Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13004

 1                           Wednesday, 3 December 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.19 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             Mr. Waespi, we asked you to report on the communications between

12     the expert, Mr. Theunens, and the Prosecution.  Could you --

13             MR. WAESPI:  Yes.

14             JUDGE ORIE:  -- deliver your report.

15             MR. WAESPI:  Yes.  I -- I did e-mail to my team and got e-mails

16     back discussing any communications they may have had with Mr. Theunens on

17     the contents of the report.  I've received these e-mails.  I have

18     reviewed them.  None of the contacts -- and there were indeed contacts on

19     the report but none of them involved any suggestion or any due influence

20     on Mr. Theunens, on the substance of the report.  Rather, they were

21     related to drawing Mr. Theunens's attention to typographical or

22     translation errors.

23             In one example, there was the numerical designation of an HV

24     unit, the MP unit wrong, and that was brought to Mr. Theunens' attention.

25             There was also input from the former supervisor, Mr. Phil Coo, of

Page 13005

 1     Mr. Theunens as to the introductory part called "Scope" in the report.

 2     You remember there were a couple of pages, I think three pages, in the

 3     final report, P1113, which addresses, you know, the scope of

 4     Mr. Theunens' report, and Mr. Coo made a few suggestions.  Unfortunately,

 5     I have only seen the e-mail but not the changes to the scope but I'm

 6     confident that Mr. Theunens, who keeps his e-mails, can tell you what

 7     suggestions were made by Mr. Phil Coo as to changes in the scope in this

 8     introductory part.

 9             There were also a couple of meetings, I think two -- I know two

10     meetings between Mr. Theunens and lawyers.  One meeting was with

11     Mr. Tieger which happened either on the 12th or 13th of December, 2007.

12     Mr. Tieger just came back from a private emergency trip to the US, and

13     that must have been either on the 12th or 13th December, a couple of days

14     before we filed the actual report and that's a meeting to which

15     Mr. Theunens referred to, and Mr. Tieger has reviewed last night's

16     transcript and he says he has no doubt that the -- about the contents of

17     the meeting with Mr. Theunens.  He doesn't have a specific recollection

18     of the meeting.

19             There was a second meeting between lawyers of the trial team and

20     Mr. Theunens.  Mr. Steve Margetts and probably Prashanti Mahindaratne met

21     with Mr. Theunens, and again, there was no undue influence, suggestions

22     as to the contents of the report.

23             So all these contacts the team had over time, specifically

24     November, December of last year when the report was filed, was on

25     accuracy.  There was a long e-mail, one, two pages, by

Page 13006

 1     Mr. Andrei Shakhmetov, the military analyst, Mr. Theunens talked about

 2     him in his evidence, who brought quite a number of translation errors to

 3     the attention of Mr. Theunens, and I believe Mr. Theunens accepted these

 4     suggestions.

 5             This is, Mr. President, the report on e-mail contacts or other

 6     contacts between the broader team, the Gotovina team not just members of

 7     the trial team but also analysts and other members of the trial team with

 8     Mr. Theunens, on the contents, the substance of the report.

 9             JUDGE ORIE:  The second meeting, Mr. Margetts, Ms. Mahindaratne,

10     is there a date for that.

11             MR. WAESPI:  We asked Mr. Margetts and Ms. Mahindaratne.  They

12     believe -- they are not sure, but they believe it might have been

13     March 2007, so that would relate to the first draft of Mr. Theunens's

14     report.

15             JUDGE ORIE:  Yes.  When was the report, as it appears now,

16     delivered to the Prosecution, including typos, whatever?  So when did you

17     receive the report which did not undergo any further changes anymore?

18             MR. WAESPI:  I have not specifically inquired, but must have been

19     just a day or on the day it was filed, which, I believe, was the 14th of

20     December.

21             JUDGE ORIE:  So that was after the meeting Mr. Tieger had with

22     Mr. Theunens.

23             MR. WAESPI:  This is certainly correct, yes.

24             JUDGE ORIE:  Yes.  Of course, whenever you said there was no

25     undue influence, of course, that requires a judgement, what influence is

Page 13007

 1     due or undue is, of course, your assessment of it.  It's -- therefore,

 2     the Chamber very much -- is focussing on facts primarily.

 3             MR. WAESPI:  Yes.  This is obviously my assessment but more

 4     importantly the assessment of the team members who met with

 5     Reynaud Theunens.  I'm relying on their --

 6             JUDGE ORIE:  They are just as involved as you are, so that they

 7     are benefiting, as team members, from the report to the extent that the

 8     Prosecution sought this report to be produced, because the Prosecution

 9     took the position that such a report would support the Prosecution's

10     case.  To that extent, your team members and you, Mr. Waespi, are in a

11     similar position.

12             MR. WAESPI:  Maybe just one point.  That two e-mails, the one

13     from Mr. Shakhmetov and one from Mr. Phil Coo specifically state that

14     they knew about the sensitivity of sending something to -- to the expert

15     and they say that, of course, you know, it is up to you, Mr. Theunens, as

16     the expert, to determine whether to accept even these typographical and

17     other changes.

18             JUDGE ORIE:  Yes.  Before we ask the witness to enter the

19     courtroom, is there anything in relation to what Mr. Waespi just said,

20     that the Defence would like to raise.

21             MR. KAY:  Whether Mr. Waespi has any other comments to make

22     concerning the testimony of Mr. Theunens, as to the matters that he -- he

23     looked at, such as the indictment on one occasion, any other material

24     details that go to the substance of this issue, in relation to

25     Mr. Theunens's involvement with the OTP concerning this case.

Page 13008

 1             JUDGE ORIE:  And you're referring to the genesis of the report,

 2     any context whatsoever, broad sense.

 3             MR. KAY:  Yes.

 4             JUDGE ORIE:  And may I take that you consider it to be an

 5     obligation for the Prosecution to be transparent and disclose any

 6     knowledge on that matter.

 7             MR. KAY:  Considering what has happened, I think it is important

 8     for Mr. Waespi to say -- state his position on it.  I propose to ask

 9     further questions, having considered the transcript with my team

10     overnight and looked at various matters, and would like Mr. Waespi to

11     state his position as fully as possible about the involvement with -- of

12     Mr. Theunens in relation to this case.

13             JUDGE ORIE:  When you say ask further questions, to Mr. Theunens

14     or ...

15             MR. KAY:  I will.  Whether Mr. Waespi has any other information,

16     anything else that needs to be said, so that the OTP position is before

17     the Court now.

18             JUDGE ORIE:  Mr. Waespi, is there anything that could be of

19     relevance in this context, which we may not have asked you but what you

20     would like to tell us, in order for the Chamber to be fully informed

21     about every aspect of this issue.

22             MR. WAESPI:  Not at this point in time, but given what I heard

23     from Mr. Kay and also his reference to the indictment, I will consult

24     with team members again, think myself whether there is anything which

25     should be brought to Your Honours' and the Defence's attention, but there

Page 13009

 1     is nothing at this point I can think of.

 2             JUDGE ORIE:  Yes.  Mr. Waespi, a question.  Having considered the

 3     matter overnight, and you certainly will have done it, do you agree or

 4     disagree with me if I suggest that it would have been appropriate to put

 5     specific questions to the witness at the moment where he said that there

 6     was no feedback at any later stage?

 7             MR. WAESPI:  Thank you for this question, Mr. President.  In

 8     fact, I thought about that, I looked at the transcript, and of course it

 9     is unfortunate that this meeting with Mr. Tieger and Mr. Theunens came

10     out for the first time in cross-examination.  I was aware of that

11     meeting, but only that it related to typographical errors and stylistic

12     changes.  That's what I heard when I prepared Mr. Theunens.  When I

13     prepared my examination-in-chief, I didn't pay any attention because for

14     me it had no relevance as to the substance of the report, methodology,

15     and so on.  And if you review my examination-in-chief you see that I

16     focussed, like most of us here in court, on the March 2007 report.  So it

17     didn't cross my mind.  Maybe it should have.  That I should also have

18     focussed more about what transpired in December 2007, but, again, at that

19     time, I didn't think of anything that was relevant for Your Honours and

20     for the Defence, and if I knew at that time about the importance now

21     placed on that meeting, I would have disclosed it in my proofing note to

22     the Defence.  That's for sure and perhaps even led it live.  That's

23     really I can say about this issue.

24             And likewise --

25             JUDGE ORIE:  Listening to your answer, I do agree with you that

Page 13010

 1     much of the focus was on feedback on the March 2007, the unfinished

 2     report, although specifically questions were put to him in relation to

 3     later versions, and even one of the questions where -- but let's not -- I

 4     take it that we have all read overnight the transcript, also of the --

 5     thank you for that answer.

 6             Mr. Misetic.

 7             MR. MISETIC:  Thank you, Mr. President.

 8             I also read the transcript last night and one of the issues

 9     specifically for the Gotovina Defence is that in my cross-examination of

10     Mr. Theunens, I did not pose a specific set of questions to him about his

11     contact with members of the Office of the Prosecutor about the military

12     police issue, which we spent a long time in cross-examination on, because

13     I accepted his answer that he had given earlier that there was no

14     communication; and therefore, I felt that the Chamber would not have

15     appreciated me going back in once the witness had given an answer as

16     broad as the answer was in the first place.

17             However, now I believe that -- we have now passed the baton to

18     the Cermak Defence, but I believe that the question now becomes relevant

19     in light of the difficulty that transpired in cross-examination for the

20     witness to accept certain propositions relating to the military police.

21     I call the Chamber's attention specifically to the Prosecution's

22     pre-trial brief beginning at paragraph 61 and going through paragraph 67,

23     and the importance to the Prosecution's case of the issue of the

24     subordination, alleged subordination, of the military police to

25     General Gotovina.  And I would like --

Page 13011

 1             JUDGE ORIE:  Let's keep matters short.  You would like to have an

 2     opportunity to put further questions on the matter.

 3             MR. MISETIC:  Well, what I wanted to say was, either -- if there

 4     is going to be more questioning of this witness, I don't have a problem

 5     if the Bench is going do questioning that it be put to him, Did you have

 6     any communication.  And particularly now that I've heard that

 7     Ms. Mahindaratne and Mr. Margetts had a conversation with him, as far as

 8     I understand, Ms. Mahindaratne handles the military -- some of the

 9     military police issues for the Office of the Prosecutor.  If the question

10     can be put to him, Did you have any communications with anyone from the

11     trial team about the issue of the military police; or alternatively, that

12     I wanted to alert the Chamber, then, that I would need time for recross

13     so that I could pose questions to the witness on this limited issue.

14             JUDGE ORIE:  I don't think the Chamber will immediately put

15     questions to the witness in relation to this.  If only because I have not

16     reread paragraph 61 to 67 of the pre-trial brief, and since you link it

17     to that, it is it more likely that -- but we'll consider the matter that

18     we would give you an opportunity for re-cross.

19             MR. MISETIC:  Thank you, Mr. President.

20             JUDGE ORIE:  And now very practically, when?  Would that be ...

21             MR. MISETIC:  I don't wanted to interrupt Mr. Kay --

22             Mr. Kay is gracious enough to -- that can I deal with it now if

23     the Chamber wishes or whenever the Chamber pleases is fine with me.

24             MR. KAY:  I was going to deal with the drafts first off this

25     afternoon so that we have this issue before us.  If it meets favour with

Page 13012

 1     the Bench and it's more appropriate to compartmentalize Mr. Misetic's

 2     cross-examination to follow that.

 3             JUDGE ORIE:  Yes.  If you could agree on that, what would be a

 4     suitable moment, then the Chamber will accept that.

 5                           [Trial Chamber confers]

 6             JUDGE ORIE:  May the witness be brought into the courtroom.

 7                           [The witness entered court]

 8                           WITNESS:  REYNAUD THEUNENS [Resumed]

 9             JUDGE ORIE:  Good afternoon, Mr. Theunens.

10             The Chamber asked the Prosecution to give a full report on

11     communications team members have had with you.  This has revealed that,

12     where on earlier questions about any communication or feedback on the

13     later versions of the report, that is, not the March version but later

14     versions, that your answers have not given full insight in the

15     communications there have been, especially not that you had a meeting

16     with Mr. Tieger, as you testified yesterday, a meeting that was held

17     before the final version of your report was delivered to the team.

18             Yesterday quite some questions were put to you.  Perhaps there

19     may follow more questions on the matter.  Yesterday I think I said that I

20     hoped that I had missed something.  You suggested that you had referred

21     to feedback or at least communications in later stage.  Everyone has

22     reviewed the transcripts, and such a reference was not found by anyone.

23     Therefore, where I yesterday said that I expect an expert to give us

24     information, full information on matters which must have been clear to

25     you that they were of interest for us to know the whole feedback issue,

Page 13013

 1     you, being a professional, you must have understood what it meant and

 2     have not been transparent.

 3             I earlier, once, said to you that a certain answer was evasive.

 4     You then admitted that.  I would like to remind you, but with this

 5     introduction, that you are still bound to the solemn declaration that you

 6     gave; that is, that you will tell the truth, nothing but the truth, but

 7     especially the whole truth.  It may be that some of the questions that

 8     were put to you earlier in the assumption that there had been no further

 9     communications between you and the team after March, that Defence counsel

10     may want to extend their cross-examination, which looks as if it was

11     concluded already.

12             Mr. Kay, are you ready to continue your cross-examination?

13             Yes, Mr. Theunens, I was informed by the Victims and Witness

14     Section that you would like to say something about the matter.  If you

15     would please keep it brief, then you have an opportunity to do so.

16             THE WITNESS:  Thank you, Your Honours.

17             I also checked the transcript, and I would like to refer to page

18     12160, line 8, where Mr. Kehoe indeed asks me about previous feedback or

19     contacts with the Office of the Prosecutor.  I started to answer at page

20     12160, line 12, and I tried to give a very detailed answer, which

21     addressed both, or not only both but which addressed the contacts that

22     existed at the time of the submission of the table of contents.  Then I

23     spoke about the March draft.  Then I spoke about the subsequent drafts

24     that were submitted.  And then my intention was to talk about the

25     feedback I received on the final draft.

Page 13014

 1             However, at page 12161, line 6, Mr. Kehoe said:  "Excuse me,

 2     Mr. Theunens, I have limited time.  Then I say:  "Yes, but ..."  And then

 3     on page 12161, line 8, Mr. Kehoe says:  "So I'm going to cut you off

 4     here, sir.

 5             A second element I wish to bring to your attention is that on the

 6     request of Messrs. Waespi and Du-Toit, I prepared a -- what is called a

 7     supplemental information sheet.  I have a copy of it here with me.  This

 8     is the version of the 11th of November.  And in that document on

 9     paragraph 23, I put the following:  "Between February and December 2007,

10     I regularly sent unfinalized drafts of the report to Alan Tieger, in

11     order to keep him updated of my progress.  I did not receive feedback

12     from the team.  I sent the final draft of the report in December 2007."

13             And if you wish, I can explain which exact time I sent which part

14     of the report.

15             Anyway, going back to paragraph 23.  "Alan Tieger and

16     Prashanti Mahindaratne informed me of some typographic and other

17     stylistic errors in this final draft."

18             I am still convinced that this is one of the documents I signed

19     and I'm understand the assumption that that document, I have a copy with

20     me here, was also disclosed to the Defence.  I realize that the document

21     Mr. Misetic showed yesterday evening did not include this paragraph 23.

22     And there are also other parts missing in relation to the methodology I

23     applied.

24             However, I realize that my signature appears to be on the

25     document that Mr. Misetic showed yesterday evening in court.  I realize

Page 13015

 1     that I should be aware of what I sign.  Now, the only explanation I can

 2     find is that this document was given to me for signature by a member of

 3     the Office of the Prosecutor, and I assumed that, well, it was just

 4     another formulation of what I had put in the supplementary information

 5     sheet and therefore I signed it without controlling it.

 6             Just to close off, I wish to emphasise that I have always tried

 7     to be as a transparent as possible.  I was available to meet the Gotovina

 8     Defence ten days before my testimony in the Seselj trial.  I sent the

 9     drafts of my report on the same evening of the 19th of November to the

10     court officer.  I have tried to answer the questions from the

11     Prosecution, the Trial Chamber and the Defence to the best of my

12     abilities, and I sincerely regret that what I call or what I consider a

13     misunderstanding has had such ramifications.

