1 Tuesday, 27 October 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.15 p.m.
5 JUDGE MOLOTO: Good afternoon to everybody in and around the
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
9 everyone in and around the courtroom.
10 This is case number IT-04-81-T, the Prosecutor versus
11 Momcilo Perisic. Thank you.
12 JUDGE MOLOTO: Thank you so much.
13 Could we have appearances for today, please, starting with the
15 MR. SAXON: Good afternoon, Your Honours. Dan Saxon,
16 Barney Thomas, and Carmela Javier for the Prosecution.
17 JUDGE MOLOTO: Thank you very much, Mr. Saxon.
18 And for the Defence.
19 MR. GUY-SMITH: Good afternoon. Chad Mair, Tina Drolec,
20 Novak Lukic and Gregor Guy-Smith on behalf of General Perisic.
21 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
22 You can call the witness in.
23 [The witness takes the stand]
24 WITNESS: ROBERT ADAM MUNGO SIMPSON MELVIN [Resumed]
25 JUDGE MOLOTO: Good afternoon, Major General.
1 THE WITNESS: Good afternoon, Your Honour.
2 JUDGE MOLOTO: You may be seated.
3 Just to remind you, Major General, that you are still bound by
4 the declaration you made at the beginning of your testimony, to tell the
5 truth, the whole truth, and nothing else but the truth.
6 THE WITNESS: I understand that, Your Honour.
7 THE COURT: Thank you so much.
8 Mr. Guy-Smith.
9 MR. GUY-SMITH: Thank you.
10 JUDGE MOLOTO: You're welcome.
11 Cross-examination by Mr. Guy-Smith: [Continued]
12 Q. Before I ask you any questions, sir, I just want to make sure
13 that I can be heard by the various translators, because this is a room in
14 which I sometimes have troubles with the microphones.
15 MR. GUY-SMITH: If I can get some affirmation with regard to
16 people being able to hear me, I would appreciate it.
17 JUDGE MOLOTO: I can hear you, Mr. Guy-Smith.
18 MR. GUY-SMITH: Very good. Thank you very much, Your Honour.
19 Q. We left our conversation last night discussing that Jackson
20 under national command. Do you recall that, sir?
21 A. Yes, I do.
22 Q. And with regard to that particular issue, I'd like to expand it
23 for a moment, if I could, and discuss with you, if I understand it
24 properly, the principle of unity of command. And I take it that's a
25 principle you're aware of; correct?
1 A. I'm aware of that, as I am equally aware of the associated
2 principle of unity of effort.
3 Q. Okay. Well, you have me there. And with regard to the issue of
4 unity of command, could you kindly explain to the Chamber what that
5 principle is?
6 A. Unity of command is a principle that serves to provide coherence
7 to either a national or multinational force. It involves, as far as
8 possible, the use of a common doctrine, an approach to operations, and,
9 more particularly, a clear chain of -- chain of command.
10 Q. Okay. And with regard to the clear chain of command, part of
11 what we were discussing yesterday was that the clear chain of command for
13 A. Ultimately, it did.
14 Q. You've mentioned another notion, and I don't want to leave you
15 alone with that, and since it's of some importance to you. What is the
16 associated principle of unity?
17 A. The associated principle of unity of effort is to ensure that the
18 activities or actions of a joint, combined, or multinational force are
19 directed towards a common -- a common aim or a common objective, unity of
20 effort. So it's associated to unity of command.
21 Q. I understood. Now, I want to see if I can understand, for
22 purposes of our discussion, a couple of general ideas, and one of them
23 has to do with the notion of misinformation as a tool of war.
24 So my first question to you is -- my first question to you is:
25 With regard to --
1 JUDGE MOLOTO: Mr. Saxon.
2 MR. SAXON: Your Honour, this -- General Melvin is here appearing
3 as an expert, and my concern is that my colleague is now going to an area
4 that is beyond his expertise.
5 MR. GUY-SMITH: I believe I'll be able to tie it up with a
6 question or two, and I don't believe I'm going beyond his expertise at
8 JUDGE MOLOTO: In what way, Mr. Saxon, is Mr. Guy-Smith going
9 beyond the expertise of the expert?
10 MR. SAXON: Well, as far as I can recall, nothing in the four
11 corners of General Melvin's report or the questions that were asked of
12 him relate to misinformation or the use of misinformation.
13 JUDGE MOLOTO: That is true, but can that then come under the
14 rubric of lack of expertise in this topic or does it come under any other
16 MR. SAXON: Well --
17 JUDGE MOLOTO: Is your ground of objection, then, appropriate?
18 MR. SAXON: It is -- well, I will take your point. I would say
19 it does -- it may fall under the ground of lack of expertise, and it
20 certainly falls beyond the scope of General Melvin's report and what he
21 was asked to do. He was not asked to comment about issues of
23 JUDGE MOLOTO: Is the basis of your objection relevance or the
24 lack of expertise in the question asked? That's what I'm asking you.
25 MR. SAXON: Both, Your Honour.
1 JUDGE MOLOTO: Are you saying that a military expert would not
2 have knowledge of whether or not misinformation does get used as a tool
3 of war or not?
4 MR. SAXON: Your Honour, I'm going to withdraw that objection.
5 I'm hearing you. Thank you.
6 JUDGE MOLOTO: Thank you so much, Mr. Saxon.
7 MR. GUY-SMITH:
8 Q. Do you have my question in mind, sir?
9 A. I'm waiting for your question.
10 JUDGE MOLOTO: The question, sir, was: Does misinformation get
11 used as a tool of war? Or something to that effect.
12 THE WITNESS: Thank you, Your Honour.
13 The more common military term which I'm familiar with is the term
14 "deception." And under that heading of "deception," which seeks --
15 "deception" seeks to confuse one's opponent, to deny him an insight into
16 your plans, and to put him off balance, misinformation could - and I
17 believe does - belong under the general heading of "deception."
18 Q. Using your term, then, "deception," which I'm happy to adopt,
19 when a commander receives information from sources other than through his
20 own chain of command, is the question of whether or not the information
21 that is received, one that falls into this general rubric of deception,
22 one of the considerations which is taken into account when analysing the
23 information received?
24 A. In an estimate of the situation, a commander and staff at any
25 headquarters, certainly at a headquarters -- a higher-formation
1 headquarters, will review the information they receive particularly with
2 a view -- the information they've been receiving, particularly their
3 assessment of enemy strengths, dispositions, and assessed intentions, may
4 be designed to mislead and, therefore, would come under "deception."
5 JUDGE MOLOTO: If I may just go back to a question that
6 Mr. Guy-Smith asked you earlier, when he still used the word
7 "misinformation." Do you agree with that question that he raised, that
8 then deception, to use your term, is used as a tool of war?
9 THE WITNESS: Yes, it is. It has --
10 JUDGE MOLOTO: Thank you.
11 MR. GUY-SMITH:
12 Q. I'm noting your answer with regard to the question of deception
13 and the kinds of areas. I take it that it goes beyond issues of enemy
14 strength, dispositions, and assessed intentions.
15 A. I was only giving you some examples of --
16 Q. Sure.
17 A. -- those areas in which intelligence staffs would advise their
18 commander to look at. This is part of the normal military estimate
19 process. And to clarify, in that process, one, through training and
20 experience, looks out for potential areas where a deception might be
22 Q. Understood. And with regard to one of the areas where a
23 deception might be occurring, and you've mentioned on a couple of
24 occasions in your testimony that we've moved into, I think it would be
25 fair to say, a new technological age where information is moving much
1 more quickly, you used, for example, e-mails, is what you'd referred to.
