Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21428

 1                           Thursday, 10 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness takes the stand]

 5                           --- Upon commencing at 2.21 p.m.

 6             JUDGE ORIE:  Good afternoon -- [English on French channel]

 7     [previous translation continues]... French on channel 4, where I expect

 8     English.

 9             Good afternoon to everyone.

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

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

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

13     Prosecutor versus Ante Gotovina et al.

14             JUDGE ORIE:  Thank you, Mr. Registrar.

15             Professor Corn, I'd like to remind you that the solemn

16     declaration you gave at the beginning of your testimony still binds you.

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

18             MR. RUSSO:  Yes, Mr. President.  Thank you.

19             JUDGE ORIE:  Then please proceed.

20                           WITNESS:  GEOFFREY CORN [Resumed]

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

22        Q.   Afternoon, Professor.

23        A.   Afternoon.

24        Q.   We left off last time discussing your assessment that a ground

25     assault on Knin was not a viable option, and looking at that in the

Page 21429

 1     context of General Gotovina's statement in P461 that he could easily take

 2     Knin without any problem.  And looking back at your answer, it appears

 3     that you did not answer the last question I put to you, which was at

 4     transcript page 21335, lines 20 to 22.  The question was whether you had

 5     any basis for disagreeing with General Gotovina's assessment that Knin

 6     could be easily taken without any problem.

 7        A.   Well, the answer to that is yes, based on the facts and

 8     assumptions that I was provided by Defence counsel in the request that

 9     led to my -- my addendum, and those facts and assumptions included

10     information about a number of military objectives within the city,

11     statements that the RSK intended to make the defence of Knin a priority

12     effort on their own part, and knowledge on the part of -- or an

13     expectation or anticipation on the part of General Gotovina, that he may

14     have to respond to counter-attack during his own offensive operation and

15     I think all three of those factors would influence his operational and

16     tactical judgement at the time he launched the attack, which is why when

17     I wrote the addendum I made the comment in there or made -- as you note,

18     I made the statement or rendered the opinion that I believed that he

19     would have assumed that a ground assault into Knin was not a viable

20     option, viable in an operational sense in the broader context of the

21     offensive operation that he was launching, the enemy situation he

22     anticipated, and his own resource capacities.

23        Q.   So to be clear, you're saying the portion that I read to you from

24     the presidential transcript where he says -- where he tells

25     President Tudjman that Knin could be easily taken without any problem,

Page 21430

 1     you're saying that based on the facts and assumptions provided to you

 2     that General Gotovina was wrong when he said that?

 3        A.   No, maybe I -- maybe I mis-characterised it.  I don't know what

 4     General Gotovina actually believed at that time or not.  As I told you in

 5     my original answer, what I -- when I read that in the broader context of

 6     the other information I had received, and particularly in the context of

 7     the other statements that were made by the general during that meeting, I

 8     had the impression - and this is just my impression - that that was a

 9     response to a statement by the President that indicated essentially if a

10     counter-attack were launched out of Knin, it would provide a pretext for

11     a bombardment or an artillery assault, I can't recall the precise

12     language.  And in response to that the general, who throughout the

13     transcript had been discussing his operational concept of the operation

14     or his general concept of the operation, responds, If I need to take Knin

15     I can do it.

16             Now, I think there are a number of ways you can interpret that

17     statement.  I don't know whether General Gotovina at that moment in time

18     believed that was true or not.  I assume he believed it was true.  And I

19     assume on the night of the battle if he had been directed to make the

20     capture of Knin the priority effort, he would have believed he could have

21     done it.  But by the time the battle ensued, it seems relevant clear the

22     capture of Knin was seen as a domino that would fall after he achieved

23     his priority operational effort which he had defined as the breach and

24     destruction in depth or defeat in depth of the enemy tactical forces in

25     their defensive positions.  So he may very well have thought that was

Page 21431

 1     true, but I guess my point is I don't know -- I didn't interpret that to

 2     mean that he thought that was a course of action that he would adopt

 3     automatically, particularly in light of the context that led to the

 4     statement.

 5        Q.   Well, your answer seems to focus on your impression of whether

 6     Gotovina believed what he said or didn't believe what he said, but the

 7     question I'm asking and maybe I need to put it to you more specifically

 8     is:  He said he could take Knin easily, without any problem.  Assuming

 9     that he meant what he said, do you disagree that -- well, would you say

10     he was wrong?

11        A.   I don't know if the question asks me to judge whether or not he

12     believes -- what he believed.

13        Q.   That's not my question.  I'm asking you to believe -- well, I'm

14     asking you to assume that he believed what he said.

15        A.   Okay.  Then I guess how I would have to answer that is:  I don't

16     know what his situational awareness was of the enemy situation at that

17     point in time.  So I assume, based on his knowledge, he believed it.  He

18     said it to his president, and therefore I -- I mean, I -- this is pure

19     speculation, but I suspect that a corps-commanding general is not going

20     to lie to his command -- his political Commander-in-Chief, his president.

21     But I -- when I wrote my addendum, I'm looking at it from the context of

22     the operational situation that he perceived prior to the attack.  So he

23     may very well have believed that at that time.  As I say, my impression

24     is it was a -- very candidly, my impression from that exchange was:  I'm

25     the operational commander, sir, let me make my plan and defeat the enemy.

Page 21432

 1     Don't worry about it.  I can do it, whatever I have to do.  But I think

 2     that that's a far cry from saying:  I intend to take Knin, or it is my

 3     priority of effort, or it will be my priority of effort.  There are many

 4     other variables involved.

 5             MR. RUSSO:  If we could have P46 -- I'm sorry, P482.  And if we

 6     could go to page 17 in the English.  I'm searching for the B/C/S page.

 7     The B/C/S would be page 22.

 8        Q.   You can see, Professor, where it says "Completed Tasks.

 9             "The liberation of Knin, as the main objective of the attack ..."

10             Now, the answers you were just giving me seem to suggest

11     otherwise, that the taking of Knin was not the main objective --

12        A.   No, not at all.

13        Q.   Then what am I misunderstanding about --

14        A.   You're misunderstanding the difference between a strategic

15     objective and an operational and tactical priority of effort and an

16     operational and tactical concept of operations scheme of manoeuvre.  The

17     taking of Knin may very well have been the priority of effort, just like

18     in 2003 in Iraq, the taking of Baghdad may very well have been -- I'm

19     sorry, not the priority tactical effort, but may have been the strategic

20     objective defined by the strategic commander.  But you cannot take

21     Baghdad before you first secure the Euphrates River bridges.  So

22     operational manoeuvre commander takes that strategic objective and

23     translates it into an operational scheme of manoeuvre, that is further

24     translated into tactical tasks to subordinate units.  And I've said on

25     several occasions that I suspect that in this planning process, this

Page 21433

 1     operational planning process, there was an assessment that if the enemy

 2     fixed defensive positions in and around Knin, were penetrated and

 3     defeated, then Knin would be like a domino that would fall.  And that

 4     could very well be the logical, operational, and tactical methodology to

 5     achieve this strategic objective.

 6        Q.   Well, if the objective is to take Knin - and I'm sorry if I'm

 7     dumbing this down to a level below the -- your expertise in military

 8     matters - but I just want to be clear about what I'm hearing from you.

 9     If the objective is to take Knin, you're not suggesting, are you, that

10     that objective should be subordinated to other tactical objectives, are

11     you?  In other words, if the objective is to take Knin and you can do

12     that without having to worry about tactical obstacles in the foreground,

13     are you saying that the tactical obstacles in the foreground should, in

14     fact, prevent you from achieving your strategic objective faster?

15        A.   First off, the document you just brought up to show me does not

16     say "taking Knin is the objective."  It says "liberation of Knin as the

17     main objective of the attack ..."

18             Liberation is not the same as taking.  In 2003 the United States

19     could have dropped the 82nd Airborne Division into Baghdad.  That may

20     have well produced an outcome where Baghdad was taken, but that would not

21     have achieved the strategic objective.  Because until you defeat the

22     enemy's capability to respond to your conduct and to dictate the terms of

23     the battle, then that taking doesn't automatically translate into

24     liberation.

25             Now, specifically on your question, what you're asking me about

Page 21434

 1     is what I guess I could best characterise as operational art.  This is

 2     what commanders do with their staffs.  They look at the strategic

 3     objective, and then they assess what needs to be done militarily,

 4     tactically, operationally, to bring about achievement of that objective.

 5     Now, I would agree with you whole-heartedly that if General Gotovina had

 6     made an assessment that the capture of Knin was feasible, achievable, and

 7     that the capture of Knin would produce a general collapse of all enemy

 8     resistance in the area, then he might reasonably have made a ground

 9     assault on Knin his priority of effort.  But I think that when you look

10     at his course of action he reached an alternate conclusion, that the key,

11     the centre of gravity, if you will, the tipping point to liberate Knin

12     was to defeat the enemy defensive forces that the enemy had deployed in

13     fixed defensive positions in and around the city, and once they were

14     defeated he would have the freedom of action to liberate the city.  So a

15     commander could make different judgements depending on his assessment of

16     the enemy situation and his own capability.

17        Q.   I was with you almost up until the last point.  The point I was

18     going to make was that we've heard a lot about Knin in fact being the

19     centre of gravity, and if that's the case, in fact, if Knin was the

20     centre of gravity, if it's the hub of the command and control nodes and

21     all the communication nodes, if you physically take the town, then you

22     don't have to worry about cutting off their communications because taking

23     the town does all that for you, doesn't it?  It disrupts certainly the

24     communications between the town you've taken and soldiers which may be at

25     a different location attempting to defend the town you've just taken.

Page 21435

 1     But your answer said:  Defeat the enemy defensive forces that the enemy

 2     had deployed in fixed defensive positions in and around the city --

 3        A.   That may have been inarticulate.  I mean, I'm referring to the

 4     tactical assault that was conducted against fixed enemy defensive

 5     positions in the areas outside of Knin.  So that was a misstatement.  But

 6     specifically on your question -- I think you are -- your question is

 7     based on an assumption that the enemy tactical combat capability is

 8     simply going to stand by idly while you put dismounted infantry in their

 9     -- what they may very well recognise as their centre of gravity.  Now,

10     you've pointed out some facts in the execution of the operation that

11     reveal certain realities of an offensive operation against fixed enemy

12     defensive positions.  For example, you questioned me the other day

13     regarding the use of fixed-wing and rotary-wing air capability.

14        Q.   Professor, I'm sorry, let me -- I just -- I want to keep this --

15             MR. KEHOE:  Excuse me, I think the question was quite general,

16     and I think that the answer is being given to the question that was being

17     asked.

18             JUDGE ORIE:  Yes, Mr. Russo, we have to find a fair balance

19     between giving an opportunity to the witness to explain himself.  And he

20     was explaining that your question was based on a certain assumption, and

21     I think he should finish that.  At the same time when I say "to find a

22     fair balance," I think you'll understand that, Mr. Corn, that Mr. Russo

23     must also have an opportunity at some point where he thinks that the

24     answer elaborates on matters which he did not seek to cover in his

25     question, that he has an opportunity to move you in the direction he --

Page 21436

 1     of the question again.  So could you briefly finish your answer, and

 2     then -- Mr. Russo, then you can continue after that.

 3             THE WITNESS:  Yes, I'll try and be a bit more concise on this

 4     point, Your Honour.  The point is that I was referring to the 85 per cent

 5     allocation for time-sensitive targets for those air assets.  That's a

 6     reflection of the reality that enemy manoeuvre and counter-attack and

 7     reinforcement is a significant concern when you're conducting an

 8     offensive operation against enemy defences.  So it is certainly possible

 9     that General Gotovina may have faced a situation where he could have

10     thought:  I can put troops into Knin, I can seize Knin, and then what I'm

11     doing is I'm creating a vulnerability for the enemy to surround those

12     forces, cut them off, and then defeat them in depth.

13             So, again, Mr. Russo, I'm not saying that your hypothetical is --

14     in the right set of circumstances, produces an outcome that is always yes

15     or always no.  In the right set of operational and tactical

16     circumstances, that might be a brilliant tactical decision.  But from my

17     review of every -- of the circumstances relating to his planning and

18     execution, I think he reasonably concluded that that was not the effect

19     he needed to achieve in order to liberate Knin, that the effect was to

20     isolate, disrupt, and destroy the enemy defensive capability that had

21     been deployed by enemy commanders.

22             JUDGE ORIE:  I'll try to -- did I understand you well that you

23     are trying at this moment to reconstruct on the basis of the information

24     that was made available to you, to the best of your abilities, to

25     reconstruct what is the most likely option in your view?  While you are

Page 21437

 1     aware that we do not know exactly in every respect -- at least you do not

 2     know exactly in every respect what the situation was; you do not know

 3     exactly what General Gotovina knew at the time, what he was aware of; and

 4     third, that you do not know exactly what considerations led him to decide

 5     on what then became the course of events that we know about.  Is that a

 6     fair way of understanding -- I would say the type of testimony you are

 7     giving at this moment?

 8             THE WITNESS:  That's exactly right, Your Honour.  There are

 9     multiple variables.  I was asked to render an opinion as to whether the

10     decision to employ his capability as he did was a reasonable course of

11     action based on the facts and assumptions I was given.  In my opinion,

12     the decision to forego a ground assault into the city and based on the

13     judgement that the effect you needed to achieve was not to seize the city

14     as a tactical objective but to disrupt enemy capability in the city in

15     the broader scheme of manoeuvre was a reasonable decision by an

16     operational commander.  If I -- and I agree, Your Honour, I don't know

17     all the facts, and that's why I say to Mr. Russo if the factual

18     predicates were changed significantly, then it might have been a much

19     more reasonable course of action to actually seize the city with a ground

20     assault.

21             JUDGE ORIE:  Mr. Russo.

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

23        Q.   So, Professor, the last part of your answer, clearly your

24     conclusions in your report are based on the assumption that the physical

25     taking of Knin was not the prime objective or the priority of effort.  Do

Page 21438

 1     I have that right?

 2        A.   I think that's clear in the report, that the priority of

 3     effort -- and so -- and I think his allocation of indirect fire support

 4     bears this out - was the tactical point of attack.  He used --

 5     approximately based on the facts and assumptions that I respond to,

 6     approximately 80 per cent of his fire-support capability, his organic

 7     capability at the tact, in support of the close battle.  And that, to me,

 8     is an indication of what he viewed as his priority of effort.  Because if

 9     his priority of effort was taking Knin, I think that the allocation would

10     have been different.

11        Q.   Looking at the document on the screen, when I read to you the

12     part about the liberation of Knin, one of your answers was that

13     liberation of Knin as the main objective of the attack, "liberation is

14     not the same as taking."

15             Now, you've never seen this document before, right?

16        A.   No.

17        Q.   So you don't know when General Gotovina wrote this document

18     whether liberation in fact meant taking?

19        A.   No.

20        Q.   So that's an assumption you're making?

21        A.   Well, it's an assumption -- well, the answer is, yes, it's an

22     assumption.  It's an assumption based on the fact that the facts and

23     assumptions that I was provided to base my opinion on indicated that

24     General -- I'm sorry, General Gotovina never viewed the completion of

25     Operation Storm as the end state of his operational and tactical effort,

Page 21439

 1     that he understood that there were follow-on missions that had to be

 2     conducted.  And so it's very possible that he could see the liberation of

 3     Knin as the decisive point, if you will, in achieving the broader

 4     strategic goal of liberating the entire Croatian national territory, but

 5     that doesn't mean it was the decisive point in defeating the enemy

 6     defences that had been prepared to thwart that effort in Operation Storm.

 7        Q.   Professor, General Gotovina's assessment as reflected in the

 8     31 July transcript about how easy it would be to take Knin with a

 9     thousand men, first of all, assuming he believed that to be true,

10     couldn't a reasonable inference from that be that General Gotovina did

11     not expect to encounter significant resistance inside the town?

12        A.   Well, I think it would be -- if that is what he believed at the

13     time, then it would be reasonable to infer that he concluded he would not

14     encounter significant -- enough resistance to thwart the efforts of a

15     thousand well-trained infantrymen to achieve that goal if he had made

16     that his objective, but again it pre-supposes that's the effect he

17     desires to achieve.  And one other -- I think I have to mention this.  I

18     think again, you know, as you get closer to the execution of the

19     operation, another assumption that I was provided was that he --

20     General Gotovina on the eve of battle was concerned about possible

21     counter-attack by Bosnian Serb forces and potentially even the JNA.  So,

22     you know, when you're at that point in time, you have limited reserve

23     capability, a thousand well-trained infantrymen, assuming that they were

24     there and ready, as he anticipated in the meeting with the president,

25     might very well be determined by the commander as a resource that he

Page 21440

 1     needed to hold in case this counter-attack materialised as he

 2     anticipated.  And if he can achieve his effect in support of the ground

 3     tactical plan with an economy of force effort, then that might be a

 4     reasonable reason not to do that.  There are just so many variables in

 5     this equation.

 6        Q.   Professor --

 7             JUDGE ORIE:  I try to understand whether I really understood your

 8     last answer.

