Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13368

 1                           Wednesday, 10 December 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness entered court]

 5                           --- Upon commencing at 9.09 a.m.

 6             JUDGE ORIE:  Good morning to everyone.  Madam Registrar, would

 7     you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning

 9     everyone in and around the courtroom.  This is case number IT-06-90-T,

10     the Prosecutor versus Ante Gotovina et al.

11             JUDGE ORIE:  Thank you, Madam Registrar.

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

13             MR. MIKULICIC:  I am, Your Honour.  Good morning, Mr. Theunens.

14     Good morning to everyone in the courtroom.

15                           WITNESS:  REYNAUD THEUNENS [Resumed]

16                           Cross-examination by Mr. Mikulicic: [Continued]

17        Q.   [Interpretation] Mr. Theunens, yesterday we left off while we

18     were discussing disciplinary courts and disciplinary procedure.  I want

19     to show you another document now.  I would kindly ask the registrar to

20     show us 3D01-0634.  3D01-0634.

21             Mr. Markac's Defence turned to the administration in charge of

22     cooperation with international courts back in 2005 requesting

23     clarification from the Ministry of the Interior on the issue of the

24     functioning of disciplinary -- the disciplinary courts of the Ministry of

25     the -- of Defence in the material period for the indictment.  We received

Page 13369

 1     a document in which it is stated that under the then Law on the Interior

 2     there were disciplinary courts that were formed in first instance in each

 3     of the police administrations as well as the seat of the ministry, and

 4     there was a second instance court which was also housed at the seat of

 5     the ministry.  From this explanation we conclude that it was prescribed

 6     that the disciplinary -- a disciplinary court has to have a president and

 7     additional two members in the police administration, a post was envisaged

 8     for a clerk in charge of disciplinary measures and proceedings, and the

 9     presidents and members of these courts were appointed through a decision

10     of the Ministry of the Interior.

11             Mr. Theunens, would you agree that this directs us to the

12     regulation of the Law on the Interior from 1991 we saw yesterday which

13     was D1077.

14        A.   Indeed, Your Honours, it does.

15             JUDGE ORIE:  Before we continue, were you familiar with this

16     document?

17             THE WITNESS:  Your Honours, I have not seen the document that is

18     on the screen, but I see a reference to Article 84 and Article 84 of the

19     1107 discusses the composition of -- it is translated there as

20     disciplinary tribunals, but I understand it is the same as disciplinary

21     courts.

22             JUDGE ORIE:  If you have not seen a two-page A4 document, then of

23     course, first of all, you should read it in its entirety, that's one.

24     And second, Mr. Mikulicic, documents explaining how it was, that's a kind

25     of evidence where one could wonder whether this fits in the system.  It

Page 13370

 1     is a statement --

 2             MR. MIKULICIC:  It is an official statement of the Ministry of

 3     Interior, Republic of Croatia.

 4             JUDGE ORIE:  Yes, but does that change anything as far as the

 5     status of the document?  I mean, tomorrow we get a document in which

 6     matters are explained to us what happened in Knin or -- official or not.

 7     The evidentiary status of such a statement, which comes close to a 92 bis

 8     statement, 92 ter statement, it was prepared for the purpose of these

 9     proceedings, from what I understand.

10             MR. MIKULICIC:  No.  We ask for the information of the -- through

11     the -- through the Office for the Cooperation of International Courts of

12     the Minister of Interior, how was the legislation upon the constitution

13     of disciplinary courts within the Ministry of Interior, and we got this

14     answer, which is in line with the provisions of the law 1077 made

15     yesterday in this courtroom.  So I offer this document as in evidence,

16     Your Honour.

17             JUDGE ORIE:  Mr. Waespi.

18             MR. WAESPI:  Yes.  Given the provenance and explanation by

19     Mr. Markac [sic], I do not object to its admissibility.

20             JUDGE ORIE:  I take it that you wanted to refer to Mr. Mikulicic.

21             MR. WAESPI:  Yes.  I'm sorry.  I'm sure I misspoke.

22                           [Trial Chamber confers]

23             JUDGE ORIE:  Mr. Mikulicic, the Chamber first wants to read the

24     document in its entirety and -- but it can be marked for identification.

25     Madam Registrar.

Page 13371

 1             THE REGISTRAR:  As Exhibit D1079, marked for identification,

 2     Your Honours.

 3             JUDGE ORIE:  And that's the status the document will keep for the

 4     time being.

 5             Please proceed.

 6             MR. MIKULICIC:  Thank you, Your Honour.  Could I have document

 7     3D01-0721.

 8        Q.   [Interpretation] Mr. Theunens, were you able to see this document

 9     before or a similar document?  This is a decision on appointing president

10     and deputy president as well as members of the disciplinary court at

11     first instance of the police administration Zadar-Knin.  Have you had

12     occasion to see this decision or a similar one?

13        A.   I have not seen this decision or a similar one before.

14        Q.   This is a decision by the Minister of the Interior,

15     Mr. Ivan Jarnjak, pursuant to Article 84 that we have just seen of the

16     Law on the Interior appointing a -- members to a first instance court at

17     the police administration of Zadar and Knin.  We see that president,

18     deputy president, and members were appointed.

19        A.   Yeah, that's what the document says.

20             MR. MIKULICIC:  I tender this document into the evidence,

21     Your Honour.

22             MR. WAESPI:  I have no objection to this document in relation to

23     the previous one.  It might be helpful if we could see the request by the

24     Markac Defence, which was dated 9th of December, because that may set out

25     the exact terms under which the letter was supposed to be sent.  It's

Page 13372

 1     almost like an RFA, I believe.

 2             MR. MIKULICIC:  That's no problem with us, Your Honour.  I will

 3     provide the request.

 4             JUDGE ORIE:  Then we'll further hear from you, Mr. Waespi, once

 5     you've seen it.

 6             Madam Registrar, the --

 7             THE REGISTRAR:  Your Honours, Exhibit D1080.

 8             JUDGE ORIE:  D1080 is admitted into evidence.

 9             MR. MIKULICIC:  May I have document, Madam Registrar, 3D01-0719.

10        Q.   [Interpretation] Mr. Theunens, we said already that disciplinary

11     courts were set up at police administrations in first instance as well as

12     at the seat of the ministry at first instance.  This decision is the same

13     as the previous one, the only difference being that this concerns the

14     appointment of president and deputy president of the first instance court

15     at the seat of the ministry.  Have you had occasion to see this type of

16     decisions previously?

17        A.   No, Your Honours, I didn't have the occasion to see such

18     decisions before.  I note this one dates from August 1997.

19        Q.   The decision is from 1997, but you can see in the preamble that

20     it is pursuant to Article 84 of the Law on the Interior, that is to say

21     the same law that was the basis for the previous decision from 1995.

22             MR. MIKULICIC:  Your Honour, may I tender this document into the

23     evidence.

24             MR. WAESPI:  No objections.

25             JUDGE ORIE:  Madam Registrar.

Page 13373

 1             THE REGISTRAR:  Your Honour, Exhibit D1081.

 2             JUDGE ORIE:  D1081 is admitted into evidence.

 3             MR. MIKULICIC:  Thank you, Your Honour.

 4             Madam Registrar --

 5             JUDGE ORIE:  Mr. Mikulicic, the question -- the observation made

 6     by the witness a second ago that this was a document from 1997 I think

 7     stems from the witness not knowing exactly what your case is in this

 8     respect, apparently that there was a system of disciplinary courts in the

 9     Ministry of the Interior.  Now, of course the question is legislation was

10     there.  People were appointed in those courts, which does not come as a

11     surprise but it is good to establish that.  Is it your case that these

12     courts dealt with certain matters where in the indictment we find that

13     Mr. Markac or others are held responsible for not doing anything?  What's

14     exactly your case in this respect?  If the witness would know, then --

15     and I think he's entitled to know, then it will be -- it will certainly

16     smoothen the communication during your cross-examination.

17             MR. MIKULICIC:  Yes, of course, Your Honour.  I will come to it.

18             Madam Registrar, may I have the document 3D01-0717.

19        Q.   [Interpretation] This is the last document on the topic of the

20     setting up of disciplinary courts and appointing of presidents and

21     members.  Here we have a decision on appointing the president of the

22     second instance disciplinary court at the seat of the ministry, that is

23     to say the court that dealt with appeals pursuant to the Law on the

24     Internal Affairs following decisions rendered by first instance court --

25     courts.  I suppose, Mr. Theunens, that you did not have an opportunity to

Page 13374

 1     see this type of decisions issued by the minister, Mr. Jarnjak, either.

 2        A.   That is correct, yes.

 3             MR. MIKULICIC:  Okay.  May I have -- tender this document into

 4     the evidence, Your Honour.

 5             MR. WAESPI:  No objections.

 6             JUDGE ORIE:  Madam Registrar.

 7             THE REGISTRAR:  Exhibit D1082, Your Honours.

 8             JUDGE ORIE:  D1082 is admitted into evidence.

 9             MR. MIKULICIC: [Interpretation]

10        Q.   As we saw, Mr. Theunens, within the ministry there were first and

11     second instance disciplinary courts.  Who was it within the Ministry of

12     the Interior, including the special police as part of the ministry, of

13     course, who was responsible for the implementation of disciplinary

14     regulation in the police units themselves?  I want to put up a document

15     indicating that, and then I will kindly ask for your comment.  The

16     document is P587.  It is a Prosecution document.  Therefore, I suppose

17     you did see it before.  Let us wait for it for a moment.

18             THE INTERPRETER:  Could Mr. Mikulicic please speak into the

19     microphone to his right.

20             JUDGE ORIE:  Mr. Mikulicic, you're invited --

21             MR. MIKULICIC:  I will do my best, Your Honour.  It is P587.

22     Okay.

23        Q.   [Interpretation] Mr. Theunens, this is an order issued by

24     assistant minister Mr. Mladen Markac in November 1995.  It was sent to

25     the chiefs of all police administrations except for the Virovitica,

Page 13375

 1     Podravina and Medjimurje police administration.  It was to be served on

 2     the commanders of SJP units as well as to the head of the special police

 3     sector, to the commander of the anti-terrorist unit Lucko and the

 4     airborne unit commander.

 5             Mr. Theunens, do you have an explanation as to why this document

 6     specifically states that it was not to be delivered to the Virovitica,

 7     Podravina and Medjimurje police administrations?  Why were they exempt

 8     from the delivery list?  Do you have an explanation for that?

 9        A.   No, I have no explanation for that, Your Honours.

10        Q.   Would you accept an explanation that I want to offer, and that is

11     that in those police administrations there were no special police units.

12        A.   That would indeed be a logical explanation.

13        Q.   This document mentions a ministerial collegium whereby the issue

14     of working discipline was discussed within the organisational units of

15     the MUP and that certain type of behaviour was in existence, and in

16     keeping with that, Mr. Markac, assistant minister, issued this order

17     placing the responsibility on the heads of departments and commanders in

18     items 1, 2, 3, and 4 to supervise their employees and that they are

19     responsible for the implementation of this order.

20             Is it a conclusion of your expertise that based on this document

21     the commanders of units and heads of administrations were those people

22     who were tasked with supervising the discipline in the units that they

23     commanded?

24        A.   Yes.  And I would just like to add that the duty of the special

25     police unit commander as well as the anti-terrorist unit commander to

Page 13376

 1     enforce discipline and maintain discipline in his unit is also specified

 2     in the November 1995 rules on internal organisation of the Ministry of

 3     Interior which correspond with 65 ter 5032.  It may have been tendered,

 4     but in any event, it is discussed in the addendum, pages 7 and 8.

 5        Q.   Thank you for this explanation, Mr. Theunens.  We will get to

 6     that document as well.

 7             When you were studying the documents for this case and based on

 8     your previous knowledge and experience, do you know what substantive law

 9     was applied by the disciplinary courts within the Ministry of the

10     Interior?

11        A.   Your Honours, I have not specifically analysed this aspect, i.e.,

12     the types or the kinds of substantive law applied by the disciplinary

13     courts within the Ministry of Interior.

14        Q.   Do you know what procedural law was applied by these disciplinary

15     courts?

16        A.   I have -- again, I have not analysed these legal aspects.

17        Q.   Mr. Theunens, yesterday we saw the Law on Courts stipulating all

18     of the courts in the Republic of Croatia.  Do you agree with me that in

19     that law there is no mention of any disciplinary courts, that is to say

20     that disciplinary courts were not made part of the regular judiciary

21     system in the Republic of Croatia?

22        A.   It is possible, Your Honours.  I have no clear recollection of

23     the law we discussed yesterday.  I saw it on the screen here, but I

24     haven't looked further into it.

25             THE INTERPRETER:  Could Mr. Mikulicic kindly turn off the

Page 13377

 1     microphone to his right or speak directly into the microphone to his

 2     left.  Thank you.

 3             MR. MIKULICIC: [Interpretation]

 4        Q.   In the Law on Courts what was envisaged was --

 5             JUDGE ORIE:  Did you receive the message which asked you to

 6     switch off one of your microphones to the right and to speak in the one

 7     to your left.

 8             MR. MIKULICIC:  Well, I have microphone on my left.

 9             JUDGE ORIE:  Yes.

10             MR. MIKULICIC:  And I will try to put it closer to me.  I think

11     that will be fine.

12             JUDGE ORIE:  Please proceed.

13             THE INTERPRETER:  Mr. Mikulicic has to speak into the microphone,

14     Your Honour.  We can't hear him very clearly.

15             JUDGE ORIE:  Mr. Mikulicic, I do understand that --

16             MR. MIKULICIC:  [Overlapping speakers] ... some trouble with my

17     microphone.

18             JUDGE ORIE:  -- I see for one reason or another there is a

19     problem with your microphone because the interpreters cannot hear you,

20     and ...

21             MR. MIKULICIC:  Is this one okay?

22             JUDGE ORIE:  Is that --

23             THE INTERPRETER:  Your Honour, every microphone is okay as long

24     as one speaks into it.

25             JUDGE ORIE:  Yes.  Mr. Mikulicic, the answer is that --

Page 13378

 1             MR. MIKULICIC:  Every microphone --

 2             JUDGE ORIE:  -- if you turn your head in another direction than

 3     where the microphone is that ...

 4             MR. MIKULICIC:  Okay.  I hope that will be fine.  Is it now okay

 5     for the booth?

 6             THE INTERPRETER:  Much better.  Thank you very much, Your Honour

 7     and Mr. Mikulicic.

 8             MR. MIKULICIC:  Much better.  Okay.  I'm sorry for that technical

 9     problem that I made.

10        Q.   [Interpretation] Mr. Theunens, let me put the question this way:

11     We agree, therefore, that disciplinary courts were not part of the

12     regular judiciary of the Republic of Croatia and that they were set up in

13     keeping with the Law on the Interior within the ministry itself.  In and

14     of itself the ministry is a civilian body, is it not, the Ministry of the

15     Interior I mean.

16        A.   I believe there are two questions included in --

17        Q.   [In English] In one.

18        A.   -- in one.  The first part it's possible.  I mean if you say so,

19     I have no reason to doubt its veracity.  For the second part, yes, the

20     Ministry of Interior is a civilian body.

21        Q.   [Interpretation] Disciplinary courts were therefore envisaged as

22     administrative courts, and in Croatia there was judicial overview of the

23     disciplinary proceedings conducted by disciplinary courts within the

24     ministry.  Are you familiar with that topic?