2 A. Yes, that - if I recall correctly - was in the context in
3 clarifying a point raised by the Judge over the powers of discipline from
4 a -- as far as I can recall from my testimony.
5 Q. Right. It was the Commonwealth [overlapping speaker] --
6 A. Yes, that is correct.
7 Q. But I'm taking it in a slightly different area for the moment to
8 see whether this is accurate or not, which is: One of -- one of the
9 areas or one of the features of war has become, in a way, different from
10 days gone by because of technology is news reporting?
11 A. I think news reporting has been a very important aspect of
12 warfare, certainly since the Crimean War.
13 Q. Okay. Well, once again, you know much better than I do in this
14 regard. And with regard to the issue of news reporting, this is also an
15 area where forces or a commander would have to engage in an analysis with
16 regard to the question of deception as to whether or not the information
17 that is being promulgated through the news is accurate information or
18 not. Is that a fair statement?
19 A. That is a very fair statement. Certainly, in my own experience,
20 in any military operation, or planning of operation, one has to take into
21 account the perception -- public perception, that which is reported in
22 the news.
23 Q. And with regard to the whole issue, when trying to understand the
24 accuracy of information that's received, I take it that one of the things
25 that a commander would do, and I'm asking, once again, is -- would rely
1 upon the intelligence information that was promulgated by their own
3 A. Yes, that would be a very important source of information, but
4 not the only one.
5 Q. Okay, understood. And when there's a contradiction because of
6 this issue of deception, I'm sure there's no hard-and-fast rule as to --
7 as to how determinations are made, but it would be more likely than not
8 that in such a situation a commander would rely on the intelligence
9 received from his own sources internally, that information, would it not?
10 I'm asking as a general proposition.
11 A. As a general proposition, and I'm not an expert on intelligence,
12 but I would -- from my own recollection, it's very important, in
13 assessing information, intelligence, to rely on as many -- or to use and
14 assess as many sources as possible. But within that, clearly, as I think
15 you, yourself, have indicated, one would apply a particular emphasis on
16 one's own intelligence sources.
17 Q. And when dealing with, for example, and once again going back
18 to -- well, no, we won't go back to that. When dealing with a decision,
19 in the multinational force context, whether or not to red-card or not,
20 and I'll ask you for a definition of red-carding in a second, whether or
21 not to red-card or not, the reliance would be on one's own forces in
22 determining whether or not to take a particular action or not?
23 And before you answer the question, you should probably define
24 "red-card," because I put a term in that I don't think we've discussed,
25 but I read in your report which is --
1 A. Would it assist you if I tried to clarify what I meant by
2 red-carding first?
3 Q. Sure.
4 A. "Red-carding" is a non-doctrinal term that is used widely within
5 the military domain. It tries to express the eventuality or potential
6 eventuality that a national contingent commander, in certain
7 circumstances, might feel that he cannot carry out the orders of a
8 multinational commander. There are potentially, you know, three
9 circumstances -- at least three circumstances in which that could happen.
10 Firstly, he could, inverted commas, "red-card," inverted commas, a task
11 or omission, if that went beyond the command state, which we discussed
13 Q. Understood.
14 A. The second area where a potential red-card could be applied is
15 over rules of engagement. And the third area is that the -- which is
16 linked to the command state, the national contingent commander could
17 argue that what he's being asked to do goes beyond the mission given to
18 him and the intent of either the multinational commander or the intent of
19 the troop-contributing nation or the national command chain.
20 JUDGE MOLOTO: Or couldn't he also red-card an illegal -- an
21 unlawful instruction?
22 THE WITNESS: That's what I was going to come on to, Your Honour.
23 Those were what I call the doctrinal areas. And as I stated in my
24 report, that ultimately, if he felt what he was going to be asked to do
25 was illegal, he, on that basis, could say, I'm not prepared to carry out
1 that task.
2 MR. GUY-SMITH:
3 Q. I take it, then, that the question that I asked you with regard
4 to red-carding was a bit off, really, then.
5 A. No. I think it was useful to clarify, for the Court, the term
6 "red-carding," but I'm not quite sure I've quite understood the link
7 between your first question and the red-carding.
8 Q. There's the issue of -- let me withdraw the question, because
9 I think in your explanation of red-carding, you've taken us -- you've
10 taken us to an explanation that is of help and does -- and does, in
11 another way, clarify what I was thinking about, without going into it any
13 We've talked about one aspect of a tool of war, which is
14 deception. And another aspect of operating within the military is the
15 importance of secrecy; correct?
16 A. That is correct. And as more normally termed within the
17 military, operation security.
18 Q. Okay. And when talking about military secrecy or, as you've put
19 it, operation security, now that is a feature that exists in every
20 standing army in the world, I would think. Is that --
21 A. Certainly within my experience, all armed forces will try to
22 protect the security of their operations and plans, and hence a great
23 deal of documentation will be classified.
24 Q. And with regard to the -- with regard to the issue of the
25 information being classified, using, for example, what we discussed here,
1 which is multinational forces, even in a situation where you have forces
2 that are working together, they independently have operational security
3 issues which are not shared with each other; correct?
4 A. In principle, you're -- you are correct, but I think it would
5 help if I elaborate that within an alliance or coalition, normally you
6 see two types of classification being used. One will be that
7 classification which will be used more generally within the alliance or
8 the coalition; i.e., it is an agreed classification state that is used by
9 all the members of that alliance or coalition, and that will be the
10 general norm. That will be the default setting. If it weren't the
11 default setting, that operation or command structure would not function
12 effectively. But as you've indicated, within that command structure
13 there could be particular classifications, particularly in the
14 intelligence arena, where one or more nations might decide to retain a
15 certain amount of their information and not disclose it to all of their
16 allies or coalition partners.
17 Q. Is there any particular standard that's used for that or is that
18 something that happens on an ad hoc basis, and by that I mean what is
19 deemed to be practical at the time by that particular army and those
20 particular commanders?
21 A. Well, there are -- to my experience and knowledge, there are --
22 within the NATO alliance, you'll see classifications states such as "NATO
23 unclassified" or "NATO restricted" or "NATO secret," but in -- within
24 that general alliance framework, I have seen a documentation marked, for
25 example, for US or US and UK
1 have similar arrangements, but I'm not an expert in this area.
2 Q. But that would not be an uncommon feature?
3 A. I don't think it is.
4 Q. In your experience, have you come across a situation where a
5 single army broke up into several armies, using the same officers, rules,
6 regulations and laws, both fighting against and with each other?
7 A. I can only offer two broad recent historical examples, but may
8 not meet all the conditions of your question. I'm aware, through
9 personal direct experience, and this is maybe where you are heading with
10 the thrust of the question, that the Army of the former Republic of
12 the break-up of the Soviet Union, elements of the resulting states, and I
13 know with more experience of the Ukraine
14 a lot of the doctrine and procedures of the former Soviet Union, but over
15 time has evolved its own structures and doctrine and has gone its own
16 independent way. But it doesn't meet the condition. They've never been
17 engaged in any but friendly relations with each other.
18 Q. Okay. And you mentioned, in that, the matter of over time, and
19 I think it would be fair to say - and you would agree - that an
20 institution being built is something that does not happen in a day or
21 even a week, but rather it's something that takes a period of time to
22 develop in its own fullness.