 9             Mr. Russo says that if he really intended to take Knin by ground

10     forces, wouldn't that mean that he didn't expect much resistance?  That

11     was short his question.  Did I understand your answer well to be that:

12     Well, apart from whether you have to consider what resistance you could

13     expect, you would also have to take into account that you may need your

14     troops which -- with not a lot of resistance might be less needed to take

15     Knin, but you might also want to use them elsewhere because you had other

16     concerns at the time?  Is that briefly --

17             THE WITNESS:  Absolutely.

18             JUDGE ORIE:  Yes.

19             THE WITNESS:  Or not even know where you're going to use them.

20     Hold them in reserve to respond to an enemy counter-attack.  And in that

21     regard, Your Honour, I would go back to the discussion the other day

22     about the unpredictability of urban warfare.  You can anticipate light

23     resistance, but we know doctrinally that light resistance can turn out to

24     be much more significant than you anticipated.  And with a limited

25     reserve capability, that's a serious risk a commander takes when he

Page 21441

 1     embarks upon that effort.

 2             JUDGE ORIE:  You would have to know what to expect, and you would

 3     have to have good data, and we do not know exactly -- at least from what

 4     I understand, no details were given to you, what was there to be expected

 5     as far as troops are concerned.  I'm not talking about military

 6     objectives, neither were you informed in detail about what

 7     General Gotovina believed at the time that he could expect.

 8             THE WITNESS:  Well, I had the assumptions, and the assumptions

 9     indicated that he assumed that there were reserve -- some reserve

10     capabilities in the city, some special forces units, some special police

11     units, and other troops, but I -- the assumptions didn't give me the full

12     ground order of battle of the -- of the Serb forces in Knin, Your Honour,

13     so that's correct.

14             JUDGE ORIE:  Thank you.

15             Please proceed, Mr. Russo.  I now and then -- since we have

16     complex questions, and we have complex answers, I now and then try to see

17     whether in language, perhaps a bit less complex, whether I have

18     understood what the testimony is.

19             Mr. Russo, I hope you don't mind that I'm verifying now and then

20     because finally it's the Chamber which will have to evaluate this

21     evidence and all the evidence.

22             Please proceed.

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

24        Q.   Professor, in regard to His Honour Judge Orie's questions, do you

25     have any reason to believe that at the time General Gotovina made the

Page 21442

 1     statement to his Commander-in-Chief, that he could take the town easily

 2     and without any problem, do you have any reason to believe that he was

 3     unaware of the factors that you're now suggesting could change the

 4     situation?

 5        A.   Well, I mean, it's -- do I have reason to believe?  I speculate

 6     that the closer you get to actual execution of the operation, the better

 7     your situational awareness becomes.  So, yeah, I would speculate that he

 8     didn't know the full situation he would confront prior to execution at

 9     the time he made that statement, but he may very well have; I don't know.

10        Q.   You made mention in your answer to His Honour Judge Orie's

11     questions about the assumptions provided to you concerning what was in

12     Knin.  From the information you were given, can you tell the

13     Trial Chamber how many ARSK troops you believed were inside of Knin on

14     the 4th of August?

15        A.   No, that's what I meant.  I'm sorry, Your Honour, that's what the

16     term "order of battle" meant.  Order of battle is a term that refers to

17     the actual organisation of enemy forces.  So I don't know -- as I recall

18     I wasn't given an assumption that gives me the exact number of forces in

19     the town or in the city, I'm sorry.

20        Q.   And in assessing the viability of a ground assault on Knin, isn't

21     the number of troops a piece of information you need to know?

22        A.   In this broader context, my opinion is no.  When I know that he

23     faces a risk of counter-attack, the unpredictability of what forces are

24     going to create that threat, whether it's just ARSK or it's Bosnian Serb

25     or it's JNA, when I know that there is a doctrinal axiom that basically

Page 21443

 1     teaches commanders to beware of urban warfare and when I know that he

 2     knows that the enemy has critical C3I assets in that town and their

 3     Commander-in-Chief, then I think it is a rational assumption that if I

 4     have to do this, it's going to be -- if I can avoid doing this and still

 5     achieve my purpose, it's in my best interest operationally.  That was the

 6     basis of that opinion.

 7        Q.   I want to be clear what -- what you mean when you say that in the

 8     broader context your opinion is that you do not need to know the number

 9     of troops in order to assess the viability of an attack on Knin.  Are you

10     saying that, for example, it doesn't matter if there were five troops

11     inside the town?

12             JUDGE ORIE:  Mr. Russo, perhaps I do the same as I did before,

13     try to see whether I understood the answer and then see whether your

14     question still remains.

15             I understood your answer to be:  You don't have to know how many

16     troops there are if you should not even seriously consider to take the

17     town by ground forces because there are other priorities.  Is that --

18             THE WITNESS:  Well, if you know the exact enemy order of battle

19     and disposition, that's always better, but if you know that the enemy has

20     critical headquarters, logistics supply points, and movement choke-points

21     in that city, if I were the intelligence officer, I would make an

22     assumption that that's an asset the enemy is going to want to protect.

23     And also in the back of my mind is this emphasis that this mission needs

24     to be accomplished professionally.  Once you place infantry into urban

25     terrain, if you encounter something you didn't anticipate, what happens

Page 21444

 1     when they need close air support?  What happens when they need indirect

 2     fire support?  Now your ability to control how and where you're going to

 3     use those assets becomes much less predictable than pre-planned

 4     targeting.  So I think all of those.  So, Your Honour, I don't think -- I

 5     don't want to suggest you don't need to know anything.  But my suggestion

 6     is because you know there are high-value targets in there, it creates an

 7     inference that this is not going to be just three or four reserve forces

 8     that are going to throw down their arms on the approach of enemy forces.

 9             JUDGE ORIE:  So part of your answer included an assumption that

10     in view of the targets that were there, that you would assume, more or

11     less automatically, that there would be -- well, substantial troops

12     available or to, as you said, protect these targets, and that you have to

13     take into account also that they would be protected by other means than

14     ground troops, and that you would have to consider all that apart from

15     all your concerns about employment of your own troops elsewhere.

16             THE WITNESS:  And the enemy's ability to move troops to reinforce

17     that asset as well.

18             JUDGE ORIE:  Yes.  Thank you.

19             Mr. Russo, please proceed.

20             MR. RUSSO:

21        Q.   Professor, in order to make the determination about whether

22     you're going to use artillery on the town, relevant to that

23     consideration, obviously, for you was the consideration of the viability

24     of a ground assault as an option, because you mentioned that in your

25     report; right?

Page 21445

 1        A.   I stated in my report that in my opinion, based on the situation

 2     he confronted, he didn't think a ground assault was viable.  If you are

 3     asking me do I think use of artillery is per se improper if a ground

 4     assault was viable, I don't think I would agree with that.

 5        Q.   That's not what I asked you.  I asked you in order to make the

 6     determination about whether to use artillery in the town -- I should say

 7     in order to make the determination about whether the use of artillery in

 8     the town is reasonable, in other words, the selection of artillery as the

 9     way to conduct the attack, in order to determine whether or not that was

10     a reasonable decision to make, one of the alternatives you have to

11     consider, the alternative of using a ground assault?

12        A.   When a commander employs a method or means of warfare and he

13     knows that that method and means of warfare has a risk of inflicting

14     collateral damage or incidental injury, he bears an obligation to

15     consider whether there are alternate viable means that will achieve the

16     same effect with no -- with no compromise of his effort, his capability,

17     et cetera, et cetera.  So, yes, I think if a commander if he thought that

18     an enemy command post is in a location, there are civilians in the area,

19     and he could take it, and there was no uncertainty, it was -- you know,

20     you think of an extreme, like the enemy declares the area an open area, I

21     don't -- I'm trying to think of the hypothetical because there's so much

22     uncertainty involved in a tactical assault into an urban area.  But if

23     you could establish that the commander said, I knew I could take that

24     with virtually no losses, and the enemy wouldn't resist, and there

25     wouldn't be close combat in the urban area, and I wouldn't have to worry

Page 21446

 1     about calling close air support for my forces engaged, and I wouldn't

 2     have to worry about calling fire support for my forces engaged in this

 3     urban area -- in other words, I knew for sure that I could do this

 4     without the need to resort to indirect fires or destructive means that

 5     might threaten the civilian population, then, yes, that would be an

 6     alternative I think he would be compelled to consider.  But there are --

 7     I mean, I think you can tell from my answer, I think there is so much

 8     uncertainty with a ground assault into an urban area that that --

 9     reaching that point of parity between the two methods to achieve the same

10     effect is extremely difficulty, I think, as an anticipatory matter.

11        Q.   Well, one of the things that would achieve that parity and one of

12     the things that would alleviate the uncertainty of urban combat would be

13     if there are no enemy troops in the town to actually fight with, right?

14        A.   No, because the enemy has manoeuvre capability.  Listen, if I'm

15     the enemy and I anticipate that your main effort is going to be outside

16     of the city, then in my intelligence estimate, driven by my intelligence,

17     I prepare for that.  If suddenly I realise that I've been duped, that

18     your main effort is focused somewhere else, I either have to concede the

19     objective you're seeking, or I have to re-disposition my forces through

20     fires and manoeuvres to respond to your threat.  So I mean even if he

21     knew there was a limited ground defence capability in the city, that

22     didn't mean ipso facto he would have to assume the enemy was incapable of

23     defending the city.

24        Q.   Now, the -- this is what I'm attempting to demonstrate about the

25     way you're answering my questions, Professor.  I asked you to assume --

Page 21447

 1             MR. KEHOE:  Excuse me, Mr. President, and I would just object to

 2     the form of that question.

 3             JUDGE ORIE:  Mr. Russo, would you re-start the question --

 4             MR. RUSSO:  Well, Mr. President, it's a bit difficult for me to

 5     get the witness to understand my question when he doesn't understand what

 6     I'm attempting to point out.

 7             JUDGE ORIE:  Well, I didn't get that impression yet, but let's

 8     just look at your -- you can ask the witness to focus his answers on your

 9     questions, but demonstrating to the witness the way in which he's

10     answering the question, that is what you announced you would do, is not

11     the best way to proceed.  I -- perhaps you put your next question to the

12     witness.  I'll keep a close eye on it as well.

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

14        Q.   Professor, I asked you to assume that there were no troops in the

15     town to fight.  Your answer moved into a suggestion that troops would or

16     could enter the town to fight and then that would be a reason not to

17     consider the ground assault.  Unless I'm mistaken, I thought your answer

18     was suggesting that even if there were no troops in Knin to defend the

19     town, that General Gotovina couldn't count on that because there's the

20     possibility that troops might turn around and run back into the city to

21     start defending it.  Is that --

22        A.   You asked me if the absence -- you said one thing that would

23     create that parity for certain is if there were no troops in the town.

24     And my response was I don't think that automatically produces that parity

25     because there are other -- this is METT-T-C.  And, Mr. Russo, I'm not

Page 21448

 1     trying to be he evasive.  I'm just -- I have to think of this the way

 2     I've been taught to think.  This is METT-T-C.  He has to consider first,

 3     what is the mission he needs to achieve?  What is the enemy situation?

 4     You've given me one aspect of enemy disposition, an absence of a robust

 5     or effective ground defensive capability in the city, but that's not the

 6     entire enemy disposition.  Enemy disposition includes other troops in the

 7     area, troops that can potentially reinforce, troops that can threaten his

 8     flanks in order to relieve pressure on the city.  And it includes the

 9     potential that once he puts troops into that city, he's putting them in a

10     potentially vulnerable situation where they can be surrounded.  So the

11     question was, Does it create parity?

12             I think I said this previously.  If you give me an assumption

13     that says the town is undefended, meaningfully, right, there might be

14     some straggler troops there or in a -- combat ineffective forces, the

15     town is undefended, the enemy is not capable of manoeuvring

16     reinforcements to defend the town, the enemy is not capable of

17     manoeuvring to counter-attack, and the enemy is not capable of

18     manoeuvring to threaten other areas of his effort, the friendly effort,

19     to relieve pressure on that town, then once you put all that together you

20     would say it's essentially, you know, a piece of low-hanging fruit that

21     can just be plucked and why not take it.  So in that regard, if you add

22     all those other assumptions, I would agree with you.

23        Q.   Well, Professor, again, I'm not schooled in the same use of

24     military terminology as you are, but when you say the town is

25     meaningfully undefended from within, that's one piece of information.

Page 21449

 1     The remainder of the things you mentioned, that the enemy is not capable

 2     of manoeuvring reinforcements to defend the town.  I take it, you know,

 3     absent every troop, every soldier's legs being cut off, everybody is

 4     capable of moving in a direction to attempt to defend the town.  The real

 5     question there is what their capability is of getting from where they are

 6     to where your troops are going to be positioned in a meaningful way to

 7     actually put up a fight; right?

 8        A.   Mm-hmm.

 9        Q.   And in terms of --

10        A.   And by the way, that there may be situations where you might want

11     to use that as bait to get them to get out and manoeuvre, that could be

12     another variable, where you hope that they respond because then they'll

13     put themselves in a more vulnerable position for your attack.  I mean,

14     there are just so many elements involved in this assessment.

15        Q.   The other considerations that you mentioned all deal with the

16     capability of the enemy to counter-attack or to essentially put pressure

17     on the forces that you've -- are attempting to put into the town you're

18     trying to take; right?

19        A.   With one qualifier, the anticipated capability.  This is --

20     you're trying to predict in order to determine whether this is a viable

21     alternate method of achieving your effect of disabling, for example,

22     enemy command and control and communications, you have to make an

23     assessment.  So it's not the actual capability.  For example, the -- in

24     fact, the JNA may never have had the slightest intent to intervene in

25     this fight, but what's important, in my view, is what the general --

Page 21450

 1     General Gotovina anticipated or reasonably believed might be that threat.

 2     So I think that -- with that qualifier, then yes.

 3        Q.   And General Gotovina's anticipation or reasonable assessment in

 4     that regard has to be based on his intelligence that he receives, but

 5     also has to be based on an honest effort to collect that intelligence;

 6     right?

 7        A.   Yes, yes, plus one more.  Okay.  The one more is, this was --

 8     this is what tactical intelligence is.  It's putting yourself in the head

 9     of your enemy and trying to anticipate how he would respond to your

10     course of action.  So part of this predictive process is knowing the

11     enemy's, kind of, doctrinal view of a battle, what's important, what he

12     would defend, and that influences your assessment of what you can expect

13     if you conduct any attack, any military operation.  So there's a --

14     there's kind of a chess game element to it, if you will, and that's the

15     intelligence component.  It's not just gathering information, it's using

16     that information, and information is not intelligence.  Intelligence is

17     the analysis of information combined with other elements of your

18     knowledge of your enemy, what he's going to do, what's important, his

19     past practices, et cetera, et cetera.

20        Q.   Professor, in answering question 12 in your expert report, this

21     is at page 21, this is regarding whether a commander should attempt to

22     avoid fighting in a built-up area or FIBUA, as you call it.  You state:

23             "If alternatives to ground assault are viable, a commander would

24     be derelict in not considering and ultimately employing them.  For

25     example, a commander may choose to use indirect fire assets to disrupt

Page 21451

 1     enemy forces in a built-up area during bypass operations or to fix them

 2     in an area so that they cannot endanger friendly forces during the

 3     bypass."

 4             Now, Professor, if General Gotovina's objective and his intent

 5     was to take physical control of the town of Knin, not to bypass it, then

 6     absent an anticipated or orchestrated withdrawal of the enemy troops that

 7     he believes are in the city, one way or another he's going to have to

 8     FIBUA them to get them out of the town; right?

 9        A.   No.

10        Q.   Okay.  Are you saying that using artillery is the way he should

11     anticipate getting them out of the town?

12        A.   No.

13        Q.   Then --

14        A.   I -- you know, I'll give you a historical example --

15        Q.   How about instead of a historical example --

16        A.   Okay, I'll give you this example --

17             MR. KEHOE:  Excuse me, Mr. President, the question was asked of

18     the witness:  Are you saying that using artillery is the way he should

19     anticipate getting them out?  And then the witness said no, and I believe

20     that he was attempting to explain.

21             JUDGE ORIE:  Well, he was going to give a historical example.  If

22     Mr. Russo would prefer to have it explained without examples, he can ask

23     that.

24             Whether that's very wise, Mr. Russo, is another matter.

25     Sometimes examples are better to be understood, but the witness certainly

Page 21452

 1     makes plain his answer.

 2             THE WITNESS:  The strategic objective is the liberation of a

 3     city, a capital.  Liberation can occur by destroying enemy forces in that

 4     capital and physically occupying it, but it also can occur by the forces

 5     in that capital, as you say, either withdrawing or capitulating.  And,

 6     actually, capitulation is the ideal outcome for enemy forces in an urban

 7     area.  That's why bypass is a preferred tactic.  The idea is that you

 8     bypass the city so that you can isolate it, and then the enemy forces

 9     within the city see the futility of continued resistance and capitulate.

10     The civilian population gets protected -- gets greater protection because

11     you don't have to engage in an urban battle, and you achieve your

12     strategic goal.  The historical example, I mean, there are many of them,

13     but -- and that's exactly what General Eisenhower intended to do with

14     Paris in 1944 in August; he did not want to go into the city and fight.

15     And in many ways the allies were quite fortunate in the outcome because

16     there as a German general who chose to capitulate when he didn't

17     necessarily have to.  But General Eisenhower's preference was, I'll

18     bypass it, and ultimately it will capitulate.  He definitely wanted to

19     liberate Paris; there's no question about that.

20             MR. RUSSO:

21        Q.   Professor, you're aware that General Gotovina's subordinate

22     units, the 4th and the 7th Guards Brigade were ordered to take the town

23     of Knin?

