1 Friday, 1 February 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE AGIUS: Yes. Good morning everybody. 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. All the accused are here. From amongst
10 the Defence teams I only notice the absence of Mr. Haynes. Prosecution,
11 it's Mr. Vanderpuye and Mr. McCloskey.
12 Mr. Bourgon.
13 MR. BOURGON: Good morning, Mr. President. I would like to
14 introduce a new legal assistant who will be working with our team,
15 Ms. Marie-Claude Fournier from Montreal. She'd be doing articles with our
16 legal team. Thank you, Mr. President.
17 JUDGE AGIUS: Thank you, you seem to be breeding legal assistants.
18 Good morning to you, madam. You come from a beautiful city which I love.
19 Welcome, you're most welcome to the team and to the trial. Thank you.
20 So shall we start with the new witness?
21 MR. VANDERPUYE: Good morning, Mr. President.
22 JUDGE AGIUS: Good morning.
23 MR. VANDERPUYE: Good morning, Your Honours. Good morning,
24 Counsel, everybody.
25 Your Honour, we're prepared to proceed with the new witness.
1 There is an outstanding 65 ter motion.
2 JUDGE AGIUS: Yes, yes. You are right. There is an outstanding
4 What's the position of the Defence teams on that?
5 Mr. Meek.
6 MR. MEEK: Thank you, Your Honour. We object. We object on the
7 grounds that we have objected on throughout this proceeding for a year and
8 a half and we've not been successful but we still object.
9 JUDGE AGIUS: Hope springs eternal.
10 Any other remarks? Okay. Yes. No, no, no. I just want the
11 details of the motion, that's all.
12 So we're dealing with the Prosecution notice of disclosure
13 pursuant to Rule 94 bis, a motion for leave to amend the 65 ter exhibit
14 list, which was filed on Friday, 25th of January of this year.
15 We've heard the objection in general terms raised by Mr. Meek for
16 the Beara Defence team. I take it it's only for the Beara Defence team,
17 Mr. Meek, is it? Isn't it? You're not -- are you speaking for everyone
18 or --
19 MR. MEEK: Your Honour, I'm speaking for Beara Defence team and --
20 JUDGE AGIUS: All right. Okay. So the Trial Chamber, having
21 confirmed comes to the conclusion to grant the motion to add to the 65 ter
22 list the -- the documents mentioned in the same motion. So we can proceed
24 Any -- there are no protective measures or any other --
25 MR. VANDERPUYE: No, Mr. President, there are not.
1 JUDGE AGIUS: -- preliminary matter you wish to discuss in
2 relation to this witness?
3 MR. VANDERPUYE: No, except that given the time constraint that we
4 have with presenting his testimony, I would ask to lead him on at least
5 some preliminary issues so that we can expedite the presentation.
6 JUDGE AGIUS: But you have been made aware that there is a time
8 MR. VANDERPUYE: Absolutely. Absolutely.
9 JUDGE AGIUS: Can you stick to that? Not a minute more, please.
10 MR. VANDERPUYE: Absolutely.
11 JUDGE AGIUS: Thank you. Mr. Parsons.
12 [The witness entered court]
13 WITNESS: THOMAS PARSONS
14 JUDGE AGIUS: Good morning, to you, Mr. Parsons, and welcome to
15 this Tribunal.
16 THE WITNESS: Good morning.
17 JUDGE AGIUS: We're about to start your testimony here. You need
18 to be sworn in before that. Madam Usher is going to hand you a text of
19 our solemn declaration. Please read it aloud and that will be your solemn
20 undertaking with us.
21 THE WITNESS: I solemnly declare that I will speak the truth, the
22 whole truth, and nothing but the truth.
23 JUDGE AGIUS: I thank you, sir. Please make yourself comfortable.
24 Mr. Vanderpuye will ask you a few questions and then there will be
25 cross-examinations after that.
1 Mr. Vanderpuye, your half an hour starts from now.
2 MR. VANDERPUYE: Thank you, Mr. President.
3 Examination by Mr. Vanderpuye:
4 Q. Good morning, Dr. Parsons.
5 A. Good morning.
6 Q. If you would please just state your full name for the record.
7 A. Thomas John Parsons.
8 Q. You prior to today had submitted or provided copy of your
9 curriculum vitae; is that correct?
10 A. That's correct.
11 Q. For the record, Your Honours, that is 65 ter 3172.
12 Now, with respect to your educational background, it is correct
13 that you earned your BS in -- BS degree in physics from the University of
14 Chicago in 1982?
15 A. Yes.
16 Q. And it is correct that you earned your Ph.D. from the University
17 of Washington department of biochemistry in 1989; is that correct?
18 A. Yes.
19 THE INTERPRETER: Please pause between question and answer,
21 JUDGE AGIUS: Did you hear that? Both of you please comply.
22 MR. VANDERPUYE: Yes, Mr. President.
23 Q. Since then is it correct that you've been engaged professionally
24 from 1989 as a post doctoral fellow at the laboratory of molecular
25 systematics at the Smithsonian institution in 1989 through 1992, right up
1 through the position of chief scientist for the United States armed forces
2 DNA identification laboratory from 2000 to 2006; is that correct?
3 A. Yes.
4 Q. Now, you're currently employed by the ICMP; is that right?
5 A. That's correct.
6 Q. Okay. And your position there is the director of forensic
8 A. Correct.
9 Q. And have you been there since about March of 2006?
10 A. I have.
11 Q. With respect to your position at the ICMP, I want to ask you two
12 questions. First is, if you could briefly describe what the mission of
13 the ICMP is; and secondly, if you could describe briefly what your duties
14 and responsibilities are as the director of forensic sciences.
15 A. The ICMP's principal mission is to assist governments with the
16 issue of missing persons, and this is accomplished in a number of means.
17 One is through governmental relations that works with governments to
18 establish laws and policies and hold them to account for the problem of
19 the missing. Another is a civil society initiative which is to mobilise
20 family groups and provide them with the ability to -- to meet and with
21 funding so that they can have a voice in the government. And then the
22 third pillar is assistance with forensic sciences in terms of actually
23 providing identifications and we have a very strong integrated programme
24 of forensic sciences involving both DNA and traditional methods.
25 Q. Okay. Now, in terms of your responsibilities and duties as
1 director of forensic sciences could you briefly outline to the Court what
2 those are?
3 THE INTERPRETER: Please make pauses between questions and
4 answers. Thank you.
5 THE WITNESS: I supervise three main forensic science divisions
6 one is called examinations and excavations and that relates anthropology
7 and archaeology for assistance with recovery of bodies from mass graves
8 and other areas. Anthropological analysis to term things like age, sex,
9 and stature of the victims. Pathological analysis to determine cause of
10 death. This type of thing. A second area is the DNA laboratory system
11 where we perform DNA typing and that principally is to match DNA profiles
12 from the skeletal remains that are recovered to blood reference samples of
13 the family of the missing and make matches in that manner.
14 The third organisational division that I oversee is called the
15 identification coordination division and that is a link between the
16 samples and the genetic data. So all samples go through the
17 identification coordination division. They enter a very homogeneous
18 process. The samples are distributed to the DNA laboratory. The DNA
19 typing results go back to the identification coordination division and
20 matches are made and that's how we perform the DNA identification process.
21 Q. Now, in terms of your supervision of the laboratory, DNA
22 laboratories, can you tell us what type of testing or what typing is done
23 in those laboratories?
24 A. Well, we use a very standard type of DNA fingerprinting type
25 profiling which is the amplification of autosomal nuclear short tandem
1 repeat loci. This is quite widely used globally for the -- for the
2 application of human identification and is the type of thing that's the
3 basis of criminal or offender databases, for example, in the United States
4 and the UK.
5 Q. Now, is that manner of testing consistent with the industry
6 standards presently?
7 A. Absolutely.
8 Q. And is the -- the way that testing is carried out detailed in your
9 report, that is the report methodology report from 2001 to 2008?
10 A. Yes. That contains a relevant SOP, standard operating procedures
11 in the DNA laboratory.
12 Q. And for the record that is 65 ter 3174. Now is the testing that's
13 conducted by the -- by the laboratories, is that conducted in accordance
14 with certain pre-existing standard operating procedures?
15 A. Yes.
16 Q. And are those procedures referred to in your report?
17 A. Yes.
18 Q. And how do those procedures relate to the use and operation of the
19 equipment used to conduct these tests?
20 A. They -- they define the -- the actions and procedures that the
21 analysts perform in order to achieve the DNA testing.
22 Q. And do they also relate to issues outside of the use of the
23 equipment such as the handling of samples, the making of matches, the
24 calculation of statistical data and probabilities and things of that
1 A. They do.
2 Q. And what if you -- if you could tell us, what is the relationship
3 of the standard operating procedures to the reliability of the results
4 achieved in the testing that is done at the lab?
5 A. Well, the standard operating procedures merely -- or -- or define
6 what it is that we do. The -- the -- the reliability of the results is
7 dependent upon the system in place and -- and a wide range of checks and
8 balances that go out throughout the entire process.
9 Q. Now, can you tell us when it is that the ICMP laboratory system
10 became operational?
11 A. DNA laboratories have been active since 2001.
12 Q. And since 2001 has there been any change in the way that ICMP has
13 carried out this nuclear STR testing, typing?
14 A. Well, I have to say in -- in all laboratories where this type of
15 work done there's -- there's constant minor evolution in terms of the
16 exact steps and methodologies, et cetera, but I think probably the best
17 general question -- answer to your question is that in 2002 we -- we
18 shifted instrumentational platforms from what was previously more or less
19 essentially the industry standard to -- to a new instrument platform
20 and -- and we also changed the extraction methodology that was used. The
21 extraction is where you take the bone sample and perform chemical
22 manipulations to retrieve relatively pure DNA. And when the ICMP got
23 started they were using what was -- what was widely used in the world and
24 then performed additional experimentation and devised a new more efficient
25 method has really since 2002 has been the basis of our very high success
1 rate with this type of material.
2 Q. When you refer to a success rate with respect to this material,
3 are you referring to the ability to extract DNA?
4 A. The ability to successfully extract DNA and then perform a
5 polymerase chain reaction amplification of the DNA to result in the DNA
6 profiles that we use for genetic comparison.
7 Q. All right. And that would be commonly known as, well, PCR
9 A. Yeah, PCR testing of STR loci.
10 Q. And in the simplest terms, what is the effect of these changes on
11 the reliability of the testing process and the results that are obtained?
12 A. Well, I don't -- in general I don't think that the minor
13 procedural changes affect the fundamental reliability. As I said, in --
14 in transferring the primary instrumentation platform - and these are
15 commercially available high-tech laser-driven instruments - the
16 sensitivity of the newer model that we switched over to in 2002 is higher
17 and that gives rise to an increased success rate. And as I mentioned also
18 the more highly optimised DNA extraction methodology that we employed in
19 2002 has given us a higher success rate on the bone samples. Sometimes
20 the DNA is simply too degraded to obtain material, but in the vast
21 majority of cases we are able to get a robust DNA and make the
23 JUDGE AGIUS: Yes. Judge Kwon and I were engaging in telepathy.
24 I am very much suspecting that you are having problems catching up with
25 the witness in particular; is that correct, interpreters, please.
1 THE INTERPRETER: That is correct.
2 JUDGE AGIUS: Could you kindly slow down. It's very difficult.
3 The interpreters' job is a very difficult one.
4 MR. VANDERPUYE: Thank you, Mr. President.
5 Q. Can you tell us is the ICMP currently an accredited laboratory
7 A. Yes. We have ISO 17025 accreditation.
8 Q. And when was this accreditation obtained?
9 A. In October of 2007.
10 Q. And has there been any material departure from the way testing was
11 carried out before this accreditation and the way it's carried out now?
12 A. No.
13 Q. Now, in terms of the procedure you briefly went over that at the
14 very beginning of your testimony, but in terms of identification does ICMP
15 compare the DNA of these -- of bone samples with the DNA of blood donors?
16 A. Yes.
17 Q. And with respect to the bone samples that you test, do you receive
18 them from a single source, multiple sources?
19 A. We get them from multiple sources.
20 Q. And with respect to the information that you receive concerning
21 these sources, is that also provided to you by -- by agencies other
22 than -- other than your own?
23 A. In many instances, yes.
24 Q. Okay. And what I mean by that is I'm referring to grave sites,
25 locations where the bone samples are recovered.
1 A. That's correct.
2 Q. And does the ICMP independently verify the accuracy of this
4 A. As a general rule that is not within our responsibility. However,
5 very often our teams are deployed to the site and oversee the technical
6 operations at the site so we're not in many instances wholly dissociated
7 from that process, but that is not our primary purview.
8 Q. And in your experience in handling this information or dealing
9 with this information, do you have any reason to believe that the
10 information such as the location of the recovery of samples and
11 information of that nature is inaccurate?
12 A. No.
13 Q. Now, in terms of the Srebrenica-related missing particularly, how
14 is the location and place of disappearance denoted in the ICMP database?
15 A. Well, I should mention that -- that for individuals reported
16 missing from anywhere in Bosnia regarding any event, the information that
17 we get comes from the family members of the missing. So to -- to
18 associate it with -- with Srebrenica, that would have been information
19 that the family provided to us.
20 Q. Now with respect to the information as to where the person was
21 missing or the date that they became missing, is that represented in the
22 database of the ICMP?
23 A. That's correct.
24 Q. And if I could briefly have up in e-court 65 ter 3002A, 3002A. It
25 should not be broadcast. I don't know if we can bring that a little bit
1 into better focus. It's a bit blurry on the screen.
2 Are you able to read that, Dr. Parsons?
3 A. Actually, no.
4 Q. All right.
5 JUDGE AGIUS: Still, I don't know how much that is helpful. If --
6 if it's properly focused, yes. No.
7 MR. VANDERPUYE: No. It was --
8 JUDGE AGIUS: No. It was much better before. Yeah. I think it's
9 decent enough now.
10 MR. VANDERPUYE: All right.
11 Q. If you would, could you briefly just take us through -- I don't
12 think we have to deal with the names or date of births but perhaps we
13 could start with the column that's indicated "protocol ID" and tell us
14 what that is.
15 A. Well, first of all, this is a list that we provided that indicates
16 individuals that we have issued DNA match reports relating to the
17 Srebrenica event. In the protocol ID number is -- is simply an identifier
18 of a particular DNA match report that was issued for that individual.
19 Q. Okay. And next is a case ID.
20 A. That number indicates the -- the identifier of the particular bone
21 sample that was submitted to our laboratory for DNA identification. So
22 that is what it was called when we received it.
23 Q. Okay. If we could move a little bit to the right. The next you
24 see is the ID ICMP.
25 A. That simply is a serially increasing number that indicates what
1 number historically of match report this was. So the one at the top was
2 the fourth one that the ICMP ever generated; et cetera, et cetera.
3 Q. With respect to the information concerning the site name, is that
4 information that is provided to you by the provider of the sample?
5 A. That's correct.
6 Q. Okay. And if we could go all the way to the right, please. All
7 right. Here we see D of Dis, Date of disappearance; and P of Dis, Place
8 of disappearance. With respect to these entries there is a consistent
9 date of 11/7/1995. Can you tell us why that is.
10 A. Yes. Again, I mentioned that we get the information on missing
11 persons from families. That's our -- our job is to return their loved
12 ones to them. And we record by our expert interviewer teams who obtain
13 the genetic samples and meet with the families and ascertain who they are
14 and properly record all the information; they ask the date of
15 disappearance and the place of disappearance of the missing persons.
16 In the case of Srebrenica, the decision was made to go with two
17 nominal -- with nominal designations in these areas because the confused
18 nature of the events at that time made it very difficult to obtain an
19 internally consistent date of disappearance or place of disappearance
20 regionally. So someone may have been last seen by one member of the
21 family taking off through the forest to try to reach Tuzla and seen by --
22 last seen by another member of the family somewhere along at that route or
23 something. And so because we deal with multiple family members, we have
24 ascribed a nominal date and place of disappearance. And the place of
25 disappearance has actually two categories: Either Potocari, indicating
1 that they remained behind and went missing; or forest, indicating that
2 they took the overland escape -- attempted escape route.
3 Q. Now, you indicated that this -- this particular set of data
4 indicates certain matches, DNA matches.
5 A. Mm-hmm.
6 Q. Now, in terms of obtaining a match, can you briefly describe what
7 the process is that's involved for -- for the Court?
8 A. Blood samples are taken from family members of the missing. In
9 many instances we get as many as we can usually and on average have three
10 different family members associated with each missing person. Those
11 profiles are typed in an entirely anonymous fashion and the genetic
12 profiles are uploaded to a DNA database. Then as the bone samples are
13 processed again in a -- in a totally anonymised manner, after the profile
14 of the bone sample is obtained it is run via computer against the entire
15 database of family reference profiles and we are able to then identify
16 genetic consistencies that are genetic patterns that are consistent with
17 familial relationship. And once such a match has been made to a given
18 named individual, then we bring all the genetic profiles for that missing
19 person into a single calculation and we perform -- using a computer
20 programme that is one of the industry standards arrive at a final
21 statistical surety that -- of that relationship of the bone profile to
22 that family.
23 Q. And in terms of the statistical relationship, that is the level of
24 surety that is required in order to -- to obtain a match, what does that
25 have to be?
1 A. For samples that proceed in the manner that I just described which
2 is a vast, vast majority of them, we have a minimum statistical surety of
3 99.95 per cent.
4 Q. And is that the case even where there is presumptive evidence of
6 A. For a small number of samples regionally we have provision for a
7 pathologist to have a strong presumption of identity prior to submitting
8 for DNA typing. So if a sample is submitted to us with a name associated,
9 we strongly -- in effect saying we strongly believe this sample comes from
10 a particular named individual, then we will do a very directed comparison
11 against that named individual and either issue an exclusion report saying,
12 No, your presumption was wrong or provide a statistic of inclusion. And
13 we will in those instances issue a match report at a 99 per cent
14 certainty, giving weight to the additional presumption that was in place
15 prior to the DNA submission. But those are quite exceptional with
16 relation to this list.
17 Q. Now, with respect to this list we're talking about, do you recall
18 when that list was provided to the ICTY?
19 A. It was in October of 2007.
20 Q. Okay. Now, with regard to the Srebrenica-related missing, did the
21 ICMP obtain a certain number of unique DNA profiles for which it was able
22 to obtain these matches as you've indicated?
23 A. Would you please repeat the question.
24 Q. Yes. With regard to the Srebrenica-related missing, did the ICMP
25 obtain a certain number of unique DNA profiles for which it was able to
1 make these matches?
2 A. Yes.
3 Q. And do you recall how many such matches there were?
4 A. Sir, I don't right at the moment.
5 MR. VANDERPUYE: If I could have 65 ter 3005 in e-court, please.
6 It also should not be broadcasted as well. Okay. If we could just blow
7 it up a little bit. That's great.
8 Q. And would like to just refer you to the second to last sentence of
9 paragraph 2. It reads: "These profiles represent 5.280 different
10 individuals," and that is out of 8.445 bone samples. And then it says
11 "From these 5.280 individuals ICMP has determined family matches for
13 This is a letter that was written by you. Do you recall --
14 A. I do.
15 Q. And is it accurate with respect to the number of
16 identifications -- matches, I should say, that were made?
17 A. As of November 30th, yes.
18 Q. And are you aware of whether there were unique DNA profiles that
19 were obtained for a number of individuals for which the ICMP was unable to
20 make matches?
21 A. Yes.
22 Q. And this is again with reference to the Srebrenica-related
24 A. Correct.
25 Q. Okay. And do you recall approximately how many individuals there
2 A. That number changes all the time. With reference to the document
3 we're looking at, November 30th, we see a difference of -- there are
4 family matches for 5.055 of the 5.280 profiles. So there's some 200 at
5 that time that we did not have matches for.
6 Q. All right. Are you aware of whether or not the ICMP actually
7 furnished the ICTY with more updated information with respect to the
8 number of profiles for which matches could not be obtained?
