1 Monday, 17 November 2003
2 [Open session]
3 [The witness entered court]
4 [The accused entered court]
5 --- Upon commencing at 9.05 a.m.
6 JUDGE LIU: Call the case, please, Mr. Court Deputy.
7 THE REGISTRAR: Good morning, Your Honours. This is Case Number
8 IT-02-60-T, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.
9 JUDGE LIU: Thank you.
10 Mr. McCloskey.
11 MR. McCLOSKEY: Yes, good morning. Thank you, Mr. President.
12 We'll get going --
13 JUDGE LIU: Your microphone, please.
14 MR. McCLOSKEY: We'll -- thank you very much. We'll get going and
15 finish up shortly.
16 WITNESS: RICHARD JOHN BUTLER [Resumed]
17 Examined by Mr. McCloskey: [Continued]
18 Q. Mr. Butler, we were on Exhibit 507, a Zvornik Brigade workbook.
19 If we could go to page 31 of that workbook. And if you could remind us
20 that -- what date that is -- should be.
21 A. This particular date is 16 July 1995.
22 Q. And what are you pointing out here?
23 A. In this particular instance, I'm pointing out a notation at 1750
24 hours between the Zvornik SUP, calling the duty officer and asking for
25 Lieutenant Colonel Popovic to call them. I only point this out insomuch
1 as I don't have any additional information that would go around, however
2 it just reflects the continued presence of Lieutenant Colonel Popovic in
3 the zone of the Zvornik Infantry Brigade during that period.
4 Q. All right. Let's go on to the next relevant passage.
5 A. That will be page 32 of the English language translation.
6 Q. And what is that?
7 A. The last bullet that I've highlighted. In this particular
8 instance noting that message from Zlatar that a parcel set off from Badem
9 half an hour ago. And that it was reported to the IKM at 2015 hours.
10 This is a group of reinforcements that are finally setting off from the
11 Bratunac Brigade headquarters on 16 July and will arrive within the hour.
12 If you can move up three bullets, there's a notation that says men from
13 Bratunac are in Orahovac. Those individuals are members of the two
14 platoons of the Bratunac Brigade who arrived on the 15th of July 1995.
15 JUDGE LIU: Well, Mr. McCloskey, what's the number of that
17 MR. McCLOSKEY: This is -- should be 507, the English translation
18 of the workbook, and then we went to the particular pages on it.
19 JUDGE LIU: Thank you.
20 THE WITNESS: On page 33 of the English language translation, I
21 just highlighted the passage, the second bullet, that 30 soldiers arrived
22 at 2100 hours.
23 MR. McCLOSKEY:
24 Q. Now, can you tie that into any of the material we saw last week in
1 A. This particular one and the references of the reinforcements tie
2 into the intercept on 16 July 1995, between Popovic and Rasic, and then
3 later where Colonel Cerovic is brought up to speed on the reinforcements
4 that have been arriving in the Bratunac Brigade zone during the late
5 afternoon/early evening hours of 16 July 1995.
6 Q. Okay. And just -- we note at the bottom of page 33, there is,
7 again, a mention of rifle grenades and hand grenades to be sent to
8 Orahovac. And then back of page 32 --
9 A. A reference --
10 Q. There's a --
11 A. To Bratunac Brigade men in Orahovac.
12 Q. Do you relate that in any way to what we have seen regarding
13 prisoners and executions at Orahovac?
14 A. No, sir, I don't. In this particular instance, my understanding
15 of the general combat situation is that on the evening of 15 July, the
16 unit that had come in from Bratunac on 15 July was deployed. And as a
17 result of the combat activities had been cut off and had been forced to
18 essentially retreat through the woods was lost for a good portion of the
19 night and did not show up again on a major roadway until approximately
20 noon on 16 July 1995. So I attribute this provisioning of getting weapons
21 and grenades and ammunition to that unit as an attempt to resupply that
22 unit after a night in the field.
23 Q. Okay. Let's go on to the next reference that you've highlighted.
24 A. On page 34 of the English language translation, at the second
25 bullet, I've highlighted a reference where at 2210 hours, the first
1 infantry battalion asked for one loader, one dump truck with a tarp to be
2 in Pilica at 0800 hours. That would be 17 July 1995. And the comment
3 that this is being conveyed to Jokic and Milosevic.
4 Q. First of all, what do you think that first sentence involves,
5 talking about the loader and excavator and dump truck to Pilica at 0800
7 A. Well, as we understand the context of executions at
8 Branjevo Military Farm and at the Pilica Dom on 16 July, while the
9 executions occurred, the actual activity to begin to bury the bodies at
10 Branjevo Military Farm as well as vehicles to pull the bodies out of the
11 Pilica Dom and then bring them to where they would also be buried, did
12 not begin until the next day, the 17th. So in that respect, I believe
13 this indicates that the 1st Battalion is calling to ensure that the
14 equipment they will need to begin this operation is available the next
16 Q. And the 1st Battalion, why would it be the 1st Battalion, aside
17 from that it says it here?
18 A. The Branjevo Military Farm and the Dom of culture in Pilica are
19 both in the 1st Battalion area of operations or in their zone.
20 Q. All right. Then it says, the next sentence, convey to Jokic and
21 Milosevic. Who do you think that's a reference to?
22 A. Given what they're asking for, I believe the reference is that
23 this particular case Jokic is Major Dragan Jokic, the chief of
24 engineering, and Milosevic is Captain First Class Sretan Milosevic who is
25 the assistant for rear services. Within the context of what they are
1 asking for, those are the two likely individuals they would be
2 coordinating with.
3 Q. Do you have any other references in this book that you want to...
4 A. On page 35 of the English language translation, just a reference
5 that members of the reserve or Worker's Battalion are now joining the men
6 from Bratunac. They're given one set of ammunition and they're being
7 taken up to a specific part of the line and that that line is to be taken
8 up at 0800 hours on 17 July 1995.
9 Q. What's next?
10 A. The final reference that I have in this book is now on the
11 morning of the 17th of July 1995, and it will be page 36 of the English
12 language translation. Roughly sometime after 5.40 in the morning on the
13 17th, the 1st Battalion again apparently is called, asking if the
14 engineering machines have been secured. It's reported the situation is
15 normal in their zone, and there's a phrase, Trbic to report. In this
16 particular context, Trbic, not only is he a security officer of the
17 Zvornik Infantry Brigade, but I also believe that during this period from
18 the -- to the day of the 16th, in the evening of the 16th, 17th, and the
19 morning of the 17th, Captain Milorad Trbic is also performing as the
20 Zvornik Brigade duty officer that morning.
21 Q. Thank you, Mr. Butler.
22 MR. McCLOSKEY: I have nothing further, Mr. President.
23 JUDGE LIU: Well, Mr. Karnavas, yes, any cross-examination.
24 MR. KARNAVAS: I think I have a little bit, Your Honour.
25 JUDGE LIU: Yes. A little bit that will last five days?
1 MR. KARNAVAS: Yes. I just need a second, Your Honour, to get
2 this. Sorry.
3 Cross-examined by Mr. Karnavas:
4 Q. Good morning, Mr. Butler.
5 A. Good morning, sir.
6 Q. On direct examination, you were asked on Friday, that was November
7 14th, 2003, whether during the Krstic -- your testimony in Krstic, whether
8 you had made a mistake with respect to Mr. Erdemovic's information. Do
9 you recall that question being posed to you?
10 A. Yes, sir.
11 Q. And in fact, just to be precise for the record and for our
12 analysis of this mistake, if we could just put on the ELMO the relevant
13 portion of that exchange between you and Mr. McCloskey. I have a copy.
14 It's on page 73, and I'm using the -- 74. Now, if we could just go down
15 the line starting with number 1 on page 73, it starts at the bottom of the
16 page, you'll see the question being posed to you and the question is.
17 "Q. In your Krstic testimony, did you make a mistake in relating
18 Mr. Erdemovic's information?"
19 And your answer was, and I'm going to read the whole answer, it
20 will take us into the next page.
21 "A. I did. And I recognised when I reviewed my transcript
22 testimony approximately a week ago on that. And I had misspoke, and one
23 of the things I asked for was as soon as I recognised that I had said
24 that, the tape be checked, because attributed to me is the observation
25 that Erdemovic had said" - it says here 'sent' - "said men from the
1 Bratunac Brigade. And I would like to go on record that at the very
2 beginning of my association with this case, I have always known that Mr.
3 Erdemovic has always said that" - we're into the next page we're into the
4 next page if you wanted to follow along - "that it was men or soldiers
5 from Bratunac. He had never indicated that they were men from the
6 Bratunac Brigade, and that is a fact that I know. And that is why I asked
7 for clarification as to whether that was actually something I had said.
8 If I did say it," and I underscore the if part. "If I did say, I did
10 Now, for the sake of clarity of the record, I like to visit the
11 actual exchange with respect to that matter during the Krstic case. And
12 so, again, if I could have the assistance of Madam Usher, we'll put it on
13 the ELMO. And this can be found on the transcript page 4.915. I'm going
14 to be reading line 7 to 17, testimony taken 29 June 2000. If we could
15 look at that --
16 A. Sorry, Mr. Karnavas, that's the wrong extract.
17 Q. Okay. Sorry. Okay. If I could have a moment. I believe it is
18 the right one. If we could look at -- I'm going to start with the
19 question which starts with line 7 on this page. And if you could just
20 follow along. And -- now, you posed the question.
21 "Q. Now, as the conversation ends with General Krstic says, I'll
22 see what I can do, this is around a 10.00 a.m. July 15th conversation,
23 with the 10th Divisionary Unit, get any assistance from the Drina Corps
24 assets on July 16th in the executions at the Branjevo Farm?
25 "A. What we see in the time sequence is on the morning of the
1 16th, first, the 10th Divisionary is at the Zvornik Brigade headquarters.
2 It then goes to the Branjevo military farm. And according to the
3 testimony of Drazen Erdemovic, while they are in the commission of the
4 actual execution, members of the Bratunac Brigade show up at the execution
5 site and assist them for that phase of the execution, or, in effect,
6 continue the execution."
7 Now, having looked at this portion, I guess we can take off the if
8 you said it part of your answer on Friday, and replace it with that you
9 did, in fact, say it. Correct?
10 A. Well, sir, you may choose to do that, but I will go back and
11 review the tapes.
12 Q. Okay.
13 A. But for the sake of argument, I will concede that issue.
14 Q. All right. Well, help me out here, help me out here because you
15 just piqued my interest. On Friday you said that this was alarming to you
16 when you saw it a week prior to your testimony and that you asked to look
17 at the tapes, because how could you possibly make such a mistake. I
18 assume - I assume - before coming in here and confessing error, as you
19 did, albeit in a qualifying fashion on Friday, you must have taken the
20 time to listen to the tapes.
21 Question: Did you listen to the tapes? Yes or no?
22 A. No, sir, those tapes are sitting in my house in Atlanta.
23 Q. Okay. There is such a thing as Federal Express, though, isn't
25 A. Is that a question?
1 Q. Yes, that is a question.
2 A. Yes, there is something as Federal Express, sir.
3 Q. All right. Let's -- I notice here, assuming that the tape is
4 correct, I see you've chosen two particular phrases which are somewhat
5 significant. One, "according to the testimony." Correct? It says it
6 right there. And then you say "members of the Bratunac Brigade," right?
7 You see that?
8 A. Yes, sir.
9 Q. Now, follow along with me and I will now demonstrate to you what
10 we know in my business as the concept of looping, where you take a portion
11 of the question -- answer, and then make it part of the next question,
12 thereby, highlighting its importance.
13 The following question.
14 "Q. And there are intercepts that support the presence of the
15 Bratunac Brigade at that site also, is that correct, that we'll get to
17 Let me read it again.
18 "Q. And there are intercepts that support the presence of the
19 Bratunac Brigade" -- you see, that's the looping part, the highlighting
20 part "at the site that we'll get to later?" Now here, one would think,
21 one, the questioner he would -- either he knew or would have been aware
22 that you had misspoken and received no correction but indeed we see an
23 incorporation of your previous answer into the question. Now, let's look
24 at the answer to see whether you correct yourself at that point. Assuming,
25 of course, you said all these things which you will be able to verify at
1 some point.
2 "A. There are intercepts which support the Bratunac Brigade at
3 that site, and there are written orders which support the presence of
4 Bratunac Brigade units in the zone of the Zvornik Brigade during the
5 period as well."
6 My to you, sir, is: Do you recall making this statement to that
7 question posed to you by the examiner on that particular day?
8 A. Yes, sir, I do.
9 Q. Okay. And do you recall making -- do you recall that answer,
10 giving that answer?
11 A. Yes, sir, I do.
12 Q. Okay. Now -- so if you recall the answer, would it be fair to say
13 that -- if you recall this particular answer, that in all likelihood, you
14 also recall the question that was previously posed? That is the one where
15 you mention "members of the Bratunac Brigade," a fact which you knew at
16 the time, as you have confessed on Friday, to have been false.
17 A. Well, Mr. Karnavas, I mean, clearly I can see what I have said up
18 on the ELMO. I recognised with respect to the comment about the Bratunac
19 Brigade, but as soon as I came across it again in my own review of my
20 transcripts that it was incorrect, and I brought it immediately to
21 Mr. McCloskey's attention. So, I mean in that respect, yes, I recognise
22 that it was incorrect.
23 Q. All right. But my question is this, sir: We've seen an admirable
24 demonstration over the past week of a command of facts like I've never
25 seen before, and yet, on a very important issue, an issue that has found
1 itself even in the UN report, which we'll get to, an issue that the office
2 of the Prosecution, for whom you worked for had been trying to get Drazen
3 Erdemovic to please say Bratunac Brigade --
4 MR. McCLOSKEY: Objection, Your Honour. The point has been made.
5 That's an absolute misstatement of the situation. He's accusing the
6 Prosecution of all kinds of ill-doings, he's accusing Mr. Butler. The
7 point is made.
8 JUDGE LIU: It's also speculation, you know.
9 MR. KARNAVAS: I'm demonstrating a point, Your Honour. Because
10 I'm using the same analytical techniques that the gentleman used in
11 formulating his own analysis.
12 JUDGE LIU: If you make a point, that's okay.
13 MR. KARNAVAS: Very well. We'll visit another point.
14 Q. Just for the record, do you know whether Mr. Erdemovic testified
15 before you on this occasion or after you?
16 A. In that particular case, I believe he testified before me, sir.
17 Q. Now, I would that you would have closely followed that testimony
18 and in all likelihood would have read the transcript prior to taking the
20 A. I can't say for a fact that I did so, but that would be a fair
21 assumption, yes, sir.
22 Q. Okay. And if you hadn't, in all likelihood, you would have been
23 briefed by the lawyer or lawyers that were involved in the preparation of
24 and the direct examination of Mr. Erdemovic. Correct?
25 A. I'm not sure what you mean by the phrase "brief," but again I was
1 familiar with the testimony and the witness statements of Mr. Erdemovic.