24        A.   They were ordered to occupy the town of Knin after the first day

25     of battle based on the assumptions and facts I was given.  In the morning

Page 21453

 1     of the second day, they entered the city from two different directions,

 2     but by that time, again based on the facts and assumptions provided, the

 3     general was aware that there was a general withdrawal or retreat of Serb

 4     forces from Knin.  So in a sense, okay, he didn't surround it, forcing a

 5     capitulation, he left -- whether he left it at his own choice, or it was

 6     just a tactical inevitability, there was an egress route, the enemy

 7     availed themselves of it, and he puts troops in to the city.  It's a

 8     common tactic.

 9        Q.   Well, they were ordered to occupy the town at a time when

10     General Gotovina, at least according to the facts you were given, still

11     believed that there were enemy troops in the town.  I mean,

12     General Gotovina didn't wait until the enemy troops left and then issue

13     the order to take the town; right?

14        A.   No, it was the progression of the second day's battle.  The enemy

15     forces had been defeated; the enemy was withdrawing, and his forces were

16     in pursuit of a withdrawing enemy.

17        Q.   Let me just ask you this:  According to what you were told, were

18     there enemy troops in Knin on the 5th of August?

19        A.   There were enemy troops that had withdrawn towards Knin.  I think

20     that was in the assumption or one of the facts.  But as I recall -- I

21     mean, I could refer back to it, by 10.00 on the morning of the second day

22     of battle, the enemy's will had been broken, essentially, his capability

23     had been defeated, and there was a general withdrawal, and the two

24     brigades of the professional brigades under the general's command were

25     ordered to enter the city.  I don't recall specifically if there was --

Page 21454

 1     I'll say this:  My assumption writing it was by that point the general

 2     did not anticipate significant urban warfare in the city.

 3        Q.   Well, based on the facts and assumptions provided to you, there's

 4     no information about when General Gotovina gave the order to his troops

 5     to occupy the town relative to a withdrawal of troops from the town

 6     itself, so I'm trying to understand what you were thinking when you

 7     assessed the reasonableness of the shelling that occurred on the 5th of

 8     August.  How many troops did --

 9        A.   Oh, I can answer that.  The assumptions indicated that after the

10     first night's tactical success, the enemy or General Gotovina was aware

11     that the enemy command had ordered a shortening of the lines, which is a

12     common practice when you're conducting a defence, you move from your

13     initial defensive positions to your secondary defensive positions, and

14     that the -- there was another -- the surge of artillery occurred, again

15     at the point in time in the morning that was synchronised with the Croat

16     forces launching the second day's offensive against the secondary

17     defensive positions, which collapsed much more rapidly than the

18     general -- or that the Croats anticipated.  But the use of artillery on

19     that second morning, according to my opinion, was consistent with the

20     synchronised use of the artillery the first morning, which is a

21     synchronised effort to disrupt the enemy's ability to manage and see the

22     battle-field when the general's forces are launching their main effort

23     against the secondary defensive positions.

24             JUDGE ORIE:  I try to understand whether there's some

25     mal-communication.

Page 21455

 1             I got the impression, Mr. Russo, but please correct me if I'm

 2     wrong, that you wanted to know what was known to General Gotovina when he

 3     started on the 5th -- is that --

 4             MR. RUSSO:  A bit more specifically, Your Honour.  I wanted to

 5     know what the witness believes was the case inside the town of Knin on

 6     the 5th of August when the shelling began on the morning of the 5th.

 7             JUDGE ORIE:  The morning of the 5th?

 8             MR. RUSSO:  Yes.

 9             JUDGE ORIE:  Yes.

10             THE WITNESS:  That's the second day of the battle; correct?

11     Right.  And I think the addendum makes -- I think in the addendum, if I

12     don't make it clear, I apologise - the morning of the 5th the enemy still

13     possessed command, control, communications, intelligence, logistics, and

14     movement routes in the city, the same essential military objectives that

15     existed on the first morning of the battle; and on the second morning,

16     the jump-off time was the same as the first, 5.00 a.m., his -- the

17     general's forces were going into close combat once again against the

18     second-line defences of the Serbs.  And there's an artillery barrage

19     that's synchronised to support that effort.  That was my assumption on

20     the use of artillery on the second morning of the fight.

21             MR. RUSSO:

22        Q.   Well, that's the concern I have, because looking at the facts and

23     assumptions you were provided with, there is no information about what

24     is -- what remains in Knin on the 5th of August.  Specifically you were

25     told to assume that the artillery attack on the 5th of August began at

Page 21456

 1     5.20 in the morning.  You had also been told to assume that prior to that

 2     on the day prior to that and on the night prior to that, the 7th Krajina

 3     Corps had been ordered to withdraw and that the command of the ARSK had

 4     also been ordered -- relocated from Knin to rear command posts.  So

 5     7th Krajina Corps is not there.  The commands of the ARSK are ordered to

 6     move out of Knin.  So at least those two things are not the same as they

 7     were on the 4th of August.  So, again, there's no specific information,

 8     unless you can point me to the facts and assumptions you're talking

 9     about, no specific information given to you about what remains in the

10     town of Knin at 5.20 a.m. on the 5th of August.

11        A.   Well, first off, an order to displace doesn't mean there's

12     nothing there --

13             JUDGE ORIE:  Let's try to focus on -- Mr. Russo would like to

14     know where to find exactly in the facts, assumed facts, given to you

15     where he can find the information you have considered in your previous

16     answer.  That's --

17             THE WITNESS:  It's in the letter that was sent to me by Defence

18     counsel, Mr. Cronin, signed by Mr. Cronin, I believe.

19             JUDGE ORIE:  Let's just have a look.

20             THE WITNESS:  And it's the May 19th letter.  It's 1D2772 in my

21     materials, Your Honour.

22             JUDGE ORIE:  I'll just try to find it.  Could we have it on the

23     screen in one way or another.

24             MR. KEHOE:  It's in evidence, Mr. President.

25             JUDGE ORIE:  Yes, and that's --

Page 21457

 1             MR. RUSSO:  I think it's D1642, MFI, I think.

 2             MR. KEHOE:  I think that's 1642 in evidence.  Is it still --

 3     MFI --

 4             JUDGE ORIE:  If it's D1642, then that is enough to get it on the

 5     screen.

 6             Okay.  That's the May 19th letter, page?

 7             THE WITNESS:  Six, Your Honour.

 8             JUDGE ORIE:  Page 6.

 9             THE WITNESS:  No, that's not right.

10             JUDGE ORIE:  Could it be page 7?

11             THE WITNESS:  No, I think that what's on the screen, Your Honour,

12     is the -- is my initial report.

13             JUDGE ORIE:  Yes.

14             THE WITNESS:  I'm referring to the letter dated May 19th from

15     Greenberg Traurig.

16             JUDGE ORIE:  I've got a hard copy in front of me.

17             THE WITNESS:  It's under the subheading:  Assumed facts regarding

18     the conduct of Storm.

19             JUDGE ORIE:  Yes, and could you guide us to --

20             MR. KEHOE:  It's at page 36 in e-court, Mr. President.

21             JUDGE ORIE:  Could you guide us to specific paragraphs.

22             THE WITNESS:  Yes, Your Honour, at paragraph 5 there's the

23     assumption or the facts relating to the breach of the initial enemy

24     defensive line --

25             JUDGE ORIE:  On the Dinara mountains, yes.

Page 21458

 1             THE WITNESS:  And then at 6 it says:

 2             "At 1645 Milan Martic signed an evacuation order for the civilian

 3     population from Knin and surrounding municipalities.  And HV forces

 4     subsequently observed civilian withdrawal.  At approximately the same

 5     time" - now I'm on paragraph 7 - "General Mrksic issued an order for the

 6     withdrawal of the 7th Krajina Corps and the creation of a shorter second

 7     line of defence in its rear, a decisive defence of Knin, and the

 8     relocation of the ARSK headquarters and ARSK 7th headquarters to a rear

 9     location."

10             So my understanding from this is that Knin hadn't been abandoned.

11     It was still to be defended.  There was an order for a relocation of

12     headquarters.  But an order to displace a headquarters doesn't

13     automatically produce the displacement of the headquarters.  It's a

14     complex process; it takes a certain amount of time.  As a matter of fact,

15     it's one of the most complicated endeavours that a military command does

16     because of the disruption of operations.  So if even with my knowledge

17     that General Gotovina had information indicating that the enemy was

18     trying to withdraw or relocate its C3I capability, that process is

19     ongoing.

20             Now, this is in the afternoon or evening of the 4th, and he's

21     launching his attack on the 5th.  I think that it would have been a

22     dangerous assumption on his part that the C3I function in Knin was

23     totally absent when he launches the second day's offensive operations.

24     Again, this is the notion of -- you know, the anticipation that is

25     produced by intelligence.

Page 21459

 1             JUDGE ORIE:  Yes.  May I take it that in paragraph 7 you are

 2     interpreting this as making a difference in the town of Knin?

 3             THE WITNESS:  Yes, Your Honour.

 4             JUDGE ORIE:  Yes.  So what you say is what happened here moved

 5     forces or out of town?

 6             THE WITNESS:  Well, there was a -- there was a tightening of the

 7     defensive perimeter outside of the town, a restoration or a

 8     re-establishment of the defensive line, and there was a directive to

 9     dis -- to move the command, control, and communications capability to a

10     rear area.  But obviously in my opinion, maybe I wasn't clear enough on

11     why I didn't equate that automatically with a commander concluding at

12     5.00 the next morning that there's no command and control in the town.

13     Their ability to displace is going to be dictated by the battle

14     condition.  It's going to be dictated by how many vehicles they have

15     available.  It's going to be dictated by how many forces they have

16     available.  Have they established a rear CP that can be turned on like

17     that, or is this something that they have to set up?  Do you send an

18     advance party to set up the rear CP at night?  All of this is happening

19     in hours of darkness, while you're under attack, while you're trying to

20     manage the close fight and re-establish defensive positions.  So I think

21     at -- my assumption, and that's what it was, Mr. Russo, was that at 5.00

22     the next morning the operational commander makes a judgement that there

23     is still a C3I capability, even if it's a residual C3I capability, in

24     those buildings that housed those enemy headquarters.

25             JUDGE ORIE:  Mr. Russo, the issue was whether the factual

Page 21460

 1     assumptions on which the witness based his answer earlier, whether they

 2     could be found in the facts given to him.  Is there still something

 3     missing for you, then you could specifically ask for that.

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

 5        Q.   Professor, I want to be -- I want to go through these one by one

 6     because, correct me if I'm wrong, you're interpreting the information

 7     you've been given in paragraphs 6 and 7, and then you're making

 8     assumptions based on that information -- you're making assumptions about

 9     facts which were not provided to you.  For example, at approximately the

10     same time as the civilian evacuation is ordered, General Mrksic issues an

11     order for the withdrawal of the ARSK 7th Krajina Corps.

12             Now, you don't know, first of all, whether that order was in fact

13     carried out; right?

14        A.   No.

15        Q.   Okay.  You don't know how many of the troops in the 7th Krajina

16     Corps remained in the area of Knin; right?

17        A.   Well, now, it said -- the -- the one I'm reading says the general

18     issued an order for the withdrawal of the ARSK 7th Krajina Corps and the

19     creation of a shorter second line of defence in its rear.  A decisive

20     defence of Knin.  So I read them collectively.  In other words, I

21     understood that to mean General -- excuse me, if I'm mispronouncing

22     it - Mrksic orders his tactical forces to pull back from the defensive

23     positions that have been breached, re-establish a shorter defensive line

24     for the purpose of a decisive defence of Knin.  So I -- I did not assume

25     that that meant they were fleeing the area altogether because I couldn't

Page 21461

 1     see how that would be consistent with the defence of Knin.

 2        Q.   Well, the creation of a shorter second line of defence, first of

 3     all, you don't know where that second line of defence was ordered to be

 4     created; right?

 5        A.   Well, I can extrapolate from the fact that the friendly forces

 6     launched their second day's attack into that second line of defence, that

 7     it was somewhere between the first line and Knin.  That's -- yes, that's

 8     an assumption I made.

 9        Q.   So if in fact that second line of defence and the decisive

10     defence of Knin was in fact set up not between the HV forces and Knin but

11     in fact behind Knin itself and out of the town, then that would change

12     the conclusions that you made based on the information in this paragraph;

13     right?

14        A.   I mean, you're asking me to -- a question that's based on an

15     interpretation of that paragraph that is detached from the other facts

16     and assumptions.  There was -- here's what I was told:  On the second

17     morning there was a deliberate attack against the re-established enemy

18     defensive positions that were manned by forces subordinate to the

19     headquarters that had been established -- long established and well

20     established in Knin up to the night before or the afternoon before.  So

21     if they were in -- I'm not -- I'm not sure I understand -- and it --

22     maybe you could rephrase for me.

23        Q.   Sure.  You're assuming that the second line of defence, the

24     shorter second line of defence is somewhere between the advancing HV

25     forces and the town of Knin; right?

Page 21462

 1        A.   I'm assuming that the second line of defence is an impediment to

 2     the HV forces capturing Knin; that's correct.

 3        Q.   Well, capturing is different than entering --

 4             JUDGE ORIE:  That's -- I have to object.

 5             Mr. Russo phrases his question in a certain way, and then you say

 6     you do agree and you say something else.  And that might not be a --

 7     because that -- Mr. Russo is suggesting to you that -- Mr. Russo is more

 8     or less telling you that apparently you assumed that the second line of

 9     defence would be between the Croatian forces that are moving forwards and

10     the city of Knin.

11             THE WITNESS:  I think that's a fair assumption I made,

12     Your Honour, yes.

13             JUDGE ORIE:  Yes.

14             Mr. Russo.

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

16        Q.   I understand the assumption, Professor, and I'm certainly not

17     faulting you for it.  I'm just asking you that if, in fact, that's not

18     the case, if, in fact, that second line of defence was behind Knin, in

19     the hills above the town but behind it, that would change the conclusions

20     that you drew based on your belief that that second line was, as you say,

21     an impediment to the advancing HV forces; right?

22        A.   I think in the abstract I would agree with you, with knowing

23     nothing else, right, that the -- that -- and the picture you're painting

24     is that the HV forces have an operational picture, an intelligence

25     picture, that looks like the enemy is in flight and has abandoned the

Page 21463

 1     city -- let me just finish the thought.  I just want to make it clear

 2     that if defeat of the enemy ground tactical capability is the priority of

 3     effort, I would not automatically conclude that just because they set up

 4     a defensive position not necessarily on one side of the city but on

 5     another, that that would radically change the assessment.  It would

 6     depend on the task that was given to the Croatian ground tactical forces

 7     that were in pursuit of that enemy.

 8        Q.   Well, the decisive defence of Knin, what exactly did you

 9     understand that to mean?

10        A.   Well, what I understood that to mean was that the military

11     commander was telling his forces:  You've suffered a tactical setback.

12     Pull back, re-establish your defensive positions, because we're going to

13     continue to fight to deprive the Croat forces of an ability to get into

14     the city.

15        Q.   And again, your assumption of that is based on the idea that the

16     ARSK forces are standing between the advancing HV forces and the town of

17     Knin; right?  Not that they're outside of the town, behind it, defending

18     in some other fashion; correct?

19        A.   My assumption is that that's what General Gotovina reasonably

20     would have perceived that night.

21        Q.   Now, the relocation of the ARSK HQ and the ARSK 7th Corps

22     headquarters, the relocation of those two outside of Knin to a rear

23     location, you indicate that just because that was ordered doesn't

24     necessarily mean that General Gotovina could count on the fact that it

25     was followed through.  I'm not sure I understood what you were suggesting

Page 21464

 1     with that.

 2        A.   Well, first off, in response to your question you said "the

 3     relocation."  This doesn't -- didn't give me a fact that there was a

 4     relocation.  This gave me a fact that there was an order for relocation.

 5     And my point is that -- again, I'll just -- well, my point is that I

 6     think that a reasonable commander in General Gotovina's situation would

 7     have to anticipate that even if that order had been issued at that time,

 8     under those circumstances, that the displacement of that command and

 9     control capability might not have concluded, it might not have even

10     commenced, or it might have commenced in a very modest series of actions

11     by the enemy.  So my only point is -- you are asked me how that

12     influenced my assessment of that morning's barrage, and my point is I did

13     not interpret that to mean that General Gotovina knew or should have

14     known or reasonable would have known that the C3I targets that he was

15     engaging in the first morning had been totally displaced.

16             JUDGE ORIE:  Could I again try to see whether I understand it in

17     every-man's language.  A reasonable commander, not having detailed

18     information about whether an order to relocate was executed, could not

19     ignore the possibility that it was not or not entirely execute?

20             THE WITNESS:  Yes, Your Honour, with the additional knowledge

21     that that reasonable commander would possess on how difficult a task that

22     is to do in peacetime training, much less in the heat of combat --

23             JUDGE ORIE:  Yes, of course, he would consider everything he knew

24     in assessing if he did not know what was done, he would, of course, in

25     not ignoring the possibility, he would include all his experience in

Page 21465

 1     making an assessment of the likelihood of this order already to be

 2     executed in whole or in part?

 3             THE WITNESS:  Exactly, Your Honour.

 4             JUDGE ORIE:  Yes.

 5             Let's try to keep matters, of which we are all aware that they

 6     are complicated, let's try to keep them relatively simple without losing

 7     the gist of what the witness can tell us and what you would like to hear

 8     from him.

 9             Mr. Russo, please proceed.  You have six more minutes until the

10     break.

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

12        Q.   Well, does it work the other way around, Professor?  You say if

13     General Gotovina becomes aware of an order to relocate the ARSK HQ, he

14     can't rely 100 per cent on the fact that that order was wholly carried

15     out.  Does it work the other way around?  If General Gotovina finds out

16     about an order for shortening of the second line of defence or an order

17     for decisive defence of Knin, does he likewise have to anticipate and act

18     on the assumption that those orders have not been fully carried out?