9 A. I believe that the answer to that would be no. At one point a
10 different list was submitted that -- that had had actually more names on
11 it and I believe that that information was prior to this.
12 Q. All right.
13 A. And what has happened is we've made more identifications and
14 therefore the number that we have not identified is lower.
15 Q. All right. Now, with respect to the individuals that you were not
16 able to obtain matches for, how is it that you made the determination that
17 they were Srebrenica related?
18 A. The principal, most direct answer from our own experience to that
19 is that those bone samples came to us from graves from which many other
20 individuals who were missing from Srebrenica were identified. So these
21 were secondary mass graves for which we've identified many, many people.
22 Q. Now, given your experience and your expertise in the area of DNA
23 testing, can you tell us in your opinion is the DNA identification and
24 matching process that is conducted by the ICMP reliable to a reasonable
25 degree of scientific certainty?
1 A. Yes, it is very robust.
2 Q. All right. I thank you very much, Dr. Parsons. I have no further
3 questions at this time.
4 JUDGE AGIUS: Thank you. Mr. Zivanovic.
5 MR. ZIVANOVIC: The Defence agreed that Mr. Meek will go first and
6 then we will be -- Ms. Tapuskovic will follow.
7 JUDGE AGIUS: All right. Let's not waste time.
8 Mr. Meek.
9 Cross-examination by Mr. Meek:
10 Q. Good morning, Dr. Parsons. How are you?
11 A. Very well, thank you.
12 Q. My name is Chris Meek and I'm one the attorneys for Ljubisa Beara
13 and we are under quite some time restraints you understand so, if
14 possible, I would like to get some yes or no answers and move along.
15 First off, in regards to the most recent methodology report, 2001
16 to 2008, which is 65 ter 3174, on page 1 you state that one of your duties
17 includes the supervision of exhumation and excavation division; is that
19 A. Yes.
20 Q. However, on page 2, point 3 of that report says that the ICMP --
21 ICMP does not generally conduct excavations; is that correct?
22 A. The ICMP is very regularly involved in excavations. I think the
23 word "conduct" is what we may be concerned with here. I'm sorry not to
24 give a yes or no answer, but the actual excavation of the grave sites is
25 under the authority not of the ICMP. We provide technological assistance
1 at sites very routinely.
2 Q. So tell me, sir, then why does the ICMP need an exhumation and
3 excavation division?
4 A. The role of the ICMP is to assist governments with addressing the
5 problem of the missing and we provide assistance at the grave sites.
6 Q. Okay. And, sir, we've got your CV. What, really, ability do you
7 have to oversee such a unit?
8 A. I am, in that regard, a scientific manager and I rely on our staff
9 to provide the true expertise.
10 Q. Okay. So do you often go to the field or do you ever go to the
12 A. I do not often go to the field.
13 Q. Just to clear that up then, basically some staff or staff members
14 of the ICMP are the expert, not you?
15 A. In the specialisation of archaeology and anthropology, correct.
16 Q. Thank you. Now, on page 3 of the information sheet, supplemental
17 information sheet which we had turned over to us on the 30th of January,
18 2008, you've indicated that the type of testing now used is nuclear STR
19 typing; correct?
20 A. I don't have the document that you're referring to.
21 Q. You indicated in your earlier testimony that you had used
22 previously to this a different type of testing; is that correct?
23 A. I wouldn't characterise it as a different type of testing, no. It
24 would describe in terms of the general categorisation of type as the same.
25 There was an instrumentations switch.
1 Q. So is your testimony then the ICMP has always utilised nuclear STR
3 A. Yes.
4 Q. Now, isn't it a fact, sir, that the term "nuclear" implies that it
5 is not mitochondrial DNA that is being used?
6 A. That's correct.
7 Q. Is that right?
8 A. Yes.
9 Q. And doesn't this fly in the face of almost every other lab -- what
10 every other lab is doing for DNA testing?
11 A. Absolutely not.
12 Q. Okay. Would you agree, sir, that there is an enormous body of
13 literature indicating that nuclear DNA cannot be successfully extracted
14 from decomposed material including bone?
15 A. Absolutely untrue.
16 Q. Pardon me?
17 A. Untrue.
18 Q. Further, would you agree that in order to establish identity with
19 nuclear DNA, a number of relatives one generation removed is necessary,
20 for example, ideally you would want both parents to identify a child; et
22 A. That is not always the case, no.
23 Q. But is it normally the case?
24 A. If you have a mother and a father, for example, you're very, very
25 strong grounds to make an identification. You can make identifications on
1 any number of relatives depending on their combination.
2 Q. Sir, you said that it's not normally the case. In what percentage
3 would you give us that is the case?
4 A. It depends on what family members are involved and what the
5 genetic type of the individuals are; so there's not really a way to give
6 an answer to that question.
7 Q. And it's my understanding that the ICMP is claiming that you can
8 identify individuals using samples from relatives such as uncles, aunts,
9 second cousins and even spouses by using this nuclear DNA; is that
11 A. It is a scientific fact that those types of individuals can be
12 useful in making identifications. I would sincerely doubt that ever
13 reached a statistical threshold on any one of those given relatives that
14 you just mentioned has been achieved at the ICMP.
15 Q. Now, did the ICMP ever use or utilise MT DNA identifications?
16 A. Not in-house, no. Essentially no.
17 Q. Now, also with this type of DNA testing that you're using and that
18 we're talking about, the nuclear STR typing, isn't it a fact, sir, that --
19 and won't you agree with me that what you need to make a claim valid would
20 be a DNA sample obtained in life from the purported victim?
21 A. No, I don't agree with you.
22 Q. Okay. And are you saying then that doing nuclear DNA
23 identifications with distant relatives is not speculative?
24 A. I am saying that, yes. I'm saying it's quite well-established in
25 the field in many different applications that very strong evidence for
1 identity can be obtained using relatives.
2 Q. Now, on page 3 you made a statement, and I could read it to you,
3 it says that when samples arrive for testing, the ICMP does not work off
4 the information accompanying them; is that correct?
5 A. I don't have that document.
6 Q. It's on page 3 of the -- sir, I could hand this to you real
7 quickly. I can read it to you. This is what -- okay.
8 MR. MEEK: Can I put this on the ELMO real quick. And while we're
9 doing that for the record this is a three page -- or four-page
10 supplemental information sheet provided by Mr. Vanderpuye for the Office
11 of the Prosecutor indicating this witness was contacted by telephone on
12 24 December 2007, again 24 January 2008, and there's some additional
13 information given.
14 Q. Now, Dr. Parsons is that correct? Did you talk to Mr. Vanderpuye
15 on those two dates?
16 A. I -- I can't -- I can't attest to -- to what date that I would
17 have spoken to him, I'm sorry.
18 Q. All right.
19 A. I don't doubt that I did.
20 Q. Okay. Now, do you see that where you told him that when samples
21 arrive for testing, the ICMP does not work off the information
22 accompanying them?
23 A. I don't see that. Can you direct me more specifically to the
25 Q. Second to last point on that page. You have to move it up.
1 A. You have to scoot it up, yeah.
2 Q. There it is.
3 A. Well, that would have been a -- as near as I can tell, this is not
4 a statement that -- that I personally generated so this would look to me
5 to be notes of Mr. Vanderpuye, and so I have to -- we have to understand
6 what he might have been thinking in relation to what I had said.
7 When the samples arrive for testing -- what I think that -- let me
8 clarify what the ICMP does. When samples arrive to us from any number of
9 sources, they are immediately entered into an anonymous -- anonymisation
10 process so that the DNA typing is totally objectified throughout the
11 entire process. We have no idea where the sample came from as it goes
12 through the laboratory, who it might be, it could come from Kosovo, it
13 could come from sure Hurricane Katrina victims, so that the end result of
14 the matching is totally objective.
15 Q. So I guess I should have asked you first, you didn't review the --
16 the supplemental information report before you came to testify today?
17 A. I have never - as far as I'm aware, I hope I'm not mistaken -
18 seen this particular document.
19 Q. Okay. But it is true though that -- or it is not true that you
20 did not work off the information accompanying them when the samples
21 arrived; is that correct?
22 A. Materially I think the answer to that is it is correct.
23 Q. However, your protocols clearly outline a presumptive option; is
24 that correct?
25 A. Yes, but that doesn't affect the samples that goes through the DNA
1 laboratory. The knowledge of presumption does not occur in the laboratory
2 processing system.
3 Q. Okay. Thank you. That's all I need that for.
4 MR. MEEK: And so I would go to -- Your Honours, if we could have
5 65 ter 3174, the report of methodology 2001 to 2008.
6 Q. In looking at these, Doctor, and looking at the report that you
7 had previously done from 2001 to 2006, in the standard operating
8 procedures it looks like the majority are either original or earlier
9 version of the SOPs you used; correct?
10 THE INTERPRETER: Could Mr. Meek please speak into the microphone.
11 JUDGE AGIUS: Mr. Meek, you are giving your back to the
12 microphone. And although I could hear you, the interpreters obviously
14 MR. MEEK: Thank you. I'm sorry, Your Honours.
15 Q. Is it correct, sir, that the SOPs, the majority of them were
16 either original or earlier versions that were used by the ICMP?
17 A. Are you talking about the methodology report 2001 and 2008?
18 Q. Yes.
19 A. Are they either original or earlier versions.
20 Q. Right.
21 A. Yes, I guess so.
22 Q. Now, on the first page of the standard operating procedure for
23 silica-based DNA extraction from difficult skeletal remains and the
24 amplification using Promega PowerPlex 16 system dated September 2003, are
25 you familiar with that, sir?
1 A. Not in any detail in terms of my ability to recall anything
2 specific that would be written on that paper.
3 Q. All right. Well, we have -- are you familiar with silica-based
4 DNA extractions, sir?
5 A. Yes, I am.
6 Q. How long have -- and it is used, is it not, for extraction of
7 difficult skeletal remains?
8 A. Yes.
9 Q. When did the ICMP begin utilising silica-based DNA extraction?
10 A. In 2002.
11 Q. 2002. Now, maybe you can clarify a few issues. On page 2,
12 section 2 of the standard operating procedure again for the silica-based
13 DNA, you explicitly discuss exhumed bodies; correct?
14 A. I don't have that document in front of me. I can't answer --
15 Q. Do you have a copy of that? Do you have a hard copy?
16 A. Are you referring to the standard operating procedure itself or
17 the -- or the methodology report?
18 Q. I'm sorry, the standard operating procedure.
19 A. Yeah. That's not what that is.
20 Q. Standard operating procedure -- excuse me. 65 ter 3223. Yeah.
21 I'm going to straight to that one. 3208. If we could have it pulled up.
22 Now, if we could move to page 2 --
23 THE INTERPRETER: Microphone, please.
24 MR. MEEK:
25 Q. Page 2, section 2, please. Do you see that, Doctor, under
1 specimens? "The specimen is a human bone or tooth sample which is
2 obtained from an exhumed body"?
3 A. Yes.
4 Q. Do you agree that surface deposits are almost always difficult or
5 always included in the difficult extraction category?
6 A. No.
7 Q. You don't?
8 A. No.
9 Q. Okay. Are they sometimes or 50 per cent of the time?
10 A. Yes.
11 THE INTERPRETER: Could you speak into the microphone, please.
12 Thank you. And the interpreters don't have the document.
13 MR. MEEK:
14 Q. Are they, sir, 50 per cent or more of the time included in the
15 difficult extraction category? And I'm speaking of surface deposits.
16 A. I do not know the proportion that -- that would represent -- and
17 there's no way to define something as difficult or not as an exclusive
18 category so I don't know the ability to answer that question.
19 JUDGE AGIUS: Mr. Meek, please put on your headphones, because
20 intermittently the interpreters make requirements and you need to be alert
21 to them. And the last one was that they do not have at their disposal
22 this document. They have it now? Okay. Then slow down both of you,
23 please, and speak into the microphones. Thank you.
24 MR. MEEK:
25 Q. You just testified, Doctor, that you don't really -- that the term
1 "difficult" is hard to divine -- define. Is that what you said, sir?
2 A. In the context with which you posed the question, I would say yes.
3 Q. Okay. But you just answered that the silica-based DNA extraction
4 is used for difficult skeletal remains?
5 A. We use it on all of our remains.
6 Q. Okay. And is there any separate standard operating procedure for
7 surface remains?
8 A. No.
9 Q. Are they processed?
10 A. Yes.
11 Q. In the next paragraph you say the body must have been exhumed by
12 trained professionals using standard operating procedures. Is that
13 correct, sir?
14 A. I don't know where that's written.
15 Q. It may have been in your -- that may have been in the 2001, 2006,
16 but is that a fact that the body has to be exhumed by trained
17 professionals using standard operating procedures?
18 A. No, it has nothing to do with DNA typing.
19 Q. No. Okay. But I'm talking about extraction of the body.
20 A. We're referring to a DNA standard operating procedure here. If --
21 I mean, I could send a teenager out to exhume a body and they hand me the
22 bone and I could do DNA typing on that bone.
23 Q. Okay. So you don't really need any trained professionals to dig
24 up the bodies?
25 A. It doesn't affect the results of the DNA test, no.
1 Q. Now, in regards to field standard operating procedures, are you
2 referring to Dr. Wright's reports from the ICTY, standard operating --
3 A. I don't know what field standard operating procedures you're
4 talking about, sir.
5 Q. Okay. Fine. As far as the exhumation of the bodies go, do you
6 refer to anything that Dr. Wright or any of his reports?
7 A. I don't know who Dr. Wright is.
8 Q. Thank you. Okay, now page 2, section 3 of the same document --
9 strike that question.
10 In regards, sir, to the silica-based DNA extraction process, do
11 you agree that the -- this modification that you made has shown to be more
13 A. Yes.
14 Q. Okay. Now, could you explain to us, please, how the modifications
15 have been tested to show the increased sensitivity? Has it been
17 A. Yes, it has. Our techniques are formally validated with a
18 comparison of previous extraction methodology to current extraction
19 methodology. First of all, to show concordant results where the -- where
20 the genetic information overlaps and also to demonstrate reproducibility
21 of any additional genetic information that we may be obtaining from --
22 from the newly optimised technique and this has recently been published in
23 the journal of forensic science international specifically with relation
24 to this question. Also our formal experimental course of validation has
25 been reviewed by our external accreditation agency and accepted.
1 Q. Okay. Now, has it been --
2 THE INTERPRETER: Microphone, please. Microphone, please.
3 MR. MEEK:
4 Q. Has this been -- this testing been accredited you said by whom?
5 A. One of -- one of the most significant international accreditation
6 standards governing forensic DNA analysis is the standard of ISO 17025.
7 And we have engaged a German company, the Deutsche Akkreditierungsstelle
8 Chemie who is authorised via a number of international agreements to
9 provide accreditation to the ISO 17025 standard.
10 Q. Sir, they have a web site and I looked on it and I couldn't find
11 anywhere that the ICMP was accredited. In fact, they don't accredit
12 forensic operations. So is it an individual that's accredited or --
13 A. Absolutely not. The agency that I just referred to does accredit
14 forensic operations; I would happen to know that because our agency is
15 accredited by them and their web site does in fact list that we are
16 accredited. I don't know how or where looked.
17 Q. That is DASH; correct?
18 A. DACH.
19 Q. DACH. Okay. Now, sometimes you have found that there have been
20 low amounts of DNA that you can extract; correct? From bone samples --
21 THE INTERPRETER: Mr. Meek, could you please speak into the
23 MR. MEEK: I will.
24 Q. Oftentimes you have a low amount of DNA that you can extract;
1 A. Yes.
2 Q. And what happens to the tests that are failed because you can't
3 get enough DNA out of it?
4 A. What -- what we will do if we do not get a reliable DNA profile
5 out of the bone very frequently is enquire if additional sample from the
6 same specimen might be available where we could do another DNA extraction
7 and hope that -- that the DNA preservation in another sampling is
8 sufficient to yield a profile.
9 Q. Going back to DACH, why are you accredited by a German company
10 rather than a US company or some other company since you are a US
11 certified board?
12 A. I have no idea what you mean by us being a US certified board.
13 Q. You -- I assume that you're a US based company; correct?
14 A. Absolutely not.
15 Q. You're not? Have you attempted to be accredited in any other
16 places besides DACH?
17 A. No, we have not. We -- we very carefully tried to determine one
18 the most internationally respected accreditation agencies and that
19 subscribes to the appropriate international agreements that would assure
20 solid international recognition of the accreditation that we have and that
21 is the reason we selected DACH.
22 Q. Okay. And is it the fact that the calibrations on your machines
23 are accredited or that your whole forensic lab was accredited?
24 A. The DNA laboratory system was accredited.
25 Q. Okay and not the individuals working there; correct?
1 A. That's correct. Well, there is not a separate accreditation for
2 an individual. It's the laboratory that becomes accredited.
3 Q. And the laboratory would be the equipment, would it not?
4 A. No. It's the entire process. It's the SOPs, it's the people,
5 it's the training processes. The oversight, the quality control.
6 Q. So would it be a fair statement that you are accredited for the
7 methodology you use?
8 A. It would be.
9 Q. Rather than the lab facility itself?
10 A. No. Methodology is part of the laboratory process.
11 Q. Now --
12 THE INTERPRETER: Could you please slow down. Some pauses,
14 MR. MEEK:
15 Q. How often, sir, if you know, would you undergo reaccreditation?
16 A. Our accreditation is valid through, I believe, 2012; but we
17 undergo technical audits on annual basis.
18 Q. What is a technical audit?
19 A. Teams of experts from DACH and other forensic laboratories that
20 they have engaged come in and witness the procedures that go on, refer to
21 the documentation that we have and -- and do an in-depth audit of the
22 methods that we use, the results that we obtain, and the processes that
23 are involved.
24 Q. Okay. Could we have 65 ter 3223 brought up, please.
25 Dr. Parsons, while that's coming up, this is the -- the standard
1 operating procedure for matching unit drafts. Could we look at page 2,
2 point IV, IV, please.
3 Now, it says in that paragraph -- it mentions a forensic expert;
4 correct? Last sentence.
5 A. Yes.
6 Q. It says these DNA matching reports are reviewed for accuracy and
7 then submitted to a forensic expert who can check the other information.
8 Could you, sir, please give me a definition of how would you define a
9 forensic expert and what are the minimum qualifications, education,
10 experience in order to hold that title?
11 A. Our DNA match reports are submitted to court appointed forensic
12 pathologists. They are the people that are authorised for us to turn that
13 information over to them.
14 Q. Okay. Could we move to page 5 of that document, point 11, please.
15 What does that mean, briefly, when you say that it is compared
16 using DNA rules?
17 A. We're referring to number 11?
18 Q. Yes. Last sentence: "...and must be compared -- and must be
19 written manually and compared using DNA rules." Do you see it, sir?
20 A. Yes, I do. In this case what that is referring to, they use --
21 they use a general statement about DNA rules. What they're referring to
22 there is the pattern of heredity that occurs between different types of
23 relatives. So in this case, for example, a mother, what the -- what the
24 person in this screening process would be doing is ascertaining manually
25 at this stage of the process that there is what is known as half allele
1 share between the parent and putative offspring. That means that you get
2 half of your DNA from your mother and half from your father; so at every
3 genetic locus you're going to have --
4 THE INTERPRETER: Please slow down, please.
5 THE WITNESS: -- at every genetic locus you will expect to find
6 one shared allele.
7 Q. Well, apparently you're using different queries for different --
8 THE INTERPRETER: Into the microphone, Mr. Meek, thank you.
9 MR. MEEK:
10 Q. Why are you using different queries for different situations?
11 A. It's good question and it's a complicated process, but -- but
12 there's a very good answer. In the end we only use one approach, but it
13 depends on what reference one has what you're going to need to work
14 through once you find a match. So if -- if you have just a mother and a
15 sibling, for example, the initial screening software is going to indicate
16 possible genetic relationships with one or both of those individuals, and
17 it's this stage that this refers to. The person is -- is determining
18 whether this candidate match is something to go on with or whether this
19 match can be ruled out because it doesn't -- it doesn't follow the
20 expected genetic relationships.
