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/ Colormap • Page 9025 • {1/152} (1)Friday, 23 March 2001 [Open session] [The accused entered court] --- Upon commencing at 9.25 a.m. (5) JUDGE RODRIGUES: [Int.] Good morning, ladies and gentlemen; good morning to the technical booth and the interpreters; good morning to the Registry staff, the counsel for the Defence and the Prosecution; good morning, General Krstic. We are here to take up our proceedings. We are in open session, (10)and we're going to have the witness shown in. The witness is from yesterday. Yes, Mr. Harmon. MR. HARMON: Mr. President, good morning; good morning, Your Honours; and good morning, Counsel. (15)This witness was testifying yesterday in private session.
JUDGE RODRIGUES:
[Int.] Okay. Let us move into private
session then.
JUDGE RODRIGUES: [Int.] I should like to take advantage of this opportunity, without entering into the debate, that we ought to be mindful of the fact that this is an international trial, and very (15)frequently national systems are not applicable here, simply speaking. And according to the Statute, national laws are not applicable here. They can be used to interpret our Statute. But having said that, let me give the floor to Mr. Visnjic, because I think that there has been something new presented by Mr. Harmon. Please continue. (20)
MR. VISNJIC:
[Int.] Mr. President, I should like to take
advantage of this opportunity to refer to what Mr. Harmon said a moment
ago, but I would try to do that by linking it up to the concrete situation
we find ourselves in. Perhaps the Prosecution finds themselves in a
difficult position when the Prosecution did not have this previous
(25)statement of the witness. But General Krstic did give his statement, in
JUDGE RODRIGUES: [Int.] In principle, we should bring (15)this to a close, this debate to a close. We did not envisage having a debate on this issue at this point, but as we have opened the debate already, I'm going to give the floor for the last time to Mr. Harmon to wind up.
MR. HARMON: I would just like to correct the record. We did take
(20)a statement from General Krstic - it has been admitted as an exhibit - and
an examination of that statement will reveal no description of any
ceremony that took place on the 13th of July or the 14th of July. The
first time a ceremony was raised in this trial was during the
cross-examination -- during the direct examination of the accused, when he
(25)described a ceremony where General Mladic appointed him Commander, and
(10) JUDGE RODRIGUES: [Int.] Now one final word, Mr. Visnjic. MR. VISNJIC: [Int.] Mr. President, just one sentence, continuing on from Mr. Harmon. The Defence wishes to stress another fact, and we'll leave it to (15)the Trial Chamber to judge, but General Krstic, in his statement, directly stated that he became Commander at a ceremony which occurred on the 20th or the 21st in the restaurant called Jela. So the Defence considers that that was sufficient basis for the Prosecution to contest that fact in its case in-chief. (20)Yes. That was in the statement given to Mr. Jean-Rene Ruez, on the 18th and 19th of February, 2000, which means before trial, for purposes of the record.
JUDGE RODRIGUES:
[Int.] Very well, then. Thank you.
We're not going to rule on the admission of this evidence which has been
(25)tendered by Mr. Harmon at this point. As you know, the Chamber will
MR. HARMON: Yes. Mr. McCloskey will take the next witness. (5)
MR. McCLOSKEY: Good morning, Mr. President and Your Honours. The
next witness is a Captain Koster. He is a Dutch officer that testified at
the Rule 61 hearing, and we played his video, and just as our background
road map, he will be called on to rebut the testimony of Witness DB, who JUDGE RODRIGUES: [Int.] Mr. Usher, would you please (20)bring in the witness.
MR. McCLOSKEY: You should have an exhibit, an aerial exhibit. JUDGE RODRIGUES: [Int.] Good morning, Captain Koster. Can you hear me? (25)
THE WITNESS: Yes, I can.
THE WITNESS: I solemnly declare that I will speak the truth, the whole truth, and nothing but the truth. (5) JUDGE RODRIGUES: [Int.] Thank you, you may be seated. WITNESS: EELCO KOSTER JUDGE RODRIGUES: [Int.] Thank you very much, Captain, for having come here. You will first be answering questions that will be put to you by Mr. McCloskey. (10)Mr. McCloskey, your witness. Please proceed. MR. McCLOSKEY: Thank you, Mr. President. • EXAMINED by Mr. McCloskey: • Q.: Captain Koster, what is your current position? • A.: My current position is being a company commander of a 13th Air (15)Mobile Battalion. • Q.: And were you in the Dutch army back in July of 1995, stationed in the Potocari compound in Bosnia? • A.: Yes, I was, sir. • Q.: And the Court is familiar with your initial testimony that you (20)gave some time ago, so we won't go into a whole lot of background on that, but can you tell us on July 11th what your particular assignment was in the afternoon, evening hours?
• A.: Yes, I can. My assignment was actually being the commander of the
troops who were outside the compound and guarding and guiding the
(25)refugees.
• A.: Approximately 50, sir. • Q.: And we're putting Exhibit 769 on the ELMO. I don't know if this is going to the outside, but I notice the witness's face is distorted, (5)which is not necessary. As I'm searching to find the ELMO, I notice that. JUDGE RODRIGUES: [Int.] The witness will testify in public, so appropriate measures need to be taken in that respect. THE REGISTRAR: It is not distorted. You just pushed the distort (10)button. That's why. The technician just informed me. JUDGE RODRIGUES: [Int.] I think that the issue has been resolved now. However, there seems to be a little problem. When we are watching the video, we see that we are in public session, but when we press the button for the ELMO, we see a distorted image on the ELMO. We (15)should like to see the video and not the distorted image of the witness. THE REGISTRAR: The first button. MR. McCLOSKEY: The first button, I have a nice shot of Judge Rodrigues. The second one I have a distorted shot -- JUDGE RODRIGUES: [Int.] Madam Registrar -- yes, that's (20)what we can see, on the second button, the video, but we would like to have the ELMO, the overhead projector, which is the second button, and on the second button there seems to be nothing.
MR. McCLOSKEY: I know when we switch courtrooms these things
happen. I requested prior to trial that these be looked into, and I hope
(25)we could finish. We can certainly go through testimony --
MR. McCLOSKEY: Thank you. • Q.: Captain Koster, if you could just take a look at this exhibit, and there's a pointer there. Do you recognise this scene? • A.: Yes, I do, sir. (10) • Q.: And could you, with your pointer, point out the area where you were stationed and your troops were responsible for the afternoon or evening hours of July 12th, 1995. • A.: Yes, sir. For me myself, I was positioned in this particular place. (15) • Q.: Near the crowd that's marked "people"? • A.: Yes, that's correct, sir. Also we had troops over here. We had troops -- • Q.: You need to sort of indicate, if you could, so we can tell from the record where you're talking about, just by something on the photo. (20) • A.: Okay. Troops guarding the people, troops in the vicinity of the holes of the former bus station, and also troops here, at the end of the road. • Q.: All right. That would be about how many metres down from where the crowd of people is in this shot? (25)
• A.: From this position to there, sir?
• A.: I guess it's about a hundred -- two hundred metres, I guess. • Q.: And what hours were you on duty in that area on the afternoon/evening of July 11th? (5) • A.: Eleventh. From the 11th, the afternoon, sir, I was on duty until approximately 8.00 p.m., and then I went up to the compound for approximately two hours, and then returned to my position, where I stayed the whole night, the morning, the afternoon of the 12th of July, and also the evening of the 12th of July. (10) MR. McCLOSKEY: Perhaps I made a mistake and I asked him about the 12th the first time. I meant the 11th, which he has responded to. Thank you, Captain Koster. • Q.: Now, while you were gone from the area briefly on the evening of the 11th, did you have a deputy that was in command while you were gone? (15) • A.: Yes, sir, he was. • Q.: And to your knowledge, on the afternoon or evening hours of July 11th, was there any vehicular traffic from the VRS military along that road? • A.: No, sir. I have not seen any vehicle movement, VRS vehicle (20)movement on that road, and neither I was reported to by my deputy on the 11th of July. • Q.: Was there some sort of roadblock or checkpoint there?
