Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9025

1 Friday, 23 March 2001

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.25 a.m.

5 JUDGE RODRIGUES: [Interpretation] Good morning, ladies and

6 gentlemen; good morning to the technical booth and the interpreters; good

7 morning to the Registry staff, the counsel for the Defence and the

8 Prosecution; good morning, General Krstic.

9 We are here to take up our proceedings. We are in open session,

10 and we're going to have the witness shown in. The witness is from

11 yesterday.

12 Yes, Mr. Harmon.

13 MR. HARMON: Mr. President, good morning; good morning, Your

14 Honours; and good morning, Counsel.

15 This witness was testifying yesterday in private session.

16 JUDGE RODRIGUES: [Interpretation] Okay. Let us move into private

17 session then.

18 [Private session]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

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Page 9031

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [Open session]

12 JUDGE RODRIGUES: [Interpretation] I should like to take advantage

13 of this opportunity, without entering into the debate, that we ought to be

14 mindful of the fact that this is an international trial, and very

15 frequently national systems are not applicable here, simply speaking. And

16 according to the Statute, national laws are not applicable here. They can

17 be used to interpret our Statute. But having said that, let me give the

18 floor to Mr. Visnjic, because I think that there has been something new

19 presented by Mr. Harmon. Please continue.

20 MR. VISNJIC: [Interpretation] Mr. President, I should like to take

21 advantage of this opportunity to refer to what Mr. Harmon said a moment

22 ago, but I would try to do that by linking it up to the concrete situation

23 we find ourselves in. Perhaps the Prosecution finds themselves in a

24 difficult position when the Prosecution did not have this previous

25 statement of the witness. But General Krstic did give his statement, in

Page 9032

1 which he speaks about these circumstances and presents his views and

2 positions, and I think at one point, when asked by Mr. Ruez, when asked

3 whether he would repeat that under oath, he said he would. So General

4 Krstic gave that statement before the beginning of this trial, before the

5 trial went ahead.

6 So the Prosecution cannot put itself in -- cannot say that it was

7 surprised by developments and that it was not able to foresee that the

8 Court would need all the evidence relating to the facts and the

9 circumstances. And in that sense, the Defence does not consider that the

10 Prosecution was duty-bound to envisage in advance every evidence that

11 could appear in the case in-chief. Quite the contrary, the Defence

12 considers that this particular piece of evidence was highly foreseeable,

13 bearing in mind that General Krstic, before the start of trial, in actual

14 fact, presented his position with regard to these facts and

15 circumstances. He stated his views. And this also refers to some of the

16 other facts that are the subject of evidence in the Prosecution's

17 rebuttal, but I would just like to adhere to this particular fact and

18 circumstance for the moment.

19 Therefore, the tension that was mentioned by the Prosecutor as

20 existing and linking that tension up to their efforts to present their

21 evidence, I think in this particular case do not hold water because

22 General Krstic has, in fact, laid open his position before the case

23 in-chief went ahead. So the Prosecutor had sufficient time and should

24 have had sufficient evidence at that time, might I say, although I don't

25 want to enter into that realm, but he was able to foresee the further

Page 9033

1 running of the proceedings, bearing in mind General Krstic's initial

2 statement. So I do not feel that the Prosecution was taken by surprise in

3 any way by the position taken by General Krstic or the position of the

4 Defence either, in view of the cross-examination which, in fact, went to

5 overrule the facts that the Prosecution put forward.

6 What I wish to say, on the other hand, is that the indictment --

7 that is to say that the Defence is faced with tension now because suddenly

8 we have a certain quantity of evidence and exhibits which should have been

9 used in the case in-chief, and now that enormous quantity of material and

10 evidence is placing us in -- is taking us back to something that we

11 thought we had gone through a long time ago. So they're taking us back to

12 the case in-chief. And this kind of conduct and behaviour is precisely

13 the kind that will make it difficult for us to arrive at the end of the

14 trial, because the Prosecution can continue unearthing new evidence, and

15 the positions were clear from the beginning with respect to the Defence

16 and the Prosecution.

17 I can only envisage the Prosecution's disquiet in one case, that

18 is to say, had the Defence not stated its positions but kept silent and

19 waited for the Prosecution to present its evidence, but we had quite the

20 reverse situation, because from the very beginning, our client made

21 statements as to facts and circumstances. So the Prosecution was left in

22 no doubt as to what will happen in the case in-chief. And quite the

23 reverse; the Defence considers that the Prosecution did present evidence

24 precisely on the basis of what General Krstic had said and that in that

25 sense, it narrowed down the quantity of evidence and not expanded it.

Page 9034

1 And let me remind the Trial Chamber of the evidence put forward

2 with respect to the grave sites and certain facts and circumstances which

3 it was quite evident that on the basis of General Krstic's statement we

4 did not contest. We never contested that certain things took place. It

5 was just the circumstances, perhaps, but some facts were never contested

6 from the very beginning by us.

7 On the other hand, with respect to the facts and circumstances

8 regarding the conversation, whether the General became Commander on the

9 14th or 13th, I think that he stated this quite clearly in what he said

10 and in fact opened his evidence on that part so that the Defence had a

11 very clear-cut situation because we had the statement from the General

12 himself.

13 Thank you. I have nothing more to add.

14 JUDGE RODRIGUES: [Interpretation] In principle, we should bring

15 this to a close, this debate to a close. We did not envisage having a

16 debate on this issue at this point, but as we have opened the debate

17 already, I'm going to give the floor for the last time to Mr. Harmon to

18 wind up.

19 MR. HARMON: I would just like to correct the record. We did take

20 a statement from General Krstic - it has been admitted as an exhibit - and

21 an examination of that statement will reveal no description of any

22 ceremony that took place on the 13th of July or the 14th of July. The

23 first time a ceremony was raised in this trial was during the

24 cross-examination -- during the direct examination of the accused, when he

25 described a ceremony where General Mladic appointed him Commander, and

Page 9035

1 then he limited it, of the Zepa operation. So the first time that was

2 raised was in the direct examination of the accused.

3 The evidence that is being put in goes to two issues, one, the

4 general timing; but, two, it directly contradicts what General Krstic

5 testified under oath about a ceremony that took place at Vlasenica on the

6 13th of July.

7 So I want the record to be perfectly clear as to when the issue of

8 the ceremony itself was presented. It was presented in the Defence case

9 for the first time. Thank you.

10 JUDGE RODRIGUES: [Interpretation] Now one final word,

11 Mr. Visnjic.

12 MR. VISNJIC: [Interpretation] Mr. President, just one sentence,

13 continuing on from Mr. Harmon.

14 The Defence wishes to stress another fact, and we'll leave it to

15 the Trial Chamber to judge, but General Krstic, in his statement, directly

16 stated that he became Commander at a ceremony which occurred on the 20th

17 or the 21st in the restaurant called Jela. So the Defence considers that

18 that was sufficient basis for the Prosecution to contest that fact in its

19 case in-chief.

20 Yes. That was in the statement given to Mr. Jean-Rene Ruez, on

21 the 18th and 19th of February, 2000, which means before trial, for

22 purposes of the record.

23 JUDGE RODRIGUES: [Interpretation] Very well, then. Thank you.

24 We're not going to rule on the admission of this evidence which has been

25 tendered by Mr. Harmon at this point. As you know, the Chamber will

Page 9036

1 address the issue of several pieces of evidence in order to rule on this

2 matter.

3 Do we have another witness, Mr. Harmon?

4 MR. HARMON: Yes. Mr. McCloskey will take the next witness.

5 MR. McCLOSKEY: Good morning, Mr. President and Your Honours. The

6 next witness is a Captain Koster. He is a Dutch officer that testified at

7 the Rule 61 hearing, and we played his video, and just as our background

8 road map, he will be called on to rebut the testimony of Witness DB, who

9 [redacted] who

10 testified that he drove through Potocari on the evening of 11 July with

11 his COMS van and saw a large crowd of people around the compound and saw

12 VRS soldiers mixed within it, and this witness will be called just very

13 briefly, in a few brief questions, to rebut that. And the principal parts

14 of Witness DB's testimony we intend to rebut are on transcripts page 7256,

15 7080 through 7085, and 7255 through 7259, and 7319, and with that, I think

16 we are ready to call this witness.

17 If we could have the exhibit, the aerial exhibit, that we had set

18 aside for him. I hope we've got the ELMO up and going.

19 JUDGE RODRIGUES: [Interpretation] Mr. Usher, would you please

20 bring in the witness.

21 MR. McCLOSKEY: You should have an exhibit, an aerial exhibit.

22 [The witness entered court]

23 JUDGE RODRIGUES: [Interpretation] Good morning, Captain Koster.

24 Can you hear me?

25 THE WITNESS: Yes, I can.

Page 9037

1 JUDGE RODRIGUES: [Interpretation] Would you please read the solemn

2 declaration that the usher is giving you.

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

4 whole truth, and nothing but the truth.

5 JUDGE RODRIGUES: [Interpretation] Thank you, you may be seated.


7 JUDGE RODRIGUES: [Interpretation] Thank you very much, Captain,

8 for having come here. You will first be answering questions that will be

9 put to you by Mr. McCloskey.

10 Mr. McCloskey, your witness. Please proceed.

11 MR. McCLOSKEY: Thank you, Mr. President.

12 Examined by Mr. McCloskey:

13 Q. Captain Koster, what is your current position?

14 A. My current position is being a company commander of a 13th Air

15 Mobile Battalion.

16 Q. And were you in the Dutch army back in July of 1995, stationed in

17 the Potocari compound in Bosnia?

18 A. Yes, I was, sir.

19 Q. And the Court is familiar with your initial testimony that you

20 gave some time ago, so we won't go into a whole lot of background on that,

21 but can you tell us on July 11th what your particular assignment was in

22 the afternoon, evening hours?

23 A. Yes, I can. My assignment was actually being the commander of the

24 troops who were outside the compound and guarding and guiding the

25 refugees.

Page 9038

1 Q. And how many troops did you have under your command?

2 A. Approximately 50, sir.

3 Q. And we're putting Exhibit 769 on the ELMO. I don't know if this

4 is going to the outside, but I notice the witness's face is distorted,

5 which is not necessary. As I'm searching to find the ELMO, I notice

6 that.

7 JUDGE RODRIGUES: [Interpretation] The witness will testify in

8 public, so appropriate measures need to be taken in that respect.

9 THE REGISTRAR: It is not distorted. You just pushed the distort

10 button. That's why. The technician just informed me.

11 JUDGE RODRIGUES: [Interpretation] I think that the issue has been

12 resolved now. However, there seems to be a little problem. When we are

13 watching the video, we see that we are in public session, but when we

14 press the button for the ELMO, we see a distorted image on the ELMO. We

15 should like to see the video and not the distorted image of the witness.

16 THE REGISTRAR: The first button.

17 MR. McCLOSKEY: The first button, I have a nice shot of Judge

18 Rodrigues. The second one I have a distorted shot --

19 JUDGE RODRIGUES: [Interpretation] Madam Registrar -- yes, that's

20 what we can see, on the second button, the video, but we would like to

21 have the ELMO, the overhead projector, which is the second button, and on

22 the second button there seems to be nothing.

23 MR. McCLOSKEY: I know when we switch courtrooms these things

24 happen. I requested prior to trial that these be looked into, and I hope

25 we could finish. We can certainly go through testimony --

Page 9039

1 JUDGE RODRIGUES: [Interpretation] Yes, we have it now. Yes, but

2 we have lost a lot of time. Mr. McCloskey made sure that the equipment is

3 checked, but we still wasted a certain amount of time. But without much

4 further ado, let us proceed now.

5 Mr. McCloskey, I think that we are ready.

6 MR. McCLOSKEY: Thank you.

7 Q. Captain Koster, if you could just take a look at this exhibit, and

8 there's a pointer there. Do you recognise this scene?

9 A. Yes, I do, sir.

10 Q. And could you, with your pointer, point out the area where you

11 were stationed and your troops were responsible for the afternoon or

12 evening hours of July 12th, 1995.

13 A. Yes, sir. For me myself, I was positioned in this particular

14 place.

15 Q. Near the crowd that's marked "people"?

16 A. Yes, that's correct, sir. Also we had troops over here. We had

17 troops --

18 Q. You need to sort of indicate, if you could, so we can tell from

19 the record where you're talking about, just by something on the photo.

20 A. Okay. Troops guarding the people, troops in the vicinity of the

21 holes of the former bus station, and also troops here, at the end of the

22 road.

