Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20028

 1                           Thursday, 9 July 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.20 p.m.

 5             JUDGE ORIE:  Mr. Registrar, would you please call the case.

 6             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

 7     everyone in the courtroom.  This is case number IT-06-90-T, the

 8     Prosecutor versus Ante Gotovina, et al.

 9             JUDGE ORIE:  Thank you, Mr. Registrar.

10             I'd like to briefly deal with a few procedural matters before we

11     hear the testimony of the next witness.

12             First one, Mr. Waespi, is it you who will address the Chamber in

13     relation to a matter for which we have to go into private session.

14             MR. WAESPI:  Yes, that's correct.

15             JUDGE ORIE:  We turn into private session.

16                           [Private session]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20029











11  Pages 20029-20031 redacted. Private session.















Page 20032

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  Your Honours, we're back in open session.

 9             JUDGE ORIE:  Thank you, Mr. Registrar.

10             As announced yesterday, Mr. Hedaraly, could you tell the Chamber

11     what the position is in relation to the objections raised by the Defence

12     against admission of P2550.

13             MR. HEDARALY:  Your Honour, to simplify matters, the Prosecution

14     will withdraw P2550 but obviously does not necessarily agree with the

15     objections of the Defence.  But, just to save time, and proceed

16     efficiently, we will withdraw P2550.

17             JUDGE ORIE:  Yes.

18                           [Trial Chamber confers]

19             JUDGE ORIE:  The Chamber accepts the withdrawal.

20             Mr. Registrar, I take it that you'll give the follow-up.

21             THE REGISTRAR:  Yes, Your Honours.  P2550 will become marked and

22     not admitted.

23             JUDGE ORIE:  Thank you, Mr. Registrar.

24             The next item on my agenda is the disclosure of documents to the

25     Gotovina Defence which apparently were on the list sought by the Gotovina

Page 20033

 1     Defence from the EUMM.  The Chamber wants just to -- to seek confirmation

 2     of some of the information.

 3             The Chamber would like to hear from the Gotovina Defence whether

 4     the eight documents disclosed by the Prosecution in the recent submission

 5     were, in fact, eight of the documents that the Gotovina Defence had

 6     requested the Trial Chamber to order the European Union Monitoring

 7     Mission to provide.

 8             MR. MISETIC:  Yes, Mr. President.

 9             JUDGE ORIE:  Then the second question is whether the Gotovina

10     Defence can confirm that the Prosecution, in fact, disclosed six out of

11     these eight documents to the Defence in March 2007.

12             MR. MISETIC:  I cannot confirm that, Mr. President.

13             JUDGE ORIE:  I beg your pardon?

14             MR. MISETIC:  I cannot confirm that.

15             JUDGE ORIE:  Has there been ...

16                           [Trial Chamber confers]

17                           [Prosecution counsel confer]

18             JUDGE ORIE:  Well, should I say perhaps March 2007 and

19     August 2008, where they disclosed at a relatively early stage that is

20     before the beginning of this year.

21             MR. MISETIC:  Your Honour, all I can say is that, and it has

22     happened before, what may be on their papers as having been disclosed

23     isn't in our records as having been received.  So we did, I believe,

24     three searches, including after filing the -- this motion, pending motion

25     in March, through all of our archives and everything is in electronic

Page 20034

 1     form, so we don't have any record of having received it.  That's not to

 2     say that it may have been sent, but I can't find any record of having

 3     received it.

 4             JUDGE ORIE:  You can't -- that's clear, Mr. Misetic.

 5             Mr. Hedaraly, I take that you rely on your administration.

 6             MR. HEDARALY:  Absolutely, Mr. President.

 7             JUDGE ORIE:  Just as Mr. Misetic has no reason to distrust his

 8     own account, I'm afraid that the Chamber can't, at this moment, take it

 9     any further.  And we are not asked to take it any further.

10             Then the two other documents, not of -- out of these eight,

11     because we talked about six of them, these are documents of which it is

12     likely that they were received later from a witness.  Is there -- of

13     course, we haven't looked at these documents.

14             MR. MISETIC:  Mr. President, I believe from what I understand

15     from the Prosecution's filing, they were received earlier not later from

16     the witness, and it is my understanding from the filing they were

17     received in 1997 by the Prosecution.

18             JUDGE ORIE:  Mr. Hedaraly is there --

19             MR. HEDARALY:  I don't have the details, Mr. President, but if

20     that is what the filing says, I know that we went carefully through the

21     recordings.  Whatever date is indicated in the filing would be the

22     appropriate one, and I do think it was had an earlier interview with

23     those witnesses that those documents were received in disc format.

24             JUDGE ORIE:  And that would have been either Mr. Liborius or

25     Mr. Hansen.

Page 20035

 1             MR. HEDARALY:  That is correct.

 2             JUDGE ORIE:  But earlier not during a very recent interview.

 3             MR. HEDARALY:  That's correct.  In prior interviews.

 4             JUDGE ORIE:  Yes.  Now from these eight documents, you said we

 5     received two through a witness, the other six, is it clear from whom you

 6     got them.  What is the source.

 7             MR. HEDARALY:  I mean, we received them.  Sometimes we receive

 8     duplicate documents from various sources, so I believe the documents that

 9     were disclosed -- that our records indicated were disclosed earlier we

10     received them -- we may have received them also from those witnesses.  I

11     have to confess, Mr. President, I didn't know this issue would be raised

12     so I haven't reviewed the filing which was a few -- already a few weeks

13     or a month or so ago.

14             JUDGE ORIE:  Yes.  Would you please check whether you know

15     whether or not these documents were or were also obtained from the EUMM.

16             MR. HEDARALY:  We will do that.

17             JUDGE ORIE:  And report to the Chamber.

18             MR. HEDARALY:  I will, Mr. President.

19             MR. MISETIC:  Mr. President, if I can just state it's my

20     understanding, based on Prosecution's filing, that of the eight some were

21     received from Mr. Liborius in his interview, and the remainder were

22     received from Mr. Marker Hansen in his interview, although the filing

23     indicates that Mr. Liborius claimed that he received clearance from the

24     head of mission in Zagreb to disclose those documents to the Prosecution.

25             JUDGE ORIE:  Yes.  Which raises the issue, whether, under those

Page 20036

 1     circumstances, it can be said that they were received from the EUMM or

 2     from an individual person, having had clearance from his boss.

 3             I'll not take this matter, at this moment, any further.

 4             Finally, I put on the record that the Cermak Defence has

 5     requested a break between the conclusion of the Gotovina Defence case and

 6     the start of the Cermak Defence case.  The Chamber is still considering

 7     it.

 8             It creates scheduling problems, because we do not know exactly on

 9     what date the Gotovina Defence will conclude the presentation of its

10     case.  At the same time, the Chamber is trying to do its utmost best not

11     to lose days in court, and eight or ten days is most likely five working

12     days, and whatever one may think about the completion strategy, not

13     losing available time in court is certainly something to be very

14     seriously considered.

15             Any observations in this respect from the Cermak Defence?

16     Mr. Cayley.

17             MR. CAYLEY:  Will you have seen the e-mail that was circulated,

18     Your Honours, to yourself and also to the Prosecution.  I mean, I won't

19     repeat the reasoning that was given in that e-mail but only really to add

20     and, I think, you know, Mr. Kay has made this point a number of times.

21     He and I were instructed very late in this case.  We done our best to get

22     our Defence case moving along during the Prosecution case but, frankly,

23     any period of time that can be given between end of the Gotovina case and

24     the beginning of our case would be helpful to us, so we're grateful that

25     the Court is considering it.  Thank you.

Page 20037

 1             JUDGE ORIE:  I hope that you, Mr. Cayley, and Mr. Kay will also

 2     understand what the concerns of --

 3             MR. CAYLEY:  We did.  We fully understand.  Thank you.

 4             JUDGE ORIE:  We'll further consider the matter.  It was mainly to

 5     put it on the record that the request was there and also to put on the

 6     record that the Chamber had not yet decided on the matter.

 7             Those were the matters the Chamber wanted to raise before we hear

 8     the evidence of the next witness.

 9             One question in relation to the next witness, originally, I think

10     there was an estimate of four hours.  Now, after the Rule 70 clearance,

11     at least after the clearance, let's say so, that's Rule 70 clearance.

12     Would it still take four hours.

13             MR. KEHOE:  It will not, Mr. President.  I believe I will take

14     approximately session.

15             JUDGE ORIE:  Yes.

16             Mr. Hedaraly.

17             MR. HEDARALY:  If we may, Mr. President, while we deal with

18     procedural matters, at transcript reference 19829, Ms. Mahindaratne had

19     indicated her wish to bar table three documents about the Gosici

20     incident, the Varivode, the decision, and we've circulated those.  The

21     three Defence teams have indicated they have no objections, and those are

22     65 ter 3916 A, 65 ter 3916 B, and 65 ter 3916 C, one of them being the

23     judgement -- the Appeals Judgement from the Supreme Court of Croatia, and

24     the two other ones, the indictments that were underlying the decision.

25             So if we can have those admitted at this time.  I believe there

Page 20038

 1     were no objections by the Defence teams.

 2             JUDGE ORIE:  No one jumps up and starts shouting, so, therefore,

 3     I take it that Mr. Hedaraly as usually accurately reflected the position

 4     of the Defence teams.

 5             Mr. Registrar.

 6             THE REGISTRAR:  Your Honours, 65 ter 3916 A becomes Exhibit

 7     P2581; 65 ter number 3916 B becomes Exhibit P2582; and 65 ter number

 8     3916 C becomes Exhibit P2583.

 9             JUDGE ORIE:  And are all three admitted into evidence.

10             MR. HEDARALY:  And, finally, Mr. President you may also recall

11     one of the witnesses, Mr. Perkovic, had brought some newspaper articles

12     with him in his to his hotel.  We retrieved those from VWU, I believe,

13     last Thursday.  We reviewed them.  We're in the process of getting some

14     of those translated and we will tender them as well when the translations

15     are complete; and obviously we will inform the parties.  But I wanted to

16     put that on the record as well.

17             JUDGE ORIE:  Yes.  Then one final matter, Exhibit D1568 of the

18     Law on Criminal Procedure tendered by the Cermak Defence.  It has been

19     admitted into evidence but there was a caveat that not all the articles

20     were translated into English and that more articles were going to be

21     translated.  The Chamber has received information that all the articles

22     the Cermak Defence wishes to be translated that they're now uploaded and

23     that is a total of 58 articles of this law, and that, therefore, the

24     exhibit remains now in the form as it at present is.  That is, the whole

25     of the text in B/C/S, we could consider whether it would not be wise to

Page 20039

 1     cut that down as well, so that we only have in B/C/S those articles that

 2     were translated but at least we have now the complete set the Cermak

 3     Defence wished to have in evidence.

 4             Having gone through these procedural matters, is the Gotovina

 5     Defence ready to call its next witness, which is Mr. -- no protective

 6     measures.

 7             MR. KEHOE:  No protective measures.

 8             JUDGE ORIE:  Mr. Herrick.  And I do understand that in line with

 9     the decision of the 6th of July of this year that representatives of the

10     government of the United States of America will be present in court.

11             MR. KEHOE:  That's correct, Mr. President.

12             JUDGE ORIE:  Could the witness be escorted into the courtroom and

13     could the representatives of the government accompany him.

14                           [Defence counsel confer]

15                           [The witness entered court]

16             JUDGE ORIE:  Good afternoon, Mr. Herrick.  I'll come to you in a

17     second.  I'd first like the representatives of the government of the

18     United States of America to introduce themselves to the Court.

19             If you could switch on your microphone.

20             MS. JOHNSON:  Thank you, Your Honour.  Thank you, Your Honours.

21     May it please the Court.  My name is Karen Johnson.  I'm with the office

22     of the legal councillor at the US embassy in The Hague.

23             JUDGE ORIE:  Thank you, Ms. Johnson.  And you're with?

24             MS. SKIBSURD:  I'm Elisa Skibsrud, and I'm with the Department of

25     Defence.

Page 20040

 1             JUDGE ORIE:  Thank you, Ms. Skibsurd.  If there is any matter

 2     which you'd like to raise, you're invited to address the Court, not the

 3     party at that moment examining the witness, not the witness, but the

 4     court.

 5             MS. JOHNSON:  Thank you, Your Honour.  We understand.

 6             JUDGE ORIE:  Mr. Herrick, before we you give evidence in this

 7     Court, the Rules of Procedure and Evidence require that you make a solemn

 8     declaration that you will speak the truth whole truth and nothing but the

 9     truth.  The text will now be handed out to you by Madam Usher.  May I

10     invite to you stand and to make that solemn declaration.

11             THE WITNESS:  Yes, sir.  I solemnly declare that I will speak the

12     truth, the whole truth, and nothing but the truth.

13                           WITNESS:  RICHARD HERRICK

14             JUDGE ORIE:  Thank you, Mr. Herrick.  Please be seated.

15             Mr. Herrick, you will first be examined by Mr. Kehoe.  Mr. Kehoe

16     is counsel for Mr. Gotovina.

17             Please proceed, Mr. Kehoe.

18             MR. KEHOE:  Thank you, Mr. President.

19                           Examination by Mr. Kehoe:

20        Q.   Sir, can you state your full name for the record and spell your

21     last name?

22        A.   My name is Richard Clinton Herrick, H-e-r-r-i-c-k.

23        Q.   Colonel Herrick, do you recall meeting with members of the

24     Gotovina Defence, the team, on two dates, 11 October 2006 and 14 May of

25     2009?

Page 20041

 1        A.   Yes, I do.

 2        Q.   And you recall that you signed a statement on the 2nd of July of

 3     2009?

 4        A.   Yes, I do.

 5             MR. KEHOE:  Mr. President, with the Court's permission, if we

 6     could bring up 65 ter 1D2773.  And, Mr. President, we have a hard copy of

 7     the statement for the witness.

 8        Q.   Mr. Herrick, before we embark on this, you and I both speak

 9     English if we could just pace ourselves, just a bit so the translators

10     can keep up with us.  Both of us mindful of that would be helpful.

11             Colonel Herrick, I showed you -- it is a document that's before

12     you, and do you recognise the document that is before you?

13        A.   Yes, I do.

14        Q.   And do you recognise that as the statement that you signed on

15     2 July 2009?

16        A.   Yes, that's correct.

17        Q.   Did you have a chance to review it before you came to court

18     today?

19        A.   Yes, I did.

20        Q.   Okay.  Now, looking at this statement, you mentioned a

21     clarification -- one clarification, point 5.  If you turn to page 2 in

22     the first sentence you noted that that should be the Vance Plan and not

23     the Vance-Owen Plan; is that correct?

24        A.   Yes, that's correct.

25        Q.   With the exception of that clarification in paragraph 5, would

Page 20042

 1     the statement that's before you accurately reflect what you said to the

 2     members of the Gotovina Defence teams on the two occasion us that met

 3     with them?

 4        A.   Yes, it does.

 5        Q.   And was the information that you provided true and accurate, to

 6     the best of your knowledge?

 7        A.   Yes, it is.

 8        Q.   And if today, if I asked you the same questions concerning the

 9     information that is set forth in your statement, would your answers be

10     the same?

11        A.   Yes, they would.

12             MR. KEHOE:  Your Honour, at this time, we'd like to offer into

13     evidence 65 ter 1D2773.

14             MR. RUSSO:  No objection, Mr. President.

15             JUDGE ORIE:  Mr. Registrar.

16             THE REGISTRAR:  Your Honours that becomes Exhibit D1578.

17             JUDGE ORIE:  D1578 is admitted into evidence.

18             Please proceed, Mr. Kehoe.

19             MR. KEHOE:  Mr. President, I explained to Colonel Herrick the

20     purpose of the summary statement that I will now read with Your Honours'

21     permission.

22             JUDGE ORIE:  Please do so.

23             MR. KEHOE:  Richard Herrick is a retired lieutenant-colonel from

24     the United States army who was the United States military attache to the

25     Republic of Croatia for a three-year tour from August 1993 to

Page 20043

 1     2 August 1995.  As the military attache, Lieutenant-Colonel Herrick was

 2     responsible for advising the United States ambassador on military affairs

 3     and for observing the host's military activities.

 4             Lieutenant-Colonel Herrick met General Ante Gotovina

 5     approximately 12 times between 1992 and 1995, where they would have

 6     in-depth conversations.  He found General Gotovina to be very serious

 7     about his job, professional in his demeanour, able to run a professional

 8     headquarters, and was well respected by his soldiers.

