Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21228

 1                           Tuesday, 8 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness takes the stand]

 5                           --- Upon commencing at 9.03 a.m.

 6             JUDGE ORIE:  Good morning to everyone.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

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

10     Prosecutor versus Ante Gotovina et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Mr. Russo, are you ready to continue your cross-examination?

13             MR. RUSSO:  Yes, Mr. President.

14             JUDGE ORIE:  Mr. Corn, perhaps needless to remind you, that

15     you're still bound by the solemn declaration you gave yesterday at the

16     beginning of your testimony, but that's how it is.

17             THE WITNESS:  Yes, Your Honour.  Thank you.

18             JUDGE ORIE:  Please proceed, Mr. Russo.

19             MR. RUSSO:  Thank you, Mr. President.

20                           WITNESS:  GEOFFREY CORN [Resumed]

21                           Cross-examination by Mr. Russo: [Continued]

22        Q.   Good morning, Professor.

23        A.   Good morning.

24        Q.   I'd like to begin by clarifying a few answers from yesterday.  At

25     transcript page 21.223, line 13, I asked you to confirm that you had not

Page 21229

 1     considered the documents listed in paragraph 12 of D1644, your

 2     supplemental information sheet, prior to drafting your addendum.  And you

 3     answered that, as a general proposition, that was correct.

 4             Then I asked whether you were provided with any information

 5     beyond those documents and beyond the evidence of

 6     Lieutenant-Colonel Konings and Marko Rajic, and you answered:

 7             "Well, I can't immediately correlate the number with the

 8     document.  Can I tell you other information that I have considered in my

 9     preparation to come over here.  There was a transcript from a meeting

10     between the president and members of the military staff, including the

11     General.  I think it was in Brioni.  I looked at that.  There were some

12     psychological operations directive that looked at, related to information

13     to influence the conduct of the civilian population.  Rajcic's testimony

14     was something that I looked at extensively.  As I said, the visual

15     disposition of military objectives in Knin was obviously something that

16     was important in my mind.  So, I mean, that's a candid offer of the -- of

17     the information that I think had a significant influence on my thought

18     process."

19             So your answer began with an identification of documents you

20     considered in your preparation to come over here, which suggests to me,

21     at least, that it was just testimony preparation.  But your answer ended

22     with a comment about the information which had a significant influence on

23     your thought process, which led me to believe that you had considered it

24     before reaching your conclusions.

25             So it's still unclear to me whether you considered the Brioni

Page 21230

 1     transcript, the testimony of Marko Rajic, and the psychological

 2     operations directives before you drafted the addendum.

 3             Can you clarify that?

 4        A.   Yes.  Those were not -- that was not information that I relied on

 5     when I drafted my addendum.

 6             Just to clarify, I'm trying to be as -- as forthcoming as I

 7     possibly can.  I could not have drafted the addendum without having some

 8     context about the overall concept of the operation.  I think I made that

 9     point yesterday.  To be -- from my perspective, I don't know how any

10     expert on the use of a method or means of warfare in the context of an

11     operation could render an opinion without knowing the general nature of

12     the operation.  For example, when I look at Colonel Konings's addendum,

13     it's based on a list of assumptions, hypothetical assumptions.  It's a

14     response to hypothetical assumptions.  But it seems relatively clear to

15     me that he is applying those assumptions within the broader context of

16     the operation, because those assumptions don't include every aspect of

17     Operation Storm.

18             And so what I was trying to convey was that I wrote the addendum

19     based on the facts and assumptions provided by counsel with the addition

20     of that one fact that I was made aware of in the meeting in Tampa that I

21     wanted to -- I thought was so significant that I wanted to make sure it

22     was before the Tribunal.  And that was the effort I made with Defence

23     counsel was to allow me to see from their perspective the facts and

24     assumptions related to the operation that they believed were before the

25     Tribunal.  But I also don't think that I could have expunged from my --

Page 21231

 1     from my thought process the general concept of the operation itself, and

 2     that's the point I was trying to make.

 3             The information that was referred to in the last paragraph that

 4     you recited from the record was information that I used as I prepared to

 5     come over as a witness.

 6        Q.   Thank you, Professor.  I'm not faulting you for relying on some

 7     context that you received during the oral presentation, but, of course,

 8     you understand that this leaves the Trial Chamber and the Prosecution at

 9     a bit of an informational disadvantage in terms of what you actually had

10     in your mind when you drafted the addendum.

11             So getting back to that oral presentation, who exactly made the

12     presentation to you?

13        A.   It were -- in that meeting there were the three attorneys

14     representing the defendant, who are in the courtroom today, and there was

15     an individual named Goran who is -- who was one of their technical

16     advisors on the operational aspects of Operation Storm.

17        Q.   Was there anyone else present beside yourself?

18        A.   Myself and those four individuals.

19        Q.   And during that presentation, Professor, were you told about or

20     shown any evidence concerning incidents of shelling by General Gotovina's

21     forces in civilian-populated areas of the RSK prior to Operation Storm?

22        A.   Not that I can recall.

23        Q.   Were you told about or shown any evidence concerning incidents of

24     burning or looting of Serb property by General Gotovina's forces prior to

25     Operation Storm?

Page 21232

 1        A.   No.

 2        Q.   Were you told about or shown any evidence concerning

 3     President Tudjman's or any other Croatian government official's views on

 4     the desirability of Serbs remaining in or returning to Croatia?

 5        A.   I know that -- I believe there was a discussion of a meeting that

 6     occurred with the president and members of the military staff, including

 7     the General.  Whether or not that was discussed in Tampa I can't say

 8     without absolute certainty.  Obviously I already told you that I have

 9     seen the transcript of that meeting, and I don't know even if that

10     transcript would fall within the category of the question you ask,

11     reflecting his views on the desirability of members of the Serb

12     population to leave or return.  I know there's some discussion of Serbs

13     leaving the operational area around Knin, but, to my recollection, I

14     don't think -- I understood that as a statement on his view on the

15     desirability of their return or not, so ...

16        Q.   I just want to see if I understand you correctly.  You're

17     referring to the Brioni meeting.

18        A.   Yes.

19        Q.   And you're indicating that you don't recall whether that came up

20     during the December 2008 oral presentation but you certainly recall that

21     from your review of that transcript after you drafted the addendum.

22        A.   Yes.  And it may have come up in that meeting.  I just --

23     honestly I can't recall whether or not that's where I first learned of

24     it.

25        Q.   Other than that particular meeting at Brioni, were you given any

Page 21233

 1     information about any other meetings between President Tudjman, other

 2     government officials, in which a desirability of Serbs remaining in or

 3     returning to Croatia was discussed?

 4        A.   The only other -- the only other source of information that

 5     relates to that were some psychological operations directives that I

 6     reviewed prior to coming to The Hague to testify, but that was well after

 7     the addendum had been written.

 8        Q.   And can you tell us what those psychological operations

 9     directives, what you recall from them?

10        A.   Well, what I recall most significantly was I was reviewing one

11     which was, I think, an opinion of somebody reviewing those reports

12     rendering this -- this person - I think it was a transcript of

13     testimony - this person was giving an opinion as to the General's

14     reaction or, I guess, endorsement of some psychological operation

15     concepts or directives.  What I recall about it was a note that I put on

16     the side of that indicated I didn't believe that the conclusion that was

17     reached in this opinion was accurate, based on the comment that was

18     embedded in the transcript from General Gotovina.

19        Q.   Was this a transcript of the testimony of a witness who testified

20     in this case?

21        A.   I think so.

22        Q.   Do you have any idea which witness that was?

23        A.   No.

24        Q.   Were you shown the transcripts of testimony of any other witness

25     besides Lieutenant-Colonel Konings, Marko Rajic, and this individual whom

Page 21234

 1     you've just mentioned that you can't recall?

 2        A.   Not that I recall.

 3        Q.   During the oral presentation given to you in late December 2008

 4     were you told about or shown any evidence concerning the takeover of

 5     UN observation posts by General Gotovina's forces during Operation Storm?

 6        A.   No.

 7        Q.   Professor, were you provided with or have you reviewed any of the

 8     filings in this case?

 9        A.   I reviewed -- other than the report that Colonel Konings made,

10     which I assume was filed as an expert report, and my own, which was filed

11     as a report, those are the only filings, I believe, I have reviewed.

12        Q.   Were you told anything about the Prosecution's allegations or

13     positions in this case?

14        A.   I was told in preparation for testimony, after -- well, after the

15     addendum was filed, probably within the last month, I was provided a very

16     general overview of what the Defence counsel believe was the

17     Prosecution's theory.  Or let be me more precise.  The relationship

18     between -- let me -- let me -- obviously my focus has been on the use of

19     artillery during Operation Storm, particularly in the town of Knin, and

20     the discussion was to place this aspect of the case into broader context

21     and how the Defence felt it was connected to the broader series of

22     charges against the defendant.

23        Q.   If you could, please, tell us what the Defence told you in that

24     respect.

25        A.   My recollection is that I had emphasised to them as -- in

Page 21235

 1     preparation to come over and testify -- well, not emphasise.  I wanted to

 2     ensure that the focus of my testimony was limited to the subject matter

 3     of the reports, which was the use of artillery and the legality of use of

 4     artillery under the assumptions and facts that had been provided.  They

 5     validated that.  They said that the defendant was facing charges for a

 6     pattern of misconduct alleged to have been committed by forces under his

 7     command, and that the use of artillery, they believed, if it was

 8     determined to be illegal, would be an element in essentially connecting

 9     the broader pattern of misconduct to the defendant's intent.

10        Q.   Were you told anything else specifically about what the

11     Prosecution's position is about why the artillery attack was illegal?

12        A.   Well, obviously from Colonel Konings's report there's a fairly --

13     a fairly clear manifestation that the Prosecution believes that the --

14     the factual basis for the allegations of improper use of artillery were

15     effects and aspects of the targets that were -- that diverged from many

16     of the facts and assumptions that were the foundation of my report.  So,

17     in that regard, just reading the facts and assumptions in the letter that

18     you signed reveals to me, or revealed to me, a fairly obvious basis for

19     why the Prosecution would allege that the use of artillery -- artillery

20     was improper.

21             And in several discussions with Defence counsel, they -- they

22     told me of evidence that they believed or -- generally, facts they

23     believed were more consistent with the Prosecution's theory than the

24     facts and assumptions that I had relied on.  And essentially those --

25     those facts were in line with the facts and assumptions that you provided

Page 21236

 1     to Colonel Konings in the hypotheticals that you asked him to base his

 2     opinion on.

 3        Q.   I'm a little bit confused by the last part of your answer, but I

 4     understand that you may have received an impression of what the

 5     Prosecution's theory was based on Colonel Konings's report.  But my

 6     question to you was what you were told by the Defence about what the

 7     Prosecution's theory of unlawful attack was.

 8        A.   Well, let me give you an example.

 9             The -- as I've told you several times, when I wrote that

10     addendum, I was obviously -- I obviously felt it was important that the

11     facts and assumptions that I was basing those opinions on were relatively

12     well established in the record, and I asked the Defence to validate that

13     on several occasions.  And on several occasions in those discussions, the

14     Defence would say, Now, obviously the Prosecution is not going to agree

15     or probably will not agree with all the facts and assumptions that we're

16     providing.  For example, their view is that there was a much more

17     widespread use of indirect fire in a random kind of chaotic pattern

18     throughout the city of Knin.  So in that regard, I -- I really didn't

19     need them to tell me that, because that was embedded within the

20     hypotheticals of Colonel Konings's addendum, and those hypotheticals were

21     provided by the Prosecution, so I assumed those were facts and

22     assumptions that the Prosecution feels have been well established by the

23     record.  But if that is a statement by the Defence on evidence related to

24     the Prosecution's theory, then those were discussions we had.

25        Q.   Were you told anything else by the Defence specifically regarding

Page 21237

 1     the allegations of unlawful attack not connected to what you read in

 2     Colonel Konings's report?

 3        A.   The -- the only other information, I think, that would fall into

 4     that category would be the Defence assessment of conclusions that they

 5     believe the Prosecution would draw from certain evidence.  For example,

 6     in the -- in some of the information provided to Colonel Konings there --

 7     or even in one of the hypotheticals in the letter that you sent to him,

 8     there's reference to a hospital being on a target list, and the Defence

 9     would say that the Prosecution likely believes or, We expect that the

10     Prosecution believes that that is an indication of improper intent,

11     because a hospital shouldn't be on a target list.  But, again, that is in

12     the hypothetical that you proffered to Colonel Konings.

13             So it was -- the discussions of Prosecution theory were always

14     nested or connected, if you will, to my assessments, the assessments I

15     was providing them of my opinion on propriety of listing targets in a

16     targeting annex, of engaging certain targets within the city, and most of

17     that is in the addendum that I provided.

18        Q.   Professor, you have given us an example or two.  I'm looking for

19     as comprehensive an account as can you give us, regarding what you were

20     told about the Prosecution's, either allegations, positions or questions

21     likely to be put to you.

22             Can you tell me everything you recall about being told about

23     those things by the Defence.

24        A.   Well, I will start with the last one.  In terms of questions to

25     be put to me, the Defence said, Obviously you should expect the

Page 21238

 1     Prosecution to challenge both some of the facts and assumptions upon

 2     which the addendum was -- the opinions in the addendum were based and

 3     perhaps the strength of the -- or the credibility of the opinions

 4     themselves, even if the facts and assumptions are accurate.

 5             There was -- as I said, there was discussion of differing views

 6     on the -- on the objective evidence of where artillery strikes were --

 7     were being made, that the Defence expected the Prosecution to assert or

 8     to suggest, whatever term you want to use, that there was a much more

 9     widespread or chaotic pattern of indirect fire within Knin.  There was

10     discussion of whether or not I believed a corps-level command post would

11     cease to be an important objective, if the commander was not present,

12     based on, I think, a question that might have been proffered to another

13     witness during the trial by the Prosecution, and as I recall that's a

14     question that Defence counsel asked me yesterday in direct testimony.

15             There was discussion of, I believe, testimony from witnesses,

16     perhaps UN operatives, that were in Knin that referred to artillery

17     strikes occurring everywhere within the city of Knin, and that was

18     brought to my attention to ask my opinion of -- is -- do I think there's

19     an explanation for that.  I already mentioned the church --

20        Q.   I'm sorry, I want to stop you right there before you move on.

21             I'd like to know exactly what you were told about these

22     UN operatives and whatever opinion you were asked about and what opinion

23     you, in fact, provided.

24        A.   Well, I was told that -- as I recall, I was told that there had

25     been a witness or maybe a report - I don't know - from an individual or

Page 21239

 1     individuals working for the UN in Knin who said that, from their

 2     observation perspective, there were artillery rounds exploding all over

 3     the city, creating the inference that the use of artillery was as chaotic

 4     as is suggested in the hypotheticals that you provided to Colonel Konings

 5     in the report.  And they didn't really get much further than that because

 6     I interrupted them at that point, and I said, Well, I'm not surprised

 7     that that is the perception because looking at the aerial photographs

 8     that I saw from the beginning of the meeting in Tampa, there were

 9     military objectives dispersed all over the city by the enemy forces.

10             So if I'm watching this attack from a distance or from a vantage

11     point, it will look like there are rounds exploding all over the city

12     because there were objectives all over the city.  And I -- I mean, I cut

13     them off at that point because that was my reaction to that information.

14        Q.   I'd like to explore that a little bit.

15             First of all, I understand that your interpretation that if

16     somebody's is looking at the town and they're saying that the town is

17     being shelled all over and from your perspective there are military

18     targets all over, one interpretation of that, which is apparently your

19     interpretation, is that they are mistaking shelling all over the town

20     with shelling of military targets all over the town.

21             That's -- that's your perspective of that testimony.  Do I have

22     that right?

23        A.   No, you don't.  I wasn't there.  I didn't observe what happened.

24     What I said to the Defence was, There are multiple inferences you could

25     draw from that evidence.  One inference would be there was a chaotic,

Page 21240

 1     random, indiscriminate attack of an entire city.  But an alternate

 2     inference, which I believe would be reasonable, based on the dispersion

 3     of military objectives by the Serb forces within Knin, is that there's an

 4     effort to target military objectives that are scattered throughout the

 5     city and it's creating the visual impression of a random indiscriminate

 6     attack.  So I actually told them -- in fact I specifically recall using

 7     the language of multiple reasonable inferences to draw from that

 8     evidence.

 9        Q.   And I want to be clear about that.  You're not suggesting in any

10     way that one interpretation is any more reasonable than the other, and

11     you're not leaning towards them being mistaken about random shelling or

12     them being correct about random shelling.

13             Do I have that right?

14        A.   I don't -- as I say, I was not present.  I do know this.  It's

15     not clear to me that the individuals rendering that opinion were aware of

16     the dispersion of military objectives within the city.  When I heard the

17     Defence tell me about that opinion, I was aware of that and so that

18     triggered my reaction.  I don't -- I just think there are multiple

19     inferences you can draw from that perception.  I don't know which one is

20     right and which one is wrong.

21        Q.   You say it's not clear to you that the individuals rendering that

22     opinion were aware of the dispersion of military objectives within the

23     city.  Did you have any reason to think that they weren't?

24        A.   I -- all I know is I was told that there were individuals who

25     worked for the UN who said it looked like the entire city was being

Page 21241

 1     attacked by artillery.

 2        Q.   And did they tell that you some of these individuals had, in

 3     fact, travelled through the town of Knin during the shelling?

 4        A.   Yes.  They told me that -- as a matter of fact, there was one

 5     they -- that I recall them saying was driving around the city, I think,

 6     evacuating people or trying to assist in evacuation while the shelling

 7     was occurring.

 8        Q.   And were you given any information about whether the individuals

 9     making these observations were able to tell the difference between fire

10     for effect, corrected fire, and simply random fire?

11        A.   Well, what I was told was that there were UN personnel who

12     observed the attack and said that it looked like the entire city was

13     being attacked.

14             Now, if -- there was no discussion of whether they were making --

15     that their -- their testimony or their report made reference to technical

16     aspects of the artillery fire.  And those three terms you provide, fire

17     for effect, for example, okay, you can't make an opinion about fire for

18     effect without knowing the effect that the fire is intended to achieve.

19     So what effect was intended by that fire?  My expectation or assumption

20     would be, if I'm observing the effects of an attack, the kinetic effect

21     of an artillery attack, I don't have full situational knowledge of what

22     operational effect the commander intends to achieve with that artillery.