23 A. Yes. I can venture another historical example which may be
24 equally familiar. On the break-up of the British Empire, the armed
25 forces of the sovereign states of the British Commonwealth, for a very
1 long time, followed similar procedures and doctrine, and one can remark
2 today that quite large elements of the Indian and Pakistani Army's
3 structures, doctrine and procedures, are similar to that which the
4 British Army had a good number of years ago. But, again, this is outside
5 my report of command, but I'm relying here on my general knowledge and
6 experience of military affairs.
7 Q. And in regard to that last comment that you have made, those
8 armies, and by that I'm referring to the Indian and Pakistani Army, those
9 are completely independent armies from the British?
10 A. Absolutely.
11 Q. I see.
12 A. Absolutely.
13 MR. GUY-SMITH: If I could have a moment.
14 JUDGE MOLOTO: You do.
15 [Defence counsel confer]
16 MR. GUY-SMITH:
17 Q. Looking at the conclusions in your report, sir, and I'm referring
18 to section 4.1, you state:
19 "Although this report refers both to national British and
20 multinational NATO doctrine, the principles are broadly the same.
21 Indeed, it is stated British doctrine that NATO doctrine applies unless
22 separate and specific national direction and guidance is required."
23 A. That is correct, and similar terminology to that is often
24 appended in NATO publications issued within Britain to say -- and it is
25 standard NATO procedure that nations, if they have any reservations to
1 any part of that doctrine, states -- states specifically so.
2 Q. And you go on to be really -- in a very specific manner, to
3 identify the parameters of your report, which is something that we talked
4 about a bit yesterday also when we were referring to I believe it's
5 paragraph 2.6, which I will not reiterate at this point in time, but here
6 you say at 4.2:
7 "No attempt has been made to compare UK or NATO doctrine with
8 that of the FRY or Serbia
10 A. That is absolutely correct.
11 Q. And the report that we have before us, as you've told us, is a
12 report that deals with an understanding of general principles, mainly
13 defined through NATO glossary, and is generic in nature?
14 A. That is correct.
15 MR. GUY-SMITH: Thank you very much, sir.
16 JUDGE MOLOTO: I guess you're signifying that you have no further
17 questions, Mr. Guy-Smith.
18 Just before I hand you over to counsel for the Prosecution to
19 re-examine, Major General, you've just referred to the Army of the former
20 SFRY when asked about an army that breaks up into pieces and then fight
21 amongst one another, against one another, and with each other. What I
22 would like to ask you is: Against the background of your report that
23 deals mainly with multinational forces, how would you characterise the
24 resulting armies that emerged out of the break-up of the SFRY Army in the
25 milieu they found themselves in the period of 1992 to 1995?
1 THE WITNESS: With respect, Your Honour, that's a very big
2 question. Would you please give me a minute or so to get my thoughts
3 together to give the Court a good answer to that question?
4 JUDGE MOLOTO: Please do. Take as much time as you need. I just
5 want an umbrella kind of characterisation.
6 THE WITNESS: Your Honour, I think I'm prepared now to offer you
7 an answer to your question, but first of all I would just, for the
8 record, state I'm not an expert on this issue and, therefore, would
9 caveat my answer which is based on my general military knowledge.
10 In answering your question, I would state the following: The
11 Yugoslav National Army was, as its name suggests, a national army that
12 reflected in its composition of members of the various ethnic groups that
13 made together the former Republic of Yugoslavia
14 former Republic of Yugoslavia
15 the various resulting armies had at least a common tradition and one
16 based on historical developments from 1945 to 1991.
17 Therefore, it is reasonable to suppose that certain aspects of
18 doctrine could and were applied in a similar manner, but that's as far,
19 really, as I'm prepared to go at this stage, Your Honour.
20 JUDGE MOLOTO: Just allow me to push you just a little.
21 Would you -- would you regard the emerging armies as a
22 multinational force, or how would you regard that?
23 THE WITNESS: No, I certainly would not regard them as a
24 multinational force, because they were quite disparate forces. They were
25 no longer operating under a unified command structure. In fact, for much
1 of the time, as I recall, those elements were engaged in combat against
2 each other.
3 JUDGE MOLOTO: Given that answer that you have just given, to
4 what extent would you say your report is or is not relevant to the
6 THE WITNESS: With respect, Your Honour, I don't think it's fair
7 to ask whether -- having been invited here, whether my report is relevant
8 or not. I don't think you can, with respect, sir, ask me to answer that
10 JUDGE MOLOTO: Let me withdraw the question. If I substituted
11 the word "applicable" for the word "relevant," would you go along with my
12 question? To what extent is your report applicable to the situation that
13 pertained in the former Yugoslavia
14 THE WITNESS: Well, with respect, Your Honour, that would depend
15 on how -- how the Court wishes to use the information I've provided.
16 What I was asked to do was to provide answers to four questions, specific
17 questions, and in so doing I provided some context to that. And through
18 my knowledge and experience, I gave some context to the medium of NATO
19 and national doctrine.
20 JUDGE MOLOTO: Okay.
21 THE WITNESS: I did not, if I may add - and as I've stated, and
22 both counsels, and you're aware of this - did not in my report to compare
23 and contrast, as it states, I think, paragraph 4.2, with the former
24 Yugoslav command-and-control principles. Had I been asked to do that, I
25 would have done so.
1 JUDGE MOLOTO: Now, I understand that. And I'm awfully sorry I
2 used the word "relevant" earlier, and I see you take very strong
3 exception to that to the extent it percolates into subsequent questions,
4 and I just want to say I didn't mean to be unfair to you or be unkind to
5 you or to ridicule you.
6 THE WITNESS: No offence is taken, Your Honour.
7 JUDGE MOLOTO: But what I really do want to understand is, yes,
8 you were given questions to answer, you gave your answers to those
9 questions within a context, and the context you provided was the context
10 of multinational forces. You used NATO and the British Army, together
11 with the Gurkha and French armies and the foreign legions. My only
12 question that I would really like to understand from you is: Within that
13 context of multinational forces, do you see, and if you do, can you tell
14 us how, is -- how are your answers to the questions put to you applicable
15 to this situation, if you're able to help us? If you're not able to
16 help, then you're not able to help.
17 THE WITNESS: I'm here to assist the Court, so, Your Honour, I
18 will first of all stress I take no offence from your question --
19 JUDGE MOLOTO: Thank you so much.
20 THE WITNESS: -- and I will do my very best to answer all
21 question from the Court, and that's why I'm here.
22 I think there is two aspects, to answer your question. First of
23 all is of direct applicability. Had I been asked and had the time to
24 write a more comprehensive report, I could have done, and this
25 theoretically, written a much more detailed and lengthy report that would
1 have, as I said, compared and contrasted a wider section of military
2 doctrines and specifically would have, perhaps, looked at the details of
3 the former Republic of Yugoslavia
4 as a limitation.
5 But there is a second approach where I believe my report does
6 have a good degree of validity because it provides a standard. It
7 provides a standard through custom of usage being used by a large number
8 of nations over many years, and when particularly one wants to explore
9 the terms "command and control" and how multinational forces operate,
10 which was incumbent on me, I believe those were valid examples to use.
11 Let me try to bring that point to life in another way. In terms
12 of experimentation, one normally applies -- has a standard test applying
13 based on known evidence so that one can compare and contrast this when
14 one's looking at new experimental methods. I just try to make the point,
15 I don't think it's invalid to look at NATO command and control or at
16 British national doctrine when one's asked some questions about command
17 and control. It is up to others and the Court to assess, not I, its
18 validity in relation to this present case. I was acutely aware of that
19 fact and pointed out that limitation in my report, and specifically made
20 very clear those limitations which were clear to me on a normal
21 professional basis.