 9     Lieutenant-Colonel Herrick was favourably impressed with General

10     Gotovina.

11             Lieutenant-Colonel Herrick performed an initial assessment of the

12     Croatian army, the HV, when he arrived in his post as military attache in

13     August 1992.  At that point, the HV was a militia/National Guard army.

14     The HV had some professional soldiers from the JNA, as well as some

15     former French Foreign Legion soldiers who were commissioned officers.

16     Regardless, the HV did not have sufficient qualified officers.

17             Lieutenant-Colonel Herrick witnessed development and improvement

18     of the professional units of the HV after its inception over time until

19     he left Croatia on 2 August 1995.  He credits much of this development

20     and improvement to the former French Foreign Legion officers, such as

21     General Gotovina, because they had previously received formal military

22     training and in many cases themselves had been senior non-commissioned

23     officers in the Foreign Legion.

24             Lieutenant-Colonel Herrick is aware of General Gotovina's

25     influence on training, including a training school established by

Page 20044

 1     General Gotovina in Zadar, Croatia.  He was briefed on the training done

 2     at this school, and his recollection is that the school focussed on

 3     teaching small-unit combat.

 4             During the summer of 1994, Lieutenant-Colonel Herrick attended a

 5     training exercise on the island of Vir, in Croatia.  The exercise was

 6     conducted by a unit of the 4th Guards Brigade of the HV under the command

 7     of General Gotovina.  His impression was that it was executed very well

 8     and professionally done.  While the HV still needed additional training

 9     on many levels, it was at this point that Lieutenant-Colonel Herrick

10     became convinced that the HV had the ability to fight as a brigade.

11             One issue the HV faced was the lack of qualified non-commissioned

12     officers which are the backbone of any army.  While

13     Lieutenant-Colonel Herrick started to see an improvement in the NCOs in

14     the HV professional brigades over time due to training programmes, the

15     HV's Home Guard units always had problems of poor NCOs.

16             Lieutenant-Colonel Herrick had discussions with General Gotovina

17     about training and educating his troops to comply with the Law of Armed

18     Conflict and proper treatment of civilians.  In 1993, General Gotovina

19     informed him that all of his subordinate commanders were already ordered

20     to train their soldiers to follow the Law of Armed Conflict, to treat

21     civilians properly and to avoid atrocities.

22             With respect to Operation Flash in early May 1995,

23     Lieutenant-Colonel Herrick notes that the objective was to open the

24     highway across central Croatia.  In the process, the HV captured Sector

25     West.  The operation was well organised and well conducted.

Page 20045

 1     Lieutenant-Colonel Herrick never received the impression that the

 2     objective was to drive the Serbs out of Sector West.

 3             According to Lieutenant-Colonel Herrick, the general assessment

 4     of the international community prior to Operation Storm was that if the

 5     HV attacked the ARSK, they would lose.  Did he not share this view.  He

 6     assessed that the ARSK was stretched too far along the lines of defence

 7     and they had no defence in depth.  Together with support from its

 8     artillery, he surmised that the HV could mass their forces at a certain

 9     point along the line, break through at that point, end up behind the ARSK

10     lines quickly, and the fight would be over within two to three days.

11             Lieutenant-Colonel Herrick would interface with Krajina Serbs

12     when he would visit the Krajina with the United States Ambassador

13     Peter Galbraith.  With respect to negotiations prior to Operation Storm,

14     Serbs would agree to negotiate but it was just a delay tactic and they

15     were not interested in peaceful reintegration.

16             Prior to Operation Storm, Lieutenant-Colonel Herrick had a

17     conversation with Markica Rebic about the attack and what the response of

18     the international community would be.  He told Mr. Rebic that while he

19     could not speak for the international community, he believed that if the

20     operation was done quickly and civilians were safeguarded as was done in

21     May 1995 during Operation Flash, there would be little or no issues with

22     the international community.

23             While Lieutenant-Colonel Herrick departed Croatia on

24     2 August 1995, he was able to discuss Operation Storm as he was informed

25     in a general sense of the upcoming operation prior to his departure.  He

Page 20046

 1     was not surprised about the use of the artillery during the operation.

 2     Any military planner would use artillery in this situation.  Operation

 3     Storm was an almost classic classroom example of an offensive military

 4     operation from a tactical standpoint.  Lieutenant-Colonel Herrick does

 5     not believe that the operation was designed to drive the Serbs out of the

 6     Krajina.  Operation Storm was designed to re-take Croatian territory.

 7             That is basically the statement of Colonel Herrick,

 8     Mr. President.

 9             JUDGE ORIE:  Please proceed.

10             MR. KEHOE:  Thank you.

11        Q.   Colonel, as we discussed previously I'm just going to discuss

12     several items in -- that are set out in the course of your statement and

13     certainly not all of it.

14             And the first -- the first item I'd like to talk to you about is

15     in paragraph 4 of your statement where you talk about the in-depth

16     conversations that had you with General Gotovina approximately 12 times

17     between 1992 and 1995.

18             Do you see that, sir?

19        A.   I do.

20        Q.   And can you tell us about those discussions, Colonel Herrick, the

21     topics that were discussed and where those discussions took place?

22        A.   Part of my mission from the United States government in

23     coordination with the [indiscernible] of military attaches was to get an

24     understanding of the military situation in Croatia.  I spoke to the

25     defence minister, Mr. Gojko Susak, and got his permission to speak with

Page 20047

 1     his senior military leaders.

 2             The Krajina in particular, because of the location of Knin.

 3             JUDGE ORIE:  Mr. Herrick.

 4             THE WITNESS:  Sorry.

 5             JUDGE ORIE:  If you would not mind, I would like to interrupt

 6     you.  That was a rather simple question.  Topics which were discussed and

 7     you explained to us that you got the approval to speak with military

 8     leaders.  If Mr. Kehoe would be interested in knowing there was any issue

 9     of approval, or not he will certainly ask you.

10             Could you focus your answer on the question that was put to you

11     which was the topics that were discussed and where those discussions took

12     place.

13             THE WITNESS:  Thank you, Your Honour.

14             JUDGE ORIE:  I hope you understand --

15             THE WITNESS:  I do, sir.

16             JUDGE ORIE:  -- we try to use time as efficiently as possible.

17     And again if any further details or any other aspects, if the parties are

18     interested in it, we do not know yet, they will ask you for it.

19             THE WITNESS:  Thank you, sir.

20             The topics dealt with the deployment of Croatian forces, their

21     training, their equipment and their morale.

22             We spoke in his headquarters in Zadar, at restaurants in Zadar,

23     and on occasion at the training centre and in some field locations where

24     he was explaining the training that was going on and I observed some of

25     the training, and then I met him again in -- in Bosnia on the Dinar

Page 20048

 1     mountains.

 2             MR. KEHOE:

 3        Q.   Colonel, if question stay with the topics on his deployment of

 4     troops.  When you met him, did he tell you where his troops were and what

 5     the HV was planning?

 6        A.   On the first meeting he took me into his operations centre and

 7     showed me his operation map which showed the deployment of his force.  He

 8     outlined his area of responsibility, but he did not, at that time, tell

 9     me what his future plans were.

10        Q.   Colonel, you also mentioned you discussed training with

11     General Gotovina.  Can you give the Trial Chamber a sense of the

12     discussions that you had with General Gotovina about the content of those

13     discussions regarding training and what impressions you took away from

14     those discussions with General Gotovina.

15        A.   The discussions started in the very general sense and the fact

16     that the most important thing a commander can do for his soldiers is to

17     properly train them.  And he spoke to me about his policy of that.  I

18     commented that along with the military arts that soldiers are trained

19     that there are responsibilities of commanders to ensure that their

20     soldiers know the laws of land warfare and the proper conduct of the

21     treatment of prisoners of war and the safety and security of civilians.

22     He expressed that he received training in a prior military, training with

23     the French army, and that he was very cautious of that responsibility and

24     was taking steps or had taken steps to ensure that his commanders were

25     aware of it and the soldiers in the field were aware of it.

Page 20049

 1        Q.   And two time-frames, if you can, Colonel, the discussion that you

 2     just talked about where General Gotovina told you that he had received

 3     this training in the French army and had taken steps to ensure that his

 4     commanders were aware of it, approximately when was that?

 5        A.   That was in the spring of 1993 on the first occasion that I met

 6     General Gotovina.

 7        Q.   One more time-frame before we go into a couple of more paragraphs

 8     in your statement and that is the meeting that you had with

 9     General Gotovina on the Dinara.  Approximately when that?

10        A.   That was in late spring 1995.

11        Q.   And for what purposes did you go up to the Dinara in 1995?

12        A.   There were two reasons.  One was I had travelled with secretary

13     or Minister Gotovina [sic] into the Livno in December of 1994 and

14     observed the Croatian army/Bosnia army offensive in the Livno valley, and

15     I wanted to get an update on how far that operation had advanced.  And

16     the other was that there were allegations against the Croatian forces in

17     Bosnia of firing on United Nations post in the valley below the Dinara,

18     and -- so I got permission from the Ministry of Defence to travel there

19     and observe for myself.

20        Q.   If I may, Mr. President, I believe there is one correction if

21     Your Honour on page 22 on page 2, it talks about a minister -- I take

22     that back, I do believe.

23             When you went to the Dinara in 1995, the minister that you were

24     referring to was whom?

25        A.   It was Mr. Susak.

Page 20050

 1        Q.   That's clear now.

 2             One last question before we go into the training.  You commented

 3     about the responsibility to train soldiers and that was an important

 4     issue.  Was that something that was said by you or by General Gotovina or

 5     what was the interplay there?

 6        A.   I apologise, I can't be more precise, because that conversation

 7     was some time ago, but it was a mutually agreed upon discussion that the

 8     training was important.  I raised it.  He concurred and elaborated on

 9     what he was do to go train his force.

10        Q.   Let's talk a little bit about that before we go back.  Let's take

11     it from a macro level before we take it down to the Split Military

12     District level.

13             And I would like to address you, generally, to your paragraphs 6

14     through 13 where you discuss the development and the training of the HV

15     in Croatia during the time you were there.

16             And without repeating everything there, can you take us through

17     your analysis, Colonel, from your initial assessment and how you observed

18     the training in the HV progressed during your time-frame?

19        A.   Prior going to my post in Zagreb, I was the US army attache in

20     Belgrade Yugoslavia, and before the United States formally recognised

21     Croatia as a separate country, and I was under US guidance I was still

22     accredited to all the republics of the former Yugoslavia and travelled to

23     each one of those.

24             So I observed JNA forces in the field on their side of the

25     military lines, and on other occasions I would travel to Croatia and

Page 20051

 1     observe Croatian forces in the field.  This was -- would have been in the

 2     summer and fall of 1991 and then in the spring -- winter and spring of

 3     1992.

 4             And I saw -- I would characterise as a trained but not

 5     particularly effective organised Croatian army in those early days of

 6     people who might have had some former military training but did not

 7     appear to be well disciplined and organised as an effective fighting

 8     force.

 9        Q.   Let me stop you right there.  If we can just get some definitions

10     if we can because you used the word discipline in the course of your

11     statement, and for the Trial Chamber's purpose, can you describe when you

12     say discipline what are you talking about?

13        A.   Obviously there's personal discipline and there's military

14     organisational discipline.  I'm referring to the later, more specifically

15     here, and you can observe that in field units by the way they're

16     deployed, by the way a unit will be marching along a road and get off the

17     road and take a break.  A disciplined unit will do it with a sense of

18     putting out security and being aware of their surroundings but allowing

19     part of the unit to relax while the other part stays attentive to

20     potential combat operations.

21             The times that I observed the Croatian army in the early days,

22     when they took a break, everybody took a break.  There was not a sense of

23     impending peril, although in some cases where I was they were not far

24     from potential enemy contact and they otherwise should have been, so it

25     is in that respect that I made that judgement.

Page 20052

 1        Q.   Now the development of this training that you saw in 1992, did

 2     you see how the HV began to develop from the smaller unit level to the

 3     higher up to the brigade level and can you give us a sense of your

 4     observation there and what success that they achieved, if any.

 5        A.   Yes, I can.  And if I may, I will say I had conversations about

 6     this with both Defence Minister Susak and with General Bobetko.  And I

 7     expressed my observations, and they expressed that they had observed the

 8     same things.  And General Bobetko had told me that because of that they

 9     were -- they were setting up formal training programmes and they were

10     starting with primarily company grade officers and --

11        Q.   When you talk about a company and you go into this, can you give

12     us an approximate size of soldiers in company, battalion, brigade,

13     et cetera, as you're discussing this.

14        A.   Generally an army company, an infantry company, will consist of

15     somewhere between 100 and 150 soldiers.  You would have three to four

16     companies in a battalion.  A company might be led by a senior lieutenant

17     or a captain.  A battalion would be commanded by, generally, a

18     lieutenant-colonel.

19             And so in order to fight effectively, then you have to all your

20     subordinate commanders and officers and NCOs accordingly trained and

21     that's what both Minister Susak and General Bobetko were concerned about,

22     and that's what I was observing in the field.

23        Q.   Now, let's talk about that.  Tell us what you were observing in

24     the field and tell us, before we go into specifics, about what you

25     observed.  What did you in your conversations with Bobetko and Susak

Page 20053

 1     discuss as to what the problem was, especially with regard to NCOs?

 2        A.   Well, most of the Croatian soldiers were either coming out of the

 3     police force or the Territorial Defence force of the reserve army of the

 4     JNA, and they had been essentially trained as the Territorial Defence

 5     force any ways, in basic infantry combat tactics of use of a weapon and

 6     the defence of their home town.  If attacked, then they were trying to

 7     fall back into the hills and conduct delaying tactics and impede the

 8     advance of the enemy until the formal army could take action.

 9             And so those soldiers were not particularly trained well enough

10     to -- to be an a professional army in my terms or my sense of a NATO

11     force would be.  And so they were -- they knew how to use weapons but

12     they did not or nor did they particularly demonstrate good military

13     manoeuvre or the ability to operate as a unit.

14        Q.   Let us address ourselves directly first to -- to paragraph 7 the

15     last line in your statement where you say:

16             "Because the HV lacked experienced NCOs with years of training,

17     the NCOs that the HV did have were not able to properly instill

18     discipline in the troops."

19             Turning your attention ahead to paragraph 11, where you discuss

20     this further, you note that:

21             "NCOs are the backbone of any army.  Ideally an army will have

22     one NCO to supervise eight to ten soldiers, while one officer for 50 to

23     100 soldiers.  As I discussed in paragraph 7, the problem an army faces

24     without adequate number of NCOs is that it results in a fighting force

25     without leaders on the ground potentially resulting in a lack of

Page 20054

 1     discipline with armed soldiers responding to the situations viscerally

 2     rather than professionally."

 3             Colonel, if you could, could you just elaborate a bit on the

 4     importance of the NCOs and leading to this final statement that you make

 5     about soldiers that don't have adequate -- soldiers responding viscerally

 6     rather than professionally because of inadequate NCOs leading them?

 7        A.   If I may, I mention the size of a company.  A company is

 8     generally made up three platoons.  It would be each -- or four platoons

 9     and each platoon would be led by a senior NCO, a non-commissioned

10     officer, who is responsible for ensuring that the soldiers continue their

11     military training after they have been to a basic training course, where

12     they would learn how to March in a straight line, shoot a weapon

13     properly, learn how to do a proper field sanitation technique, so they

14     can still stay operational in the field.

15             But after basic training you have to ensure that then individuals

16     who now know the basic skills can operate as a military organisation.

17     And within a platoon, you would have squads and each squad would have a

18     NCO, a junior NCO, and they would be responsible for a team of -- of

19     eight to 12 soldiers, and they would be -- you might have a machine-gun

20     unit and -- where the gunner might now how to fire the machine-gun and he

21     needed to how the unit trains to operate in the field because you

22     certainly wouldn't want your machine-gunner to lay down a field of fire

23     and hit his own soldiers, and you want to make sure that the other

24     infantry soldiers know how the machine-gunner is going it operate so that

25     they don't walk into their own field of fire.

Page 20055

 1             Without properly trained NCOs that -- that machine-gun crew, that

 2     squad, and that platoon will not effectively operate together and be

 3     effective on the field of combat.  And in that platoon of 30 soldiers you

 4     could have a -- probably a lieutenant who would be organising the platoon

 5     activities with -- to coordinate those with the company but it's that

 6     platoon Sergeant that is going to make the platoon enlisted men operate

 7     as an effective fighting force.  And that's why non-commissioned officers

 8     are so critical to any army.

