1 Monday, 14 January 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 10.33 a.m.
5 JUDGE AGIUS: Good morning.
6 Madam Registrar, could you call the case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: Thank you, Madam.
10 For the record, all the accused are here. I think Defence teams,
11 I see a full house today. The Prosecution, it's Mr. McCloskey,
12 Mr. Thayer, and I can't -- yes.
13 MR. THAYER: Good morning, Mr. President. Good morning, Your
14 Honours, good morning, everyone.
15 Mr. President, we have a new addition to our team, a young lawyer
16 named Christopher Mitchell, who has recently joined the Prosecution team.
17 JUDGE AGIUS: Okay. Thank you. Welcome, Mr. Mitchell.
18 I think the first thing I need to do -- we need to do this morning
19 is to explain to you, even though you were already aware of what happened,
20 but primarily to the public why we are starting at 10.35 and not at 9.00,
21 as we were scheduled to do.
22 We were all here at 8.00 this morning, but were informed that
23 there was a technical problem with e-court here, which was being attended
24 to. We were being kept updated from time to time. Unfortunately, it's
25 only a few minutes ago that the technicians managed to solve the problem.
1 I wish to thank them for all the efforts they made to make it possible for
2 us to start as soon as we could, but unfortunately we have lost a whole
4 We've been discussing, because every minute lost at this
5 particular phase of the trial is crucial, and we were thinking of trying
6 to recover the hour and a half we lost this morning by sitting for an hour
7 and a half this afternoon.
8 From the technicians', interpreters', and reporters' side, I'm
9 informed that they would be available, provided we have an adequate lunch
10 break. I wanted to know if - the courtroom is available, by the way - if
11 there are any problems from the Prosecution or the Defence teams to sit
12 this afternoon.
13 Yes, Mr. Thayer.
14 MR. THAYER: We're ready to proceed, Mr. President.
15 JUDGE AGIUS: Any of the Defence teams has any problems? We hear
16 none, so we'll communicate to you the time when we will reconvene in the
17 afternoon. We just want to make sure that the accused, in particular, and
18 everyone else will have a decent lunch break.
19 Okay. Shall we proceed first with the Kingori exhibits,
20 Mr. Thayer?
21 MR. THAYER: Thank you, Mr. President.
22 We've distributed the tender list. Having -- and I may be putting
23 the cart before the horse, but I figured I'd raise this issue in any
24 event. Having seen the tender lists from my friends, I note that the
25 diary or the notebook of Colonel Kingori, to which he has referred and to
1 which there were certainly specific references on cross-examination, was
2 not listed.
3 I would just offer that as well to the Chamber, if for no other
4 reason than to be able to make sense on the record or based on the record
5 of the document, at least the portions that were referred to during
6 examination. I don't think we need to necessarily enter the whole thing,
7 but certainly the portions that were referred to on cross.
8 Again, that's not necessarily my oar to pull, but I did notice it
9 wasn't on any of the lists. It's 5D00545, and again, for no other purpose
10 than to assist the Court should there be a need to review the actual
12 JUDGE AGIUS: Thank you.
13 Any comments from any of the Defence teams?
14 Yes, Mr. Josse.
15 MR. JOSSE: Sorry to start the morning with a sour note, but I
16 wish Mr. Thayer had told me that in the last hour and a half so I could
17 have thought about it, discussed it with Mr. Krgovic, and perhaps with my
19 JUDGE AGIUS: Would you think first, Mr. Josse?
20 MR. JOSSE: I'd rather not, partly because it's still quite early
21 for me.
22 JUDGE AGIUS: Anyway, this is not crucial. Let's deal with the
23 rest of the documents; and after you've had time to think about this, you
24 can make submissions later on at the end of today's sitting.
25 Yes, Ms. Fauveau.
1 MS. FAUVEAU: [Interpretation] Mr. President, I oppose the
2 exhibiting of this diary presented by Defence to show the contradictions
3 in what the witness said, so I really don't see why it should be
4 introduced in the case file.
5 JUDGE AGIUS: I don't quite follow, basically. I wasn't following
6 you in French, this time, so I am reading the transcript: "I oppose the
7 exhibiting of this diary presented by Defence to show the contradictions
8 in what the witness said, so I don't really see why it should be
9 introduced in the case file."
10 You made use of it to contradict the witness.
11 MS. FAUVEAU: [In English] Yes, Your Honour.
12 JUDGE AGIUS: What's your logic that it shouldn't be used in
14 MS. FAUVEAU: I did use it actually. I said that it was used only
15 for the impeachment purposes. So my reasons are that this diary was used
16 exclusively by Defence, who are not proposing it to be in the evidence,
17 and only for the impeachment purposes, so I am opposing.
18 JUDGE AGIUS: Thank you. We are going to reserve our decision on
19 this to later, when you've had time, and that includes Mr. Josse, to think
20 about it if you have any comments.
21 As regards the list itself that was circulated earlier on, are
22 there any objections from any of the Defence teams? None.
23 So all these documents which are listed in the document that was
24 circulated earlier on this morning are being admitted.
25 Then I have a list of documents from the Popovic Defence team.
1 Yes, Mr. Thayer.
2 MR. THAYER: Mr. President, we do have one objection to the
3 proffering of the debrief of the UNMOs in its entirety. It's our
4 position - I think this is consistent with our prior practice - we've got
5 no problems with the portions of the debrief that were referred to during
6 the cross-examination or even on redirect going in. But to put the entire
7 document in, which is a total of six pages, which contains portions that
8 neither party touched at all and which are completely independent of the
9 subject matter of cross-examination or redirect, I just don't think we
10 need to put the whole thing in.
11 That said, it's not a big deal. I just want to maintain our
12 practice, unless a statement has been made such an issue of so that the
13 entire thing, one side or the other, needs to argue should go in, so that
14 we can have the proper context. This is a circumstance as we do with
15 other witness statements, for example, where we only put in the portions
16 that were referred to.
17 JUDGE AGIUS: Thank you.
18 Mr. Zivanovic.
19 MR. ZIVANOVIC: [In English] Thank you, Your Honours.
20 I showed to the witness this document, but I hadn't time to
21 cross-examine him in full about all contents about this document, and I
22 believe that it is absolutely good foundation to tender this document into
23 evidence. He was -- he was -- these documents was shown to the witness by
24 the other Defence team as well.
25 JUDGE AGIUS: Yes, Mr. Josse.
1 MR. JOSSE: We cross-examined him as to what was not in it; and,
2 therefore, in our submission, Mr. Zivanovic is right.
3 MS. FAUVEAU: [Interpretation] I also used this document during the
5 JUDGE AGIUS: Thank you.
6 [Trial Chamber confers]
7 JUDGE AGIUS: Any other objections in relation to the Popovic list
8 from either Prosecution or other Defence teams? None.
9 Our decision is to admit all four documents; in other words, your
10 objection is being turned down, Mr. Thayer. The only thing is I notice
11 that two of these documents only exist in the B/C/S language, so they will
12 be marked for identification, pending translation. That's, to be precise,
13 is 1D464 and 1D467.
14 The Miletic Defence team, four documents, amongst which also is
15 the one that we've been talking about, the UNMO debriefing.
16 Any objection, Mr. Thayer?
17 MR. THAYER: None, Mr. President.
18 JUDGE AGIUS: Okay. There is no point in admitting document
19 number 4, which has already been admitted, so the list is restricted to
21 Any objections from any of the Defence teams? None.
22 So all these three documents are admitted; however, the third one,
23 5D214 -- no, an English translation does exist. Okay. So all those
24 documents, these three documents, are admitted.
25 We move to the Borovcanin Defence team list. There are eight
1 documents, some of which have not yet been translated into English.
2 Any objections, Mr. Thayer?
3 MR. THAYER: No, Mr. President.
4 JUDGE AGIUS: Okay. Any objections from any of the other Defence
6 So all these documents are admitted; however, those which have --
7 which exist only in B/C/S, and the translation at their office is still
8 pending, will remain marked for identification until satisfactorily
10 All right. You will come back to us on the diary, sort of, of
11 Colonel Kingori at the end of today's -- yes, Mr. Josse.
12 MR. JOSSE: There are two Gvero documents, Your Honour.
13 JUDGE AGIUS: I haven't got the list.
14 MR. JOSSE: Sorry.
15 JUDGE AGIUS: No one gave it to me.
16 [Trial Chamber and registrar confer]
17 JUDGE AGIUS: Yes.
18 MR. JOSSE: And I think they are objected to, because Mr. Thayer
19 was good enough to notify me of that.
20 JUDGE AGIUS: Yes. There are two documents, 5D543 and 6D217.
21 Mr. Thayer.
22 Thank you, Mr. Josse.
23 MR. THAYER: Mr. President, with respect to the NIOD report,
24 Chapter 4, "Dutch-Bat and the fate of the local population," that is
25 6D217. I understand from my friend that he now intends to offer the
1 entire chapter, which is approximately --
2 JUDGE KWON: Section.
3 MR. THAYER: -- or section of that - thank you, Your Honour - the
4 entire section, which is ten pages in its entirety. Again, we would
5 object to the admission of that entire section, many portions of which or
6 most of which were not touched upon in any form or fashion on
7 cross-examination or on re-examination. I don't think my friend has
8 proffered a sufficient ground or explanation for why he feels the need to
9 move in these additional portions, which are discussed in this section,
10 when none of it was touched upon during the actual examination.
11 Again, it's not just a one- or two-page witness statement or
12 document, it's a considerable section of this chapter, amounting to ten
13 single-spaced pages.
14 JUDGE AGIUS: Mr. Josse.
15 MR. JOSSE: Very simply, there are other parts that we would have
16 put to him, but were unable to, given time constraints, but frankly that's
17 a lesser point. The main point is context.
18 This is a section headed: "Observations and reports by the
19 UNMOs." Bearing in mind those parts that were put to him both by the
20 Gvero Defence and also by the Prosecution in re-examination, we submit
21 that the Trial Chamber should have an opportunity to read the whole of
22 this chapter - it's not that long - simply to see the parts that were put
23 in the proper context.
24 JUDGE AGIUS: I wouldn't like to waste much time on these. I
25 mean, I think over the time -- long time we've been already having this
1 trial, we made it clear that we are all lawyers and judges here. I mean,
2 so a piece of paper, a document, unless it has been really given evidence
3 upon, is never going to substitute the testimony of a person.
4 I mean, so it's --
5 MR. THAYER: Mr. President, I quite agree with the Chamber on
6 that, and I think that's consistent with our feeling, that we trust the
7 Court to be able to make those judgements. I'm just a little concerned
8 about starting a practice.
9 Now, we're about to start the Defence case, so I obviously am
10 thinking carefully about the position I'm taking, but I think our position
11 has been clear with respect to these statements.
12 The next document -- the other section, I do think there are
13 important paragraphs that the Court does need to see to properly place it
14 in context, as opposed to the prior section which I don't believe adds any
15 contextual sense to the portions used in cross-examination. However, this
16 other portion, Chapter 4: "The mood in the enclave," there are several
17 paragraphs that I think the Court should read in order to place that
18 cross-examination in the proper context.
19 Given what, Mr. President, you've just said, I'll stand down in my
20 objection and presume that this entire section will come in.
21 JUDGE AGIUS: All right. Yes, Mr. Josse.
22 MR. JOSSE: What I want to say is, notwithstanding that, with
23 respect, we strongly endorse Your Honour's comments.
24 JUDGE AGIUS: I think it's a basic principle of law that we are
25 all used to. I wouldn't like to waste time on this.
1 Anyway, so these are admitted -- I'm sorry. Are there any other
2 objections from any of the other Defence teams?
3 So these two documents are admitted.
4 Now, before we start with the next witness, Butler, Mr. Haynes,
5 Mr. McCloskey, there are two motions - actually one motion plus an
6 addendum - relating to a request for the addition of a number of documents
7 to the 65 ter list. There were discussions ongoing, taking place in the
8 course of last week. We were told that a kind of an agreement was in the
9 offing, pending finalisation of those discussions. Who is going to update
11 Mr. Haynes.
12 MR. HAYNES: I'd quite forgotten about that. I'm very sorry. We
13 had resolved it before the end of last week. There were tripartite
14 discussions involving myself, Mr. McCloskey, and Madame Fauveau, and there
15 will be no opposition to that motion.
16 JUDGE AGIUS: And the addendum?
17 MR. HAYNES: No, neither that.
18 JUDGE AGIUS: All right. Thank you, Mr. Haynes.
19 Now, we have, as you know, the witness coming in. We will have a
20 representative of the United States government present, as per our
21 decision of last week, and we will also have a number of, I think three,
22 Defence experts joining the various Defence teams, as per our decisions
23 of - I don't remember when - but a couple of months ago.
24 Yes. I think the best way is to bring in --
25 [Trial Chamber and registrar confer]
1 JUDGE AGIUS: Mr. McCloskey, I'm sorry. I didn't mean to shut you
3 MR. McCLOSKEY: Yes. Good morning, Mr. President, everyone, Your
5 I hope a short preliminary.
6 Last night, I informed Defence counsel that we had provided
7 Mr. Butler with certain testimonies from this trial, as our military
8 expert, as we always have before, and I just let them know which ones.
9 Mr. Haynes wrote me back. In fact, we need to go into private session
10 about this.
11 JUDGE AGIUS: All right. Let's go into private session.
12 [Private session]
11 Pages 19556-19557 redacted. Private session
7 [Open session]
8 Yes, Mr. Haynes.
9 MR. HAYNES: There was one other matter that we thought, given the
10 time we've had to discuss it this morning, it would be advisable and
11 courteous to raise with you before Mr. Butler began giving evidence.
12 JUDGE AGIUS: Do you want to discuss this in the absence of the
13 US --
14 MR. HAYNES: We can begin that process. I don't mind if that goes
15 on while I'm talking or, indeed, while I wait for them to come in.
16 JUDGE AGIUS: I don't know, because I can't anticipate what you're
17 going to talk about.
18 MR. HAYNES: It's okay if the experts come in, but it should be
19 discussed in the absence of Mr. Butler.
20 JUDGE AGIUS: All right. Okay. Then go ahead.
21 MR. HAYNES: I don't want to go over old ground, but you will know
22 that during the course of this case, there have been a number of filings
23 about this witness, his status as an expert, and the sort of evidence he
24 might give, and it followed on from a similar application which was
25 resolved practically in relation to the other main investigator, Jean-Rene
1 Ruez, who gave evidence at the start of the case.
2 Really, I think what we would like to inform you is that we have
3 very much in mind your decision in relation to Richard Butler, and I'll
4 just read it into the record, if I may.
5 JUDGE AGIUS: Yes, we have it here.
6 MR. HAYNES: "Due to the qualifications of an expert, he or she
7 can give opinions and draw conclusions within the confines of his or her
9 At paragraph 25, you said: "The organisation and general
10 procedures of the Republika Srpska Army is an issue which is relevant to
11 this case. The Trial Chamber finds that Butler's experience renders his
12 opinion on this matter of potential value in assisting the Trial Chamber
13 to understand and/or determine issues in dispute."
14 Now, it is very difficult to anticipate precisely what form
15 Richard Butler's evidence may take in this trial, but we have something of
16 an indication from the reports that he has made, from the testimony that
17 he has given in the two prior Srebrenica trials, and from the proofing
18 notes that we have been provided with in November and very recently.
19 We thought it would be right, rather than, as it were, to surprise
20 anybody by repeated objection, to make it plain at this stage that we will
21 take objection to questioning which seeks to elicit from Richard Butler
22 summary, conclusion, and opinion beyond the confines of his expertise, as
23 determined with this Trial Chamber.
24 I'm going to leave it there, because I know the bat will be taken
25 up by others who have, as it were, the ambit of the opinions he has
1 purported to give in the past. But we lay down the marker now that we
2 will be keeping a very careful eye on what opinions are sought from this
3 witness, and we will objection at every occasion when it seems to us to go
4 beyond the confines of the expertise as found by this Trial Chamber.
5 JUDGE AGIUS: Thank you, Mr. Haynes.
6 Mr. McCloskey, do you wish to comment?
7 MR. McCLOSKEY: Yes, I do, Mr. President.
8 JUDGE AGIUS: Go ahead.
9 MR. McCLOSKEY: I think, at this stage, to come up with a broad
10 objection like that it is completely, potentially eviscerates my abilities
11 to put on direct examination. The issues -- Mr. Butler has testified
12 numerous times before Trial Chambers and the Appellate Chamber; and in
13 each case, he has given his viewpoint and analysis on intercepts and what
14 they mean, his viewpoint and analysis on documents and what they mean.
15 He's given his viewpoints and analysis on his intentions of the Muslim
16 army and on his intentions of the Serb army. He's summarised these events
17 to put all of this in context.
18 There's been very particularised issues that he's spoken of. The
19 Defence is on notice of all of those issues. In fact, for example,
20 Mr. Butler evaluated an intercept for the Appellate Chamber that he became
21 aware of afterward, and basically the intercept was exculpatory for
22 General Krstic. The Appellate Chamber took Mr. Butler's viewpoint on
23 that, and it's, I believe, in their finding.
24 So if he's suggesting now that Mr. Butler can't provide the kinds
25 of opinions that he's provided throughout his history - indeed the history
1 of the Srebrenica case - this is outrageous. We have your filing, your
2 ruling, but we -- they had their chance to do this, and if -- they cannot
3 be allowed to pick apart my questioning on things that they have not
5 I don't intend to do anything more or less, really, than I've done
6 before. I hope -- in fact, I hope it's less, because this Trial Chamber
7 has heard so much more than any other Trial Chamber in the past. I'm not
8 going to be asking Mr. Butler to go through the brigade structures, the
9 corps structures, the main staff structures to find which person is doing
10 what. That material you have heard.
11 But I intend to lead mostly Mr. Butler going through, in
12 chronological order, the documents of this case, some that you've seen,
13 some that you haven't, and try to put them in context with other
14 documents, to give you an idea of what they mean and what he thinks they
15 mean. Also the same thing with the intercept, the kind of analysis that
16 you heard already from Stephanie Frease when she said what she thought an
17 intercept meant.
18 So I don't expect him to make his opinion on whether anyone is
19 guilty or not or go to the fundamental issues of the case, but I don't
20 know what Mr. Haynes is referring to. Of course, we heard this kind of
21 objection with Jean-Rene Ruez, and all I said at that point is we're going
22 to do what we did before and there won't be anything inappropriate about
23 my question or his answers, and we went forward.
24 But I don't know what he's talking about. If he's talking about
25 Butler can't provide his opinion and analysis on documents and intercepts,
1 that is too late in the game, I think, for that issue to be litigated
2 question by question as we go. They've been on notice for years on the
3 fundamental nature of Mr. Butler's testimony and his exhibits, and I don't
4 know what this means, and that's what worries me the most.