14             There was no reason whatsoever for me to hide the contacts with

15     Mr. Tieger or Ms. Mahindaratne in December, in particular because I had

16     included in the information note, which under my assumption was also

17     disclosed to the Defence.

18             Thank you very much, Mr. President.

19             JUDGE ORIE:  Mr. Kay, are you ready.

20             MR. KAY:  Thank you, Your Honour.

21                           Cross-examination by Mr. Kay: [Continued]

22        Q.   Mr. Theunens, good afternoon.

23        A.   Good afternoon, Mr. Kay.

24        Q.   The matter we're concerned with particularly is your first

25     statement on this matter, on the 19th of November.

Page 13016

 1             "Now, I also want to emphasise that except for the initial

 2     tasking I received from Mr. Tieger and the sending of the draft, I had no

 3     contact with the team.  I didn't receive any phone calls.  I didn't

 4     receive any -- or e-mails.  I heard -- when I insisted -- when I sent the

 5     draft in March 2007, I'm not sure anymore how I was informed that

 6     actually, well, forget about the deadline.  You can continue.  I saw my

 7     March 2007 report as an unfinalized draft whereby, okay, we had to ...

 8     fulfil certain deadlines, and I would be given the opportunity to

 9     continue work ..."

10             That's from page 12157 of the transcript.

11        A.   Indeed, Your Honours.  And this answer refers to the -- to the

12     March draft.  I did not refer in that answer to the final draft in

13     December, and if you want I can also read you out what I sent to whom at

14     what time and during which time-period the meeting with Mr. Tieger and

15     then it was also contact with Ms. Mahindaratne took place.  I have the

16     information with me.

17             JUDGE ORIE:  If you could give us the date of the meeting that

18     would --

19             MR. KAY:  That is what I was going ask, Your Honour.

20        Q.   Before you give us the dates shall I, just so that we've got the

21     fixed points in time, put the dates of your drafts to you?  Would that

22     help, Mr. Tieger [sic], because I have them here?

23             JUDGE ORIE:  If you would call Mr. Theunens Mr. Theunens instead

24     of Mr. Tieger, that's -- especially under the present circumstances --

25             THE WITNESS:  Yes, thank you.

Page 13017

 1             MR. KAY:  I'm sorry.

 2             JUDGE ORIE:  -- that would be preferred.

 3             MR. KAY:  Yeah.

 4        Q.   Sorry, Mr. Theunens.  Part 1, the first draft, 21st of

 5     February 2007; part 2, first draft, 12th March, 2007; second draft, part

 6     1, 27th of April, 2007; second draft, the same date; third draft, part 1,

 7     23rd of November, 2007; part 2, third draft, 4th of December, 2007; final

 8     report, 18th of December, 2007.

 9             Those are taken from the drafts.  Do you agree?

10        A.   Indeed.  And in addition, I can mention that the meeting with

11     Mr. Tieger must have taken place between the 6th of December and the 13th

12     of December, 2007 -- excuse me, between 4th and December and the 13th of

13     December, I apologise.

14        Q.   After draft three and before final report.

15        A.   That is correct.

16        Q.   Thank you.  The other meeting between Ms. Mahindaratne and

17     Mr. Margetts, I believe?

18        A.   I do not remember a meeting with Mr. Margetts.  I remember

19     that -- there may have been several meetings with Mr. Tieger on one day,

20     between 6th and 13th, maybe two, or three, I don't recall exactly, and at

21     one of these meetings Ms. Mahindaratne was present.  I believe it was at

22     the first of these -- of the two or the three meetings, which happened

23     between the 6th and the 13th.

24        Q.   You refer to stylistic matters.  Could you explain what stylistic

25     matters means.

Page 13018

 1        A.   I mean by that what I already addressed yesterday, i.e., that

 2     this was basically the first time that somebody else than me read the

 3     report, and it was important for me to get feedback in the area of was

 4     the structure logical, the organisation of the different sections did it

 5     make sense, headings and so on in general, and there was some feedback in

 6     the area of stylistic whether, for example, if I had chosen a particular

 7     heading, to explain why I had taken or used that heading when, in the

 8     view of the reader, the part that followed was not entirely coherent or,

 9     or in line with what the heading would suggest.

10             There were also corrections or suggestions in a sense of

11     language, i.e., typos, some words but it was very limited.  And as I

12     mentioned yesterday, section 3 of part 2, namely the section dealing with

13     General Cermak as the Knin garrison commander, was subject of these

14     discussions.

15        Q.   Yesterday I asked you questions about the shift in the first

16     three drafts from Mr. Cermak being civilian authority to

17     civilian/military authority.  The change in that status must then have

18     come between the 4th of December and the 18th of December, 2007.  Isn't

19     that right?

20        A.   It is possible.  It is possible that indeed during these

21     discussions with Mr. Tieger and/or Ms. Mahindaratne the question was

22     asked, Well, what do you mean by the title you have there.  But again the

23     titles are only an introduction or a kind of label that covers the text

24     that follows.  And I realize -- I believe, maybe I'm wrong, that the fact

25     that I chose -- that I used the text "military authority" has created

Page 13019

 1     confusion.  Military authority is not an official title.  At least I have

 2     not found a definition in Croatian doctrine as to what military authority

 3     means.  But the fact that I wrote civilian/military authority instead of

 4     only civilian authority, which did I in the earlier versions, is because

 5     from the documents I reviewed, I can see -- I saw that General Cermak was

 6     giving instructions to civilians, civilian police, civilian companies and

 7     so on, and at the same time he was also issuing military orders to the

 8     military police in Knin.  There was military communication or

 9     correspondence with the Split Military District, even if it was very

10     limited, based on the documents that I reviewed and that again, if I

11     remember well, is the reason why I added the military after the civilian

12     in the -- when I defined or when I had the heading civilian/military

13     authority.

14        Q.   The footnotes and content that you had by the date of that third

15     draft on the 4th of December were exactly the same and unchanged from the

16     those footnotes and content that you had in the final report on the 18th

17     of December.  So in a period of two weeks, with the information exactly

18     the same as before, and with meetings with Mr. Tieger and

19     Ms. Mahindaratne, your report changed in a significant context, don't you

20     agree?

21        A.   I don't agree, Your Honours.  Because as I mentioned the titles

22     or the headings, are only the -- how would I call it?  Yeah, the title

23     for what follows, the importance of the report lies in its contents.  If

24     the contents doesn't change, well, the title is just a clarification

25     of -- of what has already been explained in the contents.

Page 13020

 1             It doesn't make sense, at least in my methodology, to change a

 2     title to try to, I don't know, invent something or add something if it is

 3     not supported by what is in the contents of the report.  And as you

 4     mentioned yourself, the contents of that section, i.e., the footnotes and

 5     reference, have not changed.  So the title for me -- I mean, the change

 6     in title, as there may have been changes in other titles, is only related

 7     to the fact that I wanted to have a title and maybe it was proposed to me

 8     to have a title that is more specific or more focussed on what follows.

 9     And I apologise for not exactly recalling which exact proposals or

10     suggestions Mr. Tieger or Ms. Mahindaratne made in relation to titles or

11     typos or so on.  The problem I have is that I also have worked on other

12     cases and testified in other cases, and there's only so much can I

13     remember.  And I know that is a shortcoming but it is something that I

14     have to face and accept.

15        Q.   The interesting thing is that there is a heading that has been

16     changed in the final report at page 245.  You have a heading:

17     Civilian/military authority.  You've told us that the discussions with

18     the counsel for the OTP concerned headings, matters within your report.

19     Is this a heading that was suggested to you by them?

20        A.   To my recollection, it is not a specific heading or a heading

21     that was specifically suggested to me.  As I mentioned yesterday, and

22     again today, there were -- there was discussion about or discussion --

23     there was an exchange of views about section 3, i.e., the Knin garrison

24     commander section.  There -- I was probably asked, Well, what do you mean

25     by these sections or maybe you can -- is there a way to restructure it or

Page 13021

 1     to make it clearer to the reader, not only for section 3 but also for

 2     other sections.  And again I do not specifically recall what was

 3     addressed with me for the different sections of the report.

 4             I think the key issue is, as you already highlighted, is that the

 5     contents of the section did not change.

 6        Q.   Forgive me, the contents did change.  As I put to you yesterday,

 7     Mr. Cermak moved from the first three drafts dealing with that section

 8     from civilian authority to, in the two weeks between the 4th of

 9     December and 18th of December, to civilian/military authority.

10             JUDGE ORIE:  Let's -- that matter at least whether there is a

11     change or not, seems to be clear to the extent that the witness tells us

12     that this better reflects the content of the report, whether true or not

13     is -- of course the Chamber will consider that, as you say, it is not not

14     without significance that civilian/military is something different from

15     civilian.

16             MR. KAY:  Thank you, Your Honour.

17        Q.   You mentioned discussions about part 3.  What were those

18     discussions?  Did they include beefing up the section concerning

19     General Cermak to emphasise the military authority?  Because,

20     Mr. Theunens, something happened in those two weeks.

21        A.   Your Honours, these discussions did not include what Mr. Kay

22     callings "beefing up" the section.  What they included was to change or

23     to see whether the structure, as it was, could be changed; for example,

24     in order to maybe rearrange certain sections, i.e., to have a more

25     streamlined structure.  And again I don't recall --

Page 13022

 1        Q.   Continue.  I'm just talking to Ms. Higgins.

 2        A.   I'm sorry.

 3             JUDGE ORIE:  Yes, but you did it through the microphone, Mr. Kay.

 4             MR. KAY:  I'm sorry.  And She's just right here as well.

 5             JUDGE ORIE:  Yes, but that makes other people stop talking.

 6             MR. KAY:  Sorry.

 7             JUDGE ORIE:  Please proceed.

 8             THE WITNESS:  For example, to try and group the duties in a

 9     manner that would make it easier for the reader to understand.  But

10     again, and I mention what you said, the footnotes, i.e., the references

11     on which the report is based did not change.  And I would consider that,

12     at least in my methodology, is really the most important issue.  Why?

13     Because the titles are only a reflection of the contents whereby the

14     contents is based on the footnotes.

15             I could write that somebody was the highest religious authority,

16     but if I have no footnotes in the report that go in that direction such a

17     title would not make any sense, and that is the way or the manner in

18     which I see the change of -- of that title from civilian authority into

19     military/civilian.

20             MR. KAY:

21        Q.   On the 2nd of December, at page 12978, you gave us a definition

22     of what you mean by streamlining:  "As I mentioned, I see these changes

23     not as fundamental changes or changes in conclusions or changes in

24     position.  I see these changes, as I call it, a streamlining of the

25     contents of the report."

Page 13023

 1             So changing the nature of the opinion you had, as to authority

 2     from civilian to military, is that something you call "streamlining"?

 3        A.   Your Honours, that is not what I have been saying.  What I have

 4     been saying is that I have not changed my opinion or my conclusion.

 5     Actually, the conclusions I draw from the documents.  The change lies in

 6     the fact that I amended the title in order to be a better -- at least in

 7     my view, a better reflection of the contents, and in relation to the

 8     discussions with Mr. Tieger and Ms. Mahindaratne, to make sure that a

 9     reader, who has not looked into the detail of the report to the extent as

10     I did, understands the message I try to communicate through the report.

11        Q.   Now just moving to meetings.  You have told us about several

12     meetings on one day with Mr. Tieger between the 4th and the 18th of

13     December.

14             So how many meetings on -- on one day?

15        A.   I mentioned earlier that there were two or three meetings, and I

16     think the first one or -- if I remember well, Ms. Mahindaratne was only

17     present at the first meeting.  And --

18        Q.   Continue.

19        A.   Yes.  Again, if I remember well, the first meeting was a very

20     general meeting about the report, where Ms. Mahindaratne suggested that

21     actually the report was too detailed and covered issues that I shouldn't

22     be covering.  Like, for example, the situation between 1992 and 1994.

23             I then said that I believed that these sections were essential

24     and that I was in a position to address the topics that are covered in

25     these sections.

Page 13024

 1             I'm not sure whether we discussed any longer but, again, I

 2     believe that I could leave the room then.  I was then called back -- I

 3     don't know whether it was before noon or the afternoon or then there was

 4     only a meeting in Mr. Tieger's office with Mr. Tieger himself where he

 5     browsed or he went through certain parts of the report and to ask me,

 6     Well, what you do you mean here, or here, well, that's a typo, and it was

 7     not in a structured or organised manner because, I mean, there were still

 8     typos in it when the final version was filed.  And during that meeting

 9     with Mr. Tieger himself, or only, we also looked at -- I mean,

10     specifically for your question, section 3 and the structure of that

11     section.

12             There -- if I remember well, there was a third meeting that

13     day -- or a second meeting with Mr. Tieger alone but a third meeting,

14     overall, for the report, where maybe I showed him -- I believe I showed

15     him the amended structure I had developed, and we had a discussion about

16     that, or a -- and if I remember well, that was approved and then I

17     proceeded with finalization of the report and preparation for having it

18     ERNed and MIFed, but then that was done by a member of the team and then

19     subsequently the report was filed.

20        Q.   And what do you mean by the structure.  What do you mean by that?

21     Let us be specific.

22        A.   Yeah.  I mean by that that -- it would be easier if I had the

23     previous draft before me, but I didn't have time to look at that.  I read

24     the transcript this morning.  But if I remember well, it could be that I

25     addressed certain duties of General Cermak at different locations within

Page 13025

 1     the section, whereas it appeared that after a second lecture it would

 2     seem more logical to group these duties in -- in a different manner.  And

 3     I called it yesterday and today streamlining.  It is maybe not the best

 4     word in English, but that is, at least from the view of the person who

 5     wrote the report, I see this.

 6        Q.   I'm giving you an opportunity now to say what other meetings you

 7     had with members of the -- of the Prosecution, either investigators,

 8     either analysts, members of their team, whosoever in the organisation

 9     connected with this case and discussed your report with.  I'm giving you

10     an opportunity now to state each and every meeting.

11        A.   Just to be specific, between December 2007 -- excuse me,

12     December 2006 and December 2007?

13        Q.   No.  I'm giving you an opportunity.  Don't pin my question,

14     please, because I would like to what your involvement has been with this

15     case, because, as you know, we have challenged your report and we have

16     looked at the drafts.

17             And so, Mr. Theunens, I am asking you now and statements have

18     been made in court to declare what that contact has been so that the

19     Judges know.

20        A.   I will take the supplemental information sheet I prepared to

21     cover the meetings between December 2006 and December 2007, and for the

22     meetings after -- or the contacts after December 2007, I will give those

23     from my memory.

24             December 2006, meeting with Douglas Marks Moore, whom -- I mean,

25     we knew each other very well from the Vukovar case, followed immediately

Page 13026

 1     by a meeting immediately with Alan Tieger about my experiences in

 2     UNPROFOR/UNPF.  Very briefly, there was a proposal whether I could draft

 3     a report for the Gotovina et al case.

 4             Then in -- I believe it's end of December or in January I

 5     received the 10-point tasking.  This was followed by a meeting probably

 6     with Mr. Tieger but also with my team leader separately, my team leader

 7     and myself separately, which was followed by a meeting --

 8        Q.   Can you give the date of that meeting with Mr. Tieger and your

 9     team leader?

10        A.   Sorry, the -- there was no meeting with the two of them.  There

11     was a separate meeting.  There was meeting with Mr. Tieger --

12        Q.   Can you give the date?

13        A.   End of December -- no, that must have been January.  In the

14     course of January 2007.

15        Q.   Right.  And team leader.

16        A.   Team leader --

17        Q.   I want you to be -- I'm giving you a chance, Mr. Theunens, to be

18     as specific about every single detail on this as possible.

19        A.   Well, I'm seizing the opportunity now.

20        Q.   Good.

21        A.   If I remember well, that was a week or something after the

22     meeting with Mr. Tieger because there was -- there were discussions to

23     which I was not privy about whether or not I should become involved in

24     the Gotovina case at all, involvement at all or no involvement

25     whatsoever.

Page 13027

 1             Shortly after -- and, again, it could have been January or

 2     February, I received a 17-point tasking.  My conclusion was that the

 3     17-point tasking, which was sent to me by Mr. Tieger, resulted from

 4     conversations Mr. Tieger had had with Mr. Coo, but I'm not sure of that.