2 Q. Okay. All right. Well, just for clarity sake, because it's an
3 issue that I think is relevant to this case, I'd like to visit the
4 Erdemovic testimony, the relevant portion, with respect to this issue. So
5 if we could have the assistance of Madam Usher, I would like to show
6 you -- I would like to put on the ELMO from the Krstic trial, page 3.132,
7 and if we could look at lines 18 to 25. You will see that the question
8 begins at 11, line 11, and then on line 16, page 3.132, this was 22 May,
9 2000, which indeed was -- preceded your testimony this time. The examiner
10 is none other than Mr. Harmon. It says, the answer that Mr. Erdemovic
11 gives that:
12 "All the members of the 10th Sabotage Detachment did not
13 participate in these executions. About -- between 1.00 and 2.00, members
14 came from Bratunac, so that I heard when somebody said that people from
15 Bratunac had come to assist. And they took over the killing of those
16 people, in the same way as our group had done, only they recognised some
17 of those people and they took it out on them.
18 I think that one of the men from Bratunac was a native of
19 Srebrenica and he recognised some."
20 If we go on to the next page, he says, and again I apologise.
21 We'll get it right this morning. Sorry. He says:
22 "I remember he recognised the butcher from Srebrenica, and I know
23 that he said, you're a good man, but I have to kill you. I know that you
24 were not a nationalist."
25 So here, clearly, would you not agree with me, he says he's asked
1 a question, a particular question, a specific question, and he says that
2 they were from Bratunac, no mention of the brigade. Correct?
3 A. That is correct, sir.
4 Q. Now, further down that same page it says -- there's a question on
5 line 20.
6 "I'd like to explore now the identities of these people who came
7 from Bratunac. First of all, Mr. Erdemovic, how were they dressed?"
8 "A. They were, as far as I can remember, all dressed in uniforms
9 of the Army of Republika Srpska. Only one was wearing a uniform that I
10 could see," and the next page which is 3.314 And, here, if you could have
11 it handy with you, all of this. I truly apologise. Mr. Butler, if we
12 could have your assistance. I notice you're pretty handy with the ELMO
13 there. So you can just... Thank you. So as I was saying. He says: "As
14 far -- I recognise him as being the uniform of the American army. That's
15 on line 1, 3.134
16 Who was it who said the men from Bratunac had arrived?" Then
17 there was an answer. "I think it was Brano, but I'm not certain. I think
18 possibly it was him, because I saw him first, shake hands with them." And
19 then there's an exchange.
20 So clearly at least at this point in Erdemovic's testimony, we
21 begin to identify one individual. Correct?
22 A. Yes, sir.
23 Q. And we learn that, one, he seemed to be from Srebrenica, correct?
24 A. Yes, sir.
25 Q. And that he was wearing an American uniform, which is slightly
1 distinctive, in light of what everybody else was wearing in the VRS at
2 that time. Correct?
3 A. Yes, sir.
4 Q. Okay. All right. Now, at some point later on, and if we could go
5 to pages 3.135, you will recall, because I'm sure you were involved in the
6 preparation of all of this, there were some exhibits that were shown to --
7 that were shown to Mr. Erdemovic. In fact, there were exhibits 173, 174,
8 and 175.
9 Now, I'm going to hand you these exhibits. And I have -- and we
10 need to go into closed session, Your Honour, for the questions that I'm
11 going to be posing -- private session, so we don't have to --
12 JUDGE LIU: Yes.
13 MR. KARNAVAS: I have copies for everyone.
14 JUDGE LIU: Yes.
15 MR. KARNAVAS: So we won't put the photos on the ELMO. And once
16 we are in private, we can openly discuss this at our leisure.
17 JUDGE LIU: Yes. We'll go to private session, please.
18 [Private session]
12 Pages 4653 to 4662 redacted- private session.
5 [Open session]
6 MR. KARNAVAS:
7 Q. Now that we've covered that ground, I want to go back to that
8 issue where we started off with respect to the mistake you made during the
9 Krstic trial, because I note on another occasion when you testified, once
10 again we seem to have a slight mishap or misstep or however you wish to
11 put it. So if we could turn to the second time that you testified. And
12 if I could direct your attention to the Krstic trial transcript. It's
13 Monday 17 July 2000 and if I could have the assistance of Madam Usher.
14 Thank you.
15 Now, if we could look at pages 5.149 and if we go through lines
16 1 -- 3 to 11. So part of the -- 3 is part of the question that is being
17 posed to you. We don't need to read the entire question, so we'll start
18 at line 3, page 5.149, 17 July 2000.
19 "So in any event, Vujadin Popovic says in about six different
20 ways that Vidoje Blagojevic's people were late. How does this tie in with
21 the testimony of Drazen Erdemovic?"
22 And I take it from here we can glean that we're talking about what
23 I call the "up there" intercept?
24 A. That would be the one the Popovic and Rasic, yes, sir.
25 Q. So you're with me. We're on the same wavelength now. All right.
1 Now. The answer that you give is.
2 "A. As Drazen Erdemovic describes the execution process which
3 occurred at the Branjevo Military Farm on 16 July, he recounts that
4 initially the members of the 10th Sabotage Unit were conducting the
5 executions. He also further notes that at a point in time soldiers whom
6 he believes to be members of the Bratunac Brigade arrive at the Branjevo
7 Military Farm and, in effect, take over the execution process."
8 Do you see that, sir?
9 A. Yes, sir. This was the specific notation that I came across when
10 preparing for my own testimony here that I tagged as something that I
11 recognised as incorrect.
12 Q. Okay. So just as I have perhaps -- well, not perhaps, just has I
13 had been unable to find in your rebuttal one correction that you made, it
14 seems that you were unable to find the earlier mishap that you stated with
15 respect to how you were tying in the members of the Bratunac Brigade
16 through the testimony of Drazen Erdemovic. Right?
17 A. Yes, sir.
18 Q. Okay. Now, if we look to the next question, again just for
19 instructive purposes using -- because at some point we're going to try to
20 analyse this and put it all together. We don't see a correction from the
21 questioner, in other words asking you as he had done last week on two or
22 three occasions, no more than that, perhaps you had misspoken, perhaps you
23 meant men from Bratunac. There's no attempt to jingle your memory and
24 correct you, is there?
25 JUDGE LIU: Yes, Mr. McCloskey.
1 MR. McCLOSKEY: Your Honour, the inference that the Prosecution is
2 somehow --
3 MR. KARNAVAS: There is no inference, Your Honour.
4 JUDGE LIU: Well, you have to listen to Mr. McCloskey's statement.
6 MR. McCLOSKEY: Mr. Butler concluded in his testimony last time
7 that the Bratunac Brigade was what Mr. Erdemovic was talking about. That
8 was based on an intercept. And that is what led to this mistake, and it's
9 coming completely out of context from Mr. Karnavas. There is now new
10 information on this point that was completely cleared up by Mr. Butler,
11 and these inferences that there's -- that he's trying to make are just --
12 are not appropriate, Your Honour.
13 JUDGE LIU: Well, Mr. Karnavas --
14 MR. KARNAVAS: If I may, Your Honour --
15 JUDGE LIU: Well, Mr. Karnavas.
16 MR. KARNAVAS: Very well, Your Honour.
17 JUDGE LIU: The question is that whether this witness who has
18 already corrected his mistake he made during the previous statement, there
19 is no need to attack the other side, unless you have a lot of evidence
20 to say that the Prosecution tried to hide this information. But up to
21 now, we believe that during the direct examination by the Prosecution,
22 they take the initiative to ask some questions, they give the witness the
23 opportunity to correct their mistake. So concentrate your
24 cross-examination on the issue which is directly related to your client,
25 rather than attacking the other side.
1 MR. KARNAVAS: Your Honour, if I may, for the record -- if I may
2 for the record, first and foremost, nobody is attacking the Prosecution.
3 They may be slightly embarrassed, nobody is attacking them, no inferences
4 are being drawn. Secondly, at some point in time, you will be asked to
5 evaluate the gentleman's testimony and his reports. There are times that
6 we will show throughout the process of cross-examination where the
7 gentleman states one particular analysis, and we believe that there might
8 be another one. This is a method by which I'm trying to demonstrate,
9 using their own analytical techniques how one could get the same reaction
10 that I just got from Mr. McCloskey, that somehow we're inferring that
11 they're hiding. We're not inferring that. Secondly, I'm pointing out
12 that they had an opportunity to clear up the record. They knew. The
13 questioners knew. Harmon who knew. McCloskey knew. They didn't make
14 that. Now I'm not suggesting it was purposeful. But in all likelihood,
15 it was an innocent mishap. They're thinking about the next question.
16 However, if we have a devious mind, we may think they're doing something
17 devious. What I'm trying to demonstrate is there are two sides to the
18 coin. I'm not suggesting they did anything wrong in this case. I know
19 they are both honourable men. That's not my point. I'm driving another
20 point and I'm trying to show that there may be some flaws in the
21 analytical process in this case, that's all. Because at the end of the
22 day I think there are some issues with certain pieces of evidence where
23 they're open or subject to a variety of interpretations. We don't have
24 enough of the information and I think Mr. Butler would agree with me that
25 there are no absolute truths in this particular case with most of the
1 evidence because a lot of it deals with circumstantial evidence. So
2 that's my point. And I'll move on. I think I've made my point on that.
3 I think I'll move on, Your Honour.
4 JUDGE LIU: Yes, please move on. We are professional Judges, we
5 could understand what you're saying.
6 MR. KARNAVAS: I understand that, Your Honour, but I would feel
7 more comfortable if I have it on the record.
8 JUDGE LIU: Well, we'll just move on.
9 MR. KARNAVAS: Okay.
10 Q. Now, at some point -- now, you did indicate that, I believe, on
11 Friday, if we go back to that little exchange, that you corrected yourself
12 on rebuttal. We'll discuss that at some point when I'm able to see that
13 portion of your testimony, however, I do want to cover another aspect of
14 the rebuttal that was brought out through the questioning process,
15 particularly by the Judges in that case. So if I could have the
16 assistance of Madam Usher.
17 MR. KARNAVAS: I apologise to the Court. I'm switching a little
18 bit in light of the Court's ruling.
19 Q. So let me -- let's look at at least a portion of the rebuttal of
20 your testimony from the Krstic trial, and if you could just look through
21 it first to see whether you recognise that.
22 A. Yes, sir.
23 Q. Okay. Now, as I understand it, you testified more than one time
24 on rebuttal. Is that correct? I think it was twice.
25 A. Yes, sir, it was.
1 Q. And on this particular -- this time it was on 23 March 2001 that
2 you testified. Now, if we could direct your attention -- well, first,
3 before I direct your attention, during that rebuttal process, there was
4 some discussion with respect to one particular piece of evidence which was
5 a tape of the kill 'em all portion of an intercept. Do you recall that?
6 A. I would say that's a bit of an understatement, sir.
7 Q. All right. Well, that was a major issue, was it not, during the
9 A. I understand that it was a major legal and evidentiary issue with
10 respect to the Prosecution's case. From my perspective, it had very
11 little analytical relevance for me.
12 Q. Well, we're going to get to that. But here is one of the -- this
13 is what we might call, even in your parlance, a smoking gun. Would you
14 agree with me?
15 A. I believe I testified with respect to Srebrenica, I thought it was
16 something of the contrary.
17 Q. Okay. So it's your opinion today as you sit here that that tape
18 had no evidentiary value?
19 A. No. I believe I said that while I understood that it could be
20 used as an inferential piece with respect to determining or not
21 determining genocidal effect, that I didn't believe it had any value with
22 respect to the events pertaining to Srebrenica.
23 Q. Well, before we get to that part of the mental process that went
24 in and whether to include it or not include it and the strategy that went
25 behind it, you were asked a question, I believe it was the President of
1 the Court, Judge Rodrigues, who had indicated to you that the tape was a
2 montage, and that could be found on page 9.086, question starts with lines
3 6 to line 9. He asked you that it was -- whether --
4 A. Yes, sir.
5 Q. Do you remember that question?
6 A. Yes.
7 Q. General Krstic said it's 100 per cent montage. And then there is
8 this lengthy answer or complete as we should say. Then it ends up with on
9 the very next page, page 9087 on page 14 -- line 14 you say: "And in this
10 case, given the balance of probabilities and given everything I know about
11 it, I'm fairly certain this is not a montage."
12 Do you recall making that statement to the question posed to you
13 by the President of the Trial Chamber during the Krstic on 23 March 2001?
14 A. Yes, sir.
15 Q. Okay. So in other words from your answer, can I conclude that it
16 is your professional opinion and the opinion of the members of the
17 Prosecution, a team of which you were and remain a member of, that that
18 tape was authentic, reliable, and relevant -- or is it the relevant part
19 that you have problems with?
20 A. Taking in context that the question with respect to Judge
21 Rodrigues was on the issue of the deception or whether the tape was
22 fabricated, it is -- it was then and it remains now my opinion that it is,
23 in fact, authentic. So that's the first part of your question.
24 Reliable insomuch as it is an accurate transcription of the
25 context of the conversation, yes, I believe it is. Relevant, I again -- I
1 have always made it clear that with respect to the events surrounding
2 Srebrenica that I don't particularly believe it is relevant, given the
3 fact that the crime scenes for Srebrenica, which kind of mandate the
4 context of my report, close out at approximately 19 or 20 July 1995, with
5 the exception of the reburial. So given that this conversation occurs on
6 02 August of 1995 and directly with respect to Zepa, which is not under
7 investigation, I don't believe it's relevant. That's the light in which I
8 looked at it.
9 Q. Okay. So it didn't meet the relevancy test as far as you were
11 A. Not with respect to the crimes at Srebrenica, no, sir.
12 Q. Okay.
13 MR. KARNAVAS: Now, this may be a good time, Your Honour, to
14 break, because I'm going to launch into a segment of my cross that will
15 take a half hour just on this issue of relevancy.
16 JUDGE LIU: Yes. We'll resume at quarter to 11.00
17 --- Recess taken at 10.13 a.m.
18 --- On resuming at 10.46 a.m.
19 JUDGE LIU: Yes, Mr. McCloskey.
20 MR. McCLOSKEY: Mr. President, I failed to notice this morning
21 that David Kay from the United States, I'm sure you saw it, was here for
22 the initial part of Mr. Butler's cross. Mr. Karnavas and I have had a
23 chance to speak and we do not anticipate any U.S. Issues coming up on
24 cross, so Mr. Kay has left and will come back probably for the cross of
25 Mr. Jokic's cross.
1 JUDGE LIU: Thank you for your information.
2 Mr. Karnavas.
3 MR. KARNAVAS: Thank you. Just for a small housekeeping matter, I
4 made references from the Krstic case. So what was marked in Krstic as
5 P173 should be marked for identification purposes as D77/1, what was then
6 in Krstic as P174 should be in this case for identification D78/1. And
7 what was marked in Krstic as P175 should be marked for identification as
9 JUDGE LIU: Thank you very much.
10 MR. KARNAVAS:
11 Q. Now, I believe we left off, Mr. Butler, where we were discussing
12 this tape and the issue as it arose during the rebuttal of your testimony
13 in Krstic. Now, for the sake of precision, if we could go to page 9.082
14 and I would like to read the pertinent scenes into the record and then
15 from there we will begin to dissect it, if you will, and get into your
16 analysis and mental process.
