Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12107

 1                           Wednesday, 19 November 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.22 p.m.

 5             JUDGE ORIE:  Good afternoon to everyone.

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

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

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

 9     Prosecutor versus Ante Gotovina, et al.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             Before the Prosecution calls its next witness, which will be

12     Mr. Theunens, who has produced an expert report, there were two issues, I

13     think, pending.  The first was that, and this has been expressed in an

14     e-mail and it is now put on the record, the Gotovina Defence, I think,

15     emphasised how important it was to establish the exact scope of the

16     expertise of Mr. Theunens.  We have considered that.  Of course, we could

17     invite the parties to make submissions on the matter at this moment, but

18     the Chamber gives the following suggestion.  That before we start hearing

19     the evidence by Mr. Theunens on the substance of his expert report, that

20     an opportunity will be given to the parties to further explore any

21     relevance, facts in relation to the scope and the nature of the expertise

22     of Mr. Theunens, and to do that, as a separate section of hearing the

23     evidence, which would mean, Mr. Waespi, that you could put relevant

24     questions to the witness in this respect, that then an opportunity would

25     be given to the Defence to put questions in relation to that, not yet

Page 12108

 1     going into the substance.  And of course this does not preclude any

 2     further questions during the examination-in-chief or cross-examination on

 3     the matter, but in this way, the information thus elicited from

 4     Mr. Theunens may assist the Chamber in the exercise of its function to

 5     supervise the presentation of the evidence through this witness.  That

 6     would be the suggestion by the Chamber.

 7             If there would be an urgent need to make further submissions

 8     after questions were put to the witness in this respect, the Chamber will

 9     then consider whether an opportunity will be given for that, of course on

10     the basis of the reasons invoked by the parties to make any such further

11     submissions.

12             That is one issue.

13             May I -- this is the suggestion by the Chamber, how to proceed.

14     If you would have short comments on that, either you, Mr. Waespi, either

15     you, Mr. Kehoe, then the Chamber would like to hear it now before finally

16     determining how to proceed.

17             MR. WAESPI:  Thank you, Mr. President.  The extensive part of my

18     examination-in-chief will be methodology and also his, indeed, expertise

19     in this area.  And I suggest that I will weave in your comments, your

20     suggestions into that part of my examination-in-chief.

21             JUDGE ORIE:  Yes.  And any comments on making this a separate --

22     separate portion, a separate section at the beginning of the testimony

23     before we come to the substance?

24             MR. WAESPI:  Yes.  That will be.  The first part is -- you might

25     have seen my outline of -- of topics and documents to be discussed and

Page 12109

 1     the first section is background, CV, methodology, and I think that's a

 2     good --

 3             JUDGE ORIE:  Yes, that would more or less cover the issue.

 4             MR. WAESPI:  Absolutely.

 5             JUDGE ORIE:  Mr. Kehoe, the suggestion, therefore, is that you

 6     would be given an opportunity after this first portion of the examination

 7     to, and that of course is not only you but also the other Defence

 8     counsel, to cross-examine the witness on this specific subject, again,

 9     for the Chamber in order to be assisted in the exercise of the

10     supervision of the whole of the testimony of Mr. Theunens.

11             MR. KEHOE:  Yes, Your Honour.  Obviously the Prosecution has

12     presented Mr. Theunens, as Your Honour reflected in paragraph 25 of your

13     order, as an expert in armed conflict, structure, command and control,

14     discipline, et cetera.  Very broad.

15             JUDGE ORIE:  And very general.  And of course the Chamber, in

16     view of the concerns expressed, and apparently living with the Defence

17     teams, the Chamber wanted to respond to that in this procedural way.

18             MR. KEHOE:  Yes.  On that score, as a practical matter, once

19     the -- if we can ask the Chamber to make some decision as to his degree

20     of expertise because then the questioning changes per paragraph 29 of

21     Your Honour's order, in the sense that Your Honour -- the Chamber wrote

22     in paragraph 29, second sentence:  "Opinions of Theunens that fall

23     outside his field of expertise will be treated like other pieces of

24     opinion evidence which means that the Chamber would disregard it unless

25     the Prosecution properly explores the basis for it."

Page 12110

 1             On that score, Your Honour it would be important during this

 2     supposed voir dire process on the witness's background to have some

 3     indication from the Chamber as to what fields of expertise the Chamber

 4     considers that Mr. Theunens possesses as opposed to items which are

 5     merely his opinion, because they fall outside those fields of expertise.

 6             And if I may, Judge, that becomes -- if I may just finish.  I'm

 7     sorry, counsel, if I can just finish.  It becomes paramount because of,

 8     and I may be reading this improperly and I can stand corrected if I am,

 9     in paragraph 26 of the order, it would appear that to the extent

10     documents are put in evidence or in evidence in conjunction with

11     Mr. Theunens's report, the Chamber will view those accordingly.

12             If, however, a document, and there are hundreds and hundreds of

13     documents that are footnoted in Mr. Theunens's report, if, however, a

14     document is not put into evidence and Mr. Theunens opines on that

15     document, it would appear that that -- and I may be reading this

16     improperly.  It appears that there is a shifting of the burden to the

17     Defence of challenging that particular item, and absent that, the Court

18     will consider that opinion as opposed to compelling the Prosecution to

19     establish the validity of that opinion.

20             They are two issues that, while in conversation before the

21     chamber, they appear to be discrete but they are very much interconnected

22     and they put the Defence in a bit of a difficult posture because of the

23     melding of the two.

24             Yes.

25             JUDGE ORIE:  Would you like that add anything?

Page 12111

 1             MR. KEHOE:  I'm sorry, Your Honour.  I --

 2             JUDGE ORIE:  Yes.  Well, Mr. Waespi.

 3             MR. WAESPI:  Yes.  I see now we're going to the argument of what

 4     the scope, again, is of the expert, and I believe, Mr. President, that

 5     the Defence is mistaken.  The interpretation of the Trial Chamber's order

 6     would require the Prosecution to rebuild the entire expert report and

 7     addendum during examination-in-chief if that was true, what Mr. Kehoe

 8     said, by specifically delineating each individual opinion expressed in

 9     the report, and then exploring the basis for the witness's expertise to

10     offer each of these individual opinions.  And such an interpretation,

11     Mr. President, is clearly against paragraph 30 of your decision in which

12     the Trial Chamber directs the Prosecution to limit its

13     examination-in-chief to controversial matters of central importance.

14             This enforced limitation necessarily contemplates the existence

15     of opinions on conclusions contained in the expert report which, although

16     relevant, probative and admissible, are not controversial or of central

17     importance to the case.

18             In relation to the field of expertise, as Mr. Kehoe started, Your

19     Honours in your decision, paragraph 25, you accepted that Mr. Theunens

20     has expertise as an expert on Croatian armed forces system and you

21     quoted:  "Our proposition that he is an expert of command and control,

22     military discipline, armed conflict, as it existed and was applied in

23     1995, and we refer to his 16 years of experience, to his reports he has

24     given while a member of OTP."

25             Therefore, Mr. Theunens does not need to be an independent expert

Page 12112

 1     on command and control, the law of armed conflict, et cetera, or on the

 2     application of international humanitarian law.  In relation to paragraph

 3     29, of course, if Mr. Theunens ventures, being asked or independently, on

 4     issues such as ballistics or something else very, very specific which

 5     clearly falls outside of his expertise, then, Mr. President, that's my

 6     interpretation of paragraph 29 of your decision, second sentence, then I

 7     have to lay a specific foundation as to his expertise in these areas; but

 8     generally, Mr. President, that is my interpretation, you accepted him as

 9     an expert on all these issues covered in the expert report.  But of

10     course I will endeavour, as said in my part, methodology to explore all

11     the background that entitles him to be an expert and to provide these

12     opinions.

13             MR. KEHOE:  May I respond briefly, Your Honour.

14             JUDGE ORIE:  Please do so.

15             MR. KEHOE:  Your Honour, with all due respect to my learned

16     friend, the argument that the Prosecutor proposes is that because

17     somebody is a physician, ergo that person is an expert in oncology,

18     radiology and any number of areas of medicine.  Mr. Theunens had a

19     distinguished career as an intelligence officer and that's what he is, an

20     intelligence officer.  He is not expert in command and control.  He is

21     not an expert in combat or armed conflict, as the Prosecution sets forth.

22             What we have attempted to do prior to coming in here today was to

23     get a delineation of the actual opinions by Mr. Theunens that he was

24     going to make from this 700-page report so that we could address those

25     opinions and those opinions alone.  That has not happened.  We are faced

Page 12113

 1     with a document that the Prosecution maintains is an expert opinion on

 2     topics in the military sphere from A to Z, topics about which, for

 3     instance, Croatian law.  Is Mr. Theunens an expert in Croatian law?

 4     Theoretically, he has done what anybody in this courtroom could do which

 5     is actually read the Croatian law.  He is not a lawyer.  He doesn't have

 6     the training that the Chamber has, yet he comes before the Court to make

 7     opinions on that.

 8             Frankly, Your Honour, in the scope of his -- his scope of

 9     expertise per the Prosecution is so large, that what this simply is, is a

10     post-trial brief being wrapped up in the cloth of an expert and put

11     before the Court.

12             Now I'm not saying that Mr. Theunens doesn't have a field of

13     expertise when it comes to military intelligence.  However, to wrap his

14     entire CV around all of these topics, strains credulity because, simply,

15     nobody could reach all those areas of expertise in this fashion.

16             The problem with that, at this juncture, is that because in

17     paragraph 25, it is noted that:  "If a document which is not in evidence

18     is incorrectly" -- paragraph 26, I apologise.

19             "If a document which is not in evidence is incorrectly

20     summarized, the Chamber expects the parties to address this during the

21     examination of Mr. Theunens and, if necessary, for the correct

22     understanding of the document, tender it in evidence."

23             So we have a -- the request to set out the specific areas of

24     expertise has not been met by the Prosecutor or the areas of his

25     opinions; better still.  And we are now faced with a 700-page report plus

Page 12114

 1     documents where, if I read this correctly and I may be reading it

 2     incorrectly, Your Honour, if we don't go through the exercise of

 3     challenging this with these documents, then the matter comes in

 4     unchallenged and unchallenged in a fashion that could be accepted as the

 5     opinion of -- of an expert.

 6             It puts us in a difficult position, an untenable position I might

 7     add, given the scope of this report.

 8             And, Judge, I thought that a simple way around this and on these

 9     issues was to have the Prosecution tell us the opinions, what are they,

10     10, 15, whatever they happen to be, and that we could address those

11     concretely.  I think that that is what Your Honour was contemplating in

12     paragraphs 30 through 31.  That has not been forthcoming.  And as a

13     consequence, we are now in this endeavour of challenging this witness on

14     a 700-page report, and all the items in there, even those which -- it's

15     not clear if he is rendering an opinion on or not.  It just makes it very

16     difficult at this juncture to operate in the fashion that the Prosecution

17     has put before the Chamber.

18             I have nothing further on that, Judge.

19             MR. WAESPI:  Just --

20             MR. KAY:  Your Honour, sorry.

21             JUDGE ORIE:  Yes.  I earlier said that of course this would be --

22     opportunities to would be given to other Defence counsel as well.  I

23     usually wait until you are on your feet.  You are.

24             MR. KAY:  I'm hiding behind Mr Kehoe at the moment --

25             JUDGE ORIE:  Yes.

Page 12115

 1             MR. KAY:  -- but he's sat down.  Your Honour, the issue that the

 2     Court should have in mind on this expertise is the questions that have

 3     been referred by the Prosecution to the witness, which are not apparent

 4     in the text of his report.  We have been served a schedule of documents

 5     by Mr. Waespi in the last few days, and tab 2 of his bundle, for those

 6     who have that, produces Exhibit 65 ter 6111, and there are ten headings,

 7     the first of which is:  Please identify documents that indicate the

 8     defence structures that existed in the Republic of Croatia in

 9     August 1995.

10             The next topic is:  Please identify documents that reflect the

11     system of command and control in the HV, Croatian army, in 1995.

12             Topic 3, I don't know whether it is on Your Honours' screens yet,

13     is:  Please identify documents that reflect the rule and regulations

14     relating to the application of the Laws of Armed Conflict,

15     Geneva Conventions, in the Croatian army.

16             4, is likewise:  Specify, identify documents related to command

17     and control structure, including the exercise of command and control, in

18     connection with Operation Storm, and related operations.  Such documents

19     should include those which relate to de jure command and de facto

20     command.  So, again, Croatian army specific.

21             Please identify, in 5:  Documents that reflect the units that

22     were involved in Operation Storm and its aftermath and their activities.

23     Again, Croatian army specific.

24             6:  Please identify documents reflecting the commission of crimes

25     during or in the afternoon -- aftermath of Operation Storm, including

Page 12116

 1     reporting of crimes, Croatian army specific, relating to the military

 2     structures of the Croatian army.  Please identify all documents relating

 3     to the planning, execution or purpose of psy-ops activities; again,

 4     Croatian army.  Please identify all documents relating to the interaction

 5     between the civilian and military authorities.

 6             My apologies to the booths.

 7             Croatian army specific as well as civilian society specific of

 8     Croatia.  So the government of Croatia's civilian structures.  Please

 9     identify all documents reflecting orders to ensure application of laws of

10     armed conflict or other protections relating to civilians or other

11     protected persons or property, immediately preceding, during, or in the

12     aftermath of Operation Storm.

13             So Croatian army -- Croatian army specific as well as civilian

14     society of government of Croatia, Republic of Croatia specific.

15             Please identify all documents relating to measures taken to

16     verify the implementation of any orders under item 9.  Again, Croatian

17     civil society, military structures specific.

18             Considering the curriculum vitae of Mr. Theunens, there is very

19     little in there, if at all, that shows his qualifications to speak on

20     those subjects.  Firstly pointing out the structures of the Croatian

21     military, as in 1995, in relation to Operation Storm in 1995 and related

22     operations.  Secondly, in relation to Croatian civilian government.  His

23     qualifications in relation to providing expertise on Croatian government

24     and its structures for civilian society.

25             It was the Prosecution's choice to use this person as an expert.

Page 12117

 1     They have their own reasons for that.  But the areas of expertise that

 2     Your Honours are -- are seeking assistance upon relate to those aspects

 3     of civilian society, specifically prior to Operation Storm and

 4     immediately afterwards, relating to events in Knin as well as elsewhere

 5     in the Republic of Croatia.  Remember the allegation in this case is one

 6     of a joint criminal enterprise.  As well as the Croatian armed forces,

 7     military structure.  Now that sort of expertise comes from someone either

 8     working within the Croatian military system and civil government

 9     themselves, or who has made a study of such subjects in a way that is

10     recognised as putting them in a position to give an authoritative

11     opinion.

12             Our submission is that, looking at the CV within tab 1, that

13     there is very little within that CV to commend itself to the Court as

14     providing the foundation for the opinions that have been sought in tab 2

15     and that are reflected in the structure of this report.

16             Your Honour, those are our submissions on -- on this matter.

17             JUDGE ORIE:  Mr. Kuzmanovic.

18             MR. KUZMANOVIC:  Thank you, Your Honour.  I'm not going to repeat

19     the theme that Mr. Kay had, but for us, it is a similar theme.  With

20     respect to the special police, it is being treated as if it was part of

21     the Croatian military, and obviously that is not the case.  It is -- I'm

22     not going to get into the specific details now so as not to use the

23     Court's further time, but it is the same kind of issue that Mr. Kay has

24     with respect to his client that we have with respect to our client.