• A.: Yes. We installed sort of a roadblock to guide and to guard the
refugees, so a vehicle couldn't get through without being reported to me,
(25)without being seen by me.
• A.: Yes, sir. • Q.: Did you notice any VRS soldiers in this area around where the (5)people are, or anywhere around this compound, around this road, on the afternoon or evening of July 11th? • A.: Not on July 11th, sir. • Q.: Would that have been a significant event if VRS soldiers had been amongst those people or in this area? (10) • A.: Yes, sir. I would have seen them, I would have been reported, and also I guess the refugees would have panicked. So it's not been reported and I have not seen them. • Q.: Can you be sure that no VRS vehicle came through this area and no VRS soldiers were in this area on the evening or afternoon of July 11th? (15) • A.: Yes, I'm sure about it, on the 11th; yes, sir. • Q.: And how about on the 12th? What was the scene on the evening hours of the 12th, perhaps between 6.00 p.m. and 10.00 p.m.? • A.: In the evening we were told by the VRS that we had to clear the road from the refugees. The refugees had to stay off the road. So we (20)did. We kept the people off the road. And that's about it, sir. • Q.: So did you lose control of the road on the 12th? • A.: Yes, we did, sir. It was in the afternoon when the VRS started to transport the refugees. Then we lost control of the road, sir. • Q.: About what time in the afternoon did you lose control of the road? (25)
• A.: Well, the VRS arrived approximately 1.00 in the afternoon, and I
• Q.: So in the evening hours of July 12th, could there have been VRS traffic along that road in this area on the diagram by the "people"? (5) • A.: Yes, sir. • Q.: And were there VRS soldiers in this area on the evening hours of July 12th, around where the "people" are marked? • A.: Yes, sir, there were. In the early evening and later on there were VRS soldiers. I've seen some trucks and some jeeps passing by (10)and -- that's about it, yeah. MR. McCLOSKEY: Thank you. I have no further questions. JUDGE RODRIGUES: [Int.] Thank you very much, Mr. McCloskey. For the Defence, Mr. Petrusic. (15)Captain Koster, you will now be answering questions put to you by Mr. Petrusic, who is representing the Defence in this case. You have the floor, Mr. Petrusic. MR. PETRUSIC: [Int.] Thank you, Mr. President. • CROSS-EXAMINED by Mr. Petrusic: (20) • Q.: Captain, in the evening of the 19th -- that is, the 11th of July - I apologise - between 1900 and 2100 hours, were you personally present on the road which we can see here on this aerial photograph, that is, the road through Potocari?
• A.: Well, sir, I went to the compound at approximately 2000 hours, so
(25)until that time, I was patrolling in that area near and on the road, yes,
• Q.: Was there any barricade, any obstacle set up on this road which prevented the vehicles from passing through? • A.: Yes. We made a sort of a roadblock, just by military persons, to (5)provide the refugees going up to Bratunac. That is correct, sir. • Q.: I don't know whether I have received the correct interpretation. You said that you had set up a kind of roadblock in order to enable refugees to go to Bratunac; is that what you said, Captain? • A.: That's what I said, yes, sir. (10)
• Q.: Captain, this Chamber has heard Witness DB, who, on page 7078 of
the transcript, stated as follows, that is, that the forward command post
at Pribicevac was abandoned by him around 1900, or sometime later.
And further on, on page 7081, in response to a question put to him
by the Defence counsel whether he had passed through Potocari, he stated,
(15)"Yes."
In response to a further question as to what had happened to the
members of UNPROFOR, whether they prevented anyone from passing through
Potocari, he stated, "I did not encounter any control, or anything
similar, in Potocari itself."
(20)And then in the next question, as to whether he personally had
seen civilians in the town of Potocari, he stated, "Yes. In the town of
Potocari, both on the left and the right side of the road, I saw a huge
number of civilians."
Now, you are telling us that not a single vehicle, not a single
(25)soldier of the VRS, had passed through the area in that period of time.
MR. McCLOSKEY: I object to that question. It is inappropriate. (5) JUDGE RODRIGUES: [Int.] Yes. MR. McCLOSKEY: It can be restated and have the same meaning, clearly. JUDGE RODRIGUES: [Int.] Yes. Mr. Petrusic, would you please rephrase your question. (10) MR. PETRUSIC: [Int.] • Q.: Captain, in relation to your statement, to your testimony, is it possible that a vehicle of the VRS carrying several soldiers could have passed through Potocari on the 11th of July after 1900 hours? • A.: No, sir, because they had to move up through the crowd, and they (15)had to pass the so-called roadblock, and I would have known. I informed my former colleague to make sure what I am telling, and it has never been reported to me that a vehicle moved up on the 11th of July, sir. • Q.: So you didn't receive any report on the movement of that particular vehicle? (20) • A.: No, sir, not when I was there and not when I came back. MR. PETRUSIC: [Int.] Mr. President, this concludes my cross-examination of this witness. Thank you.
JUDGE RODRIGUES:
[Int.] Thank you very much,
Mr. Petrusic.
(25)Any additional questions, Mr. McCloskey?
JUDGE RODRIGUES:
[Int.] Thank you.
Judge Fouad Riad? Madam Judge Wald?
Captain Koster, we don't have any further questions for you.
(5)Thank you very much once again for having come here. We wish you a lot of
success in your work.
It seems that our usher has left the room. Here, he's back.
Mr. Usher will now show you out of the courtroom. Thank you. (10) JUDGE RODRIGUES: [Int.] Mr. McCloskey, what happens next? MR. McCLOSKEY: Mr. President, by the silence of Defence counsel, I see we do not have any objection as to the rebuttal evidence here, so I take it there is no objection as to the rebuttal -- this coming in as (15)appropriate rebuttal evidence. And if there is, I would obviously like a chance to argue it; and if there is not, I can go on to the next issue. I only note that because we've been getting oral challenges to these things without notice before, and I just want to be very clear that this is at rest at this time. (20) JUDGE RODRIGUES: [Int.] No, Mr. McCloskey. Please abstain from commentary; that is more appropriate. The question is, this exhibit, 769, Exhibit 769, was it a new one or has it already been tendered?
MR. McCLOSKEY: That is an old exhibit that's already in,
(25)Mr. President.
MR. PETRUSIC: [Int.] Mr. President, with respect to the witness who has just completed his testimony, may I say that according to the opinion of the Defence, this is a classical example of a rebuttal witness. (10) JUDGE RODRIGUES: [Int.] Very well. Let us end the debate there, and we shall reserve allegations for the end of the proceedings. Mr. McCloskey, who do you have for us next?
MR. McCLOSKEY: Mr. President, we have Mr. Butler, who we're all
(15)familiar with, but before we get to Mr. Butler, I had a clarification of a
couple of exhibits that we put off the other day, and I hope I can make
some sense out of this.
It has to do with the three conversations of August 2nd
regarding -- General Krstic and Popovic were two of the conversations, and
(20)then there was a third conversation between General Krstic and someone
named Mandzuka, and that Mandzuka intercept was Exhibit 862A. And as I'd
given the Court an outline at the various times we received this material,
I just have one clarification.