21 If there is consistency, then they'll go on to the final stage
22 where everything is the same and -- and that is where the genetic data is
23 all brought into one central computer programme with a final statistic
24 that is generated.
25 Q. Thank you. Could we have 65 ter 3225, which while it's being
1 brought up is the SOP for DNA match report review.
2 Page 2, point 1.
3 Are you familiar with that, Doctor, or do you need to read it?
4 A. I would need to take a quick can look at it. Of course I've seen
5 it before.
6 Q. Are you ready?
7 A. Yes, sir.
8 Q. Sir, could you explain when you say that the bone sample code
9 assigned by the submitting pathologist, you see that?
10 A. Mm-hmm.
11 Q. Does that include the skeletal element when they do that?
12 A. Not in a systematic manner, no.
13 Q. And would you agree with me that the ICMP has nothing to do with
14 manner or cause of death. It's not one of your duties or area of
16 A. I don't think that that's entirely accurate. It depends a little
17 bit in the sense with which you ask it. Our anthropologists very
18 frequently record data and information that's highly relevant to cause and
19 manner of death, and our -- we have a forensic pathologist who we share
20 with the clinical centre as a point -- court-appointed State pathologist,
21 and he does rule as to cause and manner of death.
22 Q. So you're saying that the ICMP does determine manner and cause of
23 death in these remains that you work with?
24 A. One of our employees in his capacity as a court-appointed
25 pathologist does involve himself in that.
1 Q. Is he in house?
2 A. Is he in house?
3 Q. Is he an in-house expert?
4 A. He is seconded to the ICMP. So he is stationed in one of our
6 Q. And what's his name, sir?
7 A. Dr. Rifat Kasetovic.
8 Q. What is his ethnic background?
9 A. I believe he is a Bosnian.
10 Q. Okay.
11 A. National. I should clarify though that the authority under which
12 he performs that is not the authority of the ICMP. So -- and that's what
13 I meant by saying it depends on the sense with which you ask that
14 question. So possibly one of the best answers would have been, no, that's
15 not our authority.
16 MR. MEEK: Your Honour, I think I have what, 12, 13 minutes left?
17 If I'm only going to use 45 minutes out of the hour and a half?
18 JUDGE AGIUS: I don't know how much time you intended to use --
19 MR. MEEK: It was 45 --
20 JUDGE AGIUS: -- but you have another 10, 13 minutes, proceed,
21 conclude and then we have a break.
22 MR. MEEK: I would like to take the break now, 10 minutes early,
23 and then pare this down and get finished with --
24 JUDGE AGIUS: No, that will create a problem for me because I have
25 an appointment at 10.40.
1 MR. MEEK:
2 Q. Who pays this pathologist, sir?
3 A. Both the ICMP and I believe the State of Bosnia. I know the ICMP
4 does provide some salary; I can't say anything else.
5 Q. Could we please have up 65 ter 3224, please. And while that's
6 being brought up, Doctor, it's the standard operating procedure for --
7 called statistical calculation of DNA-based identifications using DNA
9 Going to page 2, please. Section I. Now, are you familiar with
10 that, sir, or do you need to read it?
11 A. I would need to look at it. Maybe you could -- if you could ask
12 the question and then I would see what --
13 Q. [Overlapping speakers] I'm sorry we're overlapping. The question
14 I'm interested in would be five, six down, sentences, lines where it
15 says: "Therefore a database of 424 individuals ..."
16 Before we go further, sir, for the record, it didn't pick up the
17 name of the pathologist. Could you say it slowly?
18 A. Last name is Kasetovic.
19 Q. First name?
20 A. Rifat. That's correct.
21 Q. Is he a forensic pathologist?
22 A. Yes.
23 Q. Is he board certified?
24 A. I don't know.
25 Q. Now, again, back to 65 ter 3224. Don't you -- what's the source
1 of this database first? We know that it comes from the ICTY; correct?
2 A. No.
3 Q. Okay. What's the source of it then?
4 A. First of all, this is a database of anonymous individuals who have
5 been typed genetically to determine the population frequency of the
6 genetic elements that we look at to make the -- the calculations. So
7 these are individuals not at all involved in the identification process.
8 They're telling us about the population -- population genetics that we
9 need to know in order to -- to do these calculations.
10 Q. Sir, then how do you -- how do you know that these individuals
11 represent the Bosnian population?
12 A. They're randomly sampled.
13 Q. Do you know -- does your agency know the location of the
14 residence, their birth, their ancestry?
15 A. No, that's not recorded.
16 Q. Okay. So it's all anonymous; correct?
17 A. That's correct.
18 Q. How do you know again? How do you know that they're from --
19 represent the Bosnian population?
20 A. They're -- they're selected at random as -- I mean, there is a
21 certain vetting process where the individual would be queried, where are
22 you from, what is your ethnic background, and that would be used to
23 include the selection.
24 Q. What's the possible basis, sir, for knowing whether or not these
25 individuals are unrelated to the potential victims? Do you understand my
2 A. Yes, but not so much its relevance, but there would be no concrete
3 evidence to suggest that -- that they couldn't be related to some victim.
4 No reason to suppose that they would be either.
5 Q. It's just an assumption you're making, correct? And it's not
6 based on any reasonable scientific basis.
7 A. I have no idea whether these people are related to a victim.
8 Q. Okay. So again, you assume they're not.
9 A. I don't assume one way or another.
10 Q. Okay. Well don't you agree with me, sir, that 424 as a base is
11 inadequate, you should have more?
12 A. No.
13 Q. Okay. Would you agree, sir, that having more than 424 would
14 strengthen your findings?
15 A. Do I not agree. That is not the case.
16 Q. Okay. Now, we need to go to the -- we had it up earlier. It's
17 the letter from Dr. Parsons. I don't -- 65 -- we had it up earlier.
19 Now, Doctor, you are familiar with this; correct?
20 A. Yes.
21 Q. You're suggesting that the success rate of matching existing
22 samples to family members is 95.7; is that correct?
23 A. Yes.
24 Q. That would be 5.055 individuals out of the 5.280, correct,
25 profiles you had?
1 A. Yes.
2 Q. You are, though, you'll agree, you're equating matching rates to
3 collection rates for samples representing the missing; agreed?
4 A. Would you please say that again, slowly.
5 Q. You're equating matching rates to collection rates for samples
6 that represent the missing.
7 A. I'm sorry, that phraseology is vague and I really sort of don't
8 know what it means.
9 Q. Well, sir, what's the basis for assuming that the samples
10 collected so far are representative --
11 THE INTERPRETER: Please slow down.
12 MR. MEEK:
13 Q. What is the basis for your assuming that the samples collected so
14 far are representative in terms of a chance for a DNA match?
15 A. What this document refers to is the sum total of material that
16 we've dealt with in relation to Srebrenica, and -- and in -- in discussing
17 this set of situations, we assume that the samples we've dealt with so far
18 are typical of the chance for a DNA match, meaning, and I have no reason
19 to believe that's not the case, meaning that there's not some small subset
20 or -- or -- or set of remains that is -- is somehow missing in a way that
21 would also cause us not to have any reference samples from it in a way
22 that is different than all the rest of them. I'm sure that was -- I'm
23 sure that that's a little bit hard for people to understand in the context
24 of this discussion, but nevertheless it is the case, and I'm not aware
25 of -- of any reasonable explanation why these would not be representative
2 Q. So you're saying, then, that you have no reason to assume that all
3 these individuals don't have an equal chance of being identified?
4 A. I'm saying I don't have any reason to believe that there is some
5 small subset that has a different chance of being identified than the ones
6 that we deal with here.
7 Q. And, sir, to assume all individuals have equal chance, you would
8 have to assume that they -- first, they have a grave containing their
9 remains that's been found and exhumed; correct? B, that having at least
10 one portion of the body survived that can be sampled. And third, having a
11 successful DNA extraction; and lastly, having sufficient surviving family
12 members to provide samples that you can match off of. Isn't that right?
13 A. All those conditions are required for a DNA match.
14 Q. And isn't it unreasonable to assume that all this is going to
16 A. I'm not assuming that all that's going to happening. I'm not even
17 sure where you're going with that question or what the sense of the
18 question is.
19 Q. Would you agree with me, sir, that the -- the ICMP, when
20 collecting DNA samples that all elements or body parts aren't sampled
21 equally, that you get preference, for example, to body parts such as one
22 long bone, leg bone?
23 A. Yes. We have a highly detailed sampling protocol that allows us
24 the best chance for success.
25 Q. And, sir, further, don't your assumptions ignore the very real
1 bias that's introduced by variable -- variables affecting the preservation
2 and survival of the remains, including fire, decompensation and those
4 A. You refer to my assumptions. I don't know what assumptions you're
5 referring to.
6 Q. Well, the assumptions, sir, that the matching rates and the
7 collection rates are going to be the same and they represent the missing?
8 A. Your sentence has multiple components. The matching rates and the
9 collection rates are going to be the same -- I don't know what that means.
10 I'm sorry.
11 Q. Okay. We can break it down. Explain to us, please, what is a
12 matching rate in regard to collection rate?
13 A. You would like me to explain the sense of this document?
14 Q. I'd like you to explain the collection -- what are collection
15 rates for samples as opposed to matching success?
16 A. The ICMP has a very active outreach programme to attempt to obtain
17 genetic samples from family members of the missing. So far we have
18 obtained genetic samples from family members who have reported missing
19 individuals to us through this process relating to 7.772 individuals
20 reported missing from Srebrenica. That is our collection. Those -- those
21 are the samples we have collected.
22 By the same token, the ICMP has obtained bone samples for DNA
23 typing from 8.445 - as of November 30th - bone samples that relate to
24 primary or secondary graves considered to be from the Srebrenica event.
25 DNA has successfully been obtained from -- sorry, I misspoke. We have
1 successfully obtained DNA profiles from -- for 8.445 such bone samples
2 from Srebrenica. Some we were not able to obtain DNA from. Those
3 represent 5.280 different individuals, meaning that some of the bone
4 samples - because these are secondary graves that have been highly
5 fragmented and commingled - some of the samples that have been submitted
6 seperately actually refer to the same individual who has been dismembered.
8 So as of the 5.280 profiles from different individuals that we
9 have relating to Srebrenica, for those we have been able to match to
10 family members 5.055. That gives us a matching rate -- in other words, if
11 we take the total number of different profiles we've obtained, the
12 matching rate and the overall process is about 96 per cent.
13 Q. But the number of -- the number of DNA profiles is -- 5.280 is
14 only 67 per cent of the total number of reported --
15 THE INTERPRETER: Microphone, please.
16 MR. MEEK:
17 Q. We need to get some -- you're saying, though, and I'm telling you
18 I believe you say that you have DNA profiles of 5.280, and that's only
19 67.9 per cent of the total number of the reported missing individuals;
21 A. There are 5.280 different individuals represented by the profiles,
22 of which 5.055 have matched. When you divide 5.055 by 5.280, you get the
23 value of 95.7 per cent.
24 Q. But isn't there, sir -- you're saying -- you're not saying that
25 there are allegedly 7.7 -- 7.772 reported individuals missing?
1 A. We have DNA samples representing 7.772 missing individuals from
2 Srebrenica event. So you seem to be thinking that I'm claiming we've
3 identified 95.7 per cent of these 7.772 individuals. It doesn't say that.
4 I'm not suggesting that. I --
5 Q. What I'm suggesting is there's a fundamental flaw in your logic
6 but I'm going to go on to -- to 2D176 --
7 JUDGE AGIUS: We have to break, Mr. Meek.
8 Doctor, we'll have a 25-minute break and thank you for your
9 patience and understanding.
10 THE WITNESS: Very good. Thank you.
11 JUDGE AGIUS: Thank you.
12 --- Recess taken at 10.34 a.m.
13 --- On resuming at 11.04 a.m.
14 JUDGE AGIUS: Have you finished, Mr. Meek?
15 MR. MEEK: No, Your Honour. Just a few more minutes.
16 Q. Doctor, would agree with me that a DNA profile alone is not
17 sufficient evidence of identification?
18 A. As a basic statement, no, I would not agree with that.
19 Q. Okay. And would you agree that on several occasions the ICMP has
20 argued for the need for anthropological examination as part of the DNA
22 A. Yes, sir, that is correct, yes.
23 Q. And you're aware also that the ICMP and the ICTY cases have been
24 criticised in a number of articles in regards to identification methods
25 that you use?
1 A. No, I'm not aware of that.
2 Q. Okay. Did you by any chance -- scan in 2D174, please, in e-court.
3 This is an article --
4 JUDGE AGIUS: Microphone.
5 MR. MEEK: Sorry.
6 Q. This is an article entitled, Erroneous gender identification by
7 the Amelogenin sex test. Are you familiar with that article at all?
8 A. I don't have a specific recollection of having read it.
9 Q. On this Amelogenin sex test, do you use that in ICMP?
10 A. Yes, that locus is one of the 16 loci that is typed in our
12 Q. Can you please scan in -- bring up in e-court 2D175. This will be
13 an article entitled, What do the X and Y chromosomes tell us about sex in
14 gender and forensic case analysis. Are you familiar with that, sir, that
16 A. This one I believe that I have not read.
17 Q. Okay. Can you please bring up on e-court 2D176? Entitled, The
18 American Academy of Forensic Sciences, proceedings on the American Academy
19 of Forensic Sciences.
20 Have you -- and we're looking at page 2, H50. On the right side
21 there. The importance of using traditional anthropological methods in
22 DNA-led identification systems. Sir, are you familiar with that?
23 A. Yes.
24 Q. You are familiar with that one?
25 A. Mm-hmm.
1 Q. And the author -- the authors of that did not criticise the ICMP?
2 A. The authors of that are from the ICMP.
3 Q. Okay. 2D177, please.
4 A. May I request, please, to find out the year that this pertains to.
5 Q. I don't see the year off the top of my head but I can get it
6 before you're finished testifying. 2005, I believe.
7 A. Well, it would be quite helpful for proceeding.
8 Q. The copyright is 2005 on the front page. Second to last
10 Yeah. Could we please scan in --
11 A. There's one that says 2003 on this page.
12 Q. That's the next one. We don't need to go back to it unless you
13 want to but the one previously that I just showed you, that was a
14 copyright 2005, okay?
15 Now, could we go to page 2, please. And under H20, the abstract
16 of the influence of large scale DNA testing on the traditional
17 anthropological approach to human identification: The experience in
18 Bosnia and Herzegovina.
19 Are you familiar with that one, sir?
20 A. No. I would have to read it.
21 Q. One of the things they say, among other things, is that one
22 misconception regarding DNA-led identifications is that once a DNA match
23 is made, then a positive identification automatically follows. This is
24 far from true. It is imperative that traditional forensic scientists
25 review the tentatively identified remains and related evidence to ensure
1 that the match is valid.
2 Do you agree with that, sir?
3 A. Basically, yes. The word "imperative" might be a -- any given
4 case is, in my opinion, an overstatement. And I would suspect - let me
5 not speculate about anyone else - but I've not made any attempt to
6 downgrade the importance of concordance of evidence between DNA and
7 non-DNA. It's one of the pillars of our identification process.
8 Q. How many divisions do you have at the ICMP?
9 A. Well, I don't know that we call them exactly divisions, but I
10 suspect the question you're asking is that we have three predominant parts
11 of the forensic sciences division.
12 Q. How many employees do you have?
13 A. In the forensics sciences department around a hundred.
14 Q. Approximately, if you can tell me how many of those are ethnically
16 A. I cannot tell you that. I don't know the answer.
17 MR. MEEK: No further questions, Your Honour.
18 JUDGE AGIUS: Thank you.
19 MS. TAPUSKOVIC: [Interpretation] Good morning, Your Honours.
20 Cross-examination by Ms. Tapuskovic:
21 Q. Good morning, Mr. Parsons.
22 JUDGE AGIUS: One minute, Madam Tapuskovic. I reckon we have 29
23 minutes left. Is that correct? Please correct me if I am wrong. Go
25 MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour.
1 Q. Mr. Parsons, my name is Mira Tapuskovic and I'm one of the Defence
2 counsel for Mr. Vujadin Popovic.
3 In order to cut this examination of yours as short as possible, I
4 hope you'll agree and that you won't hold it against me if I call the
5 International Commission for the Missing Persons only commission for
6 short, and I hope this won't be in the way of our communication.
7 A. That's okay. Yes. I'm sorry.
8 Q. Could you please answer out aloud so that it remains recorded in
9 the transcript.
10 You told us here that you applied standard operating procedures
11 for DNA analysis. Can you tell me, were you the one to introduce the SOPs
12 currently used by the commission?
13 A. No.
14 Q. Can you tell us who is it that issues these SOPs?
15 A. I believe the SOPs that were submitted have a listing as to who --
16 what's the word? -- who produced them. The SOPs that have been provided
17 for the most part, to my knowledge, have a listing of the individuals who
18 produced them.
19 Q. I would like to know if the commission itself produced its SOPs or
20 were the SOPs produced by some other body outside the commission, be it
21 international organisations or any other type of organisation.
22 A. Well, almost by definition the standard operating procedure of a
23 laboratory is that of the laboratory itself. It is simply a document that
24 says precisely what is done. That isn't to say that the international
25 commission on missing persons has invented all these DNA typing methods
1 and in fact they are -- the fundamental science that they represent is
2 extremely widely used around the world and publications and shared SOPs
3 from other laboratories are widely used in the generation of -- of the
4 SOPs that we have at the ICMP.
5 So we take established techniques elsewhere that have been
6 validated. We bring them in the laboratory. We test them. We validate
7 them ourselves. We devise the way it works in our own hands, the way it
8 works in our own facilities and that's what the SOP is. So the methods
9 themselves are certainly not invented by the ICMP. In some cases, for
10 example, our extraction methodology, before I arrived the scientists at
11 the ICMP did experimentation and arrived at a very efficient mechanism for
12 extracting DNA from bone. But in the main, these are established
14 Q. Very well. As you said, the extraction of DNA profiles is made
15 pursuant to established procedures. In order for us to ascertain the
16 appropriateness of a given DNA profile made, is it necessary for us to
17 consult the electropherograms?
18 A. The electropherograms are the raw data by which an analyst derives
19 the DNA profile. So -- but I don't --
20 Q. My question is if one would want to check the way in which the DNA
21 profiling was made, does that person have to look at the electropherograms
22 either for the DNA profiles made of bone samples or for the DNA profiles
23 made from blood samples?
24 A. Yes, in the sense that if I -- if I submitted a blood sample to a
25 medical diagnostic laboratory and they gave me a result, I could say I
1 don't know whether to trust that result until -- unless you send me all
2 the raw data that gave rise to it. So if that's the sense you asked, then
3 that's the case. On the other hand, I might -- I might refer to the fact
4 that that is an accredited medical diagnostic laboratory and have faith
5 that the result they reported is correct based on their established
7 Q. Very well. Could you please keep your answers short. My question
8 was if one were to control the results, and I didn't go into who would be
9 the controlling body.
10 Does this mean that the control of the pherograms or the raw data
11 as you put it can only be conducted by a professional?
12 A. Yes.
13 Q. Thank you. Did you send to the OTP the electropherograms for
14 8.445 DNA profiles that you reference in your statement of the 31st of
15 November --
16 A. No.
17 Q. -- which is Exhibit 3005 in our case?
18 A. No, we did not.
19 Q. This means that none of the parties to the proceedings, neither
20 the Defence or the OTP, are able to control the raw data.
21 A. The raw data has not been provided.
22 Q. The standard procedures, are they produced in writing as a must?
23 A. The -- the scientific techniques that are used to produce a DNA
24 profile don't depend on whether or not or in what form someone has written
25 something on a piece of paper. What determines the outcome of a result is
1 the methodology that goes into it, the actual physical experimentation
2 that took place.
3 Q. Thank you. An examination of the SOPs led us to conclude that
4 there are some 40 of them. Am I right?
