1 Wednesday, 11 September 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.33 a.m.
5 JUDGE ORIE: Good morning to everyone. Madam Registrar, would
6 you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. This is case
8 IT-09-92-T, the Prosecutor versus Ratko Mladic.
9 JUDGE ORIE: Thank you, Madam Registrar. Mr. Groome, the Chamber
10 was informed that you would like to address the Chamber and as we
11 understood in relation to health and scheduling issues. Of course, if
12 you want to raise any new matter, you're free to do so, but at this
13 moment, nothing is pending before the Chamber. The scheduling issue is
14 before the Appeals Chamber and we are in court here today. There is
15 nothing at this moment to decide or to further consider.
16 MR. GROOME: Well, Your Honour, there are two matters. With
17 respect to the -- I think the submission that the Chamber is referring
18 to, I am down here in response to the Chamber's ruling yesterday evening
19 that we would proceed without Mr. Mladic if absent clear medical
20 indication. I agree that that is no longer -- he is here.
21 JUDGE ORIE: Mr. Mladic is here, so that's not anything --
22 MR. GROOME: I would reserve that. I would ask the Chamber
23 should we come to that moment again, that juncture again, I be given an
24 opportunity to address the Chamber. With respect to the second matter,
25 the second -- the next witness after Mr. Butler is Maria Karall. She is
1 an employee of the OTP and her last day in the office is on Friday before
2 she returns to her home country. The Prosecution is requesting that if
3 Mr. Butler's examination is not concluded before Friday, that the Chamber
4 intervene or interpose Ms. Karall's evidence so that she can complete it
5 before she leaves the office. Her evidence is relatively short as the
6 Chamber will see from the schedule.
7 JUDGE ORIE: Thank you. Any response by the Defence to that
8 request? Mr. Lukic, Mr. Stojanovic?
9 MR. STOJANOVIC: [No interpretation]
10 JUDGE ORIE: I don't receive English --
11 MR. STOJANOVIC: [Interpretation] Your Honour, I am supposed to be
12 cross-examining the lady on Friday and we do not have a problem with
13 hearing her testimony on Friday.
14 JUDGE ORIE: That's then -- if need be and if it could be
15 arranged with Mr. Butler the Chamber does not oppose such a course of
17 MR. GROOME: Thank you.
18 JUDGE ORIE: Then could the witness be escorted into the
19 courtroom. Meanwhile, I use the opportunity for the following: On the
20 6th of September of this year, the Defence has filed a motion for a
21 45-day extension of its deadline to file a response to the Prosecution's
22 33rd, 92 bis motion noting as support for its request the current heavy
23 work load of the Defence.
24 Having taken into consideration the Defence's current work load,
25 as well as the relatively short and uncomplicated nature of the
1 Prosecution's motion, the Chamber grants the Defence an additional two
2 weeks in which to respond, setting the new deadline at the 23rd of
3 September of 2013.
4 [The witness takes the stand]
5 JUDGE ORIE: Good morning, Mr. Butler.
6 THE WITNESS: Good morning, sir.
7 JUDGE ORIE: I'd like to remind you that you're still bound by
8 the solemn declaration you've given at the beginning of your testimony
9 and you'll now be cross-examined by Mr. Ivetic. Mr. Ivetic is a member
10 of the Defence team of Mr. Mladic.
11 WITNESS: RICHARD BUTLER [Resumed]
12 THE WITNESS: Yes.
13 JUDGE ORIE: Please proceed, Mr. Ivetic.
14 MR. IVETIC: Thank you, Your Honours.
15 Cross-examination by Mr. Ivetic:
16 Q. Good day, Mr. Butler.
17 A. Good morning, sir.
18 Q. If you're ready I think we can begin. First of all, sir, are you
19 proficient in the Serbian language so as to be able to speak, read and
20 understand the same on your own?
21 A. No, sir, I'm not.
22 Q. During the course of review of documents at the
23 Office of the Prosecutor, did you reach conclusions based on a review of
24 English translations of documents or did you use the original Serbian
25 documents with the assistance of a translator?
1 A. All of the conclusions that I reached with respect to documents
2 that were written in B/C/S, as the language as we called it, were done
3 based off of the English-language translations.
4 Q. Thank you. Now, you indicated, I think, in some of your reports
5 that you reserved the right to supplement your reports and conclusions
6 because there still existed a large body of documentation at the
7 Office of the Prosecutor that had not been processed, and I presume
8 translated, am I right?
9 A. Yes, sir. Particularly in 2003, we were just getting what were
10 known as the tactical intercepts and then of course after I left we came
11 into possession of the Drina Corps documents, so obviously as an analyst
12 I hold open the possibility that new information may come available which
13 may change me to, you know, change an opinion or a conclusion.
14 Q. Now, in relation to these documents, and written materials that
15 had not yet been processed during your tenure at the Office of the
16 Prosecutor or had not been translated, do you have an idea
17 percentage-wise how much of the entire OTP collection relating to the
18 conflict in Bosnia-Herzegovina are we talking about? How much material
19 did you not have access to to review for purposes of doing your work?
20 A. I guess I don't understand the question. I mean, obviously as an
21 employee of the Office of the Prosecutor I had access to all of the
22 materials in the possession of the Office of the Prosecutor with respect
23 to documents. I could not hazard a guess as to what percentage the new
24 tactical material and the new Drina Corps material made of the larger
25 overall body of information. I don't think to this day anyone could even
1 give you a count of the exact quantity of documents the
2 Office of the Prosecutor thinks it holds.
3 Q. Fair enough, sir. Now, did you maintain a log of documents and
4 materials that you either reviewed or consulted during the course of your
5 work as an analyst and then also as an expert at the
6 Office of the Prosecutor?
7 A. I started to do that early on during my initial review of the
8 documents and very rapidly it became clear that the sheer volume of
9 documents if I were to continue that process I would spend all of my time
10 logging documents as opposed to actually analysing them. What I have
11 done and what I tended to do again is noted in my narrative reports is
12 I referenced a large documents or collections that I reviewed and
13 I extensively cite to the documents that I'm talking about in the
15 Q. Can I take from your answer, sir, that not every document that
16 you would have looked at or consulted can be found in the reports that
17 you've drafted, cited?
18 A. Oh, yes, sir, absolutely.
19 Q. Okay. Now I'd like to know from you how it was that the
20 documents would be selected to be processed or reviewed by you, and what
21 I mean by that is did other Prosecution staff come to you with documents
22 that they had preselected for your review or did you go through the
23 corpus of documentation to select and find documents to analyse?
24 A. It was the latter. It was my office, the military analyst team,
25 that had first crack at the documents, as it were, following the searches
1 of the Zvornik and the Bratunac Brigade. It was our team's
2 responsibility to go through all of the single documents -- all of the
3 documents in both particular collections as well as the Krajina Corps
4 collection which we obtained at the same time, and the first line of
5 attack it was essentially make an index of the entire collection. So the
6 military analysts did that portion. The second part obviously in looking
7 at the documents in question, for the construction of my reports, the
8 documents that I selected, I selected. They were not selected for me by
9 anyone in that particular context, so I mean it's entirely my discretion
10 as to what goes in those reports or what did not go in those reports.
11 Q. Thank you, sir. And now to segue into my next set of questions
12 I'd like to call up in e-court 1D1241 which I think we will see is a
13 portion of the transcript from the Popovic trial, and if we can have page
14 18 of that document in e-court, which should correlate to transcript
15 page 19592 of the underlying transcript. And, sir, if you could follow
16 along with me I'd like to read back lines 2 through 8 and then ask you
17 some follow-up questions about the testimony you gave there:
18 "Q. All right. And how about information from the investigation?
19 Did you have access to that kind of information?
20 A. Yes, sir. I mean, I had full access to the investigators as
21 well as all of the facets of the investigation that was going on,
22 certainly with respect to interviewing military personnel, interviewing
23 police personnel, things of that nature. So I -- I had full access to
24 all of the materials of the investigation during my time here from 1997
25 through 2003."
1 Now, sir, first I have to ask you, is this selection that we've
2 gone through together accurately recording the testimony that you gave or
3 that you remember giving in the Popovic case on this question?
4 A. Yes, sir, it does.
5 Q. And is it truthful?
6 A. Yes, sir.
7 Q. Now, what I want to ask you about is did you still have full
8 access to the materials and all facets of the OTP investigation at any
9 time subsequent to leaving UN employment in 2003 and if so, when and why?
10 A. The answer is yes, sir, at least parts of the material. One of
11 the things that the Office of the Prosecutor agreed to and permitted me
12 was to maintain access to the EDS system which would allow me to access
13 documents on my own as I was preparing subsequent reports or preparing
14 for testimony here. The other practice that we normally did with the
15 Office of the Prosecutor is that perhaps six to eight months before a
16 projected period where I might testify, the US government would make me
17 available and I would come here to The Hague and spend several weeks
18 reviewing new documents, new statements, new issues like that, that have
19 come up from the Office of the Prosecutor. So I could look at any of the
20 new material and make an analysis as to whether or not that either
21 confirmed previous-held opinions or views or whether this new information
22 would cause me to modify those views.
23 Q. Now, during that time period when you say you would come here six
24 to eight months before your intended testimony to review new statements,
25 new documents, new issues, that have come up from the
1 Office of the Prosecutor, would those be selected or collated for you by
2 the Office of the Prosecutor or would you have to search through the
3 corpus of the documents to obtain that information and those documents?
4 A. I -- when I came here, the normal practice was Mr. McCloskey or
5 another member of the Prosecution staff would have a bunch of documents
6 that they would of course want me to look at. My normal practice was not
7 only to look at those but to also go talk to the remaining military
8 analysts who I knew handled these collections. I would normally get
9 copies of the large spreadsheets that they had accumulated, indexing
10 these documents, and very frequently I would ask for additional
11 information. Same with the witness statements. So I mean, I've never
12 felt in all my time since leaving the Tribunal that if I did not ask for
13 a particular document or set of documents, you know, I would not be given
14 immediate access to it.
15 Q. Now, am I correct that for purposes of the work that you did in
16 preparation for the Popovic trial, you did not obtain and comprehensively
17 review all of the documents with respect to the ABiH military from the
18 collection but, rather, limited your review for the month of July 1995
19 and material that you were able -- that the Office of the Prosecutor was
20 able to obtain in a search of the 2nd Corps as well as some ABiH
21 documents, the Zvornik Brigade of the VRS had, by virtue of their capture
22 of some documents from the 28th Division?
23 A. Yes, sir. My focus was limited to July 1995 that corresponds
24 with the crime base as charged in the indictments.
25 Q. But my question was, sir, is it correct that you did not review
1 all of the documentation from the ABiH military from July 1995 but,
2 rather, limited your review to documents obtained from the 2nd Corps
3 during an OTP search and some ABiH documents that were in the possession
4 of the Zvornik Brigade having been captured from elements of the
5 28th Division?
6 A. I did review the documents of the 28th Division that were
7 captured by the Zvornik Brigade, and I did review documents, not all of
8 them I presume but certainly some from the ABiH, the 2nd Corps, in
9 July of 1995. I can't tell you what documents I didn't review.
10 Q. Okay. If we can -- strike that. Can you tell me, subsequent to
11 your work in the Popovic case, have you undertaken to go back and review
12 any further material from the ABiH, that is ABiH documentation, that is
13 in the possession of the Prosecution relating to July 1995 to do a more
14 comprehensive review?
15 A. Well, I can tell you that I didn't start the process to do that,
16 but during my cross-examination by General Tolimir, we spent many hours
17 reviewing ABiH documents from July 1995, so obviously I have seen them
18 and have discussed them at some detail.
19 Q. And do you think discussing documents in some detail in
20 cross-examination is equal to the type of review that you would have done
21 had you been preparing your report, looking at the documents, cross
22 checking them, verifying them at your leisure?
23 A. No, I don't but again I go back to my original position which is
24 I would only spend my time and deal with issues that were relevant in the
25 sense of Srebrenica 1995. If I've already intellectually conceded that
1 the VRS had the military legitimate right to attack the 28th Division,
2 the actual day-to-day combat by the 28th Division did not have relevance
3 to what I was seeking to analyse.
4 Q. Okay, since you say that you would only spend your time with
5 items that were relevant in the sense of Srebrenica 1995, am I correct
6 that for purposes of your review and work for both the Popovic case in
7 2008 and the Perisic case in 2009 you did not have occasion to address or
8 analyse the so-called NIOD, N-I-O-D, report of the Dutch authorities as
9 to Srebrenica 1995 because it -- at that time it had not been translated
10 fully from Dutch into English?
11 A. Correct, sir, and also, I would tell you that I also did not
12 review that particular report because my understanding was that when I am
13 called before this particular Tribunal and others to testify about my
14 work, I testify about my work. I'm not here to testify about past ICTY
15 judgements and I'm not here to testify about the NIOD report so ...
16 Q. Since portions of that report now have been translated into
17 English, have you since that time undertaken to analyse or review the
18 NIOD report and if so, how much of it or what portions?
19 A. I have not, sir. I have not reviewed it. I have not analysed
21 Q. Okay. Is it your position that the NIOD report is not relevant
22 material to the type of expert review that you were doing?
23 A. No, sir. My position is that when I'm called to testify here I'm
24 called to testify about my work and I don't want to be in a position of
25 testifying about my work somehow influenced by another body of work. My
1 analysis is limited in this respect to the military documents and what
2 they mean in relation to the crimes as charged in 1995. It is not to do
3 a comprehensive historical review of all things that happened in
5 Q. In relation to your work for the beginning of your tenure to the
6 present day, would you agree with me that the -- that you have never
7 obtained or performed -- the comprehensive corpus of the entirety of the
8 documents from the VRS Main Staff and thus did not have the ability to
9 analyse and review those documents?
10 A. To this date, I am not aware that we have an entire collection of
11 documents from the Main Staff. That is correct, sir. And when I say,
12 "We," I mean the Office of the Prosecutor in that sense.
13 Q. Okay. Now, for purposes of the review that you have done in all
14 the cases here at the ICTY where you are relying on a document said to be
15 issued by General Ratko Mladic, would you agree that most of these
16 documents would be the teletype printed signature which would be the copy
17 received on the receiving end of a teletype transmission rather than the
18 original with the originating stamp and original signature of either
19 General Mladic or whomever sent the communication under his name?
20 A. I'm not sure I would agree or disagree, simply because I've never
21 actually conducted that type of an analysis to determine what percentage
22 of documents fall into either category.
23 Q. Fair enough, sir. And is it correct that for purposes of
24 preparing your reports in this case, you did not take into account or
25 review either the SFRY constitution nor the constitution of its
1 constituent Republic of Bosnia-Herzegovina?
2 A. I don't believe I've reviewed the constitutions of either. In
3 general I may have looked at them, but certainly for the type of analysis
4 that I'm doing from a military context, a review of a constitution for
5 either ABiH or the SFRY, I didn't think it was particularly useful.
6 Q. And when you say you didn't think it was particularly useful, was
7 that a decision you reached or a decision that someone else within the
8 Office of the Prosecution reached?
9 A. That would be my decision. Obviously the constitution of the
10 Republika Srpska and its laws would be the controlling factors, given the
11 fact that the officers that we were looking at with respect to their
12 potential involvement in the crimes were officers of that particular
13 entity or state. So again it was my decision, and that's why I believed
14 those other documents that you mentioned weren't particularly relevant.