The Mandzuka exhibit, 862A, was a conversation that was in the
(25)notebook, Exhibit 748, which was a notebook that had the so-called "Kill
JUDGE RODRIGUES: [Int.] And what action comes next? MR. McCLOSKEY: I can give a brief road map of Mr. Butler's testimony and some of the points that he'll rebut, prior to his arrival. (10)There are some six or seven points. JUDGE RODRIGUES: [Int.] Perhaps, Mr. McCloskey, we could hear the witness at this point. Shall we hear the witness, and the witness can explain all that us to? MR. McCLOSKEY: He basically understands what the legal team is (15)asking him to rebut, so I think he can -- he will do that. However, he's not going to be able to give you our legal view of that, but he knows the areas that we're talking about. JUDGE RODRIGUES: [Int.] Shall we have the witness brought in? (20)
MR. McCLOSKEY: There's one other small issue that I've discussed
with the Defence. Mr. Butler will be testifying about some small pieces
of hearsay evidence that will clarify some of his prior testimony and that
go to some issues that I've spoken to the Defence about, that they didn't
have any objection to, and it will actually help make the procedures go
(25)smoother and actually -- so they don't have to bring in witnesses on
JUDGE RODRIGUES: [Int.] May we hear the Defence? MR. VISNJIC: [Int.] Mr. President, the Defence has understood Mr. Butler's testimony in two parts. One part would be the (5)refuting of certain facts which the Defence put forward in its case, and the second part, let us call it exculpatory material that the Prosecution arrived at at later stage and which it wishes to present in one way. Of course, it will be up to the Trial Chamber to assess this, whether that is in order. (10)But Mr. McCloskey said that Mr. Butler will be speaking about seven topics, and in the summary of his statement, I have four topics. Now, that four plus three additional topics, or is it seven subjects, seven topics in the rebuttal part of the Prosecution? And I'd like to ask Mr. McCloskey to tell us briefly about what Mr. Butler is going to contest (15)in his testimony. What he's going to rebut, in fact. JUDGE RODRIGUES: [Int.] Mr. McCloskey.
MR. McCLOSKEY: Mr. President, my numbering system included these
issues of what counsel has referred to as exculpatory. We would, of
course, disagree with that, and it was not my intention to be putting this
(20)material up as exculpatory, but it was my intention to save time and
effort on all parties. If counsel chooses us not to do this, they may
call these witnesses that we've alerted them to, and I'm satisfied with
leaving it at that. If he would like to go with our original agreement, I
would go with that too. I thought we had an agreement, and I may have
(25)been mistaken.
MR. VISNJIC: [Int.] Mr. President, my comment did not refer to this addition that Mr. McCloskey, Mr. Harmon, myself, and my colleague agreed upon. My understanding was with respect to what was (5)given in the summary of what Mr. Butler will be testifying to. JUDGE RODRIGUES: [Int.] Yes. Those are the points on which the witness is going to testify. I think we are not hearing each other. It is a conversation between two deaf sides. So are we talking about the points that the witness is going to (10)talk about, testify to? MR. VISNJIC: [Int.] That's right, Mr. President. JUDGE RODRIGUES: [Int.] There you have it, Mr. McCloskey.
MR. McCLOSKEY: I think Mr. Visnjic and I agree with each other
(15)and have an agreement, so I'll just take that as it goes and explain what
the rebuttal points will be.
The first point would go to rebuttal testimony related to the
testimony of Professor Radinovic on transcript 7880 through 7882, relating
to directives 70 and 71. And if you recall, those are the directives -
(20)one's signed, I believe, by Karadzic and the other by Mladic - the first
one regarding the Drina Corps directive to make life unbearable for the
people in the enclave. Professor Radinovic talked about those two and
their relationship with each other. Mr. Butler would like to rebut some
of the testimony that Radinovic had regarding that. That's number one.
(25)Number two also has to do with Professor Radinovic who testified
JUDGE RODRIGUES: [Int.] It said in the interpretation "the representative of the United Nations," but I think it was "United (15)States," was it not? So I think we all agree on that point. Yes. Mr. Visnjic, I think you've heard practically the whole testimony of Mr. Butler. Now, do you know the points that Mr. Butler is going to testify to?
MR. VISNJIC:
[Int.] Mr. President, I think we're going
(20)to have to dwell on this question, because none of those points,
conditionally speaking -- that is to say, most of the points stated by
Mr. McCloskey do not exist in the summary that the Defence has received
from the Prosecution as to Mr. Butler's testimony, and it is dated the 8th
of January, I think, the document dated the 8th of January.
(25)Now I am going to say what Mr. Butler is expected to testify
JUDGE RODRIGUES: [Int.] Mr. McCloskey, let us go to the testimony. What is the testimony about? Is what Mr. Visnjic has just said true? Is that correct? I have read your summary and I have (10)identified the points that Mr. Visnjic has just enunciated. I don't have your witness list and the summaries here, but I remember that. Would you like to reply? MR. McCLOSKEY: Yes, Mr. President, and -- JUDGE RODRIGUES: [Int.] That is to say, why you have (15)modified the contents of the testimony or the summary of the testimony.
MR. McCLOSKEY: Mr. President, I will apologise. Mr. Visnjic is
largely correct. The material -- the summary that reflects most of this
stuff must not have been transferred to the Defence, and I apologise. I
meant it to be. I've discussed these matters with counsel -- some of the
(20)matters with counsel. For example, the operative directive by Mladic,
we've provided that to them well in advance and we've discussed it, and so
they were fully aware that that was an issue.
I've also -- we've also provided them the two July 12th documents
that I've referred to and as part of the rebuttal evidence, and the parts
(25)about 7, 7.1 were in my initial summary, which I have apparently failed to
JUDGE RODRIGUES:
[Int.] At all events, Mr. McCloskey,
(20)you are fully aware of the fact that the rebuttal ends today, regardless
of what can turn up. Now, the Chamber announced a long time ago that your
rebuttal will be closed today, so I stand by that. You have raised this
issue, something that was not foreseen. It was not foreseen. There was
no reason to modify.
(25)So let me ask the Defence: Do you accept the apologies of
MR. VISNJIC:
[Int.] Mr. President, let me say that I
(5)have absolutely been taken by surprise and I am not prepared to tackle any
topics that are not the subject of this summary. I say this with all
honesty and frankness. Mr. McCloskey said he might have talked to us
about the directive issued by Mr. Mladic. Perhaps that was two months
ago, when some material was given to us - I don't remember - because we
(10)keep getting documents and material from the Prosecution, so I don't know
when we got this directive. But just like the Prosecution does, I placed
it on a shelf, and I knew that this would not be the subject of a debate
of any kind. It is a document of several hundred pages. I didn't want to
waste my time on that massive pages, because it wasn't listed on the
(15)topics to be discussed today.
Now, how can I be prepared for something that was not written
down? And I think that is totally out of order, in view of the time that
we have and the speed that we need, the schedule that we have placed
before us. So we are absolutely unprepared to proceed except on the
(20)topics that were included in the summary given to us by the Prosecution,
so that I cannot accept this, not because I wouldn't want to and don't
want to, but because I am not prepared to do so.
Yesterday and the day before, the Prosecution failed to inform us
of these topics then either. I just happened to ask by chance
(25)Mr. McCloskey as to the other part, the Sandic tank, the tank at Sandici
JUDGE WALD: Just one question, Mr. Visnjic. Leaving out the first two topics which dealt with the Radinovic testimony and the (10)accompanying new Mladic directive, I'm not sure I understand why, if Butler is simply going to give us his interpretation of the Zivanovic/Bogicevic intercept, which you yourself brought to our attention, and he's just going to give us his analysis of the August 2nd "Kill them all," which we've all talked about ad infinitum, I'm not quite (15)sure why you need too much time to prepare for that. And I have more question about, but some doubt about, whether or not, if the specific rebuttal evidence to the question of prisoners being taken and General Krstic's knowledge on the 12th, if you've had those documents. I mean, is it true you feel that you can't even cross-examine Butler on his (20)interpretation of these intercepts, which we've talked about continually over the last five days? I understand your Radinovic arguments.