23     I just see the kinetic effect.

24             So when you say, Did they tell you whether or not these

25     individuals perceived whether it was for effect, adjustment or random,

Page 21242

 1     no.  There was no discussion of that.  But I would assume they wouldn't

 2     be able to assess whether it was for effect because they were unlikely

 3     privy to the operational planning that defined the effect the commander

 4     wanted to achieve.

 5        Q.   Your answer makes me think you're misunderstanding what I mean by

 6     fire for effect.  That's a term that was used by several of the witnesses

 7     here to indicate a delivery of multiple projectiles at one point.

 8             MR. KEHOE:  I object to that assessment, Mr. President.

 9             JUDGE ORIE:  Since there was an objection against the way in

10     which you summarise what witnesses said, you have to be more specific,

11     Mr. Russo, if you want to pursue this matter.

12             MR. RUSSO:

13        Q.   Well, then let me just put it to you, when I said "fire for

14     effect," that's what I'm talking about.  The difference between the

15     single shot attempting to get closer to a target and then the multiple

16     number of rounds which are fired once it appears that the target or

17     believes they have come close enough in targeting?

18             JUDGE ORIE:  Mr. Kehoe.

19             MR. KEHOE:  Excuse me, Mr. President.  Then it's irrelevant

20     because Mr. Russo's position on that score is of no consequence.

21             JUDGE ORIE:  Well, it is part of his question.  So if he asked

22     the witness and -- unless you say that the whole question using this term

23     is irrelevant at all.

24             MR. KEHOE:  I do.  Except it's relevant for the Chamber, I

25     submit, as it ties back to what a particular witnesses says and not what

Page 21243

 1     Mr. Russo opines.  That's the objection.

 2                           [Trial Chamber confers]

 3             JUDGE ORIE:  The term used in the question by Mr. Russo could

 4     confuse.  Therefore, Mr. Russo is entitled to explain what he meant by

 5     that.  Whether that is what witnesses said or not is a different matter

 6     for the Chamber to review.

 7             Mr. Russo.

 8             MR. RUSSO:  Thank you, Mr. President.

 9        Q.   Professor, do you understand what I mean now when I say fire for

10     effect?

11        A.   Yeah, I think I understand.  And, again, I would emphasise that I

12     think it's -- it -- it is -- it is not a reflection of the operational

13     characteristics of employment of artillery.

14             What you're talking about is a classic kind of vernacular that

15     relates to identifying a target where you believe, as the commander, that

16     you can achieve an effect you desire by putting a large volume of

17     artillery rounds on the target.  So the observer identifies the target,

18     calls fire, the initial round or several rounds, the initial salvo

19     strikes, and from that strike, the observer adjusts fire and then calls

20     a -- a phrase we use called "fire for effect."  But, you see, that

21     presumes that the effect that the commander seeks to achieve with that

22     fire mission is a destructive effect, and it is very possible that the

23     commander might not seek to achieve a destructive effect.

24             And in fact from my review, and if you look at the assumptions

25     and facts in my addendum, it is relatively clear that General Gotovina

Page 21244

 1     and his artillery staff were aware that they were under serious

 2     ammunition resupply constraint, and that he had made the judgement that

 3     the priority of effort would be the tactical point of attack in order to

 4     support the breach of the Serb defensive positions.  Therefore, the use

 5     of artillery against military objectives in Knin was conducted based on

 6     an economy of force principle, and so the effect that he sought to

 7     achieve there in most cases probably was not destruction.

 8             So your question presupposes that these did -- would these

 9     witnesses have been able to notice whether it was a fire for effect, but

10     you're assuming that the effect that the witnesses assumed the General

11     wanted to achieve was destruction, and I don't believe that they would

12     have known whether or not that was the effect.

13             So two or three rounds may indeed have been intended to achieve

14     the effect of the fire in that context.

15        Q.   I think I understand what you're saying, Professor.  But that

16     answer, at least from my perspective and correct me if I'm wrong, assumes

17     that these UN observers did not in fact see fire for effect, that they

18     did not in fact see clumped together projectiles landing on a particular

19     target after a corrected fire.

20             Let me just finish here.

21             It sounds like what you're saying is that General Gotovina was

22     not intending to destroy targets, so therefore, he wouldn't be firing a

23     high volume of projectiles on any particular target.  And therefore

24     anybody observing that would not see what I'm calling fire for effect and

25     would assume that it's simply random shelling with the single odd shell

Page 21245

 1     here or there.

 2             Do I have that last part right?

 3        A.   First, the question that I responded to was your question, Do I

 4     understand what you mean by fire for effect, right?  And that was my

 5     response of my understanding of what I thought you meant by fire for

 6     effect.

 7             I will reiterate the underlying point in response to the last

 8     part of your question.  I don't believe that the people observing the

 9     kinetic effect of artillery fires in Knin would have had full knowledge

10     of the operational effect that was intended by those strikes.

11             Now, it's clear to me and it's obvious from the addendum, for

12     example, that the headquarters was a high-priority target, because of its

13     command, control, communication, and intelligence function.  So it would

14     be unsurprising for me to find out that people that observed the attack

15     on Knin saw something that fit more within your definition of fire for

16     effect in and around the headquarters than perhaps in other areas.  But

17     my point is that if -- yes, to answer your question, I think it would be

18     a rational assumption by somebody observing the kinetic effect that a

19     salve of rounds into a certain area that was not followed by a

20     substantially heavier attack or salvo would seem inconsistent with their

21     assumption that the first salvo was for correction purposes.  But my

22     point is, they don't know whether the first salvo was for correction

23     purposes or was for effect itself.

24        Q.   That's clear now.  Thank you.

25             Now, you're told that an opinion by people who actually witnessed

Page 21246

 1     the attack was that they believed it was random shots all over the town,

 2     and if I understand you correctly, you stopped the Defence at that point

 3     and interjected your own sense of why that might be correct or why it

 4     might be incorrect, or what inferences could be drawn from that or not

 5     drawn from that.

 6             What I'm more interested in is whether you asked for any evidence

 7     about that.  It seems to me that if somebody tells you, Well, a

 8     precipient witness to the event said it looked to them like it was random

 9     and all over the town that you would want information.  Well, I'd like to

10     though, first of all, if that person knew what the targets were; I'd like

11     to know how many people said that; I'd like it know, as you say, whether

12     they had any knowledge of the operational objectives; I'd like to know

13     what their particular expertise is in making these things.

14             Did you ask any of these questions?

15             JUDGE ORIE:  Mr. Kehoe.

16             MR. KEHOE:  Mr. President, I object to the form.  I mean, if it

17     was a question, I object to the format of giving a speech to the witness

18     and then delivering a question that doesn't necessarily tie it together,

19     so it's a -- my objection is to form.

20             JUDGE ORIE:  I think what Mr. Russo would like to know, Mr. Corn,

21     is the following.

22             You apparently stopped the Defence giving an explanation of what

23     would be a rational explanation and which may have indicated that those

24     observing were perhaps misinterpreting what happened.

25             Now, Mr. Russo's question apparently is why did you stop them,

Page 21247

 1     why didn't you ask for further information on that moment, what did they

 2     know, et cetera?

 3             That's apparently what Mr. Russo wants to find out.

 4             Mr. Russo, if I'm understanding your question well.

 5             MR. RUSSO:  Yes, Mr. President.

 6             JUDGE ORIE:  Could you answer the question.

 7             THE WITNESS:  The information I was given was not information

 8     that matches the characterisation of the summary provided by Mr. Russo in

 9     his question.  I was told that there were people who worked for the UN

10     who said that it looked like the entire city was under attack.  Not that

11     there were random attacks, not that there was random use of artillery.

12     They said it looked like the entire city was under attack.  That's what I

13     was told.  And I, at that point, maybe it's just -- you know, maybe it

14     was -- I got a little bit excited, I don't know.  I said -- it was like

15     something popped in my head.  Because I had already known that there were

16     military objectives all through the city and I said, Well, there's a

17     logical explanation for that.

18             JUDGE ORIE:  Yes.  But I think what Mr. Russo is asking you is

19     that -- a one-liner, it looked like, as if.  I think in view of your

20     experience, you would have known that that would not have been the whole

21     of the testimony of that witness, that he would have told us that he been

22     asked not only about what it looked like, but what he observed and

23     perhaps also what he knew, where he was exactly, whether he travelled

24     around.  I mean, all kind of detailed questions, which -- of which the

25     answers would have served someone to test the possible explanation --

Page 21248

 1             THE WITNESS:  Mm-hm.

 2             JUDGE ORIE:  -- you had on your mind.  And Mr. Russo would like

 3     to know why you stopped immediately on the basis of the one-liner, and

 4     why you didn't further explore on what basis --

 5             THE WITNESS:  Well --

 6             JUDGE ORIE:  -- such a -- it looked as if was.

 7             Yes.

 8             THE WITNESS:  Yes, Your Honour.

 9             When I say I interrupted them, I interrupted them when they made

10     the comment about it looked like the entire city was under attack.  I

11     think subsequently to that I did ask, Where were they?  And that's when I

12     learned there was one individual that was driving around the city, I

13     think I was told he was trying to collect refugees or assist in the

14     evacuation of refugees, and then others were in a building watching the

15     attack that was on the periphery of the -- it wasn't in the city centre,

16     as I recall.  And that -- and I do remember thinking, well, the vision

17     they have would create that perception.

18             But in retrospect I would -- I think the reason that that was

19     the -- all the information that I felt I wanted was because they were

20     there, I wasn't, and I'm not contradicting necessarily the inference they

21     drew from what they observed.  All I was doing was pointing out to the

22     Defence that I believed that, based on the dispersion of military

23     objectives within the city, there would be a possible alternate

24     explanation for that conclusion.  And that's where we left it.

25             JUDGE ORIE:  Thank you.

Page 21249

 1             Please proceed, Mr. Russo.

 2             MR. RUSSO:  Thank you.

 3        Q.   Professor, in response to His Honour Judge Orie's question, draft

 4     transcript page 19, lines 18 to 19, you said:

 5             "I was told that there were people who worked for the UN who said

 6     that it looked like the entire city was under attack, not that were

 7     random attacks, not that there was some random use of artillery."

 8             Now, you would agree with me, wouldn't you, that if the entire

 9     city was under attack, that's an indiscriminate attack.  Wouldn't you

10     agree with that?

11        A.   It would depend on what military objectives were in the city and

12     where they were.

13             My point was, they didn't tell me that these witnesses said there

14     were random attacks or indiscriminate attacks.  They said these witnesses

15     or the report - I honestly can't remember whether it was a witness or a

16     report - said their perception was the entire city was under attack.

17        Q.   And I -- the point I'm trying to make here is what you were told

18     about what they perceived would have put you on some notice that this

19     sounds like something that should be investigated.

20        A.   Well, if my understanding of the enemy disposition up to that

21     point was that there was one military objective in the city, let's say

22     the corps headquarters, and then there's a witness that says, It looked

23     like the entire city was under attack, then that obviously would raise a

24     very significant concern.

25             But I -- I think that my reaction to that was based on my belief,

Page 21250

 1     based on what I had been shown and what I looked at and the assumptions

 2     and facts related to my opinion, that the enemy had located within Knin

 3     military objectives throughout the city.  They were not isolated to one

 4     kazerne [phoen] or one specific area of the city.  There were military

 5     objectives throughout the city, and the enemy, because of his locating

 6     some high-value targets within the city, would have created the

 7     impression in the mind of his opponent that the city was -- he was

 8     treating the city as something that was worth protecting.

 9             And so I -- what I did is I imagined the perception of what it

10     would look like to see the kinetic effect of high-explosive artillery

11     rounds that are being directed at enemy military objectives dispersed in

12     a -- throughout a city, and that's what made me say there's probably or I

13     think there is an alternate explanation for that.

14        Q.   Professor, based on what you know about the dispersion of the

15     military objectives throughout the town, is it your testimony that it

16     would have been lawful to shell the entire town in order to strike those

17     military objectives?  Because it sounds like to me that that's what

18     you're suggesting.  I would like your answer on that.

19        A.   I would -- I'd refer you back to my initial report.  The answer

20     to that is a categorical no.  It is clearly prohibited by international

21     humanitarian law to treat a series of dispersed military objectives

22     within a populated area as one large objective.  That was the product of

23     Additional Protocol I's rejection of a practice of carpet bombing during

24     the Second World War, and in the view of many, carpet bombing by the

25     United States during the war against North Vietnam.  And it is -- it's

Page 21251

 1     a -- as a fundamental tenet of international humanitarian law that is

 2     illicit and improper to simply place an entire populated area in the

 3     cross-hairs because the enemy has dispersed military objectives within

 4     that area.

 5        Q.   Thank you.  And based on what you know about the dispersion of

 6     targets in Knin you'll agree with me, won't you, that there are parts of

 7     the town which are not within the probable range of error around the

 8     military objectives within the town.  You would agree with that, wouldn't

 9     you?

10        A.   Well, there are certainly parts of the town that do not qualify

11     as lawful military objectives.

12             Now your reference to probable range of error I think raises

13     another issue.  You raise that issue in -- as I recall, in the letter

14     that requests the addendum by Colonel Konings --

15        Q.   Let me -- I'm sorry, Professor.  I'll give you an opportunity to

16     give me your answer or your views about that, but first I just want an

17     answer to my question.

18        A.   Well, I can't answer your question without endorsing what I think

19     is your view of probable error --

20        Q.   Well, I'll --

21        A.   -- and I'm not sure I agree with that view.

22        Q.   I'm going give you an opportunity to explain your disagreement

23     with that.  But what I'm asking you is what you know about the military

24     objectives, the location of the alleged military objectives in the town,

25     if you drew around those, the probable range of error of the weaponry

Page 21252

 1     being fired at them, would it encompass the entirety of the town?

 2             MR. KEHOE:  Well, if -- if I may, that certainly wasn't the first

 3     question, but if we're getting into probable range of error, that is an

 4     interesting concept that the Prosecution itself offered no evidence on

 5     during its case, zero.

 6             MR. RUSSO:  Is that an objection or a comment, Mr. President?  I

 7     don't --

 8             MR. KEHOE:  That's an objection concerning the Prosecution's case

 9     concerning probable range of error which they had a burden to present to

10     this Trial Chamber if they thought it was an issue.  It is simply not an

11     issue, I take it, because the Prosecution put nothing forward to the --

12     forward before this Trial Chamber.  There's no -- simply no foundation in

13     the record for that question.

14             MR. RUSSO:  Mr. President, I will respond to that.

15             In terms of evidence, the report of Lieutenant-Colonel Konings,

16     the testimony of Marko Rajic as well as the evidence testimony of Kari

17     Anttila.  Those are just three examples of some of the witnesses who have

18     offered evidence about the probable range of error of some of the

19     weaponry used against Knin.

20             MR. KEHOE:  And --

21             JUDGE ORIE:  Let's try to get back because we're here primarily

22     to hear the testimony of the witness.

23             You put the question to him, Mr. Russo, and the witness said that

24     certainly certain parts of town would not qualify as legitimate military

25     targets.

Page 21253

 1             Let's take it from there.  If you want to further explore --

 2     first of all, apparently the witness says that there are areas which

 3     could not be legally attacked.  That seemed to me a rather important

 4     starting point in the answer to your question.

 5             MR. RUSSO:  I do agree it's important --

 6             JUDGE ORIE:  If you want to further explore that, please do so,

 7     perhaps not by varying your question but perhaps to put some follow-up

 8     questions.

 9             MR. RUSSO:  Yes, Mr. President.

10        Q.   Professor, taking that as the starting point, your observation

11     that there were certainly areas in Knin that were not legitimate military

12     targets to fire artillery at, that's one aspect of -- of an assessment of

13     whether -- is a difference between targeting those areas intentionally

14     and a difference between the effects of artillery, for lack of a better

15     term, bleeding over into those areas.

16             You agree that there's a difference there, right?

17        A.   Let me be clear.  A lawful military objective is the only thing

18     that a commander may deliberately make the object of attack, okay?

19             When we use the word "target" it infers in my mind a decision by

20     an operational leader to make something the deliberate object of attack.

21     Only lawful military objectives within Knin could have been properly and

22     legally targeted by General Gotovina and his subordinate commanders or

23     staff officers.

24             The effects of artillery do not always, we know, directly

25     correlate to the intended target that -- that the round was fired at.

Page 21254

 1     So, it seems to me what you are asking and -- and if this is incorrect

 2     you can obviously tell me, is that if you know a probable range of error

 3     or a probable area of error and you could put a circle around a lawful

 4     military objective, could you conclusively infer from a round striking

 5     outside that probable range of error that the intended object of attack

 6     was not the lawful military objective.

 7             Is that an accurate -- is that what you're suggesting to me?

 8        Q.   No.

 9        A.   Okay.

10        Q.   I'm simple trying to determine when somebody says the entire town

11     of Knin was shelled.  Shells fell everywhere over the town --

12     [Overlapping speakers] ...

13        A.   No -- [Overlapping speakers] ...

14        Q.   Hang on a second.  Somebody says that.  Now, there's, you would

15     agree with me, only a few explanations for that.  One of them being that

16     in fact it was intended to fire shells all over the town.

17        A.   Mm-hm.

18        Q.   And I take it that you're going suggest to me that there's

19     possibly another reason not connected to an intent, an illicit intent

20     that would produce that kind of result.

21             Is that right?

22        A.   Well, first off, again, I was told that the witness said it

23     looked like the entire town of Knin was shelled.  Your question as you

24     just recharacterised it or rephrased it presented it as a fact.  Okay?

25     It was a perception.  That is what I was told.  A witness on the scene

Page 21255

 1     had a perception that the entire city was under attack.

 2             Yes, you are correct.  If that perception is corroborated in fact

 3     or is -- or if the finder of fact, in this Tribunal I assume, concludes

 4     that based on that perception there were shells fired all over the entire

 5     city, then that would indicate an indiscriminate attack, because, as I

 6     stated earlier, there were military objectives dispersed throughout the

 7     city but that didn't make the entire city a military objective.

 8             What I said was that my reaction to that was there was an

 9     alternate rational explanation for that perception, and that alternate

10     rational explanation is that you are observing the kinetic effect of

11     artillery rounds that are being fired simultaneously in a coordinated

12     effort to disrupt the enemy's ability to see the battlefield, to

13     manoeuvre, to re-supply, to muster, and to move reinforcements.  That is

14     a fairly intense attack, each morning, around the time of twilight, where

15     the kinetic effect of artillery is exacerbated because of the lack of

16     natural light and the obvious flash impact of artillery, and I believe

17     that that could create a perception that the entire city is under attack.