 5     Shortly after I had a meeting with Mr. Tieger -- I'm not sure whether

 6     Mr. Moore was present, where I -- and maybe Ms. Mahindaratne was present

 7     but I'm not sure either but certainly with Mr. Tieger, where I proposed

 8     that I would compile a report having the same layout or using the same

 9     kind of methodology or template as I had done for the four other cases I

10     had prepared reports for.  That was approved.

11             We then -- I mean, there was a deadline set of March 2007.  I was

12     also -- or Mr. Tieger told me that my only contacts with the team would

13     go through him or through the two military analysts, Mr. Morris and

14     Mr. Shakhmetov.  I soon after spoke to Mr. Morris and Mr. Shakhmetov to

15     talk about, Well, how are we going to organise this project.  I was

16     informed that there was spreadsheets they had prepared so the

17     spreadsheets were sent to me.

18             After that, I had call it irregular contacts with them, for

19     example, when I asked them whether a translation was available or

20     whether, as I mentioned on the first day, when I heard that they were

21     planning missions to state archives in Croatia whether they could look

22     for particular documents, mainly regulations.

23             Then we have the March deadline.  I sent the first draft -- or,

24     yeah, the first draft.  March 2007, I apologise.

25             I continued to work on the report but with interruptions because

Page 13028

 1     I'm also tasked to compile a report for the Stanisic/Simatovic case which

 2     was filed in July 2007.

 3             Anyway, I worked also on other cases.  Then, obviously, I met

 4     Mr. Tieger -- I mean not officially but when you go for a cup of coffee

 5     or you are on the second floor in the corridor you can -- yeah, you talk

 6     to each other as a matter of courtesy, but I didn't receive any

 7     instructions as to, Well, file -- your report has to be finished on date

 8     X, Y, or Z.

 9             It may be that another member of the team asked me for a draft

10     but just for his or her personal information.

11             Then the next meeting -- I mean, formal meeting I remember were

12     the ones between the 4th and the 18th of December whereby I mean that

13     they happened on one day.  First one with Ms. Mahindaratne and

14     Mr. Tieger; and the second and probably a third on that day, very briefly

15     with Mr. Tieger.

16             Then the report is filed.  After that, there were members of the

17     team who spoke to me but on a social basis.  One of the investigators

18     Mr. Van Rooyen, we have done several missions -- we did several missions

19     for the Vukovar case in Belgrade, or interview missions, we went for

20     coffee together but there was no influence whatsoever by Mr. Van Rooyen

21     on my report as it has been filed or on my conclusions.

22             Then in April, I'm not sure whether I was called by telephone and

23     received information by telephone from Mr. Tieger in relation to the

24     compilation of an addendum or whether I was called to his office, and

25     this may have been end of March or early April 2008.  But what I do

Page 13029

 1     remember is that on one day, I came back from a meeting for another case,

 2     and I saw -- I found a hard copy of a spreadsheet on my desk, which I

 3     believe was sent by Mr. Tieger.  I don't know whether they were 50 or 60

 4     entries but there was a heading indicating that -- or a cover page

 5     indicating that Mr. Tieger requested me to review these documents as they

 6     had been obtained as a later stage and, if necessary, include them in an

 7     addendum.

 8             In any event after the filing of the report in December 2007, I

 9     kept on looking for additional translations through the -- what is called

10     the translation request application in the Office of the Prosecutor, and

11     to see whether were other relevant documents which could be important for

12     the report that had been filed.  So then I -- I started with the

13     compilation of the addendum, still working for also other cases.

14             I'm not sure anymore when I finished the addendum but I know it

15     took -- I was surprised it took so much time.  When I -- two or three

16     weeks before the addendum was filed.  And I don't know what the reason is

17     for that but I was a bit surprised because I found that I had worked very

18     hard to get the addendum finished as soon as possible.

19        Q.   I could just stop you there at the filing of the addendum as our

20     interest is earlier in the stream of events.

21             You mentioned December 2006.  What contact did you have

22     concerning this case before December 2006?

23        A.   I had contacts with Mr.  Shakhmetov and Mr. Morris but just in

24     the framework of working in the same team, the Military Analysis Team,

25     and obviously I had social contacts with other members of the Prosecution

Page 13030

 1     team because I know them from other cases.  For example Mr. --

 2        Q.   I understand that.  Yes?

 3        A.   I'm really trying to think whether --

 4        Q.   You see, it's the indictment that I'm coming back to, that you

 5     read the indictment once.

 6        A.   Yes.  I mean, the indictment I downloaded from the internet.

 7        Q.   Yeah.

 8        A.   That was actually -- I mean, the recollection I have is that I

 9     did it after the first meeting or the first contact with Mr. Moore about

10     well, whether I was -- would be interested to work on the Gotovina

11     case --

12        Q.   Before the indictment was filed, did you look at it, the drafts

13     of the indictment?

14        A.   No -- no, Your Honours.  I want to emphasise I was not

15     professionally involved with the Gotovina team prior to the December 2006

16     meeting.  And on one hand, I was surprised because I thought, like, I

17     work here for a number of years, I'm one of the few people who was in the

18     area during the time-period of the events, and I was surprised that

19     nobody asked me about that.  But otherwise I didn't, yeah, worry about

20     it.

21             JUDGE ORIE:  You give a rather lengthy answer where Mr. Kay just

22     wants to know whether you ever reviewed any --

23             MR. KAY:  Drafts of the indictment.

24             JUDGE ORIE:  -- any drafts of the indictment and the answer is

25     ...

Page 13031

 1             THE WITNESS:  I did not.  Your Honours, I apologise for being so

 2     detailed but I really want to avoid the experience of the 19th of

 3     November.

 4             JUDGE ORIE:  If the questions are clear and if the answers are

 5     just as clear, that -- it's a very factual question whether you have

 6     reviewed them yes or no.

 7             THE WITNESS:  Okay.

 8             MR. KAY:  Your Honour, on those matters concerning the draft,

 9     that's all I asked and I agreed earlier with Mr. Misetic it would be

10     appropriate for him to deal with his section of cross-examination at this

11     stage so that it is all dealt with together.

12             JUDGE ORIE:  Yes.

13             Mr. Theunens, as I indicated before, there might be some

14     additional questions.  Mr. Misetic may address concern matters he

15     refrained from doing in his earlier cross-examination.

16             Mr. Misetic.

17             MR. MISETIC:  Thank you, Mr. President.

18                      Cross-examination by Mr. Misetic: [Continued]

19        Q.   Good afternoon, Mr. Theunens.

20        A.   Good afternoon, Mr. Misetic.

21        Q.   Mr. Theunens, first, you have now mentioned that you met with

22     Ms. Mahindaratne in December of 2007.  Mr. Waespi indicated earlier that

23     he was told it may have been March 2007, and then at page 23, line 10,

24     you mentioned the possibility that sometime around February of 2007 you

25     may have had a meeting with Ms. Mahindaratne.

Page 13032

 1             Is it possible that in fact you've had multiple meetings with

 2     Ms. Mahindaratne about your report?

 3        A.   The December meeting with Ms. Mahindaratne is the meeting where I

 4     received feedback from her in relation to the report.  I apologise,

 5     December 2007.

 6             The earlier meeting or meetings, February or March 2007, I have

 7     no specific recollection for the date, but I did not receive feedback

 8     from Ms. Mahindaratne in relation to the report during one -- during a

 9     meeting I had with her being present.  She may have been present during a

10     certain time-period during one of the meetings with Mr. Moore and/or

11     Mr. Tieger.  And Mr. Tieger, I mean.

12             I'm not sure whether she was -- because that is something that I

13     didn't mention because the meeting we had on the 17th of January, 17th

14     January 2008, but I'm just trying to think whether she was present there.

15     I'm not sure whether she was there; I don't think so.

16             I'm sorry to be so detailed but just to answer the question.

17     Prior to December 2007, I do not remember a meeting with Ms. Mahindaratne

18     whereby she or during which she gave me feedback on my report.

19        Q.   Okay.  Can you please identify for us everyone within the Office

20     of the Prosecutor with whom you had a conversation about the military

21     police generally and specifically about subordination of the military

22     police.

23        A.   Prior to the filing of the report, i.e., prior to December 2007,

24     I remember talking to Mr. Tieger, Mr. Moore, Ms. Mahindaratne, as well as

25     asking Mr. Shakhmetov and/or Mr. Morris about the relevant regulations

Page 13033

 1     covering military police in general.

 2             Discussions specifically on subordination were with the three

 3     first people I mentioned.

 4             It may be that -- that a team member -- it could that be

 5     Mr. Margetts at one moment in time asked me to send him my latest draft,

 6     i.e., before the filing of the report, but he did not give me any

 7     feedback in relation to the report in general, and, of course, he didn't

 8     give me any feedback on the issue of the military police.

 9             JUDGE ORIE:  Mr. Theunens, just to avoid whatever

10     misunderstanding, you said prior to the filing of the report, i.e., prior

11     to December 2007, could that -- because you remember talking to

12     Mr. Tieger, Mr. Moore, Ms. Mahindaratne.  Could that have been prior to

13     the filing of the report but still in December?

14             THE WITNESS:  Actually, Your Honours, it covers the time-period

15     from December 2006 to December 2007.  What I mean is that during the

16     meetings I mentioned earlier, the topic of subordination of military

17     police was indeed mentioned, maybe not at every meeting, but I recall

18     certainly with Mr. Moore that we discussed that.

19             The meeting that happened -- I mean -- or the meetings between

20     the 4th of December and the 18th of December, 2007, i.e., the meetings

21     whereby I received feedback on the final draft, there -- I have no

22     recollection of any discussion on the subordination of the military

23     police during meetings during the -- the time-period between 4th

24     December and 18th of December, 2007.

25             MR. MISETIC:

Page 13034

 1        Q.   Can you tell us what was discussed?  You mentioned now:  "The

 2     topic of subordination of military police was indeed mentioned, maybe not

 3     at every meeting, but I recall certainly with Mr. Moore that we discussed

 4     that."

 5             Tell us a little bit about that discussion.  What was discussed?

 6        A.   As I mentioned, Mr. Moore -- I assisted Mr. Moore in the

 7     Vukovar 3 case and there we had a situation which could be considered

 8     similar in a sense.  We had a use of the military police by the Guards

 9     Motorised Brigade of the JNA in Vukovar and, of course, the events that

10     occurred at Ovcara.  And there was also the issue of professional and the

11     operational line in relation to the subordination of security organs in

12     the JNA.  And I remember a conversation with Mr. Moore where I tried to

13     explain Articles 8 and 9, referring to what he knew or what was the

14     situation during the Vukovar trial.

15        Q.   Do you recall a discussion about why that issue might be relevant

16     in this case, whether with Mr. Moore or anyone else?

17        A.   Well, I don't have the -- the -- the taskings here with the ten

18     points and 17 points in front of me but I believe that they include a

19     discussion of the subordination of the military police.

20        Q.   Yes.  But did you have a conversation -- and now I'm not limiting

21     myself only to prior to December of 2007.  I mean from the time you --

22     from December 2006 to the present, have you ever had a conversation with

23     anyone in the Office of the Prosecutor about the relevance of that issue

24     of the subordination of the military police in this case.

25        A.   I want to make a distinction, for obvious reasons, between the

Page 13035

 1     time-period before the filing of the report and the time-period after the

 2     filing of the report, and the time-period before the filing of the report

 3     I see three important stages.  First, table of contents, December 2006;

 4     second, first draft, March 2007; third, submission of the final draft and

 5     feedback to the final draft in December 2008.

 6             We have addressed the time-period before the filing of the report

 7     in my previous answers.  After the filing of the report, indeed, I was

 8     contacted at different occasions by members of the team to explain what,

 9     for example, what I had written in the report or to clarify to them what

10     Articles 8 and 9 of the 1994 rules on military police mentioned.

11        Q.   And who specifically did you have conversations with about

12     Articles 8 and 9 of the rules of the military police?

13        A.   If I remember well, at least with Ms. Mahindaratne, probably also

14     Mr. Shakhmetov and Mr. Morris in relation to -- I'm not sure when -- I'm

15     trying to think -- the document which is known as D35, it is not included

16     in my report because I couldn't -- I didn't manage to find it.  And I'm

17     not sure whether my views were asked about that document without me

18     knowing that it was D35 prior -- I mean, after the filing of the report

19     but prior to it being tendered as D35, or whether I was only asked to

20     express my views on D35 after it had been filed as D35.

21        Q.   Now, after you filed the report, were you in fact assisting, for

22     example, Ms. Mahindaratne, in understanding issues related to the

23     subordination of the military police?

24        A.   Yes.  I answered to questions she had.  So that could be

25     described as assistance, providing assistance.

Page 13036

 1        Q.   When -- first of all, how many occasions did you have

 2     conversations with Ms. Mahindaratne about the military police, after the

 3     filing of your report?

 4        A.   I don't recall exactly.  Two, three, times.  I remember that once

 5     she announced that a military police witness would -- or a witness

 6     belonging to the military police would testify and she asked me a number

 7     of questions by e-mail about -- about documents or -- she -- she was

 8     planning to use.  And again to explain what D35 meant.  Yeah, and I

 9     answered to that -- to those e-mails or that e-mail as I would do to any

10     other e-mail I receive from members of the OTP.  I mean, that's my task

11     as a military intelligence analyst or an intelligence analyst,

12     "military," within the Office of the Prosecutor.

13        Q.   In addition to Ms. Mahindaratne, how many other members of the

14     trial team did you provide assistance to, in terms of understanding

15     issues?  For example, do you recall if you had any conversations with

16     Mr. Gustafson about discipline, or e-mail communications?

17        A.   Do you wish to -- should I only address Ms. Gustafson or also

18     address other members of the team?

19        Q.   All members of the team including Ms. Gustafson.

20        A.   Yeah.  As I mentioned, I sometimes -- when it was possible to me

21     I tried to follow trial proceedings, and I remember that there was

22     discussion of the Krajina Express, this armoured train the Krajina Serbs

23     had, in court or during the proceedings so I had no other urgent task for

24     the other cases I work on at that time and I looked for pictures of the

25     Krajina Express on the Internet, and I sent it to -- I don't know whether

Page 13037

 1     who exactly the lawyer was who was leading the witness but I most likely

 2     sent an e-mail to the case manager with those pictures.

 3             I also remember, for example, a discussion on the Krajina

 4     Liberation Army in court and I knew the -- the concept of Krajina

 5     Liberation Army from my work in the UNTAES mission, and I thought that in

 6     the context of the role, at least as I see my role in this organisation,

 7     is try to contribute in establishing facts where I believe that I have

 8     knowledge which could assist in establishing facts, I believe that it was

 9     useful for me then to send this information I had to the members of the

10     Office of the Prosecutor or, more particularly, the case manager who was

11     in court at that time.

12             In relation to Ms. Gustafson, I sent her an e-mail -- I think it

13     was during the cross-examination of -- of Ms. Botteri, but because,

14     again, I had time to check the various court proceedings, I also try to

15     keep an eye on what was happening in the Perisic case because I have

16     to -- or I have been requested to compile a report for that case.  I

17     checked the other cases, also the Seselj trial where I'm a military

18     analyst, and I saw that Ms. Botteri was testifying.  I found it very

19     important or interesting because I have seen a lot of documents signed by

20     her, or addressed to her.  And I think I'm not -- I don't recall exactly

21     what the e-mail was about but I think it had to do with -- that documents

22     she was using were also included in my report.  But again, I'm not

23     entirely sure that that was the matter.  I mean, the documents she had

24     used or that the Defence had used in cross-examination, that these

25     documents were also included in my report.  But I had no contact

Page 13038

 1     whatsoever with Ms. Gustafson prior to the testimony of Ms. Botteri.

 2        Q.   Do you recall any other member of the trial team that you

 3     provided assistance to?

 4        A.   Yeah, and these are all snippets but that's -- I apologise, these

 5     are -- I mean, how it went.  I remember seeing a video, an evacuation

 6     video of the -- where the SVK was organizing an evacuation exercise in a

 7     particular area and then I checked on the map where this area -- where

 8     this municipality or town was located, and I sent an e-mail to --

 9     certainly to the case manager but also -- maybe also to Mr. Hedaraly

10     about the location -- I mean the grid reference and then the distance to

11     the confrontation line of that particular municipality.