25        A.   Your Honours, I am not familiar with that topic.  I -- as you can

Page 13379

 1     see from my report, I focused on the role of -- in the context of special

 2     police of the unit commanders as well as the chief of sector and the

 3     assistant Minister of Interior in the enforcement of discipline among

 4     their subordinates.

 5        Q.   In keeping with the Law on Courts we saw yesterday, in Croatia

 6     there was an administrative court of the Republic of Croatia then as it

 7     is now.  Do you know what its competences are?

 8        A.   Your Honours, I'm not familiar with the competencies of the

 9     administrative court of the Republic of Croatia.

10        Q.   If I told you that the jurisdiction of the administrative court

11     of the Republic of Croatia, which is a part of the judiciary in keeping

12     with the Law on Courts, then its role is to control the decisions made by

13     the disciplinary courts within the ministry.  Judicial review on part of

14     the administrative law of the Republic of Croatia could be asked for if

15     there was reason to appeal the decision of the second instance court

16     within the ministry.  Were you familiar with that?

17        A.   No, Your Honours, I'm not familiar with that.

18        Q.   Mr. Theunens, it is true, is it not, if we were to accept your

19     definition as expert witness and the jurisprudence of this Tribunal, that

20     as regards the military judiciary disciplinary courts and measures you do

21     not have any expert knowledge?

22        A.   I agree with that, Your Honours.  I have not discussed or

23     analysed the organisation -- excuse me.  The question says military

24     judiciary disciplinary courts.  Is that the question or --

25        Q.   [In English] It is.  Military and police disciplinary courts.

Page 13380

 1        A.   As I mentioned earlier, I have included what I believe to be the

 2     main regulations that apply to the military disciplinary courts as well

 3     as military disciplinary prosecution and after that also the military

 4     courts and military prosecutors.  I have not analysed these bodies as

 5     such, and I did not include information in my report on the disciplinary

 6     courts within the Ministry of Interior.

 7        Q.   [Interpretation] That is clear, Mr. Theunens, but my question,

 8     however, was whether you personally believe that you have the necessary

 9     expert knowledge to cover the topic of disciplinary courts and the

10     organisation of the military judiciary that we discussed yesterday and

11     today.

12        A.   Your Honours, I don't believe it's up to me to answer that

13     question.  I have explained already on the first day of my testimony what

14     my background is, I mean background on the educational and training

15     level, as well as my professional experience, and -- yeah, that concludes

16     my answer.

17        Q.   [In English] Yes.  [Interpretation] Just to remind you,

18     Mr. Theunens, on the 19th of November this year, during

19     examination-in-chief which is transcript page 12155, line 17, when

20     answering to a question put by Mr. Waespi you said that -- after being

21     asked by Mr. Waespi whether you have any knowledge on the civilian aspect

22     and whether you believe yourself to be an expert for civilian structures,

23     you said:  [In English] "It's a difficult question because obviously from

24     my work at ICTY I did not have that expertise."

25             [Interpretation] To jog your memory even further, Mr. Theunens,

Page 13381

 1     on the 1st of December this year, transcript page 12871, line 19, you

 2     said: [In English] "I am not a legal expert."

 3             [Interpretation] Keeping these statements of yours in mind, my

 4     question is this:  As regards the topics we have discussed, do you hold

 5     yourself out to be an expert or not?

 6        A.   Your Honours, I would just like to come back to what

 7     Mr. Mikulicic commented earlier.  It is correct that I gave the answer to

 8     Mr. Waespi in relation to the civilian authorities, but civilian

 9     authorities includes a lot.  It includes local administration.  It

10     includes political authorities.  It includes --

11        Q.   [In English] Ministry of the Interior?

12        A.   For example, it includes also judicial matters and so on and so

13     on.  I consider myself qualified to review documents that apply to

14     military discipline and military justice.  Why?  Because I have a

15     military background.  I'm a professional officer, and I have, as I

16     mentioned yesterday, seated in court-martial.

17             Now, I agree with you that I have not reviewed the civilian

18     disciplinary courts, i.e., disciplinary courts in the Ministry of

19     Interior, and I certainly do not consider myself an expert on

20     disciplinary courts be it military or civilian, because I would assume

21     that to be an expert in legal matters you would need to have a legal

22     degree, at least at the master's level and probably higher, but that's

23     just my personal view.

24        Q.   [Interpretation] Thank you for your answer.  We'll turn to a

25     different topic now, Mr. Theunens, namely the organisation and structure

Page 13382

 1     of the Ministry of Interior, with the emphasis on the organisation and

 2     structure of the special police.

 3     (redacted)

 4             Mr. Theunens, this is a document that frequently appeared on our

 5     screens and this is a diagram of the Ministry of the Interior with the

 6     emphasis on the Zadar-Knin police administration.  You have had occasion

 7     to see it in the courtroom and earlier on I suppose, is that true?

 8        A.   I saw it the first time I believe it was yesterday that you

 9     showed it or at least this week I saw it for the first time.  I don't

10     know what it is based or maybe there are any footnotes or something or

11     whether it's taken from an existing regulation.

12        Q.   Mr. Theunens, this is a document of the Prosecution, and it was

13     my assumption, since you reviewed OTP documents for the purposes of this

14     case, that you saw this document too.  Nevertheless, let us take a look.

15        A.   Could I please -- the documents I -- I reviewed are documents

16     that were held by the Prosecution; but when you use the name Prosecution

17     documents, to me that means documents produced by the Prosecution, i.e.,

18     compiled or drafted by members of the Prosecution and that is something I

19     did not -- I did not see this chart before you -- I believe it was you

20     showed it to me yesterday.

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 13383

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 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13             MR. MIKULICIC:  Thank you for reminding me, Your Honour.  Then it

14     will be under seal, this document, so I will ask for the private session,

15     please.

16             JUDGE ORIE:  Yes, not to be shown to the public, and if --

17     there's so many names on it that I have difficulties in reconstructing

18     exactly why, but perhaps if you put specific questions in relation to

19     persons because it's --

20             MR. MIKULICIC:  I wouldn't put specific questions, Your Honour.

21             JUDGE ORIE:  Then please proceed.

22             MR. MIKULICIC:  What I'm interested in is just the structure.

23             JUDGE ORIE:  The structure, yes.

24                           [Private session]

25   (redacted)

Page 13384

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             THE REGISTRAR:  We're in public.

 7             JUDGE ORIE:  Mr. Theunens, the structure as such is not

 8     protected.  However, names are.  So if there's ever any moment that you

 9     want to refer to names would you please ask us first to go into private

10     session.  Please proceed.

11             MR. MIKULICIC:  Thank you, Your Honour.

12        Q.   [Interpretation] Mr. Theunens, what I'm interested in at the

13     moment is the position within the schematics of the special police unit

14     of the Zadar-Knin police administration.  Can we conclude -- will you

15     agree with me that in -- according to this diagram the special police

16     unit was attached to the police administration headed by the chief of the

17     police administration?

18        A.   I don't think so, Your Honours.  First of all, I do not know who

19     put the chart together and what the lines mean.  At some locations there

20     are dotted or interrupted lines.  Other locations there are straight

21     lines.  The special police unit is, for one reason or the other, put on

22     the left side, whereas other police units or regular police units are put

23     underneath the Zadar-Knin police administration.  Therefore, that is for

24     what the chart is concerned.

25             Now, for what my report is concerned, on English page 106, part 1

Page 13385

 1     of the report, I put that the special police units that are located in

 2     the police administrations are "directly subordinated to the chief of

 3     special police sector."  And one of the sources I use for that is P588.

 4             JUDGE ORIE:  Mr. Misetic.  Mr. Mikulicic --

 5             MR. MISETIC:  Mr. President, can we go into private session for a

 6     minute, please?

 7             JUDGE ORIE:  We turn into private session.

 8                           [Private session]

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

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Page 13386

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 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

10             JUDGE ORIE:  One second.

11             THE REGISTRAR:  Your Honours, we're back in open session.

12             JUDGE ORIE:  Thank you, Madam Registrar.

13             MR. MIKULICIC: [Interpretation]

14        Q.   Mr. Theunens, in answer to my question you referred to a section

15     of your report, and you mentioned page 106, if I'm not mistaken.

16        A.   Indeed.  Part 1 of the report.

17        Q.   [In English] Yes.

18        A.   There is a title "See subordination of the special police."

19        Q.   Yes?

20        A.   And then "Including reported -- reporting," excuse me.  And then

21     under the title 2, between brackets, I have put "The special police units

22     in the police administrations," and I put, between brackets, behind it

23     "counties" or "zupanijas."  Then, "Directly subordinated to the chief of

24     special police sector."

25        Q.   Yes.  Yes, Mr. Theunens.  What is concerning me that this is page

Page 13387

 1     107 in my version of your report, but nevertheless, it's the very same

 2     portion.

 3             You referred to the 65 ter 1417; right?

 4        A.   Actually, yeah.  I've -- it -- it is document P588.

 5        Q.   Okay.

 6        A.   It is this brochure of the Ministry of Interior which was at the

 7     time the only document I had available to determine the -- the de jure

 8     situation, and of course in part 2 of the report, in the section on

 9     special police, which section 4, I address the operations conducted by

10     special police units and there I also discuss command and control and I

11     come to the same conclusions, i.e., that special police units are

12     subordinated to the Assistant Minister of Interior through the chief of

13     special police sector and that the chiefs of local -- I mean the county

14     police administrations play no role in that chain of command, control,

15     and reporting.

16        Q.   [Interpretation] Mr. Theunens, I disagree with you.  I disagree

17     with your conclusion.  My thesis and assertion is that the commanders of

18     the special police units within the police administration were

19     subordinated to the chief of that particular police administration.

20             Can we see a part of the document, P588, which is a leaflet of

21     the ministry of the interior which you refer to in one of your

22     conclusions.  Can you refer us to the part of the document that led you

23     to make such a conclusion?  P588.

24        A.   Yes.  We have the page with the ERN 0354-9987, which should

25     correspond with page 29 of the document.  And if I -- if I'm allowed,

Page 13388

 1     afterwards I can also clarify what I found in other documents, documents

 2     that became available to me later --

 3             MR. MIKULICIC:  Could we have page 29 on the screen, please.

 4             THE WITNESS:  Yeah.  I think there are page numbers at the bottom

 5     of the pages.  And in the top right corner you probably -- you should see

 6     the ERN, and it's --

 7             MR. MIKULICIC:

 8        Q.   ERN is 0354-9987; right?

 9        A.   Yes, that is correct.

10             MR. MIKULICIC:  So could we see this page, please.

11             THE WITNESS:  And then we scroll to the bottom, and we see the

12     text under the picture.

13             MR. MIKULICIC:

14        Q.   Yes?

15        A.   "The special police, according to the inner structure, consists

16     of the special police Sector with its departments, divisions, training

17     centre, aviation unit, anti-terrorist unit Lucko, and other units which

18     are located in police administrations, in accordance with the territorial

19     organisation of the Republic of Croatia."

20             This means that the special police units which are located in the

21     police administrations are -- for hundred per cent part of the special

22     police sector, and what is put in P588 is coherent with what we can find

23     in 65 ter 5031, as well as Article 27 of 65 ter 6104, the last document

24     being the February 1995 rule on the internal organisation and operations

25     of the Ministry of Interior.

Page 13389

 1        Q.   [Interpretation] Mr. Theunens, with all due respect, I cannot

 2     accept at all your conclusion about the subordination of the special

 3     police units within police administrations.  According to the chief of

 4     the special police sector -- well, in terms of discipline this is

 5     something that I can accept, and in terms of these being specialised --

 6     very specialised units which have a unique structure and which, in their

 7     professional work, do represent a certain organic part of the Ministry of

 8     Interior.  However, administratively speaking the special police units

 9     attached to police administrations are responsible to the chiefs of these

10     police administrations both in terms of discipline and in any other sense

11     including financing, assignment of missions and so on and so forth.  This

12     is something, however, that we will get back to during our cross, and I

13     will show you some documents that we can comment upon.

14             MR. MIKULICIC: [Interpretation] At this time I should like

15     document 65 ter document 5032 to be called up.

16             THE WITNESS:  Your Honours, I don't know whether the previous,

17     yeah, question by Mr. Mikulicic required me to answer or I just ...

18             MR. MIKULICIC:

19        Q.   [In English] No.  Mr. Theunens, I just show you my case --

20        A.   Mm-hmm.

21        Q.   -- and my submissions on the topic.

22        A.   Because I just would like to mention that the assignment of

23     missions, when we are talking about the kind of missions that special

24     police units conducted during Operation Storm and after Operation Storm,

25     independent of the specific documents I have included in part 3 of the

Page 13390

 1     report -- excuse me, in part 2 of the report which show that the missions

 2     are assigned by General Markac or the chief of special police sector,

 3     these are certainly not administrative matters but these are operational

 4     matters.

 5        Q.   [Interpretation] Mr. Theunens, we will, of course, be coming back

 6     to that topic.  Now that I've broached it, however, this is my question

 7     for you:  Do you discern a difference in the functioning of the police --

 8     special police structure in times of peace and in times of combat, or do

 9     you consider the structure to always be the same?

10        A.   Your Honours, I have not found any specific regulation that

11     determines or that allows to answer that question.  I do know that prior

12     to the start of Operation Storm, a special command structure, i.e., I

13     think it was called a joint -- one second.  I can find it.

14        Q.   [In English] Joint forces.

15        A.   Yeah, a staff of joint forces of special police was established

16     on the 22nd of July 19 --

17        Q.   We will come to that Mr. Theunens.  [Interpretation] My question

18     was do you discern a difference or do you distinguish the peacetime

19     structure of the police, special police, and the combat time structure?

20     Do you see a difference there?

21        A.   With the exception of the staff of the joint forces of special

22     police, which is P554, I have not seen a document indicating that there

23     is a distinction in the structure.  But of course if you have a document,

24     I would appreciate if you could show it to me.

25        Q.   [In English] Yes, I will show you, Mr. Theunens.  Just let me

Page 13391

 1     find this document which is on the screen in my tab.

 2             [Interpretation] Have you ever seen the rules on the internal

 3     organisation of the Ministry of the Interior, Mr. Theunens?

 4        A.   The ones that are on the screen now?

 5        Q.   [In English] Yes.

 6        A.   Yes.  Yes, indeed.  I have included them on -- in the addendum to

 7     my report.  I have a recollection, though, that the copy the OTP

 8     received, if this is 65 ter 5032, was incomplete, and I -- I remember

 9     requesting the team to provide -- I mean, the Prosecution team to provide

10     a more complete copy because it is my impression that this document is a

11     compilation of different documents, and that's why I have referred now, a

12     few minutes ago, to 65 ter 6104, which is not addressed in my report nor

13     in the addendum.

14        Q.   [Interpretation] Mr. Theunens, I consider this document a very

15     important one.  However, in view of the translation of the document, it

16     might be misleading.  This is only to caution the Trial Chamber.

17             Reviewing the document and observing some inept translations of

18     parts of it, I contacted Mr. Waespi and drew his attention to the ineptly

19     translated sections.  It was concluded that the translation would be sent

20     for revision to the translation service.  However, you are here today,

21     and we have the document before us.  I will be using it with certain

22     reservations that I will make.

23             This document, among other things, describes the posts within the

24     special police force, including the post of the commander of the special

25     police unit, in other words, the unit which is within the police

Page 13392

 1     administration.  The post has the designation M280, and we can find it at

 2     page 78 of the document, ERN number 06119723.

 3             Mr. Theunens, once we get the page on our screens I will draw

 4     your attention to the parts I consider ineptly translated.