18             So, yes, I think there are two alternate inferences you can draw

19     from that perception, and that's what I explained to Defence counsel when

20     they told me that.

21        Q.   Thank you, Professor.  I think I've got what you're putting to

22     me.  Let me just make sure if I am correct.

23             You were, as you say, given someone's perception about what they

24     believed they were witnessing, and you immediately stopped them and said,

25     Well, there's two possibilities.  Number one, they're right about what

Page 21256

 1     they saw; number two, they may be wrong and here's why.

 2             Do I have that correct?

 3        A.   No, number one they may be right; number two, they may be wrong.

 4     And I didn't use that terminology.  I said there were two rational

 5     inferences you could derive from that observation.

 6             JUDGE ORIE:  It ain't necessarily so.  It is not necessarily what

 7     you think it is.

 8             THE WITNESS:  Exactly, Your Honour.

 9             JUDGE ORIE:  Thank you.

10             Please proceed, Mr. Kehoe -- Mr. Russo.

11             MR. RUSSO:  Thank you.

12        Q.   Now you also said here in connection with your second-to-last

13     answer:

14             "As I stated earlier, there were military objectives dispersed

15     throughout the city but that didn't make the entire city a military

16     objective?"

17             Then you would agree with me, then, that if General Gotovina made

18     the entire city a military objective of the artillery attack, that would

19     be unlawful?

20        A.   Explain to me how you make an entire city the military objective?

21     If I can ask that, with all due respect, before I answer your question.

22        Q.   Well, I think you're anticipating where I'm going with this.  But

23     I'd like you to first answer the question.

24        A.   If General Gotovina gave an order to subordinates with the intent

25     that that order be understood as a directive to place the entire city

Page 21257

 1     under attack because there were several dispersed military objectives in

 2     that city, that would have been an improper order.

 3        Q.   And as I said, I do believe you're anticipating where I'm going

 4     with this so we'll just come out with it right now.

 5             You saw the order for attack, General Gotovina's order for attack

 6     in which he directs his artillery forces to put the town of Knin under

 7     artillery fire; correct?

 8        A.   Mm-hm, yeah.

 9        Q.   You have also seen Brigadier Rajcic's artillery attachment in

10     which he follows up that with an order to "shell the town of Knin."

11             You have seen those?

12        A.   Right.

13        Q.   And are you telling me that the explicit language of those orders

14     does not indicate to you that Knin, the town of Knin was a target for

15     artillery fire?

16        A.   Again, I think that that -- the language in those orders raises

17     several possibilities.

18             It's not language that I think is ideal by any means.  If I had

19     been a JAG officer reviewing that plan I would have gone back to the

20     commander and I would have said, You need -- we need to revisit the

21     terminology here.  In fact, in my experience as a JAG officer, that was a

22     routine practice, because military operators, particularly as the higher

23     level of command you reach, you paint with a relatively broad brush, and

24     one of the reasons why there are more than 1.800 licenced attorneys

25     wearing uniforms in the United States Army, and more than 500 of them

Page 21258

 1     deployed in Afghanistan and Iraq, is a recognition that it is very common

 2     to use language in orders and directives and fragmentary orders that is

 3     not as precise as we would like it to be.

 4             So when I saw that, it obviously raised a concern in my mind, and

 5     I -- and so I considered it against broader context.

 6             There was testimony in Rajcic's transcript that talked about

 7     emphasis by General Gotovina on the propriety of targeting, that we will

 8     not make civilians the direct object of attack.  There was discussion

 9     between General Gotovina and his political commander, the president, at

10     the very outset of the Brioni transcript where the president emphasises

11     the critical importance of maintaining international support and goodwill

12     through the execution of the operation and uses the phrase, as I recall,

13     We must ensure the operation is executed professionally.

14             Now, I know that General Gotovina had experience with the French

15     Foreign Legion prior to assuming his duties as a commander in Croatia.

16     It -- all of this raises the question of what professional execution

17     means if an operational commander is told by his president, We must

18     maintain international support and ensure the operation is executed

19     professionally, in 1995, in the Balkans, what effect does this have on

20     his state of mind?

21             I would assume that there had been war gaming going on.  You

22     don't execute an operation that is the strategic centre of gravity for

23     fighting and winning a war without planning it, without war gaming it,

24     and it's clear that military objectives within Knin were identified.

25     It's clear that General Gotovina had a serious issue of ammunition

Page 21259

 1     resourcing, and a priority effort to support the tactical main effort.

 2             So all of this -- all of this, I think, goes into at least my

 3     assessment of what that would have meant and how that would have been

 4     understood, meant when it was issued, understood when it was received by

 5     subordinate commanders in the broader context of this operation.  And

 6     therefore, like the perception that Knin, the entire city, is under

 7     attack, I think that in isolation, that's troubling.  In broader context,

 8     there are multiple conclusions you can derive from that language.

 9        Q.   It sounds, based on how you began the answer and how you ended

10     it, you do agree that the language used by General Gotovina can admit of

11     several possible interpretations, one of them being that in fact he did

12     want the entire town of Knin shelled; correct?

13        A.   If you say, place the city under attack, then obviously one of

14     the conclusions you can draw from that was that that was what was

15     intended.

16        Q.   You indicated that if you were a JAG officer reviewing this

17     particular order you would have gone back to the commander and told him

18     he needed to change the language, and one of the reasons you would have

19     done that is because to follow the order explicitly would be a crime;

20     correct?

21        A.   The reason I would have done it is because I wouldn't want there

22     to be any uncertainty as to what his intent was.

23        Q.   And just for the sake of argument, if there was, in fact,

24     uncertainty --

25             MR. KEHOE:  Excuse me, Mr. President.

Page 21260

 1             JUDGE ORIE:  Mr. Kehoe.

 2             MR. KEHOE:  If we're talking about uncertainty in the order,

 3     might it not be best to pull 1125 up and deal with the actual document so

 4     we get some clarity concerning this uncertainty that counsel is talking

 5     about.

 6             JUDGE ORIE:  Of course, we could look at the document.  At the

 7     same time, I do understand the testimony of Professor Corn to be that in

 8     order to understand exactly what was meant, that it might be not a good

 9     idea to just focus alone on that line in that order, or on those lines in

10     those orders, that -- for the interpretation of what was meant.  We have

11     to see it in the context and then in the entirety of the evidence

12     produced to finally form an opinion as to how to understand that order.

13             Is that correct --

14             THE WITNESS:  That is correct, Your Honour.

15             JUDGE ORIE:  -- Professor Corn?

16             Then, Mr. Kehoe, I'm not opposed against looking at the language,

17     but it will serve only to a limited extent what you apparently seek to

18     achieve.

19             MR. KEHOE:  I --

20             JUDGE ORIE:  That's what -- that's how I understood the witness.

21     At the same time, Mr. Russo, I was already trying to find exactly where

22     it was commented upon exactly.

23             So look at the text as such doesn't -- doesn't harm.  Might even

24     assist.

25             MR. RUSSO:  Mr. President, the witness clearly know what I'm

Page 21261

 1     referring to.  He indicates he's seen the documents.  He knows the

 2     language I'm referring to.  If Mr. Kehoe wants to go ahead and point out

 3     context during his redirect examination --

 4             JUDGE ORIE:  Yes --

 5             MR. RUSSO:  -- that's fine.

 6             JUDGE ORIE:  Mr. Russo, if you understood my previous observation

 7     well, then everyone might have clear on his mind exactly the words used.

 8     I might not.

 9             MR. RUSSO:  Certainly I have no objection to pulling up the

10     order.  It's P1125.  I believe it's page 14 in the English.

11             JUDGE ORIE:  Okay.  It will be on our screen.  And then please

12     proceed.

13             MR. RUSSO:

14        Q.   Professor, I wanted to take this a bit step by step.

15             As long as we have it up here, we might as well read it.  It

16     indicates, bottom paragraph you see on your screen:

17             "Group and organise the TSs and TRS-2 along the main attack axes,

18     focus on providing artillery support to the main forces in the offensive

19     operation through" -- and he gives several directions on how he wants

20     that to be achieved.  Number 1, providing artillery "powerful strikes

21     against the enemy's front line.  Number 2, command posts.  Number 3,

22     communication centres.  Number 4, artillery firing positions.  And number

23     5, by putting the towns of Drvar, Knin, Benkovac, Obrovac, and Gracac

24     under artillery fire.

25             Now, would you agree with me, Professor, that the last part,

Page 21262

 1     number 5, taking that language as explicit, in other words, doing all of

 2     the other things I've asked to you do, firing at communication centres

 3     and artillery positions, in addition to doing those things, I want to you

 4     put the towns of Drvar, Knin, Benkovac, Obrovac, and Gracac under

 5     artillery fire.  You would agree with me that that explicit language is

 6     an order for an unlawful attack on the towns of Drvar, Knin, Benkovac,

 7     Obrovac, and Gracac.  Correct?

 8        A.   No, I wouldn't agree with that.  Because I don't think you can

 9     read it out of context.

10        Q.   Professor, I asked you a very specific --

11             JUDGE ORIE:  Mr. --

12             THE WITNESS:  Can I -- may I finish.

13             MR. RUSSO:

14        Q.   Let me first --

15             JUDGE ORIE:  Mr. Russo.

16             The French translation was approximately four or five lines

17     behind, Mr. Russo.  That's the reason why I tried to stop.

18             Could you also please slow down your speed of speech.

19             Now you can finish your question.

20             MR. KEHOE:  Mr. President, I don't think that the witness

21     finished his answer before Mr. Russo started his next question.  I think

22     the witness was stopping because Your Honour was asking for a pause for

23     the translation and he had further things to comment on this.

24             MR. RUSSO:  Mr. President, I asked him a direct question.  He

25     gave me a direct answer.  "No" was the answer to the question, that he

Page 21263

 1     wouldn't agree with me and that he wanted to provide an explanation.  I'm

 2     going give him the opportunity to do that, but I want my questions

 3     answered first.

 4             JUDGE ORIE:  The question was, Correct?  After you had given him

 5     some suggestions.

 6             The answer was:  "No, I wouldn't agree with that."  That is an

 7     answer to your question.

 8             And then the witness started to explain his question -- his

 9     answer, which is, I think, appropriate, in view of the many matters that

10     you put to him.  You started by saying, Professor Corn, because I don't

11     think you can read it out of context, was there anything you would like

12     to add to that.

13             THE WITNESS:  Yeah.  Counsel asked me if I agreed that that

14     language -- they've moved the transcript up on me, but as I recall, if I

15     would agree with him that that language was -- called for an illegal

16     attack or was improper, and I answered no, I wouldn't necessarily agree

17     with you.  That could be a conclusion you could derive from that

18     language, but I think that conclusion -- but -- but when I look at it, I

19     look at it in broader context, and in that broader context, what I see is

20     a commander focussing his artillery, his fire support assets on tactical

21     objectives and operational objectives.

22             Now I think that the question you posed to me, Mr. Russo, is

23     based on an assumption that a command post and communication centre can

24     only exist in the town of Knin.  Therefore, adding, Put Knin under

25     attack, can only mean you want to strike objectives in Knin that you have

Page 21264

 1     already identified.  But I read it, with my understanding as a former

 2     tactical intelligence officer, that command posts and communications

 3     centres and logistics areas exist in the close-battle area and in the

 4     rear-battle area.  And then I read on in the paragraph, and again, he is

 5     focussing on the tactical effect of fire support.

 6             So, yes, I do agree with you, if the proposition is, is one

 7     possible conclusion from that language that it was an order to place the

 8     entire city under attack.  That is a possible conclusion from that.  I

 9     don't think that conclusion is -- or that inference is supported by the

10     broader context of the paragraph.

11             MR. RUSSO:

12        Q.   Professor, thank you for your answer.  What I wanted to focus on

13     was your agreement that one possible conclusion from the language is that

14     it was in fact an order to place the entire city under attack, and I'm

15     asking you to confirm that if that interpretation is, in fact, the

16     correct one, then the order, this particular language issued by

17     General Gotovina, is an order to conduct an unlawful attack on those

18     towns.

19        A.   It could be understood as an order to conduct an unlawful attack

20     on those towns.  Whether or not that was his intent, I think, is another

21     question.  But, yes, that is a possible conclusion you could draw from

22     that.

23        Q.   Thank you.

24             MR. RUSSO:  And if we could have P1205.

25        Q.   And before we move on, the interpretation you gave to the

Page 21265

 1     language of the order we just looked at, that it's -- you're saying it's

 2     possible, and correct me if I'm wrong, it's possible that when

 3     General Gotovina says, Fire at command posts, communication centres,

 4     artillery positions, and by putting the towns of Knin, Drvar, Benkovac,

 5     Obrovac, and Gracac under artillery fire, you're saying that one

 6     interpretation is that he's attempting to communicate to his subordinates

 7     that he wants the command posts, communication centres, artillery

 8     positions inside those towns to be attacked by artillery.

 9             Do I have that right?

10        A.   No.

11        Q.   Okay.  Then ...

12        A.   My point was that in the broader context of his fire support

13     concept of operation, it is clear that the priority effort of fire

14     support is to support the close battle.  The offensive, the initiation of

15     offensive action against an improved and established enemy defence line,

16     and when you fight that close battle, and you're going use artillery to

17     support it, you have to use that artillery against not just the defences

18     but you use it against C3I and logistics that are in proximity to that

19     close fight.  It's -- it's an axiomatic principle of military operations.

20             And so what I read that within the broader context or what I

21     think is a possible or rational conclusion to draw from that, is that if

22     there had been military objectives identified in Knin prior to issuing

23     this order, he is telling his artillery subordinates, Place the

24     objectives in Knin under attack, in support of this broader operation.

25     He is more focussed on the objectives related to the close fight because

Page 21266

 1     the close fight is his priority of effort.

 2        Q.   And if that position you're taking is true, Professor, can you

 3     tell us why, in your view, he doesn't say, And by putting the military

 4     objectives in Drvar, Knin, Benkovac, Obrovac, and Gracac under artillery

 5     fire?  Can you explain to me what your position is on why that language,

 6     which would clarify things, certainly was not included?

 7        A.   Well, I mean, first off, for me to tell you why he didn't do it

 8     is total speculation, but can I tell you from my experience providing

 9     legal advice to military commanders, there are a number of explanations

10     why that language would end up.

11             First off, I doubt General Gotovina sat down and personally wrote

12     the document.  Perhaps he did.  But in most cases the commander is not

13     writing the order.  The operations officer is writing the order.  And the

14     commander obviously adopts the order when he issues it under his

15     authority, okay?  He is relying on the precision of the operational

16     officer who drafts the order.

17             That's one factor.  Another factor --

18             JUDGE ORIE:  Could I stop you for a second.

19             I'm trying to understand the question, and I'm also trying to

20     understand your testimony up until now.  You have testified that this

21     language can be understood in several ways.  One possible explanation

22     being that he wanted the towns to be attacked.

23             THE WITNESS:  Mm-hm.

24             JUDGE ORIE:  Another one, that he intended to give orders to

25     attack military objectives within those towns.

Page 21267

 1             Now, Mr. Russo, the next question to ask why would he have put it

 2     in this way is - but please correct me when my understanding is wrong -

 3     is a useless question because it all depends on how we have to understand

 4     the language.  If the language intended to say, Just attack the whole of

 5     the town, then, of course, the reason why it was phrased this way,

 6     because otherwise you would have missed major parts of the town civilian

 7     parts, if he would have only attacked military objectives.  If, however,

 8     on the other hand, it was intended to give an order to attack military

 9     objectives only, under those circumstances, you could say it was -- well,

10     not -- not phrased in the best way to do that.

11             So, therefore, the answer to your question completely depends on

12     the interpretation to be given to this language for which Professor Corn

13     has told us that there are several ways of doing.  You could understand

14     it A; you could understand it B.  So then to ask the why, you should

15     split that then up, to if you understand it A, why would this language be

16     used.  If you understand it B, why would that language be used?

17             And I think, as a matter of fact, that it's so obvious that if

18     you interpret the order as intending to attack the town as a whole, I

19     mean, the why for the language, the answer to that question is almost

20     given.

21             If, however, you would interpret it in a different way, then I

22     think in the testimony of Professor Corn we found the answer already.

23     It's language which is not very precise, and he would have -- would he

24     have been in a position -- he would have sent it to be reviewed.

25             So the answers are there.  The question is a useless question if

Page 21268

 1     you do not make a distinction between the various interpretations of the

 2     text.

 3             If you disagree with my analysis, I'd like to hear from you, and,

 4     of course, the best would be to put the questions in such a way that I'm

 5     immediately convinced of the inaccuracy of my analysis of questions and

 6     answers.

 7             But let me first ask Professor Corn, listening to the last

 8     question of Mr. Russo and listening to my analysis as why it would a

 9     useless question, would you agree or would you not agree?

10             THE WITNESS:  Your Honour, I agree, and obviously the answer I

11     started to elicit was based on an assumption that Mr. Russo is asking me

12     if he didn't mean to put Knin under attack, why he would have used that

13     language.

14             JUDGE ORIE:  Yes, although --

15             THE WITNESS:  In the alternative, I think you could ask the other

16     question.  If he meant to attack the civilian population in Knin, why

17     didn't he say, Place the civilians in Knin under attack.  I mean, it's --

18             JUDGE ORIE:  You might have missed the other parts of town,

19     Mr. Corn --

20             THE WITNESS:  Exactly.

21             JUDGE ORIE:  -- which might have been ...

22             Yes.  Mr. Russo, it's close to 10.30.  If you'd like to further

23     digest my previous observations when preparing a formulation of your next

24     question which might demonstrate that not only me but Professor Corn is

25     wrong as well, then I'd like to give you some time for that.

Page 21269

 1             Apart from that, there seems to be a procedural issue to be

 2     raised by one of the parties.  Therefore, I suggest, unless you would say

 3     no, one or two questions would ...

 4             MR. RUSSO:  Well, Mr. President, just to respond to the Court's

 5     analysis.

 6             What I'm attempting to do, and it may not be clear to the Court

 7     due to my inartful phrasing of my questions, it appears to me that

 8     Mr. Corn has chosen among the possible alternatives interpretations of

 9     this and I'm attempting to test why he has chose that particular

10     alternative, but I will find a more focussed and less useless way to ask

11     for that information.

12             JUDGE ORIE:  Yes.

13             Mr. Russo, although it may be right that more time was spent

14     on -- on an explanation which might not necessarily be the one of the

15     Prosecution, I didn't hear Professor Corn to choose between one of these

16     twos -- two options but we could ask him.