12             And again, I thought that this assistance is in line with the

13     tasks you have as an intelligence analyst, "military," within the Office

14     of the Prosecutor.

15             And, I mean, just to emphasise this was all after the filing of

16     the report.

17                           [Defence counsel confer]

18             MR. MISETIC:

19        Q.   Mr. Theunens, do you recall watching the testimony of any

20     witnesses who used to be members of the Croatian military police?  Just

21     do you recall.

22        A.   Yes.  But I don't remember the name of the person, and I didn't

23     follow it in its entirety because I had other tasks to do, for other

24     cases.

25        Q.   Do the names of witness Dzolic or witness Simic ring a bell?

Page 13039

 1        A.   Not -- not specifically.  It may be possible but have no -- I

 2     cannot link the name to a particular position or rank or unit in the

 3     military police.

 4        Q.   Finally on this issue of the military police, do you recall

 5     telling Ms. Mahindaratne that it was your assessment that the military

 6     police was operationally subordinated to General Gotovina?

 7        A.   Yes, and that follows from the discussions we had on Articles 8

 8     and 9 from P880 which were held --

 9             JUDGE ORIE:  Yes.  The question, Mr. Theunens, was whether you

10     recall telling her and that, of course, does not follow from the

11     substance of what your message may have been.  You told her.  That would

12     be an answer to the question.  And I take it that if you tell her

13     something that you would tell her what you think is the right thing to

14     tell her.  But the question was simply whether you told her this, that it

15     was your assessment that the military police was operationally

16     subordinated to General Gotovina.

17             THE WITNESS:  Yes, I did.

18             MR. MISETIC:

19        Q.   Do you recall telling her that you -- it was your conclusion that

20     the military police was not operationally subordinated to General Lausic?

21        A.   No, not specifically.  I mean, I remember that I explained --

22     okay, how it -- subordination in according with the regulations works,

23     and therefore, as I put in my report, my conclusion was that -- or is

24     that the military police -- I mean, is subordinated to the operational

25     commander, according to the operational chain.

Page 13040

 1             I did explain to her as well as, most likely, also Mr. Moore what

 2     I understood under the professional chain, i.e., to explain the relation

 3     between the military police and units and General Lausic.

 4        Q.   On this issue of your conversation with Mr. Moore about the

 5     subordination of the military police, looking at the time-frame, that

 6     conversation took place before the Prosecutor filed his -- the pre-trial

 7     brief in this case.  Correct?

 8        A.   I don't know when the pre-trial brief was filed.  I remember

 9     talking about such issues with Mr. Moore in the December to March 2007 --

10     excuse me, December 2006 to March 2007 time-period.

11        Q.   Thank you.  Let me ask you -- shifting gears for one moment.

12             You mentioned this document that you're -- supplemental

13     information sheet and you said that paragraph 23 was altered, and you

14     didn't pay attention when you signed it that a sentence had been deleted.

15     Correct?

16        A.   I should be more precise.  I have a copy here of information

17     sheet which dates the 11th of November.  And I also found a copy of the

18     sheet you showed last evening and basically from the supplemental

19     information sheet as I saw it, paragraph 20 is missing, part of 21 is

20     missing, 22 is missing, 23 is missing, and part of 26 are missing.

21             And I -- I'm very surprised by that.  I don't know what happened.

22     And I would be very grateful if somebody could explain me because, for

23     me, paragraph 23 of the information sheet as I have it, explains

24     everything and would also explain what happened on the 19th.

25        Q.   Well, who deleted those paragraphs?

Page 13041

 1        A.   I don't know.  I mean, if I were authorised to speak to the

 2     Office of the Prosecutor, I would obviously have asked them but ...

 3        Q.   Who did you receive -- let me ask you a different question.

 4             Did you draft the original?

 5        A.   I did.  And on the 11th of November -- I had a cover sheet of an

 6     e-mail, but on the 11th of November at 11.30 a.m., I received the final

 7     version from Mr. Du-Toit.  The distinction between what I had put and the

 8     final version is that Mr. Du-Toit had included annex numbers, which I

 9     didn't know.  I mean I knew that a number of things would be attached to

10     the supplementary information sheet but I didn't know whether it would be

11     Annex A, B, or C.

12             There was also an ERN that was missing.  As I mentioned, I

13     drafted a draft article for a conference in Oslo in September, and the

14     article is not finished but it was considered useful to attach the

15     article or the draft to the supplemental information sheet and that

16     implied that the draft article first had to be ERNed by a member of the

17     team, and that was the kind of information I -- that was added in the

18     final version I received and I have a recollection that I signed it, and

19     then I assumed that that would be disclosed to the Defence.

20             MR. MISETIC:  Mr. President, I have no further questions other

21     than I would appreciate if we could perhaps get a copy of the original

22     version that Mr. Theunens has.

23             And I also have a matter to address with the Chamber outside the

24     presence of the witness, whether now or when we come back from the break.

25             JUDGE ORIE:  Yes.

Page 13042

 1             Mr. Theunens, would you willing to share the --

 2             THE WITNESS:  Of course, Your Honours.

 3             JUDGE ORIE:  -- two versions of that document.

 4             Madam Usher, could you please receive them.  They will be copied

 5     then, Mr. Theunens, and you will -- your copies will be returned to you.

 6             How much time would you need, Mr. Misetic?

 7             MR. MISETIC:  No more than two minutes, Mr. President.

 8             JUDGE ORIE:  No more than two minutes.  Then I will do it before

 9     the break because that might cause us to think about matters and then we

10     have the whole break to do that.

11             Mr. Theunens, could you please follow Madam Usher and leave the

12     courtroom.  We'd like to see you back after the break.

13                           [The witness withdrew]

14             MR. MISETIC:  Thank you, Mr. President.

15             The issue I wish to address is again in light of the witness's

16     answers concerning assistance that he provided to the trial team.  I'm

17     aware of precedent in the Vukovar case where the Trial Chamber excluded

18     Mr. Coo, who the witness has referenced several times here, who is the

19     head of the unit to which Mr. Theunens belongs.  The testimony of Witness

20     Coo was excluded because of his involvement with the trial team.

21             To me, it is now at least an issue that needs to be explored

22     because has he now testified to certain matters, I think we can see that

23     there may be some inconsistent recollections or additional information

24     that perhaps the Office of the Prosecutor could provide as to

25     Mr. Theunens' role from the submission of the report to the present and

Page 13043

 1     how much involvement he may have had in providing any kind of opinions to

 2     members of the trial team on issues that are in dispute in this trial

 3     because the Defence may wish to raise those issues in light of the

 4     precedent from the Vukovar trial.

 5             Thank you, Mr. President.

 6             JUDGE ORIE:  Mr. Waespi.

 7             MR. WAESPI:  Thank you, Mr. President.  First of all, I think the

 8     Phil Coo issue was in the Slobodan Milosevic case not in the Vukovar

 9     case.

10             But the issue at that time was that Mr. Coo was involved in the

11     preparation of the Slobodan Milosevic.  I think he interviewed the

12     witnesses.  That all didn't happen in relation to Mr. Theunens.  He was

13     completely separate, he didn't interview any witnesses, he didn't make

14     any suggestions as, you know, what question should be put to these

15     people.  It is a different issue once a report has been filed.  Obviously

16     Mr. Theunens is part of OTP.  He is employed, he is paid by the UN to

17     provide opinions and there is absolutely nothing wrong with him doing

18     that after the report has been filed.

19             MR. MISETIC:  Mr. President.

20             JUDGE ORIE:  We're still at the stage of gathering factual

21     information, whether there is anything wrong or not I think Mr. Misetic

22     had not yet reached that point.  He said that he referred to a precedent

23     in which, apparently, there may have been something wrong and that this

24     has had consequences in that case, so that we can at least start looking

25     at it.  And thank you very much for informing us that it was the

Page 13044

 1     Milosevic case rather than -- if would you have more details as the date

 2     of the decision and whether it is a public decision so we can already

 3     start reading it.

 4             MR. MISETIC:  Yes, Mr. President.  I will check with Mr. Waespi.

 5     My understanding -- I recall that it was Judge Parker who gave the

 6     decision but I could be wrong on that as well.

 7             You're absolutely right, Mr. President.  I just want to be able

 8     to gather the facts, and it may very well be that Mr. Waespi's correct,

 9     but I think we should have a opportunity to inspect it for ourselves.

10             JUDGE ORIE:  Yes.  I might put some questions to the witness I

11     had already on my mind which might be relevant for this issue just after

12     the break.

13             We'll have a break until quarter past 4.00.

14                           --- Recess taken at 3.50 p.m.

15                           [The witness entered court]

16                           --- On resuming at 4.23 p.m.

17             JUDGE ORIE:  Mr. Theunens, I would have a few follow-up

18     questions, in relation to your testimony during the first afternoon

19     session.

20             You told us that you watched some of the proceedings.  You said,

21     I had time.  Were you specifically tasked to follow the proceedings,

22     either by saying, Follow them as much as you can, or was it just personal

23     interest, or did ever any of your colleagues or superiors ask you to

24     watch, to the extent possible, or to watch specific portions, was there

25     ever any request?

Page 13045

 1             THE WITNESS:  Your Honours, in my recollection, it was on my

 2     personal initiative when I would -- in the morning I would check my

 3     agenda, check the court schedule, and then flip from one courtroom to the

 4     other because, for example, I work on other trials, and if there was a

 5     witness, sometimes somebody I knew from former UN or ECMM, or, for

 6     example, I tried to follow Kosta Novakovic because I knew -- not

 7     personally, of course, but I knew his name and his position from the time

 8     I was serving UNPROFOR.  So that was the level of -- that was how I came

 9     about to follow proceedings.

10             JUDGE ORIE:  When you had communication in which you explained to

11     members of the Prosecution team certain matters, sometimes, I do

12     understand, in a meeting you were asked questions.  Did you also

13     sometimes take the initiative and why did you do that, if you did,

14     something struck you when looking at the screen, what -- what moved you

15     to -- to get in touch then with members of the team, if you did so.

16             THE WITNESS:  Your Honours, you are asking me about a meeting and

17     then the screen, does the screen refer to trial proceedings or to --

18             JUDGE ORIE:  Yes.  No, the screen you're watching, you're

19     following the proceedings.  Something came into your mind as it might

20     interest one of the team members, and did you then, on your own

21     initiative, send them an e-mail, call them?  Did that happen?

22             THE WITNESS:  I would send them e-mails, Your Honour, on my own

23     initiative.  I cannot exclude that I have received an e-mail from

24     somebody to explain something that they considered relevant.  When I say

25     somebody, a member of the -- of the legal team.  But the problem I have,

Page 13046

 1     I work simultaneously on several cases and in, like, for example, in the

 2     four other cases where I was directly involved in the investigation and

 3     even interviewed witnesses, I was much closer involved.  Even in the --

 4     in -- now with the Seselj trial, which is still ongoing, I receive

 5     continuous questions, and at this moment I cannot make a clear

 6     distinction whether I received only e-mails for Seselj or also for

 7     Gotovina.

 8             My recollection at this moment is that if I received e-mails in

 9     relation to the trial proceedings for the Gotovina trial, that the number

10     is extremely limited.

11             JUDGE ORIE:  That is, less than five, less then ten, less than

12     30, what?

13             THE WITNESS:  Less than five, Your Honours.

14             JUDGE ORIE:  Less than five.

15             THE WITNESS:  And when you would compare the number of e-mails,

16     Gotovina trial e-mail, in/out, receiving less than five, sending over

17     total maybe 20, 30, it's difficult to say for me.  And they dealt with

18     issues where I believed, just to answer the last part of your question,

19     that the knowledge and the experience I have of the conflict could assist

20     in establishing the facts.

21             I come from a civil law system, Your Honours, not from a common

22     law system and I realize that have I problems with the common law system.

23             JUDGE ORIE:  I don't know yet how to interpret this last

24     observation, Mr. Theunens, but I'll give it some time to ...

25             You mean by finding your position in the common law system if you

Page 13047

 1     work in the Office of the Prosecution.  Is that what you meant?

 2             THE WITNESS:  Exactly, Your Honours.  The Article -- actually the

 3     conference I gave in Oslo, the speech I gave, my suggestion was -- and

 4     also based on the experience of Phil Coo in a previous trial was that,

 5     actually, experts should be called or would best be called by the

 6     Trial Chamber whereby, and again, I'm not a lawyer but I was just looking

 7     at it from the analytical point of view, the parties would submit all

 8     evidence that they want the expert to review to the Trial Chamber and

 9     then the expert would --

10             JUDGE ORIE:  Yes, I see that you are in favour of a different

11     system which is not unfamiliar to me but let's -- I now understand your

12     earlier observation.

13             These were my questions.

14             Mr. Kay, are you ready to --

15             MR. KAY:  There was just follow-up while we're on this to try and

16     deal with all matters which is --

17                      Cross-examination by Mr. Kay: [Continued]

18        Q.   His Honour mentioned meetings.  One matter that I'd like to know

19     is have you had meetings with the investigators for the OTP?  Now the

20     names that come to my mind are Mr. Foster, Mr. Casey, and Mr. Morris,

21     whom you've mentioned several times, who are men who have interviewed

22     witnesses for the OTP.  I would ask you to declare what -- what those

23     contacts have been, the type of contacts, and the type of discussions.

24        A.   I never had a -- what I would call a formal meeting with

25     Mr. Foster or Mr. Casey.  I remember seeing Mr. Casey once in Zagreb when

Page 13048

 1     I was there on another interview mission, but we just crossed each other

 2     in the hotel, and as I said, courtesy.

 3             Mr. Foster once came -- or maybe twice came to sit at a table

 4     where I was having coffee here in the office with Mr. Morris.

 5             In relation to Mr. Morris who is actually a member of the

 6     Military Analysis Team, i.e., intelligence analyst, military, we had

 7     meetings, team meetings, I mean Military Analysis Team meetings,

 8     exchanges of views about analysis, or social gatherings.  He has been my

 9     colleague for at least seven and a half years.  He, for example --

10     received me when I arrived at the ICTY in June 2001 but I had never a

11     Gotovina-related meeting with Mr. Moric [sic] with the exception of the

12     conversations we had about the spreadsheets that were addressed earlier.

13             Mr. Van Rooyen is another investigator assigned to the Gotovina

14     team, and he and I, we have a social relationship based on our close

15     cooperation in -- in the investigation for the Vukovar case.

16        Q.   The team meetings you referred to, what are those team meetings?

17        A.   Those were meetings of the Military Analysis Team.  They were

18     held at irregular intervals, sometimes every month -- I'm now talking

19     about the situation in 2001, 2004.  Later there were less meetings and

20     these were mainly meetings where the team leader, the latest -- the last

21     team leader was Mr. Coo, would gather the analysts to discuss general

22     issues, communication of information he had obtained as to the internal

23     organisation of the OTP, specific military analytical issues, and so on,

24     but nothing specific to the Gotovina case.

25        Q.   So just to deal with this issue so it's clear, in relation to

Page 13049

 1     Mr. Morris, has there been any discussions between you and he about the

 2     evidence of a witness named Lausic?  And that's the Lausic who is the

 3     General Lausic, chief of administration, chief of the military police

 4     administration.  Have you and he had discussions, informally or formally,

 5     in any way about the nature of his statement or information from him?

 6        A.   No.  I -- I think I asked Mr. Morris once informally, and that

 7     may well have been prior to the filing of the report, whether Mr. Lausic

 8     was interviewed and whether -- or whether he would testify.  And he

 9     answered the question that he was interviewed but that he didn't know

10     that he -- whether he would testify or not, and that's the level at which

11     we discussed Mr. Lausic, or General Lausic.

12        Q.   Thank you.

13             MR. KAY:  That's all I ask on the matters, because Your Honour,

14     mentioned meetings.

15             Thank you.

16        Q.   Let us return to the matters we were dealing with yesterday.  I

17     had one more document, Mr. Theunens, to deal with in that sequence before

18     we close, as His Honour to deal with matters just before the end, but it

19     would be important for me to deal with it.