17 You were asked a question by Judge Wald. My last question and
18 answer again only if you're comfortable because I don't want to go outside
19 any bounds, but you did say in your -- that when you first came across
20 this or when you first analysed it, you said you didn't analyse it until
21 late 1999, I think. And the next page starting with line 1, 9.083 page
22 9.083. "Now, I understand fully your explanation of why it is just didn't
23 fall into place for your task of recording, from a military point of view,
24 all the events which went on, but you did say yourself that you thought it
25 would be powerful, and you knew there was a debate in the legal staff. I
1 don't want to know anything about the backgrounds or people involved in
2 that, but I guess my basic question, since you brought it up, was whether
3 or not you participated in that debate with the legal staff or you're just
4 saying you knew there was a debate in the legal staff?"
5 And your answer is: "I was a party to those debates. I was a --
6 I was a major, significant party. I was fully integrated into the team
7 and in the debates in the process, and --" and you're cut off by Judge
8 Wald. Hence, he says:
9 "So was the debate again, I don't want to know what the -- but
10 did the debate concern whether to use that intercept in the
11 case in-chief?"
12 And your answer is, and by the way, when we're talking about the
13 intercept, we're talking about the kill 'em all intercept. The actual
14 video. Correct, Mr. Butler?
15 A. That is correct, sir. The video that's derived from the
16 intercept. It's actually an audiotape.
17 Q. The audiotape. I'm sorry, the audiotape. And so, the answer,
18 your answer is: "The one aspect of the debate pertained to the fact that
19 to use it in the case in-chief, if I felt that I needed it, meant that at
20 the end of the day, the Defence would have a very long opportunity to come
21 up with a well-rehearsed answer to what it was."
22 Judge Wald: "Well, I shouldn't ask you that. You're not a
23 lawyer, but I was going to say, isn't that what the trial process is
25 "A. Understanding that, but again from my perspective, when I
1 look at the information -- I'm not naive as to the mechanicals involved, I
2 mean, and I guess where -- fundamentally, to frame the argument, where
3 that information falls is as a piece of military analysis, does that piece
4 of information assist me in allowing the Court to understand General
5 Krstic's role as a commander related to the crimes and everything else.
6 "Now, having said that, I also understand that as a piece of
7 information, it can be used as an indicator of the mental state of the
8 accused, and I'm not qualified to pass on that."
9 And Judge Wald, not giving up the point: "I'm not asking you.
10 Just a last question. You said you analysed in late 1999. Did this,
11 quote, debate take place around that time, or prior to trial, I guess is
12 what I'm saying, to your knowledge?
13 "A. The debate took place -- not only prior to but continuing
14 during the case, the case in-chief. The final decision ultimately on
15 where to use it wasn't until my narrative hit the final form, and from my
16 point of view, I determined that I didn't need it."
17 Now that we've got it into context, do you recall being posed
18 those questions and giving those answers?
19 A. Yes, sir.
20 Q. All right. Now, as I understand your testimony earlier, you said
21 that it was authentic, it was reliable, but it didn't meet your test of
22 relativity. It wasn't relevant to your analysis. Is that correct?
23 A. With respect to the association with the Srebrenica crime scenes,
24 that's correct.
25 Q. But nonetheless you indicated that it was powerful, right, that
1 was the term that you used. Right?
2 A. That is correct.
3 Q. And, in fact, if it wasn't such a relevant piece of evidence, why
4 pray tell, help me out here, why would there be such a debate inside the
5 OTP, the Prosecution team, where you as a member, an integrated, an
6 infiltrated member of this association, why would there be such a debate
7 on whether to use it during the case in-chief or, as it turned out, a
8 sabotaging technique on cross-examination once the accused was smoked out
9 and put on the stand. Tell us. Explain that to us.
10 A. If you don't mind, I will at least take offense to the term
11 infiltrated the Prosecution team.
12 Q. Well, okay. I took some liberties there, but you were integrated
13 into it.
14 A. Simply put, Mr. Karnavas, when I was doing my analysis of that as
15 well as all the other intercepts in context, given that the focus of my
16 report was strictly with respect to Srebrenica 1995 and that my analysis
17 was that that particular conversation fell outside of that did not take
18 away from the fact that it was viewed as a powerful piece of evidence,
19 first and foremost with respect to confirming the actual authenticity of
20 the intercepts themselves.
21 Secondly, they're certainly, from a legal and more abstract
22 perspective, perhaps, the phrase where General Krstic is telling them,
23 Major Obrenovic, to kill them all, I suspect from the optics of the Court
24 is very powerful. However, based on that conversation and as I also noted
25 in my testimony, and I believe it was to Judge Wald with that respect, I
1 was not prepared to conclude based on that comment in isolation that the
2 intent behind that conversation was criminal in nature and I held open the
3 possibility that it may very well had nothing to do with the commission of
4 any crimes, given that we don't have any significant crimes with respect
5 to Zepa to my knowledge. And it very much may have been a commander
6 enthusiastically exhorting a subordinate commander to carry out his duty.
7 So that is generally with respect to my perspective of those discussions
8 that had carried on.
9 Now, if you're going to ask my opinion on some of the more legal
10 aspects of that, if you can frame those questions I would be happy to
11 answer them. As it is often noted, I am not a lawyer. And while I am
12 party to many of those debates, I don't get a vote.
13 Q. We're going to stick with this issue for a little bit, if you
14 don't mind. I guess my -- I have to look at part of your answer and what
15 troubles me a little bit is that you seem to imply, if I may use that word
16 since it popped up earlier today, that us Defence lawyers are in the
17 business of coaxing our clients on how to manipulate the evidence in our
18 favour, in other words to put it bluntly and in the pedestrian form, we're
19 in the business of assisting our clients in lying and coming up with
20 excuses. That's how I read your language here, which is why you indicated
21 you did not want to put that matter into your report and why it wasn't
22 going to be used during the case in-chief. What do you say about that?
23 A. I'd say that that would be inaccurate.
24 Q. Well, did you not say that you didn't want the Defence to have a
25 very long opportunity to come up with a well-rehearsed, your words, not
1 mine, answer to what it was?
2 JUDGE LIU: Yes, Mr. McCloskey.
3 MR. McCLOSKEY: That's a misstatement of the evidence. The -- he
4 never said that that was his intent and that's a misstatement.
5 MR. KARNAVAS: All right. I'll go back.
6 JUDGE LIU: You may rephrase your question.
7 MR. KARNAVAS: I'll rephrase, Your Honour. Let me go back and
8 read it. We have the transcript here.
9 Q. One aspect of the debate which you partook in pertained to the
10 fact that "to use it in the case in-chief if I felt that I needed, if I
11 felt that I needed it, meant that at the end of the day, the Defence would
12 have a long opportunity to come up with a well-rehearsed answer to what it
14 Now, at this point, sir, you were an integrated member, by your
15 own words, of this Prosecution team, were you not?
16 A. Yes, sir.
17 Q. And it would appear, at least from reading this, that you were not
18 some independent operator, an independent analyst, but rather a
19 strategist, a member of the strategic team of the office of the
20 Prosecution in which you were going to analyse information and perhaps
21 even put the spin required in order to get the case to where it needed to
22 be to the satisfaction of the Prosecution.
23 A. With respect to your first question, yes, I am an integrated and
24 strategic member of the Prosecution team with that respect. With respect
25 to the second one, I think I worked very hard with respect to my analysis
1 so that it has no spin. I suspect that if I'm remiss in that, you'll
2 point that out. However, my goal as an analyst, certainly as it's been
3 explained to me, and I think in a broader context with all the military
4 analysts that have worked and do work for the Office of the Prosecutor, is
5 that our goal is to try and place the material in as accurate a military
6 context as possible. We trust that collectively as analysts by putting
7 the information out in as accurate and correct a context as possible, that
8 suits the overall needs of the Prosecutor in that respect. I don't know
9 how to make that issue any more clear. I mean, obviously, sometimes it
10 may not suit a specific Prosecutor or lawyer, but that is the general
11 operating philosophy by which certainly the military and then the criminal
12 analysts within the Office of the Prosecutor work.
13 Q. All right. Well, let's dissect that a little bit. First of all,
14 we know that this was a powerful piece of information that was reliable
15 and authentic and that it was relative in the general period of time of
16 the incidents surrounding Srebrenica. Isn't that a fact?
17 A. It was post-Srebrenica, and specifically had to do with issues
18 well after what the Prosecution caps as the end of the Srebrenica crime
19 scene period with respect to direct crimes.
20 Q. Well -- but isn't it a fact that some Muslim men were out in the
21 woods still trying to make their way to what was then known as the free
22 territory. Isn't that a fact?
23 A. Yes, sir.
24 Q. Okay. And so if they were remnants of the members of the
25 Srebrenica municipality that were out there and if General Krstic did
1 indeed -- was ordering one of his commanders in the Zvornik Brigade, which
2 is right at the critical juncture where they're trying to pass into the
3 free territory, and the General is saying, kill whoever you capture, would
4 that not meet some indicia of relevance for this particular case? Yes or
6 A. If in fact he used the phrase "kill whoever you capture," then the
7 answer would be yes.
8 Q. Well, what did he use, what did he say, kill 'em all, right?
9 A. My understanding is that the phrase is, and obviously why the
10 controversy is aimed that way, it's kill them all and I believe he says
11 later on, don't let any of them remain alive.
12 Q. All right and you're not a psychiatrist or a psychologist and
13 neither you're a clairvoyant to know exactly what General Krstic meant at
14 that time if indeed the tape is accurate. But needless to say, it doesn't
15 take a rocket scientist to figure out that that is a vital piece of
16 information that at least the trier of fact, that is the honourable
17 members of this Tribunal should have before them in trying to reach as
18 close as possible to the truth. Isn't that a fact?
19 A. I'm sorry, are we talking about the Krstic or --
20 Q. The Krstic trial.
21 A. As an issue of my report, and given the fact that I could not make
22 any conclusion or even an assessment with respect to any potential
23 criminality in nature, I didn't believe that it was relevant. And as I've
24 always tried to note as part of my analysis, I try to make my analysis
25 with that respect particularly in any issue where the Court might be
1 invited to draw criminal intent, I try to make my analysis as conservative
2 as possible in that respect.
3 Q. All right. So what would the -- what could the harm have been.
4 If you had, exercising your own independence, to have put it into your
5 report with the caveat, with the qualification, that while we have this
6 intercept, which purportedly is authentic and reliable, I do not think it
7 has any relevance in this particular case. And then you go on to give the
8 explanation that you so eloquently gave us just now. What would the harm
9 have been to put that into the report so that at least the Defence lawyers
10 and the Trial Chamber would have notice of this piece of information prior
11 to and during the Prosecution case in-chief?
12 A. Well, my answer would be, if I were to chose to have taken that
13 approach with this particular intercept, then how would I have justified
14 not doing that with hundreds of other intercepts, which arguably would
15 have fit that same criteria and may very well have nothing to do with the
16 issues that I'm discussing. It is a -- so in that respect, I chose to be
18 Q. All right. How many other intercepts, by the way, did you have
19 where you had a live voice on that intercept that could be identified as a
20 commander, a commander of a corps whom you thought and you believe to be
21 at the apex of the criminal line with respect to this joint criminal
22 enterprise? How many?
23 A. In that respect, that would be it.
24 Q. All right. So it wasn't of some lowly soldier or some captain
25 first class or second class, but here we have a general of the Drina
1 Corps. And you're telling us -- you're telling us as you sit here today
2 that you didn't think that that was even worthy of a minor footnote in
3 your report?
4 A. Well, Mr. Karnavas, as I had indicated before the Krstic
5 Trial Chamber in that respect, it again is a reflection of my trying to be
6 as conservative in my analysis as possible. I think I put it quite
7 bluntly, I'm not a charitable person with respect to this. If I thought
8 that it had relevance with respect to commission of criminal acts and if I
9 believed that I could tie it into that, I certainly would have used it.
10 But I did not use it in that context because I could not make those issues
11 of analysis -- I could not draw those conclusions, and I'm not prepared to
12 invite the Court to entertain those inferences if I'm not prepared to be
13 able to substantiate them.
14 Q. But you are making inferences in this case, are you not, based on
15 circumstantial evidence?
16 A. And each one that I make I'm fully prepared to substantiate before
17 the Court.
18 Q. All right. Okay. Well, we'll going to get to that as well. But,
19 I guess I'm still a little troubled. You say it's not relevant, it
20 wasn't worthy to be in your report, yet there was this heated debate, a
21 heated debate within the Prosecution of which you were a member of and in
22 the final analysis or at the end of the day, to borrow your phrase, the
23 decision was: Let's hold this and let's use it in the event the accused
24 dares to exercise his right and testify on his behalf?
25 JUDGE LIU: Yes, Mr. McCloskey.
1 MR. McCLOSKEY: Objection to the form of the question. This talk
2 of daring to use their right to exercise --
3 MR. KARNAVAS: I'll rephrase.
4 JUDGE LIU: There are some problems, Mr. Karnavas.
5 MR. KARNAVAS: I'll rephrase.
6 Q. Wasn't that a major portion of the decision-making process, to
7 withhold that information and then to be able to ambush the accused, in
8 that case General Krstic, in the event he testified? Yes or no?
9 A. My part of the decision was with respect to whether or not it was
10 going to be in my narrative and a part of my testimony. After I had made
11 the decision that this is not something that I considered relevant, I am
12 aware of the discussions that went on after that, and I believe, as I've
13 testified, that the decision was made that this would be something that
14 the Prosecution would hold and would attempt to use against General Krstic
15 if he had testified and if he brought the issue up and made it relevant.
16 Q. All right. Let me ask you this: As a member of that team, given
17 that you've now told us that in spite of it being authentic and reliable,
18 you thought that it was not relevant at all in this case, did you
19 forcefully argue during those debates that under no circumstances should
20 they use this particular intercept which had the voice of none other than
21 General Krstic, if we are to believe, you know, that is his voice? Did
22 you argue against that?
23 A. Let me cut your question into two parts on this one --
24 Q. Give me the short version first. Yes or no, did you argue against
25 it -- and then give your explanation, take your time?