 5        A.   I can just -- I can just mention this is included on page 8 of

 6     the addendum, English page 8, and it's my understanding that it's the --

 7     maybe it was a transcript issue.  It was the command of a special police

 8     unit, i.e., the units that are located or co-located with the county

 9     police administrations.

10        Q.   [In English] Right.  [Interpretation] That's correct,

11     Mr. Theunens, but we're still waiting for the relevant page to appear on

12     our screens.  You have it there with you or not?  Have you found it?

13             MR. MIKULICIC:  Yes.  Maybe there was some misunderstanding while

14     I'm referring to the page 78, but it was page 78 marked on the same

15     document as -- but the real ERN number should be brought up on the screen

16     and this is, I repeat, 06119723.

17             [Interpretation] Your Honours, let me acquaint you with the

18     problem I've -- I've come across.  This is a document describing the

19     posts within the special police force.  The document was translated in

20     the view of the Defence in a -- in an inadequate matter, and I've raised

21     as much in the two letters I sent to Mr. Waespi.

22             JUDGE ORIE:  280 appears on page 9 out of 24 in e-court.

23             MR. MIKULICIC:  Yes.

24             JUDGE ORIE:  Please proceed.

25             MR. MIKULICIC: [Interpretation] I drew the attention to the

Page 13393

 1     ineptly translated parts.  First of all, the Croatian word "rukovodi" was

 2     translated in this document and in some other documents we will come to

 3     later in four different ways, of which the most frequent English word

 4     "command" was used.  In some other documents, the word is translated as

 5     "rules", "runs," "directs," but nowhere in the entire document is there a

 6     Croatian word "zapovijedati" to be found.  This is, however, something we

 7     will probably be dealing with outside the courtroom.  I just wanted

 8     Their Honours to be aware of the translation issue which exists.

 9        Q.   I suppose, Mr. Theunens, that you read the English translation of

10     the document, and the English translation indicated the issue of

11     "zapovijed" and "kontrola," the control -- the command and control,

12     although nowhere in the Croatian original are the two terms used.  The

13     terms used are "rukovoditi" "organizirati," which can be translated as

14     "directs," "organise," but nowhere in the document is the command and

15     control expression used.

16             Let us go back to the post of the commander of the special police

17     unit where it is said that he directly -- he directs, not commands as it

18     was translated, and is responsible for the work of the special police.

19             JUDGE ORIE:  Mr. Mikulicic, could you please repeat the word

20     which does not appear clearly in the transcript, the word that was never

21     used in this document as you said?

22             MR. MIKULICIC:  The word is "zapovijeda."

23             JUDGE ORIE:  And that's --

24             MR. MIKULICIC:  That's command.

25             JUDGE ORIE:  And that's not the same as "zapovjednik."

Page 13394

 1             MR. MIKULICIC: [Interpretation] "Zapovjednik" is the noun, and

 2     "zapovjedati" is the verb.  In this case "zapovjednik," commander, is the

 3     title of the post.  When the activity of the commander of the special

 4     police is described, nowhere does the text use the term "zapovjedati,"

 5     "command."  The terms used are "rukovoditi," "voditi [phoen]" -- manage a

 6     department, organise.  Nowhere is the word "zapovjedati" used.

 7             MR. WAESPI:  Also the title of M280 actually starts with

 8     "zapovjednik."

 9             JUDGE ORIE:  Mr. Waespi, what do you think triggered my question?

10     Exactly that.  It's not only for 280 but some of the following.  But

11     therefore, you'd say, Mr. -- first of all, we need a translation which is

12     beyond dispute, that's one.  And second, do I understand you,

13     Mr. Mikulicic, that your position is that the use of a word which is

14     quite close to the word you used is just the title and you focus on the

15     description where that word does not appear?  Is that --

16             MR. MIKULICIC:  Yes, Your Honour.  And what I would like is a

17     precise translation.

18             JUDGE ORIE:  Yes.  Full support by the Chamber to get that

19     precise translation.

20             MR. MIKULICIC:  But above this there is another topic which is,

21     from my point of view, even more important.

22        Q.   [Interpretation] Mr. Theunens, in the description of the duties

23     carried out by the commander of the special police unit of the police

24     administration, a part of the text was omitted in the English translation

25     which in my view is very significant.  In the Croatian text that the

Page 13395

 1     relevant portion starts with the part where it is said that the commander

 2     is responsible for discipline.  [In English] I don't know whether you can

 3     find it in the English text.  It is a -- yes.  It is a -- on the screen

 4     if you come from bottom to the top it's one, two, three, four, five, six,

 5     seven, eighth line, where it starts "Responsible for discipline."  Can

 6     you find it?

 7        A.   Yes, I have it, because I have it also in my report.

 8        Q.   Okay.

 9        A.   I was just trying to look in the Croatian version.

10        Q.   Yes.  In -- [Interpretation] In the Croatian version it is

11     followed by this text:  That he's responsible for discipline and to

12     establish positive interrelationships within the unit, and now comes the

13     part of the text that was omitted in the English version.  In Croatian it

14     reads:  "To propose to the chief of the police administration measures to

15     suppress negative behaviour within the unit."  That part was omitted.

16             Would you agree with me, Mr. Theunens, that the description of

17     the job post of the special police commander as described here puts that

18     person in a position in which the police administration head is the

19     figure of authority that he needs to turn to rather than to turn to the

20     head of the special police sector at the ministry, pointing at the fact

21     that there was no direct line of communication with the sector of special

22     police in the ministry but, rather, that there was a relationship of

23     subordination towards the head of the police administration within which

24     the special police unit is functioning?

25        A.   I agree with you that this sentence should have been included,

Page 13396

 1     obviously, in the English translation.  Now, I'm -- it's difficult for me

 2     to establish what the role of the county police administration chief

 3     would be in that context, because as I have addressed on English page

 4     107, part 1 of the report, there is within the special police

 5     administration -- excuse me, the special police sector, I apologise, a

 6     special department, namely the department for internal control that is,

 7     among other things, tasked with the verification of work discipline and

 8     internal order in the special police units, and the references can be

 9     found in D529, D528, which means that there is an exchange of information

10     between the special police units and the internal control department,

11     that the internal control department can, for example, also conduct

12     inspections and --

13        Q.   [In English] I'm sorry to interrupt you, Mr. Theunens.  We will

14     come to the internal department in a few minutes, so let's focus on that

15     topic for a moment?

16        A.   But I'm trying to answer the question.  I mean, at first glance

17     I'm surprised by the reference to the chief of the local, i.e., county

18     police administration in connection to the maintaining or enforcement of

19     discipline in special police units.

20        Q.   Within this police administration.

21        A.   And its --

22        Q.   This is my comment.  I'm sorry.

23             JUDGE ORIE:  Mr. Mikulicic, it's not only your comment but it

24     doesn't --

25             MR. MIKULICIC:  But you are overlapping as well.

Page 13397

 1             JUDGE ORIE:  So we would not even know about your comment.  If

 2     you say let's leave it like that, fine.  If you'd like to have it on the

 3     record, please repeat it.

 4             MR. MIKULICIC:

 5        Q.   Yes, Mr. Theunens, please proceed.

 6        A.   Yes, and I would want to see, then, more documents in order to

 7     see whether, for example, we have --

 8        Q.   I'll show you one.

 9        A.   We have examples of a chief of special police unit communicating

10     with the chief of the county police administration on matters that are --

11     appear to be covered by this sentence in the job description.

12             MR. MIKULICIC:  Your Honour, could we mark this document for

13     identification while we are waiting for the translation issue to be

14     solved.

15             JUDGE ORIE:  Final translation.  Mr. Waespi.

16             MR. WAESPI:  Yes, that's no problem.  We submitted it to the CLSS

17     I think more than a week ago, and we consistently remind them, but they

18     are overloaded with high priority tasks, so we just have to be patient.

19             JUDGE ORIE:  Madam Registrar.

20             THE REGISTRAR:  Exhibit D1083, marked for identification,

21     Your Honours.

22             JUDGE ORIE:  D1083 keeps that status for the time being.  Please

23     proceed.

24             MR. MIKULICIC:  Madam Registrar, could we have on the screen

25     3D01-0713.

Page 13398

 1        Q.   [Interpretation] Mr. Theunens, what you are about to see on the

 2     screen is a document issued by the Ministry of the Interior,

 3     Mr. Ivan Vekic, by virtue of which the system of the special police in

 4     the Republic of Croatia was set up.  First of all, did you ever see this

 5     document before?

 6        A.   Could I please see the top of the English page again, just for

 7     the date and the reference.

 8        Q.   [In English] It's in your final addendum spreadsheet.  The number

 9     is 20080918.

10        A.   I must have seen it.  I was just checking where I have included

11     it in my report, but anyway, to save time we can continue.

12        Q.   So, could we proceed?  Okay.  [Interpretation] This document was

13     issued by the then Minister of the Interior, Mr. Ivan Vekic.  It is an

14     order.  Under item 1 it states that due to special security reasons

15     special police units are to be formed in each police administration.

16             In item 2 it states that the special units are to be formed using

17     the personnel and materiel and technical equipment of the former special

18     police units.

19             Which are those former special or separate police units?  What is

20     the minister referring to in item 2?

21        A.   I am familiar with the existence of a Lucko anti-terrorist unit

22     which, according to P605 mentioned on English page 105 of part 1 of the

23     report, was established in September 1990.  And I have also a reference

24     to special police units, or special police in general, dating from May

25     1991, and that comes from 65 ter 1182, which is the 27th of May, 1991,

Page 13399

 1     amendment to the Law on Internal Affairs.

 2        Q.   [In English] Thank you for your answer, Mr. Theunens, but this is

 3     not answer to my question.  We will come to the anti-terrorist unit Lucko

 4     afterwards.  Now, my question is:  Can you explain, in count 2 of this

 5     order, what is the reference to the portion of the text?

 6        A.   I don't understand the question, Your Honour -- Your Honours.

 7        Q.   I will repeat it then.  [Interpretation] By virtue of this order

 8     of the Minister of the Interior, special police units were set up at the

 9     level of each of the police administrations.  That is clear, is it not?

10        A.   Yes, that's what the order states.

11        Q.   Item 2:  The special units are to be formed using the personnel

12     and materiel and technical equipment of the former special police units.

13     To remind you, Mr. Theunens, the State of Croatia was in its inception at

14     the time, and it was supposed to establish all of its power structures

15     including the special police.  Prior to the existence of the Republic of

16     Croatia, there existed certain special police units which had existed in

17     the former Yugoslavia.  Would you agree with me that at this point in

18     time, through this decision by the minister, a continuation of the

19     functioning of those former special police units was to be ensured and

20     these were now the newly -- supposed to be the newly formed special

21     police units?  Would you accept that explanation?

22        A.   Yes, so that they would be based on at least part of the former

23     special police units, because I assume they were also special police

24     units existing in parts that by the time of this specific order were

25     under Serb control, for example.

Page 13400

 1        Q.   You mentioned the anti-terrorist unit Lucko.  However, it was

 2     specific in nature and position.  It was within the sector of special

 3     police with the Ministry of the Interior, and it had no relation to any

 4     particular police administration.  Is that correct?

 5        A.   Indeed it is -- it is directly located at the level of the

 6     special police sector.

 7        Q.   Furthermore, in items 3 and 4 of the order, it is specified how

 8     many employees were required for the special police units.

 9             In item 5, a mention is made of a reserve special unit that was

10     supposed to be formed equal in number to the active unit.

11             In item 6, mention is made of the reserve special units which had

12     to be formed from members of the reserve police forces in accordance with

13     the criteria established for active-duty members of special units.

14             Therefore, this refers to policemen, be it active-duty or reserve

15     policemen; is that correct?

16        A.   Yes, it does.

17        Q.   Now we get to item 7 which reads:  "Special units are to be

18     engaged solely pursuant to decisions issued by the chief of a police

19     administration and Deputy Minister of the Interior or the person thus

20     authorised by him."

21             I'd like to focus on the words "to be engaged solely pursuant to

22     the decision issued by the chief of a police administration."

23             Do you conclude, Mr. Theunens, based on that that the chief of a

24     police administration is the person approving the use of the special

25     police unit within the police administration headed by that person?

Page 13401

 1        A.   I would say that this is indeed correct at the time of -- of this

 2     order, and I believe it was from November 1991.  I can't see the date

 3     anymore.  Yes.  Yes.  At the time of this order, it is like it is

 4     described in this paragraph 8 -- or, excuse me, 7.

 5        Q.   If we go to item 8, which is the last item in the English, in the

 6     Croatian version it is page 2, it reads as follows:  "The chief of a

 7     police administration, before engaging a special unit in the area of his

 8     administration, must obtain clearance from deputy minister or the person

 9     authorised by the deputy minister."

10             Item 9 reads:  "The special unit cannot be used in the area of

11     another police administration without a decision made by the deputy

12     minister or a person authorised by him."

13        A.   Could we please scroll down in the English version a bit, or

14     maybe the next page?  I don't know.

15        Q.   [In English] Yes, it is the next page in English.  It is count 9

16     I'm referring to.

17             [Interpretation] Item 9 states as follows:  If a special unit of

18     a particular police administration is to be used outside the territory of

19     that administration, the deputy minister must issue a decision approving

20     that.  Would you agree with that?  That is what the order states?

21        A.   Indeed, and I just want to reiterate that the order dates from

22     the 15th of November, 1991, and the documents I have -- the other

23     documents I have reviewed indicate that there have been changes over

24     time.

25        Q.   What are the changes you came across that would invalidate

Page 13402

 1     effectively this order?  Which are those changes?  In the documentation

 2     you reviewed did you come across at least a single document which would

 3     state that the head of a police administration has no authority to use a

 4     special police unit within the territory of his own police

 5     administration?  Did you ever come across such a document?

 6        A.   I did not come across such a document explicitly stating that.

 7     However, I would like to mention that this order from the 15th of

 8     November makes no reference to a special police sector whereby I would

 9     expect if a special police sector already existed at that time that a

10     reference to that sector would be made.

11             Secondly, without going into details, the documents I have

12     reviewed that cover the operations of special police units prior, during,

13     and after Operation Storm --

14        Q.   [In English] Mr. Theunens, this is completely different topic.

15     This is the topic of the united forces of the special police while

16     employing into the combat activities.  We will come to it later on, but I

17     believe in the meantime we will have a break now, in a minute, if you

18     could, during the pause, try to find out document which stated that this

19     particular document that I showed you has been diminished, cancelled or

20     otherwise put out of the -- out of the order or out of the rule.

21             Could I have number for this document, Your Honour?

22             JUDGE ORIE:  Mr. Waespi.

23             MR. WAESPI:  No objections.  I would just like to -- to request

24     that the witness is allowed to finish at least the thought, the sentence

25     he was about to explain what he has been asked, what changes were made,

Page 13403

 1     and not specifically reference to documents.

 2             MR. MIKULICIC:  Your Honour, if I may react.  The witness is

 3     obviously trying to avoid my direct questions and go to something

 4     completely different topic, and that's why I intervened.

 5             JUDGE ORIE:  I think, first of all, you wanted this document to

 6     be --

 7             MR. MIKULICIC:  Yes.

 8             JUDGE ORIE:  -- admitted into evidence.

 9             Madam Registrar.

10             THE REGISTRAR:  Exhibit D1084, Your Honours.

11             JUDGE ORIE:  Exhibit D1084 is admitted into evidence.

12             Mr. Mikulicic, if a witness says that what he reads in a document

13     in -- dating from 1991 might not be valid at a later stage, then to say,

14     "Could you point at the document which specifically says that this 1991

15     document is not valid any more," et cetera, the witness is in a position

16     where he can explain the changes he says were made or the changing

17     situation, and although documentary evidence is very important in

18     relation to that, I think you went a bit too far in limiting him in

19     explaining what caused him to -- to take the view that the matter was not

20     as it was in 1991 and specifically as described in that document.