15 Q. Now, in the course of your work at the Office of the Prosecutor,
16 did you have occasion to seek the consultation of any other experts,
17 whether military or otherwise, and whether internal to the Office of the
18 Prosecutor or external to the Office of the Prosecutor?
19 A. Well, first, I sat in an office with eight other military
20 analysts from various countries. I'm not sure how much they appreciated
21 it but I certainly was willing to reach out at any opportunity to float
22 any odd-ball idea I might have had off of them. So I had access to those
23 individuals and their professional observations on certain issues. Until
24 the Krstic case began and the documents began becoming public exhibits,
25 it was a closed collection. As a result, I did not have the opportunity
1 to consult with outside experts with respect to on a day-to-day basis.
2 There were no outside -- if you're on staff, by definition you're not an
3 outside expert. I was, however, during the course of the Krstic trial,
4 able to present my work to General Dannatt, who was a military expert
5 witness for the prosecutor in that case, and he did have the opportunity
6 to review my narrative reports as well as the -- the narrative report and
7 the command report that were published at the time.
8 Q. And did General Dannatt have any contributions to your report?
9 A. No, sir.
10 Q. Okay. Apart from the review to personnel within the military
11 analysts office of the Office of the Prosecutor and General Dannatt that
12 you've just testified about, did you at any time subsequent to the Krstic
13 case submit any of the newer reports for any type of academic peer review
15 A. I don't know if you could qualify it -- I mean I'm not an
16 academic obviously and I don't put myself off to be one, but certainly
17 since the publication of those original reports and subsequent reports,
18 I've been cross-examined by 20 Defence counsel and perhaps 20 some-odd
19 military experts, as well as six different trial panels on those
20 particular reports, so I would qualify that as peer review on steroids.
21 Certainly these reports are public. They have been public for over a
22 decade now, with the exception of the Main Staff report, and there has
23 been an enormous opportunity for a variety of people with military
24 experience to comment on them if they choose to.
25 Q. Now, did I understand you correctly that these written expert
1 reports that we have and the drafted Srebrenica narrative that's being
2 presented in this case, originally started off as internal aids - I think
3 "running guides" is the term that you used - to assist Prosecution
4 counsel and investigators to do their work?
5 A. Yes, sir, that is correct.
6 Q. Did you at any time consult or review any treatises written by
7 others recognised as experts on the topic of the structure and
8 functioning of the JNA or the Yugoslav All People's Defence for purposes
9 of preparing these internal aids or running guides to assist Prosecution
10 counsel and investigators in doing their work?
11 A. Well, sir, at that particular time in 1997 and 1998, it would not
12 particularly surprise you that members of the RS or the SFRY were not
13 exactly keen to co-operate with the Office of the Prosecutor. So we
14 certainly did not have access to individuals from there. What I did have
15 access to, however, was, and I did follow to some degree, other
16 proceedings that were going on at the Tribunal, where various Defence
17 experts who were former SFRY military officers would testify in various
18 other cases in order to obtain snippets of information as to how the
19 various armed forces of the warring factions were organised.
20 Q. Now, you say the RS and the SFRY. By that time, did you mean the
22 A. Yes, sir, that would be accurate.
23 Q. What about Croatia, Slovenia, Bosnia-Herzegovina, Macedonia? Did
24 you have good co-operation at the Office of the Prosecutor with the
25 military libraries in those countries?
1 A. We were able from the ABiH to obtain former JNA documents from
2 their military library which many of them were translated and used by me.
3 For obvious reasons, we did not go to ABiH military officers to try and
4 explain VRS military doctrine or tactics. So, again, we had a broad
5 collection of the doctrinal and regulatory material that was provided by
6 various countries. We did not avail ourselves to using ABiH or
7 Macedonian officers in that respect or Croatian officers to explain, at
8 least to the Srebrenica trial team, how the VRS may or may not have
10 Q. Perhaps we are not understanding each other, sir. I asked you
11 about treatises written, contained in libraries as to the JNA and the
12 Yugoslav All People's Defence system that would have been available in
13 Croatia, in Slovenia, in Macedonia and in Bosnia-Herzegovina dating from
14 before the conflict that would have discussed the types of structures
15 that you were tasked with reviewing to determine if the VRS operated
16 under those same rules, regulations and doctrine.
17 A. I didn't need to see that material, simply because once we had
18 the basic JNA rules and regulations that we were able to obtain and we
19 had them translated, we can do that analysis ourself. So generally
20 speaking, I mean, the only treatises or expert papers that I recall I did
21 read would be those papers relating to the SFRY and some analysis by
22 their legal branch as to the recent publication of the rules on the law
23 of land warfare and how they applied.
24 Q. Now I'm curious. How does this process work? Who is it at the
25 military analysts' office that decides we are going to look at this
1 treatise or document but we are not going to be concerned with any
2 others, we are not going to seek out the existence of any others? How
3 does that decision making process work? How do you know what is relevant
4 to look at, what is germane to look at, and what is considered to be
5 authoritative on the subject that you're looking at, if all you're taking
6 is the documents translating them and reviewing them without relating to
7 prior treatises done by professionals in -- who studied the forces of the
8 JNA and the All People's Defence system for an extensive period of time?
9 JUDGE ORIE: Mr. McCloskey?
10 MR. McCLOSKEY: Could we have a foundation of what treatises he's
11 talking about? I'm not aware of any and we are creating this -- this --
12 perhaps it's real, perhaps it's a fiction, but what treatises is he not
14 JUDGE ORIE: Mr. Ivetic, you're reviewing to what the witness may
15 have missed. Could you give him any clue as to what he may have
16 overlooked so as a basis for this question?
17 MR. IVETIC: Your Honours, it's my understanding that multiple
18 books and publications from the formation of the JNA through its demise
19 were written and are contained in all the libraries of the former
20 Yugoslav republics. If he looked and he knows what is out there then he
21 can choose what he can look at and what he cannot look at. Our position
22 is that they did not even seek those out, so I don't think they are
23 giving any kind of titles to this gentleman -- will assist him in
24 refreshing his recollection but he's quite capable of answering and
25 telling me whether I'm correct in my assertion.
1 JUDGE ORIE: The witness may answer the question but I express as
2 a concern at this moment that we are dealing with all these matters on a
3 level of abstraction which might not bring us very much, and does not
4 touch upon the substance of what the witness testified about, which is of
5 equal if not more importance to the Chamber.
6 MR. IVETIC: I agree, Your Honours.
7 JUDGE ORIE: The witness may answer the question.
8 JUDGE MOLOTO: Before he answers the question I have a question
9 to the witness myself. Mr. Butler, in your brief that you were given by
10 the OTP, was it ever part of your task to review these treatises that are
11 being referred to in order to determine if the VRS operated under
12 those -- the same rules and regulations and doctrine of the various
13 countries that have been mentioned?
14 THE WITNESS: I think I can answer both questions at once, sir.
15 Given the fact that the VRS was created in 1992, I did not particularly
16 think that more abstract writings on various JNA topics in the 1970s or
17 1980s was particularly relevant to that. The question at hand was
18 whether or not the VRS, as constituted in 1992, was following the broader
19 rules and regulations of the former JNA and applying those in their daily
20 activities and in their combat operations.
21 JUDGE MOLOTO: And my question is: Were you tasked with making
22 the determination?
23 THE WITNESS: I was tasked with making the determination whether
24 or not VRS was operating in a similar manner to the JNA in accordance
25 with their rules. I don't recall if it's by the Prosecution, but
1 certainly I knew I had to accomplish that mission in order to go further.
2 JUDGE MOLOTO: I thank you so much.
3 JUDGE ORIE: Please proceed, Mr. Ivetic.
4 MR. IVETIC: Thank you, Your Honours.
5 Q. Now if we can get back to these original internal aids or running
6 guides that you drafted for the assistance of Prosecution personnel that
7 eventually led to the drafting of the expert reports, do you still have
8 those original written documents that were running guides for the
9 Prosecution and, if so, do you have a problem with them being disclosed
10 to the Defence?
11 A. I certainly don't have copies of those early initial versions.
12 They were on the -- if they still exist, they -- there may be electronic
13 copies of them on the share drive. I don't know whether or not they have
14 been disclosed or are disclosable.
15 Q. Were these early writings by you for the assistance of
16 Prosecution staff distributed only within the Office of the Prosecutor or
17 were they distributed to others at the Tribunal for their information and
18 potential use?
19 A. The distribution of that material at that time was limited to
20 individuals of the Office of the Prosecutor only, and the specific
21 investigation teams that needed them. I don't know who at that time
22 outside the Office of the Prosecutor would have had any interest in
23 looking at them.
24 Q. Okay. Well, how about your superiors at the US armed forcers
25 while you were still employed by them? Were you provided copies -- were
1 they provided copies of these?
2 A. I can tell you that they would definitely fall in the category of
3 people who had no interest of what I was writing.
4 Q. Thank you, sir. Now, you have been listed as a Rule 70 witness
5 as in prior trials and in the past there has been counsel from the US
6 embassy in court, so I do have to ask you, for purposes of the work that
7 you did, did you utilise any information or perhaps intelligence
8 resources of the United States or its armed forces in preparing your
9 reports which would not have originated from the
10 Office of the Prosecutor?
11 A. No, sir, I did not.
12 Q. And did the United States of America or personnel of the US armed
13 forces have a role in approving or vetting the final reports that we now
14 have before us?
15 A. No, sir, that would go back to -- again that would imply they
16 actually cared at that time.
17 Q. Okay. Now I want to take you back to that point in time during
18 your tenure at the Office of the Prosecutor to find out when it was that
19 the -- or how it came about that the decision was made to transform this
20 prior work into an expert report and then to change you from an analyst
21 to a potential expert witness to be used as evidence before the
22 Trial Chambers.
23 A. Oh, you want me to explain it in a running narrative or were you
24 going to ask me a question?
25 Q. I was going to ask you a question. How and when did that
1 decision become made, and who made it? Did you propose it to the
2 Prosecution or did the Prosecution counsel propose it to you? That's a
3 simple question.
4 A. If I recall correctly, sometime after General Krstic was arrested
5 and we were in a pre-trial phase, there was discussions as to whether or
6 not -- or maybe not whether or not but probably more accurately how the
7 Office of the Prosecutor could effectively explain in some context what
8 the military documents meant with respect to then General Krstic. The
9 various Prosecutors, and certainly it wasn't a unanimous decision, did
10 come to the conclusion that the best way to do that would be to
11 essentially have me publish those reports that I had created as internal
12 aids and testify behind them as a way of allowing the Court to understand
13 what all of the military documents meant in context to the crime scenes
14 and other military activities that were going on. So it was only after
15 General Krstic had been apprehended and we were preparing to go to trial
16 that that decision was made.
17 Q. Now, am I correct that during the first several years that you
18 were at the Office of the Prosecutor, during the time period when you
19 were still an active duty army officer, at that time, you were salaried
20 and paid by the US army?
21 A. Correct, sir.
22 Q. And at the time that you were still being paid by the
23 United States Army as an active duty army officer, but were on loan to
24 the Office of the Prosecutor, did you perform any additional duties for
25 the US army or was your work entirely for the Office of the Prosecutor of
1 this Tribunal?
2 A. No, sir. Once when I was loaned to the Office of the Prosecutor
3 or seconded, I took all of my tasking from them, them being the Office of
4 the Prosecutor and the ICTY. I had no other additional duties with the
5 United States Army.
6 Q. Okay. And now if you could tie that together with the answer you
7 gave as to when you would have been transformed into an expert, during
8 the time period that were you salaried by the US army were you at that
9 time already acting as an expert or did that take place sometime later?
10 A. Well, sir, the -- my official title as an individual who was
11 seconded like anybody else in the UN system was expert on mission. I was
12 acting as a military analyst like the other military analysts for the
13 Office of the Prosecutor. We certainly never called ourselves military
14 experts per se.
15 Q. You've mentioned other military analysts for the Office of the
16 Prosecutor. Are you familiar with an individual by the name of
17 Mr. Philip Coo?
18 A. Yes, sir, I am.
19 Q. Was he a colleague of yours at the military analysts office at
20 the Office of the Prosecutor doing similar work as your own, analysing
21 military documents and seeking to testify as an expert in court about the
23 A. Mr. Coo was a military analyst who came years after I did. He
24 was working on a different set of cases. I -- again because of the fact
25 that I was working Bosnian Serb related cases and he was working
1 different cases, I don't know of the specifics of what the team that he
2 was working for had an intention with him to testify or not.
3 Q. Are you aware that two Trial Chambers in the Milutinovic case and
4 the Djordjevic case declined to treat Mr. Coo as an expert because his
5 methodology of analysis of military documents and giving the meaning of
6 the same would infringe upon the Chamber's domain of assessing the
7 documents and evidence?
8 A. I was -- I was aware that at one point I think that there was an
9 application out for him to testify. I don't recall I ever knew of the
10 ultimate decisions.
11 Q. Okay. Thank you. Then I'll move on. Now, I don't propose to go
12 through your CV with any great amount of detail but I would like to ask
13 you about some of your experience, in particular especially matters that
14 are not reflected in your CS, such as your formal education, for one.
15 I'd like to go back to the time period before the ICTY and, first of all,
16 why don't you tell us in relation to your formal education, am I correct
17 that your college degree was a bachelor's degree in political science at
18 the European division of the University of Maryland earned as part-time
19 evening student while were you simultaneously serving in the US armed
21 A. Correct, sir.
22 Q. Can you tell me if any of your course work towards this degree
23 involved any studies of the framework of the state of Yugoslavia or its
24 armed forces system or its national defence doctrine?
25 A. No, sir.
1 Q. Now then I want to move on away from your education to your work
2 in the US army. First of all, can you tell me if you attended courses at
3 or earned degrees at any military schools or academies and, if so, what
4 field your course of study was in?
5 A. As my resume notes, I did attend the military intelligence
6 warrant officer basic and advanced courses at Fort Huachuca. I passed
7 those courses successfully and have certificates related to that, but it
8 is not a military academy per se.
9 Q. And I think -- well, just to verify and that those courses would
10 not have dealt with the state of Yugoslavia or its armed forces or the
11 national defence doctrine as part of their curriculum?
12 A. Correct, sir.
13 Q. Now I want to focus on your actual duties, duty posts within the
14 US army. First of all, am I correct that your first operational
15 assignment started in January of 1982 and lasted until 1985 when you were
16 assigned to a military intelligence group in Europe?
17 A. Yes, sir, from January of 1982 to July of 1985, I was assigned to
18 the 66th military intelligence group, at that time stationed in Munich,
20 Q. During your time from 1982 to 1985, with the 66th military
21 intelligence group, did have you any duties involving work in relation to
22 or exposure to the Socialist Federal Republic of Yugoslavia, its armed
23 forces or its national defence doctrine?
24 A. No, sir, I did not.
25 Q. After that you were deployed to Texas for sometime and eventually
1 transferred to the United States central command where for two years you
2 studied the Soviet army operations in Afghanistan; is that right?
3 A. Correct, sir.
4 Q. Did you at that time --
5 THE INTERPRETER: Kindly slow down please for the interpreters,
6 thank you.
7 MR. IVETIC: I apologise.
8 Q. Did you during that time at the central command have any duties
9 researching or studying the JNA for any purposes whatsoever?