17             Professor Corn, have you chosen?  Do you say this is the right

18     interpretation; that's the wrong interpretation?  Or have you just said

19     that, in the context, the interpretation by the Prosecution is not

20     necessarily the right one.

21             THE WITNESS:  Your Honour, I think I would have to answer that by

22     adopting the latter proposition.

23             Now, let me just be clear.  I mean, obviously in my addendum I am

24     given facts and assumptions that focus the attack on specific military

25     objectives in the town.  So, in that regard, in relation to the addendum,

Page 21270

 1     I would have to say that the facts and assumptions in the addendum rebut

 2     the proposition that the Prosecution has proffered, that this was a

 3     directive to attack the entire town.  Otherwise the facts and assumptions

 4     related to my assessment of each strike would be totally eviscerated.

 5             But in this specific -- with this specific question, I think

 6     there are two reasonable or rational inferences you can draw from the use

 7     of this language.  I think both of them -- there are weaknesses and

 8     strengths for both of them.  I just think that it needs to be read in the

 9     broader context, and I also think that if the assumption is or the

10     assumption is he intended attack the -- to attack the town and that's why

11     he put that language in there, then you could ask the question why wasn't

12     he even more precise in that intent.

13             So I think there are two rational conclusions you could draw from

14     that language.

15             JUDGE ORIE:  Then I think we should have a break, Mr. Russo.

16             Could I first ask Madam Usher to escort you out of the courtroom,

17     Professor Corn.

18                           [The witness withdrew]

19             JUDGE ORIE:  Mr. Misetic, I was informed that there was a

20     procedural matter to be raised.

21             MR. MISETIC:  Yes.  If we could go into private session for a

22     moment, please.

23             JUDGE ORIE:  We turn into private session.

24                           [Private session]

25   (redacted)

Page 21271











11  Page 21271 redacted. Private session.















Page 21272

 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             Since we're dealing with procedural questions, Mr. Cayley, the

11     scheduling, as it stands now, would not permit the Cermak Defence to

12     start its case on the 17th of September.  Therefore, that date has to be

13     changed.

14             Now I do remember that, at the time, you asked for a couple of

15     days between the Gotovina case and the start of the Cermak case.  Now,

16     there are two possible explanations of this language.  The one being that

17     you needed a couple of days between the two; or that you felt that, in

18     view of the scheduling at that time, well, the 14th or the 15th would be

19     too early and that you would need, in more absolute terms, until a later

20     date.

21             MR. CAYLEY:  Could I interrupt you, Mr. President, because I can

22     short-circuit this.  We are ready to actually go ahead immediately, so --

23             JUDGE ORIE:  Yes.

24             MR. CAYLEY:  -- as soon as the Gotovina team is finished, we can

25     proceed with our first witness.  All we need is a date for certain when

Page 21273

 1     our case is to begin so that we can bring our witnesses.

 2             JUDGE ORIE:  Yes, you would say that could be the day after the

 3     Gotovina Defence has concluded.

 4             MR. CAYLEY:  Exactly, Your Honour, yes.

 5             JUDGE ORIE:  Yes.  So, therefore, I think we have in -- in view

 6     of the witnesses we have on our list and the estimates of time needed, we

 7     would know when that would be, but perhaps you verify and if the parties

 8     agree when the Gotovina Defence will conclude its case presentation that

 9     we will know that the next day you would start, and then we can check

10     whether your understanding of when the Gotovina case concludes is the

11     same as our understanding of when that will be.

12             MR. CAYLEY:  I will follow up on that, Mr. President.  Thank you.

13             JUDGE ORIE:  Thank you.

14             Then we will have a break, and we resume at 11.00.

15                           --- Recess taken at 10.37 a.m.

16                           [The witness takes the stand]

17                           --- On resuming at 11.05 a.m.

18             JUDGE ORIE:  Mr. Russo.

19             MR. RUSSO:  Thank you, Mr. President.

20        Q.   Professor, before the break, the Presiding Judge put the question

21     to you, whether you had chosen between the interpretations to be given to

22     the particular language about putting the towns under artillery fire, and

23     you indicated that you had chosen an interpretation and your

24     interpretation was that this was a legitimate order not intended to

25     specifically target the town as such.

Page 21274

 1             Do I have that right?

 2        A.   No.

 3        Q.   Okay.  Please explain.

 4        A.   I explained to the Judge that when I wrote my addendum, which was

 5     an assessment of the legality of placing certain targets within Knin

 6     under attack, then obviously the facts and assumptions upon which that

 7     addendum -- those -- that opinion or those opinions are premised by

 8     implication, I think, has to adopt the conclusion that this order meant,

 9     Place the objectives in Knin under attack, because that's what the facts

10     and assumptions that drove that addendum indicated.

11             I also told the Judge that looking at this document in and of

12     itself, I think it is inconclusive which interpretation is -- whether one

13     interpretation is so clear that it rules out, as a fair and rational

14     alternative, the other interpretation.  I think that -- that you could

15     draw a logical inference that either interpretation is appropriate.  I do

16     think that -- that in context the interpretation that it was an

17     indication to strike military objectives is a little bit weightier, but

18     I'm not saying that it is a conclusive determination on my part, looking

19     at that document, in and of itself.

20        Q.   Well, looking at the document, not just in and of itself but in

21     the context of everything you have already been told about the case, the

22     facts and assumptions you were asked to rely upon, everything essentially

23     that you are aware of up to this point, looking at that order now, can

24     you offer an opinion to the Trial Chamber about what your interpretation

25     of that is?

Page 21275

 1        A.   Yes.  In my opinion, my -- my opinion is that that was not a

 2     directive to engage in an indiscriminate attack against Knin.  In my

 3     opinion, in the broader context of the commander's operational intent,

 4     his priority of effort, the tactical emphasis throughout the rest of the

 5     document, the information he was provided by the president, the emphasis

 6     on professional operations, his background as a professional soldier and

 7     non-commissioned officer in one of the most professional military

 8     organisations in the world, all of this -- and candidly, another factor

 9     that -- that weighed -- that leads me to that opinion is that because it

10     appears to me that his focus is -- he has got a very clear battle focus,

11     close with and destroy the enemy.  Unsurprising to me from a commander

12     who finds his lineage in a light infantry elite unit, because that is the

13     ethos of light infantry; close with and destroy the enemy.  And that --

14     that focus kind of, for me, seems apparent through the vast majority of

15     information I've seen.  And so, I also think that in the broader context

16     it would be a waste of resources when he has made it clear that his

17     priority effort is to bring the enemy armed forces into submission, to

18     waste this fairly precious asset, his indirect fire capability, on random

19     kind of chaotic strikes against the city.

20             So all of that combined led me to the opinion that this was not

21     an intent or a directive to place the city under attack or -- at large,

22     but to strike the pre-established and identified military objectives

23     within the city under attack.

24        Q.   Thank you, Professor.

25             MR. RUSSO:  If we could please have Exhibit D970.  I believe

Page 21276

 1     that's -- yes, that is the one on the screen.  If we can go to page 3 in

 2     both English and B/C/S.

 3        Q.   Professor, this is a copy of the attachment for artillery to

 4     General Gotovina's offensive operation order.

 5             MR. RUSSO:  And if could move the screen a little bit further

 6     down on the left.

 7        Q.   Under subsection 3, the TRS task, and focussing on the language

 8     in the paragraph that says:

 9             "Shell the towns of Drvar, Knin, Benkovac, Obrovac, and Gracac."

10             Do you take the same interpretation of this language as you have

11     of General Gotovina's language in the offensive operation order.

12        A.   I do.  And I think there's another element here that needs --

13     that I need to explain why I conclude ...

14             Listen, I have done this process where you receive an operations

15     order from higher command and then you produce your order in response to

16     that.  This is -- now, I have never done it in combat, right?  I have

17     done it in training and I have been involved in the process in training

18     extensively.  And even in a training environment the pressure of time, of

19     intensity, of the -- the multiple demands that are on the staff, result

20     in the logical process of lifting language from the superior's order and

21     plugging it into yours.

22             And just like I have doubts that General Gotovina actually sat

23     down and typed his operations order, as opposed to giving his concept of

24     operation and commander's intent and leaving it to his staff to put that

25     into writing, I think the same process happens at the subordinate command

Page 21277

 1     level.  A staff officer is preparing this order, he is trying to do as

 2     efficiently and timely as possible, and he is lifting stuff out of the

 3     higher command's order.

 4             But, again, you see that the general tone of the tasks to the

 5     artillery unit are tactical, okay?  They're talking about protecting

 6     flanks, counter-battery fires, neutralising or disrupting the ability of

 7     the enemy to bring resupply and reinforcements into the main battle area,

 8     and then the language comes right out of the higher headquarters order,

 9     Shell the towns of Drvar, Knin and the rest.

10             So, again, I think it's inartful.  It leads to multiple possible

11     interpretations.  It's not language, I think, that would be in any sense

12     ideal to place in an operations order.  I think a JAG officer reviewing

13     it would have -- would have required the staff officer writing it to make

14     it more precise.  But I think that in broader context I can understand

15     how it ends up in -- in that document.

16        Q.   Well, Professor, with respect to General Gotovina's offensive

17     operation order you indicated that if that you had seen that order, you

18     would have taken it back to the commander; correct?

19        A.   Mm-hmm.

20        Q.   Is it the same situation applying to this particular order?

21        A.   No question.

22        Q.   And you agree that it is inartful and subject to multiple

23     interpretations, and again, one of those interpretations is in fact -- or

24     could be reasonably understood to be that whoever drafted this order

25     wanted the entire towns of Drvar, Knin, Benkovac, Obrovac, and Gracac to

Page 21278

 1     be shelled.  Correct?

 2        A.   I don't think -- I don't see how that couldn't be an

 3     interpretation.  So, yes, I think that could be an interpretation.

 4        Q.   Professor, you took significant exception to what you, I believe,

 5     termed as "inartful language" used in -- in Professor Konings's [sic]

 6     report on statements of the law.  Wouldn't you agree that this is

 7     slightly more of a serious matter to be so inartful when you're directing

 8     artillery to be used in a civilian-populated area?

 9        A.   First off, as I noted to the Tribunal, I am sympathetic to what

10     Colonel Konings did with regard to the law and I spent -- I think I spent

11     a good bit of time talking about what I saw was a conflation between

12     policy and law; but I also said I thought it was totally understandable,

13     because of my experience advising officers in positions similar to

14     Colonel Konings.  So what I took -- I think the characterisation of the

15     exception that I took to his report focussed more on what I saw were

16     modifications or distortions of operational doctrine, which I actually

17     remember pointing to the record and saying, That's what I said was

18     inexplicable.

19             So if you recall, I said the confusion between RoE and law I felt

20     was explicable.  It was misleading but it was explicable.  And that is

21     consistent with my reaction to this.

22             As a JAG officer who has been trained in the Law of Armed

23     Conflict and support to military operations, when I receive an order, the

24     first annex I turn to is the fire support annex, because I know how

25     likely it is that operators in -- under the stress of -- of military

Page 21279

 1     operations and the requirements to do a hundred things when they have

 2     time to do 20 things, I know the proclivity to make these kind of

 3     statements.  And so that, as I said, is why if you are in a military that

 4     has the luxury of having a robust legal corps, that corps is fully

 5     employed.

 6             But -- so when you -- when you ask, is this just as dangerous as

 7     Colonel Konings's imprecision in his discussion of law, there is

 8     certainly danger here.  But what you have to understand this is -- this

 9     is a trigger, okay?  It triggers application of targeting annexes,

10     pre-planned targets, targets of opportunity, a whole range of process is

11     triggered by the order to execute a mission.  This doesn't stand on its

12     own.  And so in the broader context of a subordinate command where the

13     emphasis has been placed on the tactical reduction of enemy capability,

14     that would offset the risk, and the more of emphasis there has been on

15     that, the greater the risk is offset as a result of this.

16        Q.   Professor, you would agree with me that however the process ran,

17     whether General Gotovina sat down and typed this out, whether

18     Brigadier Rajcic typed it out or somebody else typed it out, the ultimate

19     responsibility for the language used and for the intent expressed by the

20     language is General Gotovina's responsibility.  You would agree with me,

21     wouldn't you?

22        A.   It's his order.  He is accountable for what it includes.  But

23     again, if you refer back to my initial report, there is a principle of

24     IHL, I believe, that allows commanders to rely on the expectation that

25     subordinates will interpret their orders consistent with their legal

Page 21280

 1     obligations.

 2             So yes.  The answer to your question is yes, he is ultimately

 3     responsible for this.  And if this is all there was, that would raise a

 4     significant concern.  But in a broader context, I think that ultimate

 5     responsibility has to be assessed within that broader context, which I

 6     assume is the purpose of the trial.

 7        Q.   Thank you.  Getting back to some of the questions I was asking

 8     you earlier, there was one I neglected to ask regarding what you were

 9     told during your oral presentation in December of 2008.  Were you told

10     about or shown any evidence in relation to the shelling conducted by

11     General Gotovina's forces in any areas other than Knin during Operation

12     Storm?

13        A.   No.

14        Q.   And, Professor, have you ever spoken with General Gotovina or any

15     of his former subordinate officers in the HV?

16        A.   I have never spoken to General Gotovina.  I mentioned that there

17     was a technical expert that was in the meeting in Tampa, a gentleman

18     named Goran.  I apologise to the Tribunal; I don't know his last name.  I

19     believe he was in the HV armed forces.  I have -- I don't think, to my

20     knowledge, he was part of General Gotovina's staff.  But that's the only

21     individual that I have had contact with that I think had experience as an

22     HV -- a member of the HV armed forces.

23             JUDGE ORIE:  Mr. Russo, since you are revisiting the presence of

24     persons during the Tampa -- yes, Mr. Kehoe.

25             MR. KEHOE:  Yes, Mr. President.  I don't know if you're -- by --

Page 21281

 1     in transparency, the individual is Goran Zugic, Z-u-g-i-c, the gentleman

 2     who has been in court from time to time, has been a part of our team.  I

 3     just wanted to make that clear and so the Prosecution knows who this

 4     individual is.

 5             JUDGE ORIE:  Yes, Mr. Russo.

 6             Early, Mr. Corn, you referred to the three counsel that are in

 7     court.  Well, on our filings we find three counsel, two of them are in

 8     court at this moment.  So it was not entirely clear what -- to which

 9     person you referred when you were talking about a third counsel.

10             THE WITNESS:  The lawyers that were in the meeting were

11     Mr. Kehoe, Mr. Stanton and Mr. Cronin.

12             JUDGE ORIE:  Yes.  Thank you.

13             THE WITNESS:  And this gentleman Goran.

14             JUDGE ORIE:  Yes, thank you.

15             Please proceed, Mr. Russo.

16             MR. RUSSO:  Thank you, Mr. President.

17        Q.   Professor, have you, on your own, been exposed to any information

18     about this case, either through media, law review articles, watching

19     testimony, anything like that?

20        A.   No.  Before this, I wasn't familiar with General Gotovina.  As a

21     matter of fact, the night -- the day arrived here, I pulled up a

22     Wikipedia site just so I could see a picture of what he looked like.

23     That was the first time I saw a picture of the General.

24        Q.   Did you have any knowledge or information concerning the conflict

25     in Croatia, concerning specifically Operation Storm itself?

Page 21282

 1        A.   I did not have any specific information related to Operation

 2     Storm.  As an army Judge Advocate at the time, I was generally familiar

 3     that there was a conflict going on between the Croatians and the Croatian

 4     Serbs.  But the specific details of the conflict I was unfamiliar with.

 5        Q.   Professor, have you ever been to Knin?

 6        A.   No.

 7        Q.   Have you ever been to anywhere else in the Krajina?

 8        A.   No.  I have been to Dubrovnik, but I don't think that is in the

 9     Krajina so ... that's only the place in Dubrovnik -- or in Croatia I've

10     visited.

11        Q.   And did you have any contact with any member of any Defence team

12     other than General Gotovina's Defence team in relation to this case?

13        A.   No.

14        Q.   Professor, at paragraph 13 of your supplemental information

15     sheet, that's D1644, you state:

16             "I reviewed these documents" -- and that's referring to the

17     documents listed in paragraph 12, "within the scope of my conclusions, as

18     stated in paragraph 11.  To the extent these documents were relevant to

19     that scope, none of them changed my conclusions."

20             Professor, I had a little difficulty understanding what you were

21     trying to convey about the limitations on your conclusions in

22     paragraph 11 and here again in paragraph 13 of your supplemental

23     information sheet.

24             Can you please just give us an explanation of this.

25        A.   Yeah.  You know, obviously I wrote the addendum prior to

Page 21283

 1     preparing to be a witness.  The preparation for being a witness, as I

 2     testified to yesterday, involved ...

 3             JUDGE ORIE:  Please proceed.

 4             THE WITNESS:  Involved the visit to Houston by Mr. Cronin and

 5     Mr. Stanton in which we reviewed my addendum and other information; for

 6     example, the Brioni transcript, some of the orders we've just looked at.

 7     It also involved a meeting here in The Hague at the offices of Greenberg

 8     Traurig, which we conducted Sunday, and I signed this document that day.

 9     And the point that is made by that paragraph is subsequent to writing the

10     addendum, I haven't seen any document that has called -- that would lead

11     me to change the opinions in that addendum.

12        Q.   And can I take it that that means you conducted a thorough review

13     of the documents which are listed in paragraph 12?

14        A.   I -- I wouldn't use the characterisation thorough.  I have seen

15     these documents or photographs.  I think I've indicated to you the ones

16     that I thought had a significant impact on my thought process.  Others

17     had an -- obviously a less significant impact, so it's -- you're -- it

18     would depend what your meaning of "thorough" is.

19        Q.   Well, to say, I have looked at these documents and they haven't

20     changed my conclusions, I'm taking that to mean that you took an

21     intellectually honest review of those to -- you know, because if there is

22     something in there that may have changed your opinion and you missed it

23     because you didn't give it a thorough enough reading --

24        A.   Right.

25        Q.   -- that is something we might want to consider.

Page 21284

 1        A.   Right.  And I think my point is that there are some that I felt

 2     were not that significant.  Others that I felt were more significant.

 3     And the ones that triggered my sense that they were more significant led

 4     to a more intense review.  For example, when I read the order and it says

 5     put the cities of or the towns of blank, blank, blank under attack, it's

 6     a red flag and I'm going to spend more time looking at or -- maybe

 7     thinking about that context.

 8             But, no, it's not as if somebody stuck a paper in front of me and

 9     said, Check it off, or a photo.