21             Mr. Theunens, if you'd like to further explain you have an

22     opportunity to do so, and then we'll have a break.

23             THE WITNESS:  Thank you, Your Honours.  I just wanted to explain

24     that the documents covering the operations of special police units prior

25     to, during, and after Operation Storm, and I mean by that the documents I

Page 13404

 1     had the opportunity to review, did not make reference to the chiefs of

 2     the county or other local police administrations.

 3             JUDGE ORIE:  Yes.  And I do understand that Mr. Mikulicic will

 4     take you to these documents at a later stage.

 5             MR. MIKULICIC: [Microphone not activated] Yes, I agree with that

 6     completely, Your Honour.

 7             JUDGE ORIE:  And will put further questions in relation to --

 8             MR. MIKULICIC: [Microphone not activated] Just one question if

 9     you allow me.

10             JUDGE ORIE:  Yes --

11             THE INTERPRETER:  Microphone for Mr. Mikulicic, please.

12             JUDGE ORIE:  -- Mr. Mikulicic.

13             MR. MIKULICIC:  I'm sorry.

14        Q.   [Interpretation] Mr. Theunens, I completely agree with you.

15     However, please focus on item 9 of the order which says if a special unit

16     of the police is to be used in the area of another police administration

17     then a decision on the part of the minister or the person authorised by

18     him is needed.

19             What you are referring to is the use of joint special police

20     forces.  We will get to that topic after the break.  When special police

21     units from individual police administrations are joined to form a newly

22     formed unit, then that unit is called a joint unit used with consent of

23     the minister.  That's what we're going to talk about after the break.

24             JUDGE ORIE:  Perhaps you could also then pay attention to the

25     exact relation between what we find under 8, that is that engagement

Page 13405

 1     apparently needs approval.  So that is at least an incomplete power to

 2     engage units even if it is within.  That's at least what I read in 8,

 3     Mr. Mikulicic.  I take it that you'll pay attention to that as well for a

 4     better understanding of the Chamber of this.

 5             MR. MIKULICIC:  Yes, I did indeed, Your Honour, and I must say

 6     that this has to be estimated within the connection of the count 7.

 7             JUDGE ORIE:  Yes.  We'll have a break, and we will resume at

 8     11.00.

 9                           --- Recess taken at 10.33 a.m.

10                           --- On resuming at 11.13 a.m.

11             JUDGE ORIE:  The Chamber once again apologises for the late

12     start.

13             Mr. Mikulicic.

14             MR. MIKULICIC:  Thank you, Your Honour.  Before I continue my

15     cross-examination, I would like to express my concern about the progress

16     that I am making in my cross-examination.  I believe I'm not progressing

17     as well as I was intending to, so it very much depends from the answers

18     that I get on my questions, although I am aware that maybe my questions

19     sometimes are not so precisely and clear as it should be.  So anyway, I

20     would ask for additional time, one session tomorrow, tomorrow morning.

21             JUDGE ORIE:  Well, the indication was one day, then it was one

22     day plus, then Mr. Kay finished earlier than expected, which makes it one

23     day.  If you would take tomorrow morning, one more session, it would be

24     close to two days.

25             MR. MIKULICIC:  Which is, comparing to the other Defences, just a

Page 13406

 1     small portion of the whole cross-examination.

 2             JUDGE ORIE:  There are two matters.  The first matter is whether

 3     it's out of proportion in relation to the other Defence teams.  I can

 4     already assure you that it certainly is not.

 5             The second issue is whether it's done with the efficiency we

 6     expect for the matters covered.  I'll discuss this with my colleagues.

 7     The first issue, of course, it's not a matter of saying, "I used less

 8     time" so therefore we are also looking at other matters.

 9             MR. MIKULICIC:  Yes.  I am aware that it's not pure mathematics,

10     but I try to do my best, but it seems that I'm not progressing as well as

11     I was wishing to.

12             JUDGE ORIE:  We'll consider the matter and also --

13             MR. MIKULICIC:  Thank you very much, Your Honour.

14             JUDGE ORIE:  -- keep an eye on what happens in this next hour.

15             MR. MIKULICIC:  Yes.  Now may I proceed?

16             JUDGE ORIE:  Yes.

17             MR. MIKULICIC:  Yes.  Thank you, Your Honour.

18             I would like to pull up on the screen the document P588, please,

19     Madam Registrar -- or Mr. Registrar.  Sorry.  It is page 37 of the

20     document.

21        Q.   [Interpretation] Mr. Theunens, this is the portion of the

22     document you refer to in your expertise.  This is P588, and as we can

23     see, it is a chart of the Zagreb police administration.  Are you familiar

24     with the chart?

25        A.   Indeed, Your Honours, I'm familiar with the chart.

Page 13407

 1        Q.   At the time -- or, rather, at this moment I'm only interested in

 2     the top part of it.  We can see that the head of the police

 3     administration is the person under whose competence the entire

 4     organisation of the police administration lies.  Below him there is his

 5     deputy, his Chef de Cabinet.  Then we have the analysis department, the

 6     department for analysis and criminal records, and the special police

 7     unit.

 8             Do you agree with me that it follows from the chart that the unit

 9     of the special police force is within the police administration

10     subordinated to the head or chief of the police administration?

11        A.   Your Honours, the chart has to be considered in -- in the context

12     of what is mentioned on page - I'm looking for the exact reference -

13     9987 in this same brochure where it is stated, as I read out earlier,

14     that indeed the special police units are located in the county police

15     administrations, but they are subordinated or they are part of the

16     special police sector.

17        Q.   Once again, Mr. Theunens, I do not accept your conclusion.

18             Can document 3D01-0674 be called up, please.

19             Mr. Theunens, before we look at the document, tell us if you

20     believe that an individual who is a member of an organisation and

21     proposes who the commander of that particular police administration

22     should be, whether that individual should have certain competencies or

23     powers in relation to the person who is being proposed.  We see that the

24     document was submitted by the -- on behalf of the chief of the police

25     administration to the Ministry of the Interior and that it is a proposal

Page 13408

 1     which says that Mr. Zoran Cvrk is supposed to be the commander of the

 2     special police force.  Do you agree with me that this document points to

 3     the power held by the chief of the police administration to propose who

 4     the commanders of the special police should be and that it points to a

 5     superior-subordinate relationship?

 6        A.   Your Honours, the document indeed states that the assistant chief

 7     of the police administration in Zagreb proposes someone for a position in

 8     the special police unit.  However, it -- in my view that doesn't have to

 9     imply any subordination relations.  It is just a proposal that is made.

10             I don't know the background either of Mr. Zoran -- I mean, the

11     person who is mentioned here.  It is stated that he is a member of the

12     police administration Zagreb currently working as a police official,

13     specialist training instructor of the special police unit.  Maybe it's a

14     translation issue but it's not entirely clear to me whether he's

15     effectively a member of the special --

16             JUDGE ORIE:  Mr. Theunens, the same happens again.  You are going

17     into details on matters which are not the core of the question.

18             THE WITNESS:  Okay.

19             JUDGE ORIE:  Could you, Mr. Mikulicic, or you, Mr. Theunens,

20     refresh my recollection as to Article 62 of the Law on Interior Affairs,

21     which --

22             MR. MIKULICIC:  Yes, indeed, Your Honour.

23             JUDGE ORIE:  -- apparently is the basis for this proposal.

24             MR. MIKULICIC:  It's a --

25             JUDGE ORIE:  If you have the exhibit number then --

Page 13409

 1             MR. MIKULICIC:  It's a D1077.

 2             JUDGE ORIE:  D1077.

 3             MR. MIKULICIC:  Right.

 4             JUDGE ORIE:  Then I'll find it.  Thank you.

 5             MR. MIKULICIC:  And the Article 62 stated that -- you will find

 6     yourself, Your Honour, but it is a duty of the Minister of Interior to

 7     rule upon the position of members of the Ministry of Interior.

 8             JUDGE ORIE:  So there's nothing in that --

 9             MR. MIKULICIC:  No.

10             JUDGE ORIE:  -- Article about --

11             MR. MIKULICIC:  No.

12             JUDGE ORIE:  -- who will propose or make proposals, et cetera.

13             MR. MIKULICIC:  No.  The Article 62 is simply stating what is the

14     authority of the Minister of the Interior.

15             JUDGE ORIE:  Thank you for that assistance.  Please proceed.

16             MR. MIKULICIC:  Could we mark this document as evidence, please.

17             MR. WAESPI:  No objection.

18             JUDGE ORIE:  Mr. Registrar.

19             THE REGISTRAR:  Your Honour, that will be D1085.  Thank you,

20     Your Honours.

21             JUDGE ORIE:  D1085 is admitted into evidence.

22             MR. MIKULICIC:  Thank you, Your Honour.  Could we have 3D01-0676.

23        Q.   [Interpretation] Mr. Theunens, this is a decision which on the

24     basis of the proposal we earlier looked at was issued by

25     Minister Jarnjak.  Did you have the opportunity to see this document or a

Page 13410

 1     similar one?

 2        A.   I don't think I've seen this document or a similar document

 3     before.

 4        Q.   Let us quickly go through the document.  This is a decision by

 5     the Minister of the Interior whereby Zoran Cvrk is assigned to the duties

 6     of a commander of the special unit of the police with the Zagreb police

 7     administration pursuant to a proposal that was designated as 1085.  You

 8     see that the decision was served on Mr. Cvrk himself.  It was sent to the

 9     Zagreb police administration with which he was assigned and the archives.

10     In other words, the decision was not sent to either the special police

11     unit or the sector of the special police but to the police

12     administration.  Do these facts not point to the situation where the

13     police administration is the one that is superior to the particular

14     special police unit?  Can you -- can we have your comments on that?

15        A.   I -- I wouldn't necessarily draw the conclusion Mr. Mikulicic is

16     proposing, because there must be a communication also from the minister

17     to the special police sector, because special police sector has to be

18     informed one way or the other of the appointment of a commander of a

19     special police unit based on the other material I have reviewed.

20        Q.   I agree with you.  However, what we were able to see from the two

21     documents is communication between the Minister of the Interior and the

22     assistant chief of the police administration in relation to the

23     appointment of a commander of the special police unit of that particular

24     police administration.  Nowhere in this communication do we see figuring

25     the sector of the special police or anybody else who would have been

Page 13411

 1     involved.  I don't think this is in dispute.

 2             [In English] [Previous translation continues] ... into the

 3     evidence, Your Honour?

 4             MR. WAESPI:  No objections.

 5             JUDGE ORIE:  Mr. Registrar.

 6             THE REGISTRAR:  Your Honour, that will be Exhibit number D1086.

 7             JUDGE ORIE:  D1086 is admitted into evidence.

 8             MR. MIKULICIC: [Interpretation]

 9        Q.   Mr. Theunens, in the course of reviewing material for the

10     preparation of your expertise, did you study the category of separate

11     police units?

12        A.   I'm not familiar with the category of separate police units, but

13     maybe it's a translation issue.

14        Q.   No.  The translation is quite right.  To remind you, I'll show

15     you document D465.

16             MR. MIKULICIC:  Could I please have D465.

17        Q.   [Interpretation] Mr. Theunens, did you come across this document

18     while preparing your expertise?

19        A.   I have seen a number of documents in relation to operation or

20     operative action Povratak but I do not seem to have a clear recollection

21     of this document.

22        Q.   Let us go through the document.  The document was issued by

23     Mr. Josko Moric, Assistant Minister of the Interior, and it is his

24     request addressed to the police administrations listed at the top of the

25     document to start putting together separate police units of the general

Page 13412

 1     duty police at the strength of 100 men.  It is further detailed that they

 2     have to have adequate equipment, adequate food provisions, adequate

 3     police uniforms, and so on and so forth.

 4             Do you know what the purpose was of putting together separate

 5     police units of general duty police?

 6        A.   No, Your Honours.  That is an aspect I have not analysed.  I have

 7     only reviewed the operations and related aspects that pertain to the

 8     special police, SJP.

 9             MR. MIKULICIC:  Yes.  Could we go into private session for a

10     moment, Your Honour?

11             JUDGE ORIE:  We turn into private session.

12                           [Private session]

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 13413

 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. MIKULICIC:  Okay.  I will repeat.

 6        Q.   [Interpretation] Does this explanation refresh your memory about

 7     the function and use of separate police units of the general duty police?

 8        A.   As I mentioned, I have not analysed the -- or reviewed the

 9     activities of the regular police, including the separate police units.

10     My focus was on the activities of the special police units.

11             MR. MIKULICIC:  Mr. Registrar, could we have 65 ter 5619.

12        Q.   [Interpretation] Mr. Theunens, allow me to direct your attention

13     to one portion of the expertise.  That's to say part 2, page 286, at

14     least in my copy, which refers to the events of the 8th of August or the

15     5th day of Storm, in item 3 where you say that a hundred-strong unit from

16     the Split-Dalmatia police administration carried out a special assignment

17     in Donji Lapac.  A special police unit from the Split-Dalmatia police

18     administration carried out a special assignment in Donji Lapac.  Did you

19     find that part of your report?

20        A.   Yes, and it should be on English page 282.

21        Q.   [In English] Yeah, it's -- on my example it's page 286.  I don't

22     know how it's happened, but -- anyway, you found that.

23        A.   Yes, I did.

24        Q.   [Interpretation] The document you refer to in footnote 1165 is

25     the document we have on our screens right now.  Mr. Theunens, I should

Page 13414

 1     like to draw your attention to the fact that we have again come up

 2     against an erroneous translation.  In the English translation of the text

 3     it says that it was a unit of the special police, although the Croatian

 4     original clearly indicates that the forces in question were separate

 5     police units.

 6             Does the fact that I have just drawn your attention to influence

 7     your conclusion in any way?

 8        A.   Indeed, the entry in my report should be corrected, and actually

 9     I should remove it because, as I said, I only addressed the special

10     police, and we are talking here about a regular police unit even though

11     it's in -- as you have identified, a separate police unit.

12             MR. MIKULICIC:  May I tender this document into the evidence,

13     Your Honour?

14             MR. WAESPI:  No objections.

15             JUDGE ORIE:  Mr. Registrar.

16             THE REGISTRAR:  Your Honours, that will be Exhibit number D1087.

17             JUDGE ORIE:  D1087 is admitted into evidence.

18             MR. MIKULICIC: [Interpretation]

19        Q.   We will now be discussing a different topic which you said you

20     reviewed, which is the topic of the joint forces of the special police.

21     It is true that you studied the topic, did you not, Mr. Theunens?

22        A.   Indeed, I did.

23        Q.   During the first session we saw a document which was given the

24     number 1084, which was the order by Minister Vekic from 1991, which in

25     actual fact constitutes an introduction to the establishment of the joint

Page 13415

 1     forces.

 2             Mr. Theunens, based on what you were able to observe while

 3     analysing the topic, what are your conclusions about the genesis, the

 4     inception, the structure, and the task with which the joint forces of the

 5     special police were set up?

 6        A.   Your Honours, this is addressed in part 1 of the report, section

 7     5, more specifically starting at English page 105.