5 JUDGE AGIUS: Okay. I think we can close the discussion here.
6 We'll take every objection that is raised when it is raised and decide
7 upon it.
8 Yes, Mr. Bourgon.
9 MR. BOURGON: Thank you, Mr. President.
10 At this stage, I would like to take just a few minutes, first of
11 all, to support what has been said by my colleague, Peter Haynes, on
12 behalf of his client. But may I recall, Mr. President, that what
13 Mr. McCloskey just mentioned concerning the expected testimony of
14 Mr. Butler, Mr. President --
15 JUDGE AGIUS: One moment, Mr. Bourgon, one moment.
16 [Trial Chamber confers]
17 JUDGE AGIUS: As we said -- sorry. I don't want you to take it
18 personally, but I think the discussion, insofar as it has been developed,
19 is still in a vacuum, and as I said, we wouldn't like to hear submissions
20 in a vacuum on this. If there are any objections as we proceed, you will
21 have your opportunity to make your objections, and we will decide each
22 objection as it arises and when it arises.
23 Yes, Mr. Bourgon.
24 MR. BOURGON: Thank you, Mr. President.
25 There is one specific issue that I would like to raise, that needs
1 to be raised at this time, before it comes up with Mr. Butler, and this
2 has to do, Mr. President, with the basis of the expected testimony of
3 Mr. Butler. If there is any notice in this case, because Mr. McCloskey
4 says that we have been on notice of the expected testimony and the basis
5 of his testimony, that is incorrect.
6 Much has happened since the Krstic case. Much has happened since
7 the Blagojevic case, and today we out of courtesy take this opportunity to
8 inform Mr. McCloskey of how we will react.
9 But the specific issue I'd like to raise has to do with the basis
10 of Mr. Butler's testimony, and I'd like to use one specific example in
11 this regard.
12 In the proofing notes that we've received concerning Mr. Butler,
13 we have been provided with some conclusions concerning the responsibility
14 of our client, specific conclusions regarding the events which took place
15 in the Zvornik area. Over and above the fact that these conclusions go to
16 the fundamental issues of the case, something just raised by my colleague
17 a few minutes ago, and that we feel these types of conclusions are
18 improper and inadmissible, that we will raise if and when they come up.
19 These conclusions included in the proofing notes were never
20 mentioned before in any of the reports provided to us, which were prepared
21 by Mr. Butler, nor in any of the so-called "narrative" that he has
22 prepared; and, of course, there is a distinction, in our view, between
23 Mr. Butler's reports and Mr. Butler's so-called "narrative."
24 So we were wondering, what was the basis for conclusions that
25 we've been provided for in the proofing notes, which were never mentioned
1 in any reports or narratives. Yesterday, we were provided with an e-mail
2 at 4.00 in the afternoon. This e-mail informed us, for the first time, of
3 some testimony that was provided to Mr. Butler.
4 We can divide the testimony which was provided to Mr. Butler in
5 three categories: Some testimony that he apparently decided to look on
6 his own -- proprio motu he decided to look at some of the testimony; then
7 there was a proofing session; then there was some testimony given to him
8 by the Prosecution; and then yesterday there was further testimony given
9 to Mr. Butler.
10 This testimony, Mr. President, is not all of the testimony in this
11 case. So what we would like to know is: What about the rest of the
12 testimony? Will Mr. Butler's opinion, as an expert in this case, over and
13 above what happens with the objections we may raise, what is the basis for
14 his opinion?
15 JUDGE AGIUS: Doesn't the same argument apply to the Defence
17 MR. BOURGON: Mr. President, it supports --
18 JUDGE AGIUS: Let's stop here, Mr. Bourgon. If there are --
19 because, first of all, what is included in the proofing notes doesn't mean
20 that this is the testimony that Mr. Butler will be giving here. We've had
21 abundant proof of that in the past.
22 If there are objections, as I said, we will hear what the
23 submissions are and we will decide from moment to moment, from time to
24 time, as it becomes necessary.
25 As regards such arguments like the one you've just put, that may
1 become a submission later on as to how much weight we should give to the
2 testimony of Mr. Butler, considering what evidence was available to him at
3 the time he started giving evidence.
4 So I think we can stop the discussion here, please, and we'll
5 start with the testimony.
6 MR. BOURGON: Mr. President, just one further issue I'd like to
7 raise at this time, and it won't take much time. But some of the
8 testimony that Mr. Butler refers to, Mr. President, is testimony that was
9 heard in previous cases; that is, not before this Trial Chamber. This is
10 also one area where we will objection, because we do not know what the
11 basis of Mr. Butler's testimony is and what material he has reviewed in
12 order to draw his conclusion.
13 Thank you, Mr. President.
14 JUDGE AGIUS: Thank you. That is why you have the right to
15 cross-examine the witness.
16 Mr. McCloskey, please sit down, and let's get going.
17 First - Madam Usher, one moment - we've got additions. Could you
18 please introduce yourself.
19 MS. SCHILDGE: Thank you, Your Honour.
20 My name is Heather Schildge, and I'm the legal counsellor at the
21 United States Embassy in The Hague.
22 JUDGE AGIUS: Okay. Thank you, Madam, and welcome.
23 Mr. Lazarevic, I see.
24 MR. LAZAREVIC: [In English] Good morning, Your Honours. Here by
25 my side is Mr. Djordje Trifunovic, our expert witness.
1 JUDGE AGIUS: Thank you, and welcome, Mr. Trifunovic.
2 Madame Fauveau.
3 MS. FAUVEAU: [Interpretation] Mr. President, we have General
4 Slobodan Kosovac. He's our military expert and he is together with us
6 JUDGE AGIUS: Good morning and welcome, General. Thank you,
7 Madame Fauveau.
8 Yes, Mr. Haynes.
9 MR. HAYNES: The gentleman at our table is Admiral Bosko Antic.
10 JUDGE AGIUS: Thank you. Welcome, Admiral.
11 Thank you, Mr. Haynes.
12 Yes, Mr. McCloskey.
13 MR. McCLOSKEY: Not on those topics --
14 JUDGE AGIUS: I hope not.
15 MR. McCLOSKEY: No, no, no.
16 Just could you inform Mr. Butler, because I'm obviously not going
17 to have a chance to, if someone asks him a question that calls for a
18 comment about what Witness 168 said, to use this "168" as the term, or I
19 can take a moment and just tell him that.
20 JUDGE AGIUS: We can do that in private session. Don't worry. I
21 mean, it's not a problem.
22 MR. McCLOSKEY: I mean, I just -- yeah.
23 And also Mr. Butler, as has been our habit, will bring in binders
24 of the exhibits that we had planned to go through with him so that he's
25 not limited to what's viewed on e-court, as long as that's all right.
1 That's happened with other witnesses, and that's what he has in front of
3 Now, we provided him copies of those documents without any
4 markings on them, and I had asked him, as he's looked at documents that,
5 where time order may be important, to note the time order that he sees, so
6 that we save some time from him having to go to the back of each document
7 to look at"sent" or "receive."
8 So he may, in fact, put some notes about that on these documents,
9 which everyone should have a right to see if he does so. I've asked him
10 to do that to save time. I don't think he's done it yet; but I think over
11 the next day or two, he will be doing that. So, if we could ask him, as
12 he goes along, if he's done that and if people want to see that.
13 Otherwise, I have assembled the documents in mostly a
14 chronological order, and I'm leaving it to Mr. Butler, on issues where
15 time may be a factor, to write those in. So I just wanted that --
16 everyone to know that. I've sent something like that in an e-mail to my
18 JUDGE AGIUS: Thank you. You can admit Mr. Butler to the
19 courtroom, Madam Usher, please.
20 In the meantime, some housekeeping matters. We will have a break
21 of 30 minutes at 12:00 noon, then we start at 12.30 to 2.00, then we'll
22 have an hour's break, and then we'll start at 3.00 and finish at 4.30.
23 Is that okay? This is what I am proposing. Okay.
24 Now, I not privy to everyone's diary, agenda, so I don't know. We
25 have to also check with the witness that he hasn't got any engagements
1 this afternoon or whatever.
2 Yes, Mr. Meek.
3 MR. MEEK: The witness is coming in, Your Honour. The Beara
4 Defence teams joins the objections and submissions raised by Mr. Bourgon
5 and Mr. Haynes.
6 JUDGE AGIUS: Okay. Thank you.
7 [The witness entered court]
8 JUDGE AGIUS: Good morning to you, Mr. Butler.
9 THE WITNESS: Sir.
10 JUDGE AGIUS: Welcome to this Tribunal once more. It's not the
11 first time you're giving evidence.
12 You know what the procedure is. Madam Usher is going to hand you
13 the text of the solemn declaration. Please read it out loud, and that
14 will be your solemn undertaking with us testify to the truth.
15 THE WITNESS: Yes, sir.
16 I solemnly declare I will speak the truth, the whole truth, and
17 nothing but the truth.
18 WITNESS: RICHARD BUTLER
19 JUDGE AGIUS: I thank you, sir. Please make yourself comfortable.
20 I'll try to dispense of all preliminaries.
21 First of all, we owe you an explanation why we haven't started at
22 9.00 with you, as expected. We had a technical problem, which I am sure
23 you have been made aware of, and then we had procedural matters to deal
24 with and dispose of. We could only start now.
25 We're trying to recover time lost this morning by sitting extra
1 time this afternoon, so we plan to stop this morning or stop this sitting
2 at 2.00 and then resume at 3.00, then finish at 4.30 and then we continue
3 again tomorrow. I hope you did not have any engagements, prior
4 engagements, for this afternoon and that you will therefore be available.
5 THE WITNESS: Not a problem, sir.
6 JUDGE AGIUS: Okay. Thank you.
7 As you know, you have here present a representative of the United
8 States government, as per our decision of last week. I'm also informing
9 you that there are three Defence ex parte experts present here, one of
10 whom is a retired general, the other is a retired admiral.
11 Mr. McCloskey, I think you can safely start.
12 Yes. Let's go into private session for a short while.
13 [Private session]
10 [Open session]
11 THE REGISTRAR: We are in open session.
12 MR. MEEK: We're in open session. May we go into closed session?
13 JUDGE AGIUS: Yes, let's go back to private session.
14 [Private session]
10 [Open session]
11 JUDGE AGIUS: We are in open session now.
12 Mr. McCloskey, you can start your direct.
13 MR. McCLOSKEY: Thank you, Mr. President.
14 JUDGE AGIUS: The break will be at 12:00 noon.
15 Examination by Mr. McCloskey:
16 Q. Good morning, Mr. Butler.
17 A. Good morning, sir.
18 Q. For the record, could you state your full name?
19 A. My name is Richard Butler.
20 Q. And what is your date of birth?
21 A. I was born the 19th of November, 1960.
22 Q. And where did you grow up?
23 A. I grew up in the United States. Specifically, I grew up in Miami,
25 Q. And what is your present job?
1 A. Presently, I am an intelligent research specialist, or as we're
2 now referred to, a criminal research officer, with the Human Rights
3 Violators Unit for the US Department of Immigration and Customs
4 Enforcement, which is an agency of the Department of Homeland Security.
5 Q. Could you give us just a brief description of what that entails,
6 very brief?
7 A. My role as a criminal research officer is to support our field
8 investigators as well as US attorneys offices and our own administration
9 lawyers with respect to identifying, prosecuting, and removing, where
10 applicable, individuals who have committed human rights abuses and who are
11 residing in the United States in contravention to the Immigration and
12 Nationality Act.
13 Q. All right. And does any of that work involve your knowledge that
14 you learned from the job at the United Nations?
15 A. Yes, sir. Certainly, the techniques and tactics that we -- that I
16 learned here with respect to dealing with law enforcement are applicable
17 in the United States, and a number of cases that my agency is currently
18 undertaking are derivatives of information that have come from the Office
19 of the Prosecutor.
20 Q. Shortly, does that in many cases involve false statements that
21 former members of the VRS have made on their immigration applications?
22 A. Yes, sir, and again --
23 JUDGE AGIUS: One moment, please.
24 Yes, Mr. Ostojic.
25 MR. OSTOJIC: My mic is not working anymore, Your Honours. I
1 object to the form of the question.
2 Thank you. We object to the form of the question, Your Honour.
3 JUDGE AGIUS: Why?
4 MR. OSTOJIC: It presumes there were false statements in those
5 applications, and I don't know that he's made a conclusion as to each of
6 those applications. I think there may be allegations on some of those
7 applications. But Mr. McCloskey is suggesting that each of the applicants
8 who made those applications, that they were indeed false, and that's a
9 finding that, one, would be held over for a criminal federal court to
10 decide. It has been on some of the cases where Mr. Butler has testified,
11 some of which have found that they were not false statements. Secondly,
12 there were some issues that go to the -- specifically the Department of
13 Immigration and Naturalisation.
14 JUDGE AGIUS: Mr. McCloskey, would you like to comment? Why don't
15 you concentrate on what the gentleman is here to testify upon, I mean.
16 MR. McCLOSKEY: I can throw in allegations. That's fine.
17 JUDGE AGIUS: Please go ahead, Mr. McCloskey.
18 MR. McCLOSKEY:
19 Q. Let's just put "allegations" into that question, and can you
20 answer it?
21 A. Yes, sir, in part it does revolve around those types of
23 Q. All right. And how long have you held that job?
24 A. I began my employment with the US Immigration and Customs
25 Enforcement in February of 2004.
1 Q. And what job did you hold before that job and before February
3 A. Prior to that, I was a military analyst with the Office of the
4 Prosecutor of the ICTY.
5 Q. For how many years were you with the ICTY?
6 A. My total service with the ICTY was six and a half years: Roughly,
7 four and a half years while I was a member of the United States Army,
8 seconded to the Tribunal, and the remaining two years as a UN civil
10 Q. Okay. We'll get into a little more detail of that later, but
11 what -- before coming over to the -- being seconded to the ICTY, to the
12 OTP, what was your job?
13 A. I was an all-source intelligent technician with the United States
15 Q. All right. Well, now I'm going to ask you to -- we're going to go
16 way back in time a bit to have you describe your military career a bit for
17 us. Let's start when you graduate from high school or secondary school,
18 about age 18, what did you do?
19 A. At that point in time, I enrolled in a local community college in
20 Miami and spent two and a half years at school there.
21 Q. For what?
22 A. Initially, I was studying marine engineering and marine survey
24 Q. And what happened to that field?
25 A. At a point in time, particularly after spending several months on
1 an ocean-going tugboat, actually living the life, between finances and a
2 few other things, I decided I wanted to stay on dry land for a while and
3 enlisted into the United States Army.
4 Q. And what year did you enlist in the army?
5 A. I enlisted in August of 1981, sir.
6 Q. So about how old were you?
7 A. Twenty, twenty-one, yeah.
8 Q. So did you start out as a private, like everyone else?
9 A. Yes, sir.
10 Q. Can you briefly describe your career in the United States Army? I
11 will try to leave pauses, like we know how to do, so bear with me on that,
13 A. As an enlisted soldier, from August of 1981, my initial basic
14 entry training, I tracked, go into the military intelligence career field,
15 as part of my enlistment. So after completing basic training, I went to
16 the initial intelligence analysis course at Fort Huachuca, Arizona, which
17 is standard.
18 My first operational assignment was starting in January of 1982,
19 where I was assigned to a military intelligence group in Europe. I
20 remained there doing analysis, primarily human intelligence, human-related
21 intelligence, from 1982 to 1985.
22 I left that organisation, being promoted to sergeant, and went to
23 the intelligence company of an armoured regiment in Fort Bliss, Texas,
24 where I spent 15 months as a non-commissioned officer, doing intelligence
25 analysis with that organisation.
1 I then transferred to the United States Central Command, which is
2 a major joint headquarters at McDill Air force Base, Florida. It's
3 responsible for the entire Middle-Eastern region, from a US perspective.
4 I spent two years there doing research on then Soviet Army operations in
5 Afghanistan, so I was looking at their military operations from a tactical
6 and operational level.
7 After the completion of that assignment, I was selected for
8 appointment as a warrant officer, went to warrant officer -- the basic
9 course, and the warrant officer intelligence basic course, and
10 successfully graduated those courses. Then as a warrant officer, back to
11 Europe, where I was assigned to work in the all-source production section
12 of the 3rd Infantry Division, Wuerzburg, Germany.
13 Q. Let me interrupt you just briefly. Can you tell us what, in the
14 United States Army, a warrant officer is, as opposed to a regular officer,
15 lieutenant, captain, major, that we're used to hearing about?
16 A. Within the context of the United States Army, there's long been
17 recognised a need to have officers who can specialise in specific career
18 fields, primarily those technical career fields that the army has a
19 requirement for. Many of those, warrant officers, my counterparts, will
20 be specialised in, for example, the aviation field, where they'll deal
21 strictly with issues related to military aviation. You'll have my
22 counterparts in the ordinance field, where they deal with issues of
23 ammunition, or logistics, or things of that nature.
24 In my particular career field, myself and my counterpart warrant
25 officers deal with the technical issues of intelligence, where we are
1 actually the people who conduct those -- that type of detailed analysis.
2 Regular officers in those same fields are -- obviously they have, you
3 know, they have an education level as well. But as a result of their job
4 functions, they do not get into the same technical details that we, as
5 warrant officers, are trained and expected to do.
6 Conversely, those officers have a much more varied career field
7 that they're expected to adhere to. Those regular army officers, for
8 example, may be directed to spend three years teaching at universities,
9 military education there. They will be directed to do other things not
10 necessarily related to the branch that they specialise, that the army
11 requires them to do as part of their professional education and their
12 professional opportunities.
13 So it is a differential that the army uses for those officers who
14 will remain for their careers doing these technical issues and officers
15 who will be broader generalists, so to speak.
16 Q. Okay. Let's get back to where you left off. You're a -- you're a
17 warrant officer --
18 JUDGE AGIUS: One moment, one moment.
19 JUDGE KWON: Just one thing to be clear on my part, Mr. McCloskey.
20 What would be a human intelligence?
21 MR. McCLOSKEY: Thank you, Your Honour. There's a couple of
22 different kinds of intelligence which we're about to get to, but I do
23 appreciate questions, because I have organised this in a manner where I've
24 tried to -- I've left out things that I may have talked about before,
25 because you have heard so much. So as questions come, I appreciate them.
1 So thank you for that and we'll get to that.
2 Q. So, Mr. Butler, you're now a warrant officer, and you've mentioned
3 human intelligence, so it's a good time to talk about. What kind of
4 intelligence were you looking at?