1 A. No, I did not argue against it.
2 Q. All right. Now, give me your explanation.
3 A. First of all, with respect to importance of the case, there are
4 two issues. My particular issue with importance to the case is whether it
5 fell with respect to the Srebrenica crime scenes. Now, again, as part of
6 the intercept authentication process, that is a very powerful piece of
7 evidence, because in the event, as General Krstic indicated that he
8 believed it was a forgery and certainly General Krstic or his Defence from
9 the very beginning had indicated that they do not believe that the
10 intercepts to be valid or reliable, whether this particular intercept fell
11 inside or outside the actual scope of the commission of the crimes, it was
12 a powerful piece of evidence that could be used to, in effect, corroborate
13 some portion of the intercept collection process. Certainly, in that in
14 mind, I was not prepared to argue against the use of that in that context.
15 Q. Could it not also corroborate somewhat the state of mind of the
16 accused, that if he was willing to say such a thing to a young
17 impressionable up-and-coming subordinate who graduated number one in his
18 class and who was the deputy commander of one of the -- the largest
19 brigade, in my understanding, of the Drina Corps? I mean, wouldn't that
20 give us some inkling of his state of mind, and couldn't we then reason
21 backwards and say, well, if this is how he's feeling post-Srebrenica, is
22 it not reasonable to conclude, as we all might, that in all likelihood, he
23 might be entertaining those sorts of thoughts, albeit we are unable to
24 prove it beyond a reasonable doubt because we don't have some other
25 smoking gun. What do you think?
1 A. I think you've highlighted the exact issue that I kind of hinge on
2 from an analyst's perspective, is the fact that as a matter of practice
3 taking material post event and then trying to extrapolate that back to the
4 commission of the crime itself is not exactly a very sound practice. I
5 mean, there's taking pieces of information that occur before and the
6 ability to demonstrate that this is how it was then so you can draw that
7 conclusion. But I don't think as a matter of analytical practice you can
8 take something that happens well after the event and then try to string it
9 back and say, see, this is how it related weeks ago.
10 Q. Even though it's related, because as you indicated, there were
11 still Muslim men out in the woods in the vicinity of where the Zvornik
12 Brigade was located trying to get themselves away from this madness,
13 trying to save their lives. And here was a general telling his major,
14 deputy commander of the Zvornik Brigade, kill them all. That's not some
15 kind of -- there's no nexus, there's no connection, there's no linkage,
16 there's nothing?
17 A. With respect to the issue, if, in fact -- and see, "I have no way
18 of knowing, those small pockets were armed men, whether they were trying
19 to, quote, escape the madness or not, when combat was engaged in those
20 areas, it is legitimate combat." Again, looking at the Zvornik Brigade
21 reports for that period, there's no way I can conclude one way or
22 another -- and in fact, some Zvornik Infantry Brigade reports, post-23
23 July 1995, there is an accounting of prisoners being taken, it makes it
24 even harder for me to conclude that the orders being given on 2 August
25 from General Krstic to Major Obrenovic are, in fact, to execute captured
2 Q. All right.
3 A. So that is the analytical dilemma that I have in trying to get to
4 that conclusion.
5 Q. All right. But nonetheless, going back to what you stated, one
6 part of the debate, one aspect of the debate, dealt with withholding this
7 information from the Defence so they would not have a long opportunity to
8 come up with a well-rehearsed answer to what it was. Right? That's what
9 you said.
10 A. And that, in fact, was part of the debate, yes, sir.
11 Q. Now, where did you fall on that part of the debate? Did you say,
12 wait a second, we have article 20 and 21 of the statute, we have human
13 rights, they're entitled to this information, the Rules of Evidence and
14 Procedure allow us to give the -- for this disclosure, did you make that
15 argument or were you with the camp of let's ambush them? I don't know.
16 JUDGE LIU: Yes, Mr. McCloskey.
17 MR. McCLOSKEY: He's now calling for a legal conclusion by
18 referring to various articles that have not been brought up before. I'm
19 objecting to the form of the question.
20 JUDGE LIU: Mr. Karnavas --.
21 MR. KARNAVAS: I'll rephrase the question.
22 JUDGE LIU: No, no. We still have two questions to you,
23 Mr. Karnavas.
24 MR. KARNAVAS: Yes.
25 JUDGE LIU: The first: Since this matter was mentioned in another
1 case, we allowed you to move on with this line. But at the same time, I
2 believe that you have to remember Rule 70, which is that the preparation
3 of a case is not a subject to be disclosed. I hope you could not go into
4 the very details of the discussions by the Prosecution in their office.
5 Secondly, I believe that you have to establish some linkage
6 between that case to our case, whether it's relevant to our case at this
7 moment, because here we are only dealing with something which is closely
8 relevant to your client and to your case. These are two remarks I would
9 like to mention at this juncture.
10 MR. KARNAVAS: Very well. If I can go briefly and respond, Your
11 Honour. Number one, there is an admission by the gentleman in his
12 testimony that there was this debate and there was this strategy, so I'm
13 not trying to pry into the sanctum sanctorum of the Prosecution, but it
14 does seem to indicate that there was this strategy going on. Number two,
15 it is relevant to our case because we have the same gentleman testifying
16 here. And what I'm trying to demonstrate through this line of questioning
17 that he's not some independent analyst that one would expect as an
18 "expert" coming in, he's a member of the Prosecution team and as part of
19 that member, on a very vital piece of evidence he took a strategic route
20 in order to deprive the Defence of information that ultimately the
21 Prosecution used on rebuttal. Thirdly, it's relevant because it never
22 made it into his report. Now, the reason it never made it into his report
23 is because by putting it in the report, they would have had to disclose
24 it. But -- so that's how I think it's linked, because again if we go back
25 to my questioning of the morning, it is not that I'm attacking anybody
1 individually, but I am prosecuting the Prosecution for the manner in which
2 they've investigated the case, and now as we see, the manner in which
3 they're trying the case. I think it's good defence and at some point I
4 will go into the specifics. But right now, I'm just hitting the general
6 JUDGE LIU: Well, Mr. McCloskey, we are not debating this issue,
7 but if you have any observations, you may raise it.
8 MR. McCLOSKEY: I think Mr. Karnavas has made these points. I
9 think -- have any problem with these points. Judge Wald has very
10 carefully dealt with the issue that the Judge was concerned about, and I
11 think that the points have been made. I have no objection to those points
12 and -- but we now seem to be getting involved in a repetition that is not
13 going anywhere, frankly, and trying to repeat the same points over and
14 over and over again. And that's my only comment.
15 MR. KARNAVAS: I just have --
16 JUDGE LIU: Well, Mr. Karnavas, you may move on, but bear in mind
17 the objections from the Prosecution as well as the remarks from this
19 MR. KARNAVAS: I will, Your Honour.
20 JUDGE LIU: And try to make your cross-examination as concise as
21 possible, because we already get the point.
22 MR. KARNAVAS: I made those points, Your Honour. I just wanted to
23 ask the gentleman in which camp he felt, the ones to disclose or the ones
24 to hide, that's all. So I'll be more direct.
25 Q. Which camp did you fall in during those discussions, the one to
1 disclose or the one to hide? Just as -- so we can know for the record as
2 the independent military analyst in this case.
3 A. I believe, if I recall correctly, once I was making the decision,
4 I had made the decision that it wasn't relevant for me, I sat on the fence
5 and watched what was a fascinating legal argument between the common-law
6 people and the civil law people as to where it should place. And that is
7 what I did with it.
8 Q. All right. Correct me if I'm wrong, just a follow-up question on
9 this, if you're an independent military analyst and you're in charge of
10 writing your report as objectively as possible and without any undue
11 influence, would not the final call be yours to make -- to put it in, at
12 least in the -- to err on the -- to err on a liberal side, in other words,
13 put it out there with the caveat and let the parties at least be aware of
15 A. Actually, Mr. Karnavas, once I made the decision not to use it,
16 that it wasn't relevant, I expected that had I tried to include it for any
17 reason, it would be perceived by all parties as me taking an unwarranted
18 and unfair shot at the accused.
19 Q. Okay. All right. But you didn't -- felt that once the
20 Prosecution, your team, decided to use that in trial anyway?
21 A. My understanding was once the decision was made, they were going
22 to use it in cross-examination, again, a fascinating legal argument
23 developed around -- that they would be able to use it as a vehicle to
24 impeach the testimony of General Krstic with respect to his truthfulness
25 before the Court on having the conversation as well as to his analysis as
1 to the reliability of the intercepts.
2 Q. All right.
3 A. Those were -- and I said, fascinating discussions to be a party of
4 and to listen to, but as someone who did not go to law school and is not
5 versed in the differences between common law and legal law, that's where
6 it's at. It was a fascinating discussion but nothing that I was a party
7 to comment on.
8 Q. All right. But of course you can understand others may take the
9 other viewpoint that this was a means by which you particularly, and I'm
10 speaking, Mr. Butler, you were trying to hide that information from the
11 Defence and from the Trial Chamber. And I'm not saying this -- that you
12 had some nefarious state of mind, but nonetheless the flip side to that
13 could be that maybe you were trying to hide that evidence because that is
14 what your handlers, if I can use that word, that is, the Prosecutors who
15 were prosecuting the case, were instructing you to do. That could be a
16 reasonable conclusion, too, could it not?
17 A. I suspect that an individual could make that a reasonable
19 Q. All right. Now, just very briefly, I know there's a science
20 between military intelligence analysis, but if I could go with some of
21 these concepts and tell me whether I'm in the right frame of mind and
22 perhaps if we can get on the same wave channel we could get through the
23 material for the rest of the week. I take it, it's the primary goal of
24 military intelligence analysis to ultimately conclude or predict the
25 probable actions or courses of actions that a foreign military or other
1 collective body of persons on the battlefield would take under certain
2 circumstances. This is military intelligence analysis, where things are
4 A. That is correct. I mean, the whole focus of military intelligence
5 analysis is, in fact, that it is designed to be predictive in nature.
6 Q. Right. Okay. And do not these conclusions require that the
7 analyst maintain an objective, unbiased, and perhaps just as importantly,
8 an open-minded approach in the course of that analysis?
9 A. Yes, sir, that's true.
10 Q. Okay. I mean, in fact, you could say that as a general principle
11 for anybody who's analysing anything, if they intend to be an objective
12 and an honest broker, so to speak, honest intelligence -- honest analyst.
14 A. Yes, sir, that's correct.
15 Q. All right. Now, would you agree with me that you -- what you were
16 producing for this particular Tribunal is not necessarily an intelligence
17 analysis, but closer to what would be called perhaps in your parlance a
18 historical military analysis?
19 A. That is correct, sir.
20 Q. And of course that's vital because folks like you analyse a
21 situation that has just occurred and, given those skills and tools you
22 acquire through that process perhaps at a later point you may be faced in
23 a situation where you may actually be doing military intelligence
24 analysis, and you can draw from those experiences and tools that you have.
1 A. Well, in this particular instance, it's a seven-year period and
2 it's just a continuing analysis of the events that occurred with respect
3 to the military.
4 Q. Okay. Now -- sticking now with the historical military analysis.
5 Are the techniques of military historical analysis similar to intelligence
6 analysis, in that many of the analytical techniques are the same or
7 similar, and the goal is to support a sound conclusion but this time of
8 the completed actions of military units and/or of personnel?
9 A. I'm not sure in this perspective that works. I think you're kind
10 of mixing the analytical metaphors between predictive analysis with
11 respect to supporting a course or courses of action.
12 Q. Okay.
13 A. And something which this, I consider is a much more broad
14 contextual research. I'm not looking to specifically support any
15 particular issue. I'm just kind of looking to lay out the context in as
16 broad a complete framework as I can.
17 Q. All right. Maybe I'm just not phrasing the question correctly,
18 because I guess what I really want to say is: Does not your analysis,
19 yours being in this historical military context that you're doing, require
20 you to maintain an objective, unbiased, and open-minded approach in the
21 course of arriving at your conclusions?
22 A. Yes, sir, it does.
23 Q. If an unbiased analyst is attempting to document accurate, sound
24 conclusions so that a consumer, such as us, for example a decision maker,
25 trier of fact, can make an informed judgement. Is it wise or is it
1 ethical to sort of slant or withhold -- to slant analysis or withhold
2 potentially interesting, vital, relevant, authentic, and reliable
4 MR. McCLOSKEY: Objection --
5 JUDGE LIU: Yes.
6 MR. McCLOSKEY: There's no foundation for that. If he wants to
7 talk to the Prosecution, Mr. Butler -- there has to be a foundation, a
8 factual foundation for him to ask a question. He's asking it to the wrong
10 JUDGE LIU: And another thing, Mr. Karnavas, your question is too
11 complicated. There are subjects to many, many interpretations from your
12 question. Try to make your question as concise as possible.
13 MR. KARNAVAS: All right. Thank you, Your Honour.
14 Q. Well, just to rephrase it slightly: If you're going to -- if one,
15 not you in particular, but if an analyst is going to attempt to create an
16 accurate and sound conclusion, in other words, he's going to act as an
17 unbiased analyst, you would agree with me, would you not, that you would
18 produce your work in a manner in which the decision maker would be in a
19 position of actually discriminating what information they should give way
20 to and what information they should not?
21 A. That is correct, sir. Yes.
22 Q. Okay. And I take it, also as part of that analysis, you would
23 want to make sure that in your presentation of your analysis, it is not
24 slanted in one way or the other. In other words, there is no inherent
25 bias, be it, you know, be it direct or indirect, intentional or
2 A. Well, Mr. Karnavas, with respect to my own personal feelings and
3 opinions, I try to keep them out as much as possible. However, with
4 respect to bias, the one issue analytically speaking that remains out
5 there is the fact that as -- myself personally as an analyst, and all
6 analysts engaged in this field, we are limited to the amounts and types of
7 information that we have available to us at the time. So if there is, in
8 fact, a bias in one direction or another, it may very well be, in fact,
9 because a lack of information. But as to your initial issue, I try as
10 much as possible to keep any personal feelings or opinions out of the
11 context of my report. And only when invited by either the Prosecution or
12 you or the Trial Chamber will I make a subjective assessment as to a
13 conclusion on that basis.
14 Q. All right. Okay. Now, let's switch to another topic. I want to
15 talk a little bit about the intercepts in the general -- in a general
16 sense and see if you would agree with me a little bit before we can
17 actually get to the specifics. As I understand it, the intercepts were
18 collected on or about 1998. Is that correct?
19 A. The -- through 1998, there were a series of missions to my
20 recollection where starting perhaps in December of 1997, first the -- what
21 we call the spreadsheets or the dot matrix printout versions of the
22 intercepts were collected, subsequently the notebooks, subsequently some
23 of the audiotapes. And I believe through the course of 1999 and 2000,
24 there were other missions which identified and collected either other
25 notebooks or other intercept-related data. So it was, I believe, it was
1 almost a two-year process in that respect.
2 Q. Okay. And as I understand it, there was even what they call the
3 intercept project?
4 A. Yes, sir, it was.
5 Q. Now, is that just for this particular case or is that sort of a
6 project that exists for other cases? I don't want to go into specifics,
7 but just merely to know the availability of resources in case you need to
8 pull off some folks from one project, from one case, to put them on
9 another because of expedited needs?