25             So it's a question of expertise on the issue of the special

Page 12118

 1     police, which is an entirely different structure, operation, organisation

 2     than the Croatian military.

 3             Thank you.

 4             JUDGE ORIE:  Mr. Waespi, briefly.

 5             MR. WAESPI:  Yes.  Just very briefly.  Two points.  The first

 6     point is that, Your Honours, you have read the expert report and you

 7     decided over the challenges by the Gotovina Defence, I think joined by

 8     the other Defence teams, that the expert is prima facie an expert on

 9     these matters expressed in his report, and that covers armed conflict,

10     that covers command and control, that covers special police.  So

11     Your Honours have ruled on that.

12             The second point is in relation to the opinions.  I have, as

13     mentioned by Mr. Kay and I mentioned it before myself, distributed topics

14     and these topics make specific references to the executive summary and in

15     some parts of these executive summaries, and I will precede my

16     examination-in-chief with these distinct opinions about the -- the case

17     that Mr. Theunens will express.  I can just give one example in relation

18     to Mr. Kay's client, Mr. Cermak, he says, the expert in the executive

19     summary, paragraph 49:  "Cermak is the most senior authority in Knin and

20     superior to the MP and civilian police in Knin."  That's the opinion, the

21     conclusion this expert provides, and I will ask him, obviously, for the

22     foundations of that.  And then he can be challenged.

23             So I believe Mr. President in some, as I said before, that the

24     expertise of Mr. Theunens, as materialised in his report, has been

25     accepted by Your Honours.  And if there is, according to paragraph 29:

Page 12119

 1     "Issues that fall clearly outside this fairly broad expertise, not just

 2     as a military intelligence person by training but by the skills, the

 3     expertise, the knowledge he has acquired over time," 16 years, we'll go

 4     into that when the witness testifies, plus the OTP experience clearly

 5     qualifies to pronounce opinions as he did on all the relevant military

 6     matters sought by the Prosecution.

 7             JUDGE ORIE:  Mr. Kehoe.

 8             MR. KEHOE:  Your Honour, if I may.  With all due respect to my

 9     learned friend and to Mr. Theunens, and I'm sure that is he an excellent

10     intelligence officer, but what he has done is collected documents.

11     That's essentially what he has done.  Any number of people in this

12     courtroom, not the least of which is my colleague Mr. Misetic, could do

13     the same thing.

14             We are talking about fields of expertise.  And the fact of the

15     matter is that as an intel officer and not a lawyer and not someone who

16     has experience or very minor experience in the armed forces and none in

17     combat, his appearance -- his appearance, his opinions on that score are

18     not very valuable.

19             Now, the problem as posited by my learned friend is this:  Well,

20     yes, he has put some discrete topics out in his e-mail to us, and we

21     appreciate that greatly, but in conjunction with that, he also informed

22     us that the Prosecution was going to stand by the rest of this report and

23     put that in as well.  So even though it wasn't addressed directly during

24     the OTP's examination, it was nonetheless going to be offered into

25     evidence so that it can be used by the Trial Chamber down the line on any

Page 12120

 1     number of opinions, some of which the OTP never even asked the witness to

 2     opine on.

 3             The issue at this point, Your Honour -- and I do believe in

 4     paragraph 29 the Chamber contemplated some limitation on the fields of

 5     expertise of this witness.  If not, there would be no reason to make this

 6     distinction between comments that are made within/without his field of

 7     expertise as set forth in paragraph 29.

 8             If we look at Mr. Theunens's CV and give him as much credit as

 9     possible for everything that is in there, his expertise is limited to the

10     field of military intelligence.

11             Now I'm not saying that there isn't items in there can be

12     discussed quite broadly, but to talk about all other issues in

13     conjunction with that such as opining on what Croatian law or what

14     military law in the Republic of Croatia means and transpires without any

15     training in that, I submit to Your Honour that is a bit beyond the pale.

16             JUDGE ORIE:  Thank you.

17             MR. KAY:  Your Honour, just a follow-up in reply.

18             Taking the example that Mr. Waespi just did, and this shows the

19     devil of this matter, if I may say so, his paragraph 49 assertion:

20     "Cermak is the most senior authority in Knin and superior to the military

21     police and civilian police in Knin."

22             Well, we've heard a lot of evidence from the witnesses in this

23     case that take issue with that, that contradict it, and that is something

24     that the Court is entitled to take into account.  But, when you look

25     through this CV, there is nothing within this witness's very

Page 12121

 1     distinguished career that provides him with the authoritative status to

 2     express an opinion on the background to that statement.  There are many

 3     people in the world with a CV such as this, and many of them, I suggest,

 4     would -- all of them would suggest -- I would suggest would hesitate from

 5     giving opinions on the subjects that he is being asked to do so by the

 6     Prosecution.

 7             The details of the matters here fall far short of the expertise

 8     that is being sought from him by the Prosecution, and the danger is that

 9     Your Honours get an expert opinion suiting a party that is flawed in the

10     extent and knowledge of the opinion giver.  A lot of people may be ready

11     to give opinions on matters, we all know that.  But it's how

12     authoritative that opinion is to be if it is to come into a court of law

13     and be part of the evidence in the case.

14             Thank you.

15             JUDGE ORIE:  Thank you, Mr. Kay.

16             Mr. Waespi, it's -- it was not my intention to make this an

17     endless exercise.  You started, I think, when I invited the parties to

18     comment on the suggestion.  Then the Defence, then you.  So I think this

19     should conclude, at this moment, the comments the Chamber invited the

20     parties to make.

21             The Chamber will consider your observations, as I said before,

22     when determining how to proceed.

23             MR. KEHOE:  Yes, Your Honour.  I did have one other issue which

24     we --

25             JUDGE ORIE:  Yes.  There was another issue, and I don't know

Page 12122

 1     whether you had the same on your mind or not, because when talking about

 2     expertise, we're talking about delineation of expertise, and you also

 3     raised the issue of the reverse of the burden of proof, which was of some

 4     concern to you as well.

 5             MR. KEHOE:  Yes, Your Honour.  Can I add one issue on the motion

 6     to compel, the prior draft.

 7             JUDGE ORIE:  Yes.  That is the other matter I had on my mind,

 8     having dealt with the expertise.  The Chamber of course has received the

 9     motion asking for disclosure of prior versions of the -- of the expert

10     report and the Chamber is grateful for having received yesterday evening,

11     although not very early, the courtesy copy of the response which, I take

12     it, Mr. Waespi, was filed this morning?

13             MR. WAESPI:  That's correct, Mr. President.

14             JUDGE ORIE:  Yes.  Is there any need to briefly respond to the --

15             MR. KEHOE:  Yes, Your Honour.  I mean I certainly received

16     their -- I would do it as briefly as possible --

17             JUDGE ORIE:  [Overlapping speakers] ... yes, if you would remain

18     within four to five minutes.

19             MR. KEHOE:  Yes, Your Honour.  First of all, with regard to the

20     Prosecution's argument that Rule 66 doesn't apply, there have been any

21     number of disclosures concerning Mr. Theunens that highlight Rule 66 as

22     the reason for the disclosure.  And I point Your Honour to a letter from

23     Mr. Russo dated 12 November 2008 that highlights that the disclosure was

24     being made pursuant to Rule 66(B), as well as an e-mail from the case

25     manager of the 14th of November, 2008, which highlights that matter.

Page 12123

 1             So the argument that they put forward that the disclosure just

 2     comes within Rule 94 bis is simply not applicable.  Rule 66 is applicable

 3     and it does bear on the Defence.  I mean, 66(B) will allow us to examine

 4     matters that are material to the Defence.  What is it we're asking for?

 5     We're not asking for every bit, note or comment that Mr. Theunens did.

 6     What we are asking for is a particular draft of a document.

 7             Mr. Theunens told us in a meeting in January of this year that he

 8     gave a copy of his report to the Office of the Prosecutor in March of

 9     2007.  Thereafter, there were other inputs down the line coming to his

10     final report in December.  But there is at least one concrete discrete

11     report that Mr. Theunens has given to the Office of the Prosecutor.  So

12     let us be clear that the Defence is not interested in all these other

13     notes, but they are interested in that particular report.

14             Now I will say to you as well that between the first report and

15     the second report, Mr. Theunens told us that he not only read the

16     Prosecutor's pre-trial brief but he read the Defence's pre-trial brief

17     prior to the filing of that report.  That makes it quite interesting when

18     one would analyse the evolution of those opinions.  And under -- not only

19     is it covered by Rule 66, it is potentially covered by Rule 68.  Why?

20             Rule 68 has got two parts to it.  One of which is exculpatory,

21     but the other part of it is:  Does the information affect the credibility

22     of the Prosecution's evidence?  If in fact it does, or can affect the

23     credibility of the Prosecution's evidence, this is an disclosure

24     requirement by the Office of the Prosecutor.  We are hamstrung at this

25     report to say that it does or it doesn't, because we simply don't have

Page 12124

 1     it.

 2             Now, we were given copies of the -- Mr. Theunens's prior reports

 3     in other cases, pursuant to 66(B).  We simply ask for a copy of this

 4     report pursuant to that same guideline.  If the issue, as Your Honour put

 5     forth, is one of methodology and an evolution of an opinion, this is

 6     directly applicable to that.  And I will note for Your Honour that in

 7     your -- the Court's ruling of the 17th of November, paragraph 29, in the

 8     last sentence Your Honour notes:  "The Chamber considers that great

 9     transparency is needed with regard to this process and instructs the

10     Prosecution, during the examination, to explore with Mr. Theunens his

11     methodology in this report."

12             The issue of great transparency is paramount in this.  Why?

13     Because the Prosecution, number one, is putting forth a witness who is

14     part of the Office of the Prosecutor.

15             Number two, he has written a prior report which clearly changed

16     prior to the ultimate filing of that report.

17             Number three, the Defence is entitled to explore the bases for

18     those changes.  Was it through additional education or was it through

19     influence coming from the members of the Office of the Prosecutor?  Did

20     the Office of the Prosecutor have a particular point they wanted to make

21     and thereby have Mr. Theunens include that point in his expert report

22     that theretofore had not been included in it.  I submit, Your Honour,

23     that that last aspect of it will be borne out during the course of

24     cross-examination.

25             But the issue generally speaking, Your Honour, is why, in the

Page 12125

 1     level of disclosure in this Chamber, is the Prosecution not disclosing

 2     that document to the Chamber?  Why does the Prosecution not want the

 3     Trial Chamber to see that document?

 4             The burden is on the Office of the Prosecutor to come before this

 5     Chamber and make an argument as to why Rule 66(B) does not apply.  They

 6     haven't done so.  There is nothing in their filing that comes before this

 7     Chamber that says that it doesn't apply.  The only argument that they

 8     come forward of any -- worthy of any discussion is it would be too

 9     difficult to take a brief as it goes through different iterations of

10     evolution.  Again let us be clear.  The Defence is not asking for that.

11     We are asking for the discrete reports that Mr. Theunens gave to the

12     Office of the Prosecutor.  And we know, based on a discussion with

13     Mr. Theunens, there was at least one of them that was provided to the

14     Office of the Prosecutor in mid-March of 2007.  If there are others, we

15     would like those as well.

16             JUDGE ORIE:  Mr. Kay is still hidden behind Mr. Kehoe.  Now he

17     appears.

18             MR. KAY:  No comment from me.

19             JUDGE ORIE:  Mr. Waespi.

20             MR. WAESPI:  Thank you, Mr. President.

21             In relation to the disclosure, yes, we explained, I think, very

22     precisely in our response of last night that Rule 66(B) does not apply.

23     Lex specialis is for expert reports, Rule 94 bis.  And 94 bis says that

24     the final report has to be disclosed and not draft ones.

25             Second, this was, as we explained, a work in progress.  Yes, a

Page 12126

 1     draft was submitted to the Prosecution team at one time.  There was no,

 2     absolutely no interference from the Prosecution team to the expert about

 3     changing anything.  I'm not aware of any substantive changes.  If there

 4     was interference from the Prosecution into the way that the expert

 5     drafted his report, advanced it after the draft, we would have disclosed

 6     it under Rule 68, that's for sure.  That is our obligation.

 7             We don't feel, based on what I just said, that we had the

 8     obligation to disclose the draft report.

 9             The first argument Mr. Kehoe made about recent disclosure by

10     Mr. Russo, that was a totally different matter, had nothing to do with a

11     draft of an expert report.  These were normal disclosures, I think,

12     because the Defence wanted -- I think, the taskings.  As we have seen

13     produced by Mr. Kay, 65 ter 6111, I believe, was triggered by a Rule 66

14     (4)(b) [sic] request and other material, but certainly we did not

15     disclose under that title a draft, and we're not required by the rules to

16     disclose a draft, a work in process by the expert.

17             If that was the case, we had to disclose in all other cases every

18     single time an expert producing something, gives it to the trial team,

19     that would need be to disclosed.  I have not seen any single case, and I

20     have been here for 14 years, that in this Tribunal, and that's just not

21     determinative but that is an indication, one single case when a draft

22     report had to be produced or was produced for which there was a final

23     later produced.  I think there were cases when draft reports have been

24     produced because there was no final report available at one time.

25             JUDGE ORIE:  Mr. Waespi, in that respect, could I ask you one

Page 12127

 1     question.  Apparently there's disagreement on whether Rule 66 applies or

 2     not.  Now you said it never happened, that draft report had been

 3     presented.

 4             Was it ever asked?  Because Rule 66(B), of course, and

 5     unfortunately I, by mistake, took my French version which is as valid as

 6     the English one.  It starts with, sur demand, on request.  Let me -- yes,

 7     the Prosecutor shall on request.  So therefore if you say it never

 8     happened, my question would be, just on the assumption that Rule 66(B)

 9     would apply, then whether ever any request was made, because if there is

10     no request one could not expect disclosure which is specifically provided

11     for to be made at the request of the other party.

12             MR. WAESPI:  Yes.  We received an e-mail from the Defence.  I

13     think a few days ago.

14             JUDGE ORIE:  No.  But I mean, you said it never happened in this

15     Tribunal.

16             MR. WAESPI:  Yes.

17             JUDGE ORIE:  Was it other cases requested?

18             MR. WAESPI:  I am not aware.  I just know that the result -- I

19     have asked teams and I looked at jurisprudence and I have not come at an

20     instance where a team voluntarily exceeded to a request or was forced by

21     a Trial Chamber.

22             JUDGE ORIE:  Yes, but was there ever any request?

23             MR. WAESPI:  I don't know.  I just haven't seen any emerging.

24             JUDGE ORIE:  Okay.  Thank you for that information.

25             Mr. Kehoe.

Page 12128

 1             MR. KEHOE:  Briefly, Your Honour.

 2             There is nothing reflected in the jurisprudence in this Court

 3     that anybody has ever asked for this before.

 4             JUDGE ORIE:  Is there anything reflected in the -- which

 5     specifically says that Rule 66 applies on drafts of expert reports?

 6             MR. KEHOE:  It doesn't say that, either.

 7             JUDGE ORIE:  So the claim of both Prosecution and Defence finds

 8     no explicit report -- support in the case law of this Tribunal in

 9     relation to draft expert reports.

10             MR. KEHOE:  Yes, Your Honour.

11             JUDGE ORIE:  Yes.

12             MR. KEHOE:  I will note that the prior reports of -- in Martic

13     and Seselj cases were in fact disclosed by the Office of the Prosecutor

14     pursuant to 66(A) and 66(B).

15             And just with regard to the entire matter, the Defence is

16     entitled to explore at minimum the effect that this witness's reading of

17     the Defence trial briefs altered in some fashion his report that he filed

18     before this Court.  And -- yes, Mr. President.

