Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9325

 1                           Monday, 26 October 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.18 p.m.

 5             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 6     courtroom.  Mr. Registrar, will you please call the case.

 7             THE REGISTRAR:  Thank you, Your Honours.  Good afternoon to

 8     everyone in and around the courtroom.  This is case number IT-04-81-T,

 9     the Prosecutor versus Momcilo Perisic.  Thank you.

10             JUDGE MOLOTO:  Thank you so much.  Could we have appearances for

11     this afternoon, starting with the Prosecution.

12             MR. SAXON:  Good afternoon, Your Honours.  Dan Saxon,

13     Barney Thomas, and Ms. Carmela Javier for the Prosecution.

14             JUDGE MOLOTO:  Thank you very much, Mr. Saxon.

15             And for the Defence.

16             MR. GUY-SMITH:  Good afternoon, Your Honours.  Chad Mair,

17     Tina Drolec, Novak Lukic and, Greg Guy-Smith on behalf of

18     Momcilo Perisic.

19             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

20             Just before we carry on to say that the Chamber is sitting this

21     afternoon pursuant to rule 15 bis because -- in the absence of

22     Judge David who is not in town.  He is out of town.

23             Yes, Mr. Saxon, you wanted to say something?

24             MR. SAXON:  Yes.  I was going to call the next witness,

25     Your Honour.

Page 9326

 1             JUDGE MOLOTO:  Before we do that, can we do a little bit of

 2     housekeeping matters.

 3             First of all, just to say that it may be that a message was sent

 4     to the parties, but just to make it abundantly clear, there is a Plenary

 5     this afternoon at 5.00.  Members of the Chamber are expected to attend.

 6     So hopefully it will be a very short Plenary, just one item on the

 7     agenda.  That's that.

 8             Secondly, there is an oral decision that the Chamber would like

 9     to render in relation to some of the motions that have been coming

10     through quite recently, and which I think -- about which I think a

11     decision should be rendered before we call the next witness.

12             This is going to be an oral decision.  The Trial Chamber is

13     seized of a Prosecution motion for leave to file a 10th supplemental

14     Rule 65 ter list and a request to tender certain exhibits from the bar

15     table filed on the 16th of October, 2009, hereinafter referred to

16     separately as Prosecution 65 ter list motion and third bar table motion.

17             On the 23rd of October, 2009, the Defence filed a response to the

18     Prosecution's 65 ter list motion only with respect to the expert report

19     and associated documents therewith.  In light of the arguments submitted

20     by the Prosecution, the Trial Chamber, pursuant to Rule 54 and 65 ter of

21     the rules, finds the amendment of the Prosecution ter list in to the

22     expert report of Major-General Melvin and the associated documents to be

23     in the interests of justice.  The Trial Chamber remains seized of the

24     Prosecution's 65 ter list motion with respect to the remaining documents.

25             The Trial Chamber is also seized of a motion for extension of

Page 9327

 1     time to response to both Prosecution second bar table motion and

 2     Prosecution motion for leave to file a 10th supplemental Rule 65 ter list

 3     and request to tender certain exhibits from the bar table filed

 4     confidentially on the 22nd of October, 2009.

 5             The Prosecution filed its response to this motion today

 6     requesting that the Trial Chamber should deny the Defence motion for

 7     extension of time or alternatively that the Defence be ordered to respond

 8     to the Prosecution 65 ter list motion within 48 hours of a decision by

 9     the Trial Chamber on this matter.

10             The Trial Chamber notes in this regard that pursuant to rules

11     126 bis of the rules, the Defence has time to file its response to the

12     Prosecution 65 ter list motion until the 30th of October, 2009.

13             The Trial Chamber has considered the arguments advanced by the

14     Defence, in particular related to the complexity of bar table motions and

15     the circumstances in which the motions were filed and has decided as

16     follows:  To grant in part the motion of the Defence for extension of

17     time pursuant to rule 127 of the rules.  Accordingly, the Trial Chamber

18     authorises the Defence to file its response to both the Prosecution's

19     second and third bar table motions by the 5th of November, 2009.  Two, to

20     deny the Prosecution request to expedite the Defence response to the

21     Prosecution 65 ter list motion.

22             Mr. Saxon.  You may call your witness.

23             MR. SAXON:  Thank you, Your Honour.  At this time, then, the

24     Prosecution calls Major-General Mungo Melvin.

25             JUDGE MOLOTO:  Thank you.

Page 9328

 1                           [The witness entered court]

 2             JUDGE MOLOTO:  Good afternoon, Major-General.  Will you please

 3     make the declaration.

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

 5     whole truth, and nothing but the truth.

 6             JUDGE MOLOTO:  Thank you very much.  You may be seated.

 7             Mr. Saxon.

 8             MR. SAXON:  Thank you, Your Honour.

 9                           WITNESS:  ROBERT ADAM MUNGO SIMPSON MELVIN

10                           Examination by Mr. Saxon:

11        Q.   Good afternoon, sir.  Will you state your full name for the

12     record, please.

13        A.   My name is Major-General Robert Adam Mungo Simpson Melvin.

14        Q.   Thank you.  And today I will address you as General Melvin; is

15     that all right?

16        A.   That is fine.

17        Q.   Very well.  And General Melvin, are you currently a -- actually,

18     before I begin, I see you've brought in a small binder and it's on the

19     desk in front of you.  Just so that it's clear to the Chamber and to the

20     Defence, it's my understanding that that binder contains a copy of your

21     expert report for these proceedings and the source materials that you

22     refer to in the footnotes.  Is that correct?

23        A.   That is correct.  It is solely my report, together with the

24     source material for the footnotes that I put in my note -- in my report.

25             MR. GUY-SMITH:  Just so we are clear, is it my understanding

Page 9329

 1     there are no other notes contained within the documentation in front of

 2     the gentleman?

 3             MR. SAXON:

 4        Q.   And you heard the question of my colleague, so then your binder

 5     contains no other notes?

 6        A.   That is correct.  The only exception to that is I've made one or

 7     two -- underlined a couple of parts of my report.

 8             JUDGE MOLOTO:  Perhaps for everybody's comfort, may we give the

 9     Defence half a second to just glance at the document.

10             THE WITNESS:  Yes, of course, Your Honour.

11             MR. GUY-SMITH:  Thank you very much.  I note that in the report,

12     the final version of the report of General Melvin consisting of some

13     24 pages, there are a number of interlineation and handwritten notes

14     contained in his report distinct from the issue of footnotes.  There are

15     some names and some other matters that are contained in his report that

16     are not in the report that I have.  I'm wondering if at some point it

17     would be convenient just for me to get a copy of the actual document that

18     the General is using during his testimony.  I think that probably will

19     settle or resolve any concerns that I might have.

20             MR. SAXON:  That would be perfectly fine with the Prosecution.

21     We can do it at the first break.

22             MR. GUY-SMITH:  And I thank you.

23             MR. SAXON:  Thank you, Mr. Guy-Smith.

24             If we can please show General Melvin and the persons present what

25     is 65 ter 9571, please, it's the curriculum vitae of General Melvin.

Page 9330

 1        Q.   While we are waiting for that, General Melvin, I'm not going to

 2     take you completely through your CV, but can you just tell us about your

 3     military education?

 4        A.   My military education started formally with attendance at the

 5     Royal Military Academy at Sandhurst between 1974 and 1975.  It was then

 6     followed by various courses, the most significant of which was attendance

 7     at the German Armed Forces Commanded Staff College at Hamburg between

 8     1986 and 1988.

 9             I then attending the British Armed Forces Higher Command

10     and Staff course in 1998, and that completes my military education.

11        Q.   Now, in the second paragraph of your CV you list a number of

12     positions and operational service and in command during your career, so

13     I'm not going to ask you to repeat that.

14             Approximately how many years have you served in the army of the

15     United Kingdom?

16        A.   Since entering the British army in the summer of 1974, I have

17     served 35 years.

18        Q.   And your present position?

19        A.   Currently I'm held strength of the Chief of General Staff of the

20     British army.  I am in fact between two formal appointments.  My last

21     formal appointment was as the general officer commanding the

22     United Kingdom support command in Germany, and I'm going to move next

23     month to be the senior army member at the Royal College of Defence

24     studies in London.

25        Q.   General Melvin, have you written any publications related to

Page 9331

 1     military affairs?

 2        A.   Several.  The most prominent of which I was the principal author

 3     of the "British Army Doctrine Publication Volume 2 Command," which I

 4     wrote in 1994 and was published in 1995.  Ten years later, I was the

 5     editor and co-author of a successor publication, "Army Doctrine

 6     Publication Land Operations," which was written in 2004 and published in

 7     2005.

 8             In addition to that, I've contributed widely to joint and

 9     multinational doctrine works and have written on them.

10        Q.   And since the publication of your work on command in 1995, have

11     you returned to that subject?

12        A.   Indeed.  I wrote the chapter on command in "Army Doctrine

13     Publication Land Operations," Chapter 6, which I've quoted in my report.

14     That is a condensed version and revised version of what I wrote ten years

15     previously.

16        Q.   Is command considered -- the subject of command per se, is that

17     considered to be an academic specialisation?

18        A.   Not at all.  Command, first and foremost, is a practical matter

19     which is exercised on a daily basis across all military forces.  I have

20     been privileged to research the matter and have written about it.  And my

21     writings are based on both personal practical experience and that which

22     I've researched and observed on others.

23        Q.   You mentioned a publication called "Land Ops Doctrine," which was

24     published in 2005.  Are you doing any additional work on that

25     publication?

Page 9332

 1        A.   Yes.  Further to submitting my CV, I've been asked to mentor the

 2     next edition which is due to be written in 2010.  I will be looking at

 3     all aspects of that publication.  I will assist it.  I will not be

 4     directly responsible, however, at this stage for writing it.

 5        Q.   Have you taught any courses related to military affairs?

 6        A.   Yes, several.  I was a member of the directing or teaching staff

 7     at the British Army Staff College in 1993 and 1994.  I was subsequently a

 8     member of the directing staff and the deputy director of our higher

 9     command and staff course at the Joint Services Command and Staff College

10     between 1998 and 2000.  And subsequent to that, I've been a guest

11     lecturer at that college and other institutions on a number of occasions.

12             MR. SAXON:  Your Honour, at this point I would ask that the

13     Chamber admit this curriculum vitae, 65 ter 9571.

14             MR. GUY-SMITH:  No objection.

15             JUDGE MOLOTO:  Thank you.  Just before we do that, I notice that

16     in Prosecution confidential submission of expert report of

17     Major-General Mungo Melvin dated the 12th of October, 2009, the

18     Prosecution says that in August 2010 Major-General Melvin left the

19     position of General office of commanding the United Kingdom support

20     command.  And I just -- is there something that needs to be corrected

21     there?

22             MR. SAXON:  The correction, that was a typographical error by

23     myself, Your Honour, for which I apologise.  It should say 2009.

24             JUDGE MOLOTO:  Thank you very much.  65 ter 9571 is admitted into

25     evidence.  May it please be given an exhibit number.

Page 9333

 1             THE REGISTRAR:  Yes, Your Honours.  This becomes Exhibit P2771.

 2     Thank you.

 3             JUDGE MOLOTO:  Thank you very much.

 4             MR. SAXON:

 5        Q.   Now, I'd like to direct your attention, General Melvin, to your

 6     report itself, if I may.

 7             MR. SAXON:  And can we please call up what is now 65 ter 9572.

 8        Q.   And, General -- we'll wait for the B/C/S version to come up.

 9             General, at paragraphs 1.1 through 1.6 of your report, you

10     describe your task and the four questions that you were asked to respond

11     to.  At paragraph 1.2, which is on the very first page, you describe how

12     General Dannatt had asked you to take on the task of preparing an expert

13     report for this case.  And you say:

14             "I had already read into the case to some extent."

15             Are you following me?

16        A.   Yes, sir.

17        Q.   Can you be more specific about what you had read at that point?

18        A.   I had read, at that stage, two documents.  One was the -- your

19     set, Mr. Saxon's -- the original six questions which you had sent to

20     General Dannatt's office.  And secondly, before I looked at those in

21     order to give me some context, I had looked on the internet and had read

22     the indictment against -- against General Perisic.

23        Q.   And at that time did you see a document titled

24     "Command and Control"?

25        A.   Yes, I did.

Page 9334

 1        Q.   All right.

 2        A.   But I did not spend -- I did spend enough -- I did not have

 3     enough time to read it in full.  I glanced at the document.

 4        Q.   At paragraph 1.4 --

 5             MR. SAXON:  And this is on page 3 of the English version and also

 6     the same page of the B/C/S version, it begins there in the English

 7     version and then continues on to the next page.

 8        Q.   On page 3 of the English version, the last sentence of that

 9     paragraph 1.4 refers to the Ministry of Defence's Trials and

10     Inquiries Unit, TIU.  Do you see that?

11        A.   Yes.

12        Q.   Is that reference correct?

13        A.   No.  And on my original I've deleted the word "trials" and

14     inserted "Tribunals."  That was a typographical error of mine which I'd

15     failed to spot prior to the final submission of the report dated the

16     17th of September.

17        Q.   And if we could move down just to the next paragraph,

18     paragraph 1.5, in the very first line of paragraph 1.5, you say:

19             "I can confirm that I received some input on factual [measures]

20     from others."

21             Can you explain what you mean by that?

22        A.   Yes, indeed - and I'm referring here to my notes here - I

23     received advice from two members of the Ministry of Defence

24     United Kingdom legal services, Mr. Stewart Howard and a Mr.

25     Humphrey Morrison who gave me some advice on legal phraseology.  They

Page 9335

 1     gave me no advice on the doctrinal input to my report.

 2        Q.   Very well.  At paragraph 1.6, we see the four questions that you

 3     were asked to consider, and I'm not going to ask you to read them now

 4     because we are going to look at each one of those questions as we go

 5     through your report.

 6             MR. SAXON:  If we could turn to paragraph 2.1, please, which is

 7     on page 4 of the English and B/C/S.

 8        Q.   I'd like to ask you about the methodology that you used to answer

 9     these four questions.  And there -- at paragraph 2.4 it has a subtitle

10     called "Background."  And can you just briefly summarise what you are

11     trying to convey in that paragraph?

12        A.   Yes, may I take your first question about methodology first and

13     then I'll return to background, if I may.

14        Q.   If you prefer.

15        A.   The methodology which I've described if my report from pages 4

16     onwards is an attempt to give an explanation to the approach that I took

17     in writing the report.  It parallels an approach I would take for writing

18     the majority of the military reports that I have to do.  It -- in the

19     starting point is an explanation of the approach that you are taking and

20     to provide some context and background as necessary.

21             So I've done that in two ways:  I've provided general context,

22     particularly in terms of terminology and doctrine before I answer the

23     four questions; and then, using similar approach, I've tried to provide

24     some background or context to each of the four answers I've given to the

25     four questions.  That, I think, I hope answers the first part of your

Page 9336

 1     question.