10 A. With this respect, the intercept project, I believe the
11 investigation team for Srebrenica essentially put together the prototype
12 project. It was a team and case-specific project with respect to the ABiH
13 2 Corps and MUP-related intercepts and notebook. So in that respect, the
14 resources that they were able to put into that remained into it for almost
15 all the duration.
16 Q. Okay. And as I understand it Stephanie Frease was in charge of
17 that project, and she, like you, was an integrated member of the
18 Prosecution team?
19 A. Yes, sir, she was.
20 Q. All right. Now, did you, by any chance, have some sort of role in
21 determining the time frame as to when these intercepts would ultimately be
23 A. No. The intent of the team was that once we had designated July
24 the 1995, the series of intercepts, first for organising and indexing and
25 then ultimately for translation, we understood that we were trying to get
1 them through as rapidly as possible, given the volume of the material in
2 question. My issue with respect to time was that I had my report
3 deadlines coming up, as was indicated by the Court, and my concern was I
4 did not want to be in a position where I was reviewing intercepts or days
5 of intercepts in isolation. As a matter of practice, what I wanted to be
6 able to do was examine the entire block of intercepts over the time, you
7 know, when I looked at it for the first time, so I would not get in a
8 position where some things might jump out of context or things of that
9 nature. So for me, that was my concern, that we would have the entire
10 month done in the required time for me to analyse them.
11 Q. All right. And so -- and I understand you testified to this a
12 little bit in the Krstic trial on your rebuttal. As far as I understand,
13 you did not -- you were concerned not to fall into what you called an
14 analysis trap by - and I think you just described that - by jumping to the
15 conclusion with just some of the intercepts while not having the batch for
16 the July intercepts all available for you to read, dissect, integrate,
17 collate, in order to weave your fabric, which ultimately became the
18 narrative. Correct?
19 A. In technical terms we call it analyse and synthesise.
20 Q. Okay. And so, but correct me if I'm wrong, we're talking about
21 one specific month, July 1995. And if we really want to be precise, as
22 you noted, anything after the 23rd was not even relevant. So we're not
23 even talking about the entire month of July, but more or less three weeks
24 at best. Correct?
25 A. That is correct, sir.
1 Q. Now, I take it -- well, let me ask you this: On the pecking
2 order, on the order of hierarchy, were you above Ms. Frease, were you
3 equals, were you parallel, were you on a different rug? How --
4 A. No, we were equals and for the most part we were normally engaged
5 in related but separate projects. Her background being more on the
6 political side, and of course mine being on the military side.
7 Q. Okay. She would focus on the intercepts and sometimes when need
8 be, she would actually be in the field interviewing -- or assisting in the
9 interviewing of those witnesses dealing with intercepts. And you on the
10 other hand would also be in the field assisting at time, and we'll be
11 getting to that, when certain military officials were being interviewed or
12 other witnesses being interviewed that you deemed important enough to
13 warrant your presence and assistance in the field. Right?
14 A. Yes, however, again, it wasn't ultimately my decision on when to
15 go or when not to go. A lot of it were functions of budget and other
17 Q. Okay. But you were ordered. It wasn't like the military, like
18 you got your order and you packed up and left whether you wanted or not to
19 go to the field?
20 A. In some cases I had more flexibility than being in the army, but
22 Q. Okay. I take it then that that was accomplished. In other words,
23 you had the July intercepts transcribed and translated and available for
24 you, all of them pertaining to Srebrenica, before and during your, was it,
25 analysis and -- analysing and synthesising, that was the term you used?
1 A. Yes, sir, that's the term.
2 Q. So you had all of that available?
3 A. No, sir.
4 Q. You did not. Well, is there a particular explanation?
5 A. Yes. In I believe it would be October or November of 2000 after
6 my initial testimony, it is my understanding that the investigation team
7 came across another approximately 20-ish notebooks, some of them which
8 contained intercepts during that period, we integrated those into the
9 process, and I believe certainly during the rebuttal case, I brought one
10 or two of them up and I believe that the Defence brought several of them
11 up as well. So in that context, because we did not physically have those
12 in the office of the Prosecution, I did not include them in my contextual
14 Q. Okay. Because it was too late?
15 A. It was after I had testified.
16 Q. Testified in direct?
17 A. In direct.
18 Q. But I take it on rebuttal you had the opportunity as we see on one
19 occasion --
20 A. Yes, sir. Those issues were raised in the rebuttal case because
21 they were considered to be something of relevance.
22 Q. Okay. As I understand it from one of the corrections that you
23 made on Friday, one particular intercept was helpful in you reaching a
24 rather different conclusion than you had held previously with respect to
25 one particular intercept which uses the phrase "up there." Is that
2 A. Yes, sir.
3 Q. All right. We're going to get to that, but first I want to
4 discuss this concept of this linguistic nuances of up there. As I
5 understand it, Stephanie Frease was fluent in B/C/S. Is that correct?
6 A. She spoke it quite well, whether it was fluent or not --
7 Q. We'll we can get to her transcript. She did indicate she was
8 quite well knowledgeable in the language. But she's not a native speaker,
9 is she?
10 A. I don't know the background of where she learned the language.
11 Q. She's not from the former Yugoslavia?
12 A. No, she's American.
13 Q. She is a foreigner that has who learned another language?
14 A. Yes, sir.
15 Q. Okay. But I take it behind her there were a group of people that
16 were native B/C/S speakers, Bosnian, Serb -- Serbian and Croatian
17 speakers. Right?
18 A. Yes, sir.
19 Q. All right. And I take it it was these folks that you were relying
20 on in translating these intercepts. Correct?
21 A. That is correct, sir.
22 Q. Now, once you received that translation, help me out here, was it
23 your practice to perhaps sit down with a -- one of the -- I believe you
24 guys called them language assistants, one of the language assistants to
25 help you out in trying to figure out what -- any linguistic nuances that
1 might be relevant in interpreting a particular conversation?
2 A. Just to be clear on the issue, translators and language assistants
3 are two different classes of people.
4 Q. Well, help us out there.
5 A. The people that we work with are translators, they are the people
6 who work with CLSS doing the final translations. Language assistants are
7 individuals who have a working knowledge of the language but are not
8 certified. That's why I just want to me you clear when we do these
9 issues, these issues are discussed with the translators and ultimately
10 with the revisers, not with language assistants.
11 Q. Okay, well, thank you for correcting me. I actually didn't know
12 that. And I hope I didn't sleight anybody. I take it from your answer
13 you had the cream of the cream, because you said that you've got language
14 assistants, you've got translators, and now you took the ones that did the
15 polishing up assisting you when need be in interpreting any linguistic
16 nuances that might be in intercepts. Correct?
17 A. We did the best we could and I had access to those, yes, sir.
18 Q. All right. Okay. Well, I'm rather curious. On this particular
19 intercept, which has gotten so much attention at the Krstic trial and, of
20 course, is getting some attention in this particular case, I would expect
21 that this was an intercept that must have been highly analysed and debated
22 back in the sanctum sanctorum of the Prosecution office right across the
24 MR. McCLOSKEY: Your Honour, I'm going to object. It appears
25 we're going beyond Judge Wald's questions, which I thought were
1 appropriate, into the analysis of the team regarding the specific
2 intercepts. Mr. Butler's here to speak to his analysis. But the analysis
3 of the team, I believe, is not appropriate on the Rule 70 grounds you had
5 JUDGE LIU: Well, Mr. Karnavas, we don't think that question is
6 pertinent to this issue.
7 MR. KARNAVAS: If I may, Your Honour, just one second. It took
8 Mr. Manovic all of 30 seconds to figure out that up there does not mean
10 JUDGE LIU: Well --
11 MR. KARNAVAS: So, I'm wondering how it is, you know, whether this
12 gentleman -- I want to ask him, did he ask his language assistants with
13 respect to that particular phrase --
14 JUDGE LIU: You could directly ask this question to this witness.
15 MR. KARNAVAS: Well, I wanted to lay some background into that to
16 make sure I had a solid foundation.
17 JUDGE LIU: Well, I think I already know that's your point. You
18 just ask this question to this witness to save some time.
19 MR. KARNAVAS: Okay.
20 Q. Did you recall asking a language -- or a translator, interpreter,
21 to assist you in analysing this phrase "up there," if you recall?
22 A. I believe when we did the analysis of that particular phrase,
23 the -- and I don't believe I discussed it specifically with a translator,
24 my thought process was knowing that the general -- in the way that they
25 talk with respect to up and down, my understanding, generally confirmed by
1 my discussions with a number of the people that lived there, is that they
2 will use the phrase up and down to describe the differences between the
3 area known as upper Podrinje which is the area from Zepa and Gorazde and
4 lower Prodinje which is the normal area from Vlasinica towards Zvornik.
5 And that was -- generally when I look at the phrase up and down with
6 respect to locations, that is one of the key things that I use. Now, the
7 second piece with respect to up and down is, in fact, north and south.
8 And in this particular context, I believe that the up there was in
9 reference to north. It did not occur until I understood Mr. Obrenovic had
10 discussed the issue that I had recognised that a third context from up and
11 down could, in fact, be from the valley floor at the Drina River being
12 down and the mountains in that area or the hills being referred to as up.
13 In retrospect, this is a perfectly valid contextual analysis on that one.
14 Q. All right. I guess my question is, based on your answer, it would
15 seem that at least, given that you didn't know the language -- I'm
16 assuming that you're not fluent, but you did, in fact, recognise that
17 there were two potential different interpretations. And then you came to
18 learn later on that there was a third one. As an analyst, should you not
19 have at least consulted and tried to figure out with one of the native
20 speakers and see what they could, if it were possible, to guide you
21 through this process so at least you could say, well, you know, I don't
22 know exactly, they could be referring to this. They could be referring to
23 that, instead of, this is what I think they're talking about.
24 A. Well, in this respect, given the other intercepts that we had
25 locating Colonel Popovic in Pilica at the time, I believe that it was a
1 relatively straightforward analysis, and therefore I didn't.
2 Q. All right. But this particular intercept -- and we're going to
3 dissect it. We're going to have to do some dissecting on this one too.
4 This one, was it not critical in the Krstic case with respect to the
5 massacre that took place in Branjevo Farm, at least with respect to one
6 aspect of that?
7 A. It was critical -- or I won't say critical, but it was important
8 insomuch as one of the themes in the Krstic case was that General Krstic
9 at the time had no knowledge of the commission of any of the crimes. And
10 from that respect, a conversation occurring between Lieutenant Colonel
11 Popovic and a member of the Drina Corps op centre discussing in part the
12 commission of criminal acts was for me an important piece of inferential
13 information, because as I conclude on a number of issues, if the Drina
14 Corps op centre is aware of this issue, then it's -- logically assume that
15 the commander should be as well.
16 Q. All right. Now I just want to touch on that a little bit. There
17 is one aspect of this intercept which I think does not require such
18 detailed analysis to come to a conclusion that Popovic, who's from the
19 Drina Corps, was referring to certain events, which were criminal in
20 nature. Correct?
21 A. I believe that's correct.
22 Q. But if we look at that intercept, it becomes clear that there is
23 another reference to up there, and that deals with the Bratunac Brigade.
25 A. That is correct.
1 Q. And that's what I'm trying to focus on. Because wasn't that a
2 fact in the Krstic case -- and I'm not talking about what the Defence was
3 trying to do. I'm talking about what the Prosecution and you were trying
4 to establish, that through this particular piece of intercept, you could
5 connect the Bratunac Brigade as follows: You have the testimony of
6 Erdemovic, which he says men from Bratunac, and incidentally this is why I
7 know there was no nefarious attempt on your part to mislead the Trial
8 Chamber, but we had that, but you could never get Erdemovic to say
9 brigade, and that was a question mark. And now all of a sudden you have
10 this intercept and this intercept, if we give it the interpretation that
11 you chose, would then lead us to believe that the men that came late, what
12 we're referring to is when the man from the Bratunac came around 1.00 or
13 2.00 later in the midmorning, after the killings had already begun.
15 A. Those two pieces of information, that is correct.
16 Q. Okay. So you weave those two pieces of information, and then you
17 can begin at least -- and I'm not saying that that was the definitive
18 piece of the puzzle, but it was one additional piece of confirmation in
19 your mind which would assist you later to argue that those men that
20 Erdemovic had talked about from Bratunac were, in fact, from the Bratunac
21 Brigade. Correct?
22 A. From those two pieces, that those were the conclusions I drew.
23 Q. Okay. And part of that conclusion was based on your
24 interpretation of the phrase "up there" in the contextual form that you
25 gave it, even though you knew that there was at least one other
1 possibility, and even though you did not speak the language, you never
2 made a genuine -- well, maybe that's too strong a word, an effort to get
3 some guidance as to whether up there could have a different meaning, thus
4 giving the trier of fact an option to reach a different conclusion from
5 the one that you had reached?
6 MR. McCLOSKEY: Objection, compound.
7 JUDGE LIU: Yes.
8 MR. McCLOSKEY: That's indecipherable, I think.
9 MR. KARNAVAS: I think Mr. Butler is an extremely intelligent man
10 and I know he's following me and he's reading the transcript as it comes.
11 JUDGE LIU: Well, Mr. Karnavas, the important thing is for us to
13 MR. KARNAVAS: I apologise, Your Honour. I truly apologise. Am I
14 getting a cue that I was unintelligible at this point?
15 Q. Can you answer the question?
16 A. Yes, I can answer the question. In this respect, given my
17 understanding of the context at the time, I certainly was willing to rule
18 out that Colonel Popovic was somewhere in upper Podrinje, and again
19 coupling that with other known facts that he was in Pilica during the day,
20 I believe that the fair language meaning of that led me to the conclusion
21 that when they said "up there," up there was Pilica.
22 Q. Okay. But again, the implication -- what I'm saying here is that
23 you understood at that time -- you had enough sense of the language to
24 know that there were two different interpretations. And my question is:
25 As an analyst, would it not have been prudent to have at least entertained
1 the other interpretation through the use of a highly qualified native
2 speaker in order to get at least another opinion? Could that not have
3 been prudent?
4 A. To be fair, Mr. Karnavas, I can't tell you that I didn't do that.
5 Q. Okay.
6 A. I may very well have, I just don't remember that.
7 Q. Okay. And I guess if you did, you could not be in -- you would
8 not be a position today to explain to us how it is that Mr. Obrenovic was
9 able to fill in the third option and your language assistant was incapable
10 or not able to come up with a different interpretation that would have,
11 that would have, at least with respect to one particular massacre, have
12 been extremely exculpatory with respect to one individual.
13 MR. McCLOSKEY: Objection.
14 JUDGE LIU: Yes.
15 MR. McCLOSKEY: That is compound and clearly an argument. I don't
16 see that as a question.
17 MR. KARNAVAS: It is exculpatory, Your Honour. It's exculpatory
18 to Colonel Blagojevic, because they didn't have that piece of the
19 puzzle. It's only after Obrenovic --
20 MR. McCLOSKEY: Your Honour, I would love to argue this case but
21 these are arguments, these are not questions.