23 Q. All right. That would be about how many metres down from where

24 the crowd of people is in this shot?

25 A. From this position to there, sir?

Page 9040

1 Q. Yes. From the people down there.

2 A. I guess it's about a hundred -- two hundred metres, I guess.

3 Q. And what hours were you on duty in that area on the

4 afternoon/evening of July 11th?

5 A. Eleventh. From the 11th, the afternoon, sir, I was on duty until

6 approximately 8.00 p.m., and then I went up to the compound for

7 approximately two hours, and then returned to my position, where I stayed

8 the whole night, the morning, the afternoon of the 12th of July, and also

9 the evening of the 12th of July.

10 MR. McCLOSKEY: Perhaps I made a mistake and I asked him about the

11 12th the first time. I meant the 11th, which he has responded to.

12 Thank you, Captain Koster.

13 Q. Now, while you were gone from the area briefly on the evening of

14 the 11th, did you have a deputy that was in command while you were gone?

15 A. Yes, sir, he was.

16 Q. And to your knowledge, on the afternoon or evening hours of July

17 11th, was there any vehicular traffic from the VRS military along that

18 road?

19 A. No, sir. I have not seen any vehicle movement, VRS vehicle

20 movement on that road, and neither I was reported to by my deputy on the

21 11th of July.

22 Q. Was there some sort of roadblock or checkpoint there?

23 A. Yes. We installed sort of a roadblock to guide and to guard the

24 refugees, so a vehicle couldn't get through without being reported to me,

25 without being seen by me.

Page 9041

1 Q. Would this have been a significant event if a VRS vehicle had come

2 through this area on July 11th?

3 A. Yes, sir.

4 Q. Did you notice any VRS soldiers in this area around where the

5 people are, or anywhere around this compound, around this road, on the

6 afternoon or evening of July 11th?

7 A. Not on July 11th, sir.

8 Q. Would that have been a significant event if VRS soldiers had been

9 amongst those people or in this area?

10 A. Yes, sir. I would have seen them, I would have been reported, and

11 also I guess the refugees would have panicked. So it's not been reported

12 and I have not seen them.

13 Q. Can you be sure that no VRS vehicle came through this area and no

14 VRS soldiers were in this area on the evening or afternoon of July 11th?

15 A. Yes, I'm sure about it, on the 11th; yes, sir.

16 Q. And how about on the 12th? What was the scene on the evening

17 hours of the 12th, perhaps between 6.00 p.m. and 10.00 p.m.?

18 A. In the evening we were told by the VRS that we had to clear the

19 road from the refugees. The refugees had to stay off the road. So we

20 did. We kept the people off the road. And that's about it, sir.

21 Q. So did you lose control of the road on the 12th?

22 A. Yes, we did, sir. It was in the afternoon when the VRS started to

23 transport the refugees. Then we lost control of the road, sir.

24 Q. About what time in the afternoon did you lose control of the road?

25 A. Well, the VRS arrived approximately 1.00 in the afternoon, and I

Page 9042

1 guess it would be one hour, one and a half later, then we lost control of

2 the road.

3 Q. So in the evening hours of July 12th, could there have been VRS

4 traffic along that road in this area on the diagram by the "people"?

5 A. Yes, sir.

6 Q. And were there VRS soldiers in this area on the evening hours of

7 July 12th, around where the "people" are marked?

8 A. Yes, sir, there were. In the early evening and later on there

9 were VRS soldiers. I've seen some trucks and some jeeps passing by

10 and -- that's about it, yeah.

11 MR. McCLOSKEY: Thank you. I have no further questions.

12 JUDGE RODRIGUES: [Interpretation] Thank you very much,

13 Mr. McCloskey.

14 For the Defence, Mr. Petrusic.

15 Captain Koster, you will now be answering questions put to you by

16 Mr. Petrusic, who is representing the Defence in this case.

17 You have the floor, Mr. Petrusic.

18 MR. PETRUSIC: [Interpretation] Thank you, Mr. President.

19 Cross-examined by Mr. Petrusic:

20 Q. Captain, in the evening of the 19th -- that is, the 11th of

21 July - I apologise - between 1900 and 2100 hours, were you personally

22 present on the road which we can see here on this aerial photograph, that

23 is, the road through Potocari?

24 A. Well, sir, I went to the compound at approximately 2000 hours, so

25 until that time, I was patrolling in that area near and on the road, yes,

Page 9043

1 sir, until 2000 hours.

2 Q. Was there any barricade, any obstacle set up on this road which

3 prevented the vehicles from passing through?

4 A. Yes. We made a sort of a roadblock, just by military persons, to

5 provide the refugees going up to Bratunac. That is correct, sir.

6 Q. I don't know whether I have received the correct interpretation.

7 You said that you had set up a kind of roadblock in order to enable

8 refugees to go to Bratunac; is that what you said, Captain?

9 A. That's what I said, yes, sir.

10 Q. Captain, this Chamber has heard Witness DB, who, on page 7078 of

11 the transcript, stated as follows, that is, that the forward command post

12 at Pribicevac was abandoned by him around 1900, or sometime later.

13 And further on, on page 7081, in response to a question put to him

14 by the Defence counsel whether he had passed through Potocari, he stated,

15 "Yes."

16 In response to a further question as to what had happened to the

17 members of UNPROFOR, whether they prevented anyone from passing through

18 Potocari, he stated, "I did not encounter any control, or anything

19 similar, in Potocari itself."

20 And then in the next question, as to whether he personally had

21 seen civilians in the town of Potocari, he stated, "Yes. In the town of

22 Potocari, both on the left and the right side of the road, I saw a huge

23 number of civilians."

24 Now, you are telling us that not a single vehicle, not a single

25 soldier of the VRS, had passed through the area in that period of time.

Page 9044

1 Is it your testimony that this witness, whose statement I have just read

2 to you, his testimony that was given before this Chamber, are you saying

3 that this witness was not telling the truth?

4 MR. McCLOSKEY: I object to that question. It is inappropriate.

5 JUDGE RODRIGUES: [Interpretation] Yes.

6 MR. McCLOSKEY: It can be restated and have the same meaning,

7 clearly.

8 JUDGE RODRIGUES: [Interpretation] Yes. Mr. Petrusic, would you

9 please rephrase your question.

10 MR. PETRUSIC: [Interpretation]

11 Q. Captain, in relation to your statement, to your testimony, is it

12 possible that a vehicle of the VRS carrying several soldiers could have

13 passed through Potocari on the 11th of July after 1900 hours?

14 A. No, sir, because they had to move up through the crowd, and they

15 had to pass the so-called roadblock, and I would have known. I informed

16 my former colleague to make sure what I am telling, and it has never been

17 reported to me that a vehicle moved up on the 11th of July, sir.

18 Q. So you didn't receive any report on the movement of that

19 particular vehicle?

20 A. No, sir, not when I was there and not when I came back.

21 MR. PETRUSIC: [Interpretation] Mr. President, this concludes my

22 cross-examination of this witness. Thank you.

23 JUDGE RODRIGUES: [Interpretation] Thank you very much,

24 Mr. Petrusic.

25 Any additional questions, Mr. McCloskey?

Page 9045

1 MR. McCLOSKEY: No, Mr. President.

2 JUDGE RODRIGUES: [Interpretation] Thank you.

3 Judge Fouad Riad? Madam Judge Wald?

4 Captain Koster, we don't have any further questions for you.

5 Thank you very much once again for having come here. We wish you a lot of

6 success in your work.

7 It seems that our usher has left the room. Here, he's back.

8 Mr. Usher will now show you out of the courtroom. Thank you.

9 [The witness withdrew]

10 JUDGE RODRIGUES: [Interpretation] Mr. McCloskey, what happens

11 next?

12 MR. McCLOSKEY: Mr. President, by the silence of Defence counsel,

13 I see we do not have any objection as to the rebuttal evidence here, so I

14 take it there is no objection as to the rebuttal -- this coming in as

15 appropriate rebuttal evidence. And if there is, I would obviously like a

16 chance to argue it; and if there is not, I can go on to the next issue. I

17 only note that because we've been getting oral challenges to these things

18 without notice before, and I just want to be very clear that this is at

19 rest at this time.

20 JUDGE RODRIGUES: [Interpretation] No, Mr. McCloskey. Please

21 abstain from commentary; that is more appropriate. The question is, this

22 exhibit, 769, Exhibit 769, was it a new one or has it already been

23 tendered?

24 MR. McCLOSKEY: That is an old exhibit that's already in,

25 Mr. President.

Page 9046

1 JUDGE RODRIGUES: [Interpretation] Very well. Thank you. So you

2 don't wish to have it admitted, that is to say, there's no -- and there's

3 no reason to go into comments of the kind you made.

4 I don't know whether the Defence would like to say anything at

5 this point.

6 MR. PETRUSIC: [Interpretation] Mr. President, with respect to the

7 witness who has just completed his testimony, may I say that according to

8 the opinion of the Defence, this is a classical example of a rebuttal

9 witness.

10 JUDGE RODRIGUES: [Interpretation] Very well. Let us end the

11 debate there, and we shall reserve allegations for the end of the

12 proceedings.

13 Mr. McCloskey, who do you have for us next?

14 MR. McCLOSKEY: Mr. President, we have Mr. Butler, who we're all

15 familiar with, but before we get to Mr. Butler, I had a clarification of a

16 couple of exhibits that we put off the other day, and I hope I can make

17 some sense out of this.

18 It has to do with the three conversations of August 2nd

19 regarding -- General Krstic and Popovic were two of the conversations, and

20 then there was a third conversation between General Krstic and someone

21 named Mandzuka, and that Mandzuka intercept was Exhibit 862A. And as I'd

22 given the Court an outline at the various times we received this material,

23 I just have one clarification.

24 The Mandzuka exhibit, 862A, was a conversation that was in the

25 notebook, Exhibit 748, which was a notebook that had the so-called "Kill

Page 9047

1 them all," and that was a notebook that we had for quite awhile. This

2 particular conversation was not called to our attention until Mr. Harmon

3 found it earlier this week, and it's unclear when it was actually dated

4 and in the database. But just to clarify that last conversation, because

5 it is, I believe, the subject of the Defence motion.

6 So that's the end of that clarification.

7 JUDGE RODRIGUES: [Interpretation] And what action comes next?

8 MR. McCLOSKEY: I can give a brief road map of Mr. Butler's

9 testimony and some of the points that he'll rebut, prior to his arrival.

10 There are some six or seven points.

11 JUDGE RODRIGUES: [Interpretation] Perhaps, Mr. McCloskey, we could

12 hear the witness at this point. Shall we hear the witness, and the

13 witness can explain all that us to?

14 MR. McCLOSKEY: He basically understands what the legal team is

15 asking him to rebut, so I think he can -- he will do that. However, he's

16 not going to be able to give you our legal view of that, but he knows the

17 areas that we're talking about.

18 JUDGE RODRIGUES: [Interpretation] Shall we have the witness

19 brought in?

20 MR. McCLOSKEY: There's one other small issue that I've discussed

21 with the Defence. Mr. Butler will be testifying about some small pieces

22 of hearsay evidence that will clarify some of his prior testimony and that

23 go to some issues that I've spoken to the Defence about, that they didn't

24 have any objection to, and it will actually help make the procedures go

25 smoother and actually -- so they don't have to bring in witnesses on

Page 9048

1 surrebuttal.

2 JUDGE RODRIGUES: [Interpretation] May we hear the Defence?

3 MR. VISNJIC: [Interpretation] Mr. President, the Defence has

4 understood Mr. Butler's testimony in two parts. One part would be the

5 refuting of certain facts which the Defence put forward in its case, and

6 the second part, let us call it exculpatory material that the Prosecution

7 arrived at at later stage and which it wishes to present in one way. Of

8 course, it will be up to the Trial Chamber to assess this, whether that is

9 in order.

10 But Mr. McCloskey said that Mr. Butler will be speaking about

11 seven topics, and in the summary of his statement, I have four topics.

12 Now, that four plus three additional topics, or is it seven subjects,

13 seven topics in the rebuttal part of the Prosecution? And I'd like to ask

14 Mr. McCloskey to tell us briefly about what Mr. Butler is going to contest

15 in his testimony. What he's going to rebut, in fact.