 2        Q.   Yes, it does.

 3        A.   Moving on to the rationale --

 4        Q.   No, no, General.  I'm really only interested for now in

 5     paragraph 2.1, thank you.

 6        A.   Okay.

 7        Q.   I think you've dealt with that.

 8             MR. SAXON:  If we can turn to paragraph 2.4, which is on page 8

 9     of the English version and page 8 of the B/C/S version.  Paragraph 2.4

10     has the subtitle "Approach of This Report" can you explain to the Judges

11     please, General, what was the general approach that you took in the

12     writing of your report.

13        A.   Well, my approach was, bearing in mind that I was asked four

14     questions which are largely of a doctrinal nature, was to provide a

15     general document which provided an explanation of command, gave some

16     examples of definitions, and then gave some specific answers to the

17     questions that you had posed.  I wanted to stress in the approach of my

18     report that I wasn't going to go into any specific matters pertinent to

19     the case or the indictment of General Perisic.  I didn't think I was

20     qualified to do so, and, in any case, I did not have time to research

21     that.  So I wanted to make that a very clear constraint or, as you were,

22     limitation to my report very clear to the Court.

23             JUDGE MOLOTO:  I notice, Major-General, that you do say in that

24     paragraph that you consider the general context of command rather than

25     the specific, and then the next sentence you go to say that in so doing,

Page 9337

 1     you provide some background doctrinal material on command drawn from the

 2     United Kingdom and the NATO forces.  Can you reconcile those two views?

 3     It looks to me like you first say you are giving your general doctrinal

 4     context and then you move on specifically to the UK and NATO without

 5     giving us a general context of command.  But it looks like you are being

 6     specific to NATO and British forces.

 7             THE WITNESS:  Your Honour, I apologise if the wording wasn't

 8     sufficiently clear.  Let me try and elaborate to answer your question.

 9     The -- when I was referring to the general context of command, I was

10     referring to a general doctrinal context of command rather than a

11     specific circumstances of command pertaining to any commander at a

12     particular place or time.

13             JUDGE MOLOTO:  Fine.

14             THE WITNESS:  And I, from my own experience, my quoting of UK

15     national and NATO done doctrine with which I'm familiar, I used that to

16     mean the general context of command.  May I -- Your Honour, I see I've

17     not clarified it for you.  My --

18             JUDGE MOLOTO:  Yes, I understand what you say, and I just failed

19     to understand how UK command as understood in -- how command as

20     understood in the UK or in the NATO forces can be seen as a general

21     context of command.

22             THE WITNESS:  Well, I perhaps have -- I have by over-familiarity

23     and bearing in mind that my service of 35 years has been within the --

24     with a very minor exception has been entirely within the British and NATO

25     command, I have taken it with respect largely as read as that as a

Page 9338

 1     general context.

 2             JUDGE MOLOTO:  Well, that's the universal knowledge for you.

 3             THE WITNESS:  From my experience.

 4             JUDGE MOLOTO:  From your experience.  But it is not the universal

 5     context of command.  Because an Afghanistan force, a

 6     Mozambique [Realtime transcript read in error "Muslim"] force somewhere

 7     might have other commands which you are not familiar with.

 8             THE WITNESS:  Indeed, Your Honour.

 9             JUDGE MOLOTO:  Thank you.  You may proceed.

10             MR. SAXON:  If we can -- one moment, please.

11             JUDGE MOLOTO:  While you are asking for a moment, the "Muslim"

12     after Afghanistan force that appears on the transcript should read

13     "Mozambique" force.

14             MR. SAXON:

15        Q.   Following up on His Honour Judge Moloto's questions to you a

16     moment ago, you -- in paragraph 2.4 when you refer to the general context

17     of command -- I'm going to leave this for now.  I may come back to this.

18             Are you aware of any modern armies, General Melvin, in which what

19     you describe as the general context of command would not apply based on

20     your knowledge and experience?

21        A.   If I may refer back to what I wrote in my report at

22     paragraph 2.3.1, I think that would be important to stress what I meant,

23     bearing in mind the discussion with His Honour on the subject, what I

24     mean by "general context."  For a specific army coalition or alliance

25     there is a -- or a commanders within such a force, there is a general

Page 9339

 1     context.  I've suggested here in my report that it is based on a

 2     foundation of education and training.

 3             That's what I mean here by the general context.  And I've also

 4     set out that I believe it to be uniformly the case that in modern armies,

 5     modern forces, that that context command will be set up formally in laws,

 6     regulations, administrative instructions, and doctrine publications, and

 7     notes.  I've also said in my report at the top of page 7, that that

 8     general context is also passed on informally through established custom

 9     and practice.

10             My experience of modern armies has been, as I've tried to clarify

11     to the Court, primarily of the British army and of fellow NATO forces.  I

12     have some other experience of other forces, but that's much more limited.

13     But I believe, in answering your question, what I've said is the basic

14     issue of the general context.

15        Q.   Does that mean your answer -- well, let me go back to my original

16     question then.  Are you aware of any modern armies in which what you

17     describe as the general context of command would not apply based on your

18     knowledge and experience?

19        A.   Based on my knowledge and experience, I'm not aware of any modern

20     armies where this generally written context would not apply, that is

21     correct.

22             MR. SAXON:  If we can turn, please, to paragraph 2.5 of

23     General Melvin's report, which -- this is on page 8, I believe, in both

24     versions.  Bottom of page 8 in the English version.  There it is in the

25     B/C/S version.

Page 9340

 1        Q.   Paragraph 2.5, General, is subtitled, "Detailed Method."  Can you

 2     explain, please, what was the detailed method that you used in responding

 3     to these four questions?

 4        A.   As I've outlined earlier, my approach in answering any question

 5     is to examine the context first; and therefore, in attempting to answer

 6     each of the four questions posed, I have first undertaken a general

 7     examination of the question trying to gain an understanding of what is

 8     meant by the question, what may lay behind that question, in simple terms

 9     an analysis of the question.

10             I then set out specific answers to the questions and, as stated

11     in my report, where the question consisted a number of sub-questions,

12     I've addressed those sequentially in the order presented.

13        Q.   Thank you very much.  Let's turn our minds now to question 1,

14     which is at -- starts at paragraph 3.1, page 9 of the English version and

15     of the B/C/S version.  The very first part of that question says the

16     following:

17             "Describe the generally accepted principles governing cooperation

18     between the military forces of two countries."

19             Now, in paragraphs 3.1.1 through 3.1.10, you describe these

20     principles.  I'd like to take you, please, to paragraph 3.1.11, which is

21     on page 12 of the English and B/C/S versions.

22             And there we see the next portion of question 1 which says:

23             "Describe the concepts of command and control, operational

24     control, tactical control, et cetera, as they apply in this context."

25             Can you please explain to us briefly what the concept of command

Page 9341

 1     means, the concept of control means?

 2        A.   Well, I -- in order to help you and the Court, I would request

 3     respectfully that we return to an earlier part of the report and to

 4     page 5 of my report and subparagraph 2.21, where I describe the terms

 5     "command" and "control."  That's paragraph 2.21.

 6        Q.   Are these terms distinct are or are they synonymous?

 7        A.   They are often informally intermixed, but they are not, as I

 8     stress here, not synonymous.  I have quoted here, directly from the NATO

 9     doctrine, command and control terms which are differentiated.

10        Q.   And command, very briefly?

11        A.   A command, as doctrinally set out here, is the more inclusive of

12     the two terms, it is the authority vested individual to direct,

13     coordinate, or control armed forces.

14        Q.   And --

15        A.   Whilst control is more of a process through which a commander,

16     assisted by his staff, actually organises or directs or coordinates those

17     activities which he has directed.  So in clarifying the difference

18     between command and control, as I make clear in the next paragraph,

19     control, by my understanding, by my writing, and by my teaching, control

20     is a subset of command.

21             MR. SAXON:  All right.  If we can turn back, please, to page 12

22     in the English and B/C/S version.  And we'll take a look at

23     paragraph 3.1.13.

24        Q.   And in that paragraph, General, you refer in the very first line

25     to a concept called "command states."  Can you explain that concept,

Page 9342

 1     please?

 2        A.   The term "command state" is a military term used widely across

 3     NATO.  I cannot confirm whether or not it's used in other armies.  I

 4     suspect it is.  And what it does is define formally the command

 5     relationship between superior commanders and subordinate commanders,

 6     between formations and subordinate formations.  Those command states are

 7     carefully defined in the NATO glossary, and I've set those terms out on

 8     pages 13 and 14 of my report.

 9        Q.   One of those command states that you described is full command.

10     Can you describe what that is, please?

11        A.   I quote that the full command is:

12             "The military authority and responsibility of a commander to

13     issue orders to subordinates.  It covers every aspect of military

14     operations and administration, and exists only within national services."

15             MR. SAXON:  If we could turn to page 13, please.

16        Q.   I believe still on the bottom of page 12 we saw full command.  We

17     see at the top of page 13 in English the concept of full command.  Then

18     we see --

19             MR. SAXON:  And if we could turn to the next page in B/C/S,

20     please.

21        Q.   You refer to a command state called "operational command."  Can

22     you explain what that means?

23        A.   When we move out of the national realm into the multinational

24     realm certainly within NATO and in coalition operations involving NATO

25     forces, the most frequent command states used are those of operational

Page 9343

 1     command and operational control.  Taking the operational command first,

 2     to answer your question, is, I quote:

 3             "The authority granted to a commander to assign missions or tasks

 4     to subordinate commanders, to deploy units to reassign forces, and to

 5     retain or delegate operational and/or tactical control as the commander

 6     deems necessary."

 7             And I further quote, and this is the important distinction

 8     between operational command and full command:

 9             "It doesn't include responsibility normally for administration or

10     discipline."

11        Q.   And operational control, can you tell us what that is?

12        A.   Operational control is a lesser command state than operational

13     command.  Again, I quote:

14             "An authority delegated to a commander to direct forces assigned

15     so that a commander may accomplish specific missions or tasks which are

16     usually limited by function, time, or location."

17             I would stress, however, that the power to a commander given in

18     operational control is significantly less than that he would otherwise

19     have under operational command.  And quoting again from the NATO doctrine

20     in my report, under operational control:

21             "It does not include authority to assign the separate employment

22     of components of the units concerned."

23        Q.   Would operational control then include the authority and

24     responsibility to discipline or not?

25        A.   Not -- not normally.  The disciplinary chain is normally retained

Page 9344

 1     through a full command or national command chain.

 2        Q.   So if we just look -- if we are looking at page 13 of the English

 3     version where we see full command, operational command, and operational

 4     control, which command state would be the broadest and which would be the

 5     most restrictive on this page?

 6        A.   The broadest one is, without doubt, full command.  And the most

 7     limited of the three is operational control.

 8        Q.   Very well.  And --

 9             JUDGE MOLOTO:  If I may just ask, is it possible to envisage or

10     have you come across a situation where two competent parts of full

11     command, namely military operations and administration, vest in two

12     separate organs of command and not in one?

13             THE WITNESS:  Your Honour, as far as I understand it, no, because

14     the administrative, as I said, and full command chains are normally the

15     one.  But to clarify, there can be - this is why we have to couch the

16     term "normally" in doctrine - there can be situations by which, under

17     multinational arrangements, some aspects of administration or logistics

18     could be provided on a multinational basis.  For example, water, fuel,

19     could be provided on a multinational basis, not on a national basis.  But

20     that's unlikely to pertain when we get to discipline.  In my experience,

21     discipline is retained by the national command.

22             JUDGE MOLOTO:  On that point, in your knowledge of command, have

23     you come across the concept of resubordination?  And if so, how is

24     command exercised in the situation where there's been a resubordination

25     of some units to some other command other than the national command?

Page 9345

 1             THE WITNESS:  Are you referring to, Your Honour, to

 2     subordination, I'm not aware of the term you are specifically using here.

 3             JUDGE MOLOTO:  The term "resubordination," you are not aware of

 4     that term?

 5             THE WITNESS:  No.

 6             JUDGE MOLOTO:  If you are not aware of the term, then there's no

 7     point asking the question.  I will drop the question.  Thank you.  You

 8     may proceed.

 9             Before you proceed, sorry, Mr. Saxon.  You have indicated,

10     Major-General, examples of administration as relating to provision of

11     fuel and water.  My actual question was, well, I was envisaging under the

12     heading of administration, payment of salaries, promotions of officers,

13     pensioning of officers, that kind of administration.  Are you aware of

14     that kind of administration --

15             THE WITNESS:  Yes.

16             JUDGE MOLOTO:  -- being vested in a separate organ of command

17     from the organ which bears operational command?

18             THE WITNESS:  Yes, Your Honour.  Thank you for clarifying that

19     for me.  It terms of administration -- personnel administration, there

20     can be cases where another force will undertake some administrative

21     functions on behalf of another one.  But I -- but as I set out later in

22     my report, when it comes to things like pay and pensions and discipline,

23     those are normally retained by the national command authority, i.e., that

24     authority that sends either forces or individuals to join another command

25     either on a multinational basis or on another nation's basis.

Page 9346

 1             JUDGE MOLOTO:  How does the national office or the national

 2     command exercise discipline if it is not operationally close to the

 3     theatre of war to observe any misdemeanors or any crimes committed by the

 4     forces?

 5             THE WITNESS:  That is simply answered, Your Honour, that in

 6     almost all cases there will be appointed, whatever the nation concerned,

 7     a national contingent commander who will be appointed for that specific

 8     circumstance to deal with discipline.

 9             JUDGE MOLOTO:  Sure.  You deal with the national contingent

10     commander later in your report.

11             THE WITNESS:  Indeed.

12             JUDGE MOLOTO:  In a situation where there's no such office, how

13     does that get implemented?

14             THE WITNESS:  Well, if for the example that there were no

15     formally appointed national contingent commander, it would be incumbent

16     on the senior national officer in pursuance of his normal duties to

17     maintain good order and discipline of his unit, of the soldiers, sailors,

18     or airmen under his command.  Those of his own nation.  So he would have

19     first and foremost that responsibility to ensure good order and military

20     discipline.

21             JUDGE MOLOTO:  Okay.  As I understand you, Major-General, within

22     this unit that is operating in a multinational situation, there would be

23     a commander, whether he is an NCC or some other commander, but the most

24     senior commander from the contributing nation who is directly responsible

25     for the maintenance of discipline within the unit under him.

Page 9347

 1             THE WITNESS:  That is correct, Your Honour.

 2             JUDGE MOLOTO:  Okay.  Thank you so much.

 3             MR. SAXON:

 4        Q.   General Melvin, following up on Judge Moloto's last question,

 5     suppose there is no in-theatre - if I can use that term - national

 6     commander appointed to oversee matters of discipline, what

 7     responsibility, if any, would the national military commander or

 8     commanders back in the sending nation have if they are aware that their

 9     troops that are part of a multinational force or serving with another

10     nation have engaged in criminal conduct?