10        Q.   Professor, in your expert report, that last full paragraph on

11     page 28, you state:

12             "The record indicates that General Gotovina appears to have

13     considered these aspects of the disposition of civilians in Knin when

14     selecting his course of action for employing his indirect fire assets.

15     My review of the record indicates the following with relation to the

16     actual employment of indirect fires by General Gotovina."

17             Now, the record you are referring to there means the facts and

18     assumptions specifically provided to you by the Gotovina Defence in the

19     May 19th letter; correct?

20        A.   Yes.

21        Q.   And in fact, the items of information which you identify on

22     pages 28 and 29 as relevant to General Gotovina's use of artillery,

23     they're copied verbatim from the assumed facts provided on pages 6 and 7

24     of the Gotovina Defence's May 19th letter to you.

25             Isn't that correct?

Page 21285

 1        A.   Let me find the letter before I ...

 2             Yes.

 3        Q.   And in identifying pieces of information that you considered

 4     relevant, there was no other piece of information you believe was worth

 5     mentioning regarding General Gotovina's use of artillery?

 6        A.   Let me, once again, reiterate the process that drove this.

 7             I was being asked to opine on what I considered to be the

 8     ultimate question before the Tribunal:  Was the General's employment of

 9     artillery consistent with his obligations under the Law of Armed

10     Conflict?

11             I went to the Defence and I said -- their initial offer to me was

12     to give me documents and transcripts, et cetera, et cetera.  I told them

13     I thought that what was important was that my opinion be based on a

14     factual predicate that was consistent with the factual record at the

15     trial.  That's probably why I used the word "record."  It would have been

16     more precise for me to say, Based on the facts and assumptions provided.

17     But I was, I guess, kind of subconsciously associating those facts and

18     assumptions with the record because I had insisted on several occasions

19     that the Defence give me their assurance that they were confident that

20     the record supported these facts and assumptions.

21             And that's why I attempted to rely on them to render my opinion,

22     because if I create or use other facts and assumptions that are not

23     before the Tribunal, in my opinion, when I wrote this, the value of my

24     opinion is degraded.  Because all can I understand that I'm doing is

25     offering my insight, based on my expertise, to aid the finder of fact

Page 21286

 1     reaching the ultimate conclusion, and the value of that assistance is, in

 2     my view, directly connected to the factual foundation upon which it

 3     rests.  And the only thing, the only fact that I thought was particularly

 4     significant that I went to them and said, I remember this, and if it is

 5     before the Tribunal, I think it's significant, was the decision to

 6     refrain from launching an attack on co-mingled civilian and military

 7     individuals fleeing out of the -- the incursion area.

 8             So that's the best explanation I can give you, as to why I can

 9     find the opinion to the foundation established by the facts and

10     assumptions offered in the letter, or attempted to do so.

11        Q.   Professor, when you listed the information here, by this time you

12     had already seen General Gotovina's offensive operation order which

13     you've already indicated raised a red flag for you.  And in listing the

14     information you believed was relevant to his use of artillery you didn't

15     think it was a fact worth mentioning that he used the language which

16     raised a red flag in your mind?  You didn't think that was something that

17     the Trial Chamber should know was part of your consideration?

18        A.   Well, as I explained to you, okay, in the abstract that concerned

19     me.  In the broader context, I think I understood what it meant.  That

20     was my opinion.  Okay?  And so -- the answer is no.  I mean, obviously if

21     I had thought that was important to add to the facts and assumptions, I

22     would have asked the Defence counsel if I could include it, like the fact

23     of deciding not to fire on those fleeing forces.  It is a -- I felt

24     the -- the tactical execution, the overall situation, and the facts

25     related to the effects of fires was more significant in my assessment,

Page 21287

 1     because it put it into broader context.

 2             Honestly, I can't even -- I can't even remember if I thought to

 3     myself, That's already before the Tribunal.  They'll -- obviously they'll

 4     be considering that.  I don't even remember if I went through that

 5     thought process.

 6        Q.   Now, Professor, before we look at some of the assumed facts which

 7     you identify as relevant to your considerations, let me ask you this:

 8     Would you agree with me that at times when you had no information on

 9     particular factual circumstances you made assumptions or inferences

10     favourable to General Gotovina to fill in that informational gap?

11             Would you concede that?

12        A.   Can you give me a specific example of where you think I did that?

13     I mean, are you taking in relation to these facts and assumptions or ...

14             When I first -- when I first began the case, I had -- I had no

15     opinion one way or the other as to whether he acted properly.  My first

16     function was to look at a report written by Colonel Konings and help the

17     Defence counsel identify what I thought were problems with the report,

18     the case progressed from there.  So I don't think at every point I had an

19     assumption that General Gotovina was acting properly and I filled in

20     facts and circumstances to -- to bolster that assumption.  And by the

21     way, in that regard, as I said yesterday, if the Trial Chamber determines

22     that this factual predicate is erroneous and another factual predicate

23     substitutes for it, then I recognise that many of the opinions in here

24     are invalidated.

25             So, ultimately, there's a -- the critical question is:  What were

Page 21288

 1     the facts and circumstances and assumptions related to the

 2     decision-making process at the time he made the decision, which is

 3     emphasised in my first report.

 4        Q.   Looking at your report at the top of page 28, specifically

 5     looking at subsection (b), you point out the assumption provided to you

 6     that there was a curfew imposed against civilians.

 7             And if we move to the next page and look at the bottom where you

 8     draw some conclusions based on those facts, at subsection A you conclude

 9     that General Gotovina:

10             "... sought to exploit the curfew by surging his indirect fires

11     against military objectives in Knin during curfew hours."

12             Further down in subsection (c), you conclude that General

13     Gotovina:

14             "... employed indirect fires during non-curfew hours in a limited

15     manner, suggesting an intent to disrupt enemy operations while minimizing

16     the risk of collateral damage and incidental injury to civilians."

17             And finally on the following page, that's page 30, in

18     subsection (f), you conclude that General Gotovina:

19             "... employed MBRLs only during those times he assumed civilians

20     were under a curfew order."

21             Now, Professor, when you drafted this addendum, at least

22     according to the testimony you have given us, you didn't actually have

23     any evidence concerning what the curfew hours were, and looking through

24     the assumed facts that you identified as relevant, as well as all of the

25     assumed facts which you were asked to assume by the Gotovina Defence,

Page 21289

 1     there is no indication of what the curfew hours actually were.

 2             So what I'm putting to you is that you made a determination

 3     without knowing what the curfew hours were, what General Gotovina's

 4     conduct was and intent was, relative to those curfew hours.

 5             How do you explain that?

 6        A.   Well, the only explanation is that I was aware that the curfew

 7     was through, I believe, 5.00 in the morning.  So -- and as I told you

 8     yesterday, I don't think it was -- I couldn't say that when I wrote this

 9     addendum I expunged every bit of information that I'd ever heard.

10             So my answer to your question is, obviously when I put that down

11     I was referring to knowledge that I had learned probably in the meeting

12     in Tampa, so ...

13        Q.   Well, without getting into what you learned at Tampa, you learned

14     because you were provided with documentation --

15             MR. RUSSO:  Specifically if we could have Exhibit D241.

16        Q.   You were provided with the document I am about to show you which

17     indicates that, in fact, what you say here about the curfew hours is

18     wrong.  That it -- in fact the situation is opposite from what you

19     conclude.  Your conclusions that General Gotovina surged his indirect

20     fires during curfew hours, you'll see from the document, is incorrect.

21             It indicates that the curfew is from 10.00 p.m. to 5.00 a.m.  As

22     you may know, it is undisputed in this case that 5.00 a.m. is the time

23     when General Gotovina chose to begin and in fact did begin his artillery

24     attack.  And so, in fact, it was during non-curfew hours --

25        A.   Mm-hm.

Page 21290

 1        Q.   -- that he surged his artillery.  So now that you know the

 2     situation is the opposite of what you thought it was when you drew this

 3     conclusion, are you willing to draw the opposite conclusion?  Knowing now

 4     that he surged his artillery and used his artillery during non-curfew

 5     hours, does that suggest to you an intent, in fact, to increase the risk

 6     to civilians?

 7        A.   No, not necessarily.

 8             Now, first off, let me make the point.  I mean, this is an

 9     example of the point I just made in response to your earlier question.  I

10     recognise that if the -- if the record, the facts determined by the

11     Chamber, the Trial Chamber, are inconsistent with the facts and

12     assumptions that I base my report on, then the value of the opinion is

13     degraded as a result of that.

14             Now, the level of degradation is something that the Trial Chamber

15     assesses.

16             In this situation, I believe that, based on the overall record,

17     his use of indirect fires against the C3I targets in Knin, the surge of

18     indirect fires was driven primarily by his consideration of the

19     connection to the tactical point of attack.  In other words, if you're

20     launching your attack at twilight, it doesn't make sense to launch your

21     assault on the CP at midnight because within the six or seven hours

22     between midnight and twilight, the enemy has freedom of action.

23             It -- it's -- I obviously remember that there was a curfew in and

24     around that time.  Now, if you tell me that the surge of artillery

25     occurred at noon, or 2.00 in the afternoon, and it is unrelated to the

Page 21291

 1     launching of the offensive operation and it's so attenuated from the

 2     termination of the curfew that it creates a high probability that there

 3     are going to be civilians out and about, then that, I think, would have a

 4     much more significant degrading effect on the opinion.

 5             But you're talking about the difference between 5.00 and 5.30,

 6     suggesting -- I mean, I don't think it's a rational inference that at

 7     5.00 in the morning when the curfew ends, everybody jumps up and runs

 8     outside.  Now maybe that is true, and maybe I don't know the cultural

 9     dynamics of people who lived in Knin, and if that's established then the

10     opinion loses significant weight.  I fully concede that.

11        Q.   I appreciate that, Professor.

12             However, the point I'm making, which I believe you have made for

13     me, is you don't know what was going on at 5.00 a.m. --

14        A.   No.

15        Q.   -- you're making an assumption when do you that, that they're not

16     walking through the streets at 5.00 a.m., they're not out in their

17     fields, they're not feeding their animals, and that is an assumption

18     which is favourable to General Gotovina.  Correct?

19        A.   Well --

20             MR. KEHOE:  Excuse me, Mr. President.  I mean, I -- the context

21     of that question, with all due respect, has got to have some foundation

22     in the record, and I ask, if in fact that's a question to be levelled,

23     that counsel should point to where in the record, at 5.00 a.m., people

24     were walking the streets of Knin, et cetera.

25             JUDGE ORIE:  Yes.

Page 21292

 1             Mr. Russo is exploring the underlying rationale for the

 2     conclusions drawn.  He puts to the witness that one of the assumptions he

 3     used is not necessarily correct; the curfew hours being until 5.00.  And

 4     then you can explore, because we're talking about the abstract, the

 5     witness doesn't know whether the curfew hours were strictly observed.

 6     The witness doesn't know a lot of these things.  To that extent, we are

 7     already in an area of assumptions.  I'll not use the word "speculations."

 8             Under those circumstances, if the witness explains to us that

 9     it's not necessarily true that if the curfew ends at 5.00, that everyone

10     immediately moves on the streets, and it would be different if we would

11     be talking about 2.00 in the afternoon.  I would ask the witness whether,

12     if people would be used to get up at 4.00 and do their things, whether it

13     could well be - I'm not saying it was - that people, already delayed for

14     one hour, would do that immediately at 5.00 in the morning.

15             I mean, that's not of any less logic than to say that people

16     would not immediately jump out at 5.00.

17             Would you agree with that?

18             THE WITNESS:  With one qualifier, Your Honour, and that is, if

19     that was the expectation of the commander making the decision.  If he had

20     information that, because people normally begin their day at 4.00, the

21     curfew to 5.00 has them ready to go at 5.00.  Then yes, that

22     significantly undermines the value of the assumption.

23             JUDGE ORIE:  And you have no knowledge about that.

24             THE WITNESS:  I have no knowledge.

25             JUDGE ORIE:  Please proceed, Mr. Russo.

Page 21293

 1             MR. RUSSO:  Thank you, Mr. President.

 2        Q.   Professor, I understand a bit of the explanation you gave me

 3     earlier about the use of artillery relative to the curfew hours.  But the

 4     point I'm trying to make is that you made a statement in your expert

 5     report that said because General Gotovina employed indirect fires during

 6     non-curfew hours in a limited manner, suggesting an intent to disrupt

 7     enemy operations while minimising the risk of collateral damage and

 8     incidental injury to civilians, you're the one who made the connection

 9     between the curfew hours and the risk to civilians.

10        A.   Mm-hmm.

11        Q.   And when I'm telling that you the document that I'm now showing

12     you, in fact, changes that situation, why are you not now willing to

13     change the inference you drew when you had the wrong information?

14        A.   I think there are three answers to that.  First off, you see in

15     subparagraph (c), I used the words "suggesting an intent."  It's just an

16     inference.  That's all it is.  There may be an alternative inference.  I

17     think if he is surging his fires in the -- in the -- against the military

18     objectives in the populated area at a time where he believes, where he

19     believes, he can exploit the effect of the curfew and still achieve

20     his -- his operational purpose, then that -- those two factors are

21     relevant.

22             And if you look at (b), the primary emphasis is on his employment

23     of indirect fires consistent with METT-T-C analysis, which is

24     corroborated by the fact that the majority of the assets were not

25     employed against assets in Knin, but instead associated -- targets

Page 21294

 1     associated with the close fight and enemy defensive positions.

 2             I don't think -- okay, this is my opinion.  If he knew the curfew

 3     ended at 3.00 a.m. but that the main effort was going to begin at

 4     5.00 a.m., I think he would have still surged his artillery at 5.00 a.m.,

 5     because I believe the use of the artillery in Knin was -- was

 6     synchronised or connected with the purpose of the overall employment of

 7     indirect fire, which was to defeat the enemy at the point of attack as

 8     efficiently as possible.  All I was suggesting there is that if he

 9     believed that there was a positive effect from the curfew, then it would

10     have been another factor that would have supported the inference that his

11     decision to surge at that time was a reasonable decision.

12        Q.   And, Professor, before reaching this conclusion, you weren't

13     actually provided with any evidence from the Gotovina Defence about what

14     General Gotovina believed was going on in the town at 5.00 a.m.  At least

15     we don't see it represented anywhere.  Is that right?

16        A.   No.

17        Q.   No, you weren't provided --

18        A.   No, I was provided with what -- I don't have any -- I didn't get

19     any statements, you know, confessions, statements, testimony from

20     General Gotovina.  I don't know what was exactly in his mind at that

21     time.  And if you look at my original report, I emphasise the fact that

22     when assessing -- when translating a -- a Law of Armed Conflict principle

23     that's -- was written and intended to provide an operational

24     decision-making framework into criminal responsibility, a standard of

25     criminal responsibility, one of the great challenges is figuring out what

Page 21295

 1     was the defendant's state of mind, and that oftentimes you have to rely

 2     on the circumstantial evidence to do that.

 3             I fully acknowledge and recognise that that is the challenge that

 4     confronts this Tribunal or any Tribunal assessing an allegation of

 5     criminality based on a violation of rules of targeting.  And those --

 6     that's what I attempted to do in my opinion, based on the facts and

 7     circumstances that were provided.

 8             MR. RUSSO:  Can we please have 65 ter 2161.

 9        Q.   Professor, this is a report by the HV intelligence administration

10     dated 30 July 1995.  And if we can look at page 2 in the English, and

11     it's page 1 in the B/C/S, middle of the second paragraph on page 2, it

12     states:

13             "In addition to issuing the decision to engage all human and

14     material resources in the defence of the RSK, the military council

15     imposed a curfew (between 2200 and 5000 hours)."

16             Now, Professor, in line with what you just said about the

17     necessity of considering circumstantial evidence, would you agree that

18     this is something that -- a piece of information that General Gotovina

19     must have taken into account when deciding when exactly to begin his

20     artillery attack?

21             MR. KEHOE:  Excuse me, Mr. President.  I don't know if the

22     witness has ever seen this document before.  I don't suspect that he has.

23     If he is given the opportunity to look at the document, I think it is

24     only fair of witness, to allow him to do so.

25             JUDGE ORIE:  Yes.  Well, first of all, Professor Corn, I take it

Page 21296

 1     that if you see a document you would like to have a closer look at

 2     because you're unfamiliar with it, that you will address me.

 3             Now, Mr. Kehoe was kind enough to -- to make this observation.

 4     Is there any need you'd like to like at the document any further at this

 5     moment?

 6             THE WITNESS:  Could I see the beginning of it so I could see

 7     where it -- what its origin was?

 8             JUDGE ORIE:  Yes.

 9             Mr. Russo told you already it's a report by the HV intelligence

10     administration --

11             THE WITNESS:  Right.

12             JUDGE ORIE:  -- dated 30th of July, 1995.

13             THE WITNESS:  Yeah, I'm ready, Your Honour.

14             JUDGE ORIE:  Yes.  Please proceed, Mr. Russo.

15             MR. RUSSO:

16        Q.   Would you agree, Professor, that this is information that

17     General Gotovina was required to take into consideration before deciding

18     when exactly to begin his artillery attack?

19        A.   It relates to the C in METT-T-C analysis.  A competent and -- a

20     competent commander, if he has this information available, should be made

21     aware of it, probably through his intelligence officer or his civil

22     affairs officer, in the target decision-making process.

23        Q.   Can I take that as a yes?

24        A.   Yeah -- well, you used the phrase -- and I don't -- let's see,

25     "is required," I think you said, right?  I have trouble with "is

Page 21297

 1     required."  Okay?  He should be made aware of it.  He should be aware of

 2     it.

 3             The required part, is a commander required to be aware of every

 4     bit of information that his intelligence officer receives?  Well, that's

 5     impossible.  That's why he has an intelligence officer, because the

 6     intelligence officer, based on his priority intelligence requirements,

 7     distills this volume of information and provides him relevant information

 8     related to operations.  I think this is relevant related to the use of

 9     indirect fire in a populated area.  So I would have expected his

10     intelligence officer to make him aware of this information.  But if his

11     intelligence officer did not, then the nature of your question suggests

12     that the General is ipso facto culpable for not knowing it.  He relies on

13     his staff to provide him information.

14             And I can only correlate it to my own experience.  This report,

15     in my experience, would not have gone directly to the General.  It would

16     have gone to his intelligence staff, and they would have distilled it and

17     then provided him the information they thought was necessary.  It -- it's

18     the reality of a commander executing -- planning and executing a battle.

19     He is inundated with information and challenges and responsibilities and

20     that's why commanders employ staffs, to aid them in that process.