22 JUDGE LIU: Well, Mr. Karnavas, I think it's almost time for a
23 break. You might think over your question when we come back.
24 MR. KARNAVAS: I will, Your Honour.
25 JUDGE LIU: Yes.
1 MR. KARNAVAS: Thank you. We'll make a break and we'll resume at
3 --- Recess taken at 11.59 a.m.
4 --- On resuming at 12.31 p.m.
5 JUDGE LIU: Mr. Karnavas, I believe that during the break you have
6 already been thinking of the rephrasing of your question.
7 MR. KARNAVAS: Actually, Your Honour -- well, I did do some
8 thinking and I think that I've made my point on that issue. So I'm going
9 to veer off to a slightly different course but continue in the same vein.
10 And I want to apologise to the interpreters for speaking too fast. I
11 understand we have been making it rather difficult for them and Mr. Butler
12 and I will agree to speak a little bit slower.
13 Q. Now, Mr. Butler, focusing your attention back to your testimony on
14 Friday, I want to, again, go back to the question posed to you by the
15 Prosecutor with respect to this additional intercept that you became aware
16 of. The question was, and I'm reading from page 76, it starts with line
17 9, it says: "Now, do you have an intercept that you now incorporated into
18 your analysis of this last part that you were not aware of at the Krstic
20 And your answer was: "Yes."
21 My question is: Was it that you were not aware of its existence
22 because it had yet to be discovered at the time that you were preparing
23 your report and testifying in Krstic, or were you not aware of it because
24 it had not been translated?
25 A. If I recall correctly, that particular intercept was part of the,
1 I believe, series of 27 or so books that were obtained in December, which
2 would have been at the end of the Prosecution's direct case and moving on
3 to the Defence case. I don't believe that I saw a translation of that
4 particular intercept or series of -- basically it was a synopsis intercept
5 during the rebuttal -- during the Defence case. And then professionally
6 during the rebuttal case, I was already working on another case. So I was
7 not following the Krstic material day-to-day. So certainly during the
8 direct case and then during the cross-examination case, or the Krstic
9 case, I don't recall seeing that particular document. I am aware that
10 there was a translation available sometime during the rebuttal, I believe.
11 Q. All right. I take it you would be able to go back, you or the
12 Prosecutor, would be able through the records and identify whether that
13 was indeed one of the late batches that was discovered during the course
14 of the investigation of this case. And I take it there is some means of
15 keeping track when something is seized and --
16 A. I believe all that work has been done because that was an open
17 issue in the Krstic appeal. I don't know whether you have access to that,
18 but I know all that research was, in fact, done.
19 Q. Okay. Now, another question in the same mind, who is it charge
20 of prioritising or, if I could use this term discriminating, which
21 intercepts would get translated first and which, for instance, would get
22 translated at a later date and which intercepts may never ever get
23 translated, lest there be an interest on the part of the Defence, that is?
24 A. With respect to the initial batch of intercepts, the decision,
25 partly as a recommendation from myself, Ms. Frease, and others who would
1 be involved in the process and knowing the volume of work that had to be
2 done, our recommendation to the trial team was that our priority of effort
3 focus initially from 10 July 1995 to approximately 22 July 1995, which
4 would correspond with the actual content of the crimes that are charged
5 with respect to General Krstic at the time. There was then a secondary
6 decision that once that was done from 23 July to the end of the month, and
7 then as resources were available at the other end, from 1 July to 10 July.
8 That is the recommendation that we made to the trial team, and I believe
9 that it was accepted by them.
10 Q. All right. Okay. Now, did you give priority to, say, intercepts
11 where there were actual conversations and perhaps less interest to
12 synopsis or summaries of a conversation, or was it depending on content
14 A. No, sir, I believe the phrase was all.
15 Q. All, okay. Well, I want to show you what has been marked as --
16 initially it was a Prosecution exhibit, P255/A and P255/D. We can put it
17 on the ELMO. And actually, for the record, 255/A is the English version
18 and 255/D is the typewritten version in B/C/S. If you could just look at
19 that first. I would assume that you've seen this document, have you not?
20 A. Yes, sir, it does look familiar to me.
21 Q. Okay. Now, if you could go to 255/D, and if we could put that on
22 the ELMO, even though we don't read B/C/S, I think we might be able to
23 glean something from this document. It seems, does it not, that portions
24 are crossed off while one is boarded out so the text is -- stands out. Do
25 you see that?
1 A. Yes, sir, I do.
2 Q. And I think if we went to the translated version and we looked at
3 certain data, such as the time, the participants, even if we did not speak
4 B/C/S, I think we could conclude, could we not, that these are the two --
5 the same documents, one in English, the other one in B/C/S?
6 A. That's a fair conclusion. That's fine, sir.
7 Q. All right. Now, if I could share with you what was brought into
8 this court before your testimony what has been marked for identification
9 purposes as D75/1 and D76/1. Now, if you could just look at the pages
10 first and you will note that there's a P255/F. And if you go to the
11 second page of that, you'll see some handwritten text in B/C/S. If you
12 look at that and then you can place it on the ELMO, if you would.
13 Now, if you were to compare the English version with that
14 handwritten text, at least with respect to the numbers, the hours and the
15 names, it would appear, would it not, the name Blagojevic stands out as
16 one of the names?
17 A. Yes, sir.
18 Q. Okay. And then if you were to go to the -- if we were to go to
19 255/D, the one that we already looked at, and again compare the English
20 version -- or D76/1, we see that now the handwritten version in B/C/S is
21 typewritten, typed out, in B/C/S.
22 A. Yes, sir.
23 Q. All right. Now, help me out here, if we look at -- and it becomes
24 a little bit more legible, I think, if we look at -- if we compare the two
25 documents of P255/D that you have, if you look at that, does it not appear
1 that this particular synopsis comes immediately after the one that was
2 blocked out and not crossed out?
3 A. Yes, sir, it does.
4 Q. Okay. And if we were to read this document that has been
5 translated, the one that was crossed out and not translated by the Office
6 of the Prosecution, rather, it was translated by the Defence, if we were
7 to look at it, do you see any information that would have been helpful to
8 you in the contextual aspect of trying to determine Bratunac Brigade
9 soldiers being sent towards Zvornik?
10 A. Yes, sir.
11 Q. Okay. Now, in this instance, would it be fair to conclude that
12 someone - and I'm not suggesting it was you - but someone made a choice,
13 the choice was to translate one portion and exclude another portion.
15 A. I'm not sure I could draw that inference, and I suspect that the
16 answer why this particular conversation wasn't translated initially had
17 something to do with the criteria by which we wanted material sorted and
19 Q. Okay. Well, it wasn't translated --
20 A. I suspect that initially --
21 Q. Full stop. It wasn't translated. We translated it. And if we
22 look at the two intercepts side by side, one which appears to be a part of
23 a conversation, while the other one seems to be a synopsis, although with
24 some evidence or some information that you believe, based on your just
25 testimony, to be relevant in nature, if we were to compare those two, can
1 we not reach the conclusion that the one that was translated by the Office
2 of the Prosecution is helpful to their case, while the other one, which is
3 immediately below and which would be exculpatory in some sense or at least
4 informative, particularly to a very relevant aspect of this case, was not
6 A. That is one interpretation. I'm not sure that it's the correct
8 Q. Well, one was translated that was helpful to the Prosecution. And
9 the one to the Defence was crossed out and not translated. So I guess
10 what you're suggesting is you don't have an answer?
11 A. No, actually I think I do.
12 Q. Okay. Please tell me why this information which I believe --
13 well, strike -- let me withdraw that. Please explain why this information
14 which was translated by the Defence and which you find to be helpful, in
15 particular to the other intercept, the one that we are in dispute over,
16 the up there, and whether Bratunac Brigade soldiers participated in the
17 Branjevo Farm massacre, why that piece of information, which is
18 exculpatory in nature, which is immediately below the one the Prosecution
19 translated, and which visibly has the name Blagojevic on it, why that
20 wasn't translated?
21 A. Well, I think with respect to the timing of the project, the
22 initial decision on translating the intercepts, one of the decisions that
23 we made in order to try and ensure that what we were doing was, in fact,
24 translating authentic material, was the decision was made that the first
25 translations would be and certainly any evidence that was going to be
1 adduced before the Krstic Trial Chamber was -- had to have been from
2 notebooks. As I believe I've testified prior, I don't -- with respect to
3 just the printouts, the fact that a data is on a printout doesn't mean
4 it's an authentic piece of material.
5 With respect to your second question, while I can recall seeing
6 this in a draft translated form, perhaps the reason why it's not included
7 is that from my perspective, there is a better intercept that's more
8 complete, which is the notebook version of what we call P258 which is the
9 actual synopsis of the conversation which indicates when Colonel
10 Blagojevic's troops arrived.
11 Q. Let me stop you there. Are you telling me today, because I need
12 to know this, that this piece of information was actually translated by
13 the OTP and it wasn't discovered and disclosed to the Defence?
14 A. I seem to recall seeing this piece of information in some of our
15 working drafts. I suspect that if this material is out there, it has been
17 Q. What if I were to tell you that I had to have it translated
18 because it wasn't translated by the Office of the Prosecution?
19 A. That wouldn't --
20 Q. That wouldn't surprise you?
21 A. That wouldn't surprise me.
22 Q. Okay, now you said -- you mentioned the word authentic, and that
23 piqued my interest immediately. Because you said one of the indicia it
24 would have to come from a notebook?
25 A. In the initial stages, yes.
1 Q. In the initial stages. Well, it just so happened I anticipated
2 that response because here I provided you both the handwritten version
3 which matches, low and behold, the typewritten version in B/C/S. So can
4 we conclude, at least with this particular intercept, which came from a
5 notebook, which was in the possession of the Prosecution, is indeed
7 A. Yes, sir, I would conclude that.
8 Q. Okay. Now, I understand your position and I understand that you
9 were not the one making all of these decisions, because obviously you
10 don't read the language and you are handicapped in relying on others to
11 follow your instructions or the decisions. However, in looking at this,
12 just gleaning just at this piece of information that we just discussed,
13 does it not appear, at least, that in some ways, some evidence that would
14 have been helpful to you was actually available to you; it simply wasn't
15 made available to you because somebody in your own team chose not to have
16 it translated for you?
17 MR. McCLOSKEY: Objection.
18 JUDGE LIU: Yes.
19 MR. McCLOSKEY: That assumes a fact and not an evidence, that
20 somebody specifically chose this not to translate. We clearly didn't
21 translate everything, but if he's going to make accusations like that he
22 has to have foundation. The implication is obvious. He's trying to pick
23 on our interpreter, which is absurd.
24 MR. KARNAVAS: All right. Let me clarify it. Let me clarify it.
25 Q. From looking at this document, it's obvious one follows the other.
2 A. That is correct, sir.
3 Q. From looking at this document, one was highlighted and the other
4 one was crossed out. Right?
5 A. Yes, sir.
6 Q. Now, I would assume that one would not cross intercepts without at
7 least reading them to see whether they're relevant to the issue at hand.
9 A. Well, Mr. Karnavas, just to be accurate on this document, I don't
10 have cross-out versions of this. The cross-outs that exist on these
11 versions, as I understand the translation process, are only with respect
12 to the process themselves. So when the draft translations are sent for
13 final revision, that the translators know exactly which one to focus on
14 and aren't doing the wrong job.
15 Q. Okay.
16 A. So these cross-outs are not for my benefit or exclusion, they are
17 a strict translation process.
18 MR. KARNAVAS: All right.
19 THE WITNESS: Your Honour, just to clarify that, for the same
20 reason so the exhibits can be made clear which ones are relevant at the
21 time, the bottom and the top were crossed out so it was clear which of the
22 B/C/S exhibits the Court could focus on. That's what's going on here.
23 This is not some nefarious crossing out going on.
24 JUDGE LIU: Well, maybe --
25 MR. KARNAVAS: Your Honour, I believe --
1 JUDGE LIU: Maybe that's the suspicions that the Defence counsel
3 MR. KARNAVAS:
4 Q. In looking at this document, the way it was presented to us from
5 the Prosecution in the crossed-out form, would it not leave one with an
6 impression that someone chose to focus on one and disregard the other?
7 MR. McCLOSKEY: Objection to relevance, Your Honour. That is an
8 argument he may make. The Court asked, but there is no relevance for
9 Mr. Butler to make that unfounded speculation at this point.
10 MR. KARNAVAS: Your Honour --
11 JUDGE LIU: Well, Mr. Butler has already answered that question.
12 MR. KARNAVAS: Very well, Your Honour.
13 JUDGE LIU: It's for the interpretation.
14 MR. KARNAVAS: Very well. I'll move on, Your Honour.
15 Q. Now, you indicated that there was one new piece of information,
16 this new intercept, that was able to assist you in overcoming a fixed
17 position that you had initially reached during your analysis, and I'm
18 paraphrasing. Correct?
19 A. To be accurate, I'm an analyst. I don't have fixed positions.
20 Q. Okay.
21 A. I am always, as a function of my trade, as new data or new
22 information comes in, I put it where it belongs in context. So I don't
23 have fixed positions on anything.
24 Q. All right. Well, the follow-up question where -- that we were --
25 going back to your testimony on Friday, you were asked, page 76, now I'm
1 reading from line 13: "But before we get to it, can you tell me
2 initially, what was the issue related to the arrival of Blagojevic's men?"
3 That was the question. Here is your answer: "That view initially
4 migrated over several years with respect to my analysis of the situation.
5 Based on Erdemovic's statement and testimony at his own trial as well as
6 the documents that we received from the Bratunac Brigade, my initial
7 conclusion" - and I underscore initial - "my initial conclusion was that
8 these people were probably from the Bratunac Brigade. As a following
9 series of that investigation continued, the investigation was able to
10 identify an individual who was known to be a member of the Panteri unit
11 from the East Bosnia Corps and who were in Bratunac in July 1995. And I
12 believe that has been brought to this Court's attention. When that part
13 of the information became available and I was able to analyse it and
14 synthesise it in the context of the Krstic trial, I testified to that
15 effect during the rebuttal case of the Prosecution where I noted that my
16 position on that had changed based on new information."
17 Now, do you recall making that -- giving us that answer?
18 A. Yes, sir.
19 Q. Okay. So if we take it from the top, you had an initial point of
20 view that you formed as a result of the Erdemovic statement and other
21 documents. Correct?
22 A. I had a theory. It wasn't a point of view.
23 Q. You say -- you were asked about your views and you say: "That
24 view initially migrated," it left, you know, it was moving. "Over several
25 years with respect to my analysis of that situation."
1 And then you say: "Based on Erdemovic's statement and testimony
2 at his own trial," and let me stop there.
3 During that process, he never ever, according to you and based on
4 the evidence that we have, said that it was men from the Bratunac Brigade.