11        A.   As I think I make clear in my report, there is always a duty to

12     act in the event of criminal actions or activity being detected.  As I've

13     stated to His Honour the Judge, that even if a national contingent

14     commander is not appointed, it would fall on the senior ranking national

15     officer to report any incidents along the lines you've suggested and to

16     take appropriate steps at the very least to launch some form of

17     investigation and to report that immediately up his command chain to the

18     sending or contributing force.

19             Back in the nation, or back in the home country, there would be

20     likewise a responsibility to take action on that report or on information

21     being received by other sources.  And in my experience where this has

22     happened, then there has been investigations launched within the theatre

23     of operations and, if necessary, an investigative team may also be sent

24     out by the contributing nation to investigate that in the theatre.

25        Q.   And would that responsibility to take action that you've

Page 9348

 1     described back in the home country, would that apply even when the troops

 2     that were sent to the receiving nation were serving under the operational

 3     control of that a receiving nation?

 4        A.   Very much so because as the command states -- a differentiation

 5     between the command states are made clear, even if that national force

 6     was operating under the operational control of a different national

 7     commander in a multinational context, the disciplinary chain will remain

 8     primarily a national one and therefore there is a responsibility to act

 9     both in theatre and as necessary to act from the sending state.

10             JUDGE MOLOTO:  Back to my question.  That would depend, of

11     course, on reports being given to the contributing state of commissions

12     of crime by the contributed members of the force on the theatre?

13             THE WITNESS:  Yes, Your Honour, primarily.  But I don't think -

14     and no specific example springs to mind - I don't think we can exclude

15     the possibility of the sending state reacting purposefully and

16     appropriately if it were to receive information from another source.

17             JUDGE MOLOTO:  That's true.  But all I'm saying is in the normal

18     course of events, as I understand, and you correct me here because you

19     are the specialist on command and control, I would imagine that command

20     and control has as its inherent -- as a systemic composition of it a line

21     of communication from the theatre up the chain of command to the national

22     commander and back?

23             THE WITNESS:  Absolutely, Your Honour.  The whole system would

24     depend on timely reports and returns on that basis.

25             JUDGE MOLOTO:  That's correct.  And, therefore, it is through

Page 9349

 1     this reporting mechanism that the national commander gets to know of any

 2     commission of crimes that takes place on the theatre of war which then

 3     triggers his duty to do something?

 4             THE WITNESS:  I would say that is by far the most important and

 5     the most reliable source.  I, in my earlier response, was indicating I

 6     couldn't exclude a responsive and responsible national command authority

 7     from taking action.

 8             JUDGE MOLOTO:  On hearing it from another source.

 9             THE WITNESS:  On hearing it from another source.  That is all,

10     Your Honour.

11             JUDGE MOLOTO:  I hear that.  That's why -- okay.  Thank you so

12     much.

13             Yes, Mr. Saxon.

14             MR. SAXON:  Your Honour, I note the time, would you like to take

15     the first break now?

16             JUDGE MOLOTO:  At half past.

17             MR. SAXON:  Half past, very well.

18        Q.   General Melvin, is the distinction between the two terms

19     "command" and "control" always the same for all armies?

20        A.   I think in the practical usage, as I've tried to indicate in my

21     report, there can be some difference because informally the terms command

22     and control in certainly my 35 years' experience can often be

23     interchanged.  But it doctrinally and in specific circumstance of the

24     command states they are not interchanged.

25             The emphasis between command and control does change.  What is

Page 9350

 1     not helpful is the expression common in all armies and all armed forces,

 2     command and control.  I have waged a lone fight to remove this term

 3     unsuccessfully because, as I've argued and have written and has been

 4     largely accepted, but not fully, that command is an element -- I correct

 5     myself, control is an element of command and not the other way about.  So

 6     there is some -- to answer your question, across armies, there is some

 7     difference of emphasis.

 8        Q.   What about in the context of particular command states such as

 9     full command, operational command, operational control, et cetera?

10        A.   Here I make an important distinction whereas the terms command

11     and control are loosely used in general military conversation,

12     publications, when we get down to the specific issues of command states,

13     the terms command and control, particularly when they are applied in the

14     specific terminology, full command, operational command, operational

15     control, tactical command, or tactical control, are very precisely used.

16        Q.   And why is that?

17        A.   Coming back to the multinational context, the command states are

18     a very specific and very particular way in which the freedom of

19     multinational commanders are limited by the troop contributing nations.

20             And I give a specific example, I think, in my report.  The

21     distinct between, for example, operational command and operational

22     control is significant.  The operational control command state is more

23     limiting and it specifically does not include the authority to split up

24     component units.  Why would a national commander be concerned about that?

25     Well, it could be, and this is often the evidence given to have a

Page 9351

 1     restrictive command state, that though tactically the national commander

 2     might be well within his rights to request the break-up of a specific

 3     formation, the national command authority might not be able to provide

 4     the appropriate logistic support for it.

 5             So these command states represent a set of check and balances

 6     within a multinational framework.

 7        Q.   Very well.  General, focusing again on page 13, and there's a box

 8     on page 13 with the subtitle "Important Note."  I want you to turn your

 9     mind to that for a moment.  How is the term "command" used in an

10     international context, or in the context of a multinational military

11     force?

12        A.   Well, so you've referred the Court and me to the boxed important

13     note on page 13?

14        Q.   Yes.

15        A.   May I first of all stress, that is a direct quote from the NATO

16     glossary.  And what that note is trying to do is to make it clear that

17     within the multinational context internationally, the term "command" does

18     not imply full command.  It is going to imply a command of a lesser state

19     either operational command or operational control or tactical command or

20     tactical control.  In the NATO or coalition context, no multinational

21     commander would exercise full command, so therefore when a multinational

22     commander gives an order by virtue of his appointment when he commands

23     subordinate commanders and their formations, he cannot exercise full

24     command because he doesn't have it.  That is retained by the troop

25     contributing the national command chain.

Page 9352

 1        Q.   Very well.

 2             MR. SAXON:  If we can turn, please, to the next page in English

 3     and B/C/S.  This will be paragraph 3.1.16.

 4        Q.   And it has the subtitle "Role of the Sending Country (or State)."

 5     What is the role of a sending country or state which contributes forces

 6     to a multinational military operation?

 7        A.   The sending state, as you would imagine, it would be responsible

 8     for preparing -- preparing the force and training it.  That's one of its

 9     responsibilities.  As an issue, I did not go into it in my report.  But

10     what the troop contributing nation, as I state in my report, retains the

11     responsibility to administer the individuals concerned and as previously

12     discussed in court, pay promotion and retirement issues.

13        Q.   Would disciplinary powers also be retained?

14        A.   Disciplinary powers are usually retained within the national

15     command chain.  Ultimate authority remaining with the national command

16     chain.

17        Q.   Very well.

18             MR. SAXON:  If we can turn, please, to page 15 in the English and

19     B/C/S versions.

20        Q.   We'll take a look at question 2, General Melvin.  Question 2

21     says:

22             "Describe any historical context that you are aware of in which a

23     military has seconded personnel to the operational control of the

24     military of another country while continuing to provide all remuneration

25     including enhanced pay and pension rights for combat service in that

Page 9353

 1     other country, as well as retain its right to make final determination on

 2     the promotion and retirement of those officers, and does not exercise its

 3     ability to discipline those soldiers for breaches of military or

 4     international law."

 5             MR. SAXON:  Can we go to the next page, please, in both versions.

 6        Q.   And, General Melvin, there we see paragraph 3.2.3 that in order

 7     to answer the question you created this table.  Can you explain -- can

 8     you please explain why you created this table and what you intend to

 9     demonstrate by it?

10        A.   Well, first of all, in -- it's a response to answering your

11     question 2 which was set a number of conditions.  This table is my own

12     formulation, because in my experience and my knowledge of both national

13     and multinational doctrine, I hadn't seen a question formulated in this

14     manner before.  And, therefore, I attempted to answer the question from

15     first principles and took each of the three conditions which were

16     contained in the question and analysed them to expose what I believe to

17     be a general application, but also, where appropriate, I observed any

18     exceptions.

19        Q.   So if we look, General, at the upper left-hand corner, the

20     left-hand column "Condition."  And the first condition is where the

21     sending state continues to provide all remuneration including enhanced

22     pay and pension rights for combat service in that other country, what

23     then, according to -- would be, according to your knowledge, would be the

24     general application?

25        A.   Well, as I state in the table, the sending state under its full

Page 9354

 1     command responsibilities is normally -- remains responsible for that

 2     administration, pay, and pensions, et cetera.

 3        Q.   Might there be an exception to that?

 4        A.   The exception could be that the sending state might elect to pay

 5     the individual or top up that individual's pay.  That could be done

 6     either directly to the individual, or more likely, it would be indirectly

 7     in, i.e., from a government-to-government basis under a bilateral

 8     agreement.

 9             MR. SAXON:  General --

10             JUDGE MOLOTO:  But on this box you are not talking the bilateral

11     government-to-government agreement.  You are talking of actually some

12     kind of securing their release from the sending state as if this is a

13     luring of the soldiers.  This is what I wanted to understand from you.

14     What do you mean by securing release from the sending state.  Are you, by

15     that, suggesting that they would then, sort of, desert their national

16     state army --

17             THE WITNESS:  Not at all, Your Honour.

18             JUDGE MOLOTO:  -- and then join -- what do you mean?

19             THE WITNESS:  Not at all, Your Honour.  What I'm meaning here is

20     that the sending state might wish to have some recompense for sending its

21     forces or individuals to another nation, and in addition to that, that

22     the receiving nation might wish to make it attractive to the sending

23     state or the individuals of the sending state.  I'll give you an example,

24     that the --

25             JUDGE MOLOTO:  But wait a minute.  The box clearly says:

Page 9355

 1             "The receiving state may elect to pay seconded individuals" - not

 2     to pay the sending state, seconded individuals - "in order to attract

 3     suitably qualified personnel or to secure their release from the sending

 4     state."

 5             It almost suggested to me, and I want you to clear my mind if I

 6     misread you, it almost suggested a clandestine move on the part of the

 7     receiving state to attract soldiers of the sending state onto its side.

 8     I'll pay you better than your state is paying you.  Is that what should

 9     be read into that statement?

10             THE WITNESS:  I think, with respect, Your Honour, you may be

11     reading a little bit too much into what I'm saying.

12             JUDGE MOLOTO:  Okay.

13             THE WITNESS:  But if I may, just to clarify the point, I made two

14     qualifying remarks to what I said in the box.  I made the point the paid

15     seconded individuals, that doesn't need to be directly paying the

16     individuals, that could be through the sending -- the sending state.  If

17     I were, I could expand that box to make that point further clear.  I'm

18     just trying to condense what I wrote there.

19             JUDGE MOLOTO:  Okay.  Can I be just clear, what you are saying

20     here, is this covered by the caveat you make at the bottom of page 15?

21             THE WITNESS:  Yes, I made a specific caveat here because my

22     reading this --

23             JUDGE MOLOTO:  You are just giving your opinions here.  This is

24     not professional opinion?

25             THE WITNESS:  No, it is a professional opinion, but it's not

Page 9356

 1     based on a large amount of documentary evidence.  There's no doctrinal

 2     foundation for what I'm saying.  That's why I put the caveat, a very

 3     clear caveat there, Your Honour.  Because the question as posed --

 4             JUDGE MOLOTO:  And you said, therefore, I've offered --

 5     including, I've offered only opinions here based on my personal knowledge

 6     and experience.

 7             THE WITNESS:  Correct, Your Honour.

 8             JUDGE MOLOTO:  And you have source documents to substantiate what

 9     you mention in these blocks here on page 16?

10             THE WITNESS:  No, that's my point.  There's no -- I have found no

11     doctrinal foundation for these observations.  I've only produced this

12     table to my best knowledge and experience to assist answering the

13     questions as put to me by Mr. Saxon to help the Court.

14             JUDGE MOLOTO:  Okay.  Thank you.

15             Yes, Mr. Saxon.

16             MR. SAXON:

17        Q.   Before we break, General, just so that the record is clear, when

18     I asked you, and, Your Honours, I believe this is on page 30, line 11 of

19     the LiveNote which is now gone from my screen, when I asked you about the

20     first exception in this table, you started off by answering the sending

21     state may elect to pay, did you mean to say the receiving state?

22        A.   I have -- I have stated in the general application the sending

23     state.

24        Q.   I see.

25        A.   And in exception, I've talked the receiving state.

Page 9357

 1        Q.   Very well.  And in the exception column where you use the phrase

 2     "or to secure their release from the sending state," did you mean to

 3     imply their permanent release?

 4             MR. GUY-SMITH:  Excuse me.  I'll object to the leading at this

 5     point.  He can explain to us what he meant to imply as opposed to you

 6     suggesting to him what he means to imply.

 7             JUDGE MOLOTO:  I would uphold that, Mr. Saxon.

 8             MR. SAXON:  Well then I've got to rephrase my question then.

 9             JUDGE MOLOTO:  Please do so, and let's take a break after he has

10     answered.

11             MR. SAXON:

12        Q.   What did you mean by the phrase "secure their release"?

13        A.   I meant here, and it was implicit, I hope, that the release would

14     be for a period of service.  And hence I eluded to, in my exception, an

15     example of loan service which occurs in the British army where

16     individuals are detached from their service with the British army to

17     serve in the armed forces of another nation such as the Sultan of Oman's

18     armed forces for a specific period of time.

19             I did not mean here any notion of a permanent release of the

20     individual.  This was for specific periods of duty.

21             JUDGE MOLOTO:  Thank you very much.

22             MR. SAXON:  Shall we take the first break, Your Honour.

23             JUDGE MOLOTO:  We'll take the break and come back at 4.00.

24             Court adjourned.

25                           --- Recess taken at 3.34 p.m.

Page 9358

 1                           --- On resuming at 3.59 p.m.

 2             JUDGE MOLOTO:  Yes, Mr. Saxon.

 3             MR. SAXON:  Thank you, Your Honour.  If we can turn again to

 4     paragraph 3.2.3 of 65 ter 9572, page 16, there we have it, of

 5     General Melvin's report.

 6        Q.   And we were reviewing this table, General, that you had created

 7     to answer question number 2.  And the second condition I see in the

 8     middle row where the sending state retains its right to make final

 9     determinations on the promotion and retirement of those officers, and you

10     say, in the next column, that the general application would remain as in

11     the -- with respect to the first condition already discussed, but might

12     there be an exception in that circumstance?

13        A.   I could only envisage very rare exceptions to that, hence I put

14     in general application that I believe the issues which you raise in your

15     second condition, determinations of promotion, retirement, those should

16     be retained by the sending state.  The reason for that is that they would

17     normally take a career view of you on the overall perspective of an

18     individual's career taking into the individual's past activities and

19     future potential into account.  And that could not be done by the

20     receiving state.