21        Q.   It is General Gotovina's responsibility to keep himself informed

22     on concentrations of civilians; correct?

23        A.   I think so, yes.

24             MR. RUSSO:  Mr. President, I would like to have 65 ter 2161

25     admitted.

Page 21298

 1             MR. KEHOE:  No objection, Your Honour.

 2             JUDGE ORIE:  Mr. Registrar.

 3             THE REGISTRAR:  Your Honours, that will become Exhibit P2619.

 4             JUDGE ORIE:  P2619 is admitted into evidence.

 5             MR. RUSSO:  Thank you.

 6        Q.   Professor, in section 1 of your addendum - and that appears at

 7     page 25 of your report - you discuss the targeting process and the need

 8     to select the appropriate weapon to achieve the desired effect on

 9     targets.  In the second-to-last full paragraph you state:

10             "Based on my review of General Gotovina's operational situation,

11     it seems clear that his options for asset selection were limited.  There

12     is no indication he possessed a robust electronic warfare capability for

13     a disruption mission, nor did he possess the type of precision engagement

14     capability increasingly associated with counter-C3I operations conducted

15     by advanced Western militaries, like the United States.  Instead, his

16     capability was essentially limited to indirect fire assets, ground combat

17     assets and a very limited rotary-air capability."

18             Professor, in pointing out that you saw no indication that

19     General Gotovina possessed a "robust electronic warfare capability," I

20     take it that you considered that as a relevant factor in your analysis of

21     whether General Gotovina's choice of weaponry was reasonable under the

22     circumstances; correct?

23        A.   It's certainly a factor in the targeting process.

24        Q.   And having found no indication of a robust electronic warfare

25     capability, did you ask the Gotovina Defence to provide you with

Page 21299

 1     information relating to the HV's electronic warfare capabilities?

 2        A.   I know had -- I know I asked that question in Tampa, okay?  I

 3     specifically asked what were the EW assets.  As a former intelligence

 4     officer that was one of my functions, was to have expertise on electronic

 5     warfare and provide that -- the knowledge of that capability in the

 6     targeting and weaponeering process.  So I was curious as to whether or

 7     not the HV had the type of robust electronic warfare units that the

 8     United States had.

 9        Q.   Well, what were you told in response to the question?

10        A.   I think -- as best I recall, I seem to recall some discussion of

11     maybe one helicopter that had a jamming capability, but I think, as I

12     recall, that was it.  But certainly not a communications and electronic

13     warfare battalion like you would find in a United States corps.

14             And, you know, part of it was me learning what these designations

15     were for the HV.  I mean, when I initially began to look at this and I

16     see corps, right, Croatian corps or a Serbian corps, that triggers an

17     instinct on my part about, you know, what an American corps looks like.

18     And in fact, I think that I came out of this realizing that what they

19     call a corps is what we call maybe a brigade combat team, a much smaller

20     unit with a much less significant support structure.

21        Q.   Thank you, Professor.  Now, electronic warfare capabilities would

22     include, as you mentioned, radio jamming.  Would they also include radio

23     deception and use of electronic surveillance?

24        A.   I think -- it's been a long time since I have looked at military

25     intelligence doctrine, but my recollection is deception falls under a

Page 21300

 1     different category than electronic warfare.

 2             Electronic warfare, as I recall -- certainly as I think of it,

 3     involves direction finding, electronic equipment that triangulates

 4     transmission for precision targeting.  Jamming, interception, right, so

 5     you can listen to what the enemy is saying.  And destruction.  There are

 6     some electronic warfare assets that can actually burn up enemy

 7     transmitters.  So transmission capability.  All right, the ability to

 8     transmit a false radio report I wouldn't normally put in the category of

 9     electronic warfare.

10             MR. RUSSO:  Can we please have 65 ter 2156.

11             JUDGE ORIE:  While we're waiting, perhaps you could tell us in

12     what category that would fit, if it's not electronic warfare.

13             THE WITNESS:  Well, the capability to transmit is communications.

14     And the use of that transmission to put out false information is

15     deception.  And the reason that I -- I think instinctually I see them as

16     different assets is because, in my experience, doctrinally, electronic

17     warfare falls under the responsibility of the intelligence officer.  As a

18     matter of fact, in -- in the US military, the commander of electronic

19     warfare units is an intelligence officer.  It's one of the few command

20     billets for an intelligence officer.  Deception falls under the

21     responsibility of the operations officer.  And so you could use a piece

22     of communications equipment, you could use a piece of electronic warfare

23     equipment to -- to create deception, to communicate a deceptive message.

24     But I don't see the deception operation as within the category of

25     electronic warfare.

Page 21301

 1             JUDGE ORIE:  Yes, electronic warfare being the assets that were

 2     used rather than for what they were used.  Is that ...

 3             THE WITNESS:  Well, I think, with all due respect, Your Honour, I

 4     guess I confused it, the opposite.  As a matter of fact, there's an

 5     acronym in the US military called MIJI, meaconing, interception, jamming,

 6     and interference.  And that's kind of when you're in an operation and

 7     every tactical standing operating procedure has a report that a

 8     subordinate command is supposed to send up when he feels he has been the

 9     victim of enemy electronic warfare, and it is called a MIJI report;

10     meaconing, interception, jamming, and interference.

11             JUDGE ORIE:  Thank you.

12             Please proceed, Mr. Russo.

13             MR. RUSSO:  Thank you, Mr. President.

14        Q.   Professor, on the screen we have a 31 July 1995 request from the

15     chief of HV intelligence administration to General Gotovina for approval

16     to conduct "electronic warfare and radio deception," in the Split

17     Military District.

18             You can have a look at this.  It's not very long.

19        A.   Mm-hmm.

20        Q.   And can I take it that this is a document that you had not seen

21     before and something that you had not considered when you made the

22     determination that General Gotovina did not possess a robust electronic

23     warfare capability?

24        A.   I hadn't seen this.  No.

25             MR. RUSSO:  I move for the admission of 65 ter 2156.

Page 21302

 1             MR. KEHOE:  No objection, Your Honour.

 2             JUDGE ORIE:  Mr. Registrar.

 3             THE REGISTRAR:  Your Honours, that will become Exhibit P2620.

 4             JUDGE ORIE:  And is admitted into evidence.

 5             MR. RUSSO:  Thank you.

 6             Can we have 65 ter 7146.

 7        Q.   On the screen, Professor, we have HV plan of electronic

 8     surveillance and jamming, dated 1 August 1995.  You can see this will --

 9     one of the later pages, it includes Gotovina's -- General Gotovina's

10     approval of a plan for electronic detection, monitoring and jamming.

11             MR. RUSSO:  If we could turn to page 7 in the English and also

12     page 7 in the B/C/S.

13             JUDGE ORIE:  Mr. Kehoe.

14             MR. KEHOE:  Once again, Mr. President, if the witness can take a

15     look at this document from the beginning.

16             JUDGE ORIE:  Yes.  I think, as a matter of fact, that I invited

17     the witness that if he wants to look at something that he'll address me.

18     I take it that you understood this invitation.  If there's any need,

19     please tell me.

20             THE WITNESS:  I would like to just scan it from the beginning,

21     Your Honour, before we jump to page 7.

22             JUDGE ORIE:  Yes.

23             Mr. Russo, could you ... yes.

24             THE WITNESS:  Okay.

25             Okay.

Page 21303

 1             Okay.

 2             Okay.

 3             Okay.

 4             Okay.

 5             Okay.

 6             MR. RUSSO:  Actually, if we could go back to that page, page 7 is

 7     the one I wanted to look at first.

 8        Q.   You can see at the top left-hand corner approval by General

 9     Gotovina.  And you can see the tasks -- the mode of tasks which are

10     given, detecting and monitoring, detect and monitor radio communications

11     between the VRSK, Army of the Republic of Serbian Krajina, 15th Corps,

12     and TK, and radio communications between the VRS, et cetera.

13        A.   Could I see the next page?

14        Q.   Yes.

15        A.   Next one, please.  Or the bottom of that one.

16             Could I see the bottom of the last page?

17             Okay.

18        Q.   Now, Professor, again, this is not a document that you considered

19     before determining whether General Gotovina possessed a robust electronic

20     warfare capability; correct?

21        A.   No.

22        Q.   No, I'm not correct?

23        A.   No, I didn't consider this.  This is the first time I have seen

24     this document, Your Honour.

25        Q.   Thank you.

Page 21304

 1             MR. RUSSO:  I move for the admission of 65 ter 7146.

 2             MR. KEHOE:  No objection, Your Honour.

 3             JUDGE ORIE:  Mr. Registrar.

 4             THE REGISTRAR:  Your Honours, that will become Exhibit P2621.

 5             JUDGE ORIE:  P2621 is admitted into evidence.

 6             MR. RUSSO:  If we can please have 65 ter 7351 --

 7             THE WITNESS:  Can I make a comment on this?

 8             MR. RUSSO:

 9        Q.   Sure.

10        A.   Okay.  The entire task of subordinate units is a monitoring

11     tasks.  You can monitor with your own radios.  Monitor means listen to

12     enemy transmission.  Disruption of enemy transmissions requires jamming

13     capability.  Now, you can use your own radio, theoretically, to jam.  If

14     I get on your frequency and tape my mic down, and make a hot mic, you're

15     going hear static on your frequency until I stop doing it, or until you

16     change your channel, okay?

17             But this suggests to me two things.  First of, again, a total

18     operational focus for the collection effort.  And, second, he is not

19     giving a directive to jam in this report.  Now maybe there is another one

20     but he's telling people to monitor, Gather as much information as you

21     can.

22        Q.   Thank you.

23             MR. RUSSO:  If we can have 65 ter 7351, please.

24        Q.   Now, Professor, you have on your screen an order from the chief

25     of the HV main staff, General Cervenko, on electronic warfare dated

Page 21305

 1     30 July 1995 for "efficient use of UHF jamming device and for the purpose

 2     of carrying out electronic fight during the HV attack in a unique way."

 3             And he directs the formation of electronic warfare units.  You

 4     can see - if we move down a bit - on the left-hand side, the 4th Guards

 5     Brigade gets one jamming station for its area of responsibility.

 6             MR. RUSSO:  If we move to the next page in English but stay on

 7     the same page in B/C/S.

 8        Q.   Towards the top, the 5th Guards Brigade gets also one jamming

 9     station.  But you will note that the 7th Guards Brigade electronic

10     warfare platoon, whose area of responsibility includes Knin, gets two

11     jamming stations.

12             Now, Professor, this again is a document that you did not

13     consider.  Is that right?

14        A.   That's correct.

15             MR. RUSSO:  I move for the admission of 65 ter 7351.

16             MR. KEHOE:  No objection, Mr. President.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Your Honours, that becomes Exhibit P2622.

19             JUDGE ORIE:  P2622 is admitted into evidence.

20             MR. RUSSO:  Thank you.  If we could please have Exhibit D965,

21     please.

22        Q.   Now, Professor, what we have on the screen right now is an HV

23     plan of intelligence support, dated 2 August 1995.  It is directing the

24     use of electronic reconnaissance units for gathering intelligence on

25     enemy composition and disposition.

Page 21306

 1             You will note at the top left-hand corner approval on behalf of

 2     General Gotovina.

 3             Just take a look at the some of the entries.  It indicates

 4     gathering intelligence on the enemy strength, disposition, and

 5     organisation.

 6             MR. RUSSO:  If we could move to the next page.

 7        Q.   You will note the tasks all for the most part relate to

 8     collecting information, detecting enemy movement.

 9             MR. RUSSO:  If we can move to the next page.

10        Q.   Again, gathering information on locations of command posts,

11     disposition tasks, possible directions of attack of the enemy.

12             MR. RUSSO:  If we can move to the next page.

13        Q.   More tasks with respect to collecting information about the

14     enemy, possible combat dispositions.  Also monitoring enemy losses in

15     manpower and technical equipment.

16             MR. RUSSO:  If we could move to the next page.

17        Q.   Again, taking note of the directions given.

18             MR. RUSSO:  If we can move to the next page.

19             THE WITNESS:  Just a moment, please.

20             MR. RUSSO:  Oh, okay.  If we could move back one.  Thank you.

21             THE WITNESS:  Okay.

22             MR. RUSSO:

23        Q.   Now, Professor, you can see from what we've looked at, this plan

24     of intelligence report, there were no orders to use electronic means for

25     collecting information about the civilian population.  You would agree

Page 21307

 1     with me that that's something that can also be done with -- by using

 2     electronic means; correct?

 3        A.   You know, as I say, it's been a long time since I have written an

 4     intelligence annex to an operations order.

 5             In our practice, gathering information about the civilian

 6     population is the function of the S5 or the S6, the civil affairs staff

 7     officer in the command who is part of the targeting process.  Now whether

 8     or not the civil affairs officer is going to suggest to the operations

 9     officer and the intelligence officer to make that collection mission a --

10     a mission for electronic warfare or electronic meaconing assets, I don't

11     know.

12             I do know this.  That looking at this, there's -- there's a clear

13     connection between what I -- what we would call the -- the commander's

14     mission essential task list, which is defeat the enemy in depth, prevent

15     the enemy from massing and reinforcing, and isolate enemy positions at

16     the front line, and the task to electronic assets.

17             So I -- clearly there is no task in there to monitor civilian

18     activity.  But I don't know that a listening station is necessarily an

19     ideal asset to obtain that information.

20        Q.   Thanks, Professor.  I'm not asking to you draw any conclusions

21     from the fact that there is no direction to collect information on the

22     civilian population.  I just wanted your confirmation that that is a

23     function to which these assets could be put.

24        A.   Assuming there was something to intercept that would reveal the

25     disposition or movement of civilian assets, then yes, you could use an

Page 21308

 1     intercept asset for that purpose.  But I think that you have -- it's just

 2     like artillery.  You have a limited number of assets, and you have a --

 3     and you have a range of probability of gaining good information so you --

 4     you focus those limited assets where you can get the best information.

 5     If there was evidence that, for example, I don't know, that there was a

 6     convoy that was evacuating a group of civilians and that the -- the

 7     intelligence staff knew the convoy was using VHF or UHF communications,

 8     to notify maybe a UN headquarters of its movement, I don't know.  Then

 9     theoretically you would say that could be a good way of finding out where

10     the convoy is.

11             But there are -- I guess what I'm saying is there are multiple

12     factors that would go into whether or not you would task your electronic

13     assets for that purposes.  In the right circumstances, you could.

14        Q.   Thank you, Professor.  Can I take it that the document on the

15     screen is not one that you considered?

16        A.   I did not consider it.

17        Q.   Now, that you've seen some evidence at least of electronic

18     warfare compatibilities at General Gotovina's disposal, would you agree

19     that if you had time to consider these things in the context of

20     everything else you have learned, that it could possibly have an effect

21     on the conclusions that you reached?

22        A.   Possibly it could have.  Although, from what I've seen, it

23     wouldn't have --  I don't think it would have significantly altered the

24     opinion.  And, I mean, if you want me to tell you why, I will; if not, I

25     won't.

Page 21309

 1        Q.   Well, if you have already made a determination about that, I will

 2     certainly hear that from you.

 3        A.   First off, you have to understand what jamming assets are and

 4     what they do, and -- and -- and that plays into the effects based

 5     targeting.  A jamming asset is no different than a kinetic artillery

 6     round.  It's an asset at the commander's disposal that produces an

 7     effect.

 8             But it's got some drawbacks.  To jam somebody you have to

 9     discharge a high frequency, high-power frequency, over the enemy's

10     frequency.  The enemy anticipates jamming and that's why the enemy, just

11     like friendly forces, will have redundant communication systems and plans

12     for channel skipping.  In other words, if you pick up your radio and

13     you're jammed, you have a default next frequency to move to.

14             The other risk with jamming is you -- if your enemy has direction

15     finding capability, jamming presents a high-value target for the enemy,

16     because that high-intensity frequency that you're discharging is easily

17     triangulated.  And therefore, if have you limited jamming assets, you

18     have to use them judiciously, and you have to use them at the right time

19     for the right time.

20             The discussion of electronic warfare, in my opinion, related to

21     the artillery attack on the corps headquarters, a critical C3I target,

22     and other targets that had the capability of providing redundant

23     communications to the enemy.  And if you had jammed, you would have

24     achieved an effect maybe for a certain period of time.  Your jamming

25     asset would have been highly vulnerable to counter-attack, and the enemy

Page 21310

 1     has ways of -- of mitigating the effect of that jamming.

 2             And the other thing is, if you -- if you look at this order, you

 3     see that the commander is planning an operation in depth, and we -- I

 4     talked yesterday about this full spectrum dominance idea, right?  You

 5     disable the commander, the corps commander's C3I capability.  You blind

 6     the corps commander and the corps commander's staff, it degrades that

 7     commander's ability to influence the fight by logistics reinforcement and

 8     direction.  But if you isolate the forces at the tip of the spear, if you

 9     make them feel they can't talk to anybody, then you increase their sense

10     of isolation and that increases your initiative.

11             So it's conceivable that with limited jamming assets the priority

12     of effort to support the ground tactical assault would have led the

13     commander to make a reasonable judgement that, I'm going use my jamming

14     assets to blind the forward command posts and an alternative asset to

15     degrade the rear command posts.

16             It just -- that's why throughout that report you see that term

17     "METT-T-C."  It goes into the decision to use every asset within the

18     commander's arsenal.

19        Q.   Professor, you injected the term "limited jamming assets."  I'm

20     trying to found out where -- I mean, I understand you were told --

21        A.   Mm-hmm.

22        Q.   -- that he had limited assets.  I have now shown you some

23     evidence of assets he did have at his disposal.  Do you still consider

24     those assets to be limited?

25        A.   Absolutely.

Page 21311

 1        Q.   And why is that?

 2        A.   Because I'm basing it on my own contextual experience, which is a

 3     brigade combat would have an entire battalion or at least a company of

 4     electronic warfare capability which would have more than two or three

 5     jammers, and you do that because you know those jammers are tremendously

 6     vulnerable to counter-attack once you put them into action.

 7        Q.   But the effectiveness of your jamming capabilities and, of

 8     course, how many people you have, whether you have a platoon, you have a

 9     brigade, whatever, that's all relative to the size of the enemy you're

10     fighting, the area; correct?

11        A.   And it's also -- absolutely.  That -- there is no question about

12     that.  That is the E in METT-T-C.  Right?  But it is also contingent on

13     communications redundancy, how many nets the enemy has.  You see by the

14     monitoring annex that he is focussing on multiple enemy communications

15     networks.