10 A. Clearly not, sir.
11 Q. Am I correct that you did a second tour of duty in Europe after
12 being made a warrant officer, being assigned to the all-source production
13 section of the 3rd infantry division in Wurzburg, Germany?
14 A. Correct, sir.
15 Q. And at that time, did any of your work involve collecting
16 intelligence on or studying the state of Yugoslavia or its armed forces
17 or national defence doctrine?
18 A. Actually, for a several month period at the end of that, I did
19 look a little bit into Yugoslavia. At that time, in 1992, or 1991 and
20 1992, there was some discussion of a European rapid reaction force
21 potentially deploying to the former Yugoslavia and as a part of the US
22 component of that, the 3rd Infantry Division was assigned to start
23 potentially looking at military options and obviously supporting the
24 intelligence portion of that, I did have to start making myself aware of
25 general aspects of the ongoing conflict. Having said that, it did not
1 include an in-depth analytical review of the Yugoslav National Army,
2 All People's Defence, things of that nature.
3 Q. Now, you've said that there was discussion of a quote/unquote
4 "European rapid reaction force." Did you mean to say that there was
5 contingency planning going on with respect to the possibility of NATO
6 forces being deployed to Bosnia in some form or fashion?
7 A. At that time, it wasn't necessarily NATO. It was still this
8 thing called the Western European union and a European rapid reaction
9 force that was supposedly being put together for it. There was a US
10 component but it -- as it was designed, it was supposed to operate
11 outside of NATO. I think as history notes it wasn't a particularly
12 successful military cohesive body, and as a result everything kind of
13 fell back on NATO again.
14 Q. So was the contingency planning foreseeing the Western European
15 union or NATO action in Bosnia, sir?
16 A. Well, when I was there it was a WEU, as I recall. It may have
17 transitioned to NATO sometime in 1992 but by then I was already leaving
18 the division and going on to my next assignment, so I don't know any of
19 those issues.
20 MR. IVETIC: If we can call up in e-court 1D1241 and page 12 in
21 e-court. It should correlate to transcript page 19586 from the Popovic
23 Q. And I'd like to review with you, sir, the answer you give
24 starting at line 2 on this page, and if you could follow along I'll have
25 some questions for you:
1 "A. After finishing up with my assignment in south-west Asia,
2 with US 7th Corps, doing what is now known, I guess, as the first
3 Gulf War, I reverted back to my original position in 3rd
4 Infantry Division in Wurzburg, Germany. At that time it was early 1992
5 and as part of NATO, and part of the central army group, there was
6 contingency planning going on with respect to the possibility of NATO
7 forces being deployed to Bosnia in some form or fashion."
8 Does that refresh your recollection, sir, if the work you did was
9 specifically geared towards having NATO intervention in Bosnia?
10 A. Again, yes, sir, I mean obviously my mind is playing a little
11 trick on me. It's been 20 years since that period of my life.
12 Q. And if we could turn or focus on line 24 of this transcript and
13 go on to the next page, I'd like to explore the types of sources that you
14 reviewed at that time to plan the contingencies of NATO involvement:
15 "We were not engaged in a day-to-day monitoring of the military
16 activities of any of the warring parties, if that's what you're getting
18 If we go to the next page:
19 "Q. Any general materials for historical background?
20 "A. At that time it would probably be whatever news and media
21 reports were coming out of Yugoslavia. I guess it's a matter of fact at
22 this point that certainly when the civil conflict in Bosnia started, it
23 wasn't a primary focus of the United States."
24 Sir, is this a fair and accurate rendition of the testimony you
25 gave as to the types of sources that you looked at during this time in
1 August of 1992?
2 A. Yes, sir. We -- Yugoslavia was not of intelligence collection
3 priority of the United States at that time, and therefore most of the
4 information that we were receiving about the warring parties and the
5 conflict in general was a result of open-source information generally
6 from the media.
7 Q. Okay. Now, as part of the work that you were doing during this
8 time period, potentially to support a deployment of NATO and US troops to
9 Bosnia, can you tell us were you preparing, participating in any
10 contingencies to have NATO forces intervene or act militarily against the
11 Army of the Republika Srpska or any Serb structures?
12 A. No, sir. Simply from our perspective, what we were doing at the
13 division level was trying to assemble basic information with respect to
14 the terrain, the road network, those general pieces of information that a
15 military force would have to know in order to move or garrison in an
16 area, things of that nature, rail movement issues to move the division if
17 possible. I don't recall that I ever participated in any meeting or did
18 any work with respect in 1992 with respect to any mission planning for
19 combat activities against anybody in the former Yugoslavia.
20 JUDGE ORIE: Mr. Ivetic, I'm looking at the clock.
21 MR. IVETIC: This would be a good time for a break, Your Honour.
22 JUDGE ORIE: Yes. Could the witness be escorted out of the
24 [The witness stands down]
25 JUDGE ORIE: We will take a break and we will resume at
1 10 minutes to 11.00.
2 --- Recess taken at 10.31 p.m.
3 --- On resuming at 10.53 a.m.
4 JUDGE ORIE: Could the witness be escorted into the courtroom.
5 By the way, Mr. McCloskey, we still need to find time to
6 accomplish what we started, that is to receive the comments of the
7 witness on the list of, I think on documents, which he may have
8 consulted. That's still to be done. I would rather do it than later
9 today. Or, Mr. Ivetic, if this would be a suitable moment to hear from
10 him on that matter first.
11 MR. IVETIC: Why don't we do it now before we lose sight of it,
12 Your Honours.
13 JUDGE ORIE: Yes.
14 [The witness takes the stand]
15 JUDGE ORIE: Mr. Butler, before we continue the
16 cross-examination, there was an outstanding issue that is you giving some
17 comments on a list of documents which were -- you were invited to review.
18 Are you ready to do it at this moment or would you rather take your time
19 in the next break to look at them again and then answer any questions in
20 relation to those?
21 THE WITNESS: No, sir. I'm prepared to do that now.
22 JUDGE ORIE: Then, Mr. McCloskey, what we asked, more or less, is
23 to look at the documents and I think that you would comment on whether
24 you had reviewed them while preparing your reports. That was the main
25 question, I think. And then do you have the list before you?
1 THE WITNESS: Yes, sir, I do.
2 JUDGE ORIE: And I think the first one was 65 ter 05385.
3 THE WITNESS: Yes, sir.
4 JUDGE ORIE: Any comment on whether you reviewed it, any further
5 comments on the documents?
6 THE WITNESS: No, sir, I have reviewed that document. When
7 I look at these documents I recognise many of them from not only my
8 review but I believe I also testified about them in the Tolimir case.
9 JUDGE ORIE: Yes. And do the parties -- do you have a similar
10 report for all of the documents or are there some which receive a
11 different report?
12 THE WITNESS: No, sir, there are a total of 16 documents that are
13 highlighted in yellow, three of which have exhibit numbers but the
14 remaining 13, the report is the same, I have reviewed the particular
15 document and in most cases I recall testifying about this particular
16 document in another context.
17 JUDGE ORIE: Yes. Any further questions on these documents?
18 MR. IVETIC: None from the Defence.
19 JUDGE ORIE: Mr. McCloskey?
20 MR. McCLOSKEY: None.
21 JUDGE ORIE: Then I think a list has been prepared.
22 Madam Registrar is then invited to --
23 [Trial Chamber and registrar confer]
24 JUDGE ORIE: Madam Registrar will prepare a list of the documents
25 and provisionally assign numbers so that we can decide on admission.
1 Then, Mr. Ivetic, having dealt with this matter, you may proceed.
2 You may continue your cross-examination.
3 MR. IVETIC: Thank you, Your Honour.
4 Q. Sir, I'd like to focus back again on this time period in
5 August of 1992, when you were working with the -- with the
6 3rd Infantry Division in Germany, working on contingency plans for NATO
7 intervention in Bosnia and Herzegovina. You've mentioned the open
8 intelligence sources that were you looking at. Did your work deal with
9 the results of any HUMINT from covert operatives already on the ground?
10 A. No, sir.
11 Q. In relation to the work or the contingencies that were being
12 worked on for purposes of this time period, was it foreseen that NATO or
13 US forces would militarily intervene or act against the Bosnian Muslim
14 armed forces or the Croats, or were those factions considered to be blue
15 or friendly forces?
16 JUDGE ORIE: Mr. McCloskey.
17 MR. McCLOSKEY: Relevance.
18 JUDGE ORIE: Mr. Ivetic.
19 MR. IVETIC: Well, Your Honours, this gentleman is here as an
20 expert witness, not as a fact witness, so to delve into the reliability,
21 independence and ability of someone to be an expert it would be important
22 to know whether they were a -- involved in any way preceding the party
23 that they are providing expertise upon as an enemy and if they had any
24 allegiance during the conflict. The jurisprudence this Tribunal has
25 disqualified persons who did have a role as an opposing force and so I'm
1 quite entitled, I think, to ask these questions.
2 JUDGE ORIE: However, your question was whether it was foreseen.
3 You did not ask the witness anything about his personal involvement in
4 that. So that's commenting on what others may have foreseen. Would you
5 please rephrase your question.
6 MR. IVETIC: Yes.
7 Q. In relation to the work that you did on these contingencies for
8 NATO to intervene in Bosnia-Herzegovina, were the Bosnian Muslim armed
9 forces and the Croat forces designated as blue or friendly forces?
10 A. No, sir. The work that I did was simply trying to assemble
11 information with respect to how the division could move from where it was
12 currently garrisoned in Germany to the effected region. If work like
13 that was being done by NATO staff, I mean, I wasn't a part of it and we
14 didn't see any of it.
15 Q. Thank you, sir. Now, at transcript page 16113 of last week's
16 transcript, you indicated your role as being to advise your commander
17 what an armed adversary is doing and assist him in their goal of
18 defeating said armed adversary. In the context of the contingency
19 planning that you were doing in August of 1992, did you at that time
20 consider the Army of Republika Srpska to be an armed adversary?
21 A. No, sir. We didn't consider anyone to be an armed adversary. I
22 believe that the assumption was that if NATO did deploy there and I don't
23 know under what circumstances they were thinking about, that it would be
24 as a peacekeeping force, not as a party to the conflict.
25 Q. Did any of your work whilst at the United States Army involve
1 planning the contingency of NATO or US forces clandestinely arming the
2 Bosnian Muslim or Bosnian Croat factions in Bosnia?
3 A. No, sir.
4 Q. Now, if we could just focus again on the last part of that
5 testimony that's still on the screen in front of us, when you say that
6 the types of materials that were used for this work were primarily news
7 and media reports coming out of Yugoslavia, would those have been media
8 and news reports of the domestic former Yugoslav news agencies or of
9 international news agencies?
10 A. It would have been whatever information we could have laid our
11 hands on at the time. Again, as I indicated, Yugoslavia, the Balkans
12 region was not an intelligence collection priority of the United States
13 at the time, certainly not the United States Army in Europe. And as a
14 result, we found ourselves having very little information of usable value
15 during those days.
16 Q. Would you agree with me that what you've just described as fairly
17 standard operating procedure when you come to a situation where you don't
18 have already-developed dossiers that you try to get your -- lay your
19 hands on everything you can about the topic, as a military analyst
20 working in your field?
21 A. Yes, sir.
22 Q. Was that done when you commenced your work for the
23 Office of the Prosecutor for purposes of generating the reports that you
24 subsequently authored?
25 A. Yes, sir. In the sense that when I was doing my initial
1 research, I tried to obtain material obviously translated in English that
2 would be useful for me to conduct my overall analysis. I tried to lay my
3 hands on whatever I thought would be useful.
4 Q. Okay. Now --
5 JUDGE ORIE: First of all, could Mr. Mladic lower the volume of
6 his voice.
7 Mr. Ivetic, when you referred to transcript page 16113 and talked
8 about an armed adversary, may I take it that you wanted to refer to a
9 potential armed adversary --
10 MR. IVETIC: Yes.
11 JUDGE ORIE: -- as the language?
12 MR. IVETIC: Yes, Your Honour, I misspoke if I did not include
14 JUDGE ORIE: Yes, please proceed.
15 MR. IVETIC:
16 Q. Now, sir, I'd like to move to your training and experience.
17 First of all, prior to the Office of the Prosecutor am I correct you had
18 no education or background in law or law enforcement?
19 A. Correct, sir. Prior to my coming to the ICTY, I -- my career
20 pattern was strictly military intelligence.
21 Q. And as a US army intelligence officer, you were forbidden by law
22 from having been -- from being involved in any criminal investigatory
23 work by virtue of your position; is that correct?
24 A. Yes, sir. At the time that was correct.
25 Q. Would you agree with me that you essentially learned techniques
1 and tactics while you were dealing with the law enforcement personnel and
2 lawyers at the Office of the Prosecutor?
3 A. Not necessarily learned techniques and tactics, but I certainly
4 had to adapt the techniques and tactics and methodologies that I would
5 traditionally use in a military intelligence sense in order to satisfy my
6 customers, which in this case were investigators and lawyers, yes, sir.
7 Q. And when you say to satisfy your customers, that would be the
8 Office of the Prosecutor, that would be lawyers and investigators within
9 the Office of the Prosecutor of the Tribunal?
10 A. Yes, sir, at the early stages of my work, that is correct.
11 Q. Now, I'd like to take a look at 1D1260 with you, and page 35 of
12 the same in e-court, which should correlate to transcript page 20155 of
13 the Popovic transcript. And the part I want to focus on with you is in
14 the beginning of the first dozen lines. And if you could again follow
15 along with me, sir:
16 "Q. Tell me what those techniques and tactics were that you
17 learned with respect to dealing with law enforcement since you had no
18 education and experience in those areas prior to that.
19 A. Well, by virtue of having access to not only a world-class
20 body of lawyers but also investigators from both common law and civil law
21 backgrounds, what I was able to do is, by watching them work, looking at
22 what they were doing, and what they were trying to accomplish with
23 respect to their own investigations, it gave me the foundation to be able
24 to look at what types of military information they would need to support
25 their investigative processes.
1 "Q. I honestly don't know if I understand you. Was that a
2 technique or a tactic that you explained to me?
3 "A. That would be a combination of both."
4 First of all, sir, does this accurately describe or depict your
5 testimony describing the process by which you learned techniques and
6 tactics whilst at the Office of the Prosecutor?
7 A. Well, learned or modified, yes, sir.
8 Q. Okay. Now, when you say that you were looking at what the
9 Prosecution staff were trying to accomplish, and that this gave you the
10 information you needed to know what type of military information they
11 would need to support their investigative process, am I correct that you
12 also wanted to provide them with military information that would let them
13 successfully accomplish their purpose of prosecuting persons for war
15 A. I would walk it back from prosecute and certainly acknowledge in
16 the early years I wanted them to be able obviously to successfully
17 investigate these crimes. So clearly for the first two and a half years
18 of my tenure here, one of the things I was very focused on doing working
19 with the investigators and lawyers was, again, as part of a joint
20 process, figuring out all of the facts related to the Srebrenica crime
21 base, how they lined up and identifying individuals who were potentially
23 Q. When you "say figuring out all of the facts relating to the
24 Srebrenica crime base" but you limited yourself to just the documentation
25 that the Office of the Prosecutor had and did not look beyond that to
1 NIOD or any other compendiums of information about fact relating to
2 Srebrenica in 1995?
3 JUDGE ORIE: Mr. McCloskey.
4 MR. McCLOSKEY: Objection. That is inferring that NIOD existed
5 at these early days which Mr. Butler is talking about and that would be
6 not true so I -- please, inferences like that are inappropriate.