22 JUDGE MOLOTO: Thank you very much. I understand what you say,
23 and I just want to reassure you once again that there is no measure of
24 suggestion on my part that there is no validity in your report. There is
25 absolute validity in it, and my only -- what I'm trying to do here, I'm
1 trying to take lessons from your report to be able to use those lessons
2 in the task that is placed before me. And I appreciate that you
3 mentioned the limitations in your report, but I'm asking you -- let me
4 back off.
5 I also appreciate that you didn't go into as much detail as you
6 otherwise would have had you been asked to do, and I'm just asking you,
7 as you stand there, in a sentence to tell us, given the apparent
8 difference in context -- and let me tell you what I mean there. When you
9 talked about the multinational forces in your report, you talked about
10 forces that are cooperating. You have mentioned that the forces in the
11 former Yugoslavia
12 themselves, and I'm saying: Given those two different contexts, how
13 would you suggest to the Court it applies and uses your answers to the
14 questions in this situation, which seems to be so dissimilar, almost
15 contradictory, from the one that you describe in your report? And if you
16 are able to help there, I would appreciate it. If you are not, please
17 say you're not able to.
18 THE WITNESS: No, I think, well, Your Honour, I'm prepared to, as
19 I say, answer all questions, again bearing in mind my general knowledge
20 and experience.
21 I believe that there are a great deal of aspects of my report
22 that have general validity. For example, in the command model which I
23 described, though it may not be doctrinally defined in identical terms
24 across all armies, but by primary functions, I think it is reasonably
25 fair to propose that a commander has to make decisions, he has to lead
1 and inspire his force, and he has to control his force, as we discussed
2 yesterday. So I think when it comes, in particular, to the control
3 function, I believe the Court should be able to use the information I've
4 proposed in my report and analyse the various actions which are being
5 presented towards this case. But I have no knowledge of the detail, but
6 I suggest that one could use that, in particular, as a useful starting
7 point, because I believe that applies to a national contingent or
8 national force and is not particular to a multinational context which you
9 are making the point is quite distinctive from the one that -- that which
10 pertained during the break-up and subsequent conflict with the former
11 Republic of Yugoslavia
12 JUDGE MOLOTO: I thank you very much, and once again your answers
13 are very much appreciated. And I repeat, no offence was ever intended.
14 Mr. Saxon, any re-examination?
15 MR. SAXON: Yes, Your Honour. If I can take a moment to get the
16 podium, please.
17 JUDGE MOLOTO: Take your time.
18 Re-examination by Mr. Saxon:
19 Q. General Melvin, I think to start I will focus on the discussion
20 that you just had with Judge Moloto. And you told the Chamber that
21 the -- in your view, the emerging armies of the former Yugoslavia that
22 emerged following the break-up were not a multinational force; they were
23 quite a disparate force because they fought each other. Do you recall
25 A. Yes. At times, they were engaged in combat against each other.
1 Q. And, General Melvin, you're basing this comment on your general
2 knowledge; is that right?
3 A. That is correct.
4 Q. You're not basing that comment on your specific knowledge of the
5 specific facts of this case?
6 A. Not at all.
7 Q. And when you say that these forces fought each other, again from
8 your general knowledge and recollection, which forces were fighting each
9 other after the break-up?
10 MR. GUY-SMITH: Excuse me. I find myself in somewhat of an
11 awkward position because Mr. Saxon is engaged, I guess, in a redirect
12 that has taken into account your questions, Your Honour, as opposed to
13 dealing with my cross-examination, although I know obviously that
14 questions asked by the Chamber can generate questions from the parties.
15 However, in the manner that Mr. Saxon is presently questioning the
16 general, it seems that he is now engaged in impeaching his own witness,
17 and I'm not clear as to whether or not that is appropriate based either
18 on the questions that you have asked nor certainly on my direct
20 JUDGE MOLOTO: I'm not aware of a prohibition of counsel asking
21 questions arising from the Judges' questions, even questions that were
22 asked while either the witness was testifying either in-chief or in
23 cross, because the Bench intervenes at any stage, and at any stage after
24 intervening, counsel is entitled to ask questions arising from those
1 MR. GUY-SMITH: Very well. That's why I wanted --
2 JUDGE MOLOTO: I am also not under the impression that there is
3 an attempt to impeach. On the contrary, I see an attempt to clarify.
4 But you and I are guessing here until the next or subsequent questions
5 have been asked. We will be able to say whether there was an impeachment
6 or a clarification, but I seem to be seeing a clarification, rather than
7 an impeachment.
8 MR. GUY-SMITH: Very well. That's why when I started my remarks,
9 I said I find myself in a somewhat of an awkward position.
10 JUDGE MOLOTO: It was, in fact, a very awkward position,
11 Mr. Guy-Smith.
12 MR. GUY-SMITH: And I thank you for your guidance.
13 JUDGE MOLOTO: You're welcome.
14 MR. SAXON: I'll repeat my question, General Melvin.
15 Q. When you say that the forces that arose after the break-up of the
16 former Yugoslavia
17 which forces were fighting each other?
18 A. I -- I recall, and as is stated in my curriculum vitae, I had a
19 short period of operational service in the -- in the Balkans in 1995 and
20 returned on a number of occasions to visit that operational theatre, and
21 also in Kosovo. There were three principal parties to that conflict.
22 There were predominantly Serb-based forces, there were Bosniak
23 Muslim-based forces, and there were largely Croatian-based forces. I do
24 not have precisely, as I once did, the defined names of those forces in
25 my head. I have -- I think I have some of them in my head, but that's as
1 far as I can recollect at this point in time, Your Honour.
2 Q. And, again, going back to your initial response to His Honour
3 Judge Moloto that these were disparate forces because they fought each
4 other, so the fact that one force fought against another force, is that
5 for you an important criteria in determining whether emerging armies have
6 a multinational character or not?
7 A. No. I think, with respect, we're in danger of confusing
8 ourselves here. What I was -- what I was trying to -- to make clear to
9 the Chamber was that on the break-up of the former Republic of
11 their ethnic divide. They had a common tradition, had common doctrine,
12 and to a large extent had common -- had common weapons. They were
13 disparate, first and foremost, because they were no longer under a
14 unified command structure of the Yugoslav national army. That -- they
15 were never a multinational force because it was a unified national army.
16 The fact -- I was illustrating the point that they were no longer -- they
17 could not be regarded as a multinational force because they were fighting
18 each other. And by -- I think by common and self-definition, you can't
19 have a multinational force fighting each other, I mean, because it's no
20 longer a multinational force, it's a force -- it is no longer that -- a
22 But I don't think one can extend my point to provide a general
23 condition or general requirement for not being a multinational --
24 multinational force, the issue of fighting. I think, with respect,
25 Counsel, you've taken -- taken my words a bit far.
1 Q. Then let me try to simplify things, if I can. If emerging
2 armies, by contrast, work together, support each other in common
3 objectives, might that be one consideration in determining whether it's a
4 multinational force or not?
5 A. If -- if they were working together to commonly agreed-to
6 objectives, then some aspects of their actions and behaviour could be
7 regarded that they would be acting in a multinational manner. But,
8 again, as I've said in my report, one needs to clarify the specific
9 context, and within a coalition, as I think I've quoted in one of the --
10 the books I've used, there is a very wide spectrum of cooperation in a
11 multinational force.