MR. VISNJIC:
[Int.] Judge Wald, to respond to your
question: On the interpretation of the radio messages
Zivanovic/Bogicevic, and an analysis of the "Kill them all" statement,
(25)I -- that is to say, I just was conditionally opposed to the first
(15)
JUDGE RODRIGUES:
[Int.] Let us take a break. I should
like to take advantage of the opportunity, if I may, Mr. Visnjic, to
correct you. I heard that the calendar was imposed -- you say the
calendar was imposed by the Chamber. The calendar was decided after
consultation with both parties. So I want to say that, and that is why I
(20)spoke of calendar. The calendar was decided by the Chamber, but having
held consultations by all parties concerned, which means that it was
aligned with all our requirements.
I think that the most judicious thing to do now would be to take a
pause, and I think this will give a chance to all parties to deliberate.
(25)So if you cannot reach an agreement, the Chamber will confer, but let us
--- Recess taken at 10.40 a.m. --- On resuming at 11.08 a.m. JUDGE RODRIGUES: [Int.] We have a decision. Do you have (5)an agreement? MR. McCLOSKEY: I'm sorry, Mr. President, we tried, as we always have with counsel, and we weren't able to reach an agreement.
JUDGE RODRIGUES:
[Int.] Therefore, we're going to make
our decision.
(10)The Chamber is hereby rendering its decision regarding the
testimony of Mr. Butler. The Chamber understands that Defence has not
been notified of a number of questions which the Prosecutor wishes to
address now with this witness and, therefore, opposes his testifying on
these new issues. However, the Chamber notes that the Defence indicated
(15)that it is ready and can accept the fact that Mr. Butler will be speaking
about the issue of conversations.
The Chamber therefore decide as follows: Number one, the
Prosecutor shall be able to ask questions regarding conversations. The
Prosecutor could not ask questions of Mr. Butler concerning the existence
(20)of prisoners on the 12th of July, 1995, or concerning the deposition of
Professor Radinovic. However, to the extent Mr. Butler can make himself
easily available and the Defence is, as of now, notified of the questions
that the Prosecutor wanted to ask of this witness concerning the relevant
issues, in view of that, the Chamber decides that if and only if a certain
(25)period of time is found in the week of the 2nd to the 6th of April
MR. McCLOSKEY: Yes, Mr. President, and it will be very brief. The one conversation regarding -- that I intended to ask him questions (10)about was the Bogicevic-Zivanovic conversation. The others I hadn't intended, and I hadn't intended to ask him about tactical or operational groups. We had decided that was never relevant, and I don't have those documents. So all I need to ask him about now would be just very briefly on this intercept, and it was just to clarify a simple point in this one (15)intercept. JUDGE RODRIGUES: [Int.] Mr. McCloskey, let us hear your examination-in-chief, please. Let us have the witness brought in. Otherwise, we will spend the whole day debating about what are we going to say or hear from the witness. Let us have the witness brought in, (20)please. MR. McCLOSKEY: If we could get Exhibit 862/A prepared. And 86 -- well, just 862/A. I'm sorry. That's the wrong exhibit. That's the old one. 884/A. We need also the US representative here. (25)
JUDGE RODRIGUES:
[Int.] Are we ready now to proceed?
(5) WITNESS: RICHARD BUTLER JUDGE RODRIGUES: [Int.] Mr. Butler, you will first be answering questions that will be put to you by Mr. McCloskey. Mr. McCloskey, you have the floor. • EXAMINED by Mr. McCloskey: (10) • Q.: Mr. Butler, could you review Exhibit 884/A, an intercept I believe you are familiar with from the last few days. • A.: Yes, sir. • Q.: And if you could, what is your analysis regarding this intercept? How does it fit into your analysis, if it does? And perhaps you could (15)clarify -- just before you get into your analysis, can you tell, in this conversation, where General Zivanovic is speaking from? • A.: Looking at this intercept within the context of my previous analysis of the intercept events on 15 July 1995, I believe this particular intercept supports the contention that I made that by the early (20)morning hours of 15 July 1995, General Zivanovic is aware that he is no longer commanding the Drina Corps. In that context, looking at the other intercepts and other information that we have, I do not believe that General Zivanovic is in Belgrade, as he says he is in the intercept.
• Q.: And what in particular is it that leads you to believe that
(25)General Zivanovic knows he's not in command any more?
• Q.: And can you remind the Court and the -- this is a 1051, 15 July (5)intercept. Also heard, the intercepts of 15 July between Zivanovic and Colonel Beara immediately prior to the conversation between Beara and Krstic. Where does this fit in in time with those conversations? • A.: In time sequence, I believe this fits in approximately one hour later. (10) • Q.: All right. That's all the questions I have on that particular intercept subject. Mr. Butler, you became familiar with the so-called August 2nd "Kill them all" conversation; is that correct? • A.: That is correct, sir. (15) • Q.: Approximately when did you first become familiar with that? • A.: I believe I became aware of its existence, in the audio form that the Office of the Prosecutor had it, would probably be certainly by the spring of 1999. It may have been back earlier that I got an inkling of it, but I couldn't be exactly sure, but certainly no later than the spring (20)of 1999. • Q.: And did you take some time to review that and analyse that? • A.: Not at that particular time. • Q.: Did you at some later time?
• A.: Certainly as I was going into the broad aspect of analysing that,
(25)as well as all of the intercepts, and that process would have been the
• Q.: And this particular intercept was a subject of some debate between yourself, and discussion between yourself, other members of the staff, including the legal staff? • A.: Oh, absolutely, yes. I mean, it was recognised certainly by me, (10)certainly by the investigative team, and certainly by the legal staff, as an extremely powerful piece of information that, if it could be authenticated, would make an effective exhibit. • Q.: So what's your analysis of this -- of the meaning and significance of this particular intercept, in your final analysis? (15)
• A.: Within -- the problem in doing a final analysis on that individual
exhibit is that when you look at it in context with all of the other
exhibits and when you look at it in context with all of the other
material, particularly that that was included in my narrative and things
of that nature, it's not the type of a piece of information that readily
(20)lends itself to my individual analysis in being able to put context to
either events on the ground, or other documents, or anything else. In
effect, it's a piece of information whose value I, as a military analyst,
cannot ascertain along analytical methods. I have my opinion as to what
it is, and at the end of the day that's my personal opinion of what it is
(25)but it is not an opinion that I could support based on the other
• Q.: What is your personal opinion? • A.: My personal opinion is that what you're listening to in that audio intercept is an example of General Krstic giving an illegal order at face (5)value. • Q.: In your view, was it open to any other interpretation? JUDGE RIAD: I'm sorry. You said "illegal" or -- because the transcript says -- no. It's corrected now. Thank you. • A.: Yes. Unlawful order, sir. Illegal. Is it open to another (10)interpretation? Absolutely. MR. McCLOSKEY: • Q.: You were generally not asked for your opinion regarding mental states or legal elements, were you, Mr. Butler? • A.: I was not asked, and had I been asked, I would have shied away (15)from that. • Q.: All right. Is there another possible military interpretation of this? • A.: Definitely. • Q.: And what is that? (20)
• A.: Given the information that is available, particularly the limited
information that we have pertaining to the 1st and 2nd August combat
reports of the Zvornik Brigade, it's quite conceivable that the action
that they're talking about -- one, the actual event that they're talking
about is some form of a raid or some form of an infiltration by Bosnian
(25)Muslim 2nd Corps forces into the front lines of the Zvornik Brigade, in
• Q.: In your mind, is it clear in that intercept that Obrenovic actually has prisoners? • A.: Based on that intercept alone, as well as the 1st and 2nd August (10)information that I have, I can't say that he has prisoners. • Q.: If Obrenovic doesn't have prisoners, what does the statement "Kill them all" three times mean? • A.: In that regard, I would have to default back to: The context of what we're talking about is, you know, a military commander encouraging a (15)subordinate to press his defence vigorously and to ensure that none of the members of the infiltration team, if in fact that's what it is, will be able to penetrate the lines. • Q.: Who, in your view, is in the best position to tell us what that intercept means? (20) • A.: That one would be General Krstic. • Q.: Was this intercept mentioned in your report, your narrative? • A.: No, sir, it was not. • Q.: Why not?