16 JUDGE RODRIGUES: [Interpretation] Mr. McCloskey.

17 MR. McCLOSKEY: Mr. President, my numbering system included these

18 issues of what counsel has referred to as exculpatory. We would, of

19 course, disagree with that, and it was not my intention to be putting this

20 material up as exculpatory, but it was my intention to save time and

21 effort on all parties. If counsel chooses us not to do this, they may

22 call these witnesses that we've alerted them to, and I'm satisfied with

23 leaving it at that. If he would like to go with our original agreement, I

24 would go with that too. I thought we had an agreement, and I may have

25 been mistaken.

Page 9049

1 JUDGE RODRIGUES: [Interpretation] Mr. Visnjic, go ahead.

2 MR. VISNJIC: [Interpretation] Mr. President, my comment did not

3 refer to this addition that Mr. McCloskey, Mr. Harmon, myself, and my

4 colleague agreed upon. My understanding was with respect to what was

5 given in the summary of what Mr. Butler will be testifying to.

6 JUDGE RODRIGUES: [Interpretation] Yes. Those are the points on

7 which the witness is going to testify. I think we are not hearing each

8 other. It is a conversation between two deaf sides.

9 So are we talking about the points that the witness is going to

10 talk about, testify to?

11 MR. VISNJIC: [Interpretation] That's right, Mr. President.

12 JUDGE RODRIGUES: [Interpretation] There you have it,

13 Mr. McCloskey.

14 MR. McCLOSKEY: I think Mr. Visnjic and I agree with each other

15 and have an agreement, so I'll just take that as it goes and explain what

16 the rebuttal points will be.

17 The first point would go to rebuttal testimony related to the

18 testimony of Professor Radinovic on transcript 7880 through 7882, relating

19 to directives 70 and 71. And if you recall, those are the directives -

20 one's signed, I believe, by Karadzic and the other by Mladic - the first

21 one regarding the Drina Corps directive to make life unbearable for the

22 people in the enclave. Professor Radinovic talked about those two and

23 their relationship with each other. Mr. Butler would like to rebut some

24 of the testimony that Radinovic had regarding that. That's number one.

25 Number two also has to do with Professor Radinovic who testified

Page 9050

1 on 782 -- excuse me, transcript 7832 through 7833, and 8107 through 8114,

2 and this is a brief subject where he discussed that the objectives of the

3 VRS in 1992 and 1993 were purely defensive, and he also stated at some

4 point in the testimony, and I don't have the exact transcript, that

5 refugees move with war and that that was not a result of any particular

6 policy or practice by the VRS.

7 We have recently identified another directive from the VRS signed

8 by General Mladic that will rebut these particular contentions of

9 Professor Radinovic. This was something that -- it's a directive number 4

10 from -- I believe it's November of 1992, that was obtained among thousands

11 of documents a few years ago and was just recently translated into

12 English. So we were allowed to identify it, and we noticed that -- we

13 believe that it clearly rebutted what Professor Radinovic was referring

14 to.

15 Then I was going to ask Mr. Butler to give his interpretation of

16 the intercept mentioned by the Defence just recently between Zivanovic and

17 Bogicevic to clarify his view of that.

18 And then we have an issue directly rebutting the testimony of

19 General Krstic, where, in response to questions by Judge Wald, he stated

20 he was not aware of any prisoners being taken on 12 July by the VRS. And

21 we have identified two documents from the Zvornik Brigade that shed light

22 on that issue, one intelligence document dated 12 July that is a report to

23 the Drina Corps Command that talks about this issue. These were documents

24 that Mr. Butler missed in his analysis and were identified somewhat

25 recently as being direct rebuttal to this very important point.

Page 9051

1 And then, lastly, it was my intention, if the Court deems

2 appropriate, to ask Mr. Butler about his analysis of the "Kill them all"

3 conversation, if this issue is still of concern to the Court and if they

4 would like to hear from Mr. Butler, as they did from Ms. Frease on that

5 point. If that issue is put to bed, I don't need to ask him, but if

6 counsel intends to and the Court is interested, I can certainly ask him

7 about those issues also.

8 And that's it. And oh, just -- we have the representative from

9 the United States [Realtime transcript read in error "United Nations"]

10 that would also, as before, would like to sit in with the testimony of

11 Mr. Butler. We have talked about that, and the Defence has no problem

12 with that.

13 JUDGE RODRIGUES: [Interpretation] It said in the interpretation

14 "the representative of the United Nations," but I think it was "United

15 States," was it not? So I think we all agree on that point. Yes.

16 Mr. Visnjic, I think you've heard practically the whole testimony

17 of Mr. Butler. Now, do you know the points that Mr. Butler is going to

18 testify to?

19 MR. VISNJIC: [Interpretation] Mr. President, I think we're going

20 to have to dwell on this question, because none of those points,

21 conditionally speaking -- that is to say, most of the points stated by

22 Mr. McCloskey do not exist in the summary that the Defence has received

23 from the Prosecution as to Mr. Butler's testimony, and it is dated the 8th

24 of January, I think, the document dated the 8th of January.

25 Now I am going to say what Mr. Butler is expected to testify

Page 9052

1 according to what we have received. Mr. Butler will testify to the fact

2 that Vinko Pandurevic was appointed Commander of the Tactical Group

3 deployed for the Srebrenica operation - that's one point - and that he

4 will talk about tactical groups generally.

5 The second point, it says Mr. Butler will present the other orders

6 identifying the operative groups and tactical groups and will explain

7 their importance.

8 The third point, according to this document, Mr. Butler will

9 identify the tank in Sandic Polje.

10 Point 4, Mr. Butler will explain two intercepts of the 2nd of

11 August between General Krstic and Colonel Popovic.

12 According to what Mr. McCloskey has just told us, Mr. Butler will

13 be talking about directives 7.0 and 7.1, which is a subject that we are

14 absolutely not prepared for. According to what Mr. McCloskey has told us,

15 Mr. Butler will also speak about the goals and targets of the Army of

16 Republika Srpska. That is a topic that I'm hearing for the first time

17 now.

18 Another thing Mr. McCloskey said: Mr. Butler will be interpreting

19 radio messages, Zivanovic/Bogicevic, and I can only conditionally say that

20 it could be the subject of some kind of rebuttal, although that message

21 was stressed by the Defence and with respect to time, the time when it was

22 recorded, and not with respect to its contents.

23 Again, Mr. Butler will -- it seems that he will be speaking about

24 some prisoners of the 12th of July. That is something I'm hearing for the

25 first time once again here, and an analysis of the "Kill them all"

Page 9053

1 statement would be another question that would be raised by the

2 Prosecution or Defence.

3 So at this point in time we're hearing for the first time that

4 Mr. Butler is actually going to testify about three or four of the five

5 points that Mr. McCloskey mentioned, and not four or all four points that

6 were indicated to us in the summary of his statement. Thank you.

7 JUDGE RODRIGUES: [Interpretation] Mr. McCloskey, let us go to the

8 testimony. What is the testimony about? Is what Mr. Visnjic has just

9 said true? Is that correct? I have read your summary and I have

10 identified the points that Mr. Visnjic has just enunciated. I don't have

11 your witness list and the summaries here, but I remember that. Would you

12 like to reply?

13 MR. McCLOSKEY: Yes, Mr. President, and --

14 JUDGE RODRIGUES: [Interpretation] That is to say, why you have

15 modified the contents of the testimony or the summary of the testimony.

16 MR. McCLOSKEY: Mr. President, I will apologise. Mr. Visnjic is

17 largely correct. The material -- the summary that reflects most of this

18 stuff must not have been transferred to the Defence, and I apologise. I

19 meant it to be. I've discussed these matters with counsel -- some of the

20 matters with counsel. For example, the operative directive by Mladic,

21 we've provided that to them well in advance and we've discussed it, and so

22 they were fully aware that that was an issue.

23 I've also -- we've also provided them the two July 12th documents

24 that I've referred to and as part of the rebuttal evidence, and the parts

25 about 7, 7.1 were in my initial summary, which I have apparently failed to

Page 9054

1 provide to the Defence, and I apologise, so they do not have any notice of

2 that. And the intercept between Bogicevic and Zivanovic was just as a

3 result of the most recent Court material.

4 So I do apologise. They have not had the part about 7 and 7.1,

5 and we can disregard that. It's not a major point. They have had the

6 part about operative directive of General Mladic. We have discussed that

7 with them. They should have been prepared for it, though I do fully

8 acknowledge they were not given a written -- which was our practice when

9 these things happened, to give them a supplemental, and we did not do

10 this. I'm sorry. These last few days have been hectic, and that is my

11 fault.

12 So that leaves us with the two critical parts of Mr. Butler's

13 rebuttal testimony, the July 12th documents and the operational directive,

14 which the Defence has had as part of our rebuttal case, were given

15 specifically as part of our rebuttal case. I've discussed the operative

16 directive briefly with them, but he's absolutely correct; I did not

17 apparently submit the supplemental witness statements, which I should

18 have, and I apologise for the Court for this grievous error.

19 JUDGE RODRIGUES: [Interpretation] At all events, Mr. McCloskey,

20 you are fully aware of the fact that the rebuttal ends today, regardless

21 of what can turn up. Now, the Chamber announced a long time ago that your

22 rebuttal will be closed today, so I stand by that. You have raised this

23 issue, something that was not foreseen. It was not foreseen. There was

24 no reason to modify.

25 So let me ask the Defence: Do you accept the apologies of

Page 9055

1 Mr. McCloskey and would you give him the opportunity of having his

2 rebuttal on the questions he has announced, or do you maintain your

3 position as to the initial motion, your initial motion?

4 MR. VISNJIC: [Interpretation] Mr. President, let me say that I

5 have absolutely been taken by surprise and I am not prepared to tackle any

6 topics that are not the subject of this summary. I say this with all

7 honesty and frankness. Mr. McCloskey said he might have talked to us

8 about the directive issued by Mr. Mladic. Perhaps that was two months

9 ago, when some material was given to us - I don't remember - because we

10 keep getting documents and material from the Prosecution, so I don't know

11 when we got this directive. But just like the Prosecution does, I placed

12 it on a shelf, and I knew that this would not be the subject of a debate

13 of any kind. It is a document of several hundred pages. I didn't want to

14 waste my time on that massive pages, because it wasn't listed on the

15 topics to be discussed today.

16 Now, how can I be prepared for something that was not written

17 down? And I think that is totally out of order, in view of the time that

18 we have and the speed that we need, the schedule that we have placed

19 before us. So we are absolutely unprepared to proceed except on the

20 topics that were included in the summary given to us by the Prosecution,

21 so that I cannot accept this, not because I wouldn't want to and don't

22 want to, but because I am not prepared to do so.

23 Yesterday and the day before, the Prosecution failed to inform us

24 of these topics then either. I just happened to ask by chance

25 Mr. McCloskey as to the other part, the Sandic tank, the tank at Sandici

Page 9056

1 [as interpreted]. I wanted to clear that up and I wanted to clear up

2 whether some of these questions and topics have been dealt with in the

3 case in-chief, which we do with every witness of late. As to this, I am

4 completely taken aback, and it is totally unacceptable for me to proceed.

5 Mr. President, I have just been informed that General Krstic has

6 asked for a break. If we might take a break for a while.

7 [Trial Chamber confers]

8 JUDGE WALD: Just one question, Mr. Visnjic. Leaving out the

9 first two topics which dealt with the Radinovic testimony and the

10 accompanying new Mladic directive, I'm not sure I understand why, if

11 Butler is simply going to give us his interpretation of the

12 Zivanovic/Bogicevic intercept, which you yourself brought to our

13 attention, and he's just going to give us his analysis of the August 2nd

14 "Kill them all," which we've all talked about ad infinitum, I'm not quite

15 sure why you need too much time to prepare for that. And I have more

16 question about, but some doubt about, whether or not, if the specific

17 rebuttal evidence to the question of prisoners being taken and General

18 Krstic's knowledge on the 12th, if you've had those documents. I mean, is

19 it true you feel that you can't even cross-examine Butler on his

20 interpretation of these intercepts, which we've talked about continually

21 over the last five days? I understand your Radinovic arguments.

22 MR. VISNJIC: [Interpretation] Judge Wald, to respond to your

23 question: On the interpretation of the radio messages

24 Zivanovic/Bogicevic, and an analysis of the "Kill them all" statement,

25 I -- that is to say, I just was conditionally opposed to the first

Page 9057

1 conversation.

2 As to the second, I said that perhaps the Defence could take

3 advantage of this opportunity to ask Butler some questions about that. So

4 that particular conversation -- it is not that we are not -- that we are

5 absolutely not prepared for that particular conversation.