 9        Q.   Now, we talked to you a little bit in your statement about

10     training and here today, and again in paragraph 11, you talk about the

11     time commitments necessary to train NCOs to take over be it a squad or

12     platoon.

13             Can you talk to us a little bit about that and I understand the

14     frame of reference is the -- your's is the United States of America, but

15     just generally based on your military experience with the United States

16     and other NATO countries what is the general consensus about what kind of

17     time is necessary for that type of training to have a NCO who is ready to

18     take on that task?

19        A.   Generally, a junior NCO that would lead a squad of eight to ten

20     people would have three to five years of military experience, both formal

21     training and experience operating in the unit that he is assigned to.

22             A platoon sergeant would probably have eight to ten year, maybe

23     even up to 15 years of experience, and so that there aren't many events

24     that a platoon would be engaged in that he would not have had the

25     experience within that ten-year experience, so he would be able to pass

Page 20056

 1     on that training to his junior enlisted men.

 2        Q.   Now what is -- sorry.  Now, with regard to military discipline,

 3     what is the importance of properly trained non-commissioned officers in

 4     the maintenance of military discipline itself?

 5        A.   Well, when normally when somebody gets shot at, they will look

 6     for cover and for protection.  If a military unit comes under fire, if

 7     everybody seeks protection, then no one is fighting back, generally.  And

 8     they become ineffective on the battlefield and so what you have to train

 9     a military unit to do is to advance and fire back if you're on the

10     attack, if you're on the defence, then you probably would be fighting

11     from protected positions.  It could be a fox hole or it could be a -- if

12     you had time to prepare a position, you would have sand bags and bunkers

13     in order to protect yourself from small-arms and artillery fire.

14             But you do have to train to act, to move forward, and fight in

15     combat and not be concerned about your individual protection.  If you do

16     that, then -- if everybody in the unit is only concerned about their

17     individual protection, the unit will probably be destroyed on the

18     battlefield.

19        Q.   And how -- and how does that explanation you just gave us play

20     into your comment about ensuring that -- that soldiers react

21     professionally as opposed to viscerally, just in paragraph 11?

22        A.   Well, yeah.  My reference was to -- if you're acting individually

23     and you are responding to your immediate emotions, you will be

24     ineffective as a unit, people will not lay down a base of fire in the

25     same direction, on the same or direct the target, and there is certainly

Page 20057

 1     no professionalism in that manner of contact.

 2             If you are trained to fight as a unit, you understand how you

 3     fire and manoeuvre, and part of the unit will lay down protective fire

 4     while the other moves forward in combat.  The unit that is now in front

 5     will put down protective fire and the trail unit will move forward.

 6     Those units who operate in that manner who have received that type of

 7     training and will operate in that way in combat, and what we find and

 8     what we say is that you will fight the way you're trained.  And though,

 9     therefore, you need to have skilled, trained NCOs to ensure that the unit

10     is effective.

11             Now, a part of that is, as you come across that same

12     professionalism is not only how you fire the weapons as a unit but how do

13     you treat prisoners that you take, or how do you treat innocent civilians

14     who happen to be -- in a military area of operation, and so your unit has

15     to be trained how to respond to that as well.

16        Q.   Let's -- if we may, let's delve a little bit more into that and

17     what we're talking about in regard to discipline as opposed to combat

18     discipline against an opposing force with regard to personal discipline

19     and malfeasance by soldiers, tell us about the role of NCOs in that

20     particular area?

21        A.   Well, an army's form, when government form armies, there are

22     international agreements on how they will conduct themselves, and so how

23     an individual treats a prisoner of war or a civilian in combat, it ties

24     back to their professional leadership and so he needs to be trained and

25     instructed --

Page 20058

 1        Q.   The "he" being who?

 2        A.   The individual soldier.  Needs to be trained and instructed on

 3     how to respond so it becomes a -- well, a course of conduct in battle.

 4     The US army is very clear, it has a field manual on the Laws of Land

 5     Warfare.  It's kind of a subset of the Law of Armed Conflict which is a

 6     broader law.  And this was a topic of discussion I had with Croatian

 7     commanders, with the defence minister and the chief of defence, General

 8     Bobetko.  And it was a topic of discussion I had with General Gotovina on

 9     our first meeting, and I mentioned the US army manual, and he asked me

10     for a copy and we provided it to him.

11        Q.   Now, going back on the role of the NCOs and talking about

12     soldiers who possibly are committing crimes, do the NCOs, themselves,

13     need extensive training on how to deal with the situation when you have

14     soldiers who are possibly committing crimes?

15        A.   Yes, they do because not everybody responds the same way despite

16     being train the properly, and so the NCO has to be able to step in and

17     take charge and responsibility for the people assigned underneath them,

18     and so if he has a situation where soldiers began to act inappropriately

19     or illegally, the NCO is legally bound to stop them and correct them on

20     the spot and ensure the safety of either prisoners or innocent civilians.

21        Q.   Let us now translate this back into the HV during the time-frame

22     you were there and taking into consideration the beginning of the HV

23     through your time in 1995.  With regard to these NCOs, what hurdles did

24     the HV have to get over during this relatively short period of time?

25        A.   Generally the soldiers that they had, they were trained by the

Page 20059

 1     JNA, were generally not active duty JNA soldiers, and the --

 2     General Bobetko told me that he did not or could not rely on the JNA

 3     model because the JNA was a cadre army, and this was something that I had

 4     known previously, that was made up of officers and senior NCOs, and --

 5     and that was the standing army, and then young men would be conscripted

 6     into the army for 12 to 18 months and would not get a full breadth of

 7     military training and experience during that time-period, and then they

 8     would be return back to the reserves or to the territorial guard.  And so

 9     they didn't have the full breadth of military training to include the

10     understanding of the Laws of Land Warfare and not so much that what they

11     had received but to the degree where they could impart that training to

12     somebody else, and this was something that the Croatian senior leaders

13     recognised as something that they had to correct.

14        Q.   Now, Colonel, were you aware of efforts by the HV to cure these

15     deficiencies by training internally as well as by training through

16     outside entities?

17        A.   The Croatian army set up a training school or an academy for

18     junior officers initially and for -- and they drew -- they began to be

19     very critical of the people who had served in the former JNA because that

20     was not the model of the army they wanted to build, and so they started

21     to look for soldiers who had demonstrated courage and leadership in

22     battle.

23        Q.   Colonel, let me just interrupt you.  If you can give the Chamber

24     a time-frame for this, it would be helpful.  Approximately.

25        A.   This would have -- this started to occur in late 1992, shortly

Page 20060

 1     after General Bobetko became the chief of the army.  Up to that time

 2     General Tus, JNA air force officer, was in charge and he was replaced by

 3     General Bobetko.  And partly, and partly because that -- and so General

 4     Bobetko and his staff began setting up training programmes and turning to

 5     the corps commanders to ensure that that was continued.

 6        Q.   How about training at the NCO level to cure those deficiencies?

 7        A.   Well, actually, they turned principally to General Gotovina and

 8     had him set up a school in Zadar for the training of NCOs.

 9        Q.   And when did that begin, sir?

10        A.   I'm not sure of the exact date, but it was in 1993.

11        Q.   Now, Colonel, just looking at the beginning -- excuse me.

12             Before I ask you some questions taking up to 1995.  Do you know

13     why they selected Gotovina for this training, to do the training in

14     Zadar?

15        A.   I think they had a lot of respect for General Gotovina.

16     Defence Minister Susak told me that he thought General Gotovina was his

17     best combat general, and he had demonstrated the ability to train within

18     his own corps, and they wanted him to extend that training to all the

19     professional brigades.

20        Q.   Before we talk about the professional brigades and the Home Guard

21     units, Colonel, I mean, based on your experience and the years that you

22     talking about for training in NATO forces, do you think that -- believe

23     that the HV had sufficient time to develop the NCOs to a level of

24     proficiency given the time-frame that they had?  A high level of

25     proficiency, I should say.

Page 20061

 1        A.   No, I don't.  While the NCO training course itself might be done

 2     in three to six months, that's formal training and you also need

 3     practical experience to go along with that.  Again, most -- the US army

 4     and most NATO countries a junior NCO would have three to five years of

 5     training.  By the time they started the training course, there is was a

 6     two-year period before Operation Storm.

 7        Q.   Was there a difference there the training that you observed

 8     between the professional brigades that General Gotovina was dealing with

 9     and the Home Guard unit?

10        A.   Well, the Croatian leadership realised that they didn't have the

11     resources to train or the time to train the full army, so they

12     concentrated on the professional brigades and the territorial guards or

13     the reserves continued to train in exercises, but -- field exercises but,

14     for the most part, did not have formal classroom training.

15        Q.   Now, prior it your testimony today, Colonel, you talked about Law

16     of Armed Conflict and how to conduct the law -- excuse me, how to conduct

17     combat pursuant to that law, and you noted had you a conversation with

18     General Gotovina about the Law of Armed Conflict and the treatment --

19     treatment of civilians and prisoners of war.  Is that basically the topic

20     of discussion that your referring to in paragraph 12 of your statement?

21        A.   Yes, it is.

22        Q.   Now, Colonel, if I can direct your attention to the last sentence

23     of paragraph 12, and I'd just like to ask you some follow-up questions on

24     that score.  And we're talking about the topic of treatment of civilians

25     and operating.  In accordance to the Law of Armed Conflict, you note

Page 20062

 1     that:

 2             "With respect to this topic, General Gotovina, in 1993, informed

 3     me that all his subordinate commanders ... were already ordered to train

 4     their soldiers to follow the Law of Armed Conflict to treat civilians

 5     properly and to avoid atrocities."

 6             And then in paragraph 13 you go through a bit of a discussion

 7     there.  Can you give us a sense of that discussion of -- with

 8     General Gotovina and what you took away from that and how you began to

 9     check whether or not or did you begin to check whether or not that story

10     was true?

11        A.   Well, we had a discussion on -- on the training of the Law of

12     Armed Conflict, the Law of Land Warfare, which was -- is a US army term,

13     the term I used, and the responsibility of officers and NCOs to ensure

14     that the people -- the soldiers are properly trained and conduct

15     themselves accordingly.  This was a topic I raised in an article of

16     Croatian military magazine.

17        Q.   Let me stop you before you continue on.  You raised it in

18     "Hrvatski Vojnik," a Croatian soldier; is that right?

19        A.   Yes, I did.

20        Q.   Let me just show you that article.

21             MR. KEHOE:  It's -- if could I bring that up, Mr. President,

22     1D2777.  Mr. President, I did consult with Mr. Russo prior to this, if I

23     can make an ore tenus motion to add it to the 65 ter list as well.  I

24     think Mr. Russo informed me he has no objection.

25             MR. RUSSO:  That's correct, Mr. President.

Page 20063

 1             JUDGE ORIE:  Yes, so, therefore I take it that you will tender it

 2     and implicitly ask for adding it to the 65 ter list.  That's understood.

 3             MR. KEHOE:  Thank you, Mr. President.

 4        Q.   Is this the article that you're referring to, Colonel?

 5        A.   Yeah, it appears to be so, yes.

 6        Q.   With the handsome chap many years ago.  We all looked better 14

 7     years ago.  I even had hair.  Excuse me.

 8             MR. KEHOE:  At this time, Mr. President, we'll just offer into

 9     evidence 1D2777, adding it to the 65 ter list and admitting it into

10     evidence.

11             JUDGE ORIE:  Mr. Registrar, since we know the position of the

12     Prosecution already.

13             THE REGISTRAR:  Your Honours, that becomes Exhibit D1579.

14             JUDGE ORIE:  And is admitted into evidence.

15             MR. KEHOE:

16        Q.   Now, Colonel, this topic of dealing with civilians and conduct

17     themselves properly was obviously something of importance to you.

18        A.   It was.  I had agreed to an interview by Croatian military

19     magazine.  They had a list of questions which I responded to.  They then

20     asked if there was anything else I wanted to add, and I added the piece

21     on the Law of Land Warfare and the responsibility of the commanders.

22        Q.   And let me just go back to the conversation with General Gotovina

23     and what did you to, you know, check the veracity as to what he was

24     telling you.  A, what he told you and what you did to check the veracity?

25        A.   As I would go out in the field to observe and visit units, I

Page 20064

 1     would ask soldiers if they had received training, and I cite in this one

 2     particular case where I was visiting up on Dinara mountain, and the jeep

 3     driver who was -- who was taking me to an area of observation with just

 4     myself and my deputy in the vehicle, and so there was no Croatian leader

 5     to hear the conversation, I asked him if he had received training in the

 6     Laws of Land Warfare and if he had observed any military atrocities in

 7     his time in the military, and, at that time, I believe he said he been in

 8     three years.

 9             He said with quite a bit of pride that he had received it, and in

10     all the time that he been in the army, his unit was very proud that they

11     had not committed any atrocities, and this was something his units, under

12     General Gotovina, had been trained and was -- spoke freely about.

13        Q.   Colonel, you mention that one example.  Did you have this

14     discussion or get this impression with dealing with other soldiers as

15     well?

16        A.   I did.  But in this particular case, he volunteered that his

17     units was proud that they had not conducted any atrocities in the battles

18     that he had been in.  Others had not said that.

19             So this particular case stuck in my memory.

20        Q.   And what did you take away from that conversation?

21        A.   Well, this was approximately two years after my first

22     conversation with General Gotovina, and it -- reinforced the -- my belief

23     that what he told me was true.

24        Q.   With regard to?

25        A.   The training of the Laws of Land Warfare to his soldiers.  So,

Page 20065

 1     here, a corps commander is telling me what he's done, so the most senior

 2     person in the corps is telling me, Here's what we with are doing in our

 3     army and a very junior soldier who would -- driving the US defence

 4     attache is an important job but not as important as the corps commander,

 5     that junior enlisted man had gotten the word.  That training had gotten

 6     down to his level.

 7             MR. KEHOE:  Mr. President, I note the time.  I'm going to go into

 8     this subject at this --

 9             JUDGE ORIE:  Yes.  Could you give us an indication as to ...

10             MR. KEHOE:  Frankly, Mr. President, half an hour, 45 minutes at

11     the outside.

12             JUDGE ORIE:  Yes.

13             We'll have a break.

14             Mr. Herrick, when I addressed you as Mr. Herrick, we have seen a

15     lot of military and civilian authorities before us:  All rank, titles,

16     academics, medical doctors.  This Chamber is used to addressing everyone

17     as mister, which is not, in any way, to be understood as a lack of

18     respect for the achievements from those persons, which is usually

19     expressed by their titles and by their ranks.

20             We will have a break and resume at a quarter past 4.00.

21                           --- Recess taken at 3.50 p.m.

22                           --- On resuming at 4.18 p.m.

23             JUDGE ORIE:  Mr. Kehoe, please proceed.

24             MR. KEHOE:  Yes, Mr. President.  Thank you.

25        Q.   Colonel, if I could just get one point of clarification.  Earlier

Page 20066

 1     today on page 22, line 6, I was asking you about the going up to the

 2     Dinara, and I said for what purposes did you go to the Dinara in 1995.

 3     And answer on 7, there are two reasons, one was, I was travelling with it

 4     was Minister Susak into Livno in the summer of 1994.

 5             And if I could go to the sentence that begins on line 10:

 6             "And the other was that there were allegations that Croatian

 7     forces in Bosnia of firing on United Nations posts in the valley below

 8     the Dinara and so I got permission from the Ministry of Defence there to

 9     observe for myself?"

10             Colonel, do you know the results of that investigation of

11     allegations that the Croatian forces were firing on an UN post?

12        A.   No, I don't believe I ever knew the outcome of that

13     investigation.

14        Q.   Colonel let's move ahead in your statement to paragraph 14 where

15     you talk about Operation Flash and your discussions with Minister Susak,

16     and you note that in the fifth line of the objective was to open the

17     highway across central Croatia.  The objective of Operation Flash, I take

18     it, was to open the highway across central Croatia; do you see that, sir?

19        A.   Yes, I do.

20        Q.   Tell us a little bit.  What is this central highway you're

21     talking about.  You know, from your experience in the area, what is the

22     significance of that?

23        A.   It was a divided highway.  It was a -- I forget the international

24     highway number, but it was a major commercial route that ran the -- the

25     east/west length of Croatia between -- primarily between Zagreb and

Page 20067

 1     Belgrade.  It provided -- it was a major commercial issue for Croatia,

 2     because it connected the east end of Slovenia with the rest of Croatia.