5 Okay. So, based on that information as well as the documents that we
6 received from the Bratunac Brigade, my initial, my initial, conclusion was
7 that these people probably were -- were probably from the Bratunac
9 Now, at what point in time, sir, did you migrate all the way to
10 the other end and determine that those people were not indeed from the
11 Bratunac Brigade?
12 A. I believe that the full migration on that would have been -- what
13 month are we in now --
14 Q. We're in November.
15 A. Thank you. I think it would have been about March or April of
16 this year when the OTP acquired from the Zvornik medical centre a notation
17 from the individual - I won't mention his name - that indicated that he
18 was treated at the Zvornik Infantry Brigade -- or at the Zvornik medical
19 centre on 15 July 1995. So for me, that is the conclusive piece of
20 evidence, that particular piece.
21 Q. All right. Now -- so during the Krstic trial you still
22 maintained --
23 MR. McCLOSKEY: I'm sorry. Just for the record. I think there
24 was a mistake on the date.
25 JUDGE LIU: Let's check it.
1 MR. KARNAVAS: The date --
2 THE WITNESS: I'm sorry 16 July 1995. That's my mistake.
3 MR. KARNAVAS:
4 Q. That date. Thank you. We need to slow down, too. We're both
5 getting a little excited here.
6 Now, I take it during the Krstic trial and throughout that trial,
7 you still maintained your position at that point in time, given the
8 information that had been made available to you and based on your analysis
9 and synthesis of that information. Correct?
10 A. There are several stages. During the direct part of the Krstic
11 trial, that was my initial one. We started developing information on this
12 individual. And during the rebuttal phase, I brought that information
13 forward. Primarily they used me as a vehicle to provide information which
14 was believed to be Rule 68 on that regard. We continued the investigation
15 on that, and in respect for me -- as I said, the key conclusive piece was
16 to find a piece of documentary evidence that had that specific individual
17 in that area on 16 July 1995.
18 So in synopsis, that represents about a two and a half year's
19 worth of migration.
20 Q. Can we say we're finally home, that you finally have determined
21 that when Erdemovic says men from Bratunac, they were not from the
22 Bratunac Brigade? Are we there?
23 A. Let's never say never on this issue. We're good on one
24 identification. There may be a potential identification for another. I'm
25 willing to conclude at this point that they were not men assigned to the
1 Bratunac Brigade, and I believe I've said that. And I certainly don't
2 indicate that in my report, that they were from that.
3 Q. Okay.
4 A. But until we get the full identities, I'd prefer to leave it an
5 open issue.
6 Q. All right. And of course another piece of the puzzle that is
7 assisting you in addition to this medical record is the fact that we now
8 have a clear interpretation as to that other intercept that was relied on
9 to some extent, I would like to say heavily, but there may be some
10 equivocation on whether it's heavily or significantly or to some extent,
11 in determining that when they said "up there," it meant that Blagojevic's
12 men from the Bratunac Brigade arriving at the Branjevo Farm up there later
13 for the executions. Correct?
14 A. Well, Mr. Karnavas, while that is one interpretation, for me the
15 more and to use the phrase exculpatory issue on that is not where up there
16 is, but for me it's the intercept that indicates that the forces from the
17 Bratunac Brigade did not arrive until well after the executions could have
18 been finished.
19 Q. Okay. And we're going to get to that. We're going to get to
20 that. Now just -- and before we get to it, I just have a minor question.
21 Did you by any chance write up a revised or an updated version to your
22 revised version or provide something in writing of this new migrated
23 position that you now hold, because as you've indicated, that was several
24 months ago. And here we are in November in trial, and certainly I might
25 have been a little more efficient in my time and preparation in
1 cross-examination also had I had something from you. Did you do something
2 in writing and present it to the Prosecution for them to disclose to the
4 A. No, sir, I didn't.
5 Q. All right.
6 A. The issue was discussed with the Office of the Prosecutor, and my
7 understanding is it was felt that the best vehicle to do this was actually
8 through the individual himself.
9 Q. Okay. Was that a decision that they made or you as the
10 independent analyst, or was it something that you both sort of sat around
11 and decided on a coordinated basis to just wait until trial?
12 MR. McCLOSKEY: Objection.
13 JUDGE LIU: Yes.
14 MR. McCLOSKEY: Mr. Karnavas had this material well before trial
15 and that's a misstatement of the facts.
16 MR. KARNAVAS: That's incorrect, Your Honour. I was unaware of
17 his total migration. This is quite new to me that he's migrated all the
18 way to the other point.
19 JUDGE LIU: I think the migration issue is just mentioned during
20 this trial. But, Mr. Karnavas, you have already had that intercept
21 already; that's a fact.
22 MR. KARNAVAS: I agree with you --
23 JUDGE LIU: Without translation.
24 MR. KARNAVAS: I agree with you, Your Honour, and it was my
25 intention to prove Mr. Butler wrong. Thankfully, and I didn't know this
1 at the time, but thankfully he came in and explained it and took the wind
2 out of my sails. But at least it was an admission, we're grateful for it,
3 but nonetheless had we known in advance, we could have been a little
4 bit -- we could have channelled our energies in a different direction.
5 And I think this is a fair statement to make, especially when we have
6 limited resources. But I'm going to move on, Your Honour, I'm going to
7 move on.
8 JUDGE LIU: Yes, please.
9 MR. KARNAVAS:
10 Q. Now, I'm moving on but we're still sort of on the migration topic,
11 but in a different direction. I want to go through with you if we could
12 some of the documents that you had available to you at the time to see
13 whether, through those documents, you might have been just as equally able
14 to reach another plausible and alternative explanation, if you will. So
15 with that, if we could go down the road to these documents, I would like
16 now to go through what has been marked as P490 for identification
17 purposes. I'm going to go through a series -- actually I'm going to
18 hand -- I would like you to have P490, P534, P496, P531. I think you
19 already have handy and you might want to keep them over there, D76/1,
20 P258. This is the one that, as I understand, the new one that you
21 received, but just for contextual purposes I think we should keep it into
22 the mix for the discussion. P534 and P540. And if you could get the
23 documents assembled, then we'll go through them in a sort of chronological
24 order and see whether these documents, with the exclusion, excluding the
25 one that you had, but with the information from other documents would have
1 told you a story that might have been as equally plausible to the one that
2 you had determined prior to your migration.
3 JUDGE LIU: Yes, Mr. McCloskey.
4 MR. McCLOSKEY: I think we're going to need a break. That's going
5 to take Mr. Butler some time to pick out all those various exhibits --
6 MR. KARNAVAS: I believe they were introduced, weren't they.
7 JUDGE LIU: Of course introduced. But there are so many
9 MR. KARNAVAS: I apologise, Your Honour. I'm not suggesting
10 that -- we can go through one by one. It might be easier that way.
11 JUDGE LIU: Yes, find the most convenient way to deal with it.
12 MR. KARNAVAS: Very well. I apologise.
13 THE WITNESS: I have 490 up and on the ELMO.
14 MR. KARNAVAS: Again, my apologies to everyone.
15 MR. McCLOSKEY: Just for clarify, Mr. Butler has his own
16 collection of these exhibits for simplicity, and so he's taking his --
17 from his own collection, just so it's clear. They should be identical.
18 MR. KARNAVAS:
19 Q. Now, this document was generated on 15 July 1995. Correct?
20 A. That is correct, sir.
21 Q. And I believe if we look at the bottom, you've indicated that it
22 was sent at 1725, which would have been 5.25 in the afternoon on that
23 particular day?
24 A. Yes, sir, that is correct.
25 Q. All right. And if we look at -- if we could focus on paragraph 2
1 and we focus at the second sentence where it says: "Part of our forces
2 have been sent to the area of the Zvornik Light Infantry Brigade, 80
3 soldiers, and an S-2M platoon has been sent in the 2nd Romanija Motorised
4 Brigade area of responsibility."
5 Do you see that?
6 A. Yes, sir, I do.
7 Q. Okay. Was this information available to you as part of the
8 documents during the Krstic trial?
9 A. Yes, sir, it was.
10 Q. Okay. I would suspect that you received this document when you
11 searched the Bratunac Brigade headquarters? I don't know. I'm asking.
12 A. That is correct, sir.
13 Q. And that would have been, what, 1998? 1997?
14 A. That would have been early 1998, yes, sir.
15 Q. Okay. Now, clearly this tells us a little bit, right, this little
16 piece of information, does it not?
17 A. Yes, sir.
18 Q. Okay. We do know one thing, that on this particular in the
19 Zvornik area, there was heavy fighting going on where the Zvornik Brigade
20 took in a lot of casualties and there was, in fact, quite a bit of concern
21 that Zvornik would fall. Correct?
22 A. Yes, sir, that is correct.
23 Q. All right. And so -- and over here from this information, we see
24 that 80 soldiers are being sent from the Bratunac Brigade to the Zvornik
25 Light Infantry Brigade. Correct?
1 A. Yes, sir, that is correct.
2 Q. Okay. Now, if we look at the second document, and that would be
3 P534. If it will be easier, I have mine handy. I'm used to approaching
4 the witness, but ...
5 Now, if we look at this document, do you recognise it?
6 A. Yes, sir, I do.
7 Q. And the date is 15, 16 July 1995. Correct?
8 A. 14, 15 July on this page, sir. Is this the one you want up?
9 Q. I have -- I believe this was 5 -- page 7, I'm sorry. Page 7.
10 A. Okay. Yes, sir.
11 Q. Okay. And this is a part of the collection of the duty officer
12 reports. Is that correct?
13 A. This is a document from the Zvornik garrison logbook, not the duty
14 officer logbook.
15 Q. Okay. Was this, by the way, available to you at the time?
16 A. This was one of the documents that Obrenovic provided.
17 Q. Okay. So we can assume that you didn't have this piece of
18 information when you were -- until recently. Correct?
19 A. That is correct, sir.
20 Q. All right. But in this document, we see that the period of time
21 it's covering is between 15 and 16 July. Correct?
22 A. That is correct, sir.
23 Q. And if we see -- if we go to the second bullet, it says about 1000
24 hours, a new shift of the Bratunac Brigade arrived which was sent to the
25 field some time later.
1 And I take it that would have been 10.00 in the morning on the
2 15th, since this is a 24-hour period daily reporting system. Correct?
3 A. That is my understanding, yes, sir.
4 Q. Okay. Now, if you could look at P496/A, and again I have it here
5 available for you. This is a daily combat report, is it not, dated 16
6 July 1995?
7 A. Yes, sir. That is correct.
8 Q. And this is from the Bratunac Brigade. Correct?
9 A. Yes, sir.
10 Q. Now, I take it you had -- this document you did have for your
11 analysis and synthesis?
12 A. Yes, sir, that is correct.
13 Q. Okay. And if we look in paragraph 2, sort of in the middle of it,
14 there's a section -- there's a sentence which begins with: "We made
15 preparations to dispatch two companies to the 1st Zvornik Light Infantry
16 Brigade (100 soldiers) and the 4th Reconnaissance Platoon of the 1st
17 Infantry Battalion."
18 Do you see that?
19 A. Yes, sir.
20 Q. Then if we go all the way down, we see that this was signed at
21 1640, that would be 4.40 p.m., which was right about the time when the
22 daily combat reports were usually due and sent out. Correct?
23 A. That is correct, sir.
24 Q. Now, this piece of information which you had available obviously
25 sort of supports what's happening on the ground as well, and that is that
1 the Zvornik Brigade needs help, you had information that they were asking
2 for help, particularly from the Bratunac Brigade, and here it is -- we
3 have a daily combat report that more or less validates all of that
4 information. Correct?
5 A. That is correct, sir.
6 Q. All right. Now, if we could turn to P531. And again I have my
7 copy. They're marked at the bottom. If you could look at this. You
8 recognise this document, do you not, sir?
9 A. Yes, sir.
10 Q. Now, was this document available to you at the time you were doing
11 your analysis and synthesis?
12 A. Yes, sir.
13 Q. Okay. Now, as we could see, this was generated from the Zvornik
14 Brigade. It's an interim combat report, and it's dated 16 July 1995. Is
15 it not?
16 A. That is correct, sir.
17 Q. Now, if we were to go down to paragraph 2, it says: "Our forces
18 (Zvornik, a company of the MUP Ministry of the Interior of 100 men, two
19 platoons from the Bratunac Light Infantry Brigade and the part of the
20 military police platoon from the IBK Eastern Bosnia Corps) are carrying
21 out a decisive defence in the brigade zone, sealing off and searching the
22 terrain in the wider area," and then it goes on. Decisive defence, you
23 have heard that term before, have you not?
24 A. Yes, sir.
25 Q. And in fact that is exactly what was happening on the ground,
1 there was a decisive defence, given that the Zvornik Brigade was all of a
2 sudden facing two fronts, the column and of course the 2nd Corps that was
3 also attacking from another direction in order to assist the column to
4 pass through. Correct?
5 A. Yes, sir.
6 Q. Okay. And from this piece of information, the interim combat
7 report available to you, which also states here it was sent out at 1610
8 hours, that's on July 16th. Right?
9 A. I believe 1810 hours --
10 Q. 1810 hours. Okay. And that would have been 6.10 p.m. On that
11 particular day. This piece of information also validates not only what is
12 happening on the ground but also the fact that the Bratunac Brigade had
13 been asked to assist and send some troops to the Zvornik Brigade for the
14 purposes of engaging the column and the 2nd Corps. Correct?
15 A. Yes, sir.
16 Q. Okay. And just so we're clear, that was a purely military
17 operation very consistent with the laws of war, if I could put it in the
18 general context?
19 A. It was a military operation. I will reserve judgement on how
20 consistent it was, only insomuch as we have no data one way or the other
21 with respect to any wounded or prisoners from the column. So I'll just
22 reserve judgement on that.
23 Q. Okay. But as far as the actual asking assistance and providing
24 assistance to the Zvornik Brigade during that critical moment, that in and
25 of -- that act, that was not an illegal act, was it?
1 A. No, sir. Those are all proper and diligent exercises of command.
2 Q. Okay. All right. See, we can agree on some points.
3 Now, if we can go to -- the next one is the P255/D, we've already
4 looked at it, but nonetheless let's look at it again. If I may -- you can
5 have -- 255/D, we just covered it, but again, you know -- forgive me, I'm
6 not sure whether I asked you this question, but was this available to you
7 when you did your analysis and synthesis? And I'm not saying --
8 A. Which document in question, this particular one or this one?
9 Q. The one that I translated --
10 A. This particular one, okay.
11 Q. And so --
12 A. I can't tell you exactly what time --
13 Q. I'm sorry this was --
14 A. -- It became available to me.
15 Q. I apologise. This is a document you generated and this is the new
16 information. So for the record, this is the one --
17 A. This particular document, 258 --
18 Q. Well, 255/D is the one that I am told -- let me give you another
19 document, and I apologise again for the confusion here. But if we give
20 you -- if we can give you 258 --
21 A. I have 258.
22 Q. Sorry about that. Now 258 is this new document which you as --
23 you have indicated was very helpful in the migration process. Right?