6 As to the prisoners of the 12th of July, there is a state of fact

7 there, and we did not check this out, in view of the documents that we

8 have been given, and they are not in line with what Mr. Butler is going to

9 testify to. So I would put that in the same basket as the Professor

10 Radinovic testimony.

11 As to the other two conversations, I think that we could avail

12 ourselves of the presence of Mr. Butler for that, and then later on the

13 presence of our own expert, who would go into an explanation of this

14 situation.

15 JUDGE RODRIGUES: [Interpretation] Let us take a break. I should

16 like to take advantage of the opportunity, if I may, Mr. Visnjic, to

17 correct you. I heard that the calendar was imposed -- you say the

18 calendar was imposed by the Chamber. The calendar was decided after

19 consultation with both parties. So I want to say that, and that is why I

20 spoke of calendar. The calendar was decided by the Chamber, but having

21 held consultations by all parties concerned, which means that it was

22 aligned with all our requirements.

23 I think that the most judicious thing to do now would be to take a

24 pause, and I think this will give a chance to all parties to deliberate.

25 So if you cannot reach an agreement, the Chamber will confer, but let us

Page 9058

1 take a 20-minute break.

2 --- Recess taken at 10.40 a.m.

3 --- On resuming at 11.08 a.m.

4 JUDGE RODRIGUES: [Interpretation] We have a decision. Do you have

5 an agreement?

6 MR. McCLOSKEY: I'm sorry, Mr. President, we tried, as we always

7 have with counsel, and we weren't able to reach an agreement.

8 JUDGE RODRIGUES: [Interpretation] Therefore, we're going to make

9 our decision.

10 The Chamber is hereby rendering its decision regarding the

11 testimony of Mr. Butler. The Chamber understands that Defence has not

12 been notified of a number of questions which the Prosecutor wishes to

13 address now with this witness and, therefore, opposes his testifying on

14 these new issues. However, the Chamber notes that the Defence indicated

15 that it is ready and can accept the fact that Mr. Butler will be speaking

16 about the issue of conversations.

17 The Chamber therefore decide as follows: Number one, the

18 Prosecutor shall be able to ask questions regarding conversations. The

19 Prosecutor could not ask questions of Mr. Butler concerning the existence

20 of prisoners on the 12th of July, 1995, or concerning the deposition of

21 Professor Radinovic. However, to the extent Mr. Butler can make himself

22 easily available and the Defence is, as of now, notified of the questions

23 that the Prosecutor wanted to ask of this witness concerning the relevant

24 issues, in view of that, the Chamber decides that if and only if a certain

25 period of time is found in the week of the 2nd to the 6th of April

Page 9059

1 envisaged for the rejoinder for the Defence and the witnesses of the

2 Chamber, so if there is available time during that week, Mr. Butler may be

3 called to appear once again as a witness and testify about the said

4 issues.

5 You have heard the decision of the Chamber.

6 Mr. McCloskey, are we ready to hear the witness, to have the

7 witness brought in?

8 MR. McCLOSKEY: Yes, Mr. President, and it will be very brief.

9 The one conversation regarding -- that I intended to ask him questions

10 about was the Bogicevic-Zivanovic conversation. The others I hadn't

11 intended, and I hadn't intended to ask him about tactical or operational

12 groups. We had decided that was never relevant, and I don't have those

13 documents. So all I need to ask him about now would be just very briefly

14 on this intercept, and it was just to clarify a simple point in this one

15 intercept.

16 JUDGE RODRIGUES: [Interpretation] Mr. McCloskey, let us hear your

17 examination-in-chief, please. Let us have the witness brought in.

18 Otherwise, we will spend the whole day debating about what are we going to

19 say or hear from the witness. Let us have the witness brought in,

20 please.

21 MR. McCLOSKEY: If we could get Exhibit 862/A prepared. And 86 --

22 well, just 862/A. I'm sorry. That's the wrong exhibit. That's the old

23 one. 884/A.

24 We need also the US representative here.

25 JUDGE RODRIGUES: [Interpretation] Are we ready now to proceed?

Page 9060

1 Mr. Butler, good morning. We already know each other. This

2 testimony will be considered as a continuation of your previous

3 testimony. Let me remind you of what it means. It is a testimony under

4 an oath, and I hope you are aware of it. You may be seated.


6 JUDGE RODRIGUES: [Interpretation] Mr. Butler, you will first be

7 answering questions that will be put to you by Mr. McCloskey.

8 Mr. McCloskey, you have the floor.

9 Examined by Mr. McCloskey:

10 Q. Mr. Butler, could you review Exhibit 884/A, an intercept I believe

11 you are familiar with from the last few days.

12 A. Yes, sir.

13 Q. And if you could, what is your analysis regarding this intercept?

14 How does it fit into your analysis, if it does? And perhaps you could

15 clarify -- just before you get into your analysis, can you tell, in this

16 conversation, where General Zivanovic is speaking from?

17 A. Looking at this intercept within the context of my previous

18 analysis of the intercept events on 15 July 1995, I believe this

19 particular intercept supports the contention that I made that by the early

20 morning hours of 15 July 1995, General Zivanovic is aware that he is no

21 longer commanding the Drina Corps. In that context, looking at the other

22 intercepts and other information that we have, I do not believe that

23 General Zivanovic is in Belgrade, as he says he is in the intercept.

24 Q. And what in particular is it that leads you to believe that

25 General Zivanovic knows he's not in command any more?

Page 9061

1 A. The phrase - and guess put it on the ELMO would be the first

2 way - where he notes that: "At this point I have liberated Srebrenica and

3 now I've got a new duty."

4 Q. And can you remind the Court and the -- this is a 1051, 15 July

5 intercept. Also heard, the intercepts of 15 July between Zivanovic and

6 Colonel Beara immediately prior to the conversation between Beara and

7 Krstic. Where does this fit in in time with those conversations?

8 A. In time sequence, I believe this fits in approximately one hour

9 later.

10 Q. All right. That's all the questions I have on that particular

11 intercept subject.

12 Mr. Butler, you became familiar with the so-called August 2nd

13 "Kill them all" conversation; is that correct?

14 A. That is correct, sir.

15 Q. Approximately when did you first become familiar with that?

16 A. I believe I became aware of its existence, in the audio form that

17 the Office of the Prosecutor had it, would probably be certainly by the

18 spring of 1999. It may have been back earlier that I got an inkling of

19 it, but I couldn't be exactly sure, but certainly no later than the spring

20 of 1999.

21 Q. And did you take some time to review that and analyse that?

22 A. Not at that particular time.

23 Q. Did you at some later time?

24 A. Certainly as I was going into the broad aspect of analysing that,

25 as well as all of the intercepts, and that process would have been the

Page 9062

1 late period of 1999, I believe it would have been. I mean, essentially I

2 got -- the first series of intercepts were coming out of the production

3 and translation phase by May/June 1999 and then through the end of the

4 year. At that point, I reviewed that, as well as hundreds of other

5 intercepts.

6 Q. And this particular intercept was a subject of some debate between

7 yourself, and discussion between yourself, other members of the staff,

8 including the legal staff?

9 A. Oh, absolutely, yes. I mean, it was recognised certainly by me,

10 certainly by the investigative team, and certainly by the legal staff, as

11 an extremely powerful piece of information that, if it could be

12 authenticated, would make an effective exhibit.

13 Q. So what's your analysis of this -- of the meaning and

14 significance of this particular intercept, in your final analysis?

15 A. Within -- the problem in doing a final analysis on that individual

16 exhibit is that when you look at it in context with all of the other

17 exhibits and when you look at it in context with all of the other

18 material, particularly that that was included in my narrative and things

19 of that nature, it's not the type of a piece of information that readily

20 lends itself to my individual analysis in being able to put context to

21 either events on the ground, or other documents, or anything else. In

22 effect, it's a piece of information whose value I, as a military analyst,

23 cannot ascertain along analytical methods. I have my opinion as to what

24 it is, and at the end of the day that's my personal opinion of what it is

25 but it is not an opinion that I could support based on the other

Page 9063

1 information that's available to me.

2 Q. What is your personal opinion?

3 A. My personal opinion is that what you're listening to in that audio

4 intercept is an example of General Krstic giving an illegal order at face

5 value.

6 Q. In your view, was it open to any other interpretation?

7 JUDGE RIAD: I'm sorry. You said "illegal" or -- because the

8 transcript says -- no. It's corrected now. Thank you.

9 A. Yes. Unlawful order, sir. Illegal. Is it open to another

10 interpretation? Absolutely.


12 Q. You were generally not asked for your opinion regarding mental

13 states or legal elements, were you, Mr. Butler?

14 A. I was not asked, and had I been asked, I would have shied away

15 from that.

16 Q. All right. Is there another possible military interpretation of

17 this?

18 A. Definitely.

19 Q. And what is that?

20 A. Given the information that is available, particularly the limited

21 information that we have pertaining to the 1st and 2nd August combat

22 reports of the Zvornik Brigade, it's quite conceivable that the action

23 that they're talking about -- one, the actual event that they're talking

24 about is some form of a raid or some form of an infiltration by Bosnian

25 Muslim 2nd Corps forces into the front lines of the Zvornik Brigade, in

Page 9064

1 which case they were engaged and withdrew after hitting the minefield. As

2 to the actual wording of General Krstic himself, there is certainly an

3 interpretation, and one that I cannot refute, that what he was doing was

4 euphemistically encouraging Obrenovic on, and that neither General Krstic

5 intended it as an unlawful order or that Major Obrenovic did not take it

6 as such.

7 Q. In your mind, is it clear in that intercept that Obrenovic

8 actually has prisoners?

9 A. Based on that intercept alone, as well as the 1st and 2nd August

10 information that I have, I can't say that he has prisoners.

11 Q. If Obrenovic doesn't have prisoners, what does the statement "Kill

12 them all" three times mean?

13 A. In that regard, I would have to default back to: The context of

14 what we're talking about is, you know, a military commander encouraging a

15 subordinate to press his defence vigorously and to ensure that none of the

16 members of the infiltration team, if in fact that's what it is, will be

17 able to penetrate the lines.

18 Q. Who, in your view, is in the best position to tell us what that

19 intercept means?

20 A. That one would be General Krstic.

21 Q. Was this intercept mentioned in your report, your narrative?

22 A. No, sir, it was not.

23 Q. Why not?

24 A. For the most part because, as I look at it, and understanding it

25 was a powerful exhibit, at the end of the day, when I was making my final

Page 9065

1 selection of those intercepts that I wanted to use in the narrative,

2 because I could directly relate them to the events, to the crime scene, to

3 General Krstic, that one tended to fall outside.

4 I mean at the end of the day, I understand that -- my firm belief

5 is that it is, in fact, authentic. So that wasn't a motivating factor of

6 why I included it and why I did not.

7 But at face value and given the multiple interpretations, for me,

8 first of all, I cannot tie it to a criminal act associated with

9 Srebrenica. It certainly falls outside with respect -- related to Zepa.

10 As I've indicated, I can't forward to the Court an opinion what I think it

11 is, being either an unlawful order or anything else. I had no other

12 information to put around it. And given the fact that at the end of the

13 day the ultimate value of what that conversation meant or didn't mean

14 couldn't be put into context by me as a military analyst, could only be

15 put into context by the defendant, for me it was a logical determination

16 that that didn't need to go into my report.

17 At another level, I considered that if I had forwarded it, it

18 would be looked at as a gratuitous slap against the defendant, where I

19 would be offering up an opinion that not only could I not substantiate,

20 but to invite the Court to look at it in the most sinister light, and I

21 didn't believe that that was fair. If I had been able to do that, if I

22 had been able to make those connections - I'm not -- I'm not that

23 charitable a person - I would have it included it in my report and I would

24 have offered it to the Court in that respect.

25 Q. You're aware of the Prosecution's decision strategically to save

Page 9066

1 this intercept and use it during the cross-examination with

2 General Krstic, are you not?

3 A. That is correct, sir.

4 Q. Was your report written before that strategic decision was made?

5 A. The report was being authored in various draft forms through that

6 decision-making process. I'm not sure that there's a point in time either

7 before or after that decision was made. I understand that the

8 Prosecution, particularly the trial lawyers, were very interested and

9 wanted to use that as a piece of evidence on cross-examination. I mean,

10 they looked at it as that was its most powerful benefit. And at the end

11 of the day, I always felt that I reserved the right myself, as the

12 military analyst for the team, that if I needed that information in my

13 narrative, that I was going to put it there. And at the end of the day, I

14 don't know exactly at a point in time that occurred.