21        Q.   I'm not sure if the transcript picked up the first start of your

22     answer because I see at line 17 when I asked whether there might be an

23     exception in that circumstance you said "I could only envisage it

24     very ..."  and there's a word missing.

25        A.   Rarely.  Rarely is the word I used, rarely.

Page 9359

 1        Q.   General, before I forget, you and I are speaking in the same

 2     language, and that makes it -- that makes communication easier for the

 3     two of us but can make life very difficult for the interpreters.  And

 4     they've requested that we try to pause between question and answer.  If

 5     we could try to remember to do that.

 6             In the bottom row of the same column, 3.2.3, the same table, the

 7     condition where the sending state does not exercise its ability to

 8     discipline those soldiers for breaches of military or international law.

 9     And in your general application you say this happens very rarely.  Why is

10     that?

11        A.   As I stated in my report, that is because the sending state

12     usually retains full powers of discipline over its seconded personnel.

13        Q.   Might there be an exception, however?

14        A.   The only exception that I could find in my research, but it was a

15     very specific one so I didn't put it in the report, was a historical

16     exception.  And that was the case where British commonwealth forces were

17     attached to British forces during the Second World War, and powers of

18     discipline were passed from the sending state to the receiving state, in

19     this case to Britain, for very practical reasons because it wasn't going

20     be practical for the sending state, in this case perhaps Canada or

21     Australia, to exercise the powers of discipline over individuals that

22     were stationed in Britain, for example.

23             That is the historical exception I found, but I could not find a

24     contemporary one, therefore I did not include that in my report.

25             JUDGE MOLOTO:  And what would make impossible for a state like

Page 9360

 1     Australia or Canada, for instance, to maintain discipline over its forces

 2     who are in Britain?  If they have an NCC, for instance.

 3             THE WITNESS:  Well, nowadays and with modern communications,

 4     Your Honour, I don't think it would be very difficult at all.  I think

 5     that's -- hence I very carefully made the point in answering my question

 6     this was an historical example where I think it was a pragmatic response

 7     but would not necessarily apply today.  Today, you are absolutely right.

 8     There would be a national contingent commander and all but for the most,

 9     I imagine, trivial issues the -- as I've stated and as you've indicated,

10     Your Honour, the nations would retain their disciplinary powers.

11             JUDGE MOLOTO:  And what in modern days has happened that makes it

12     easier to maintain -- to retain that control which was absent during

13     World War II?  Was it World War II or World War I?

14             THE WITNESS:  I was making the example of the Second World war.

15             JUDGE MOLOTO:  The Second World War, yes.

16             THE WITNESS:  I think, Your Honour, the answer is a simple one.

17     I think modern communications and both in passage of information and

18     modern communications in terms of being able to move people around the

19     world so much more quickly has made it much easier for the nations of

20     contributing nations to exercise their disciplinary powers.  So I think

21     that is the simple reason for that.

22             JUDGE MOLOTO:  I think my specific question really relates to

23     what in the modern communications is there which was not there in

24     World War II which make it is easier to --

25             THE WITNESS:  Well, both electronic communications, phone,

Page 9361

 1     e-mail, but also physical communications.

 2             JUDGE MOLOTO:  Was phone not there in World War II?

 3             THE WITNESS:  The e-mail certainly wasn't.

 4             JUDGE MOLOTO:  The e-mail wasn't there, but the telegram and --

 5             THE WITNESS:  Telegram and --

 6             JUDGE MOLOTO:  -- and phone were there.

 7             THE WITNESS:  But it was not only a matter of communications, I'm

 8     also talking about physical communications.  In the time of World War II,

 9     it was simply not as easy to move around the globe as it is today.  And

10     also, I would suggest, there were different historical conditions

11     pertaining at the time.  I can imagine that the -- during the

12     Second World War, and again I made the specific example here, Canadian or

13     Dominion forces or Australian forces, could be put under British command

14     in a way that could not be envisioned today.  Times have changed.

15             JUDGE MOLOTO:  What role would a factor that the commonwealth

16     forces would have looked up to Britain as the mother country play in that

17     scenario as compared to states that are equal?

18             THE WITNESS:  I think, Your Honour, that's a very important

19     distinction.  Historically, I think you are absolutely right to observe

20     that those dominion countries looked then to the United Kingdom as a

21     mother country.  In terms of states of equal rank or equal quality, then,

22     I think, there would be that -- those conditions would not pertain.

23             JUDGE MOLOTO:  And in World War II there were allies.

24             THE WITNESS:  Indeed.

25             JUDGE MOLOTO:  And did -- apart from the dominion countries, did

Page 9362

 1     any countries of equal state ever relinquish their right of discipline to

 2     any other state other than the dominions?

 3             THE WITNESS:  This is an area, Your Honour, I've not researched

 4     in any detail, but from my general military historical knowledge, I

 5     cannot recall such a case.

 6             JUDGE MOLOTO:  Thank you so much.

 7             Yes, Mr. Saxon.

 8             MR. SAXON:  I'm going to move on now.  If we can take a look --

 9     if we can scroll down on the bottom of the page in B/C/S, please.  All

10     right.  If we could turn to the next page in B/C/S and on the same page

11     in English.

12        Q.   Paragraph 3.2.4, General.  The first sentence says:

13             "Rephrased within an alliance or coalition context, it is normal

14     for contributing nations not only to retain responsibility for pay,

15     promotion, and retirement, but also for discipline of their seconded

16     personnel under operational control."

17             Might there been exceptions to this general rule?  Just yes or

18     no.

19        A.   There could be exceptions.

20        Q.   And to your knowledge and experience, are such exceptions common

21     or rare?

22        A.   The only general range of exceptions is that which I cover in the

23     following paragraph of 3.2.5 which relates to stationing of forces.

24        Q.   3.2.5 you refer to a major exception.  Can you briefly discuss

25     what that exception is or explain what it is.

Page 9363

 1        A.   This is where I'm trying to explain an exception to the general

 2     rule I've described hitherto.  Under a status of forces agreement, a NATO

 3     one with which I'm familiar, there is a split of jurisdiction between the

 4     sending and receiving states.  As I state in my report, normally all

 5     internal military offences would be considered as those which should be

 6     retained in jurisdiction terms by the sending state.  However, if the

 7     receiving state had a particular interest in a case, a serious criminal

 8     offence affecting a national of that receiving state would be a good

 9     example, in my experience it would be unlikely to waive jurisdiction in

10     this case.  I have personal experience of dealing with this.

11             JUDGE MOLOTO:  But this is an exception that you are aware of

12     that comes as a result of some agreement as you say in paragraph 3.2.5?

13             THE WITNESS:  Yes, Your Honour.

14             JUDGE MOLOTO:  Without an agreement you are not aware of this

15     because this is what I was asking you just before Mr. Saxon asked you the

16     question, this is what I was asking you, apart from the dominions, you

17     were not aware of any other such retention of disciplinary jurisdiction

18     by the receiving state?

19             THE WITNESS:  No, I'm not Your Honour.  That's why I made that

20     exception clear.

21             JUDGE MOLOTO:  That's right.  And in the absence of any

22     agreement, you are not aware of anything?

23             THE WITNESS:  That is correct, Your Honour.

24             JUDGE MOLOTO:  And in this exception, you are saying the

25     receiving state, if it has an interest maybe because of the involvement

Page 9364

 1     of its national would then want to retain jurisdiction, would that

 2     receiving state be retaining jurisdiction to try an officer of another

 3     state for a war crime, or only for compensation towards its officer, or

 4     for an ordinary criminal case?

 5             THE WITNESS:  I cannot give you, from my personal experience

 6     here, Your Honour, a substantive answer for the issue of war crime.  But

 7     for a serious crime against a person, I can give a recent example within

 8     my competence and my last job as the general officer commanding of the

 9     United Kingdom support command.  I had to deal with a case in which a

10     British soldier was alleged to have raped a German national away from a

11     military base and, therefore, the German legal system, in my view

12     rightly, did not waive its jurisdiction, it retained jurisdiction.  That

13     individual appeared in front of a German court to answer --

14             JUDGE MOLOTO:  And where had the rape allegedly taken place?

15             THE WITNESS:  Had taken place in a German town.

16             JUDGE MOLOTO:  German territory?

17             THE WITNESS:  German territory, yes, Your Honour.

18             JUDGE MOLOTO:  And that would have been an ordinary criminal

19     case?

20             THE WITNESS:  That was an ordinary, though a very severe,

21     criminal case.

22             JUDGE MOLOTO:  Very severe.  But ordinary criminal -- not a war

23     crime.

24             THE WITNESS:  That is correct, it was not a war crime,

25     Your Honour.

Page 9365

 1             JUDGE MOLOTO:  Thank you.

 2             Yes, Mr. Saxon.

 3             MR. SAXON:

 4        Q.   General Melvin, I'd like to ask you, please, to turn your mind to

 5     question number 3.

 6             MR. SAXON:  If we could go -- keep the same page in English but

 7     go forward one more page in the B/C/S version, please.

 8        Q.   Question 3 says:

 9             "Summarise the basic principles governing military discipline and

10     how they apply in settings in which multinational forces are cooperating.

11     What are the obligations of the commander of one of the contributing

12     forces in the event he becomes aware that his personnel that have been

13     placed under the operational control of another force are being engaged

14     in criminal conduct by the foreign commander with operational control."

15             MR. SAXON:  If we can go forward one more page in English,

16     please, remain in the same page in the B/C/S version.

17        Q.   General, if you could turn your mind to paragraph 3.3.3, which is

18     subtitled "The Nature of Disciplinary Responsibility."  Can you summarise

19     that paragraph for us, please?

20        A.   Yes.  As I've stated, discipline is an absolutely essential part

21     and basis of the efficiency and effectiveness of a military force.

22     Without discipline, a force cannot operate properly.  And therefore, both

23     the individuals within a force have the responsibility to act in a

24     disciplined manner, and their commanders, at all levels, have a

25     responsibility to ensure that discipline is maintained.  And further, as

Page 9366

 1     I have clarified within my report, it is incumbent on a commander to

 2     intervene if he is aware, or he or she is aware of a failure of

 3     discipline.

 4        Q.   Can you command soldiers without discipline?

 5        A.   No.  Soldiers cannot be commanded effectively without being --

 6     without them, either the commander or those commanded, without being

 7     within a framework of good order and discipline.

 8        Q.   Can modern armies operate without discipline?

 9        A.   No armies can operate effectively without discipline.

10             JUDGE MOLOTO:  For an effective maintenance of this discipline,

11     how closely -- how close must the commander be to the operations?

12             THE WITNESS:  The -- as I've stated, Your Honour, within a

13     command system, there are commanders at all levels.  For discipline to

14     work effectively, actions must be monitored at all levels.  And it also

15     requires that any failings of discipline are reported up that chain of

16     command without delay.

17             A senior commander cannot be present everywhere to monitor the

18     action of his subordinates so in the first instance he must rely on his

19     subordinates to monitor and to ensure good order and discipline.

20             JUDGE MOLOTO:  Thank you.

21             MR. SAXON:

22        Q.   Following up on Judge Moloto's question, can actions be monitored

23     without reporting up?  Can a commander learn about disciplinary issues

24     from other sources?

25        A.   A commander should use all available sources in order to monitor

Page 9367

 1     the situation, but as previously stated, and in fact in one of my answers

 2     to His Honour the Judge, I've stated that it's important that regular

 3     reports, reports and returns, are maintained up a chain of command.  So

 4     that is information coming up from below.  But in my view, and in my

 5     experience, a commander has also responsibility to take active steps

 6     himself and that is why, whether it's on peacetime training or on

 7     operations, any good commander visits his subordinate commanders and

 8     units to confirm their state of operational efficiency which includes

 9     their state of discipline.

10        Q.   In paragraph 3.3.4 which is subtitled "Discipline Within a

11     Multinational Context," what is the general point that you make in this

12     paragraph?

13        A.   I think this has already been raised in my responses about the

14     national contingent commander.  When a sending state deploys forces into

15     a theatre of operations and subordinates its forces under multinational

16     command, the full command, and hence responsibility for disciplinary

17     matters, is retained under the national command chain.

18             To facilitate that, normally a national contingent commander

19     would be appointed and he has, in the first instance, responsibility to

20     ensure that discipline is maintained within the national element of a

21     multinational force.

22             MR. SAXON:  If we can go to the next page, please, in English and

23     B/C/S.

24        Q.   Paragraph 3.3.5 -- excuse me, 3.3. -- and 3.3.6 regarding the

25     obligations of the commander of one of the contributing forces in the

Page 9368

 1     event he becomes aware that his personnel that have been placed under the

 2     operational control of another force are being engaged in criminal

 3     conduct by the foreign commander with operational control, you actually

 4     have answered this question in a previous response in the last session.

 5             If we turn to paragraph 3.3.8, what further options would be

 6     available to the troop contributing nation, in particular if there isn't

 7     an appointed national commander in theatre responsible for discipline?

 8        A.   Well, as I've stated, even if a national contingent commander is

 9     not appointed formally, de facto there will be a senior national officer

10     present.  So either way the action should be available to a responsible

11     individual in a theatre of operations.  But notwithstanding that, the

12     contributing nation clearly has in its only interests and its own

13     responsibilities with respect to the action of its forces be they under a

14     multinational command.

15             What I've tried to do here in paragraph 3.3.8 is explore some of

16     the theoretical options available to the troop-contributing nation or

17     sending state.  In my experience, however, is that these matters are

18     normally conducted in an informal matter either within the theatre of

19     operations or in more serious cases could be again dealt with in

20     military-to-military contacts at national level.

21        Q.   And when you say dealt with by military-to-military contacts,

22     what kind of contacts do you mean?

23        A.   Well, that could be -- and again, I would stress to the Court

24     here, I'm painting a theoretical picture here.  I'm not giving any --

25     because I could not find any recent historical examples to clarify this

Page 9369

 1     point, so I'm painting a theoretical picture.  I imagine that those

 2     contacts will be on the basis of phone calls, letters, or whatever.  The

 3     historical example I gave above that was a real example, but was just to

 4     indicate there are limitations to the execution of multinational command

 5     when a senior national commander has grave concerns as to the planned

 6     conduct of operations.  There are systems available for that national

 7     commander to air his concerns.

 8        Q.   Thank you.

 9             JUDGE MOLOTO:  Obviously this presupposes a discussion of the

10     plans between the multinational commander and the national commander?

11             THE WITNESS:  Yes, Your Honour.  And that is the nature of

12     multinational operations because of sensitivities.  It's my experience on

13     operations myself or observing operations that multinational operations

14     normally include a degree of prior discussion which would not normally be

15     required of national operations.  This is, Your Honour, to avoid nations

16     objecting to executed plans after the event.  It is much easier and much

17     better for all parties concerned to have that discussion beforehand so

18     any concerns can be raised.

19             JUDGE MOLOTO:  And are you aware from your professional

20     experience of a situation where in a multinational effort there's no such

21     prior discussion of plans before execution?

