.

 7             THE WITNESS:  If this is going where I believe it is, I mean the

 8     question is going to be whether or not my opinion is whether or not

 9     Srebrenica was demilitarised in the sense of the agreements as seen by

10     both the UN and the bilateral agreement with Mladic and

11     General Halilovic, and I've testified about that kind of issue before, so

12     I believe that's where he's going with this, sir.

13             JUDGE KWON:  If you could tell us the difference between

14     demilitarisation and non-defence, as far as you understand them.

15             THE WITNESS:  There are provisions - and again I'm not an expert

16     in this field - under international law where certain areas can be

17     declared open cities or open areas.  For example, one comes to mind is

18     during World War II the retreat of the American army through the --

19     Manila, the city of Manila, and it was declared -- after the army had

20     passed through it and had no intentions of defending, it was declared an

21     open city in order that the attacking Japanese military forces would know

22     that it was a completely undefended area and that they did not have to

23     engage in military operations endangering the civilian population.  That

24     is my understanding in broad context of the difference between a

25     demilitarised and open or undefended areas.

Page 27704

 1             THE ACCUSED: [Interpretation] Thank you --

 2             JUDGE KWON:  Just a moment.  Yes, Mr. Karadzic.

 3             THE ACCUSED: [Interpretation] 1D5546.  Could we that called up,

 4     please.

 5             MR. KARADZIC: [Interpretation]

 6        Q.   While we're waiting, Mr. Butler, do you agree that an undefended

 7     area and a demilitarised area are agreed upon between the parties in

 8     conflict according to Protocol I -- Additional Protocol I.  Article 59 as

 9     far as undefended areas are concerned, and Article 60 pertains to

10     demilitarised zones.  So that's the Additional Protocols.

11        A.   Again, I'm aware that generally they are based on bilateral

12     agreements between the various warring parties.  They can, of course, be

13     brokered by a third party, or in the case where the ICRC always functions

14     as a neutral party in this case.  But, yeah, customarily when two

15     combatants are fighting, those are the type of things that they would

16     negotiate for whatever their purposes are.

17             THE ACCUSED: [Interpretation] Could we see page 37 in Serbian and

18     page 22 in English.  One page earlier in Serbian to see what the

19     undefended place is.  Page 36 in Serbian.  Probably one page earlier in

20     English.  Oh, no.  The English page can stay.  [In English] Non-defended

21     localities.

22             MR. KARADZIC: [Interpretation]

23        Q.   Please see what it says.  The competent authorities of the

24     warring party may proclaim as non-defended any area where conflicting

25     parties are in contact, et cetera.

Page 27705

 1             THE ACCUSED: [Interpretation] Can we see the next page in

 2     Serbian.

 3             MR. KARADZIC: [Interpretation]

 4        Q.   Please look at the conditions that have to be met.  Page 4.

 5             "The declaration made under paragraph 2 shall be addressed to the

 6     adverse party and shall define and describe as precisely as possible the

 7     limits of the non-defended locality.  The party to the conflict which the

 8     declaration is addressed shall acknowledge its receipt and shall treat

 9     the locality as a non-defended locality."

10             And 5:

11             "The parties of the conflict may agree on the establishment of

12     non-defended localities do not fulfil the conditions laid down in

13     paragraph 2.  The agreement should define the methods of supervision."

14             And number 7:

15             "A locality loses its status as a non-defended locality when it

16     ceases to fulfil the conditions laid down in paragraph 2 ..."

17             Et cetera.

18             Do you know of any place in Bosnia-Herzegovina which had the

19     status of a non-defended locality?

20        A.   Not to my knowledge in this particular context.  There may be,

21     but none of them are coming to mind to my knowledge.

22        Q.   Thank you.  I will now put to you the position of the Defence.

23     The Muslim side declared war on the Serbian side, and in doing so did not

24     require us to recognise any locality as undefended or non-defended;

25     correct?

Page 27706

 1        A.   Again going back to prior testimony on this, I mean, I don't know

 2     that I would be the appropriate authority to make a determination as to

 3     which side declared war on which side, and I don't know that I can answer

 4     the second part of your question about a declaration of war not

 5     requiring, you say "us," but any side to recognise any locality as

 6     undefended or non-defended.  I just don't know that I can answer that

 7     question, sir.

 8        Q.   All right.  I'm telling you that they declared war on us on the

 9     20th of June, and we asked that it be annulled throughout that year to

10     make the conflict last shorter.  Now I'm asking you, when somebody wants

11     war and does not ask for any place to be recognised as non-defended, then

12     what could that side expect except to have a war?