19        A.   I think any time you intercept an enemy's purported order, if you

20     rely on it absolutely with no -- no other information, you're assuming

21     substantial risk.  Now, you may be able to get more information and you

22     may not.  The order is information.  Intelligence is analysed information

23     with an outcome, and intelligence is what drives the commander's

24     decision-making process.  So in the hypothetical you give, if he hears

25     that there's an order to withdraw the lines, in the morning or that

Page 21466

 1     night, if those tactical commanders on the other side of these purported

 2     lines that are withdrawing are not doing reconnaissance to try and assess

 3     as best they can whether the facts on the ground corroborate that, then

 4     they're assuming risk.  Now, their ability to do reconnaissance is

 5     dictated by METT-T-C, and if they have no ability to get better

 6     information, they might -- the commander might have to act on that.

 7     So -- and another factor that would be -- enter this equation is even if

 8     the general assumes that this is an actual order, it's not deception,

 9     it's not trying to distort his perception of the battle-field, and that

10     it's being executed, he has to consider whether that creates an

11     additional vulnerability to the enemy's C3I capability because they got

12     to move.  And movement, it means exposure.  So that's another element

13     that would go into it.

14        Q.   Thank you, Professor.

15             MR. RUSSO:  Mr. President, this is probably a good time in my

16     examination for a break.

17             JUDGE ORIE:  Yes.  Could we also have an estimate on whether you

18     are -- whether you are proceeding in accordance with what you expected so

19     that we have a better view on how long we'll further hear the testimony

20     of Professor Corn.

21             MR. RUSSO:  Mr. President, to be honest, I'm certainly not

22     proceeding at the pace that I had originally anticipated to proceed.  I

23     think I will be in better position at the end of today to take another

24     look at what remains in my examination and give the Court an idea of how

25     much time I'll need on Friday or if I'll need additional time.

Page 21467

 1             JUDGE ORIE:  Yes.  Could you also think about how to finish

 2     within the time -- within the original estimate of time you gave.

 3             We will have a break, and we will resume at ten minutes past

 4     4.00.

 5                           --- Recess taken at 3.42 p.m.

 6                           --- On resuming at 4.16 p.m.

 7             JUDGE ORIE:  Before we continue, Mr. Russo, I'd like to -- the

 8     parties to listen to a small story.

 9             I'm a medical doctor.  It is weekend.  I've got three children.

10     I'm on duty that weekend.  The weather is nice, but there usually is a

11     risk of rain in the Netherlands.  And my question is now:  Should I go to

12     the beach with my children?  One would say that's what children like, the

13     weather is nice, et cetera.  There a lot of reasons to go.  There are,

14     however, also quite some reasons not to go.  Obvious, I'm on duty, could

15     I be reached on the beach?  What to do with the children, if I have to go

16     to a hospital, perform my duties?  This is a situation which requires

17     careful consideration of all the elements.

18             You can go on with that forever.  What if my mobile phone is very

19     sensitive for sand, would that be a consideration not to go to the beach

20     when I'm on duty?  Yes.  But if you would find another mobile phone, less

21     sensitive with sand, would that go in the other direction?  It might, but

22     if you would keep this phone -- well, you could still consider to put it

23     in a plastic bag and only open it if you're called, which diminishes the

24     sensitivity for sand.  You could do similar things with the children.

25     What if they're half in the water and I miss my call?

Page 21468

 1             With this small story I'm trying to explain to the parties - and

 2     Professor Corn is listening - that there are situations which are

 3     complex, especially complex if you have to make decisions, and that you

 4     could finally go in all details.  And once you're at the most detailed

 5     level, you could easily find another detail because I've been talking

 6     about the mobile phone, only about sensitivity for sand and plastic bags,

 7     but of course you could invent a lot of other things that could either

 8     push in one direction or in the other direction.

 9             The Chamber is not assisted by seeking further details into

10     eternity, especially if to some extent the facts of the story are

11     uncertain because it would give an ample opportunity to introduce the

12     specific weather forecast for that day.  We do not know exactly, but if

13     the weather forecast not known to the family would be this, what would be

14     the result?  What if the overall development of sunshine on the beach in

15     Scheveningen would have slightly changed over the last few years, would

16     that be another element?  Of course this Chamber wants to consider all

17     the relevant aspects of the decision-making processes of the accused, the

18     subordinates.  At the same time, the Chamber considers that somewhere we

19     have to stop seeking further details where the details, whether at least

20     there's uncertainty about whether these details are already established

21     or could be established.

22             Do you have any questions in relation to this small family story?

23     Do you understand the message, Mr. Russo?

24             But I'm also looking at you, Mr. Corn.

25             And I'm also looking at the Gotovina Defence.

Page 21469

 1             Any questions in relation to this small family story, whether it

 2     will be a tragedy raining on the beach, the father called to the

 3     hospital, or sunshine and no patients that day.

 4             MR. RUSSO:  Mr. President, I believe I understand the point of

 5     the Court's story, and I have to be honest, it presents a bit of a

 6     problem for the Prosecution's ability to challenge the evidence of the

 7     witness.  Obviously the original scenario that the Court set up about how

 8     many children you have, the fact that you're a doctor, it -- let me just

 9     put it bluntly.  The witness has been given a set of facts obviously

10     which the Prosecution disputes, and he's reached an opinion based on

11     those facts and assumptions.  Now, if that were simply the case, if

12     Professor Corn had showed up here without the supplemental information

13     sheet, indicating that he had considered the laundry list of documents in

14     paragraph 12 which include the critical documents in this case, I would

15     have had about four questions for him on cross-examination.

16             The fact that he now indicates that he's considered the critical

17     documents, although not addressing them specifically, he's now

18     incorporated those into his conclusions, and I have to now challenge all

19     of the evidence or at least most of it, as much as I can, in light of the

20     assumptions that we think he should have considered based on the

21     documentation that he says he reviewed.  But if it will not assist the

22     Chamber for me to go through the targets, as was my intention, to change

23     the factual situation or assumptions with respect to each of the alleged

24     military objectives in Knin, if that won't assist the Chamber, then I

25     won't bother with that exercise.

Page 21470

 1             JUDGE ORIE:  Of course the Chamber didn't know that you had that

 2     in mind.  Most important is for the Chamber to understand the testimony

 3     of Professor Corn, where the limits are as to his knowledge of the

 4     factual situation.  And I think that we have established several times

 5     that it often depends on further detailed knowledge about the situation

 6     on the ground, about the knowledge of the accused -- the accused had at

 7     the time.  And what then often happens is that we went to freely further

 8     explore what -- on the basis of assumptions what we do not actually know

 9     and to see what the consequences of such new elements would be.  I'm not

10     saying that you should just ignore the targets.  What I'm saying is that

11     there should be put limits to further exploring in depth where apparently

12     the answers to some new assumptions may be clear or not clear or lead to

13     other assumptions, that there should be some limits to that.  Because at

14     a certain moment the statistics on how many mobile phones had broken down

15     due to sandy circumstances, not only on beaches but also in deserts and

16     to what extent that would influence the outcome, is not assisting the

17     Chamber.

18             Please proceed.

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

20        Q.   Professor, in reference to the language of General Gotovina's

21     offensive operation order that we discussed on Tuesday, specifically the

22     language about putting the town of Knin under artillery fire, you

23     stated - and this is at transcript page 21274, lines 11 to 15 - you

24     stated:

25             "I also told the Judge that looking at this document in and of

Page 21471

 1     itself, I think that it is inconclusive which interpretation is --

 2     whether one interpretation is so clear that it rules out, as a fair and

 3     rational alternative, the other interpretation.  I think that -- that you

 4     could draw a logical inference that either interpretation is

 5     appropriate."

 6             I then later asked what your interpretation of the language was

 7     based on and all of -- what your interpretation was based on all the

 8     interpretation you had.  You indicated that your interpretation was that

 9     the language was not a directive to engage in an indiscriminate attack

10     against Knin, and you gave several bases for your interpretation.  And

11     I'd like to review a few of those.  Specifically you gave the following

12     bases.

13             "The information he was provided by the president, the emphasis

14     on professional operations, his background as a professional soldier and

15     non-commissioned officer in one of the most professional organisations in

16     the world."

17             Now, given that you've indicated that the language could

18     reasonably interpreted one way or the other, what matters, you would

19     agree, is how it is, in fact, interpreted by the subordinates who read

20     the order; correct?

21        A.   In my original report I noted a principle of international

22     humanitarian law that I think is an accurate statement of that principle,

23     which is that -- I believe it came from the high command opinion, the

24     high command case, a superior commanding officer can justifiably expect

25     that subordinates will execute his orders, consistent with their

Page 21472

 1     obligations under the law.  So I -- I don't agree with you that how it

 2     was interpreted is the ultimate issue.  I believe that it is evidence as

 3     to whether or not he intended to engage in an indiscriminate attack.  As

 4     I noted for the Chamber, the language is not ideal by any means.  I think

 5     it certainly raises a concern, but you asked my opinion as to what my

 6     interpretation of it was, and I gave you my opinion based on other

 7     factors that I considered, and I -- if I didn't at that time, I do now

 8     candidly and readily acknowledge that ultimately the interpretation of

 9     the Chamber of what the significance of that language is as evidence of

10     the defendant's state of mind is the controlling interpretation in this

11     case, not mine.

12             So, no, I don't believe it's how it was interpreted by

13     subordinates.  I don't think that is the only or the decisive question

14     that relates to whether or not the defendant is criminally responsible.

15             JUDGE ORIE:  Yes, you have introduced now in your last sentence

16     of your answer that you were dealing with the matter from a point of view

17     of criminal responsibility.

18             THE WITNESS:  Yes, Your Honour.

19             JUDGE ORIE:  That was not even part of the question.

20             Mr. Russo, you asked:  Does this or does that matter?  It depends

21     on what you're looking at.  If you want to look at whether finally

22     behaviour occurred which was in violation of international humanitarian

23     law, then of course it's very important to know what happened with an

24     order, what did they do, what behaviour we find.  If we are trying to

25     establish intent, then of course it might not be the decisive matter.  It

Page 21473

 1     is a -- in your question you say, This is what matters, depends on what

 2     question is before you.  If you are talking about operational -- how the

 3     operation proceeded, then of course it's very important to know what

 4     happened, and that may be contrary to what the person intended to do.

 5             So here again you put a question without giving the proper

 6     context of what would matter or what would not matter.

 7             Please proceed.

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

 9        Q.   The part of your report that you referred to in your answer,

10     Professor Corn, specifically what you said was that commanders are

11     generally justified in relying on a presumption that subordinates will

12     execute lawful orders in a lawful manner ..."

13             Now, what you indicated, as I read at transcript page 21274,

14     lines 11 to 15, was that looking at the document in and of itself, it

15     could admit of one interpretation which is illegal and one which is

16     legal.  Now, given what you said, that commanders are generally justified

17     in relying on a presumption that subordinates will execute lawful orders,

18     what I'm suggesting to you is if the subordinates read the order and they

19     don't read it as you read it and they read it in terms of my

20     interpretation, that it is an unlawful order, then you would agree that

21     it's General Gotovina who's responsible for indicating to them what the

22     proper interpretation of that should be.  It's his fault, isn't it, if

23     they interpret it as the illegal order; correct?

24        A.   I think in the abstract the answer is yes, but I think you would

25     have to look at all the facts and circumstances related to the order and

Page 21474

 1     the planning for the execution.

 2        Q.   Thank you.  And in terms of the bases that you gave for

 3     interpreting it as a lawful order, the statements by President Tudjman at

 4     the Brioni meeting and General Gotovina's service in the French Foreign

 5     Legion, do you have any reason to believe that the subordinates who were

 6     reading General Gotovina's offensive operation order had any idea about

 7     his service in the French Foreign Legion or the statements made to him at

 8     the Brioni meeting?

 9        A.   I'm at a disadvantage obviously because I don't have the

10     transcript in front of me, but my recollection is fairly clear that those

11     -- if this was one point in time when we discussed it, I'm certain we

12     discussed this issue at other points in time.  And one of the points I

13     made was you have to look at it in the context of the other language in

14     the order itself, which talks about putting tactical targets under

15     attack.  And I remember you and I had an exchange on the fact that I

16     think the preceding paragraph talked about attacking command, control,

17     and communication.  And there's another line that says, Put the town of

18     Knin under attack.  And we had an exchange as to whether or not the

19     reference to command, control, and communication in the prior paragraph

20     essentially would have been redundant with place -- placing those same

21     targets under attack in Knin.  And I told you I didn't think that was

22     necessarily the interpretation because you have C3I capabilities related

23     to the close fight, the tactical fight, and the fight in depth.

24             So I only say this because I think in order to answer your

25     question I have to point out that I think there are other elements

Page 21475

 1     related to the interpretation that led to my opinion that there are

 2     alternate inferences you could draw from that.  If all there was was one

 3     line in one order that said put the town of Knin under attack - and,

 4     Your Honour, I'm not trying to go down that multiple make-up facts road

 5     that your story related to - but I would agree that if there was one line

 6     in one order and that's all there was, the fact that these subordinates

 7     didn't know his background couldn't influence their interpretation of

 8     that.

 9             JUDGE ORIE:  So what you're actually saying is, Chamber, don't

10     ignore the context which I pointed to and look at whether there's more

11     than just that one line?

12             THE WITNESS:  Yes, Your Honour.

13             JUDGE ORIE:  Mr. Russo.

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

15             JUDGE ORIE:  By the way, Mr. Russo, I've forgotten one thing.

16     When you earlier said I wanted to go through all the targets, I didn't

17     discourage you to do that.  Another way of approaching it is that

18     sometimes matters become clear by way of giving one or two or three

19     examples, or as you would explore one or two or three of these targets.

20     It could be that there would be an understanding of how this expert would

21     look at those facts.  Sometimes that sufficiently assists in

22     understanding his views on these kind of matters.  So that's an option

23     that's still open.

24             Please proceed.

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

Page 21476

 1        Q.   Now, Professor, given that you placed at least some emphasis on

 2     the statements that President Tudjman made to General Gotovina at the

 3     Brioni meeting in terms of interpreting General Gotovina's language in

 4     the operational order, I'd like to look at some other portions of that

 5     meeting and put my interpretations to you and see what you have to say

 6     about them.

 7             MR. RUSSO:  If we could please have P461, and if we could go to

 8     page 15 in the English and page 28 in the B/C/S.

 9        Q.   I'm looking at the paragraph that begins with "President" towards

10     the middle, a few sentences into that paragraph it begins:

11             "...  but I've said, and we've said it here, that they should be

12     given a way out here ... because it is important that those civilians set

13     out, and then the army will follow them, and when the columns set out,

14     they will have a psychological impact on each other."

15             Professor, didn't you consider this statement by

16     President Tudjman in the presence of General Gotovina to be significant

17     in terms of interpreting the order that General Gotovina gave to put the

18     towns of Knin, Dvar, Benkovac, Obrovac, and Gracac under artillery fire?

19        A.   Yes, but that wasn't his statement, his statement follows it,

20     where he notes as a fact that based on the operations that are already

21     ongoing, civilians are leaving, and he anticipates that they're going to

22     continue to leave.  So again -- I mean, you're trying to -- you're asking

23     me -- yes, I considered it and I considered it to be another -- I

24     considered it that there was a good probability that it was another

25     exchange that was similar to the other exchange about putting a pretext

Page 21477

 1     for attacking Knin and the general's response to that.

 2        Q.   And did you consider the alternate interpretation, that

 3     President Tudjman was, in fact, telling all of the military commanders

 4     present that it was important as part of the operation to get the Serb

 5     civilians out of Croatia?

 6        A.   I did, and I -- I mean, I have not studied in depth evidence

 7     related to President Tudjman or his conduct during this conflict or his

 8     objectives, but I -- I think I said in the -- in relation to the last

 9     portion of this transcript we looked at, that in my view you have an

10     operational commander sitting with his president confronting a president

11     who's pushing the envelope, so to speak.  And my sense is that the

12     operational commander throughout this transcript is pushing back,

13     basically saying, Let me do my job.  Let me fight the enemy and defeat

14     him.  So -- I mean, I don't see how you can read the president's

15     statement as anything other than an expression of his belief, that there

16     might be a military advantage that could be exploited as a result of the

17     civilians fleeing the area.  Now, even that leads to speculation as to

18     whether that is a reflection of his intent to use civilian terror as a

19     method of warfare, which would be clearly prohibited, or to take

20     advantage of the fact that civilians are fleeing and that might produce a

21     psychological effect on your enemy.  But I don't -- I guess my point is,

22     counsel, I didn't read the general's response as an endorsement of using

23     the civilian population as a method of warfare.

24        Q.   Let me first see if I can clarify the first part of your answer.

25     You do agree that one interpretation of President Tudjman's statements is

Page 21478

 1     that he did, in fact, want to use the civilian population as a means to

 2     affect the military, which you agree would be unlawful; correct?

 3        A.   I believe it would be unlawful if you used military means to

 4     force that effect on the civilians.  I don't believe it's unlawful to

 5     acknowledge that civilians fleeing a conflict area, which is a very

 6     common practice, is something that might produce an effect on the enemy

 7     forces.  Acknowledging that I don't think is unlawful.  Making an effort

 8     to cause that flight through terrorising the civilian population is

 9     clearly unlawful, and I think it could be interpreted either way.