22             THE WITNESS:  Other than the most minor tactical activity, I'm

23     not aware.  My own personal operational experience, and again visiting

24     operational theatres, any substantive plan within a multinational context

25     would be normally discussed and rehearsed beforehand, and specifically to

Page 9370

 1     allow the national contingents to look at those plans and to agree to

 2     them beforehand, Your Honour.

 3             JUDGE MOLOTO:  Thank you so much.

 4             Yes, Mr. Saxon.

 5             MR. SAXON:

 6        Q.   Following up on one of Judge Moloto's questions -- actually, no,

 7     in one of your responses, you said, General:

 8             "It is much easier and much better for all parties concerned to

 9     have that discussion beforehand so that any concerns can be raised."

10             Of course, would that exclude the possibility of if plans do not

11     go well?

12             JUDGE MOLOTO:  Do we have a cell phone ringing?

13             MR. SAXON:  I hear something, Your Honour, but it's not my cell

14     phone.

15             JUDGE MOLOTO:  I didn't suggest it's yours, Mr. Saxon.  Okay.

16     It's probably ringing deep in the pocket somewhere.  That's fine.  Carry

17     on, Mr. Saxon.

18             MR. SAXON:

19        Q.   If, for example, a plan in a multinational context goes awry,

20     does not turn out well, discussions about -- can discussions about any

21     problems also take place military to military?

22        A.   Yes.

23             MR. SAXON:  If we could, please, turn to page 21 in the English

24     version.  The bottom of page 21 in the B/C/S version.

25        Q.   On page 21 we see question 4:

Page 9371

 1             "Based on commonly accepted principles of military doctrine and

 2     practice, what evaluation and review is done before a professional

 3     soldier is promoted to a higher rank?  Are you aware of any military in

 4     which promotion of an officer does not take into account a review of

 5     allegations of criminal activity by that officer?"

 6             If we can focus, General Melvin, please, on paragraphs 3.4.3 and

 7     3.4.4, page 21, both versions.  Those paragraphs deal with the first part

 8     of question 4.  What kind of evaluation and review is done before a

 9     professional soldier is promoted to a higher rank, at least in modern

10     armies that you are aware of?

11        A.   In my experience across the military forces I've either worked

12     with or am aware of or have researched, it is common to say that

13     promotion is based on evaluation of two fundamental matters.  Firstly,

14     the performance of the individual, and secondly, his or her potential at

15     a higher rank, and with that, greater degrees of responsibility.

16        Q.   And what about the selection of officers to very high-ranking

17     posts?

18        A.   This varies across armed forces according to their national

19     traditions and systems.  Clearly, I'm most familiar with my own armed

20     forces and the British army.  All I can say is promotion to the highest

21     ranks is taken in a deliberate manner to ensure that the right quality

22     comes to the top.  And I think it's only fair to say that an army or an

23     armed force can only be led if it has individuals of high quality at the

24     top, and therefore, it is in the interests of the armed force to ensure

25     that the promotion system is based on meritorious principles.

Page 9372

 1             MR. SAXON:  If we could turn, please, to page 22 of the English

 2     and page 23 of the B/C/S version.  Paragraphs 3.4.5 and 3.4.6 of your

 3     report.

 4        Q.   General Melvin, are you aware of any military in which the

 5     process of promotion of an officer does not take into account a review of

 6     any allegations of criminal activity by that officer?

 7        A.   I'm not a legal expert, but to my experience and to my knowledge,

 8     I would find it hard to envisage.  And I am certainly not aware of any

 9     force that would not take into account any allegation of criminal

10     activity.  Whether there is a formal review in place, I cannot be that

11     specific.

12        Q.   Do we take that response to my question as a yes or a no?

13        A.   I think you should take my answer as if to repeat the question --

14     could you repeat more specifically the question?

15        Q.   Of course I can.  Are you aware of any military in which the

16     process of promotion of an officer does not take into account a review of

17     any allegations of criminal activity by that officer?

18        A.   The answer to that is, I repeat, no.  But I qualify my answer

19     carefully by saying that I cannot state here that in all cases there

20     would be a formal review.  All I'm saying here is I'm not aware of any

21     military force would not take into account any allegations of criminal

22     activity.

23        Q.   If you can turn your mind, please, to paragraph 3.4.7.  In your

24     experience, General Melvin, what happens if there are allegations of

25     serious offences against an officer who has been recommended for

Page 9373

 1     promotion?

 2        A.   In my experience, if an individual has been recommended for

 3     promotion and subsequent to that recommendation there are allegations of

 4     a serious offence, then that promotion would normally be stayed, i.e.,

 5     put on hold, until those allegations are investigated and the individual

 6     is cleared.

 7        Q.   And, General Melvin, what is the rationale for holding the

 8     promotion process in abeyance?

 9        A.   I think that should be self-evident.  No military force would

10     wish, in terms of its efficiency, effectiveness or standing, to promote,

11     unwittingly, individuals who would subsequently be found to have

12     committed serious criminal offences.

13             MR. SAXON:  If we could turn, please, to page 23 in the English

14     version and page 24 in the B/C/S version.

15        Q.   General, these are your conclusions, and if you could simply

16     focus on paragraph 4.3 briefly, please.  In summary, what does any system

17     of command need to function effectively?

18        A.   I go back to an earlier part of my report where I talk about

19     command involving decision-making, a leadership, and control.  In this

20     conclusion, I wanted to highlight the importance of that control

21     function.  That control function rests on commanders and staffs

22     monitoring the situation and, where necessary, actively taking part or

23     taking active steps to get further information and to give direction and

24     guidance to their force.

25             The command system cannot function without this responsive

Page 9374

 1     feedback system.

 2        Q.   You mention that the control aspect of command requires effective

 3     communications.  Why are -- why is a system of good communications

 4     important for command?

 5        A.   Because without good communications neither the commander or the

 6     commanded will be aware of what is going on.  It's important that

 7     communications work both ways.  I think that's clear.  Forces cannot be

 8     coordinated and directed or monitored without good communications.

 9     Likewise, any subordinate units or formations will not be able to act

10     purposefully if they do not receive the appropriate direction and

11     guidance.  And within the overall context, discipline cannot be

12     maintained across the force if that normal communications involving

13     reports and returns are not maintained.

14        Q.   Thank you, General Melvin.  I would like to review with you a few

15     of the authorities or source materials that you relied upon in the

16     drafting of your report.

17             MR. SAXON:  If we can turn back, please, to paragraph 2.2, which

18     is on page 5 of the English version and page 4 of the B/C/S version.

19        Q.   General, I know this is something very dear to your heart and

20     mind.  What -- generally, why is the application of terminology important

21     when discussing issues related to command?

22        A.   Command is one aspect of a doctrine and its practical

23     application.  Doctrine, so that it's widely understood and practiced,

24     requires clear definition.  And that is why all armed forces, to my

25     knowledge, and certainly the ones that I deal with closely within the

Page 9375

 1     alliance, rely on a common understanding based on a common doctrine which

 2     in turn is based on a common language.  And that's why I've referred here

 3     in my report to both NATO and national doctrine and specifically to the

 4     NATO glossary of terms.

 5             MR. SAXON:  Can we turn, please, to 65 ter 9588, please.

 6        Q.   General, this is --

 7             JUDGE MOLOTO:  Before we do that, what do you want to do with

 8     9572?

 9             MR. SAXON:  I'm grateful, Your Honour.  In consultation with my

10     colleague, if that could be marked for identification at this time,

11     pending arguments about this report.

12             JUDGE MOLOTO:  65 ter 9572 is marked for identification, may it

13     please be given an exhibit number and marked for identification.

14             THE REGISTRAR:  Yes, Your Honours.  This document becomes

15     Exhibit P2772 marked for identification.  Thank you.

16             JUDGE MOLOTO:  Thank you.

17             THE WITNESS:  Your Honour, can I ask a question to you, sir,

18     here?

19             JUDGE MOLOTO:  Yes.  Don't be guaranteed -- you are not

20     guaranteed an answer.

21             THE WITNESS:  No, but purely procedural terms.  Do I understand

22     what is going on now is the supporting material being annotated as

23     documents to my report, or my report being annotated?  I would like that

24     to be clarified for my own understanding so I can answer subsequent

25     questions effectively.

Page 9376

 1             JUDGE MOLOTO:  I'm not quite sure I understand what you mean by

 2     annotated?  You said annotated as what?

 3             THE WITNESS:  My question here, Your Honour, is I'm trying to

 4     understand what is being talked about at the moment.  I've produced a

 5     report and various, I think the prosecuting counsel is referring to

 6     documents I've used as source material.  Is that source material now

 7     being used as part of the documentary evidence?

 8             JUDGE MOLOTO:  I see what you say.  Not at this stage yet.

 9             THE WITNESS:  Thank you, Your Honour.

10             JUDGE MOLOTO:  Am I right?

11             MR. SAXON:  Essentially yes, you are right, although I do need to

12     review this material with the witness.

13             JUDGE MOLOTO:  Do you confirm that I'm right?

14             MR. GUY-SMITH:  I do, Your Honour.

15             JUDGE MOLOTO:  Thank you so much.

16             MR. SAXON:  Can we please see 65 ter 9588, please.

17        Q.   And General Melvin, this is the document that you refer to in

18     footnote 8 of your report.  And we see on the first page it says

19     "Allied Joint Doctrine" then below that "AJP-01(C)."  First of all, just

20     briefly, can you tell us what this publication is in general terms?

21        A.   This publication represents the highest level allied joint

22     doctrine produced by the alliance, and it's specifically designed to

23     cover the operational level of war.

24        Q.   And, General Melvin, when you use the term the "alliance" you are

25     referring to the NATO alliance; is that right?

Page 9377

 1        A.   That is correct, as indicated on the top of the document.

 2        Q.   Okay.

 3             MR. SAXON:  Can we turn, please, to section 0502, which is on

 4     page 3 of the English and page 3 of the B/C/S.

 5        Q.   General, you see section 502 is subtitled "Command and Control

 6     Terminology."  Can you tell us, please, what is significant about this

 7     section for the purposes of your report?

 8        A.   It confirms the statements I've already made, although the terms

 9     "command" and "control" are closely related, they are not synonymous.

10     I've demonstrated that, I think, in my earlier responses.  It's important

11     to differentiate between the terms command and control, and that's why I

12     have quoted this document.

13        Q.   Thank you.

14             MR. SAXON:  Your Honour, I would seek to -- I would ask that

15     65 ter 9588 be marked for identification, please.

16             JUDGE MOLOTO:  It is so marked.  May it please be given an

17     exhibit number.

18             THE REGISTRAR:  Yes, Your Honours.  This document becomes

19     Exhibit P2773 marked for identification.

20             JUDGE MOLOTO:  Thank you.

21             MR. SAXON:  Could we please see 65 ter 9587.

22        Q.   And, General, this will be the document that you referred to in

23     footnote 9 of your report.  General Melvin, this document is titled

24     "Army Doctrine Publication Land Operations."  Can you tell us who

25     published this?

Page 9378

 1        A.   This document was published by the British army's General Staff.

 2        Q.   Did you right this document?

 3        A.   I wrote parts of it, and I was the editor responsible for its

 4     design and final publication.

 5             MR. SAXON:  Can we turn, please, to section 609 which starts on

 6     page 5 in the English version, page 8 in the B/C/S version.

 7        Q.   We see a subheading called "Decision-Making, Leadership and

 8     Control."  If you could focus your attention, please, to section, for

 9     now, just section 609.

10             MR. SAXON:  And if we could, please, in the English version move

11     to the next page, please, page 6.

12        Q.   And at the top of page 6 in the English version in that same

13     section we see the world "control" in bold letters.  Do you see that?

14        A.   Yes, I do.

15        Q.   Why did you select this section and sections I believe 607, 611

16     as source material for your report?

17        A.   I did so because I wanted to elaborate on the nature of command

18     and demonstrate the interrelationship between the functions or

19     constituent elements of that have command:  decision-making, leadership

20     and control.  And it was natural for me to refer back to doctrinal

21     material with which I was very familiar because I had written an earlier

22     version of this in "ADP Volume 2 Command" in 1984, published in 1985, and

23     I returned to that material ten years later, edited it, and produced a

24     new condensed version which you see here in chapter 6 of

25     "ADP Land Operations."

Page 9379

 1             JUDGE MOLOTO:  So you author this Chapter 6?

 2             THE WITNESS:  I authored the chapter 6 of "ADP Land Operations"

 3     in entirety.

 4             JUDGE MOLOTO:  Thank you.  Just for interest sake, who authored

 5     the previous document, the NATO document that you referred to at

 6     footnote 8 of your report?

 7             THE WITNESS:  That would be difficult to find one author,

 8     Your Honour.  The NATO doctrine writing process depends on a system of a

 9     nation being appointed custodian - and that's the NATO term used,

10     custodian - of a document.  As far as I can recall, the custodian for

11     allied joint operations is the United Kingdom, and the responsibility for

12     that now rests with a department of our joint structures.  But it's

13     written very much more in a collective basis, and I cannot give you the

14     name of the individuals concerned in that writing.  I don't know, sir.

15             JUDGE MOLOTO:  Given that the custodian nation was Great Britain,

16     is it -- is there by any chance that you may have contributed to its

17     authoring?

18             THE WITNESS:  In the past, and I'm talking about in the period

19     2002 to 2004, I certainly commented on drafts of this doctrine.  And I

20     think it's fair to say that part of the allied joint doctrine does bear a

21     very close resemblance to what I've written, particularly in its

22     description of mission command.  But I've not written the NATO doctrine,

23     I've commended on drafts, and I believe, and have good reason to believe

24     that those who have written the NATO doctrine have read what I and my

25     colleagues have written on a national basis.

Page 9380

 1             JUDGE MOLOTO:  Thank you so much.

 2             Yes, Mr. Saxon.

 3             MR. SAXON:

 4        Q.   General Melvin, in section 609 that word "control" is bolded.  Is

 5     control a passive process, exercise of control?

 6        A.   No, very much is an active process.  It requires not just a

 7     matter of receiving reports and returns, active measures have to be

 8     taken.  And as I've previously stated, a commander and his staff have got

 9     to take active steps to make sure they keep abreast of the operational

10     situation.  Staff officers will often, on behalf of a commander, inquire

11     of subordinate units and formations as to their operational posture and

12     as senior commanders whether on training or on operations are required,

13     in order to exercise their duty, to visit and keep abreast of the

14     activities of their subordinate formations.  So control is very much an

15     active matter and not a passive one.

16        Q.   Very well.

17             MR. SAXON:  Your Honour, I would ask that 65 ter 9587 be marked

18     for identification, please.

19             JUDGE MOLOTO:  It is so marked.  May it please be given an

20     exhibit number.

21             THE REGISTRAR:  Yes, Your Honours.  This document becomes

22     Exhibit P2774 marked for identification.

23             JUDGE MOLOTO:  Thank you so much.  Mr. Saxon, would that be a

24     convenient point?