19             JUDGE ORIE:  Mr. Kehoe, if I may interrupt you there.

20             You tell us what Mr. Theunens told you, and Mr. Waespi said what

21     was -- what happened and what did not happen in the Office of the

22     Prosecution, of course, in which the Chamber was inclined, as a matter of

23     fact, and I will put this to you now in a different way.  The Chamber was

24     inclined to rule, and up till the moment of this further submissions, the

25     Chamber had not yet found -- but of course we'll consider that also after

Page 12129

 1     your submissions maybe this afternoon.  The Chamber had not found a

 2     sufficient basis to grant the motion, but at the same time, the Chamber

 3     wanted to express that it certainly is not blind for the concerns you

 4     expressed.  And the Chamber, therefore, would have suggested to the

 5     parties that the parties would further explore the drafting of the

 6     report, how the report developed, whether any version was given to the

 7     Office of the Prosecution, whether -- well, all the kind of matters you

 8     are raising which of course this Chamber has no -- no evidence apart from

 9     that it's the position by the parties.  And therefore to give an

10     opportunity to the parties to further explore this from a point of view

11     of facts, did you ever give a report, was that 300 pages, was that 100

12     page, why did it grow so much, did you change any of the conclusions,

13     have there been conversations, whatever, to further explore that matter.

14     And either to do that during cross-examination, but seeing how important

15     the issue is for the -- for the presentation of the evidence, if it comes

16     to that, as a whole, also to give an option to the Defence to request

17     that this would be done similarly to the issue of the expertise at the

18     beginning and before going into the substance of the evidence, if that --

19     if the answers to those questions would cause us to reconsider what was

20     at least until one hour ago, our provisional conclusion, of course we

21     will then consider that.

22             That is what the Chamber had in mind before you made your

23     additional submissions and I invite both parties to also comment in the

24     next three to four minutes on this suggestion.

25             MR. KEHOE:  I mean ...

Page 12130

 1             MR. WAESPI:  Yes.  I can certainly explore the fact that

 2     Mr. Theunens submitted a first report in March 2007.  I can tell him what

 3     was part of that, what changed after that.  I can explore that.

 4             JUDGE ORIE:  You say you do not oppose this suggestion and would

 5     you object to doing that before going into the substance of your

 6     examination-in-chief.

 7             MR. WAESPI:  Not at all.

 8             JUDGE ORIE:  Mr. Kehoe.

 9             MR. KEHOE:  Your Honour, we can explore that and certainly the

10     burden is not on the Defence, it is on the Prosecution to demonstrate

11     that this material pursuant to 66(B) is not material to the preparation

12     of the Defence given that there is no privilege set forth by the

13     Prosecution on this score.  The difficulty, and we will pursue the matter

14     as Your Honour has outlined, the difficulty being that absent some check

15     on that testimony, we have no way to determine whether or not the account

16     being rendered by Mr. Theunens is accurate.

17             We simply are stuck with what he is saying, and that's -- while I

18     appreciate -- [Overlapping speakers] ...

19             JUDGE ORIE:  If Mr. Theunens comes and testifies after he has

20     given a solemn declaration, Mr. Theunens can be expected, as any other

21     witness in this courtroom, to tell us the truth and if there's any doubt

22     about that it can be tested by cross-examining, that's for certain.

23             MR. KEHOE:  And I appreciate that and I'm sure that he will do

24     his best in that regard, but oftentimes facts are ones that go to

25     perspective and checking any change in that perspective from one -- from

Page 12131

 1     one report to another, merits scrutiny of the report so we can determine

 2     what caused that.  That is ultimately where we want to go.  I'm not

 3     questioning Mr. Theunens' credibility coming in here and testifying

 4     before this Chamber as an officer of the Court.  My question is making a

 5     determination or asking questions concerning any degree of an evolution

 6     of some opinion or changes in those opinions which absent the actual

 7     report is, I think, difficult for the Chamber to even ascertain.

 8             JUDGE ORIE:  Thank you.  I'm looking at the clock.  Of course the

 9     Chamber has to consider how to proceed under the present circumstances.

10             There is another matter.  That is, that several decisions have to

11     be read out and knowing that the testimony of Mr. Theunens will take

12     quite some time and also being aware how difficult it often is to find

13     time not to rush to the limit of 7.00 or quarter to 2.00, the Chamber

14     will deliver a few decisions at this moment.  Then we will have a break.

15     During the break, the Chamber will consider the submissions made by the

16     parties, and the Chamber will then determine how we will proceed.

17             At the same time, this gives an opportunity to the parties to

18     already anticipate that, if the Chamber would proceed as it suggested,

19     that apart from listening to my voice you could already start thinking

20     about how to deal with the examination of the witness to follow.

21             I first will give the reasons for the decision to admit P986,

22     P987, and P988 into evidence.

23             The decision to admit these exhibits into evidence is to admit

24     them with redactions.

25             By way of a written submission filed on the 8th of October, 2008,

Page 12132

 1     and oral submissions on the 14th of October, 2008, at transcript pages

 2     10.568 to 10.570, the Gotovina Defence objected to the admission of

 3     Exhibit P988, a report prepared by International Helsinki Federation for

 4     Human Rights, to which I will refer as the IHF, on behalf of the

 5     Organisation for Security and Cooperation in Europe, or the OSCE.

 6             The objection was based on the report's lack of foundation and

 7     use of hearsay.  Following that objection, on the 8th of October, 2008,

 8     the Markac Defence withdrew its original submission that posed no

 9     objection to the admission of Exhibit P988 and objected to the admission

10     of the evidence based on the same grounds that the Gotovina Defence put

11     forward.

12             Further, by way of a written submission filed on the 14th of

13     October, 2008, and oral submissions on the same day, which are found at

14     transcript pages 10.568 and 10.569, the Gotovina Defence objected to the

15     admission of large portions of the two 92 ter statements, Exhibits P986

16     and P987.

17             The Prosecution had submitted its 92 ter motion dealing with

18     Exhibits P986, P987 and P988 on the 23rd of September, 2008.  The

19     Gotovina Defence did not file its response to it until the 8th of

20     October, 2008, and the 14th of October, 2008, which fell beyond the

21     14-day deadline for filing a response, pursuant to Rule 126 bis.

22             Further, the Markac Defence withdrew its original submission,

23     dated the 4th of October, 2008, and filed its objection to Exhibit P988

24     on the 8th of October, 2008, which also fall beyond the 14-day period

25     stipulated by Rule 126 bis.

Page 12133

 1             Having considered this, on the 14th of October, and I will not

 2     further refer to the year.  If not specified it is always 2008.  The

 3     Chamber nonetheless decided to consider the objections on their merits

 4     and the Chamber heard arguments from both the Prosecution and Defence.

 5     This can be found at transcript pages 10.568 through 10.574, and 10.577.

 6             On the 14th of October, the Chamber decided to admit P986, P987,

 7     and P988 into evidence.  This decision can be found at transcript pages

 8     10.578 and 10.579.

 9             The Chamber found that with regards to the two 92 ter statements

10     tendered by the Prosecution, the criteria set out in Rule 92 ter had been

11     met.  Based on the Chamber's guidance of the 13th of October, found at

12     transcript page 10.480, regarding the Chamber's primary interest in a

13     witness's own observations, the Gotovina Defence objected to large

14     portions of P986 and P987.  It objected to every part of Hayden's

15     statement not based on personal observation and any conclusions that were

16     without foundation.  In making these arguments, the Gotovina Defence

17     misapplied the Chamber's guidance.

18             Admission of hearsay evidence, as per Rule 89(C), is well

19     established in the Tribunal's case law, and the Chamber will, as it has

20     done so far with all other hearsay evidence, assess the relevance and

21     probative value of the hearsay evidence, in the context of the evidence

22     presented as a whole.

23             With regard to opinions and conclusions of witnesses, although

24     not necessarily to be redacted from Rule 92 ter statements or disallowed

25     in oral testimony, the parties are reminded to provide a foundation for

Page 12134

 1     those and that failure to do so will result in little or possibly no

 2     weight to be given to that evidence.

 3             The second argument raised by the Defence regarded the evidence

 4     that witness William Hayden provided as to the observations of

 5     Lieutenant-Colonel Hjertnes.  Hjertnes was on the Prosecution's original

 6     witness list dated the 16th of March, 2007, but by a motion dated the 4th

 7     of February, 2008, the Prosecution sought to remove Colonel Hjertnes and

 8     replace him with another witness.

 9             On the 10th of March, despite objections from the Gotovina

10     Defence, the Chamber allowed the Prosecution to remove Colonel Hjertnes

11     from the witness list, which is found at transcript pages 403 and 404.

12             At transcript page 10.569, the Gotovina Defence submitted that by

13     introducing the evidence of Hjertnes through William Hayden, the

14     Prosecution would be allowed to circumvent calling Lieutenant-Colonel

15     Hjertnes to testify.  Under these circumstances, the Chamber did not find

16     it appropriate to include those portions of Exhibits P986 and P987, which

17     referred to Hjertnes's evidence.  The two statements were admitted

18     subsequent to the redaction of paragraph 2 in Exhibit P986 and paragraph

19     7 and part of paragraph 26 in Exhibit P987.

20             Exhibit P988 is a report prepared by the IHF for the OSCE.  Under

21     Rule 89(C), the Chamber may admit into evidence any document that it

22     deems to be relevant and have probative value.  The exhibit, compiled as

23     a result of a fact-finding mission of the IHF to the Krajina area between

24     the 17th of August, 1995, and the 19th of August, 1995, is relevant as it

25     concerns a period and an area both within the ambit of the indictment.

Page 12135

 1     The IHF report documents incidents that the mission were involved with,

 2     such as an interview with the accused, Ivan Cermak, and his liaison

 3     officer, Karolj Dondo, and the Croatian civilian political commissioner,

 4     Petar Pasic.  Also detailed is a visit by the mission to the cemetery in

 5     Knin, as well as numerous details from UN officials and displaced Serbs

 6     on killings, looting, and burning that they alleged to have seen.

 7             The Chamber has found no reason to consider the IHF, which is an

 8     uninterested party, as anything other than a neutral source.  The report

 9     references its sources where available, including, United Nations

10     officials and displaced Serbs.  Furthermore, it is clear that the mission

11     did meet with the accused, Ivan Cermak, and his liaison officer,

12     Karolj Dondo, and Petar Pasic.

13             For these reasons, the arguments put forward by the Gotovina and

14     Markac Defences that the exhibit lacked foundation and is largely based

15     on hearsay were rejected by the Chamber.  The Chamber did, however, find

16     that the redaction of part 5.4.6 of the IHF report relating to the

17     evidence of Lieutenant-Colonel Hjertnes, as agreed by the Prosecution and

18     the Defence at transcript page 10.602, is acceptable, based on the

19     reasons explained previously, in relation to the Exhibits P986 and P987.

20             The Chamber also ordered the redaction of part 6 of the report,

21     as suggested by the Markac Defence at transcript page 10.604, as it is

22     not relevant to the indictment, because it deals with the events in

23     Sector North.

24             This concludes the Chamber's reasons for its decision to admit

25     Exhibits P986, P987, and P988 into evidence.

Page 12136

 1             I will now read the Chamber's guidance regarding the use of

 2     hearsay evidence and various issues related to the use of statements

 3     given to the parties during witness proofing and cross-examination.

 4             On the 14th of October, 2008, at transcript pages 10.573 through

 5     to 10.575, the Gotovina Defence sought guidance from the Chamber

 6     regarding three issues.  The first related to the cross-examination of a

 7     Prosecution witness who introduces hearsay testimony related to another

 8     witness who was once on the Prosecution's witness list but has since been

 9     removed.

10             The second related to whether, prior to making attestations

11     pursuant to Rule 92 ter, a witness should be given the benefit of seeing

12     all statements made by that witness in the possession of the Prosecution,

13     including statements previously given by the witness to the Defence.

14             The third issue related to whether and to what extent the Defence

15     should be allowed to put questions to a witness in cross-examination

16     without any line or page reference to the witness's 92 ter statement or

17     transcript.

18             In reference to the first issue, the Gotovina Defence argued, at

19     transcript page 10.573, that the Prosecution should not be allowed to

20     circumvent calling a witness by essentially having another witness

21     testify about the evidence that would have been contained in the first

22     witness's testimony had he appeared before the Trial Chamber.  Therefore,

23     the Gotovina Defence submitted, on behalf of all three Defence teams,

24     that such testimony should either be excluded or, in order to protect the

25     defendant's rights under Article 21, the Defence should be allowed to

Page 12137

 1     challenge such testimony by putting other hearsay testimony to that

 2     witness during cross-examination.

 3             Rule 89(C) allows the Chamber to admit any relevant evidence

 4     which it deems to have probative value.  Admission of hearsay evidence

 5     under Rule 89(C) is well settled within the Tribunal's practice.  The

 6     Chamber will, as it has done so far, assess the hearsay evidence's

 7     relevance and probative value on a case-by-case basis.  Needless to say,

 8     the admissibility of hearsay applies to both parties, and the Defence is

 9     therefore allowed the same latitude to employ hearsay evidence during the

10     cross-examination of a Prosecution witness that supplies hearsay

11     evidence.

12             This said, the Chamber emphasises that its primary interest in

13     hearing a witness's testimony is, of course, to learn the facts as

14     established through the witness's own observation.  The Chamber therefore

15     reminds the parties, and in particular the Prosecution, of their duty to

16     carefully select the best evidence to present to the Chamber in the most

17     comprehensible and efficient manner.  While hearsay evidence may be

18     admitted because it appears probative and relevant to the case, the

19     weight the Chamber ultimately chooses to attach to it will be evaluated

20     in the context of the evidence presented as a whole.  Such evidence may

21     therefore ultimately be given no weight if its significance in the

22     context of all the evidence remains obscure.  Alternatively, hearsay

23     evidence may come to be treated as corroborative of better evidence.

24             As for the specific situation when a Prosecution witness

25     introduces hearsay testimony related to another witness who was once on

Page 12138

 1     the Prosecution's witness list, but has since been removed, the Chamber

 2     has addressed one such instance in its reasons for the decision on

 3     admission of P986, P987 and P988, which I have just read.  The Chamber

 4     will deal with this particular kind of hearsay evidence on a case-by-case

 5     basis.

 6             Regarding the second issue, the Gotovina Defence suggested, at

 7     transcript page 10.575, that prior to making attestations pursuant to

 8     Rule 92 ter, a witness should be given the benefit of seeing all

 9     statements in the possession of the Prosecution, including statements

10     previously given to the Defence.  The Defence submitted that doing so

11     would allow the witness an opportunity to refresh his recollection, as

12     well as alert the witness to the fact that there's nothing wrong with

13     providing statements to the Defence.  In this manner, the Defence argued

14     that a witness will be full possession of all the facts, the parties will

15     be able to move through his testimony more expeditiously, and there is a

16     diminished possibility that the witness will unwittingly attest to

17     several contradictory statement.  Those arguments can be found at

18     transcript pages 10.178 to 10.190.

19             While the Chamber recognises that it is in the Prosecution's

20     interest that its witnesses be aware of all statements made by them and

21     in possession of the parties, it is in this respect up to the parties to

22     decide how to proof their witnesses.  The Chamber therefore refrains from

23     issuing any further guidance on the matter.

24             Regarding the third issue, the Gotovina Defence submitted at

25     transcript page 10.575, that there is some value in allowing the Defence

Page 12139

 1     to test a witness's ability to independently provide the Chamber with

 2     testimony, aside from that contained within his or her 92 ter statements.