5 A. I think that were provided to you, yes.
6 Q. Thank you. As we looked at the SOPs, we concluded that of 40 of
7 them, 20 were produced in the second half of 2007. Three SOPs do not bear
8 any date. Three SOPs date from 2006, and one from 2008.
9 This is my question: Is the reason why the SOPs were produced in
10 writing as late as they were, in 2007, connected with the accreditation
11 that was sought from the German accreditation agency?
12 A. Yes.
13 JUDGE AGIUS: Yes, Mr. Vanderpuye.
14 MR. VANDERPUYE: I'm not sure if this is -- counsel hasn't put to
15 the witness what specific SOPs we're talking about because there were
16 several more SOPs disclosed than are referred to in counsel's question.
17 So I don't know that it's sufficiently clear what she's referring to.
18 JUDGE AGIUS: I don't know if I should agree with you or not, but
19 I think she put basically all the 40 but then reduced them to the first
20 20, then 3 and then 1. So I think it should be clear enough for the
22 Go -- please proceed, Madam Tapuskovic.
23 MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. We are
24 pressed for time and that's why I did it this way. Thank you for
1 I'm not sure if the witness answered. Yes, he did.
2 Q. Does every laboratory which is involved in forensic DNA analysis
3 have the obligation to get an accreditation for its work from one of the
4 internationally recognised accreditation agencies?
5 A. No. I would say there is no such general obligation. I believe
6 in late 2006 or possibly early 2007, the forensic organisation ENFSI, the
7 European Network for Forensic Science Institutes, did a survey of criminal
8 DNA laboratories working in Europe and the answer was 70 per cent were not
10 Q. Do you agree with me that the accreditation of a -- of a forensic
11 laboratory for DNA profiling means, in essence, that at the international
12 level it has been confirmed that the process of making DNA profiles in
13 that particular laboratory seeking accreditation conforms with the
14 international standard ISO 17025?
15 A. If the laboratory is accredited to ISO 17025 standards then that
16 is what the accreditation means, that it conforms with those standards.
17 Q. Let us specify. ISO is a network of national institutions for
18 standardisation; short?
19 A. I don't know that it is a network of institutions. I think it is
20 an international standard of work that has been agreed.
21 Q. Very well. This means that in the period between November 2001
22 when you started when DNA profiling, all the way through to the month of
23 October 2007, that for the full six years during which your laboratory has
24 been in existence you did not have that accreditation, that
25 internationally recognised certificate?
1 A. That's correct.
2 Q. According to what we were able to conclude analysing all the
3 documentation, the DNA profiling is a highly technical job of work, is it
5 A. Yes.
6 Q. Thank you. In answer to my colleague's question, you said how
7 many individuals were involved in DNA profiling. Can you tell me if there
8 is an obligation -- or, rather, we do know there is an obligation for all
9 the analysts to undergo the proficiency testing to verify their
10 qualifications; is that right?
11 A. The word "obligation" is -- obliged by whom and under what
12 standard? I'm unaware that there is some sort of universal obligation for
13 proficiency testing. In fact, it is a quite useful tool in quality
15 Q. Let us not waste time, but there are international groups that
16 conduct proficiency testing of analysts every six months. Are you aware
17 of the existence of such agencies?
18 A. I won't -- I don't know about the six months, but, yes, there
19 certainly are proficiency testing operations. The one we use is called
20 GEDNAP. It's a German agency that we perform our proficiency testing
22 Q. Do all your analysts undergo proficiency testings and do they get
23 a passing mark?
24 A. The -- the GEDNAP programme tests the outcome of the laboratory;
25 that is to say, the laboratory's ability to produce a genetic profile from
1 submitted samples. So, again, it is not an individual by individual type
2 of analysis. And we do participate in the GEDNAP trials and do obtain the
3 certificates of the results, yes.
4 Q. The certificates your analysts received as well as the
5 documentation given by the German accreditation agency, did you send those
6 to the OTP?
7 A. They were not requested. The answer's no.
8 Q. Thank you. I will move on to a different topic since I don't have
9 much time left.
10 We received a document from the OTP, namely D0001516. That's for
11 the benefit for the OTP. Where, and I will not be calling it up at this
12 time, it is said that 649 persons were identified as a result of a
13 classical or a classic method in the period since the inception of the
14 commission in Bosnia-Herzegovina, which was in 1996, and all the
15 identifications were conducted through a classical method before DNA
16 profiling was introduced in 2001.
17 Can you confirm that -- whether these identifications were
18 reidentified through DNA profiling or were they in fact not revisited at
20 A. I don't know the document you're referring to, and I don't know
21 the 649 individuals you're referring to, nor do I know what role the ICMP
22 played in any of the -- in the question that you discussed.
23 Q. The document that my learned friend from the OTP showed at the
24 start of his examination-in-chief, that's 65 ter document 3002, the long
25 list, can you confirm that these cases, no matter how many of them were in
1 fact involved, these cases that were identified through the conventional
2 methods, whether they were also included or in fact were not included on
3 that list.
4 A. On what list? I'm sorry, ma'am.
5 Q. Can we call up Exhibit 3002. And I believe it was 3002A, in fact.
6 A. Thank you. I now recognise the document. This is a list of DNA
7 matches that were made. So I don't know anything about how this relates
8 to any bodies that may or may not have been identified through non-DNA
9 means. This is solely a list of DNA matches.
10 Q. Thank you. Do your SOPs provide for the duplication or, rather,
11 double-checks of DNA profiling?
12 A. Yes. There are a large number of double-checks. You used the
13 word "duplication." I'll address that specifically. I suspect that you
14 relate -- are referring to independent duplicate testing of the same
15 samples, and up until late 2006, in every case possible, which was the
16 vast majority, our bone samples were tested independently in duplicate
17 with concordance as a -- as a basis for issuing the DNA match report.
18 In late 2006, we did a large-scale quality control programme,
19 because obviously it's very expensive to do these samples in duplicate,
20 and we looked at many thousands of duplicate analyses, and with the result
21 that there were no discrepancies between them, and we simply were no
22 longer able to justify the cost-effectiveness of -- of this as a
23 quality-control measure. So we now have criteria under which we do not
24 duplicate. But for a vast majority of the samples on this list that we
25 just referred to they were done independently in duplicate.
1 Q. This means that you're departing from the SOP which is currently
2 in force in the commission, aren't you?
3 A. I don't know the basis for your statement of that.
4 Q. You said that the standard procedure governing --
5 A. We instituted a new policy and a new SOP based on the
6 quality-control analysis.
7 Q. Thank you. I have one question left. My colleague put quite a
8 few questions concerning document 3005, which is your statement of
9 November 2007. I will read this one sentence out to you: [In English]
10 "To date ICMP has received reference samples relating to 7.772 individuals
11 reported to be missing in July 1995."
12 [Interpretation] If my understanding is correct, Mr. Parsons, we
13 don't know how many reference samples you have here, but we do know that
14 7.772 individuals were reported to be missing. Is that right?
15 A. Well, I'd love to have the document up here just to be correct,
16 but that is correct. For 7.772 individuals, family members have reported
17 them missing to us and provided at least one blood sample relating to that
18 individual, relating to Srebrenica, or according to those family members.
19 Q. Do you agree, Mr. Parsons, that for that statistical operation
20 where you calculated that there was a possibility that the total number of
21 the missing persons was 8.100, you factored in the -- not the DNA
22 profiling results but, rather, the number of persons who had been reported
23 as missing, which in fact is a figure that has not been confirmed yet and
24 is a hypothetical factor?
25 A. There is nothing hypothetical about the fact that -- that people
1 gave us blood samples referring to 7.772 missing loved ones. It's a
2 simple statement of fact that that's what we have, and that's what my
3 document refers to.
4 Q. But in this document you did not state the number of reference
5 samples, did you?
6 A. No. No, we did not.
7 Q. Thank you.
8 MS. TAPUSKOVIC: [Interpretation] Your Honours, I have no further
10 JUDGE AGIUS: Thank you.
11 Ms. Nikolic, there are only three minutes to four minutes left.
12 MS. NIKOLIC: [Interpretation] Can I apply for an extension of 10
13 minutes since my colleague overstepped the time that we agreed upon
15 JUDGE AGIUS: You should have seen it and stood up when your
16 colleague was doing precisely that, not now. In any case, I will consult
17 with my colleagues.
18 [Trial Chamber confers]
19 JUDGE AGIUS: Yes. Go ahead, Madam Nikolic.
20 MS. NIKOLIC: [Interpretation] Thank you, Your Honour.
21 Cross-examination by Ms. Nikolic:
22 Q. [Interpretation] I have a few questions only. Good morning,
23 Mr. Parsons. My name is Jelena Nikolic, and I appear on behalf of
24 Mr. Drago Nikolic.
25 Does the ICMP issue death certificates?
1 A. No.
2 Q. Who is in charge of issuing those?
3 A. Court-appointed medical pathologists.
4 Q. It means that the ICMP establishes neither the year nor the manner
5 and time of death?
6 A. That's correct.
7 Q. Thank you. An agreement was concluded between the government of
8 Bosnia and Herzegovina and your institute at the moment of its inception.
9 In Article 4, it mentions cooperation with the relevant organisations,
10 including this Tribunal -- or, rather, the Office of the Prosecutor of
11 this Tribunal; is that correct?
12 A. I'd have to refer to the agreement. I don't recall.
13 Q. Could we please bring up 3D293 in e-court, and just to save some
14 time we can place the hard copy on the ELMO. The first and the last page,
16 Particularly I'm interested in the third page of the document,
17 Article 4. In bullet point 3 is what I referred to, and I believe I
18 highlighted that in your copy. Can you answer my question now?
19 A. I would be delighted to. You have to remember that I am a
20 scientist and this -- this area is -- of government agreements, et cetera,
21 is simply not where my professional life intersects. So under bullet
22 point 3 it says: "Cooperates with relevant authorities." I don't know
23 what this refers to, so I would have to look at this entire document to
24 assess what we're dealing with here. Signatory parties -- I'm sorry.
25 Q. I'm merely interested in the cooperation with the OTP of this
2 Do you have standing correspondence in cooperation with the Office
3 of the Prosecutor pursuant to this agreement?
4 A. When you -- when you add the phrase "pursuant to this agreement,"
5 I'm going to have to decline to answer unless I review it in great detail
6 and understand more about it. If you want to ask what interactions we've
7 had with the OTP, I would be happy to answer those questions.
8 Q. Yes. I would kindly ask you to answer the question.
9 A. And I'm very sorry, could you please repeat it just one more time
10 now that we're at this point.
11 Q. What is the nature of interaction and communication between you
12 and the Office of the Prosecutor of this Tribunal?
13 A. Well, it varies under different circumstances, but the work that
14 we do is conducted wholly independently of the Office of the Prosecutor,
15 but apparently they conclude that some of the -- some of the work that we
16 do is relevant to the proceedings of this Tribunal, and therefore they
17 have requested from us information that we have as a result of our work to
18 return the missing persons to their families.
19 Q. In September 2007, did you ask for financial support for your
20 institute through the Office of the Prosecutor of this Tribunal?
21 A. Yes. It's a very big problem. As I mentioned before, we're
22 involved in -- in returning missing people to their families, and some of
23 the requests that the Prosecutors have made in terms of information
24 because it doesn't relate to our core mission, put an extreme extra burden
25 on us from the standpoint of providing materials, and that is not how we
1 are funded. So the point that we've made is that we require some type of
2 extra funding to -- to cover the activities that we have here, simply
3 because any resources that we apply then specific to a request for
4 information detract from our core mission of the work that we do.
5 Q. And you turned to the Office of the Prosecutor of the
6 International Tribunal in The Hague for that assistance on the 28th of
7 September, 2007.
8 A. I don't have any documentation of that. I can confirm that we --
9 that we said -- that we indicated that funding would be welcome. I can
10 also confirm that none has ever been forthcoming.
11 Q. I would like to ask that this document be not broadcast. It is
12 3D296 in e-court, and there is a hard copy for the witness.
13 Please read the first paragraph.
14 A. Aloud, ma'am?
15 Q. No. No, for your information. I'm trying to assist you in order
16 to be able to answer my question. My question was whether you turned to
17 the Office of the Prosecutor for assistance on the 20th of November, 2007.
18 A. Who is this letter from?
19 Q. The Office of the Prosecutor.
20 A. And who is it addressed to?
21 Q. Perhaps we can scroll down and then you'll see the signature
23 A. I see a letterhead, but I need some grounding on what we're
24 looking at here. I'm sorry.
25 Q. Please take the document. Read the first paragraph in which the
1 Office of the Prosecutor, pursuant to your request, turned to some donors
2 for financial assistance. That is all.
3 A. Okay. I'm looking at this. It appears to be a letter from
4 Vice-president Franco Frattini from the European Commission; is that
5 correct? I'm asking you for assistance here.
6 JUDGE AGIUS: Yes, Mr. Vanderpuye.
7 MR. VANDERPUYE: Thank you, Mr. President.
8 JUDGE AGIUS: I take it it's the inverse. It's the opposite,
9 isn't it?
10 MR. VANDERPUYE: Yes, and we also have some concerns that the
11 document might be Rule 70, which we discussed with counsel before that.
12 JUDGE AGIUS: Well, if you have concerns, you better check before
13 it becomes too late.
14 MR. VANDERPUYE: Yes.
15 JUDGE AGIUS: Of course.
16 MR. VANDERPUYE: The other objection is to the extent that the
17 witness has already conceded that the ICMP has made a request of the
18 Office of the Prosecutor with respect to funding, I don't see the
19 relevance of this line of questioning. I would ask that counsel move on
20 to a different point or make the question more germane to the issues at
22 JUDGE AGIUS: Yes. Thank you, Mr. Vanderpuye.
23 Do you wish to comment on that, Ms. Nikolic, or do you wish to
24 proceed with your next question?
25 MS. NIKOLIC: [Interpretation] Certainly, Your Honour. I believe
1 the witness did not answer, and he asked for the document in order to be
2 able to do so. If he answered, I agree with my learned friend.
3 MR. VANDERPUYE: It was an issue of the date. Counsel --
4 JUDGE AGIUS: It involves many issues, Mr. Vanderpuye, including
5 the relevance of the whole line of questions that we have had throughout
6 this sitting today.
7 MR. VANDERPUYE: Mr. President, my learned friend had put the
8 question to the witness as to whether he was aware that such a request was
9 made on a specific day in September.
10 JUDGE AGIUS: Okay. Let the witness answer the question if he
12 Can you answer the question, Doctor?
13 THE WITNESS: I would request, please, just for it to be posed
14 simply one more time.
15 JUDGE AGIUS: Can you put the question, please, Madam Nikolic.
16 MS. NIKOLIC: [Interpretation]
17 Q. Mr. Parsons, did your institute turn to the Office of the
18 Prosecutor asking for assistance in order for them to support your request
19 for further financial institution from certain donors.
20 A. Yes.
21 Q. In September 2007?
22 A. Again we'd have to get into documents. This is not an area of my
23 professional interaction.
24 Q. Thank you.
25 MS. NIKOLIC: [Interpretation] Your Honour, I won't insist on the
2 Q. One additional question only. When gathering information on your
3 institute, on its web site inter alia it is stated that one of the tasks
4 is to assist international tribunals and domestic courts in order to help
5 resolve events that have to do with war crimes and crimes against humanity
6 as well as genocides and -- genocide and other crimes in contravention of
7 the international law.
8 A. Is there a question?
9 Q. Yes.
10 A. Well, you stated a fact about our web site. Do you have a
11 question about that?
12 Q. Is one of the roles of your institute to establish whether
13 genocide happened since this is what I found on the web page of your
15 A. No, it is not one of the roles of our institute to determine
16 whether genocide has been accomplished.
17 Q. Why is that on your web site then?
18 A. I would have to refer to the web site. Your wording seems
19 unfamiliar to me.
20 Q. Could we please bring up 3D295A and B in e-court, and I will
21 conclude my cross-examination thereafter. 3D295A and B in e-court, and I
22 have a hard copy with the relevant portion highlighted for the witness. A
23 is the English version, page 2, and page is the B/C/S version.
24 Please have a look at page 2, sir. I underlined the penultimate
25 paragraph. It begins with the word: "[In English] ICMP has also provided
1 support ..."
2 A. I was correct. The wording here was substantially different than
3 that you posed to me earlier. What it says is: "The ICMP has also
4 provided support to international and domestic courts on matters related
5 to war crimes, crimes against humanity, genocide, and other crimes under
6 international law in line with data protection and other safeguards under
7 ICMP policy."
8 What that would refer to, I think, that you would like me to tell
9 you is providing the type of information that we did provide here as
10 evidenced by -- by this list insofar as these -- such undertakings find
11 interest in the work that we do in terms of providing identifications
12 and -- and -- to the family members.
13 MS. NIKOLIC: [Interpretation] Thank you, Your Honours. No further
15 JUDGE AGIUS: I take it there is no re-examination,
16 Mr. Vanderpuye?
17 MR. VANDERPUYE: That's correct, Mr. President.
18 JUDGE AGIUS: Dr. Parsons, we've finished your testimony. I can't
19 thank you enough for having come over. I know how busy a man you are.
20 Thank you, and on behalf of everyone, I wish you a safe journey back home.
21 THE WITNESS: Thank you very much.
22 [The witness withdrew]
23 JUDGE AGIUS: Are there documents that either of the parties seek
24 to tender in relation to this witness? Mr. Vanderpuye.
25 MR. VANDERPUYE: Yes, Mr. President, there are.
1 Your Honour, I would like to offer basically everything that's in
2 the exhibit list. There is -- there are a couple of exceptions. One is
3 65 ter 3003B. One is 65 ter 3004. And that's all. So other than those
4 documents, everything that's on the exhibit list I would tender.
5 JUDGE AGIUS: Any objections? No objections? Yes. These are
6 admitted. Madam Registrar, you need to take -- make sure that those that
7 are indicated as -- to be preserved under seal are kept so, okay?
8 Mr. Meek, do you wish to tender any documents?
9 MR. MEEK: Yes, Mr. President. 2D174, 2D175, 2D176, and 2D177.
10 JUDGE AGIUS: Thank you. Any objections from either the
11 Prosecution or the other Defence teams?
12 Mr. Vanderpuye?
13 MR. VANDERPUYE: There's no objection, Mr. President.
14 JUDGE AGIUS: Okay. All right. So these four documents are
16 Madam Tapuskovic, would you like to tender any document?
17 MS. TAPUSKOVIC: [Interpretation] Your Honour, the Popovic Defence
18 seeks to tender no documents.
19 JUDGE AGIUS: And Madam Nikolic?
20 MS. NIKOLIC: [Interpretation] Thank you, Your Honour. First I'd
21 like to thank you for the additional time you gave me, and we used three
22 documents. These are 3D293, 3D295A and B, and 3D296. I believe the list
23 had been forwarded. And the last document is confidential.
24 JUDGE AGIUS: Okay. You also had to check -- thank you,
25 Madam Nikolic, whether one of the documents used by Madam Nikolic is
1 covered by Rule 70 protection.
2 MR. VANDERPUYE: That's correct, Mr. President.
3 JUDGE AGIUS: Correct what?
4 MR. VANDERPUYE: That we do have to check.
5 JUDGE AGIUS: All right.
6 MR. VANDERPUYE: My understanding is that it is actually indicated
7 in that way.
8 The other thing is I would object to it on the basis of relevance
9 since the witness clearly had no familiarity with it and couldn't even
10 attest to the date.
11 JUDGE AGIUS: We can expect all sorts of submissions in due
12 course, so leave it there for the time being and we'll see. We'll see
14 So that concludes -- they are admitted these three documents.
15 That concludes the testimony of Dr. Parsons.
16 Let's get back to Mr. Butler. Mr. McCloskey. Is Mr. Butler here?
17 All right. One moment, because there is a preference here to hear
18 the submissions on the two motions that I referred to yesterday before we
19 proceed with the testimony of Mr. Vanderpuye -- of Mr. Butler.