25             MR. SAXON:  If it's convenient for you, Your Honour, yes, it

Page 9381

 1     would be.

 2             JUDGE MOLOTO:  Thank you so much.

 3             Sorry, we are going to have to take an early break because of

 4     other commitments, and we'll come back.  I guess we'll, for safety sake,

 5     the break was supposed to come at quarter past, we'll come back at

 6     quarter to 6.00.  Court adjourned.

 7                           --- Recess taken at 4.55 p.m.

 8                           --- On resuming at 5.44 p.m.

 9             JUDGE MOLOTO:  Mr. Saxon.

10             MR. SAXON:  Can we please show the witness what is 65 ter 9586.

11        Q.   General Melvin, this will be the document that you refer to at

12     footnote 11 of your report, page 7.  Can you tell us, General, what this

13     document is, please?

14        A.   "Army Doctrine Publication, Volume 2, Command" was the second in

15     a series of new army doctrine publications written in the early to

16     mid-1990s.  "Command," as the number indicates, was the second of these

17     volumes, the first being "Operations."  And I was the principal author of

18     this publication, which I wrote in 1994 and it was published in 1995.

19             MR. SAXON:  Can we please go to page 3 in the English version,

20     page 3 in the B/C/S version.

21        Q.   General Melvin, we see a subtitle here "The Role of the

22     Commander," and then below that we see another subheading "Creating the

23     Command Climate."  Can you tell us, please, what is the command climate

24     and why is it important?

25        A.   In civilian terms, the command climate could be loosely ascribed

Page 9382

 1     as the working environment.  It's the environment in which a commander

 2     and staff within a headquarters operate, and more generally across a

 3     force it indicates the environment or atmosphere between various levels

 4     of command and between various commanders.  That's what is meant by the

 5     command climate.

 6        Q.   And why is this concept important?

 7        A.   The command climate is important because at the end of the day

 8     command has to be exercised through individuals.  The command climate or

 9     working environment reflects an understanding that personal

10     relationships, behaviour, command style, personality are all very

11     important.  This is valid, I believe, in all walks of life, but it's

12     especially so under the stress and strain of military conditions.

13             MR. SAXON:  Your Honour, could this exhibit please be marked for

14     identification.

15             JUDGE MOLOTO:  It is so marked.  May it please be given an

16     exhibit number.

17             THE REGISTRAR:  Yes, Your Honours.  This document becomes

18     Exhibit P2775 marked for identification.  Thank you.

19             JUDGE MOLOTO:  Thank you.

20             MR. SAXON:  If we could show, please, 65 ter 9592.

21        Q.   General, this is the document that you refer to at notes 18 to 21

22     of your report.  General, can you explain what this document is, please?

23        A.   This document, as its title clearly indicates, is the NATO

24     glossary of terms and definitions.  It's importance is, as I've indicated

25     earlier, in that it spells out, as a lexicon, definitions of important

Page 9383

 1     military terms that are acquired in order to affect a common

 2     understanding across the alliance, and as the two primary noted languages

 3     are English and French, the glossary is so laid out in this manner.

 4             MR. SAXON:  Can we turn, please, to page 3 in the English version

 5     and page 3 in the B/C/S version.  And if we could focus on the bottom

 6     half of the page in the English version, please.

 7        Q.   General Melvin, in the right-hand column in the lower half of the

 8     page we see the phrase "full command."  Did you use this in your report?

 9        A.   Yes, I did, and I laid that out in the section titled "Full

10     Command," which we've referred to earlier on page 13.

11        Q.   And are there other definitions contained in this NATO document

12     that you used as well in your report?

13        A.   Yes, indeed.  I drew and quoted not only the definition of full

14     command, but I quoted the definitions of operational command and

15     operational control, also on page 13 of my report.  And also from the

16     very same glossary, I dealt -- I quoted "tactical command" and "tactical

17     control" which are reflected on page 14 of my report.

18        Q.   And just so the record is clear, General Melvin, what is the

19     difference between operational control and tactical control?

20        A.   The difference between operational control and tactical control

21     is, as the definition and the key word of the definition of tactical

22     control, it really relates to local direction movement, et cetera.  It

23     has less power authority than operational control.  Tactical control

24     really only gives the Superior Commander the authority to coordinate and

25     marshal forces, typically it's used for movement.  It can be used, as the

Page 9384

 1     name suggests, in a more wider tactical or manoeuvre sense.  But it is a

 2     lesser command state than operational control.

 3        Q.   And perhaps, actually, my question should be more precise.  The

 4     terms "operational" and "tactical," can you describe the difference then

 5     between the two?

 6        A.   I'll have to provide a slightly extended answer to this question

 7     because it is important to understand that the terms operational and

 8     tactical here are used in a slightly different way than the terms

 9     operational and tactical are used when being ascribed as to a level of

10     war.

11             Let me try and explain what I mean by levels of war, because I

12     did not spell those out in my report.  Certainly within NATO doctrine and

13     UK national doctrine we differentiate between three levels of war:

14     tactical, operational and strategic.  Tactical control and tactical

15     command do relate to the tactical level more or less.  The difficulty is,

16     and this is just a difficulty of both doctrine and practice, operational

17     command and operational control are not specific to the operational

18     level, although on first reading you might assume them to be.

19             Operational command and operational control are used rightly and

20     frequently at the tactical level.  This is just a problem of the NATO

21     language and the English language that operational is used for several --

22     has several meanings.

23             I hope that answers your question satisfactorily.

24             JUDGE MOLOTO:  It doesn't to me, Major-General, I'm sorry.  When

25     you say tactical control is used at tactical level, it's almost saying to

Page 9385

 1     me that technical means technical, and I don't understand.  What I'm

 2     saying is if you are defining a word and in your definition you use the

 3     very word, then I don't get it.

 4             THE WITNESS:  With respect, Your Honour, perhaps you misheard me.

 5     I deliberately used the word tactical.  I did not use the word technical,

 6     that has another meaning.

 7             JUDGE MOLOTO:  Tactical.  I'm talking tactical too.  If I said

 8     technical, I am sorry, I meant to say tactical.

 9             THE WITNESS:  Thank you, Your Honour.

10             JUDGE MOLOTO:  But what I am saying is -- let me give you an

11     example.  You say at page 59, line 15:

12             "Tactical control and tactical command do relate to the tactical

13     level more or less."

14             THE WITNESS:  That is correct.  Because the -- but with respect,

15     Your Honour, let me try to elaborate on this because this is very

16     complicated business and it's difficult even for those who are using the

17     terms regularly.

18             The difficulties -- we've got the term tactical being used in

19     slightly different senses, and certainly that is the case in operational.

20     Operational is being used -- can be used in the military in at least two

21     ways.  It can define a level of war, such as the operational level of

22     war, or, as is here the case, it can be used more widely.  The -- in

23     terms of operational command or operational control.

24             I reiterate, and I use my words very carefully here, the terms

25     operational command and operational control are not restricted to either

Page 9386

 1     the operational or the tactical level.  It is quite correct within the

 2     military terminology to apply the term operational command or operational

 3     control solely at the tactical level.

 4             Do you wish me to elaborate further, Your Honour?

 5             JUDGE MOLOTO:  You don't have to.  That doesn't mean I understand

 6     you.  Probably I'm slow on the uptake.  My problem is the question to you

 7     was, What is the distinction between the words tactical and operational?

 8     And you explain, as I understand you, tactical as applying at the

 9     tactical level.

10             THE WITNESS:  Correct.

11             JUDGE MOLOTO:  And for me whether it's the first tactical or the

12     second tactical which is in the level, I still don't understand what the

13     difference is between the word tactical and operational as used in this

14     context.

15             THE WITNESS:  The -- the difficulty, Your Honour, is that the

16     word operational command -- I correct myself, the command state,

17     operational command and operational control are not confined to the

18     operational level of war.

19             JUDGE MOLOTO:  Yeah, but what are they?  And I understand what

20     they are not confined to, but what is operational command?

21             THE WITNESS:  The operational command as a command state is that

22     which I've defined and quoted word for word on page 13.  That's what

23     operational command is.

24             JUDGE MOLOTO:  Okay.

25             THE WITNESS:  Would it help, Your Honour, if I clarified to the

Page 9387

 1     Court the distinction between the tactical, operational, and strategic

 2     levels?  I'm prepared to do that, though it's not contained in my report.

 3             JUDGE MOLOTO:  I don't know.  Now, if you are going to strategy,

 4     you are probably going to confuse us even more.  Let me just say for my

 5     purposes it's fine.  Let me hand you back to Mr. Saxon.

 6             MR. SAXON:  Thank you, Your Honour, perhaps I could assist.

 7        Q.   Very briefly, General Melvin, you used the phrase tactical level.

 8     Very briefly, what does that mean?

 9        A.   The tactical level is that level of war where actions are planned

10     and conducted at the lowest levels, the actions in the land environment

11     of anything from a platoon maybe up to a battalion or even brigade level.

12     But that will depend on the context of that particular operation.

13        Q.   Thank you.  And the term operational level that you refer to,

14     what does that mean?

15        A.   The operational level is an intermediate level between the

16     tactical and strategic that refers to the higher level planning and

17     conduct of campaigns and major operations.

18             MR. SAXON:  Thank you very much.  Your Honour, I would ask that

19     65 ter 9592 be marked for identification.

20             JUDGE MOLOTO:  It is so marked.  May it please be given an

21     exhibit number.

22             THE REGISTRAR:  Your Honours, this document becomes Exhibit P2776

23     marked for identification.  Thank you.

24             JUDGE MOLOTO:  Thank you so much.

25             MR. SAXON:  Can we, please, show the witness 65 ter 9593.

Page 9388

 1        Q.   General, this will be the document that you referred to at

 2     footnote 22 of your report.  What is this document, General Melvin,

 3     please?

 4        A.   This is the "United Kingdom Ministry of Defence's Manual of

 5     Military Law," which is a document that goes back a great deal and has

 6     been amended continuously.  And what I've quoted here is the most

 7     up-to-date version.

 8             MR. SAXON:  Can we turn, please, to page 5 in the English version

 9     and page 3 in the B/C/S version, please.

10        Q.   And we see section 69 there, and what was it or what is it in

11     section 69 that is significant for your report?

12        A.   What I wanted to do here was to demonstrate that the notion of

13     good order and military discipline had legal force, that it was codified

14     in an act and provides part of the foundation of a military law and

15     military discipline, and one that is quoted regularly to remind

16     individuals that a good order and military discipline is an essential

17     part of an effective and efficient military force.  So it's just an

18     example because the terminology within it was close to some of the

19     terminology particularly in terms of discipline which you posed in your

20     question.

21             MR. SAXON:  Your Honour, could this exhibit be marked for

22     identification, please.

23             JUDGE MOLOTO:  It is so marked.  May it please be given an

24     exhibit number.

25             THE REGISTRAR:  Yes, Your Honours.  This document becomes

Page 9389

 1     Exhibit P2777.  Thank you.

 2             JUDGE MOLOTO:  Marked for identification.

 3             THE REGISTRAR:  Marked for identification.

 4             JUDGE MOLOTO:  Thank you so much.

 5             MR. SAXON:  Your Honour, at this time I have no further questions

 6     for the witness.

 7             JUDGE MOLOTO:  Thank you so much.

 8             Before I hand you over to the Defence, Major-General, just one

 9     little question:  In your experience, does -- has it ever happened that

10     withholding of salaries or promotions or pensions being used in armies as

11     a means of command and control -- as a means of implementing command and

12     control?

13             THE WITNESS:  Your Honour, to my knowledge, not directly.

14     However, they, as we've discussed earlier, the sanction, particularly in

15     the -- to the effect that a promotion would be stayed when a serious

16     offence has been committed or is alleged to have been committed, I think,

17     does have some force within the disciplinary system of an armed force.

18     What it does ensure is that notwithstanding an individual being selected

19     for promotion, it doesn't give him or her any freedoms.  He or her

20     remains -- he or she remains subject to continuing good, ordinary

21     military discipline, good behaviour, and good military efficiency.  So

22     only as far as I understand your question, Your Honour, I see it as an

23     indirect role.

24             JUDGE MOLOTO:  Yeah.  The reason I ask is precisely because of

25     this very last exhibit that we have seen which prescribes a term of

Page 9390

 1     imprisonment as a sanction for breach of any law, and I don't see any

 2     reference to withholding of the benefits that I've talked about.  And, in

 3     fact, I would imagine that it is very seldom that an officer would be up

 4     for discipline at the same time as he is up for promotion.

 5             THE WITNESS:  I agree.

 6             JUDGE MOLOTO:  So at the time of disciplining, you are not

 7     entertaining promotion at that stage, you are entertaining the crime that

 8     he has committed and you want to discipline him for that.

 9             THE WITNESS:  I fully agree, Your Honour.  I fully agree.

10             JUDGE MOLOTO:  And does it ever happen that then the court

11     marshal would then say, Because of her behaviour that is reprehensible

12     and which is illegal, you are not going to be promoted in the future.  Or

13     is that an issue that gets considered when promotion comes and not at the

14     time of discipline?

15             THE WITNESS:  I think in all cases the disciplinary issue would

16     always take precedence.  I think the issue of any -- as I've said, any

17     question of promotion would be stayed during any investigation.  And I

18     think it is fair to say, Your Honour, as I think you yourself have

19     indicated that the disciplinary process would take its path and,

20     therefore, the question of promotion would not apply.

21             JUDGE MOLOTO:  But let me try to put my question one more time.

22     My question really is:  Has it ever happened that, as a form of

23     punishment at the time of disciplining, an officer is told that in fact

24     your right to promotion is now being withdrawn, so don't even hope for a

25     promotion in the next couple of months or so?

Page 9391

 1             THE WITNESS:  Yes, it's certainly within the British military

 2     system, a sanction, one of the sanctions that could be applied to an

 3     individual is a loss of seniority and the individual could be held to

 4     marked time and his promotion could be delayed.

 5             JUDGE MOLOTO:  Can you show it to us in this exhibit that has

 6     just been admitted into evidence?

 7             THE WITNESS:  I dont' -- Your Honour, I do not believe that issue

 8     is raised or detailed in the exhibit.

 9             JUDGE MOLOTO:  But that exhibit deals with punishment for

10     wrong-doing?

11             THE WITNESS:  Indeed.  But it's only one of many examples of

12     punishment for wrong-doing.  It doesn't, with respect, specify the full

13     legal process which I've indicated which could include a sanction,

14     disciplinary sanction, being taken which has the effect, as you've

15     indicated, of delaying or nullifying a promotion.  That can happen.

16             JUDGE MOLOTO:  That can happen.  Has it happened?

17             THE WITNESS:  Yes, to my knowledge, disciplinary or

18     administrative action can happen, has happened, where individual's

19     promotion has been either delayed or stopped.