10        Q.   Looking at General Gotovina's response:

11             "A large number of civilians are already evacuating Knin and

12     heading towards Banja Luka and Belgrade.  That means that if we continue

13     this pressure, probably for some time to come, there won't be too many

14     civilians just those who have to stay, who have no possibility of

15     leaving."

16             JUDGE ORIE:  I think it reads "so many civilians" instead of "too

17     many civilians."

18             MR. RUSSO:  My apology, Mr. President.

19        Q.   Now, Professor, isn't one interpretation of General Gotovina's

20     response here that he is, in fact, endorsing what President Tudjman says

21     and simply indicating that if they continue to pressure the civilians in

22     the RSK, as they're currently doing, that they will in fact leave, and

23     civilians will not be a concern?

24        A.   Well, I think you're assuming that the word "pressure" relates to

25     pressure being imposed on civilians.  And I look back at that first

Page 21479

 1     exchange he had with the president on using a counter-attack out of Knin

 2     as a pretext for attacking Knin, and the general pushes back and says:  I

 3     got it.  I can take care of Knin.  I can respond to a counter-attack.

 4     I've got it.  Here he says "pressure," but he's been talking through this

 5     transcript, to the best of my recollection - and I haven't -- I don't

 6     have the whole thing in front of me with notes - but as I recall he's

 7     been referencing through this transcript his planning, operational focus,

 8     his battle focus.  So I think in context - and again, this is not my

 9     ultimate judgement to make - but I think -- my reaction was in context

10     this indicates that he's saying if we continue the military success we've

11     been having, the military pressure, there's going to be a natural exodus

12     of civilians from the conflict area.  So, Mr. President, leave it.  Let

13     me do my job.  We don't have to worry about making this an objective.

14             And an alternate interpretation is certainly rational.  I don't

15     say that mine is correct or incorrect.  I just think that you have to

16     interpret it in the broader context of what he was doing to prepare for

17     this fight.

18        Q.   Now, I want to go back to the portion of the transcript that you

19     keep making reference to.

20             MR. RUSSO:  If we could go to page 10 in the English and page 18

21     in the B/C/S.

22        Q.   Now, Professor, you just mentioned now, and I believe you also

23     referenced earlier your interpretation of the pretext to strike Knin with

24     artillery, and you believe that General Gotovina's response to that was

25     attempting to dissuade President Tudjman from an overzealous use of

Page 21480

 1     artillery in Knin.  Is that correct, the way I'm understanding your

 2     answer?

 3        A.   My -- would you restate it, please.

 4        Q.   Let me just be more precise.  When I asked you originally about

 5     General Gotovina's statement about taking Knin easily with a thousand men

 6     you stated - this is at transcript page 21337, lines 8 to 14 - you

 7     answered:

 8             "It is possible to read this as General Gotovina saying, As part

 9     of my plan, I'm ready to just march into Knin.  But I think in the

10     broader context, it suggests something quite different, which is he is

11     trying to push the president off this kind of overzealous pressure to put

12     Knin under fire."

13             I quoted you correctly, I know because I looked at the

14     transcript.  But is that still your position?

15        A.   The answer is yes.  As I said, my interpretation of this, and

16     it's based on the tone, if you will, or the -- I don't know what the

17     right characterisation -- the flavour of General Gotovina's participation

18     in these discussions throughout the transcript, is you have an

19     operational commander dealing with a political leader, national leader,

20     who's straying into his turf.  What any operational commander is going to

21     want is for the political leader to set the strategic objective and then

22     let the operational commander plan it and execute it.  And so you see --

23     when I read this, this is what jumped out at me.  The president is

24     talking about a counter-attack out of Knin and a pretext for placing it

25     under artillery fire, and the general response by just saying:  I've got

Page 21481

 1     this situation in hand, I've got it under control.  Don't worry about

 2     what we're going to have to do with Knin.  I'll deal with it within the

 3     broader context of my plan.

 4             Now, that's my impression.  It may be wrong.  Others may think

 5     it's irrational.  But I think in the overall context of his dialogue in

 6     this meeting connected - and I don't think you can divorce

 7     this - connected with things like the fact that he allocates 80 per cent

 8     of his indirect fire to the tactical point of execution in the fight for

 9     Knin -- or in the fight to defeat the Serb forces, points -- supports

10     this inference.  But all it is, is an inference drawn from circumstantial

11     evidence.

12             Again, Your Honour, I just believe you can't just read it in

13     isolation; I didn't when I rendered my opinion.

14        Q.   Well, Professor, I want to read the exchange to you and then I'm

15     going to put to you what my interpretation of it was and ask you if you

16     think that's also a reasonable interpretation.  Now, beginning --

17     President Tudjman says:

18             "Gentlemen, I accept your views in principle.  There is still

19     something missing" -- sorry, "there is something still missing, and that

20     is the fact that in such a situation when we undertake a general

21     offensive in the entire area, even greater panic will break out in Knin

22     than has to date.  Accordingly, we should provide for certain forces

23     which will be directly engaged in the direction of Knin.  And,

24     particularly, gentlemen, please remember how many Croatian villages and

25     towns have been destroyed, but that's still not the situation in Knin

Page 21482

 1     today ...  Therefore, we will have to resolve this with UNCRO, this

 2     matter as well, and so forth.  But their counter-attack from Knin and so

 3     forth, it would provide very good justification for this action, and

 4     accordingly, we have the pretext to strike, if we can with artillery, you

 5     can ... for complete demoralisation ... not just this ..."

 6             Now, before I go on to General Gotovina's response, isn't one

 7     reasonable interpretation of this that President Tudjman is suggesting

 8     that they can use the excuse of a non-existent counter-attack from Knin

 9     to shell Knin?

10        A.   Or an existent one.  I mean, when I read this paragraph from the

11     president -- I mean, it didn't look good from my perspective.  Of course

12     I think that's a reasonable interpretation of that paragraph, and so of

13     course I'm going to be pretty interested when I see Gotovina as the next

14     declarant to see what the reaction is and then try and place that into

15     context.  So yeah, I think that if we were assessing the president's

16     intent, it raises a pretty significant concern, that the president was

17     pressing his military commanders to engage in conduct that they shouldn't

18     do.

19        Q.   Thank you.  Now, let's look at General Gotovina's response.

20             "Mr. President, at this moment we completely control Knin with

21     our hardware.  That's not a problem, if there is an order to strike at

22     Knin, we will destroy it in its entirety in a few hours.  With armoured

23     forces, and medium and long-range missile systems ..."

24             Now, Professor, I'm trying to see how you interpreted this as

25     General Gotovina pushing the president off of an overzealous pressure to

Page 21483

 1     put Knin under fire, because my interpretation of this is that

 2     General Gotovina is, in fact, the one who's being a bit overzealous and

 3     indicating, Okay, you want to shell Knin, we can destroy it in a few

 4     hours.  And let's look a bit further down the page at

 5     President Tudjman --

 6             MR. RUSSO:  If we can go further down in both the English and the

 7     B/C/S.

 8        Q.   Beginning at the bottom the president says:

 9             "Generals, officers, although we must not do anything in an

10     ill-conceived manner, we must proceed from the fact that we have achieved

11     such successes, from" --

12             MR. RUSSO:  If we could move to the next page in the English.

13        Q.    "-- from West Slavonia and now in Bosnia, that we have gained

14     the trust of the people, that we have the goodwill of the army, the

15     support of a good part of international public opinion, while the enemy

16     is utterly demoralised.  Therefore, we need to be bold.  That means not

17     just having things under control, but taking it as quickly as possible,

18     so he gets a taste of it and we pay him back.  Therefore, no risky

19     ventures like suffering losses to achieve success.  Nevertheless, I think

20     that the political situation is so favourable that we should focus on

21     entering Knin as soon as possible."

22             Now, Professor, isn't a reasonable interpretation of this

23     exchange that, as I said, President Tudjman offers the possibility of

24     putting Knin under fire with the excuse or the pretext that he's

25     justified by what I suggest is a non-existent counter-attack.

Page 21484

 1     General Gotovina responds and says:  No problem, Mr. President, I'll

 2     destroy the town in a few hours if that's what you want.  And

 3     President Tudjman responds to that and says:  Well, let's not doing

 4     anything in an ill-conceived manner because, I'm suggesting to you, there

 5     is the concern about international public opinion and maintaining the

 6     goodwill of the international community.  But nevertheless, that the

 7     political situation that President Tudjman finds Croatia in is so

 8     favourable that it will allow them some room to strike at Knin with

 9     artillery and use as an excuse this counter-attack in order to cover up

10     the fact that they're doing it for a different reason.  That's my

11     interpretation.

12             JUDGE ORIE:  Mr. Kehoe.

13             MR. KEHOE:  Object to the form, Your Honour.

14             JUDGE ORIE:  Well, I think in the present situation, in view of

15     the skills of this witness as an academic, that I would invite him to

16     answer the question.

17             THE WITNESS:  With the Court's indulgence, Your Honour, could we

18     go back to the prior page because there was a portion of the exchange

19     that was not highlighted.  Towards the bottom.

20             Okay.  So I will -- Mr. Russo, I will -- first off, I think

21     that's a reasonable interpretation.  I don't dispute that your

22     interpretation is reasonable.  I don't think it's the only reasonable

23     interpretation, nor do I think in the broader context it is the

24     interpretation that I agree with.  But I don't say it's unreasonable.  I

25     think it would be disingenuous to suggest that based on the plain text.

Page 21485

 1             What jumped out at me when I read this was when I first started

 2     reading the general's response to the pretext statement by the president,

 3     I thought to myself:  If this is an effect he can have at any time and

 4     he's in the position to have it now, why hasn't that effect been executed

 5     at least partially?  In other words, if he endorses the idea of

 6     terrorising, deliberately terrorising the civilian population to gain a

 7     tactical advantage by he demoralising the enemy, he's been in position to

 8     do that and he hasn't done it.  That was one initial reaction, but the

 9     first sentence - and I don't know, I don't read Croatian obviously, so I

10     don't know how it translates - but the first sentence seemed -- it

11     concerned me.  But then as I read on, he shifts back to his tactical or

12     operational focus, and this is what leads me to conclude that what he's

13     really doing is he's saying to the president:  Stop worrying about the

14     stuff you don't need to worry about.  I fight the fight for you.  You set

15     the objectives.  I'll fight the fight.  If I have to take Knin, I'll take

16     it.  And what was interesting to me was this:  I suspect -- and we've

17     spent I think an hour in the last session in a dialogue on this, I

18     suspect he didn't, even at this point, see as an ideal priority of effort

19     a ground assault into Knin, and yet he comes up with this option in

20     response to the shell-Knin proposal of the president quickly.  And that's

21     what leads -- I'm starting to read this and saying to myself, and I'm

22     just sharing my thought process with you, what's this -- what's going on

23     in this dialogue?  Then the president says:  And you should take into

24     consideration the possibility of a helicopter assault.

25             So here we have, once again, a political leader dictating to his

Page 21486

 1     commanding general tactics.  Right.  Now, in the history of modern

 2     warfare, this is a common concern of military leaders.  I mean, this was

 3     the entire -- there are volumes of books written on this in relation to

 4     the US experience in Vietnam.  President Johnson sitting in the

 5     White House with maps picking targets and the utter exasperation that

 6     inflicted on the operational commanders.  So the president is telling

 7     him, This is how we'll do it, we'll shell Knin.  He says, Don't worry, if

 8     I need to take Knin, I can do it.  Here is what I've got.  Then the

 9     president says, Well, don't forget the helicopter assault.  And then he

10     comes back and says, Okay, sir, I'm thinking about that, but we're

11     getting there.  And then he lays out his tactical scheme of manoeuvre,

12     which is not a helicopter assault; it's a ground manoeuvre plan.  And

13     this kind of -- it's almost like this is happening.

14             Now, what I don't know, and I readily admit it, I don't know the

15     inter-personal dynamic between General Gotovina and President Tudjman.

16     I've never been in a briefing with the president of the United States.  I

17     don't know what that's like to be the senior operational commander

18     answering to your political leader and how that dynamic works.  If

19     General Gotovina - and I'm almost done, Your Honour - if General Gotovina

20     in the transcript had said:  Sir, we don't do that, leave me alone, I'll

21     do this my way, and if you don't like the way I'm doing it, you can

22     relieve me, then that would have been -- I think we would both agree that

23     would have been a great indicator of where this inference tips.  I don't

24     know if that was, within that inter-personal dynamic, a way that

25     General Gotovina would have reacted to this.  What I'm saying to you is

Page 21487

 1     that the reaction seems to me to be pushing back at this intrusion by the

 2     president on how to fight, and trying to get the president to stay

 3     focused on what we're fighting to achieve, and let me figure out how to

 4     fight.  But in a way that kind of placates the boss.

 5             That was my reaction.

 6        Q.   Fair enough, Professor.  I'd like to take a look at a couple of

 7     other areas of this transcript in order to perhaps bring a bit more

 8     context to it.

 9             MR. RUSSO:  If we could have page 7 in the English, B/C/S

10     page 12.  Actually, my apologies.  If we could move to page 23 in the

11     English, page 43 in the B/C/S.

12        Q.   Now, in relation to President Tudjman's earlier statements that

13     we looked at about getting the civilians out, I want to take a look at

14     this exchange where it begins with Dr. Miroslav Tudjman.

15             "Should the information be relayed over the radio as to which

16     routes are open for them to use to pull out?"

17             The president responds:

18             "Yes, that should be said, not the fact that the routes are open,

19     but that it has been noticed that civilians are getting out by using such

20     and such a route."

21             Miroslav Tudjman:

22             "Can we say this at some point at the beginning of the operation?

23     Can we publicise the fact so they know that the civilians are using these

24     routes to withdraw?"

25             President:

Page 21488

 1             "Yes, it should be said that they have set out with passenger

 2     cars, and so on."

 3             Dr. Miroslav Tudjman:

 4             "But you will close off certain routes, and tell them which

 5     direction to head in, so we have as little to do as possible."

 6             Professor, isn't a reasonable inference to be drawn from this

 7     that the president in the presence of General Gotovina is directing a

 8     plan to show the Serb civilians the way out of Croatia and in order to

 9     give themselves less to do in order to accomplish that goal?

10        A.   Mr. Russo, I think that the statements by the president in this

11     transcript are schizophrenic in many ways, and that was my reaction when

12     I read it.  I was focused primarily on the general's reactions to these

13     statements, because that affected my judgement as to his conduct.  And as

14     you note -- I mean, there are ways to interpret this -- rational ways to

15     interpret some of the statements by the president that seemed to be

16     calling on the subordinates to engage in misconduct.  But then there are

17     other statements he makes that patently contradict that, like:  We can't

18     afford to lose the international goodwill that we have.

19             Now, I was in the army in 1995.  I was at the 101st Airborne

20     Division, and we were constantly aware of what was going on in the

21     Balkans during that period, and my view is that by 1995 if you couldn't

22     realise that international goodwill was connected to the way you executed

23     operations, I don't know where you'd been for the last two or three

24     years.  So there seems to be schizophrenia in the sense that different

25     messages are being sent throughout this dialogue with the president,

Page 21489

 1     but -- but again, General Gotovina's response initially is:  They're

 2     already leaving.  Let me just continue to fight the fight.  There's a

 3     natural process that will occur here.

 4             Now, I don't think that means that that was his endorsement of

 5     that objective, even assuming it was an illicit objective or it indicated

 6     an illicit objective.  He's stating an objective fact, and in many ways

 7     in manner that might press back against pushing him into diverting his

 8     focus from the operational execution of the mission and the defeat of the

 9     enemy armed forces.  Again, my interpretation.

10             So, yes, I concede that this could be read in -- rationally in a

11     way that suggests we want the Serbs to leave.

12        Q.   Thank you, Professor.  I'd like to just challenge, if I could,

13     the assessment you've made that President Tudjman's statements about

14     losing international goodwill are somehow contradicted by what appear to

15     be statements to encourage misconduct.  And what I'm suggesting is that

16     what we've read already and the passage that I'm going to read to you

17     now, what they demonstrate is, in fact, President Tudjman is attempting

18     to develop a plan, whereby they can achieve their illicit objective of

19     forcing the Serbs out and at the same time have a good excuse for the

20     international community.  And I'd like to read that portion, but I take

21     it there's an objection.

22             JUDGE ORIE:  Mr. Kehoe.

23             MR. KEHOE:  Yes, Mr. President, with all due respect, I mean this

24     is an argument by counsel, and again it goes to form.  I mean, he's

25     arguing his position, and heaven knows we'll all have time to do that.

Page 21490

 1     So I object to the form as argumentative.

 2                           [Trial Chamber confers]

 3             JUDGE ORIE:  In the specific context of this cross-examination,

 4     the objection is denied.  This certainly is not an encouragement to

 5     Mr. Russo, and perhaps with witnesses of fact we might have stopped you

 6     at an early stage.  But under the present circumstances, your

 7     interpretation of a text cannot be denied.  It may have certain

 8     argumentative element in it, but that is to some extent inherent in what

 9     is done at this moment.

10             Please proceed.

11             MR. RUSSO:  Thank you, Mr. President.  I only have one passage

12     left to read, and I'm going to end with this topic.

13             If we could go to page 29 in the English, and page 55 in the

14     B/C/S.

15        Q.   Beginning at the top, Gojko Susak:

16             "Third, Mr. President, let me just finish.  Can we have your

17     agreement, provided that we will face risks if we lose?  I think that it

18     would have a psychological effect on them if we, after the first day of

19     the operation at Benkovac and Obrovac, take the risk of throwing leaflets

20     which could cause losses, but we would know in advance that it is

21     something we have risked, but we could call them on in your name,

22     whatever kind of leaflet we make, after the first day of the operation.