20 MR. JOSSE: Yes, Your Honour. The reason I rose is if the Court
21 recalls, I had been granted leave to ask Mr. Butler two minutes' worth of
22 questions but I'll do that later.
23 JUDGE AGIUS: That is -- was agreed upon yesterday.
24 MR. JOSSE: Indeed. Indeed. It was indicated to me yesterday
25 evening, and I'm grateful to Your Honours' senior legal officer for his
1 cooperation and assistance, that the Trial Chamber did want to hear our
2 submissions in relation to the motion seeking to add one witness to the
3 list and as a result I'm in a position to address the Chamber.
4 I'm bound to say in passing that whilst I understand the Chamber's
5 desire for expedition in this matter, we do make the submissions to some
6 extent under protest, bearing in mind the time involved, but turning to
7 the substance of the matter, Your Honours, we strongly oppose the motion
8 of the Prosecution.
9 As a preliminary, perhaps I could deal with paragraph 4 of the
10 motion. Could I have just one moment. And in particular, I make
11 reference to the fact that Mr. McCloskey, in effect, emphasised that
12 paragraph yesterday in his brief reply to what I had to say. We wish the
13 Trial Chamber to be clear that any suggestion that the Defence brought
14 this situation upon ourselves is totally rejected and is completely
16 As has been recognised and accepted by the Prosecution,
17 General Smith first mentioned this particular issue to the Prosecution in
18 late October of last year during a proofing session. The Defence sought,
19 by way of an oral motion on the 1st of November of last year, in effect an
20 order preventing the Prosecution leading that evidence. The Trial Chamber
21 rejected that oral submission. Thereafter, Smith gave the evidence. Of
22 course the Defence were then confronted with the evidence, and we put our
23 case, as is my habit, forcefully to him. At that time there was not a jot
24 of evidence to support what he was saying, and no doubt had there been I
25 would have been stopped in the questions that I had asked. I wasn't
1 misleading, being unfair, or in any way misrepresenting the position.
2 I also did, I would venture to suggest, what any prudent counsel
3 would do in that situation and that is test the evidence that we faced at
4 that particular time.
5 The comment in paragraph 9 of this motion that the fact -- is
6 unfair because at the time the corroborative evidence did not exist and as
7 I've already said, the cross-examination was unobjectionable.
8 Turning, if I may, to paragraphs five and six of the motion, the
9 Defence note with some interest the "sustained efforts" of the
10 United Kingdom authorities to find this particular witness. Sadly, those
11 sustained efforts don't appear to have got very far. But as I said
12 yesterday, I will make a submission about whether the Prosecution to some
13 extent have brought this upon themselves and whether they've acted
14 within -- with all due expedition.
15 We make no criticism of what they have done over the last few
16 months in relation to time, but we would observe that if anyone had
17 bothered to interview Smith properly in the first place about his dealings
18 with Gvero, then this allegation would have emerged months if not years
19 ago. The fact of the matter is clearly no one asked him any proper
20 questions about what dealings Smith had with Gvero until Mr. Thayer went
21 to see him in late October of last year. And to a large extent we suggest
22 that it's, frankly, bad investigation. And whether the fault lies with
23 the lawyers or the investigators doesn't matter; for this purpose we lump
24 the Prosecution together. It's bad prosecuting that has made this happen
25 because, of course, had the allegation that Smith makes been made to the
1 Prosecutors at an earlier stage, they clearly would have followed up the
2 trail and the Defence wouldn't have been left in this highly prejudicial
3 position of having to meet the evidence not just in the middle of the
4 trial but virtually at the end of the Prosecution case. It certainly
5 isn't the Defence fault, and we do ask the Trial Chamber to ask yourselves
6 whether perhaps some fault does lie at the door of the Prosecution.
7 Your Honour, the arguments advanced by the Prosecution in
8 paragraph 11 of this motion are greatly depreciated by the Defence. The
9 conversations that are alluded to in this motion were not written. We
10 suggest they were, in effect, counsel-to-counsel conversations, and the
11 propriety for including them in this motion is dubious in the extreme.
12 The end result of including that type of counsel-to-counsel negotiation in
13 a motion like this is a complete breakdown of communication between the
14 parties. Why should we have anything to do with Prosecutors who throw
15 this sort of information back in our face?
16 That being said, I don't want to suggest for one moment that what
17 is contained in here is untrue. It's there. You've seen it. There's no
18 point in me resigning from it. It is true and I want to make that clear.
19 And we stand by our actions in the matter and perhaps I could make a
20 number of submission that is flow from that.
21 After the conversations that are described in paragraph 11, the
22 Prosecution at no point returned to the Defence and said what they were
23 doing and in particular that they had located this particular witness. In
24 other words, they didn't say, "We've located the witness. We're now going
25 to see her. Do you now want to be involved in the process?" In short,
1 they happily parade what we did back last year, but they don't keep the
2 Defence up-to-date, and I simply mention that in the context of them
3 relying on the information in paragraph 11.
4 Next, Your Honour, the Prosecution end that paragraph by saying
5 that no injury or prejudice will be suffered by the accused as a result of
6 our own actions. We suggest that is a total non sequitur. In short, we
7 don't follow that submission whatsoever. Why as a result of our decision
8 last year no injury or prejudice is caused to our client is beyond our
9 comprehension and perhaps the Prosecution will enlighten the Court about
10 that in due course.
11 The fact that prejudice matters the Prosecution concede at the
12 beginning of this motion in paragraph 4 where they say the addition would
13 cause no prejudice to the accused. So the question of prejudice matters.
14 As I mentioned yesterday, the issue of prejudice, which Mr. McCloskey so
15 lightly tossed away and said we all know the law on it - we're all experts
16 on it, apparently - is not something we had a chance to research, is
17 something we would like to have researched and is something we would like
18 to have addressed. Prejudice in the general sense and also prejudice
19 specifically as to a witness of this sort being raised at this juncture of
20 the case.
21 I'm not in a position to advance any law in relation to matter for
22 reasons I have just explained, but we would suggest that our client is
23 greatly prejudiced and the Prosecution's suggestion that as a result of
24 our actions described in paragraph 11 that he's not is simply wrong.
25 Returning finally so far as paragraph 11 is concerned to my third
1 point, most importantly of all the Defence make a tactical decision as
2 described in paragraph 11. We stand by that tactical decision. In the
3 course of any case, particularly a long criminal case like this, the
4 parties have to make difficult tactical decisions from time to time.
5 Those decisions are of course based on judgement, common sense, but above
6 all else the law, the rules, and the procedure, and I will develop that,
7 if I may, in a few moments' time when I come to end my submission.
8 One small but important matter we mention in passing, appendix A
9 of this motion sets out what this witness purports to say. Interestingly
10 itself falls foul of Rule 65 ter (E)(ii)(c) because it does not
11 particularise which parts of indictment this will go to and we would ask
12 for such particularisation in due course.
13 Your Honour, moving on from this point, if the Trial Chamber grant
14 this application, the Defence do require more time to prepare for the
15 cross-examination of this particular witness. We require and submit we're
16 entitled to the 30 days' notice that has been acceded to and granted to
17 every other defendant in this case in relation to every other witness
18 who's given evidence in this case and in relation to this witness the
19 position should be no different.
20 We are aware, of course, of your decision of a week ago, the 25th
21 of January in relation to the last such Prosecution application. Excuse
22 me. Where at, I think, page 20501 Your Honour, the learned
23 Presiding Judge, mentioned the possibility of the witness being discussed
24 on that occasion being called in rebuttal. This is not the moment for me
25 to rehearse or make submissions in relation to rebuttal evidence in this
1 Tribunal, but we would respectfully suggest that the test for rebuttal is
2 not made out in such circumstances, and leaving aside that witness,
3 because that witness is neither here nor there as far as this application
4 is concerned and certainly has no bearing on our case, we would invite the
5 Trial Chamber to consider very carefully whether any such similar ruling
6 could possibly be made in relation to this witness.
7 I was looking, because I have a brief synopsis of the law of
8 rebuttal in the Tribunal. As I say, perhaps now is not the time to even
9 quote that but I would submit to the Court that that simply isn't an
10 answer to this particular motion.
11 Moving on if I may, yesterday Your Honour suggested the ability of
12 a Trial Chamber to call a witness itself. Well, of course that exists
13 clearly under the rules. There is no question so far as that is
14 concerned, but broadly speaking, we would submit that similar
15 considerations would have to apply there, particularly where it's known
16 that one of the parties is very anxious, indeed desperate to call that
17 witness, and the other party is suggesting that that witness should not be
18 called. And in those circumstances, realistically, to say that that
19 witness should wait to the end and be called as a Chamber witness by
20 reason perhaps of either scheduling or other considerations is simply
21 unfair and not a proper way to proceed.
22 The rules of this Tribunal are basically that the Prosecution put
23 up a case. The Defence then meet it if they see fit. In short, we submit
24 this is ostensibly an adversarial process, rightly or wrongly. Most
25 importantly of all, as I have already said, the Defence are entitled to
1 rely on the Rules of Procedure of the Tribunal and are entitled to expect
2 decisions that flow from those rules.
3 In conclusion, I ask rhetorically, what does that amount to in
4 this case? In other words, reliance on the Rules of Procedure. We submit
5 as follows: If the Trial Chamber feel that this witness should be called,
6 she should be called as part of the Prosecution case or not at all. In
7 short, it's now or never.
8 Now, I've already made submissions as to why we say she shouldn't
9 be called at all and we're prejudiced, and I've already said I would have
10 liked to have developed that a bit further, but be that as it may we
11 submit it's now or never. However, it's not right now we submit. We
12 submit that we're entitled to prepare for her in the way that everyone
13 else has been entitled to prepare for other witnesses before she gives
14 evidence. And so she should be called, I say she should be called before
15 the end of the Prosecution case and allowing the Defence proper time to
16 prepare prior to her evidence.
17 Thereafter, the Defence can state categorically that in the event
18 that this lady does give evidence, there will be an application for the
19 recall of three or four Prosecution witnesses who gave important evidence
20 on this topic prior to Smith making his allegation; in other words, before
21 anyone was aware that this was going to become a live and important issue
22 in this case, and certainly the three of those witnesses would be Joseph,
23 Dibb, and Savcic.
24 We recall Your Honour's words on the 2nd of November of last year
25 when Your Honour ruled on our original application at page 1 -- 17.408 of
1 the transcript where Your Honour said that the Court would listen to any
2 ad hoc application from the Defence. Again, we chose, let me make no
3 bones about it, made a tactical decision not to make that application
4 after Smith gave his evidence, but our decision will be completely
5 different, I can categorically state, in the event of this lady giving
6 evidence. It changes the situation radically as far as we are concerned.
7 And, Your Honour, I'll end, if I may, by saying what I stated
8 yesterday. If what I'm saying on behalf of General Gvero has a radical
9 effect on the schedule of this trial, then let's be clear, that is not
10 down to General Gvero or his lawyers. We have not brought this situation
11 upon ourselves. We didn't ask for this application to be made. I know
12 it's an obvious point. And we would like to adhere to the present
13 schedule as much as possible; but we do submit that if justice demands
14 that this witness be called and that's the consideration of the
15 Trial Chamber, then scheduling constraints must not get in the way of
16 things being done in a proper and just manner.
17 Those are my submissions.
18 JUDGE AGIUS: Thank you, Mr. Josse.
19 Mr. Thayer.
20 MR. THAYER: Good afternoon, Mr. President, good afternoon,
21 Your Honours, good afternoon everyone.
22 I will just address a couple of the issues. I won't address all
23 of the comments my friend made. I'll just begin by starting with his
24 discussion of the discussions that he and I had after General Smith's
25 testimony and I'll be brief on this issue. I don't see anything untoward
1 in including these discussions in our motion. I think this goes in the
2 category of no good deed goes unpunished.
3 We had no obligation to consult with my friends with respect to
4 how we were going to proceed in following up this information that
5 General Smith disclosed at such a late date. We would have just gone out
6 and, as we frequently do, follow up on information by ourselves with no
7 input from Defence counsel.
8 Given the unique situation that we were facing with this
9 information coming up in the middle of trial, I thought it was only fair
10 to invite my friend to be party to any of these follow-up discussions
11 either in person, if it was by telephone by telephone, or even to submit
12 questions. I didn't have to do that. I did it. In any event.
13 His answer was equivocal after some consideration. No. Do what
14 you have to do and we will hear from you one way or another. I don't see
15 any and I did not see any need to follow up. I thought his answer was
16 what it was. I took him at his word that that was his considered
17 decision. As he said, it was a tactical decision and he should live by
18 it. I don't think there's anything improper in letting the Court know
19 where the parties stood with respect to these events. In fact I think
20 it's important for the Court to understand the overall context and how
21 this information has been has developed.
22 Now, I appreciate that these developments are unwelcome for the
23 Gvero team, but as everyone knows, they emerged naturally from this
24 information which General Smith disclosed. All the parties were taken by
1 The Court has already ruled with respect to General Smith's
2 testimony on this issue that it was interested in hearing this. That is
3 our understanding of the Court's ruling. This was information that was
4 relevant and probative. And my friend at that time when he made his
5 arguments trying to exclude the testimony, proffered no basis in fact or
6 law as to why that testimony should have been excluded, and he has not
7 today either. This is very simple testimony which we have seen the
8 possibility of coming for some time now.
9 My friend was obviously adequately prepared to cross General Smith
10 on this issue at the time. He did so. I don't see any reason why he
11 can't be similarly and adequately prepared to cross-examine this proposed
12 witness immediately. She is available next week. She is holding open
13 dates for the Trial Chamber on which she is able to appear. This is not a
14 surprise in any respect with respect to how the Prosecution has argued
15 General Gvero's position, his culpability. This testimony goes directly
16 to counts 6, persecutions, with respect to the forceful transport --
17 forcible transfer, deportations; counts 8 -- or 7, the forcible transfer;
18 and ultimately count 8, the deportations with respect to the Zepa enclave.
19 This information, as we've argued previously, is perfectly
20 consistent with all the testimony this Court has heard of General Gvero's
21 hands-on activities from his presence at Pribicevac to his 12 and 13 July
22 orders, to all of the documents and orders concerning Zepa and the
23 negotiations that General Gvero was copied on to his involvement in
24 setting up the 25 July meeting between General Smith and General Mladic
25 specifically to resolve the Zepa situation, to his 31 July meeting in
1 Mrkonjic Grad with General Mladic at which resolving the issue of Zepa,
2 again, was on the agenda. It shows clearly and consistently
3 General Gvero's active participation throughout the entire time period
4 charged in the indictment and in particular with respect to these forcible
5 transfer charges. It shows how he was active and he supported
6 General Mladic all the way to the end. We even have General Skrbic
7 talking about how at this time at the end of the July General Gvero is at
8 the front line dodging bullets. That is absolutely consistent with the
9 Prosecution's theory. The proposed testimony from this proposed witness
10 fits perfectly in that. General Gvero is on site, on site in Zepa as he
11 was in Srebrenica at Pribicevac. This corroborates what General Smith
12 testified to.
13 My friend asked for corroboration. He now has it. The Court, I
14 believe, should hear it. This is evidence which is relevant, probative,
15 and can and ought to be heard now, not later. There is no reason advanced
16 by my friend why he can't be prepared to cross-examine this witness.
17 With respect to other witnesses that he cares to, as he says, do
18 investigation on, he has the information report from Tom Dibb who we
19 interviewed. As for General Skrbic or Ed Joseph, they can be called in
20 the Defence case. I don't see how, in any event, that affects his ability
21 to cross-examine this witness that we've proposed. And again we're happy
22 to make arrangements at any time, as we were before, for my friend to
23 interview anybody that we have previously called but that's beside the
24 point. The issue is why he is not in a position to cross-examine this
25 witness on a very limited issue, what she saw when she was at that check
1 point and encountered General Gvero at Zepa.
2 JUDGE AGIUS: Thank you. Yes, Mr. Josse very briefly, please.
3 MR. JOSSE: Yes. We wish to carry out further investigation. We
4 wish to speak to a number of witnesses.
5 Could I make it absolutely clear that any suggestion that we
6 should have a call those witnesses who gave evidence in the Prosecution
7 case as part of our Defence case is totally rejected. That would be
8 shifting the burden of proof, and we would say that the Trial Chamber
9 shouldn't countenance that for one moment. The prejudice there is quite
10 obvious. We would have asked these questions of those witnesses had we
11 known of the allegation at the time they gave their evidence.
12 So that has nothing to do with the time we require. We require
13 time for further investigation. We'd also ask for those witnesses to come
14 back and for us to be allowed to cross-examine them, not call them as our
15 own witnesses. I hope that's clear.
16 JUDGE AGIUS: Thank you, Mr. Josse. That's clear, yes.
17 MR. JOSSE: Sorry, could I just -- one point of information,
18 general Skrbic, by the way - and we can actually point to the evidence -
19 General Skrbic did sort of say my client was dodging the bullets. He was
20 dodging the bullets in the Krajina on the 27th of July according to
21 General Skrbic. I mention that in passing.
22 [Trial Chamber confers]
23 JUDGE AGIUS: We are going to have the break now. We are going to
24 discuss this and come to a conclusion possibly, and then of course we will
25 come to the other matters. I think we better earmark a 30-minute break.
1 MR. THAYER: Mr. President?
2 JUDGE AGIUS: Yes, Mr. Bourgon.
3 MR. BOURGON: Thank you, Mr. President. I just want to know if
4 you wish to hear any submissions regarding the Prosecution motion on 92
5 quater after the break or after the testimony of Mr. Butler.
6 JUDGE AGIUS: I think after the break.
7 MR. BOURGON: Thank you, Mr. President.
8 MR. NICHOLLS: I'm sorry, Your Honours, I know you want to take
9 the break. Just regarding the 92 quater, I'm prepared to argue that
10 today, however, my suggestion would be that this just be dealt with on
11 paper and that the Defence file a response perhaps by Monday. We filed
12 our motion Tuesday and they've been on notice of this for months.
13 JUDGE AGIUS: We would have given Mr. Josse the same treatment if
14 that would have been our choice.
15 MR. NICHOLLS: I just find there is less urgency regarding this
16 motion perhaps than the question of calling another witness. I mean --
17 JUDGE AGIUS: There's a lot of urgency, Mr. Nicholls, because the
18 Prosecution case is coming to an end and we are handing down a decision
19 today establishing that deadline again, or extending the current deadline
20 from today to whenever.
21 MR. BOURGON: Mr. President, we certainly do not intend to address
22 the merits of the motion but the consequences thereof is important.
23 JUDGE AGIUS: No, no. We do not underestimate the import.
24 --- Recess taken at 12.29 p.m.
25 --- On resuming at 1.08 p.m.
1 JUDGE AGIUS: Yes. Anyone who has been following the proceedings
2 today would certainly, I hope, have dispelled any ideas they might have as
3 to whether we work hard and under what conditions we work sometimes.
4 Once more thank you, Mr. Josse and Mr. Thayer for your submissions
5 and for making them within a reasonable time. We are going to decide the
6 Prosecution motion to add the witness to whom we have referred -- which is
7 referred to in the motion.
8 We are seized of this motion to add her to the 65 ter list and to
9 have her appear to testify before the close of the Prosecution case. We
10 have heard oral submissions on the issue from the Gvero Defence team and
11 the reply of the Prosecution to that.
12 The issue which the witness will testify to is clearly relevant
13 and probative. The only question is that of prejudice. We do not accept
14 the general arguments of the Gvero Defence team that prejudice would
15 result from hearing this witness at this stage given the history of the
16 matter and in particular the late disclosure of this particular piece of
17 evidence by General Smith. That point was already ruled upon by the
18 Trial Chamber in its earlier decision to reject the Defence motion to
19 prevent General Smith from testifying on the matter. The only question in
20 our mind is whether hearing the evidence in the short time remaining
21 before the close of the Prosecution case will prejudice the Defence of
22 General Gvero because of a lack of time to prepare for the
23 cross-examination of this witness.