• A.: For the most part because, as I look at it, and understanding it
(25)was a powerful exhibit, at the end of the day, when I was making my final
(25)
• Q.: You're aware of the Prosecution's decision strategically to save
• A.: That is correct, sir. • Q.: Was your report written before that strategic decision was made? (5) • A.: The report was being authored in various draft forms through that decision-making process. I'm not sure that there's a point in time either before or after that decision was made. I understand that the Prosecution, particularly the trial lawyers, were very interested and wanted to use that as a piece of evidence on cross-examination. I mean, (10)they looked at it as that was its most powerful benefit. And at the end of the day, I always felt that I reserved the right myself, as the military analyst for the team, that if I needed that information in my narrative, that I was going to put it there. And at the end of the day, I don't know exactly at a point in time that occurred. (15) • Q.: Did you ever have this conversation in any of your drafts? • A.: This intercept was never in any version of my drafts of the narrative. MR. McCLOSKEY: Thank you. I have no further questions.
JUDGE RODRIGUES:
[Int.] Thank you very much,
(20)Mr. McCloskey.
Allow me to take this opportunity to bid good morning to the
representative of the American government, for the record, please.
Let me give the floor to the Defence for the cross-examination
now. Mr. Visnjic, it seems to me, is going to be cross-examining the
(25)witness.
• Q.: Good morning, Mr. Butler. • A.: Good morning, sir. • Q.: Mr. Butler, in response to a question put to you by Mr. McCloskey, (5)you stated that the conversation conducted between General Krstic and Jevdjevic and Obrenovic was not included in your report. Am I correct? • A.: The August conversation was not included in my report, no, sir. • Q.: The interview which General Krstic gave to the Office of the Prosecutor on the 18th and the 19th of February, is that report also -- (10)that interview also included in your report? • A.: No, sir, I do not believe I included any material from General Krstic's interview in my report. • Q.: Did you use that material? I don't mean whether you quoted, but did you refer yourself to the material connected with the interview of (15)General Krstic while composing your report? • A.: I was intimately familiar with the material. I had watched the interview as it was being conducted, on closed-circuit television, and I frequently referred to the transcripts of the interview, as I've done with many other interviews and all other information, but I did not feel it's (20)my place to include or try to manoeuvre portions of General Krstic's interview and then try to interpret what he said for the Court. I mean, at the end of the day, I didn't do that with any of the human witnesses at all.
• Q.: I assume that you were familiar with the portion of the statement
(25)of General Krstic concerning the issue of war prisoners and his attitude
• A.: I believe I am broadly, but it's awhile back and there's a lot back there, but, generally, I'm familiar with it. If you have the specific transcripts, I'm sure I can go right to it and not guess, but ... (5) • Q.: Mr. Butler, wasn't it natural that somewhere in paragraph [sic] 10 of your -- I know you remember your report very well, but somewhere in paragraph 10, that is to say, between paragraphs 10 and 11 and 1021 or going on to the end of that particular paragraph, which includes in quite a lot of detail the status of the prisoners of war, was it not natural (10)that in that portion you include the intercepted conversation by way of information? • A.: I assume you're talking about chapter 10, not paragraph 10, as is coming up on the transcript, where I talk about specifically the known status of prisoners of war in the Bratunac and Zvornik Brigade. (15)I believe that all of the information based on that is based on documentary records, and it discusses the status of known prisoners captured through 31 July 1995. Trying to take that particular intercept, which again at face value in no way, shape, or form refers to prisoners, it doesn't fit for (20)me. Unless I'm confused. Are you asking whether or not I should have taken General Krstic -- accounts of his interview into that for chapter 10? If that's the question, then the answer would be I wouldn't have done that either. (25)
• Q.: Does this also relate to paragraph 937, in which you also mention
JUDGE RODRIGUES: [Int.] Mr. Visnjic, I apologise for interrupting. I want to ask Mr. Butler whether you would like to have (5)your report in front of you in order to be able to answer the questions being put to you. • A.: I would appreciate that, sir, yes. JUDGE RODRIGUES: [Int.] Could you indicate to us the exhibit number, please, Mr. Visnjic. (10) MR. VISNJIC: [Int.] Mr. President, I will withdraw the question. JUDGE RODRIGUES: [Int.] No. There's no problem. We just want to know the exhibit number so that we can show the document to Mr. Butler. (15)Madam Registrar, can you tell us the exhibit number, please? I think it was 400 and -- Mr. McCloskey. MR. McCLOSKEY: Ms. Keith has it, and we can provide that to Mr. Butler. (20) JUDGE RODRIGUES: [Int.] Very well. And can you tell us the exhibit number, please? • A.: 403, Your Honour. What paragraph again, sir? MR. VISNJIC: [Int.] (25)
• Q.: 937.
(5) • Q.: Thank you. Mr. Butler, you have certainly listened through many or reviewed many intercepts from both sides. In the sense of combat activity and combat action, fighting and encouragement to the soldiers, the subordinates, co-fighters, fellow fighters, these words, "Kill them all," is that mentioned fairly often? Are they frequently mentioned? (10) • A.: Within the confines of the intercepts on all sides, again in the heat of combat, those types of bombastic statements are mentioned very frequently. It is not a unique -- in the sense of things of that nature, you know, "Kill them all," in the sense of, "Make sure that the enemy's totally destroyed," things of that nature are typical military remarks, (15)again not only in the context of the intercepts but in my own background as a military officer. • Q.: Mr. Butler, I should like to go back to the first conversation. It is Prosecution Exhibit 884. • A.: It's on the ELMO, sir, yes. (20) • Q.: I think the Defence agrees with your conclusion that General Zivanovic did not -- was not speaking from Belgrade, that is to say that at that point in time he was not located in Belgrade. Can you be more specific and tell us where, in your opinion, General Zivanovic was when he had this conversation? (25)
• A.: Based on this intercept alone, I cannot do that. However, based
• Q.: Is it possible, Mr. Butler, that General Zivanovic, up until that time, had received the order from President Karadzic on relieving him of (10)his duties, or whether he became informed or learnt of this order in any other way? You can give us a yes or no answer. • A.: Let me just read the question again. It was a long question. I'd just like to read it on the monitor, if you don't mind. The information that I have leads me to believe that he learned earlier than 15 July that (15)he was being relieved of command. • Q.: My question was whether it was possible -- whether it is possible that General Zivanovic, up until the 15th of July, that is to say, the time when this conversation took place, whether he was in a position to learn of the order by President Karadzic. So I'm talking about that (20)particular document, not the other information, actually. • A.: It is possible in that respect, yes, sir.