 3        Q.   Had there been discussions with the Krajina Serbs about opening

 4     that highway, sir?

 5        A.   There were, and discussions with Belgrade leadership.  And than

 6     had been -- the conversation had been going back and forth.  At one time

 7     it appeared as though the Serbs were going to agree, and at the last

 8     minute they changed their mind, and I believe this happened several times

 9     and it -- finally a decision was made within the Croatian government to

10     open it by force.

11        Q.   Now were these negotiations prior to Operation Flash consistent

12     with your comment in paragraph 18 that the Krajina Serbs were not

13     interested about agree to go a peaceful reintegration into Croatia.

14        A.   They contributed to that understanding, but I believe what I'm

15     referring to here are negotiations that Ambassador Galbraith was directly

16     involved with, with other ambassadors in Croatia to open a dialogue

17     between Knin and Zagreb.

18        Q.   Let's just go back, if we may, to paragraph 14 and your

19     discussions with Minister Susak, where you discuss the objective and the

20     fact that the HV took Sector West.

21             Now, did you have discussions with Minister Susak as to -- with

22     respect to the follow-up operations after the military operation in

23     Operation Flash?

24        A.   We did, and I had discussions with Ambassador Galbraith as well.

25     We were concerned for the safety of citizens in the region, and we went

Page 20068

 1     and made several visits, and I don't recall the names of the towns we

 2     went to, but we went to several locations to observe that it was under --

 3     after the incursion that it was under civilian law or civilian rule and

 4     that the rights of the citizens in Sector West were being --

 5        Q.   Now this statement that you have under civilian law, civilian

 6     rule, can you explain how that came about and can you explain how you

 7     came to your understanding that it was under civilian law and rule?

 8        A.   Well, the operation, Operation Flash, was characterised to us as

 9     a police operation that -- and the police were being supported by the

10     army but that the police were in charge of the operation.  When I was

11     notified of the -- that the operation was about to occur, it was about

12     1.00 or 2.00 in the morning, and our -- the escorts said, We're going to

13     take you to the operations centre.  We, in fact, went to the police

14     headquarters and received a briefing.  We did not go to the Ministry of

15     Defence.

16        Q.   Did you have an understanding based on your discussions with

17     Croatian officials as to what the army's role was and how long they were

18     supposed to stay and what they were supposed to do when the operation was

19     complete?

20        A.   Because there were armed RSK soldiers from the army of the

21     Republika Srpska in the Krajina, the army would deal with those forces

22     but the rest of it would be under police operations and control.

23        Q.   Now, you note in paragraph 14 that the operation was well

24     organised and well conducted.  What's the basis of your position on that

25     score?  And that's in paragraph 14, the second-to-last sentence.

Page 20069

 1        A.   It was my understanding, for the basis of that comment, was the

 2     briefing I received and how the operation would be conducted, that the

 3     fact that UN forces in the sector would be notified prior to any military

 4     contact, and -- and that their rights to be secured and safety would be

 5     secured as well, that the UN forces were notified and UN headquarters was

 6     notified, and that the rights of civilians would be ensured.

 7        Q.   The last sentence on that paragraph that you say:

 8             "I never received the impression that the objective was to drive

 9     the Serbs out of Sector West."

10             Tell us the basis for that impression, sir.

11        A.   That was not declared as one of the objectives.  And then as I

12     went into Sector West and spoke to Serb citizens and other officers from

13     the US embassy and other embassies went into Sector West, the Croatian

14     government made it possible for foreign government representatives to go

15     and see for themselves, not just it take the word of the Croatian

16     government.  And in those discussions with Serb citizens, we felt that

17     their rights were being observed.

18             JUDGE ORIE:  Mr. Misetic -- Mr. Kehoe, I missed the beginning of

19     the answer here.  If could you look with me on the screen, page 41, line

20     17, you were asked about the basis for your impression that you never

21     received -- that you never received the impression that the objective was

22     to drive the Serbs out of Sector West.  And then you said that was not

23     one of ... I remember that you said something.  It was not one of the

24     reasons given to you or is it --

25             THE WITNESS:  Yes.  It was when I received the briefing on the

Page 20070

 1     operation, it was not one of the objectives.

 2             JUDGE ORIE:  Yes.

 3             THE WITNESS:  And then when I went into Sector West and spoke

 4     with Serb citizens, the conversations I had with them was that their

 5     rights were being protected.  They were, of course, fearful but they said

 6     they had not been mistreated and had not been -- their rights objected

 7     to.

 8             JUDGE ORIE:  Thank you for that clarification.  Perhaps if you

 9     could just take a little pause between question and answer, and Mr. Kehoe

10     will do the same - I know that - then we'll not have any risk that part

11     of your testimony would be lost.

12             THE WITNESS:  Yes, sir.  Thank you.

13             JUDGE ORIE:  Please proceed, Mr. Kehoe.

14             MR. KEHOE:  Thank you, Mr. President.

15        Q.   Before we move out of Sector West, I mean, at this time, Colonel,

16     was the HV large enough to hold ground like that which was in Sector West

17     and also meet other possible military contingencies around Croatia?

18        A.   Well, it was large enough to accomplish the mission in taking

19     Sector West.  It was a very quick operation, and army forces vacated the

20     region as soon the objective was achieved, and police forces were in --

21     were responsible and I observed that in the locations I went to.

22             I'm not -- I -- I'm not sure what other contingencies you have in

23     mind.

24        Q.   To the extent that they had to meet other possible combat

25     operations against either the VRS or against the ARSK.

Page 20071

 1        A.   No other operations occurred at the time so I --

 2        Q.   Let's move up to the other operations, if we can, and if we can

 3     move back to the Dinara and just go paragraph 16 where you talk about

 4     your assessment of the situation prior to Operation Storm and the fact

 5     that there was no depth in the defence by the ARSK.

 6             Now, prior to Operation Storm, you were -- were you -- you were

 7     aware of military operations being conducted by General Gotovina up in

 8     the Dinara area in June of 1995, were you not, sir?

 9        A.   Yes, I was.

10        Q.   Let me show you a US code cable, 1D2775, dated 16 June 1995.

11             You have seen this document before today, Colonel, have you not?

12        A.   Yes, I have.

13        Q.   And as I said, this is a cable for 16 June 1995.  In the summary:

14             "The Croatian army concluded its seizing of key terrain in the

15     Dinara mountains overlooking Knin as of 11 June 1995."

16             MR. KEHOE:  If we can go down to - that's at the bottom of the

17     page - paragraph 22.  I'm not quite sure what the numerical sequencing,

18     Mr. President, is.  There's a second 2 in the left-hand side.

19             THE WITNESS:  May I explain?

20             MR. KEHOE:

21        Q.   Absolutely.

22        A.   These cables are written in three parts, a summary, a text, and a

23     comment section.  So you have a text 1 and a text 2, a comment section,

24     1, 2, and so on.  If I were referring to this, I would say in the

25     comments section, paragraph 2.  Perhaps that's what you're referring to.

Page 20072

 1        Q.   Yes, I am.  It notes -- in paragraph 1 there, it notes the taking

 2     of that ground on the Dinara of paragraph 2:

 3             "HV corps commander Major-General Ante Gotovina commands the

 4     operation in the Dinara mountains and has been given orders to stop with

 5     the terrain he currently holds and not to conduct any actions which would

 6     precipitate a further military response from the Krajina Serbs.  The

 7     Croatian government does not believe that the ... military [sic]

 8     resolution to the crisis is possible and is prepared to move militarily

 9     to retake the Serb occupied parts of Croatia."

10             Discussing this particular military operation and

11     General Gotovina being up on the Dinara, is this consistent with what you

12     knew at the time in June, mid-June of 1995?

13        A.   Yes, it is.

14             MR. KEHOE:  Your Honour, at this time, we'd like to offer into

15     evidence 2D2775.

16             MR. RUSSO:  No objection.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Your Honours, that becomes Exhibit D1580.

19             JUDGE ORIE:  And is admitted into evidence.

20             MR. KEHOE:

21        Q.   Now this Chamber has -- likewise, as we move from June into July,

22     this Chamber has received quite a bit of evidence about what was going on

23     with regard to the Bihac pocket.  And I'd like to show you another cable

24     on that score from July the 24th of 1995.

25             MR. KEHOE:  And, Mr. President, if we could bring up 1D2774.

Page 20073

 1        Q.   As I noted, this was the cable of 24 July 1995, the summary at

 2     the top:

 3             "Croatian ... forces prepare to draw Krajina Serb forces away

 4     from Bihac to counter the Serb offensive in the UN Safe Area.  Bihac is

 5     strategically important to Croatia and Croatia is not prepared to let it

 6     fall to Serb forces."

 7             If we could turn the page, paragraph 3, the last sentence:

 8             "This push would include neutralising Serb forces in Titov,

 9     Drvar, and Bosanski Petrovac, recognise the extreme risk this entails but

10     asserted that the fall of Bihac entails a greater risk to Croatia."

11             And if you could show you another document in conjunction with

12     this, Colonel, so we can move through this quickly.

13             I would like to bring up 1D2776, a cable dated 28 July 1995.

14             MR. KEHOE:  Mr. President, just getting a little feedback on this

15     microphone.  If I could just switch to this one.

16        Q.   This cable, sir, is 28 July.  If we go to the summary first:

17             "The Croatian army and Croatian Defence Council captured the

18     towns of Bosansko Grahovo and Glamoc on 28 July 1995.  Portions of the

19     Grahovo Knin and Grahovo Drvar roads are now also under Croatian control.

20     Titov, Drvar is the next operational objective."

21             If we go down to the bottom of the page under 2:

22             "Croatian analysts were surprised at the lack of depth of Serb

23     defences.  Serb front lines were well fortified but once forced," we turn

24     the page, "from their front line bunkers, they had no second or third

25     line of defence."

Page 20074

 1             Again, these two cables, sir, are these consistent with what you

 2     knew about what was going on on the ground just prior to the combat in

 3     Bosansko Grahovo and Glamoc and thereafter when the Croatian forces took

 4     over Bosansko Grahovo and Glamoc?

 5        A.   Yes, they are.

 6             MR. KEHOE:  Your Honour, we'll offer into evidence 1D2774 and

 7     1D2776.

 8             MR. RUSSO:  No objection.

 9             JUDGE ORIE:  Mr. Registrar.

10             THE REGISTRAR:  Your Honours, that will become Exhibit D1581 and

11     D1582, respectively.

12             JUDGE ORIE:  And both admitted into evidence.

13             Please proceed.

14             MR. KEHOE:

15        Q.   One last area, Colonel, and that has to do with the period of

16     time just prior to Operation Storm.  I note in your statement that you

17     left the area on 2 August 1995 prior to Operation Storm.  And you note in

18     paragraph 21 that -- and this is about second-to-last sentence --

19     actually second sentence you said you had discussions with Minister Susak

20     about tactics, and in the second-to-last sentence you know any military

21     planner would use artillery in this situation to take out the

22     headquarters and communication centres so that any break in the line

23     could not be reinforced.  Operation Storm was an almost classic example

24     of an offensive military operation from a tactical standpoint.

25             As a military man talking to civilians, Colonel, can you just

Page 20075

 1     explain that just a little bit more in depth?

 2        A.   Traditionally in an offensive military operation, the offensive

 3     force would not attack across a broad front but would focus its -- its

 4     forces and penetrate through a weak part of the defence line.  To ensure

 5     that its weak part, there would be an artillery preparation on military

 6     targets along the front line to -- to destroy the fighting force of the

 7     enemy and you also attack the headquarters of the military force to cause

 8     confusion and so that new orders that would redirect reinforcements could

 9     not be issued and you -- you would attack communication, military

10     communication sites, in order to cut off their means of communicating

11     those orders.

12             This is typical offensive planning in the military art, and this

13     was the planning that had I been briefed on by the defence minister.

14        Q.   One last question with regard to paragraph 22.  You note that:

15             "I do not believe that the operation" - talking about Operation

16     Storm - "operation was designed to drive the Serbs out of Krajina.  The

17     operation was designed to re-take Croatian territory?"

18             What's the basis of your -- or the background for that statement,

19     sir?

20        A.   This was a comment that Defence Minister Susak made to me, that

21     their objectives were to penetrate the Krajina and a move to secure the

22     area as quickly as they could, and to minimise international criticism

23     on -- against Croatia and to ensure that civilian or innocent personnel

24     were not involved in the conflict.

25             I had these same conversations with the chief of defence,

Page 20076

 1     General Cervenko and it was, I believe, the basis of the question that

 2     Markica Rebic, the Assistant Minister for intelligence, asked me what --

 3     I comment in paragraph 20 what I thought or how I thought the

 4     international community would respond to an offensive operation in the

 5     Krajina.

 6             MR. KEHOE:  Your Honour, if I might have one moment, please.

 7                           [Defence counsel confer]

 8             MR. KEHOE:  Mr. President, I have no further questions of

 9     Colonel Herrick.

10             Colonel, thank you very much.

11             JUDGE ORIE:  Thank you, Mr. Kehoe.  I have a small question to

12     you:  Is there any agreement between the parties about the date of the

13     interview which was published in "Hrvatski Vojnik," because I neither see

14     in the original nor in the translation any reference to a date.

15             MR. KEHOE:  Mr. President, if you give me a moment and send an

16     e-mail back to the office, and I think that we could find that out in

17     short order.

18             JUDGE ORIE:  Yes, we wait for your answer.

19             Mr. Cayley, any questions by the Cermak Defence.

20             MR. CAYLEY:  Nothing arises from us, Your Honour, thank you.

21             JUDGE ORIE:  Mr. Mikulicic.

22             MR. MIKULICIC:  No questions, Your Honour.

23             JUDGE ORIE:  No questions from the Markac Defence.

24             Mr. Russo.

25             MR. RUSSO:  Yes.

Page 20077

 1             JUDGE ORIE:  Mr. Herrick, you will now be cross-examined by

 2     Mr. Russo.  Mr. Russo is counsel for the Prosecution.

 3             MR. RUSSO:  Thank you, Mr. President.

 4             JUDGE ORIE:  Please proceed.

 5             MR. RUSSO:  Thank you, Mr. President.

 6                           Cross-examination by Mr. Russo:

 7        Q.   Good afternoon, Colonel.  Colonel, I want to start off on this

 8     last topic.  You indicated that had you an impression about the intent of

 9     Operation Storm and that this was based on discussions that you had had

10     with Defence Minister Susak and also with General Cervenko and

11     Markica Rebic, and others; is that right?

12        A.   That's correct.

13        Q.   And to be clear, you don't have any information about how the

14     operation was actually conducted; is that correct?

15        A.   That's correct, sir.

16        Q.   Okay.  So you don't know what the actual targets were for

17     artillery fire; is that right?

18        A.   That's correct, I did not see a target list.

19        Q.   And, likewise, you don't have any information about what weaponry

20     was used to hit what targets; correct?

21        A.   That is correct, sir.

22        Q.   Colonel, in your witness statement at paragraph 4, you indicate

23     that you were impressed with General Gotovina, because he was able to run

24     a professional headquarters and was well respected by his soldiers; is

25     that right?

Page 20078

 1        A.   That's true.

 2        Q.   I take it, then, that you viewed him as the kind of commander who

 3     could get his orders followed, if he wanted to; correct?

 4        A.   In a general sense, that's correct.  There's no assurance that

 5     any commander in any army, when issuing an order, can ensure that it will

 6     be complied with, and that's why training is so critical, so that people

 7     interpret the order correctly and respond as they are trained to do so.

 8        Q.   Thank you for that explanation.  But when a commander issues an

 9     order and it's not followed, it's that commander's responsibility to take

10     action to determine, first of all, why it wasn't followed, and, if it is

11     not followed for some reason of insubordination, to take action; isn't

12     that correct?

13        A.   That's correct, sir.

14        Q.   Apologies, Colonel, just waiting for the translation.

15             Now, at paragraph 7 of your witness statement, you state:

16             "Because the HV lacked experienced NCOs with years of training,

17     the NCOs that the HV did have were not able to properly instill

18     discipline in the troops."

19             Colonel, can you tell the Trial Chamber what it was you witnessed

20     or heard of which made you conclude that the HV soldiers were not being

21     properly instilled with discipline?

22        A.   And that's in paragraph 7?  On the last sentence?

23             This was a general reflection of the whole army as I looked at

24     it.  In the time that the Croatian army had to train, they were --

25     focussed their NCO training on the professional brigades.  They did not

Page 20079

 1     have the means or resources or time to train the territorial force or the

 2     reserve force to the same level, and it's in that respect that I judged

 3     the army as a whole.