 8             I must say that the documents I have reviewed do not use the term

 9     "joint forces" in connection to the special police units.  The

10     terminology "joint" or the term "joint" is based on my review of the

11     documents used, for example, prior, during, and after Operation Storm

12     when we talk, for example, as is defined in P554, about the staff of the

13     joint forces of the special police.

14        Q.   We'll get to that.  Are you familiar with the way in way these

15     joint forces were set up?

16        A.   I am familiar with the establishment of these joint forces prior

17     to and during and after Operation Storm.

18        Q.   Is it true that the -- that the joint forces were set up in such

19     a way that the special police units from police administrations would set

20     aside elements of their forces -- or, rather, a number of their members

21     and in this way a joint team would be set up called joint forces?  Do you

22     agree that this was the way in which the joint forces were set up?

23        A.   Such -- such examples can indeed be seen during and after

24     Operation Storm.  And even prior to it, sorry.

25             MR. MIKULICIC:  Could we have 3D01-0630.

Page 13416

 1        Q.   [Interpretation] The document we're about to see dates from 1991.

 2     It was issued by Assistant Minister Mr. Josko Moric.  It was addressed to

 3     the Ministry of Defence of the Republic of Croatia and the General Staff

 4     of -- or the Main Staff of the Croatian army.

 5             Have you seen this document before?

 6        A.   I don't believe I've seen it.  It doesn't -- it doesn't ring a

 7     bell.

 8        Q.   The document comes as a result of the reporting to the Ministry

 9     of Defence or the General Staff about how many policemen were engaged out

10     of the police administrations in the combat activities at that period of

11     time.  If we move to page 2 -- if we turn to page 2, we will see that

12     1.793 active-duty policemen were engaged in combat, 921 policemen from

13     the reserve force, and 286 policemen, members of the special police, the

14     sum total of which is 3.000.  It goes on to say that all these members of

15     police administrations were placed under the command of the Croatian

16     army.

17             The relations between the Croatian army commanders and the police

18     commanders had to be one of coordination and cooperation.  However, when

19     the police, upon a request of the commander of the Croatian army, is

20     engaged in defence combat activities, the police units were to be placed

21     under the command of the Croatian army, and all the requests for the use

22     of police in combat, that's the last paragraph, should go through the

23     General Staff and the Ministry of the Interior, which shall judge the

24     expedience and approve their engagement in combat and carry out

25     responsibility for it.

Page 13417

 1             This shows us in what way the police was used in combat.  In this

 2     particular instance it includes both the general duty police and the

 3     special police.

 4             Mr. Theunens, in your role as an expert did you ever come across

 5     an example where the civilian forces of the police were used in war

 6     activities and placed under the command of the General Staff of the army

 7     which is in charge of combat activities?  Did you ever come across such

 8     an example?

 9        A.   Just to clarify, when you ask civilian force of the police, that

10     includes special police?

11        Q.   [In English] Yes.

12        A.   Indeed.  I mean, the order prior to Operation Storm --

13        Q.   I'm sorry to interrupt you.  My question was whether you had find

14     such example in some other areas apart from the Croatian situation.

15        A.   I --

16        Q.   This is speaking comparatively.

17        A.   I know that the SFRY All People's Defence Law foresaw that if

18     police was to be used in combat operations they would be subordinated to

19     the JNA, but otherwise I'm not familiar with particular proven examples,

20     except for Croatia, of course.

21             MR. MIKULICIC:  May this document be tendered into the evidence,

22     Your Honour.

23             MR. WAESPI:  No objections.

24             JUDGE ORIE:  Mr. Registrar.

25             THE REGISTRAR:  Your Honour, that will be Exhibit number D1088.

Page 13418

 1     Thank you, Your Honours.

 2             JUDGE ORIE:  D1088 is admitted into evidence.

 3             MR. MIKULICIC:  May I have 3D01-0656.

 4        Q.   [Interpretation] Mr. Theunens, let me explain the methodology I'm

 5     using.  Through the documents that we will be looking at and following

 6     the timeline from 1991, I want us to come to the point where the joint --

 7     where the staff of the joint forces was set up in 1995 in order to try

 8     and show you what the genesis of the formation of the joint forces was

 9     and what their tasks were.  What we see in the document, though we don't

10     see its heading, is that it's a Ministry of the Interior document from

11     1992, which General Mladen Markac, the chief of the department of the

12     special police, uses to address the assistant minister Mr. Josko Moric

13     with a working draft of an action plan which would, for the part of the

14     special police, cover the mountainous area of Velebit.  The action under

15     the name of Poskok is proposed here.

16             Under items 1 through 8, the tasks of the units of the special

17     police in that particular action are detailed.  When we turn to page 2 we

18     will be able to see that the document was approved by the assistant

19     minister and deputy minister Mr. Tomljenovic was also in agreement with

20     that proposal.  Let us go back to page 1, although I should first ask

21     you, Mr. Theunens, have you ever seen the document and have you taken it

22     into consideration in your analysis?

23        A.   I have not seen this document.  I am familiar with operations of

24     special police units in the Velebit Mountains, and if I had had the

25     documents I would have included it, even if it was just for historical

Page 13419

 1     purposes.

 2        Q.   I'm sure you would.  [Interpretation] Let's have a look at the

 3     task of the units of the special police in the situation such as this one

 4     in the course of Operation Poskok in the area of Velebit.  Let's look at

 5     item 3 detailing the task of locating DTGs.  [In English] It has not been

 6     translated into the English.  Are you familiar with the acronym DTG?  In

 7     the Croatian this is a --

 8        A.   It's -- it's in the Croatian text, Diverzantsko-Teroristicka

 9     Grupa.

10        Q.   Yes.  Yes, that's it.  [Interpretation] Therefore, locating

11     sabotage terrorist groups, their capturing, disarmament, bringing in or

12     destroying.  Item 4, locating, identifying, marking, and in cooperation

13     with the engineering corps of the HV demounting and destroying mines and

14     explosives.

15             Could we go to the next page to see item 5, please.

16             The task specified there is work on locating all types of arms

17     and ammunition hidden, various hideouts and camps in the Velebit area.

18             Item 6, locating undetected human bodies, graves and

19     identification through an on-site investigation.

20             The items between 3 and 6 actually clearly define the tasks and

21     goals of the special police after Operation Storm in the so-called

22     cleanup operations.  Is that so?

23        A.   Could I just see 3 again, please?

24        Q.   [In English] Yes.

25        A.   I mean the bottom of the previous page.  Indeed, and I have --

Page 13420

 1     most of the documents I have seen that cover the operations conducted by

 2     special police units after Operation Storm address item 3.

 3        Q.   What about item 4, 5, and 6?

 4        A.   4, I have no specific recollection.  I don't claim that it was

 5     not the case, but I know that there is, for example, prior to a clearing

 6     operation the special police, i.e., General Markac, requests through the

 7     chief of the Main Staff updated maps, and I have seen -- and these are

 8     included in part 2 of the report, orders -- or at least one order by

 9     General Cervenko to General Gotovina, as well as General Markac, to

10     provide maps of the wider Knin area with assessed locations of

11     minefields.  And there are also -- I mean, subsequently to the announcing

12     of a clearing operation there are contacts on the, I would say, local

13     level between special police and the HV in order to exchange information

14     on, for example, the location of minefields or unexploded --

15        Q.   Yes.  Thank you for your answer.  That -- that is like it is.

16             MR. MIKULICIC:  May I tender this document into the evidence,

17     Your Honour?

18             MR. WAESPI:  No objections.

19             JUDGE ORIE:  Mr. Registrar.

20             THE REGISTRAR:  Your Honours, that will be Exhibit number D1089.

21             THE WITNESS:  And excuse me, I made an error in -- when I gave

22     the names.  This is page 52, line 11.  It was General Gotovina as well as

23     General Cermak.  I apologise for this error.

24             JUDGE ORIE:  Thank you, Mr. Theunens.  Yes.  D1089 is admitted

25     into evidence.

Page 13421

 1             MR. MIKULICIC:  May I have 3D01-0678.

 2        Q.   [Interpretation] Chronologically speaking, we are now in 1993.

 3     We'll see a document sent by General Markac, who was the head of the

 4     special police sector.  It was sent to the heads of police

 5     administrations and was also supposed to be delivered to the commanders

 6     of the special police units and to the commander of the anti-terrorist

 7     group Lucko, which was not a part of the police administration's system,

 8     and it was directly under the seat of the ministry and the sector of

 9     special police.  This was also sent to the commander of the helicopter

10     unit.

11             This instruction temporarily regulates the mutual relationships

12     between police members acting in the field as part of the joint forces in

13     the completion of their tasks.

14             Mr. Theunens, we can see here that this was an instruction to be

15     applied by the joint forces when engaged in combat or work or, so to say,

16     in an extraordinary situation or set of circumstances as compared to

17     peacetime.

18        A.   I would like to read the whole document.  It's a pity because

19     it's just electronically but just to check the various paragraphs but --

20        Q.   [In English] Yes.  We will come to each and every paragraph.  I'm

21     just asking you about the first one.

22        A.   Yeah, and I think the introduction is also important because the

23     introduction, in my view, suggests that there have been -- that there are

24     changes or at least proposals for changes in the internal structure of

25     the Ministry of Interior as well as special police field of activities,

Page 13422

 1     as it is translated.  So yes, indeed -- I mean, if I had the document I

 2     would have certainly included it in my report.

 3        Q.   [Interpretation] One can then see from the document that the use

 4     of joint forces of the special police is defined pursuant to the needs in

 5     the field, that is to say that it is an ad hoc special purpose unit that

 6     was supposed to carry out tasks as define in item 1 in the territory of

 7     one or several police administrations.

 8             If you recall, Mr. Theunens, we said in the previous document

 9     that if any forces of the special police of a single police

10     administration needs to be employed in the territory of another police

11     administration, there has to be an approval of the Minister of the

12     Interior or his deputy.  Do you recall that?

13        A.   I remember that that was established in the -- or mentioned in 91

14     document.  The previous proposal by General Markac, I may have missed the

15     reference to a particular special police unit, but it was -- I understood

16     the document as being a proposal for the use of special police as such

17     without specified -- specific unit being identified, but maybe I missed

18     it on the document.

19        Q.   In item 2 of the instruction mention is made of the operation

20     commander appointment, stating that he is the person who is supposed to

21     implement and bring forth orders concerning the individual sectors within

22     which the special police forces are to be active.

23             This is another document in the creation of the joint police

24     special police forces.  Could I have a document number for this exhibit?

25             JUDGE ORIE:  Mr. Waespi.

Page 13423

 1             MR. WAESPI:  No objections.

 2             JUDGE ORIE:  Mr. Registrar.

 3             THE REGISTRAR:  Your Honours, that will be Exhibit number D1090.

 4     Thank you, Your Honours.

 5             JUDGE ORIE:  D1090 is admitted into evidence.

 6             MR. MIKULICIC:  Mr. Registrar, may we have 3D01-0682.

 7        Q.   [Interpretation] This document was also issued by the special

 8     police sector commander Mr. Markac, sent to the Minister of the Interior

 9     Mr. Jarnjak, and Deputy Minister, Mr. Zeljko Tomljenovic.  In the

10     introductory part of the document, which I suppose you did not see, am I

11     correct, Mr. Theunens?

12        A.   Yes, you are correct.

13        Q.   So in the introductory part of the document, mention is made of

14     the commander of the Main Staff of the HV with the agreement of the

15     Minister of Interior of the Republic of Croatia, and pursuant to that

16     agreement this order is being issued by virtue of which the special

17     police department should organise an attack operation in cooperation with

18     the forces of the Croatian army.

19             In the second paragraph it is mentioned that the joint special

20     police forces should group along two major axes of attack in the area of

21     Mount Velebit, and we have specific locations mentioned in the subsequent

22     paragraph such as Vrsine, Mali Alan and Plantaze.

23             If we move to the second page of the document, we see that in

24     this operation under the name of Poskok 5, there is a joint forces staff

25     that is being formed and certain individuals appointed to that staff.

Page 13424

 1             Do you agree, Mr. Theunens, that we can see that this was another

 2     step in the genesis leading towards the creation of a joint special

 3     police forces staff?  This document was drafted by Minister of the

 4     Interior Ivan Jarnjak with the agreement of Deputy Minister

 5     Mr. Tomljenovic, and as we said, they were the people who were supposed

 6     to issue the approval on the use of the special forces of the police from

 7     individual administrations in order to carry out a joint operation.  Do

 8     you agree with me concerning that interpretation of mine, Mr. Theunens?

 9        A.   Yes.  I'm not sure whether it's -- it's -- I would use the word

10     genesis.  It's just an example or another example of, as you stated, the

11     establishment -- no, the preparation of -- of operations to be conducted

12     by special police units whereby an ad hoc command structure is being

13     established in order to command and control the specific operation or

14     action as it is here -- as it is called here.

15        Q.   [In English] Thank you for your answer.

16             MR. MIKULICIC:  May we have tendered this document into evidence,

17     Your Honour?

18             MR. WAESPI:  No objections.

19             JUDGE ORIE:  Mr. Registrar.

20             THE REGISTRAR:  Exhibit number D1091, Your Honours.

21             JUDGE ORIE:  D1091 is admitted into evidence.

22             MR. MIKULICIC:  Could you pull up on the screen D534,

23     Mr. Registrar.

24        Q.   [Interpretation] We were discussing the use of special police in

25     specific circumstances during ad hoc operations when joint forces are

Page 13425

 1     formed and when special police is used in actual combat.  We are now to

 2     turn to a part of the minutes drafted at Brioni on the 17th of July,

 3     1995.  It was a meeting of the president of the republic, Dr. Tudjman,

 4     with a delegation from the Minister of Defence and senior military

 5     officials.

 6             JUDGE ORIE:  Before we continue, the last document, that is the

 7     document you said was drafted by the Minister Jarnjak and

 8     Mr. Tomljenovic, the original shows a huge black part on the first page.

 9     Is there any explanation for that?

10             MR. MIKULICIC:  Yes, Your Honour.  I have no explanation for that

11     black part.  That's the copy that we --

12             JUDGE ORIE:  Yes, but apparently it's redacted in one way or

13     another.  I don't know where it stems from.  Is it an OTP document or is

14     it a document you obtained, because usually if there is no explanation we

15     do not easily accept.

16             MR. MIKULICIC:  Your Honour, I have been advised that this

17     document we obtained from the Ministry of Interior as it is.  So I have

18     no explanation for the black mark on the front page.

19             JUDGE ORIE:  Have you asked for an explanation?

20             MR. MIKULICIC:  Yes, I could do so, Your Honour.

21             JUDGE ORIE:  My question was whether you asked for it already.

22             MR. MIKULICIC:  No, I did not.  I was interested in the substance

23     of the document, not the -- maybe it's not only formality, I agree with

24     you, but --

25             JUDGE ORIE:  I do not know.

Page 13426

 1             MR. MIKULICIC:  Yeah.

 2             JUDGE ORIE:  It could be just a stamp or handwriting, whatever,

 3     but someone took the effort to make parts of the document invisible.

 4     Could you please report to the Chamber.

 5             MR. MIKULICIC:  I'll do so.  Thank you, Your Honour.

 6        Q.   [Interpretation] Mr. Theunens, as I said, this is the minutes of

 7     a meeting at Brioni on the 17th of July.  [In English] [Previous

 8     translation continues] ... to go to the page ERN number 01324982.  This

 9     is page 48 of the document in the printed version.  I don't know which is

10     the page in the e-court version.  Yes, that's the one.