23     We would point out the routes which they could use to pull out, and

24     formulate them in such a manner to double the confusion such as it is.

25     But we must take a risk then and find the people to do it, and I believe

Page 21491

 1     that there are those who would take the risk of doing it."

 2             President Tudjman responds:

 3             "A leaflet of this sort - general chaos, the victory of the

 4     Croatian Army supported by the international community and so forth.

 5     Serbs, you are already withdrawing, and so forth, and we are appealing to

 6     you not to withdraw, we guarantee ...  This means giving them a way out,

 7     while pretending to guarantee civil rights, et cetera."

 8             Now, Professor, again given the interpretation that you've placed

 9     on this, that President Tudjman is offering schizophrenic statements,

10     doesn't this, in fact, harmonise those kinds of statements to the extent

11     that he indicates -- my interpretation is that he's indicating showing

12     the Serbs a way out with a leaflet that pretends to guarantee their civil

13     rights.  So it does double duty for him.  It shows the Serbs the way out

14     of Croatia and it also has an excuse they can use for the international

15     community.  What's your response?

16        A.   Well, that may very well have been what his intent was.  But

17     again what jumps out at me here is -- and I remember reading this.  How

18     can you not -- how can this not catch your attention?  But

19     General Gotovina's not engaged in this dialogue.  And again I think that

20     you -- if you're asking me:  Do I think based on this transcript it's

21     reasonable to conclude that the president was pushing or pressing

22     subordinate commanders to engage in conduct that could violate IHL, I

23     think that's a reasonable interpretation.  But if your asking me:  Do I

24     think that this establishes that the subordinate commander, and in

25     particular General Gotovina, embrace that task, I don't think that's what

Page 21492

 1     this establishes.  And in fact, I think that the -- that his absence from

 2     much of this dialogue, that his emphasis at different points in the

 3     transcript on his plan to operationally and tactically close with and

 4     destroy the enemy forces, suggests that what he's trying to do is

 5     preserve his freedom of operational manoeuvre and not get this -- let the

 6     president distract him.

 7             Now, this is indelibly connected with the facts and assumptions

 8     upon which my addendum was written, because if you change those facts and

 9     assumptions and you tell me that if the factual record establishes that

10     with a thousand artillery shells there was two -- there were two strikes

11     on a military objective and 900 strikes on civilian objectives, then it

12     would be evidence that would link back to this and any rational person

13     would say that seems to suggest that this did influence his method of

14     executing the operation.  But the facts and assumptions that I were

15     provided contradict that conclusion, and that's what puts this into

16     broader context.  Not only that, his artillery officer's testimony, the

17     pre-planned targets, the war gaming, the fact that he didn't use his

18     artillery to inflict terror prior to launching the operation, the

19     tactical operation -- so as I say, I think this is a -- I think this

20     raises significant questions about the dynamic of the meeting, the

21     inter-personal relationships, the focus of the general, but I will

22     concede with you that there are elements of this transcript that indicate

23     the president is pushing too hard.  I also think that this is not

24     something that's unique in the history of modern warfare.  I think that

25     it is -- unfortunately there have been other examples where national

Page 21493

 1     political leaders have pressed their military and the military has subtly

 2     pushed back or simply avoided that pressure through the method of

 3     execution.

 4             I hope that answers your question.

 5        Q.   Yes, Professor, thank you.  The last question I had on this:

 6     Given that your agreement that President Tudjman's statements can be

 7     viewed as pushing an unlawful agenda, couldn't it also be a reasonable

 8     inference that, contrary to the interpretation you've suggested,

 9     General Gotovina in fact adopted those suggestions and that was the

10     reason that he wrote such a clearly ambiguous - in your interpretation -

11     ambiguous order for attack?

12        A.   I think your question has three embedded assumptions that I

13     question.  First off, you assume that that is -- that this proves that

14     the president had an illicit purpose.  That may be true, but that's one

15     fact that would have to be established.  Secondly, you assume that the

16     general's response to the president or other objective evidence indicates

17     that he adopted that illicit purpose.  I think that assumption is far

18     less -- is far more tenuous.  Third, I think you ignore the method of

19     execution -- assuming that the facts and assumptions that I based my

20     addendum are -- on are relatively well established in the record, and I'm

21     sure you don't necessarily agree with that.  But if you assume all of

22     them, that the president did have an illicit purpose, that the general's

23     reaction in the meeting reflects an endorsement of that illicit purpose,

24     and that the tactical and operational execution of the mission

25     circumstantially corroborates that conclusion, then yes, this transcript

Page 21494

 1     would be -- would certainly be damaging.

 2             But there's one more point I think -- I'd like to add.  You have

 3     asked me numerous questions on the idea of doing a ground assault into

 4     Knin and some of the risks involved, and I think it was clear that the

 5     suggestion was that might have mitigated risk to the civilian population

 6     as opposed to using the means that the general ordered to achieve the

 7     effect he wanted to achieve.  What I wonder is from an operational

 8     standpoint, if he is aware that civilians are leaving the conflict area,

 9     is that something he should object to?  Now, certainly if he's been told

10     to force them to leave through terror attacks, he must object to that.

11     But if he was attacking an area with a civilian population and had made

12     efforts to warn the civilians and encourage them to get out of harm's

13     way, in other contexts he might be applauded for that because that's one

14     of the measures a commander should endeavour to take to minimise the risk

15     to the civilian population.

16             So again, I see an operational commander focused on the tactical

17     battle, civilians are leaving the area, that's a good thing for the

18     purposes of being able to distinguish his enemy from civilians, close

19     with the enemy, and defeat him in depth.  And that's why I say I --

20     your -- I think your question is asking me to attribute motive to the

21     general's comments, and I don't know that -- in my opinion, the motive is

22     not clear from the dialogue.

23        Q.   Thank you.

24             JUDGE ORIE:  You may have noticed that Mr. Russo has to wait

25     after your answer quite a while, and that's because the interpreters need

Page 21495

 1     some additional time to finish their translation.

 2             THE WITNESS:  I apologise, Your Honour.

 3             JUDGE ORIE:  Please proceed.

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

 5        Q.   During one of your answers, Professor, you mentioned that if the

 6     factual record established that with a thousand artillery shells, only

 7     two struck a military objective, 900 struck civilian objects, that would

 8     suggest some evidence that, in fact, the operation was executed

 9     unlawfully.  So I want to talk now a little bit about the facts you were

10     provided with regarding the effects on the targets.

11             Now, looking at subsection K on page 29 in your addendum, you

12     point out the assumed fact concerning the number of projectiles fired on

13     Knin and its immediate vicinity.  I'd like to first -- Professor, it's

14     not clear to me what the immediate vicinity of Knin means here, and I

15     don't know if you know, but I'd like to show you a map and ask you to

16     draw a circle around the area.

17             MR. RUSSO:  If we could have 65 ter 7393.  And if we could

18     enlarge the bottom half.  There we are -- actually, if we can move up a

19     bit.

20        Q.   Professor, if you see the big A --

21        A.   Yeah, I see it.

22        Q.   -- just slightly north of that is Knin.  Now, are you able, using

23     this map, to indicate what you understood the immediate vicinity of Knin

24     to be?

25        A.   It's a 1:600.000 map -- I mean, no, not really.  And I didn't do

Page 21496

 1     it based on a map, Your Honour.  The phrase "immediate vicinity" means

 2     the urban-populated areas of the city.  It's a generic or general term.

 3        Q.   You have seen the aerial photograph of Knin; correct?

 4        A.   Mm-hmm.

 5        Q.   Can I take your answer to mean that you understood that the 800

 6     to 1100 projectiles were fired into the area encompassed on that

 7     photograph?

 8        A.   Yeah, I think that's a fair assumption.

 9        Q.   Thank you.

10             MR. RUSSO:  And for the record that's Exhibit P62.

11        Q.   Now, Professor, in determining, as you've indicated, whether the

12     use of artillery in Knin was lawful, you obviously do consider it

13     relevant to consider how many projectiles struck the alleged military

14     objectives versus everywhere else they landed; right?

15        A.   Mm-hmm.

16        Q.   And I don't see where you were provided with any specific

17     information or assumptions in that regard, so I'd like to know what

18     information you used in coming to your conclusions, given that you

19     consider this to be a relevant piece of information.

20        A.   Just a moment, please.

21             Well, the -- the assumptions indicate to me the objectives, and

22     my understanding was these were the objectives placed under attack.  I

23     think -- so my focus was -- the opinion is probably based on the

24     assumption that the artillery was directed towards those objectives.  And

25     I also had in mind, I'm sure, an -- the initial observation report from

Page 21497

 1     the UN monitors that -- that detailed their initial observation of the

 2     effects of artillery fire.  And as I -- I think I mentioned this earlier,

 3     I think I was made aware of that in the Tampa meeting, and it had to have

 4     been in my mind when I made that conclusion -- or made -- or when I made

 5     that assumption.

 6             MR. RUSSO:  If we could please have Exhibit P64.

 7        Q.   Professor, this is the provisional assessment by the senior UNMO.

 8        A.   Right.

 9        Q.   Is this the document to which you were referring?

10        A.   Yes.

11        Q.   Now, if we could focus on paragraph 2.  Paragraph 2 indicates:

12             "In general shelling was concentrated against military

13     objectives.  The damages caused by shelling to civilian establishments is

14     concentrate to the close vicinity of military objectives.  Only few (3-5)

15     impacts is observed in other urban areas."

16             Professor, is that the passage that you relied on in this

17     document when considering -- well, when making your assumptions about the

18     damage to the military objectives?

19        A.   No, the -- I mean, you used the word "relied on."  Is this the

20     passage -- is this the document that had an influence on my assumption,

21     yes.  But the assumption was based primarily on the facts that these were

22     the targets placed under attack, and I -- and I had -- as I said, when I

23     wrote the addendum, I didn't have that with me.  I did recall it in

24     fairly good detail that there's another paragraph that says it's a

25     preliminary report, that it shouldn't be released.  But my -- what I was

Page 21498

 1     asked to do in the addendum was to assume that the -- I -- the places or

 2     things listed were placed under artillery fire and whether or not they

 3     were lawful military objectives.  That's what I did.

 4        Q.   Other than that assumption and this document here, were you

 5     provided with any other information about the actual damage caused by

 6     artillery to any of those alleged military objectives?

 7        A.   The only other information I think that I had in mind is, as I

 8     said, the statement or testimony about, it looked like the whole city was

 9     under attack, that we discussed, I think, our first day of -- my first

10     day of testimony.  And Colonel Konings, the facts and assumptions related

11     to his report, which indicated a much more scattered effect of artillery.

12        Q.   Now, Professor, the document we're looking at here and the facts

13     and assumptions provided to you don't tell you how many projectiles

14     struck the military objectives.  You've already indicated that that's

15     certainly a relevant piece of information in making a determination about

16     the lawfulness of the use of artillery --

17        A.   Well, I used -- may I respond?

18        Q.   Sure.

19        A.   I used an extreme in the context of the explanation, and I think

20     it's -- it wasn't necessarily connected to this report.  I do think it is

21     quite significant that the report indicates that damage caused by

22     shelling to civilian property was generally concentrated around military

23     objectives.  So I did not mean to suggest that if a round hits a civilian

24     object in the vicinity of a military objective, that is evidence of per

25     se illegality.  And if I did suggest that, I apologise.

Page 21499

 1        Q.   Just to be clear, Professor, I wasn't taking that --

 2        A.   Okay.

 3        Q.   -- as your suggestion.  What I was focusing on was actually the

 4     opposite situation.  The example, in fact, that you used, the extreme

 5     example, as you indicate, two projectiles hitting a military objective

 6     while 900 hit somewhere else.  My point is that this report, although it

 7     does specify damage to civilian areas, it doesn't specify damage to what

 8     the drafter believes the military objectives to be.  In other words, you

 9     can't tell, can you, from looking at this document how many projectiles

10     hit the military objectives; right?

11        A.   Well, I mean, no.  The answer is no, and he doesn't purport to

12     provide that information.  He's not conducting a detailed bomb-crater

13     analysis.  I mean, that's fairly obvious from the nature of the report.

14     In my view, it's more of a present-sense impression.  It's an immediate

15     reaction to his impression in close proximity to the battle from somebody

16     who has some, I would assume, experience in identifying effects of fires

17     that, as best he can estimate in this preliminary report, the vast

18     majority of effects are concentrated around lawful military objectives.

19        Q.   Now, Professor, you can't tell from this document whether what

20     the drafter considers to be lawful military objectives are the same as

21     the military objectives you were told were fired at; correct?

22        A.   That's correct.

23        Q.   Now, in addition to being asked to assume that 800 to 1100 shells

24     were fired into the Knin and its immediate vicinity throughout the course

25     of the 4th and the 5th of August, you were also asked to assume that the

Page 21500

 1     artillery attack between both days lasted approximately a total of

 2     24 hours, and you were also told to assume that there was a total of

 3     approximately one hour to 90 minutes of intense shelling during that

 4     24-hour time-period.  Now, if -- after that duration, intensity, and

 5     amount of shelling -- well, first of all, let me ask you this:  Given

 6     that duration, intensity, and amount of shelling, do you believe that the

 7     weaponry which General Gotovina purports to have used, that's

 8     specifically the 130-millimetre cannon and the 122-millimetre

 9     multiple-barrel rocket-launchers, do you believe those weapons were

10     capable of striking the alleged military objectives?

11        A.   My opinion is based on whether or not I believed General Gotovina

12     would have anticipated that those weapons were capable of achieving the

13     effect that he determined needed to be achieved.  And I guess my point is

14     I don't think that's synonymous with striking the military objective.  I

15     mean, if your effect is to disrupt command, control, and communications,

16     for example, and the command, control, and communication is emanating

17     from a building, the headquarters building, right, that building is

18     connected to communications equipment that might be outside the building,

19     might be on top of the building, there are wires, there are antennas,

20     there may be embedded land-lines.  I'll slow down.

21             There may be equipment in the vicinity of the objective.  As I

22     noted in the addendum, one of your goals may be to disrupt the enemy's

23     ability to restore communications capability.  So it's effects-driven

24     targeting, not, Do I put a round through the ceiling of the building and

25     destroy the entire building.  And I believe the weapon systems he used

Page 21501

 1     were capable of achieving the effect of disrupting C3I, movements,

 2     resupply, and muster.

 3             JUDGE ORIE:  Mr. Russo, I'm looking at the clock.  We need

 4     another break.  Would this be a suitable moment or ... ?

 5             MR. RUSSO:  Yes, Mr. President.

 6             JUDGE ORIE:  Then we'll have a break, and we'll resume at 6.00.

 7                           --- Recess taken at 5.39 p.m.

 8                           --- On resuming at 6.01 p.m.

 9             JUDGE ORIE:  Mr. Russo, please proceed.

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

11        Q.   Professor, before I ask you a few questions about the last answer

12     you gave, I understand that you may have approached this from a different

13     perspective, but I'd like you, please, if you could, just answer the

14     question before we move on.  And that was, Do you believe that the

15     weaponry that General Gotovina purports to have used on the military

16     objectives in Knin, that is, the 130-millimetre cannon and the

17     122-millimetre multiple-barrel rocket-launchers, do you believe that they

18     were capable of striking the targets identified in your report and

19     addendum?

20        A.   Yes, I believe they were capable of striking those targets.  I --

21             THE WITNESS:  Your Honour, may I make one correction.  I think

22     I -- in the prior session I stated that the document that's on the

23     screen, I don't know what your designation for it is, the UN assessment,

24     I think I said that I didn't have that in Chile when I wrote the

25     addendum.  I was mistaken.  I did have that in Chile, it was an

Page 21502

 1     attachment to the request for the addendum by Defence counsel.  So I

 2     wanted to correct that.

 3             JUDGE ORIE:  Thank you for that answer.

 4             MR. RUSSO:

 5        Q.   Thank you, Professor.  Now, given that you believe that the

 6     weaponry was capable of striking the targets identified in your report

 7     and addendum, I'd like you to assume that if after the 24 hours of

 8     shelling that you were asked to assume only one projectile struck the

 9     ARSK headquarters and that projectile landed in the parking-lot of the

10     building, if that's the case wouldn't -- doesn't that indicate to you

11     that, in fact, that building was not the actual target of the artillery

12     attack?

13        A.   No.  Your question was -- you asked me:  Is the weapon capable of

14     striking the building?  Any weapon is capable of striking the building.

15     If you're asking me is the weapon so -- is there such a certainty of

16     precision that if you target the building, you will only strike the

17     building, then I think the answer is no.  Tube artillery and -- is not

18     that precise and multiple-launch rockets are generally understood as an

19     area-denial weapon.  I think I put that in the addendum.  So -- and to

20     answer the question specifically, again it would be contingent on the

21     effect that the commander sought to achieve.  I don't want to go down the

22     road of hypotheticals, but it may very well be that the target area was

23     the area of the headquarters because there were things outside the

24     building that the commander sought to influence with that artillery.  And

25     I would just go back to Colonel Konings' first page of his report where

Page 21503

 1     he recites the doctrine of fire support, and one of the primary purposes

 2     is to disrupt enemy command, control, and communication.