5 A. Human intelligence, within the general parlance of intelligence
6 disciplines, is defined as intelligence and information that is derived
7 from human sources, not technical sources. That would, for example,
8 include an overt debriefing or an interview of somebody who might have
9 information. It would include, obviously, information that was derived
10 from clandestine or covert sources of information.
11 It generally encompasses what's known as open-source information,
12 intelligence or information that might be derived from the media sources.
13 Any form of information that falls under the broader rubric of human
14 contact is known in the intelligence disciplines as "human intelligence."
15 Q. How about if you got a hold of some orders, orders or documents or
16 reports from the enemy, what would that be?
17 A. That falls into a category of document exploitation, which is also
18 under the broader category of human intelligence.
19 Q. How else have -- has your profession divided intelligence? What
20 other kind of intelligence?
21 A. Another major branch of intelligence is what's known as "signals
22 intelligence." It is the intelligence information derived from radios or
23 other forms of emitters. There is communications intelligence, which
24 specifically deals with the intercept of radio traffic. There is what's
25 known as non-communications intelligence, which is intelligence that is
1 derived from other broadcast means that don't involve communications;
2 for example, radar, or, for example, telemetry, or things of that nature.
3 So that is the general, you know, types of intelligence related to signals
5 Q. Anything else in particular, especially that may be relevant to
6 this case?
7 A. The next discipline would be imagery intelligence, which is the
8 category of collecting intelligence information from imagery video
9 sources, and it could be from something simple like hand-held photography
10 all the way up to, of course, imagery derived from reconnaissance
11 platforms or satellites.
12 Q. All right. And I don't obviously want to get into the detail of
13 this, but have you had experience, in your long career, of actually
14 dealing with this sort of intelligence in real-life situations?
15 A. Yes, sir, with all three branches. Yes, sir.
16 Q. Okay. Can you describe for us briefly now the kinds of learning
17 and educational experience you had throughout your career so we can get an
18 idea of your training and your education?
19 A. As an enlisted soldier, as I've said, I've attended the basic
20 intelligence analyst course, non-commissioned officers academies related
21 to that advanced education for both my leadership skills as well as my
22 intelligence skills.
23 In 1988, when I was appointed for warrant officer, I attended
24 again not only their warrant officer leadership academy for leadership
25 skills, but also the military intelligence warrant officer basic course,
1 where we were given additional training with respect to dealing with the
2 types of intelligence that I've just discussed.
3 Continuing on my career as a warrant officer, when I achieved a
4 specific rank, in my case Chief Warrant Officer 3, a senior-grade
5 intelligence warrant officer, I was required to go back and complete
6 what's known as the warrant officer advanced course, which is less in that
7 case given information with respect to teaching specific skills.
8 But at that point of our careers, where we're considered to be,
9 you know, significant career professionals, it was more of a forum where
10 other warrant officers were brought in for these various course works and
11 it allowed, in a collaborative environment, for all of us to share the
12 ideas and the information and the techniques that we had learned through
13 the years for the benefit of not only that class but, in many cases, the
14 information would be put out to the services as well.
15 So that's the limit of my military education.
16 Q. Well, how about general university education? Have you received
17 any university degrees?
18 A. Yes, sir, I have. I have a bachelor's degree from the University
19 of Maryland, their European division, in political science.
20 Q. And did you receive that while you were an active service person
21 in the army?
22 A. Yes, sir, I did, a compilation of a lot of years of night school.
23 Q. All right. Did the US pay for that?
24 A. They paid 75 per cent, and I paid 25 per cent.
25 Q. Generous. All right. Now, you have, in your reports, defined
1 three subject areas of military analysis for land warfare. Can you
2 briefly tell us what each of those are and, as you have before, just
3 encapsulate what they are?
4 A. In the three areas of intelligence analysis with respect to land
5 warfare, they parallel, of course, the three levels of land warfare. The
6 first one is what is referred to generally as the tactical level.
7 "Tactics," as the name implies, deals primarily with issues
8 related to close combat, military operations that last from, you know, the
9 immediacy until 24 to 48 hours. This type of combat is generally
10 described as the type of combat that small formations would be involved
11 in, platoons, companies, battalions, even brigades involved in
12 tactic-level operations.
13 The next level of operations, and they'll be some overlap here
14 obviously, is what is known as the operational level of war.
15 Q. Can I interrupt you briefly? I know different armies use
16 different terminologies for their forces. Can you briefly tell us, at the
17 tactical level, where in your -- what sort of units in the VRS context are
18 we talking about?
19 A. As an example, there will be orders with respect to Srebrenica
20 that we will see. Those will be actual attack orders or actual orders
21 where the roles of companies and battalions are outlined. That would be
22 an example of a tactical order, having to deal with the particular
23 movement or issues of a company or a battalion or what it's to be doing
24 within the next 12 to 24 hours. So we'll see that in that particular
1 Q. Okay. After tactical was what?
2 A. The operational level of war deals with the higher military
3 formations; and, again, brigades are involved in this to some extent,
4 division-level commands where various military forces will have them, or
5 corps-level commands. This is the warfare and the planning and the
6 process of warfare that deals more specifically, not with those
7 day-to-day-related issues, but with those issues that generally in combat
8 will transpire between the 72-hour to 96-hour to beyond, you know, several
9 days afterwards.
10 In the United States, you know, when you're thinking of the
11 operational level, you're already thinking beyond the current battle and
12 that you're now looking towards the next battle. Maybe to proceed with
13 the question, where we would be looking in this context, for example,
14 would be where the Srebrenica operation is going on, and at the point in
15 time that people start thinking about what happens after Srebrenica,
16 what's the next military operation, in this case Zepa, and that's an
17 example of now delving into the operational art of war. You're already
18 thinking beyond your immediate battle, and you're now thinking what
19 happens in the next phase, the next part of that.
20 Q. Okay. The third part?
21 A. The third part is what's known as the strategic battle, and as the
22 name implies, again, what you're talking here is the overall conflict
23 capacity of an army and how it's tied into a nation.
24 The strategic level of warfare, for example, you know, will
25 encompass not only the actual combat, it will encompass issues related to
1 the development of weapons systems, the development of national strategy
2 or policy on issues. It will encompass issues related to short- and
3 long-term personnel mobilisation: How will the military be financed, how
4 will it be supported, what is its training base, how do you train your
5 current generation of officers, and how do you train your next generation
6 of officers.
7 So that is -- the interrelationships between the three, but, you
8 know, each particular aspect of that, you know, deals with a various
9 component of how a country or nation wages armed conflict.
10 Q. And, again, can you give us a short VRS or RS example of what may
11 fit into that category?
12 A. For example, many of -- some of the documents that I'll talk about
13 in the future relate to what are known as operational directives. Now,
14 while they were in fact named "operational," what those directives do, you
15 know, outlines the strategic concept of how the war is to be fought during
16 various stages of the conflict. It melds the military situation on the
17 ground with the political situation within the Republika Srpska, as well
18 as the other warring parties.
19 It also talks about and wraps in the political and diplomatic
20 issues related to the European Community as they involve the conflict in
21 Bosnia. So those types of directives would be an example of what I would
22 call the strategic conduct of the war.
23 Q. All right. And in your experience as a United States Army warrant
24 officer, have you dealt with all three levels?
25 A. Yes, sir, I have.
1 Q. Now, let's go to your movement over to the OTP of the ICTY. Can
2 you remind us again what year that was?
3 A. That was April of 1997.
4 Q. And as you said, you were seconded from the United States. Can
5 you briefly tell us, what was the understanding between the United States
6 and the OTP at that point? How was it that you ended up being an OTP
7 person but staying in the United States Army?
8 A. To start that off, at the time I was an intelligence warrant
9 officer with what's known as the United States 3rd Army, which is the army
10 component of Central Command, and in that place I was for five years doing
11 strategic and operational intelligence. The United States government had
12 agreed apparently to a request from the ICTY Office of the Prosecutor to
13 second, as the practice used to be back then, individual -- an individual
14 military analyst to the Office of the Prosecutor to assist them in
15 understanding many of the military aspects of the crime bases they were
16 investigating; not only the United States, I understand other countries
17 were involved in this process as well, volunteering military analysts.
18 As a result, primarily because I had spent five years in the
19 United States and it was time for me to rotate back overseas again, my
20 name came up and I accepted the assignment, came to Europe, and was
21 essentially loaned to the Office of the Prosecutor of the ICTY for my
22 duration of military service.
23 Q. And who was paying you?
24 A. As an active-duty army officer, I was salaried by the United
25 States government, I was paid by the United States Army.
1 Q. Okay. Aside from that, did you become a regular worker at the
3 A. I showed up at 8.00 and left at 7.00 in the evening, like most of
4 the people who were involved in this case. So I was, for all effects, I
5 was a non-paid UN employee.
6 Q. And where did you get assigned when you first arrived?
7 A. The initial office I was assigned and working out of is what's
8 known as the Military Analysts Team, a group of military officers and
9 analysts who assist the Office of the Prosecutor in various
10 investigations, in understanding military activities related to the crimes
11 that they're investigating. My initial two months there were essentially
12 to read up and become familiar with this particular area, since I've not
13 dealt with issues related to Bosnia for about five years before I came to
14 the Tribunal.
15 After several months, the branch chief of MAT at the time, Peter
16 Nicholson, assigned me to support the Srebrenica investigation which at
17 that time did not have a military analyst.
18 Q. So what does that mean?
19 A. Essentially, what that meant was that while I was assigned to the
20 MAT for accountability and other personnel-related activity and I worked
21 in that office, my primary focus was to provide military analysis support
22 to the investigators and the lawyers who at that time were investigating
23 the crime base related to Srebrenica.
24 Q. All right. And you'd mentioned that you had some Bosnia
25 experience prior to that. Can you describe any Bosnia or experience from
1 the former Yugoslavia, just to -- in broad terms, of course?
2 A. After finishing up with my assignment in Southwest Asia with US
3 7th Corps during what is now known, I guess, as the first Gulf War, I
4 reverted back to my original position in 3rd Infantry Division in
5 Wuerzburg, Germany. At that time, it was early 1992; and as part of NATO
6 and part of the Central Army group, there was contingency planning going
7 on with respect to the possibility of NATO forces being deployed to Bosnia
8 in some form or fashion.
9 So from my return in late April of 1992, after leave, being back
10 to the unit in May of 1992, until I rotated out in August of 1992, my
11 focus was catching up and looking at the aspects of the conflict in Bosnia
12 during that short period in order to potentially support a deployment of
13 US military forces, should the decision be made to do that.
14 Q. And, again briefly, what kind of information sources did you look
15 at to study up on the former Yugoslavia?
16 A. Primarily, at that time we were less interested in issues related
17 to the actual combatants, themselves, and more interested in relation to
18 more of the -- more of the boilerplate issues of intelligence, which is
19 identifying various issues related to map holdings, identifying areas
20 which may be potentially suitable for deployment areas, working with the
21 logistics staff a lot to provide them with the information related to
22 existing railroads and things of that nature that might support a
23 potential deployment.
24 We were not engaged in a day-to-day monitoring of the military
25 activities of any of the warring parties, if that's what you're getting
2 Q. Any general materials for historical background?
3 A. At that time, it would probably be whatever news and media reports
4 were coming out of Yugoslavia. I guess it's a matter of fact at this
5 point that, certainly, when the civil conflict in Bosnia started, it
6 wasn't a primary focus of the United States.
7 MR. McCLOSKEY: I think it's break time, Mr. President.
8 [Trial Chamber confers].
9 JUDGE AGIUS: We'll have a 30-minute break, starting from now.
10 Thank you.
11 --- Recess taken at 12.00 p.m.
12 --- On resuming at 12.32 p.m.
13 JUDGE AGIUS: Yes, Mr. McCloskey.
14 MR. McCLOSKEY: Thank you, Mr. President.
15 Q. Okay, Mr. Butler. We left off and you were -- had just been
16 assigned to the Srebrenica team. Can you describe the tasks that you were
17 assigned and what you basically did in those early months and years?
18 A. Yes, sir. I was assigned two specific tasks. The first one was
19 to engage in the study of the military and armed forces apparatus that was
20 believed to be responsible for the crime base, in which case would be the
21 Armed Forces of the Republika Srpska, in order to understand their
22 doctrine, how they would have been engaged in operations, things of that
23 nature, how their command-and-control organisation would have worked, how
24 their -- you know, all those fundamentals of how the military would have
25 worked in the concert of that crime base.
1 The second component was to actually do the analysis necessary to
2 identify and place the various military units on the ground at the time
3 that the investigation had determined that crimes had occurred or
4 potential crimes had occurred, you know, in order to start making it to
5 the next step to determine who the leaders in those units were and whether
6 or not they would have any potential criminal culpability for the acts
7 that were being charged.
8 Q. Okay. Did the first thing you described end up in a particular --
9 with a particular product?
10 A. Yes, sir, and in the context of my first product, it's known as
11 the VRS command responsibility report.
12 Q. And so what kind of materials did you have access to in those
13 early days to help you sort out the procedures, the rules, the basic
14 command doctrines that were necessary to fulfill that task?
15 A. When I first arrived at the OTP, which is 1997, they had already
16 started to compile a library of former manuals, regulations, rules, and
17 doctrinal aids related to the former Yugoslav National Army, and, of
18 course, those were being translated.
19 So we had that type of information to start with in order to lay
20 out the basic doctrinal framework of what the former JNA looked like, how
21 the former JNA operated, how it was organised, and started to receive
22 documents from the warring parties, which, you know, began to lead me in
23 the direction of believing that, in fact, the Army of Republika Srpska was
24 following along in the same doctrinal, organisational, and behavioral
25 lines as the JNA before it.
1 Q. Okay. Well, those are in the early days. Can we just jump
2 forward just a bit, and I don't want to get into a lot of detail here;
3 but, today, what's your conclusion on that point, the relationship between
4 VRS rules, procedures, doctrine, and those of the JNA?
5 A. After not only reviewing the documents that the OTP received as
6 part of search warrants, you know, from various military units of the Army
7 of Republika Srpska, but also sitting in with interviews of senior VRS
8 officers and commanders, they all acknowledged that, you know, in fact the
9 officer corps, the tactics and the doctrine of the VRS, did mirror those
10 of the former JNA.
11 Q. In all senses?
12 A. There were some minor deviations based on the actual conduct of
13 the armed conflict with respect to maybe terminology or with respect to an
14 area -- particular area of operations that were based on municipality --
15 municipal boundaries and things of that nature. But issues related to
16 command and control, logistics support, combat doctrine, all of those
17 things remained the same as these officers were taught during their JNA
18 professional service.
19 Q. And how would you again describe briefly the quality and
20 completeness of the JNA material that you have had access to over the
22 A. I can't obviously say I've got a complete listing of everything,
23 because I certainly don't know what I'm missing. I have some ideas. But
24 given the broad variety of material that the OTP has at this juncture, we
25 certainly have a very detailed cross-section of the material that would
1 have represented the reporting, the orders, the doctrine, and the whole
2 characteristic of the type of material that an army produces when it's in
3 the conduct of combat operations. So, I mean, I think we've got a fairly
4 good representation of that.
5 Q. And we'll get into some of that specific material a bit later, but
6 do you -- you lay out the names, the dates, the titles of all the material
7 you had basically in your command study and your narrative?
8 A. Yes, sir, I do. I footnote that extensively.
9 Q. Okay. How about the second task that you talked about, as you
10 described it, following after identified crime scenes and trying to link
11 units, identify leaders and units? What sorts of materials did you do --
12 did you look at in that review?
13 A. For that particular task, the most valuable documents were those
14 documents that actually represented the combat orders or reports of the
15 units of the Drina Corps that the OTP either acquired through seizures or
16 through other sources; for example, the documents from the Zvornik
17 Infantry Brigade that the OTP received, the documents from the Bratunac
18 Brigade, the documents that are referred to as the Drina Corps collection.
19 Those documents give a fair accounting of what those particular
20 units were doing on given days and set the foundation for interviews of
21 officers, or soldiers of those units, which then corroborated what they
22 were doing at those locations at those particular times with respect to
23 military operations.
24 Q. How about Ministry of Interior or MUP materials?
25 A. Yes, sir. In the same way that the military documents laid out
1 that picture, the OTP came into possession of documents from the RS
2 Ministry of the Interior, not only those special police units, but also
3 the public security offices or centres, which formed the exact same
4 picture. They give us the foundation of where these police units were,
5 and that, in large part, has been corroborated by the investigation,
6 interviewing the officers in question.
7 Q. All right. And how about open sources from the former Yugoslavia?
8 A. In the beginning, particularly, open source, you know, played a
9 significant role with respect to understanding the basic foundations of
10 the VRS. There's also what we would call open-source information specific
11 to the crime bases, itself, where various media outlets either associated
12 with the Republika Srpska military or independent media people were
13 videotaping various aspects of the operation.
14 In reviewing those videotapes, you know, you're able to identify
15 key members of the leadership, military equipment, things of that nature,
16 which again tend to flow into the larger picture of what particular
17 military units are on the ground, what their activities that they were
18 engaged in, things of that nature.
19 Q. Did you find any magazines interesting or important?
20 A. Yes, sir. Not only did the Army of the Republika Srpska publish
21 their own military magazine for the consumption of the soldiers, to read
22 about what their army was doing, in this particular case the first -- the
23 Zvornik Brigade, and later the Drina Corps took that over, published their
24 own military magazine as well, which on a monthly basis would discuss
25 issues of interest to the soldiers of the Zvornik Brigade and later the
1 Drina Corps. That magazine is known as "Drinski Magazine."
2 Q. All right. And how about information from the investigation, did
3 you have access to that kind of information?
4 A. Yes, sir. I mean, I had full access to the investigators as well
5 as all of the facets of the investigation that was going on certainly with
6 respect to interviewing military personnel, interviewing police personnel,
7 things of that nature. So I -- I had full access to all of the materials
8 of the investigation during my time here from 1997 through 2003.
9 Q. Did you cite any witness interviews or that kind of information in
10 your narrative?
11 A. As a -- as a general rule, I do not cite or attribute substantive
12 information to witness interviews, primarily because those are individuals
13 who may one day appear before a Trial Chamber and will be cross-examined.
14 I'm not in a position to -- you know, I don't want to rely on their
15 testimony, in the former of statements, as anything that I might rely on.
16 I do, however, in order to set the proper context of some of the
17 crime bases, for example, a place -- you know, the school at Orahovac or
18 the school at Petkovci, where individuals may have arrived and they depart
19 that location, I will rely on some of the statements or prior testimony of
20 those witnesses merely to establish that a crime base was at that location
21 to provide a framework for the remainder of the military documents or
22 other analysis that I do that will, you know, then places
23 the military unit at the location or in proximity.