13        A.   I would answer that with respect to the laws as they apply to

14     armed conflict.  Absent a specific designation of what would be a

15     non-defended area, a warring party, without having information or without

16     being notified that it was an undefended area, a warring party would have

17     a legitimate right to conduct military operations in that area.  Again, I

18     caveat that with the fact that all of the other rules related to the

19     protection of civilians and civilian objects and protected personnel are

20     still applicable, but I -- I agree with your point that if we're talking

21     about Article 59, absent a specific designation, one side, you know,

22     could assume that the territory that they are attacking is, in fact,

23     defended by their adversary.

24             THE ACCUSED: [Interpretation] Thank you.  Could we now see

25     paragraph -- that is to say Article 60, both Serbian and English.  In

Page 27707

 1     English it would be the bottom of the page, and in Serbian too.

 2             Article 60 relates to demilitarised zones and it says, doesn't

 3     it:

 4             "It is prohibited for the parties to the conflict to extend their

 5     military operations to zones on which they have confirmed by agreement

 6     the status of demilitarised zone ..."

 7             And then paragraph 2.  If we could turn to the next page in

 8     English.

 9             "The agreement shall be an express agreement, may be concluded

10     verbally or in writing, either directly or through a Protecting Power or

11     any impartial humanitarian organisation ..."

12             Now, may I draw your attention to paragraph 3 where the

13     conditions that a demilitarised zone must meet are listed.

14             "All combatants as well as mobile and immobile military equipment

15     must be evacuated.

16             "No hostile use shall be made of fixed military installations.

17             "No acts of hostility be shall committed by the authorities or by

18     the population ...

19             "Any activity linked to the military effort must have ceased."

20             And in paragraph 5:

21             "The Party which is in control of such a zone shall mark it, so

22     far as possible, by such signs as may be agreed upon with the other

23     Party, which shall be displayed where they are clearly visible,

24     especially on its perimeter and limits and on highways."

25             And paragraph 6:

Page 27708

 1             "If the fighting draws near to a demilitarised zone, and if the

 2     Parties to the conflict have so agreed, none of them may use the zone for

 3     purposes related to the conduct of military operations or unilaterally

 4     revoke its status."

 5             "7.  If one the parties to the conflict commits a material breach

 6     of the provisions of paragraphs 3 or 6, the other party shall be released

 7     from its obligations under the agreement conferring upon the zone the

 8     status of demilitarised zone.  In such an eventuality, the zone loses its

 9     status but shall continue to enjoy the protection provided by the other

10     provisions ..." et cetera, et cetera.

11             We have seen that there were no non-defended places.  Do you know

12     of any demilitarised place in Bosnia?

13        A.   Yes, sir, in the sense that particularly beginning in April and

14     May of 1993 in Eastern Bosnia, the United Nations designated Srebrenica,

15     Zepa, and Gorazde as demilitarised zones.  So believe again I don't know

16     the specific dates and times because I think there were two separate

17     UN Resolutions related to those, but they are in my report.

18             JUDGE KWON:  Yes, Mr. Nicholls.

19             MR. NICHOLLS:  No objection.  Sorry to interrupt, but just for

20     precision and to help me, could I know what document - there's been quite

21     a lot of discussion about it - Mr. Karadzic was referring to at line --

22     at page 10, line 1 today, the document he says where the Muslim side on

23     22nd of June declared war against Serbia, Montenegro, and the Serbian

24     autonomous regions in Bosnia.

25             THE ACCUSED: [Interpretation] With all due respect to

Page 27709

 1     Mr. Nicholls, when the Muslim side provides the original documents to us,

 2     we will provide them to you, but this is common knowledge in our public.

 3     This is a mutilated transcript of one of their sessions.  We'll show it.

 4             MR. KARADZIC: [Interpretation]

 5        Q.   With all due respect, Mr. Butler, Caligula proclaimed his horse

 6     to be a senator although he was certainly not a senator.  Were these

 7     zones really demilitarised?

 8        A.   Again, I can't comment on the status of Caligula, but I have

 9     testified previously that based on my knowledge of the activities that

10     occurred after the creation of the safe areas as they were labelled by

11     the UN, they were not in fact truly demilitarised.  And I believe I've

12     been fairly consistent with my testimony through the years that first OG8

13     and later, as it was redesignated, the 28th Infantry Division of 2 Corps

14     did conduct military operations out of both the Srebrenica and Zepa safe

15     areas.

16        Q.   Thank you for your information.  I'd like to show you the

17     document by virtue of which I stopped the operation in 1993.  D0043.

18             THE ACCUSED: [Interpretation] May I tender at least these

19     two Articles, although I believe international covenants should be

20     admitted en bloc.

21             JUDGE KWON:  I'm not sure it's necessary for us to admit the

22     laws.  What do you think, Mr. Robinson?

23             MR. ROBINSON:  Well, Mr. President, it's up to the Chamber.  You

24     can already refer to these laws, and we can refer to them as well without

25     them being admitted, so whatever you prefer.