20             MR. KAY:  65 ter 475.

21        Q.   It's a document dated the 6th of October, 1995.  It's from the

22     Split Military District Command.  It deals with an inspection of

23     Split Military District units and when that inspection will take place in

24     October 1995, concerning the level of organisation, capability.

25             MR. KAY:  If we go to page 2.

Page 13050

 1        Q.   Training, all general issues concerning the state of the

 2     Military District units.

 3             MR. KAY:  If we go to page 3.

 4        Q.   The order there, as to what is to happen in relation to this

 5     inspection, if we just go to the last page.

 6             And you'll recollect the documents we looked -- we looked at

 7     about five important documents relating to the Split Military District at

 8     the end of my questions yesterday.

 9             And down here, we see the various people within the

10     Split Military District, including the garrisons included in this, and

11     you will notice no Knin ZM.

12             Again, would you agree with me that this is a highly significant

13     omission, in relation to the issue concerning the Split Military District

14     and the relationship of the Knin garrison with the Military District

15     units?

16        A.   Your Honours, I believe that on the first page it is indicated

17     that this concerns an inspection by members of the HV Main Staff --

18        Q.   That's right.

19        A.   -- who will inspect units and commands of the Split Military

20     District, and indeed the Knin garrison is -- is not mentioned among the

21     addressee list.  I haven't seen everything in the document, but it would

22     be logical that the addressee list includes the units that will be

23     subjected to the inspection.

24             Now why the HV Main Staff decides not to inspect the Knin

25     garrison is something I have no information on.

Page 13051

 1        Q.   Thank you.  That, then, deals with that matter.

 2             MR. KAY:  May this document be made an exhibit, Your Honour.

 3             MR. WAESPI:  No objections.

 4             JUDGE ORIE:  Mr. Registrar.

 5             THE REGISTRAR:  Exhibit number D1006, Your Honours.

 6             JUDGE ORIE:  D1006 is admitted into evidence.

 7             MR. KAY:

 8        Q.   We'll go to a new topic now and it was one that you mentioned

 9     earlier in your testimony and I said we'd be coming to it because you

10     said you didn't know the nature of Mr. Cermak's background, and so we

11     will just be looking quickly at some documents concerning his appointment

12     and background.

13             MR. KAY:  And if we, first of all, go to 65 ter 5803 -- 5830, my

14     apologies, Madam Registrar [sic].

15        Q.   This is a document that has two documents with it and it is

16     slightly out the sequence in terms of time-frame, but the issue of the

17     dates and the subject matter will be clear.

18             First of all, this is a document dated the 5th of April, 1993,

19     signed by the president of Croatia, Dr. Tudjman.  And you can see it is

20     on posting active officer to reserve officer of the Republic of Croatia

21     armed forces.  General Cermak was being appointed to the administrative

22     service.  Do you see that?

23        A.   Yes, I see this document.

24        Q.   Yeah.

25        A.   Okay, just to clarify --

Page 13052

 1        Q.   Sure.

 2        A.   -- when I said I was not familiar with the background of

 3     General Cermak, it was with the -- his activities immediately prior to

 4     him being appointed commander of the Knin garrison on the 5th of August,

 5     1995.

 6        Q.   Thank you.  We'll have a look at these things first which can set

 7     the background.

 8             Page 2 of this document has another document attached to it

 9     concerning the 10th of October, 1992, and it's the decision of the

10     president, appointing General Cermak as assistant minister of defence for

11     the state immediately.

12             MR. KAY:  Your Honour, may these documents be made an exhibit.

13             MR. WAESPI:  No objections.

14             JUDGE ORIE:  Mr. Registrar.

15             THE REGISTRAR:  Your Honours, that becomes Exhibit number D1007.

16             JUDGE ORIE:  D1007 is admitted into evidence.

17             MR. KAY:  Thank you.

18             Next document, 2D07-0113.

19        Q.   And this takes the story up further, Mr. Theunens.  And it's the

20     appointment of Mr. Cermak as minister of industry, ship building, and

21     energy by the president, on the 3rd of April, 1993.  And we'll get it on

22     the screen soon.

23             There you are.  You can see that as part of the background.

24             MR. KAY:  Your Honour, may this document be made an exhibit.

25             MR. WAESPI:  No objections.

Page 13053

 1             JUDGE ORIE:  Mr. Registrar.

 2             THE REGISTRAR:  D1008, Your Honours.

 3             JUDGE ORIE:  D1008 is admitted into evidence.

 4             MR. KAY:  Next document is 2D07-0115.

 5        Q.   This is a document dated the 20th of May, 1993.  It's a decision

 6     of that date, relieving Mr. Cermak of his duty as minister of industry,

 7     ship building, and energy, in the previous appointment that we had seen.

 8     And again, issued by the president of the state.

 9             MR. KAY:  Your Honour, if this document may be made an exhibit.

10             MR. WAESPI:  No objections.

11             JUDGE ORIE:  Mr. Registrar.

12             THE REGISTRAR:  D1009, Your Honours.

13             JUDGE ORIE:  D1009 is admitted into evidence.

14             MR. KAY:  Thank you.

15             2D07-0117 is the next document.

16        Q.   It is dated the 20th of May, 1993, so is following the next --

17     the previous document.  And it's a decision of the president to appoint

18     him as minister of the economy.

19             Were you aware of these appointments, Mr. Theunens?

20        A.   I was not aware of the formal appointments but have I a

21     recollection that Mr. Cermak was a member of the government during -- at

22     least in 1993.  But I didn't have any documents nor the specific

23     documents indicating when he was appointed and to which particular

24     position.

25             MR. KAY:  May this document be made an exhibit, Your Honour.

Page 13054

 1             MR. WAESPI:  No objections.

 2             JUDGE ORIE:  Mr. Registrar.

 3             THE REGISTRAR:  D1010, Your Honours.

 4             JUDGE ORIE:  D1010 is admitted into evidence.

 5             MR. KAY:  The next document is 2D07-0119, and it's the last in

 6     this sequence and it follows on from the previous appointment.  It's

 7     dated the 12th of October, 1993, a decision by the president of Croatia

 8     relieving Mr. Cermak of his duty as minister of economy based on his

 9     personal request.

10        Q.   Again, did you realize that Mr. Cermak finished his duties as a

11     minister from that date in 1993?

12        A.   I became aware of that, but that was after the filing of the

13     report and also after the filing of the addendum.

14        Q.   Thank you.

15             MR. KAY:  May this document be made an exhibit, Your Honour.

16             MR. WAESPI:  No objections.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  D1011, Your Honours.

19             JUDGE ORIE:  D1011 is admitted into evidence.

20             MR. KAY:

21        Q.   Again, D31 is a document that has already been produced into

22     evidence into the proceedings, Mr. Theunens, and it's the appointment of

23     Mr. Cermak as the commander of the Knin garrison and Major Gojevic as the

24     Deputy Commander of the Knin garrison.

25             Did you appreciate that between the period of 1993 until this

Page 13055

 1     appointment that Mr. Cermak had held no other public duties or office?

 2        A.   Based on my recollection, I -- yeah, that is correct, and I

 3     believe Mr. Cermak was mainly active in private business, as a

 4     businessman.

 5        Q.   That's right.  And you have correctly referred to him in your

 6     report as Colonel in reserve, which we have seen from the earlier

 7     appointments, which is what a Colonel General in reserve which we have

 8     seen from the earlier appointments.

 9             In taking up the task of being a garrison commander without any

10     previous experience in the role, or knowledge of the role, would you

11     agree, would make it difficult to establish an effective garrison in Knin

12     from the 6th of August?

13        A.   Not necessarily, Your Honours.  I mean there are several factors

14     that play a role.

15             The previous commander or acting commander, Gojevic, is appointed

16     as deputy to General Cermak so he could assist with certain matters.  As

17     I mentioned, I'm not familiar with the kind of activities or training

18     General Cermak received immediately to -- prior to taking up the position

19     of the Knin garrison.  On the other hand, I agree with you that the

20     situation in Knin was quite complex, and that is also visible from the

21     documents I have reviewed, and that it was also a garrison which had not

22     been located in that area prior to the 6th of August.

23        Q.   Thank you.  Such documents as there are and that exist within the

24     OTP database and that have been given to me, we have been through those

25     documents yesterday, you recollect, to show what Major Gojevic did and

Page 13056

 1     what his tasks were.

 2             Do you recollect that yesterday?

 3        A.   Yes, I do.

 4        Q.   In relation to this position, you mentioned training.  Is that

 5     something as a military officer you would deem necessary for a position

 6     of this nature?

 7        A.   The position of garrison commander would require specific

 8     training, i.e., I would think a familiarization with the zone of

 9     responsibility, or, i.e., the zone covered by the garrison,

10     familiarization with the units, more specifically the commanders of these

11     units that are located in the garrison, and that would take most of time,

12     and on the other hand, also familiarization with the regulations that

13     apply to a garrison commander, as well as all the other aspects that are

14     part of the duty of a garrison commander in a specific area.

15        Q.   That deals with training.  Also, would you agree, there are

16     resources that are needed to accomplish the tasks of a garrison

17     commander, and I have in mind those matters referred to by the garrison

18     commander of Split whose letter we looked at yesterday?

19        A.   Indeed.  And I think it is important in that context to make a

20     distinction between what I would call the proper resources whereby for

21     each unit there is what is called an establishment strength and the

22     establishment strength of the Knin garrison was very small.  I believe it

23     was nine, but I'm -- we can check the documents; whereas, for the Split

24     garrison, it was bigger.  Obviously depends on the area covered by the

25     garrison.

Page 13057

 1             On the other hand, resources also includes units which the

 2     garrison commander could use in order to implement his mission.

 3        Q.   Were you aware of General Forand's view - we have no need to look

 4     at the document; it's Exhibit D150 for the Court's benefit - of

 5     General Cermak's authority being limited in certain areas, in relation to

 6     his role?  Were you aware of General Forand's view, in relation to that,

 7     as expressed on the 26th of August, 1995?

 8        A.   No, I am not.  And I don't think I have used D150 in my report.

 9        Q.   No, you haven't.

10        A.   No.

11        Q.   And it's been in evidence before the Court, and it's a matter

12     that I'm directing Their Honours's attention to but asking if you were

13     aware of that, and you have given me your answer.  Thank you very much.

14             Let us now look at the tasks and job that Mr. Cermak was doing in

15     Knin.  I believe you've already referred us to P1144, Exhibit P1144,

16     where, at page 4 in the English transcript of a meeting between the

17     president and Mr. Cermak, there is a discussion about Mr. Cermak being in

18     Knin.  You already referred to that earlier in your evidence, and you

19     referred to this transcript.  Is that right?

20        A.   That is correct, Your Honours.

21        Q.   This is the one where the president says, Keeping order.

22     Mr. Cermak says, Keeping order, preventing disorder, mine clearance.  I

23     took a team with me and we cleared 7.000 buildings and that whole area,

24     et cetera.

25             You referred to that transcript.  Were you also aware of a

Page 13058

 1     discussion by President Tudjman?

 2             MR. KAY:  If we could have D296, transcript for the 7th of

 3     August, 1995, and turn to page 20 of the English; page 41 of the Croatian

 4     language version.

 5        Q.   There is a discussion of many pages about other matters but

 6     during that discussion the issue of what is happening in Knin at that

 7     time of the 7th of August, is discussed, and you can see there.  These

 8     Canadians in Knin, they're all right now, Mr. Zuzul says.  Mr. Sanadar

 9     makes a reply.  Mr. Zuzul says, No, there was.  There was the Canadians.

10     The Americans received an official request to assist the Canadians in

11     pulling out of Knin.  And the president says, and another thing, tell

12     them I appointed as commander of the Knin garrison, Colonel General

13     Cermak, a former minister, a serious man, to solve those matters.

14             Were you aware of this transcript?

15        A.   I have no specific recollection.  I am sure I haven't used it and

16     I don't think I saw it before.

17        Q.   You have not used in your report; you're quite right.

18        A.   No.  So there's a small correction to the transcript.  I am sure

19     I have not used it.  Sorry.

20        Q.   Thank you.  We seem to have lost my transcript down here at the

21     moment, but -- we've got a power failure.

22             The importance of this issue goes to matters that you have raised

23     in your report and in your evidence frequently concerning Mr. Cermak and

24     the orders to the military police and the Knin police as to being the

25     foundation of your proposition concerning the senior military as well as

Page 13059

 1     civilian authority in the area.

 2        A.   That is correct.  But I would also like to mention that the

 3     orders Mr. Cermak or General Cermak gives to civilian and the military

 4     police are an important component.  But there's also the other orders and

 5     instructions he issues during the time-period he is the commander of the

 6     Knin garrison.

 7        Q.   Shall we look at those orders now while we are here, and ...

 8             Because there is a point to be made about these orders, and you

 9     have mentioned them several times as being important, in relation to your

10     opinion.

11             MR. KAY:  Can we go to P512 first.

12        Q.   This is the first order to the military police and Knin police,

13     and it is dated the 8th of August, 1995, and the significance is,

14     Mr. Theunens, that it concerns UNCRO.  Do you appreciate that?

15        A.   Yes.  But from the point of view of -- of my task to identify the

16     role of General Cermak as the commander of the Knin garrison, it is also

17     important to take into account that he can -- he -- by this document or

18     this document indicates that he has the authority to issue an order to

19     the military police without specifying which specific unit we are talking

20     about, and the Knin police station, which, in my view, is the civilian

21     police in Knin.

22             We know from documents by General Lausic that there is already a

23     Knin -- excuse me, a military police presence in Knin prior to the 8th of

24     August, but I have not been able to establish over which component or

25     which part of this military police presence in Knin General Cermak has

Page 13060

 1     the authority to issue orders.

 2        Q.   Shall we look at a number of those propositions there in your

 3     answer?

 4             First of all, the fact that he issues this order doesn't

 5     necessarily mean to say that he has the authority to issue it.  Do you

 6     agree?

 7        A.   If we only consider this document, I agree with you.  And will

 8     see you in my report I have included several of such orders, and there is

 9     at least -- there is at least one example whereby the civilian police in

10     Knin refers to the fact that they have received an order from

11     General Cermak and takes measures in order to implement that order, and I

12     believe that is P510.

13        Q.   We will look at that, don't worry.

14             First -- secondly, the fact that the order is drafted in this way

15     could indicate no knowledge of the correct system of issuing orders to

16     the military police.  Would you agree with that?

17        A.   I -- I -- I see no -- no reason to come to such an opinion on --

18     on this document.

19        Q.   When you compare it with the other military police orders that we

20     have seen, we have seen many, how they are set out and structured, they

21     exist in an entirely different structure.  Isn't that right?

22        A.   That is -- is not my impression, Your Honours.

23        Q.   Okay.

24        A.   Some of the orders issued by General Cermak may well look less

25     formal or less structured than some of the other orders we have seen, be

Page 13061

 1     it military police or Split Military District, but as you know from D32,

 2     the 1992 service regulations, there are specific requirements to an

 3     order - it has to be clear, it has to be short, and it has to indicate

 4     who is to implement the order - and I can see these elements in the

 5     document that we see in front of us.

 6        Q.   Next, do you know if the military police received this order?

 7        A.   No, Your Honours, I do not know.

 8        Q.   Do you know if the Knin police station received this order?

 9        A.   No, I do not know, because I didn't have those documents.  But --

10     yeah.

11        Q.   Say anything you -- feel free to say anything you want about it.

12        A.   It would actually be useful, then, to check, for example, UNCRO

13     documentation to see whether the order issued by General Cermak had any

14     effect.  But I have not systematically -- I have not analysed UNCRO

15     documentation that would address the matter, i.e., the inspection of

16     UNCRO helicopters before each flight.

17             As I mentioned P510 --

18        Q.   We can come to that in time.  That's your one order, I know.  All

19     right.  It's your one order.  It is.  You know.

20             Can you say whether, if they did receive this, the military

21     police, or the civil police viewed it as an order and followed it?

22        A.   You mean for this specific document?

23        Q.   Yes.  We're going through every single order, and ...

24        A.   Well, as I cannot confirm that the military police or the

25     civilian police received it, I can obviously not draw any conclusions as

Page 13062

 1     to whether they act the upon the order or not.

 2        Q.   If they did receive it, do you know whether they viewed it as an

 3     order or as information?