• Q.: Is it also possible that part of the conversation which General
Zivanovic has with Bogicevic, and which I'll now paraphrase, relates to
something of the kind, "I have now been given a new assignment," is it
(25)possible that that part of the conversation is linked to the directive,
• A.: If you look at those two individual exhibits, yes, you can make a linkage possibility, yes, sir (5) MR. VISNJIC: [Int.] Thank you, Mr. Butler. Mr. President, the Defence has no further questions. JUDGE RODRIGUES: [Int.] Thank you very much, Mr. Visnjic. Mr. McCloskey, do you have any additional questions? If so, (10)please proceed. MR. McCLOSKEY: Not at this time, Mr. President. JUDGE RODRIGUES: [Int.] Okay. Very well. Thank you very much. Judge Fouad Riad has the floor. (15) • QUESTIONED by the Court: JUDGE RIAD: Thank you, Mr. President. Mr. Butler, good morning. • A.: Good morning, sir.
JUDGE RIAD: I just would like to have more clarification of your
(20)statements. First when you spoke about General Zivanovic being aware that
he was relieved from command, I think you -- you concluded from -- you
said, "I conclude from information --" You said exactly, "The information
that I have leads me to believe that he knew that he was relieved before
the 15th of July." All that we heard from you is that he said, "I have
(25)liberated Srebrenica and have other duties." Now, do you think the fact
• A.: When I made that comment, what I was envisioning was the other information, being the series of previous intercepts, as well as other (5)documents that go back not only from 15 July, but prior to that, 14 and 13, which would lend to General Zivanovic having an understanding that he was no longer the Commander of the Drina Corps and that at a point in time the orders would follow. In date sequence, the order appointing General Krstic is dated the (10)14th, I believe. It's been a while with the information, but I believe it's the 14th, effective on the 15th. So clearly he also would have found out about that perhaps a little bit earlier than actually receiving the zone. The order, again if I recall correctly, on 15 July relieving (15)General Zivanovic makes it clear that he's placed his technical status on disposal to the Main Staff, which means that at a point in time to be determined, that he would be expected to report to the Main Staff for whatever further duties the Main Staff had in mind for him. JUDGE RIAD: And now with regard to the intercept, "Kill them (20)all," the "Kill them all" conversation, first, your firm belief that it was authentic? • A.: Yes, sir. JUDGE RIAD: What did you build this belief on?
• A.: As I testified in my direct testimony close to a year ago, when I
(25)looked at not only that intercept, but when I looked at all of the
JUDGE RODRIGUES: [Int.] Mr. Visnjic.
MR. VISNJIC:
[Int.] Mr. President, I have to draw your
attention to the fact that I think the witness had stepped outside his own
(25)qualifications in commenting on these intercepts, as far as I am aware.
JUDGE RODRIGUES: [Int.] Yes. We take note of that, Mr. Visnjic. Thank you. (5)Judge Fouad Riad, please continue. JUDGE RIAD: I was interested to hear from you that -- you said that the information was tailored to them, was tailored to the Muslims, to -- • A.: Yes, sir. (10) JUDGE RIAD: Why was it tailored to them? To frighten them? • A.: It was tailored to them -- not a question of the information was tailored to them. The collection process and the material garnered from the collection process was tailored for the intelligence requirements of the Bosnian army. They were collecting it for their own purposes, their (15)own information. Again, I use that as a tool to review or look at deception operations. If the information is coming in -- it's coming in in a form of exactly what I want, exactly what I'm looking for, or tailored to my goals, that's an indicator to me of deception. But what I found, in fact, that the information that was being collected by the (20)collection sites, being processed through and ultimately coming into the hands of the Office of the Prosecutor, was geared for their benefit, not ours.
JUDGE RIAD: Now, nevertheless, you said that you cannot -- you
were not able to put it into context, and this is why you excluded it from
(25)your report.
JUDGE RIAD: In fact, you added that it was unrelated to Srebrenica. You said exactly, I think, "It cannot be tied to Srebrenica." (5) • A.: The date of 2 August lays it at the back of Zepa, and again, the information in the intercept and the information that I have separate around that does not directly tie it to the criminal acts related to Srebrenica. JUDGE RIAD: Or to anything you know? (10) • A.: Or to anything I'm aware of, no, sir. JUDGE RIAD: You describe it as an illegal order given by Krstic. • A.: That is my personal opinion of it. JUDGE RIAD: Was it -- in the context of the conversation, did it sound like -- did it have the appearance of an order or what you mentioned (15)as a bombastic statement?
• A.: Given the fact that the best that I can do is read it from the
transcripts and because I do not understand the language - I'm not in the
position to do that - again, I have to hold open both possibilities, and
my analytical conclusion at the end of the day is that I can't conclude
(20)either one. My personal opinion is one thing, but, again, I don't invite
the court to take weight of my personal opinion on that.
The analytical conclusion is that I can't tell what that is,
whether it's an illegal order or whether it's not. You know, the question
was asked: "What's my personal opinion?" That is my personal opinion,
(25)but I don't invite the Court to take any weight on that. I'm not
JUDGE RIAD: When you say it is an illegal order, the order must have a destination, must have somebody -- given someone? (5) • A.: I don't understand. JUDGE RIAD: It's an order. If it's just a declaration, like saying like, "Let them all go to hell," for instance, it will be giving an order that -- • A.: I think given the text of the order, it could be interpreted as (10)directive in nature. JUDGE RIAD: As directive. • A.: It can be determined as directive in nature. It's not that ambiguous, I do not believe, sir. JUDGE RIAD: Thank you very much. (15) JUDGE RODRIGUES: [Int.] Thank you very much, Judge Riad. Madam Judge Wald has the floor. JUDGE WALD: With regard to the first conversation between General Zivanovic and Bogicevic, why would Zivanovic want to say he was in (20)Belgrade? I mean, what did it add to the conversation? What would be the -- is it some kind of disinformation or what? • A.: I -- JUDGE WALD: Do you have any -- • A.: If I had -- (25)
JUDGE WALD: -- any supposition?
(5) JUDGE WALD: You told us that when you first began to deal with intercepts, your words were you were extremely leery and then you gave us a developed rationale of how you gained more confidence as they went along. But looking at all of the intercepts, and I remember from your report the many, many, many intercepts, were there any that you ever (10)rejected because you didn't think that they were authentic or reliable? Not because you didn't think they were material to your specific points in your report but that you just didn't feel ... • A.: In the issue of reliability and again -- not reliability of the process or not even the reliability of information. (15) JUDGE WALD: No, for your own consideration. • A.: There were -- there were, and there remain many intercepts which I do not include that because -- JUDGE WALD: They just didn't fit in?
• A.: -- I'm not able -- it's not a question of fitting in analytically,
(20)it's a question of I can't conclusively date them or I can't get them
conclusively dated to my satisfaction or that the subscribers X and Y
don't -- the conversation does not tie into any of the known crime scenes,
criminal events, or any of the other contexts. There is other material
out there that, frankly, at the end of the day, I still don't know what it
(25)means and I don't know where it fits in. And in the cases where I can
JUDGE WALD: When you say you're not able to reliably date it, we've had extensive testimony, and I know you weren't necessarily present, but over the last couple of days, but you certainly have seen those notebooks and the dates that -- at least theoretically place conversations (10)between certain dates, et cetera, so what's the kind of problem you would have with dating?
• A.: To be honest, and using Exhibit 884 as an excellent example of
that, going back and looking at that, the first indication that we had
this intercept, I believe, is as we've gone through the process was it
(15)came in the form of a printout that was received by the Office of the
Prosecutor in, I believe, May of 1999 or 2000 or just before I testified.
So it would be 2000. I'm a little fuzzy on dates, I'm sorry about that.