11             [Interpretation] Mr. Theunens, did you have an opportunity to

12     study these minutes from the meeting in Brioni?

13        A.   Indeed, Your Honours.  I have reviewed these minutes, and I think

14     I have included them but I'm not sure.

15        Q.   [In English] Let it be like it is.  [Interpretation] Please allow

16     me to focus your attention to the part in the second paragraph beginning

17     with the words "General Markac."  Although it is not visible from the

18     minutes, but it was part of the address of Dr. Tudjman whereby he said

19     General Markac mentioned the problem of special forces of the interior.

20     I won't take you through the whole text for the sake of time, which is

21     limited.  He also says, "We should not establish a special parallel army

22     from the special forces of the Ministry of the Interior."

23             Are you following, Mr. Theunens?

24        A.   Yes.

25        Q.   [In English] Okay.  [Interpretation] So they can keep their form

Page 13427

 1     for now until the liberation, until the end of the war in Croatia and in

 2     Bosnia, and then we will make a final decision.  Up until then they

 3     should remain as they are and should be assigned tasks as part of the

 4     joint operations that they can execute, and I believe they can execute

 5     them well.  In certain regard, they can do that better than some other

 6     units.

 7             Mr. Theunens, when we interpret this part of the text can we

 8     agree that the president, being also the Supreme Commander of the armed

 9     forces, Dr. Franjo Tudjman, believed that the forces of the special

10     police were to be assigned a particular role for specific tasks rather

11     than creating a parallel armed force from those forces?

12        A.   I think we're talking about two very distinct things here.

13     President Tudjman on one -- at first indeed states, I mean, about the

14     special police in general terms that it should not be a separate army or

15     a separate armed force; and here, the second part is that they can be

16     given specific tasks within joint operations.  I assume he refers here to

17     operations together with the army, but for me those are two distinct

18     things, two distinct aspects.

19        Q.   I agree with you, Mr. Theunens.  We are now in a situation when

20     in June 1995 in Croatia there was contemplation about liberating that

21     part of the country which for four years had been under the authority of

22     the forces of the so-called ARSK -- RSK.  Preparations were made to that

23     end.  I would like to show you D956, a directive issued by

24     General Bobetko that you had an opportunity to see.

25             MR. MIKULICIC: [Interpretation] Could we please have that on the

Page 13428

 1     screen.  It is Exhibit D956.

 2        Q.   Mr. Theunens, as you have explained in your testimony, you have

 3     explained what the purpose of such a document is, the document being a

 4     directive.  This directive of the 26th of June, 1995, was signed by the

 5     chief of the Main Staff General Janko Bobetko.  In the heading an

 6     operation is mentioned under the code-name of Oluja, or Storm, 4.  Could

 7     you please remind us, Mr. Theunens, what was the purpose of such a

 8     document from the military strategic point of view?  What is the purpose

 9     of a directive in -- in only a few words, please.

10        A.   In a directive a senior level of command explains in general

11     terms a mission that has to be accomplished by the subordinates, and the

12     directive will then be used by the subordinate commands to issue more

13     specific orders as to the accomplishment of the general mission or the --

14     that has been established by the -- what I call the senior level of

15     command, corps or higher.

16        Q.   [In English] Thank you for your answer.  [Interpretation] If we

17     go to page 3 of the directive, item 3 of page 3.  We have it in Croatian.

18     Do we have it in English as well?  No.  The English text will probably

19     contain that on page 4.  [In English] Yes.  Okay.

20             [Interpretation] I would like to refer to item 3 where the tasks

21     of the military district of Split are specified.

22             It is stated therein that the military district Split is to

23     prepare and launch an attack operation in coordination with the forces of

24     the Ministry of the Interior.  They should seize Mali Alan and the

25     dominant features on Mount Velebit.

Page 13429

 1             On page 4 of the directive, in the same paragraph, in the

 2     Croatian, and I believe it is the right page in English, it is stated

 3     that through synchronised attempts of the artillery rocket forces and

 4     infantry the enemy should be broken up along the following axis and so on

 5     and so forth.  I am quoting this because there was some mention of MUP

 6     forces.

 7             If we go to item 14.  In the Croatian it is page 6.  We see that

 8     all HV units should take care to implement fully the provisions of

 9     international law when having contact with the civilian population in the

10     occupied territory.  In addition to the military police units various

11     forces of the Ministry of the Interior should be employed as well.  It is

12     also stated that the operation will have the code-name of Oluja 4.  We

13     said already that the document was sent to the military district Split,

14     as well as to the military district Gospic.

15             If we look at D535 next, we shall see that it is an order by

16     General Janko Bobetko sent to the commander of the special MUP forces,

17     Lieutenant General Mladen Markac.

18             Could we please go to page 2 of the document -- or, rather, let's

19     stay with this page.  Well, it doesn't matter.

20             We see the order here sent to General Mladen Markac.  On the next

21     page we'll see that it is also forwarded for information to the

22     commanders of the military districts of Gospic and Split.

23             Could you please explain, Mr. Theunens, why the military

24     districts of Gospic and Split were sent this directive from the

25     Main Staff and the commander of the special forces is being sent this

Page 13430

 1     order?  We see that it is far shorter than the directive itself.  Why did

 2     the special forces not receive the directive itself?  What is your

 3     explanation in this situation?

 4        A.   Again I cannot give a clear answer.  Normally, a commander or

 5     subordinate commander receives only the information from his superior he

 6     needs to have in order to carry out his mission.  We would have to

 7     compare both documents in order to see whether in the directive there's

 8     anything included that pertains to the special police which is not

 9     included in the order that General Markac has received.  If that would be

10     the case, then there is problem.  Otherwise, I do not really see anything

11     significant in this distinction.

12        Q.   I agree with that, Mr. Theunens.  However, my question was:  Why

13     was this done in this manner?  Do you have an explanation accounting for

14     that?  Is there some sort of military doctrine which can explain why in

15     relation to some commanders the Supreme Command sends them a directive,

16     whereas it sends orders to other commanders?

17        A.   As I said -- well, you have to look at the contents of the

18     document.  If the order includes all the information that is required for

19     the special police to carry out its -- its mission, in particular also

20     the coordination with the Gospic and the Split Military District, then I

21     don't see any issue in the fact that it's called an order and it's much

22     less complete or comprehensive than the initial directive.

23        Q.   There is one other fact that surprised me as a layman, and I'd

24     like to hear your comment.  Nowhere in this order is the code-name of the

25     operation Oluja mentioned, whereas in the directives addressed to the

Page 13431

 1     commanders of the military districts the code-name is mentioned.

 2             At page 1 where someone wrote that this was an order for Oluja to

 3     General Markac, I don't know who wrote it, but this is evidently not the

 4     original part of the document.  It was added when it was filed.  But you

 5     will see that the order itself does not mention Oluja anywhere, whereas

 6     the directive does.  What is your explanation?

 7        A.   Again I cannot give a clear-cut answer, but it may well be that

 8     the directive was called Oluja, and that is that this specific order for

 9     the special police is a component of the directive whereby, for reasons I

10     ignore, no particular name was given.

11             It's not a must to give a name to an operation.  It is often done

12     because it facilitates communication, but I haven't seen anything in the

13     doctrine that states, well, a directive or an order needs to have a name.

14     The most important is the number, because that can be used in order to

15     refer to the -- to the document, number and the date.

16        Q.   [In English] Thank you for your question -- answer, sorry.

17             MR. MIKULICIC:  Could we see, Mr. Registrar, the document D536.

18        Q.   [Interpretation] We were able to see that the chief of the

19     Main Staff sent directives to commanders of military districts.  We saw

20     that the commander of the special police, General Mladen Markac was given

21     an order.  Now we will see a document by Janko Bobetko, chief of the Main

22     Staff, dated the 29th of June, 1995, whereby -- or, rather, which reads

23     that the increased forces of the MUP special units engaged pursuant to

24     his order, and the numbers are listed there, and I tell you that they are

25     identical to the order we saw a moment ago, need to be pulled out to

Page 13432

 1     their base immediately.  This is in fact an order for retreat, is it not,

 2     Mr. Theunens?

 3        A.   Yes, and I mean the conclusive answer to be given by looking also

 4     at the specific order that was given to the special police units, because

 5     here you only have one sentence.

 6        Q.   At the bottom of the document we see that it was sent for

 7     information to the commanders of the Split and Gospic military districts.

 8             Mr. Theunens, studying the general situation at the time, and

 9     we're talking about the end of June 1995, having studied that, did you

10     realise that at that time negotiations were being engaged in with the

11     attempt at reaching a peaceful reintegration of the territory that was

12     temporarily occupied by the Serb forces and that the Croatian side was

13     negotiating under the framework of the Z-4 plan, as it was called?  Were

14     you aware of that?

15        A.   I'm not aware of specific negotiations in the framework of the

16     Z-4 plan at the end of June 1995, but if you refresh my memory that can

17     help.

18        Q.   We're now coming to the time period of August 1995.

19             MR. MIKULICIC: [Interpretation] Can we have D549 called up,

20     please.

21        Q.   At the time for combat purposes, intelligence assessments are

22     made about the strength of the enemy forces in the area of responsibility

23     of the joint forces of the special police in the Velebit area.  That's to

24     say the axes we mentioned earlier on, the Mali Alan, the tunnel, and the

25     road leaning from Gospic to Gracac.  This is the intelligence assessment

Page 13433

 1     submitted by the internal control department, which indicates that in the

 2     area of the joint forces of the special police in the Velebit area

 3     elements of the 13th Lika Corps were noticed, 9th Motorised Brigade,

 4     7th Knin Corps, and 4th Light Brigade were all found to be present there,

 5     that the command post of the brigade was in Gracac and that the forward

 6     command post was in the village of Radosevici.  The document goes on to

 7     speak about the intelligence assessments concerning the strength of the

 8     enemy forces.

 9             Have you seen this document, Mr. Theunens, while you were

10     drafting your report?

11        A.   Yes, I have, and it is referred to in footnote 1088 in the second

12     part of the report, page 272.

13        Q.   Once the intelligence assessment was made of the strength of the

14     enemy forces which, judging by the figures, was quite a significant

15     one -- let us move on to see document D537.

16             What we have here is the command of the new chief of the

17     Main Staff who replace General Bobetko, and that was General Cervenko.

18             The order is issued in accordance with the directive which, as we

19     were able to see, was issued by the former chief of the Main Staff,

20     General Bobetko.

21             The conclusion I draw from this, and you will correct me if I'm

22     wrong, Mr. Theunens, is that the directive issued by General Bobetko had

23     not been withdrawn, whereas the order that General Bobetko issued to

24     General Markac was withdrawn with an order that the forces that were

25     there should retreat to their base.  Is this an appropriate analysis on

Page 13434

 1     my part?

 2        A.   It is indeed possible whereby -- I should have also explained

 3     that the directive can -- is actually the basis for orders and a

 4     directive can be valid during several weeks or even months because it's

 5     like for -- it's the bigger plan.  And then smaller plans, to put it in

 6     layman's terms, like an order, are being derived from the directive.  And

 7     even if an earlier order which followed from the directive is withdrawn,

 8     there can be a follow-up order or a new order, as we see here with the

 9     General Cervenko order.

10        Q.   This particular order by General Cervenko requests that 300

11     special policemen from the area of Zadar, Vir, Knin should be redeployed

12     and given a different assignment, in fact.

13             I should like to call up document D539 now.

14             JUDGE ORIE:  Mr. Mikulicic, could you find a suitable moment

15     within the next five minutes for the break.

16             MR. MIKULICIC:  Yes, Your Honour.  I will do so.  Thank you.

17        Q.   [Interpretation] Mr. Theunens, what we see is the order by

18     assistant minister sent to the chief of the Brod-Posavina police

19     administration, and it is said that it should be sent to the commander of

20     the special police unit.  The order states that he has to provide 120 men

21     with adequate artillery pieces at the disposal of the joint forces of the

22     special police.

23             Can we agree that this document, in fact, indicates that on the

24     basis of General Markac's order joint forces are being set up by elements

25     of the units of police administrations?

Page 13435

 1        A.   My understanding, Your Honour, is that the order is intended for

 2     the special police unit commander, that he is to take 120 members of his

 3     unit, and it's not the chief of the Brod-Posavina police administration

 4     who is to take these 120 people --

 5        Q.   Mr. Theunens, we have completed that topic.  I don't intend to go

 6     back to it, and I suggest that you do not do that either.  So your

 7     position is that the chief of the police administration is only the

 8     mailbox, as you put it.

 9             My position is that the use of the special police units of a

10     given police administration is something that has to be approved by the

11     chief.  Our positions are therefore different.  Let us not go back to

12     that topic, and Their Honours will judge which of the arguments should be

13     accepted in the proceedings.

14             Another document similar to this one which pulls together

15     policemen from various police administrations can be found, for your

16     reference, in D540, D541, D542, and in document D542 the order was issued

17     by the chief of the special police, Mr. Sacic, who apparently had that

18     particular power.

19             Mr. Theunens, let us go back for a moment to a document we were

20     able to see already and then I will finish for this session.  This is

21     D528.  I'm referring specifically to page 03549943.

22             This is a list of numbers of members of the various police

23     administrations, that's to say the special police unit members.  And I

24     took the time to make my calculations, and I got to the sum of 2.311

25     active-duty special policemen.

Page 13436

 1             The next page shows the number of reserve members of the special

 2     police forces, and their number totals at 2.464.

 3             The sum total of the special policemen by police administrations

 4     is 4.775, the number including both active-duty and reserve members.

 5             Mr. Theunens, one other question before the break.  Do you know

 6     approximately the number of the special police units used during and

 7     after Operation Storm, and I mean number of members as part of the joint

 8     forces of the special police?

 9        A.   I would have to check, Your Honours.  It maybe included in part 2

10     of my report.

11             MR. MIKULICIC:  Maybe this would be a suitable time for the

12     pause.

13             JUDGE ORIE:  Mr. Mikulicic, you said one other question before

14     the break and that's what you did after doing some arithmetics.  I've got

15     no idea what these arithmetics you presented to us are about.  I see a

16     document on my screen with a lot of number, and then you say, "I have

17     done my own calculations."  Apparently in relation to this, but --

18             MR. MIKULICIC:  Your Honour, maybe I was too quick just in order

19     to save some time, but what I did is a -- I did arithmetic, as you said,

20     and I count all the members of the special police, which is column 1, 2,

21     3 in that -- in that table.

22             JUDGE ORIE:  It's the one starting with 137.

23             MR. MIKULICIC:  Yes.

24             JUDGE ORIE:  Ending with 287.

25             MR. MIKULICIC:  Yes.

Page 13437

 1             JUDGE ORIE:  And you say --

 2             MR. MIKULICIC:  This is a reserve staff, and the whole number of

 3     the column 3 would be 2.464.

 4             JUDGE ORIE:  Yes.

 5             MR. MIKULICIC:  Which means that is the number of the reserve

 6     staff of the special police in whole police administration on the

 7     territory of the Republic of Croatia, as well as the previous column

 8     makes a sum of 2.311, and all together that is 4.775 special policemen

 9     from active and reserve staff.

10             This is the number of the special police officers in the Republic

11     of Croatia at that time.

12             JUDGE ORIE:  I'm still lost.  You're adding 2.464 to, you said,

13     the previous column.  That's 3.010.

14             MR. MIKULICIC:  Eleven.  It's 2.311.  That's the previous.

15             THE WITNESS:  I think it's the previous page, Your Honours.

16             JUDGE ORIE:  Previous page.

17             MR. MIKULICIC:  Previous page, right.  Because one page is for

18     active staff, and the other page is for reserve staff.