 4        A.   Again, D32 is -- is very specific when it comes to the definition

 5     of an order and what the superior who issues the order is required to do,

 6     i.e., not only issuing it but also verify its implementation; and on the

 7     other hand, the subordinate who receives the order is also obliged to do

 8     certain things in relation to an order.  The obligation to implement

 9     decisions is one of the two principles of command and control defined in

10     Croatian armed forces doctrine.

11        Q.   These are not subordinates, are they?

12        A.   They are not subordinates in the sense of being permanently

13     subordinated, and I'm limiting myself now to this document to draw that

14     conclusion.  However, the fact that a Colonel General with his rank and

15     his experience uses the formulation, I order, when he wants the military

16     police and the civilian police to do something, should mean something for

17     those who receive the document, i.e., who receive the order.

18             I have seen no reason, when reviewing the documents, to believe

19     that General Cermak was unaware of which formulation he had to use, in

20     order to have various structures in Knin do things he wanted them to do.

21        Q.   And the next point is, it could be wrong to have described it as

22     an order.

23        A.   Again, the service regulations, D32, if I remember well, specify

24     the terminology that is to be used in an order, and --

25             JUDGE ORIE:  Mr. Theunens, may I ask you, the question clearly

Page 13063

 1     invites you to admit or not to admit that it could be a mistake.

 2             Now, reference to regulations, what is there, doesn't answer the

 3     question, because you can make a mistake anyhow whatever the regulations

 4     are.

 5             THE WITNESS:  Mm-hm.  I apologise, Your Honours.

 6             I have no reason to believe that it's a mistake.

 7             JUDGE ORIE:  Please proceed, Mr. Kay.

 8             MR. KAY:

 9        Q.   And you have no reason to believe it's not a mistake.

10        A.   Well, when I --

11             MR. KAY:  Thank you.  Exhibit P53, please.

12             THE WITNESS:  Should I answer your last question or --

13             JUDGE ORIE:  No, there's no need to do that.

14             THE WITNESS:  Oh.

15             MR. KAY:

16        Q.   Would you agree with me that of the nine orders, 90 per cent of

17     them concern UNCRO?

18        A.   You speak about nine orders.  Do you refer to orders referred to

19     in my report or ...

20        Q.   Of the orders to the Knin military police and the MUP, there are

21     nine orders, of which 90 per cent concern UNCRO.

22        A.   That may be possible.  I haven't calculated these kind of

23     statistics.  But as pointed out at earlier occasions, it is not of

24     quantity but also of quality, i.e., nature of the orders.  And, for

25     example, orders included in my report -- to the military police by

Page 13064

 1     General Cermak also refer to freedom of movement for civilians in Knin.

 2     This was also sent to the civilian police, which, in my view, is a very

 3     important order --

 4        Q.   We will be looking -- we're looking at every single one,

 5     Mr. Theunens, one by one, to see what you based your conclusion upon.

 6             So P53, this is the freedom of movement order, so-called, that

 7     goes to Knin military police, the MUP, and it concerns UNCRO.  Do you

 8     agree?

 9        A.   Yes, it does.

10        Q.   Thank you.  Same questions:  Do you know if the military police

11     received this?

12        A.   I cannot say whether they received this specific order but I have

13     included --

14        Q.   It's a simple question because -- do you know whether they

15     received it.  It's just to Knin military police.  It doesn't say which

16     company, it doesn't say 72nd, it doesn't say the 7th Company, it doesn't

17     say the Independent Company or the Joint Company.  It's just as is.  And

18     you're used to analysing documents, aren't you?  That's what you've told

19     us you do?

20        A.   Indeed.

21        Q.   Do you know if they received it?

22        A.   Well, one of the ways to determine whether they received it is to

23     see whether any activity was undertaken by the military police following

24     this order.  And when I look at correspondence by General Forand,

25     Sector South commander, to General Cermak, that is, for example, on

Page 13065

 1     English page 255, part 2 of the report, I can see -- we can see that

 2     freedom of movement by UNCRO -- for UNCRO, is a problem.  General Forand

 3     believes that it's -- General Cermak is responsible for the -- what he

 4     calls unilateral restriction of movement.  And we can see from 65 ter

 5     3531, for example, mentioned on page 256, that General Cermak replies to

 6     General Forand's complaint.

 7             I agree with you that what I just said does not explicitly

 8     indicate whether the military police, yes or no, received the specific

 9     document you showed, but at least we can see that the situation that is

10     existing corresponds with what is ordered by General Cermak to the

11     military police in this specific document.

12        Q.   This is not the only issue concerning freedom of movement.

13     Shouldn't you have pointed out to us that, from the 4th of August, the

14     military police and MUP have been ordered to set up check-points?  Isn't

15     that right?

16        A.   Is your question that this is not the only issue concerning

17     freedom of movement for UNCRO or --

18        Q.   Yes.  There are check-points set up throughout the region.

19        A.   Yeah.

20        Q.   We have seen -- I would -- I would hazard a guess, 20 or 30

21     orders from the MUP and VP dealing with check-points in the area.

22        A.   That is probably the case.  But to my recollection, these

23     check-points do not always apply to UNCRO.  And the fact, what I just

24     pointed out, 65 ter 2735, that General Cermak replies to a complaint by

25     General Forand in relation to UNCRO freedom of movement shows that the

Page 13066

 1     issue of freedom of movement of UNCRO -- at least --

 2        Q.   That's the 30th of August, isn't it?  Let's get the date because

 3     all this is avoided later on.

 4        A.   I have the --

 5        Q.   If you're going to make the point --

 6        A.   I have the 11th of August for this document.

 7        Q.   Right.

 8        A.   But what I tried to say was that the fact that General Cermak

 9     reacts to a complaint by General Forand indicates that at least --

10             JUDGE ORIE:  Let's try to get matters -- I see on your page 255,

11     I see a 11 of August document, UNCIVPOL chief of Sector South sends a

12     letter to Cermak and the notification by Forand is on the 30th of August.

13     Cermak replied on the same date.

14             If we're talking about different dates for the same document, I

15     might get confused in what document we're talking about.  So I'd rather

16     have this clarified.

17             MR. KAY:  Thank you, Your Honour.  I was unsure which is why I

18     wanted the date because there are different dates.

19        Q.   Let's take the 11th of August as the date that you have cited.

20             We've got your position on this but what it comes down to, you

21     don't know whether the military police or the MUP, in fact, acted on this

22     order or whether they didn't receive it or they disregarded it, do you?

23        A.   I will try to summarize my previous answer.

24        Q.   No, can you answer the question?  It's the question I would like

25     answered.

Page 13067

 1        A.   This specific document does not allow to draw such a conclusion.

 2     However, when taken in context, and that is actually what analysis is

 3     about, we can see that General Cermak reacts to letters from, for

 4     example -- from UNCRO, General Forand, when the latter complains about

 5     lack of freedom of movement for UNCRO.

 6             And, for example, 65 ter 536 is a letter from General Cermak to

 7     General Forand on the 11th of August, indicating that the freedom of

 8     movement for UN members is re-established on the 11th of August, 1995, at

 9     12.00, in order to supply themselves with food, drinks, and fuel.  This

10     is on English page 255, which means that General Cermak is in a position

11     to influence the freedom of movement of UNCRO in a particular part of

12     Sector South, and that he also engages in -- in -- in exchanges of -- of

13     communications with the UNCRO commander when the latter has complaints

14     about the situation.

15        Q.   Let us go to the next document, D788.  It's the third one on the

16     8th of August.  It's -- concerns an order, again involving UNCRO, control

17     all entrances to the UNCRO barracks, including the main gate,

18     particularly checks are required when refugees leave the barracks.  Do

19     not allow them to leave without adequate authorisation.

20             Again, you don't know if the military police received this order,

21     do you?

22        A.   No.  But, I mean, I can also add that if a commander issues an

23     order, he will verify whether it's implemented or not.  One aspect of the

24     verification of the implementation is to see whether the addressee has

25     received it or not.

Page 13068

 1        Q.   I suppose have you to know what you're doing to know that

 2     regulation, do you?

 3        A.   When you use "you," you refer to General Cermak or --

 4        Q.   Yes.

 5        A.   Yes, but a Colonel General, which is I believe is the most senior

 6     officer's rank in the HV, and somebody with General Cermak's experience

 7     and background, I would expect him to believe -- to know what he is doing

 8     when he is issuing order.

 9        Q.   What experience?

10        A.   Well --

11        Q.   We've just looked at his appointments.

12        A.   Yes.  But I would expect that -- that he didn't receive the rank

13     of Colonel General as a kind of -- of -- of honorific title.  I believe

14     he was a member of the JNA -- was an officer in the JNA prior to the

15     Croatian independence, but I'm not sure of that so I may well be wrong

16     there, but the most important is that he has a senior rank and he uses

17     that rank when is he the commander of the Knin garrison.

18        Q.   Do you know of other -- for instance, Mr. Sarinic, who was the

19     advisor to President Tudjman.  Do you know that he was a general as well,

20     without having been in the armed forces?

21        A.   I have no knowledge of that.

22        Q.   Yeah.  Did you know in fact that there were many people in public

23     life at that time who were given ranks, who had not been through the

24     ranks, to achieve Colonel General in the -- by experience of the armed

25     forces.  Did you know that?

Page 13069

 1        A.   I'm just checking whether I have ...

 2             Well, there are examples that people jumped ranks.  Now, whether

 3     that necessarily means that these people are not able to carry out the

 4     duties that one would expect somebody with the rank they have received to

 5     carry out, is another question.

 6             I can only look at the documents that I reviewed in the framework

 7     of the preparation of the report and I see that Mr. Cermak always uses

 8     his rank of Colonel General when he is signing orders or other documents

 9     as the commander of the Knin garrison, and, as I said, there must be

10     reasons for him to have that rank and to use the rank, including

11     awareness of the obligations related to that rank.

12        Q.   And how long, in your army, that your from, Belgium, would it

13     take to you get to the equivalent rank of Colonel General?  You were a

14     senior captain for how long, after how many years?

15        A.   The rank of senior captain does not exist in the Belgian

16     military.  I --

17        Q.   You were a captain?

18        A.   No I was a commandant.  I don't recall exactly how many years it

19     is took, but it -- approximately 12 or 13 years after finishing or

20     graduating from Military Academy.  For a Colonel General, so a three-star

21     General, it would be a career of approximately 30 years.

22        Q.   Thank you.  Shall we look to see, because you said the best way

23     of looking at these things is to see what the effect was, there's an

24     exhibit, Exhibit D147, which has been in evidence, showing the gateway to

25     the camp on the 9th of August of 1995.

Page 13070

 1             MR. KAY:  If Exhibit D147 could be played, please.

 2        Q.   And if you could look at the film, Mr. Theunens, and what your

 3     task will be -- I won't say it's an order, a request, will be to see if

 4     there's an a military policeman, one, two, three, four, five, whatever,

 5     at the gate to the -- main gate to the UNCRO barracks.

 6             MR. KAY:  If we could play the film, please.

 7                           [Videotape played]

 8             "THE INTERPRETER: [Voiceover]

 9             "Reporter:  Mrs. Mladenka Skaric is the first of the 840 Knin

10     civilians who took refuge five days ago in the UNCRO barracks to return

11     home today.  When we wished her all the best in her freedom and the

12     freedom of Croatian Knin, she told us about Milan Martic's last moments

13     in Knin.

14             "Mladenka Skaric:  When I went down to the cellar I find

15     President Martic down there, who was naked from waist up and barefoot, in

16     his pants.  And when I saw him I said, Mr. President, all the newspapers

17     in the world should write about a president sharing the fate of his

18     people in a cellar.  At 7.15, he left us.

19             "Reporter:  And while you are watching as cards for returning

20     home are filled for a large number of Knin residents who will remain in

21     Knin, let us say that this is the result of an arrangement made today

22     between Dr. Goran Dodig, General Ivan Cermak and Petar Pasic,

23     government's commissioner for Knin.

24             "Goran Dodig:  I have seen General Cermak for the first time

25     today.  The way in which he is trying to resolve this, his goodwill and

Page 13071

 1     concrete steps with which he really wants to resolve the destiny of these

 2     people in the best possible way, fascinated me.

 3             "And this is a guarantee, along with the principled stands of the

 4     Croatian government, Croatian leadership, and President Tudjman, that

 5     everybody has a right to a free choice and that those who will remain

 6     here will have all citizenship rights.

 7             "And I think that this on the spot conduct like General Cermak's,

 8     I think this is the best guarantee that the situation will be resolved

 9     very soon to mutual satisfaction.

10             "Ivan Cermak:  They will be granted as of tomorrow full

11     protection and all civil rights in Knin, a soup kitchen will be

12     introduced for them.  We have to urgently, with the help of civilian

13     authorities, which, there you are, have also from today started

14     functioning in Knin.  We as a military structure in all this are helping

15     so it goes as fast as possible.

16             "Reporter:  For the very end, a statement from Glisa Kablar of

17     Knin and, as he himself says, a citizen of Croatia of Serb nationality.

18             "Glisa Kablar:  I intend to stay here because this is my homeland

19     and this is, from the liberation, my state as well.  Therefore, I don't

20     plan going anywhere else but living here and staying here.  And with

21     these people, regardless how they came to argue and clash, regardless of

22     all that, I'm staying here.  To live and to work."

23             MR. KAY:  Thank you.  If that could be stopped now, that's the

24     full clip of the exhibit.

25        Q.   We were looking at there a meeting between General Cermak and the

Page 13072

 1     displaced person inside the camp, essentially.  We see there a view of

 2     the gates and we saw the lady going through.  And would you agree, we

 3     didn't see any Croatian military police controlling the main gate to the

 4     UNCRO barracks?

 5        A.   Based on the images that were shown, that is probably correct.

 6        Q.   And we particularly didn't see that lady being checked when she

 7     left the barracks?

 8        A.   No.  And we can only speculate as maybe that was an accurate

 9     reflection of the situation or maybe there was an arrangement made,

10     special arrangements were made in order to film this Croatian news

11     feature.  But I agree with you that the video as such, indeed, indicates

12     that the lady could move freely without being checked.

13        Q.   Do you often speculate like that, that there had a been a special

14     arrangement?  Is that part of your methodology?

15        A.   It is not part of my methodology to speculate, but it's part of

16     my methodology to verify the reliability of the source and the

17     credibility of the information, and without wanting to make general

18     statements, because that would be contrary to the methodology, it is not

19     unusual for parties in an armed conflict to use the media for other

20     purposes than purely the accurate reflection -- I apologise, accurate

21     transmission or accurate information of the events.  That used to be

22     called propaganda; now it is called in a more fashionable way,

23     information operations.

24             JUDGE ORIE:  Mr. Kay, you said, Do you often speculate that may

25     be an accurate reflection.  What the witness said, and we have to fairly

Page 13073

 1     try to understand what he means, that whether this accurately reflected

 2     the situation or whether there was an arrangement, that would be pure

 3     speculation.  It is not a speculation that there was an arrangement.  So,

 4     therefore, I think your question was unfair to the witness.

 5             Please proceed.

 6             MR. KAY:  I apologise, Your Honour, and it was a point I was just

 7     taking against him, and I was -- I would have been better off moving on,

 8     rather than dealing with it.

 9             Exhibit D303, please.

10        Q.   This is dated the 9th of August, 1995.  It again concerns UNCRO.

11     And it is an order to the Knin military police and Knin police station to

12     deal with setting up a team with the task of finding UNCRO vehicles,

13     which we know from the story of the case, had been stolen.

14             Again, would you agree, you don't know if the commander of the

15     Knin military police viewed this as an order or whether it was

16     information to him about a crime that had been committed.  Is that right?

17        A.   Your Honours, I would give the same answer as I have given

18     before; that is, that the word "order" has, according to the regulations,

19     particular implementations.  How the military police reacted to this, we

20     don't know.  We know from another document that an order given by

21     General Cermak is indeed acted upon by the military police and the

22     civilian police.

23        Q.   First of all, did you listen to the testimony of the witness

24     Dzolic who was the commander of the Knin military police at that time?

25        A.   I don't think I did.  I have no clear recollection.

Page 13074

 1        Q.   You didn't review what he said about this matter?

 2        A.   No, I did not.

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Private session]

10   (redacted)

11   (redacted)

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 13075

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  Your Honours, we're back in open session.