24 Q. Okay. Over the years, have you drafted different addendums to
25 your report as you were called on to do so?
1 A. Yes, sir. For the requirements of the trial of General Krstic, I
2 had the corps command responsibility report, which was tailored towards
3 his responsibility as a corps commander, and my initial product, which was
4 known as the Srebrenica military narrative, which was the first iteration
5 of my laying out the military units and their association to the crime
7 Following that, for the trial of Colonel Blagojevic and Major
8 Jokic, I tailored a product known as the brigade command responsibility
9 report, focusing on their roles and responsibilities with respect to the
10 brigade level of command. And, at the same time, I took that opportunity,
11 based on additional information that the investigation was generating, to
12 revise or, more accurately, update the military narrative that I had
13 authored earlier; and that, of course, was tendered as part of the trial
14 of Colonel Blagojevic and Lieutenant-Colonel Jokic.
15 Also as a part of that, I annexed in a new part of the
16 investigation that was developed, which was military documents related to
17 individuals who were being treated at various medical facilities within
18 the Drina Corps zone and who were subsequently on the missing list, and
19 that was a separate annex to my Srebrenica military narrative, the revised
21 Finally, in preparation for this particular set of hearings, I
22 authored what's known as the Main Staff command responsibility report,
23 again dealing with the roles and functions of the Main Staff, in order to
24 set the context for my potential testimonies here as well. However, I did
25 not revise the military narrative that I had at the time. By that
1 juncture, I had already left the OTP and I didn't feel that I was in the
2 position, with respect to my current employment and my time constraints,
3 to significantly revise that document.
4 Q. All right. So the investigation and interviews and things
5 continued without you. Had you kept up to date with that -- all that
6 information, like you would have if you'd been a UN person?
7 A. My -- my current job responsibilities obviously preclude me from,
8 you know, keeping up with the day-to-day activities of the investigation
9 or the proceedings. You know, the US government, from the beginning, you
10 know, of my employment, understood that the Office of the Prosecutor had
11 requested and they had agreed to my continuing to function as an expert on
12 behalf of the Office of the Prosecutor for this case.
13 But certainly I have a day job, and I'm not in the position to
14 spend, you know, so many hours a day reviewing this. I would, of course,
15 go over new materials that were being published on the OT -- on the ICTY
16 website with respect to the trial. I have read a number of witness
17 statements relating to this particular trial from the website of the ICTY,
18 and I have been in contact with members of the Office of the Prosecutor
19 with respect to continuing issues of this investigation in preparation for
20 my testimony.
21 Q. All right. Now, in the process of carrying out your -- the tasks
22 that you've described, did you get involved in field missions, actually
23 going in to the -- into Bosnia or other places with the team?
24 A. Yes, sir, I did.
25 Q. And can you describe the sorts of things that you would go along
2 A. Field missions that I would participate in would be those field
3 missions that would have a direct nexus to my military analytical work;
4 for example, I was part of the field missions that were involved in the
5 seizure of documents from the Krajina Corps, from the Zvornik Brigade,
6 from the Bratunac Brigade, as part of that operation.
7 Initially, I was involved in some of the work in trying to locate
8 potential intercept evidence from the Bosnian Muslim Army, at the time
9 2 Corps, until a point in time when we handed off investigatively to some
10 of the other investigators and Ms. Stefanie Frease.
11 When we started getting access to military officers of the VRS to
12 be able to interview them, I started to participate in those interviews in
13 order to assist the investigators and whatever lawyers were there with
14 understanding some of the answers of the accused with respect to the
15 context of the JNA, as well as to pose my own questions to either confirm
16 or deny our working thesis at the time that the rules, the regulations,
17 and the procedures of the JNA were, in fact, followed by the VRS.
18 Q. So did you actually question some witnesses?
19 A. Yes, sir, I did.
20 Q. Do you have -- can you give us a rough number?
21 A. For the OTP, I probably personally participated in maybe 24, 25,
22 two dozen. I mean, I think there were about three separate missions where
23 I participated in direct interviews. And in those missions where I didn't
24 participate in direct interviews because I had other commitments to do, I
25 certainly read the transcripts of the interviews afterwards.
1 Q. All right. Now, I want to go back just briefly. You've talked
2 about some of the material you relied on from open sources and JNA
3 documents and captured material from the VRS, but you've -- you've just
4 mentioned intercepts. Did you work with intercepted radio conversations
5 that were intercepted by the Bosnian Muslim Army of the Serb forces?
6 A. Yes, sir, I did.
7 Q. Can you tell us about -- about that?
8 A. What, as a component of my analysis or some background behind --
9 Q. Let's -- how did you first view that, how did you analyse that
11 A. As the material -- or as we became aware that this material
12 existed and that the OTP started gaining possession of it, you know, my
13 view of the material, and I think I've indicated this in other forums
14 before the various Trial Chambers, is I was very skeptical of this
15 information, and certainly --
16 Q. Why is that?
17 A. Well, again, as a military professional, I could certainly hold
18 open the prospect that, you know, we could be baited into some form of a
19 disinformation campaign; and, certainly, within the context of the crime
20 base, those individuals within 2 Corps, many of whom had lost relatives as
21 a result of Srebrenica, you know, would certainly have motive to want to
22 enhance the evidence, so to speak, with respect to various issues of the
23 crime base. I mean, I was aware of that, and so was the investigative
24 team from square one.
25 Q. In your experience as a military intelligence analyst in your
1 prior job, was credibility of intercepts and other documents an issue that
2 you would deal with?
3 A. Not only intercepts, but all intelligence information. A part
4 of -- a part of being an analyst is being able to not only review the
5 information and figure out what it means, but also being able to judge the
6 credibility and the reliability of the information. In doing that,
7 obviously, you know, the implied task is that the analyst had to
8 understand the various methodologies that were used to collect the
10 That's the first step in determining whether or not the
11 information that you're receiving is -- whether it's technically feasible
12 to even acquire that information, in the first place, as a role of
13 verifying that the information that you're receiving is at least -- you
14 know, has some form of reliability.
15 Q. Okay. So what, if anything, did you do to review, look into, and
16 test the reliability of these -- this intercepted material?
17 A. The first thing that I did, at a time while Ms. Frease and others
18 with language skills were actually going through the material and
19 translating it into a language I could understand, was, you know, I took
20 that opportunity, you know, through the work of the investigators, to
21 familiarise myself with the technical capabilities and the practice that
22 the BiH 2nd Corps had and maintained during the war with respect to their
23 ability to intercept enemy communications; the enemy, in this case, being
24 the VRS communications of the Drina Corps and, to some extent, the Main
1 At the same time I was doing this, I had access to the documents
2 of the Zvornik Brigade and Bratunac Brigade searches. What I was able to
3 do is, from their communications documents with respect to how their
4 communications systems operated, the schematics of their networks and
5 their general practices that I could divine from the documents, I came to
6 the conclusion that at least from a technical feasibility standpoint, the
7 Bosnian 2nd Corps understood what the target environment was that they
8 were collecting against and that they had the technical feasibility to do
10 So the idea that they could collect this material was -- was
11 within the ballpark now. It wasn't something that was completely out of
13 Q. Then what else, if anything, did you do to evaluate, to test the
14 credibility of this material?
15 A. Well, the next step of testing the credibility of the material was
16 to determine whether or not we were in a position to be able to
17 independently verify the context of the intercepts, as we referred to
18 them, against material that arguably, you know, the Bosnian Muslim 2nd
19 Corps people would have no knowledge of, as a way of independently testing
21 For example, there are - and I know the Court has heard this, so I
22 won't go into the details, obviously - but there are numbers of documents
23 that were seized from Bosnian Serb Army or VRS headquarters or other
24 locations that refer to times, places, and events that it is unlikely or
25 impossible that the ABiH 2 Corps people could have known about at the
1 time, that these records were being created, unless they'd actually
2 intercepted these communications, pertaining to fuel deliveries,
3 pertaining to various events happening on the ground, things of that
5 So in an intelligence world, having the ability to look at a
6 potential adversary's actual collection of orders and then marry it up
7 with the intelligence that you're collecting in the first place, from an
8 ABiH portion, was definitely a unique -- a unique opportunity to really
9 get an understanding of how good or how bad the ABiH 2 Corps people were
10 in collecting against this particular target environment.
11 Q. And were you able to review interviews of ABiH intercept
12 operators, see their testimony, judge them as individuals?
13 A. Yes, sir, I did, primarily in the context of the trials against
14 General Krstic and Colonel Blagojevic.
15 Q. And how did that factor into your overall view?
16 A. It -- it certainly reinforced my opinion that the people who were
17 collecting the data, you know, understood the target environment that they
18 were collecting against. They knew what they were doing and had the
19 technical means to do that. Certainly the fact that in most cases the VRS
20 communications was not encrypted certainly lended to their ability to do
22 So, again, it just reinforced my opinion that what the OTP was
23 looking at, within the context of the intercepts, was in fact an
24 authentic, you know, contemporaneous version of what they were doing in
25 July of 1995.
1 Q. I think you mentioned "disinformation." Has your review of all
2 this material in the investigation shown you any efforts by the VRS to get
3 out disinformation or false information over the airwaves that could have
4 been picked up in these intercepts that you're reviewing?
5 A. Well, within the context of disinformation, the thing to note in
6 the fact of disinformation is disinformation is part of a plan. There is
7 a motive behind attempting to deceive or misinform the enemy. Ideally,
8 what you're trying to do is completely draw him, you know, away from what
9 you really intend to do. So disinformation is not -- it's not random.
10 There's actually a planned campaign which does this on a normal basis.
11 When you look at the contextual body of the ABiH intercepts, there
12 certainly was an awareness by many members of the VRS to include their
13 senior commanders, that the communications that they were talking to were
14 not secure. They knew the ABiH had the potential to intercept them.
15 But I don't see evidence of a disinformation campaign where
16 communications disguised as official communications between correspondents
17 in the VRS were being designed to actually draw the attention of the ABiH
18 intelligence personnel to a different part of the battlefield or to a
19 different avenue of what they were actually doing.
20 I mean, their primary concern was to prevent the leakage of
21 information, not to engage in a more sophisticated effort to direct or
22 steer the analysis towards a different conclusion.
23 Q. All right. You have provided us with a recent copy of your CV.
24 MR. McCLOSKEY: That's 65 ter 681. We have marked the various
25 narratives and command reports also with numbers, and I will provide Your
1 Honours with that list later, not take the time to go over it now.
2 Q. But did you include in your narrative and your command reports
3 detailed annotations or cites to the materials that you were relying on?
4 A. Yes, sir, I did.
5 Q. And are those materials -- how important are those materials to
6 have at hand when reviewing your reports?
7 A. I find them personally valuable to have them at hand. One of the
8 fundamental components of my analysis is I try to be as conservative as
9 possible with that particular analysis, and as a result I rely heavily on
10 the documents and what the documents say at face value. I try not to read
11 much in to those documents.
12 Q. All right. Now, I just -- I want to go very briefly to an area,
13 and I don't want to have to use documents about it, but can you tell us,
14 who did you learn was in overall command of the Armed Forces of the
15 Republika Srpska?
16 A. During what period?
17 Q. 1992 to 1995.
18 A. Well, during that period, by law and in reality, the commander of
19 the armed forces, the supreme commander, was Radovan Karadzic.
20 Q. And can you describe who or what made up the armed forces, by law?
21 A. Again, by law, the armed forces were made up of two components.
22 One is the Army of the Republika Srpska and the other one is the Ministry
23 of the Interior or the police forces of the Republika Srpska.
24 Q. And was there anything that had to be in place for the police
25 forces to be considered part of the armed forces?
1 A. In the context of post-1993 and going into 1994, the -- a series
2 of laws that were published in the Official Gazette articulated that the
3 police forces would become part of the armed forces when the political
4 decision was made to declare either an imminent state of war or a full
5 state of war existing within the republic.
6 Q. And in the period of July 1995, had an imminent state of war been
8 A. Yes, sir. In fact, an imminent state -- an imminent threat of
9 state of war was declared back in June of 1995.
10 Q. And are the documents and laws supporting this all set out in
11 your -- in your reports?
12 A. Yes, sir, they are.
13 Q. Now, another question. In your command report, did you identify
14 what kind of criminal law, if any, was in effect in the Republika Srpska
15 throughout the wartime period?
16 A. Yes, sir, I did.
17 Q. And what did you find out?
18 A. What I was able to find out, one, as a result by analysis, as well
19 as subsequent interviews of personnel, was that the law of the former
20 Socialist Federal Republic of Yugoslavia was adopted as the law of
21 Republika Srpska. I think they made it official in December of 1993.
22 Q. All right.
23 MR. McCLOSKEY: Let's go to 65 ter 419.
24 Q. Now, we haven't used e-court before. We always had you put things
25 up on the ELMO. So as I mentioned to you, there may be a slight delay.
1 But is this a document you've pointed out for us that supports the
2 conclusion you just made? And, Mr. Butler, you might just open up your
4 A. It would be easier for me to read, yes.
5 Q. As everyone knows, you've got binders that reflect the material in
6 the computer.
7 A. Yes, sir, it is.
8 Q. And what are you citing us to?
9 A. This is a particular law and amendment to the Criminal Code of the
10 SFRY, essentially redesignating it, with minor changes, as the law of
11 Republika Srpska.
12 Q. All right.
13 MR. McCLOSKEY: Well, let's now go to the next exhibit, 65 ter
15 Q. This is Chapter 20 of the Criminal Law that you have identified;
16 and as it comes up, I will just mention, as we leaf through some of the
17 articles, we see military things like failure or refusal to carry out an
18 order, refusal to accept or use arms, those sorts of things.
19 MR. McCLOSKEY: What I want to get us to is on page 17 in e-court
20 and page 104 in the B/C/S.
21 Q. It's Article 239, which states, and I'll read it as it's coming
22 up: "A subordinate shall not be punished if he commits a criminal act or
23 by order of a superior officer which relates to official duties, unless
24 the purpose of the order was to commit a war crime or another serious
25 criminal act, or if he knew that the carrying out of the order constituted
1 a criminal offence."
2 Now, this particular crime, do you have any knowledge of whether
3 or not officers trained in the JNA would be aware of -- or been trained on
4 the Criminal Code that was in force in the former Yugoslavia prior to the
6 A. Certainly within the context of this article, yes, sir.
7 Q. And what do you base that on?
8 A. As part of the professional development and education of those
9 career JNA officers, there were -- they were required to attend various
10 military academies, military training classes or courses. Interviews with
11 those officers in many respects confirms the fact that the inherent, you
12 know, knowledge relating to their own military laws, as well as, you know,
13 adherence to the broader Geneva Conventions, were topics that were taught
14 at those locations. So as part of their on professional development,
15 these issues were broached.
16 Q. Let's go to the next set of laws.
17 MR. McCLOSKEY: It's Chapter 16. It's 65 ter 411, and it's on
18 page 1 of the e-court, B/C/S page 66.
19 Q. This chapter is entitled: "Criminal Offences Against Humanity and
20 National Law." I just note on that first page, it has the crime of
21 genocide. I won't read it all out, but it includes, as a potential part
22 of genocide, "forcibly deports the population."
23 Then down in Article 42, "War Crimes Against Civilian Population,"
24 it notes an attack on a civilian population as something else, and just
25 another part of it, exposing the population to starvation, confiscation of
2 Did these laws have any applicability to the -- your analysis and
3 the crimes you were investigating?
4 A. Yes, sir. They had applicability, in the sense that, one, the
5 laws themselves were applicable to the Republika Srpska and specifically
6 the members of the army or police of the Republika Srpska; and, two, many
7 of the offences that the Office of the Prosecutor was investigating with
8 respect to Srebrenica would have been encompassed within the described
9 actions here in these laws.
10 Q. And, again, would the -- would career officers in the JNA have
11 received training on the Geneva Conventions and the laws as set out in
12 their own laws?
13 A. Yes, sir.
14 Q. All right. Now, that's briefly what I'll ask you about on what
15 law you found.
16 Did you find any military guidelines or regulations that actually
17 directed the Armed Forces of the Republika Srpska relating to crimes
18 against international law?
19 A. Yes, sir, I did.
20 Q. All right. And do you remember, in particular, a set of
21 guidelines? Can you describe that briefly, and then I think we can
22 probably go to it.
23 A. There are several. But within the context of the former Yugoslav
24 National Army, one of the most valuable documents is the 1988 regulations
25 pertaining to the application of international law and the laws of war on
1 the army.
2 Q. Okay. And we'll get to those, but was there a document that came
3 out of the Main Staff that talked about the applicability of those regs?
4 A. Yes, sir. In fact, on a number of occasions shortly after the
5 armed conflict began in earnest, both political leadership as well as the
6 military leadership published various aspects of guidance to the various
7 political and military bodies to confirm that, you know, these rules and
8 regulations remained applicable to the VRS, even though they were
9 labelled "SFRY."
10 MR. McCLOSKEY: All right. Let's go to 65 ter number 28,
11 something that you have cited in your reports and testified about.
12 Q. And, again, as it's coming up, I will help outline it. It's from
13 the Main Staff, the Army of Republika Srpska, dated 6 October 1992,
14 entitled: "Guidelines for Determining Criteria to Criminal Prosecutions."
15 I'd like you to look at what appears to be a cover letter under
16 the name of Commander Ratko Mladic?
17 A. Yes, sir.
18 Q. Now, what can you tell us about this cover letter? What is this
19 referring to?
20 A. In -- you know, sometime during the summer/early fall of 1992, the
21 military prosecutor office or branch at that time published a 14- to
22 15-page document which laid out the various aspects of SFRY law and how
23 they pertained to the VRS. In many respects, those, you know, pertain to
24 the law of the arm forces regulating military discipline and procedures
25 with respect to conscript call-ups, mobilisation, failure to follow
1 orders, things of that nature.
2 They also outlined the applicability of international law that was
3 found in the SFRY code to the VRS as well. So the military's prosecutor's
4 office drafted the base document, and what we're looking at now is the
5 cover memorandum that was published by the Main Staff that essentially
6 promulgated this.
7 Q. Have you been able to make out anything from these initials at the
8 bottom, "SS/MR," on who may have been involved in this document?
9 A. Yes, sir.
10 Q. And what have you come to?
11 A. The initials "SS," to back up a little bit, is part of the scheme,
12 and I believe the Court has heard this before, the initial set of initials
13 is the person who drafts the memorandum, the slash, and then of course the
14 typist. In this particular instance, the initials "SS" stand for "Savo
15 Sikanovic," who was a member of the VRS Main Staff, specifically Morale
16 Legal, and Religious Affairs branch or sector.
17 Q. And why do you conclude that?
18 A. In 1992, at the time this memorandum was published, the military
19 prosecutor's office, the military court system, were under the
20 administration of the VRS. At a later point in the war, those
21 responsibilities were relinquished by the army and, in fact, picked up by
22 the Ministry of Defence.