7 JUDGE ORIE: Mr. Ivetic, I would like to add that the purpose of
8 what you're doing and the sources you were doing for that purpose are two
9 different matters and they should be clearly distinguished.
10 I think both may deserve attention but they are not to be mixed
12 Please proceed.
13 MR. IVETIC: Thank you, Your Honour. I can move on.
14 Q. We've mentioned a couple times today the Yugoslav national
15 defence doctrine. Would you agree with me and have you understood that
16 we have been talking about what is referred to in the vernacular in the
17 former Yugoslavia as the quote/end quote "All People's Defence"?
18 A. Correct, sir.
19 Q. In that regard, I believe you conceded in the Popovic trial at
20 transcript page 20565, lines 18 through 20, that you don't pretend to be
21 an expert on the issues of the All People's Defence doctrine. Do you
22 still hold that position or concession?
23 JUDGE MOLOTO: Could we get the page on the screen, please.
24 MR. IVETIC: Yes, we can. If we go to 1D1246. And page 61 of
25 that document should correlate to transcript page 20565, and lines 18
1 through 21.
2 Q. And perhaps since we have it up on the screen, sir, I'll read it
3 into the record and then ask you to confirm it:
4 "Q. Have you studied the concept of All People's Defence once you
5 had finished at the OTP?
6 "A. No. And I don't -- I don't pretend to be an expert on the
7 issue of All People's Defence."
8 Sir, does this transcript selection accurately report the
9 testimony that you remember giving in the Popovic case?
10 A. Yes, sir, it does.
11 Q. And is it truthful?
12 A. Yes, sir, it is.
13 Q. And is it still accurate that you still do not consider yourself
14 to be an expert on All People's Defence of the former Yugoslavia?
15 A. Yes, sir, that is correct.
16 Q. Okay. Thank you. Now, would you agree with me that both the JNA
17 and the VRS had within their composition units that were referred to as
18 belonging to the regiment echelon both of the artillery and infantry
19 type, albeit they were more common in the JNA prior to 1995?
20 A. Well, again, the JNA didn't exist in 1995. The former JNA did in
21 the late 1980s, early 1990s have regiments as their primary subordinate
22 formation for divisions. There may have been one or two units still
23 organised as regiments or called regiments in the VRS but I don't believe
24 that was common by any stretch, in 1995, particularly.
25 Q. Would you agree with me, sir, that you have not in fact done much
1 research on regimental rules or regimental formations as either under the
2 JNA or the VRS?
3 A. Correct, sir, the Drina Corps in 1995, to my knowledge, did not
4 have regiments and was not organised in a regimental system. So while
5 I recall back in the day probably going through the JNA rules on
6 regiments that we had, it didn't seem particularly relevant to what I was
7 looking at in July of 1995.
8 Q. But there was a 65th Protection Regiment in the VRS, was there
9 not --
10 A. Yes, sir.
11 Q. -- operating in Srebrenica in 1995?
12 A. Yes, sir.
13 Q. Would you hold yourself out as an expert on the topic of
14 regiments in the VRS in terms of their structure, what rules they
15 operated under, and so forth, or would you be reticent to do so given
16 your lack of research on the topic?
17 A. Again, before I started testifying with respect to much of the
18 internal processes of a regimental organisation, I'd like to refresh my
19 memory on some of the regimental materials, but with respect to other
20 aspects of the 65th Protection Regiment, obviously I have testified to
21 those, how they relate to command and control and other issues, and I'm
22 comfortable in that realm because they followed the normal command and
23 staff processes. So I guess my answer is it will be on a case-by-case
25 Q. Okay. And do you consider or hold yourself out as an expert as
1 to those items relating to regiments in the VRS that you have testified
2 about or have mentioned in your reports?
3 A. Again, I never hold myself out to be an expert on any of these
4 particular issues. I, as a military intelligence officer, I'm an
5 intelligence technician. This is what I do as a profession. I'm not a
6 classical academic expert in that sense. However, obviously, if it is in
7 my reports or if I have testified about it, I feel secure in my knowledge
8 of those issues to be able to discuss them before this Trial Chamber and
9 defend them as necessary.
10 Q. Are one of those areas that you did review and spend considerable
11 time upon that you feel secure in your knowledge of that issue, would one
12 of those areas be the rules of service of the Army of Republika Srpska?
13 A. Yes, sir, those are referenced in my
14 Command Responsibility Reports, those are the rules of service. I think
15 they are dated, if memory serves, sometime late 1992.
16 Q. Okay. In that regard I'd like to look at 1D1263 with you, and
17 page 64 of the same, which should correlate to transcript page 20826 of
18 the Popovic case, I think it is. Yes. And I'd like to go through lines
19 7 through 17 with you, sir, and ask you some follow-up questions:
20 "Q. Now, before we move on to the questions, these rules are
21 rules of the -- the rules of service of the Army of Republika Srpska.
22 "A. Yes, sir.
23 "Q. And if the average battalion soldier was aware of anything,
24 these are the rules he's likely to be aware of, aren't they?
25 "A. Yes, sir.
1 "Q. And just to complete the picture, these rules were in force
2 in 1995 and carried on being in force until they were revoked in 1997.
3 Did you know that?
4 "A. I wasn't aware when they were revoked, but I certainly knew
5 they were in force during the period that we are talking about."
6 Does this selection accurately depict the testimony that you gave
7 in the Popovic case?"
8 A. Yes, sir, it does.
9 Q. Okay. Now, is this the kind of thing that you would think would
10 be germane to your analysis and review to know when the main documents
11 that you are relying upon, when they were issued, when they were revoked
12 or superseded, wouldn't those be the basic elementary tasks of an expert
13 such as yourself conducting the type of review that you were conducting?
14 A. Yes, sir. And what I was taking issue here was the fact that he
15 used the terminology "revoked." My understanding is that those
16 particular rules were in fact superseded in 1997. The fact that they
17 were superseded in 1997, while interesting, had no bearing on what was
18 happening in July of 1995.
19 Q. Okay. Now, I'd like to move on to another topic. In the course
20 of the time period that you were at the Office of the Prosecutor, I would
21 like to know precisely how many total interviews you conducted or were
22 present for of VRS personnel in relation to the Srebrenica component of
23 the case, of their case.
24 A. I used to remember -- at least give a ballpark estimate on that.
25 Q. Let me help you out on that. I can refresh your recollection,
1 sir. If we can have 1D1241 in e-court, and it should be page 21 of the
2 same and that should correlate to page 19595 of, again, the Popovic
3 transcript, just a different day, and lines 11 through 25 which I would
4 like to read with you, sir, to refresh your recollection. If I may just
5 switch microphones so it's easier. And I quote from line 11:
6 "A. When we started getting access to military officers of the
7 VRS to be able to interview them, I started to participate in those
8 interviews in order to assist the investigators and whatever lawyers were
9 there with understanding some of the answers of the accused with respect
10 to the context of the JNA, as well as to pose my own questions to either
11 confirm or deny our working thesis at the time that the rules, the
12 regulations and the procedures of the JNA were, in fact, followed by the
14 "Q. So did you actually question some witnesses?
15 "A. Yes, sir, I did.
16 "Q. Do you have -- can you give us a rough number?
17 "A. For the OTP, I probably personally participated in many --
18 in maybe 24, 25, two dozen. I mean, I think there are about three
19 separate missions where I participated in direct interviews, and in those
20 missions where I didn't participate in direct interviews because I had
21 other commitments to do, I certainly read the transcripts of the
22 interviews afterwards."
23 Now, sir, first of all, we can discard with my prior question and
24 just deal with this. Does this accurately reflect the testimony as you
25 recall giving it in the prior proceeding as to the interviews that you
1 would have directly participated in?
2 A. Yes, sir, it does.
3 Q. And did any of the 24 to 25 or perhaps two dozen interviews that
4 you directly participated in involve any members of the VRS Main Staff
5 and, if so, what individuals?
6 A. Colonel Bogdan Sladojevic at that time, who was then general;
7 Lieutenant-Colonel Keserovic; I had an opportunity -- obviously I did
8 interview or at least have a discussion with General Milovanovic. Those
9 are the ones that are coming to memory now, that I personally
10 participated in. There may have been other interviews where I just read
11 the transcripts afterwards but those are three that at least at the
12 moment I recall participating in.
13 Q. That's fine.
14 [Defence counsel confer]
15 MR. IVETIC:
16 Q. In relation to these three now, when would those interviews have
17 taken place? Would they have been early in your work? Would they have
18 been later in your work? Is there any way you can give us some idea of
19 when that would have been without of course giving -- I don't expect
20 precise dates and time but --
21 A. I appreciate that. I think those particular interviews took
22 place in the period between the Krstic trial and the Blagojevic and Jokic
24 Q. Okay. And now I'm going to have to ask you to explain, you, I
25 believe, used the terminology of saying that you did an interview or at
1 least have a discussion with General Milovanovic. Could you please
2 clarify what exactly was the nature of your contact with
3 General Manojlo Milovanovic?
4 A. I recall at the time that General Milovanovic had contacted the
5 Office of the Prosecutor and wanted to reach out to the Office of the
6 Prosecutor, and to make contact with him to discuss some issues related
7 to Srebrenica. I accompanied team leader Jean-Rene Ruez to Banja Luka,
8 where we had a meeting with him. It was not an interview per se. There
9 was not notes taken, at least by me. I can't tell you this day what
10 notes, if any, Mr. Jean-Rene Ruez may have taken. I'm not sure if it was
11 considered to be off the record or not, the discussion. But we did spend
12 an hour and a half with him discussing issues related to the broader
13 aspect of Srebrenica, the broader aspects of some of the VRS in
14 July of 1995, and what he was doing in July of 1995.
15 Q. When you say there were not any notes taken, at least by me, do
16 you know if the encounter with General Milovanovic was recorded or
17 memorialised by any recording equipment?
18 A. We did not have -- I don't believe we had an audiotape recorder,
19 no, sir.
20 Q. Did --
21 A. Or video for that matter.
22 Q. Did anyone else in the meeting appear to be taking notes?
23 A. Again, I didn't. I don't recall if Jean-Rene did. I certainly
24 don't recall if the general himself was taking notes or not.
25 Q. Was anyone else present for this meeting, apart from the three of
2 A. Our team interpreter was present.
3 Q. Do you feel -- do you recall the identity of the team
5 A. I do. I think the policy when we talk about interpreters we go
6 into private session.
7 Q. Or perhaps we can have a -- is that -- is that -- can we do that
8 maybe outside of court?
9 MR. McCLOSKEY: Please, if we can just do private session, I
10 think that's fine.
11 MR. IVETIC: Okay, that's fine.
12 JUDGE ORIE: We move into private session.
13 [Private session]
7 [Open session]
8 THE REGISTRAR: We are in open session, Your Honours.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 MR. IVETIC:
11 Q. Now, in relation to these 24, 25 or perhaps two dozen interviews
12 that you directly participated in, are you able to give us a breakdown of
13 what percentage would have been with VRS personnel on the one hand as
14 opposed to Army of BiH or non-VRS personnel on the other hand?
15 A. The people that I am talking about, where I say the 24 or 25, are
16 all VRS personnel. I recall only participating in discussions with
17 perhaps one or two ABiH military personnel.
18 Q. And during those interviews, how many of the interviews were of
19 persons who were considered at the time or at least given the warning at
20 the time that they were suspects under investigation?
21 A. Again, I couldn't tell you the percentage breakdown. Some of the
22 interviews were interviews where we were required to warn the individuals
23 they were suspects. Some of them were not, and they were considered to
24 be simply witnesses. I just -- I can't off-hand tell you what the
25 percentage breakdown is. I just don't recall.
1 Q. Do you recall in relation to the discussion that you had -- that
2 you and Mr. Jean-Rene Ruez had with Mr. Milovanovic, whether on or off
3 the record, was he a suspect at that time that you had that discussion?
4 A. No, sir, he was not. I mean we had already been able, as far as
5 our investigation was concerned, given his location and his activities in
6 the western Krajina region, and from the information that we had
7 available at the time, he was not considered to be a suspect with respect
8 to the events of Srebrenica in July of 1995.
9 Q. Okay. And now, in relation to these 24 or 25 interviews, did you
10 in all of them actually pose questions as opposed to just giving advice
11 to the other Prosecution staff?
12 A. In many of the interviews I was invited to pose questions, yes,
14 Q. In relation to those interviews, were there occasions where you
15 had to provide guidance to the Prosecution staff that were asking
16 questions including guidance on proposing questions for them to pose to
17 the interviewee?
18 A. Yes, sir. Particularly when it came with respect to a technical
19 issue on applications of command or applications of the security branch
20 or certain other applications of, you know, technical staff officers,
21 I would discuss with the -- with the investigator, if he was leading the
22 interview, what issues that I would like explored and more importantly
23 give him enough background so that he would understand or she would
24 understand the answer that that officer would presumably give back.
25 Q. Now, when you say you -- what issues you would like explored,
1 were you directing the investigators in the work of their interview? Is
2 that what you mean?
3 A. No, sir. The interviews were always conducted under the
4 leadership of the investigator. Again, I provide technical advice and
5 assistance. If we are interviewing somebody who was a logistics officer
6 in a particular unit, as you might expect, you know, a police
7 investigator is not going to have a really broad base of knowledge on
8 convoy operations of an armed force, you know, and the rules and
9 regulations pertaining to that. So again my role was to work with those
10 investigators so they would be able to ask pertinent questions,
11 understand the answers that were received back by them, and if I was in
12 the room, if I had to clarify any particular issues, I did so.
13 Q. Did you for purposes of these 24 to 25 interviews you
14 participated in meet with Prosecution personnel before the interview to
15 discuss strategy with them?
16 A. As a normal process of our interviews that we did at the time, we
17 would meet in advance, we would discuss the strategy in the sense of what
18 issues we wanted to explore with a particular witness. We would also
19 obviously acquaint ourselves whether or not the individual was being
20 interviewed as a witness or as a suspect. That was a normal practice,
21 yes, sir.
22 Q. And would you have been involved in such strategy meetings as
23 part of the normal process even for those interviews that you did not
24 personally directly participate in?
25 A. It would depend. I mean, there were -- obviously there were
1 interviews going on along a wide range of issues. If one of the
2 investigators who was going, you know, from The Hague to Bosnia was going
3 to interview a VRS military officer, it would be customary that they
4 would approach me or the other military analysts who were supporting the
5 Srebrenica team at the time, and ask basic information about, you know,
6 what documents that we had about an individual's potential role in the
7 VRS, what questions we might want asked or answered regarding some
8 question that we would have as military analysts. So, again, we were a
9 resource that the investigators could utilise to prepare ultimately for
10 their interviews.
11 Q. As part of this process or normal procedure that you've just now
12 described for us, did you have a role in suggesting what individuals
13 should be sought to be interviewed?
14 A. I recall that I was part of meetings where decisions -- where we
15 would nominate individuals who we wanted to interview for various
16 purposes, be they suspects or witnesses, from a military perspective,
17 yes, sir.
18 Q. And how about at trial? Did you have any role whatsoever in the
19 selection of witnesses slated to testify for the Prosecution at any
20 trials? And if so, on how many occasions?