20             JUDGE MOLOTO:  Do I understand you, sir, to be may saying that

21     the court marshals in Britain dispense punishment that is not prescribed

22     in the law?

23             THE WITNESS:  Not at all.  Those -- any punishments imposed in a

24     court marshal is fully within the law.

25             JUDGE MOLOTO:  Sure.

Page 9392

 1             THE WITNESS:  I have only --

 2             JUDGE MOLOTO:  But the punishments seem to be qualified in that

 3     exhibit.

 4             THE WITNESS:  Yes, it is.

 5             JUDGE MOLOTO:  And I'm asking if there is any qualification of

 6     that kind of punishment in that manual.

 7             THE WITNESS:  Your Honour, I'm not an expert on the manual of

 8     military law.  What I wanted to do here, as I said, was to give an

 9     example.  I would need to research that issue further to give you a

10     comprehensive answer.  I cannot give you in this court a full exposition

11     of the British legal process and the sanctions imposed.  All I can tell

12     you is to my certain knowledge that the sanctions taken are legal and

13     those sanctions can include a postponement or delay in -- have the effect

14     of postponing or cancelling promotion.

15             JUDGE MOLOTO:  But you have no authority for that proposition?

16             THE WITNESS:  I have no authority insofar as I have not quoted

17     that authority in my report.

18             JUDGE MOLOTO:  Okay.  Fair enough.  And you can't think of one as

19     you sit there?

20             THE WITNESS:  Well, I know because I'm -- one of the areas in

21     which I deal with is -- have dealt with and we -- we distinguish in the

22     British military between disciplinary action and administrative action,

23     and it can be where an individual who may not have gone to -- the weight

24     of evidence may not be sufficient for a court marshal can be held under

25     administrative action and one of the sanctions which can be applied under

Page 9393

 1     administrative action is a reprimand or a severe reprimand which will

 2     have the effect of delaying an individual's promotion.  That reprimand or

 3     severe reprimand is also a sanction that could be awarded by a court

 4     marshal.

 5             JUDGE MOLOTO:  Is it possible for you, sir, to research this

 6     further and submit to the Court your authority?

 7             THE WITNESS:  Yes, I will have to take further advice on that,

 8     but if so directed I will endeavour to do my best to supply supplementary

 9     information.

10             JUDGE MOLOTO:  You are so directed.

11             THE WITNESS:  Thank you.

12             JUDGE MOLOTO:  Thank you.  Counsel.

13                           Cross-examination by Mr. Guy-Smith:

14        Q.   Often times, when dealing with matters of military, one hears the

15     phrase "a fog of war," which I believe is something that a gentleman by

16     the name of Clausewitz discussed rather extensively with regard to

17     military command and military behaviour.  Would you agree?

18        A.   Yes, sir.  A fog of war is quoted and described by

19     Carl van Clausewitz in his work "On War."

20        Q.   And with regard to the issue of fog of war, obviously --

21             JUDGE MOLOTO:  Yes, Mr. Saxon.

22             MR. SAXON:  I'm very sorry to interrupt, but what I think is

23     happening is that General Melvin is trying to take note of the

24     Trial Chamber's directive, and I'm wondering whether he might have a

25     moment to do that before the questions continue.  So he doesn't get mixed

Page 9394

 1     up.

 2             MR. GUY-SMITH:  Absolutely.  If that's what's going on, I do

 3     apologise.

 4             JUDGE MOLOTO:  I thought he was writing "fog of war."  Okay.

 5             MR. GUY-SMITH:  I thought he was too.  I thought he was writing

 6     down what I was asking him, but I'll wait to see.

 7             THE WITNESS:  Thank you, Your Honour.  Could I be provided one

 8     minute to complete my note on your direction.  Thank you.

 9             JUDGE MOLOTO:  You are welcome.

10             THE WITNESS:  Thank you, Your Honour.  I think I've made

11     sufficient note on your direction and am available to answer the

12     counsel's question.

13             JUDGE MOLOTO:  Thank you very much, Major-General.

14             Yes, Mr. Guy-Smith.

15             MR. GUY-SMITH:

16        Q.   I take it that you were mindful of the question that I asked you

17     while you were writing and don't need to elaborate any further with

18     regard to that question; is that correct?

19        A.   I hope I've answered it.

20        Q.   Excellent.  With regard to the underlying issues contained within

21     that description, the fog of war, one of the matters that I believe not

22     only Clausewitz but since certainly that time military theoreticians and

23     practitioners have been concerned about is the clarity of language with

24     regard to orders in the first instance; correct?

25        A.   Yes, I believe I've already elaborated on that, the need for a

Page 9395

 1     common understanding and the need for a common military lexicon as

 2     evidenced by the requirement for a NATO or national glossary of

 3     definitions.

 4        Q.   Independent of the issue of NATO glossary of definitions, it's

 5     something which is of consistent importance within the military; correct?

 6        A.   That is correct.

 7        Q.   Good.  Now, with regard to the need for this clarity of language

 8     and specificity of understanding, in large measure, the need for such

 9     clarity is so that there aren't mistakes being made at any level within

10     the military command either during peace or during war, to the extent

11     that that could be achieved; correct?

12        A.   That is correct.

13        Q.   And with regard to the report that you've drafted and the

14     analysis that you underwent in considering the questions asked as well as

15     your testimony here today, I take it you've paid similar attention to

16     detail and clarity of definition of words and concepts; correct?

17        A.   I hope that is the case.

18        Q.   One of the questions that was asked of you by Mr. Saxon was with

19     regard to section 1.5 in which you were asked what input on factual

20     matters you had received from others, and your response was that you had

21     received some input with regard to legal phraseology; correct?

22        A.   That is correct.

23        Q.   Now, am I to understand that a factual matter here is a matter of

24     legal phraseology, that you were using those terms interchangeably?  Just

25     so I'm clear about the terminology used.  Legal phraseology would be

Page 9396

 1     definition a concept perhaps, not a fact, which is -- I'm trying to

 2     understand just for the moment?

 3        A.   I'm not following, counsel, your question.

 4        Q.   Let me put it to you in other terms.  Which -- which factual

 5     matters with regards specifically to legal phraseology did you receive

 6     from others?

 7        A.   I will need to refer to my report in an attempt to give you an

 8     answer on that.

 9        Q.   Thank you.  If you could do so, please.

10        A.   Yes, I'm in a position now to give you a specific example where I

11     received advice from a member of the Ministry of Defence's legal

12     services.

13        Q.   Excellent.  Where would that be, sir?

14        A.   That is on page 19.

15        Q.   Thank you.  What legal advice --

16        A.   And I was advised, and this was inserted at the request of one of

17     the legal officers that I should stress, and I quoted the advice, it is

18     the boxed important note near the top of the -- my report page 19.

19             JUDGE MOLOTO:  May I just interrupt you a little bit,

20     Major-General.  Could you sit slightly back away from the microphone.

21     Apparently there are some other noises that get through to the

22     interpreters or somebody else in here.  Yeah, that's fine.  I think

23     that's a reasonable distance.

24             MR. GUY-SMITH:  You also might be able to reduce the volume.

25     That might be of some help as well.

Page 9397

 1        Q.   You were -- I take it you were suggesting that where it says a

 2     box important note that is the legal phraseology that you were eluding to

 3     as being a factual matter that you received from someone else; correct?

 4        A.   I was stating that this was advice I had been given by a legal

 5     officer, and he advised me to include that note.

 6        Q.   My question is, that is what you were referring to with regard to

 7     section 1.5, which is "I can confirm that I received some input on

 8     factual matters from others," so that is the legal phraseology that you

 9     are referring to, since that's how you termed it?

10        A.   Indeed.  That is one example that I can immediately draw the

11     Court's attention to where I received advice from others.

12        Q.   Now, just to be clear - because what we are trying to do is be

13     quite specific with our language - advice may be factual or otherwise, so

14     you're use now of the term "advice" as it relates to factual matters.  My

15     question to you now, sir, is:  Are you equating advice with factual

16     matters?  Just so I'm clear about the terminology that you are using,

17     General.

18        A.   I'm equating advice and input.  My use in paragraph 1.5 some

19     input I could have alternatively used the word some advice.

20        Q.   Okay.  And with regard to either of those terms, either advice or

21     input, the important note that you've given us as an example that it must

22     be stressed that individual members of a national contingent at all times

23     remain subject to the military law of their own troop contributing nation

24     and to international law is the fact that you are referring to; correct?

25     That's a factual matter in your estimation?

Page 9398

 1        A.   I think you are trying to, with respect, trying to trip me up

 2     here.  What I'm --

 3        Q.   No, I'm not trying to trip you up at all, sir.  I'm trying to

 4     understand the language that you've used.

 5        A.   I'm -- I'm being very careful here to reiterate that this

 6     terminology, this phraseology on page 19 is an example of the advice I

 7     was given.

 8        Q.   Sure.

 9             JUDGE MOLOTO:  You see, when you look at 1.5, sir, you're saying

10     that the advice you were given was on factual matters.  And the question

11     that's being put to you is, Is the statement in the box a fact or not a

12     fact?  Is it a factual matter or is it a legal postulation?

13             THE WITNESS:  I don't think I'm qualified to differentiate so

14     precisely between a legal postulation and a fact.  All I can say is I

15     took that advice in good faith.  I cannot neither confirm nor deny

16     whether you -- whether it is a fact or otherwise.  I took it as a piece

17     of advice.  I used that example to assist the Court in good faith.

18             MR. GUY-SMITH:

19        Q.   Just so we are very clear, no one is doubting your good faith,

20     sir.  It is merely an attempt to understand what the language is that you

21     have he a used in your report to make sure it's of benefit and assistance

22     to the Chamber.  Nothing more than that.  So I want you to rest assured

23     that I believe and I'm sure that all of us here do believe that the

24     report written is a report that's written in good faith.

25        A.   Well, I'm also trying to establish and try to help the Court

Page 9399

 1     understand that what I meant here - and, of course, in reflection one can

 2     always review one's words - is that I was responsible for the final

 3     wording of the report and the analysis contained in that report.  I drew

 4     advice.  I may have given you a bad example of that advice, but I was

 5     also advised, for example, to include some NATO definitions.  Those NATO

 6     definitions are that -- they are definitions, and I've extracted them.  I

 7     think that is a factual matter.

 8        Q.   Very well.  Now, there's been a term which has been bandied about

 9     in our conversation, certainly not our conversation but the conversation

10     you've had today, and that is the term "modern army."  And I'd like you,

11     if you could, to please define what a modern army is for the Chamber.

12        A.   First of all, I think I would just need to refer to one of the

13     questions, if I may.

14        Q.   I'm sorry, sir, I'm not asking you to refer to a question, I'm

15     asking you to refer to a definition of a modern army.  Excuse me.  And if

16     you could define for us what modern army is because --

17             JUDGE MOLOTO:  Yes, Mr. Saxon.

18             MR. SAXON:  Your Honour, it seems entirely appropriate that if

19     the witness needs to refer to a portion of his report to answer a

20     question, that he be allowed to do so.  He certainly was allowed to do

21     that on direct examination.

22             JUDGE MOLOTO:  Mr. Guy-Smith.

23             MR. GUY-SMITH:  Submitted.

24             JUDGE MOLOTO:  Thank you.

25             THE WITNESS:  I'm now ready to answer the question as put.

Page 9400

 1             MR. GUY-SMITH:

 2        Q.   I attend to your answer.

 3        A.   I -- well, first of all I'd like to draw the Court's -- to draw

 4     the attention that I don't believe in my report I've used the term

 5     "modern army."  I referred to modern nation states.  What I tried to do

 6     here in my report was to distinguish between the historic example and

 7     today's contemporary example.  Modern army, I don't think can be easily

 8     defined in a few words.  I will attempt to do so to assist the Court.

 9     It's not defined doctrinally anyway, but I will attempt to give you a

10     concise answer.

11             A modern army is a army that uses modern, current, up-to-date

12     equipment, doctrine, training methods, takes into account recent lessons

13     from operations, keeps itself up to date, and addresses the challenges of

14     today.  I.e., it is an army fit for today's conditions.

15             MR. GUY-SMITH:

16        Q.   How would you distinguish, for example, the army fighting in

17     Afghanistan or in Mozambique as opposed to the - let's say an army you

18     are familiar with - the Army of the United Kingdom?  Are all three of

19     those modern armies - using your definition - those are armies that -- my

20     question is:  Do all of those armies fit within the definition that you

21     have given us, or is there some distinct as between the three of them?

22             JUDGE MOLOTO:  Mr. Saxon.

23             MR. SAXON:  The question refers to the army fighting in

24     Afghanistan.  Which army is Mr. Gregor Guy-Smith referring to?

25             MR. GUY-SMITH:  Mr. Gregor Guy-Smith is referring to what is

Page 9401

 1     called commonly the Taliban.

 2             JUDGE MOLOTO:  Thank you for the clarification.

 3             THE WITNESS:  Yes, I'm happy to answer that question.  The notion

 4     of modern army does not imply any similarity in terms of approach.  It

 5     can be an organisation such as the Taliban can use, in my knowledge and

 6     experience, certain modern equipments, modern technologies.  We are in a

 7     difficult area here because we are talking about a state of modernity and

 8     also talking about the symmetry of armed forces.  One army's modernity

 9     can be counter-matched by quite different type of forces' modernity as

10     well.  I can elaborate further, if you wish.

11             MR. GUY-SMITH:

12        Q.   Well, let me see if I understand what you are saying then and

13     then if I don't, I will be more than happy to have the elaboration.  The

14     basic premise of a modern army as I understand what you've just told us

15     is it is an army fit for today's conditions?  Is that a fair statement?

16        A.   That is correct.

17        Q.   Okay.  And would you agree with me that one of the challenges in

18     today's military response is that there are a variety of symmetrical and,

19     if I could, asymmetrical approaches to war that are quite distinct from

20     that which we saw up to perhaps the Korean war?  And once again, here is

21     a place where I'm not a historian of war and I, of course, I bow to your

22     expertise.

23        A.   Well, I think, counsel, you've picked up what I was trying to

24     establish, that one force's modernity can be matched in a different

25     manner.  And as you say quite correctly, and reflected my terminology,

Page 9402

 1     the forces don't have to be symmetric.  And what we are saying today in

 2     contemporary conflict, and largely that which we see in Afghanistan, is

 3     an asymmetric conflict where the strengths of the western modern warfare

 4     are being counter-matched by techniques such improvised explosive devices

 5     which are being used in asymmetric manner by the Taliban.

 6             However, it is a common misunderstanding, with respect, to

 7     believe this is entirely a modern phenomenon.  Asymmetric warfare is as

 8     old as the Roman Empire.  The Second World War, for example, experienced

 9     asymmetric warfare, bipartisan, and resistant movements.  So warfare has

10     always had a blend of symmetric and asymmetric approaches.  The emphasis

11     is that which has changed the character of war.