19             JUDGE ORIE:  Well, if someone could make a printout for me so

20     that I do --

21             MR. MIKULICIC:  It's hard to see on the screen, right.  We could

22     do the copy, Your Honour, for the Chamber, if you please.

23             JUDGE ORIE:  Yes.  Is it an exhibit already?

24             MR. MIKULICIC:  It is.  It is Exhibit D528.

25             JUDGE ORIE:  Yes.  Could we have a hard copy, because the problem

Page 13438

 1     is that during the breaks I'm logged in here and I can't log in any more

 2     at my desk.

 3             We will have a break and we will resume at five minutes to 1.00.

 4                           --- Recess taken at 12.34 p.m.

 5                           --- On resuming at 1.06 p.m.

 6             JUDGE ORIE:  Mr. Mikulicic, the Chamber expects you tomorrow to

 7     finish within the first session.

 8             MR. MIKULICIC:  I will do my best, Your Honour, and I will finish

 9     until the end of the first session.  Thank you.

10             May we see the document D539, Mr. Registrar.

11             JUDGE ORIE:  I've forgotten one thing.  The five minutes I

12     promised yesterday will be given at the end, that is on from 20

13     minutes -- no, as a matter of fact, perhaps it would be wiser to reserve

14     seven or eight minutes so that if anything arises out of the submissions

15     that we have at least a couple of minutes extra.

16             MR. KEHOE:  Yes, Your Honour.

17             JUDGE ORIE:  Please proceed, Mr. Mikulicic.

18             MR. MIKULICIC:  Thank you, Your Honour.  So could we have

19     document D539, please.  Yes.

20        Q.   This is very same document that we've seen before, and it's to be

21     seen from the witness.

22             [Interpretation] Mr. Theunens, have you seen this document

23     before?

24        A.   Yes, Your Honours.  We discussed it before the break.

25        Q.   In the document, assistant minister Mr. Mladen Markac issued an

Page 13439

 1     order to the chief of the Brodsko-Posavska police administration to be

 2     forwarded to the commander of the special police unit and that 120

 3     special policemen be dispatched for the purposes of setting up joint

 4     forces.  So the number is 120.

 5             If we go back to the chart we looked at a moment ago, which is

 6     D528, then we see that the Brodsko-Posavska special police unit numbers

 7     145 active-duty members and 168 reserve members, the total being 313

 8     members of the special police unit.  Since according to this order the

 9     Brodsko-Posavska administration was duty-bound to deploy 120 men, 193

10     remained within the administration.  I don't know if you're following me.

11     In other words, not all the members of the special police force were

12     deployed to be part of the joint forces, rather, only a smaller number,

13     the greater part of them remained with the Brodsko-Posavska

14     administration.  Do you agree?

15        A.   Your Honours, I would just like to reiterate what I said before

16     the break, that it is an order which is from the Assistant Minister of

17     Interior or from the chief of special police sector to the chief of the

18     special police unit in the Brod-Posavina police administration.  And yes,

19     indeed, here we have an order for 120 people.  There may well have been

20     other orders that are intended to deploy the remaining members of the

21     special police unit.

22        Q.   [In English] Do you see such order, Mr. Theunens?

23        A.   I don't know from the top of my head, but what I have -- when I

24     reviewed the operations conducted by special police units during and

25     after Operation Storm, we do see, indeed, that components of units or

Page 13440

 1     certain members of units are active in one area whereas other components

 2     of that unit may be active in another area, together with various

 3     components of different special police units.  And -- and the -- I must

 4     say that the special police documents reviewed were very detailed as to

 5     who issued the orders and how many members of which unit were active

 6     where.

 7        Q.   [Interpretation] Mr. Theunens, I showed you the maths in order to

 8     demonstrate to you how a number of the special police units remained with

 9     their administrations discharging their regular duties, while others were

10     sent to join the joint forces.  If we recall the annual analysis of

11     Operation Oluja, some 2.200 members of the special police were reportedly

12     participating in it.

13             Now, the document D598 -- 528 table indicates that the total of

14     4.775 special police members took part in Operation Storm.

15             My thesis is that only a part of the special police forces took

16     part in Oluja, whereas others stayed behind with their respective

17     administration discharging their usual duties.  Do you agree with this

18     case of mine?

19        A.   I'm not sure whether D528, i.e., the table we see now, whether it

20     also allows to draw conclusions as to how many of these -- both active as

21     well as reserve members of the special police did participate in

22     Operation Storm.  Maybe there's a separate table which I haven't seen,

23     but this here just shows active-duty staff, and the other page shows

24     reserve staff where it's not clear to what extent, as I said, they

25     participated in Storm.

Page 13441

 1        Q.   [In English] Okay.  [Interpretation] I should like to call up

 2     document P554.

 3             Mr. Theunens, we're about to see a document which you must have

 4     looked at.  It's a document ordering the setting up and placing into

 5     operation a staff of the joint forces of the special police.

 6        A.   Indeed, Your Honours, and it can be found on English page 297,

 7     part 2 of the report.

 8        Q.   The document says that with a view to ensuring as efficient as

 9     possible a command over the joint forces a staff of the joint forces is

10     set up, the person in charge being Colonel -- Colonel-General

11     Mladen Markac.

12             Mr. Theunens, in a situation where Mr. Markac is appointed action

13     commander as part of Operation Storm and in connection with the staff of

14     the joint forces, the rank attached to him is colonel-general.  In other

15     documents, in the documents where joint forces are being put together,

16     like D539, Mr. Mladen Markac is signed only in his capacity as assistant

17     minister without the mention of his rank.  I'm saying this because we

18     need to distinguish between the function of Mr. Markac in peacetime and

19     his function in combat when the staff of joint forces is being set up.

20     Are you aware of this distinction, Mr. Theunens?

21        A.   I have -- I mean, it's not a direct answer to your question, but

22     I have seen a document, which is 65 ter 5832, which -- and it's referred

23     to in the addendum on page 42, which states that on the 24th of May,

24     1995, Mladen Markac is promoted to the rank of reserve colonel-general.

25     Now, I have not been able to establish the conditions or the

Page 13442

 1     circumstances of this promotion, and I have not been --

 2        Q.   [In English] I'm asking you on that promotion.

 3             JUDGE ORIE:  Mr. Theunens, the question apparently is whether

 4     General Markac, appearing in a document as we have in front of us, is

 5     referred to by his rank, whereas in many other documents he is referred

 6     to in his, if I could say, civilian capacity, civilian position.  That's

 7     what the question is about.  Whether you were aware of this difference

 8     and what this difference means to you, that's how I understood the

 9     question.

10             THE WITNESS:  I have noted the difference, Your Honour, but I

11     have not been able to draw any particular conclusion from that

12     difference.  In any event, in P554, both the rank as well as the civilian

13     title are being used.

14             MR. MIKULICIC: [Interpretation]

15        Q.   In the document before us, and could we please go to page 2 now,

16     we can see in the right-hand side corner we see that Mr. Ivan Jarnjak

17     signed, who was the Minister of the Interior.  In keeping with our

18     earlier discussion, then, when the staff was being formed and the joint

19     forces were being formed, the minister's approval is need as well.  These

20     cannot be established pursuant to an order of another person.  The

21     minister needs to approve that as well.

22             I would kindly ask you to look at the penultimate paragraph of

23     the document which states that the command of the joint forces of the

24     special police is duty-bound to act professionally, in keeping with the

25     Law on the Interior and the various conventions concerning the laws of

Page 13443

 1     war.

 2             We are getting closer to the date of the beginning of the

 3     operation.

 4             MR. MIKULICIC: [Interpretation] Could we please see the 65 ter

 5     document 1890.

 6        Q.   In order to prepare for an operation, certain amount of

 7     reconnaissance and intelligence activity is needed in order to establish

 8     what the position and number of enemy forces are.  Is that correct,

 9     Mr. Theunens?

10        A.   Yes, that is part.  I mean, intelligence -- we call it

11     intelligence preparation of the battlefield, IPB, is one of the

12     significant activities the operations staff will conduct when planning

13     military operations.

14        Q.   We said earlier that one of the departments of the special police

15     sector was the department in charge of internal control, and it is this

16     document that was authored by Mr. Soljic [phoen], who was the head of

17     that department.  He drafted this document on the 29th of July, 1995.

18             In it we see that there is a report on the activities in the area

19     of Mount Velebit, specifying the fortified positions of the enemy, at

20     least according to the intelligence assessment information.  We have

21     Tulovegrede referred to, then Mali Alan and so on and so forth.  Those

22     were the positions on Mount Velebit that were established as being the

23     fortified positions of the enemy.

24             At page 2 it says that three mixed anti-armour/infantry

25     minefields were located and there is an assessment of axes provided

Page 13444

 1     through the enemy defence lines, and these were being suggested by the

 2     internal control department as specified in the penultimate paragraph of

 3     the second page of the document.  One of the axes was Veliki Golic,

 4     Opaljenik, Ruje, then Dusica, Veliko Bilo, Bili Kuci, and so on and so

 5     forth.

 6             In your experience, would this be a customary way of preparing an

 7     operation, that is to say to have intelligence assessed to see what the

 8     strength of the enemy is and to propose certain axes to carry out an

 9     attack?

10        A.   Indeed.  It's what I mentioned earlier as IPB, intelligence

11     preparation of the battlefield.  And this document can be found in

12     footnote 1088 in part 2 of the report.

13             MR. MIKULICIC:  Could this document be marked as in evidence,

14     please.

15             MR. WAESPI:  No objections.

16             JUDGE ORIE:  Mr. Registrar.

17             THE REGISTRAR:  Your Honours, that will be Exhibit number D1092.

18     Thank you, Your Honours.

19             JUDGE ORIE:  D1092 is admitted into evidence.

20             MR. MIKULICIC:  Could I have, Mr. Registrar, 65 ter 2600.

21        Q.   [Interpretation] Internal control was in charge of collecting

22     intelligence information and reconnaissance.  On the 1st of August, they

23     wrote a new document sent to the Chief of Staff of the joint special

24     police forces specifying that the enemy forces were reinforced in the

25     area of Medak and that they received support in one mortar squad of

Page 13445

 1     120-millimetre in calibre and a number of staff and that in the area of

 2     Gracac, during the morning, general mobilisation was being carried out of

 3     able-bodied men.  It also states that in the area of Korenica, towards

 4     the south, there were 19 trucks on the move with personnel as well as

 5     certain buses.

 6             All this is indicative of a mobilisation and the grouping of

 7     forces of the RSK in the area of activity of the special police as

 8     envisaged.

 9             Did you see this document before, Mr. Theunens?

10        A.   I have seen the document.  It is also included in footnote 1088,

11     and, yes, it gives the -- provides the intelligence available to the

12     internal control department which it shares with the chief of the joint

13     special police staff.

14             MR. MIKULICIC:  May this document be marked as in evidence,

15     please.

16             MR. WAESPI:  No objections.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Your Honours, that will be Exhibit number D1093.

19     Thank you, Your Honours.

20             JUDGE ORIE:  D1093 is admitted into evidence.

21             MR. MIKULICIC:  Thank you, Your Honour.

22             Mr. Registrar could you please pull up D543.

23        Q.   [Interpretation] Mr. Theunens, we will see an order by

24     General Cervenko, chief of the Main Staff of the HV, dated the 29th of

25     July, sent to Colonel-General Mladen Markac.  You are familiar with this

Page 13446

 1     document, are you not, Mr. Theunens?

 2             The special MUP forces are hereby ordered from their operational

 3     base in the area of Mount Velebit to execute attacks along the axes

 4     Mali Golic, Sveti Rok, Gracac, Prezid.  The tasks are specified:  To cut

 5     off the Gospic-Gracac road, seize the Celavac radio relay facility, put

 6     the pass and the tunnel at Prezid under observation, and link up with the

 7     forces of the Split Military District 2nd Battalion and Guards Brigade.

 8             I was surprised to find in this document that there is no mention

 9     there of Operation Storm.  However, you have already provided an

10     explanation stating that it wasn't necessary, although in all of the

11     orders sent to the military districts Operation Storm is referred to.

12             In the document we can read that the operation was to take place

13     in two stages, in the duration of two days.  During the first stage we

14     need to seize a particular area.

15             Mr. Theunens, the area referred to is a mountainous area of the

16     Velebit range.  It is a very forbidding terrain which is barely

17     inhabited.  Can we -- barely populated.  Can we agree on that?

18        A.   Yes, indeed, and I'm familiar with the general aspects of the

19     terrain based on my professional activities prior to joining the ICTY,

20     and this document is mentioned or discussed on English page 269 of part 2

21     of the report.

22        Q.   Therefore, the operation was to comprise two stages.  The first

23     stage included a terrain on Velebit, and on page 2 we see the second

24     stage, that is to say introducing the majority of our forces along the

25     axes mentioned, and the seizing of the Celavac radio relay facility.

Page 13447

 1             Mr. Theunens, are you familiar with the function, with the role

 2     of the radio relay function -- facility of Celavac and its importance for

 3     the armed forces of the so-called RSK?

 4        A.   I'm not familiar with the specifics of the Celavac radio relay

 5     station or facility, but I can imagine why such a facility is needed and

 6     why also you would like to take control of it.

 7        Q.   Also, I suppose you can comment on why it was important to cut

 8     off the road between Gospic and Gracac, which in a way split the

 9     territory of the RSK into its northern and southern part.  Without any

10     doubt it was a very strategic road.

11        A.   Indeed, and that is why it is listed as -- identified as one of

12     the objectives to be reached by the special police forces.

13        Q.   On page 2 we further find that after the second stage goals have

14     been completed forces need to be ready to pursue further combat.

15     However, this further combat activity is not defined once the goals of

16     the second stage have been reached, at least not in this order.  Is that

17     correct?

18        A.   Yes.  The further objectives that have to be reached or fulfilled

19     are not identified.

20        Q.   Yes.  We can see, Mr. Theunens, that this order was sent for

21     information to the commanders of the Split and Gospic military districts

22     and that this order for combat and use of the special forces of the

23     Ministry of the Interior was approved by deputy minister, signed on the

24     left-hand side, Mr. Zeljko Tomljenovic.  Do we agree on that?

25        A.   I can't see the signature, but I have no reason to doubt about

Page 13448

 1     what you're saying, yeah.

 2        Q.   Yes.  The name was not typed, but take my word for it when I say

 3     that this is Mr. Tomljenovic's signature, who was the deputy minister to

 4     the Minister of the Interior.

 5             The use of the special forces of the MUP in combat, as we have

 6     seen in several documents by now, can only be done with the approval of

 7     the Ministry of the Interior.

 8        A.   Yes, that is also what the Law on Internal Affairs states.

 9             MR. MIKULICIC:  I would ask Mr. Registrar to pull up the document

10     65 ter 2162.

11        Q.   [Interpretation] This is a document by the chief of Main Staff,

12     General Cervenko, dated the 30th of July, 1995.  He sent it to the

13     commander of the Split Military District.  I want to refer to item 4 of

14     the order.  It is ordered that the forces active on the slopes of

15     Mount Velebit -- [In English] [Previous translation continues] ...

16     translation of count 4.  It should be on the second page.  Right.

17             [Interpretation] Item 4:  "Provide the forces engaged on the

18     slopes of Velebit a special artillery group that will provide them with

19     artillery support."

20             They were supposed to provide support to those forces and the MUP

21     forces.