12 One can have a very close cooperation, bound by law and rules and
13 regulations, such as NATO, or one can have a much looser, ad-hoc
14 coalition, where parties come together purely for very pragmatic reasons,
15 and that coalition can be very -- of short duration. So, again, the time
16 factor can be relevant, but is not the only condition.
17 Q. Thank you. Moving on, General, to a different topic. Today, in
18 response to a question from my colleague, Mr. Guy-Smith, you described a
19 concept called "unity of effort." Do you recall that?
20 A. Yes, I did.
21 Q. And I hope I jotted down your definition correctly. What I wrote
22 down was:
23 "Unity of effort is necessary to ensure that the actions of a
24 joint, combined, or multinational force are directed toward a common aim
25 or common objective."
1 Have I caught the essence of your definition correctly?
2 A. Broadly. It is -- what I've said I don't believe matches word
3 for word the NATO lexicon, but if -- to assist you and the Court, I'm
4 prepared to elaborate further.
5 Q. No. General, is what I've just read back to you, is that a
6 broadly accurate --
7 A. Broadly, broadly so, that is correct.
8 Q. Thank you. My question, then, is: Does unity of effort by
9 parties to a multinational force require planning?
10 A. As I say -- as I said in an earlier answer to the other counsel,
11 that unity of command and unity of effort go together, and unity of
12 effort does require a degree, and sometimes a very close degree, of
13 cooperation over planning. Without cooperation, without combined
14 planning, it is highly unlikely that you will achieve a unity of effort.
15 One of the ways in which you achieve that unity of effort is through the
16 unity of command, so they are linked in that manner.
17 Q. Very well. Later on in -- during your cross-examination today,
18 you explained to my colleague that when assessing information -- when a
19 commander is assessing information, it is important to use as many
20 sources as possible, with a particular emphasis on intelligence sources.
21 Do you recall that discussion?
22 A. I do.
23 Q. And I know we've used this phrase, I guess, quite a bit
24 yesterday, "modern army." For a commander of a modern army, would
25 international news reporting about events that the commander's forces are
1 participating in, might that be a source of information for his or her
3 A. In a general sense, yes.
4 Q. And suppose that the commanding officer hears from either local
5 news reports or international news reports that his forces are engaged in
6 crime. What duty would that commander have?
7 A. He would have a duty of -- of initiating an investigation to get
8 to the facts of the matter.
9 Q. I'd like to direct our attentions to some discussion that you had
10 with Mr. Guy-Smith yesterday, General Melvin. First of all, this is at
11 page 9406 of the transcript, lines 20 to 23, Mr. Guy-Smith had asked you
12 about your use of the word "normally," and this is what you said:
13 "I've used the word 'normally' both in my report and in my
14 testimony because, as the Court will have noted, that my report is based
15 both on doctrine and on my understanding borne of experience."
16 And then you say this:
17 "And either doctrine --" or at least this is what the transcript
19 "And either doctrine nor experience can account for all
21 My question for you is: Did you use the word "either" in that
22 last sentence?
23 A. I'm just seeing it coming up on the screen now. If I said
24 "either" there, either I spoke badly or it's been badly quoted. I think
25 it is fair - and the Court will understand - that the sentence should be
1 "neither doctrine, nor experience, can account for all eventualities." I
2 think this is either a simple slip of my tongue or a mistake in the
4 Q. Thank you. And at page 9407 of the transcript, lines 3 to 13,
5 and again in a discussion with Mr. Guy-Smith, you said that you drew your
6 conclusions and information in your report from NATO national doctrine
7 and your experience with the British armed forces and within NATO. Do
8 you recall that?
9 A. I do.
10 Q. My question for you is: To your knowledge, how many states
11 participate in NATO?
12 A. As far as I can recall, 27.
13 Q. Thank you. At page 9409 of the transcript of yesterday, lines 20
14 through 23, in response to a question from Mr. Guy-Smith about
15 mercenaries and the definition of the term "mercenary" that you provide
16 in footnote 16 of your report, you said:
17 "I included this to make it clear that I was referring to the
18 legitimate secondment of individuals from Nation A to Nation B and not --
19 and, therefore, not anything that could be confused with mercenary."
20 Do you recall that?
21 A. Yes, I do.
22 Q. General, very simply, when you refer to the "legitimate
23 secondment of individuals" from the army of Nation A to Nation B, which
24 individuals are you talking about?
25 A. I'm talking about here the secondees. I'm talking about
1 individuals that are posted or seconded from their home nation state to
2 another state. I had in particular mind when I wrote that passage,
3 because I'm familiar with the example, of soldiers and officers of the
4 British armed forces being seconded to the armed forces of the Sultan of
6 Q. So what you were referring to when you refer to the legitimate
7 secondment of individuals from the army of Nation A to Nation B would
8 include soldiers and officers of the army of Nation A; is that correct?
9 A. That is correct. Their secondment is authorised by their home
10 nation and contributing -- contributing nation.
11 MR. SAXON: Can we please take a look at what has been marked for
12 identification P2772.
13 Q. General, this is your report.
14 MR. SAXON: And if we could turn to paragraph 3.1.6, please.
15 3.1.6 should be on page 11 in the English e-court version, and if we
16 could go to the same page in the B/C/S version, please, and if we go back
17 to page 10 in the B/C/S version.
18 Q. Paragraph 3.1.6 introduces the subject of mercenaries, but the
19 first two sentences read thusly:
20 "The least formal method of cooperation is the recruiting of
21 individuals of one nation (and hence nationality) by another, which is
22 tolerated, if not encouraged, by the individual's sending nation. Within
23 the British Army, for example, recruits comprise individuals across the
24 whole of Ireland
1 Have you been following me, General?
2 A. Yes, I have the text in front of me.
3 Q. General, must members of the army of a nation always be citizens
4 of that nation?
5 A. Sorry, I don't quite follow your question. What are you --
6 Q. Well, in this paragraph, you're talking about the British Army
7 recruiting, amongst others, individuals across the whole of Ireland
8 people from Nepal
9 the army of a nation always be citizens of that nation?
10 A. Not necessarily, but I would wish to draw your attention to the
11 whole area of citizenship. But my experience, and I'm not legally
12 trained in this matter, is a very complex area, but I can inform the
13 Court that Gurkha soldiers, on retiring from the British Army, now have
14 rights of citizenship.
15 Q. And, General, though, that means implied in your answer is that
16 those same Gurkha soldiers, while they're serving with the British Army,
17 are not necessarily citizens of the United Kingdom?
18 A. They may not have relinquished their citizenship, as far as I
19 understand. Again, this is a very complex area.
20 Q. All right. And going back to your testimony from yesterday about
21 the legitimate secondment, very simply, must the individuals seconded
22 from the army of Nation A to the army of Nation B always be citizens of
23 Nation A?
24 A. And that's a very hypothetical question. I broadly, broadly said
25 I would suggest the answer to that is, Yes, but I don't think I could
1 exclude all -- all eventualities or other possibilities.
2 Q. Okay. So it's possible that they might -- that individuals
3 seconded from the army of Nation A to the army of Nation B might not be
4 citizens of Nation A; it's possible?
5 A. Well, I think you'd have to have, in this case, two conditions --
6 Q. Can you just tell me, yes or no, is it possible?
7 MR. GUY-SMITH: I think he should be allowed to answer the
8 question, Mr. Saxon.