24 A. Yes, sir.
25 Q. Okay. And of course we have presented to you what is marked as
1 D76/1, which is immediately below, and you would agree with me, would you
2 not, that this also -- this was the one that was below the one that --
3 A. Yes, sir.
4 Q. Okay. I take it this would also -- well, on this particular one,
5 can you tell us whether you had this one available to you, in other words,
6 whether it was in the possession of OTP, not whether it was translated or
7 not, but whether it was in their storage at the time that you were doing
8 your analysis and synthesis?
9 A. I could not exactly tell you at what point in time it came into
10 the possession of the OTP. We can obviously get that answer. I can say
11 that at a point in time I do remember seeing this because just the series
12 of three bullets on Colonel Cerovic as the duty officer calling places.
13 So that's why to me this looks very familiar, but I couldn't tell you
14 specifically at what point in time I saw it.
15 Q. All right. But you would agree with me, this one is generated on
16 the 16th. Correct?
17 A. I believe that's correct, sir.
18 Q. And if we look at the hour, it's 2006, that's 8.06 p.m.?
19 A. Yes, sir.
20 Q. And it would appear that again here is yet another piece of
21 information that validates the fact that the Bratunac Brigade has sent men
22 to a designated place where there's an ongoing battle?
23 A. Yes, sir.
24 Q. Okay. The only thing that we're unclear of at this point in time
25 is whether you had it, whether it was in the OTP's possession at the time
1 you were doing your analysis and synthesis. But let me ask you this: Had
2 you come across this, would you have deemed this relevant and important in
3 factoring your decision on whether the Bratunac Brigade men were sent to
4 Zvornik to assist in a battle versus the Erdemovic conundrum, if I can
5 call it that, of whether those men were members of the Bratunac Brigade?
6 A. Yes. I mean, given insomuch as it is a call for reinforcements,
7 it would be a part of that relevant mix. Yes, sir.
8 Q. Okay. Now, if we can go to the next document, which is P534 --
9 I'm sorry. I think we've already covered that. But if that -- well, I'm
10 sorry. You have the document P534, if we could go to page 8.
11 A. Can you just refresh my memory on that.
12 Q. Yes. That was the second document that we covered the duty
13 operations report from the Zvornik Brigade.
14 A. I believe that you --
15 Q. Did you --
16 A. You got it back.
17 Q. If we can't find it -- here, take my copy. I'll wing it. If you
18 could look at that. If you could put it on the ELMO, maybe I can follow
19 it. This is page 8, is it not, it's even underlined?
20 A. Yes, sir, it's page 8 of the document.
21 Q. Okay. And this one covers the period of the 16th to 17th, that
22 24-hour period. Correct?
23 A. That is correct, sir.
24 Q. Again, as I understand it, that period begins around 8.00 in the
25 morning. So it would be 8.00 to 8.00?
1 A. I am less familiar with the actual garrison duty officer functions
2 as to when that started and stopped. But I think that's fair. I'm just
3 not sure.
4 Q. Okay. Now I marked an area -- one line which says: "Forty men
5 who were not members of the Zvornik Brigade stayed overnight."
6 Now, I believe you indicated earlier that -- and I believe it was
7 on direct examination this morning where you indicated that some members
8 of the Bratunac Brigade had gone astray and had to stay overnight. Was
9 this this group or was this another group?
10 A. If I remember the context of that correctly, that particular group
11 was essentially the first two platoons of the Bratunac Brigade that
12 arrived on the 15th from the 4th Company. They were deployed into the
13 field, and during the context of the combat that evening, they were
14 separated from the main defensive positions, spent the night moving
15 through the woods. They came out on the main road sometime in the late
16 morning hours of 16 July, and from there they went to the school at
17 Orahovac. So I don't recall whether from the school at Orahovac, whether
18 they went back into the field. I believe the commander of that detachment
19 indicates that in his interview with the OTP, that after that series of
20 events occurred, that they immediately then returned to the Bratunac
21 Brigade area. So I don't know that I could conclude that it's in fact
22 those people who are staying overnight.
23 Q. Are you aware of any witnesses giving any statements to the effect
24 that some members of the Bratunac Brigade had stayed at the headquarters
25 of the -- or had stayed at the Zvornik Brigade on that particular night?
1 I mean, if you know, fine, if not ...
2 A. I don't believe they were staying at the headquarters of the
3 brigade. I think there were some elements out in the field.
4 Q. This would be with respect to the second group that had arrived,
5 but -- okay. If you don't recall, you don't recall.
6 Now, let's -- and this piece of evidence was also available to
7 you, although as we've noted, it's not very conclusive at this point in
9 A. No, sir. This particular piece of evidence came with Obrenovic.
10 Q. This one here. Okay. Now, the last document would be 540, P540.
11 And you have already commented on this. Now, once again this is the
12 interim combat report, and it's dated 18 July 1995. Correct?
13 A. That is correct, sir.
14 Q. Okay. And in fact, it appears to have the name of the commander,
15 Pandurevic, himself. Now, if we could look at the second paragraph. The
16 second paragraph indicates: "The Zvornik Infantry Brigade forces,
17 reinforced by a company from the Krajina 16th Brigade, a company from the
18 Bratunac Light Infantry Brigade, two platoons of the Bijeljina military
19 police, and one platoon from the Vlasenica Light Infantry Brigade
20 successfully repulsed all enemy attacks from the front, sealed off and
21 searched the terrain in the wider area of Crni Vrh, Pandurica, Krizevici
22 as well as completely securing the old and the new Zvornik Crni Vrh
24 So it would appear from this report that we have some validation
25 that there is a company there from the Bratunac Light Infantry Brigade.
2 A. That is correct, sir.
3 Q. Now that we've gone through these documents, I guess my question
4 is this: It would appear that you had, albeit not all of these documents,
5 several documents which were consistent with what was happening on the
6 ground, and that is documents demonstrating that members from the Bratunac
7 Brigade had been sent to Zvornik for military purposes. Correct?
8 A. That is correct.
9 Q. All right. And I guess my question is: If we were to take these
10 documents that were available to you at the time, analyse them, and
11 synthesise them, and then go on to look at that intercept, the one of July
12 16th, would that -- armed with that information and knowledge and knowing
13 what was happening at the time, should it not have given you some pause
14 that perhaps there was another interpretation to the phrase "up there"?
15 A. Mr. Karnavas, I've certainly never disputed the fact that the bulk
16 of the forces were engaged in combat operations. However, given the fact
17 that one of the two correspondents in the exhibit that we're discussing is
18 the assistant commander for security of the Drina Corps, that was for me a
19 significant piece of information. And having his prior knowledge
20 established in Pilica, that is how I concluded that within the context of
21 that intercept, that's where up there was.
22 Q. Okay. But correct me if I'm wrong, on Friday you had given us a
23 little peek into the process by which you discriminate information and how
24 you reach an analysis. And as I understand it -- well, let's, just to be
25 a little more precise, let's look at page 71 of the transcript. And I'll
1 just read it -- I have it here for the ELMO. It's a short piece. It would
2 be instructive, I believe. And of course I'm not repeating anything you
3 haven't already said. But -- now, I'm going to be focusing on lines 1 all
4 the way to line 8. So you're asked a question by the Prosecutor.
5 "Q: So why are you changing your mind?"
6 And your officer is, this past Friday, November 14th, you state:
7 "In this context, and I always try to note as a component of my total
8 analysis, if a document or an intercept was open to multiple
9 interpretations, particularly in the issue between a criminal
10 interpretation and a strictly military one, that as a matter of practice
11 when it was I would always default back to that military interpretation.
12 That's how I professionally view it, a component of attempting to keep my
13 analysis of the material as conservative as possible."
14 Now, do you recall giving that answer?
15 A. Yes, sir.
16 Q. Okay. And so if I understand what you're trying to tell us here
17 is that when in doubt, when in doubt, where there's -- it's subject to
18 various interpretations, you're going to err on the side of caution.
19 And -- in other words, if it's between military and criminal, you would
20 err on the side of criminal and therefore -- on the side of the military.
22 A. Yes, sir. As much as I could do that.
23 Q. Okay. Because after all, you want to be fair. Right?
24 A. Whether I want to or not, the process makes me be fair, and that's
25 what I try to do.
1 Q. All right. This is why I'm asking you this question. With this
2 particular intercept, you've already indicated to us that you were aware
3 that up there had two different linguistic meanings. And now we also see
4 that you had some documentation, albeit not all of it, but some, which
5 would -- and you also had all of this other knowledge as to what was
6 happening on the ground. And so when I analyse it and when I synthesise
7 it, it would appear to me that another interpretation is equally available
8 to you, particularly if you want to err on the side of caution. Would you
9 not agree with me on that?
10 A. I believe that, as I've discussed, at the time I made my initial
11 analysis of that, that my interpretations of the linguistics were with
12 respect to up there being Pilica and up there being upper Podrinje. So I
13 think I've covered that issue.
14 Q. You covered that issue. But you see, I'm putting it in the, as
15 you put it, the historical context. See I'm doing a little synthesising
16 myself here and I'm asking you to help me out, because you certainly had
17 all this information. You knew what was happening on the ground. You had
18 some intercepts and other documents that coincided with what was happening
19 on the ground. And then there was this intercept where there might have
20 been a dilemma by what was meant by up there.
21 So my question is: If you could please give us your analysis, the
22 analytical process by which you decided to discriminate that information
23 that was available to you. And in doing that, I would also like you to
24 include in your answer as to why perhaps you never included into your
25 analysis the possibility that up there could mean something else, as you
1 knew it to be.
2 JUDGE LIU: Yes, Mr. McCloskey.
3 MR. McCLOSKEY: Objection to the form of the question. Again,
4 this is a nice argument, but it's indecipherable from the -- and if that
5 kind of question is going to continue, we'll never get finished. This
6 doesn't make any sense and it's the form of the question.
7 JUDGE LIU: Yes, I agree with you, Mr. McCloskey. But since we
8 have little time available for the morning session, we'll hear what the
9 witness is going to tell us.
10 MR. KARNAVAS: Thank you, Your Honour.
11 Q. Were you able to understand my question?
12 A. I think I have what you were asking. If -- again, for me where it
13 becomes very clear on the multiple meanings, and again as I've noted
14 before, it's -- for me the issue of where up there was was less relevant
15 than when the reinforcements arrived with that respect. Now, again
16 looking at the issue of up there, I would go back to what I had said
17 previously on that, which is that given the prior intercepts and
18 information of Popovic being at Pilica.
19 Now, again in fairness to Mr. Karnavas here, perhaps the one real
20 interesting piece of information that I didn't have at the time that I
21 wish I had, are the reflections on the Obrenovic duty officer logbook for
22 16 July, which specifically reflect that the Drina Corps is instructing
23 Colonel Popovic to stop what he's doing and immediately track down
24 Colonel Pandurevic at the time and get an explanation as to what is going
25 on. So like I said, looking at the totality of the information, that's
1 why it's very easy for me at this point to conclude what Obrenovic said
2 about it is, in fact, probably the most accurate conclusion that could be
3 drawn, that up there is in fact the IKM area at Baljkovica.
4 MR. KARNAVAS: One last follow-up question, Your Honour.
5 Q. Were there not multiple interpretations available to you, based on
6 all the information that you had at that time?
7 A. There are multiple interpretations, but I didn't believe that that
8 one was a reasonable one.
9 Q. All right. But you didn't put in your report and to your analysis
10 the other ones and try to reason them out and demonstrate as to why those
11 were less plausible, less believable, less possible than the one that you
12 zeroed in on?
13 A. If you look at the context of my report, I try to support the
14 conclusions that I make. It would be a very long report if I had to go
15 through each and every alternative possible conclusion and, you know
16 buttress that up as well. I believe I did an adequate job -- I believe I
17 did certainly a fair job in explaining my conclusion at the time. And I
18 believe I have been able to indicate what is the basis of new information
19 that has caused me to change that conclusion.
20 Q. But you didn't answer my question and that is --
21 MR. McCLOSKEY: Objection. He did --
22 THE INTERPRETER: Could the counsels not speak at the same
24 JUDGE LIU: Mr. Karnavas, I believe the witness has already
25 answered your question.
1 MR. KARNAVAS: Well, Your Honour, if you look at his response, he
2 says he apologises, acknowledging that he didn't. He gave an explanation.
3 It was a very direct question. Now, maybe from that answer we can draw an
4 inference, but I would like to get a clear answer, whether he gave us the
5 other possibilities and then excluded them. And it's a simple yes or no.
6 JUDGE LIU: Well, maybe we could leave this question until
7 tomorrow. Now it's time for the break. And I have to remind the parties
8 tomorrow we'll sit in courtroom I in the afternoon from 2.15 to 7.00.
9 MR. KARNAVAS: I have one other minor request, Your Honour.
10 JUDGE LIU: Yes.
11 MR. KARNAVAS: We're on cross-examination.
12 JUDGE LIU: Yes.
13 MR. KARNAVAS: There was a request made by the Prosecutor last
14 week so that Mr. Butler could consult with the members of the -- other
15 members of the Prosecution, particularly those involved in the Krstic 115
16 matters and the appeal.
17 JUDGE LIU: Yes.
18 MR. KARNAVAS: At this point in time given the critical juncture
19 we are and given that he had plenty of time, or they have had plenty of
20 time to have access to Mr. Butler, I would ask that from this moment on
21 that they have no contact whatsoever with Mr. Butler regarding this case
22 or the Krstic case. And if it becomes that necessary, that I certainly
23 would like to be present in addition to somebody from the registry,
24 because I think that I'm pretty familiar with the case. But I don't want
25 in any way any discussions about this case and I'm not suggesting
1 anything, it's just this has always been my practice and I would feel much
2 more comfortable if we could abide by that rule, because they -- there is
3 no real reason for them to need Mr. Butler, since they have -- he's been
4 here for several weeks and I'm sure they've had plenty of time to iron out
5 all of their questions.
6 JUDGE LIU: Well, Mr. McCloskey.
7 MR. McCLOSKEY: I hope Mr. Karnavas is right on that point, and I
8 don't see a problem with that. Mr. Butler may be happy not to talk about
9 this anymore. But if I could -- let me just -- before we tie the appeal's
10 hands and the Appellate Chamber on these issues. If I could just check,
11 and I think that's the case, and I hope it's the case, but if I could just
12 check with the appeals people on that. I have no objection with
13 Mr. Butler not dealing with them at all until I can check. And if there
14 is some issue, then maybe we can talk about it tomorrow, but I hope there
15 isn't, like Mr. Karnavas. But let me check with them first.
16 JUDGE LIU: I think that is a reasonable request. So the hearing
17 is adjourned.
18 MR. KARNAVAS: Thank you.
19 --- Whereupon the hearing adjourned
20 at 1.51 p.m., to be reconvened on Tuesday,
21 the 18th day of November, 2003,
22 at 2.15 p.m.