24 We note in this regard that the Gvero Defence has expressly
25 indicated its preference to have the witness called at this stage as part
1 of the Prosecution case as opposed to later as a Trial Chamber witness.
2 On the question of prejudice, the evidence of the witness goes to
3 an extremely limited though important point regarding an encounter with
4 General Gvero. We cannot in these circumstances see the need for an
5 extensive period of time for the preparation of the cross-examination. In
6 particular, we note that in relation to General Smith, the Defence of
7 General Gvero facing similar if not more limited time constraints was able
8 to mount a thorough cross-examination of him on this point. In order to
9 grant as much time as possible to the Defence of General Gvero, we are
10 hereby ordering that the witness be the last of the Prosecution witnesses
11 who will be called. However, as is evident from what I have been stating
12 so far, we are granting the Prosecution motion to add the witness to the
13 65 ter list and call her to give evidence.
14 As to the question of recalling other Prosecution witnesses to be
15 cross-examined on this issue and limitedly on this issue, we agree with
16 the Gvero Defence that it would not be appropriate to force them to be
17 called as part of the Defence case. Therefore, in light of scheduling
18 issues, if the Defence of General Gvero wish to recall these witnesses for
19 cross-examination, on this limited point, they will be permitted to do so
20 prior to the opening of the Gvero Defence case as part of a technical
21 reopening of the Prosecution case. And this is of course subject to the
22 decision pursuant to Rule 98, depending, in other words, on whether we
23 decide ultimately that the case against General Gvero should proceed as is
24 or limitedly.
25 So that's our decision.
1 Yes. Thank you Mr. Josse.
2 MR. JOSSE: Thank you for that, Your Honour, and I don't want to
3 be obstructive here. I'll need to discuss that, of course, with my client
4 and Mr. Krgovic, and we will need to decide whether we're going to seek
5 certification of that decision. If we're going to do that, how should
6 that practically be done, in writing or orally, first session? Thinking
7 aloud, I would invite the Trial Chamber to allow us to make that
8 application orally at the first sitting of next week.
9 JUDGE AGIUS: Okay.
10 MR. JOSSE: Thank you.
11 JUDGE AGIUS: That is granted. Thank you. When I say that is
12 granted, we are not granting --
13 MR. JOSSE: I understand. And I emphasise the word "if".
14 JUDGE AGIUS: Yes. Exactly.
15 Okay. Mr. Bourgon, you wish to address the Chamber on the other
16 motion on the --
17 MR. BOURGON: Indeed, Mr. President. We would like to make some
18 submissions on behalf of the accused that we represent, Drago Nikolic,
19 concerning the Prosecution motion to have admitted in evidence four
20 witnesses pursuant to Rule 92 quater. May we go into private session,
21 Mr. President, for one moment.
22 JUDGE AGIUS: Yes, certainly, Mr. Bourgon. Let's go into private
23 session for a short while, please.
24 [Private session]
9 [Open session]
10 JUDGE AGIUS: We are in open session. If you would kindly
12 MR. BOURGON: Thank you, Mr. President.
13 The situation regarding the Prosecution 92 quater motion is quite
14 different from the arguments which you have heard on behalf of my
15 colleague representing the accused Gvero. Our submission addresses two
16 issues. The first issue being the time required to respond to the motion
17 on the merits, and the second issue being the consequences of having this
18 motion filed at this time.
19 Mr. President, regarding the first issue, which is the time
20 required to respond, we will require a significant amount of time to
21 respond to this motion for the following reasons: One, the motion deals
22 with a complicated area of the law, namely addition into evidence of
23 statements of persons who are no longer available and in this case persons
24 who are deceased. Responding to this motion --
25 [Trial Chamber confers]
1 JUDGE AGIUS: Mr. Bourgon, let me interrupt you for a moment to
2 give you advanced notice of a decision that we have already taken in
3 respect to this motion, a decision which does not go to the merits, a
4 decision which is basically the following: We've decided that this motion
5 of the Prosecution, precisely because of the short time available for the
6 Defence teams to be prepared for it, to come forward with their position,
7 should not and will not be decided prior to the exercise and the decision
8 that we will be reaching pursuant to Rule 98. Bis, yes.
9 So the position that the Trial Chamber is going to take is that
10 for the purposes of the Rule 98 bis process, your submissions, in
11 particular, you are to take it for granted that the testimony of these
12 four persons do not exist in the record and will not form part of the
13 record. In other words, the Rule 98 bis decision will be taken
14 irrespective and independently of the testimony of these four persons.
15 Subsequently, after we have handed down the Rule 98 bis decision,
16 which will articulate whether the case will proceed against all accused
17 or -- or as is or against some of the accused, we will be handing down the
18 decision in relation to this motion, and after, of course, having had --
19 after having given you the opportunity to come forward with your
21 So that is our decision. In other words, these -- the testimony
22 of these four persons will not be taken into account for the purpose of
23 the Rule 98 bis decision, and you're free to make any other comments you
24 like which are relevant to what could be usefully discussed this morning.
25 MR. BOURGON: Thank you very much, Mr. President. This is very
1 useful. We take good note. We will respond to this motion in the time
2 allotted to us pursuant to the Rules. However, there is one -- the rest
3 of our arguments will be put into our response, but just to -- as an
4 advance notice, this motion may very well imply that if it was to be
5 granted in respect of Witness 102, there are additional witnesses that we
6 would like to call for further cross-examination, and these witnesses are
7 those that we have highlighted earlier on in a similar motion in respect
8 of Witness PW-108.
9 Thank you, Mr. President.
10 JUDGE AGIUS: I thank you so much, Mr. Bourgon.
11 Mr. Ostojic.
12 MR. OSTOJIC: Thank you, Mr. President and Your Honours and thank
13 you for your guidance on the motion. We join obviously in the objection
14 and will isolate it for the Court particularly which witness or witnesses
15 we think go against Mr. Beara. We believe though that because we talked a
16 little bit about prejudice and that the Prosecution's position seems to be
17 simple and straightforward that nothing causes prejudice to the accused.
18 And I think my learned friend has suggested that there's no case law on it
19 or that it's pretty clear the case law. That shouldn't be his position.
20 It's unfortunate that they use that tactic that nothing causes prejudice.
21 This motion violates not only this Court's Rules that you've set
22 in proceedings during this trial but also the Rules of Evidence of this
23 Tribunal, and I have to raise this as one issue because it will be
24 highlighted in our brief, we hope, and that is that the witnesses that
25 have been deceased since -- that they're seeking application pursuant to
1 92 quater, they've known that these witnesses have passed away, and
2 they've known for some time after the proceedings in this case started
3 that these people were either sick or potentially could become deceased.
4 They've done nothing and sat on their hands. For them to suggest that
5 they have -- that the Defence somehow knew about this motion for some time
6 really is not the question that the Court should ask, and the real
7 question is why didn't the Prosecution in the beginning of their case when
8 these individuals were alive, at least a couple of them, why didn't they
9 call those individuals early in the case as opposed to wait until the very
10 end of their case to try to make an application pursuant to a new amended
11 Rule 92 quater? I think that's the question they should address, not to
12 suggest to the Court that we've known for some time.
13 It is as my learned friend Mr. Thayer said, a tactical decision
14 that they've made, and they should learn to live with it. If they decided
15 to file the motion as each person who was known to be deceased and we've
16 had one that's been deceased (redacted), they should have
17 filed a motion immediately. Instead they've waited and they've waited
18 until the eve of their case in chief for only one reason and that is to
19 cause prejudice to the accused. We strongly object to their motion.
20 We'll write it. We will appreciate the Court's guidance on accepting our
21 briefs at the time indicated to the Rules. Thank you.
22 JUDGE AGIUS: Thank you. I don't think you need to respond to
23 this latter part of Mr. Ostojic's intervention or submission. I think
24 that forms part of whatever they wish -- they may wish to include in their
25 responses. If there is anything else you wish to --
1 MR. NICHOLLS: No, Your Honour. I was just hoping that when I
2 stood up he would take a breath for a moment and I was going to object and
3 say that given your Court's ruling you've just handed down, this could all
4 be in writing at the proper time.
5 Could we go into private session for one moment.
6 JUDGE AGIUS: Let's go into private session for a short while,
8 [Private session]
16 [Open session]
17 JUDGE AGIUS: We are back into open session.
18 Butler. Now, there are other matters that we would like to raise,
19 but I think we can leave them till Monday. And particular, there is one
20 motion that goes -- Tuesday, sorry. There is one motion, Mr. McCloskey,
21 which goes back to some time that relates to the witness that you have now
22 withdrawn, Vasic, and that again was a motion to amend the 65 ter list of
23 documents which you can safely withdraw from the registry. It's still
24 there. Rather than giving us the trouble of having to declare it moot,
25 you can withdraw it.
1 MR. NICHOLLS: Yes, Your Honour.
2 JUDGE AGIUS: Thank you.
3 Yes, Mr. McCloskey -- I'm sorry, Mr. Bourgon. My apologies to
5 MR. BOURGON: Mr. President, just quickly. I'd just like to
6 confirm which line was requested to be redacted? I missed the line and
7 it's not in the transcript.
8 JUDGE AGIUS: Well, I can -- I can tell you. It's -- in my
9 transcript it's page 84, line 18.
10 MR. BOURGON: Thank you, Mr. President.
11 JUDGE AGIUS: It doesn't necessarily mean that it corresponds with
12 yours, but that's what I have.
13 Now, the understanding is we'll sit till a quarter to 2.00. We go
14 straight now to quarter to 3.00. Okay, so we will be sitting till quarter
15 to 3.00 now and hopefully -- will you make an effort, Mr. McCloskey, to
16 finish Mr. Butler.
17 MR. McCLOSKEY: Absolutely.
18 JUDGE AGIUS: Thank you.
19 [The witness entered court]
20 WITNESS: RICHARD BUTLER [Resumed]
21 JUDGE AGIUS: Incidentally, I am just authorising the filing of an
22 order that will extend the end of the Prosecution case from the 1st of
23 February, that's today, till the 7th of February, and that's when you need
24 to conclude your -- your case, Mr. McCloskey. Up to the 7th, yes.
25 MR. McCLOSKEY: Thank you. And, Mr. President, I know Mr. Josse
1 and I have spoken about an issue that he wanted to clarify with
2 Mr. Butler. Perhaps if he just does it right now that would be easier
3 and --
4 JUDGE AGIUS: Yes. I think if Mr. Josse is in agreement, we can
5 do that. Yes.
6 MR. JOSSE: I am. Thank you.
7 Further cross-examination by Mr. Josse:
8 Q. Mr. Butler, there were two issues. Both can be dealt with very,
9 very briefly. The first relates to my client General Gvero's record and
10 in particular operational duties that he'd undertaken. I think it's right
11 you confused him with another accused in this case.
12 A. Yes, sir, that is correct. I was looking at his record and
13 Colonel Pandurevic or General Pandurevic's side by side and I had
14 inadvertently attributed one of Pandurevic's commands to Gvero. So I do
15 concur with Defence that General Gvero appears to, at this juncture from
16 the documents we have, commanded nothing larger than a platoon at this
17 thing. So I think we're accurate on that.
18 Q. Thank you. And the second issue relates to Colonel Djordjic and I
19 expect the problem might be my pronunciation. You were getting him
20 confused with a Djordjevic; correct?
21 A. Yes, sir. And going back over this Main Staff document that I
22 have, once we got the right translation of the name I clearly see where he
23 does sit and he is not an individual who by position is subordinate to
24 either General Miletic [Realtime transcript read in error "Milosevic"] or
25 General Gvero.
1 MR. JOSSE: I don't think I need to spend any more time on the
3 JUDGE AGIUS: I thank you so much.
4 Yes, Madam Fauveau.
5 MS. FAUVEAU: [Interpretation] Can I correct the transcript. Line
6 21, page 87. I think it was the General Miletic and not Milosevic.
7 JUDGE AGIUS: Thank you so much for that Madam Fauveau.
8 Good afternoon to you, Mr. Butler.
9 THE WITNESS: Good afternoon, sir.
10 JUDGE AGIUS: May I express the Trial Chamber's gratitude to
11 Prosecution and Defence teams. We have all agreed to try and bring your
12 testimony to an end today and thus enable you to return home after such a
13 long period here which must have been very strenuous for you.
14 THE WITNESS: Well, sir, just to be able to advise you that, you
15 know, being prudent I did in fact check with my home agency and if
16 necessary I can be available for the early part of next week. So I mean
17 there are no external drivers to my leaving. I am here at the disposal of
18 the Court as long as I need to be.
19 JUDGE AGIUS: Okay. I hope that doesn't send out the message that
20 you have got masochistic tendencies.
21 THE WITNESS: I have been working for this organisation for a long
22 time. I think that's long out.
23 JUDGE AGIUS: Thank you. Mr. McCloskey will re-examine you go
25 MR. McCLOSKEY: Thank you, Mr. President.
1 Re-examination by Mr. McCloskey:
2 Q. And, Mr. Butler while we're on the topic of correcting some of
3 your remembrances which I know was difficult, I want to take you back to
4 the -- just briefly to the intercept between Jokic and Viletic and I think
5 you had said that you had thought that Mr. Jokic had identified that
6 person as Miletic and we reviewed his transcripts and he said he didn't
7 remember. So --
8 A. So I stand corrected on that.
9 Q. I think you must be thinking of someone else on that point. If
10 you remember who it was, maybe we'll find out?
11 A. Clearly I attribute it to him so I guess don't remember at this
13 Q. Well. All right. Now, I want to first take you to, as you know,
14 you on cross were talk -- were questioned about the security branch and
15 the October 1994 document. I just want to ask you. Would a brigade chief
16 of security, if he was informed of an operation to -- to detain, transfer,
17 and kill prisoners, would he have a duty under the rules as you knew them
18 to report that fact to his commander?
19 A. Well, on a number of levels I would say yes. I mean, certainly
20 with respect to killing the prisoners it goes back to the obligations of
21 not following law -- orders that are unlawful at face value. So I mean,
22 that's at the first level. I mean, other issues with respect to the
23 detention and transfer, those are not functions that a security officer in
24 and of himself can accomplish with the resources at his disposal. He is
25 going to have to, as a matter of practicality, coordinate these issues
1 with his appropriate commander in order -- if for no other reason than to
2 get access to the materials that he needs or the resources that he needs.
3 Q. All right. And taking you briefly to that October 1994 Mladic
4 document, was there anything in that document that would undercut this
5 chief of security's duty or obligation to inform his commander of such
7 A. No, sir. I mean I -- again, it goes back to the definition of
8 what a counter-intelligence job or counter-intelligence mission is or is
9 not, and certainly I think that my reading of the JNA materials reflects
10 the fact that dealing -- you know, issues dealing with prisoners of war
11 are not a counter-intelligence function. They are a command function.
12 Q. All right. In a similar question, does anything about that --
13 that 94 document provide the chief of security for the corps any authority
14 to prevent the chief of security for the brigade to report that up the
15 chain to his commander?
16 A. I'm sorry, I don't understand the -- the chain of --
17 Q. Okay. I'll try to slow down. Does the -- does that document
18 provide the chief of security of the corps any authority to prevent the
19 duty of the brigade security officer that we have just talked about to
20 report those --
21 A. No, sir, I don't believe it does. Again in this juncture because
22 those functions are not counter-intelligence functions. They are
23 functions of command.
24 Q. Okay. And you've also -- you've already talked about the -- the
25 duty of a brigade commander to take disciplinary measures again the chief
1 of security. Does -- do you see anything in Mladic's instructions that
2 would interfere with that and what you've already talked about? I don't
3 want to go over the ability of the corps commander or the brigade
4 commander to initiate actions against a chief of security that was
5 committing some sort of crime or infraction.
6 A. No, sir. I mean, it lays out the process to be followed. It
7 doesn't say that it can't happen.
8 Q. All right. Now, I'd like to go to 65 ter 426. You talked about
9 the military lexicon, the JNA, this big red book, I think you've referred
10 to where you got the definition of asanacija. You spoke about that with
11 Mr. Haynes. I just want to get that up on the screen and make sure that
12 you've been -- we know what you're talking about.
13 Page 4 in the B/C/S and page 2 in the English.
14 A. Yes, sir, this is it.
15 Q. All right. That's the -- that's the Krstic exhibit that --
16 A. Yes, sir.
17 Q. That defined what you were talking about. Okay. Thank you.
18 All right. Now, Mr. Haynes also mentioned -- had you confirm that
19 you had not talked to Vinko Pandurevic. Were you aware that
20 Vinko Pandurevic had made any -- any comments to Eileen Gilleece about
21 your report, especially the -- your comments about the 15 July interim
22 combat report?
23 A. Yes, sir, I was.
24 Q. All right. And would the killing of 20 or 30 pigs in -- amount --
25 and cleaning -- cleaning them up from a battlefield area, would that
1 amount to asanacija to you?
2 A. A technical sense it would be. In the practical sense of
3 reporting it up to the corps commander, I don't see it as reasonable under
4 the circumstances.
5 Q. All right.
6 A. Particularly those circumstances that existed on 15 July 1995.
7 Q. All right. Mr. Haynes also talked to you about your -- your issue
8 where you basically said Vinko Pandurevic still retained command of the
9 Zvornik Brigade even though he was -- was out of the zone, and you had
10 mentioned that -- I won't go through all your answer, you'd mentioned
11 hearing information of Colonel Trivic from the 2nd Romanija Brigade.
12 A. Yes, sir.
13 Q. Now, I've got a statement, Colonel Trivic made in an interview on
14 24 January 2002, that I don't think you were part of but I want to -- want
15 to run this by you to see if you agree or disagree with what he's saying
16 and how it may incorporate into your answers to Mr. Haynes. And it's --
17 I'll just -- I'll just read this out. We're talking about Mirko Trivic's
18 chief of staff who is Vidovic Radovan, a lieutenant colonel, and I ask:
19 "And when he was in command of the unit when you were in Srebrenica, what
20 were his responsibilities? I mean, did he have the same responsibilities
21 as the commander?"
22 Mirko Trivic says: "You're entering a topic that someone can
23 write a Ph.D. on. He had the right to make decisions. He had the right
24 to make decisions that would not interrupt the status in the zone without
25 consulting me, and anything that would disrupt the system that was
1 established or was threatening to disrupt the system he had to report to
2 me. He had to report to me and then eventually make some suggestions that
3 is this or that should be done and based on my answer, approval or
4 disapproval, he was supposed to act."
5 Now, apart from that statement about the Ph.D., how does this
6 comment --
7 MR. HAYNES: I'm sorry, how can you take out the comment of the
8 Ph.D.? It's an intrinsic part of what Colonel Trivic said.
9 MR. McCLOSKEY: I can agree that it's a good document for Ph.D.
10 JUDGE AGIUS: I think technically he's -- Mr. Haynes is correct.
11 MR. McCLOSKEY: Mr. President, do you want Mr. Butler to comment
12 on the Ph.D.? I'm just asking him not to.
13 JUDGE AGIUS: Not necessarily, but the objection is that you are
14 extracting that part and asking Mr. Butler or leaving him no choice to
15 comment on that if he wishes to. So I would suggest that you proceed with
16 referring him to the entire, and if he wants to comment on that he
17 comments. If he doesn't, he doesn't.
18 MR. McCLOSKEY: Thank you. Just -- all right.
19 Q. Mr. Butler, can you comment on -- on this at all as it fits into
20 your analysis, especially going back to your discussion on this point with
21 Mr. Haynes.
22 A. Yes, sir. I mean, it is a -- it dovetails with my understanding
23 about the rules of command, you know, as they were applied in the JNA --
24 or as they were written in the JNA regulations and applied by the VRS at
25 the time. I place much weight on that particularly given the fact that at
1 the time Colonel Trivic was a contemporary of Colonel Pandurevic. And
2 with respect to where he was and what he was doing, he was in the
3 identical command situation of Colonel Pandurevic down at Srebrenica with
4 the operations of his brigade in his brigade zone being controlled by his
5 chief of staff. So I give that great weight.