9 THE WITNESS: With respect, it's not a simple yes-or-no answer
10 here. The -- a number of conditions would have to be met. For example,
11 if an individual had been recruited, let's say an individual from Nepal
12 as a Gurkha, had been recruited into the British Army, so he is a
13 citizenship -- citizen still of Nepal
14 let's say he puts himself forward and volunteers for a secondment post to
15 another State B. Let's take Oman
16 example, you could have the condition you are describing, but I do not
17 know whether it's a practical example, I do not know whether it's ever
18 happened or not.
19 MR. SAXON: All right.
20 JUDGE MOLOTO: You are not privy to the arrangement between
22 soldiers serving in the British Army?
23 THE WITNESS: Not in -- not in great detail. All I researched
24 for this report was the raw statistics. I know in my own experience,
25 Your Honour, having dealt with it in my previous appointment, the
1 stationing issues of Gurkha soldiers in Germany, for example, is a
2 complicated issue, so I'm familiar with some aspects of this, but I --
3 but, again, it is a complicated area which we have expert staffs dealing
4 on these very complicated issues of citizenship and right of access into
5 various countries, and, indeed, on any following-on issues of -- of
7 JUDGE MOLOTO: Thank you. You may proceed, Mr. Saxon.
8 MR. SAXON: Thank you, Your Honour.
9 I have no further -- excuse me. I may have one further question.
10 Q. Perhaps one final question for you, General. You were talking
11 today, on cross-examination and then just a moment ago as well, about the
12 concept of unity of command and unity of effort. Can you explain how the
13 concept of unity of command would apply to a seconded force where the
14 national commander of the sending state retains full command, but at the
15 same time the commander of the receiving state has operational command or
16 operational control?
17 A. There is no general contradiction here. The unity of command
18 within an alliance or coalition or multinational context is already
19 within that framework where it is understood that nations retain the full
20 command. The unity of command applies as a general principle to provide
21 cohesion in the planning and conduct of operations, and it applies
22 generally across command states and rules of engagement, so it is a --
23 it's a principle. If -- and it's laid out and explained in NATO doctrine
24 along those lines, and in fact it is quoted in one of the exhibits taken
25 into the court.
1 MR. SAXON: Thank you.
2 Your Honours, I have no further questions.
3 Thank you, General.
4 THE WITNESS: Thank you.
5 JUDGE MOLOTO: There are no further questions from the Bench.
6 That brings us to the end of your testimony, Mr. -- I beg your
7 pardon, Major General Melvin. Thank you so much for taking the time off
8 to come and testify before the Tribunal. You are now excused.
9 You may stand down, and please travel well back home.
10 THE WITNESS: Thank you, Your Honour. It's been an honour to be
11 here to assist the Court.
12 JUDGE MOLOTO: Thank you so much.
13 [The witness withdrew]
14 JUDGE MOLOTO: Are you going to have any witness for this
15 afternoon, Mr. --
16 MR. SAXON: Your Honour, before we discuss issues of witnesses,
17 we still have exhibits that have been marked for identification, and I
18 believe there will be some discussion. Perhaps we should take the first
19 break now and then come back, and I believe the parties will have some
20 arguments to provide to the Trial Chamber.
21 JUDGE MOLOTO: Okay. We'll take a break and come back at 4.00.
22 Court adjourned.
23 --- Recess taken at 3.31 p.m.
24 --- On resuming at 4.01 p.m.
25 JUDGE MOLOTO: Mr. Saxon.
1 MR. SAXON: Your Honour, at this time I would move for the
2 admission of the following materials that have been marked for
3 identification: This is P2772, which is the expert report of
4 General Melvin; P2773, the allied joint publication doctrine at footnotes
5 8 and 10 of the report; P2774, the ADP land operations publication at
6 footnotes 9 and 17 of the report; P2775, the British Army doctrine
7 publication called "ADP, Volume 2, Command," at footnote 11 of the
8 report; P2776, NATO document known as "AAP-6" referred to at footnotes 18
9 to 21 of General Melvin's report; and P2777, the excerpt from the United
10 Kingdom Manual of Military Law referred to at footnote 22.
11 JUDGE MOLOTO: Thank you, Mr. Saxon.
12 Mr. Guy-Smith.
13 MR. GUY-SMITH: Yes. We would object to the admission of the
14 report and the supporting documents to that report that have just been
15 listed by Mr. Saxon.
16 I'm not going to spend time going through the history of the
17 Prosecution's various rendering or submissions of experts before this
18 Chamber. I'm sure the Chamber is well aware of that history and of the
19 varied individuals and reports that theoretically were going to be
20 involved with regard to this particular issue. I would point out two
21 specific matters because I think they are of some importance.
7 And the importance there, obviously, being the warning back a
8 number of years ago, over three years ago, that generic reports would not
9 be availing.
10 On the 17th of September in this year, this Chamber issued its
11 decision with regard to the Prosecution's motion to substitute expert
12 witnesses, something that, as the Chamber's aware of, the Defence
13 resisted for the reasons that have previously been mentioned. And of
14 importance, this Chamber said, at paragraph 7:
15 "The Trial Chamber notes that Major General Melvin's anticipated
16 evidence relates to the interrelationship between the VJ, VRS, and SVK,
17 and the accused's authority over members of these armies, key issues in
18 the present case. The Trial Chamber is satisfied that this evidence is
19 prima facie relevant and of probative value."
20 The testimony that you have heard from Major General Melvin,
21 coupled with the remarks that he made in his report, are very clear. In
22 paragraph 2.4, he says:
23 "The approach taken in this report when answering the four
24 questions are considered a general context of command rather than
25 specific. In so doing, I provide some background doctrinal material on
1 command drawn from the United Kingdom and NATO sources. It is important
2 to note that I make no attempt whatsoever to refer to the specific
3 matters raised in the indictment of Colonel General Momcilo Perisic, nor
4 do I try to 'get into his mind' (and his decision-making) in providing
5 some form of commentary based on speculation on his understanding of his
6 responsibilities, including his adoption of Yugoslav command-and-control
7 doctrine procedures."
8 THE INTERPRETER: Microphone for the President.
9 JUDGE MOLOTO: I just said could I just interrupt you for a
10 while, and I have requested that we move into closed session for a
11 moment, please.
12 [Private session]
4 [Open session]
5 THE REGISTRAR: We're back in open session, Your Honours.
6 JUDGE MOLOTO: Thank you so much.
7 MR. GUY-SMITH: At paragraph 2.6 of his report, entitled
8 "Limitation on Conclusions," the general states:
9 "I offer only the most general of conclusions, noting that I am
10 not qualified to provide, within this expert witness report, detailed
11 observations, let alone conclusions, on the specifics of the case against
12 Momcilo Perisic."
13 And, of course, as we discussed late in his testimony today, in
14 his report he makes it very clear at section 4.2:
15 "No attempt has been made to compare UK or NATO doctrine with
16 that of the FRY or Serbia
17 matter in sufficient detail within the time available to the author of
18 this expert report."
19 I would note one other matter because I think it's of some
20 importance with regard to a full and complete understanding of what the
21 report is based on. At paragraph 1.3, in discussing his journey to
22 writing this report, he says, in the middle of the paragraph:
23 "Mr. Saxon agreed and sent me the next day (3 September 2009
24 revised list of four 'general' questions for answer by Monday,
25 21 September 2009
1 view, require a detailed examination of the documentation pertaining to
2 the case. I was encouraged, however, to read into this material handed
3 over to me in the form of a CD-ROM, should I have time, after completing
4 my expert report."