21 A. Well, if it were to happen that way, it would only be obviously
22 during my tenure here so it would cover only the Krstic case and the
23 Blagojevic and Jokic case, and with respect to that, I mean,
24 Mr. McCloskey and the other lawyers always gave me a voice at the table
25 when discussing some of these issues, but at the end of the day it was
1 the decision of the Prosecutors who were trying the case which witnesses
2 to call and under what circumstances. So, again, in my role, advising
3 them of what information we had with respect to various people, what the
4 expectation or the anticipation of that they might testify based on what
5 we understood of their military role in a particular issue, again, that
6 was part of servicing the customer, so to speak, from an intelligence
7 perspective, giving them as much information as possible in order to make
8 the best-informed decision. So again I always had a voice at the table,
9 but at the end of the day those decisions were made by the prosecutor,
10 not by me or any other military analyst.
11 Q. Did you have a voice at the table, and was it part of servicing
12 the customer, to partake in discussions as to what witnesses should not
13 be led at trial?
14 A. No, sir. That -- that part wasn't my responsibility, to advise
15 anybody what witnesses not hear from.
16 Q. Did you participate in the proofing of any witnesses that
17 appeared for the Prosecution in any of those trials? Again while you
18 were still here, from up to 2003.
19 A. I do not recall participating directly in the proofing. If
20 I did, obviously, it would be in the proofing notes, which I assume you
21 have access to. What would normally happen in those particular cases is
22 that during or after a proofing session, I might be asked questions from
23 a prosecutor or another lawyer dealing with the case with respect to,
24 This is what a particular witness said, do we have documents which will
25 confirm or deny that particular statement?
1 Q. Okay. Now I want to move to a somewhat related topic, the
2 investigations themselves. To do so I propose to review a statement you
3 made or -- in the Popovic trial. If I could have 1D1261 in e-court,
4 page 17 of the document in e-court, which should be page 20367 of that
5 trial's trial record, from line 12 onwards. And again, sir, I invite you
6 to follow along and listen carefully to the questions that I pose
8 "Q. And I suggest to you that initially the plan was for them,
9 'them,' them being the lawyers and the Prosecutors, to go to you, but in
10 your case the relationship was reversed and you went to them and you told
11 them how this investigation would be conducted. Would that be a fair
13 "A. Within a refined avenue, I'm not sure how it works in other
14 militaries, but in the United States military, intelligence is a customer
15 service enterprise. We are expected and trained to be able to push
16 information to our relative commanders. In the context that I was
17 working, you know, the investigative team and the lawyers therein were my
18 designated commanders. I would provide intelligence product to them in
19 the form of my analysis and opinions and I would make recommendations as
20 to avenues that I felt the investigators should pursue with respect to
21 individual -- well, not only individuals, but areas that we wanted to be
22 able to confirm or deny, not only with respect to military issues but
23 crime-base issues. So in that respect, you know, I had the lane I was
24 responsible for and I walked down it."
25 Sir, does this selection that I've read for you accurately record
1 the testimony you recall giving on this topic during the Popovic trial?
2 A. Oh, yes, sir, it does.
3 Q. And would you testify the same way if asked this same question?
4 A. Yes, sir. The fact is that with respect to particularly the
5 early Krstic and Blagojevic and even the later trials, we collectively,
6 the Office of the Prosecutor, were dealing with very many technical
7 military issues involving things like the chain of command, the role and
8 functions of the security branches, and things of that nature. So I was
9 very active with respect to advising the lawyers and the investigators on
10 issues relating to who needed to be interviewed in order to be able to
11 provide information on those particular topics. You're not going to get
12 the type of information that you're looking for about the chain of
13 command by interviewing victims of an atrocity. So my goal, you know,
14 and my job was to be able to overlay the military context of the
15 Drina Corps, the Republika Srpska police, and other units that were
16 involved in what happened in July of 1995, to allow for those issues to
17 be appropriately investigated by the investigators and the Office of the
19 Q. Okay. Now I'd like to focus for a bit on the methodology that
20 you employed while at the Office of the Prosecutor and some of the
21 material that you did have at your disposal.
22 Now, in relation to your review of JNA material, we've talked
23 generally about it. I'd like to get very specific. Would it be very
24 fair -- would it be fair to say that the documents relating to JNA
25 publications that you had access to in doing your work were only
1 documents from the former JNA 4th Corps and 17th Corps which you then
2 utilised as a model to determine whether or not the VRS was organised
3 along the same lines?
4 A. Initially that is correct, sir, yes.
5 Q. And, first of all, why don't you go ahead and explain for me your
6 qualification of initially that is correct. When did it become
8 A. What became different is obviously our access to more documents.
9 At some point we received documents from the 2nd Military District or
10 some 2nd Military District-related documents. We had access to something
11 known as the 5th Corps collection which were VRS documents captured by
12 the ABiH 5th Corps in July 1995. And then of course later on down the
13 line, we were able to confirm -- we had access to the Zvornik,
14 Bratunac Brigade and Krajina Corps documents, and again, as time
15 continues on, the Office of the Prosecutor gets more and more
16 information. But in the very early stages of my analysis, I had to rely
17 on the existing material, which was the JNA 4th Corps and 17th Corps
18 material in order to lay out my initial thesis.
19 Q. I'd like to tie this in with something you said earlier today.
20 Am I correct that the material you were relying upon to lay out your
21 initial thesis from the 4th Corps, 17th Corps, 2nd Military District of
22 the JNA, all were provided to the Office of the Prosecutor by the Armija
23 BiH, that is by the opponents of the Army of Republika Srpska?
24 A. I presume they were, yes, sir.
25 Q. Now, I'd like to actually focus for a bit on your actual work
2 JUDGE ORIE: Before we --
3 MR. IVETIC: Oh, I see we are at the time for the break,
4 Your Honours.
5 JUDGE ORIE: Before we move to the next subject matter, we should
6 take a break. Could the witness be escorted out of the courtroom.
7 [The witness stands down]
8 JUDGE ORIE: We will resume at 10 minutes past 12.00.
9 --- Recess taken at 11.50 a.m.
10 --- On resuming at 12.14 p.m.
11 JUDGE ORIE: Could the witness be escorted into the courtroom.
12 Meanwhile, I put the following on the record: On the 6th of September of
13 this year, the Chamber issued its decision on the 11th Rule 92 bis
14 motion. There was a slight typographical error in the disposition where
15 the Registry was instructed to lift the confidentiality of certain
16 evidence. That instruction refers to the admitted evidence of witnesses
17 RM219, RM298, and RM300. And not, as indicated erroneously, to the
18 evidence of witness RM247 and witness RM336.
19 [The witness takes the stand]
20 JUDGE ORIE: Mr. Ivetic, you may continue.
21 MR. IVETIC: Thank you, Your Honours.
22 Q. I propose now to look at something from your testimony in the
23 Perisic case about the reports that you offered -- that you authored and
24 which are being offered here today. If we could turn to document 1D1240
25 in e-court, and thereafter turn to page 51 of this document. It should
1 be transcript page 6271 of the underlying transcript, if we could scroll
2 up just for a little bit, I think -- the 2721 of the underlying
3 transcript. If we could focus on line 13, please, and again, sir,
4 I invite you to follow along and then pay attention to my questions.
5 For purposes of background, this is where you were being asked
6 about some corrections to your reports and language issues raised in
7 relation to the same:
8 "Q. With regard to these issues, and the only reason I'm asking
9 the question is because when we started your testimony you were kind
10 enough to correct a discrete portion of your report by deleting some
11 language in a footnote so that your report would be technically accurate.
12 "A. Yes, sir, but I'm operating under the assumption that
13 everybody has my prior transcripts and all the prior corrections that
14 have been made over the course of trials on this and that the corrections
15 that I made was one that had not been caught previously.
16 "Q. I see. So apart from what I have just noted, then, any
17 other corrections to be made to your report are, as you put it, to be
18 found in your prior testimony?
19 "A. Yes, sir. I believe there were a couple of identified
20 footnote citations and things of that nature that were either transposed
21 or in the wrong location. And I think we have dealt with them as part of
22 my prior testimony, yes, sir.
23 "Q. With regard to your testimony here, however, we have not had
24 the benefit of those corrections; correct? I don't mean here today,
25 I mean just since the time you have been with us.
1 "A. Again, like I said, they are all former transcripts. I
2 don't know what has gone by with regard to that."
3 Now, Mr. Butler, is this prior testimony from Perisic both
4 accurate and indeed truthful such that you would again testify the same
6 A. Yes, sir. Again, I am aware that as a component of the reports,
7 we discovered through time that some of the hyperlinked footnote
8 translations don't correspond to the document that I cite. Things of
9 that nature. Again there are also in some cases variations in
10 translation between one Trial Chamber and another on how a document is.
11 You know, again I accept the fact that these reports with respect to the
12 Srebrenica narrative, the brigade command report and the corps command
13 report, you know, have not been updated by me in writing since 2003.
14 Q. Have you, or has anyone gone throughout prior transcripts to at
15 least locate and identify all of the corrections that you did make during
16 all these prior trials, such that the report could be updated -- or the
17 reports, I should say, could be updated?
18 A. I have not. I don't know what the Office of the Prosecutor has
19 done with respect to that. Certainly I know that the Defence counsel is
20 usually diligent about picking out anything that they think is incorrect.
21 Q. Okay.
22 JUDGE ORIE: Mr. Ivetic, would it be wise to ask the Prosecution
23 whether any such exercise has been done or whether they are willing to do
24 the exercise, that is to point at corrections made during testimony, I'm
25 talking about correction, not interpretations, corrections made and then
1 to give us the portions of the documents to which these corrections
3 MR. McCLOSKEY: Yes, Mr. President, as you can imagine, I over
4 the years always review Mr. Butler's testimony in preparing for the next
5 trial, and I do not recall any significant changes we felt the need to
6 make regarding a potential typo or -- when he's talking about hyperlinked
7 what he -- there was a CD product that Mr. Ivetic has that is the reports
8 where the footnotes -- many of them are hyperlinked. You click on them
9 and a document pops up.
10 JUDGE ORIE: We know what a hyperlink is, Mr. McCloskey.
11 MR. McCLOSKEY: In this context some of the documents that he
12 cites are hyperlinked, or many of them, and what he's just said is
13 sometimes there has been the wrong one. This is not the kind of thing we
14 felt needed to be changed.
15 JUDGE ORIE: So the brief answer is that you have not
16 systematically done such an exercise and that you felt there was no need
17 to do that because there was nothing significant to be corrected and that
18 you admit that there may be small mistakes here and there. Is that the
19 short summary of --
20 MR. McCLOSKEY: I won't argue with that summary, no. I might be
21 considered more systematic than you might but, no, I think that's fair.
22 JUDGE ORIE: Mr. Ivetic, please proceed.
23 MR. IVETIC: Thank you. If we can turn to 1D1261, and page 23 of
24 the same, which ought to correlate to transcript page 20373 of the --
25 I think it's the 24th January Popovic transcript, if my notes are
1 correct. And if we could focus on line 17 and thereafter.
2 Q. Sir, this is a similar topic in relation to your reports that I'd
3 now like to go through with you so, again, please bear with me reading
4 into the record the prior testimony. And I begin:
5 "Q. Mr. Butler, you are aware that you already said that a number
6 of new documents have been obtained by the Office of the Prosecution.
7 Would you agree with me that the documents obtained impact on every
8 single aspect of your report because they were from the Drina Corps
9 collection and it touches upon everything? Would you agree with that?
10 "A. I would believe or I would concur that they are relevant.
11 In many cases, they would not impact the report because they are -- in
12 some cases, they are the identical documents or in other cases they are
13 just larger collections of documents which serve to confirm an earlier
14 analysis that I've conducted. So while every document is obviously
15 important, whether it's relevant or whether it would change my
16 conclusions is a case-by-case issue. That's it.
17 "Q. You don't know that.
18 "A. No, sir, I don't know the unknown.
19 "Q. The new documents might infirm -- and might confirm but you
20 don't know until you look at all the new documents along with your
21 reports; is that correct?
22 "A. Yes, sir. In the perfect world, I would have several years
23 necessary to do that."
24 First of all, sir, does this transcript section that I've just
25 read accurately reflect the testimony that you gave as you remember
1 giving it in the Popovic case?
2 A. Yes, sir, it does.
3 Q. Okay. And would you maintain that same testimony if asked these
4 same questions here today?
5 A. Yes, sir. My view is essentially the same. From the documents
6 that I have had the opportunity to review, from the collections that were
7 not available to me at the time, those documents tend to confirm the
8 analysis and the conclusions that I draw in the reports. In many cases
9 they are just exact copies of documents that I already have from another
10 military unit, the report. And, again, I have seen nothing to date which
11 causes me to pause and suggest that the narrative reports that I drafted
12 in 2003 are no longer valid. I suggest one of the reasons why I'm here
13 and why the prosecutor keeps offering me as a witness in this particular
14 case is because of the fact that with the thousands or tens of thousands
15 of documents that have found through the-- that the
16 Office of the Prosecutor has found or obtained through the years, you
17 know, the fact is that the narrative reports that I have drafted still
18 reflect the logical layout of facts related to Srebrenica and the
19 activities of the VRS in July of 1995. There has been no alternative
20 narrative surfaced by anyone in those intervening years which suggest
21 that my narrative view and the conclusions therein are not valid.
22 Q. Now, when you say the documents that you've been able to review
23 from these collections that were not available to you at the time, don't
24 you really mean those documents that were in the bundle given to you by
25 Mr. Peter McCloskey of the Prosecution as well as any that you may have
1 reviewed on the EDS system? Isn't that a fair definition of the
2 documents that you would have reviewed that were not available at the
3 time you did your reports?
4 A. I would not say simply Mr. McCloskey but other members of the
5 Office of the Prosecutor would confront me with documents. Again,
6 I would remind you that I did testify in the Karadzic case and it was a
7 different trial team and therefore, again, other prosecutors from other
8 cases providing me documents. And again, as I've noted, I've never had
9 the impression that I've been denied access to any material that I felt
10 that I needed to see or wanted to see that would be germane to my
11 analysis or certainly my testimony here. But, you know, I concede that
12 there are tens of thousands of documents that the OTP has obtained
13 through the years which I have not been able to review and, again, I
14 don't know the unknown.
15 Q. Well, let me ask you this. Apart from the documents that either
16 Mr. McCloskey or some other Prosecution counsel selected for you to
17 review, have you individually found documents on the EDS system out of
18 your own searches that you've also reviewed that fall under this opinion
19 or conclusion that you've just stated to us?
20 A. No, sir.
21 Q. So if I can understand correctly, while you've had access to the
22 EDS system, you have not actually utilised the EDS system to
23 independently look for documents and you've only looked at those
24 documents selected by the Prosecution for you to review?
25 A. I have not --
1 MR. McCLOSKEY: Objection, compound. There are several questions
2 in there. It's hard to answer all of them.
3 JUDGE ORIE: Mr. Ivetic, would you rephrase, please.
4 MR. IVETIC: Yes, Your Honours.
5 Q. Let's start at the beginning, sir. Is it correct that while
6 you've had access to the EDS or electronic disclosure system, you have
7 not actually utilised the EDS system to locate documents of your own
9 A. That would be accurate probably for the last two years, perhaps
10 even three years, correct.