 4        Q.   I do understand.  What I'm looking for is if you can give the

 5     Trial Chamber something specific that you based the conclusion that there

 6     was not the proper instillment of discipline going on.  Did you see

 7     something or did you hear something that led you to believe that there

 8     was some lack of discipline.

 9        A.   Well, I observed some Home Guard units in exercise.  They were

10     not as well organised or led.  I didn't see any improper acts, but it was

11     the -- the general conduct and demeanour of the soldiers when on exercise

12     as opposed to the 4th Brigade, which I witnessed in the summer of 1994 in

13     an exercise they conducted, so there was a clear distinction in my mind

14     between how well the 4th Brigade operated on down in Vir and how some of

15     the Home Guard units operated in exercises.

16        Q.   Thank you.  I want to take a look at two parts of your answer.

17             First --

18             JUDGE ORIE:  Mr. Russo, may I ask one point of clarification.

19             I think you used the word territorial guards either in your

20     statement or earlier in you testimony and Home Guards.  Is there any

21     distinction between the two for you or ...

22             THE WITNESS:  Your Honour, there is, and it's a lack of my

23     specificity.

24             The territorial guard was the -- those units of the JNA when they

25     became under the Croatian army, the name was changed to Home Guard.  But

Page 20080

 1     the units were essentially the same.

 2             JUDGE ORIE:  Yes, thank you.

 3             Please proceed.

 4             MR. RUSSO:  Thank you, Mr. President.

 5        Q.   Colonel, about the Home Guard units and the observations you made

 6     about their lack of discipline, did this continue all the way up until

 7     the time-period when you left your post; that is, up until approximately

 8     late July/early August 1995?

 9        A.   It was true in the one -- in my last observation which was

10     probably June of 1995 where I observed a Home Guard unit getting ready to

11     go out on exercise and how they comported themselves prior to getting on

12     to the helicopters.  It was one of -- kind of a mingling around, almost

13     like tourists, as opposed to a disciplined force that knew exactly where

14     to position themselves and how to get on the -- the helicopter and depart

15     the area.

16             So I would say up until June 1995, that was still my observation

17     of Home Guard units.

18        Q.   Thank you.  And you draw a distinction between the discipline

19     excerpted by the Home Guard soldiers and that of the professional

20     brigades, in particular the 4th Guards Brigade.  However, in paragraph 11

21     of your statement, you state:

22             "Even the HV professional brigades, while better, still had

23     problems."

24             I wonder if you could tell the Trial Chamber what were the

25     problems that remained in the professional brigades that you were

Page 20081

 1     referring to here?

 2        A.   I think in -- it was a general observation.  I thought that the

 3     4th Guards Brigade was very well disciplined.  I saw them during the

 4     exercise in 1994, and then I observed a ceremony -- I want to say

 5     June 1995 in Split, and they were a very -- a military term:  A very

 6     strack [phoen] unit, very disciplined and very precise in their military

 7     movements, in their use of military courtesy and the way they handle

 8     themselves.

 9             I had observed a river crossing operation earlier that spring,

10     and while it was not done by the 4th Guards Brigade, it was conducted

11     well but not with the precision.  And it was a professional brigade, and

12     I -- there was a composite unit so I apologise, I can't give you the

13     exact unit.

14             But it was not the 4th Guards.  And while it was done well, it

15     wasn't done with the same amount of precision.

16        Q.   I take it, then, that the discipline problems that you're

17     referring to, that none of these have to do with crimes or violations of

18     laws of armed conflict that you had no information and made not

19     observations in those respects.  Is that right?

20        A.   That's correct, sir.  I'm referring to military operations,

21     discipline.  I have no knowledge of -- of crimes or illegal operations.

22        Q.   Now, in paragraph 13 of your witness statement, you tell the

23     story about your encountered with a member of the 4th Guards Brigade, and

24     you also touched on this a bit during your direct examination, I would

25     like to ask you a couple of questions about that.

Page 20082

 1             I think you already told us that the location which you were

 2     going to investigate, these allegations that the HV was firing artillery

 3     at UN positions that that was in the Dinar region; is that right?

 4        A.   Yes, it was.

 5        Q.   And ... and you cited this encounter with the 4th Guards Brigade

 6     soldier as an example of how, in your experience, General Gotovina's

 7     purported efforts to you to train his solders in the Laws of Armed

 8     Conflict had actually been done and was filtering down to the level of

 9     the soldier; is that right?

10        A.   At least the word "had got down to the soldier," and his

11     observation that in his military experience, in the 4th Guards Brigade,

12     his unit had not committed these crimes.

13        Q.   I want to make sure I'm understanding the situation correctly.

14             This soldier who was a subordinate of General Gotovina was

15     driving yourself and another colleague of yours to the site where you

16     were to investigate the allegations; is that right?

17        A.   We were on a mountain ridge, and we landed at a lower crest, and

18     we were taking a jeep up to the ridge line to observe the valley, which

19     was some distance away, so we drove part of the way by jeep and then got

20     out and walked the rest of the way.

21             From my vantage point, I could not conclude that the allegation

22     was correct or incorrect, accurate or inaccurate, so I was not a part of

23     the investigation that the UN was conducting.

24        Q.   I think you may have misunderstood my question, Mr. Herrick.

25             I just wanted to know whether he was driving you --

Page 20083

 1        A.   Oh.

 2        Q.   -- to the location where this investigation was taking place.

 3        A.   Thank you.  He was driving me up to the ridge line where I could

 4     look down into the valley.

 5        Q.   And he was aware, was he not, that you were a US military

 6     attache?

 7        A.   Yes, he was.

 8        Q.   And this allegation was one which General Gotovina had denied;

 9     correct?

10        A.   Yes, he had.

11        Q.   Under those circumstances, Colonel Herrick, did you honesty

12     expect this soldier to tell you whether or not he had ever seen a war

13     crime?

14        A.   That's' fair question.  No, I would not have expected him, but I

15     did not expect him to -- to say that he his unit was proud that he had

16     not been, and that's why it -- I remembered that particular incident.

17             But, yes, I would have been surprised if he had said yes, we

18     completed several war crimes and then gave me any details.  That ...

19        Q.   Thank you for that answer.

20             I'd like to show you a document regarding some of the activities

21     of the 4th Guards Brigade a few months prior to this exchange.

22             MR. RUSSO:  If we could 65 ter 2271, please.

23        Q.   Colonel, this is a report by the Bosnian SIS regarding the

24     transport of war loot.  It's dated 8 December 1994.  And it reads --

25             MR. KEHOE:  Excuse me, counsel.  I think it is a Herceg-Bosna

Page 20084

 1     Croatian Community of Herceg-Bosna document, is it not?

 2             MR. RUSSO:  Yes, that's correct.

 3        Q.   The document reads:

 4             "Today on 7.12.1994, units of the 114th and 4th Guards Brigade

 5     are withdrawing from the Livno battlefield from the direction of

 6     Rujani-Caprazlije-Gubin-Sajkovici.  7th Guards Brigade is taking place on

 7     the front line.  The units that are withdrawing from the mentioned area

 8     are taking with them the entire war loot to the Republic of Croatia.

 9     They are transporting livestock, big and small.

10             "There is an written order on the basis of the agreement by

11     Generals Gotovina and Blaskic regarding the transport of livestock.

12             "Livestock is being transported to Neoric and Radosic,

13     R. Croatia.  Beside the livestock also being transport are MTS, tractors,

14     combine harvesters, household appliance, chain-saws, et cetera, which are

15     not part of the agreement."

16             Now, Colonel, I take it that the 4th Guards Brigade soldier you

17     talked to just a few months after this event failed to mention to you

18     that his unit was taking household appliances, among other things, out of

19     this area; is that right?

20        A.   That's correct, he did not mention this.

21             MR. RUSSO:  Mr. President, I move to admit 65 ter 2271.

22             MR. KEHOE:  No objection, Judge.

23             JUDGE ORIE:  Mr. Registrar.

24             THE REGISTRAR:  Your Honours, that becomes Exhibit P2584.

25             JUDGE ORIE:  P2584 is admitted into evidence.

Page 20085

 1             Please proceed.

 2             MR. RUSSO:  Thank you, Mr. President.

 3        Q.   Colonel, did you happen to question anyone from the 4th Guards

 4     Brigade about war crimes after their operation in Grahovo and Glamoc?

 5        A.   I did not.

 6        Q.   You are aware, however, of what the 4th Guards Brigade, as well

 7     as other subordinates of General Gotovina, did in those towns, are you

 8     not?

 9        A.   I'm aware of allegations.  I don't have specific knowledge.

10        Q.   I take it then that you're not a position to dispute the

11     information that the Chamber has heard about burning and looting, which

12     occurred in Grahovo and Glamoc by the 4th and 7th Guards Brigade?

13             MR. KEHOE:  I object to that, Your Honour.  I mean, if there a

14     particular reference counsel would like to get to to show the witness,

15     then that's another matter.

16             JUDGE ORIE:  If the witness has no knowledge, apart from that

17     there are allegations, then I take it that -- and this is how I

18     understood Mr. Russo's question, that if he has no personal knowledge,

19     that he is not in a position to challenge any of the allegations and, of

20     course, at the same time, nor to confirm that, including those factual

21     aspects of the allegations which were put before this Chamber.

22             If have you anything of which you could even think of that it was

23     before this Chamber, where you have such knowledge that you could

24     challenge that information and we would then find out whether or not it's

25     before this Chamber, then you are invited to tell us.

Page 20086

 1             THE WITNESS:  Thank you, Your Honour.  I have no knowledge.

 2             JUDGE ORIE:  Please proceed.

 3             MR. RUSSO:  Thank you.

 4        Q.   Just to be clear about that, Colonel, neither General Gotovina

 5     nor Minister Susak ever discussed with you what the 4th or 7th Guards

 6     Brigade or any of the other troops under General Gotovina's command did

 7     in Grahovo and Glamoc; is that right?

 8        A.   That's correct.

 9        Q.   Now, if, in fact, members of the 4th and 7th Guards Brigade and

10     other subordinates of General Gotovina had burned residences and looted

11     houses in that operation, that's information that you would have wanted

12     to know about as the military attache; correct?

13        A.   Correct, it is.

14        Q.   Thank you.

15             Now, at paragraph 8 of your witness statement, you mentioned a

16     training school established by General Gotovina, and I believe you may

17     have also made a reference to this during your direct examination.  I

18     would like ask you if you could explain what it is you mean when you say

19     that General Gotovina established a school.  What exactly does that mean?

20        A.   It's my understanding in talking with General Bobetko and

21     Minister Susak and visiting the training centre at Zadar, that the --

22     that the school was in the operational area under the responsibility of

23     General Gotovina and that he had played an active role in overseeing the

24     development and training of this centre.

25        Q.   I believe in your direct examination you also mentioned that the

Page 20087

 1     leadership of the Croatian military looked to General Gotovina for the

 2     training of the NCOs; is that right?

 3        A.   Yes, I said that.

 4        Q.   And is that what this school was supposed to do?  Did

 5     General Gotovina establish this school in order to train NCOs?  Is that

 6     your understanding?

 7        A.   That's what I was told by the senior leadership, that it was

 8     established to train NCOs of the professional brigades and that his

 9     mission was to carry that out.

10        Q.   And you indicate what your understanding was of the training

11     which was actually occurring there, and I take it that you didn't receive

12     any information that training on the laws of armed conflict was taking

13     place at this school; is that right?

14        A.   As I state in my -- in my statement, I did not see the curriculum

15     of the course.

16        Q.   I understand that.  I just want to know if perhaps someone had

17     told you that training on the Laws of Armed Conflict was taking place at

18     the school.

19        A.   I have no knowledge of what training was -- specific training was

20     conducted there.  And I have no knowledge that the Laws of Land Warfare

21     were taught.

22        Q.   Thank you.  You've given some testimony about the amount of time

23     it takes to train non-commissioned officers properly, and you've given

24     your opinion that that time simply was not available to the HV prior to

25     Operation Storm.  And my understanding of that, and correct me if I'm

Page 20088

 1     wrong, you were speaking in terms of training for operational combat

 2     tactics; is that correct?

 3        A.   That's correct.  Either offensive or defensive.

 4        Q.   I think you gave a period of several months for basic training of

 5     NCOs but that experiential training could take even years after that; is

 6     that properly understood, is that right?

 7        A.   That's correct.  That's the American army experience and, to my

 8     knowledge, the experience ever other NATO countries.

 9        Q.   And with respect to training on the laws of armed conflict,

10     Colonel, how long does it take to teach troops that they shouldn't loot

11     and burn?

12        A.   Well, obviously the initial training would take a couple of

13     hours, if you did it thoroughly.  Hopefully you learn that as a child,

14     that's not what you do.  And then that training is continued throughout

15     the unit training and is reinforced in every military school that you go

16     to.

17        Q.   Thank you, Colonel, I appreciate your answers.

18             MR. RUSSO:  And, Mr. President, I have no further questions.

19             JUDGE ORIE:  Thank you, Mr. Russo.

20                           [Trial Chamber confers]

21             JUDGE ORIE:  I would have a few questions for you.

22                           Questioned by the Court:

23             JUDGE ORIE:  You told us about your conversation with a member of

24     the 4th Guards Brigade who was proud that, in his unit, he had never

25     observed any war crime being committed.

Page 20089

 1             How did you communicate with that person?  Was that directly?

 2     I've got no idea about your knowledge of languages.

 3        A.   At that time I spoke Serbo-Croatian, but my deputy was fluent in

 4     the language, and I spoke through him.

 5             JUDGE ORIE:  And that conversation was with the assistance of

 6     your deputy or was it a direct or --

 7        A.   It was through my deputy, but I understood the answer as the

 8     soldier said it.

 9             JUDGE ORIE:  Yes.  Did you ever discuss with any of the

10     counterparts you told us about - Mr. Gotovina, Mr. Susak - the structure

11     and the functioning of the military justice system?

12        A.   Your Honour, I had no conversation on the military justice

13     system.

14             JUDGE ORIE:  Thank you.

15             Your interview is now in evidence.  I'd like to ask you a few

16     questions about that.

17             MR. KEHOE:  Mr. President, we can give you a date on that if it

18     would assist the Chamber.

19             JUDGE ORIE:  It would certainly assist.

20             MR. KEHOE:  19 November 1993.

21             JUDGE ORIE:  19 November 1993.

22             MR. KEHOE:  I should say that is the date of the magazine.

23             JUDGE ORIE:  Yes.  And then we assume that the interview was

24     before that.

25             I read one section of it to you.

Page 20090

 1             Have you recently seen it?  Otherwise, we could provide you with

 2     a hard copy, perhaps.

 3        A.   Your Honour I have not.  I seen it in Croatian.  I've not seen it

 4     in English.

 5             JUDGE ORIE:  Yes.  Well -- the -- you were questioned about the

 6     cooperation between you and the Ministry of Defence of the Republic of

 7     Croatia.  You were asked what this cooperation consists of and to what

 8     extent you were satisfied with that.  Well, then, you give some

 9     explanations in relation to that.  And you explain that it is important

10     that you had direct talks with representatives of the -- of host

11     countries and that you consider that an invaluable source of information

12     and you are explaining that recently four US generals were visiting.

13             Then I read to you the following four lines:

14             "This form of cooperation is extremely useful to us in order to

15     observe the role of the UN peace forces, in order for us to gather as

16     much information as possible, should our army's forces assume a

17     peacekeeping or peacemaking role in the world.  Our army needs to learn

18     more about this role."

19             That's not entirely clear to me what the link is between

20     observing the role of UN peace forces in order to gather information.

21     Could you explain what you exactly wanted to say in this paragraph of the

22     interview?

23        A.   Your Honour, thank you for the opportunity.

24             We have a programme in the US Department of Defence to train

25     newly-appointed general and flag officers.  It's an -- it is to ensure

Page 20091

 1     that they understand US policy and defence policy.

 2             Part of their training is that they travel abroad and visit US

 3     commands and talk to foreign leaders.  During this time-period, there was

 4     a group of one-star generals visiting, and I had been asked to arrange a

 5     series of discussions and meetings for them.