5 So not only is it clear that the report is one which is general
6 in nature, generic in nature, clearly in contradiction to an admonition
7 given several years ago by this Chamber or the Chamber seized with the
8 matter. He has made it very clear in his report that he is neither
9 qualified to deal with the specific issues that were germane to this
10 Chamber's decision of the 17th of September, and I believe that the
11 question and answers between, most specifically, the Chamber and the
12 gentleman pointed out the very difficulties that this report presents for
13 purposes of its introduction and its reliance, because there is virtually
14 no ability to apply it in any way or other than the most general of
16 And in that regard, it is, in our respectful submission, not
17 worthy of admission because, in large measure, it will not assist the
18 Chamber with regard to the issues that it identified specifically
19 concerning the relationship of the various identified military armies.
20 Once again, I include in the report -- when I object to the report, I
21 include the materials that were in support of that, because I look at the
22 entirety of this as being one package as opposed to parsed out
24 That is our submission.
25 JUDGE MOLOTO: Just before you sit down, Mr. Guy-Smith, you make
1 a very subtle concession at the end and you say -- give me time. You
2 say, at page 37, line 3 -- line 3, you say "other than the most general
3 of senses." Is it your submission that that most general of senses
4 wouldn't be perhaps the extent to which it could be used?
5 MR. GUY-SMITH: It's always the difficulty in being, I think, as
6 honest as possible and as candid as possible with regard to one's
7 argument. I can see, in a very general fashion, some limited potential.
8 So with regard to your question, to answer your question directly --
9 JUDGE MOLOTO: I would appreciate it.
10 MR. GUY-SMITH: -- because I know you want a direct answer --
11 JUDGE MOLOTO: Indeed.
12 MR. GUY-SMITH: -- my answer would be that there is a limited
13 value, in the theoretical sense. We're dealing with it in an abstract
14 fashion. But I rely upon and I fall back upon the guidance that the
15 Chamber gave in the first instance in its decision.
16 JUDGE MOLOTO: I understand that. The Chamber may have given its
17 guidance in the first instance, without the hindsight of the content of
18 the specific report, to be able to determine whether or not there is even
19 a general sense in which the report could be useful, and I'm saying if,
20 indeed, we concede that in that very limited general sense it could be
21 used, is this now a question of weight? There may be very little weight
22 to attach. I'm not suggesting there is or there isn't. But just
23 following your argument and taking, for argument's sake, for the time
24 being that your argument is acceptable, then the weight that would be
25 given to the report would be to the extent of its helpfulness in that
1 very general sense.
2 MR. GUY-SMITH: Well, dealing with it as a theoretical matter, I
3 would agree with what you've said. If we were only dealing with it as a
4 theoretical matter and only as an abstract matter, then the answer would
5 most definitely have to be, of necessity, yes. The question of weight
6 would come in, and obviously I would at that point say it has little if
7 no weight whatsoever. But I'm arguing actually more vigorously than that
8 at this time, and the reason for that is because the man has told us, and
9 with all due respect to what his knowledge may be, that he never focused
10 on the issue as presented here.
11 JUDGE MOLOTO: I understand that.
12 MR. GUY-SMITH: And in that regard, I think there is a very good
13 possibility, and this is with a full recognition that the Chamber is not
14 only insightful but incisive with regard to the information that's
15 presented to it, that it will be in a position where it's looking at
16 information that essentially becomes irrelevant to its considerations,
17 because there are -- there are, in fact, without a doubt, questions that
18 arise concerning the very matters the Chamber alluded to in its decision
19 that have not been answered by this man.
20 JUDGE MOLOTO: That's understood, Mr. Guy-Smith.
21 Let's bear in mind that we're dealing here with an expert
22 witness, not a fact witness. And if we wanted the expert witness to
23 pronounce specifically on the facts of the case as an expert, then he
24 should have been given the facts of the case, and he would have
25 pronounced on them as an expert. That was not done, and what was done
1 was, Come and give us what a general idea would be -- general answers to
2 the questions that are being put to you. And it is for the Chamber then
3 to extrapolate from those answers, whatever it finds applicable to the
4 facts of the case, to extrapolate that.
5 MR. GUY-SMITH: Once again, Your Honour, I can't -- I can't in
6 any fashion whatsoever, in good faith, argue with you on a theoretical
7 level. There's no way for me to do that, nor would I.
8 JUDGE MOLOTO: But I'm not talking -- you see, this is the thing.
9 You lose me when you talk about it's a theoretical abstract -- on a
10 theoretical level itself.
11 MR. GUY-SMITH: I see what -- I see where I'm not being clear.
12 JUDGE MOLOTO: I'm dealing with a practical level. I'm just
13 saying that to the extent where it gives generalities, the Chamber could
14 use those generalities to guide itself and, of course, would bear in mind
15 the fact that the report is not intended to comment specifically on the
16 facts of this case. That's why he was not given the facts of the case.
17 MR. GUY-SMITH: Well, but he was given the facts of the case.
18 That's what I'm -- that's what I'm telling you. The CD-ROM that he was
19 given included information about the facts of the case that he chose not
20 to review because of pressure of time.
21 JUDGE MOLOTO: But he was told not to look at that, and he can
22 look at it later, if he's interested. But, I mean, whatever he says, he
23 says he didn't use the CD-ROM for purposes of this report. He gave a
24 report in response to the questions put to him, as he understands them
1 Now, I understand that it is not on all fours with the facts of
2 the case. That I understand, but I'm saying to the extent that there are
3 general principles that can be extrapolated from it, wouldn't it be of
4 some assistance to the Chamber to that extent?
5 MR. GUY-SMITH: Well, with regard to a general principle, if
6 there is a general principle that the Chamber is not aware of or familiar
7 with that requires reliance upon an expert's opinion, my answer, of
8 necessity, to that question would have to be, Yes, because that would be
9 a responsible answer to the question, I mean, if that's the manner in
10 which the question is being -- being asked. And I don't have any other
11 way of answering that question, to be perfectly honest with you,
12 Your Honour, but to say, Yes. If there's some conceivable help that it
13 could be to you, then I want you to have that conceivable help. I mean,
14 that I would agree with. I don't think it would either be prudent or
15 responsible as an advocate, no matter what my position may be, to say
16 anything other than that. I'm taking -- as I'm saying, I'm taking a more
17 strident position here, because I, as you said, it's not on all fours. I
18 don't think it's even -- we're even on a unicycle with regard to this
19 particular report, and part of the difficulty is the models that have
20 been put forth in the abstract may have some theoretical basis upon which
21 reflection can be had, but they also have the potential of being
22 confusing because they have not been tied in to the fact-specific
23 questions that this Chamber needs to decide, which is part of the reason
24 why I keep on pushing the fact issue.
25 Having said that, I understand your position, and I don't want to
1 say, Yes, and you know I don't want to say, Yes, but if I'm being --
2 JUDGE MOLOTO: But you say, Yes.
3 MR. GUY-SMITH: Yeah, but I do say, Yes, in terms of the manner
4 in which you frame the question, because otherwise -- otherwise I would
5 be incredible.
6 JUDGE MOLOTO: How else would you like me to phrase my question?
7 MR. GUY-SMITH: Well, in only the most honest way that you think
8 of it and the most honest way that I can answer.