23 But at the time, the sector under the, you know, direction of
24 Lieutenant-General Gvero was responsible for the administration or setting
25 up the framework of the military prosecutor's office and the military
1 justice system. In that context, the only officer with the initials "SS"
2 would be Colonel Sikanovic.
3 Q. Let's go into the guidelines themselves, briefly.
4 MR. McCLOSKEY: That's at 65 ter 28.
5 Q. Again, they begin by talking about various Criminal Code offences,
6 like failure to call up and those sorts of things.
7 MR. McCLOSKEY: So I want to skip through that and get to e-court
8 page 7, which is B/C/S page 23 and 25 and 27 as we go through it, but I
9 want to start with paragraph 3, which maybe -- may start on page 25 in the
10 B/C/S. In English, it's page 7 -- oh, 8, okay. Thank you.
11 Q. This is entitled "Criminal Offences Against Humanity and
12 International Law" pursuant to Chapter 15 of the Criminal Code -- sorry,
13 16 of the Criminal Code, which is what we just referred to.
14 And, Mr. Butler, looking down the paragraphs, we see references to
15 genocide, Article 141, and the other crimes that we had just gone over in
16 the previous document -- a couple of documents ago. How does this fit
17 into your analysis?
18 A. Again, it goes to confirm the applicability of that particular
19 section of what is then the SFRY Criminal Code, you know, is being adopted
20 and, you know, will be followed by the VRS as a component of the formation
21 of their new state.
22 Q. All right. And I won't read it out; but the paragraph preceding
23 the mentioning of the different articles, it starts out: "Crimes against
24 humanity and international law ..." I know you've read that many times.
25 Do you have any disagreement with that conclusion, as we all read it?
1 A. No, sir. I mean, I think it's a fair characterisation of how
2 these things can occur.
3 Q. All right.
4 MR. McCLOSKEY: And then looking at the paragraph at the bottom of
5 the English page, now I think this goes over to B/C/S page 27, a 27 and
6 then to page 29.
7 Q. It begins by talking about: "In addition to preventing criminal
8 acts which are in violation of the norms of humane conduct and
9 international law, the Armed Forces of the Army of Republika Srpska are
10 required to abide by the instruction on application of the International
11 Laws of War ..."
12 Is this -- are those the instructions that you had just referred
13 to earlier as being followed by the VRS?
14 A. Yes, sir, it is.
15 MR. McCLOSKEY: And I want to look at the top of English page 8
16 and B/C/S page 29 -- English page 9, where it starts -- B/C/S 31, I'm
17 told, from --
18 Q. After the paragraph that states they have to follow the
19 International Laws of War, it states: "From this follows the explicit
20 responsibility of the officer corps of the Army of Republika Srpska as the
21 givers of orders in command of the armed forces, whose members could
22 commit or are committing some of these offences, to take uncompromising
23 action and prevent such conduct.
24 "This responsibility belongs, by its nature, particularly to
25 high-ranking individuals and officials in state, military, or public
1 organisations who are in the concrete circumstances in a position to issue
3 And the next paragraph: "If officers merely find out that units
4 of the armed forces of the Army of Republika Srpska or their members have
5 committed or are committing such acts and take no measures to prevent the
6 consequences or the acts themselves and expose perpetrators to criminal
7 prosecution, this in itself makes them answerable for these criminal
9 Are you aware of either of these two paragraphs, these guidelines,
10 ever being withdrawn in any order or in any policy of the VRS or the RS at
11 any time during the war?
12 A. No, sir.
13 Q. Also, if we go down a few paragraphs, there's a short comment by
14 the author. It says: "It is noteworthy that officers and units on the
15 front line witness such incidents and quite frequently even take part in
16 them, but make no attempt to prevent such conduct by individuals in a
17 unit," referring to criminal conduct.
18 In your analysis of the evidence, did you see this occur, where
19 officers on the ground didn't do anything to stop it and actually took
20 part in it, themselves, based on orders and other things you've read?
21 A. Yes, sir. Well, particularly in the context of where this
22 document was written and the time frame, reflecting a well-known problem
23 at the time that many of these smaller units that were organised as
24 military police units or self-styled paramilitaries, that both the troops
25 in them and their soldiers were engaging more in criminal acts than they
1 were in legitimate acts necessary to further the goals of the military
3 Again, the fact placing the obligation on the officers, you know,
4 if the officers are engaging in that type of conduct, themselves, or are
5 at the very least condoning it, the message that the soldiers are going to
6 hear is that this kind of conduct is, in fact, acceptable.
7 Q. All right.
8 MR. McCLOSKEY: Let's go to 65 ter 416.
9 Q. This is something you've identified as an order or a law under the
10 name of Radovan Karadzic, 13 May 1992, on the application of Rules of
11 International Law of War in the Army of the Serbian Republic of Bosnia and
12 Herzegovina. Is this something you found to support your analysis?
13 A. Yes, sir, I have.
14 Q. And do you have any reason to believe this was not a proper
15 enactment of law that was in place at the time of July 1995?
16 A. No, sir. This remained in place.
17 Q. All right. Now, let's go to that particular JNA regulation that
18 you had referred to and was referred to in one of the documents.
19 MR. McCLOSKEY: It's 65 ter number 409, entitled: "Regulations on
20 the Application of International Laws of War in the Armed Forces of SFRY,"
21 dated 1988. Now we're going back into the JNA regs.
22 Can we take a look at I believe it's page 14 of the document, and
23 it should be 14 in e-court, and it may be page B/C/S -- B/C/S page 16,
24 entitled: "Prevention of Violations of the International Laws of War and
25 Criminal Responsibility for War Crimes."
1 Q. Now, I just want to point out, and I won't take the time to read
2 them, but you have talked about paragraphs 19 and 20, 19 entitled:
3 "Responsibility of Parties to the Conflict for Violations of the Laws of
4 War"; 20 is entitled: "Personal Responsibility for Violations of the Laws
5 of War."
6 I note in paragraph 20 that talks about personal responsibility.
7 A paragraph or two down, it says: "The perpetrators of such criminal acts
8 may also answer before an international court if such court has been
10 Was that old JNA policy? Do you know anything about what the RS
11 policy was in July 1992 about recognising any international court?
12 A. Well, you know, obviously the ICTY did not exist at that juncture.
13 Having said that, the VRS and the RS, you know, explicitly indicated that,
14 you know, these regulations would be in force for them as well. So I
15 guess by default, you know, if a future court had been established, it
16 would have put them on notice.
17 Q. Do you know what the -- do you have any knowledge about what the
18 RS view was of the ICTY in July 1995? I don't know if I've asked you that
19 before; but if you know, you can answer.
20 A. Well, I know by -- there is a document floating around, roughly
21 March of 1996, from the Main Staff which reflects that their position is
22 that the ICTY is, of course, illegal and has no authority to do anything
24 Q. All right. I won't get into 1996 at this point.
25 All right. Now, the -- do you have any reason to believe that the
1 other paragraphs, paragraphs 21, 22, 23, were rejected or not in existence
2 at the time in 1995 in the VRS?
3 A. No, sir.
4 Q. All right. Now, let's go to a particular section. I won't go
5 through any more detail on that. That's something you talk about in your
6 narrative or in your command report.
7 MR. McCLOSKEY: Let's go to 65 ter 409. It's the same -- it's the
8 same rules, but it's a section on page 60 in the English,
9 entitled: "Prisoners of War."
10 Q. The part I want to ask you a couple of questions about begin on
11 page, I believe, 64/65 in the English. It's actually paragraph 216 in the
13 MR. McCLOSKEY: Yeah, 64 in English. I believe it's page 57 in
14 the B/C/S, entitled: "Personal belongings of Prisoners of War."
15 Q. I won't go into it again in the detail, but what does this roughly
16 prohibit, in your view?
17 A. It reiterates the provisions in the Geneva Conventions and the
18 additional protocols about the fact that individual soldiers who are
19 captured as prisoners of war are entitled to keep their personal property
20 or any military gear with respect to -- that's construed as personal
21 property or needed for the protection of those soldiers, which are
22 normally issues such as uniforms. In a chemical environment, it could
23 include letting the soldier keep a protective mask, potentially letting a
24 soldier keep a helmet.
25 It allows him, you know, any food that he has on his person,
1 identity cards, money, things of that nature, that those things are
2 considered not to be the property of the state. In most respects they are
3 considered to be the individual property of the soldier; and, as such, the
4 soldier should be permitted to retain them.
5 Q. All right. Can't you take money off a prisoner?
6 A. Well, at some point, presumably, the detaining power would want to
7 take money off the of the prisoner, but there's also procedures where it's
8 going to be vouchered and properly accounted for. It's not customary
9 procedure to -- for the battlefield soldiers who are capturing this
10 individual to keep the money.
11 Q. All right. Now, have you been able to identify actually some
12 orders or documents that speak to these issues that we have just talked
13 about and communicate them to the officers or troops of the VRS?
14 A. Yes, sir.
15 Q. All right. Let's go to the first one that you've talked about.
16 MR. McCLOSKEY: It's 65 ter 3035. This is on page 1 of the
17 English, and it's from the Command of the Drina Corps, 15 July 1993,
18 entitled "Treatment of Prisoners of War," and the part I'm looking at is
19 the second paragraph down.
20 Q. It says: "From the moment they are captured, enemy soldiers who
21 are put out of action must be treated as prisoners of war in accordance
22 with the Geneva Conventions. Actions contrary to international and
23 domestic law constitute serious criminal offences.
24 "In addition to criminal responsibility, persons acting in this
25 way also incur all other types of responsibility. This responsibility
1 rests not only with the immediate perpetrators of criminal offences and
2 inhumane treatment, but also by their superior officers, because prisoners
3 of war are not the property of individuals or military units, but the
4 responsibility of Republika Srpska" -- "of the VRS," excuse me, "and the
5 Republika Srpska.
6 "Prisoners should be isolated as soon as possible and put in a
7 safe place. Inhumane and unlawful treatment is extremely harmful to the
8 struggle of our people and must be prevented by all legal means. It
9 should also be borne in mind that we can exchange captured enemy soldiers
10 for our soldiers who have been captured and thus return them to their
12 Now, this comes out under the name of Deputy Commander Colonel
13 Milutin Skocajic. Who is that?
14 A. At this time, Colonel Skocajic was the Chief of Staff of the
15 Drina Corps. Given the fact that it's the deputy commander and not Chief
16 of Staff, I'm assuming that, for whatever reason, the corps commander at
17 the time, Milenko Zivanovic, was not available to sign this order.
18 Q. Does this, the paragraph and the document itself, reflect the
19 international law on the documents and the applications that we reviewed
21 A. Yes, sir, it does.
22 Q. And would this go on to the commander of the Zvornik Brigade?
23 A. Yes, sir. It's addressed to all -- all commands of all brigades,
24 as well as some of the specialty units.
25 Q. And 15 July 1993, who was the commander of the Zvornik Brigade?
1 A. At that time, it would have been Major Vinko Pandurevic.
2 Q. Okay. And this comment about "bearing in mind that captured enemy
3 soldiers get exchanged," what are they practically pointing out in that
4 situation, in your view?
5 A. Well, the strong inference, particularly when you look at the
6 first paragraph, is that a battlefield practice has been developed;
7 whereas, units who are immediately responsible or who are immediately
8 capturing an enemy combatant are taking it within their own responsibility
9 to kill them.
10 Q. Did you see --
11 A. -- or otherwise mistreat them.
12 Q. And if you mistreat a prisoner and then exchange him, does that
13 have any practical knock-on effect, possibly, to prisoners who are in
14 custody of the enemy force?
15 A. Well, as a matter of practical circumstance, you can assume that
16 if you're mistreating your prisoners and some of those prisoners are
17 ultimately repatriated back to their own foreign -- or their own army, you
18 know, the word's going to get around that their prisoners are being
19 mistreated and you can kind of expect that prisoners from your army, who
20 are being held by them, you know, may very well be subject to the same
22 Q. All right. Let's go to another practical document.
23 MR. McCLOSKEY: It's 65 ter 3034, dated 17 July 1993. This is a
24 brigade document from the Bratunac Brigade, in the name of Commander
25 Cvjetin Vuksic.
1 Q. In this document you talked about, you said, I believe, in the
2 middle of that second big paragraph, It says: "Our former country, SFRJ,
3 incorporates its rules in its criminal legislation. In the present stage
4 of its establishment as a state, the Republika Srpska has adopted the
5 provisions of the criminal legislation of the former SFRJ and, therefore,
6 the provisions of the international conventions."
7 Okay. So, here we have the Bratunac Brigade, and it talks about,
8 again, instruction on the treatment of prisoners of war. I won't go into
9 all of it, but -- so what is this document?
10 A. Pursuant to the 15 July order from the Drina Corps, what you see
11 here is the brigade commander receiving that order and essentially
12 reiterating the content of that order to their particular subordinate
13 formations. In this case - and it's kind of hard to see on this - but
14 certainly where it has "Command," on the original B/C/S version, it's got
15 a blank line. The customary practice was they would then hand write in
16 this particular document where each version of this document would go to.
17 Q. And where would it go to in a brigade context?
18 A. It would normally go to the battalions as well as the staff
19 organisations of the brigade itself.
20 Q. All right. I'm not going to ask you a lot of detail about that,
21 that structure. I think the Court has heard quite a bit of the various
22 structures of battalions and brigades and corps and Main Staff.
24 MR. McCLOSKEY: Let's go to the next document, 65 ter 697, that you
25 found. It's a Zvornik Brigade document, and I've not found a date on it.
1 Q. It's a bit of a different subject; but in the left-hand corner of
2 it, it says: "I approve, Commander Major Vinko Pandurevic," where it is
3 signed and stamped, but it's in the name of Chief of Staff Captain First
4 Class Dragan Obrenovic.
5 As you pointed out before, the first paragraph states that: "On
6 the basis of provisions of the rules of the brigade, items 114-124 and
7 125-149, the ..." and then it talks about the rules of the command.
8 Now, what rules is Mr. Pandurevic and Mr. Obrenovic talking about
9 in this context?
10 A. They are talking about the 1984 rules for JNA brigades, be it
11 infantry brigade, motorised brigade, things of that nature, light infantry
12 brigade. So they are referring to a former regulation of the JNA.
13 Q. All right. So we have now moved away from international law to
14 the rules associated to the functioning of the brigade, and you've already
15 talked briefly about how the army adopted the JNA rules, so I'm not going
16 to ask you about that in general anymore.
17 I want to go in particular to one -- to one of those rules.
18 MR. McCLOSKEY: It's 65 ter 694. It's a JNA rule dated 1984,
19 entitled: "Brigade Rules for Infantry, Motorised, Mountain, Alpine,
20 Marine, and Light Brigades."
21 Q. Here, Mr. Butler, I want you to go to the section on Command,
22 which I have as page 37 in the English.
23 MR. McCLOSKEY: It should be B/C/S 63 and 64.
24 Q. Now, particularly 115 states: "The brigade commander has the
25 exclusive right to command all brigade units and attached units."
1 What does that mean? What has your investigation and your review
2 of the materials of the VRS, the JNA, and general military practices led
3 you to -- can you just tell us what that means, practically?
4 A. It is a -- in practical terms, it is a universal tenet, for the
5 most part, within professional military organisations that within the
6 context of the brigade, the brigade commander is, by law and regulation --
7 he has the exclusive right of command. Individuals from outside that
8 formation, even if they're higher-ranking individuals, do not have the
9 authority to interfere with that particular commander's right to command
10 his own brigades.
11 Q. Okay. It goes on and says: "He bears full responsibility for the
12 work of the brigade, command, and subordinate commands, for the state of
13 morale, for security, combat readiness, for training, and for the proper
14 performance of tasks."
15 Can an outside officer, as you've just said, come in and take over
16 that commander's responsibility for those things?
17 A. No, sir. I mean, just as he has the exclusive right of command,
18 the collateral effect there is he also is the one who ultimately bears
19 responsibility for the actions of his subordinates.
20 Q. So what military process or procedure would have to take place
21 before a brigade commander no longer had command responsibility under
22 these regs?
23 A. He'd have to formally be relieved or relinquish command to the
24 superior next in line that's authorised to either relieve him or accept
25 his relief of command.
1 Q. Okay. It says -- it goes on and says: "The commander takes
2 decisions, assigns tasks to units, monitors their fulfillment, and demands
3 their strict execution regardless of difficulties that arise."
4 Can you go through that, one by one, and tell us practically what
5 that means?
6 A. It -- in a nutshell, what that particular sentence is is a
7 one-line sentence that reflects what later is known as the command and
8 staff process.
9 The commander takes decisions either independently, on his own,
10 or after consulting with his staff and getting their advice. He assigns a
11 task to units, whether he elects to individually assign a task or whether
12 that task is formalised through orders published by his staff. He
13 monitors their fulfillment, and this is a key issue.
14 A commander does not issue orders in the abstract. As part of a
15 function of command, you know, he's required to verify that those orders
16 are, in fact, being carried out, and he has the right to demand
17 compliance. Again, commander is expected to be able to accomplish his
18 role of command, regardless of whatever difficulties might arise.
19 These regulations are published for people who will command
20 military units in wartime. It is anticipated that there will be many
21 times during the course of an individual's command that the compliance of
22 orders and the carrying out of the mission is going to be difficult
23 because, you know, the enemy forces that you will be facing will be taking
24 every step that they can to try and prevent you from carrying out that
1 Q. Okay. And this last part, I'm talking about decisions and
2 tasks: "... and demands their strict execution, regardless of
3 difficulties that arise."
4 In your review of the documents and the orders, how serious did
5 VRS officers take orders received from their superiors? I mean, VRS
6 professional former JNA officers?
7 A. The trained professional officers, particularly because they were
8 the most educated and held the most senior positions within the army, were
9 well aware of the seriousness and the gravity of orders that were issued
10 and, you know, what they had to do to undertake -- to follow those orders.
11 Even codified under the armed forces law that they were operating,
12 I mean, the ability to follow the orders to the extent necessary, you
13 know, these are major, significant issues to officers.
14 Q. In the context of Srebrenica, do you see any officers refusing to
15 follow orders?