 6             I took that in three -- actually, there were four parts to it.

 7     They would come to the embassy and get a briefing from the US ambassador

 8     on what US policy in Croatia was.  I would arrange for a working dinner

 9     with senior officers, general officers in the UN protection force that

10     were stationed in Croatia.  We would take them out to Sector West so they

11     could talk to UN protection force personnel who were ensuring the role of

12     the UN or the conduct of the UN operations there, and then they would

13     have a working lunch with Defence Minister Susak, for them to talk to a

14     senior Croatian leader on the host country's perspective of what the role

15     of the UN was.

16             I arranged this at the -- at the Department of Defence request,

17     because there was some discussion on the US military taking on a greater

18     peacekeeping role with the UN, and this was an opportunity to give new

19     general officers firsthand impression of US policy, UN policy, and a

20     perspective of country who was the recipient of that UN protection.

21             And that was the reference I was making in the article.

22             JUDGE ORIE:  Yes, thank you for that answer.

23             In this interview, you state after you had explained that you --

24     that you were appointed as a military attache in the -- to the former

25     Yugoslavia in June of 1991, prior to beginning of the war in Slovenia,

Page 20092

 1     that you were an "eye-witness to the beginnings of the arming of groups

 2     of people throughout Croatia."

 3             Could you tell us what kind of groups you meant and what the

 4     arming, how that took place, what you observed?  Who provided the arms

 5     and to what groups?

 6        A.   In my travelling through Sector West, before UN involvement and

 7     before the Vance Plan in January 1992, I travelled into Croatia, I would

 8     drive up into Hungary and then go beyond the front line and then drive

 9     back down into Croatia.  And on several occasions, I would go through

10     towns and see -- I happened to observe people handing out weapons to --

11     to groups of civilians or people dressed in civilian clothes.

12             I also observed, on two occasions, JNA installations that had

13     been taken by Croatian forces in 1992 and saw that the JNA weapons were

14     being loaded on trucks and taken.  When I asked where they were going,

15     they said they were going to -- to be reissued to Croatian army forces.

16     This was both small-arms and tanks.

17             JUDGE ORIE:  Yes.  But that was after the moment you describe in

18     the interview, apparently, where arming of groups of people which were

19     the beginning of the creation of defence forces of their country, that

20     what you now describe must be later Croatian forces taking over.

21        A.   Your Honour, in -- I don't know who the civilian people were who

22     were receiving weapons.  Obviously the weapons that were coming out of

23     the former JNA bases that were being reissued, the army was part of that.

24             JUDGE ORIE:  Now, the -- you said these weapons were given to

25     civilians, at least to persons dressed in civilian clothes.  Did you know

Page 20093

 1     whether these were Croats or Serbs or when you watched it?

 2        A.   No, sir, did I not.

 3             JUDGE ORIE:  Because you link your observations very much to --

 4     you said it was clear that ordinary people arming themselves with

 5     whatever they could get their hands were preparing for the defence of

 6     their country, their homes, their cities, those were the first units of

 7     the National Guard Corps and the Ministry of Internal Affairs.  US

 8     history, too, during the War of Independence, had a difficult time early

 9     on building its defence.  Then we, too, lacked organisation and a command

10     structure."

11             The context in which you put your observations are very much

12     Croats, the Croatian population arming themselves in order to defend

13     their country.  At the same time, you tell me that you couldn't observe

14     whether it were Croats or Serbs who received those weapons.

15             Could you explain to me how the interpretation you gave to what

16     you observed is consistent with not knowing whether it were Croats or

17     Serbs, although it was on Croatian territory, apparently, that received

18     those weapons?

19        A.   Part of that information was that my assumption that these were

20     Croatian towns.  Some towns were populated heavily by Serbs; others were

21     populated heavily by Croats.  Where I observed it was a Croatian town,

22     though I did not stop and identify specifically who was receiving it.  It

23     was -- I believed a logical assumption on my part.

24             It also was, I'm sure, influenced by embassy discussions, US

25     embassy discussions I had in Zagreb with other US officers who had seen

Page 20094

 1     similar activity.

 2             JUDGE ORIE:  Yes.  You describe in the interview, well, a type of

 3     cooperation between the United States and Croatia at the time.  You said:

 4             "Finally my tasks also involved the realisation of the

 5     cooperation programme between the Croatian army and the US army."

 6             Can you tell us, to what extent was that unique for the Balkans,

 7     was that such a cooperation programme that it exists for the other

 8     republics of the former Yugoslavia as well or was it unique for Croatia?

 9        A.   At that time, we had no military-to-military cooperation.  But

10     the Croatian government was cooperating with the UN mandates, in terms of

11     overflight by NATO forces, which the US was participating in, but there

12     was no specific -- at that time, we had no US military/Croatia military

13     relationship, formal relationship.

14             JUDGE ORIE:  But I literally quoted from the interview, where you

15     are reported to have said:

16             "Finally" -- you were asked to explain your function as a

17     military attache, "my tasks also involved" -- or is that -- no.  "Also

18     involved the realisation of the cooperation programme between the

19     Croatian army and the US army."

20             That is a literal quote, whereas your answer to my last question

21     suggests that there was no cooperation.

22        A.   Well, let me be very clear, sir:  There was no cooperation.  I

23     can't explain that part of the article.  This may have been a

24     misunderstanding on what the role of a military attache is.  It's,

25     generally, several parts.  One is to represent the US defence department.

Page 20095

 1             JUDGE ORIE:  Yes, I see that you mentioned four points.

 2        A.   Yes.

 3             JUDGE ORIE:  But I read the last one to you, which specifically

 4     refers to US/Croatian cooperation programme, even -- not even, just

 5     cooperation, but even cooperation programme.  But you say that didn't

 6     exist at the time.

 7        A.   No, sir, it did not.

 8             JUDGE ORIE:  Then in the same context, I read another few lines.

 9     You said:

10             "I can say that we are pleased with the development of the

11     Croatian army and are convinced that this army will be capable of

12     defending itself and of supporting your democratic country.  When full

13     military cooperation is reached between the US and Croatia, we would like

14     to contribute to the further development of the Croatian army in its role

15     in protecting and defending the democratic government."

16             This could -- the language in English is ambiguous to the extent

17     that, if you emphasised the word "full," it suggests that there is

18     already military cooperation; if you emphasise "cooperation," then it

19     could be that if you say, If in the future, cooperation and full

20     cooperation will exist, do I also have to understand this line to say

21     that there's no cooperation at this moment but when we develop

22     cooperation and when it has grown fully, that, under those circumstances,

23     that the US would like to contribute to the further development of the

24     Croatian army.

25             Is that how I have to understand this line as well?

Page 20096

 1        A.   Your Honour, it would be the latter interpretation.  You know, my

 2     interview was in English, it was translated into Croatian by the -- by

 3     the journalist, and it's being translated back into English again.  So

 4     there may be the opportunity to interpret it several ways.

 5             But --

 6             JUDGE ORIE:  Yes.

 7        A.    -- the emphasise would be on the latter interpretation.

 8             JUDGE ORIE:  Thank you for that answer.

 9             One final question.  You stated that you didn't see the

10     curriculum at that training centre you visited.  Nevertheless, you give a

11     quite far-going assessment of the training, progress made, development of

12     training programmes.  Did you ever feel handicapped in giving such

13     assessments by not having seen the curriculum?

14        A.   I was -- I was -- the short answer is no.

15             I was briefed by General Gotovina, I observed some training in

16     the -- in the field, I observed the results of the training in an

17     exercise, and there was a -- a US firm called MPRI that came to Croatia

18     in the fall of 1994 and did a -- a full review of the curriculum and

19     briefed me on that.

20             JUDGE ORIE:  Was that then in written form?

21        A.   The briefing -- their review was in writing but the briefing was

22     not.  The briefing was oral.

23             JUDGE ORIE:  Is that -- who -- who -- who gave the -- or who

24     charged MPRI with making such an assessment?  Or such a review, I should

25     say.

Page 20097

 1        A.   MPRI was there under a US certification to provide limited

 2     training to the Croatian Ministry of Defence, and the first thing that

 3     they asked for was permission to review the current training curriculum

 4     in order to give a baseline assessment and then make recommendations on

 5     what they could offer.

 6             It was after that baseline assessment that I was briefed.

 7             JUDGE ORIE:  Can you tell us who funded that -- those activities

 8     of MPRI?

 9        A.   The Croatian government funded it.

10             JUDGE ORIE:  Yes.  And reported directly to the Croatian

11     government or also to the US government?

12        A.   They reported to the Croatian government.

13             JUDGE ORIE:  Thank you for those answers.

14             I have no further questions.  Have the questions raised any need?

15             MR. KEHOE:  Yes, Mr. President.

16             JUDGE ORIE:  Then I'm looking at the clock, Mr. Kehoe, and ask

17     you how much time you would think it would take.  If it's a matter of a

18     couple of minutes, then I think that the interpreters and transcriber

19     will be happy to stay for another couple of minutes.

20             Is the next witness --

21             MR. KEHOE:  It is more than a couple of minutes, and we don't

22     have another witness, Mr. President.

23             JUDGE ORIE:  You don't have an another witness.

24             If it is more than a couple of minutes -- would it be more than

25     ten minutes?

Page 20098

 1             MR. KEHOE:  Yes, Mr. President.

 2             JUDGE ORIE:  We need to have a break first.

 3             We will have a break and we resume at five minutes to 6.00.

 4                           --- Recess taken at 5.37 p.m.

 5                           --- On resuming at 6.03 p.m.

 6             JUDGE ORIE:  Mr. Kehoe, you may proceed.

 7             MR. KEHOE:  Yes, thank you, Mr. President.

 8                           Further Re-examination by Mr. Kehoe:

 9        Q.   Just a few issues that came up in the cross-examination by

10     Mr. Russo and also some questions by Judge Orie, Colonel Herrick.

11             The first I'd like to address is the question of follow-up, a

12     question that Judge Orie was asking you concerning training and not

13     seeing a curriculum.

14             Now, how long had you been a military attache, sir?

15        A.   When I was assigned to Zagreb, I had a military attache for about

16     14 months.

17        Q.   And then you were there from -- your statement from 1992 to 1995.

18     And at the time you were in Zagreb, how long had you been in the

19     military?

20        A.   I'd been an officer about 20 years at that time.

21        Q.   Now as an officer of 20 years experience, Colonel Herrick, and

22     being a military attache in the early 1990s in Zagreb, did you draw

23     certain conclusions merely by seeing various armies and how they moved

24     and operated be it in exercises or just getting on to a helicopter, as

25     you mentioned?

Page 20099

 1        A.   Yes.  Over time, just by quick observation, you can make some

 2     pretty accurate judgements.  It could be the care of a vehicle, are the

 3     tires new or are they worn out?  Is the vehicle clean or dirty?  Are the

 4     uniforms clean, are they pressed, are they maintained properly?  You can

 5     tell generally by appearance a representation of how the unit operates.

 6        Q.   Would you say, Colonel, that how this unit looks and operates and

 7     moves together is an indication of the level of competence of that unit?

 8        A.   It's a -- it's a representation of the training and you can

 9     assume a certain amount of competence from it.

10             JUDGE ORIE:  Mr. Kehoe, I don't know whether you want to continue

11     in this line, but it's true that I asked the witness whether he felt

12     handicapped by not having seen the curriculum.  Let's be quite clear:

13     The curriculum was introduced -- not having seen the curriculum was

14     introduced in chief.  It's in the statement.

15             MR. KEHOE:  Yes.

16             JUDGE ORIE:  I think Mr. Russo said -- well, at least I asked

17     questions.

18             Now, the questions I asked were about to what extent an

19     assessment of the training as such, as the training programmes, that's

20     what I had in mind, is affected by not knowing the curriculum.  You're

21     now going far beyond that.  You're now saying, Can you, on the basis of

22     your experience even if you haven't seen the curriculum, can you assess

23     the level of being trained.  That was not the issue I raised and,

24     therefore, it does not arise from my questions and if you want to put one

25     more question I'm very generous in this respect, Mr. Kehoe, but let's not

Page 20100

 1     forget it has got nothing to do with my question.

 2             Please proceed.

 3             MR. KEHOE:  I'm moving off this topic.

 4        Q.   Colonel, by the way, at this particular point between 1992 and

 5     1995 were there diplomatic relations with the former Yugoslavia and the

 6     United States?

 7        A.   Yes, there were.

 8        Q.   Let me talk to you a bit about some of the question that

 9     Mr. Russo put to, and he asked you a question:  How long does it take to

10     teach somebody not to loot, for instance, and you said, Well, just a

11     couple of hours, something to that effect.

12             Do you recall that, sir?

13        A.   I do.

14        Q.   And let me just go through a few things with you based on the

15     exhibits.

16             And let me show you one document, 1D1604 via Sanction.

17             By the way, I think I misspoke with regard to the last answer.

18     Did the United States have diplomatic relations with Federal Republic of

19     Yugoslavia in 1995?

20        A.   I'm not -- my answer depends on -- on -- I'm not sure when they

21     changed the formal name of the country but if we're talking about the

22     Belgrade government, yes.

23        Q.   Let us turn your attention to the document that's on the screen

24     which is an article on August 7th, 1995, and it is a Reuters article.  If

25     I can turn to the first paragraph.  It notes that spokesman -- first

Page 20101

 1     paragraph:

 2             "State Department said on Monday the Croatian military has

 3     commercial consults but denied the United States provided any strategic

 4     technical or planning advice for recent Croatian military attacks.

 5              "Spokesman David Johnson said the commercial consultants

 6     operating in Croatia with a ... government licence, advise the military

 7     on how to organise democratically, maintaining civilian control, and

 8     treating civilians humanely."

 9             If we can go back down two more paragraphs where it notes that:

10             "Johnson did not name the company by Military Professional

11     Resource Inc. of Arlington, Virginia, has said it has a US-approved

12     contract with Croatia to advise its military on how to operate

13     democratically."

14             If I can go to one other article before I ask you questions about

15     both, and that is 1D1601, also, if we can view this by Sanction.  This is

16     a "New York Times" article from 1 August 1995.

17             JUDGE ORIE:  If would you just give us an opportunity to read it.

18     Yes, there we are.

19             Please proceed.

20             MR. KEHOE:

21        Q.   And as can see, this is -- date line is Croatia 29 July, and if

22     we could go to the second page, it notes that, mid page:

23             "In December, the State Department licenced Military Professional

24     Resource Inc., made up of high-ranking retired military officers and

25     based in Alexandria Virginia, to act as instructors in a course supposed

Page 20102

 1     to woo Croatian officers away from old Communist habits and instill the

 2     values of a democratic army."

 3             If we can go to the last paragraph, talking about comments by

 4     this individual, Ed Soyster, from MPRI.  He said:

 5             "The purpose of the course was to teach Croatian officers such

 6     skills as dealing with the legislature and civilian institutions.  He

 7     said that another aim of the course was to build a corps of

 8     non-commissioned officers as the backbone of the new army, which scored

 9     its important battlefield success in May when it retook areas held by

10     Croatian Serb rebels south east of Zagreb.

11             "We told them to expect no miracles ..."

12             Now looking at these articles in concert and together, Colonel,

13     if it is merely taking a few hours to instruct soldiers on the illegality

14     of looting, why would a country like Croatia hire a company like MPRI to

15     conduct courses, for instance, to teach the military how to treat

16     civilians humanely, and how to have courses on developing a backbone of

17     the new army that is non-commissioned officers.  How --

18             JUDGE ORIE:  Mr. Russo.

19             MR. RUSSO:  I don't have a problem of the substance of what is

20     being put to the witness.  I do, however, have a problem with the

21     procedure that is being followed.  They're showing a document to the

22     witness, telling him what it says, and then asking him to take it as

23     implied in the question they're putting to him.  It seems to me to be

24     very leading.

25             JUDGE ORIE:  It is extremely leading, Mr. Kehoe.  What the

Page 20103

 1     substance of the course was is you read it now to the witness which

 2     is ... isn't it?  Read that now to the witness.

 3             You should have asked the witness whether he knows what the

 4     subject of the courses was.

 5                           [Defence counsel confer]

 6             MR. KEHOE:  I'm -- I pull it up, Mr. President, but I do believe

 7     that when the discussion concerning MPRI came up --

 8             JUDGE ORIE:  Yes.

 9             MR. KEHOE: -- he did say during the course of his testimony, I

10     believe in response to some questions by you, Your Honour, that he did

11     know what MPRI was being hired to do.  And I'm just saying, based on what

12     he -- that substance --

13             JUDGE ORIE:  What you then should have asked him -- if there is

14     any place in today's transcript, and I overlook things now and then as

15     well, where it says that -- because that's the bottom line of your

16     question, that -- that the substance of what MPRI did was how to treat

17     civilians humanely, then I'd like to hear where that was said.  Because

18     that is the objection by Mr. Russo, I take it.  At least, of course,

19     apart from maintaining civilian control.