 3     Consequently, at transcript page 10.575, the Defence requested leave to

 4     put questions to the witness without any line or page reference to the

 5     witness's 92 ter statements or the transcript.

 6             The Chamber considers that there is normally no need for the

 7     Defence to direct a witness to a specific page or line when referring

 8     back to a witness's evidence given during the examination-in-chief or in

 9     a Rule 92 ter statement.  The Chamber emphasises, however, the importance

10     of not mischaracterizing the witness's words and thereby misleading or

11     confusing the witness.  When a party's characterization of evidence given

12     is called into question, that party will be expected to provide a

13     specific line or page reference to the previous testimony so that the

14     Chamber can assess the accuracy of the party's characterization.  In this

15     manner, we will avoid improper reformulations of a witness's statement.

16             This concludes the Chamber's guidance.

17             I will now deliver the Chamber's decision on the admission of the

18     videos P842, P846, P848, and P854, currently marked for identification.

19             By a written submission filed on the 2nd of September of this

20     year, and again by oral submissions in court at transcript page 8332, the

21     Prosecution sought to tender into evidence the entirety of four videos

22     with witness Soren Liborius.  These videos record the witness,

23     accompanied by two members of the Dutch police, and two representatives

24     of the Prosecution, driving through a number of villages in the former

25     Sector South, between the 16th and the 21st of May of 1997.  In these

Page 12140

 1     videos the witness provides a description of the areas travelled through

 2     as well as specific information in relation to events that he witnessed

 3     in the area in his capacity as an EUMM monitor during August and

 4     September of 1995.

 5             Portions of the videos, P842, P846, and P848 were played in court

 6     on the 9th of September, 2008.  These portions were given separate

 7     exhibit numbers and admitted into evidence.  No portions of video P854

 8     were played in court.

 9             At transcript page 8332, the Prosecution submitted that the

10     videos in their entirety would provide the Chamber with a good view of

11     the area around Knin.

12             The Defence did not object to the admission of the separate

13     portions of the videos into evidence, but added that if the transcripts

14     of the entire videos were to be submitted for the truth of what was said

15     on the videos, then the appropriate 92 ter attestation should be made by

16     the witness.

17             In paragraphs 35 and 36 of the witness's 92 ter statement of the

18     20th of June, 2008, Exhibit P802, and on transcript pages 8332 and 8333,

19     the witness stated that he was able to review the four videos in June of

20     2008, as well as the unrevised transcripts of the videos, that he made

21     corrections in the transcripts where necessary, and that the commentary

22     in the videos was based on his independent recollection at the time.

23     Questioned as to if he were to make the same comments on the videos if

24     asked to do so in court, the witness confirmed that he would.

25             On this basis, the Defence, on transcript page 8334, expressed

Page 12141

 1     that it had no further objections to the admission of the videos into

 2     evidence.

 3             The Chamber has viewed the videos and concludes that each of them

 4     contains some relevant evidentiary material.  This material deals with

 5     contemporary events that the witness personally observed or heard about

 6     in his capacity as a EUMM monitor in the former Sector South.  The events

 7     that the witness describes in the videos are often also recorded in his

 8     Rule 92 ter statements.  Further, P820, a map admitted into evidence

 9     through the witness, marks the locations that the witness refers to in

10     the four videos, as well as the location of the check-points the witness

11     saw or knew about in 1995.

12             The Chamber emphasises that it does not deem all the information

13     contained in the videos and their transcripts to be relevant.  However,

14     in order to avoid compelling the parties to engage in the exercise of

15     splitting up the separate videos into smaller portions, the Chamber has

16     decided to deal with P842, P846, P848, and P854 in their entirety.

17             For the foregoing reasons, the Chamber decides to admit P842,

18     P846, P848, and P854 into evidence, and requests the registrar to change

19     their status in e-court accordingly.

20             And this concludes the Chamber's decision.

21             I have one small one to deliver.  I will do that before the

22     break.

23             These are the Chamber's reasons to hear the testimony of

24     Milica Djurica via video-conference link.

25             On the 10th of October, 2008, the Prosecution filed a motion

Page 12142

 1     requesting that the testimony of Milica Djurica be heard via

 2     video-conference link from Belgrade on the 29th of October, 2008.  All

 3     three Defence teams filed responses indicating that they did not object

 4     to the motion being granted.

 5             On the 16th of October, the Chamber gave an oral decision

 6     granting the motion with reasons to follow.  The witness provided

 7     evidence in this case via video-conference link on the 29th of October.

 8             According to Rule 81 bis of the Tribunal's Rules of Procedure and

 9     Evidence, a Chamber may order that proceedings be conducted by way of a

10     video-conference link if it is consistent with the interests of justice.

11     The test of Rule 81 bis is met if the witness is unable to come to the

12     Tribunal, if the testimony of the witness is sufficiently important to

13     make it unfair to the requesting party to proceed without it, and if the

14     accused is not prejudiced in the exercise of his or her rights to

15     confront the witness.

16             In reaching its decision, the Chamber considered the advanced age

17     of Milica Djurica, who is in her 70s, as well as her physical condition.

18     An investigator of the Prosecution who visited Milica Djurica stated that

19     she had told him that while she was willing to testify, her mobility was

20     very limited due to a spinal problem which resulted in her not travelling

21     far from her house.  The witness told the investigator that because of

22     this she was concerned about travelling by plane to The Hague but

23     believed that she would be able to undertake the journey to Belgrade in

24     car in order to testify.

25             The Chamber was therefore satisfied that the advanced age and

Page 12143

 1     physical condition of Milica Djurica resulted in her being unable to

 2     travel to the Tribunal to testify.

 3             The witness was expected to testify, inter alia, about scheduled

 4     killing incident number 2, the murder of her husband, Savo Djurica.  The

 5     Chamber was therefore satisfied that her prospective testimony was

 6     sufficiently important to make it unfair for the Prosecution to proceed

 7     without it.

 8             Finally, the Defence did not argue, and the Chamber did not find

 9     that the accused would be prejudiced in the exercise of their right to

10     confront the witness.  Consequently, the Chamber found that it was

11     consistent with the interests of justice to grant the Prosecution's

12     request to hear Milica Djurica's testimony via video-conference link, and

13     the Prosecution' motion was therefore granted.

14             And this concludes the Chamber's reasons for its decision on

15     there matter.

16             We'll have a break.  We'll resume at 20 minutes past 4.00.

17                           --- Recess taken at 3.53 p.m.

18                           --- On resuming at 4.35 p.m.

19             JUDGE ORIE:  It took the Chamber a bit more time to determine how

20     to proceed.

21             The Chamber has reconsidered the provisional conclusions of the

22     basis of the written submissions as far as any duty to disclose the

23     previous versions of the expert report.  The Chamber has not concluded

24     that, on the basis of the facts presented to it, that there is an

25     obligation under the Rules to disclose a copy of a previous version of

Page 12144

 1     the report to the Defence.  However, the Chamber gives an opportunity to

 2     both parties to, at the very beginning of the testimony of Mr. Theunens,

 3     to explore the genesis of the expert report.  The Chamber might even ask

 4     a few questions in relation to this as well.  And if there would be ever

 5     any reason to revisit this matter, the Chamber will do so, if the parties

 6     ask for it.

 7             So that would be the first portion of the evidence to be given by

 8     Mr. Theunens.

 9             Then after that, of course, then both party also have 15 minutes

10     to explore the matter with the witness.

11             After that the Chamber would invite the Prosecution to, first,

12     deal with expertise, scope of expertise, methodology first.  Then to stop

13     the examination-in-chief so that an opportunity will be given to the

14     Defence to cross-examine the witness specifically on that issue in more

15     general terms.  Of course if there's any methodological issue on a

16     detail, then of course it might not be a good thing to introduce that

17     already at the beginning, but so that we have a general overview of what

18     is considered relevant by the Prosecution and by the Defence as far as

19     the scope and the nature of the expertise of this expert is concerned so

20     that we have this well on our mind if we hear the remainder of the

21     evidence of this expert; that is, on the substance of his report, the way

22     in which he analysed documents and in which he has drawn conclusions, has

23     formulated opinions on those matters.

24             That's how we will proceed.

25             MR. WAESPI:  Just one point of clarification, Mr. President.

Page 12145

 1             Obviously the scope of the expertise of Mr. Theunens is very

 2     closely related to his work experience, his training, so I will lead him

 3     through that if -- because --

 4             JUDGE ORIE:  Yes.  I take it that education, background,

 5     experience, is of course -- may be relevant facts for assessing the level

 6     of expertise.  But we start with another issue.

 7             MR. WAESPI:  Yes, I'm aware of that.

 8             JUDGE ORIE:  The other issue being the genesis of this report, so

 9     irrespective of whether it was -- whether Mr. Theunens would qualify as

10     an expert, but mainly focussing on how long did you work on it, did you

11     ever discuss it, was there any previous version presented, has it been

12     discussed, and these kind of matters.

13             MR. WAESPI:  Yes.

14             JUDGE ORIE:  No further -- is the ruling of the Chamber clear to

15     everyone?

16             Then, Mr. Waespi, are you ready to call Mr. Theunens.

17             MR. WAESPI:  Yes, Mr. President.

18             JUDGE ORIE:  If ever reference or -- to the report or to the

19     addendum is made, I would very much appreciate if you would give page

20     numbers rather than paragraph numbers, because I have no hard copy with

21     me and I will try to find the pages which is in other way more easy than

22     paragraphs.

23             MR. KEHOE:  I think it is it going to be separated 65 ter

24     numbers, part one and part two.  That doesn't cover the summary that's

25     the preliminary 15 or so pages in the report, from my recollection.

Page 12146

 1                           [The witness entered court]

 2             JUDGE ORIE:  Okay.  We'll find a practical way of resolving that.

 3             Good afternoon, Mr. Theunens.

 4             THE WITNESS:  Good afternoon, Your Honours, Mr. President.

 5             JUDGE ORIE:  Mr. Theunens, before you give evidence in this

 6     court, the Rules of Procedure and Evidence require that you make a solemn

 7     declaration that you speak the truth, the whole truth and nothing but the

 8     truth.

 9             THE WITNESS:  I solemnly declare that I will speak the truth, the

10     whole truth, and nothing but the truth.

11             JUDGE ORIE:  Thank you very much, Mr. Theunens.

12                           WITNESS:  REYNAUD THEUNENS

13             JUDGE ORIE:  Please be seated.

14             THE WITNESS:  Thank you, Your Honour.

15             JUDGE ORIE:  Mr. Theunens, I will first explain to you how we

16     will proceed.

17             You'll first be examined on matters relating to what I call the

18     genesis of the report you have provided.  That will not take very long.

19     Then the Defence will have an opportunity to cross-examine you on that

20     matter.  Then we'll move on to the next subject, which is your

21     experience, your expertise, your qualifications, and your methodology.

22     That will also be dealt with by being examined first by the Prosecution

23     and then by the Defence, and then finally we'll move on to the content,

24     the substance of the report.

25             Now, before we -- before I give an opportunity to Mr. Waespi

Page 12147

 1     to -- to ask you questions about what I call the genesis of this -- of

 2     the report you have provided to the Office of the Prosecution, I would

 3     like to know from you:  Has there been a version at an earlier stage

 4     which you have presented to the Office of the Prosecution or to the

 5     counsel which appear in this case?  Do you remember that?

 6             THE WITNESS:  Indeed, Mr. President.  The initial deadline I was

 7     given for my report was March 2007, and at that stage, I sent an

 8     unfinalised draft report to Mr. Alan Tieger, who was -- who is the Senior

 9     Trial Attorney.  I may have also sent that draft to other senior members

10     of the Prosecution team.  However, I want to emphasise that I did not get

11     any feedback on that draft version, except that the deadline which was

12     initially imposed was extended and that I could continue with the work on

13     the report and finalise it in the following weeks or over the following

14     weeks and months.

15             JUDGE ORIE:  Did you ever discuss this, as you said, not

16     finalised report with any of the members, such as Senior Trial Attornies

17     or other members of the trial team?  Did you ever sit together and have

18     any discussion on the matter?

19             THE WITNESS:  No, Your Honours, I didn't.  The only thing I did

20     was, for example, I discovered that there were a number of gaps, for

21     example, regulations I would have expected to exist in the Croatian armed

22     forces which, based on my research in the information available to the

23     Office of the Prosecutor, were not available to the Office of the

24     Prosecutor.  I was aware that members of the Prosecution team were still

25     visiting archives in Croatia, and therefore, I sent an e-mail, I believe,

Page 12148

 1     to Mr. Tieger but certainly to two of my colleagues in the military

 2     analysis team with a kind of, yeah, a shopping list of regulations I

 3     would be interested in to obtain in order to finalise or include them in

 4     my report.

 5             JUDGE ORIE:  You asked to be provided with material you

 6     considered to be missing in the collection you had available.

 7             THE WITNESS:  That is correct, Mr. President.

 8             JUDGE ORIE:  Yes.  Did you change any conclusions, if conclusions

 9     that you provisionally had drawn in the unfinalised report, that you came

10     to different conclusions in your final report?

11             THE WITNESS:  Actually, Your Honours, there were --

12     Mr. President, there were very few conclusions drawn in the provisional

13     or the unfinalised draft in March because I was conscious of the fact

14     that I did not have had the opportunity to review all the material that

15     was available to me.  So most of the conclusions were only included at a

16     later stage and I have no recollection that any of the conclusions I may

17     have drawn at the early stage in March was changed, or, let's say,

18     significantly changed in order that, for example, I would come to

19     opposite views.  I don't remember such an occurrence.

20             JUDGE ORIE:  Yes.  Do you still have a copy of the

21     March provisional report?

22             THE WITNESS:  Indeed, Your Honours.  I kept copies of all the

23     earlier drafts.  I mean, even if they were drafts for my own use and,

24     yeah, they're in my computer, electronic versions.

25             JUDGE ORIE:  Yes.  Sometimes people replace older versions by new

Page 12149

 1     ones you, but -- so you did not do that.  I do understand that.

 2             Yes.  Would you have any difficulty in providing the

 3     March version to the Defence, which is of course not -- Prosecution knows

 4     it, but do you have any problems in providing that?

 5             THE WITNESS:  No, Your Honours.  I have no problem whatsoever in

 6     providing that draft to any of the parties.

 7             JUDGE ORIE:  Yes.

 8             THE WITNESS:  Including the Trial Chamber if you want to see it.

 9             JUDGE ORIE:  Yes.  Well, of course what is to be presented to the

10     Trial Chamber depends on what the parties decide to bring to our

11     attention.

12             Mr. Theunens, you'll be -- further questions will be put to you

13     by the parties on, again, the genesis of the report.  It might be that at

14     the end of your examination on this subject that the Defence shows some

15     interest in reading the earlier version.  We'll then come back to that if

16     that wish exists.

17             Mr. Waespi.  15 minutes I said for each party, not more.

18             MR. WAESPI:  Yes.

19                           Examination by Mr. Waespi:

20        Q.   First of all, I think you need to put your name for the record.

21        A.   Your Honours, my name is Reynaud Theunens.

22        Q.   Now going back to the issue of this draft.  Can you tell us what

23     changed from the earlier draft you sent to the team in March 2006 [sic]

24     and the final version that was completed, I believe, in December 2007.

25     What's the difference?

Page 12150

 1        A.   Just a small correction.  The draft was sent in March 2007.

 2             The differences are that in the March 2007 version there was

 3     still headings or titles without any contents following there because I

 4     didn't have time to include that material.  I had that material available

 5     in one way or another, electronically or in hard copy, but I had not

 6     incorporated it in the report.