15 Q. Did you ever have this conversation in any of your drafts?

16 A. This intercept was never in any version of my drafts of the

17 narrative.

18 MR. McCLOSKEY: Thank you. I have no further questions.

19 JUDGE RODRIGUES: [Interpretation] Thank you very much,

20 Mr. McCloskey.

21 Allow me to take this opportunity to bid good morning to the

22 representative of the American government, for the record, please.

23 Let me give the floor to the Defence for the cross-examination

24 now. Mr. Visnjic, it seems to me, is going to be cross-examining the

25 witness.

Page 9067

1 Cross-examined by Mr. Visnjic:

2 Q. Good morning, Mr. Butler.

3 A. Good morning, sir.

4 Q. Mr. Butler, in response to a question put to you by Mr. McCloskey,

5 you stated that the conversation conducted between General Krstic and

6 Jevdjevic and Obrenovic was not included in your report. Am I correct?

7 A. The August conversation was not included in my report, no, sir.

8 Q. The interview which General Krstic gave to the Office of the

9 Prosecutor on the 18th and the 19th of February, is that report also --

10 that interview also included in your report?

11 A. No, sir, I do not believe I included any material from

12 General Krstic's interview in my report.

13 Q. Did you use that material? I don't mean whether you quoted, but

14 did you refer yourself to the material connected with the interview of

15 General Krstic while composing your report?

16 A. I was intimately familiar with the material. I had watched the

17 interview as it was being conducted, on closed-circuit television, and I

18 frequently referred to the transcripts of the interview, as I've done with

19 many other interviews and all other information, but I did not feel it's

20 my place to include or try to manoeuvre portions of General Krstic's

21 interview and then try to interpret what he said for the Court. I mean,

22 at the end of the day, I didn't do that with any of the human witnesses at

23 all.

24 Q. I assume that you were familiar with the portion of the statement

25 of General Krstic concerning the issue of war prisoners and his attitude

Page 9068

1 to that issue.

2 A. I believe I am broadly, but it's awhile back and there's a lot

3 back there, but, generally, I'm familiar with it. If you have the

4 specific transcripts, I'm sure I can go right to it and not guess, but ...

5 Q. Mr. Butler, wasn't it natural that somewhere in paragraph [sic] 10

6 of your -- I know you remember your report very well, but somewhere in

7 paragraph 10, that is to say, between paragraphs 10 and 11 and 1021 or

8 going on to the end of that particular paragraph, which includes in quite

9 a lot of detail the status of the prisoners of war, was it not natural

10 that in that portion you include the intercepted conversation by way of

11 information?

12 A. I assume you're talking about chapter 10, not paragraph 10, as is

13 coming up on the transcript, where I talk about specifically the known

14 status of prisoners of war in the Bratunac and Zvornik Brigade.

15 I believe that all of the information based on that is based on

16 documentary records, and it discusses the status of known prisoners

17 captured through 31 July 1995.

18 Trying to take that particular intercept, which again at face

19 value in no way, shape, or form refers to prisoners, it doesn't fit for

20 me.

21 Unless I'm confused. Are you asking whether or not I should have

22 taken General Krstic -- accounts of his interview into that for chapter

23 10? If that's the question, then the answer would be I wouldn't have done

24 that either.

25 Q. Does this also relate to paragraph 937, in which you also mention

Page 9069

1 that General Krstic coordinated and received information with respect to

2 issues connected to prisoners of war?

3 JUDGE RODRIGUES: [Interpretation] Mr. Visnjic, I apologise for

4 interrupting. I want to ask Mr. Butler whether you would like to have

5 your report in front of you in order to be able to answer the questions

6 being put to you.

7 A. I would appreciate that, sir, yes.

8 JUDGE RODRIGUES: [Interpretation] Could you indicate to us the

9 exhibit number, please, Mr. Visnjic.

10 MR. VISNJIC: [Interpretation] Mr. President, I will withdraw the

11 question.

12 JUDGE RODRIGUES: [Interpretation] No. There's no problem. We

13 just want to know the exhibit number so that we can show the document to

14 Mr. Butler.

15 Madam Registrar, can you tell us the exhibit number, please? I

16 think it was 400 and --

17 Mr. McCloskey.

18 MR. McCLOSKEY: Ms. Keith has it, and we can provide that to

19 Mr. Butler.

20 JUDGE RODRIGUES: [Interpretation] Very well. And can you tell us

21 the exhibit number, please?

22 A. 403, Your Honour.

23 What paragraph again, sir?

24 MR. VISNJIC: [Interpretation]

25 Q. 937.

Page 9070

1 A. In the context of paragraph 937, I would not have mentioned it in

2 so much as the fact that the period that we're discussing is the period

3 during which the executions are known to be occurring, within the window

4 of 13 to 17 July 1995.

5 Q. Thank you. Mr. Butler, you have certainly listened through many

6 or reviewed many intercepts from both sides. In the sense of combat

7 activity and combat action, fighting and encouragement to the soldiers,

8 the subordinates, co-fighters, fellow fighters, these words, "Kill them

9 all," is that mentioned fairly often? Are they frequently mentioned?

10 A. Within the confines of the intercepts on all sides, again in the

11 heat of combat, those types of bombastic statements are mentioned very

12 frequently. It is not a unique -- in the sense of things of that nature,

13 you know, "Kill them all," in the sense of, "Make sure that the enemy's

14 totally destroyed," things of that nature are typical military remarks,

15 again not only in the context of the intercepts but in my own background

16 as a military officer.

17 Q. Mr. Butler, I should like to go back to the first conversation.

18 It is Prosecution Exhibit 884.

19 A. It's on the ELMO, sir, yes.

20 Q. I think the Defence agrees with your conclusion that General

21 Zivanovic did not -- was not speaking from Belgrade, that is to say that

22 at that point in time he was not located in Belgrade. Can you be more

23 specific and tell us where, in your opinion, General Zivanovic was when he

24 had this conversation?

25 A. Based on this intercept alone, I cannot do that. However, based

Page 9071

1 on the context of the other material that is available and the other

2 intercepts, and given the fact that this is an hour after an intercept

3 which I place General Zivanovic in Vlasenica, given the same series of

4 intercepts, the same network on which the intercept was taken off of, and

5 everything else, I believe I can state confidently that at 10.51 on 15

6 July, General Zivanovic is in the headquarters of the Drina Corps in

7 Vlasenica.

8 Q. Is it possible, Mr. Butler, that General Zivanovic, up until that

9 time, had received the order from President Karadzic on relieving him of

10 his duties, or whether he became informed or learnt of this order in any

11 other way? You can give us a yes or no answer.

12 A. Let me just read the question again. It was a long question. I'd

13 just like to read it on the monitor, if you don't mind. The information

14 that I have leads me to believe that he learned earlier than 15 July that

15 he was being relieved of command.

16 Q. My question was whether it was possible -- whether it is possible

17 that General Zivanovic, up until the 15th of July, that is to say, the

18 time when this conversation took place, whether he was in a position to

19 learn of the order by President Karadzic. So I'm talking about that

20 particular document, not the other information, actually.

21 A. It is possible in that respect, yes, sir.

22 Q. Is it also possible that part of the conversation which General

23 Zivanovic has with Bogicevic, and which I'll now paraphrase, relates to

24 something of the kind, "I have now been given a new assignment," is it

25 possible that that part of the conversation is linked to the directive,

Page 9072

1 the decree by President Karadzic? Order, the order. Let me say order,

2 the order of President Karadzic.

3 A. If you look at those two individual exhibits, yes, you can make a

4 linkage possibility, yes, sir

5 MR. VISNJIC: [Interpretation] Thank you, Mr. Butler.

6 Mr. President, the Defence has no further questions.

7 JUDGE RODRIGUES: [Interpretation] Thank you very much,

8 Mr. Visnjic.

9 Mr. McCloskey, do you have any additional questions? If so,

10 please proceed.

11 MR. McCLOSKEY: Not at this time, Mr. President.

12 JUDGE RODRIGUES: [Interpretation] Okay. Very well. Thank you

13 very much.

14 Judge Fouad Riad has the floor.

15 Questioned by the Court:

16 JUDGE RIAD: Thank you, Mr. President.

17 Mr. Butler, good morning.

18 A. Good morning, sir.

19 JUDGE RIAD: I just would like to have more clarification of your

20 statements. First when you spoke about General Zivanovic being aware that

21 he was relieved from command, I think you -- you concluded from -- you

22 said, "I conclude from information --" You said exactly, "The information

23 that I have leads me to believe that he knew that he was relieved before

24 the 15th of July." All that we heard from you is that he said, "I have

25 liberated Srebrenica and have other duties." Now, do you think the fact

Page 9073

1 that he said they have other duties means that he left the Drina Corps, he

2 can have still other duties in the Drina Corps?

3 A. When I made that comment, what I was envisioning was the other

4 information, being the series of previous intercepts, as well as other

5 documents that go back not only from 15 July, but prior to that, 14 and

6 13, which would lend to General Zivanovic having an understanding that he

7 was no longer the Commander of the Drina Corps and that at a point in time

8 the orders would follow.

9 In date sequence, the order appointing General Krstic is dated the

10 14th, I believe. It's been a while with the information, but I believe

11 it's the 14th, effective on the 15th. So clearly he also would have found

12 out about that perhaps a little bit earlier than actually receiving the

13 zone.

14 The order, again if I recall correctly, on 15 July relieving

15 General Zivanovic makes it clear that he's placed his technical status on

16 disposal to the Main Staff, which means that at a point in time to be

17 determined, that he would be expected to report to the Main Staff for

18 whatever further duties the Main Staff had in mind for him.

19 JUDGE RIAD: And now with regard to the intercept, "Kill them

20 all," the "Kill them all" conversation, first, your firm belief that it

21 was authentic?

22 A. Yes, sir.

23 JUDGE RIAD: What did you build this belief on?

24 A. As I testified in my direct testimony close to a year ago, when I

25 looked at not only that intercept, but when I looked at all of the

Page 9074

1 intercept information, I set up mentally in my own mind a series of

2 checklists and parameters which the material would have to go through

3 before I would be satisfied on that. As I noted before the Court prior, I

4 do have considerable experience dealing with military material, including

5 communications intercepts, which is what these are. I mean, at the end of

6 the day, these are voice communications intercepts. I have dealt with

7 these in the past, and I am very cognisant of the types of procedures that

8 are used within community -- my military community that we use to validate

9 these.

10 Much of the validation occurs, as the Prosecution has put on

11 through its direct case and further on in its rebuttal case, the knowledge

12 and the technical aptitude of the actual collectors, the equipment, their

13 understanding of the target environment, and that, for me, is the first

14 critical piece. Again, do the collectors, do the technical collectors

15 themselves understand what they're collecting, do they have the equipment

16 that's capable of doing that, do they understand what the target

17 environment is? In a way, going back after the fact makes it, in my mind,

18 makes it easier to do this. Normally, in my line of work I don't have all

19 of the information while I'm trying to make these judgements, so in a way,

20 being able to look back at history is a bit of a luxury for me that I

21 don't normally have. So I was able to, in my own mind, put together a

22 series of checklists which would allow me to check these off.

23 Again at the same time, and as I noted in my direct testimony, I

24 was extremely leery of these intercepts when they first came in. We don't

25 have, or certainly didn't have in early 1997 when we first got those, a

Page 9075

1 full and complete, open relationship with the Bosnian government on the

2 passing of information. And very candidly, my default position was that I

3 couldn't trust this material as far as I could throw it, and that it would

4 have to undergo an extremely rigorous check on various forms of

5 authentication before I, as an analyst, was willing to buy into the fact

6 that what I was getting in the series of intercepts was in fact valid

7 intercepts and not somebody's product designed to deceive me. And having

8 again worked with intelligence information, and knowing the general rules

9 and models which one uses to look for deception, again I set up a series

10 of mental checklists which I used to try and determine whether or not the

11 information that I was receiving was in fact being fed to me.

12 It is within a military -- the military analytical way of how we

13 do business, information is extremely hard to come by and it's looked at

14 very jaundicedly. If you're getting a piece of valuable information from

15 the enemy, your first thought is you're getting it because he wants you to

16 get it, and what does that mean?

