1 Thursday, 11 December 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.05 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, The
10 Prosecutor versus Ante Gotovina, et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Are you ready to continue, Mr. Mikulicic?
13 MR. MIKULICIC: I am, Your Honour.
14 Good morning to everybody. Good morning to Mr. Theunens.
15 JUDGE ORIE: Theunens, I would like it remind you hopefully for
16 the last time that you are still bound by the solemn declaration that you
17 gave at the beginning of your testimony.
18 THE WITNESS: Yes, Your Honours.
19 Mr. Mikulicic.
20 WITNESS: REYNAUD THEUNENS [Resumed]
21 Cross-examination by Mr. Mikulicic: [Continued]
22 Q. Good morning, Mr. Theunens.
23 A. Good morning.
24 Q. [Interpretation] Yesterday you will remember, Mr. Theunens, we
25 showed you the order by General Cervenko concerning the role of the
1 special MUP forces in Operation Storm, as the result of which or, rather,
2 the order itself envisages two stages upon the completion of which
3 another order would be issued and that the units of the special police
4 had to be prepared for that other operation that is to follow. I hope
5 you remember that.
6 Let us take a look at what happens after the special police units
7 have carried out their assignments several days later. Let's look at
8 D550, please.
9 Soon we will see document D550, which is an order for the
10 continuation of combat activities at D plus 1. This is an order by
11 General Cervenko. I suppose you had occasion to see just now on the
12 screen in front of you.
13 A. Yes. I believe I have also seen it before, but I'm not sure
14 whether it is included in my report.
15 Q. Whether it is or not, let us look at item 2 of the order, which
16 states that combat activities are to be continued at an intensified pace.
17 What they are trying to indicate is that they want to ensure accelerated
18 advancement of the units. Would you agree with me on that? Not only of
19 those units but of the other forces involved in Operation Storm as well.
20 The dynamics, the dynamic pace, is something that is being insisted upon.
21 Is that right?
22 A. I wouldn't necessarily draw the same conclusion. General
23 Cervenko, at least in paragraph 2, simply orders to continue the combat
24 activities and intensify them. But I think if we go further to the order
25 and maybe if we see that deadlines are imposed to fulfil or to reach
1 certain objectives, that would give us a better indication as to whether
2 or not General Cervenko wants to have combat activities or the tempo
4 Q. Very well. A question on that score which falls within your
5 expertise. Can you explain to us in a couple of sentences why in this
6 type of combat when advancement is made toward the enemy and the first
7 line of defence is being broken, why is it important to maintain the pace
8 -- the achieved pace of advancement?
9 A. The main reason is what you want to keep the momentum, i.e., the
10 attacking force has obtained the initiative because they managed to
11 breach the first line of the enemy. And now before the enemy can prepare
12 some kind of a counteraction or counterattack, it is important that the
13 attacking forces maintain the momentum and prevent the enemy from
14 reorganizing and preparing any kind of counter-operation.
15 MR. MIKULICIC: Mr. Registrar, could we please have D552 on the
17 Q. [Interpretation] What we're about to see, Mr. Theunens, is the
18 order for the continuation of combat activities on day D plus 2 also
19 issued by the chief of the General Staff, General Cervenko, which
20 envisages operations to take place on D plus 2.
21 In item 1, we can see that the order concerns the Split Military
22 District. It says that the general areas of Otric and Srb need to be
23 seized and the state border -- one needs to come out on the state border.
24 Let us take a look at part 2 of your report, specifically page
25 285. At least that's page in my copy. We realized yesterday we had
1 different enumerations. The date I mentioned is the 7th of August and
2 I'm referring to item 4.
3 Have you found that portion where you say that the special police
4 forces captured Mazin and Srb? From the order we have on our screens, it
5 follows that it was not the task of the special police units to capture
6 Srb; rather, it was the task given to the Split Military District. You
7 base your conclusion on document 65 ter 00317.
8 Can we therefore have the document called up, please.
9 A. Yes. And it's on English page 281, I think the copy I'm using
10 and the others are using.
11 Q. I'm using an English text, and it is page 285, so it is a
12 different version. But any way you found it in your material?