6 Q. Okay. Let's go on. You were asked about the presence of
7 General Mladic on the 14th, and you talked about him being in Belgrade.
8 And can we go to 65 ter 532. And as that's coming up, do you recall a
9 General Elliot?
10 A. Yes, sir, I do.
11 Q. All right. And can you take a brief look at this statement of
12 General Elliot. Does that have anything to do with your conclusion about
13 the whereabouts of General Mladic on the 14th and 15th?
14 A. Yes, sir, it does. It is in large part what I base my knowledge
16 Q. Okay. All right. You also spoke -- you were asked about the
17 relationship between the VRS and the Presidency, and I think you spoke
18 briefly of the -- President Karadzic trying to fire General Mladic. Can
19 we go to document 65 ter 3160.
20 And as that's coming up, Mr. Butler, you will see that it's a
21 5 August 1995 from the Main Staff under the name of General Mladic. And I
22 don't want to go into this in detail, but we can see that its entitled
23 "Renaming of the Main Staff of the VRS as the General Staff" and more
24 importantly for my purposes "and the appointment of General Mladic as
25 special advisor to the Supreme Commander."
1 Do you remember this document?
2 A. Yes, sir, I do.
3 Q. And just briefly as you can, what does it, if anything does it
4 have to do with your testimony about Karadzic firing -- trying to fire
6 A. Well, at this point in time as a way of trying to fire Mladic
7 essentially what they're doing is kicking him upstairs. They're taking
8 him out of the command of the VRS or attempting to and making him a
9 special advisor which essentially strips him of all command authority over
10 the army. As part of this, the Main Staff and a number of the general
11 officers as well as a number of the corps commanders refused to follow
12 this order and in fact published a letter, an open letter, back to the
13 president reaffirming their support of General Mladic. In effect, you
14 know, I guess the phrase is mutiny, where they took them -- you know, they
15 essentially collectively disavowed that they were going to follow an order
16 from their commander-in-chief or in this case the Supreme Commander. It
17 was about a month and a half crisis before it was finally resolved.
18 Q. Okay. Let's go to 65 ter 1026. And this is from the Main Staff
19 of the Army of Republika Srpska, 5-6 August 1995 to the National Assembly
20 of Republika Srpska, to the President of Republika Srpska. Again we don't
21 need to get into this in detail, but is this what you were talking about?
22 A. Yes, sir.
23 Q. And this is from the generals?
24 A. Yes, sir.
25 Q. Okay. If we look at -- let's go to page 2 of the English.
1 Basically the first page is a statement in support of General Mladic. And
2 we see the people that are on it, Mladic, Milovanovic, Gvero, Djukic,
3 Tolimir, Skrbic. I won't read all of them.
4 I don't see General Miletic on this. Do you have any information,
5 any clear information about -- about why General Miletic isn't on this?
6 A. No, sir, I don't.
7 Q. Okay.
8 A. He's not the only the general that's not on it but I don't know
9 why he's not.
10 Q. Okay. And on the same subject, did President Karadzic ever
11 initiate any kind of investigation involving the events of Srebrenica?
12 A. Oh, I'm aware of two, one of them which was initiated by
13 President Karadzic which I believe was either late 1995 or early 1996, and
14 there was also an investigation initiated by the military prosecutor's
15 office at approximately March or April of 1996. So they may have been
16 under the umbrella of the one investigation but those are two I'm aware
18 Q. Okay. Let's go to 65 ter 22. It talks about a -- starting an
19 investigation to investigate the discovery of two bodies at Pilica. Is
20 this one of the things you were referring to?
21 A. Yes, sir.
22 Q. All right. Let's go to 65 ter 21. Well, which one? It's
23 obvious, but let's go to 65 ter 21 now.
24 A. I'm sorry, which -- I mean, this is the order by the president.
25 Q. All right. And now at 65 ter 21, this is a 1 April document. Do
1 you know how this document relates to the previous document?
2 A. I believe it's a supplemental part of it, I mean although this
3 one, I believe, is more affiliated with the Main Staff and military
4 prosecutor's office.
5 Q. Okay. All right. Now let's go to 65 ter 23. And that first page
6 that we see in B/C/S is 23 September, and it -- it says: "Enclosed here
7 with is a report of the Ministry of Interior with information concerning
8 the period when Srebrenica was liberated. Minister Dragan Kijac." And
9 then we see the body of it the next -- on the next page. The B/C/S
10 body -- should be page 2 of the B/C/S. There we go.
11 What is this, Mr. Butler, briefly?
12 A. Again, this is the two components that were investigating. One
13 was the military prosecutor's office. The other one was the MUP, the
14 civilian -- the Ministry of the Interior, I should say. And this is the
15 report from the Ministry of Interior on the results of their
17 Q. And what's the gist of their results?
18 A. Well, if I recall correctly, the gist of their results was
19 something along the lines of "We found no evidence that the army did
20 anything and it is our conclusion that the Muslims probably killed
22 Q. All right. Well, there's a bit more in there about that but I
23 won't get into it.
24 All right. You'd also talked about Hotel Fontana receipts that
25 you had thought Mr. Beara might have been on one of them and then you said
1 that you didn't think he was on one of them, so I've got the Hotel Fontana
2 receipts for you to go through briefly so we can clarify that. 65 ter
3 457. And if we could -- yeah. Let's just give you the whole -- we've got
4 a folder of some of these, Mr. Butler. This is on tab 10.
5 And just to clarify it, I think your second recollection was
6 better, that he was -- that he is not -- having reviewed this, Beara is
7 not on these documents. But a few people are, so just to clarify what
8 this is, can you go to page 2 in the English.
9 A. Yes, sir.
10 Q. What do you make of this? It says 31 July on it and we see some
11 people's names on it, especially Colonel Popovic. Do you recall what your
12 analysis of this resulted in or ...
13 A. Yes, sir. It corresponds to how many days these individuals had a
14 room at the Hotel Fontana. And of course the practice was the military
15 would stay there and that at the end of each particular month the
16 Hotel Fontana would send a bill to the Bratunac Brigade to be paid. This
17 was a common practice not only for the month of July but many of the other
18 officers of the Bratunac Brigade who didn't have houses there also stayed
19 at the Hotel Fontana.
20 Q. Okay. And I think we can state for the record there is no mention
21 of Mr. Beara on this document?
22 A. Correct, sir.
23 Q. All right I'm not going to ask you any more about it. Let's go to
24 the area where I think it was Ms. Fauveau was asking but the -- I think it
25 was a May document from Milovanovic talking about taking UN hostages and
1 she was asking you about potential Drina Corps involvement in that and you
2 had said you had inferred Drina Corps involvement in some of it.
3 Let's go to 65 ter 3161 to try to clear up that issue a bit.
4 Sorry, that's -- yes, 3161. This is a 27 May document from the
5 Drina Corps in the name of General Zivanovic, and it does -- I'm sorry, I
6 guess we need a little help with Mr. ELMO.
7 We can see it does make reference to the Main Staff order of
8 27 May, 03-4/1037. And I want to take you to the next page, page 2 in the
9 English, and it lists the number of -- number of Drina Corps brigades to
10 get involved in this. And if we can go down.
11 Have you had a chance to see this document before?
12 A. I don't believe so. I may have during proofing, but I just don't
13 recall at the moment.
14 Q. All right. Then let me just call your attention to the -- it
15 says: "The 1st Zvornik Brigade have two members at the command post and
16 the BRAG firing positions." What does this -- how does this fit into your
17 conclusions to Ms. Fauveau about the Drina Corps involvement in this UN
18 hostage business?
19 A. Sir, I mean, again, it is all the issue of the fact that it was
20 clear a little bit earlier in this where they were talking about, you
21 know, When you take UN people into custody, here's how your going to
22 deploy them out. So obviously they were a part of it.
23 JUDGE AGIUS: Yes, Madam Fauveau.
24 MS. FAUVEAU: [Interpretation] Mr. President, I'd like to avoid to
25 have -- this order of General Zivanovic has to do with something with
1 something very specific, so I would like to see paragraph 1 of the order
2 of Mr. Zivanovic in that case.
3 JUDGE AGIUS: Mr. Haynes?
4 MR. HAYNES: Can we see it in English, please?
5 JUDGE AGIUS: Do we have it in English first of all? Okay.
6 MR. McCLOSKEY: I apologise for going through this quickly. I
7 would normally have spent more time on it. But there it is.
8 JUDGE AGIUS: All right. Ms. Fauveau needs to see page 1 of the
10 MR. McCLOSKEY: I think that's page 1.
11 JUDGE AGIUS: But when she says page 1, I assume it's from the
12 very beginning.
13 Yes, Madam Fauveau.
14 MS. FAUVEAU: [Interpretation] Yes, Mr. President. I need indeed
15 to see paragraph 1.
16 JUDGE AGIUS: Can you scroll -- yes. That's it.
17 MS. FAUVEAU: [Interpretation] And could the witness tell us in
18 which region or area is the place where the prisoners were to be taken.
19 JUDGE AGIUS: Yes, Madam Fauveau, thank you.
20 Mr. McCloskey -- Mr. Butler, first of all, are you in a position
21 to answer or give us information?
22 THE WITNESS: I believe if you scroll down or scroll to page 2 it
23 lays that out, talking about -- it's the 5th Podrinje shall capture and
24 disarm UN members blocked in that particular area. They will in sequence
25 notify the command, the 5th BVP is, of course, the 5th military police
1 battalion who will take them over and then the Drina Corps distributes
3 JUDGE AGIUS: Okay. Let's proceed with your next question,
4 Mr. McCloskey, please.
5 MR. McCLOSKEY:
6 Q. All right. Let's go to 65 ter 3162 to see if there was any action
7 taken on this Drina Corps order. This is a Zvornik Brigade daily combat
8 report to the command of the Drina Corps, and -- I hope it's in e-court.
9 Okay. And it's what we've become used to seeing and as it's coming up
10 I'll just start looking at a bullet point under bullet point 3, and it
11 says: "In the brigade ZO," zone of operations, I believe, "there are two
12 UNPROFOR members who were captured in the area of Gorazde. They are being
13 treated pursuant to instructions from the command of the Drina Corps."
14 What does this indicate to you, Mr. Butler, relating to these
15 orders that we've been looking at?
16 A. Could I ask you to go to page 2 of the English document, please.
17 I don't see that.
18 Q. Yes. So everyone can see that. That is on page 2. Up at the
20 A. Again I guess because of the time sequence, I mean, I -- it's
21 related to that order.
22 Q. Okay. Let's go to another area. Mr. Lazarevic was asking you
23 questions about the locations of various PJP units and other MUP units on
24 the important days of the 12th and 13th of July and you did make some
25 reference to reviewing certain documents. What I want to ask you is did
1 you -- did you review 65 ter number 92, which as it comes up is a -- is a
2 report that has no front page and a scrawled -- the scrawled name of
3 Borovcanin on the back? Is this a report that you've had a chance to
5 A. Yes, sir.
6 Q. Do you recall where this report came from?
7 A. Vaguely. I wouldn't want to speculate on -- on the origins of it.
8 I mean I think I remember, but I --
9 Q. All right. This is the subject matter of a stipulation between
10 myself and Mr. Lazarevic, Mr. President, that we would stipulate that
11 this -- this report was provided to the Office of the Prosecutor by
12 Mr. Vasic during the investigation and that it is not complete because
13 there's pages -- there are clearly pages that are not there that you will
14 be able to see when you examine it. And the name on the bottom of it,
15 Ljubisa Borovcanin, is not the signature of -- of the accused in this case
16 but that it is a report -- Mr. Lazarevic from him. Mr. Lazarevic if he
17 has anything to add or clarify or object to, I would invite him to.
18 MR. LAZAREVIC: Yes, Your Honour, if I can very briefly explain.
19 I had a conversation with Mr. McCloskey earlier this morning regarding
20 this document because I noticed that he intends to use this document in
21 re-examination of Mr. Butler, and indeed we did stipulate that this
22 document is not complete, that there are pages missing, that it is
23 signed -- it bears the signature Ljubisa Borovcanin, but that actually
24 that this is not the hand signature of Mr. Borovcanin. But there are a
25 couple of other things that I wanted to ask Mr. Butler since I didn't have
1 the opportunity to ask Mr. Vasic, who was supposed to testify on this
2 document since he was withdrawn from Prosecution list. So the only point
3 that I wanted to make at this time is to just to ask the Trial Chamber to
4 allow me three, literally three questions to Mr. Butler regarding this
6 MR. McCLOSKEY: No objection, Mr. President.
7 MR. LAZAREVIC: [Overlapping speakers]
8 JUDGE AGIUS: So you will need to allow five minutes --
9 MR. McCLOSKEY: Perhaps we can do it right now as we're on this
11 JUDGE AGIUS: All right. If there is no objection. Yes, go
12 ahead, Mr. Lazarevic.
13 Further cross-examination by Mr. Lazarevic:
14 Q. [Interpretation] Mr. Butler, do you see this document before you,
15 P0092? And of course you can look at the English version, page 1 of the
17 A. The Registrar scrolled me to page 1 on the -- yes, sir.
18 Q. Can you see who the document was sent to?
19 A. You may have to scroll up a little bit further. It's not evident
20 from -- okay.
21 Q. Of course you can look at the entire document, but I'm telling you
22 that there is not a single trace that would indicate who the document is
23 addressed to or sent to.
24 A. I'm sorry, it doesn't appear in -- I don't know that I can infer
25 that from where it would be going from the actual body, you know, but
1 somebody's making a report. I don't know who they're reporting to.
2 Q. Thank you. I'm also putting to you that neither this document nor
3 any other piece of evidence points to the period of time when the
4 document -- this document was made. Do you accept that?
5 A. Yes, sir. I mean, well, it -- it contextually discusses the time
6 period. I don't think that there is anything in the document which tells
7 us when it was drafted.
8 Q. There is one other thing I want to put to you. Nowhere in this
9 document is the title thereof contained. In other words, regular combat
10 report or interim combat report, any title of that sort; is that right?
11 JUDGE AGIUS: Just one moment before you answer that question.
12 Yes, Mr. McCloskey.
13 MR. McCLOSKEY: I'm sorry, I was just stretching my legs.
14 JUDGE AGIUS: All right. That's an innovation.
15 THE WITNESS: Yes, sir. I mean -- again, I guess because of
16 whomever provided it - I guess it would be Vasic - there appears to be
17 some of the normal report header data excised out. So it is, I agree,
18 it's impossible to tell. It's not consistent with, for example, the Vasic
19 documents that we have where he's reporting back up his chain on events
20 where you have the normal MUP corresponding numbers and everything else.
21 So it is definitely in this sense, you know, a block of context with
22 nothing surrounding it.
23 MR. LAZAREVIC: Precisely so. Thank you, Mr. Butler. I have no
24 other questions on this topic.
25 JUDGE AGIUS: Thank you, Mr. McCloskey.
1 Further re-examination by Mr. McCloskey:
2 MR. McCLOSKEY:
3 Q. All right. Let's go to 65 ter 3163 and this is an area where
4 Ms. Fauveau was talking to you about the whereabouts of General Miletic.
5 She said specifically from the 2nd to the 12th of July. And are you
6 familiar with some of the statements of General Milanovic talking about
7 where he was, where Milanovic was, and -- and where Miletic was in the
8 period of -- in July generally?
9 A. I don't know if General Milovanovic had been interviewed while I
10 was still here. I think I know a general thrust of his story but I don't
11 think I'm really familiar with the statements.
12 Q. Okay. If you could just take a look, let's go to page 2 of this
13 document. It's a short information report from General Milovanovic and
14 where he has been provided the -- from 1995 all the daily combat reports
15 from the Main Staff to the Presidency in the possession of the Office of
16 the Prosecutor and has checked the -- as you can see from the document,
17 checked to see whose name they went out under and has noted that down
18 there. And if we could -- let's -- let's go to our period of time. I
19 think it's on the second -- or third page of the English. 31 May through
20 September 4. All those ERNs were type signed by Radivoje Miletic. Does
21 this correspond with information you have about where Milovanovic was at
22 this time period, May through September --
23 JUDGE AGIUS: Yes. Before you answer, Mr. Butler. Ms. Fauveau.
24 MS. FAUVEAU: [Interpretation] Mr. President, at this stage of the
25 procedure the Defence of General Miletic does not contest the fact that
1 this document, it's a report, it's a regular report of the situation on
2 the front, on the lines, and this would have been written with the type
3 written name of General Miletic, but because of the testimony of this
4 expert witness who says when there isn't the letters SR to mean read
5 personally, he cannot affirm that he was there. We do not contest the
6 fact that the report for that period was in the name of General Miletic.
7 Perhaps this could expedite a bit the questioning by the Prosecutor.
8 JUDGE AGIUS: Yes. Thank you, Madam Fauveau.
9 Yes, Mr. McCloskey.
10 MR. McCLOSKEY: Yes, it may. If she doesn't object to this
11 document going into evidence and I can clarify a couple of issues on what
12 she has just said and --
13 JUDGE AGIUS: I saw her nodding. She wouldn't object.
14 MR. McCLOSKEY: Okay. All right.
15 JUDGE AGIUS: So you may perhaps take her advice and act on her
16 suggestion and move forward. Thank you.
17 MR. McCLOSKEY:
18 Q. And, Mr. Butler, given what you have testified to about these type
19 signed things and what she just said, nevertheless would identifying when
20 a document goes out under General Miletic's name, especially a study of
21 all these documents, would that assist an investigator or an analyst like
22 yourself in -- in determining where a person was working or whether in
23 fact they were working on the issues in the army?
24 A. Well, yes, sir. I mean, you know, granted in many cases we've
25 heard, you know, the names go out but maybe it is a subordinate who is
1 authorised to sign for them. But the fact this those documents are going
2 out under is that particular individual's name again is a reflection that
3 that person is performing his function, and that's why I mean from the VRS
4 perspective they -- they -- for whatever the reason, they differentiated
5 the responsibilities so that when General Milovanovic wasn't performing
6 his functions at the headquarters in -- at the Main Staff headquarters
7 that these documents were going out under General Miletic. So it meant
8 something to them and as a result they differentiated.
9 Q. All right.
10 MR. McCLOSKEY: Mr. President, Ms. Fauveau did specifically
11 mention on her cross documents from 2 to 12 July and we have spoken and
12 she has agreed that we can offer those into evidence, those, and I will
13 have a list of those and not take Mr. Butler through all of them. Thank
15 Q. Okay. Mr. Butler, another -- try to get through this quickly.
16 When you're testifying about Potocari a bit, you -- you made a statement
17 that you -- I'll try to paraphrase it. You didn't see in the reporting
18 chains what you knew to be going on or what we knew to be going on in
19 Potocari. You didn't see that through the reporting chain of the
20 military. That was pretty vague. What do you mean by that, I mean, given
21 that you and I went through each of those documents.
22 A. Well, what I -- to be clear you didn't see, for example, in great
23 detail the situations as being described -- I mean, the Bratunac daily
24 combat reports or the Zvornik, you know -- well, particularly with
25 Potocari with the Bratunac. You got a glimpse perhaps. But information
1 was going up and certainly I think perhaps the clearest view of what you
2 get is the 13 July report by Colonel Jankovic going up to his higher
3 headquarters, or in this case it would be the Main Staff, reporting on the
4 large nuggets of data with respect to the completion of moving people out
5 and what the situation is on the ground at Potocari.
6 You also had to some degree with respect to the convoys you had
7 telephonic which is the intercepts information going up the chain of
8 command, but what you didn't see going up the chain of command is issues
9 related to separations or things of that nature.
10 Q. All right. Now, let's -- there was also discussion with
11 Ms. Fauveau about 155 and whose extension that might have been or what
12 number that was and -- and let's -- if we could go to 65 ter 3175, I'll
13 try to get through this. I'm not sure it's a document you've seen, but
14 it's dated 17 May 1995. It's -- you can see it's from the Bosnian army.