 7             As I explained to the President, I had not drawn many

 8     conclusions, for example, there was no executive summary yet, obviously

 9     because the report was not finalised.  So if you compare the

10     December 2007 version with the March 2007 version, the differences lay or

11     difference lays in the fact that the December 2007 version is much more

12     complete and has information for all the headings I wish to cover, except

13     if there was no information available, then obviously I removed that

14     heading from the report.

15             And if you allow me, basically -- without wanting to jump steps,

16     the first thing I basically did was to prepare a structure, i.e., a table

17     of contents for my report which included those topics I considered

18     relevant for the task I had been given.  But I assume that you will come

19     back to that later.

20        Q.   Did you add substantive sections in completing the report after

21     March 2007.  Are there subject matters you discussed later which you

22     hadn't covered before?

23        A.   Well, we would have to put the two reports together because I

24     don't know exactly anymore what was missing in the March 2007 report.  I

25     do remember that for headings or for topics I didn't -- I still wanted to

Page 12151

 1     add information, those topics I highlighted in yellow.  I mean, these

 2     highlights are still available.  And I believe, for example, that I

 3     didn't have a detailed breakdown day by day of the events during

 4     Operation Storm.  That is for the second part of the report.

 5             For the first part of the report, I don't think I had detailed

 6     information on air/land battle, for example, because I expected that

 7     there would be a doctrinal manual available within the Croatian armed

 8     forces that would be -- that could I use in order to address that topic.

 9     I found references in a later manual, one from October 1995, which is

10     discussed in the report, but not earlier.  Even though I knew that the

11     doctrine or that concept was applied at an early stage by the Croatian

12     armed forces, and that's why, for example, I finally downloaded a U.S.

13     field manual from the Internet which addressed the topic.

14             But I think when you compare the 2007 version with the yellow

15     highlights on the one hand with the 2008 version, because the structure

16     is for 95 per cent the same, some topics may have changed order, but

17     there is no significant distinction in a sense of new topics, then it

18     will be more clear to see whether or -- what the differences are.  I'm

19     sorry to be so extensive.  I don't remember any significant differences

20     except for the fact that the -- sorry, the December 2007 version is much

21     more complete.

22        Q.   Now when you say that you expected that there would be a

23     doctrinal manual available, I think or air/land battle, how did this

24     issue come up of air/land battle?  Did somebody tell that you it is going

25     to be an issue or did you come to that conclusion on your own?  Can you

Page 12152

 1     tell us more.

 2        A.   Without going into too many details, Your Honours, I knew from my

 3     occupations in the Belgium armed forces that at the latest in 1994, the

 4     Croatian armed forces started to adopt certain aspects of, call it NATO

 5     or United States armed forces doctrine, including air/land battle.  I

 6     remembered a press interview given by the late Croatian minister defence

 7     Gojko Susak on that issue, including the cooperation between the Croatian

 8     Ministry of Defence and the US MPRI, Military Professional Resources

 9     Incorporate Company, sometimes from end of 1994.  I also remember I --

10     when I was serving in UNPROFOR I obtained two brochures, which were kind

11     of public information documents, compiled by the Croatian armed forces

12     on -- on Oluja, Storm 1 and 2, where air/land battle was also being

13     discussed, so therefore I considered that an important aspect to include

14     in my -- or to cover in my report.

15             JUDGE ORIE:  Mr. Waespi, you know that your time is limited.  The

16     witness gives rather lengthy answers.

17             MR. WAESPI:  Yes.

18             JUDGE ORIE:  No problem.  But I leave it to you, you have to

19     manage the time.

20             MR. WAESPI:  In fact, Mr. President, I'm finished in relation to

21     the draft of March.  Obviously there is a lot to cover about the tasking

22     of the entire report, but I understood your guidance --

23             JUDGE ORIE:  While genesis might include the task given, whether

24     it was ever put on paper, I don't know --

25             MR. WAESPI:  Sure, I can go into that if you want right now.

Page 12153

 1             JUDGE ORIE:  Yes.  Within the time-limits I set.

 2             MR. WAESPI:  Sure.

 3             JUDGE ORIE:  Please proceed.

 4             MR. WAESPI:  If 65 ter 6111 could be brought up.

 5        Q.   You told us that you were tasked by Mr. Tieger.  Was there

 6     another STA who was involved at that time?

 7        A.   Indeed.  Mr. Douglas Marks Moore, with whom I -- I had cooperated

 8     in the Vukovar 3 trial, was also involved at that time.

 9        Q.   Is that the original task you received which is here on the

10     screen?

11        A.   That's correct, Your Honours.

12             MR. WAESPI:  If that could be tender, Mr. President.

13             JUDGE ORIE:  Mr. Registrar, number.  Any objections.  No

14     objections.

15             THE REGISTRAR:  Your Honours, this becomes Exhibit number P1110.

16             JUDGE ORIE:  P1110 is admitted into evidence.

17             Please proceed.

18             MR. WAESPI:  Thank you, Mr. President.

19             If we could have the next 65 ter number, 6112, please.

20        Q.   Mr. Theunens, shortly thereafter you received the first task.

21     Did you receive a more detailed one?

22        A.   Indeed, Your Honours.  I remember that there were discussions at

23     that stage about how to best determine my task.  In a sense, that I

24     received -- I had the initial ten-point tasking then my team leader in

25     the military analysis team, Philip Coo, became involved, and subsequently

Page 12154

 1     I received a more detailed 17-point tasking.

 2        Q.   And how long overall did you work on completing the report?

 3        A.   Before I answer the question, I would like to explain or seize

 4     the occasion to explain that I used this tasking as a general guidance,

 5     because basically the tasking I was given was to put documents in

 6     categories.  Now in -- for three or for four previous trials, I had

 7     actually compiled reports which had the same layout and template as the

 8     report that is in front of you at this stage, and I suggested or I

 9     proposed to adopt the same methodology, because I consider that much more

10     useful, both for the reader as well as for others who may be interested.

11     And basically from February 2007 onwards until December 2007 onwards, I

12     worked on reports in combination with the -- with my work as a military

13     intelligence analyst for other trials and cases at ICTY.

14        Q.   In relation to this second task sheet, was there anything you

15     added to it?  That's the first question.  The second is:  Was there

16     anything you couldn't complete of these taskings?

17        A.   In relation to the second aspect of your question, point 10,

18     which is on the next page, interaction between civilian and military

19     authorities between August and November 1995, based on the material I was

20     able to review, I felt that I had a lack of information on the

21     functioning of the civilian authorities.  Of course, I had information on

22     the functioning of the Knin garrison command.  However, I did not have

23     information on the functioning of purely civilian authorities in the area

24     of interest.  And that's why I have not addressed that topic in my

25     report.

Page 12155

 1        Q.   Can you be more specific about the civilian authorities which you

 2     didn't feel comfortable in addressing?

 3        A.   Well, for example, there may have been -- I am aware that -- in

 4     the course of August and later on, civilian authorities, i.e., civilian

 5     government, was set up in a number of areas.  However, the documents I

 6     could review or I managed -- I found during my -- doing the searchs I

 7     conducted, were in my view not sufficiently comprehensive in order to

 8     express views on that aspect.  Also I understood on the civilian

 9     authorities the functioning of civilian courts, and there too I didn't

10     feel or I was not convinced that I had sufficient information to address

11     that topic.

12             Now, I mean, in December 2007 when the report was finalised,

13     based on the overall overview I managed to obtain from the military

14     documentation that was available to me, I don't think that the fact that

15     I couldn't address these purely civilian aspects is a problem for my

16     report.

17        Q.   Now, one or two final questions.  You said you did not have

18     enough information about the civilian aspect.  Did you feel you had the

19     expertise to go into the civilian structures?

20        A.   It's a difficult question because obviously from my work at ICTY

21     I did not have that expertise.  As you can see in my CV, the professional

22     assignments I had in the Belgian military, in particular those between

23     1992 and 2001, were actually for a long -- to a large extent focussed on

24     civilian authorities, i.e., political aspects.  But I mean to answer your

25     question, no, the answer is no.

Page 12156

 1        Q.   Thank you.

 2             MR. WAESPI:  That's all I have on this aspect, Mr. President.

 3             JUDGE ORIE:  Thank you, Mr. Waespi.

 4             Mr. Kehoe.

 5             MR. KEHOE:  Yes.

 6                           Cross-examination by Mr. Kehoe:

 7        Q.   Mr. Theunens, just a few questions on the preparation of this

 8     brief.

 9             Your first report was filed in March of 2007.  Is that right?

10        A.   No, Your Honours.  The report was not filed in March 2007.  I

11     sent a draft to Alan Tieger and a number of -- and maybe Marks Moore, for

12     their personal use, but to my knowledge, the first version of my report

13     that was ever filed, i.e., handed over to the Trial Chamber, is the final

14     version of December 2007.

15        Q.   Mr. Theunens, when you gave this report to Mr. Tieger and

16     Mr. Moore in March of 2007, you knew when you gave that to them that

17     trial was scheduled in this matter for the first week of May of 2007.

18     Isn't that correct?

19        A.   I have no precise recollection of that, Your Honours.  My -- the

20     taskings -- the deadline I received, March 2007, was, if I remember well,

21     indeed based on a deadline for disclosure but that's it.  And of course I

22     tried -- I understand the mechanism that draft reports or unfinalised

23     reports can be filed, and that's why I spent many weekends and evenings

24     trying to prepare best product as possible before March 2007.  But I

25     think will it will be clear to you when you look at the report as such,

Page 12157

 1     that it would be impossible to compile such a report in two month's time.

 2        Q.   Mr. Theunens, when you disclosed this report to Mr. Tieger and

 3     Mr. Moore in March of 2007, you expected that report to be disclosed to

 4     the Defence for a trial that was due to start in May of 2007.  Isn't that

 5     correct, sir?

 6        A.   Well, probably.  I mean, if this is an deadline imposed for

 7     disclosure, I assume that the next step would be that, indeed, the report

 8     gets filed and disclosed, but based -- I mean, if I remember well that

 9     this deadline was not upheld for reasons I don't know -- I mean, it's --

10     I'm not responsible or I don't -- I was not involved with the Prosecution

11     team or I was not briefed on actions undertaken by the Prosecution team

12     in relation to deadlines that may have changed, I mean, external

13     deadlines that may have changed or not.  All -- the only reply I received

14     is -- was that okay, the March deadline does not apply.  You can continue

15     to work on the report.

16        Q.   When you sent the report to him in March of 2007, that was going

17     to be the final report in contemplation of the May 2007 trial because you

18     were given a deadline to give it to the Prosecution because it had to be

19     filed and disclosed to the Defence.  Isn't that right?

20        A.   Your Honours, in the military analysis team I have colleagues who

21     had compiled reports for other cases, and I remember, for example, my

22     team leader at the time, Philip Coo, he had once been given a very short

23     deadline, I don't remember exactly which case we're talking about, but

24     there he filed an unfinalised draft and it was filed as such.

25             Now, I also want to emphasise that except for the initial tasking

Page 12158

 1     I received from Mr. Tieger and the sending of the draft, I had no contact

 2     with the team.  I didn't receive any phone calls.  I didn't receive any

 3     or e-mails.  I heard -- when I insisted -- when I sent the draft in

 4     March 2007, I'm not sure anymore how I was informed that actually, well,

 5     forget about the deadline, you can continue.  I saw my March 2007 report

 6     as an unfinalised draft whereby, okay, we had to -- or we, the team, had

 7     to fulfil certain deadlines, and I would be given the opportunity to

 8     continue to work on that report, or if the report indeed was disclosed

 9     and so on, that I could file an addendum which would include all the

10     other information I had not been able to include in the March 2007

11     version.

12        Q.   You told us that there were no conclusions that were rendered in

13     this initial report.  Is that right?

14        A.   I think I said that there were very -- if there were any --

15             JUDGE ORIE:  Could you please quote what the witness actually

16     said --

17             MR. KEHOE:  Actually, I'm -- I have --

18             JUDGE ORIE:  -- because it seems not to characterize the --

19             MR. KEHOE:  [Overlapping speakers] ... maybe I'd asked the

20     question generally, Judge, and --

21             JUDGE ORIE:  No.  When you said that there were no conclusions,

22     let's be precise because the witness is now saying, Well, that's not what

23     I said.  If you put to him what he said, it should be accurate.

24             MR. KEHOE:  If I can scroll down.

25        Q.   Well, you made very few conclusions.  Is that right?

Page 12159

 1        A.   Exactly.  But sometimes as you will see, I mean, when you look at

 2     the draft, I highlighted in yellow like, okay, this means this, and there

 3     may be two words.  For me that is not a conclusion even though there

 4     would -- a conclusion would follow from these entries, but that was --

 5     well, there's only so much one can do -- I could do in the time that was

 6     available to me.  I was also working for other cases.  And as I tried to

 7     explain, my understanding was that I could -- even if that unfinalised

 8     draft would be filed, I would still have the opportunity to file

 9     addendum.  Fortunately for me, the March 2007 deadline was withdrawn and

10     I was given more time.

11        Q.   We would have to examine this March 2007 report with the final

12     report in order to see what differences are there, wouldn't we?

13        A.   Yes, that's correct, Your Honours.

14        Q.   Now, how many drafts did you do that you presented to the Office

15     of the Prosecutor?  Or versions, if you will.

16        A.   After March, I sent more drafts, I don't know exactly how many, I

17     mean, I can check the e-mails, maybe five or six to Mr. Tieger.  And my

18     aim or my goal was to keep him updated of what I was doing.  Mr. Tieger

19     knew very well that I was working on three or four other cases at the

20     time.  I had to compile an expert report for another trial.  For me it

21     was not clear when actually what the new deadline was.  I knew that

22     March 2007 was withdrawn, but I had not received information for the new

23     deadline which I find a bit difficult in a sense.  As I was working on

24     several cases, I tried to organise my work, and of course what is more

25     urgent you try to do first; what is less urgent you do later.

Page 12160

 1             So that's why I sent him more drafts in order to keep him updated

 2     of the progress I made and I don't remember receiving any feedback on

 3     these other drafts I sent.

 4        Q.   Well, Mr. Tieger and Mr. Moore did, in fact, give you feedback on

 5     your table of contents and approved that table of contents, didn't they?

 6        A.   Yeah.  But now we're talking about the January 2007 time-period,

 7     that is before March 2007.  You are talking about something else now.

 8        Q.   Okay.  Did any of the versions that you sent them -- is it your

 9     testimony to this Chamber that in none of the versions that you sent to

10     Mr. Tieger or any other lawyer in the OTP that you received any feedback

11     whatsoever?

12        A.   I will try to explain it again in more detail.

13             Initially, I received the taskings, the documents that have been

14     discussed recently.  I first received a ten-point tasking and I'm

15     mentioned -- I think -- I mean, let's see how it goes, but I believe it

16     is more appropriate to compile a report in the same format and using the

17     same kind of template I did for the other four trials or cases I compiled

18     reports for.  Then my team leader intervened.  I received a more detailed

19     tasking with 17 points.  I looked at that and I compiled a table of

20     contents which indeed I sent to Mr. Tieger and Mr. Moore for their

21     feedback, because for me the table of contents was a starting point.