13 A. Mm-hm.
14 Q. [Interpretation] You're referring in footnote 1153 to document 65
15 ter 00317. And you say that this is the war path of the Ministry of
16 Interior of the Sibenik special police unit?
17 A. Indeed. And more specifically, I found it on English page 20.
18 Q. Yes.
19 MR. MIKULICIC: Could we have English page 20, please, on the
20 screen, of this document.
21 Q. So what we see -- [Interpretation] What we can see on our screens
22 is the translation of a newspaper article wherein it -- wherein it is
23 stated that the units of the special police liberated the -- Srb.
24 Mr. Theunens, I'm somewhat surprised by the fact that in your
25 expert report you should be referring to daily newspaper articles as
1 credible sources. Isn't that a bit odd in view of the documentation you
2 had at your disposal to review?
3 A. Not necessarily. I mean, open sources can be an important source
4 of information. I think it is not just a newspaper article. This is a
5 newspaper article that is included in an official document published by
6 the Sibenik special police unit called war path of MUP special police
7 unit Sibenik, so my understanding was that if the Sibenik special police
8 unit includes this in its official history of its activities, then there
9 must be a good reason for that. And from the methodology point of view
10 that would increase, in my view, the reliability of this particular
11 source for -- in this context, i.e., the reliability of the press source.
12 Q. However, Mr. Theunens, newspapers as the source at the base of
13 your expertise regardless of what you say, to me, does not seem reliable
14 or credible.
15 MR. MIKULICIC: [Interpretation] Let's look at D554, shall we.
16 JUDGE ORIE: Mr. Mikulicic, looking at the last sentence it was
17 comment that you do not consider newspapers to be reliable, which is fine
18 with me, but to say, Regardless what you say, I find newspapers
19 unreliable. Where the witness explained why in these specific
20 circumstances, he considered this not just to be newspaper article is a
21 kind of comment and not very fair to the witness --
22 MR. MIKULICIC: My position to the witness, Your Honour.
23 JUDGE ORIE: Well, if you say, Regardless what you say. And give
24 your own opinion is not really what assists the Chamber.
25 Please proceed.
1 MR. MIKULICIC: Thank you, Your Honour.
2 Q. [Interpretation] We can see D554, which is the summary report on
3 the execution of Operation Oluja, Storm, which is the -- which is an
4 official document.
5 Have you seen this document before? This is the official
6 document from the Ministry of Defence of the Republic of Croatia
7 by the chief of the Main Staff, General Zvonimir Cervenko.
8 If we turn to page 3 of the document for the date of the 8th of
9 August, we shall see that it is stated therein that the forces of the
10 Split Military District liberated Srb. In other words, by no means did
11 the specialists from the Ministry of Interior liberate Srb. Do you
12 agree, Mr. Theunens, that this official document from the Ministry of
13 Defence of the Republic of Croatia
14 from the newspaper articles you referred to?
15 A. Just for your information, I have included this document, D554,
16 for example, on English page 131, and, indeed, there is an inconsistency
17 in relation as to who captured or took control over Srb. I must say I
18 had not paid attention to that before and, indeed, if there would be a
19 specific analysis about who took Srb when, the different source would say
20 have to be compared and then we would try to find other sources in order
21 to determine what exactly happened and who took Srb.
22 Q. Thank you for your answer.
23 MR. MIKULICIC: [Interpretation] Can we now have the document we
24 just had on our screens - that's D552 - the order by General Cervenko to
25 continue combat activities on D plus 2. And can we turn to page 2 of the
1 document. I'm interested in item 3. [In English] [Previous translation
2 continues] ... that would be the third page in English version, please.
3 Yes, yes, thank you thank you it's okay. Count 3.
4 Q. [Interpretation] This particular item of the order of
5 General Cervenko gives assignments to the members of the MUP, and it
6 says: "Upon capturing the Bruvno and Malovan saddles continue the attack
7 towards Donji Lapac and capture this area in -- with the participation of
8 the forces of the Gospic Military District on the left flank and the
9 forces of the Split Military District on the right flank.
10 Mr. Theunens, it is without any doubt that the chief of the Main
11 Staff of the HV in command of Operation Storm issued assignments to
12 members of the special police. I'm highlighting this particular fact
13 against the cases put forward in your report at page 281 of my copy -
14 that's item 9, under the date of the 5th of August - day two, in other
15 words, 1995.