Page 27710

 1             JUDGE KWON:  Mr. Nicholls.

 2             MR. NICHOLLS:  I agree.  I don't think they need to be admitted.

 3     I don't think there's going to be a dispute about what the provisions of

 4     these Articles say.

 5             JUDGE KWON:  Absolutely.  Let's proceed, Mr. Karadzic.

 6             THE ACCUSED: [Interpretation] Then we don't have to have it

 7     admitted.

 8             MR. KARADZIC: [Interpretation]

 9        Q.   Look at the English version, 16 April 1993.

10             "I hereby order:

11             "1.  Cease all operations of the Army of Republika Srpska against

12     Srebrenica and its surroundings, except for those of necessary defence.

13             "2.  Stop the forces of the Army of Republika Srpska at the

14     positions reached and prevent their entry into Srebrenica.

15             "3.  Facilitate the passage of all humanitarian convoys both

16     entering and leaving Srebrenica.

17             "4.  Ensure pacification of the town in such a way that Muslim

18     forces surrender weapons to UNPROFOR, who will then store them on a

19     two-key basis jointly with the Serbian forces.

20             "5.  After the surrender of weapons, all the Muslim soldiers

21     shall be treated like all other civilians.

22             "Provide protection for all civilians and give them the liberty

23     to choose between leaving and staying.

24             "6.  Do not conduct any investigations into war crimes until the

25     situation around Srebrenica is settled.

Page 27711

 1             "7.  Carry the order out immediately and fully inform me

 2     thereof."

 3             Did you have insight into this document, Mr. Butler?

 4        A.   Yes, sir, I believe I've testified before on this.  I was not

 5     aware of this document.  I've not seen this document until now.

 6        Q.   Do we agree that combatants are hereby considered as civilians

 7     from the moment when they surrender their weapons not to us but to

 8     UNPROFOR?

 9        A.   That -- that is your provision as written in paragraph 5, yes,

10     sir.

11        Q.   Would you add anything to this?  Could I have added anything to

12     this order to make life in Srebrenica easier?  Protection of civilians

13     and respect for civilians is provided for.  Amnesty of the fighters,

14     assistance to humanitarian organisations.

15        A.   Respectfully, sir, I don't know that my opinion on what you

16     should or should not have put in a particular presidential decree assists

17     the Trial Chamber, and I don't know that -- you know, I'm not a head of

18     state.  I don't know that I would have the relevant expertise to be able

19     to comment as to the appropriateness of a presidential decree of this

20     nature.  You put in this document what you put in this document for your

21     reasons, sir.

22        Q.   Thank you.  Mr. Butler, do we agree that in those international

23     documents and in our bilateral agreement, the boundaries of these two

24     protected areas are defined and marked on the map and in the agreement?

25        A.   I am not sure I can agree with that comment because I am aware of

Page 27712

 1     military documents which in some cases they're actually United Nations

 2     documents where General Zivanovic is informing the Dutch Battalion

 3     commander in, I believe, January of 1995, that it is his opinion,

 4     presumably representing the VRS, that to that date, the actual boundaries

 5     of the Srebrenica safe area have never been probably demarcated between

 6     the VRS side and the -- the Bosnian Muslim side within the enclave.  So

 7     again while they may be on a map and things of that nature, it is my

 8     understanding that even through 1995, the Army of the Republika Srpska

 9     military leadership there did not believe that the safe area was properly

10     demarcated.

11        Q.   Mr. Butler, if you say the task of the VRS was to reduce the

12     enclave to the narrow urban area, then you should know that there existed

13     agreed and signed boundaries of that area that the Muslim side did not

14     honour.  Instead, they expanded the area to the detriment of the Serbs.

15     Were these two protected areas or one?  Because they were drawn as two.

16        A.   Again, sir, I don't know the answer to that in that sense.  What

17     I can reiterate is that I know that General Zivanovic raised the issue of

18     the proper demarcation of the enclave in January of 1995, and I believe

19     that at some point in March of 1995, General Smith had the occasion to

20     meet with VRS officers, I believe General Zivanovic again, at Vlasenica

21     and the Drina Corps, and if I recall correctly, General Smith was at that

22     point also presented with a map which indicated where the VRS believed

23     that the actual boundaries of the enclave should be demarcated as.

24        Q.   But, Mr. Butler, you are evaluating operations around Srebrenica.

25     Among other things, account should be taken of legality and lawfulness.

Page 27713

 1     I'm asking you whether that belt together with the road between

 2     Srebrenica and Zepa fell under Serbian control under the agreement, and

 3     did the Muslim side violate that?  Did you see that agreement and the map

 4     when you were making your expert report?