12             JUDGE MOLOTO:  And what has changed the character of war?

13             THE WITNESS:  The character of war, Your Honour, is largely

14     defined by the balance between symmetric and asymmetric approaches.  The

15     character of modern war, what we are experiencing today in Afghanistan,

16     is largely defined by the crass distinction between a western force and

17     its asymmetric opponents.  Of the Second World War, though it did include

18     asymmetric approaches as I've indicated by partisan and resistance

19     forces, the main character of that war was characterised by the

20     conventional and symmetric approaches of both army, navy, and air forces.

21             MR. GUY-SMITH:

22        Q.   With that as a working definition of a modern army, we will move

23     on.  Now, in your report as well as in your testimony, you have indicated

24     your approach is a detailed and obviously an accurate approach.  And I

25     would like to take a moment here with regard to the language that I find

Page 9403

 1     on page 13 of your report, and specifically when you were speaking about

 2     operational command, or op com.  Okay?

 3             When you were testifying earlier with regard to this, you quoted

 4     on the definition of op com.  I just want to make sure once again we are

 5     very clear about the language that we are using.  You said, this is page

 6     18, line 14, with regard to the question asked by Mr. Saxon, operational

 7     command, your answer is:

 8             "When we move out of the national realm into the multinational

 9     realm certainly within NATO coordination operations involving NATO

10     forces, the most frequent command states used are those of operational

11     command and operational control.  Taking the operational command first,

12     to answer your question, is, I quote:"

13             And I take it by that what you mean is that this will be a

14     verbatim recitation of the definition.

15             "... I quote:  'The authority granted to a commander to assign

16     missions or tasks subordinate commanders" -- and then there's a word

17     that's missing here, it says "talks retain or delegate operational or

18     tactical control as the commander deems necessary."

19             Then it says -- and there's an end quote.

20             Now, is that a full verbatim quote of what you are referring to

21     when you guided us to the definition of op com in the operational command

22     definitions which I believe now has been marked as -- excuse me, I'll get

23     it for you.  MFI'd as -- I believe it's MFI'd 2775.  Is that correct?

24        A.   Your Honours, I cannot answer that question because I don't have

25     in my memory the exhibit number.

Page 9404

 1        Q.   Okay.  Well, I'm referring to -- I'm referring to, I'm referring

 2     to the NATO glossary of terms and definitions.  And it's 2776.  So it

 3     wouldn't have been of any help to you in any event.  But it's the NATO

 4     term glossary.

 5        A.   Yes, the glossary.  Well, I think I can now assist you.  I can

 6     confirm to the Court that what I stated on the subparagraph (b) on

 7     page 13 is a verbatim quote from the NATO glossary, AAP6, 2009 on page

 8     203, which I referred to at footnote 20 in my report.

 9        Q.   Now, here, and I really don't mean to punch a horse at all, but

10     you go on to say:

11             "I further quote this is the important distinction between

12     operational command and full command, it doesn't include responsibility

13     for administration or discipline."

14             And as I read the definition from whence you read, it doesn't

15     make any mention of discipline in the quote, now, does it?

16        A.   No, it doesn't mention -- neither does the definition on full

17     command, but, as I think we've tried to previously establish, that

18     discipline comes under the term administration.

19        Q.   With regard to the issue of quoting, because once again I started

20     my conversation with you in terms of detailed accurate clarifying

21     information, and the importance of the word being used precisely.

22             When I look at this definition, it does say "note" it does not

23     include responsibility for administration.  And had you stopped there,

24     sir, I would not be asking you the question that I'm asking you right

25     now.  But the definition that you've given us, including those extra

Page 9405

 1     words, is not the definition that we have here, is it?  And go back and

 2     you can look at your glossary.

 3        A.   I've done that, and I can clarify that the word "or discipline"

 4     does not appear either on page 13 of my report, nor does it appear in the

 5     glossary.

 6        Q.   I understand that.  But it did appear in your testimony, sir, and

 7     that's what I'm referring to.  "And I further quote ..." that's what the

 8     transcript says.  "I further quote."  And that's what I'm asking you

 9     about.

10        A.   If I used ill-advisedly the term "I further quote" with relation

11     to discipline, then I apologise to the Court for so doing.

12        Q.   Thank you.

13        A.   But I wanted to make it very clear the distinction on

14     administration, and the Court had already asked me questions as to

15     whether discipline was included under administration.  So I was only

16     trying to assist the Court.

17        Q.   I see.  Now, one of the words that you have used throughout your

18     testimony is the word "normally."  And I take it that normally has some

19     specific significance with regard to the analysis that you have given us?

20             JUDGE MOLOTO:  Mr. Saxon.

21             MR. SAXON:  Can we have, at least, an example where that's been

22     used.

23             JUDGE MOLOTO:  Mr. Guy-Smith.

24             MR. GUY-SMITH:  Yes, I'd be more than happy to.

25        Q.   At page 18, line 23:

Page 9406

 1             "And I further quote:  'This important distinction between

 2     operational command and full command, it doesn't include responsibility

 3     normally for administration or discipline.'"

 4             JUDGE MOLOTO:  Line?

 5             MR. GUY-SMITH:  That was line 23.  Page 19, line 11:

 6             "Q.  Would operational control then include the authority and

 7     responsibility to discipline or not?

 8             "A.  Not normally.  The disciplinary chain is normally retained

 9     through a full command or national command."

10             I can continue, but I believe that if counsel were to go through

11     a word search on the transcript, he would find numerous examples where

12     the witness has used the word normally in his testimony.

13        Q.   My question to you is with regard to the use of the word

14     normally.  Does that have some particular significance with regard to the

15     report that you have penned for us here so we can have some understanding

16     of that?

17        A.   Are you taking issue with my use of the word normally?

18        Q.   No, not at all.  I'm trying to appreciate what it means.  I'm not

19     taking issue with your use of the word normally at all.

20        A.   Well, I've used the word normally both in my report and in my

21     testimony because, as the Court will have noted, that my report is based

22     both on doctrine and on my understanding borne of experience.  And either

23     doctrine nor experience can account for all eventualities.  Doctrine, by

24     definition, provides a framework of understanding, and as an experienced

25     doctrine writer, I will often have to caveat what I write and say by

Page 9407

 1     using the word normally because one can never exclude the possibility of

 2     variation to the standard approach.

 3        Q.   Well, perhaps I'm asking a subtler question, and I don't mean to

 4     offend whatsoever.  But as I understand your report, your report centres

 5     around the following realities, which is, an examination and

 6     understanding of the British military system and an examination and an

 7     understanding of NATO.  And it is these two institutions and the

 8     considerations, rules, and regulations that have been promulgated by

 9     these institutions from whence you have drawn your conclusions as well as

10     given us the information that you've given us; is that fair?

11        A.   That is correct.  As I've stated, I've drawn on NATO national

12     doctrine and my experience within the British armed forces and within

13     NATO.

14        Q.   And with regard to the issue of "normally," what I'm driving at

15     is that you are referring to a condition, that being the British army,

16     which has operated in a particular fashion and under a particular, not

17     only military, but political environment for some considerable period of

18     time; correct?

19        A.   That is correct.

20        Q.   And NATO is a combination, as I understand it, and I may well be

21     wrong, but it's a combination of nation states that have come together,

22     each of them having operated in a particular fashion, both of a political

23     as well as military environment of some stability, would that be correct?

24        A.   That is correct.

25        Q.   Okay.  And with regard to the issue of your report, so we are

Page 9408

 1     clear, and I think you've alerted us to this right at the very beginning,

 2     you said at 2.6, limitation on conclusions, and I want to make sure that

 3     I read it properly, so you may want to take a look at it to make sure

 4     that I don't offend the accuracy of the words written.

 5             "I offer only the most general of conclusions noting that I am

 6     not qualified to provide within this expert witness report detailed

 7     observations let alone conclusions on the specifics of the case against

 8     Momcilo Perisic."

 9             Is that -- did I read that accurately?

10        A.   That is correct, and I stand by what I've written there.

11        Q.   I understand that.  So would it be fair to say - and when I ask

12     you this question, I mean absolutely no disrespect whatsoever - but it

13     would be fair to say that the report as written is of a generic nature

14     with regard to the issues of command, control, and the questions that

15     have been posed to you?

16        A.   That is correct.

17        Q.   Okay.  One of the -- one of the terms that you used in your

18     testimony and you used it -- at one point you said you were talking about

19     "his own nation," and I believe you were referring to the question of

20     somebody's own nation when you were dealing with what was incumbent upon

21     the senior national officer who had been sent from country A to

22     country B.  First of all before we go any further, do you recall that

23     testimony?  By that I'm referring to the language "those of his own

24     nation."

25        A.   I cannot recall the exact context in which I used the term "his

Page 9409

 1     own nation."

 2        Q.   Okay.  Let's see if we can work together here just so we

 3     understand what the terminology is that you were using.  When you were

 4     talking about the senior national officer in the first instance, and you

 5     used the term "of his own nation," I take it that what you were referring

 6     to is that that senior national officer was a national or a citizen of

 7     the sending nation?

 8        A.   Yes.  Yes.

 9        Q.   Okay.  And he was not, for purposes of our understanding, a

10     mercenary which you have defined actually in your report?

11        A.   Not at all.

12        Q.   Okay.  And so we are clear with regard to mercenary, a mercenary

13     is a person who is neither a national of a party to the conflict nor a

14     resident of the territory controlled by party to the conflict.  That's

15     one of a series of definitions, I'm -- please, take a look.  This, I

16     believe, is your footnote 22.  No, that's not correct.  I don't mean

17     to --

18        A.   I think you mean footnote 16, counsel?

19        Q.   Yes, yes, I do.  Thank you so much.

20        A.   I included this to make it clear that I was referring to the

21     legitimate secondment of individuals from nation A to nation B and not --

22     and therefore not anything that could be confused with mercenary, and

23     therefore to give substance to that point, I included a reference to the

24     international convention.  That's all I did, to clarify.

25        Q.   And with regard to your -- with regard to your clarification in

Page 9410

 1     that regard, I note that the international convention is a document that

 2     I believe was promulgated in 2001; correct?

 3        A.   That is the -- the quote or the reference I used.  That's the one

 4     I found.  I'm not aware of any other convention.

 5        Q.   Okay.  However - and please do correct me if I'm wrong - the

 6     principle, the underlying principle therein, that of a mercenary is

 7     neither a national of a party to the conflict nor a resident of the

 8     territory controlled by a party to the conflict, is something which has

 9     been consistently understood and recognised for some number of years, and

10     by that I mean eons, not decades?

11        A.   Counsel, I'm afraid I really can't speculate on that.  I think

12     that's a fair point, but I'm not an expert on this issue on mercenaries.

13        Q.   Okay.  But with regard to the issue of those -- with regard to

14     the issue of "his nation," I take it that was an important component part

15     in your analysis of where the individuals from the sending nation owed

16     allegiance to, and by that I mean they were citizens and owed allegiance

17     to that sending nation?

18        A.   Correct.  And remember, this was purely put in to give some

19     context to the secondment.  Because that was the questioned asked.  It

20     was not about mercenaries, it was asked about seconding of individuals.

21        Q.   With regard to the issue, since you continue to, and I think

22     rightfully so, relate the issue of secondment to the question posed,

23     within the context of secondment is a principle and underlying

24     understanding that the individual or individuals seconded are citizens of

25     a particular nation, that being the sending nation?

Page 9411

 1        A.   Absolutely.

 2        Q.   Got it.  Thank you.  That's really quite helpful because I was

 3     somewhat confused there.  Now, you also mentioned that there were some

 4     important issues that existed when dealing with multinational armies or,

 5     is the word -- is the phrase "task forces" admissible, or is that taking

 6     somewhere we don't want to go?

 7        A.   That's, sir, I think, too specific.

 8        Q.   Okay.  Then let's just deal with multinational armies with regard

 9     to multinational armies --

10        A.   Can I interrupt.

11        Q.   Please do.

12        A.   More precisely, bearing in mind our discussions on language, you

13     should be talking about multinational forces.

14        Q.   Excellent, thank you.  I appreciate the correction.

15     Multinational forces.  We both get the chance to write something down.

16             With regard to the issue of multinational forces, one of the

17     things that you pointed out was the importance of not breaking up the

18     unit?

19        A.   Yes, and I used the specific example under the command state of

20     operational control that does not empower the multinational commander to

21     break up a subordinated unit of another nation.

22        Q.   Okay.  So put in terms -- put in some concrete terms, just for

23     the moment, looking at the example that you'd given us with regard to

24     Jackson and Clark, Clark is the head of NATO, I think he was the --

25        A.   He was the supreme allied command Europe at the time.

Page 9412

 1        Q.   SACEUR?

 2        A.   SACEUR.

 3        Q.   SACEUR.  He would not have been able to have broken up any of the

 4     British units, that was not an authority that he would have had?

 5        A.   That is correct, he did not have that authority.  Though I used

 6     that term "example" to show the limitations of orders, I cannot recall

 7     precisely the command's names pertaining, but as far as I can recall, the

 8     national contingents at the time were under the operational control of

 9     headquarters Allied Rapid Reaction Corps, that is as far as I can recall.

10     I visited Kosovo 10 years ago.

11        Q.   Oh.  With regard to the issue of authority, his authority derived

12     out of, and I think you've explained this to us, agreements that had

13     occurred before he obtained his position, and that was agreements between

14     a number of nation states who were part of NATO?

15        A.   Yes, because again as far as I recall there would have been

16     appropriate NATO orders giving substance to the deployment and employment

17     of the multinational force which in this case was the

18     Allied Rapid Reaction Corps.

19        Q.   And I think one last question, and I think we'll have to end for

20     the evening, which is:  With regard to the agreements, and now speaking

21     specifically about the Jackson/Clark situation that you alluded to in

22     your report, each nation, specifically the UK, had prior to entering in

23     into this joint -- sorry, this multinational force mission?

24        A.   A multinational force conducting a mission, a multinational

25     mission.  But the substantive point, a multinational force.

Page 9413

 1        Q.   Multinational force that the chain of command as far as Jackson

 2     was concerned ultimately rested within the British military?

 3        A.   Yes, because Jackson remained under national command.  His force

 4     was under -- as far as I can recall, under the operational control of

 5     SACEUR.

 6             MR. GUY-SMITH:  Thank you so much, and I will see you tomorrow.

 7             JUDGE MOLOTO:  Major-General, we are not done with you yet.

 8     You'll have to come back tomorrow and -- but before I say when, I need to

 9     say to you that between now and when you come back tomorrow, you are not

10     allowed to discuss the case with anybody until you are excused from

11     further testifying.

12             The Court stands adjourned to tomorrow afternoon in

13     quarter past 2 in Courtroom III, not Courtroom II.  Court adjourned.

14                           --- Whereupon the hearing adjourned at 7.00 p.m.,

15                           to be reconvened on Tuesday, the day of 27th day

16                           of October, 2009, at 2.15 p.m.