20             Is there anywhere, where the way in which civilians should be

21     treated is mentioned as the subject of the training, advising,

22     consulting, by MPRI to the government?

23             MR. KEHOE:  I not believe that it was specifically commented

24     that -- on -- treating civilians humanely was answered, but he did note

25     that he was familiar with the areas of instruction by --

Page 20104

 1             JUDGE ORIE:  Yes.  Then you could have asked him whether he could

 2     specify, instead of read to go him what a certain Mr. Johnson told about

 3     what is was apparently a matter which had some importance for you,

 4     because -- let's me just check.

 5             Because that was the core of your question.  Why would they pay

 6     such a lot of money, to say it in other terms, to treat them and then

 7     it's something which was not yet in any way in evidence.  You read it

 8     into the record so as to inform the witness to this was the issue.

 9             MR. KEHOE:  Well, I mean --

10             JUDGE ORIE:  The witness now is at least fully aware -- I dealt

11     with the matter in the presence of the witness, because Mr. Russo had no

12     objections to the substance.  However, I think he was right that you

13     provided the witness with the information, where he said he had it

14     already.  You should have elicited from this witness what subjects

15     specifically were dealt with, also that these were specifically these

16     kind of humanitarian issues or international humanitarian law issues and

17     then could you have asked the witness.

18             Please proceed.

19             MR. KEHOE:  Yes, Mr. President.

20        Q.   Going back, Mr. Herrick, when we talked about your response to

21     the question by Mr. Russo concerning taking a few hours to tell soldiers

22     to teach them not to loot, if it is as simple as that, why would the

23     Republic of Croatia hire a company like MPRI to conduct these courses to

24     do, among other things, teach the military how to treat civilians

25     humanely, and concerning developing a non-commissions corps in the

Page 20105

 1     Croatian military to develop the backbone of the new army.

 2             Why do they need to do that if it's as simple as saying, Don't go

 3     out there and loot?

 4        A.   It's not as simple as that, and I believe I said that teaching a

 5     course on law might take a couple of hours, but it needs to be followed

 6     through in the unit by continual training, that that training is given by

 7     the non-commissioned officer corps, and the non-commissioned officer

 8     needs to be trained on the Laws of Land Warfare, and that was the -- one

 9     of the purposes of the contract between MPRI and the Croatian Ministry of

10     Defence is to train the NCOs so that they could continue to instill that

11     same training in their soldiers.

12        Q.   Colonel, in response to several questions but Mr. Russo, you were

13     talking about the need for additional time so the NCOs could be -- could

14     learn offensive and defensive tactics for their -- be their squads or

15     platoons.

16             And my question with regard to NCOs is:  Within the training for

17     a NCO, how -- how significant is the actual leadership training as it

18     pertains to "esprit de corps" and respect for the chain of command, all

19     of those issues, how long does those issues take and how significant are

20     they?

21        A.   For the army, leadership is absolutely critical.  Leadership

22     training in the American army is a continuing education programme from

23     the day you enlist until the day you retire.  And an American officer

24     probably spends a third of his career in some type of formal training

25     programme and in every one of those, a portion of that training includes

Page 20106

 1     leadership training, the same with our NCO corps.

 2        Q.   Now, once again, talking about the amount of time it takes for

 3     leadership training and you talked about the lecture on what it -- how

 4     long it takes to tell someone not not to loot but what he does if he

 5     observes his troop looting.  How long does that type of training take?

 6     And what he's supposed to do under the circumstances?

 7        A.   I don't have a specific time schedule for that type of training.

 8     You know, for our junior NCOs, they get a basic training as a junior

 9     enlisted person, it takes three to five years to become a junior NCO.  He

10     gets formal training on a variety of subjects from how to treat other

11     Americans in an equal opportunity environment and the respect for

12     individuals, that same respect for individuals is continued on in our

13     training in the Laws of Land Warfare because the basis of how you conduct

14     yourself with prisoners and civilians is the same.  It's the respect for

15     individual rights, and that's something that we instill in our force

16     in -- throughout an individual's career.

17        Q.   Given all of these factors, Colonel, the offensive and defensive

18     manoeuvring, the development of the "esprit de corps," all the other

19     issues, the leadership issues that you talked about, how long would it

20     have taken the HV, in your estimate, to train all of its NCOs on both the

21     professional brigade level and Home Guard level.  How long would that

22     have taken?

23        A.   15 years.  If it takes you 15, ten to 15 years to train a senior

24     NCO, and he is responsible for overseeing the training and leadership of

25     junior NCOs who are responsible for overseeing the training and

Page 20107

 1     leadership of enlisted -- junior enlisted men, it takes our army about 15

 2     years.

 3        Q.   Let me ask you one final area that -- concerning General Gotovina

 4     and your comment to Mr. Russo that this individual wouldn't tell you

 5     that -- had he committed crimes?

 6             Let's go to the last line of paragraph 12 -- excuse me, the last

 7     line of paragraph 13.  And I'm not debating that crimes took place, sir.

 8     I want you to discuss for the Trial Chamber and clarify what you -- what

 9     you are talking about and elaborate what you were talking about

10     concerning what General Gotovina was trying to do in that last sentence?

11             MR. RUSSO:  Mr. President, I'm going to object to that.  I don't

12     believe that actually arises out of my cross-examination.

13             MR. KEHOE:  It certainly does.  Counsel asked the question about

14     the 4th Guards Brigade and did he know that the 4th Guards Brigade had

15     allegedly committed crimes in Bosansko Grahovo and other locales, and

16     that misses the point of that particular sentence, with all due respect.

17             The point of -- and I don't want to discuss this in front of the

18     witness, but I will discuss it.

19             JUDGE ORIE:  One second, please, I'm afraid that the transcript

20     it not ... I re-read the question.  The questions of Mr. Russo which were

21     a follow-up of a matter that had been raised in-chief was a further

22     exploring whether one could expect someone to give reliable information

23     when he says that he never observed any war crimes committed.  That was

24     the issue which was raised by Mr. Russo in cross, what went beyond what

25     was raised in-chief.

Page 20108

 1             You may put questions in respect of that additional issue raised

 2     by Mr. Russo, and Mr. Russo then further gave to the witness one example

 3     of a report of what was considered to be misbehaviour.  It was a HVO

 4     report referring to the 4th Guards Brigade.  On that specific matter, you

 5     can put further questions to the witness, although from his answers, I

 6     took it that he no knowledge about it.  Whether he has any wider

 7     knowledge of crimes committed or not being committed by the 4th Guards

 8     Brigade in the previous period is -- I wouldn't expect, in view of his

 9     earlier answers, that he would have any, but if you want to explore that,

10     Mr. Kehoe, within those limits, please proceed.

11             MR. KEHOE:  Mr. President, I don't want to ask a question counter

12     to the guidance that Your Honour has just given, but given the

13     cross-examination of counsel concerning issues that the witness obviously

14     knew nothing about, I think that it's prudent at this point for the

15     purposes of the Trial Chamber to ask the witness what was his point in

16     this last sentence about the information seeping down to lower levels as

17     in paragraph 13.

18             JUDGE ORIE:  You explored that in examination-in-chief.  You

19     specifically dealt with this part and, therefore, we can't say that what

20     was -- what the witness meant with that answer was something that arose

21     in cross-examination.  You dealt with it explicitly in

22     examination-in-chief.

23             MR. KEHOE:  Mr. President --

24             JUDGE ORIE:  I liked most your first line.  You said, "I don't

25     want to ask a question counter to the guidance that Your Honour just has

Page 20109

 1     given."  I like that one, very much.

 2             MR. KEHOE:  [Overlapping speakers] ... I thought you would,

 3     Judge.

 4             JUDGE ORIE:  And I would invite you to follow your inclination in

 5     this respect.

 6             MR. KEHOE:  Well --

 7        Q.   Overall, Colonel, based on what you observed during this period

 8     of time, was there any doubt in your mind that General Gotovina was

 9     attempting to train his troops pursuant to the Laws of Armed Conflict?

10        A.   I believe he was.

11        Q.   Thank you, Colonel.

12             MR. KEHOE:  I have no further questions.  Thank you.

13             JUDGE ORIE:  Thank you, Mr. Kehoe.

14             Mr. Russo, anything which came up?  I would have one question.

15     Perhaps you wait for that and see.

16             Mr. Herrick, is the -- the training programme by -- I think it

17     was called MPRI, is that public or is it not public?

18             THE WITNESS:  It's a private firm.

19             JUDGE ORIE:  Yes.

20             THE WITNESS:  I don't know if they have made that public or not.

21             JUDGE ORIE:  As far as their programme is concerned, are you

22     aware of their curriculum?  So I'm not talking about the curriculum in

23     the training centre that you earlier talked about, but have you any idea

24     about the curriculum they had put in place during their training courses.

25             THE WITNESS:  In a general sense, I am aware of the training that

Page 20110

 1     they were offering.

 2             JUDGE ORIE:  Could you tell us for a group of non-commissioned

 3     officers or for whatever group, how many hours would be spend on - and

 4     how many hours on the total - would be spent on instructions explaining

 5     that international humanitarian law is -- contains description of war

 6     crimes, so the explanation of the -- not of the -- in general violations

 7     of the laws or customs of war but violation, grave violations of the

 8     violations of the laws or customs of war.

 9             Could you tell us whether they had two days on a ten-day course

10     on that subject; or one hour on a three-weeks' course?  Could you give us

11     an indication what percentage or what the -- what time this element would

12     take on the totality of the course, because there seems to be a lot of

13     other matters like detailing with the legislation and civilian

14     authorities.  I mean, that is, of course, not the kind of issues that

15     Mr. Russo referred to, that is to train people in what is strictly

16     forbidden because it is criminal in war.

17             Do you have any -- could you give us an impression?  If you know,

18     if you don't remember then please tell us.

19             THE WITNESS:  I know that that was a topic of the training.  I

20     cannot give you how much of the curriculum consisted of that.

21             JUDGE ORIE:  So whether it was an hour or a day and on what

22     total.

23             THE WITNESS:  I know that there was training on the Laws of Land

24     Warfare and there was training on how to teach the laws of land warfare

25     but I can't give you specific times.

Page 20111

 1             JUDGE ORIE:  Yes.  But from your answer, I'm afraid that there is

 2     some misunderstanding of my question.

 3             The law on warfare is not specifically dealing with war crimes.

 4     Not every violation of a rule of warfare amounts to a war crime.

 5             THE WITNESS:  That's true, sir.

 6             JUDGE ORIE:  It's -- so, therefore, your answer is a bit

 7     confusing me.

 8             THE WITNESS:  Ah.

 9             JUDGE ORIE:  Because you are referring to a part of the

10     curriculum, which is not exactly what I had in mind when I put my

11     question to you.  But perhaps my question was not clear.

12             THE WITNESS:  A specific percentage of time there was -- devoted

13     to the Laws of Land Warfare and criminal activity and the rights of

14     individuals, I don't know.

15             JUDGE ORIE:  Thank you for those answers.

16             Any further questions?

17             MR. RUSSO:  No, Mr. President.

18             JUDGE ORIE:  Then, Mr. Herrick, this concludes your testimony.  I

19     would like to thank you very much for coming a rather long way to

20     The Hague and for answering the questions that were put to you by the

21     parties and by the Bench.  I wish you a safe trip home again and my good

22     wishes are also for Ms. Johnson and for Ms. Skibsrud.  Yes, I'm looking

23     at the wrong way.  Ms. Johnson, I should have looked in your direction

24     when I said your name; apologies for that.

25             Madam Usher, could you please escort the witness out of the

Page 20112

 1     courtroom and, at the same time -- this is a public session, so,

 2     therefore, if you want to follow the proceedings, you're still welcome,

 3     but not in this special capacity anymore.

 4                           [The witness withdrew]

 5             JUDGE ORIE:  We have some time left for procedural matters.

 6             MR. MISETIC:  Mr. President, may I raise --

 7             JUDGE ORIE:  Yes, Mr. Misetic.

 8             MR. MISETIC:  -- one matter.

 9             There is some confusion on the part of the Defence on the

10     procedures for showing witnesses indirect newspaper articles, and I don't

11     know how to bring this to the attention of the Chamber and to ask for

12     more instruction from the Chamber on the point, so either -- do we raise

13     it orally with the Chamber or do we do a written submission with the

14     permission of the Chamber on the point.  And it is simply a request for

15     clarification as to what we can and can't do in light of this MPRI

16     article.  There is a specific reference that came to my mind, but I don't

17     have time right now to find all the references, but it was with

18     Mr. Waespi and me and Mr. Kay during Mr. Roberts' examination where a

19     similar issue came up, and the Prosecution is allowed to put articles to

20     the witness on the basis that the witness had communication or had -- had

21     contacts with these two journalists, so the matters were put to him and

22     then he was asked questions about the matters because he had contacts

23     with the journalists.

24             We're -- struggling.

25             JUDGE ORIE:  That, of course, is a situation which is quite

Page 20113

 1     different from the situation we had today.

 2             MR. MISETIC:  Well.

 3             JUDGE ORIE:  At least it was never established that this witness

 4     had anything to do with this publication.

 5             MR. MISETIC:  But he did with MPRI and that's where we --

 6             JUDGE ORIE:  Yes.  But, of course, he gave some information in

 7     his statement and later during his testimony about MPRI, apparently an

 8     issue which was raised by Mr. Russo, which, from what I understood, was

 9     a -- well, not perhaps -- an important issue is -- in view of the total

10     time of training, how much time would it take you to teach people that

11     they shouldn't commit crimes.  That's -- of course, it's a summary which

12     does not pay sufficient attention to all of the details of the questions,

13     and it had not been established at that moment that the treatment of

14     civilians, which is, of course, in the context of this case is, at least

15     in the Prosecution's view, not unrelated to committing crimes because

16     civilians are a -- in international humanitarian law are persons who are

17     persons who could be victims of crimes, and that is what has been charged

18     in this case.

19             Under those circumstances where the witness says that he is

20     familiar with the MPRI training courses, then to feed him with

21     information, what these training courses had as a substance was, in this

22     case inappropriate, because it should -- he should have first been asked

23     whether he could tell us what the subjects were.  If he would not have

24     known the answer, then, of course, it could have been put to him and then

25     it might have refreshed his recollection, or he could have said, No, as

Page 20114

 1     far as I know, this was not part of the programme.  But that's the basis.

 2             MR. MISETIC:  I understand that.

 3             JUDGE ORIE:  And it's different from the earlier situation.

 4             MR. MISETIC:  Well, let me -- my intention wasn't to argue the

 5     point on the specifics of today's session.  I just -- for the record, and

 6     I would call your attention to page 6836 of the transcript, where we had,

 7     on behalf of the Defence, advanced that same argument with respect to

 8     Mr. Roberts.  In other words, Mr. Kay, I believe, specifically said,

 9     We're here to hear what the witness knows and then to put matters him.

10             Where the confusion lies, and I guess what I'm asking for is

11     permission to request -- to file something in writing to seek specific

12     guidance from the Chamber, is where is the line between establishing

13     foundation through a witness that he may have knowledge about something

14     in an article, such as establishing first that he had conversations with

15     MPRI about their curriculum, and then putting the article to him on the

16     basis of the foundation; or would we have been better off not

17     establishing any foundation at all and then showing him the article and

18     then asking him a series of questions.

19             The -- I guess what we're trying to seek is a clarification from

20     the Chamber because the perception -- and the perception it not always

21     reality, and I can see that point.  But the perception at this point is

22     that it was standard practice for the Prosecution, in its direct, to put

23     articles and newspapers and videos, et cetera, without asking first

24     through the whole litany of foundational questions, putting it to the

25     witness on direct, and then doing follow-up questions on the basis of

Page 20115

 1     both video and newspaper evidence, and my, again, perception is that our

 2     objections on the basis of leading were denied.  And there may be

 3     distinctions that were missing.  And in order, not only for the Gotovina

 4     Defence, as it proceeds with the rest of the case but I think for the

 5     other two Defence teams in order to know where that ground is and what

 6     procedures we need to follow to get documents in to avoid a situation

 7     where, in front of witness, we're having conversations about the proper

 8     procedure is to put articles to them, I would prefer that we --

 9             JUDGE ORIE:  Let me consult.  One moment.

10                           [Trial Chamber confers]

11             JUDGE ORIE:  The Chamber will be glad to receive brief written

12     submissions for guidance on these matters in writing.