22             They approved the table of contents and then I -- which was

23     mainly, I think, a conceptual issue, i.e., they agreed with me using the

24     same kind of approach as I did for the other trials.  And then I started

25     to draft a report.  First draft sent to the team in March 2007.  To the

Page 12161

 1     team, I mean Tieger and Moore.  Only feedback was the deadline does not

 2     apply.  Please continue.  Later on I sent more drafts and I can -- I

 3     mean, I have them available.  There is no problem whatsoever in sharing

 4     them with anyone who wants to see them.  Just to show, well, look, this

 5     is where I stand, this the progress --

 6        Q.   Excuse me, Mr. Theunens.  I have limited time --

 7        A.   Yeah, but --

 8        Q.   -- so I'm going to cut you off here, sir.

 9        A.   Okay.

10        Q.   Sir, prior to you filing your final report, you read both the OTP

11     pre-trial brief and you read the Defence brief, didn't you?

12        A.   I'm not sure whether I read the OTP pre-trial brief, probably I

13     did, and indeed I read the Defence pre-trial brief, but as I have made

14     the solemn declaration and I know what such a declaration means, I have

15     made other -- similar declarations in other environments, the -- none of

16     the pre-trial briefs, whether it's OTP or Defence, has had any impact on

17     my report.

18        Q.   Sir, let me go on -- via Sanction and show you the Defence

19     pre-trial brief, and it is page 16 of 53.

20             Mr. Theunens, this is the discussion in the Defence brief of the

21     air/land battle as you can see in paragraph 41.  It's a fact,

22     Mr. Theunens, that based on your reviewing the Defence brief, you made a

23     decision to include in your report a review of air/land battle and begin

24     to start learning about that on your own.  Isn't that right?

25        A.   Your Honours, I explained to Mr. Tieger that how it came that

Page 12162

 1     air/land battle was included.  I wish to explain to Mr. Kehoe that I have

 2     been trained in Belgian military.  Belgium was and is still a member of

 3     NATO.  I mean, that means that we apply a similar doctrine, including in

 4     the use of artillery and the concept of warfare.  I agree that we, in

 5     Belgium, don't use the -- the name air/land battle, but what I have

 6     learned during my training is exactly the same.  I can -- in relation to

 7     the question of Mr. Waespi, I still remember the interview with Mr. Susak

 8     I saw, and I'm not whether it was Slobodna Dalmacija or another newspaper

 9     where I had a faxed copy of the article which was translated into English

10     and which I received when I had my professional -- or was, sorry, when I

11     had the position I had in Belgium prior to joining the ICTY.  So it is

12     not, with all due respect, the Defence pre-trial brief that introduced

13     the concept of air/land battle to me.

14        Q.   Mr. Theunens, was it your March 2007 brief.

15        A.   We would have to look.  I don't know.

16        Q.   We would have to look at all of your drafts to determine when you

17     put it in; isn't that right?

18        A.   I don't know.  I mean, if you do a word search in the -- I have

19     electronic versions of my report, if you do air/land and maybe with a

20     space between air and land, I think you may find it in the first draft.

21     I'm not sure.  I have not checked all these drafts before coming here.

22        Q.   Sir, if we reviewed your drafts and none of your drafts prior to

23     the filing of the Defence brief had any reference to air/land battle, and

24     then you read the Defence brief which did discuss it, the Trial Chamber

25     then can conclude that based on what the Defence wrote, you decided to

Page 12163

 1     include the air/land battle section in your report.  Isn't that right?

 2             JUDGE ORIE:  What the Trial Chamber can conclude is not for the

 3     witness do answer, Mr. Kehoe.

 4             MR. KEHOE:

 5        Q.   Well, putting aside the Trial Chamber, one can conclude that you

 6     decided to put air/land battle in your report based on the Defence brief.

 7     Isn't that right?

 8        A.   I mean, I can only explain what I did.  I cannot draw conclusions

 9     for others.

10             JUDGE ORIE:  Mr. Theunens, the issue clearly is whether attention

11     paid to air/land battle was triggered by reading the Defence pre-trial

12     brief or that it was already on your mind to deal with that in the report

13     when you read the pre-trial brief.  That's simply the issue Mr. Kehoe

14     puts to you.

15             THE WITNESS:  To my recollection, Mr. President, as I have tried

16     to explain, my intention to include air/land battle doctrine or a few

17     short descriptions of that doctrine in my report was not triggered by

18     what I saw in or may have read in the Defence pre-trial brief but was

19     triggered by my expertise and the structure I had foreseen for the

20     report.

21             JUDGE ORIE:  Please proceed, Mr. Kehoe.

22             MR. KEHOE:  One last area.  If we could turn to page 37 of 53.

23        Q.   And I direct your attention to paragraph 104 of the Defence

24     pre-trial brief which notes that:  "On 4 August 1995, the Croatian

25     government decided that civilian police forces, MUP, would take over

Page 12164

 1     responsibility for law and order immediately as towns were liberated in

 2     the HV."

 3             Now you read that, sir, when you read the Defence brief.  Is that

 4     right?

 5        A.   Probably.  But I don't recall exactly, yeah, probably.

 6        Q.   Well, you told us that you read it, but in reading that, you made

 7     a decision that you were not going to look into -- not -- you were not

 8     going to look into the civilian structure within the liberated areas of

 9     the Republic of Croatia.  Is that right?

10        A.   What I -- Your Honours, what I tried to explain with civilian

11     authorities is for me like -- yeah, local bodies of authority in order to

12     have public facilities function, to have, like, local authority, like,

13     there is a mayor, then there is a district head, and so on and so on.  I

14     meant those aspects with civilian authorities.

15             As you will see from part two of the report, I address, for

16     example, the interaction between the military police and the civilian

17     police during and after Operation Storm in the section on the role of the

18     military police, during and after Operation Storm in the zone of

19     responsibility of the Split Military District.

20        Q.   Was the issue of civilian authorities in your March 2007 brief?

21        A.   We would have to look.  The documents, for example, exchanges of

22     letters between -- or documents between Mr. Lausic, the chief of the

23     military police administration, and the assistant or the -- assistant

24     minister of interior Mr. Moric, I'm quite convinced they're included in

25     the March draft.

Page 12165

 1             JUDGE ORIE:  Mr. Kehoe, your 15 minutes over.

 2             MR. KEHOE:  Yes, Your Honour.  I know I've run out of time.

 3        Q.   Thank you very much, Mr. Theunens.

 4             MR. KEHOE:  I'm sorry I took a little longer, Your Honour.  I

 5     apologise.

 6             JUDGE ORIE:  No problem.  Having dealt with this first issue,

 7     Mr. Theunens, we will have a break now.  We would like to see you back in

 8     approximately 20 minutes for now.

 9             And Mr. Usher, I would like to have Mr. Theunens escorted out of

10     the courtroom first.

11                           [The witness stands down]

12             MR. WAESPI:  Your Honour, just a leftover matter.  65 ter 6112, I

13     would like it tender it.

14             MR. KEHOE:  No objection, Judge.

15             JUDGE ORIE:  Mr. Registrar.

16             THE REGISTRAR:  Your Honours, that becomes Exhibit number P1111.

17             JUDGE ORIE:  P1111 is admitted into evidence.

18             The matter of other versions to be provided, we now know that we

19     have a pending motion and we have an expert who said that he has this

20     material available and he would not have any problem to share it with

21     whomever.

22             I'm looking at the parties whether any follow-up ...

23             MR. KEHOE:  Yes, Your Honour.  I mean, we would have welcomed

24     looking at that as soon as possible.

25             JUDGE ORIE:  All of them?

Page 12166

 1             MR. KEHOE:  All of them.

 2             JUDGE ORIE:  All of them.  Electronically would be --

 3             MR. KEHOE:  Electronically would be fine.  Preferably, as opposed

 4     to paper, electronically would be fine.

 5             JUDGE ORIE:  Yes.  We'll then -- the Chamber will -- if it would

 6     be paper, it would save half a wood not to produce it, but electronically

 7     there's no -- at least that argument does not count.  Whether there are

 8     any other arguments which would prevent the Chamber from inviting the

 9     witness to provide it, we'll consider that over the break.

10             Mr. Waespi.

11             MR. WAESPI:  Yes, we maintain our objections.  Obviously that --

12             JUDGE ORIE:  Objections, but let's -- I said we have two issues.

13     The first one is a pending motion.

14             MR. WAESPI:  Mm-hm.

15             JUDGE ORIE:  And the other is that we have a witness who was

16     examined on the existence of these documents and whether he was willing

17     to provide them.

18             Now, although we all know that the witness is employed by the

19     Office of the Prosecutor, I take it that the witness takes an independent

20     position in these kind of matters and that, therefore, I -- if there's --

21     I do understand that you oppose against granting the motion.

22             Is there any matter you would like to bring to our attention

23     which would deprive this expert from his -- I would say, inherent freedom

24     to share with others what he prepared during his work as an independent

25     expert?  Also in view of what he explained about it.

Page 12167

 1             MR. WAESPI:  Mm-hm.  No, Mr. President, in fact we do have

 2     electronic version, obviously, available.  We can e-mail it if we decide

 3     to go ahead --

 4             JUDGE ORIE:  We need five because I understood that you wanted to

 5     have all the versions or ...

 6             MR. KEHOE:  Yes.

 7             MR. WAESPI:  I'm not aware -- I was aware of the March 2007.  I

 8     have seen the March 2007 because I had explained there was a Rule 68

 9     aspect to, which we had to review.  I am hearing for the first time that

10     there were previous versions, which is very likely given the way he

11     works.

12             So if you ask me to -- to make it available kind of, you know,

13     between the parties, that is a different issue.

14             JUDGE ORIE:  I presume that this witness has stored every day his

15     work product.  Do I have to understand the request by the Defence to be

16     that he presents an electronic version of every version he did send to

17     the members of the trial team.

18             MR. KEHOE:  Yes, Your Honour.

19             JUDGE ORIE:  Yes.  That's understood.

20             We'll have a break and we'll resume at a quarter to 6.00.

21                           --- Recess taken at 5.23 p.m.

22                           --- On resuming at 5.47 p.m.

23                           [Trial Chamber confers]

24             JUDGE ORIE:  Mr. Theunens, the Chamber appreciates that you

25     stated that you were willing to share previous versions of your report

Page 12168

 1     with whomever would be interested.

 2             Could I invite you to prepare two CD-ROMs with the same content,

 3     each of them containing those versions, previous versions of your

 4     reports, so not the final one which was filed because we have that,

 5     limited to those that you did send to the trial team or members of the

 6     trial team for whom you worked, so you don't have to -- what you stored

 7     at the end of the day, just if you sent it, and you said maybe five or

 8     six, it would be appreciated.  And if you would give them to

 9     Mr. Registrar, he will then -- if even it would be possible to make four,

10     that might even be preferable so that we have one for each Defence team

11     and one for the Prosecution.  May I take it that they are stored in a --

12     could I say -- a non-graphic not a pdf, because we have, I take it, an

13     ASCII format, Word or whatever.

14             THE WITNESS:  Yes, Mr. President, they are stored in a Word

15     format.

16             JUDGE ORIE:  Yes.  So they are searchable.

17             THE WITNESS:  Yes.  Mr. President, if you'll allow me, can I seek

18     assistance of the OTP to provide me with the CD-ROMs?

19             JUDGE ORIE:  I think even the registrar would provide you with

20     some empty CD-ROMs.  To burn them you can do that -- yes.

21             THE WITNESS:  I should be able to do that.

22             JUDGE ORIE:  Yes.  If you need any technical assistance, ask any

23     technical support.  I even can do it so it must be ... must not be very

24     difficult.

25             Then we now move on to the next subject.  That is, Mr. Waespi.

Page 12169

 1             MR. WAESPI:  Yes.  Can I make a comment just on your order?

 2             JUDGE ORIE:  I accepted an offer which is not an order.

 3             MR. WAESPI:  Yes.  But the same situation would apply if it's

 4     going to apply when Defence witnesses, expert witnesses are coming, that

 5     if they are willing to give up their drafts, that the Defence is not

 6     going claim any privilege as to what they are going to deliver to the

 7     Defence.

 8             JUDGE ORIE:  Whether privilege is involved, first of all,

 9     whether -- the privilege is usually defined as client privilege for an

10     accused.  Whether that would amount to exactly the same as privilege in

11     relation to an expert and the Prosecution is still to be seen.  It may

12     depend on what confidential material is provided to the expert which was

13     confidentially obtained by an accused.  There might be a difference.

14             I take it that you may raise the issue at a later stage, that the

15     Prosecution would like to see earlier versions of expert reports.

16             MR. WAESPI:  Mm-hm.  I don't want to reopen the issue but we

17     still think that despite his independent position, which I accept, it is

18     it our work product which we have also --

19             MR. KEHOE:  I object, Mr. President.

20             MR. WAESPI:  -- a right to that.

21             JUDGE ORIE:  Let's -- I think the --

22             MR. WAESPI:  [Overlapping speakers] ... make it clear on the

23     record.

24             JUDGE ORIE:  Yes.  You reserve every right to ask the same from

25     the Defence and then you mentioned a few legal terms.  I perhaps was not

Page 12170

 1     wise enough to wait until a later stage to respond to that, but of course

 2     it need a bit of analysis.  The problem was not easy.  Certainly in the

 3     future if we are in a different situation, the problem might be as

 4     difficult as it is now and then we will hear from the parties, what their

 5     positions will be.  But I don't think that we should bother Mr. Theunens

 6     at this moment with this, who was so kind to offer the previous versions.

 7             MR. WAESPI:  Thank you, Mr. President.

 8                           Examination by Mr. Waespi:

 9        Q.   Let's address issues about your expertise, your qualifications

10     and let me start with your academic qualifications and work experience.

11             Now you received a master of arts degree in social and military

12     sciences from the Royal Military Academy in Brussels in 1987 [Realtime

13     transcript read in error "1997"].  Is that correct?

14        A.   That's correct, Your Honours.  At the time it was known as an

15     Licentiaat, but with the European regulation on academic degrees it is

16     equal to a masters.

17        Q.   We'll go into more detail later but can you very briefly list the

18     major topics, the major areas of your study?

19        A.   I see in the transcript it says 1997.  It's December 1987 when I

20     graduated.  Studies were about military history, social science, like

21     psychology.  There was a course in leadership, political geography,

22     ballistics, military law, and various economics courses including

23     management.  That is for the purely academic part.  At the same time you

24     also receive military education.

25        Q.   Yes.  We'll come to that in more detail.

Page 12171

 1             It's --

 2             JUDGE ORIE:  Mr. Theunens, you have a tendency to speak rather

 3     quickly.  Could you please try to keep that under control.

 4             Please proceed, Mr. Waespi, and could you take a break and check

 5     also with the transcript and perhaps on the other channels whether

 6     translation was able to follow.

 7             MR. WAESPI:  Thank you, Mr. President.

 8        Q.   Now, we know by now that you are a member of the military

 9     analysis team of the OTP.  Since when?

10        A.   I joined the military analysis team in the OTP on the 29th of

11     June, 2001, Your Honours.

12        Q.   And what does that team do, that MAT, as it is commonly known?

13        A.   Your Honours the MAT looks at what we call the military dimension

14     of certain issues, i.e., we assist members of the Office of the

15     Prosecutor with sometimes very basic military aspects, i.e., explaining

16     how artillery functions, what is the difference between, for example, a

17     direct-firing weapon or an indirect firing weapon.  More interestingly,

18     we look at -- we analyse evidence in order to establish or reconstruct

19     command structures both from the de jure point of view, i.e., based on

20     the doctrine and the legislation as well as de facto, i.e., by analysing

21     military evidence that is available to us.