11 Q. And would it also be correct that when you say none of the
12 documents that you looked at that were not available to you when you
13 drafted your reports have caused you to reconsider the conclusions in
14 your reports, are you referring to only documents that would have been
15 selected and provided to you by Prosecution counsel from the
16 Office of the Prosecutor of the Tribunal?
17 A. Yes, sir.
18 MR. IVETIC: Now I'd like to call up 1D1261 in e-court. It will
19 be page 2 of the e-court version which should correlate to transcript
20 page 20352 of the 24 January Popovic transcript.
21 Q. And, sir, this is in relation to section 4 of your report for the
22 responsibilities of the VRS Brigade commander. And I'd like to have you
23 follow along as I read from line 6 and then I'll have some questions
24 about that:
25 "Q. Now, when you reviewed the materials, so it would be my
1 understanding that you read all this, all those laws which are written in
2 a plain language, trying to understand what the disciplinary authority of
3 a brigade commander is.
4 "A. Yes, sir. I believe that was crucial with respect to
5 understanding, you know, the authority limits as well as the potential
6 league limits that a brigade commander or even a corps commander would be
7 faced with, with respect to his role in ensuring the discipline of his
9 "Q. And did you try to make a parallel between your experience
10 in the United States Army?
11 "A. No, sir. That's why we have about a million lawyers to do
13 "Q. And did you obtain any assistance from the lawyers within
14 the OTP in drafting this part of your report?
15 "A. No, sir. Like I said, my goal was not to find out what our
16 lawyers were saying about it. My goal was to go out via the
17 investigation and to find out what the appropriate VRS military
18 prosecutors and military judges were saying about how these were applied.
19 "Q. So would I be right in saying that in this section,
20 section 4, it is in your capacity as a former soldier, your layman
21 understanding of this most important topic?
22 "A. Yes, sir. It is my understand of this topic, and if I'm
23 defined as a layman, so be it."
24 Does this selection of the transcript appear to accurately recite
25 the testimony that you gave in the Popovic case as to these questions,
2 A. Yes, sir. It was a rather spirited exchange between myself and
3 Mr. Stephane Bourgon. Clearly, Mr. Bourgon was taking advantage of the
4 fact that as a former member of the OTP staff, he had a very inside view
5 of the role of the military analysts, as having used them himself.
6 Q. And you'll forgive my reading -- my reading not being as spirited
7 as the exchange may have been, but do I have to ask you, would you --
8 would your answers to these questions change or would you in essence
9 repeat the same answers if I were to ask the questions at this trial?
10 A. The only -- the change I would say is a technical one where it
11 says "league," it should be "legal." But my answer would not change.
12 Obviously, my goal in researching the VRS military prosecutor's office or
13 the RS prosecutor's military offices at some point it went from the VRS
14 to the Ministry of Defence control, was from a perspective of how they
15 were applying it in the context of what was happening on the ground in
16 1995 during the conflict. It was not to get an opinion from any legal
17 analyst from the Office of the Prosecutor or whether or not those were
18 proper applications of the law or not proper applications of the law. My
19 goal was just to explain what was happening.
20 Q. And do you consider, as you sit there today, that this -- I
21 believe it's section 4 of that particular report, can be relied upon in
22 an expert sense by a Trial Chamber?
23 A. Yes, sir. I believe it is a fair accounting of the various
24 mechanisms by which VRS military commanders had at their disposal at the
25 time in order to enforce discipline among their subordinates.
1 Q. If we could for a moment turn to another transcript at 1D1260,
2 page 37 in e-court which should be transcript page 20157 of the 22
3 January proceedings in the Popovic case. And if we could focus on
4 line 12 and onwards, sir. And I propose to read for you again what may
5 have been a spirited exchange, I don't know, but I think we can get
6 through it faster if I just read it to you and ask for your comments upon
7 it, if there are any, to indicate changes. So please, follow along from
8 line 12, it begins:
9 "Q. I want to talk a little bit about -- we discussed
10 independence of you, were kind enough," pardon me, it's, "or you were
11 kind enough to say you're human, as we all can see, and that you may have
12 certain biases. Do you agree with me, sir, that you're not an
13 independent outsider?
14 "A. Yes, sir.
15 "Q. And would you also agree with me that you're not independent
16 per se?
17 "A. That entirely depends on how you define per se.
18 "Q. Okay. Well, let's look at your testimony in the Blagojevic
19 case, pages 4755, lines 13 through 18, where you say, 'You are not
20 independent per se.' Why don't you tell me, sir, what you mean by per
22 "A. Okay. I'm not independent inasmuch as I work for the
23 Office of the Prosecutor and, in that context, the material that I am
24 reviewing for the most part is within the possession of the
25 Office of the Prosecutor. I am independent in so much as the purpose,
1 the focus and the conclusions of my analysis.
2 "Q. Okay. We'll get to that shortly, I'm sure. And you also
3 describe yourself, sir, as being an integrated member of the OTP;
5 "A. I believe it was an integrated member of the investigative
6 team. If I said OTP, I certainly mean within the Srebrenica team.
7 "Q. And you also describe yourself not only as being integrated
8 but as a strategic member of the OTP, do you not?
9 "A. With respect to the Srebrenica team and investigation, yes,
11 Now, does this have -- have we accurately seen everything -- seen
12 how you recall testifying as to these specific questions, sir?
13 A. You've accurately recounted the testimony, I think is what you
14 were saying, and yes, sir, that is correct.
15 Q. And is that all truthful? Is there any part that you think needs
16 an additional clarification on your part?
17 A. No, sir, I mean, as the -- you know, obviously within the broader
18 context of the discussion, I am well aware, as Mr. Ostojic was pointing
19 out, that there was certainly a perception of bias based on my
20 association with the Srebrenica trial team and with the Office of the
21 Prosecutor. It is obviously something I've dealt with through the years
22 and has been a topic of discussion in previous cases. How much bias
23 there is and whether it affects my work, obviously, is an issue that the
24 Defence can raise and the Court will take into account when it reviews my
25 work. With respect to the last issue, again, I was integrated into the
1 Srebrenica team as their military analyst. The OTP is a big place and
2 I would not suggest that somehow I was integrated into the OTP in the
3 same manner. But as their military analyst, it was my job to be
4 available as a resource to them. Consequently I had to be with them.
5 I did not sit in their direct area but certainly I was engaged in
6 discussions with their various individuals on a daily basis.
7 Q. Thank you, sir. And now in relation to the work that you did
8 while at the OTP, would you agree with me that this type of work is what
9 is commonly referred to or known especially in the intelligence community
10 as more historical analysts' work insofar as in your reports you're not
11 being asked or tasked to do any predictive analysis?
12 A. Yes, sir, that is correct.
13 Q. And I believe I have a definition of what that means and I'd like
14 to go through it with you. If we can have page 56 of this same
15 transcript, which should correlate to transcript page 20186 of the
16 underlying transcript, and I'd like to start at line 20 -- whoops. If we
17 can go ten pages forward, and then if we could focus on line 24. And
18 again to make sure that the record is clear, this would then be the 66th
19 page in e-court of this transcript whereas the underlying transcript page
20 remains transcript page 20186. And, sir, again if you could bear with
21 me, I believe this is part of your answer dealing with the description of
22 what this all means:
23 "A. ... however, as I've noted in the context of my very first
24 report, it's not designed to be a historical overview. There are many
25 political, there are many military, there are many diplomatic issues that
1 are obviously related to these things that are beyond my ability to
2 analyse and intelligently comment on. So in that respect, you know, I go
3 back to the original purposes of my report, which were to set the
4 framework for the military context and how they related to the crime
5 bases that were being investigated with respect to the actual linkage of
6 military units to crime scenes and the actual roles and responsibilities
7 of individuals designated as commanders or other members of those units
8 with respect to their roles and responsibilities under the VRS rules as
9 they applied. By design, that is where I limited my analytical focus
11 Sir, have I -- does this accurately reflect your testimony on
12 this matter and do you still stand by, and are you satisfied with these
13 answers as being correct and truthful?
14 A. Yes, sir. This is how I testified in response to this question.
15 My answer has not changed in this respect. I lay out the objectives of
16 my reports very clearly in the introductions of my reports, and what it
17 is limited to. It has never been my intention to create a broad-based
18 historical accounting of Srebrenica in July of 1995. One only has to go
19 as far as the UN report and other various national reports to find that
20 information. And again, with respect to the predictive part of the
21 discussion, I was looking at and remain in this context looking at a
22 static point in time, that the events that occurred in July of 1995.
23 Obviously, as it is a historical event, nobody is asking me to take the
24 events of what happened in July of 1995 and extrapolate how that might
25 affect what the VRS will do months or years later. So, again, in that
1 sense, it's a historical product. It's dealing with a static event in
2 time. It is not taking that static event and then trying to predict
3 future military behaviour based off of it.
4 Q. Okay. And am I correct that the intentions and review of your
5 analysis focused on, in addition to the limited military documents that
6 the Office of the Prosecution had in its possession, also to the
7 intercepts or alleged intercepts of radio communications by the ABiH
8 which you also were tasked to integrate into your analysis and reports?
9 A. I wouldn't say limited military documents, because, you know,
10 certainly 13.000 military documents is far more than I am normally
11 accustomed to having at my disposal when asked to answer these types of
12 questions. It also did, though, as you are correct, include an analysis
13 of the ABiH intercepted radio communications and how that fell into the
14 context of the military operations.
15 Q. Now in relation to this type of reporting that you did do, what
16 we've agreed is the historical analysis reporting method, would you agree
17 with me that in the US army, as an intelligence officer, such form of
18 reporting was not your primary purpose although you did on occasion
19 produce such products?
20 A. Well, in the sense that, again, my military customer's only
21 interest in what happened historically is off of the basis of what that
22 can then be used to allow them to predict future actions or events by an
23 armed adversary and take advantage of them. So while I've obviously
24 created various military reports in this narrative style throughout my
25 career, the focus on those reports is less as to what happened at a
1 particular point in time and far more on what that means projected into
2 the future with respect to capabilities and intentions. So that's what
3 I mean when this is not normally the type of work that I do. Obviously
4 in my Srebrenica narrative reports there is no discussion of future
5 capabilities or intentions.
6 Q. Can you tell us, roughly speaking, what percentage of your work
7 that you normally did within the US army intelligence corps would have
8 been this type of historical analysis as opposed to the more predictive
9 issue type of reporting that you've just described?
10 A. I can't give you a percentage, but clearly the ability to
11 understand the historical context, in any degree, is important to be able
12 to accurately predict future intentions or capabilities. So unless it
13 was a particularly technical report about a particular piece of
14 communications equipment or something of that nature, the reality, if it
15 was a broader military event that occurred on the ground or a broader
16 political event that occurred, I mean, I would obviously have to discuss
17 the historical context of that in order to be able to lay the foundation
18 for a future assessment of potential courses of actions by an opponent.
19 Q. And as part of the work that you did with the
20 Office of the Prosecutor for the Srebrenica team of the Office of the
21 Prosecutor, could you clarify for us if you sat in planning meetings
22 where the Prosecution staff discussed and decided how to draft
23 indictments against officers of the VRS in relation to Srebrenica?
24 A. During my time here, I did sit in planning meetings related to
25 the indictments of both General Krstic and Colonel Blagojevic and
1 Major Jokic. As noted, my role was again to be able to advise them as
2 to, you know, the military documents and the contextual view that
3 I understood of the military so they understood at least my perception of
4 what the military situation was or was not occurring at the time for
5 their -- for their purposes in writing the indictment.
6 JUDGE ORIE: Could I ask you, was it only the understanding or
7 was it also a matter of advising them on what body of evidence would be
8 available and therefore to make any technical assessment of how
9 successful an indictment drafted in one way or another would be in view
10 of the available evidence?
11 THE WITNESS: No, sir, just as I did not operate in isolation,
12 certainly neither did our lawyers. The lawyers on the various trial
13 teams had a very good understanding of the body of the documents in
14 question, as well as the body of the intercepts in question.
15 JUDGE ORIE: Yes, but --
16 THE WITNESS: They knew exactly what the limits of those were.
17 JUDGE ORIE: But did you advise them on it as well, to say, well,
18 this is a lot or there it's perhaps -- you should be cautious there
19 because the body of evidence might not be abundant?
20 THE WITNESS: No, I certainly with respect to advising them on a
21 potential legal strategy -- it probably would shock you to learn that
22 lawyers don't like taking advice about things like that from non-lawyers.
23 So my role in that was technical, to advise them of what documents that
24 we had, what my interpretation of the meaning of it was.
25 JUDGE ORIE: Well, many persons in this courtroom, being lawyers,
1 can decide whether they are shocked or not.
2 Mr. Ivetic, please proceed.
3 MR. IVETIC: Thank you, Your Honour.
4 Q. I want to follow up on something you just said, your technical
5 role, and again I understand that you previously testified, and you might
6 have just mentioned -- I can't see it in the transcript. I understand
7 that you did not have a vote in the drafting of the indictment. That's
8 understood. But in terms of providing documents, were you called upon or
9 did you volunteer of your own accord, what evidence or documentation
10 could be utilised to successfully prosecute indictments once they were
12 A. I would say that that is slightly backwards because, again, in
13 the sense of the original purpose of my reports, you know, as working
14 aids for the Office of the Prosecutor and for the investigators, they
15 already had access to my current understanding of what the military
16 situation was or what the issues relating to command and control were or
17 what my views of the role of the security branch, prior to them actually
18 writing an indictment. So it wasn't a situation where I was trying to
19 conform my view or get them to conform their indictment to my views.
20 I mean, they knew my opinions and views going in.
21 Q. And you've mentioned the three cases that were -- that proceeded
22 to trial during the time period that you were at the
23 Office of the Prosecutor. Did you have any role at any time while at the
24 Office of the Prosecutor in relation to either suggesting amendments to
25 or selecting evidence for the Mladic case or the Mladic indictment?
1 A. I've never suggested amendments for the Mladic indictment. And
2 in fact, I don't think I can even -- I don't believe I've even read the
3 current indictment of General Mladic in its entirety. So in that
4 particular context, yeah, the answer is no.
5 Q. Okay. Then I would move on to another topic. I understand --
6 MR. McCLOSKEY: Excuse me, I believe there was two trials during
7 his time frame, not three.
8 JUDGE ORIE: I think there were two trials but I think that three
9 accused were named.
10 MR. IVETIC: Three accused.
11 JUDGE ORIE: Please proceed.
12 MR. IVETIC: Yes. I apologise if I misspoke in that manner.
13 Q. Sir, I understand that you had some assistance that worked with
14 you in the drafting of your reports. In relation to those individuals,
15 could you tell me whether they too had military and indeed military
16 analyst experience and whether they had any prior previous academic or
17 military experience in relation to the JNA, the VRS, the
18 All People's Defence?
19 A. No, sir. The people who were working directly with me, one of
20 them was a former, although she had military service, she was a -- by
21 trade or profession, she was a police criminal analyst, and the other
22 person working with me was an administrative assistant, I don't recall
23 she had any military experience whatsoever. And, you know, the members
24 of the -- or the group of individuals that we had doing sorting and
25 translation of military documents, again, they were there for translation
1 and language support. They were not people I was going to lean on for
2 military advice or expertise.
3 Q. Focusing on the persons that worked directly with you or assisted
4 you directly in your work, have any of them authored any professional
5 publications on any of the topics that you collaborated with them on or
6 that they assisted you with?