16 A. In the context of certainly one of the most serious instances,
17 where an officer refuses to follow whether it's an explicit order or
18 whether it's an order given by General Mladic, as we understand it, is on
19 the 16th of July, 1995, when then Lieutenant-Colonel Vinko Pandurevic
20 unilaterally takes a decision effectively authorising a battlefield truce
21 in the area of the Zvornik Brigade to allow the Muslim column to pass
22 through his lines, which was certainly not something that either the Drina
23 Corps or the Main Staff had intended to happen.
24 So that is a major significant instance where Colonel Pandurevic,
25 on his own, with the best interest of his brigade, and based on the
1 decision and his right to command, made.
2 Q. And when you say "best interests of the brigade," what do you
3 mean? Why do you think he made it?
4 A. Within, you know, the context of the events that were occurring on
5 the battlefield at the time, several battalions of the Zvornik Brigade,
6 specifically the 4th Battalion and the 6th Battalion, elements of the 7th
7 Battalion, were decisively engaged and frankly quite outnumbered by the
8 sheer size of the Muslim column that was carving their way through Zvornik
9 Brigade territory.
10 By looking at the orders and the reports that are generated by
11 this battlefield truce that Colonel Pandurevic engaged in, it's clear
12 that, you know, he came to the conclusion that continuing to fight the
13 column would not prevent the column from breaking through to the friendly
14 territory of Muslim lines, as they were trying to do, and would only
15 result in additional casualties for his own military forces.
16 So, again, you know, within his authority as a brigade commander,
17 he took it upon himself to, you know, effect a battlefield truce with the
18 enemy to allow this column to pass.
19 Q. Okay. We may get into that a few days down the road when we get
20 to some more documents, but let me also ask you an example related to
21 General Pandurevic.
22 Do you recall, on 11 July, on the video, General Mladic, in the
23 presence of at that time Colonel Pandurevic, making some kind of statement
24 or order?
25 A. Yes, sir. In the context of the video scene, General Mladic - and
1 not only the video, but, you know, in larger part other officers have
2 confirmed this accounting of events - as the day was ending, General
3 Mladic was giving his brigade commanders, who had accompanied elements of
4 their brigades into Srebrenica, orders on what he wanted to accomplish
5 next on parts of the terrain.
6 You know, obviously that's an order directly from the army
7 commander. But several of the brigade commanders, in a quick council of
8 war, so to speak, went back to General Mladic and told him that, you know,
9 given the light conditions and everything else, the battlefield situations
10 and the fact that they didn't know where some enemy components was, that
11 tactically speaking they did not think that was a wise move and requested
12 that General Mladic reconsider his decision.
13 In fact, you know, from the accounts of the officers who were
14 involved in that, General Mladic did, in fact, reconsider his position and
15 countermanded his original orders to these commanders.
16 Q. Do you recall what Pandurevic was saying on the video in response
17 to Mladic? If you don't, don't worry about it.
18 A. It's been a lot of years since I've seen the video or the
19 transcripts, so I can't recall exactly.
20 MR. HAYNES: I don't mind if you lead him on this.
21 JUDGE AGIUS: Yes. Your microphone, Mr. Haynes.
22 MR. HAYNES: [Microphone not activated]
23 JUDGE AGIUS: I still can't hear you.
24 MR. HAYNES: I was just saying I don't mind if Mr. McCloskey puts
25 the words to Mr. Butler, if he knows them.
1 JUDGE AGIUS: Thank you, Mr. Haynes.
2 Yes, Mr. McCloskey. You've got about four minutes left.
3 MR. McCLOSKEY: Mr. Haynes has quized me on that. I think it was
4 something about, We've got to get the Browning up on the ridge, there's
5 Muslims up there. Something like that.
6 THE WITNESS: I think it was in the context that they wanted to --
7 they wanted to put some form of a heavy machine-gun position and other
8 units up on a ridge. The subordinate -- the brigade commanders, and I
9 think Pandurevic specifically was noting the fact that they had in fact
10 lost contact with the 28th Division. They didn't know where it was, and
11 they didn't particularly feel comfortable putting an isolated element up
12 there, that as the sun was coming down, in an unfamiliar position, could
13 potentially be attacked and ambushed later that evening.
14 Again, it was a, you know, a quick council of war and it made
15 eminently sense militarily not to want to expose themselves, given the
16 fact that they did not have a good idea, from their own reconnaissance,
17 where the bulk of the 28th Infantry Division was.
18 MR. McCLOSKEY:
19 Q. Is there evidence that Colonel Pandurevic took on Mladic on his 12
20 July decision to go to Zepa as well?
21 A. Yes, sir, there is.
22 Q. So with this evidence that at the time Colonel Pandurevic was
23 willing to take on Mladic on issues that involved the safety of his
24 troops, do you see any evidence of Colonel Pandurevic taking on General
25 Mladic when it came to the commission of violent war crimes against the
1 Muslim army prisoners or population?
2 A. No, sir, I don't.
3 MR. McCLOSKEY: I think -- is it break time?
4 JUDGE AGIUS: Yes. You have about two to three minutes left.
5 MR. McCLOSKEY: It might be -- well, let me see if I've got one
6 more document.
7 It may not be a two- to three-minute document, Mr. President.
8 JUDGE AGIUS: Thank you. We will have a break now, as we agreed
9 on earlier this morning. We'll reconvene at 3.00, and then we'll sit
10 right through until 4.30. Thank you.
11 --- Recess taken at 2.00 p.m.
12 --- On resuming at 3.05 p.m.
13 JUDGE AGIUS: Yes, Mr. McCloskey.
14 MR. McCLOSKEY: Thank you, Mr. President.
15 JUDGE AGIUS: What happened to the representative of the US
17 MR. McCLOSKEY: As you may recall in the motion, they normally
18 just stay during the parts that have to do with Mr. Butler's background,
19 especially when they were part of the US, and then come back when that
20 section is up for cross-examination. But the -- Ms. Schildge did want me
21 to pass on to you that, of course, they are available at any time should
22 some issue come up.
23 JUDGE AGIUS: Okay. No, no. It's just I noticed her absence,
24 that's all.
25 MR. McCLOSKEY: All right.
1 Q. Mr. Butler, I just noticed that I needed to go back to this
2 paragraph 115 on the brigade commander. It's in your tab 12. I forgot to
3 ask you about the second -- the second paragraph.
4 MR. McCLOSKEY: It's at 65 ter 694. It should be page 37, in
5 B/C/S page 64. Yeah, I see it.
6 Q. It's that second paragraph: "Through his personal conduct, work,
7 involvement, and the implementation of the SKJ policies, ethical standing,
8 courage, ability, fairness, cool-headedness, consistency, and respect for
9 the personality and opinion of subordinates, the commander vitally
10 influences the entire condition of the brigade, especially the morale of
11 units and command."
12 Can you tell -- can you bring that down to a practical level?
13 What does that mean, this personal conduct with all these things, "vitally
14 influences the entire condition"?
15 A. Perhaps the best I've heard it ever explained is the testimony of
16 General Dannett during the Krstic trial, where he explained that command
17 is a personal thing.
18 Of all of the individuals in a particular unit, from platoon level
19 to the very top, the individual temperament, qualities, moral courage,
20 personality of the commander is a decisive factor in influencing the
21 brigade, and not just the brigade but obviously in any unit; and,
22 certainly, subordinates, when they're ably led like that, will often
23 reflect the character -- the positive characteristics and qualities of
24 their command.
25 The JNA obviously recognised that as a component of their own
1 leadership training.
2 JUDGE AGIUS: Yes, Madame Fauveau.
3 MS. FAUVEAU: [Microphone not activated]
4 THE INTERPRETER: Microphone, please.
5 JUDGE AGIUS: Microphone. Okay.
6 MS. FAUVEAU: [Interpretation] Mr. President, I'd like to know
7 whether this is a personal conclusion drawn by this expert or is this
8 something that he just conveys, I mean, the conclusions drawn by General
9 Dannett. He's just said the best explanation was the one provided by
10 General Dannett.
11 JUDGE AGIUS: Basically, what Madame Fauveau is asking you is
12 whether you are adopting the same approach.
13 THE WITNESS: Yes, sir. I believe he said it far better than I
14 could. He's hit it right on the button.
15 JUDGE AGIUS: Is that clear, Madame Fauveau? Okay. Thank you.
16 Yes, Mr. McCloskey.
17 MR. McCLOSKEY: Thank you.
18 Q. Now, we will soon see documents, well, from the highest levels
19 down to the lowest levels, including the brigade levels, where commanders
20 are making reference to the enemy in derogatory terms, such as "Poturice,"
21 "Turks." Does that kind of conduct fit into this second paragraph,
22 "through his personal conduct," et cetera, "influences the entire
24 MR. HAYNES: I object.
25 JUDGE AGIUS: Mr. Haynes.
1 MR. HAYNES: I object.
2 JUDGE AGIUS: Your microphone --
3 MR. HAYNES: It's not working all day.
4 JUDGE AGIUS: I know there's something wrong, but please be
5 patient. Yes.
6 MR. HAYNES: I object to that. That is not a question of military
7 analysis or expertise, and it's simply Mr. McCloskey making a comment and
8 requiring confirmation from the witness.
9 JUDGE AGIUS: Yes, Mr. McCloskey.
10 MR. McCLOSKEY: I absolutely -- I'm sorry. I've been told to have
11 both these on so people could hear me. But I absolutely disagree with
12 that. This is a fundamental and important principle that has -- and maybe
13 we should have it outside of the conduct of the witness, but I --
14 JUDGE AGIUS: If you want, we can do that. I think it's not
15 difficult for us to decide, but if you wish to --
16 MR. McCLOSKEY: We have -- we have documents I'll refer to. I'm
17 just asking Mr. Butler if those documents that have --
18 JUDGE AGIUS: Why don't you then wait until you make use of these
20 MR. McCLOSKEY: Well, this -- because I believe it's an unfounded
21 objection, and this is a principle --
22 JUDGE AGIUS: Let's discuss it in the absence of the witness,
24 MR. McCLOSKEY: Thank you, Mr. President.
25 JUDGE AGIUS: We'll soon call you back, Mr. Butler.
1 [The witness stands down]
2 JUDGE AGIUS: Do you wish to explain yourself better, Mr. Haynes.
3 MR. HAYNES: I think I've explained myself well enough. I've held
4 off on this objection as long as I could.
5 Of course, it would not be a good indication of anybody's
6 character if they used racially-pejorative terms. It's a matter of common
7 sense that it's not a good example for a commander to set, and this is
8 simply a comment by Mr. McCloskey seeking the confirmation of this
9 witness. It's much of same as the one he asked earlier about whether
10 mistreating your prisoners would lead to mistreatment of your prisoners by
11 the other side. Of course, it would, but it's not something that requires
12 a military analyst to tell us.
13 This question goes nowhere. It isn't, in fact, a question. As
14 I've said, it's just a comment, and it's just seeking this man's
15 confirmation of it.
16 I don't really want to say any more than that.
17 JUDGE AGIUS: Mr. McCloskey.
18 MR. McCLOSKEY: Mr. President, I agree with counsel in that
19 comments referring to the enemy in a -- in derogatory terms to one's
20 troops is a particularly damaging principle that -- or conduct thing to do
21 that filters down and can have extremely damaging effects. What I'm
22 looking to, to determine, is whether or not this particular definition
23 that talks about personal conduct vitally influencing the command has any
24 relationship with that kind of conduct, as I would when I get to those
25 documents, though you've seen many of them so far. Does this description
1 of one's personal conduct have to do with one's -- things like the example
2 I give.
3 JUDGE AGIUS: Thank you.
4 [Trial Chamber confers]
5 JUDGE AGIUS: At this phase, at this stage, we don't really see
6 the need for this question, Mr. McCloskey. But then when you are, in due
7 course, if at all, you are referring to specific documents and you may
8 wish to -- you wish to ask questions to the witness, we'll consider each
9 question on its own merits at that stage. But for the time being, I think
10 we can safely proceed with your next question.
11 Bring Mr. Butler in again, please.
12 MR. McCLOSKEY: Thank you, Mr. President.
13 [The witness entered court]
14 MR. McCLOSKEY:
15 Q. Mr. Butler, can you tell us, in your experience, how important is
16 it for a commander to lead by example, by positive example?
17 A. Within the framework of my own military background, that is
18 probably the key fundamental tenet of command and of leadership is that
19 it's leadership by example.
20 Q. All right. We'll get some actual examples of that a little later
21 on, but right now let's go to another document.
22 MR. McCLOSKEY: It's 65 ter 699.
23 Q. This is another manual that you have identified over the years.
24 It's entitled "Manual for the Work of Commands and Staff," and it's
25 describing under "Command."
1 MR. McCLOSKEY: I want to go to page 15, if we can, in the
2 English, and it's B/C/S page 16.
3 Q. Do you recall this particular manual?
4 A. Yes, sir, I do.
5 Q. And do you remember what it is?
6 A. While the brigade regulations and other JNA regulations talk about
7 and give some details with respect to how the command and staff processes
8 should work in a properly-functioning unit, what this particular manual
9 does is really gets into the minutiae and all of the technical details
10 about all of the various forms of interrelationship between a commander
11 and those officers who are part of a commander's staff, and its rules are
12 applicable from the battalion all the way up into the highest levels of
14 Q. All right.
15 MR. McCLOSKEY: Well, let's go to page 15 in the English, and I
16 don't -- we see paragraph 13.
17 Q. It says: "Command is a process function of control ..."
18 What does that mean?
19 A. Command -- essentially, command or the action of command is how
20 the individual exercises control over the functions of the unit. There
21 are various ways it can be done, as the remainder of the paragraph points
22 out, either by, you know, direct orders, broader guidance or directive,
23 instructions, and a command act in effect being an order.
24 Q. All right. Then we see, in number 14: "Coordination is a
25 function of command (part of the process) and control coordinating various
1 elements in the execution of the task that has been set.
2 "Coordination ensures harmonious work within and among the
3 commands and staff and other organs of control," and it goes on.
4 What does that mean, in practical terms?
5 A. In practical terms, within a particular staff, it recognises the
6 fact that a staff may be organised in many certain ways, in the context of
7 the former JNA, where you have assistant commanders of morale or political
8 works at the time, assistant command for logistics, assistant for
9 security, you have chiefs of intelligence and other staff bodies.
10 Now, the issue of coordination is the fact that, well, staff
11 officers and staff elements have their own specific responsibilities, that
12 they are to work with an eye towards ensuring that their activities are
13 properly coordinated with the ultimate goal of fulfilling and ensuring the
14 commander's order and intent to make sure that, you know, the operations
15 people, when they're designing a particular operations order or op plan,
16 you have the logistics staff that is part of that entire process. You
17 don't have a situation where different things are being done by different
18 entities without coordination, I guess using the word again.
19 Within a unit, it is also between other units you'll have
20 coordination, where you'll have, for example, coordination between
21 multiple brigades or multiple elements of multiple units for a senior
22 commander. You can also have elements of coordination between the
23 military and other political entities that would support the military;
24 although, that would normally fall more along the lines of collaboration.
25 Q. Okay. And we see "Cooperation," and it appears to define it in, I
1 think, the term we're all familiar with, so I won't ask you about that,
2 but that does get us to "Collaboration," which is the manner of regulating
3 the relations between unit commands which engage in combat and control
4 organs and other things.
5 So how does collaboration differ from coordination and
7 A. Collaboration more accurately describes issues that involve
8 elements of the army and non-military, or perhaps a better way to say it
9 is non-army elements. For example, where you have a situation -- I mean,
10 the term of "collaboration" is that the conditions of collaboration are
11 set by superiors and that the units are expected to coordinate with each
12 other within that framework.
13 So when you have a situation, for example, where the army staff
14 and the police staff have dictated, you know, how particular units can be
15 used or under what parameters that they can be used, within the framework
16 of those guidance from the senior commanders on both sides, the lower
17 units are going to be expected to collaborate to ensure that they
18 accomplish that mission.
19 Q. Okay. Now, "Verification." Again, we don't need to read that
20 out. It's pretty clear. How important is verification in the process of
21 exercising command?
22 A. Verification is a key component of exercising command. A
23 commander is ultimately responsible for the activities of his unit; and as
24 part of the chain of command, his subordinates are expected to report back
25 to him. As the commander, he is expected to verify, in case they don't
1 report back, that his orders are being complied with.
2 Q. All right. And these concepts of command, in your view, how well
3 known are they to JNA officers?
4 A. I can't foresee of a situation, particularly within the framework
5 of the former JNA and the extent of its professional military development
6 and education system, that officers who are essentially growing up within
7 that environment are not going to know these issues. All officers are
8 expected, within the various competencies, to know how to operate within
9 this framework.
10 It's a standard framework for the army. Many people who
11 ultimately become commanders are individuals who will also have had
12 extensive experience on staffs in order to be able to get as comprehensive
13 a background of military knowledge as possible.
14 Q. Now, we -- we'll get into some examples later, but just generally,
15 do you see indications of Vinko Pandurevic and Mr. Borovcanin exercising
16 these different concepts as they exercise command through the events that
17 we look at?
18 A. Yes, sir.
19 Q. Okay. Now, I want to go to one particular area that you've talked
20 about before, and that is the rules of the security organ. The Court has
21 heard a fair amount about that, so I just want to touch on some of the
23 MR. McCLOSKEY: If we could go to 65 ter 407, this is a manual
24 that's entitled "Rules of Service of Security Organs in the Armed Forces
25 of the Socialist Federative Republic of Yugoslavia in 1984".
1 Q. I think it's a document that has been established before in the
2 trial, so I'm not going to ask you to authenticate it.
3 MR. McCLOSKEY: But I want to go to page 10 in the English, B/C/S
4 page 9.
5 Q. I'll ask you to -- and under "Management," ask you to comment on
6 paragraph 16: "The security organ is directly subordinate to the
7 commanding officer of the command unit, institution, or staff of the armed
8 forces in whose strength it is placed," et cetera.
9 Can you just clearly tell us what that means?
10 A. It's a reflection of the earlier doctrine that within the --
11 within the framework of assistant commander for security, or security
12 official, or assistant commander for logistics, or any of that nature,
13 they are ultimately subordinate to the commanding officer of that unit. I
14 mean, they are considered to be direct subordinates of him or her, as the
15 case may be.