22             We also analyse the political military interaction and we try to

23     assist with re-establishing facts related to particular events or

24     developments that members of the Office of the Prosecutor ask us to

25     analyse.

Page 12172

 1        Q.   And you personally, you participated in all these events or

 2     activities you just described?

 3        A.   Indeed, Your Honours.  I don't know whether it is relevant to

 4     give an overview of the cases I have worked on or the trials I testified

 5     in.

 6        Q.   I can ask you specifically about that.  But you did personally

 7     participate in all these activities that you described?

 8        A.   Indeed, Your Honours.  And as I have included in my CV, in a

 9     number of cases I also participated in interviews of senior military

10     witnesses.  Again, I emphasise I have not conducted these activities in

11     relation to the current trial or this trial here.

12        Q.   Thank you Mr. Theunens.  We'll come to that in a moment.

13             Now since you joined the MAT in 2001, have you specialized or

14     focussed on certain areas, and if so, what are these areas?

15        A.   Your Honours, based on my previous experience, I was mainly

16     tasked with cases involving JNA/local Serb forces in the conflict in

17     Croatia between 1991 and 1992.

18        Q.   And have you testified before this Tribunal as an expert witness,

19     and if so, in which cases?

20        A.   Indeed, Your Honours.  I testified in the trial of

21     Slobodan Milosevic.  I also testified in the trial of Milan Martic, the

22     trial of what is known as the Vukovar three, i.e., Radic, Sljivancanin,

23     and Mrksic.  And in February this year I testified in the trial of

24     Vojislav Seselj.

25        Q.   And do all these cases refer to matters that happened in Croatia?

Page 12173

 1        A.   Indeed, Your Honours.  And -- okay, there's -- for

 2     Vojislav Seselj there were also events included that occurred in Bosnia

 3     and Herzegovina between 1992 and 1993.

 4        Q.   Specifically the Milan Martic case, can you very briefly outline

 5     what the case is about and what you testified about.

 6        A.   Your Honours, the tasking I received when I was tasked to compile

 7     a report was to establish the role or -- I will rephrase that.  To

 8     analyse documentation in order to establish the role of Milan Martic in

 9     events that occurred in 1991, as well as his role in the shelling of

10     Zagreb in May 1995.

11        Q.   And which territory is encompassed with or connected to the role

12     of Milan Martic?

13        A.   That is the Republic of Croatia, Your Honours.

14        Q.   And specifically, which part of the Republic of Croatia?

15        A.   Well, for 1991, 1992, it was -- it was first an area known as,

16     geographically, the Krajina which then became the so-called SAO Krajina

17     which then became the so-called RSK, and Zagreb is the capital of

18     Croatia.

19        Q.   Let's move on to the reports.

20             Did you prepare any reports before you testified in these four

21     cases?

22        A.   Indeed, Your Honours.  My testimony was always based on reports

23     which had the same -- use the same layout or same kind of template as I

24     applied here in -- for this case.

25        Q.   Are you currently preparing other reports?

Page 12174

 1        A.   Yes, Your Honours.  I have been requested to prepare an addendum

 2     to my report for the Milan Martic case, to prepare an addendum for the

 3     Perisic case, covering the relations between the VJ, so the Yugoslav

 4     Army, after May 1992, and the VRS, i.e., the armed forces of the Bosnian

 5     Serbs, 1992/1995.

 6        Q.   My last question on this issue:  Were your reports in these

 7     cases, the ones in which you testified, were admitted as evidence?

 8        A.   Indeed, Your Honours.  They were admitted as evidence, and in the

 9     cases where there is a judgement, or even an appeals judgement, there

10     have been quotations or references to my reports or testimony in the

11     judgement.

12        Q.   Let's go into more detail about your military background and

13     experience.

14             You were in the Military Academy starting from 1983.  Is that

15     correct?

16        A.   That's correct, Your Honours.

17        Q.   And how long did that Military Academy last?

18        A.   I attended what is known in Dutch, the Alle Wapens Division, or

19     all arms, and that is -- the studies have a duration of four years and a

20     half, so I graduated there in December 1987.  And subsequently because I

21     belonged to the army and had chosen armour, i.e., tanks, as a weapon, I

22     attended six months in training in armour school.

23        Q.   Yes.  We'll come to that.

24             Let's focus on this Military Academy.  Can you tell us what you

25     studied there.  What were the topics?

Page 12175

 1        A.   As I mentioned, Your Honours, and it's is also included in the CV

 2     that was attached to my report, the courses included military history,

 3     social sciences like psychology, sociology.  We had law, both private law

 4     as well as international law and laws of armed conflict.  There was a

 5     course on leadership, on military leadership.  And there were also

 6     technical courses, or call it technical, there was a course on physics,

 7     nuclear physics, chemistry, ballistics, and so on, and also management,

 8     sorry.

 9        Q.   You told us a moment ago there is a military part of that

10     education.  Can you tell us in more detail what that entailed.

11        A.   In addition to living under a military regime where one has to

12     wake up at a certain moment and make sure that certain aspects of

13     personal discipline are respected, during school holidays we went for

14     military training, and that was, most of the times, light infantry

15     training, as well as later on there was airborne training, hill climbing

16     driver's licence, and so on.

17        Q.   Let's focus on the next part of your CV.  Those are the six

18     months of armour school you mentioned a moment ago.

19             What did you do there?

20        A.   In armour school you learn your job as a platoon commander of a

21     tank platoon, which consists of four tanks.  I was in tanks, Leopard

22     tanks, but at the same time we also had a training in reconnaissance,

23     i.e., the lighter tanks which are used, as I mentioned, for

24     reconnaissance tasks.  You also learn about the technical aspects.

25        Q.   After these six months, I understand you were three years part of

Page 12176

 1     Belgian forces in Germany.  Can you explain in more detail about that

 2     experience.

 3        A.   Indeed, Your Honours, during the first two years I held the

 4     position of platoon commander of a tank platoon in the 2nd Guards

 5     Regiment.  The last year I was also second in command of the company, and

 6     at occasions when the company commander was away for training or

 7     education, I was also the acting company commander.

 8             The third year of my assignment with the 2nd Guards Regiment I

 9     was S1, which is personnel officer, and at the same time I was also the

10     personal secretary for the battalion or, yeah, we call it the regiment

11     but in fact it is a battalion, the battalion commander.

12        Q.   In these command roles did you take away experiences about

13     command and control?

14        A.   Indeed, Your Honours.  Even though later on I was exposed to

15     command and control -- to the exercise of command and control at a higher

16     level, i.e., not myself but I worked in staffs or in environments where

17     command and control was exercised at a much higher level, I believe that

18     the enforcement of command and control and in particular the enforcement

19     of discipline is the most -- gets more and more difficult the closer you

20     get to the soldier level.  Because in general it is very easy to command

21     officers.  It's much more difficult to command soldiers because they have

22     a different background, different education, different values, can have

23     -- can originate from various social levels and so on and so on.

24        Q.   Were you involved in issues of military discipline?

25        A.   Indeed, Your Honours.  One of the tasks, even at the level of a

Page 12177

 1     platoon commander, is enforce discipline among your personnel.  As in a

 2     tank platoon your three non-commissioned officers and your 12 soldiers

 3     including -- most of them were professional soldiers, but there were also

 4     four conscripts.  And as I mentioned these people come from various

 5     environments, have various backgrounds but they're humans, and the

 6     lessons one learns during education at Military Academy are very useful

 7     in a sense that, first of all, you need to have self-discipline in order

 8     to be respected by your personnel; and in addition, you need to enforce

 9     discipline at any time in order to ensure that people, after a while,

10     after they got familiar with you, become -- if I can express myself that

11     way, more spontaneous in abiding by the rules, but then still you have to

12     remain vigilant.

13        Q.   You mentioned your role as a commander and you added that you

14     also served in a battalion.  In what staff function did you serve in that

15     battalion?

16        A.   So the staff function I held was S1, that's the NATO acronym

17     where you go from S1 to S6:  1 is personnel; 2 is intelligence; 3 is

18     operations; 4 is logistics; 5 is what is now called CMC, Civil Military

19     Cooperation.  We didn't have that in the battalion.  6 is communications

20     and so on.  Personnel means that you are responsible not only for the

21     management but also to a certain extent for the enforcement of

22     regulations and you also assist the battalion commander in the area of

23     discipline, with the preparation of his disciplinary decisions.  Because

24     as it is in most armies, a battalion commander will have more authority

25     to enforce discipline than a company commander and a company commander

Page 12178

 1     will have more authority than a platoon commander.

 2             For most of the sanctions -- for most of the -- I'm sorry, for

 3     most of the violations, the platoon commander can only report.  Some of

 4     them the company commander can decide about disciplinary measures or

 5     sentences.  For more serious violations is up to the battalion commander

 6     or even higher.

 7             If, for example, one of our soldiers got involved into situations

 8     which he presented -- which could represent a crime, and it happened both

 9     inside or outside the battalion, the battalion commander would be

10     informed and it would be up to him to take certain measures.  And as an

11     S1, you have to assist the battalion commander in that area.

12        Q.   Thank you Mr. Theunens.  You talked about your role as a staff

13     officer at the battalion level.  Were you also a staff officer at a

14     higher level?

15        A.   I briefly mentioned the fact that I was doing an exercise, a

16     command post exercise at a corps level.  I was a liaison officer during

17     two weeks between two brigade.  My brigade -- I mean the brigade to which

18     my regiment belonged, as well as another brigade, and I spent most of the

19     time in the operation room where I, even before attending the courses, I

20     could learn a lot about how a brigade staff functions, how the commander

21     acts, what a Chief of Staff does, and how the staff officers interact

22     with each other and do their work.  When I served in peace support

23     operations in the former Yugoslavia in the UNPROFOR headquarters, which

24     became later known as the UNPF headquarters, well, I worked in a -- in a

25     force headquarters of a force which was commanded by a French four-star

Page 12179

 1     general, which is a NATO equivalent a three-star general, with more than

 2     30.000 troops.  So that was a staff above the level of a Corps Staff.

 3        Q.   Thank you, Mr. Theunens.  Do you have any training knowledge

 4     about artillery?

 5        A.   Your Honours, I mentioned the ballistics course which gives you a

 6     very good theoretical insight in the nature of artillery firing, i.e.,

 7     the fact that there is something known as dispersion and statistics and

 8     so on and so on.  More concretely speaking, when I was a platoon

 9     commander I attended -- I apologise, a one week forward observer course

10     whereby the commanding officers or platoon commanders in what we call

11     combat arms, infantry armour reconnaissance, they have to able to guide

12     artillery fire onto the target.  We're talking here about traditional

13     artillery, not use of missiles whereby you have someone who sees the

14     target and who is in contact with the fire control centre which is in the

15     back.  And the fire control centre actually directs the artillery fire,

16     whereby the forward observer can, through his visual observation, inform

17     the fire control centre about the results, and more importantly, can

18     inform the fire control centre about any corrections that have to be made

19     to the fire in order to ensure that the desired targets are engaged.

20             And I'm sorry to be so extensive, but when I attended what we

21     call second cycle, which is the brigade level staff course in the Belgian

22     armed forces, it is a one-year course, and there you learn how to

23     organise artillery fire, as well as the use of other support weapons, at

24     a brigade level, which means the choice of targets, the privatisation of

25     targets, you prepare firing plans in order to make sure that the right

Page 12180

 1     targets are engaged with the right ammunition at the right time and so

 2     on.

 3             That concludes ...

 4        Q.   I note -- I note from your CV that you also were an instructor in

 5     a Military Academy for a year.  When was that and what was your job?

 6        A.   In July 1991, I was reassigned from the 2nd Guards Regiment to

 7     the Military Academy to be first - and I will translate the function

 8     literally - assistant promotion commander in the -- for the 146th

 9     Polytechnic promotion.  So I was the deputy to the promotion commander.

10     He left the position in December and then I took over his position, i.e.,

11     I became the promotion commander for the first year Polytechnic.

12             My job consisted of coaching the cadet officers in their academic

13     training as well as organizing and providing military training to the

14     cadet officers.  I use the expression "cadet officer" because they were

15     not yet officers.  We only become officers after making the solemn

16     declaration in the beginning of the third year of Military Academy.

17             Of course when I say military training, it also includes

18     explaining and enforcing discipline to people and explain why military

19     discipline so important not only on the personal level but also when you

20     work with subordinates throughout your career.

21        Q.   Let's turn to the time you spent as a Belgian military

22     intelligence analyst and that's the time-frame between September 1992 and

23     May 2000.

24             Part of that, as you already mentioned, was a detail to the

25     former Yugoslavia.  We'll come to that in a moment.  Please explain first

Page 12181

 1     what this job was about in Belgium?

 2        A.   Your Honours, with your permission I would prefer to do that in

 3     closed session.

 4             JUDGE ORIE:  Any objections against turning into private session

 5     on this matter?

 6             MR. KEHOE:  I don't understand the reason why but may we go to

 7     private session to -- to -- or closed session to determine.

 8             JUDGE ORIE:  Yes.  I think private session would do,

 9     Mr. Theunens.

10             Then we move into private session.

11                           [Private session]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 12182











11  Pages 12182-12186 redacted. Private session.















Page 12187

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

 5             THE REGISTRAR:  Your Honours, we're back in open session.

 6             JUDGE ORIE:  Thank you, Mr. Registrar.

 7             MR. WAESPI:

 8        Q.   Did you have a chance to go to the former Yugoslavia when you

 9     were working for the Belgium authorities?

10        A.   Indeed, Your Honours.  The first time I went in -- I believe it

11     was July or August 1993 for a one-week visit to the UNPROFOR headquarters

12     in Zagreb, Sector East headquarters in Erdut, as well as BH command in

13     Kiseljak, and Sarajevo, Bosnia-Herzegovina.  More importantly from

14     December 1994 until October 1995, I was assigned as a military

15     information officer to the UNPROFOR/UNPF headquarters in Zagreb.  You

16     also want me to address the later?

17        Q.   No.  Let's focus now on -- on this part.

18             What was your role between December 1994 and October 1995 and

19     were where you stationed?

20        A.   Your Honours, initially I replaced the Belgian colleague whose

21     six-month tour had ended, and then my -- and at that time my task

22     consisted of keeping database with orders of battle.  I explained to the

23     deputy head of the office and the head of the office of the military

24     information office that I had worked on the conflict before, and then

25     after a month and a half, a new chief military information officer

Page 12188

 1     arrived, a Swedish colonel Svenson.  He established what was known as the

 2     assessment desk in the office and I was assigned to that desk together

 3     with Swedish Major Joakim Robertsson, who had worked for UNPROFOR before

 4     and who returned to the military information office, I believe, in

 5     January 1995.

 6             The task was to -- based on the information we received from the

 7     military component, i.e., the battalions, the sector commands, the area

 8     commands as well as other information, civil affairs, political affairs,

 9     open source, to provide mid- and long-term assessments on the possible

10     developments of the conflict in the former Yugoslavia, focussed on

11     Bosnia-Herzegovina and Croatia.

12             Robertsson focussed more on Bosnia-Herzegovina, if I remember

13     well, and my focus was more on Croatia.  And I was stationed in Zagreb,

14     as I mentioned before.

15        Q.   Was part of your job to provide briefings?

16        A.   Yes, Your Honours.  There were daily briefings -- there was a

17     8.00 or 8.15 briefing in the joint operation of the UNPROFOR headquarters

18     where Robertsson, two other members of the office or myself would give

19     the G2 -- what we call the G2 assessment of the -- on the -- in relation

20     to the developments of the last 24 hours.  There was also a briefing at

21     11.00 for the Force Commander, where, again, we were a group of four who

22     were in a duty role to provide that briefing.  And there were also

23     occasional briefings to more senior -- not more senior but to Mr. Akashi,

24     who was the Special Representative of the Secretary-General, as well as

25     informal briefings for visiting VIPs, members of the military and

Page 12189

 1     civilian component of the headquarters and so on.