 3        Q.   Well, Professor, I'm a little surprised because I was under the

 4     impression - and please correct me if I'm wrong - that you were asked to

 5     determine whether General Gotovina, based on the assumptions provided to

 6     you, could have reasonably made a decision, quoting from the addendum

 7     question, could have made the decision to use artillery assets against

 8     military objectives in Knin.  And then you list the military objectives

 9     themselves.  So if, for example, the military objective of the ARSK HQ,

10     if he's using his artillery assets against the military HQ, are you

11     saying that it was one of your assumptions that he was not actually

12     firing at the building itself?

13        A.   No.  I don't know if the weaponeers, in order to achieve the

14     desired effect, would have sought to place a round on the building or in

15     the parking-lot or in a field next to the building where you might have a

16     communications rig.  And the nature of tube artillery because -- again, I

17     am -- I do not purport to be an expert on the capability of artillery.  I

18     have a general background on Soviet-era artillery because of my military

19     education from some time ago, but the general effect is that you target

20     an area.  And if you want to achieve the effect on the building, you're

21     going to drop rounds on and around the building.

22             Now, one round in an entire barrage being even in the proximity

23     of the building, unless it was -- there was some high-value item or thing

24     at that one spot, would seem to suggest that disabling the command and

25     control capability was not a high priority, if there was only one round

Page 21504

 1     in the entire deployment.

 2        Q.   Well, Professor, I don't see anywhere - and maybe you can point

 3     me to it - I don't see anywhere where you were provided with any

 4     information about what General Gotovina fired his artillery at other than

 5     the buildings and facilities identified in your addendum.  In other

 6     words, I don't see anything which indicates to you that he fired at the

 7     area around the HQ or at a -- something else around the targets

 8     themselves.  Maybe you can point me to that.

 9        A.   Because what I am doing in the addendum is I am assessing whether

10     affecting this place and the function performed in this place is a --

11     renders the place or the thing a legitimate military objective.  So when

12     you say -- when I'm giving the fact or assumption that he targeted the

13     headquarters, I think -- I don't view that as just trying to drop an

14     artillery round on the building.  I view it as disabling the function of

15     the headquarters through the use of this capability.

16        Q.   Then maybe you can be more specific for us with respect to the

17     particular assumptions you made.  Can you explain to the Trial Chamber

18     what you assumed General Gotovina actually did when he says that he

19     decided to use artillery against the ARSK HQ building, what did you take

20     that to mean?

21        A.   Well, first off I had to consider the overall pattern of

22     artillery employment and the ratio of artillery support designated for

23     the close battle, the assault on enemy positions, and the -- what the

24     order refers to as the operational depth.  In light of the fact -- let me

25     back up.

Page 21505

 1             The report that you elicited from Colonel Konings indicated that

 2     it is highly unlikely that with this asset, with this employment

 3     constraint, that you would have -- you would be able to achieve a

 4     destructive effect on a hardened structure.  I think that's accurate.  If

 5     you recall from the first day during my direct testimony, what I

 6     questioned was why there was no discussion of a disruptive effect.  So my

 7     assumption was based on the function of a headquarters, the resource

 8     constraint, the effect he wanted to achieve, which was to support the

 9     main effort, that what he was trying to do was to disable the ability of

10     that headquarters to see the battle, to respond to the battle, and to

11     direct the battle.

12        Q.   Well, Professor, I'm actually trying to get one step further and

13     get from you how exactly you think he did that.  In other words, do you

14     think he did that by firing shells at the building itself; and if not,

15     where do you think he was firing the shelling at?

16        A.   I think - and again I have to qualify this because I am not an

17     expert on the technical aspects of the employment of tube artillery - but

18     based on what I've seen in practice, as I've watched my colleagues in

19     practice, I suspect that the headquarters was the designated reference

20     point because it was a known site and that they targeted the headquarters

21     with knowledge that rounds would fall on the building and around the

22     building in order to disrupt communications capability, movement of

23     personnel, in and outside the building, and antennas on the building,

24     outside the building.  I think that is the normal way you would employ

25     tube artillery in that situation.

Page 21506

 1        Q.   So to be clear, when you were asked to assess the reasonableness

 2     of General Gotovina using artillery against the ARSK HQ, you assumed that

 3     meant he was firing artillery at the building itself and at the area

 4     around the building, or firing artillery at the building itself with

 5     knowledge that projectiles would also land on areas around the building?

 6        A.   I assume it would be the latter.  Now, that doesn't mean that I

 7     think that if his staff officer felt that there was a high-value

 8     capability outside the building, that they might not have adjusted the

 9     intended impact point from the building itself, to the parking-lot, to

10     the field behind the building.  I mean, I don't think that would be

11     improper.  My assumption is that they probably used the building as the

12     reference point with knowledge that they would affect the parking-lot,

13     the roof, the area outside the building.

14        Q.   And in making your assessment of the reasonableness of firing

15     artillery at the ARSK HQ, did you know what was around the building?

16        A.   What I knew was -- what I knew was that the -- based on the

17     assumption, the object of attack was the building; and based on the

18     preliminary assessment of effects that was attached, that the predominant

19     effects of the fire were on the building.  So, I -- no, in these

20     assumptions it did not say, This was what was around the building.  I

21     knew the building was in a city, so I think that I probably assumed or

22     presumed that somewhere in proximity of the building there were

23     non-military objectives.

24        Q.   And to be clear, you weren't provided with any information that

25     what was around the building itself - and I mean right next to the

Page 21507

 1     building, on either side of it, or completely around it - you weren't

 2     provided with any information that anything around that building was

 3     military; right?

 4        A.   I mean, there were some objectives here that were defined as, I

 5     think, a compound, a military compound, I may be wrong, but if you're

 6     talking about the ARSK headquarters, that I based it, as I say, on these

 7     assumed facts which are there and the assessment and my view of maps and

 8     photographs prior to that where I realised that none of these targets

 9     were isolated from civilian-populated areas.  And I assumed the general

10     knew that as well.

11        Q.   And again, Professor, given your assumption that General Gotovina

12     was using the ARSK HQ as the reference point to fire artillery at, if at

13     the end of the day, the second day, only one projectile had struck the

14     ARSK HQ and that projectile landed in the parking-lot, that would lead

15     you to an inference, wouldn't it, that in fact that HQ was not a target

16     or a primary target or even a true concentrated target of the artillery

17     attack; right?

18        A.   If only one round strikes in or near the headquarters in a

19     48-hour period or a 36-hour period, then I think you would have to infer

20     that that was not a high-priority target for whatever reason.

21        Q.   What about a 24-hour period?

22        A.   Same -- depending of course on the other employment

23     characteristics.  If you tell me that there were three rounds fired in

24     24 hours and one hits near the headquarters, that changes the equation.

25     If -- my assumption that I was given is that 500 to a thousand rounds are

Page 21508

 1     fired in that 24-hour period and only one strikes in or around this

 2     headquarters building, then I would infer that the commander made a

 3     judgement that that headquarters building was not a priority of effort,

 4     or that the effect was achieved with that one round, how -- however he

 5     could assess that.

 6        Q.   I'd like to move off of this particular topic just for a while.

 7     And I'd like to address the question put to you about good faith, and

 8     this is on page 7 of your expert report.  You state:

 9             "Because operational effects can often support the alternate

10     inference that a commander acted in good faith, even if the assessment of

11     potential consequences was erroneous, prior decisions by the commander

12     should also be considered in the assessment process.  In this regard,

13     while not dispositive, a pattern of good-faith decision-making by a

14     commander could undermine the inference that an illicit effect was the

15     result of an illicit motive of criminal state of mind."

16             Now, Professor, I want to make certain that I understand what you

17     were saying here.  First, I take it - and I think you've suggested this

18     earlier in your testimony - that the effects of artillery alone, which I

19     take to mean the pattern of damage alone, should not be relied on as the

20     sole indicator of the intent of the commander who orders the attack.  Is

21     that right?

22        A.   Well, I mean, you use the word "should not."  It would -- if you

23     had other information, obviously you would want to put it into broader

24     context, but it can be misleading, I think, is the point in and of

25     itself.

Page 21509

 1        Q.   And if that's the case, then likewise concentration of damage in

 2     and around objectives cannot be taken as the sole indicator that the

 3     attack was, in fact, lawful; correct?

 4        A.   Well, that's correct.  But I think in either hypothetical or in

 5     either example the further on the extreme end of the spectrum the effects

 6     become, the greater the probative value they hold.  So in your

 7     hypothetical you gave me where you say one round hits what's been

 8     identified as a high-value target, and this is the extreme hypothetical I

 9     gave before, if you could show that 900 other rounds hit civilian

10     population centres while military objectives were ignored, I don't think

11     you would need too much more corroboration of that circumstantial

12     evidence.  My point in this passage is that the effects of artillery

13     are -- when you're beyond the two extremes, every single round hits

14     military objective versus every single round hits non-military objective,

15     the further mixed that becomes, the more inconclusive that becomes as a

16     circumstantial indicator of intent.

17        Q.   Thank you, Professor.  The second point I believe you were making

18     in the quotation that I read was that the prior decisions of a commander,

19     and in particular a pattern of good-faith use of artillery, should be

20     considered to rebut an inference from what might appear on its face to be

21     physical evidence of an unlawful attack; correct?

22        A.   I mean, I think it's obvious.  I mean, it's modus operandi

23     evidence.  If you can show a pattern of behaviour, it tends to support

24     one inference or the other, not conclusively, but it's a factor.

25        Q.   And of course you agree that the opposite is true if the evidence

Page 21510

 1     indicates that the commander engaged in unlawful shelling or shelling of

 2     purely civilian areas in the past, it would support an inference that --

 3     well, let me just put it to you.  If General Gotovina had engaged in or

 4     his forces had engaged in the shelling of civilian areas in the past, you

 5     would take that as evidence to infer that his unlawful -- to infer that

 6     the artillery attack on Knin itself was directed at civilians; correct?

 7        A.   Well, I think there are two issues wrapped up in that, if I may.

 8     Assuming we can attribute the prior indiscriminate attack to the

 9     commander, that he was responsible for it, then I don't think you -- I

10     don't see how you could ignore that as a factor in assessing the legality

11     of a subsequent attack.  I don't think it's dispositive.  I mean, I think

12     it's possible you could have a commander who does something improperly,

13     realises he made a mistake, and adjusts his conduct, but it's probative.

14     And the weight, I think, is contingent on the severity of the prior

15     action, how much of an attribution to the commander you can establish,

16     whether it was an isolated incident or a pattern.  So it's probative

17     evidence.

18             Now, the other -- the other issue that's wrapped up in that, as

19     I'm sure the Tribunal is aware, is the issue of command responsibility.

20     If it's not attributable to the commander, then the question becomes

21     whether or not he should have known in future actions the subordinates

22     would engage in similar misconduct once he was made aware of the prior

23     misconduct.  So I think there are two issues wrapped up with a prior

24     indiscriminate attack.

25        Q.   Professor, you were asked to assume that General Gotovina had not

Page 21511

 1     engaged in shelling of Knin prior to Operation Storm, and you indicated

 2     in your report that it was a significant factor to you that he had not

 3     done so.  I'd like you to consider an alternate assumption, that being

 4     that forces under General Gotovina's control had shelled a civilian area

 5     where there were no military targets prior to Operation Storm in the area

 6     in the Republic of Serbian Krajina; that this -- evidence of this had

 7     been brought to General Gotovina's attention; that General Gotovina had

 8     denied that he was in control of the forces conducting that shelling, and

 9     in fact that was a lie, in fact he was in control of those forces.  I

10     want you to make that assumption and then tell me if those facts are

11     true, would you then infer that -- well, would you use that as evidence

12     to infer that his shelling in Knin was directed at civilians.

13             JUDGE ORIE:  Mr. Kehoe.

14             MR. KEHOE:  I would ask, Mr. President, for a foundation for that

15     monologue that was just given.  I know it's an assumption, but where does

16     it -- where is it in the record?

17             JUDGE ORIE:  Mr. Russo, I don't know whether you want to respond

18     to that, to this specific question put by Mr. Kehoe.

19             MR. RUSSO:  My question is, Mr. President, that the Defence gave

20     assumptions to the witness upon which he based his report.  No foundation

21     provided for those.  These are hypotheticals to a witness.  This is --

22             JUDGE ORIE:  Well, that's too easy, Mr. Russo, that the Defence

23     just at random made suggestions to the witness.  You may not agree with

24     some of them, and some may be well disputed and not solid in your view,

25     but the mere fact that -- just to state that there's no basis for those

Page 21512

 1     assumptions would -- by the way, would make the whole testimony totally

 2     useless.

 3             Let me try to rephrase your question and see what answer the

 4     witness gives us.

 5             If a commander would have a well-established reputation of always

 6     targeting civilian population, would that be an element when you would

 7     have to make any inferences from an attack if the civilian population was

 8     at least hit, to whatever extent, to that attack.  May I suggest to you

 9     the following.  May I suggest that I give an answer, and you would say

10     whether it's right or not.  Would the answer be, That would be an element

11     in assessing that new event?

12             THE WITNESS:  I -- absolutely, Your Honour.

13             JUDGE ORIE:  Thank you.

14             Please proceed, Mr. Russo.

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

16        Q.   Now, I'd like to take a look at question 1 in your addendum.

17     That appears at page 23 of your report.  Now, first, Professor, I note

18     that embedded within the question put to you are several facts that

19     already suggest the legitimacy of the shelling, and I'll ask you if you

20     gray with me.  For example, the question presupposes that the artillery

21     was directed against military objectives in Knin, and you would agree

22     with me, wouldn't you, that if the objective -- well, if the artillery

23     was directed at anything other than the military objectives --

24        A.   Per se violation.

25        Q.   Thank you.  The question also -- sorry.

Page 21513

 1        A.   I'm sorry to interrupt.  I interrupted.  But it's fairly -- it's

 2     not fairly -- it's manifestly clear.

 3        Q.   Thank you.  The question also has embedded in it the presumption

 4     that the artillery attack was conducted in support of the infantry

 5     assault.

 6        A.   Mm-hmm.

 7        Q.   And you would agree that even if some of the artillery was used

 8     not as a support of the infantry assault, but in fact as a means to get

 9     the civilians out of the town, you would agree that that would be

10     unlawful; correct?

11        A.   If you used that weapon system to deliberately terrorise the

12     civilian population, it is an illicit use, I would agree.

13        Q.   And the unlawfulness of that use -- of that assumed use that I'm

14     suggesting to you, to get the civilians out, it doesn't change, does it,

15     if in addition to shelling to get the civilians out you also shell

16     legitimate military targets and front-line positions; correct?

17        A.   So your hypothetical is that there's evidence that there are

18     three deliberate objects of attack, command -- military objectives within

19     the populated area, enemy front-line defensive positions, and

20     non-military objectives within the populated area?

21        Q.   Yes.

22        A.   Then the deliberate attack of non-military objectives is a per se

23     violation, irrespective of whether you're also attacking other lawful

24     military objectives, if that's established.

25        Q.   Thank you.  And of course your answer to question 1 is entirely

Page 21514

 1     dependent, not only on the facts and assumptions provided to you but on

 2     the facts embedded in the question itself; correct?

 3        A.   The entire addendum --

 4             JUDGE ORIE:  Mr. Russo, you have now asked the witness to assume

 5     that some of the facts would be quite different, and then he very quickly

 6     answered "per se violation."  If it was not -- now, therefore, from that

 7     it follows already that this witness, when answering this question,

 8     answered it in accordance with the facts implied in the question.  If

 9     they would be different, the answer could still be the same; but if they

10     would be different, the answer could also be different.  So therefore, it

11     seems so obvious to me that this is the case that I wonder what the

12     reason is that you still want to verify this.

13             MR. RUSSO:  Well, Mr. President, what I was seeking to verify was

14     whether the Professor's answer to question 1 depended on any information

15     he received other than the information which is apparent to us from the

16     face of the question and the facts and assumptions provided.  The witness

17     has indicated that he was orally briefed about the strategic and

18     operational situation.  I wanted to make sure that to the extent he's

19     relying on anything in that conversation that we don't know about, we're

20     informed about it.

21             JUDGE ORIE:  Perhaps I should not have intervened.  The situation

22     has not become any clearer.  It's not only less obvious to me.

23             Please proceed.

24             THE WITNESS:  Did you want me to answer that question?

25             MR. RUSSO:

Page 21515

 1        Q.   Yes.

 2        A.   As I said, I think on my first day of testimony, I don't think

 3     this opinion would have any merit whatsoever if it was disconnected from

 4     the operational concept to which these targets were associated.  So

 5     that's why that briefing, I think, has to -- the general concept of the

 6     operation has to inform my assessment of an opinion.  If I didn't know

 7     that General Gotovina was seeking to breach improved defensive positions

 8     by forces that were under the command and control of the individuals in

 9     these headquarters, then I don't know how I could make a rational

10     assessment.  I could say it's a military objective, but the real issue

11     here is proportionality.  And I don't think that Colonel Konings did

12     anything different, to be candid with the Tribunal.  I mean, I think he

13     has to have had the broader context of the operation in mind when he

14     renders an opinion on the propriety of attacking certain military

15     objectives.  So in that regard, other than these facts and assumptions,

16     that's what was in the back of my mind, the general context of the

17     operation.

18        Q.   Professor, you know that Brigadier Rajcic, General Gotovina's

19     chief of artillery, testified that using 122-millimetre MBRL's on

20     Milan Martic's residence would have violated the rule of distinction and

21     the principle of proportionality; correct?

22        A.   I don't know if I recall that off the top of my head.

23             MR. RUSSO:  I'll refer the Court and counsel to transcript

24     page 16592, lines 5 to 25.