16 Q. All right. In comparison to that principle, let's look at 18 that
17 talks about the security organs of the superior command, unit,
18 institution, or staff of the armed forces provide specialist
19 administrative services for security organs in subordinate commands, et
21 Can you distinguish for us the difference between a security organ
22 being commanded by its commander and a security organ being provided
23 specialist administrative services from the upper or superior security
25 A. Yes, sir. I mean, the -- the concept is that while the commander,
1 of course, is the commander and the security officer or security official
2 is his subordinate, it understands that the -- the reality that security,
3 as well as other branches, are very technical branches and have a myriad
4 of other responsibilities; and that in the conduct of those
5 responsibilities, particularly with respect to security,
6 counter-intelligence, or intelligence, or some things of that nature, that
7 there is going to be guidance and technical support required by
8 professionals in that particular field, senior intelligence and security
10 So there is a -- what is often referred to as a technical or
11 management chain that runs along with but certainly doesn't supersede the
12 command chain. So that particular technical support chain is how these
13 particular officials would get additional guidance on, for example,
14 counter-intelligence procedures and other security procedures that may
15 have to be done, or they would get guidance with respect to threats that
16 may be placed against particular military officers or information that has
17 come through other operative channels that people may be attempting to
18 target that unit for espionage or things of that nature.
19 So the doctrine or, in their case, you know, the regulations, you
20 know, recognise that concept and allow for it.
21 Q. All right. And in any particular unit, be it brigade or corps or
22 otherwise, who commands the military police unit?
23 A. The commander of the larger formation that that unit is
24 subordinate to.
25 Q. All right. And what, generally, is the security officer's role,
1 if any, in dealing with the military police?
2 A. As articulated by the regulations, the role of the security
3 officer, with respect to the military police, is that he -- his role is to
4 advise the commander on the most proper uses of that organisation and even
5 to recommend what their function or what their tasks should be. The
6 security officer recommends that and the detail necessary for the
7 commander, and it is ultimately up to the commander to reject or to accept
8 the recommendations of that officer and to implement them.
9 Q. And what unit is generally responsible for prisoners of war, in
10 dealing with them and securing them?
11 A. Insomuch as a unit echelon or what type of unit? I don't
12 understand the question.
13 Q. In a brigade, who would normally deal with detention issues,
14 prisoner of war issues, as they are captured?
15 A. The front line units, the battalions and companies, generally
16 would be the units to actually capture the prisoner in the first instance.
17 However, according to the JNA regulations and the VRS instructions
18 pertaining to those, the general procedure was that at the very earliest
19 opportunity, these prisoners were to be turned over to the military police
20 to ensure that they could be properly safeguarded and handled through the
21 battlefield to the point where they were turned over to the individuals
22 responsible for their -- for their detention on a longer period of level.
23 Q. All right. And you've already talked a little bit about the
24 relationship between the security officer and the military police, but
25 does this include issues related to prisoners?
1 A. Yes, sir, it does.
2 Q. Okay. Let's --
3 JUDGE KWON: If I may go back to the relation, his role of the
4 security officer, you said, Mr. Butler, that his role is to advise the
5 commander. Does he not have anything to do directly with the police, the
6 military police, himself?
7 THE WITNESS: Once the commander, you know -- as the regulations
8 go, once the commander accepts or modifies that guidance, most often it
9 will be the security officer who will be instructed to implement it. In
10 having his own direct contact with the military police, that security
11 officer will be giving the direction and task to the military police
12 commander as to how to accomplish that.
13 In that particular context, the security officer, in given tasks
14 like that, he's operating under the derived authority of the commander who
15 approved the order.
16 JUDGE KWON: Thank you.
17 MR. McCLOSKEY:
18 Q. Is -- can that be comparable to other assistant commanders that
19 have other tasks, like logistics or other situations?
20 A. Yes, sir.
21 Q. Regarding making -- what I'm asking, making proposals and then
22 seeing that those proposals are carried out?
23 A. Yes, sir. Incumbent in the larger command and staff regulations,
24 one of the primary purposes of the staff is to recommend, you know, and to
25 develop courses of action for a commander, to recommend or propose -- to
1 propose these lines of action to the commander.
2 Once the commander makes the decision, it is usually those same
3 staff officers who are going to be responsible for the implementation of
4 it, turning the commander's guidance, direction, and verbal orders into
5 the concrete and specific tasks necessary for the subordinate units.
6 Q. Okay. Let's look to one of the regulations on this that you've
7 talked about in your report.
8 MR. McCLOSKEY: It is 65 ter 707. It's called "The Service
9 Regulations of the SFRJ Armed Forces Military Police, 1985."
10 Q. Tell us what this is.
11 A. Coupled with the 19 -- coupled with the regulations we just talked
12 about, these are the specific service regulations of the military police,
13 armed forces military police applicable to the JNA, and referenced in
14 all -- applicable to the VRS military police as well.
15 Q. All right.
16 MR. McCLOSKEY: Let's go to page 10 in the English and page 9 of
17 the B/C/S that talks a little bit about the issues that we have been
18 talking about.
19 Q. Paragraph 12 very simply means what?
20 A. Specifically notes the officer in charge of the military unit and
21 institution within whose establishment in the military police is placed or
22 to which it is attached, commands and controls the military police. It
23 reiterates the fact that the commander of a unit or installation, in our
24 case let's use a brigade as an example, the brigade commander is the
25 commander of the military police.
1 Q. Okay. And, in paragraph 13, we can see that it says something
2 very similar to what you just said, that the security officer makes --
3 controls the military police and makes suggestions to the officer in
4 charge of the military unit and is responsible for their combat readiness
5 and the performance of their tasks.
6 So that -- I don't think I need to ask any more about that.
7 You've answered that issue.
8 But what I wanted to ask you about is it gets a little more
9 detailed, and it says: "When controlling a military police unit, the
10 officer in charge of the security body from paragraph 1 of this item has
11 the same rights and duties which the officers of arms of service of
12 military units and institutions have in controlling the units of arms and
14 Who are we talking about? Are we talking about the commander or
15 the security officer?
16 A. In this passage, we are talking about the -- in this case, the
17 assistant commanders for security in the same way having -- you know,
18 having the same rights and authorities with respect to their function as
19 assistant commanders for logistics or as a chief of intelligence might for
20 their specific responsibilities.
21 Q. All right. And then the next paragraph talks about the traffic
22 service. Does the security officer have any -- what's his responsibility
23 regarding traffic military police issues?
24 A. Not particularly related to, you know, the traffic service; but, I
25 mean, the recognition that under the rubric of the military police, there
1 are a number of -- there are a wider variety of functions, many of them
2 having to do with routine crime prevention and routine, in this case,
3 traffic administration that, you know, are under the expertise of these
4 assistant commanders.
5 They're expected to -- to implement them. I mean, not implement
6 them, but they're expected to be able to give the detailed technical
7 advice and direction to accomplish these missions.
8 Q. All right. Now, the next paragraph, paragraph 14, identifies
9 several examples of how the organisational unit controls the military
10 police, from a specialist viewpoint. I won't go into that.
11 I want to go into -- into some example documents relating to these
12 regulations and ask you about them.
13 MR. McCLOSKEY: Let's go to 65 ter 2741, a document that came out
14 in the Blagojevic case. This is a 24 October 1994 Main Staff instruction,
15 as its entitled, "Command and Control over the Security and Intelligence
16 Organs of the VRS." We can see that a couple of pages down it's under the
17 name of Commander Ratko Mladic.
18 Q. I want to ask you about the first two numbered paragraphs. Number
19 1 seems to divide the work of the security and intelligence organs into
20 two primary areas. Can you just briefly describe what those areas are, as
21 you understand the regulations?
22 A. The military police, of course, have a number of duties and
23 responsibilities that are overseen, and what this particular instruction
24 is indicating is that, you know, as a goal, again situation dependent,
25 what those organs should be doing is spending 80 per cent of their time
1 dealing with the intelligence, counter-intelligence, security rubric type
2 of tasks; and then spend the remaining percentage of time doing all the
3 other remaining tasks that fall under the mantra of the security officer,
4 which would include things such as training, which would include things
5 such as routine crime prevention activities.
6 So, I mean, they're trying to find out that in an ideal situation,
7 where they want to see the bulk of time and resources of this particular
8 branch dedicated to.
9 Q. Okay. And in paragraph 2, it says: "The security and
10 intelligence organs are directly commanded by the commander of the unit or
11 institution of which they form part," which you've talked about at length
12 so far, which I think is clear; and then there's, comma, "but with regard
13 to professional activities, they are controlled centrally by the security
14 and intelligence organs of the superior command."
15 What does this relate to?
16 A. Specifically, it delineates the responsibilities, effectively, you
17 know, acknowledging that that security officer is a subordinate of the
18 commander, but also reiterating the fact that in the conduct of some
19 professional activities, particularly related to the counter-intelligence
20 and security, that the commander does not have a role in either tasking or
21 interfering with the work of the officer in that context.
22 Q. All right. The next line says: "This indicates their full
23 independence in the implementation of intelligence and
24 counter-intelligence tasks and operative combinations, based on the
25 authority set forth in the law."
1 So is that the section you're referring to in your last answer?
2 A. Yes, sir.
3 Q. All right. Now, it lays that out in further detail, but do you
4 find that this instruction of 24 October changes the fundamental rules as
5 they were used and set out in the JNA and used in the VRS?
6 A. No, sir, it does not.
7 JUDGE KWON: Just a quick question, Mr. McCloskey.
8 MR. McCLOSKEY: Yes.
9 JUDGE KWON: Does this rule relating to specialty also apply to
10 another administrative commander -- I'm sorry, assistant commander; for
11 example, logistics? If you could give me an example.
12 THE WITNESS: I think that in this particular case, I mean, this
13 applies directly to the security officers and their branch, in recognition
14 of their unique duties in counter-intelligence, which by definition, you
15 know, have to be accomplished with a great degree of secrecy.
16 One -- one can never say that maybe it's not the commander,
17 himself, who may be the target of an investigation for security; and as a
18 result, this is designed as a framework to ensure that an investigation or
19 whatever investigative activity that needs to be accomplished can be done
20 so without undue inference from the commander.
21 On the other side of the situation, security officers and
22 intelligence officers often run informants or operative agents or things
23 of that nature whose identity must remain unknown for them to be able to
24 do their work; and this ensures, as a mechanism, you know, going back to
25 the laws and regulations on that type of operative work, that their
1 identities can be kept from their commanders, even if they're ordered to
2 be given to them, in order to continue the work.
3 So I think it's unique to the security branch, where in the
4 logistics branch or in the morale branch, you're not going to have those
5 types of problems.
6 JUDGE KWON: Thank you.
7 MR. McCLOSKEY:
8 Q. Can you give us another example of where the security branch would
9 have -- would be different from some of the other branches; for example,
11 A. Normally -- and, again, there's -- as going into the work of the
12 security branch, there are specifically regulated channels of
13 communications by which information derived from intelligence work or
14 security work or through operative contacts needs to travel to ensure its
15 secrecy and the fact that it's not disseminated outside of established
17 So within that framework, each of the units having means of
18 communication generally by courier in this particular context, where
19 specialised instructions can be couriered from the superiors at the
20 security branch to their subordinates, that won't necessarily come across
21 the desk of the commander or the operations officer.
22 Q. And as an example of that, and I don't want to get into a lot of
23 detail, but do you recall any -- any issue regarding this secrecy of
24 correspondence that occurred between Drago Nikolic and Vinko Pandurevic?
25 A. There was some centre of dispute over whether or not the brigade
1 commander, in this case Colonel Pandurevic, had the authority to make
2 Drago Nikolic, his security officer, reveal operative-related information
3 or security branch-related information.
4 As I understand the testimony of a prior protected witness on this
5 subject, and again from his previous testimony, there was some sense of
6 dispute whether or not this material had to go through the commander or
7 whether it could go separate of him; and my understanding is that a
8 decision was reached, and Colonel Pandurevic was informed that these
9 communications would not go through to him. They could go directly to the
10 security officer.
11 Q. Now, have you seen any examples of the work of the -- security
12 officer's work with the military police as they relate to prisoners that
13 would require this kind of secrecy that's for counter-intelligence work?
14 A. No, sir. In fact, when you look at the documents that lay out the
15 policy and the handling of procedures, those particular documents don't
16 come through security officer channels. They are, in fact -- they come
17 through command channels. The documents are signed not by security
18 officers; they are signed by commanders.
19 Q. Okay. Well, let's go through some examples of some security
20 officer and others on some of these topics and get your viewpoint.
21 MR. McCLOSKEY: Let's go to 65 ter 3031, involving the -- it's a
22 29 January 1995 communication from the commander of the Drina Corps,
23 General Zivanovic, talking -- entitled "Changes in the Authorisation of
24 VRS Security and Intelligence Support Delivery."
25 Q. Now, I don't want to read this entire document, but can you give
1 us the gist of what Zivanovic is doing here? That should be on your
2 tab --
3 A. I have it, sir.
4 Q. -- 19.
5 A. This one.
6 Q. Yes. And I note specifically of interest paragraph 2, but take a
7 moment to refresh your recollection on it.
8 A. Yes, sir. In this case, depending upon the formation or
9 organisation of a unit, whether it was a regular infantry brigade or
10 whether it was a light infantry brigade, that differential depended on
11 whether you had independent security and intelligence officers or whether
12 you had one officer role to do both -- both details.
13 In this particular order, they're reiterating, now, a prior order
14 from the Main Staff, directing that as part of the unit formation. There
15 would be a separation of functions between the security officers and the
16 intelligence officers, again presumably to allow for each officer to focus
17 more precisely on the tasks that they needed to do.
18 Q. Okay. And in the -- was that necessary in the Zvornik Brigade at
19 the time of -- in July 1995?
20 A. In July of 1995, the Zvornik Brigade was not a light infantry
21 brigade, so they already had separate branches for intelligence and
22 security. So those functions had already been translated -- or had
23 already been separated.
24 Q. All right. And just to remind us, who was who? Who was
25 intelligence and who was security?
1 A. The security officer in this particular case would be Drago
2 Nikolic, and the intelligence officer would be Captain Dusko Vukotic.
3 Q. And who, in this structure, was Captain Vukotic reporting to, his
4 immediate supervisor?
5 A. As the intelligence officer, his immediate supervisor would be It
6 would be the Chief of Staff of the brigade.
7 Q. At the time?
8 A. At the time, it would be Major Obrenovic.
9 Q. And Drago Nikolic reported at the time to who? Who was his
11 A. His superior under the chain of command would have been Colonel
12 Pandurevic. His superior, in terms of technical issues, would have been
13 Colonel Popovic.
14 Q. All right. How about the Bratunac Brigade, which was a light -- I
15 think we heard evidence that it was a light infantry brigade.
16 A. Yes, sir. In fact, pursuant to this, they did separate the
17 functions. What happened in the case of the Bratunac Light Infantry
18 Brigade was that for the month of late June and July of 1995, the officer
19 designated as the intelligence officer was given an additional task to
20 lead a company of Bratunac Brigade soldiers, who were deployed to the turn
21 of a battle front area out of the brigade's area of operations.
22 So while, in theory, you had the two separate functions, the
23 reality was that the only officer left home to do both functions was, in
24 fact, the assistant commander for security, Captain First Class Momir
1 Q. All right. And if you could, we see in paragraph 4
2 here: "Security organs and intelligence organs shall exchange information
3 of importance on a daily basis."
4 Now, the Trial Chamber has heard about some intelligence -- the
5 intelligence side and the security side, but could you give us just the
6 brief -- the brief difference; and if there's a difference, why paragraph
8 A. It recognises that there is a commonality of purpose for both
9 specific organs and the fact that information obtained through
10 intelligence channels may have importance to maintaining the overall
11 security posture of the unit and that information obtained through
12 security channels may have intelligence value, particularly with, you
13 know, relationship to, you know, the interrogation of prisoners of war, or
14 line-crossers, or individuals of that nature who may be interviewed or
15 investigated by one organ or another.
16 Q. All right. And in the next paragraphs, it points out that the
17 obligations, in the sense of information, professional administration, and
18 personal affairs, shall remain as pursuant to the Main Staff instruction
19 1820, and then all those numbers, 28 October.
20 Now, I don't need you to compare all the numbers. I notice
21 there's a date between the Mladic October 1994 date and this date; but to
22 your understanding, what is that a reference to?
23 A. I believe it's a reference to the Main Staff order that we just
24 discussed on that issue.
25 Q. All right.
1 MR. McCLOSKEY: And for the record, the -- while the date is
2 different, the order numbers are identical, and it may be a typo. We'll
3 check on that.
4 All right. Now I want to go to a couple of examples of some
5 normal communication of the security branch, the first one being one from
6 Lieutenant-Colonel Popovic, and it's 65 ter 3032.
7 Q. It's dated 7 February 1995. It's to the commands of all these --
8 of all the Drina Corps brigades, and I notice the "5BVP." Can you tell us
9 what "5BVP" is? That should be your tab 20, on the front page.
10 A. I only have the Serbo-Croatian version. I don't have the English
11 one. I'll have to read it off the screen.
12 Q. Okay.
13 A. "5BVP" is the standard abbreviation that they use for the 5th
14 Military Police Battalion.
15 Q. And what's that?
16 A. Each corps is a component of its organisational formation. It's
17 supposed to have a military police battalion directly subordinate to the
18 corps commander. In the case of the Drina Corps, the military police
19 unit, while being called a battalion, actually numbered far less in size
20 of personnel. I don't think it ever approached company strength. So, you
21 know, it's called a battalion, but in reality we're talking about a unit
22 of far less personnel.
23 Q. All right. And, again, I don't want to read this whole document
24 out, but we can see that its entitled: "We have received a very urgent
25 telegram from our superior command, obliging us to give short and clear
1 responses with examples to these statements.
2 "And then in the different statements, one is entitled "Command
3 of the Military Police," "Level of Training," "Mobilisation," "Security
4 Tasks for the Military Police," "The Use of the Military Police of the
5 Muslim Army."
6 So we have a security officer of the Drina Corps. What's he doing
7 here and what's this about?
8 A. I'm going to have to scroll -- if I could ask them to scroll down
9 on this particular order. Thanks.
10 This particular order is essentially Colonel Popovic asking the
11 subordinate military police personnel, in the case the commanders not only
12 of the brigade but of other companies, and platoons in some cases, to
13 survey the types of jobs, roles, and functions that they're doing to
14 provide information on what they think they should be doing as a component
15 of their roles and responsibilities, and to provide any information of
16 what their professional counterparts in the enemy forces, ABiH and even
17 Croatian Army, are doing as a way of essentially surveying the general
18 military police community and trying to determine whether or not the tasks
19 that they are engaged in are, in fact, the tasks that, by regulation and
20 doctrine, they should be carrying out.
21 Q. So, can you remind us, why is a security officer involved in this?
22 A. Well, he is again the officer on the Drina Corps staff who, by
23 position, should have the most detailed knowledge about the specific or
24 technical issues that the military police not only are engaged in on a
25 daily basis, but, by doctrine, what the military police's role should be
1 in the armed forces as a matter of their training and as a matter of their
3 Q. Was there a concern that the military police were being used
5 A. Yes, sir. One of the -- one of the constant factors of the war,
6 from the perspective of the Army of Republika Srpska, was that they did
7 not have the required manpower to, you know, fully bring their own
8 formations up to strength.