 4             JUDGE ORIE:  Thank you, Mr. Registrar.

 5             MR. KAY:  Thank you.

 6        Q.   Again, were you aware of the fact that General Cermak needed

 7     assistance, in relation to the order that we're looking at, putting it

 8     into effect, and having it distributed around the Split Military

 9     District?

10        A.   It is correct that the order to find these vehicles is also

11     distributed within the Split Military District, and I believe that

12     happened at a very late stage, that there is an order from

13     General Gotovina to General Krsticevic, commander of the 4th Guards

14     Brigade, in order to return UNPF vehicles who have been repainted

15     allegedly by members of the 4th Guards Brigade.  I'm just not sure

16     whether we're talking about the same vehicles here.

17        Q.   We're going to be looking at this as a distinct matter as it's

18     already been introduced into evidence and it tells the history of

19     Mr. Cermak trying to deal with the matter, and it's been put forward by

20     the Defence as demonstrating a lack of authority, so contrary to your

21     propositions.

22        A.   I would just like to add that if these are indeed the same

23     vehicles as those General Gotovina talks about in his order to

24     General Krsticevic, it makes sense for General Cermak to forward the

25     order to General Gotovina because General Cermak has no authority as a

Page 13076

 1     garrison commander in the city of Split, which is the garrison city of

 2     the 4th Guards Brigade.  It is correct that elements of the 4th Guards

 3     Brigade are in Knin at the time of the events, but I just want to

 4     highlight that the matter is more complicated than it seems by just

 5     looking at one isolated document.

 6             JUDGE ORIE:  Mr. Kay, I am looking at the clock.

 7             MR. KAY:  Yes.  Your Honour, that would be a convenient moment.

 8             JUDGE ORIE:  Yes.  Then we will have a break, and we resume at

 9     6.00.

10                           --- Recess taken at 5.40 p.m.

11                           --- On resuming at 6.02 p.m.

12             JUDGE ORIE:  Before we continue, Mr. Kay, there are a lot of

13     documents in the air.  I've seen that you have followed the guidance to

14     put four documents as bar table documents.  Part of the guidance was that

15     the way in which they are described and the way in which our specific

16     attention is drawn to certain aspects is disclosed to the other party.

17     And, Mr. Waespi, have you read the short descriptions and comments and do

18     you have any objections against introducing them in this way?

19             MR. WAESPI:  I'm sorry, I might have missed that.  I will go over

20     it.

21             JUDGE ORIE:  I'm talking about that document -- if you would

22     inform us, you don't have to respond right away.  Take your time to look

23     at it and see whether there is any objection so that we could proceed at

24     a later stage and then assign numbers to them and decide upon admission.

25             Please proceed, Mr. Kay.

Page 13077

 1             MR. KAY:  Thank you, Your Honour.

 2             Exhibit D503, please.

 3        Q.   This again concerns UNCRO, Mr. Theunens.  It's dated the 12th of

 4     August, 1995.  It is other UNCRO equipment and vehicles that

 5     General Forand had asked General Cermak to help get returned, as they had

 6     been stolen.  Order is issued, and again it goes to Knin military police,

 7     Knin police station.

 8             I don't want it repeat the same questions that we've repeated

 9     before, but the significance again that this is yet another of those

10     orders that you're relying upon which is not part of the general nature

11     of business in Knin relating to the military police or the civil police

12     doing their tasks and duties.  This is UNCRO specific.  And doesn't that

13     make it highly distinctive into why General Cermak issued these orders to

14     try and help UNCRO?

15        A.   It is correct that we're talking about UNCRO vehicles.  But when

16     we look at the introduction of the order, we see that the order discusses

17     the unauthorised taking by members of the HV of these UNCRO vehicles or

18     engineering equipment, and this brings us in the area of the maintaining

19     of order and discipline and the duties of the garrison commander in that

20     area.

21        Q.   As we know, though, under Regulation 2 that we looked at

22     yesterday, in fact, General Cermak cannot issue orders to HV units, only

23     precisely prescribed regulations.  Isn't that right?

24        A.   In Article 54 of the 1992 service regulations, which is known

25     here as D32, it is stated when the duties and the role of the garrison

Page 13078

 1     commander are discussed, that he can use the military police in order to

 2     maintain or restore order and discipline.  He can also use the --

 3        Q.   Can you read -- sorry -- I --

 4             JUDGE ORIE:  Could I stop you for a second.

 5             MR. KAY:

 6        Q.   Article 54 should be read out exactly, please, Mr. Theunens.

 7             JUDGE ORIE:  Before we continue, Mr. Kay, I observe that, not for

 8     the first time, that the questions and answers develop by virtue of

 9     malcommunication.  I give you an example of what happened before the

10     break.

11             Before the break, Mr. Theunens referred to experience, and I

12     would say rightly, Mr. Kay, you said what experience?  This developed a

13     long answer and question about how long it takes you in the Belgian army

14     to get somewhere, whereas the issue clearly was what do we know about the

15     experience of Mr. Cermak in the army.  Instead of that, it goes in all

16     directions and we are moving away from what the real issue was, at least

17     that's how I understood it, that you wanted to challenge the answer that

18     there was any such experience, which might have assisted Mr. Cermak in

19     understanding what he was doing, as the witness told us.

20             Now, it took us approximately one, one and a half or two pages to

21     get to where we were.  Meanwhile, I learned a lot about what positions

22     there are in the Belgian army, what positions there are not, how much how

23     much time it does take or does not take to reach, whereas the issue

24     clearly was limited to the witness relying on experience, where you

25     wanted to challenge that; and therefore, it was on my lips at that time,

Page 13079

 1     what do we know exactly about the time Mr. Cermak spent in military

 2     positions because we now have looked at the background but mainly about

 3     ministerial functions.

 4             Now here more or less the same happens.  The question clearly

 5     focuses, Mr. Theunens, on whether this is not another example of

 6     Mr. Cermak being involved in matters in which UNCRO primarily is

 7     involved, and either you don't understand the question, or for whatever

 8     reason, you start telling us that the kind of activity develops is not

 9     foreign to a task in relation to, for example, order.

10             Now, I understood the question to be whether this is not a very

11     special area in which, right or wrong, orders or no orders, but it is

12     always UNCRO that appears in these orders.  That, as far as I understood,

13     Mr. Kay, was your question.

14             What we're doing now, we're moving away from what the real

15     question was, and we are now somewhere in Regulation 2, Article so and

16     so, which, at least as far as I understood the question, was not the

17     issue you wanted to raise.

18             And, Mr. Theunens, I would like to invite you to -- I hardly dare

19     to say, but to analyse the question and try to understand what Mr. Kay

20     wants to know before you answer it.

21             And, Mr. Kay, I would invite you to not being led the witness to

22     areas where, as far as I understand, you're not primarily interested in.

23             MR. KAY:  No, I wasn't interesting in going there, but the

24     witness wanted an argument.

25             JUDGE ORIE:  No, no, but we went there.  That's why I took a bit

Page 13080

 1     more time to explain what happened before the break once which took us

 2     two pages and what I felt, at this moment, felt was happening again

 3     because that takes an awful lot of time.  And it's a clear example of

 4     malcommunication, I would say, in you, in understanding the question, and

 5     for Mr. Kay in giving a follow-up on matters he apparently is not that

 6     much interested in, at the moment, to hear your testimony about.

 7             Please proceed.

 8             MR. KAY:  Thank you, Your Honour.

 9        Q.   Well, there it is, and the Court knows what the issue is.

10             Let us just go now to P509 which is a non-UNCRO order.  And

11     remember I was telling you about the number of UNCRO orders as against

12     other matters.  This concerns an order issued by General Cermak, the 15th

13     of August, concerning civilians and entering the town.

14             Do you know if, in fact, the police, civil police, were in fact

15     using their own view of the law as to whether they admitted people to the

16     area or not?

17        A.   I am familiar with a document, D494, where the civilian police,

18     Split-Dalmatia police administration, submits a copy of the pass for

19     entering the Knin garrison that had been introduced by General Cermak --

20     actually, the document is dated also the 15th of August.

21        Q.   Yes.

22        A.   And requests the Ministry of Interior for guidance.  So now, what

23     the guidance or the decision or the reaction of the Ministry of Interior

24     is to this request, I don't know.

25        Q.   Thank you.  Again, if we go to D501, which is another matter but

Page 13081

 1     it's called a decision, and it concerns the Hotel Spas.  I think it is a

 2     document that is in your report.

 3        A.   Yes, on English page 250, in the second part.

 4        Q.   That's right.  And this is a decision rather than an order.  Can

 5     you explain to me the difference?

 6        A.   I cannot.  I have not seen in the doctrine any specific

 7     definition for what is here described as a decision.

 8        Q.   Thank you.  Can we go to D504.  This is it dated 11th of October,

 9     1995.  It is an order.  It goes to the Knin police as well as the

10     commission of the government of the Republic of Croatia for Knin

11     municipality, and it concerns MUP officers being temporarily transferred

12     to the old grammar school in Knin.  Not an UNCRO order but just an order

13     there.

14             Are there any other orders that are to be found besides this

15     collection that we have been through from the 8th of August and the 11th

16     of October on this matter?

17        A.   When you say "this matter," could you please specify it.

18        Q.   Orders that you cite as being orders to the military police or

19     civil police that are relied upon by you for your proposition concerning

20     Mr. Cermak being superior and running the military police or the civil

21     police.  I've got them in my hand here.  Is there anything else?

22        A.   I would have to look in my report.  I think you provided a good

23     summary.  There are some references in other documents, for example,

24     P1147, where General Cermak informs the addressee of his letter that he

25     has ordered the military police to conduct an investigation, for example,

Page 13082

 1     but, otherwise, this corresponds with the majority of the documents that

 2     can be found in my report.

 3        Q.   This is it, from everything that we have looked at.  Is that

 4     right?  I'm not concerned to what he says in letters or anything like

 5     that but actual orders that provide the foundation for your proposition.

 6        A.   I'm not sure whether we saw P510?

 7             MR. KAY:  Could Exhibit P510 come up on the screen, please, under

 8     seal.  Sorry, that's -- P510 is under seal.

 9             JUDGE ORIE:  And therefore not to be shown to the public.

10             MR. KAY:  Yes, and I think --

11             JUDGE ORIE:  If you will -- it depends on what questions you'll

12     put to the question whether we have to go into private session.  If you

13     just ask him whether he has seen the document then, of course, there is

14     no need.  But I think I would not be surprised if your first question

15     would be whether this was an order issued by Mr. Cermak, P510.

16             MR. KAY:  Yes.  The witness mentioned it as being one that he'd

17     missed.  Now I know why it's being dealt with separately in my file,

18     which is my inadvertence.  We have P510, we can just have a look at it.

19        Q.   It's not, in fact, an order as such but referring to the document

20     that we have already seen concerning P509.  It is linked to it and the

21     Court has heard evidence about this.  It's not a separate order.  It's

22     linked.

23        A.   Indeed.  But it is an example of an order by General Cermak to

24     the civilian police being reacted upon by the civilian police.

25        Q.   And is there any such other document as this?

Page 13083

 1        A.   Not in the material I was able to review.

 2        Q.   Thank you.

 3             MR. KAY:  That matter can now be taken off the screen as we have

 4     finished it.  The Court will recollect the evidence concerning this

 5     particular matter.

 6             And the next matter we will be looking at will be, in fact, the

 7     issue of the passes.

 8        Q.   And is it correct, rather than me having to produce a whole

 9     series of documents, that there are in fact a number of orders issued by

10     the Ministry of Defence and the military [sic] of police administration

11     from the 3rd of August onwards, concerning check-points and the

12     establishment of those check-points by the military police and the civil

13     police, as part of their duties?

14        A.   Yes.  But I'm not sure whether the two matters are connected, and

15     if they are connected, in which manner.

16        Q.   And can we look now at a document concerning 2D07-0390, which

17     comes from the political administration information staff in Zagreb,

18     dated the 7th of August, and sent to the Ministry of Interior, concerning

19     a large number of international journalists and giving their consent, in

20     relation to these journalists being able to move in the area.

21             Is this a document you were aware of?

22        A.   I have not seen this document before.

23        Q.   Right.  Would you agree that it was not exclusively Mr. Cermak

24     who dealt with the issue concerning freedom of movement but that other

25     agencies did as well?

Page 13084

 1        A.   Yes.  And it covers different aspects of freedom of movement;

 2     UNCRO, international media, local population, and so on.

 3        Q.   Can we look at 2D --

 4             MR. KAY:  May that document be made an exhibit, please,

 5     Your Honour.

 6             MR. WAESPI:  No objections.

 7             JUDGE ORIE:  Mr. Registrar.

 8             THE REGISTRAR:  Exhibit number D1012, Your Honours.

 9             JUDGE ORIE:  D1012 is admitted into evidence.

10             MR. KAY:  May we look at 2D07-0228.

11        Q.   This is a document dated the 5th of August, 1995.  It's from the

12     Split-Dalmatia police, issued by Mr. Cipci.  If you'll remember, it's

13     Mr. Cipci who writes on those letters concerning the validity of the

14     passes that Mr. Cermak had signed and which were being queried by the

15     MUP.  Do you remember that, Mr. Theunens?

16        A.   Yes.  I believe that was D494.

17        Q.   Yes.  Here, Mr. Cipci is giving a passage in relation to a

18     journalist coming to a check-point in the direction of Knin and that

19     Major Tolj had enabled him to have unobstructed arrival to Knin.

20             A document you're familiar with?

21        A.   No.  But it -- I mean, it looks like a usual document that one

22     tries to control the -- the freedom of movement of -- of journalists in

23     an area where military operations are conducted, for various reasons.

24             MR. KAY:  If we go to another document, 2D07-0232.

25        Q.   It's again from Mr. Cipci, dated the 8th of August, and asks for

Page 13085

 1     an opinion, because there is a great pressure to visit the liberated

 2     areas of Vrlika, Knin, Drnis by refugees, citizens, various associations,

 3     political parties, other institutions.

 4             So he was sending this letter to the operative headquarters of

 5     the MUP for their opinion as to who to give passes to.  Did you

 6     appreciate that it was not only passes stamped by Mr. Cermak that were

 7     being issued to give freedom of movement to people in the area?

 8        A.   Indeed.

 9             MR. KAY:  May this document be admitted into evidence,

10     Your Honour, as well as the previous document.

11             MR. WAESPI:  No objections to both.

12             JUDGE ORIE:  Mr. Registrar.

13             THE REGISTRAR:  Your Honours, document ID 2D07-0228 becomes

14     Exhibit number D1013.  Document ID number 2D07-0232 becomes Exhibit

15     number D1014.

16             JUDGE ORIE:  D1013 and D1014 are admitted into evidence.

17             MR. KAY:  Your Honour, I have a whole series of documents

18     following this same theme, and to save Court time and having dealt with

19     it in a brief form, we will be putting them in bar table form, subject to

20     the Court's approval.

21             JUDGE ORIE:  Yes.  And then under the similar guidance --

22             MR. KAY:  Yes.

23             JUDGE ORIE:  -- as before, so, for example, we now have a

24     journalist, what I would expect in the comment is the same but now about

25     -- what is it -- various associations, political parties, et cetera,

Page 13086

 1     where the earlier was about journalists.  If it could be introduced in

 2     this way, then our attention is drawn to relevant aspects and also

 3     relevant differences.

 4             MR. KAY:  Yes.

 5        Q.   These passes were not only being issued to journalists but also

 6     to employees of banks.  Were you aware of that?  Exhibit D488 is also a

 7     document concerning people from the Split Bank Limited.  Were you aware

 8     of that, Mr. Theunens?

 9        A.   I'm not aware of the specific example but, again, it makes sense

10     that the authority who has the power to do so controls the access of

11     people who are not directly involved in military operations to the zone

12     of operations.  And I mean by control, not just verifying but also

13     preventing those who should not be entitled to enter, to prevent them

14     from entering.

15        Q.   In relation to this matter, did you appreciate that there was a

16     problem, and we could see part of it within the video-clip that we saw

17     about an hour ago, concerning the identification cards, that those

18     citizens had under the previous Yugoslavia government who did not have

19     Republic of Croatia identifications when the territory was liberated on

20     the 5th of August?