17 So again, I looked at the material from an extremely critical eye,

18 and as the process wore on, I became very convinced that the Bosnian

19 Muslims did understand the target environment they were collecting on,

20 that they did understand what they were getting. And the percentage of

21 the take, as it were, what they were intercepting, was in fact a fair and

22 accurate representation of the material that they felt was militarily

23 relevant to them, not necessarily the type of information I would want as

24 a military analyst investigating the relationship between the military and

25 a war crime. The information was tailored to them; it was not tailored to

Page 9076

1 me.

2 So having gone through that procedure, again that was the first

3 validation, and at the end of the day I believe the intelligence

4 collectors of the 2 Corps understood the target environment, they know the

5 target environment they were going after, and that the information in the

6 notebooks and in the printouts that I used in my narrative and I talked

7 about in my examination, and that further that the Prosecution used in

8 order to validate other information or other intercepts in order to set

9 the stage for that, was valid. Now, that's the first component of the

10 validation process.

11 On the audiotapes themselves, I also availed myself to listen to

12 the audiotapes, and while I do not understand the language, I can say

13 that, you know, I have actually sat at positions, I have listened to

14 multi-channel communications being intercepted, and more importantly, the

15 equipment of multi-channel communications that the Serbs were using, the

16 VRS was using, wasn't unlike early generation communications equipment

17 that the US army used when I joined in the early '80s. The background

18 noise, as I was listening to it, was consistent with what I understood was

19 the background noise of military multi-communications. Now, again, at the

20 end of the day, that can be manufactured, so I don't take that as a whole

21 lot of value.

22 JUDGE RODRIGUES: [Interpretation] Mr. Visnjic.

23 MR. VISNJIC: [Interpretation] Mr. President, I have to draw your

24 attention to the fact that I think the witness had stepped outside his own

25 qualifications in commenting on these intercepts, as far as I am aware.

Page 9077

1 And from his background, I did not note that he was an expert in

2 communication devices. Perhaps I'm wrong, but ...

3 JUDGE RODRIGUES: [Interpretation] Yes. We take note of that,

4 Mr. Visnjic. Thank you.

5 Judge Fouad Riad, please continue.

6 JUDGE RIAD: I was interested to hear from you that -- you said

7 that the information was tailored to them, was tailored to the Muslims,

8 to --

9 A. Yes, sir.

10 JUDGE RIAD: Why was it tailored to them? To frighten them?

11 A. It was tailored to them -- not a question of the information was

12 tailored to them. The collection process and the material garnered from

13 the collection process was tailored for the intelligence requirements of

14 the Bosnian army. They were collecting it for their own purposes, their

15 own information. Again, I use that as a tool to review or look at

16 deception operations. If the information is coming in -- it's coming in

17 in a form of exactly what I want, exactly what I'm looking for, or

18 tailored to my goals, that's an indicator to me of deception. But what I

19 found, in fact, that the information that was being collected by the

20 collection sites, being processed through and ultimately coming into the

21 hands of the Office of the Prosecutor, was geared for their benefit, not

22 ours.

23 JUDGE RIAD: Now, nevertheless, you said that you cannot -- you

24 were not able to put it into context, and this is why you excluded it from

25 your report.

Page 9078

1 A. I cannot put this into the context of the crimes, no, sir.

2 JUDGE RIAD: In fact, you added that it was unrelated to

3 Srebrenica. You said exactly, I think, "It cannot be tied to

4 Srebrenica."

5 A. The date of 2 August lays it at the back of Zepa, and again, the

6 information in the intercept and the information that I have separate

7 around that does not directly tie it to the criminal acts related to

8 Srebrenica.

9 JUDGE RIAD: Or to anything you know?

10 A. Or to anything I'm aware of, no, sir.

11 JUDGE RIAD: You describe it as an illegal order given by Krstic.

12 A. That is my personal opinion of it.

13 JUDGE RIAD: Was it -- in the context of the conversation, did it

14 sound like -- did it have the appearance of an order or what you mentioned

15 as a bombastic statement?

16 A. Given the fact that the best that I can do is read it from the

17 transcripts and because I do not understand the language - I'm not in the

18 position to do that - again, I have to hold open both possibilities, and

19 my analytical conclusion at the end of the day is that I can't conclude

20 either one. My personal opinion is one thing, but, again, I don't invite

21 the court to take weight of my personal opinion on that.

22 The analytical conclusion is that I can't tell what that is,

23 whether it's an illegal order or whether it's not. You know, the question

24 was asked: "What's my personal opinion?" That is my personal opinion,

25 but I don't invite the Court to take any weight on that. I'm not

Page 9079

1 qualified to give personal opinions of General Krstic to this Chamber,

2 sir.

3 JUDGE RIAD: When you say it is an illegal order, the order must

4 have a destination, must have somebody -- given someone?

5 A. I don't understand.

6 JUDGE RIAD: It's an order. If it's just a declaration, like

7 saying like, "Let them all go to hell," for instance, it will be giving an

8 order that --

9 A. I think given the text of the order, it could be interpreted as

10 directive in nature.

11 JUDGE RIAD: As directive.

12 A. It can be determined as directive in nature. It's not that

13 ambiguous, I do not believe, sir.

14 JUDGE RIAD: Thank you very much.

15 JUDGE RODRIGUES: [Interpretation] Thank you very much,

16 Judge Riad.

17 Madam Judge Wald has the floor.

18 JUDGE WALD: With regard to the first conversation between

19 General Zivanovic and Bogicevic, why would Zivanovic want to say he was in

20 Belgrade? I mean, what did it add to the conversation? What would be the

21 -- is it some kind of disinformation or what?

22 A. I --

23 JUDGE WALD: Do you have any --

24 A. If I had --

25 JUDGE WALD: -- any supposition?

Page 9080

1 A. If I have to take a supposition, I would just say he was making a

2 facetious remark that, "I'm in Belgrade now. I don't have a mailing

3 address at the Drina Corps any more." Again, that is a supposition based

4 on an opinion and what other information I know.

5 JUDGE WALD: You told us that when you first began to deal with

6 intercepts, your words were you were extremely leery and then you gave us

7 a developed rationale of how you gained more confidence as they went

8 along. But looking at all of the intercepts, and I remember from your

9 report the many, many, many intercepts, were there any that you ever

10 rejected because you didn't think that they were authentic or reliable?

11 Not because you didn't think they were material to your specific points in

12 your report but that you just didn't feel ...

13 A. In the issue of reliability and again -- not reliability of the

14 process or not even the reliability of information.

15 JUDGE WALD: No, for your own consideration.

16 A. There were -- there were, and there remain many intercepts which I

17 do not include that because --

18 JUDGE WALD: They just didn't fit in?

19 A. -- I'm not able -- it's not a question of fitting in analytically,

20 it's a question of I can't conclusively date them or I can't get them

21 conclusively dated to my satisfaction or that the subscribers X and Y

22 don't -- the conversation does not tie into any of the known crime scenes,

23 criminal events, or any of the other contexts. There is other material

24 out there that, frankly, at the end of the day, I still don't know what it

25 means and I don't know where it fits in. And in the cases where I can

Page 9081

1 make linkage, I have, but at the end of the day, the material that's not

2 included, most of it is not included on the basis of I'm unable to

3 reliably date it or reliably make a judgement that it has anything of any

4 relevance either for the Defence, or for the Prosecution, for that matter,

5 to the case in question.

6 JUDGE WALD: When you say you're not able to reliably date it,

7 we've had extensive testimony, and I know you weren't necessarily present,

8 but over the last couple of days, but you certainly have seen those

9 notebooks and the dates that -- at least theoretically place conversations

10 between certain dates, et cetera, so what's the kind of problem you would

11 have with dating?

12 A. To be honest, and using Exhibit 884 as an excellent example of

13 that, going back and looking at that, the first indication that we had

14 this intercept, I believe, is as we've gone through the process was it

15 came in the form of a printout that was received by the Office of the

16 Prosecutor in, I believe, May of 1999 or 2000 or just before I testified.

17 So it would be 2000. I'm a little fuzzy on dates, I'm sorry about that.

18 It came in the form of a printout, and going back and looking at

19 the printout, it was clear that the date range from this was between the

20 period of 14 to 16 July, and based on the printout alone, there was no way

21 to conclude what date it was. And though it generally supports what I

22 want to say in my narrative or whatever, I can't conclusively put a date

23 on it; therefore, it's still a piece of information awaiting analysis.

24 Now, my understanding is that sometime in December 2000, the

25 notebook that was associated with this conversation, that originated this

Page 9082

1 conversation, came in, and when you look at the notebook, it becomes quite

2 clear I can do that.


4 A. I would wager to say there are still many bits of information that

5 fall into that same category.

6 JUDGE WALD: You read, I'm sure, for your report many intercepts

7 in which General Krstic was a participant?

8 A. Yes, ma'am.

9 JUDGE WALD: Did you, when you read the so-called "Kill them all"

10 one, did anything strike you as different about the portrayal or even the

11 speech patterns, if you can get anything because there's so many little

12 dots every place, different in that from many of the other reports in

13 which he, at least to me, appears much more laconic or ...

14 A. It's hard for me to do that because at the end of the day, like

15 you all, all I'm doing is reading transcripts. I don't have the

16 opportunity to hear the conversations and understand them in their native

17 language, so I don't know that I'm really qualified to give you an answer

18 on that.

19 Within the context --

20 JUDGE WALD: Okay.

21 A. I would be very uncomfortable doing that.

22 JUDGE WALD: My last question, and answer only again if you're

23 comfortable because I don't want to go outside any bounds. But you did

24 say in your -- that when you first came across this or when you first

25 analysed it -- you said you didn't analyse it until late 1999, I think.

Page 9083

1 Now, I understand fully your explanation of why it just didn't

2 fall into place for your task of recording, from a military point of view,

3 all the events which went on, but you did say yourself that you thought it

4 would be powerful, and you knew there was a debate in the legal staff. I

5 don't want to know anything about the backgrounds or people involved in

6 that, but I guess my basic question, since you brought it up, was whether

7 or not you participated in that debate with the legal staff or you're just

8 saying you knew there was a debate in the legal staff?

9 A. I was party to those debates. I was a -- I was a major,

10 significant party. I was fully integrated into the team and in the

11 debates in the process, and --

12 JUDGE WALD: So was the debate -- again, I don't want to know what

13 the -- but did the debate concern whether to use that intercept in the

14 case in-chief?

15 A. The -- one aspect of the debate pertained to the fact that to use

16 it in the case in-chief, if I felt that I needed it, meant that at the end

17 of the day, the Defence would have a very long opportunity to come up with

18 a well-rehearsed answer to what it was.

19 JUDGE WALD: Well, I shouldn't ask you that. You're not a lawyer,

20 but I was going to say, isn't that what the trial process is about?

21 A. Understanding that, but again from my perspective, when I look at

22 the information -- I'm not naive as to the mechanics involved, I mean, and

23 I guess where -- fundamentally, to frame the argument, where that

24 information falls is as a piece of military analysis, does that piece of

25 information assist me in allowing the Court to understand General Krstic's

Page 9084

1 role as the Commander related to the crimes and everything else?

2 Now, having said that, I also understand that as a piece of

3 information, it can be used as an indicator of the mental state of the

4 accused, and I'm not qualified to pass on that.

5 JUDGE WALD: I'm not asking you. Just a last question. You said

6 you analysed in late 1999. Did this, quote, debate take place around that

7 time, or prior to trial, I guess is what I'm saying, to your knowledge?

8 A. The debate took place -- not only prior to but continuing during

9 the case, the case in-chief. The final decision ultimately on where to

10 use it wasn't made until my narrative hit the final form, and from my

11 point of view, I determined that I didn't need it.

12 JUDGE WALD: Okay. Thank you very much.

13 JUDGE RODRIGUES: [Interpretation] Thank you very much, Madam Judge

14 Wald.

15 Mr. Butler, I, too, have a few questions for you. As regards the

16 Exhibit number 884, that is the conversation between Zivanovic and

17 Bogicevic, you stated that you didn't believe that General Zivanovic was

18 in Belgrade. My question in relation to that is: Why did you say that

19 you believed that --

20 A. Why --

21 JUDGE RODRIGUES: [Interpretation] -- or didn't believe that?

22 A. I would again have to put it in context of the 9.00 or I believe

23 it's 9.51 conversations that General Zivanovic is recorded having with

24 Colonel Beara at a textual level. Again looking at the broader aspect of

25 the intercepts, essentially we're talking about an intercept coming off of

Page 9085

1 essentially the same communications network. If Bogicevic were in

2 Belgrade and Zivanovic were in Belgrade, it's difficult to understand how

3 that phone call would be routed through the Drina Corps switch in the

4 Republika Srpska.

5 So again putting all of the technical factors as well as the other

6 informational factors, then that leads me to conclude that he's not in

7 Belgrade, that he's, in fact, in Vlasenica.

8 JUDGE RODRIGUES: [Interpretation] I think that you have already to

9 a certain extent answered my next question in response to a question put

10 to you by Madam Judge Wald. What would have been the interest of saying

11 he was in Belgrade if he wasn't actually there?