25        Q.   Professor, when I asked Brigadier Rajcic whether there would be

Page 21516

 1     any problem using 122-millimetre rockets at Martic's building, he

 2     answered:

 3             "Yes, because of the rule of distinction."

 4             He further explained:

 5             "When one analyses the use of multiple rocket-launchers which has

 6     a greater density of projectiles in terms of their impact on the target

 7     point, it covers a broader area with these rockets.  If you compare it

 8     with the 130-millimetre cannon and the assessment was that the

 9     proportionality or the balance between what might happen to the buildings

10     around the target was unacceptable."

11             Now, I take it that you don't disagree with Brigadier Rajcic's

12     assessment in that regard, do you?

13        A.   First off, that may very well have been his assessment, but I

14     don't think there's a categorical equation.  You're talking about, and

15     I'm confident the Tribunal knows this, a fact-intensive analysis.  It's

16     an anticipatory analysis that is clear from Article 51 of AP I; it's

17     clear from the commentary; it's clear from the "travaux preparatoires";

18     and I believe even jurisprudence of this Tribunal has confirmed that.

19     Based on all the facts and circumstances, the METT-T-C, the commander has

20     to make an assessment:  Will the collateral damage or incidental injury

21     anticipated by his attack be excessive in relation to the anticipated

22     concrete and direct military advantage?  Now, if the general or his

23     artillery officer made the judgement that the risk to the civilian

24     population was excessive in relation to the anticipated value of using

25     that weapon system against that target, that's their -- that's what their

Page 21517

 1     job is, to make that assessment.  I would need to know, in my view to say

 2     that's absolutely right or that's questionable, every other element of

 3     the decision-making process.  Why did they want to target him?  What did

 4     they seek -- what effect did they seek to achieve by targeting him?  What

 5     was the probability that that weapon system would achieve that effect?

 6     What was the situation of the civilian population in the area?  What was

 7     the risk associated with the alternate means available?  What alternate

 8     means were available?  What risk would be associated with foregoing the

 9     attack?

10             Now, I presume that that's what they did, or that's what the

11     witness is referring to, and he comes to that conclusion.  I think that's

12     a reasonable conclusion.  But if I change the facts and circumstances, I

13     think I could create a hypothetical where the use of that weapon system

14     could be determined to be lawful.

15        Q.   Well, Professor, what I was seeking was based on everything

16     you've been told to assume and everything you were otherwise educated on

17     about the case, whether you in fact disagree with that assessment, or

18     whether you simply can't make an assessment if it was correct or not.

19        A.   I guess my point is I'm not saying I think the assessment was

20     erroneous.  I think it was a legitimate assessment.  I don't know if I

21     have enough fact to know whether or not an alternate assessment would

22     have been improper.  But I assume it would have been because that was

23     the -- if that was the assessment that was made, I assume it's predicated

24     on that METT-T-C analysis.

25        Q.   Well, when Brigadier Rajcic testifies that using MBRLs against

Page 21518

 1     Martic's building would be a problem because of the rule of distinction,

 2     what does that indicate to you about the use of that weaponry in that

 3     area?

 4        A.   It suggests to me that the brigadier believes that the use of

 5     that rocket system is improper in that area because of the inability to

 6     have any degree of pin-point accuracy to the effect.  Now, this

 7     obviously, as you know, was addressed by Colonel Konings in his report

 8     and his addendum, where he asserted that the use of multiple-launch

 9     rockets in a populated area - and I'm paraphrasing - is per se unlawful

10     because of your inability to control the effects.  I responded to that in

11     my report.  I don't think there is a per se prohibition.  I'm not

12     suggesting it's a favoured method of warfare in a populated area.  But

13     there are very few per se prohibitions on weapon systems, and most of

14     them take the form of specific treaties or protocols where the

15     international community has made a judgement that under no circumstance

16     could the use of this method or means of warfare be justified.

17             If you create a hypothetical where there is an area-denial

18     objective or an area-effects objective, where the collateral effects of

19     the rocket might, in fact, be less harmful or present less risk for the

20     civilian population, then you could have a situation where the use was

21     lawful.  So, as I say, I presume from that testimony that -- that his

22     judgement was that the value of using that system was offset by the

23     excessive risk.  But it implicates this question of whether it is per se

24     unlawful to use this system in an area with a known civilian population.

25        Q.   Well, Professor, the answer that I read to you of the brigadier's

Page 21519

 1     testimony didn't just indicate proportionality as a concern; it also

 2     indicated distinction.  Those are two distinct considerations, aren't

 3     they?

 4        A.   Actually, I think if you look at Article 51 of AP I, a

 5     disproportionate attack is one of three methods of defining an

 6     indiscriminate attack.  An indiscriminate attack is prohibited because it

 7     violates the principle of distinction, and there are several ways that an

 8     attack can fall into the definition of indiscriminate.  Violating the

 9     proportionality rule is one of a number of ways an attack can be

10     indiscriminate.  Using a weapons system that is incapable of

11     distinguishing between a lawful object of attack and protected

12     individuals is another definition of indiscriminate.  My view, and I

13     think this is clear from my report, is that the proportionality rule is

14     indelibly linked to the principle of distinction, but I believe that what

15     that quote you read to me reveals is an underlying assumption that the

16     weapons system itself is per se indiscriminate in that context.

17        Q.   Well, you foreshadowed me a bit, Professor, with respect to

18     Article 51.  The -- Article 51(4), subsection (c) is, I believe, the rule

19     that you've just referred to, using a method or means of attack that is

20     of a nature to strike military and civilian objects without distinction;

21     right?

22             And what I was asking you was whether Brigadier Rajcic's

23     testimony, that using MBRLs to fire at Martic's building would violate

24     the rule of distinction, did you understand that to mean that using MBRLs

25     would run afoul of that particular provision of Article 51(4)?

Page 21520

 1        A.   You're asking me to interpret what I believe the witness believed

 2     when he made that statement; is that correct?

 3        Q.   Yes.  Given the fact that he identified both distinction and

 4     proportionality, I'm asking you what you took that testimony to mean.

 5        A.   What I -- my understanding -- or my reaction to that testimony is

 6     that -- there's a -- that they've both been conflated in his mind.  The

 7     weapon is improper for use against this target because it -- it will

 8     produce an indiscriminate result.  Now, that, as I said, I think

 9     presupposes an assumption that the value of using the weapon in this

10     context is outweighed by the risk of excessive collateral damage or

11     incidental injury.  But there's also a flavour in the testimony that the

12     nature of the weapon itself is improper for use in this area.

13        Q.   Well, I'm not sure how to interpret the "flavour" part.  First of

14     all, what's your basis for believing that the concepts of proportionality

15     and distinction have been conflated in Brigadier Rajcic's mind?

16        A.   Could you read it again to me?

17        Q.   Sure.  I asked him whether there would have been a problem firing

18     122-millimetre rockets at Martic's building.  He answered:

19             "Yes, because of the rule of distinction ..."

20             And then he said:

21             "When one analyses the use of multiple ... rocket-launchers,

22     which has a greater density of projectiles, in terms of their impact on

23     the target point, it covers a broader area with these rockets if you

24     compare it with the 130-millimetre cannon, and the assessment was that

25     the proportionality or the balance between what might happen to the

Page 21521

 1     buildings around the target was unacceptable."

 2        A.   Well, the basis for that is he's focussing on -- he emphasises

 3     the area effect of the weapon and compares it with a weapon system that

 4     he assumes or is implied from his testimony is more precise in terms of

 5     its ability to be controlled.  So that leads me to think that - and

 6     again, I'm trying to read his mind through this statement, that he's

 7     thinking of two equations:  Is this a weapons system that because of its

 8     area effect is, itself, improperly used in a populated area; and what are

 9     we trying to achieve with its use; and as a result of this area effect,

10     is that objective legitimate to be sought by this weapons system?  And I

11     think both of them are proper considerations in this context.

12        Q.   Thank you, Professor.

13             And Brigadier Rajcic's assessment in this regard, doesn't it

14     indicate to you that Martic's building was, in fact, in a civilian

15     populated neighbourhood?

16        A.   Well, I think even the facts and assumptions said that he was in

17     a building where there was civilians, I believe, perhaps I'm mistaken.

18     Or he was in an apartment building.  I -- my answer is I didn't -- I

19     don't think I needed that to make that an element of my thought process.

20     I assumed that Martic was in a building -- in an apartment building,

21     which infers to me it's not a barracks.

22        Q.   Well -- okay, I think -- I think I understand your answer.

23        A.   It says:

24             "A flat of Milan Martic was on the top floor of a multi-storey

25     building that was built to house civilian police personnel."

Page 21522

 1             So maybe I was over presumptive there, but my assumption was it's

 2     a flat in an apartment that has civilians in it.

 3        Q.   And you did understand from Brigadier Rajcic's testimony that it

 4     was Milan Martic himself that was the target of the artillery attack and

 5     not the building; right?

 6        A.   The effect that they sought to achieve was to kill or disrupt

 7     Milan Martic, yes.  That was my assumption.

 8             MR. RUSSO:  Mr. President, I'll be moving on to another topic.  I

 9     don't know if this is a proper time.

10             JUDGE ORIE:  Well, it also depends on how much time you'd still

11     need, Mr. Russo.  And you -- well, you didn't promise, but you indicated

12     you would tell us at the end of the day.

13             MR. RUSSO:  I understand we have double session tomorrow,

14     Mr. President, and --

15             JUDGE ORIE:  Yes, although it may be that we can start only a bit

16     later in the afternoon, but let's -- you can -- yes.  By the way, you're

17     doing it the wrong way, Mr. Russo.  Telling us how much time you need

18     after you've asked how much time we have is the wrong order of thinking.

19     Let me say that we have no afternoon session.  Could you please give me

20     your answer.  Today we are assuming a lot of things.  Let's assume that

21     you have -- we have no afternoon session.

22             MR. RUSSO:  Well, if we had no afternoon session, Mr. President,

23     I think I would take the entire morning session.

24             JUDGE ORIE:  The entire morning session.

25             Could I hear from the Defence how much time they would think they

Page 21523

 1     would need for re-examination.

 2             MR. KEHOE:  At this point, very, very brief, Mr. President.

 3             JUDGE ORIE:  Very brief.

 4             I'm looking at the other Defence teams who will remain silent.

 5             MR. MIKULICIC:  No questions, Your Honour.

 6             JUDGE ORIE:  Yes.

 7             Same for you, Mr. Cayley.

 8             Mr. Russo, if we would have an afternoon session?

 9             MR. RUSSO:  Mr. President, I will certainly endeavour to complete

10     the examination within the morning session.  I understand the Court's

11     concerns.  If I had the rest of my examination to do, I would take both

12     the morning and the afternoon's sessions.  I am going to take the Court's

13     guidance into consideration, cut my examination down significantly, and I

14     will do my best to complete my examination in the morning session.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  The Chamber is inclined, Mr. Russo, to allow you to

17     use the morning session and not to immediately stop you if you were to

18     use some of the first afternoon session.  But before we'll give in to

19     this inclination, I would like to know whether that would still remain

20     within -- because the Chamber would like to finish the testimony of this

21     witness tomorrow.

22             And, Mr. Kehoe, that would not cause a problem to you?

23             MR. KEHOE:  No, Mr. President, it would not.

24             JUDGE ORIE:  Yes.

25             Then we will adjourn for the day.

Page 21524

 1             Yes, perhaps we could use the time for another matter which is

 2     still on my agenda.

 3             But, Professor Corn, you don't have to be bothered with what is

 4     still on our agenda.  Assuming that tomorrow would be the 11th of

 5     September, we'd then resume on the 11th of September, 9.00 in the

 6     morning, Courtroom I.  And I'd like to instruct you not to speak with

 7     anyone about your testimony, similar as I did before.

 8             THE WITNESS:  Yes, Your Honour.

 9             JUDGE ORIE:  We would like to see you back tomorrow morning, and

10     you know that there's a fair chance that we would not finish in the

11     morning session, which would mean that more likely it will be 4.00, 5.00,

12     or even 6.00 in the afternoon.

13             THE WITNESS:  Your Honour, I appreciate trying to get it

14     completed tomorrow to accommodate my class schedule.  Thank you.

15             JUDGE ORIE:  That's not the only reason why, but --

16             THE WITNESS:  I appreciate it.

17             JUDGE ORIE:  -- if that is a collateral effect of this decision,

18     then it's not bad.

19             Madam Usher, could you please escort the witness out of the

20     courtroom.

21                           [The witness stands down]

22             JUDGE ORIE:  The Chamber would like to deliver its decision on

23     the expert report of Renaud de la Brosse.

24             On the 22nd of July, 2009, the Gotovina Defence requested the

25     Chamber to take judicial notice of the witness's expert report.  On the

Page 21525

 1     24th of July, 2009, the Chamber asked the Gotovina Defence to submit the

 2     report pursuant to Rule 94 bis of the Tribunal's Rules of Procedure and

 3     Evidence, instead.  This can be found at transcript pages 20710 and 711.

 4     And on the same day, the Gotovina Defence submitted the expert report

 5     pursuant to Rule 94 bis.  The Gotovina Defence submitted that the report

 6     relates to Counts 1, 2, and 3 of the indictment.  The report concerns the

 7     use of propaganda by the Serbian authorities through the media and was

 8     previously admitted in the case of Prosecutor versus Slobodan Milosevic.

 9             On the 18th of August, 2009, the Prosecution filed its notice,

10     requesting the Chamber not to admit that report.  The Prosecution

11     contended that the report is not sufficiently relevant because it draws

12     no connection between the use of propaganda and the departure of Serbs

13     from Sector South.  Moreover, the Prosecution submitted that the

14     existence of Serbian propaganda is a background, non-contentious issue in

15     this case and the report adds nothing significant to the material already

16     in evidence.  The Prosecution further indicated that should the Chamber

17     decide to admit the report, it did not wish to cross-examine the witness.

18             The general standards of admissibility set forth in Rule 89 of

19     the Rules also apply to expert reports.  Rule 89(C) provides that a

20     Chamber may admit any relevant evidence which it deems to have probative

21     value.  In addition, the Tribunal's jurisprudence sets out the following

22     two requirements:  First, for a proposed expert report to be probative,

23     the witness who drafted the report must be considered an expert by the

24     Chamber; and second, the content of the expert report must fall within

25     the accepted expertise of the expert witness.  An expert is a person who,

Page 21526

 1     by virtue of some specialised knowledge, skill, or training, can assist

 2     the trier of fact to understand or determine an issue in dispute.

 3             The Chamber notes that the expert status of the witness as such

 4     is not disputed by the parties.  On the basis of the witness's curriculum

 5     vitae submitted on the 6th of May, 2003, by the Prosecution in the case

 6     of Prosecutor versus Slobodan Milosevic, the Chamber is satisfied that

 7     the witness qualifies as an expert in the use of propaganda through the

 8     media and that the report falls within his expertise.  The Chamber

 9     further notes that the report provides at least the required minimum

10     degree of transparency in the sources and methods used.  For these

11     reasons, the Chamber is satisfied that the report is probative.

12             With regard to relevance, the Chamber notes that the report

13     discusses the control exercised by Serbian authorities over the Serbian

14     media and the use of propaganda by Serbian authorities in order to

15     further their political goals, by encouraging among Serbs fear and hatred

16     of non-Serbs.  It contains specific accounts of Serbian media reports

17     from 1991 through 1993, alleging crimes committed by Croats against

18     Serbs.  The report further describes the depiction by the Serbian media

19     in the same period of the Croatian community in general and the purported

20     aims of the Croatian regime under President Tudjman specifically.

21             The report does not address whether and to what extent civilians

22     in Sector South were exposed to Serbian propaganda, nor does it make a

23     connection between such propaganda and the departure of Serb civilians

24     from Sector South.  Nonetheless, the Chamber considers that the expert's

25     discussion of propaganda in the Serbian media may assist the Chamber in

Page 21527

 1     understanding the information that may have been available to the Serb

 2     civilians leaving the Sector South area around the time of

 3     Operation Storm.  As a result, the matter addressed in the report is

 4     relevant to the indictment, and in particular to the alleged charges of

 5     persecution of Count 1 and deportation and forcible transfer of Counts 2

 6     and 3.

 7             For these reasons, the Chamber is satisfied that the report meets

 8     the requirements for admission set out in Rule 89(C) of the Rules as well

 9     as those set out in the Tribunal's jurisprudence, and admits the expert

10     report of Witness de la Brosse into evidence.  The Chamber instructs the

11     Registrar to assign an exhibit number to the report and to inform the

12     parties and the Chamber of the exhibit number so assigned.

13             And this concludes the Chamber's decision on the admission into

14     evidence of the expert report of Witness de la Brosse.

15                           [Trial Chamber and Registrar confer]

16             JUDGE ORIE:  Mr. Registrar.

17             THE REGISTRAR:  Your Honours, that becomes Exhibit Number D1645.

18             JUDGE ORIE:  And is, as follows from the decision, admitted into

19     evidence.

20             Sometimes I'm surprised how badly people learn from their own

21     long experience how could I have been so optimistic to think that we

22     would finish at 7.00 when I still had to read a three- or four-page

23     decision.  My apologies to transcriber and to the booths for this

24     mis-judgement.

25             We adjourn, and we'll resume on the 11th of September, 9.00 in

Page 21528

 1     the morning, Courtroom I.

 2                           --- Whereupon the hearing adjourned at 7.05 p.m.,

 3                           to be reconvened on Friday, the 11th day of

 4                           September, 2009, at 9.00 a.m.