It came in the form of a printout, and going back and looking at
the printout, it was clear that the date range from this was between the
(20)period of 14 to 16 July, and based on the printout alone, there was no way
to conclude what date it was. And though it generally supports what I
want to say in my narrative or whatever, I can't conclusively put a date
on it; therefore, it's still a piece of information awaiting analysis.
Now, my understanding is that sometime in December 2000, the
(25)notebook that was associated with this conversation, that originated this
JUDGE WALD: Okay. • A.: I would wager to say there are still many bits of information that (5)fall into that same category. JUDGE WALD: You read, I'm sure, for your report many intercepts in which General Krstic was a participant? • A.: Yes, ma'am. JUDGE WALD: Did you, when you read the so-called "Kill them all" (10)one, did anything strike you as different about the portrayal or even the speech patterns, if you can get anything because there's so many little dots every place, different in that from many of the other reports in which he, at least to me, appears much more laconic or ... • A.: It's hard for me to do that because at the end of the day, like (15)you all, all I'm doing is reading transcripts. I don't have the opportunity to hear the conversations and understand them in their native language, so I don't know that I'm really qualified to give you an answer on that. Within the context -- (20) JUDGE WALD: Okay. • A.: I would be very uncomfortable doing that.
JUDGE WALD: My last question, and answer only again if you're
comfortable because I don't want to go outside any bounds. But you did
say in your -- that when you first came across this or when you first
(25)analysed it -- you said you didn't analyse it until late 1999, I think.
• A.: I was party to those debates. I was a -- I was a major, (10)significant party. I was fully integrated into the team and in the debates in the process, and -- JUDGE WALD: So was the debate -- again, I don't want to know what the -- but did the debate concern whether to use that intercept in the case in-chief? (15) • A.: The -- one aspect of the debate pertained to the fact that to use it in the case in-chief, if I felt that I needed it, meant that at the end of the day, the Defence would have a very long opportunity to come up with a well-rehearsed answer to what it was. JUDGE WALD: Well, I shouldn't ask you that. You're not a lawyer, (20)but I was going to say, isn't that what the trial process is about?
• A.: Understanding that, but again from my perspective, when I look at
the information -- I'm not naive as to the mechanics involved, I mean, and
I guess where -- fundamentally, to frame the argument, where that
information falls is as a piece of military analysis, does that piece of
(25)information assist me in allowing the Court to understand General Krstic's
(5) JUDGE WALD: I'm not asking you. Just a last question. You said you analysed in late 1999. Did this, quote, debate take place around that time, or prior to trial, I guess is what I'm saying, to your knowledge? • A.: The debate took place -- not only prior to but continuing during the case, the case in-chief. The final decision ultimately on where to (10)use it wasn't made until my narrative hit the final form, and from my point of view, I determined that I didn't need it. JUDGE WALD: Okay. Thank you very much. JUDGE RODRIGUES: [Int.] Thank you very much, Madam Judge Wald. (15)Mr. Butler, I, too, have a few questions for you. As regards the Exhibit number 884, that is the conversation between Zivanovic and Bogicevic, you stated that you didn't believe that General Zivanovic was in Belgrade. My question in relation to that is: Why did you say that you believed that -- (20) • A.: Why -- JUDGE RODRIGUES: [Int.] -- or didn't believe that?
• A.: I would again have to put it in context of the 9.00 or I believe
it's 9.51 conversations that General Zivanovic is recorded having with
Colonel Beara at a textual level. Again looking at the broader aspect of
(25)the intercepts, essentially we're talking about an intercept coming off of
JUDGE RODRIGUES: [Int.] I think that you have already to a certain extent answered my next question in response to a question put (10)to you by Madam Judge Wald. What would have been the interest of saying he was in Belgrade if he wasn't actually there? • A.: Again, I don't know the answer to that, sir. The best I could say is it was a facetious comment, but again, I don't know. JUDGE RODRIGUES: [Int.] Okay. Thank you. Another (15)question, Mr. Butler. When the Prosecutor asked you to analyse all these intercepts, did he give you a time framework, that is, a date from which you were supposed to make your analysis until a date when you were supposed to finish your analysis? Was there a time framework, a time frame for your work, for your analysis? (20)
• A.: No, sir, none from the Prosecutor. Any deadlines were internally
driven by myself. I mean with that intercept, the driving force between
when I -- when I looked at it and why was not relative to that intercept
but it was relative to the fact that as an analytical practice, I was
waiting for the entire series from July of 1995. I did not want to fall
(25)into an analytical trap of looking at pieces of intercepts in isolation,
JUDGE RODRIGUES: [Int.] And my last question, for you, Mr. Butler: As regards the "Kill them all" intercept, General Krstic said that it was a rigged, that it was a montage, a 100 per cent montage. That was the word he used. Can you comment on that? (10)
• A.: At the end of the day and as I've discussed at some length in
response to Judge Riad's question, and especially when General Krstic made
that statement, again as an analyst, what I did is internally to what end,
set up a series of theoretical scenarios: Assuming that this is a
montage, one, how do I prove that and to what end? Who is the target
(15)audience and why? Then I looked at all of the factors on how the tapes
came into the OTP possession, and at the end of day there are two tapes.
And as the Prosecution has laid out, I'm not sure. It came in fits and
starts through a series of witnesses, but at the end of the day, when you
look at the series of circumstances, how the first tape came into the
(20)possession of the Office of the Prosecutor, which was recorded off of one
network, and how the second tape several years later came in, and
particularly in the circumstances of the second tape, you know, being lost
in an archive, essentially being found by an investigation team that's
investigating Muslim war crimes and the fact that it had been mislabelled
(25)and effectively lost to indexers, at the end of the day, the series of
JUDGE RODRIGUES:
[Int.] Very well, Mr. Butler. We have
no further questions for you. You have answered a number of questions by
both parties and the Judges. Thank you very much for having spared some
(20)time to be with us and assist us in our work. Thank you very much once
again. We wish you a lot of success in your future work.
Let me also thank Mr. Alan Weiner. I hope that the name will now
be entered in the record, because the first time I mentioned it, it was
not reflected in the record. Thank you also for having been with us
(25)today.
JUDGE RODRIGUES: For us too. Thank you. Yes, Mr. McCloskey. (5) MR. McCLOSKEY: I'm told that Exhibit 884 is -- well, it's in a notebook. 884 is the conversation. So I think we would offer that into evidence to make sure that it's part of the record. JUDGE RODRIGUES: [Int.] I think that it is awaiting a decision by the Chamber, like some other exhibits. (10)What is the position of the Defence as regards this exhibit? Mr. Visnjic? MR. VISNJIC: [Int.] Mr. President, we have no objections to this exhibit being made part of the record. JUDGE RODRIGUES: [Int.] If there are no objections by (15)the Defence, the Exhibit number 884 -- was that the exhibit that you were referring to? No. Yes. Very well, then. Therefore, the exhibit shall be admitted into evidence. Mr. McCloskey or Mr. Harmon. MR. McCLOSKEY: We have no additional evidence until later on on (20)the video-conference. No more witnesses until --
JUDGE RODRIGUES:
[Int.] But I think that you indicated
that Mr. Ruez would also be one of your witnesses. I thought I saw it on
your list, that I saw his name on the list, that is that he was supposed
to talk about the chain of something -- chain of custody. Am I
(25)imagining?