13             MR. MISETIC:  Thank you, Mr. President.

14             JUDGE ORIE:  Mr. Kehoe.

15             MR. KEHOE:  One point of clarification.  And my confusion was

16     similar to my colleague's and my other colleagues on the Defence side.

17     And my point with regard to that, given your comments, Mr. President, was

18     not to feed the witness information.  It was to counter the point raised

19     by Mr. Russo that all you had to do was give two hours of training on

20     this score, nothing else need be done, that there is a more complicated,

21     which I attempted to develop and not to feed the information to the

22     individual.

23             JUDGE ORIE:  Yes.  That was -- perhaps you did both.

24             MR. KEHOE:  I mean, Judge, obviously if I did both, I mean, I did

25     both because it had been done so resolutely by my colleagues across the

Page 20116

 1     well.

 2             JUDGE ORIE:  Yes.  Let's wait what the submissions will contain.

 3     Yes, Mr. Hedaraly.

 4             MR. HEDARALY:  Thank you, Mr. President.

 5             You had asked me a question earlier today.  I don't know if now

 6     is a good time to raise --

 7             JUDGE ORIE:  Yes, please do so.

 8             MR. HEDARALY:  I have reviewed our submission again and it has

 9     refreshed my memory.  Of the eight documents, our understanding is that

10     none of them were obtained through the EUMM archives.  There is a

11     question mark about two of these documents where we simply cannot not

12     know where we received them.  They were part of a larger cache of

13     documents, electronically covering the entire region that we received in

14     2002 but our investigations came at a standstill.

15             Our understanding it was collected from the region but that we

16     could not go further to confirm that.  But our understanding is that six

17     of them for sure have not -- came from those two witness witnesses and

18     two of those, we had in our system for at least seven years now, and they

19     were part of a collection of hundreds perhaps even thousands of ECMM

20     reports covering the entire former Yugoslavia, not just Croatia.

21             JUDGE ORIE:  Thank you for that information, Mr. Hedaraly.

22             MR. MISETIC:  Mr. President --

23                           [Trial Chamber confers]

24             JUDGE ORIE:  The Prosecution has requested to strike part of the

25     92 ter statement and limit the scope of testimony for Witness AG-6 who

Page 20117

 1     will testify on Monday.

 2             MR. MISETIC:  Tuesday, Mr. President.

 3             JUDGE ORIE:  Is it Tuesday?

 4                           [Defence counsel confer]

 5             JUDGE ORIE:  I think it was on Monday.

 6             MR. MISETIC:  I apologise.

 7             JUDGE ORIE:  Yes.

 8             That motion is denied, but perhaps you had Witness AG-56 in mind.

 9     The reasons to follow.

10             Another matter is where the Prosecution has urgently asked our

11     attention for Witness AG-56 who is scheduled to testify on Tuesday.

12             MR. MISETIC:  Mr. President, I believe this matter has already

13     been addressed prior to the time that the Prosecution filed for the

14     motion, and I only received a copy of the motion while we're here in

15     court, so I'm not able to comment much further on it.

16             JUDGE ORIE:  I also had no time to fully read it, but if I

17     understand you well, that the Prosecution considers the 92 ter statement

18     of Witness AG-56, a expert report where even whether he is still an

19     expert is still to be considered, but mainly opinion and that for those

20     reasons, it should not have been filed as a witness statement under

21     Rule 92 ter.  Is that a correct summary, Mr. Hedaraly?

22             MR. HEDARALY:  It is partly correct, Mr. President.  There were

23     two objections which are related in some ways.  The first one being as

24     Your Honour just mentioned that our position is that he's being brought

25     in as an expert.  There are some sections of his witness statement that

Page 20118

 1     are clearly expert opinion and expert evidence, and we have not received

 2     the proper 30-day-time to prepare for it.

 3             Now related to this in the statement there are some documents

 4     that are referred to which are quite lengthy and are actually related to

 5     some of the opinions that he offers.  For example there is a 145-page

 6     document in paragraph 3, which he uses as a support for his opinions.

 7     Now we have been told that that will not be used in direct examination

 8     because we have not received a translation for this 145-page article.  So

 9     we are essentially in a situation where we cannot adequately prepare for

10     this witness, unless the -- unless some of this expert opinion is struck

11     down, in which case, even then, there are still some disclosure problems

12     in terms of audio that we have not received.  Two of them are an hour

13     long.  We don't have translations.  We don't have transcriptions.  It is

14     just a problem now that this witness is coming in five days, and the

15     reason that we ask that it be considered urgently is that it looks like

16     we won't be sitting tomorrow.  We have a witness on Monday, and by then,

17     it may be too late for us to prepare.

18             Our position would be that if he will testify as to what is in

19     his statement, we will need more time to prepare and receive complete

20     disclosures of what is contain in the statement and translations of

21     those, and if those portions are struck down and he testifies as a fact

22     witness under Rule 92 ter, then obviously we will need the remaining

23     disclosures as soon as possible so that we can effectively prepare for

24     his testimony on Tuesday, otherwise we will be in a position to ask that

25     his testimony be postponed.

Page 20119

 1             MR. MISETIC:  Mr. President.

 2             JUDGE ORIE:  Yes, Mr. Misetic.

 3             MR. MISETIC:  I'm going to object, first of all, because this is

 4     being raised at quarter to 7.00 on a Thursday.  The statement itself was

 5     disclosed, I believe, late May /early June at the latest.  Well, that's

 6     my understanding.

 7             JUDGE ORIE:  That's then the first thing to try to find --

 8             MR. MISETIC:  Yes.

 9             JUDGE ORIE:  -- a common position on when it was disclosed.  I

10     can only say that I saw it this morning for the first time, but that's,

11     of course, is a totally different position.

12             MR. MISETIC:  What I'm saying is that quite frankly I haven't

13     even read their motion yet, so there is no reason why this shouldn't have

14     been brought to my attention before, and if it is now urgent and

15     last-minute for the Prosecution, it is because they raised it at the last

16     minute, and I shouldn't have to prepare a response now orally to

17     something that's been filed in writing.

18             JUDGE ORIE:  I'm mainly raising the issue because --

19             MR. MISETIC:  Just for the record, Mr. President, B/C/S was given

20     to Prosecution on 20th of May and the English translation on 4th of June.

21             JUDGE ORIE:  Yes.

22             MR. MISETIC:  So the 30-day issue really they have -- they will

23     have had it certainly more and in 30 days, if it was an issue with

24     respect to Rule 94 and whether it should be also filed under Rule 94,

25     that also could have been brought to our attention weeks ago.  To now

Page 20120

 1     tell us --

 2             JUDGE ORIE:  Yes.  Well, whatever the case is, the Chamber, as I

 3     said before, has received this morning the filing of the 92 ter

 4     statement.  The Chamber has now looked at the Prosecution's response.

 5     I'm not saying read the Prosecution's response, but has looked at it.

 6     And whatever the case is from reading the -- what is offered as a 92 ter

 7     statement.  For the Chamber, we have at least to determine how urgent the

 8     matter is.  So, therefore, for us, it has a certain urgency.  Even if we

 9     decide it is not urgent, that decision is in view of the time-frame, is a

10     decision which urgently should be taken.

11             Therefore, that's the main reason, and because we're not sitting

12     tomorrow, why I raised the issue.

13             MR. MISETIC:  Mr. President, in brief, what we would reply to

14     that is that -- this is now again -- if you have taken a look at it, I

15     haven't even had one eye on it yet -- is essentially the Leslie standard

16     which was established very earlier on in this case, so it's not being

17     offered as expert testimony; however, he does have opinion opinions on

18     the matter.  Whether he is qualified to give them or not, I am perfectly

19     happy if the Chamber wishes to proceed that way with establishing a

20     foundation in his background and educational background and publications.

21             JUDGE ORIE:  There's a lot of background, I would say.  In the

22     92 ter statement there is a background experience, academic experience to

23     such an extent that when I read it, and I have not properly looked at the

24     motion, I thought as a matter of fact that I was reading an expert

25     report.  That's -- I'm quite frank that might be because I should have

Page 20121

 1     read better.  But --

 2             MR. MISETIC:  The reality is that the background is there because

 3     of the issues in 1996 that have been raised by the Prosecution and the

 4     witness is a fact witness with respect to return of refugees to the area

 5     because he was the person in charge by the Croatian government to

 6     coordinate the return of both Croat and Serb refugee to the area.  His

 7     demographic background then is his education, his understanding of the

 8     issue, et cetera, goes towards certainly his knowledge of what he was

 9     doing in 1996 and to the extent he has opinions that are related to that,

10     again, based on the Leslie --

11             JUDGE ORIE:  I think what you're facing is, as a matter of fact,

12     the balance between fact and opinion.  From the decision, I just --

13     although reasons not being there yet.  The decision in relation to

14     Witness AG-6, it may appear that this witness is not overly strict in

15     saying whenever there comes an opinion, it's not anymore for a witness to

16     tell us about, but I think the issue most likely will be here, whether we

17     are now at the other side of the -- of the -- of the scale -- not of the

18     scale but the other side of the range.  Is it witness testimony where

19     some opinions have slipped in and that's what happens and that's

20     sometimes accepted and to a certain degree accepted, or is it primarily

21     opinion.  I think this seems to be the issue and this, of course, may

22     have consequences for how to prepare for cross-examination for such a

23     witness or such an expert.

24             The reason why I'm raising it is because it would be -- if the

25     motion would be denied, then, of course, we would hear the testimony of

Page 20122

 1     the witness on Tuesday.  If, however, the motion would be granted, then,

 2     of course, we have a very practical problem, that is, how to use our

 3     court time as good as possible.

 4             I fully accept that you had no -- not a lot of time to read all

 5     this, so I'm trying to find out whether there's any way to communicate

 6     tomorrow in such a way and, of course, we could schedule a court hearing,

 7     but that might not be the best way to do it, but in order to see how the

 8     Chamber receives a further input from the Defence and perhaps a further

 9     response from the Prosecution so as to at least make up its mind under

10     which direction the decision would go.

11             That's the reason why I'm raising the matter.

12             Mr. Hedaraly.

13             MR. HEDARALY:  The -- thank you, Mr. President.

14             I'm know we don't have time.  I'm not going to respond to

15     everything Mr. Misetic has said.  I simply want to point out there's also

16     the disclosure issue so that if the Chamber ultimately decides that this

17     witness can testify as to his opinions contained in the statement that is

18     based in large part on some documents that we have not received

19     translations for.  So I just want to -- I know the Chamber has considered

20     it, but I just want to -- that we don't forget the second issue as well,

21     which is directly relevant.

22             MR. MISETIC:  Mr. President.

23             JUDGE ORIE:  My main point is that whatever the decision would be

24     to grant the motion -- to grant the motion filed by the Defence and

25     declare that -- come to the conclusion that you are -- the objection

Page 20123

 1     you've raised are not of a kind to -- to not accept the newer statement

 2     or whether it would be the other way around or whether we would say the

 3     urgency is not there, you should have raised it at any earlier stage.

 4     Normally a 92 ter decision is taken when the witness appears.  Now, that

 5     seems to be, under the present circumstances, not something we should

 6     just wait for and see what happens on Tuesday.  Because if the Chamber

 7     would decide that either disclosure was done in a way which has given

 8     insufficient opportunities for preparation, under those circumstances, we

 9     would have nothing.  So, therefore, the Chamber is inclined to see

10     whether it can make up its mind at an earlier stage, so as to fill a

11     possible gap.

12             MR. MISETIC:  Let me just respond, Mr. President.

13             It's my understanding we're talking about four exhibits.  This is

14     not by any stretch of the imagination of any significant prejudice to the

15     Prosecution.

16             Let me note that with Mr. Theunens, for example, it was, I

17     believe, close to 15 exhibits that we didn't receive until five days

18     before he began to testify.  If I'm not mistaken, we're five days out

19     right now.  At some point, the realities of trial and the strains on our

20     translators have to be taken into consideration, which I alerted to --

21     the Prosecution to before we came to court today.  So I'm reasonably

22     confident that they will have these four documents tomorrow by the close

23     of business.

24             The audios.  They're not audios; they're videos.  The entire

25     videos have been disclosed to the Prosecution on May 4th.  What they're

Page 20124

 1     looking for is a selection, but the disclosures themselves have happened.

 2             I would again point out that we are doing nothing that hasn't

 3     been done by the Prosecution in its direct.  As a matter of fact,

 4     Mr. President, our standard is to hold ourselves at least to what the

 5     Prosecution did and held itself in its case in-chief and hopefully to do

 6     a little bit better, and that's what we're trying to do.

 7             So, to that extent, Mr. President, I can assure you they will

 8     have the material by the close of business tomorrow.

 9             With respect to Your Honour's instruction to me, is it that you

10     wish that I file a reply by tomorrow or ...

11             JUDGE ORIE:  Well, what I'm trying to achieve is that the Chamber

12     receives all the relevant information to see whether there's a fair

13     chance that we would hear the testimony of this witness on Tuesday, or

14     not, and not to leave that until Friday -- until Tuesday morning, because

15     then we might have difficulties in filling the gap.

16             Now, another matter is that, if the Chamber would decide that the

17     Prosecution would need more time, would there be any way of filling the

18     gap?

19             MR. MISETIC:  There is no way to fill the gap, firstly.  Second -

20     and this is another practical matter for the Chamber to consider -

21     without getting into the details, the witness needs to travel by car, and

22     so I'm pretty sure he is set to leave on Saturday so that he can be ready

23     to go on Tuesday.

24             JUDGE ORIE:  That is another reason why we should not leave the

25     matter until Tuesday.

Page 20125

 1             MR. MISETIC:  I agree, but --

 2             JUDGE ORIE:  Would it be a practical solution if -- first of all,

 3     that the parties try to resolve some of the matters, such as incomplete

 4     disclosure, that -- or selection of certain portions of a video, that you

 5     communicate in such a way that we see how big the problems really are.

 6     That is the disclosure issue.

 7             And that, for example, that tomorrow, at noon, or tomorrow at

 8     2.00 p.m., there would be informal communication with the Chamber, either

 9     through e-mail, or, if need be, by a meeting to just establish where we

10     stand.

11             MR. MISETIC:  Mr. President, let me state this.  I'm now advised

12     that we have four documents outstanding and the video-clips.

13             JUDGE ORIE:  Yes.  Mr. Misetic, I was just about to see whether

14     you read the response that you haven't read yet.  You tell Mr. Hedaraly

15     exactly what is missing, and then he can say, You're wrong because that

16     and that is missing as well.  This is it not -- you say it's very

17     limited.  And then that tomorrow there would be a point in time, whether

18     there will be a communication, and, of course, it depends a bit on what

19     the parties can achieve, what type of communication that should be, that

20     could be -- meeting on practical matters.  It could be an exchange of a

21     common position by e-mail.  It could be anything.  But that we further

22     communicate tomorrow how to proceed.

23             MR. MISETIC:  I have no problem with that, Your Honour, and we

24     will do that in morning.

25              What I wanted to do was correct the record, though, so that -- I

Page 20126

 1     had misspoken before because I was unaware that actually CLSS is doing

 2     two of the documents, and they will be ready on Monday, according to

 3     CLSS.  Two of the documents will be translated by us tomorrow.

 4             JUDGE ORIE:  Yes.  The Chamber expects you to further

 5     communicate.  And would noon be a right time, 2.00 p.m. be the right

 6     time, to make an inventory of where we are?

 7             MR. HEDARALY:  Since we have no court tomorrow, I'm sure we can

 8     meet in the morning, and by 12.00 or 1.00, I'm sure that we can get back

 9     to the Chamber.

10             MR. MISETIC:  Mr. Kehoe likes to sleep in, but I think we can get

11     it done by noon.

12             MR. HEDARALY:  We can have that redacted, Mr. President.  We have

13     no objection to that being redacted.

14             JUDGE ORIE:  Well, it's good that this is the last day of the

15     week in which we are sitting.

16             There will be communication tomorrow not later than by 1.00.  The

17     parties will be informed who will be in charge in Chambers staff, and the

18     parties should remain stand by to further meet, if need be, to see

19     whether we can resolve this matter.

20             We resume on Monday, the 13th of July, at 9.00, in Courtroom III.

21                            --- Whereupon the hearing adjourned at 7.04 p.m.,

22                           to be reconvened on Monday, the 13th day of July,

23                           2009, at 9.00 a.m.