15 And to briefly summarise it, it appears the Bosnian army laid in ambush
16 and killed two Serb soldiers and received some paper on them with
17 General Mladic's and others' names on them with extensions next to
18 their -- or numbers next to their name. Have you seen this before?
19 A. No, sir.
20 Q. Would this be something that would be of any value to you in
21 determining this issue of phone numbers and who was at what extension?
22 A. It would in the sense that it confirmed information and as I'm
23 trying to scroll through it real fast, given the place where it appears
24 that the information was -- was captured or the information was taken from
25 the soldiers who were ambushed, I think the location, it actually
1 corresponds with an area that the members of the communications regiment
2 would have been doing guard duty around the headquarters. So as a member
3 of a communication regiment, he may very well had more detailed
4 information on these phone numbers than your average soldier might have
5 expected. So there is a sense of credibility to this, and certainly when
6 we would dovetail this against the phone numbers that we would have in
7 various Republika Srpska or VRS documents that list that, I mean, it would
8 tend to confirm that.
9 Q. All right. Let me show you another Exhibit 3176 that we found
10 recently --
11 JUDGE AGIUS: Yes, Madam Fauveau.
12 MS. FAUVEAU: [Interpretation] Mr. President, I have to object
13 because I think we're losing time. The documents 155 are talking about
14 the documents on which General Milovanovic gave testimony for some time,
15 document 30/5, and this was shown to General Milovanovic and was not. So
16 I don't really see why now this should be examined by this witness, the
17 witness we have now. This does not sustain the arguments during the
18 direct examination, so I really don't see what we're doing now.
19 This being said, I do not oppose to the exhibit we now have here,
20 the one which has just been commented upon.
21 JUDGE AGIUS: Yes. Mr. McCloskey do you wish to comment on that
22 on the basis that it's not unusual that the same document is shown to
23 different witnesses?
24 MR. McCLOSKEY: The exhibit I'm about to show which I think drew
25 the objection is this Main Staff phone book and I do not have it as
1 something that's in evidence and if she has no objection to it going into
2 evidence we can get through it rather quickly, but it does specifically
3 respond to the issue of who was at 155 which was a big issue on cross.
4 MS. FAUVEAU: [Interpretation] This would not be a problem, but
5 for -- about 155, but this number, has this number been used, and in this
6 conversation is it -- this is just a phone number of the -- I think it's
7 perfectly clear. It's the phone number of the Main Staff.
8 JUDGE AGIUS: Yes, Mr. McCloskey.
9 MR. McCLOSKEY: We can argue about what it means but she's opened
10 this --
11 JUDGE AGIUS: Well, the witness has already testified on that
12 number, saying that it's an extension, according to him.
13 MR. McCLOSKEY: Well, I've got the Main Staff phone book which I
14 think will --
15 JUDGE AGIUS: Yes, yes.
16 MS. FAUVEAU: [Interpretation] Mr. President, precisely. There
17 have been so many witnesses here who were members of the Main Staff, and
18 the Prosecutor had these exhibits. So why were they not given to those
19 people who were in a better position to appraise this, the question of the
20 telephone book. Perhaps it was never seen by the witness.
21 JUDGE AGIUS: It can become an argument later on, Ms. Fauveau.
22 Let's proceed. Let's proceed. Go ahead, Mr. McCloskey.
23 MR. McCLOSKEY:
24 Q. Yes, B/C/S page 16, English page 2.
25 Again, Mr. Butler, I don't know if you've had chance to see this
1 document before. I just became aware of it.
2 A. No, sir. I don't recall having that document available to me
3 during my tenure here.
4 Q. Okay. And we need to go down to near the bottom of the page where
5 it's entitled "Chief of staff." And this thing was dated, I think I saw
6 August of 1995, and we see, again, is this just -- and I know this is a
7 quick review, but does this assist your analysis on the 155 issue?
8 A. Yes, sir. It certainly -- it confirms the earlier views that I
10 Q. All right. All right. Let me continue. There was also questions
11 from Ms. Fauveau about directive 7 to you and especially the part about
12 the Drina Corps, the last part, and she asked you something related to
13 whether that last part was part of the old JNA All People's Defence or
14 something -- something like that, but let me read this out to you: "By
15 planned and well-thought out combat operations create an unbearable
16 situation of total insecurity with no hope of further survival or life for
17 the inhabitants of Srebrenica and Zepa." Aside from this reference in
18 directive 7 which of course comes from the level it came from, are you
19 aware of a brigade or a lower echelon document that makes a very similar
20 statement to this in regard to Srebrenica?
21 A. Yes, sir. If I recall there's a Bratunac Brigade document that
22 reads if not the same language somewhere along the same lines.
23 Q. All right. Let's go to 65 ter 3177. It is a 4 July 1994,
24 Bratunac Brigade report for the brigade members and it is in the name of
25 the then commander Slavko Ognjenovic. And I just want to refer you to --
1 it should be page 3 in the English, and it's under paragraph 2 in the
2 B/C/S, but it's at the end of -- the very end of paragraph 2 in the B/C/S,
3 and it says: "There will be no retreat when it comes to Srebrenica
4 enclave. We must advance. The enemy's life has to be made unbearable and
5 their temporary stay in the enclave impossible so they leave the enclave
6 en masse as soon as possible realising that they cannot survive there."
7 Is that the thing you remembered?
8 A. Yes, sir. That's the terminology I remember from this document.
9 Q. All right. Getting to the area of General Gvero. Mr. Josse went
10 through with you in some detail your views and his questions related to
11 the morale part of the job and the -- your view of the propaganda part of
12 the job, and we've been able to find some documents outside of the
13 July '95 time frame in the name of General Gvero, and if we could go -- I
14 want to ask you about them. 3179 would be the first one, and if you
15 could --
16 JUDGE AGIUS: Mr. Josse.
17 MR. JOSSE: I think I'll make the objection now if I may. I mean,
18 Mr. McCloskey was good enough to alert us to this yesterday.
19 Your Honour, briefly, when I cross-examined on this issue on the
20 30th of January at page 20677, I conceded in the course of the
21 cross-examination that propaganda may have been part of the issue
22 transcript and the transcript says import of morale, but what you should
23 have said is that they dealt with morale, not propaganda. In other words,
24 at no point was I suggesting that propaganda was not part of the job nor
25 did I ever suggest that it wasn't an important part of the job.
1 JUDGE AGIUS: In any case, you had dealt with that area as well in
2 the course of your cross-examination of a previous witness. I am not
3 mentioning his name. It starts with a T, precisely because I can't
4 remember whether he was a protected witness or not. But in any case,
5 let's hear the question because we haven't heard the question as yet.
6 MR. McCLOSKEY:
7 Q. I have basically two documents that were in Mr. Gvero's name. The
8 first is dated 8 February 1993. It's entitled report of the state of
9 morale in the army of Republika Srpska. Mr. Butler, if you could look at
10 the entire document. It should be in your tab 59.
11 MR. McCLOSKEY: And, Mr. President -- my intention would be to ask
12 Mr. Butler to review this as briefly as he can and ask him to -- if it
13 clarifies or responds to the questions and the insinuations that were
14 brought up by my colleague. He questioned him at length about the morale
15 job and the propaganda job, and he attacked him very hard on his --
16 Mr. Butler's emphasis on propaganda. So I think this is an area that I
17 absolutely have the right to get into. I'm not going to spend long on it,
18 I don't want him to evaluate the whole document, but they spent a lot of
19 time on this issue and --
20 MR. JOSSE: In two sentences, my cross-examination went to the
21 emphasis of the report on propaganda rather than morale. The witness
22 conceded that morale as opposed to propaganda was as important perhaps
23 more important than propaganda and he explained why he'd emphasised
24 propaganda over morale. That's something the Trial Chamber will need to
25 decide in due course. This doesn't take the matter any further in my
2 JUDGE AGIUS: Yes. Thank you.
3 MR. McCLOSKEY: Let me take you right back to the question so that
4 you have the full -- it goes -- you may recall this. He said: "First and
5 foremost this staff element was responsible for managing the
6 information/propaganda campaign and the support of the war aims." And
7 that's a quote from Mr. Butler's report. And then Mr. Josse says:
8 "That's not true, is it?"
9 Mr. Butler says: "I believe it is." He says: "You are saying
10 that the main role of the sector was propaganda rather than morale, are
11 you?" "Propaganda is a tool by which people use, you know, information in
12 order to impact morale. It's -- it's a component part of how it's done.
13 It's not a separate issue."
14 "Question: That may be right, but first and foremost that sector
15 dealt with morale. Propaganda may have been part of the issue and an
16 import of morale but what you should have said there is that they dealt
17 with morale, not propaganda. You said propaganda because it sounds worse.
18 That's the truth, Mr. Butler, isn't it?"
19 I mean, that kind of attack clearly opens the door to his client's
20 documents on morale and propaganda.
21 JUDGE AGIUS: Okay.
22 [Trial Chamber confers]
23 JUDGE AGIUS: Go ahead. Have you finished your question?
24 MR. McCLOSKEY: Again, I'd like him to take a look at this
25 document because what I've done is I've tried to find a -- what appears to
1 be a morale document and ask him about that to see if -- what he says
2 about that.
3 Q. And I know it's a quick read, Mr. Butler, but as we see this it's
4 a report on the state of morale in the army of Republika Srpska, dated
5 8 February 1993, is -- in your brief review of this report, does it fit
6 with your testimony and your report on -- on what you believe this branch
7 to be all about or partly about, I should say.
8 A. I mean yes, sir. I guess maybe the easiest way to get my point
9 across is if you go to page 11 of the English language version of this. I
10 mean, it -- it talks about the point that I tried to make. I mean,
11 that -- that propaganda is a means, is a tool by which morale is
12 influenced, and in fact that particular paragraph notes that fact.
13 Q. All right. It also mentioned some three quality papers,
14 Srpska Vojska. What's that?
15 A. That -- Srpska Vojska is the military magazine of the army of the
16 Republika Srpska. It was published monthly, I believe.
17 Q. And who was did -- who was it supposed to go to?
18 A. The target audience was the soldiers of the army.
19 Q. Okay. Now, can we go to page 8 of the English. And I'm sorry, I
20 don't -- but I don't think -- we may not -- basically, this document goes
21 through factual situations in each of the corps and here we see something
22 about the Drina Corps, and it talks about specific territory, towns,
23 information. How is it that the morale officer would be aware of this
24 kind of information?
25 A. Well, the morale -- or I don't want to say the morale officer
1 because it's more than that, but the assistant commander for morale at the
2 various levels has to have a clear understanding of what's been happening
3 and why because he's required to integrate his work into that in order to
4 support these specific issues, to be able to look at what has happened on
5 the ground and be able to highlight the positive things they want to be
6 able to emphasise for their soldiers. I mean, he's got to know that.
7 Q. Let's go to 65 ter 3180 and this is an article dated 15 July 1993.
8 It says author Major General Milan Gvero. This is from the publication of
9 Srpska Vojska and the subject is: Gvero describes the just struggle waged
10 by Serbs in Bosnia. It's entitled, Silk Cord for Alija. I'm not going to
11 read all of it but if we could all take a look at this.
12 It starts out: "The defensive and national liberation war waged
13 by the Serbs in the former Bosnia and Herzegovina has been underway for 16
14 months. Everyone knows that the Serbs did not want this war and that they
15 did everything possible to prevent it. The Serbs are well acquainted with
16 the horrors and hells of war. In the past they took part in all wars in
17 these parts and always suffered the greatest losses. They were victors
18 and they were on the side of the victors. In peacetime, their fate was
19 that of the defeated. They could not express themselves as Serbs so as
20 not to violate the pride of the few around them. But in this war which
21 they did not want and which was imposed on them, the Serbs had no choice.
22 They had to fight or disappear. They had to fight or face the suffering
23 and humility and death in large numbers. It was a question of fighting or
24 assent by the survivors of the now vengeful sinister Asiatic Turkish
25 oppression and constant threats by Ustasha knives and in Ustasha pits.
1 Exceptionally peace loving, tolerant and dignified the noble and
2 honourable Serbian people chose the path of self-preservation to defend
3 themselves and everything that makes a nation worthy of respect. A nation
4 of peace and tolerance --"
5 I won't go on. There's more similar and in the end it describes
6 how a silk cord would be used by the -- Alija Izetbegovic's own people to
7 pull around his neck and tighten it.
8 What is this? Does this have any function or object and, if so,
10 A. Well, I mean setting aside the actual language component, it -- it
11 addresses what I had discussed earlier was the fact that, you know, part
12 of the object of the maintenance and upkeep of morale that -- that all
13 modern militaries want to be able to do is to be able to have the soldiers
14 share the values and the goals of the institution that they're fighting
16 One of the re-occurring themes that goes through the Serb
17 propaganda and the military propaganda has always been the theme that we
18 are fighting a defensive war because if we don't fight this war, you know,
19 the spectre of genocide will be on us. And clearly given the historical
20 context of what happened there, it is going to be a powerful metaphor, and
21 that's going to evoke a reaction. This was one of the many themes that
22 was placed out there by the army as an attempt to get the soldiers, who
23 weren't necessarily buying into the political cause, to buy into at least
24 the necessity of having to fight to defend values that they were more in
25 tune with, their families and their houses and their very existence. So
1 this is -- this is propaganda 101 for lack of a better phrase.
2 JUDGE AGIUS: Mr. McCloskey, just to make sure you are aware of
3 this, you have only got 10 minutes left or, rather, we have only got 10
4 minutes left.
5 MR. McCLOSKEY: Understood, Mr. President.
6 Q. Mr. Butler, let's go to 65 ter 3184. This is a 21 September 1995
7 document from the sector on morale, religious and legal affairs and this
8 I'm asking you about because Mr. Josse was at some point was questioning
9 you about when you mentioned military courts and Mr. Gvero's
10 responsibility there he asked -- he was questioning why -- why you would
11 bring that up, because that had been moved over to the Ministry of
12 Defence, and you had an answer on that point. And I would like you to
13 just take a look at this document?
14 JUDGE AGIUS: Yes, Mr. Zivanovic.
15 MR. ZIVANOVIC: Sorry, Your Honour. May I consult my client just
16 for a minute? I don't --
17 JUDGE AGIUS: Yes, in the meantime, but let's proceed. In the
18 meantime, go ahead.
19 MR. McCLOSKEY:
20 Q. So, Mr. Butler, if you could take a look at that and I especially
21 would call your attention to page 6 --
22 A. Could you tell me what tab it is in mine?
23 Q. Sorry, it should be tab 4. The very last one. Sorry, the very
24 last one in your book.
25 A. Yes, sir, I have it.
1 Q. Okay. If you could take a look at that and it's again full of
2 lots of information about the ongoing situation. So try to catch up as
3 best you can. I only have one more document after this, but if we go to
4 what is 3 -- 3 (c) in the B/C/S, and it's page 6, paragraph (c). This
5 section began on page 5 by saying: "In view of the requirements of the
6 current combat situation and the objectives of the struggle of the Serbian
7 people, the following measures must immediately be taken in commands and
8 units at all levels." And it says various things.
9 We get to (c) it says: "Raise the level of responsibilities of
10 the officers for building discipline in units, raising the level of
11 discipline particularly in commands of all levels. Immediately take
12 appropriate measures for all cases of indiscipline that might have
13 negative consequences for the execution of combat assignments and the
14 lives of personnel." And this is what I wanted to ask you about
15 "immediately activate special military courts at brigade level in order to
16 protect the authority of the command system and discipline, and to prevent
17 personnel from leaving the units and other negative occurrences."
18 How does that fit into your answers to his previous questions on
19 this point when you were challenged?
20 A. Well, in this particular context, and it's provided for under law
21 wherein a declaration of the state of war is made, there is a provision
22 under law at the brigade level, literally that low, can essentially put
23 together its own military court and it's for summary judgement. It is a
24 negative motivational tool to be used to try soldiers accused of deserting
25 under fire, cowardice, things of that nature. I mean, there's positive
1 motivating of the soldiers and negative motivational factors. When we
2 talk about the military justice system in most countries, we can't lose
3 sight of the fact that justice is one goal of it and the maintenance of
4 good order and discipline is another goal of it. And these special
5 military courts are part of the tools that a commander had at these times
6 in his arsenal to ensure that the soldiers, you know, would not shirk from
7 their duty.
8 Q. Okay. Let's go to the last document. Going -- 4 August 1995, 65
9 ter 3182, your tab -- third from the last, I believe. 4 August 1995
11 A. Got it, sir.
12 Q. Again it's -- it's from General Gvero under his name to various
13 corps and other units describing the situation, and what I wanted to ask
14 you about in particular is -- starts on the bottom of page 3 and is
15 related to the topic you just mentioned. It says: "Unfortunately, even
16 some members of the army sometimes do not know what to do in a situation
17 where the population temporarily leaves the territory or in a more fierce
18 enemy attack and they too pass on and spread certain rumours that have the
19 effect of unsettling the population and units. All such members of the
20 army and civilians who play a part in passing on and spreading rumours
21 shall be identified and prosecuted, and a special unit will be made up of
22 these people to be used in the most complex combat situations."
23 All right. Well, we see prosecution. You've referred to that as
24 one negative inspiration. What do you make of this putting people in
25 complex -- the assistant commander for morale, legal and religious sending
1 this out? What is that?
2 A. It's all part of the -- I mean, it's all part of the message
3 that's going down to the soldiers and -- and their officers reminding them
4 that, you know, they have to use all of the tools at their disposal. I
5 mean, particularly in the context of the crisis that's now occurring, you
6 know, letting them now use all the tools at your disposal in order to
7 maintain good order and discipline among the troops. And in my
8 narratives -- not my narratives but in my brigade and corps combat reports
9 I believe I discuss the actual mechanics of these summary military courts
10 in detail so I won't get into them now.
11 Q. All right. Mr. Butler, thank you very much.
12 Thank you, Mr. President and Your Honours and everyone.
13 JUDGE AGIUS: Thank you.
14 [Trial Chamber confers]
15 JUDGE AGIUS: Mr. Butler, all long journeys finally come to an end
16 and yours is one of them. I can't thank you enough for having been so
17 patient with all of us. You've been here for almost a month. I don't
18 know if you have established a record, I'm not quite sure, but in any
19 case, we are very thankful and grateful for your availability and for your
20 testimony. I'm sure everyone will join me in wishing you a very safe
21 journey back home. Thank you.
22 THE WITNESS: Thank you very much, sir.
23 JUDGE AGIUS: We'll deal with the documents on Tuesday, not now,
24 because I don't know what to expect so I would rather -- yes, Mr. Bourgon.
25 Thank you, Mr. Butler you will now be escorted and given the
1 assistance you require.
2 [The witness withdrew]
3 JUDGE AGIUS: Mr. Bourgon, very quickly. [Overlapping speakers]
4 MR. BOURGON: Regarding the admissibility of documents,
5 Mr. President, we would like to proceed at least on behalf of the accused
6 Drago Nikolic in two different segments and to submit our arguments in
7 writing concerning the admissibility of the reports of Mr. Butler. So
8 I'll just say that as an advance issue that we'd like to discuss on
9 Monday. Thank you, Mr. President.
10 JUDGE AGIUS: Not on Monday, on Tuesday.
11 MR. BOURGON: On Tuesday, Mr. President.
12 JUDGE AGIUS: Thank you. So we stand adjourned until Tuesday
13 afternoon. It's Tuesday afternoon. In the meantime, please be informed
14 that we have extended, officially extended the end of the Prosecution case
15 till the 7th. Thank you.
16 One moment. I also wish to thank all the staff, the technicians,
17 the recorders, the interpreters. I know what all this means to you to sit
18 here for an extra -- to stay here for an extra hour and a half on a
19 Friday, and of course to everyone else thank you so much, and I want to
20 make sure that this is also conveyed to the superiors in each category to
21 so that they are aware of our appreciation. Thank you.
22 Have a nice weekend all of you.
23 --- Whereupon the hearing adjourned at 2.45 p.m.,
24 to be reconvened on Tuesday, the 5th day
25 of February, 2008, at 2.15 p.m.