16             So, for example, when I was an intelligence officer in a light

17     infantry unit I carried a radio, an encrypted radio, on my back.  When

18     the commander's radio was jammed, he would walk over to me and he'd pick

19     up my radio, and he would give command through the intelligence net.  And

20     if that was jammed, he would give it through the logistics net.  So there

21     are multiple nets.  So if you only have -- if you're trying to blind the

22     commander's command and control function and you're going to use jammers

23     exclusively, you have to make sure have you enough jammers to deny or

24     degrade not only the command net but all redundant communications

25     capabilities.

Page 21312

 1             JUDGE ORIE:  Mr. Russo, I'm looking at the clock.  I don't know

 2     whether --

 3             MR. RUSSO:  It's a good time, Your Honour.

 4             JUDGE ORIE:  Again, I have a small procedural issue to deal with

 5     totally unrelated to you.

 6             Therefore, Madam Usher, could you already escort the witness out

 7     of the courtroom.  We will have a break for some 20 minutes.

 8                           [The witness withdrew]

 9             JUDGE ORIE:  I raised the issue of the start of the Cermak

10     Defence case even before I had seen a communication of which some

11     concerns were expressed in that respect.

12             Now, the issue seems to be when we'll be done with the witness,

13     which will testify next week.  Is there a fair expectation that we would

14     have done with that testimony by Friday?

15             MR. KEHOE:  I do believe so, Mr. President.  At this juncture I

16     think we can finish him by Friday.

17             JUDGE ORIE:  Yes.  Because there may be a need to have a short

18     housekeeping session as well.  Now, either we are so efficient that we

19     find some time next week to deal with that, perhaps at the end of the

20     week, or we'll not be able to do that.  But certainly there will be -- it

21     would be very impractical to already start with the Cermak Defence in

22     that week, also because we have a long weekend.  The 21st September of

23     being an UN holiday.

24             So, therefore, if the Cermak could prepare for a start on the

25     22nd of September, although there may be a small risk that we have deal

Page 21313

 1     with some housekeeping matters on that day or perhaps the day after that.

 2     So therefore we try to have a start on the 22nd of September, unless

 3     there's any problem with that, then I'd like it hear.

 4             MR. CAYLEY:  No, that is perfectly satisfactory and acceptable to

 5     us, Your Honour.  We will be ready to proceed on the 22nd.  Thank you.

 6             JUDGE ORIE:  Yes.  And the small uncertainty is about whether we

 7     would be able to finish on Friday that week's witness --

 8             MR. CAYLEY:  Yes.

 9             JUDGE ORIE:  -- and the second, whether we have sufficient time

10     for housekeeping, but I would urge the parties to see whether we can hear

11     the testimony of the last witness of the Gotovina Defence not spilling

12     over to the week of the 21st/22nd of September.

13             Then --

14             MR. KEHOE:  Mr. President, can I just raise one issue?

15             JUDGE ORIE:  Yes, Mr. Kehoe.

16             MR. KEHOE:  Mr. Misetic has raised a translation and I turn the

17     floor to him with regard to something that just came up in the last

18     session.

19             JUDGE ORIE:  Yes, Mr. Misetic.

20             MR. MISETIC:  Yes, it's a minor point, Mr. President, but if -- I

21     assume the Prosecution is going tend the exhibit on the screen and the

22     entry at line 9, if we go to the last column with words.

23             MR. KEHOE:  [Microphone not activated].

24             JUDGE ORIE:  Well, let's see.  It's still --

25             MR. MISETIC:  Sorry.  I'm guess I'm told it is in D96 -- D965.

Page 21314

 1     We will have to make a correction to that document because --

 2             JUDGE ORIE:  You're talking about what page exactly?

 3             MR. MISETIC:  As it is on the screen right now --

 4             JUDGE ORIE:  Yes.

 5             MR. MISETIC:  -- in e-court.  The entry at number 9.

 6             JUDGE ORIE:  Yes.

 7             MR. MISETIC:  The last entry -- last column, it translates "PZO"

 8     as "artillery and rocket brigade," and in fact it should be translated as

 9     "anti-aircraft defence."

10             So we will correct that and upload the right version into e-court

11     with the Court's permission.

12             JUDGE ORIE:  Yes.  The translation comes from ... I mean, you're

13     saying, We'll upload a different translation.  Of course, it needs

14     some --

15             MR. MISETIC:  It will be checked --

16             JUDGE ORIE:  -- authorisation.  It has to be checked.  It has to

17     be agreed.

18             MR. MISETIC:  Yes.  Mr. President, I believe "PZO" actually

19     within the same document is translated correctly as "anti-aircraft

20     defence," and then it's for some reason translate as "artillery rocket

21     brigade" in that column.

22             JUDGE ORIE:  Yes, I take it that you will verify with the --

23             MR. MISETIC:  Yes.

24             JUDGE ORIE:  -- the translators who have authority that this is a

25     right correction.

Page 21315

 1             MR. MISETIC:  Of course.

 2             JUDGE ORIE:  Yes.  Then we'll have a break, and we'll resume at

 3     ten minutes to 1.00.

 4                           --- Recess taken at 12.31 p.m.

 5                           [The witness takes the stand]

 6                           --- On resuming at 12.54 p.m.

 7             JUDGE ORIE:  Mr. Russo.

 8             MR. RUSSO:  Thank you, Mr. President.

 9        Q.   Professor, also in page 25, you indicated that General Gotovina

10     possessed only a very limited rotary air capability.  And by that I take

11     it you meant helicopters.  Is that right?

12        A.   Yes.

13        Q.   And did you then consider that the availability of air power

14     assets was a relevant consideration in determining the reasonableness of

15     General Gotovina's choice of artillery as the weapon to use in Knin?

16        A.   Yeah, I think that that's what that suggests, that you would have

17     to consider air assets in the package of capability, if you're assessing

18     reasonableness.

19        Q.   And again in reviewing the assumptions provided to you by the

20     Gotovina Defence, those of which we're aware and which we've discussed

21     today and are apparent from your report, there is no indication that you

22     were provided with any information regarding air power capabilities of

23     the HV.  So I would ask you what the basis was for your conclusion that

24     he only possessed a very limited rotary air capability.

25        A.   Well, it was most likely the general concept of the operation

Page 21316

 1     layout that occurred in Tampa when -- because those are questions

 2     obviously I would be asking, is order of battle of both friendly and

 3     enemy forces.

 4             It may have also -- I may have also been influenced by

 5     Colonel Konings's report, because the focus was primarily on indirect

 6     fire assets.

 7             MR. RUSSO:  Can we please have 65 ter 7354.

 8        Q.   Professor, what's coming up is an analysis of the use of HV air

 9     force in Operation Storm.  It is quite a lengthy document.  I'll

10     certainly give you the opportunity to look at it as much as you like.

11     But there are particular portions that I'd like to you look at.  But

12     please let me know when you're comfortable moving on.

13        A.   Okay.

14             MR. RUSSO:  If we can go to page 6 in the English.  It's also

15     page 6 in the B/C/S.

16        Q.   You can see there under section 4 where it indicates that the

17     Croatian air force had at its disposal 17 combat aircraft and 5 combat

18     helicopters.

19             MR. RUSSO:  If we could move to the next page both in English and

20     in B/C/S.  Move towards the bottom.

21        Q.   Last sentence there where it indicates:

22             "We formed the IZM" -- that is forward command post, "of the

23     Croatian air force and the anti-aircraft defence at every Military

24     District command post, with the task of suggesting the rational use of

25     HRZ and the PZO forces and target selection."

Page 21317

 1        A.   Could I look at the two pages before that --

 2        Q.   Sure.

 3        A.   -- and just quickly look through them?  Okay, thanks.

 4             Okay.

 5             Okay.

 6             Okay.  Thank you.

 7             MR. RUSSO:  If we could move to page 16 in both the English and

 8     the B/C/S.

 9        Q.   You can see the second-to-last paragraph toward the bottom there

10     indicates:

11             "14.5 per cent of flights were performed according to plan and

12     85.5 per cent of flights on request."

13             Professor, did you have this information on the HV combat

14     aircraft and rotary combat assets before you drew your conclusion?

15        A.   I did not.

16        Q.   To be clear, the MiG 21s that are mentioned, those are combat

17     aircraft; correct?

18        A.   MiG 21 is an aircraft that can be used for air-to-air combat or

19     air-to-ground combat.

20        Q.   Thank you.

21        A.   Or a combination.

22        Q.   Thank you.

23             MR. RUSSO:  I would move for the admission of 65 ter 7354.

24             MR. KEHOE:  No objection, Judge.

25             JUDGE ORIE:  Mr. Registrar.

Page 21318

 1             THE REGISTRAR:  Your Honours, that will become Exhibit P2623.

 2             JUDGE ORIE:  And is admitted into evidence.

 3             Please proceed.

 4             MR. RUSSO:  Thank you, Mr. President.

 5             Can we now have 65 ter 7361.

 6             THE WITNESS:  Mr. President, would it be possible for me get a

 7     pen?

 8             JUDGE ORIE:  Yes.  I take it that belongs to the assets of the

 9     ICTY to --

10             THE WITNESS:  Thank you.

11             JUDGE ORIE:  -- provide you with a pen.

12             THE WITNESS:  I'll make sure I return it.

13             MR. RUSSO:

14        Q.   Professor, on your screen is an excerpt from General Gotovina's

15     book, specifically the section entitled, "Support of the Air Force."

16             If you look at the second paragraph - if we can blow that up a

17     bit - it indicates:

18             "In Operation Ljeto 95, Oluja, Maestral, and Juzni Potez, the

19     Split Military District command was assigned Mi-8, MTV 1 and Mi-24V

20     helicopter as well as MiG 21 bis aircraft."

21             Moving down to the fifth paragraph, it indicates:

22             "MiG 21 bis aircraft were mostly used to protect Mi-24V

23     helicopters in operations Summer 95 Storm and Breeze.  However, two

24     aircraft acted on-call in Operation Summer 95 and Operation storm.  They

25     were very effective when acting against enemy convoys and facilities in

Page 21319

 1     the areas of Biovcino Selo, Ocestovo and Drvar."

 2             Professor, did you know that General Gotovina had two MiG 21s

 3     on-call during Operation Storm before you concluded that he had only

 4     limited rotary air capability?

 5        A.   I don't think so, no.

 6        Q.   And regarding the use of MiG 21s in Ocestovo, mentioned by

 7     General Gotovina in the last passage that I read, did you know how close

 8     Ocestovo is to Knin?

 9        A.   No.

10             MR. RUSSO:  I move for the admission of 65 ter 7361.

11             MR. KEHOE:  No objection, Judge.

12             JUDGE ORIE:  Mr. Registrar.

13             THE REGISTRAR:  Your Honours, that will become Exhibit P2624.

14             JUDGE ORIE:  P2624 is admitted into evidence.

15             MR. RUSSO:  Thank you.

16             Can we now have 65 ter 7353.

17        Q.   Professor, what you have on your screen now is a Croatian air

18     force report dated 4th of August, 1995.  You'll see it indicates at

19     paragraph 2 that 13 MiG 21 assault aircraft -- assault variant aircraft

20     were committed, and you can see that the target number 1 there, that

21     HV MiGs destroyed the Celavac radio relay station, or it indicates it was

22     quote/unquote eliminated.

23             Did you know that HV MiGs had eliminated the Celavac radio relay

24     station on 4 August?

25        A.   No.

Page 21320

 1        Q.   Do you know what the significance of the Celavac radio relay

 2     station was to the ARSK communication systems in the Knin area?

 3        A.   No.

 4             MR. RUSSO:  I move to admit 65 ter 7353.

 5             MR. KEHOE:  No objection, Judge.

 6             JUDGE ORIE:  Mr. Registrar.

 7             THE REGISTRAR:  Your Honours, that will become Exhibit P2625.

 8             JUDGE ORIE:  P2625 is admitted into evidence.

 9             Mr. Russo, I still have some concerns about the speed of speech.

10     Your last questions where the witness answered with a no, it was mainly

11     your speed of speech which caused the problem.

12             Please proceed.

13             MR. RUSSO:  Thank you, Mr. President.  My apologies.

14             Can we go back to General Gotovina's order for attack; that's

15     P1125.  And if we could go to page 13 in the English and page 12 in the

16     B/C/S.

17             I'm looking for section 6 on page 13 in the English.  Looks like

18     we have the right page on the B/C/S, but I don't see the same -- there we

19     are.

20        Q.   Section 6 dealing with the Croatian air force.  General Gotovina

21     orders:

22             "With the authorised forces of combat planes (MiG 21),

23     helicopters for anti-armour combat (Mi-24) and transport helicopters

24     (Mi-8), it shall provide aircraft support along the axis of attack

25     pursuant to the plan of use and by request of the operations group

Page 21321

 1     commander."

 2             Professor, did you take this into consideration before

 3     deciding -- or before indicating that General Gotovina only possessed

 4     limited rotary air capability?

 5        A.   I did not.  Although on several occasions you say "only possess

 6     limited."  I think I qualified with "essentially limited" -- "essentially

 7     limited to."  I was aware that there were -- there were some air assets,

 8     I think helicopter assets, but ...

 9        Q.   Thank you.

10             MR. RUSSO:  Can we now have Exhibit P71.

11             JUDGE ORIE:  Mr. Misetic, the PZO translation, in view of the use

12     of the document, paragraph 6 saying anti-aircraft defence, seems that

13     Mr. Russo has already given his approval to the new translation.

14             Please proceed.

15             MR. RUSSO:

16        Q.   Professor, this is the operations diary of the Split Military

17     District.

18             MR. RUSSO:  If we could please go to page 79 in the English and

19     page 42 in the B/C/S.  And I'm looking for the entry at 9.27 a.m.  In the

20     B/C/S I believe that appears at page 42 on the right-hand side.

21        Q.   You'll see that General Gotovina orders:

22             "Immediately get our MiG aircraft in the air."

23             Looking down to the 9.55 a.m. entry, it is reported that the MiG

24     is air-borne and in the waiting zone.  Also reported at 9.55 a.m. is that

25     helicopters are picking up casualties.

Page 21322

 1             MR. RUSSO:  And if we could move now to page 84 in the English,

 2     and page 47 in the B/C/S.  I'm looking for the entry at 9.25 a.m., this

 3     entry straddles page 47 and 48 in the B/C/S.

 4        Q.   But you will see the 9.25 a.m. entry, where Brigadier Ademi

 5     orders aircraft to fire at a line of enemy tanks in the area of

 6     Stara Straza.  And this is on the 5th of August, 1995, by the way.

 7             Professor, are you aware of the distance between Stara Straza and

 8     Knin?

 9        A.   No.

10        Q.   And had you considered this particular piece of evidence that

11     I've shown you before?

12        A.   I have never seen it before.

13        Q.   Thank you.

14             JUDGE ORIE:  Mr. Russo, are you done with the document?

15             MR. RUSSO:  Yes, Mr. President.

16             JUDGE ORIE:  Could we just go back to page 42 again.

17             Professor Corn, we earlier talked about electronic warfare.

18             THE WITNESS:  Yes, sir.

19             JUDGE ORIE:  I see here an entry at 9.50, which is about enemy

20     aircraft.  It says:  "Enemy aircraft were fired at Grahovo."

21             And then it says:  "Electronic warfare."

22             Could you -- because you have explained to us how, if I could

23     qualify it that way, how marginal apparently the electronic warfare

24     equipment or efforts were.  Could you explain to us what this means here,

25     is that that targeting is supported by electronic equipment or ... how do

Page 21323

 1     I have to understand this entry?

 2             THE WITNESS:  Your Honour, I think there are a number of ways

 3     could you interpret that.  I think one interpretation might that be

 4     electronic warfare assets provided the information.  Because it's a

 5     prediction of future action, right?

 6             JUDGE ORIE:  Yes.

 7             THE WITNESS:  So that the electronic warfare interception led to

 8     this intelligence.  I think it is possible that they anticipate that

 9     their electronic warfare assets might be the object of attack by enemy

10     aircraft.

11             JUDGE ORIE:  Yeah.

12             THE WITNESS:  Or the third option would be that they are planning

13     on using their electronic warfare capability to disrupt this enemy air

14     attack.  I think there are three possibilities.

15             JUDGE ORIE:  Yes.  So, it doesn't assist greatly to understand

16     what it is about.  Thank you for those answers.

17             Mr. Russo, please proceed.

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

19        Q.   Professor, looking at some of the information I have shown you,

20     would you agree that this is information relevant to the consideration of

21     the assets available to General Gotovina?

22        A.   Yes.

23        Q.   Now --

24        A.   Well, but, if I may.

25        Q.   Go ahead.

Page 21324

 1        A.   You know, it's more than just a kind of zero sum.  There are

 2     assets; there are not assets.  Availability is a key word.  It seems

 3     relatively clear that this is an order related to close-air support and

 4     air support that augments the General's organic capability, right?  So we

 5     speak in terms of organic and supporting assets.

 6             It also seems relatively clear that this capability is understood

 7     by the General to be ideally suited to support the close fight and to be

 8     responsive to his stated concern over the ability of the enemy to move,

 9     to manoeuvre, in depth to influence that close fight.  So, yeah, I mean,

10     there's no question that this indicates that he knew that he had close

11     air support available, if he needed it.

12             But I think one of the most significant pieces of information

13     from the documents you have shown me is the percentage of strikes,

14     14.5 per cent pre-planned; 85.5, on order.  When you see that, it

15     suggests that the bulk of the capability was used to support the close

16     fight, because it is being called in for close-air support purposes.  It

17     is not being used against pre-planned targets and that's logical, because

18     air assets are inherently more responsive to manoeuvring enemy forces

19     than indirect fire because they are responding to what the ground

20     tactical commander is seeing as a threat or a developing situation.

21             So I think, again, if you look at the entire body of information,

22     I certainly agree with you that I didn't -- I wasn't aware of this when I

23     made that comment about limited air assets.  But I also think that it is

24     consistent with his overall operational and tactical scheme of manoeuvre,

25     and the way they were employed is consistent with that.

Page 21325

 1        Q.   Thank you.

 2             Looking back to your addendum, Professor --

 3             MR. KEHOE:  Excuse me, Mr. President, may I just interject at

 4     this point.  Is counsel moving off the aircraft point?