12 A. Again, I don't know the answer to that, sir. The best I could say

13 is it was a facetious comment, but again, I don't know.

14 JUDGE RODRIGUES: [Interpretation] Okay. Thank you. Another

15 question, Mr. Butler. When the Prosecutor asked you to analyse all these

16 intercepts, did he give you a time framework, that is, a date from which

17 you were supposed to make your analysis until a date when you were

18 supposed to finish your analysis? Was there a time framework, a time

19 frame for your work, for your analysis?

20 A. No, sir, none from the Prosecutor. Any deadlines were internally

21 driven by myself. I mean with that intercept, the driving force between

22 when I -- when I looked at it and why was not relative to that intercept

23 but it was relative to the fact that as an analytical practice, I was

24 waiting for the entire series from July of 1995. I did not want to fall

25 into an analytical trap of looking at pieces of intercepts in isolation,

Page 9086

1 and I remember conversations in May where I was discussing the issue with

2 Ms. Frease, telling her that, "I can't look at the intercepts until I get

3 the entire month of July. What's taking you so long?"

4 So in that respect, the decision to do that, when it was analysed

5 and in what context, was entirely my own.

6 JUDGE RODRIGUES: [Interpretation] And my last question, for you,

7 Mr. Butler: As regards the "Kill them all" intercept, General Krstic said

8 that it was a rigged, that it was a montage, a 100 per cent montage. That

9 was the word he used. Can you comment on that?

10 A. At the end of the day and as I've discussed at some length in

11 response to Judge Riad's question, and especially when General Krstic made

12 that statement, again as an analyst, what I did is internally to what end,

13 set up a series of theoretical scenarios: Assuming that this is a

14 montage, one, how do I prove that and to what end? Who is the target

15 audience and why? Then I looked at all of the factors on how the tapes

16 came into the OTP possession, and at the end of day there are two tapes.

17 And as the Prosecution has laid out, I'm not sure. It came in fits and

18 starts through a series of witnesses, but at the end of the day, when you

19 look at the series of circumstances, how the first tape came into the

20 possession of the Office of the Prosecutor, which was recorded off of one

21 network, and how the second tape several years later came in, and

22 particularly in the circumstances of the second tape, you know, being lost

23 in an archive, essentially being found by an investigation team that's

24 investigating Muslim war crimes and the fact that it had been mislabelled

25 and effectively lost to indexers, at the end of the day, the series of

Page 9087

1 circumstances of events is almost fantastic. It comes to -- for as much

2 difficulty and trouble as it was trying to get all these things and put

3 all these things together, if it was going to be a montage, particularly

4 the second tape, if you were going to go all the time and all the effort

5 and all of the money and all of whatever it takes to do that, and again I

6 could lay awake at nights and think of ways to do this, at the end of the

7 day, I wouldn't mislabel the tape and lose it in an archive and hope that

8 out of the blue somebody finds it, particularly a team that's not even

9 investigating Serbian war crimes, one that's investigating Muslim war

10 crimes.

11 So again, at the end of the day, with deception, you never have an

12 absolute indicator. There are none. At the end of the day, as an analyst

13 what you're doing, what I do as an analyst, is it's a balance of

14 probabilities. And in this case, given the balance of probabilities, and

15 given everything I know about it, I'm fairly certain this is not a

16 montage.

17 JUDGE RODRIGUES: [Interpretation] Very well, Mr. Butler. We have

18 no further questions for you. You have answered a number of questions by

19 both parties and the Judges. Thank you very much for having spared some

20 time to be with us and assist us in our work. Thank you very much once

21 again. We wish you a lot of success in your future work.

22 Let me also thank Mr. Alan Weiner. I hope that the name will now

23 be entered in the record, because the first time I mentioned it, it was

24 not reflected in the record. Thank you also for having been with us

25 today.

Page 9088

1 THE WITNESS: Sir, I'd just like to add it's been a privilege to

2 be at the service of the Tribunal.

3 JUDGE RODRIGUES: For us too. Thank you.

4 Yes, Mr. McCloskey.

5 MR. McCLOSKEY: I'm told that Exhibit 884 is -- well, it's in a

6 notebook. 884 is the conversation. So I think we would offer that into

7 evidence to make sure that it's part of the record.

8 JUDGE RODRIGUES: [Interpretation] I think that it is awaiting a

9 decision by the Chamber, like some other exhibits.

10 What is the position of the Defence as regards this exhibit?

11 Mr. Visnjic?

12 MR. VISNJIC: [Interpretation] Mr. President, we have no objections

13 to this exhibit being made part of the record.

14 JUDGE RODRIGUES: [Interpretation] If there are no objections by

15 the Defence, the Exhibit number 884 -- was that the exhibit that you were

16 referring to? No. Yes. Very well, then. Therefore, the exhibit shall

17 be admitted into evidence.

18 Mr. McCloskey or Mr. Harmon.

19 MR. McCLOSKEY: We have no additional evidence until later on on

20 the video-conference. No more witnesses until --

21 JUDGE RODRIGUES: [Interpretation] But I think that you indicated

22 that Mr. Ruez would also be one of your witnesses. I thought I saw it on

23 your list, that I saw his name on the list, that is that he was supposed

24 to talk about the chain of something -- chain of custody. Am I

25 imagining?

Page 9089

1 MR. HARMON: He's listed with one sentence: "Mr. Ruez will

2 testify about any necessary chain of custody issues."

3 We believe we've covered these issues, and we will be withdrawing

4 Mr. Ruez.

5 JUDGE RODRIGUES: [Interpretation] Very well then.

6 We will wait until 4.00, then. But I thought that it would be a

7 convenient time to ask the Defence: You have the decision of the Chamber

8 regarding the testimony of Mr. Butler. Do you think that sometime during

9 the day you will have an opportunity or you might be prepared to ask

10 additional questions of Mr. Butler, or shall we leave it really for the

11 last -- the final week of the proceedings? Do you understand what I want

12 to say?

13 MR. VISNJIC: [Interpretation] Mr. President, it would be very

14 difficult for us to change our position within the past half an hour.

15 JUDGE RODRIGUES: [Interpretation] Yes. Very well, then. I just

16 wanted to know that in order not to waste any time. But of course you're

17 quite right. We will then wait until 4.00 to continue, and I believe that

18 we will continue in courtroom number 1. Mr. Visnjic, is there anything

19 that you wish to tell us?

20 MR. VISNJIC: [Interpretation] Mr. President, I only wanted to ask

21 you if it's possible to see whether the General can be escorted to the

22 Detention Unit now and then taken back again so that he could have some

23 rest there, because here at the Tribunal there are no possibilities for

24 him to have a proper rest.

25 JUDGE RODRIGUES: [Interpretation] Madam Registrar, please.

Page 9090

1 THE REGISTRAR: Yes, Your Honour. I will check with the security

2 team and give it to you.

3 JUDGE RODRIGUES: [Interpretation] Just a moment, please.

4 [Trial Chamber confers]

5 JUDGE RODRIGUES: [Interpretation] I think that there is still a

6 little question that needs to be addressed. As you know, we have two

7 motions to reopen the case, one that was submitted by the Prosecution and

8 the other by the Defence. Maybe we can use this time to discuss them. I

9 could perhaps invite the parties to talk amongst themselves about a

10 possible admission of radio intercepts. If you are able to reach an

11 agreement, please let us know, let us notify the Chamber about it; and if

12 you do not, the Chamber will make its ruling. But there is still this

13 issue of reopening the case. Maybe we can give you each 20 minutes to

14 argue the motion, and then the Judges will ask questions if they have

15 any.

16 I think we can now have a lunch break and then come back to the

17 courtroom. It is true that it is possible for General Krstic to be taken

18 back to the Detention Unit, but maybe he's willing to waive his right to

19 be present here.

20 Mr. Harmon, can I hear your comment on this?

21 MR. HARMON: I was hoping to use the time after lunch to prepare

22 for the testimony [redacted]. I'm prepared to argue the motion that we

23 have filed with the Trial Chamber right now on the issue of reopening the

24 case to admit forensic evidence.

25 JUDGE RODRIGUES: [Interpretation] Mr. Petrusic or Mr. Visnjic.

Page 9091

1 MR. VISNJIC: [Interpretation] Mr. President, we don't have any

2 objections as regards the proposal of the Prosecutor.

3 JUDGE RODRIGUES: [Interpretation] Very well, then. We are now

4 going to have our break. What about the presence of General Krstic,

5 Mr. Visnjic?

6 MR. VISNJIC: [Interpretation] I think that General Krstic would

7 like to remain and hear the arguments.

8 JUDGE RODRIGUES: [Interpretation] Very well, then. We're now

9 going to have a 50-minute break and we will come back after that, and we

10 will try to limit the time to 20 minutes for each party to argue the

11 motion. A 50-minute break.

12 --- Recess taken at 12.21 p.m.

13 --- On resuming at 1.22 p.m.

14 JUDGE RODRIGUES: [Interpretation] Good afternoon once again. The

15 question will be the reopening of the case of either parties.

16 As you know, there is a motion by the Prosecutor and a motion by

17 the Defence.

18 Prosecutor. The motion of the Prosecutor has to do with four

19 reports connected to exhumations. The Defence objected to their

20 admission. The Prosecutor underlines that those reports are the logical

21 follow-on to reports earlier submitted to the Chamber and to the admission

22 of which the Defence did not object.

23 I should like the parties to tell us whether they have discussed

24 the matter and whether an agreement could be reached. And the other issue

25 that we have to discuss is whether the Defence could submit a report in

Page 9092

1 writing from now until the end of the rebuttal case. So I think those are

2 the issues that we have to address.

3 As the first motion we're talking about, the Prosecution motion, I

4 give the floor to Mr. McCloskey first.

5 MR. McCLOSKEY: Thank you, Mr. President. We have been unable to

6 reach any kind of an agreement, and Ms. Karagiannakis is here and will

7 argue the Prosecution's motion. Mr. Harmon is busy preparing the next

8 witness.

9 JUDGE RODRIGUES: [Interpretation] Very well. Ms. Karagiannakis,

10 please.

11 MS. KARAGIANNAKIS: Thank you, Your Honour. Just to reiterate,

12 Mr. Harmon was prepared to argue this motion before the break, but because

13 of his obligations with the witnesses, he won't be able to do so.

14 Your Honour, this application is as you've described it. There is

15 no dispute about what the applicable law is. It's the Delalic test, and

16 there are two legs to that test, and what I propose to do is briefly

17 outline why the Prosecutor says we comply with both of the legs of the

18 testing in Delalic and reply to some of the things the Defence has stated

19 in their reply motion.

20 To begin with --

21 THE INTERPRETER: Could counsel slow down, please.


23 So the first leg of the test is: Is this fresh in the sense that

24 it could not have been identified and presented in the case in-chief of

25 the Prosecutor with the exercise of reasonable diligence?

Page 9093

1 The Prosecutor submits that he did indeed -- she did indeed

2 exercise reasonable diligence. The Prosecutor has been diligently

3 conducting exhumations in Bosnia and Herzegovina in relation to the

4 Srebrenica case since 1996. The complete results, as they did stand in

5 July 2000, were presented to the Trial Chamber. These four expert reports

6 and the summary report come from reports produced after the close of the

7 summary exhumations last year.

8 The Defence has stated that we have not explained the reason for

9 the delay between the close of the case and the filing of the exhumation

10 evidence. To the contrary, Your Honour. This was explained in the motion

11 and illustrated by Annex A. And if you have the motion in front of you,

12 I'd ask you to look at Annex A.

13 What Annex A shows is the time that we actually received the

14 completed reports, and this shows that the reports were not completed

15 until February and March of this year, and what it also shows is that

16 within a matter of days, these reports were immediately turned over to the

17 Defence. Then I think usually within a matter of two weeks, the B/C/S

18 version of the report was finalised and then again immediately provided to

19 the Defence, so that as soon as we did receive those reports, we forwarded

20 them.