 5        A.   No, sir.  And again, with respect to your specific question, I

 6     don't know the answer, and more so, it was not relevant to the analysis

 7     that I was doing.  The analysis that I was performing with respect to the

 8     operations around Srebrenica did not deal with the question of whether or

 9     not the VRS's attack into the enclave per se was lawful or not.

10     Certainly I'm not a person who can give the Court any expert opinion as

11     to whether attacking a UN safe area is or is not a crime.

12             My position is that, and again I've testified to this before, is

13     that given the fact that the ABiH military forces in the enclave were

14     armed and did conduct military operations out of the enclave, that the

15     VRS had a legitimate right to engage in military operations against the

16     28th Infantry Division there.  That's not a legal finding.  That's, in my

17     sense, a military finding.  I believe they had that right because it was

18     an armed combatant that they were facing.  So given that that was my

19     starting point of my analysis, where the actual boundary of the enclave

20     was and who controlled what particular territory was not relevant.

21        Q.   Thank you.  Do you agree, and you called it as a new task or a

22     follow-up task, do you agree that the task that the VRS had was an

23     action, not an operation, and it was called "action" in the documents,

24     and this action was to separate Srebrenica from Zepa?

25             THE INTERPRETER:  Could Mr. Karadzic repeat the number of the

Page 27714

 1     document.

 2             MR. KARADZIC: [Interpretation]

 3        Q.   You can answer this with a yes or no.  You wrote that in your

 4     report.

 5        A.   Yes, sir.  I mean, I don't believe that, and in fact, you know,

 6     it's an operation; and secondly, if it's the exact language of the

 7     operations order, this is why I referenced the Krivaja 95 operations

 8     order in my reports.  The language speaks for itself in that particular

 9     order.

10        Q.   I believe the language is this:  "Order for active combat

11     actions," not operations.  And for forensic purposes, this is a very

12     important distinction.  "Order for combat action."

13             THE ACCUSED: [Interpretation] Can we see 1D35.  We don't need the

14     Serbian.

15             This is the agreement.  We should go to the last page where the

16     map is.  Demilitarised zone.  Any combat operation is directly prohibited

17     by Article 60 of the Protocol I and Additional Protocols of the

18     Geneva Conventions.  We can leaf through this but we don't have much time

19     so that the witness can see the map.

20             Then it must be the addendum or perhaps the penultimate page.

21     No.  Obviously, the map is not part of this exhibit.

22             MR. KARADZIC: [Interpretation]

23        Q.   I'll look for it, and we'll show it to you tomorrow.

24             JUDGE KWON:  Yes.  Before we adjourn, do you remember the exact

25     name of that Krivaja order?

Page 27715

 1             THE WITNESS:  Not off the top of my head, sir.  I mean the --

 2             JUDGE KWON:  Yes, Mr. Nicholls.

 3             MR. NICHOLLS:  Your Honours, it's -- I don't want to interrupt.

 4     It's P04481.  I mean, I think it would be much simpler just to bring up

 5     Krivaja 95.

 6             JUDGE KWON:  Yes.  Could you give the number again, Mr. Nicholls.

 7             MR. NICHOLLS:  4418, I said, not 081.  P04481.

 8             THE ACCUSED: [Interpretation] There must be a translation, but

 9     I'll read it to you.

10             MR. KARADZIC: [Interpretation]

11        Q.   So do we agree that this was not envisaged as an operation, just

12     combat activities with the limited task.  "OP number" means operative

13     number, not number of the operation.

14             JUDGE KWON:  Can you assist us, Mr. Butler?

15             THE WITNESS:  Sir, I -- I guess it's a linguistic issue

16     between -- as I've testified, between what I consider an operation and

17     what Mr. Karadzic considers an operation.  Again from my perspective,

18     that's the beauty about military orders.  It means what it says and it

19     says what it means for clarity's sake.  Whether or not it's a -- a combat

20     action or whether it's an operation and what that means certainly doesn't

21     change my view of what the Krivaja 95 order is about.

22             JUDGE KWON:  Very well.

23             MR. KARADZIC: [Interpretation]

24        Q.   Now I see what deceived you.  OP 1 is the operative number of the

25     document, number one in the set of documents expected during this action.

Page 27716

 1     This abbreviation OP means operative number.  This is the first document

 2     in a series expected to follow from this action.

 3             Do you now understand that this was not conceived or called an

 4     operation, but I understand the translation put you on the wrong track.

 5        A.   We're just going to have to agree to disagree on that particular

 6     terminology issue, sir.

 7             THE ACCUSED: [Interpretation] Thank you.  Your Excellency, what's

 8     the situation with time?

 9             JUDGE KWON:  We will adjourn for today and resume tomorrow at

10     9.00.

11                           --- Whereupon the hearing adjourned at 3.31 p.m.,

12                           to be reconvened on Friday, the 20th day

13                           of April, 2012, at 9.00 a.m.