(5) JUDGE RODRIGUES: [Int.] Very well then. We will wait until 4.00, then. But I thought that it would be a convenient time to ask the Defence: You have the decision of the Chamber regarding the testimony of Mr. Butler. Do you think that sometime during the day you will have an opportunity or you might be prepared to ask (10)additional questions of Mr. Butler, or shall we leave it really for the last -- the final week of the proceedings? Do you understand what I want to say? MR. VISNJIC: [Int.] Mr. President, it would be very difficult for us to change our position within the past half an hour. (15) JUDGE RODRIGUES: [Int.] Yes. Very well, then. I just wanted to know that in order not to waste any time. But of course you're quite right. We will then wait until 4.00 to continue, and I believe that we will continue in courtroom number 1. Mr. Visnjic, is there anything that you wish to tell us? (20) MR. VISNJIC: [Int.] Mr. President, I only wanted to ask you if it's possible to see whether the General can be escorted to the Detention Unit now and then taken back again so that he could have some rest there, because here at the Tribunal there are no possibilities for him to have a proper rest. (25)
JUDGE RODRIGUES:
[Int.] Madam Registrar, please.
JUDGE RODRIGUES:
[Int.] Just a moment, please. (5) JUDGE RODRIGUES: [Int.] I think that there is still a little question that needs to be addressed. As you know, we have two motions to reopen the case, one that was submitted by the Prosecution and the other by the Defence. Maybe we can use this time to discuss them. I could perhaps invite the parties to talk amongst themselves about a (10)possible admission of radio intercepts. If you are able to reach an agreement, please let us know, let us notify the Chamber about it; and if you do not, the Chamber will make its ruling. But there is still this issue of reopening the case. Maybe we can give you each 20 minutes to argue the motion, and then the Judges will ask questions if they have (15)any. I think we can now have a lunch break and then come back to the courtroom. It is true that it is possible for General Krstic to be taken back to the Detention Unit, but maybe he's willing to waive his right to be present here. (20)Mr. Harmon, can I hear your comment on this? MR. HARMON: I was hoping to use the time after lunch to prepare for the testimony [redacted] I'm prepared to argue the motion that we have filed with the Trial Chamber right now on the issue of reopening the case to admit forensic evidence. (25)
JUDGE RODRIGUES:
[Int.] Mr. Petrusic or Mr. Visnjic.
JUDGE RODRIGUES: [Int.] Very well, then. We are now going to have our break. What about the presence of General Krstic, (5)Mr. Visnjic? MR. VISNJIC: [Int.] I think that General Krstic would like to remain and hear the arguments. JUDGE RODRIGUES: [Int.] Very well, then. We're now going to have a 50-minute break and we will come back after that, and we (10)will try to limit the time to 20 minutes for each party to argue the motion. A 50-minute break. --- Recess taken at 12.21 p.m. --- On resuming at 1.22 p.m.
JUDGE RODRIGUES:
[Int.] Good afternoon once again. The
(15)question will be the reopening of the case of either parties.
As you know, there is a motion by the Prosecutor and a motion by
the Defence.
Prosecutor. The motion of the Prosecutor has to do with four
reports connected to exhumations. The Defence objected to their
(20)admission. The Prosecutor underlines that those reports are the logical
follow-on to reports earlier submitted to the Chamber and to the admission
of which the Defence did not object.
I should like the parties to tell us whether they have discussed
the matter and whether an agreement could be reached. And the other issue
(25)that we have to discuss is whether the Defence could submit a report in
(5) MR. McCLOSKEY: Thank you, Mr. President. We have been unable to reach any kind of an agreement, and Ms. Karagiannakis is here and will argue the Prosecution's motion. Mr. Harmon is busy preparing the next witness. JUDGE RODRIGUES: [Int.] Very well. Ms. Karagiannakis, (10)please. MS. KARAGIANNAKIS: Thank you, Your Honour. Just to reiterate, Mr. Harmon was prepared to argue this motion before the break, but because of his obligations with the witnesses, he won't be able to do so. Your Honour, this application is as you've described it. There is (15)no dispute about what the applicable law is. It's the Delalic test, and there are two legs to that test, and what I propose to do is briefly outline why the Prosecutor says we comply with both of the legs of the testing in Delalic and reply to some of the things the Defence has stated in their reply motion. (20)To begin with -- THE INTERPRETER: Could counsel slow down, please.
MS. KARAGIANNAKIS: Sorry.
So the first leg of the test is: Is this fresh in the sense that
it could not have been identified and presented in the case in-chief of
(25)the Prosecutor with the exercise of reasonable diligence?
THE INTERPRETER: Could counsel slow down, please.
MS. KARAGIANNAKIS: -- physical link from the Glogova 1 site to
the Kravica warehouse, so that part of a door frame from the warehouse was
(10)found in the grave, and this is extremely probative value linking an
execution site to a grave site.
The Defence has said that this isn't really -- this is -- the
probative value of this evidence is quite slight and cumulative. Well,
it's cumulative in the sense that we've already adduced much of the same
(15)type of evidence, but it's my submission that, in particular, the linkage
evidence is not cumulative. It adds yet another important linkage between
execution site, and therefore executioner, to mass grave site, and in
another case mass grave site to secondary grave site. So you're looking
at linkages between execution, grave site, and cover-up, and those are
(20)very critical for the consideration of liability in this case.
It's further submitted that it's not at all unfair to the
defendant to produce this in writing if they have also an opportunity to
reply in writing, because four out of the five people that are submitting
the reports have been cross-examined in this Court by the Defence. The
(25)defendant and Defence counsel has never -- has not contested the fact that
THE INTERPRETER: A little slower, please, counsel. The
(25)interpreters are not able to follow at that speed.
JUDGE WALD: There aren't any more in the pipeline, are there? (15) MS. KARAGIANNAKIS: No. JUDGE RODRIGUES: [Int.] Thank you very much, Ms. Karagiannakis. The response from the Defence. Mr. Visnjic.
MR. VISNJIC:
[Int.] Your Honours, the Defence will
(20)refrain from repeating its arguments in its response to the application of
the Prosecution to reopen its case. We shall just try to explain to Your
Honours that we understand this application as one that affects the use of
the time that we have left until the close of the case. If the
Prosecution needed the time from August, when some exhumations were
(25)completed, until March this year, to provide the Defence with these
JUDGE RODRIGUES: [Int.] Thank you very much, Mr. Visnjic. (15)Ms. Karagiannakis, is there something that you should like to add, but very briefly, please?
MS. KARAGIANNAKIS: Two very brief comments, Your Honour. First
of all, when experts go to Bosnia to conduct exhumations, they do not
leave the field until approximately October, at the end of the year.
(20)And the second comment is with respect to resources. Obviously,
it takes a lot more time to conduct exhumations than to reply to the
methodology and the conclusions that result from the physical evidence
taken from those exhumations. However, the Prosecutor does agree that the
Defence ought to have a reasonable time to review our reports. These
(25)reports have indeed been provided to them in March and in February, and it
JUDGE RODRIGUES: [Int.] Thank you very much, (10)Ms. Karagiannakis. So we will review all that has been said, and we will make a ruling. Excuse me. MR. VISNJIC: [Int.] Mr. President, there is one more (15)issue that we have some hesitation about and that is when the time begins to run, that is, the 15-day time limit according to Rule 94 bis for the Defence. Actually, we have two possibilities, either that it begins to run from the moment the Trial Chamber makes its decision, should it grant the request of the Prosecution, or would that time begin to run from the (20)moment the Prosecution filed its request? Of course, we would prefer the former solution in view of the fact that until a Trial Chamber makes a decision, we are not in a position to anticipate something that is still uncertain. Thank you.
JUDGE RODRIGUES:
[Int.] Thank you very much,
(25)Mr. Visnjic.
--- Recess taken at 2.10 p.m. (20)
--- On resuming at 4.13 p.m.
--- Whereupon the hearing adjourned at 7.58 p.m., to be reconvened on Monday, the 2nd day of April, 2001, at 9.30 a.m. |