 5             MR. RUSSO:  Yes.

 6             MR. KEHOE:  Then I would have a --

 7             JUDGE ORIE:  First of all, I was following the French

 8     translation.  Could we all try to keep the speed --

 9             MR. KEHOE:  Apologies.

10             JUDGE ORIE:  -- down.

11             Yes, Mr. Kehoe.

12             MR. KEHOE:  My apologies to the booth.

13             If we're moving off that, I do believe that counsel has a

14     90(H) obligation to put his point concerning the use of these assets to

15     the witness and whether or not that changes his assessment.  That's an

16     obligation counsel has.  So before he moves off, I think it is incumbent

17     upon the Prosecution to put their case on that score to the witness.

18             MR. RUSSO:  First of all, Mr. President, Rule 90(H) has to do

19     with witnesses who can give evidence.  This witness doesn't have any

20     evidence.  All he has are opinions based on evidence which is fed to him.

21     I don't have a 90(H) obligation to educate a witness and then ask him for

22     an opinion.

23             MR. KEHOE:  Then counsel shouldn't have conducted this cross.

24     That flies in the face of what we have just been doing for the past two

25     hours.  The point of the matter is --

Page 21326

 1             JUDGE ORIE:  Could I just try to understand what has happened

 2     over the last -- well, let's say, the last half an hour.  That is, that,

 3     apparently, Mr. Russo has put to the witness documentary evidence which

 4     the witness apparently had not considered when forming his opinions, and

 5     I did not get the impression that the witness contradicted the

 6     Prosecution's case.  So apart from whether this is evidence in support of

 7     the Prosecution's case, or whether it is evidence which seeks to

 8     demonstrate the limited documentation available to this expert witness,

 9     apart from which of the two would be the right one, the obligation to put

10     to the witness what the Prosecution's case is, is -- exists if the

11     testimony given by the witness contradicts the Prosecution's case, if my

12     understanding of Rule 90(H)(ii) is correct.

13             Where, Mr. Kehoe, has this witness contradicted, during this

14     testimony, the Prosecution's case?

15             MR. KEHOE:  First off, Mr. President, if we look at 90(H)(ii), it

16     is not limited to fact witnesses in any fashion.

17             JUDGE ORIE:  I don't think that that was raised.

18             MR. KEHOE:  It was raised by counsel.  He raised it --

19             JUDGE ORIE:  Well, then I missed it.

20             MR. KEHOE:  -- that it was only limited to fact witnesses and the

21     rule doesn't say that.

22             MR. RUSSO:  I'd -- first of all, if I could just respond to that.

23     I didn't say that specifically.  What I did say is that the rule relates,

24     as can you see from the language, witnesses who are able to give

25     evidence.

Page 21327

 1             JUDGE ORIE:  Yes.

 2             MR. RUSSO:  And my position on that is evidence is, in fact,

 3     factual evidence, not legal opinion.

 4             JUDGE ORIE:  Well, okay.  Let's -- let's leave that alone for the

 5     time being.

 6             Mr. Kehoe.

 7             MR. KEHOE:  Secondly, the issue that counsel, after this

 8     examination, is going to argue, as sure as I'm standing here, is that the

 9     use of artillery by General Gotovina was unreasonable.  That is the

10     position that the Prosecution has taken in this case.  And that he should

11     have explored these air asserts to accomplish any goal he sought to

12     accomplish, operationally and tactically, in the theatre of operations.

13             If they're not going to argue that, then we would -- I ask for a

14     stipulation on that.  If they are, in fact, going argue, based on this

15     evidence, that that was the way that General Gotovina should have gone,

16     then 90(H) obliges them to "put to the witness the nature of the case of

17     the party for whom that counsel appears."  And in that instance, it is

18     Mr. Russo on behalf of the Prosecution, and if he is going to argue at

19     the end of this case that General Gotovina should have used aircraft

20     assets, be they fixed or rotor, as opposed to artillery, then that

21     question should be put to Professor Corn in this proceeding before this

22     Chamber.

23             JUDGE ORIE:  Mr. Russo, is that your position, that air asserts

24     should have been used instead of ...

25             MR. RUSSO:  Mr. President, we're not, at this point, under any

Page 21328

 1     obligation to tell the witness what we're going argue in our final trial

 2     brief.  It is further not our obligation to indicate that he should have

 3     used this aircraft, that rotary helicopter.  Our position is that his use

 4     of artillery was unreasonable.  That is the case we have to put to the

 5     witness, and I believe he is well aware after that position, in fact,

 6     from --

 7             JUDGE ORIE:  Let's check that.

 8             Are you aware that it's the Prosecution's case that artillery was

 9     used in an unreasonable way during Operation Storm?

10             THE WITNESS:  Your Honour, yes, I understand that's their

11     position.  I certainly cannot help but draw the inference that the

12     questions related to the availability of air assets are intended to

13     suggest that that bolsters the position and so -- and undermines the

14     opinion that I rendered.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  The Chamber rules that the Prosecution has met its

17     obligations under Rule 90(H)(ii).

18             Please proceed, Mr. Russo.

19             MR. RUSSO:  Thank you, Mr. President.  I did just want to make

20     one additional thing clear with respect to this particular line of

21     questioning.  It was, in addition to other things, to attack the

22     witness's assertion in his report that General Gotovina's assets were

23     essentially limited.  I was simply attacking the basis for those

24     assertions and demonstrating the witness's actual knowledge with respect

25     to those particular areas.

Page 21329

 1             JUDGE ORIE:  Yes --

 2             MR. KEHOE:  Mr. President, that argument is part and parcel of

 3     the other argument, that the -- the only reason there is any relevance to

 4     that is if it has a corollary aspect that the use of rotor or fixed

 5     aircraft assets was something that should have been employed.  Because if

 6     they are not connected --

 7             JUDGE ORIE:  Mr. Kehoe, you may finish this line.  I didn't

 8     invite Mr. Russo to explain what he had done because the Chamber, of

 9     course, could observe what he did, and interprets his line of questioning

10     accordingly.  And apart from that, I think I already briefly referred to

11     such a thing.

12             So you may finish your -- you may finish your sentence.  At the

13     same time, the Chamber was not seeking any further argument on the ruling

14     it already gave.

15             MR. KEHOE:  And, Mr. President, I think that the substance of my

16     argument is present.  I don't need to belabour the point.  My apologies,

17     if I did so.

18             JUDGE ORIE:  Mr. Russo, not your next comment but your next

19     question is expected.

20             MR. RUSSO:  Yes, Mr. President.  Thank you.

21        Q.   Professor, looking back to your addendum at section 1, last

22     paragraph on page 25, you state:

23             "It seems clear that based on the METT-T-C General Gotovina would

24     have to consider, use of a ground assault to destroy or disrupt enemy C3I

25     in Knin would not have been a viable option."

Page 21330

 1             Can you tell the Trial Chamber what you base that particular

 2     conclusion that a ground assault was not a viable option.  What do you

 3     base that on?

 4        A.   Well, the first basis is the almost universal doctrinal principle

 5     that dismounted combat in urban environments is to be avoided really at

 6     almost all costs.  It is understood, I think, in most armed forces, that

 7     it is a -- really an option of last resort.  Because the urban

 8     environment grants to your defending opponent an exponential advantage as

 9     a result of the built-up terrain and degrades your ability to manoeuvre,

10     to leverage fire support and air assets, and to have a clear picture of

11     the battlefield.

12             And if you recall from yesterday, I emphasised that a commander

13     executing an operation has the primary objective of seizing and

14     maintaining the initiative and dictating the tempo of the battle.

15     Engaging an enemy in an urban environment cedes to the enemy initiative

16     and tempo so it is to be avoided.  Historically, you see this played out

17     in, you know, universally known examples of the brutality of urban

18     combat, like Stalingrad, and you also see it played out in interesting

19     historical anecdotes, for example, the debate between General de Gaulle

20     and Eisenhower over whether Paris should have been liberated or bypassed,

21     with Eisenhower adamant that he did not want to engage in urban combat in

22     Paris because of the detrimental impact he believed it would have

23     operationally.  And we know ultimately he lost that argument.  This is a

24     doctrinal axiom.

25             So a prudent commander facing this requirement to destroy or,

Page 21331

 1     more importantly, to degrade military objectives within this urban

 2     terrain would instinctively be disinclined to engage in a ground assault.

 3             In addition, as I've said before, I think it is fairly clear that

 4     the General's priority of effort was the breach and destruction of the

 5     fixed enemy defensive positions.  That is not an easy task.  It's an

 6     extremely dangerous task.  A commander would always prefer to attack an

 7     enemy in a meeting engagement as opposed to attacking an enemy in fixed

 8     positions.  We see that the General -- I think you see that the General

 9     placed -- made that priority of effort manifest in his task to

10     subordinate units.  To conduct an urban assault, to set the conditions

11     for the success of that priority of effort would have, in effect, shifted

12     the priority of effort from the tactical point of attack to the

13     supporting attack, because you couldn't have done it easily, or certainly

14     that would have been a reasonable conclusion.

15             The other factor is you have to look at the effect that he needed

16     to achieve to set the conditions for the -- for the success of the

17     priority of effort.  The effect he needed to achieve was not to capture

18     the headquarters.  It was not to destroy the headquarters.  It was to

19     disrupt C3I, movement, mustering, resupply, and to create a sense of

20     isolation for the enemy forces at the point of attack.  That's my

21     inference from everything I have seen related to the attack.

22             And so if he had the mission, for example, if he felt that in

23     order to succeed in this operation he had to actually capture the

24     headquarters building, then that mission component of METT-T-C would have

25     driven a different analysis.  Because there are only certain assets that

Page 21332

 1     can capture people.  Boots on the ground.  But you have to assess how

 2     likely he would have considered the viability of a ground assault into

 3     Knin as a condition -- condition-setting supporting attack in light of

 4     the effect he needed to achieve to accomplish the mission.  And when you

 5     put that together with the powerful kind of instinct or doctrinal

 6     underpinning that dismounted military operations in an urban environment

 7     are considered dangerous and to be avoided, then I think that would have

 8     been an unlikely course of action that he would have -- it would have

 9     been unlikely he would have considered that course of action viable.

10        Q.   Professor, I'm -- maybe we're thinking of different definitions

11     of the term "viable."  But before we get to that, was it your

12     understanding that one of the objectives of Operation Storm was not to

13     take the town of Knin?

14        A.   No.  It was my understanding that the operation of objective

15     Storm [sic] was to drive the enemy forces out of the area and capture

16     their seat of command and control and government, which was Knin.  That

17     was the strategic objective.

18             General Gotovina did what an operational commander is required to

19     do.  He translated the strategic objective into an operational course of

20     action and he made the priority of effort for the operational execution

21     defeat of the enemy defensive positions that were protecting that area,

22     on the -- most likely on the assumption that once the enemy defences are

23     defeated in depth, then the capturing of Knin will be facilitated

24     substantially.

25             So I'm not suggesting that he didn't realize at some point he

Page 21333

 1     might have to capture and control Knin.  What I'm suggesting is that

 2     doesn't necessarily mean that he is going to set that as the first

 3     objective of the operation.

 4        Q.   Now in saying it is not a viable option, and it sounds maybe that

 5     you have a different definition or are employing a different definition.

 6     At least from my perspective, viable means, number one, first of all,

 7     whether can you do it.  Is that fair?

 8        A.   Possible is one aspect of viable, sure.

 9        Q.   And are you -- when you say that it is not a viable option, I

10     take it, based on your last answer, your second-last answer, is that even

11     though it may have been possible, which you have not said, it certainly

12     was not advisable.  Is that fair or ...

13        A.   No.  I think advisable is a little bit misleading.  First of all,

14     I suspect it was possible.  If the General had decided that the priority

15     of effort of his corps was to capture the city, then I think you would

16     have seen a radically different scheme of manoeuvre and a radically

17     different emphasis for subordinate units.

18             So when I say "not viable," what I mean is within the broader

19     context of the priority of effort he set, it would have drawn -- it would

20     have required a commitment of assets or certainly - make this clear -

21     certainly he reasonably could have anticipated that it would have

22     required a commitment of assets that would have functionally disabled all

23     of the efforts he had made to make the priority of effort the tactical

24     point of engagement with enemy defensive positions.

25             And another aspect of this that relates to this use of the word

Page 21334

 1     "viable," one of the reasons dismounted operations in urban terrain is so

 2     disfavoured is because it is one of the most unpredictable combat battle

 3     spaces that a commander can confront.  And predicting the flow of the

 4     battle is directly connected to tempo and maintaining initiative.

 5             So if General Gotovina had made a judgement that, I can take Knin

 6     with a battalion, and he commits that battalion, he is committing it with

 7     the full knowledge that he really can't predict whether that battalion

 8     will accomplish the mission.  He can hope.  But it's a different equation

 9     than a force-ratio analysis a commander would conduct in open terrain, or

10     even against a fixed enemy defensive position.

11             History demonstrates this.  The problem for the commander is once

12     he commits that force for that purpose, he's in a box.  And another axiom

13     of military operations is, never reinforce failure.  All right?  You have

14     limited reinforcements, you reinforce success not failure.  But that's a

15     problem with urban terrain combat because you're almost sucked into the

16     problem of having to reinforce failure because of the unpredictable

17     nature of the operation, and this is why doctrinally it is so disfavoured

18     and commanders are advised to seek alternate methods of addressing enemy

19     positions in an urban environment.

20        Q.   Professor, before we move on to the details of a possible ground

21     assault on Knin, you said, So if General Gotovina made a judgement that,

22     Can I take Knin with a battalion, are you aware of what

23     General Gotovina's assessment was at the time, concerning the viability

24     of taking Knin with troops?

25        A.   No.  Because my review of the information indicates that he made

Page 21335

 1     the judgement that he wasn't going to make that the priority of effort.

 2             MR. RUSSO:  Can we have Exhibit P461.  And if we could go to

 3     page 10 in the English and page 19 in the B/C/S.

 4        Q.   I'm looking at a portion where General Gotovina says -- first of

 5     all, Professor, this is the Brioni transcript, which I believe you're

 6     familiar with.

 7             General Gotovina's statement:

 8             "The forces heading towards Knin are 400 good infantrymen from

 9     the 3rd Battalion, the 126th Regiment, who are all from this area and

10     they know the area through and through.  They have reason to fight here

11     and at this moment it is difficult to keep them on a leash.  There is the

12     1st Croatian Zdrug, which has 300 infantrymen, which has proved itself in

13     this area at this moment, and in any case, we can count on those

14     infantrymen.  There are special units of the Croatian and Herceg-Bosna

15     MUP, which have 350 excellent infantrymen, who have shown themselves to

16     be outstanding in the operation.  That means that we have somewhere

17     around 1.000 good infantrymen, trained for assault operations, for quick

18     transfers on this difficult terrain; we can easily take Knin without any

19     problem."

20             Now, Professor, if General Gotovina made the assessment that he

21     could easily and without any problem take Knin with these thousand men,

22     what is your basis or do you have a basis for disagreeing with him?

23        A.   Yeah, I have read this and I think this is really quite

24     significant.

25             Again, you put it in broader context and it creates maybe a

Page 21336

 1     different impression.  In the paragraph antecedent to this paragraph, the

 2     president is talking about placing Knin under fire --

 3             JUDGE ORIE:  Could we move -- yes, thank you.

 4             THE WITNESS:  And placing Knin direct -- operations directly

 5     in -- towards Knin.

 6             Now, in the -- when I read this, it jumped out at me for the

 7     reason you suggest, because it seems to think that here's the General

 8     saying, I'm just ready to march into Knin and take it over.

 9             I think other aspects of this document support the conclusion

10     that there are different voices in this meeting but the tenor of the

11     General's voice is operational execution, close with and destroy the

12     enemy.  It is manifest in a couple of places.  I assume this document's

13     been admitted into evidence, is that -- okay.  So the Trial Chamber will

14     obviously have seen it and make that judgement.

15             It says, Please remember how many Croatian villages and towns

16     have been destroyed.  But that's still not the situation in Knin today.

17     There's a counter-attack in Knin and so forth.  It would provide a very

18     good justification for this action ... we have a pretext to strike ...

19             Now here is the operational commander listening to the political

20     leader basically saying, you know, as part of planning this tactical

21     destruction of enemy armed forces, look for an opportunity to inflict

22     damage on the city, and the commander responds, in my view, one

23     reasonable way to interpret this is to kind of push that back,

24     Mr. President, don't worry about Knin.  I can take Knin when I have to,

25     right?  I have got forces.  I'm capable of doing it.

Page 21337

 1             But the General, through this whole discussion, is talking about

 2     the tactical destruction of enemy forces.  And obviously, if I'm the

 3     commanding general and I know that I have defeated the enemy in depth,

 4     then the dominos start falling and I will be able to walk into Knin,

 5     because once those frontline positions are breached and defeated, then

 6     the leadership in Knin knows that the outcome is inevitable, and I'm

 7     dictating the terms.

 8             So, again, I think there -- it is possible to read this as

 9     General Gotovina saying, As part of my plan, I'm ready to just march into

10     Knin.  But I think in the broader context, it suggests something quite

11     different, which is he is trying to push the president off of this kind

12     of overzealous pressure to put Knin under fire.  And part of my reason

13     for saying that is something we talked about previously, which is he had

14     the capability to do this for some time, to just rain fire on Knin.

15             Now, I mean, there're, again, multiple reasons why he might not

16     have exploited that opportunity.

17             If you -- I think if you look at this, he comes out of this

18     meeting, orders are prepared, annexes are prepared, tasks for subordinate

19     units, priorities of effort, and it all points to the same operational

20     judgement, I'm going use my ground tactical capability, my close air

21     support, my MiG -- my Mi-24s, which are anti-armour, anti-personnel

22     aircraft.  I'm going to leverage all that to the best I can at the

23     priority of effort, which is defeating the enemy ground tactical

24     capability in depth.  In order to do that, I have to set conditions

25     related to their support structure and I will use assets that I think can

Page 21338

 1     do it.

 2             So that was my reaction to that when I read it.

 3             JUDGE ORIE:  Mr. Russo, I'm looking at the clock.  We have to

 4     conclude for the day.

 5             Professor Corn, you are not available tomorrow, from what we

 6     understand.  We'd like to see you back on Thursday, the 10th of

 7     September, quarter past 2.00, in Courtroom II.  And my instruction to you

 8     is the same as yesterday, that you should not speak with anyone about

 9     your testimony, whether already given or still to be given.

10             For the parties, we'll hear testimony through videolink tomorrow.

11     We adjourn and we will resume Wednesday, the 9th of September, 9.00,

12     Courtroom I.

13                            --- Whereupon the hearing adjourned at 1.46 p.m.,

14                           to be reconvened on Wednesday, the 9th day of

15                           September, 2009, at 9.00 a.m.