22             JUDGE ORIE:  Yes.  When you quoted, "the MUP forces" went missing

23     in this, but they are back in play.  Please proceed.

24             MR. MIKULICIC:  Thank you, Your Honour.

25        Q.   [Interpretation] So first of all, the chief of Main Staff orders

Page 13449

 1     the Split Military District to provide artillery support to the forces on

 2     Velebit.  Evidently they had in mind the forces of the HV but also the

 3     MUP forces that were also active in the area of Velebit.

 4             Mr. Theunens, is my interpretation correct in terms of this order

 5     if I say that the MUP forces are being provided with artillery support

 6     but that artillery support was not being put under command of the MUP

 7     forces but, rather, they were supposed to provide support to both forces

 8     of the HV and of the MUP?  Is my interpretation, therefore, correct?

 9        A.   It is correct on the basis of this document, and the provision of

10     this support will then require coordination between the supported unit,

11     i.e., the special police units and the artillery unit that is providing

12     the support, that's an artillery unit of the Split Military District.

13        Q.   [In English] Yes, thank you for that answer.  May this be

14     admitted into the evidence, Your Honour?

15             MR. WAESPI:  No objections.

16             JUDGE ORIE:  Mr. Registrar.

17             THE REGISTRAR:  Exhibit D1094, Your Honours.

18             MR. MIKULICIC:  Thank you.

19             JUDGE ORIE:  D1094 is admitted into evidence.

20             MR. MIKULICIC:  May we pull up 65 ter 392, Mr. Registrar.

21        Q.   [Interpretation] This document was issued by the commander of the

22     OG Zadar, Colonel Mladen Fuzul.  It is a daily combat report for the 4th

23     of August, that is the first day of Operation Storm.

24             MR. MIKULICIC: [Interpretation] Let us see the central paragraph

25     of the document.  It is the fourth paragraph which reads -- [In English]

Page 13450

 1     In Croatian page 1, please.

 2        Q.   [Interpretation] It reads:  "The support in Gracac and in-depth

 3     for the special forces of MUP was provided by the 120 -- 130-millimetre

 4     guns and 122-millimetre howitzers in the first sector.  The fact that the

 5     SVLR was late in arrival, as well as its ammunition, weakened that

 6     support.  At around 1300 hours, the 130-millimetre gun was jammed and

 7     repaired around 1800 hours.  The 203-millimetre howitzer also broke down

 8     at around 4.42 p.m. and is still being repaired."

 9             Mr. Theunens, this document indicates that the artillery support

10     provided had weaknesses and shortcomings, given that their pieces jammed

11     and broke down.  In the course of your expertise, did you come across any

12     other documents which were indicative of certain problems with artillery

13     support?

14        A.   I have included this document in my report, just to clarify it

15     first, on page 273; however, I have also a section on use of artillery by

16     the special police, and I should actually be more complete and include

17     also in support of the special police, and there, for example, quoting

18     from P614 it -- P614 does not mention that there were problems with the

19     artillery.  It actually highlights the importance of the artillery, the

20     use of artillery as well as artillery support.

21        Q.   [In English] Yes, Mr. Theunens, but this one mention.  Could I

22     have a number for this document, please.

23             MR. WAESPI:  No objections.

24             JUDGE ORIE:  Mr. Registrar.

25             THE REGISTRAR:  D1095, Your Honours.

Page 13451

 1             JUDGE ORIE:  D1095 is admitted into evidence.

 2             THE WITNESS:  And just to clarify, the section on artillery in

 3     relation to special police is on English pages 305 --

 4             MR. MIKULICIC:  Okay.

 5             THE WITNESS:  -- to 307, part 2 of the report.

 6             MR. MIKULICIC:  Mr. Registrar, could we pull up 65 ter 447,

 7     please.

 8             JUDGE ORIE:  Mr. Mikulicic, I said that I would spend some seven

 9     to eight minutes on the last issue.

10             MR. MIKULICIC:  I will finish with this document, my today's

11     cross-examination, Your Honour.

12             JUDGE ORIE:  I beg your pardon?

13             MR. MIKULICIC:  I will finish the cross-examination with this

14     document for today, Your Honour.

15             JUDGE ORIE:  For today, yes.

16             MR. MIKULICIC:  Yes.

17        Q.   [Interpretation] Mr. Theunens, have you had occasion to see this

18     document?  This is the report of General Zvonimir Cervenko sent to the

19     Croatian president, Dr. Franjo Tudjman, about the attack Operation Oluja

20     and its course during the first day.

21             Do you agree that this document indicates that the Croatian

22     president, Dr. Franjo Tudjman, to whom this report was sent by the chief

23     of the Main Staff, was also the Supreme Commander and as such was

24     supposed to be informed on the course and development of Operation Storm?

25        A.   Indeed, and you have the report for 10.00 in the morning.  I have

Page 13452

 1     the report for 1800.

 2        Q.   [In English] Yes.  I picked up this document just for one

 3     example.

 4        A.   Okay.

 5             MR. MIKULICIC:  May this document be entered into the evidence?

 6             MR. WAESPI:  No objection.

 7             JUDGE ORIE:  Mr. Registrar.

 8             THE REGISTRAR:  Your Honours, that will be D1096.  Thank you,

 9     Your Honours.

10             JUDGE ORIE:  D1096 is admitted into evidence.

11             Mr. Mikulicic, thank you.

12             Mr. Theunens, we have to deal with a procedural matter totally

13     unrelated to your testimony.  I would like to again instruct you not to

14     speak with anyone about the testimony you've given already or still to be

15     given, and it suddenly slips into my mind that I might have forgotten to

16     remind you at the beginning today that you are still bound by the solemn

17     declaration you gave at the beginning of your testimony, but may I take

18     it that you understood and were fully aware that you were still bound by

19     that solemn declaration.

20             THE WITNESS:  Indeed, Your Honours.

21             JUDGE ORIE:  Thank you.  Then we'd like to see you back tomorrow

22     morning at 9.00.  I will be a bit more cautious in announcing the

23     courtroom.  This same courtroom, III, Mr. Theunens.  I hope that it was

24     the last time that I had to give the instructions to you, that we'll be

25     able to finish tomorrow.

Page 13453

 1             THE WITNESS:  Thank you, Your Honours.

 2             JUDGE ORIE:  Madam Usher, could you please escort Mr. Theunens

 3     out of the courtroom.

 4             Mr. Kehoe.

 5                           [The witness stands down]

 6             MR. KEHOE:  Yes, Your Honour, just briefly.  I know the time is

 7     somewhat limited.  With regard to our request to reply, the issue here,

 8     Judge, is the compliance with Rule 94, and what we got most recently with

 9     regard to Lieutenant Colonel Theunens is the real expert report that was

10     due to be filed back in February of 2008.  If we go through the

11     chronology, there was a Status Conference in July 6th of 2008 where a

12     request was made by -- excuse me, the 7th, I apologise, of July 2008

13     where a specific -- 2007, excuse me, where a request was made by

14     Mr. Misetic, way back in 2007, with regard to these specific expert

15     reports.  There was a discussion with Mr. Tieger where he said he needed

16     additional time in July of 2007 because he was discussing getting

17     documents, more artillery documents, et cetera.

18             As time -- and in that particular -- in that particular

19     Status Conference before Judge Moloto, Judge Moloto --

20             JUDGE ORIE:  Mr. Kehoe, if I may interrupt you.  Until now is

21     there anything you have not yet addressed in your earlier submissions on

22     the matter?

23             MR. KEHOE:  Yes, Your Honour.  It has to do with the chronology

24     as to what happened.

25             JUDGE ORIE:  Yes, but is there any new matter?  Of course we know

Page 13454

 1     that February is before July, et cetera.  I'm asking whether there's

 2     anything new which I've not yet read in your submissions.

 3             MR. KEHOE:  Yes, there is, Judge, and it is a presentation by the

 4     Office of the Prosecutor that an expert report was going to be filed

 5     when, in fact, the Prosecutor knew at that juncture that there was going

 6     to be another expert report filed.  So what we got and what was filed in

 7     February or January -- the end of January of 2008 wasn't in fact the

 8     expert report that the Office of the Prosecutor ever intended to travel

 9     on.  If you look at that expert report it -- of the 21 pages that were

10     there, less than one page has to do with this case, less than one page,

11     and we get an expert report in -- just several weeks ago that is the real

12     expert report from Lieutenant Konings that has to do with this.  Now,

13     what we're going to get from the Office of the Prosecutor is this

14     argument that, "We didn't have -- we couldn't have filed this expert

15     report under these circumstances because we didn't have the information."

16             Rule 94 requires that the accused be given notice as to what the

17     accused has to meet.  Now, any argument that they didn't know that they

18     had to be facing targeting issues, I simply address -- point,

19     Your Honour, to the Prosecution's pre-trial brief at paragraph 31 where

20     the issue of military targets is discussed.  Certainly prior to trial the

21     Prosecution knew full well that the targeting of military targets in Knin

22     and other towns was going to be a hotly contested issue, and to say at

23     this juncture in their filing that they had to await the unfolding of the

24     evidence during trial in order to file the real expert report by

25     Colonel Konings is a specious argument.  One only need to add to --

Page 13455

 1     further to that by looking at Mr. Tieger's opening statement where, at

 2     various passages in his opening statement on the 11th of March of 2008,

 3     he talks about the targeting of these various locales.  So that was an

 4     issue.

 5             So if we can take this back, there's requests going back well --

 6     there are requests going back well prior to the actual filing of the

 7     expert report requesting this.  We were told that this was going to be

 8     the expert report.  Quite clearly they had intended all along that that

 9     was not going to be the expert report.  How do we know that?  We know

10     that because the expert report was actually filed, was completely vacant

11     with regard information concerning this case, but we also know it from

12     e-mail traffic within the Office of the Prosecutor where shortly after

13     the opening statement, there's correspondence between the Map team and

14     Colonel Konings talking about filing a supplement.  And it's only -- we

15     can show that particular e-mail to you, if you so -- do we have it?  We

16     can put it on the e-mail -- excuse me, on Sanction and we have hard

17     copies if the Court so wants.

18             If we could scroll down a bit in that.  And this is dated the

19     19th of March, 2008.  As I noted before the 11th of March, 2008, was the

20     opening statement by the Prosecution.  And if we can go to the second

21     paragraph -- excuse me, second page, Mr. Morriss notes that:  "In the

22     meantime, we may wish to send you further material to review, after which

23     you may choose to amend your report."

24             So quite clearly, Mr. President, Your Honours, that very early on

25     in this entire process, the Prosecution gave us an expert report that

Page 13456

 1     they never intended to be the final expert report, and the problem here,

 2     Judge, is they neither told the Defence nor they told the Chamber that

 3     they intended all along to file this final expert report of Lieutenant

 4     Colonel Konings that was filed in November of 2008, which as I noted is

 5     the real expert report which deals with military targets and targeting

 6     information directly -- directly in line with the issues that have been

 7     presented in this case.

 8             If you look back at the first expert report, the first report

 9     filed in January 2008 was nothing more than a primer on artillery.

10     Nothing more of the 21 pages was -- 21 pages of what artillery is used

11     for without any direct relevance to this particular case.  The relevance

12     to this particular -- barring a half page.  The relevance to this

13     particular case only became paramount when he filed his most recent

14     report in -- well, I guess, within the last several weeks.

15             The bottom line, Judge, is if Rule 94 bis is to mean anything, if

16     in fact as 94 bis (A) says that the Prosecution is required to give a

17     full statement of any expert witness, that has got to be given to the

18     Defence prior to trial so, in all fairness, the accused can meet it.  The

19     problem here, Judge, is that the Prosecution never -- didn't do that and

20     never intended to do that under these circumstances.  They knew that

21     targeting was in information.  They knew that was going to be part of the

22     expert report and they didn't put anything into it until this November

23     2008 filing.

24             JUDGE ORIE:  Thank you, Mr. Kehoe.  Mr. Kuzmanovic.

25             MR. KUZMANOVIC:  Your Honour, I'd just like to add something

Page 13457

 1     briefly to that.  Of course we've also filed a motion related to

 2     Mr. Konings, but along those lines from our standpoint, it's an evolution

 3     of the report according to the proof that's come in through the case, and

 4     that's -- how are we supposed to meet that?  If the reports are

 5     constantly going to be coming throughout the case that are adjusted to

 6     the proof that's come into the case, how are we supposed to, then, go

 7     back and re-cross-examine other witnesses that have already testified in

 8     the case?  And what's happened specifically in this case is this expert

 9     has been provided a list of hypothetical questions, all of which are

10     questions that were raised and dealt with in the cross-examination of

11     witnesses throughout the trial that have dealt on artillery issues.  Now,

12     artillery affects our clients in some small fashion, but it affects our

13     client.  And with respect to the addendum to the report, all the addendum

14     to the report does is try to fit the opinions or the testimony --

15     potential testimony of Lieutenant Colonel Konings to the proof that's

16     already been -- to the evidence that's already been submitted in the case

17     and further adjustments of this report really shifts the burden of proof,

18     as far as we're concerned.  And that's all I wanted to add, Your Honour.

19     Thank you.

20             MR. KEHOE:  If I could just add one thing just as a -- I'm sorry.

21             JUDGE ORIE:  30 seconds.

22             MR. KEHOE:  Yes.  If I could just add one -- thank you,

23     Mr. President.  If I could just add one issue just as far as trying this

24     particular case.  Had we had the real expert report prior to

25     cross-examining all of the witnesses that have come before this Court, we

Page 13458

 1     would have focused that -- that questioning on the positions that

 2     Colonel Konings took in his expert report, but we never had that

 3     opportunity, and that opportunity was lost on many different occasions.

 4     All of the individuals that stood before this Chamber or sat in this

 5     courtroom and testified with regard to shelling, that opportunity is

 6     gone.

 7             Thank you, Mr. President.

 8             JUDGE ORIE:  Thank you, Mr. Kehoe.

 9             Mr. Russo, is there anything you would like to add, but very

10     briefly.

11             MR. RUSSO:  Actually, no, Mr. President.  Other than fresh

12     mischaracterisations of the Prosecution's position particularly with

13     respect to the e-mail just presented, I don't think's there's anything

14     that's been said which is not already contained in the motion.  So I'll

15     stand on our papers.

16             JUDGE ORIE:  Thank you for that.  The e-mail exchange which we

17     saw on our screen, the parties both want us to --

18             MR. KEHOE:  For the purposes of -- [Overlapping speakers] Yes,

19     Your Honour.  For the purposes of this hearing, we'll introduce that into

20     evidence for the consideration of the Chamber.

21             JUDGE ORIE:  Yes, Mr. Registrar.

22             THE REGISTRAR:  Your Honours, that will be Exhibit number D1097.

23     Thank you, Your Honours.

24             JUDGE ORIE:  D1097 is -- is admitted into evidence.  It's on a

25     procedural matter.

Page 13459

 1             MR. KEHOE:  Just on a procedural matter, Mr. President.  I

 2     understand from my colleague that that has not been uploaded into e-court

 3     at this juncture.  But I'm --

 4             JUDGE ORIE:  We'll find a practical solution for that.

 5             MR. KEHOE:  Yes.

 6             JUDGE ORIE:  Then this concludes the further submissions on this

 7     matter.  We adjourn for the day, and we'll resume tomorrow, the 11th of

 8     December, 9.00, Courtroom III.

 9                           --- Whereupon the hearing adjourned at 1.52 p.m.,

10                           to be reconvened on Thursday, the 11th day

11                           of December, 2008, at 9.00 a.m.