21        A.   I am aware that people living in the -- in the so-called RSK did

22     not have Croatian documents, but I have difficulties to connect it to the

23     video images we saw.

24        Q.   There was an old lady who had an ID card put on the table and we

25     saw a picture of a propusnice, a document that you have referred to in

Page 13087

 1     your report, which is the document to enable people to have freedom of

 2     passage which was signed by Mr. Cermak.  Do you recollect that?

 3        A.   Yes, I believe you.

 4        Q.   Yes.  Did you know that General Forand had a meeting on the 8th

 5     of August with General Gotovina concerning freedom of movement and that

 6     he was told that maps would be provided showing areas in which it was

 7     safe to travel?

 8        A.   It is possible.  I mean, if you refresh my memory with a

 9     document, then I can provide more information.

10        Q.   It's P359, and it is at page 3 of that document, and it's an

11     UNCRO sitrep report signed by General Forand.

12             Did you know that the map that was attached to Mr. Cermak's

13     letter, Exhibit P405, when he wrote to General Forand about the freedom

14     of movement in the area at that time, was that map?  Were you aware of

15     that fact when you were writing your report?

16        A.   Again, I'm not sure whether I used any of these documents --

17        Q.   No.

18        A.   -- 405 or P359 in my report.

19        Q.   No, you don't.  And I don't know whether that is because you

20     don't know of them or whether you chose not to.

21        A.   If you show me the documents then that could refresh my memory in

22     order to see whether I have seen them before --

23             MR. KAY:  If we could have Exhibit P405 on the screen, please.

24        Q.   That's the document there.  And do you see the enclosure of the

25     map?

Page 13088

 1        A.   Indeed.  And I believe that I have included that document in my

 2     report, I mean, the advice to only use the main roads.  I'm just trying

 3     to locate it.

 4        Q.   The issue is the map.  Did you appreciate that the map was

 5     something that General Forand had been told he would be supplied, showing

 6     him the areas that are safe to travel, when he had met General Gotovina

 7     on the 8th of August, before he met General Cermak?  Did you appreciate

 8     that fact?

 9        A.   I haven't seen the map attached to P405.

10        Q.   It's the fact rather than the map.  It's the issue of why

11     General Cermak has a letter with the map.

12        A.   And the question is whether the map is the same map that --

13        Q.   Had you appreciated this when you wrote your report, that the --

14     about this matter concerning freedom of movement?  It's a matter -- the

15     freedom of movement, General Cermak's role in the matter is something

16     that you stress in your report on many occasions.

17        A.   Indeed.  Could you please repeat the question because it is not

18     clear to me what the question is.

19        Q.   Had you appreciated that the map enclosed with General Cermak's

20     letter, Exhibit P405, had earlier been referred to by General Gotovina to

21     General Forand, at a meeting of the two men, before General Forand met

22     General Cermak?

23        A.   It would be helpful to me to see P395 because --

24        Q.   359.

25        A.   Excuse me.

Page 13089

 1             JUDGE ORIE:  I'll read the relevant portion of it for you.

 2             The relevant portion is:  "General Gotovina spent some time

 3     talking about freedom of movement.  He did not ask commander Sector South

 4     opinion.  He stated that he must limit our freedom of movement out

 5     concerned for our safety.  He said that maps would be provided, showing

 6     the area that is safe to travel."

 7             I read it, Mr. Kay, also because you're talking about the map

 8     whereas in this sitrep the plural is used, maps.

 9             That was what Mr. Kay was referring to, if I'm not mistaken,

10     Mr. Kay.

11             MR. KAY:  Exactly right, Your Honour.

12             THE WITNESS:  I have not seen the map or maps, but I know from a

13     statement from General Cermak that he states that he and General Gotovina

14     are in constant coordination.  So if the same maps are being used by both

15     Generals, it could be an indication of the degree of coordination between

16     the two of them.

17             MR. KAY:

18        Q.   That document is dated the 21st of August and not on this issue.

19     Isn't that right, where your quote comes from?

20        A.   I don't have it in front of me, but I'm not sure whether the

21     document that according to you is dated 21st of August explains or

22     establishes when the coordination has started.

23             JUDGE ORIE:  We're -- we're suffering now from the same problem.

24             MR. KAY:  Yes.

25             JUDGE ORIE:  The question simply was whether you had appreciated

Page 13090

 1     that the map enclosed with General Cermak's letter had earlier been

 2     referred to by General Gotovina to General Forand at a meeting of the two

 3     men before General Forand met General Cermak.

 4             That was the question.

 5             Now that questions consists of two elements.  First, were you

 6     aware that, in a meeting, that it was reported that in a meeting between

 7     General Gotovina and General Forand that General Gotovina said, We'll

 8     provide you with maps, safe areas.

 9             Were you aware of that?

10             THE WITNESS:  I was not aware of that, Your Honours.

11             JUDGE ORIE:  Then may I take it that you also could not tell us

12     anything about whether the maps General Gotovina is talking about would

13     be the same or that the map attached to the letter would be among the

14     same maps as General Gotovina was talking about?

15             THE WITNESS:  That is correct, Your Honours.  And that was the

16     start of -- of also my previous answer.

17             JUDGE ORIE:  Yes.  But it developed in a way which seems to be a

18     bit symptomatic for what, now and then, happens in this courtroom.

19             Please proceed.

20             MR. KAY:  Thank you.

21        Q.   Were you aware that those propusnices were also issued by

22     Mr. Pasic?

23        A.   No, I am not aware of that.

24        Q.   Should we look at Exhibit D489?

25             There is a document dated the 9th of August, certificate of

Page 13091

 1     confirmation, confirming that Mr. Pasic, head of office for refugees of

 2     the municipality of Knin, took up the passes for entering into Knin

 3     garrison from 51 to 250, and he commits to deliver verified signatures of

 4     people to whom passes were given by the 10th of August, 1995.

 5             Were you aware of a large number of passes being issued by

 6     Mr. Pasic?

 7        A.   I have not seen this document before, so I'm not aware of that

 8     but it -- based -- I mean, what I see in this document that is actually

 9     that Pasic does it under the -- or with the authorisation of

10     General Cermak.

11        Q.   Yes.  The documents are signed by him but who receives them, who

12     gets them is by Mr. Pasic.  The Court has seen Exhibits D491 to 493

13     previously.

14             MR. KAY:  The next document I would like to look at is

15     Exhibit D300.

16        Q.   Exhibit D300 is dated the 9th of August and is signed by

17     General Cermak as information concerning various rights of people.  And

18     it is put this way:  "We hereby inform all the population of Knin that

19     has fled that the following is guaranteed to them ..."

20             This is a document cited by you in your report at page 15 in the

21     executive summary.  You characterize it this way:  "Cermak, on the 9th of

22     August, 1995, advises all people who left Knin in 1991 to 1992 conflict

23     of their rights."

24             Would you agree that that is in fact incorrect, that

25     General Cermak gave this information to all the population of Knin --

Page 13092

 1        A.   That is correct on the face of the document, but my

 2     interpretation of the document in context of all the other documents is

 3     that it referred to the people who had -- or who fled Knin between 1991

 4     and 1992.

 5        Q.   Did you appreciate in that video-clip we saw earlier this

 6     afternoon that Mr. Cermak was, in fact, referring to those rights to

 7     those people in front of him who were the Committee of Displaced Persons

 8     that he met that afternoon, on the 9th of August, at the UNCRO camp where

 9     that film was taken?

10        A.   It's possible.  I mean, I didn't have the video or I didn't

11     review the video at the time of the drafting of my report.  But from the

12     images I saw, it appears that indeed that's what the images show.

13        Q.   Would you agree that this is a matter to which you could have

14     come to an incorrect conclusion upon from your analysis?

15        A.   Of course if you would show me additional information or other

16     documents that would be more specific, then I would review them and

17     obviously, if necessary, amend or change the conclusion.  But I --

18        Q.   We've heard evidence about this, by the way, in the trial.

19        A.   Yes.  But I compared, on one hand, this information; and, on the

20     other hand, the situation of the people who were staying at the UNCRO

21     barracks in Knin.  And comparing these two different aspects led me to

22     conclude that the information, which is D300, applies to people who fled

23     Knin between -- I mean, due to the 1991/1992 conflict.

24        Q.   Why would those people at point 7 need movement permits if they

25     already had Croatian identity cards?

Page 13093

 1        A.   I'm not sure what is meant by the movement permits, but indeed,

 2     it is a genuine point.

 3        Q.   Thank you.  Why would they need the listing of all deceased and

 4     their burial in cemeteries according to place of residence?

 5        A.   Well, in my view, it is information that is needed in order to

 6     establish who is entitled to return.

 7        Q.   I'm going to leave this matter with the Trial Chamber, of course,

 8     and not go further into it in the interests of time.

 9             MR. KAY:  Could we turn to D495, please.  Exhibit D495 comes in

10     reverse order, if you like.  The attachment comes first and then the

11     letter second.  So can we go to page 2 of D495.

12        Q.   Which is a letter dated 15th of August concerning the passes,

13     signed by Mr. Cipci, and asking about the validity of these passes for

14     civilian persons in question.

15             Is this a document you've seen before?

16        A.   Yes.  And I was under the understanding that it was D494, so I

17     may have made an error.  Or maybe D494 is a similar document.

18             MR. KAY:  Can we go to the first page now of Exhibit D495.

19        Q.   We see the handwritten down at the bottom, and the history of

20     this document is known through other evidence to the Trial Chamber, that

21     it's written here:  "According to the MUP staff announcement,

22     Colonel General Cermak's permit is valid only for military personnel and

23     civilians working in the Croatian army."

24             And then:  "I will inform the staff of the MUP that all passes be

25     revoked until further notice, along with the checking of all people who

Page 13094

 1     are travelling on roads and rails."

 2             Were you aware of this handwritten information on this document?

 3        A.   No, I was not aware of that information.

 4        Q.   Do you appreciate that in the significance -- the significance of

 5     the document, in relation to the information and propositions in your

 6     report concerning the authority of General Cermak and the significance of

 7     the passes?

 8        A.   Well, there appears to be a contradiction between, on one hand,

 9     the information issued by General Cermak on the 9th, and, on the other

10     hand, these passes.  But I would still expect that somebody with the

11     experience and background of General Cermak and holding the position he

12     holds, that he was well aware of what he was doing when he issued the

13     information on the 9th of August.

14             As to how this was to be implemented, obviously there would be a

15     requirement for coordination and cooperation with the civilian police.

16        Q.   Do you appreciate that in the circumstances in Knin from the 5th

17     of August, 1995, and onwards, for the rest of August, that there was a

18     great deal of confusion between all the agencies of the government as to

19     who had what responsibility and that the agencies were not synchronized

20     in the way that you would expect, as you have just answered, concerning

21     coordination?

22        A.   It is correct that at least in the beginning, and we see that --

23     we have also seen that while discussing the military documents, that

24     there are certain difficulties, especially in the manner or in the

25     approach towards the crimes that are developing or that are being

Page 13095

 1     committed, i.e., the burning and the looting.  However, you have shown a

 2     number of documents, including this document, that indicate that already

 3     at an early stage, for example, the Ministry of Interior or the local

 4     police through the Ministry of Interior, is looking for ways in order to

 5     come to a more coherent approach, and I would -- again, I have no

 6     document to prove that, but I would assume that General Cermak, being the

 7     commander of the Knin garrison, would be involved in that process.

 8        Q.   Looking further at the tasks now of General Cermak.

 9             MR. KAY:  And if we go to Exhibit P463, to page 5.

10        Q.   This is another presidential transcript of the 22nd of August,

11     1995.  It is a meeting between Dr. Jure Radic, President Tudjman, and

12     records a discussion between the two men.  At one passage, there is

13     discussion concerning General Cermak.

14             First of all, have you seen this transcript?

15        A.   I have not seen this transcript.

16        Q.   Let us look at this conversation with Dr. Radic in the middle of

17     the page, where he refers to:  "The civil is in but according to my

18     estimate the main problem here is the army/police relationship, because

19     there is nothing the police can do to the army.  If someone shows up as

20     the army, then problems will come right after that.  We have to have the

21     civil authorities in the villages.  Cermak is not holding power in Knin,

22     he's not the one who can say who's going to enter which house, who is

23     doing what.  That is just an example I'm telling you."

24              "President:  Wait a second, hadn't I sent Cermak to Knin, it

25     would have been horrible there."

Page 13096

 1             And Dr. Radic agrees, saying maybe he didn't use the right

 2     example precisely because we are all using it ... military authority

 3     cannot run civil matters in the terrain, military authority cannot decide

 4     on who goes to which house.

 5             "It cannot," says the president, "but it can maintain order in

 6     these transitional periods."

 7             You have relied upon the presidential transcript in the

 8     preparation of your report that we have previously referred to concerning

 9     order and the description by Mr. Cermak of his job in his discussion in

10     1999 with the president.  In relation to your report, is there any reason

11     why you did not seek further presidential transcripts to find out what

12     was being said about General Cermak's job by the president?

13        A.   I have not systematically reviewed all the presidential

14     transcripts.  I reviewed those that appeared during my searches.  Now, in

15     the context of the powers of General Cermak in Knin, I have not seen a

16     document by General Cermak in which he complains that he is not in a

17     position to exercise or does not have the powers to exercise the

18     authority that has been given to him by President Tudjman.

19             So I do appreciate what is -- what is written here, and it's an

20     opinion by Mr. Radic about what appears to be the difficulties Mr. Cermak

21     is facing in Knin, but as I said, I have not seen such a document

22     authored by Mr. Cermak.

23             JUDGE ORIE:  Mr. Kay.

24             MR. KAY:  I can finish this subject with one last question.

25             JUDGE ORIE:  One question then --

Page 13097

 1             MR. KAY:  Yes.

 2             JUDGE ORIE:  -- because otherwise we'll end up after 7.00.

 3             Please proceed.

 4             MR. KAY:  Yes.

 5        Q.   For your methodology and your work, don't you think it important

 6     for you to analyse such contemporaneous statements by people at the time?

 7        A.   I agree with you that this is an important document which, if I

 8     had seen it, I would certainly have included it in my analysis.  But

 9     again, when compared with the other material I reviewed, it does not lead

10     me to review the conclusions I drew in relation --

11             JUDGE ORIE:  But that is apparently not what Mr. Kay is asking

12     you.  Mr. Kay is not asking you whether if you would have known this, you

13     would have drawn different conclusions.  He is mainly focussing on the

14     importance of this document to be considered when writing a report.  And

15     this brings me, Mr. Kay --

16             MR. KAY:  That's -- Your Honour, there is another page of this

17     document but it will go --

18             JUDGE ORIE:  Yes.  Well, let's -- if --

19             MR. KAY:  -- further and I can stop here.  Thank you.

20             JUDGE ORIE:  And it brings me back again, Mr. Theunens, to what I

21     said earlier to you, is try to -- you're an analyst.  Try to analyse what

22     is exactly asked, try to understand what is asked of you.  And also when

23     you said -- when you said you didn't know whether these were the same

24     maps, you told me that this was the start also of your previous answer.

25     It was not.  Your previous answer started by saying, I have not seen the

Page 13098

 1     maps; whereas, the question was whether you were aware of in a meeting

 2     between General Gotovina and General Forand, that a map was announced.

 3     That was asked.  And then Mr. Kay suggested that that might have been the

 4     same map.

 5             Now, just by saying, I haven't seen the maps, I know a lot of

 6     things without sometimes having seen -- for example, I knew that

 7     reference was made to that map, even without ever having seen that map.

 8     So, therefore, it seems that you, more or less, responded also to my

 9     light critical note that you should focus on the question.  After you

10     have said, I have not seen the maps, which is certainly not an answer to

11     the question that was put to you, you immediately drifted to coordination

12     matters which were not asked.

13             So, therefore, perhaps you would be so kind to consider this and

14     especially keep this in mind when you continue your testimony tomorrow.

15     You will continue it after I have instructed you not to speak with anyone

16     about your testimony, whether already given or still to be given.

17             We adjourn, and we resume tomorrow, Thursday, the 4th of

18     December, at quarter past 2.00 in this same courtroom, I.

19                            --- Whereupon the hearing adjourned at 7.06 p.m.,

20                           to be reconvened on Thursday, the 4th day of

21                           December, 2008, at 2.15 p.m.