7 MR. McCLOSKEY: Could we get a foundation of what kind of
8 assistance? I mean there is many, many ways to assist, and so far we
9 don't know what that is.
10 MR. IVETIC: I believe the witness has just stated what type of
11 assistance he has. I'm referring to those assistants. He hasn't
12 identified them by name but he has identified them by education. I'm
13 sure that Mr. Butler has in his mind precisely who his assistants were
14 that he's just now described.
15 MR. McCLOSKEY: My objection is we heard there is people helping
16 him with translation, we hear that there is other assistants but we have
17 not heard what they are assisting him with, aside from his report in
19 JUDGE ORIE: Let's limit it to the members of the team. Is that,
20 Mr. Ivetic, what you had in mind?
21 MR. IVETIC: Yes.
22 JUDGE ORIE: Are you aware, and again, the relevance escapes me
23 at this moment, Mr. Ivetic, but nevertheless let's first get the question
24 on the table, have any of the members of the team in which you worked
25 authored any professional publications on any of the topics that you
1 collaborated with them on, or that they assisted you with? That's the
3 THE WITNESS: To my knowledge, the two individuals that I have in
4 mind, Ms. Amanda Brettle and Ms. Sally Latin, have not.
5 MR. IVETIC:
6 Q. Okay. And in relation to yourself, sir, I believe apart from the
7 one book authored in 2004 or co-authored with first Lieutenant
8 Epstein of the USMC in 2004 you have not published any published works on
9 the same topics as contained in the reports that you authored for
10 purposes of trial?
11 A. It was not a book. It was an article in a military law review
12 magazine and the topic of that was not related to Srebrenica 1995. It
13 was a broader legal issue on the jurisprudence of the Tribunal and its
14 potential relevance to US military Tribunals.
15 Q. Okay. Now I'd like to move through some of your reports, to
16 highlight certain preliminary methodological issues. If we could first
17 start off with your report on the responsibilities of the Main Staff
18 which is 65 ter number 05601, and if we can pull up that report, and
19 while we wait for that, sir, perhaps a general question: What type of
20 reasoning methodology did you use in preparing this report? Would it be
21 described as being deductive reasoning or inductive reasoning?
22 A. Many of the conclusions would be related to deductive reasoning.
23 Q. Okay.
24 MR. McCLOSKEY: Could we have some help on what Mr. Ivetic means
25 by that? Because I don't know.
1 MR. IVETIC: Well, rather than testifying I'm going to ask
2 Mr. Butler what he means by it since he apparently does understand what
3 the difference is.
4 THE WITNESS: Deductive reasoning, as I understand it from an
5 analytical tool perspective, is taking some facts and using then using
6 those to draw a conclusion. At the moment, I don't -- I know intuitively
7 what inductive reasoning is but at the moment I couldn't give you a
8 technical definition of it.
9 Q. But in any event you consider your report to have been the
10 deductive form of reasoning?
11 A. Yes, sir, I mean I am working off of issues that I consider to be
12 obviously known facts and, you know, deducing conclusions as to what they
13 mean based on those facts and how they line up in a logical sequence.
14 JUDGE ORIE: Mr. Ivetic, apparently the witness does not fully
15 understand your question because he has difficulties in defining what
16 inductive reasoning is, so could you please explain to the witness what
17 you meant by that so that the witness can also understand whether the one
18 system excludes the other or if he says in -- many conclusions are
19 obtained by deductive reasoning, that whether the others perhaps were
20 then obtained by inductive reasoning. So would you please put to the
21 witness what you understand by inductive reasoning so that he can fully
22 answer your question?
23 MR. IVETIC: My understanding, and again this was suggested to me
24 by our expert consultant, but it's whether it's a process whereby you
25 begin with the thesis and then build upon it or whether you review
1 materials and then conclude a thesis at the end, so it's whether it's an
2 ends-based approach or not.
3 Q. Is that -- more clear to you, Mr. Butler?
4 A. That's fairly consistent. I mean, where I -- where I take both
5 deductive and inductive reasoning in this is the fact that I recognise
6 that as a component of my work, I am somewhat bound by the existing
7 indictments in a various case. So I don't have a complete free range to
8 explore any particular issue that I want because those issues would not
9 be relevant to the Trial Chamber.
10 JUDGE ORIE: Mr. Ivetic, I'm looking at the clock.
11 MR. IVETIC: We can have a break, Your Honour.
12 JUDGE ORIE: Yes. Then we will take the break but not until
13 after the witness has been escorted out of the courtroom.
14 [The witness stands down]
15 JUDGE ORIE: And we will resume at half past 1.00.
16 --- Recess taken at 1.10 p.m.
17 --- On resuming at 1.33 p.m.
18 JUDGE ORIE: The witness will be escorted into the courtroom.
19 Meanwhile I use the opportunity for the following matter:
20 During Witness Emir Turkusic's testimony on the 30th of August,
21 the Prosecution used the stabiliser fin from a 12- millimetre mortar
22 which was allegedly recovered at the scene of the Markale II shelling.
23 Its pictures have been admitted as Exhibits P2053 as shown on transcript
24 page 15924. The artifact itself was not admitted awaiting further
25 clarification on whether it can be admitted in the present case despite
1 the fact that it had already been admitted in the Karadzic case. Having
2 consulted with the Registry, the Chamber understands that the same piece
3 of physical evidence can be admitted in two different cases, considering
4 that it is kept in the Registry vault. A photo of the exhibit and a
5 surrogate sheet indicating that the original is kept in the vault are
6 included in e-court with a note that it is also admitted in another case.
7 The Chamber notes that if the exhibit would need to be examined,
8 the regular chain of custody procedure would need to be followed, and any
9 forensic analysis of the physical evidence required would need to be done
10 in consultation with the Karadzic Trial Chamber.
11 Considering the above, the Chamber hereby admits the stabiliser
12 fin into evidence as Exhibit P2053, together with the pictures already
13 admitted into evidence and the Chamber instructs the Prosecution to
14 upload a surrogate sheet and the Chamber instructs the Registry to add
15 the surrogate sheet to Exhibit 2053 once it has been uploaded.
16 [The witness takes the stand]
17 JUDGE ORIE: Mr. Ivetic, if you're ready, you may proceed.
18 Mr. Butler, we had to deal with a small procedural item. Apologies for
19 having you wait. Please proceed.
20 MR. IVETIC: Thank you, Your Honour.
21 Q. Now, if we can look at the document that we have up on e-court,
22 sir, this is again your report from 2006 on the VRS Main Staff and it is
23 reflected therein that this particular report was mandated because of the
24 context of the prosecutor versus Miletic et al trial, and due to the
25 Prosecution having obtained a large documentary collection commonly
1 referred to as the -- and it's said in there, "Drina Corps archives."
2 Now, these Drina Corps archives that you've identified, am I
3 correct that they are not the official archives of the Drina Corps but,
4 rather, are the conglomeration of documents from several sources commonly
5 referred to the other day by Mr. McCloskey and I as the quote/unquote
6 Drina Corps collection; is that right?
7 A. Yes, sir, that's consistent with my understanding.
8 Q. Did you personally participate in any efforts to track down or
9 obtain this so-called Drina Corps collection from the various sources
10 from whence it was gathered?
11 A. I certainly participated in efforts by the trial team or the
12 Srebrenica team to find military documents. Of course, these would be
13 included in that during my tenure here employed. I was not involved
14 obviously after I left the Tribunal in November of 2003.
15 Q. Now, would you agree with me that you end up utilising quite a
16 few documents from this Drina Corps collection for purposes of this
17 report that we have on the screen, which is 65 ter number 05601, and also
18 in your Srebrenica narrative report as revised, and in your oral
19 testimony these previous days before the Trial Chamber?
20 A. I don't believe I used the documents from the Drina Corps
21 collection broadly. We had other documents that were coming in from --
22 from different sources and I used those in my revised narrative. I did
23 use the Drina Corps collection documents in my 2006 report. And the
24 tactic that the prosecutor has used in respect with me on that is in
25 order to discuss those documents, obviously I've been made aware of them
1 and I've discussed those documents in my testimony from Popovic and other
3 Q. I want to focus on this 2006 report that we have up on the
4 screen. For purposes of this report, I think based upon the testimony
5 that you've given today in relation to other questions of mine, that the
6 documents you would have used from that collection for purposes of
7 generating this 2006 report, those would have been the ones that were
8 selected and provided to you by Prosecution counsel, is that -- is that
10 A. No, sir. I mean I had a list of -- I had one individual from the
11 Office of the Prosecutor, my former assistant, would at various points in
12 time as they were exploiting the Drina Corps collection and cataloguing
13 it, she would send me the various lists of documents from the index that
14 they were developing. So because I had that basic document list, I had
15 to a very large degree an ability to pick the documents I wanted to use,
16 to explore certain areas.
17 Q. Okay. Now I understand. Now, prior to utilising the documents
18 from this Drina Corps collection, did you personally undertake to either
19 take steps yourself or ask that steps be taken to confirm the provenance
20 and authenticity of those documents from the collection that came from
21 various sources?
22 A. Yes, sir. I'm aware of the protocols that the
23 Office of the Prosecutor takes in order to verify the authenticity of a
24 document. My -- obviously my practice is that if I'm not convinced that
25 the document is authentic I don't use it in my reports.
1 Q. Okay. So were you relying upon the protocols and relying upon
2 other people to do their work or did you affirmatively undertake steps
3 either yourself or to direct others to check the provenance of those
4 documents that ultimately you did use in your report?
5 A. Obviously I relied on the individuals within the
6 Office of the Prosecutor for -- with, you know, verifying the
7 authenticity of the document, that it was not -- and when I talk about
8 authenticity I'm obviously referring to a document not being a forgery.
9 Because I'm aware of the background of how they normally do that, and how
10 the investigative process works to do that, I have a high degree of
11 confidence in it. I have to confess I'm not exactly sure what you mean
12 by provenance of a certain document, if you could explain that, I can, if
13 necessary, comments on that.
14 Q. Sure. Provenance, where it came from, the source.
15 A. Well, that for me would be the -- that would be part of the
16 authentication process.
17 Q. Did you undertake to investigate the chain of custody of these
18 documents at any point in the process or to direct others to investigate
19 the chain of custody of where these documents were held before arriving
20 to the Office of the Prosecutor?
21 A. I did not personally investigate the chain of custody. I am
22 aware of the various iterations that these documents went through prior
23 to arriving to the Office of the Prosecutor.
24 Q. Did you keep a log or list of what documents you utilised
25 originated solely from the so-called Drina Corps collection as opposed to
1 those that could be found in other sources that you had access to?
2 A. No, sir. Again, just like in my other reports, I cite the
3 documents that I rely on.
4 Q. If we can turn to page 3 of the English and 3 of the Serbian of
5 this document, I'd like to focus on what you say there. It's in the
6 middle of the -- of this last paragraph of your introduction to the
7 report. And it says, "In their totality," well, first of all, here
8 you're talking about how this particular report on the VRS Main Staff
9 must be read in conjunction with your corps and brigade reports as well
10 as the Srebrenica Military Narrative report, and then you say that:
11 "In their totality, these reports form the foundation of my
12 understanding of VRS military command and the specific linkage to the
13 crimes as charged in the indictment. Also, utilising the same
14 methodology as noted in these earlier works, I continue to rely primarily
15 on a document-based analytical approach."
16 Now, the question I have for you, sir, is you say primarily.
17 Could you please identify for us what, if any, other analytical
18 approaches comprised your methodology for this particular report, if any?
19 A. Well, sir, as I've testified, I think it's last week now, clearly
20 if I were producing a similar type of report for my normal customer,
21 I would include in that report information related from human sources or
22 HUMINT. As I also noted, I mean, obviously I am aware, as a member of
23 the Prosecution team and with law enforcement in general, that these --
24 many of these same people would be testifying before the Court, and
25 therefore it's the Court's responsibility to weigh their testimony and
1 the information they provide on a variety of factors. As I've said, if
2 there is anything artificial about these four reports per se it is
3 because I rely almost totally on my analysis of documents and I only use
4 witness testimony or human intelligence, as it were, in order to set the
5 necessary limited context in order to make the rest of the report have
6 any meaning. And I gave -- I guess I gave you that example of, you know,
7 it doesn't make context of what's happening in a crime scene if you don't
8 at least have somebody explain what the basis of the crime scene is
9 occurring, you don't -- you can't lash up the military or other documents
10 to it without at least that kind of basic knowledge.
11 Q. If we could take a step backwards and look at the prior page in
12 both versions of this report, which would be page 2, at the top of the
13 page, it is recorded that the Drina Corps archives, which we now know to
14 be the Drina Corps collection, are said to compose the bulk of the
15 wartime records of the VRS Drina Corps and its subordinate units.
16 Now, I take from this, sir, that you are relying upon someone
17 else's representations as to the Drina Corps archives which we now know
18 to be the Drina Corps collection. Could you please identify for us on
19 whose representations are you relying for purposes of this statement in
20 your report?
21 A. It would be various lawyers and analysts, military analysts from
22 the Office of the Prosecutor.
23 Q. And am I correct in understanding this to imply that the
24 Drina Corps collection may be the sole source for most of the actual VRS
25 documents in the possession of the OTP that relate to the Drina Corps?
1 A. I wouldn't draw that conclusion. There are a variety of
2 documents that -- and document collections that I've encountered through
3 the years that relate to the Drina Corps, and, again, I'm not necessarily
4 saying you're wrong but I've never done a percentage analysis of what
5 you're asking, so I can't intelligently comment on that.
6 Q. That's fair, sir. Now, if we look towards the middle of this
7 same page in both languages, it is the second -- the second paragraph in
8 the English, and it says there:
9 "With respect to the second issue, a review of my earlier
10 analytical products does indicate a necessity to expand on a number of
11 issues directly related to the VRS Main Staff, particularly with respect
12 to the positions and functions of the assistant commander for morale,
13 legal and religious affairs; the chief of operations; and to a lesser
14 extent the chief of security."
15 Can we conclude or infer from this, sir, that your methodology of
16 preparing this report did not focus on the commander of the Main Staff or
17 the Chief of Staff, who was also the deputy commander of the Main Staff?
18 A. I would disagree, because I believe that it's not possible to be
19 able to understand the roles of the various principal staff officers, the
20 assistant commander of morale, legal affairs or the chief of operations,
21 or the assistant commander for intelligence and security, without having
22 the ability to describe and discuss the roles of the commander and his
23 Chief of Staff. I believe that is inherent in not only this particular
24 report but the other command responsibility reports.
25 Q. Now, let me ask you this: In the course of your review of
1 documents, I take it that you had occasion to review a number of
2 documents that were drafted by General Mladic, including those for which
3 you only had the receiving end of that document, without any signature;
4 is that right?
5 A. I take it the electronic versions of those, yes, sir, that is
7 Q. Do you have any indication of the quantity of such documents that
8 you would have had access to and reviewed that were said to have
9 originated from General Mladic, what quantity were signed by his own hand
10 as opposed to sent out in his name, including those mysterious documents
11 with the notation, "svojerucno," by his own hand that we saw that date
12 from the time period when he was not physically present in the
13 Main Staff?
14 A. I think you asked me that question a couple of hours ago and my
15 answer was that I've never done an analysis to determine which documents,
16 you know, the percentage of documents that were signed personally by
17 General Mladic versus those that are in possession of the OTP that are
18 telegraph versions of them and I have not done an analysis to determine
19 how many of the documents are signed by General Mladic and how many
20 percentage of those documents have the ubiquitous SR on them. So I mean,
21 I can't answer that question.
22 Q. Well, in relation to all those documents that say that they are
23 signed or came from General Mladic, including those mysterious ones that
24 say SR at the end, I would ask you --
25 MR. McCLOSKEY: I object to the term "mysterious" as unnecessary,
1 and I don't want the record to reflect that Mr. Butler agrees with that
2 or has to argue with him about it. I don't think there is anything
3 mysterious about them but that's for argument.