 2        Q.   Did you also draft reports?

 3        A.   Indeed, Your Honours.  We would draft an internal report which

 4     was called the G2, I think, daily summary which gave, again, written

 5     assessments on developments of last 24 hours.  We also developed --

 6     produced reports which were kind of more mid-term and long-term analysis,

 7     and one of these analysis -- some of them were like on our own

 8     initiative, others we were tasked by members of the headquarters.  One of

 9     these analysis was a course of action document in relation to the

10     situation in Croatia.

11        Q.   When part of UNPROFOR in 1995, did you make field trips?

12        A.   Indeed, Your Honours.  I visited the Bihac area, together with a

13     French logistics convoy, in December -- I think it is end of

14     December 1994 or early January 1995.  Later in January 1995, I went on a

15     two-week trip together with the incoming head of the military information

16     office, Colonel Svenson and Major Robertsson to revisit Sector North,

17     Sector South, as well as parts of central Bosnia-Herzegovina.  Then,

18     yeah, between January and July there were several short visits to

19     Sector North, because it was closely located, as well as, okay, before

20     May 1995 Sector West as well as Sector East.  And during the third or the

21     fourth week of August, I visited, together with a Belgian UNMO colleague,

22     the Bihac area again, as well as former Sector North and former

23     Sector South.

24        Q.   Part of that last trip, did you also go to Knin?

25        A.   Indeed, Your Honours.  If I remember well, we went twice to Knin.

Page 12190

 1     First on our trip down because we ended up in SplitSplit was our last

 2     halt and then we returned.  So, during the first part of the trip we

 3     drove through Knin and we visited the UNMO headquarters there.  And

 4     during the second trip, so the trip back from Split to Zagreb, we drove

 5     through Knin without further in -- yeah, further stops in any

 6     headquarters.

 7             Also, I'm sorry if I've been confusing.  In January 1995, this

 8     trip through Sector North and Sector South also went through Knin.  So I

 9     saw Knin in January as well as end of August 1995.

10             MR. WAESPI:  Mr. President, obviously we're not leading evidence

11     on facts from this witness but I wanted to be transparent with you

12     because, you know, he is an expert and he provided an expert report and I

13     thought it was important for you to know that the witness was actually

14     there, and Defence might well explore that in cross-examination, but I

15     won't at this point in time.

16        Q.   Let's move on -- let's move on to other parts of -- aspects of

17     your expertise.

18             Have you ever written academically on the subject of Croatian

19     armed forces?

20        A.   Your Honours, while I was serving in the UNTAES mission in

21     Eastern Croatia between July 1996 and May 1997, I was invited by a person

22     I remember -- I knew from the UNPROFOR times who worked for the Stiftung

23     Wissenschaft und Politik in Germany, to draft an article or -- on

24     military aspects of the UNTAES mission; and that article was then

25     subsequently published in a small booklet which included also

Page 12191

 1     contributions from other people, mainly civilian, on developments in the

 2     former Yugoslavia.  I think it was published sometime -- I believe in --

 3     in the early half of 1997, but I believe also that the Defence has

 4     received a copy of that article during our informal meeting in January of

 5     this year.

 6             And it's obvious when I was working in Belgium, you don't -- when

 7     you're working as a military intelligence analyst, you don't publish

 8     articles because it is difficult to draw a distinction between what you

 9     learn through professional activities and what you may have learned

10     through your private activities, while meeting people working on the same

11     area but in a different environment.

12        Q.   Were you invited to conferences, and if so, in what capacity?

13        A.   You mean during that time-period or afterwards?

14        Q.   Both aspects.

15        A.   Well, the conferences at that -- prior to my arrival at ICTY are

16     subject to the same restrictions I explained earlier.  There were certain

17     conferences but they were held in a closed environment.

18             In September 2008, I spoke at a conference in Oslo about the use

19     of military expertise in investigation and -- in investigation of serious

20     violations of the laws of war and I drafted a -- I compiled an article

21     for that conference, but it is still at a draft stage and it has not been

22     published yet.

23        Q.   Thank you, Mr. Theunens.  Let's go to the methodology you

24     employed when drafting the report which is the subject of -- of your

25     testimony.

Page 12192

 1             Can you give us a brief overview of the material that you

 2     consulted in preparing the report?

 3        A.   Your Honours, the material I consulted to prepare the report is

 4     also addressed in the section scope of the report and covers the

 5     following categories of document.  First of all, military documents.

 6     They include what I would describe as doctrine documents, i.e.,

 7     legislation, regulations, military manuals, and so on.  The second

 8     category are command documents; I mean by that, orders.  Third category

 9     of military documents are reporting documents, and as the name says,

10     these are situation reports, war diaries, operational diaries and similar

11     reports.

12             These are mainly reports that -- documents, I apologise, that

13     were prepared by the Croatian armed forces.  I mean by that the

14     Main Staff of the Croatian armed forces, the Split Military District, as

15     well as the subordinate units of the Split Military District.  I also

16     consulted documents -- I mean military documents from the same categories

17     in relation to the Knin garrison, as well as the special police, while

18     limited myself, for what the month of August is concerned, to documents

19     discussing August 1995 -- I apologise, documents discussing the

20     operations and activities of the special police inside and adjacent to

21     the zone of responsibility of the Split Military District.

22             I also consulted open sources.  For example, UN reports.  I only

23     used reports, UN reports, the so-called reports by the Secretary-General

24     to the Security Council on the implementation of certain UN Security

25     Council resolutions that address particular aspects of the UNPROFOR,

Page 12193

 1     UNCRO, UNPF mandate.  I also looked at translations we have of Croatian

 2     open sources, I mean by that media, but with the exception of one

 3     article, I didn't include media reports in my report.

 4        Q.   Where did you have access to these documents?

 5        A.   When I received -- sorry.  When I received the initial tasking,

 6     the ten points, I also received Excel spreadsheets which had been

 7     prepared by my colleagues military analysts Dai Morris and

 8     Andrei Shakhmetov.  These spreadsheets included information on the title

 9     of the document, the date, the ERN.  These spreadsheets were organised by

10     general topic; for example, Split Military District and Storm.  A topic

11     could be military police and so on.

12             I used the spreadsheets to familiarise myself with the nature and

13     the volume of the material that was available to the OTP.  I also used

14     the spreadsheets to assist me in conducting the searches I subsequently

15     did in the databases or the database systems that are available to the

16     OTP.

17             So what I try to say is that the documents I have included in the

18     report are certainly not just a reflection of the spreadsheets; on the

19     contrary, the spreadsheets provided guidance and that is all.  I reviewed

20     many more documents, both in the spreadsheets as well as the databases,

21     as that I could include in the report because I wanted to the keep the

22     report manageable.  But I think when I will address the methodology in

23     detail, I will be able to explain how come that certain documents are

24     included in the report and others not.

25        Q.   Can you give us a rough estimate of how many documents or perhaps

Page 12194

 1     even pages you looked at in the process of compiling, drafting these

 2     report?

 3        A.   I didn't keep statistics, Your Honours, but when I compare the

 4     two parts of the report, I think that approximately half to two thirds of

 5     the documents I reviewed are included in the report.  And I don't know

 6     whether there's time but maybe I can explain it when I describe the

 7     search criteria I used.

 8             I tried to be as broad as possible with the search criteria.  I

 9     did, for example, a search on Ante Gotovina.  It is obvious that many

10     documents will appear which are not necessarily relevant for the report.

11     I did searches on the names of units, on events, locations, dates,

12     numbers of documents.  We know that military documents, they always have

13     register number, they often refer to other military documents whereby the

14     number is specified.  Well, I used the numbers to do searches.  I also

15     used parts of the numbers to look to try to distinguish or identify

16     series of documents.  And obviously you come across many search hits

17     whereby not all of them are relevant, but I wanted to be as thorough as

18     possible to avoid that I missed something, because in the other cases I

19     worked for, I was involved in the -- in the investigation so I was

20     already familiar with the material before drafting the report.  Here, I

21     was never involved in any investigative activity, so with the exception

22     of the spreadsheets, I had no knowledge of the material that was

23     available to the OTP.

24        Q.   Did you conduct searches on the Internet?

25        A.   Indeed, Your Honours.  For example, the American military

Page 12195

 1     regulations which are accessible through the Internet.  There's also some

 2     NATO regulations that are accessible.  In relation to Croatian armed

 3     forces, I remember from working on the Croatian armed forces before that

 4     people are proud of the unit that they served and are proud of the

 5     activities that that unit conducted, and for example, there are

 6     commemorative web sites where one can find information on the activities

 7     of that unit.

 8             Again, I didn't use that material as such in the report but that

 9     was -- I apologise.  That provided useful leads to me to guide my other

10     searches.

11        Q.   Did you rely on witness statements?

12        A.   No, Your Honours, I did not rely on witness statements.

13        Q.   Can you give us the reason for that?

14        A.   The main reason, Your Honours, is that from my experience in the

15     ICTY, there may be differences between what the witness says in his or

16     her statement and what the witness then testifies.  In addition, I didn't

17     know who the General Gotovina team -- I mean, the Prosecution team would

18     call or not.  So even if I could come across a statement where I

19     believed, well, that's useful, if that person doesn't come here to

20     testify, well, I don't think -- at least in my methodology, I think that

21     the value of such a statement would be limited.  And if that person would

22     come to testify, well, probably after the filing of report, then there

23     would be the technical problem, well, what if that person changes his or

24     her testimony.  I would have to change that entry in my report.

25             My understanding -- no, my conclusions from the material I looked

Page 12196

 1     at is that the material is so comprehensive for the aspects or in

 2     relation to the aspects that I wanted to address, that there was no

 3     requirement, I didn't feel a requirement to include witness statements or

 4     other statements of --or public statements even made in open sources of

 5     people who may testify or not.

 6        Q.   Now, did you include into the two parts of your report and the

 7     addendum detailed annotations or cites to the materials that you were

 8     relying upon?

 9        A.   Indeed, Your Honours, for -- I tried for each and every factual

10     entry to identify at least one source.  And by source, I mean a military

11     document.  And I hope that that is visible through the footnotes in the

12     report.

13             If possible when I believed that it was really important for the

14     reader to see the original document, I included the literal quotation of

15     that document, in smaller character size, in the report because I felt

16     that was, yeah, very important in order to understand what I was trying

17     to say, i.e., the conclusions I draw and which can be found in the

18     executive summary.

19        Q.   Were any limits put on your access to material by the Office of

20     the Prosecutor?

21        A.   No, Your Honours.  There were no limits imposed by the Office of

22     the Prosecutor to my access to material.

23        Q.   Now, let's --

24             JUDGE ORIE:  Mr. Waespi, could I ask ...

25             Were there any limits imposed by anyone of any other

Page 12197

 1     organisation?

 2             THE WITNESS:  Your Honours, Mr. President, I wouldn't call it

 3     limits as such but, for example, there were regulations I would have

 4     liked to have access to.  I was not able to find, for example, a Croatian

 5     armed forces regulation on the implementation of the Laws of Armed

 6     Conflict.  As I have pointed out in the report, there are other Croatian

 7     armed forces regulations that point to important aspects of the

 8     international laws of war, but I didn't find a specific regulation.  And

 9     that was on, for example, on the list I gave to my colleagues who went to

10     visit the archives.

11             I didn't come across a regulation that specified the duties of a

12     Military District Commander.  Even though I found regulations dealing

13     with commanders in general, as well as brigade commanders and also Guards

14     Brigade commanders, I would expect that there would also have been a

15     regulation for the Military District Commander.

16             Now as you may have seen in part 1 of the report, for areas where

17     I felt that the material I had available -- material originating from the

18     Croatian armed forces, was maybe not sufficient, I included JNA

19     regulations as well as NATO -- I mean US regulations.  I can explain why

20     I did that, but maybe that will draw us too far.

21             JUDGE ORIE:  I leave it to Mr. Waespi.

22             MR. WAESPI:

23        Q.   Yes.  Please explain.

24        A.   Well, the JNA regulations because I -- again, from my previous

25     experience here and also contacts with former JNA officers who one of

Page 12198

 1     them -- at least one of them was later subsequently trained in NATO

 2     doctrine, I could see a lot of similarity between the different doctrines

 3     for the issues I was to deal with.  It is also my understanding that many

 4     of the officers serving in the HV --

 5             JUDGE ORIE:  Mr. Kehoe.

 6             MR. KEHOE:  Excuse me, could we just have the identity of the JNA

 7     officer he is referring to.

 8             JUDGE ORIE:  I'm a bit puzzled, Mr. Kehoe.  You say identity of

 9     JNA officer where I see on the transcript that the witness talked about

10     JNA officers.  Oh, who -- one of them at least, yes.

11             Yes, could you give us the name of that specific JNA officer.

12             THE WITNESS:  Yes, Your Honours.  That officer is Major-General

13     Milovan Zorc who testified in the Strugar case as a military expert.  He

14     is of Slovenian nationality.  He left the JNA, if I remember well, in

15     1991, and then with the developments in Slovenia, familiarized himself

16     through official training courses with NATO doctrine.  I visited him, for

17     example, also during the compilation of my report for the Milosevic case,

18     or Slobodan Milosevic case.

19             And just to finish the answer to the previous question, it is

20     also my understanding that many of the officers and senior officers

21     serving in the HV had a JNA background and were therefore familiar with

22     JNA doctrine in -- covering the issues I dealt with in the report.

23             JUDGE ORIE:  Mr. Waespi, I'm looking at the clock.  We've got two

24     minutes.

25             MR. WAESPI:  One more question.

Page 12199

 1        Q.   Why did you include US regulations?

 2        A.   I included them for the reason I addressed during the first

 3     session, i.e., that, at the latest, in 1994, particular relations

 4     developed between the Croatian Ministry of Defence and the US

 5     authorities, which were visible, for example, through the activities of

 6     the MPRI company.  Yeah, I want to say in Croatia but the cooperation

 7     between MPRI and the HV, as well as the similarity or the coherence

 8     between what was mentioned in JNA regulations or doctrine and NATO

 9     doctrine.  And, as I explained, to cover aspects where I felt that what I

10     had -- the material I had for the HV was incomplete, I therefore used

11     these US regulations.

12             JUDGE ORIE:  Mr. Theunens, it's 7.00.  We'll finish for the day.

13             I'd like to instruct you that you should not speak with anyone

14     about the testimony, the testimony either already given, or still to be

15     given, and in view of your special position, I would even invite you

16     to -- to keep your conversations with colleagues or members of the

17     Prosecution team to a minimum because it might raise all kind of

18     questions, and although I'm confident, and this Chamber is confident,

19     that you would strictly adhere to the instructions I just gave you, it

20     would certainly be an advantage if we would also avoid whatever

21     discussions about what you discussed with colleagues, whether that would

22     have been touched upon the testimony, yes or no, it's not only a matter

23     of not talking to them but also to avoid any impression that you would

24     have discussed with anyone the content of your testimony.

25             We adjourn, and resume tomorrow, Thursday, the 20th of November,

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 1     quarter past 2.00 in this same courtroom.

 2                            --- Whereupon the hearing adjourned at 7.01 p.m.,

 3                           to be reconvened on Thursday, the 20th day of

 4                           November, 2008, at 2.15 p.m.