9 JUDGE MOLOTO: I can assure you that you can trust the Chamber
10 not to be confused. I heard you say -- suggesting that the report might
11 just add some confusion, but I just want you to understand that the
12 Chamber would not be confused.
13 MR. GUY-SMITH: Well, I -- when the word came into my mind, I was
14 a little concerned about using it in any event, and I meant no disrespect
16 JUDGE MOLOTO: I'm not suggesting you did.
17 MR. GUY-SMITH: Okay.
18 JUDGE MOLOTO: I'm not suggesting you did. I'm just reassuring
19 you that you can trust the Chamber not to be confused.
20 MR. GUY-SMITH: All right, thank you.
21 JUDGE MOLOTO: Are we agreed now?
22 MR. GUY-SMITH: We are -- we are -- I guess, we are agreed.
23 JUDGE MOLOTO: Do I need to ask Mr. Saxon to reply, if he wants
25 MR. GUY-SMITH: Based upon where the Court is thinking, I think
1 the answer is, No --
2 JUDGE MOLOTO: Thank you very much.
3 MR. GUY-SMITH: -- because I believe you've been pretty clear
4 about what your thinking is.
5 JUDGE MOLOTO: Thank you very much, Mr. --
6 MR. GUY-SMITH: Thank you, Your Honour.
7 JUDGE MOLOTO: I tried not to show my hand. If I've been so
8 callous, I'm so sorry.
9 MR. GUY-SMITH: I think you were more guiding than showing a
11 JUDGE MOLOTO: I like your diplomacy, and I appreciate it. Thank
12 you so much.
13 Well, then, given that it will then be admitted into evidence.
14 MR. SAXON: Your Honour, in the interests of completeness, I
15 would like to raise an administrative matter now, in case that affects
16 your decision and in case counsel wants to say anything about it.
17 There remains the outstanding question of the additional
18 assignment that you directed General Melvin to perform yesterday, and he
19 has -- moments ago, he has communicated to the Prosecution that he would
20 need approximately three weeks to do a short report based on the
21 direction that you gave to him. He might need to engage the assistance
22 of others. And so I wanted to make sure that that knowledge is on the
23 table before any final decisions.
24 JUDGE MOLOTO: Thank you very much.
25 Do you have any comment on that, Mr. Guy-Smith?
1 MR. GUY-SMITH: It seems to me that with regard to the directions
2 made by the Chamber, that would be a subsequent -- a subsequent secondary
3 report, and in the event that an examination need be on that report, that
4 would be an entirely different matter. I can see them as being distinct
5 issues, quite frankly.
6 JUDGE MOLOTO: Thank you very much. I thought so, too. Thank
7 you very much, Mr. Guy-Smith.
8 Does that then dispose of that part of the business?
9 MR. SAXON: Yes, Your Honour.
10 JUDGE MOLOTO: Do you have any other business to raise with the
12 MR. SAXON: No, Your Honour.
13 JUDGE MOLOTO: Mr. Guy-Smith?
14 MR. GUY-SMITH: Not at this time, Your Honour.
15 JUDGE MOLOTO: Okay. The Chamber has some business to raise.
16 Just in case I wasn't clear, the admission of the report includes
17 the associated documents.
18 MR. GUY-SMITH: That was my understanding.
19 JUDGE MOLOTO: Thank you so much.
20 Just an oral decision on some motion that's been outstanding for
21 some time.
22 Just to make sure, we are in public session, aren't we? Thank
23 you so much.
24 On the 19th of October, 2009, the Prosecution filed its notice
25 withdrawing Prosecution submission on decision on Prosecution's first Bar
1 table motion of the 5th of October, 2009, and filing of a corrected
2 version, hereinafter referred to as the "19th of October notice" whereby
3 it addressed several issues pertaining to the Chamber's decision on
4 Prosecution's first Bar table motion of the 5th of October, 2009
5 hereinafter referred to as the "5th October decision."
6 The Trial Chamber hereby decides as follows:
7 1. The Trial Chamber notes that in its 5th October decision, it
8 admitted several documents under the condition that the revised
9 translation be provided by the Prosecution. The Chamber notes that the
10 Prosecution, in its 19th of October notice, submits that the relevant
11 translations are now up-loaded to e-court and thus confirms that the
12 following documents are now part of the trial record, under seal:
13 Rule 65 ter numbers 09480, 09486, 09492, 09497, and 09499.
14 2. The Trial Chamber notes that the 19th October notice
15 specifies the exact portions of the two voluminous items which the
16 Prosecution seeks to be admitted. The Trial Chamber is satisfied as to
17 the relevance and probative value of the following: Rule 65 ter
18 number 09567, pages 12 to 15, 33, 53 to 54, 79 to 80, 209 to 215, and 229
19 to 230. As a consequence, the above-mentioned portions are admitted into
20 evidence, under seal.
21 Similarly, the Trial Chamber admits into evidence, under seal,
22 the following portions of the video marked as Rule 65 ter number 09562;
23 that is, at 20 minutes 49 seconds to 21 minutes 33 seconds, 27 minutes 42
24 seconds to 28 minutes 11 seconds, and 46 minutes 49 seconds to 47 minutes
25 55 seconds.
1 May I just pause here. I know there is too much detail here.
2 You can be provided with a document detailing this at the end. I see you
3 struggling very hard to write, and you're asking your colleague there,
4 Mr. Guy-Smith, whether he's following what I'm saying. You'll get the
5 document. Okay?
6 3. The Trial Chamber notes that the 19th October notice submits
7 that the full translations of the relevant pages of Rule 65 ter
8 number 07305 have been up-loaded to e-court. The Trial Chamber is
9 satisfied as to their relevance and probative value, and therefore admits
10 pages 7 and 10 of this exhibit, under seal.
11 4. The Trial Chamber finds that the B/C/S versions of
12 Rule 65 ter numbers 09481, 09513, and 09540, up-loaded to e-court, are
13 now sufficiently legible. The Trial Chamber also notes that the 19
14 October notice submits that the revised translations have now been
15 up-loaded to e-court. The Trial Chamber finds that 65 ter numbers 09481,
16 09513, and 09540 are relevant and of probative value. They are,
17 therefore, admitted into evidence, under seal.
18 5. Finally, the Trial Chamber notes that the 19 October notice
19 submits under 65 ter numbers 09468 and 09469 should be treated
20 confidentially. The Trial Chamber orders that these documents be placed
21 under seal.
22 That's the end of the decision. Can I suggest that parties be
23 given copies of this oral decision, because it's just too complicated.
24 Thank you so much.
25 That's the end of the business.
1 Yes, Mr. Saxon.
2 MR. SAXON: Your Honour, the next witness of the Prosecution is
3 scheduled to testify on Monday, 2nd of November, so we ask that we
4 adjourn until Monday, 2 November.
5 JUDGE MOLOTO: Thank you very much, Mr. Saxon.
6 Do you know what time we are sitting on Monday and in which
8 MR. SAXON: If you give me about 10 seconds, Your Honour, I think
9 I can tell you.
10 JUDGE MOLOTO: Mr. Registrar is going to be able to help us.
11 [Trial Chamber and registrar confer]
12 JUDGE MOLOTO: I'm told it's in the morning, in Courtroom II.
13 Then, in that event, the case stands adjourned to Monday, the 2nd
14 of November, at 9.00 in the morning in Courtroom II.
15 Court adjourned.
16 --- Whereupon the hearing adjourned at 4.37 p.m.
17 to be reconvened on Monday, the 2nd day of
18 November, 2009, at 9.00 a.m.