4 MR. IVETIC: I'll be happy to call them ubiquitous like
5 Mr. Butler did, if that helps.
6 JUDGE ORIE: Let's first listen what your question will be
7 because the introduction -- let's forget about the introduction for a
9 MR. IVETIC:
10 Q. I would like to focus on whatever portion of those documents that
11 you looked at that originated from General Mladic that would have
12 constituted the form of a military order to subordinate units and would
13 ask you if I'm correct that not a single such document called upon
14 subordinate units to commit crimes?
15 A. With respect to July 1995, and the scope of my analysis related
16 to Srebrenica, I have not come across a document by General Mladic
17 specifically ordering the execution of the prisoners. I would suggest
18 that the order from General Mladic to Trbic with respect to the fuel for
19 the reburial operation could arguably fall into that order directing the
20 commission of a crime but, again, that's an issue beyond my competence.
21 Q. And beyond that one document, you don't recall any others that
22 would even come close to fitting the definition of ordering a crime?
23 A. A document signed by him with respect to Srebrenica, July 1995, I
24 believe that is fair. I have -- I don't recall ever seeing a document
25 like that. I obviously am not in a position to comment about other
1 aspects and time periods as charged in the indictment, so --
2 Q. I -- I --
3 A. I just want to be clear on that.
4 Q. And thank you for making that clarification. Whenever I ask you
5 questions I'm asking specifically about the time period that you're
6 talking about, which is July 1995, and Srebrenica.
7 Now, in the course of your reports, all of them, and in the
8 course of your narratives, both of them, both the original and the
9 revised, and also in the testimony of prior cases that I've read, you do
10 not mention very frequently or at all the Chief of Staff, the deputy
11 commander of the VRS Main Staff, General Manojlo Milovanovic. Is that a
12 conscious omission on your part of that individual?
13 A. Conscious only in the sense that to the best of my knowledge and
14 as reflected by the documents, his role in what I was looking at in my
15 reports was limited. For example, again, I know that both the
16 investigation and in his own commentary, he was not present in the
17 Eastern Bosnian area, nor was he present exercising a command function at
18 the VRS Main Staff headquarters. He was in fact dealing with issues
19 pertaining to the western Krajina. So because of that, and because
20 essentially for whatever purposes the VRS felt they needed to do, the
21 logical chain of command did not go from General Mladic to
22 General Milovanovic. It went in fact from General Mladic to
23 General Miletic. As the chief of operations he was the person who would
24 stand in for the Chief of Staff in his absence.
25 Q. And to link this with prior testimony you've given us, the
1 General Milovanovic we have been talking about is the same individual
2 whom you'll recall having had the discussion with in the presence of an
3 interpreter, and I believe you said Mr. Jean-Rene Ruez, but first of all
4 is that the same General Milovanovic we are talking about now?
5 A. Correct, sir.
6 Q. Okay. Could you perhaps be mistaken about the identity of
7 Mr. Jean-Rene Ruez and perhaps was it Mr. Barry Hogan, who was present
8 for that discussion that you recall? Would you permit that possibility?
9 A. Yes, sir, I mean, it was many years ago and, again, it's not a
10 topic that I have been asked very much so I certainly hold open the
11 possibility that the investigator was not who I think it is.
12 Q. Okay. Now, I'd like to move again to some questions in relation
13 to your Srebrenica narratives, and for the record, when I use the term
14 "Srebrenica narrative," I'm referring to 65 ter numbers 04626, which is
15 the original done for the Krstic case, and 04627, which is the 2002
16 revision of the same.
17 Now, during the direct examination last week, and indeed even
18 today, you have made reference to the fact and stressed several times
19 that you wanted to stay away from witness references in your reports. In
20 that regard, would you agree with me that your revised 2002
21 Srebrenica Military Narrative contains no fewer than 74 references to
22 witness testimony?
23 A. I wouldn't agree or disagree. I've never actually gone through
24 my own report to count how many times I might have cited a particular
25 witness. My goal is to, again, use only the witness testimony for a very
1 limited purpose. If it took 74 references to do that, again,
2 I wouldn't -- wouldn't dispute that but, again, it's not my goal that
3 I would -- that I'm asking the Court to rely on that.
4 Q. Okay. Now, this -- these references, whether it's 74, 75, for
5 purposes of this question it doesn't matter. Am I correct that these
6 references to witness testimony, all of them in the -- in the 2002
7 narrative relate to testimony that these witnesses gave in the first
8 Srebrenica trial against General Krstic?
9 A. Yes, sir. In my initial narrative report I referenced them from
10 witness statements. For ease of handling by the Court in going back and
11 looking at these in the future environment, I used -- I based them off of
12 their identifications and their testimony as offered during the Krstic
14 Q. Did you undertake for purposes of this trial against
15 General Mladic, to review and check if in fact these same witnesses even
16 testified, let alone testified in the same manner as they had in Krstic,
17 upon which you relied in your reports?
18 A. No, sir. As I believe I testified last week, I've not followed
19 the events or testimony in this trial at all.
20 Q. Okay. Now, I think we can agree, then, that since your 2002
21 report, using these witness testimonies, was authored, there have been at
22 least, I think, five trials on Srebrenica before this Tribunal that you
23 have, I believe, also appeared as a witness in, several before the state
24 court in Sarajevo, if I could take you back to your time period when you
25 were doing this type of work for US army intelligence, would such a
1 report pass muster and be considered reliable if it had remained dated
2 and referred to witness testimony that predated 2002 and ignored or did
3 not deal with, I should say, any of the subsequent testimony of these or
4 other witnesses that had come to light in the subsequent proceedings?
5 JUDGE ORIE: Mr. McCloskey.
6 MR. McCLOSKEY: Objection, that's a long, convoluted, many
7 questions involved in one, and I doubt Mr. Butler would have written
8 anything like that to the United States Army with witness testimony in
9 it, so if he could break it down ...
10 JUDGE ORIE: Mr. Ivetic, did you want to ask as a matter of fact
11 whether the lapse of time and the new developments since then, whether
12 that would have created a risk of the report being outdated?
13 MR. IVETIC: I think he's answered that question. What I really
14 want to ask is what would be the standard operating procedure in the US
15 army for a report that would be so dated where there was indications that
16 there were subsequent interviews or subsequent testimony by the same
17 people. Would the standard procedure be to rely upon that report or to
18 ask for an updated report?
19 JUDGE ORIE: Is that a relevant question? What the US army would
20 do with that? Perhaps it's argumentative in the sense that you are
21 telling this Court that you shouldn't use it. Is that what you want to
22 convey as a message? Then we have understood it.
23 MR. IVETIC: Well, whether I want to convey it as a message,
24 Your Honours, this witness has testified that based upon his experience
25 and training as an operative --
1 JUDGE ORIE: Let's move on. Put a question as you wish and
2 I think the matter is clear that you want certainly to draw our and the
3 witness's attention to the fact that it was not updated since then.
4 MR. IVETIC:
5 Q. If I may ask one follow-up question, then, whose decision was it
6 not to update the report? Was it yours or was it by Prosecution counsel?
7 A. I've never been asked by Prosecution counsel to update the
8 narrative report, primarily because the Prosecution is well aware that
9 under my current job responsibilities, there is no way that I could
10 dedicate the time and the resources necessary to update it in the manner
11 that -- that I would with want to and be satisfied that it was updated.
12 I just do not have that time ability to do that anymore.
13 Q. I understand that but do you suppose another military analyst,
14 another military expert, could pick up your work and run with it, as it
15 were, to update it, check with new material and create a second report,
16 either saying there are drastic differences or there aren't drastic
17 differences? Would you expect that that could be done?
18 A. Sir, a broader sense, I've been waiting now for 15 years for
19 somebody to pick up all of the collective historical work related to this
20 and run with it. Sadly, that has not been the case.
21 JUDGE MOLOTO: If I might ask Mr. Lukic, if another military
22 analyst does that whose report would it then be?
23 MR. IVETIC: If you're asking me, Your Honours, instead of
24 Mr. Lukic, it would be then the second military analyst obviously who
25 I would expect generate a second report and then we would have the
1 original report, the report of the second analyst, and then we would have
2 a fuller picture of how much reliance we could place upon the material.
3 JUDGE MOLOTO: It would no longer be his report. And my
4 apologies to you, Mr. Lukic.
5 MR. IVETIC: That is correct, Your Honours, it would no longer be
6 his report. If I may just briefly consult, Your Honours?
7 JUDGE ORIE: Please do so, low volume.
8 MR. IVETIC: I will, Your Honours.
9 [Defence counsel and Accused confer]
10 MR. McCLOSKEY: Mr. President, to take a bit of advantage because
11 I know Mr. Stojanovic is on this issue, we were talking about having
12 Marija Karall, perhaps if you would approve, start tomorrow morning
13 because as you know from Mr. Groome she is leaving and we have spoken to
14 Mr. Stojanovic and that appears to be okay, as far as we know with him.
15 JUDGE ORIE: So not Friday but tomorrow?
16 MR. McCLOSKEY: Yes, please.
17 JUDGE ORIE: Mr. Stojanovic, I do understand that there is no
18 objection to that.
19 MR. STOJANOVIC: [Interpretation] That's correct, Your Honour.
20 I discussed it with my colleague, Mr. Ivetic, and we decided that we
21 could indeed start with that witness tomorrow morning, in the hope that
22 Mr. Butler doesn't have anything against it, of course.
23 JUDGE ORIE: Before we continue this matter, Mr. Butler, there is
24 a request by the Prosecution to hear another witness starting tomorrow
25 morning first, which may delay the conclusion of your testimony. Would
1 that bother you or would you say --
2 THE WITNESS: No, sir, I'm here at the convenience of the Court
3 on these matters.
4 MR. McCLOSKEY: Excuse me, as you know it's one hour time
5 estimate so Mr. Butler knows that.
6 JUDGE ORIE: One hour is 3600 seconds, as you know. Therefore,
7 the Chamber has no objection that the continuation of the
8 cross-examination of Mr. Butler will start after the testimony of the
9 next witness to be called then tomorrow morning.
10 Please proceed, Mr. Ivetic.
11 MR. IVETIC: Thank you, Your Honour.
12 Q. Sir, I forget what day it was but during the direct examination,
13 you were shown a map that was said to be signed by General Mladic
14 pertaining to the Krivaja operation, do you recall that?
15 A. Yes, sir.
16 Q. Would you also confirm for me, sir, that the signature on that
17 map, according to the results of your investigation, was placed on there
18 at the earliest on the 13th of July, after the operation had already been
20 A. There are two signatures on that map which purport to be
21 General Mladic's. I would suggest and my point of view is that the one
22 that is in the middle of the map, which talks about Srebrenica being
23 Serbian before, would fall into the category you suggested. He could
24 have signed it on either the evening of the 12th or on the 13th. The
25 signature that I am talking about is the one on the upper left-hand
1 corner of the map which was part of the map when it was the graphic
2 representation of the Srebrenica operations plan that the Drina Corps was
3 briefing to the Main Staff. That particular signature, under the command
4 and staff processes that the VRS followed, it would have been normal for
5 the commander, General Mladic, to sign that prior to the initiation of
6 the operation. He would not have signed that particular block on the
7 upper left-hand corner on the 13th of July.
8 Q. Okay.
9 [Defence counsel and Accused confer]
10 MR. IVETIC:
11 Q. Is your answer based upon you understanding of what the practice
12 would have been, or is it an affirmation that the investigation facts of
13 your investigation have borne that to have been the case in reality?
14 A. It is my understanding, based on the practice of the VRS. I'm
15 not aware -- I'm not -- again, I wasn't at that particular meeting and
16 I'm not aware. You know, there may have been witness testimony that
17 discusses that but I'm not aware of it.
18 [Defence counsel confer]
19 MR. IVETIC:
20 Q. Thank you. If we could just briefly get back to the Srebrenica
21 trial narrative which is where we began this line of questions --
22 JUDGE ORIE: Mr. Mladic is supposed not to speak aloud, to
23 whisper is okay, otherwise you consult after the --
24 MR. IVETIC:
25 Q. If I may, sir, in the Srebrenica trial narrative, and first of
1 all, I'd like to focus on Kravica and the incidents there. In your
2 discussion of the incidents at Kravica, I have never seen in any of the
3 narratives or in the testimonies that you've given, any acknowledgement
4 or reference of any fire-fight at that location between guards and
5 detainees who had taken over a weapon and in which one policeman was
6 killed and one wounded and perhaps another passerby wounded. Did you
7 have knowledge of such an incident having taken place at the Kravica
9 A. When I wrote my narratives, the documents that we had were the
10 documents that we had. I have become aware, though, in the intervening
11 years, that that is an issue that had come up and that various parties on
12 the VRS and the Republika Srpska police side had raised the prospect that
13 the people who were killed in Kravica were a direct result of an attempt
14 by individual Muslim prisoners to potentially escape. I believe I've
15 addressed that issue and why I don't believe that that overall is the
16 case in the Karadzic trial. He asked me that specific question and
17 I gave a rather lengthy answer as to why I did not believe that that was
18 the case, primarily based on the outcomes of all of the individuals who
19 were at the Kravica warehouse.
20 JUDGE ORIE: Now, talking about long answers, I'm looking at the
21 clock, quarter past 2. It's a matter to be explored perhaps in further
22 detail tomorrow.
23 MR. IVETIC: After the intervening witness.
24 JUDGE ORIE: Yes, especially since the witness threatened us with
25 long answers.
1 We will adjourn for the day. Mr. Butler, I again instruct you
2 not to speak or communicate in whatever way with whomever about your
3 testimony, either given or still to be given. You may follow the usher.
4 THE WITNESS: I understand.
5 JUDGE ORIE: We would like to see you back tomorrow morning.
6 THE WITNESS: Yes, sir.
7 JUDGE ORIE: Not tomorrow morning but because we'll first hear
8 the testimony of another witness, but could I ask you an assessment when
9 would Mr. Butler have to remain stand-by for later tomorrow morning?
10 MR. IVETIC: I'm told that the witness could be accomplished in
11 approximately one hour so I would imagine by the time of the second
12 session we would be ready to resume with Mr. Butler.
13 THE WITNESS: [Microphone not activated]
14 JUDGE ORIE: I beg your pardon. Yes, could you repeat what you
15 just said?
16 THE WITNESS: I'm sorry, I'm sure victim witness will have me in
17 the proper place at the right time, sir.
18 JUDGE ORIE: Yes, they certainly will. Then you may follow the
20 [The witness stands down]
21 JUDGE ORIE: We adjourn for the day and will resume tomorrow,
22 Thursday, the 12th of September, in this same Courtroom I at 9.30 in the
24 --- Whereupon the hearing adjourned at 2.17 p.m.,
25 to be reconvened on Thursday, the 12th day of
1 September, 2013, at 9.30 a.m.