9 As a result, one of the unfortunate side effects, from a position
10 of VRS command, was that military police units were very often used as
11 infantry forces to plug a place or a gap in the line or to deploy as a
12 reserve force, because the commands did not have adequate manpower to use
13 other designated infantry units.
14 So instead of doing their police functions, which they of course
15 received specialised training for and equipment, more often than not they
16 were thrown in to performing strictly infantry functions.
17 Q. Well, and briefly did that happen in the Zvornik Brigade area on
18 13/14 July?
19 A. Yes, sir, it did.
20 Q. We'll get into that in more detail when we -- when we get there.
21 All right.
22 MR. McCLOSKEY: Let's go to another document by at that time Major
23 Popovic, and it's 65 ter 196, dated 15 April 1995.
24 Q. This is again to the -- it says "to the command of" and then all
25 the brigades, and as well as the 5th Engineer Battalion, and it says:
1 "Intelligence and security organ heads."
2 Now, can you tell, from the title of this document, whether this
3 is the document that would have gone to the commands or if this may have
4 been one of those more secretive documents? Is that even possible to
6 A. It's not a -- it's not a secret document, in the operative sense
7 of the word. A document like this would have been routinely transmitted
8 through the normal communication channels in most instances. It's not a
9 particularly sensitive document;, but, of course it's directed to the
10 intelligence and security organ heads as the relevant individuals who are
11 in the position to have to execute this technical guidance.
12 Q. Okay. It's entitled "Arrest and Detention of POWs and Other
13 Persons," and then it says "Instruction." Now, first of all, can you tell
14 us what, basically, this instruction is doing and how, if at all, does it
15 fit into this -- the discussion of the rights and responsibilities, the
16 duties and responsibilities of the security organ?
17 A. I believe this particular document is a classic example of the
18 technical guidance and direction that the superior security organ, you
19 know, would be expected to provide to the lower security organs with
20 respect to this issue. It notes the fact that they are receiving
21 information that handling not only prisoners of war but handling
22 individuals who are accused of regular criminal acts among the troops is
23 being done in such a manner that it could potentially compromise the unit
25 A good example of that is the notation, I believe, on the second
1 page of the English translation that, you know, there -- some of these
2 people are being segregated after they're captured and being held for a
3 period of time in company or battalion command posts, where they're in a
4 position to potentially overhear or learn about military operations or
5 orders that the unit is carrying out, and, you know, notes the fact that
6 at some point in time these individuals may be traded and that the
7 information that they learn, as part of being captured in where they're
8 held, may ultimately fall into the hands of the enemy.
9 Q. All right. And how does this fit together with your earlier
10 discussion? For example, this says, on page 2, it says: "Instruction."
11 Is that different than "Order"?
12 A. Yes, sir, it is, but, I mean, this again -- it falls into the
13 classic example of the type of technical guidance and direction that a
14 security officer is within his purview to give.
15 Q. Okay. All right. Let's go to another one.
16 MR. McCLOSKEY: It's also by this time Lieutenant-Colonel Vujadin
17 Popovic, dated 20 April 1995. 65 ter 3033. I apologise.
18 Q. Again, it says: "To the commands of the brigades." This time it
19 gets into the 5th Mixed Artillery Regiment. What's the 5th Mixed
20 Artillery Regiment?
21 A. Again, as part of its formation background, each course has a
22 mixed artillery regiment or some corps had multiple ones. This is the
23 unit that consolidated the artillery assets of the Drina Corps.
24 Q. All right. And this -- this heading says: "Strictly for the
25 chief of intelligence and security affairs." So what kind of document is
2 A. This is a document that, when you read it in the context, would
3 certainly qualify as an operative document that would not go through
4 normal channels. I would presume - I don't know whether it did or not -
5 but I presume that based on the content, it wouldn't go through normal
7 Q. Okay. Can you briefly summarise the content? I don't want to go
8 into the whole thing.
9 A. The content of this particular order outlines operative
10 information that the army has received that their -- you know, after the
11 50th Session of the RCS National Assembly, that there is a plot or
12 contract to assassinate General Mladic and potentially other senior
13 members of the army.
14 Having laid that out, it directs the security officers to take the
15 necessary steps, within the confines of their responsibility, to, one,
16 initiate investigations at all levels within their units to determine if
17 they potentially have any information to add to this investigation, and,
18 two, you know, when or if they become aware that some of these senior
19 officers may be passing through or may be staying at that location, to
20 ensure that they take the necessary steps to ensure the safety and
21 security of the senior officers as they travel through.
22 Q. All right. Let's go to another document.
23 MR. McCLOSKEY: It's 65 ter 3014. It's dated 18 July 1995. We
24 see a command stamp. In the English, it says "15," but I'm not really
25 that concerned about the date. Again -- and I think we have another
1 translation problem. This is not Second-Lieutenant Popovic.
2 Q. This is another document that's entitled: "To the chiefs in the
3 intelligence and security organs," entitled, "Dealing with reporter
5 What does this document basically do and how does it fit into your
6 analysis of a security officer's job?
7 A. The VRS, perhaps like most military institutions, tends to view
8 the media as a potential security threat. This is, again, a classic
9 example of the security officer exercising, you know, the authorities
10 within his competence to -- in order to ensure that the media crews or
11 outlets do not get information which could potentially be viewed as
12 compromising the security of VRS units or operations.
13 Q. Does that fit into the 80 per cent counter-intelligence or the 20
14 per cent military police law enforcement work, or someplace else?
15 A. I think this type of example falls firmly into the 80 per cent
16 counter-intelligence work.
17 Q. All right. Now, that is -- those are my questions related to the
18 security branch. I wanted to move on now to something that you said
19 earlier on when you talked about --
20 JUDGE AGIUS: One moment.
21 Mr. Bourgon.
22 MR. BOURGON: Thank you, Mr. President.
23 If my colleague is moving on to another topic, I have a
24 clarification I would like to see of something that came out of page 89,
25 lines 33 and 34. I didn't do it before that. That's way back, and I
1 wanted to let him finish that topic.
2 JUDGE AGIUS: Page 89?
3 MR. BOURGON: Page 89, lines 33 and 34.
4 JUDGE AGIUS: Yes.
5 MR. BOURGON: And on this occasion, the response of Mr. Butler was
6 that this was a reference to "earlier doctrine," and I would just like to
7 know what he meant by it. For clarification purposes, it might save a lot
8 of time in cross-examination. Has there been new doctrine since then, or
9 Why did he say "earlier doctrine"?
10 JUDGE AGIUS: All right. Mr. Butler, the question was you were
11 being referred to document 65 ter 407, which is a manual entitled: "Rules
12 of Service of Security Organs" in the Armed Forces of the Socialist --
13 SFRY, and particularly to a paragraph thereof or a part thereof which
14 said: "The security organ is directly subordinate to the commanding
15 officer of the command unit, institution, or staff of the armed forces, in
16 whose strength it is placed," et cetera.
17 Then you were asked: "Can you clearly tell us what that means?"
18 Your answer was: "It is a reflection of the earlier doctrine that
19 within the framework of assistant commander for security or security
20 officials, or assistant commander for logistics, or any of that nature,
21 they are ultimately subordinate to the commanding officer of that unit. I
22 mean, they are considered to be direct subordinates of him or her, as the
23 case may be."
24 Mr. Bourgon is asking you to be more specific when you refer
25 to "earlier doctrine" by explaining what you really meant.
1 THE WITNESS: When I refer to the earlier doctrine, I believe
2 the -- what he's looking for is the -- in this particular context that
3 we're talking about, the 19 -- the 1984 JNA brigade rules.
4 JUDGE AGIUS: Do you wish to add further questions?
5 MR. BOURGON: I can take that up on cross-examination, but it's
6 just because when he used the word "earlier," has there been a change? I
7 think my colleague is as much interested as I am in getting an answer to
8 this question, or has there been a change?
9 JUDGE AGIUS: I understand, Mr. Bourgon.
10 Yes, Mr. McCloskey, do you wish to elaborate this further or do
11 you wish to move to the next topic?
12 MR. McCLOSKEY: I think he is means "discussed earlier," but I
13 think it's going to -- if Mr. Butler reads the whole business, I mean, he
14 discussed this earlier-discussed doctrine of --
15 JUDGE AGIUS: Don't try to explain yourself what he meant. If he
16 wishes to add anything coming, he's perfectly capable of doing so.
17 MR. McCLOSKEY: I think it's a very simple explanation, and I
18 think this kind of interruption can be helpful, I agree, but it --
19 JUDGE AGIUS: All right. But on the other hand, Mr. Bourgon
20 waited until you had closed the chapter you were dealing with, so let's
21 not make a mountain out of it.
22 Yes, your next question, then.
23 MR. McCLOSKEY: I better clarify that, if I could, Mr. President.
24 JUDGE AGIUS: Yes, of course. Of course, you can.
25 MR. McCLOSKEY:
1 Q. The doctrine, the security doctrine that's set forth in the rule
2 on security, as it was stated, the commander of the unit, commander of the
3 security, is there some earlier security doctrine that was different from
4 the rule that you were talking about? I think that's what Mr. Bourgon is
5 concerned about.
6 A. I think there were earlier security doctrines published by the
7 JNA, but I've not reviewed them, so, I mean, I'm not talking about an
8 earlier doctrine in that context. We reviewed the material from this
9 particular date group because it was the most contemporary JNA doctrine
10 related to these functions before the JNA ceased to exist as part of the
11 war. So I don't mean to make the -- the claim that there is pre-1984 --
12 or pre-doctrine that I haven't talked about that I'm referring to.
13 JUDGE AGIUS: All right. Let's move.
14 MR. McCLOSKEY: Thank you.
15 Q. All right. Now I just want to ask you about -- you've earlier
16 testified that the Ministry of Interior units were part of the armed
17 forces in an imminent war or state of war, and I want to direct your
18 attention to 65 ter 422, which is a law, entitled "The Law on the
19 Implementation of the Law Internal Affairs during Imminent Threat of War
20 or State of War."
21 MR. McCLOSKEY: Let's look at, I believe, it's page 9 in the
22 English and page 4 in the B/C/S.
23 Q. It's Article 4 that I'm -- that I believe you've referenced in the
24 past, and can you tell us about this?
25 A. Yes, sir. It just reiterates what I indicated earlier. It's the
1 background source that during a declared state of imminent threat of war
2 or a state of war, that the Ministry of the Interior forces are considered
3 to be a component part of the armed forces of the Republika Srpska, under
4 the command of the president as the commander-in-chief.
5 Q. All right. And would that include what the Courts heard regarding
6 the special police?
7 A. Yes, sir. They are a -- they are a component part of the
8 Ministry of the Interior and would be covered under this law.
9 MR. McCLOSKEY: Okay. Let's go to page 12 of the English, of the
10 same law. It's number 4, and it's page 4 in the B/C/S. This is the first
11 article, and then we go on to some of the other articles on page 5 of the
13 Q. It's entitled: "The Use of Police Units in Combat Operations,"
14 and I want to direct your attention in particular to Article 14, which
15 states: "Police units assigned to combat operations by an order of the
16 commander-in-chief of the Armed Forces shall be resubordinated to the
17 commander of the unit in whose zone of responsibility they are performing
18 combat tasks."
19 It goes on to say: "Police units shall be under the direct
20 command of a commander who is a member of the Ministry of the Interior.
21 During the time they are resubordinated to the Army of Republika Srpska,
22 they shall retain their organisation and may not be split up or separated.
23 "Police units resubordinated to the Army of Republika Srpska in a
24 certain zone shall be used only for combat operations established in
25 advance by the commander-in-chief or the Minister of the Interior."
1 Then lastly: "In the zone in which they are carrying out combat
2 operations, the commander to whom a police unit has been resubordinated
3 shall provide logistic support for the police unit in the same way as the
4 other units of the Army of Republika Srpska."
5 Now, can you tell us, what is the significance of this law,
6 actually, do -- to your case - or to your analysis? Excuse me.
7 A. Well, the first thing it indicates is that, you know, when you
8 have a situation where the police are resubordinated to the military for
9 the conduct of military operations, while the army has a great deal of
10 latitude with respect to using the police, and previously in designated
11 combat tasks, they don't have unlimited authority over police forces.
12 For example, the army cannot relieve the police unit commander of
13 command of his own troops, nor can they, now, for whatever expedient
14 reason, essentially disband that unit and take those particular soldiers
15 and move them wholesale into army formations. So it establishes, by law,
16 limits to the issue of command that the military commanders can exercise
17 over the police.
18 Q. It's dated 29 November 1994. Were you aware of any issues or
19 problems that were related to the enactment of this -- of this legislation
20 or law?
21 A. Towards the -- towards the end of 1994, particularly with respect
22 to the situation in the far western portion of the Krajina, specifically
23 the zone of the 2nd Krajina Corps in the Bihac area, the military
24 operations that were being conducted there were of such scope and
25 intensity and the manpower was so poor that the army was having
1 significant problems dealing with that situation.
2 I believe that General Milavonovic [phoen] noted to some degree
3 that one of the things that he had personally asked the president of the
4 republic to implement was an imminent state of war, which would give the
5 military additional powers and additional manpower assets, at least in
6 that particular part of the country, in order to deal with the military
8 So concurrent with, you know, the army asking for these additional
9 powers, there appears to be, from the legislative side of Republika
10 Srpska, an effort to more finely codify what these additional powers and
11 responsibilities meant, not only to the Republika Srpska Ministry of the
12 Interior police, but in this particular Official Gazette, it is entirely
13 comprised of laws for almost every branch of the government on how their
14 activities will be regulated during the same time.
15 So it sounds like somewhere towards the back part of 1994, the
16 government, as it -- you know, the legislative and the executive bodies of
17 the RS government, decided they needed to sit down and codify, under law,
18 just what those differentials meant in each and every circumstance.
19 JUDGE AGIUS: Mr. Bourgon.
20 MR. McCLOSKEY: Let's go to 65 --
21 MR. BOURGON: Thank you, Mr. President. I think it's time now to
22 object to these types of questions, Mr. President.
23 The question that's put to the witness as to whether he is aware
24 of any problems or issues, and then the witness goes into an
25 interpretation of a situation that took place in 1994, without quoting any
1 documents, without quoting any specific source, and he talks about his
2 knowledge of what happened in 1994 --
3 JUDGE AGIUS: You can cross-examine him on that. I mean, the
4 purpose of the question was to try and make some sense of the document
5 that the witness is being shown in relation to a particular period in
6 time. So if you have problems or questions to put, put them on
8 MR. BOURGON: Mr. President, the witness is not qualified to talk
9 about what happened in 1994, and he's not qualified to give interpretation
10 of problems of a legislative nature.
11 JUDGE AGIUS: He is being asked why it is, in this particular
12 period in 1994, that this document emerges from the VRS.
13 So let's proceed, please.
14 Yes, Mr. Ostojic.
15 MR. OSTOJIC: Thank you, Mr. President.
16 We're joining the objection, and also --
17 JUDGE AGIUS: Yes, but the objection has already been decided,
18 Mr. Ostojic. Please sit down.
19 MR. OSTOJIC: I will only add one other thing, if I may.
20 JUDGE AGIUS: I think we better stay by the book, by the rules.
21 If an objection has already been decided, you sit down. It's over. If
22 you have a fresh objection, we will deal with it, but not the same
24 Yes, Mr. McCloskey.
25 MR. McCLOSKEY: Thank you, Mr. President.
1 Now, let's go to a document that's 65 ter 57. This is a document
2 that is entitled: "Republika Srpska, Ministry of the Interior, Cabinet of
3 the Minister," dated 10 July 1995, to various police commands.
4 Q. In your view, Mr. Butler, does this -- well, first of all, can you
5 just briefly outline what -- and we're going to get into this in more
6 detail now, but I just want to know: Is there, in your view, a
7 relationship between this document and the previous law you just went
9 A. Yes, sir. I believe this is a -- this is an excellent example of
10 just how that law was manifested in the practical reality on the ground
11 when it came to these situations.
12 Q. Can you point to a couple of examples in this document to back
13 that up?
14 A. It notices that it was the -- pursuant to the order of the supreme
15 commander of the RS, reiterating President Karadzic's authority as the
16 supreme commander to give ut this order. It reiterates -- you know, it
17 designates a commander for the police units. It regulates the issue with
18 respect to once a unit arrives, it is obliged to make contact with the
19 corps chief of staff, General Krstic.
20 So, in a sense, it regulates -- you know, or it manifests itself
21 on the law and the requirements of the law and how this is done, and
22 further reiterates the fact that once the particular unit or this
23 amalgamations of unit gets to the destination is to put itself at the
24 direction of General Krstic, report to him for further instructions.
25 Q. Well, when it says "obliged to make contact with Corps Chief of
1 Staff General Krstic," does that imply any kind of command relationship
2 between the MUP forces and General Krstic?
3 A. I read it to be as such, yes, sir.
4 MR. McCLOSKEY: Okay. One more document on this topic, a short
5 document. Let's go to Exhibit it looks like 4D00087, a 15 July document
6 from the Drina Corps Command to the Main Staff, requesting food provisions
7 for a MUP unit monitoring the Srebrenica and Bratunac area.
8 Q. Can you tell us briefly what this is and whether it fits that law
9 you were talking about?
10 A. Yes, sir. I don't think we went over this component verbally; but
11 as a component of that, when these forces fall under the --
12 JUDGE AGIUS: One moment, one moment.
13 Yes, Madame Fauveau.
14 MS. FAUVEAU: [Interpretation] [No interpretation]
15 JUDGE AGIUS: One moment. We haven't received the interpretation.
16 MS. FAUVEAU: [Interpretation] Could the Prosecutor repeat the
17 sentence he just read from this document, the whole sentence, please,
18 because half of the sentence may alter the meaning of the sentence.
19 JUDGE AGIUS: Yes. Do we have time for that today because it's
20 4.30, or shall we adjourn?
21 We adjourn until tomorrow.
22 Thank you, Madame Fauveau.
23 Mr. Butler, we are adjourning today. Before we wind up, I wish to
24 thank you all for having made yourself available this afternoon to
25 recover, recoup some of the time we lost this morning, not due to
1 anybody's fault. In particular, I also wish to thank the interpreters,
2 the technicians, the reporters, and the rest of the staff that have been
3 working hard.
4 Thank you.
5 --- Whereupon the hearing adjourned at 4.30 p.m.,
6 to be reconvened on Tuesday, the 15th day of
7 January, 2008, at 9.00 a.m.