21 The reason for the delay was because the experts needed time to

22 consider their findings, and this is set out in our motion. As you know,

23 it's not possible to produce an expert -- a considered expert report

24 immediately after work is finished. Autopsies need to be concluded and

25 the experts need to consider their results.

Page 9094

1 So for those reasons, Your Honour, I submit that we have been

2 diligent in providing -- in getting the evidence, the exhumation evidence,

3 and then immediately providing it over to the Defence.

4 There is another point that is mentioned in the reply of the

5 Defence, and that is that there's an implication that we, by our own

6 decision regarding the allocation of resources, didn't conduct these

7 exhumations properly. I think what the defendant said is the speed of the

8 exhumation is directly related to the resources that the Prosecutor has

9 chosen to allocate to that task. That's in paragraph 6 of their reply.

10 Your Honour, as you have become aware, this Srebrenica case

11 involves numerous execution sites and many, many graves, and our

12 investigation is not the only investigation. However, despite the limited

13 resources that the Office of the Prosecutor has had, has diligently

14 conducted exhumations since 1996 in Bosnia, so that this is not a fair

15 criticism and doesn't -- and this argument doesn't have merit.

16 Your Honours, I'm now going to turn to the issue of the probative

17 value, which is the second leg of the Delalic test.

18 The defendant -- the Prosecutor says that this evidence has

19 probative value and has set out exactly what that probative value is in

20 paragraphs -- in paragraph 9 of its submission.

21 Now, the Delalic test says that you must weigh the probative value

22 of the evidence against the -- effectively the prejudicial effect or the

23 fairness of the trial, prejudicial effect on the accused and the fairness

24 of the trial.

25 This evidence is probative. It goes to genocide. It shows an

Page 9095

1 increased number of bodies. It shows that the people in those graves were

2 executed because we've discovered further ligatures and blindfolds.

3 And it also shows two important linkages, and that is the linkage between

4 the primary grave site and execution site of Orahovac and the secondary

5 grave sites at Hodzici, 3, 4, and 5, and also another very new and

6 interesting piece of evidence, which is a direct --

7 THE INTERPRETER: Could counsel slow down, please.

8 MS. KARAGIANNAKIS: -- physical link from the Glogova 1 site to

9 the Kravica warehouse, so that part of a door frame from the warehouse was

10 found in the grave, and this is extremely probative value linking an

11 execution site to a grave site.

12 The Defence has said that this isn't really -- this is -- the

13 probative value of this evidence is quite slight and cumulative. Well,

14 it's cumulative in the sense that we've already adduced much of the same

15 type of evidence, but it's my submission that, in particular, the linkage

16 evidence is not cumulative. It adds yet another important linkage between

17 execution site, and therefore executioner, to mass grave site, and in

18 another case mass grave site to secondary grave site. So you're looking

19 at linkages between execution, grave site, and cover-up, and those are

20 very critical for the consideration of liability in this case.

21 It's further submitted that it's not at all unfair to the

22 defendant to produce this in writing if they have also an opportunity to

23 reply in writing, because four out of the five people that are submitting

24 the reports have been cross-examined in this Court by the Defence. The

25 defendant and Defence counsel has never -- has not contested the fact that

Page 9096

1 executions occurred.

2 And critically, Your Honour, I take you to page 7, paragraph 7 of

3 our submission, where we set out that Dr. Stankovic has agreed that the

4 exhumations and autopsies were conducted with professionalism and

5 according to scientifically-accepted methodology, which means that he's

6 accepted the professionalism of four out of our five experts.

7 He also says, and I quote, in his report, the ligatures -- in

8 response to the previous exhumations evidence we've put in:

9 "The ligatures tying the hands, wrists, or blindfolds registered

10 in the bodies, and the injuries ascertained to the soft tissues and bones

11 inflicted by the bullets or other mechanical tool, is a sure sign that

12 such persons, after being captured, were shot or killed in other way."

13 So that's an acceptance by the Defence's own expert that people

14 lying in the exhumation -- in the graves that we have presented evidence

15 about were executed. And I think that -- we think that that is a very

16 critical admission that the Trial Chamber should take into account when

17 considering to admit this further evidence, which is cumulative in some

18 ways and does provide extra important ligature evidence in other ways.

19 And when exercising your discretion, Your Honours, I'd ask you to exercise

20 it in terms of Rule 90(F), which states that:

21 "The Trial Chamber should exercise control over the mode and

22 order of the presentation of evidence so as to make the interrogation and

23 the presentation effective --"

24 THE INTERPRETER: A little slower, please, counsel. The

25 interpreters are not able to follow at that speed.

Page 9097

1 MS. KARAGIANNAKIS: Rule 90(F) states that the Trial Chamber

2 should exercise its discretion so as to ascertain the truth, and it is the

3 Prosecutor's submission that this extra exhumations evidence allows the

4 ascertainment of truth.

5 The second part of Rule 90(F) says that the Trial Chamber should

6 exercise its discretion to avoid the needless consumption of time. It is

7 the Prosecutor's submission that there would not be needless consumption

8 of time in this case if the evidence were to be allowed to come in in

9 written form and if the Defence were permitted to then reply in written

10 form. The Prosecutor is prepared to accept a written reply to this

11 additional evidence, and should that reply not be possible in

12 their -- or orally in their surrebuttal case or in written form before

13 their surrebuttal case, we would be prepared to accept it at some later

14 date. If that date were to exceed the filing time of the closing written

15 arguments, which is the 20th of April, we would then enjoin the Court to

16 exercise its discretion to allow a further -- to allow further filings in

17 respect of this additional evidence by the Defence. In this way -- and

18 such filing should be obviously before the final oral arguments. In this

19 way, Your Honours, you would be permitted to allow this new evidence in

20 without unduly extending the length of the trial and without prejudicing

21 the right of the accused to reply to the exhumation evidence presented.

22 Your Honour, I have one final submission to make. It was

23 suggested in the reply of the Defence that we ought to have provided those

24 reports pursuant to Rule 94 bis, the implication being we should have

25 presented this in our rebuttal case, which is being conducted now. It's

Page 9098

1 my submission that it is quite apparent from Annex A in terms of -- to our

2 brief in terms of when we received the reports and when we finally

3 received them in B/C/S that we would have not been able to comply with the

4 time periods set out in 94 bis to present it in our case. So we did it in

5 this manner instead, seeking to reopen in written form.

6 Further, we had already scheduled quite a number of witnesses for

7 our rebuttal case, Your Honours, and it would not have been possible to

8 have added another five witnesses, four of which had already been

9 cross-examined by the Defence and their expert conclusions largely

10 accepted in terms of executions.

11 So those are the reasons why, despite the exercise of our

12 reasonable diligence, we could not present this information according to

13 that Rule. That concludes my submissions.

14 JUDGE WALD: There aren't any more in the pipeline, are there?


16 JUDGE RODRIGUES: [Interpretation] Thank you very much,

17 Ms. Karagiannakis.

18 The response from the Defence. Mr. Visnjic.

19 MR. VISNJIC: [Interpretation] Your Honours, the Defence will

20 refrain from repeating its arguments in its response to the application of

21 the Prosecution to reopen its case. We shall just try to explain to Your

22 Honours that we understand this application as one that affects the use of

23 the time that we have left until the close of the case. If the

24 Prosecution needed the time from August, when some exhumations were

25 completed, until March this year, to provide the Defence with these

Page 9099

1 reports, and in doing so the Prosecution, as she does on page 68 of this

2 LiveNote, to limited resources at the disposal of the Prosecution, then we

3 have to underline that our resources, as compared to those of the

4 Prosecution, are many times more limited.

5 Our expert was given a number of reports in the Serbo-Croatian

6 language just before the Prosecution filed its application. In my

7 opinion, it is still difficult to assess how much time he would need to

8 study those reports so as to be able to decide whether the Defence will

9 file an objection pursuant to Rule 94 bis.

10 On the other hand, the Defence has no prejudice regarding the

11 future report of its expert regardless of his earlier statements here

12 before this Trial Chamber, and on the other hand, the Defence also knows

13 that he has presented numerous criticisms of the expert report of the

14 Prosecution in his submission -- in his report of the 17th of October,

15 2000. I can only assume that he will have some critical remarks to make,

16 but that is up to him, and we would like to leave it up to him as the

17 expert to do so.

18 Bearing in mind the need for efficient use of time under

19 Rule 90(F)(ii), that is to avoid needless consumption of time, the

20 question remains as how much time the Defence would need -- should the

21 Trial Chamber grant the request of the Prosecution, how much time the

22 Defence would need to make a considered analysis of the Prosecution's

23 report.

24 So I would like to summarise our position, and that is that we are

25 opposed to the reopening of the Prosecution's case on the basis of all the

Page 9100

1 grounds submitted in our response of the 20th of March, 2000. On the

2 other hand, in response to your question, Your Honour, we are ready,

3 should the Trial Chamber so decide, to accept the application of the

4 Prosecution and to provide further evidence in written form as we did in

5 the course of the Prosecution case in-chief.

6 What I would like to point out is that the time given to us to

7 deal with this problem is many times smaller than the Prosecution had for

8 its preparations in view of the provisions of Rule 94 bis, on the one

9 hand, and on the other, that the resources available to the Defence are

10 also far more limited than those at the disposal of the Prosecution.

11 For those reasons, the Defence appeals to Your Honours to take all

12 these arguments into consideration when bringing your decision.

13 JUDGE RODRIGUES: [Interpretation] Thank you very much,

14 Mr. Visnjic.

15 Ms. Karagiannakis, is there something that you should like to add,

16 but very briefly, please?

17 MS. KARAGIANNAKIS: Two very brief comments, Your Honour. First

18 of all, when experts go to Bosnia to conduct exhumations, they do not

19 leave the field until approximately October, at the end of the year.

20 And the second comment is with respect to resources. Obviously,

21 it takes a lot more time to conduct exhumations than to reply to the

22 methodology and the conclusions that result from the physical evidence

23 taken from those exhumations. However, the Prosecutor does agree that the

24 Defence ought to have a reasonable time to review our reports. These

25 reports have indeed been provided to them in March and in February, and it

Page 9101

1 is our view that with the scheduling that I proposed earlier, a reasonable

2 time would be allowed to them and their expert to provide such additional

3 written reports.

4 Perhaps just one more comment, Your Honour. We agreed to

5 Dr. Stankovic's report being filed as a piece of evidence in this case

6 without calling him to trial, and we replied to his criticisms, minor

7 criticisms, of our experts' reports in writing. So it has been done

8 before, and it's our submission that it should be done again.

9 JUDGE RODRIGUES: [Interpretation] Thank you very much,

10 Ms. Karagiannakis.

11 So we will review all that has been said, and we will make a

12 ruling.

13 Excuse me.

14 MR. VISNJIC: [Interpretation] Mr. President, there is one more

15 issue that we have some hesitation about and that is when the time begins

16 to run, that is, the 15-day time limit according to Rule 94 bis for the

17 Defence. Actually, we have two possibilities, either that it begins to

18 run from the moment the Trial Chamber makes its decision, should it grant

19 the request of the Prosecution, or would that time begin to run from the

20 moment the Prosecution filed its request?

21 Of course, we would prefer the former solution in view of the fact

22 that until a Trial Chamber makes a decision, we are not in a position to

23 anticipate something that is still uncertain. Thank you.

24 JUDGE RODRIGUES: [Interpretation] Thank you very much,

25 Mr. Visnjic.

Page 9102

1 Ms. Karagiannakis, do you have any comments to that? No? I see a

2 negative sign from the Prosecution bench.

3 So we'll go on to the motion of the Defence now.

4 Yes. Madam Judge Wald tells me that as we're going to discuss

5 matters which could affect certain confidential information disclosed in

6 private session, we should conduct our discussions in private session as

7 well. So let us go into private session, please.

8 [Private session]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

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Page 9103













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Page 9109

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17 [redacted]

18 [redacted]

19 ---Recess taken at 2.10 p.m.

20 --- On resuming at 4.13 p.m.

21 [Closed session]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 9176













13 Pages 9110-9176 redacted –closed session









22 --- Whereupon the hearing adjourned

23 at 7.58 p.m., to be reconvened on Monday,

24 the 2nd day of April, 2001, at 9.30 a.m.