16 I'll quote your report where you say:
17 "[In English] [Previous translation continues] ... first two
18 days of operation the SJP command decides to initiate the third stage."
19 [Interpretation] In view of your experience and capacity of a
20 military expert, is it possible to conclude that in the continuation of
21 combat activities, a decision was taken in the command of the special
22 police and not at the Main Staff which was in charge of the operation?
23 A. Your Honours, I would like to reply. My reply would consist of
24 two components. The first component can be found on English page 295 in
25 my version, under the title: 4, command and control and communications
1 procedure over the special police during Operation Oluja --
2 Q. I'm sorry to interrupt, Mr. Theunens, but my question was very
4 A. Yes, but I'm trying to answer your question.
5 Q. Okay. Please do.
6 A. And there I state command and control, Mladen Markac, command of
7 the SUP
8 Main Staff and keeps him informed of the operations conducted by the SUP.
9 So that is one important element. I will read it out again for the
11 Mladen Markac commander of the SUP doing operation storm is
12 subordinated to the chief of the HV Main Staff.
13 Now the excerpt you took from my report is based on Exhibit P614
14 where I copied the text of this document, whereby P614 is an official
15 document of the special police sector. It's the analysis of progress of
16 Operation Storm. So when you read out this section from my report,
17 obviously it has to be considered in the overall context where I clearly
18 state that the special police, i.e., Colonel General Mladen Markac and
19 subordinated to him the chief of the special police sector received their
20 orders from the chief of the Main Staff, General Zvonimir Cervenko.
21 Q. Thank you for area answer, Mr. Theunens, but this was not answer
22 to my question. My question was: Have you ever experienced in your
23 expertise that the lawyer level of command has been reached their own
24 decision to continue with a combat operation, apart from the higher
1 A. Initiative is an important aspect of --
2 Q. It is not initiative; it's a decision. Because you said, Command
4 A. But I say --
5 JUDGE ORIE: Mr. Mikulicic, initiative is not decision, but
6 decisions sometimes result in decisions, so, therefore, if the witness --
7 let's give him a fair chance to answer the question. And as far as the
8 question is concerned, apparently you are not seeking a comment on the
9 situation in Croatia
10 you would clearly put that to the witness, there's a better chance that
11 he'll understand your question.
12 Mr. Theunens, the question is not about the situation in
13 August 1995 in Croatia
14 THE WITNESS: Thank you, Your Honours.
15 Without going into too great details, initiative is one of
16 important or key qualities for military leaders at all levels. Of
17 course, initiative has to fit, if I can express myself in that way, in
18 the overall concept, i.e., the orders of the superior, and again coming
19 back to what you quoted in my report from my report, it is stated,
20 indeed, that the SJP command decides to initiative the third stage of the
21 operation with the approval of the HV Main Staff. And this is actually
22 what initiative is about and how, then, initiative can result in a
23 decision, obviously with the approval of the superior command.
24 MR. MIKULICIC:
25 Q. Thank you for that answer, Mr. Theunens, but my position is just
1 opposite, vice versa. Okay, but we move on.
2 MR. MIKULICIC: Mr. Registrar, could I have D322.
3 Q. [Interpretation] Mr. Theunens, we will be looking at order -- at
4 an order for D plus 3, also issued by the chief of the Main Staff,
5 General Zvonimir Cervenko, for the continuation of combat activities,
6 which, again, calls for an energetic advancement. It asks for the troops
7 to come out on the borders, and it also says that the Split and Gospic
8 Military District Commanders have to coordinate with the commander of the
9 special police units of the MUP, the times of the attacks to take place
10 along the designated axes. Can we have your comment on this, or is the
11 order, in fact, a logical continuation of the combat activities carried
12 out hither to?
13 A. In my view, it is it a logical continuation of the earlier orders
14 and the earlier combat operations. General Cervenko orders to reach the
15 border as soon as possible. And, of course, as units of the special
16 police are operating on the -- on the boundary between the zone of
17 responsibility of the Gospic Military District in the north and the Split
18 Military District in the south, it is -- it is essential to ensure
19 coordination between these three groups of forces.
20 Q. Thank you for your answer.
21 I would like to direct your attention to part two of your report;
22 in other words, for the 4th of August 1995. In my copy that is page 278,
23 and the paragraph is number 4. Please alert me when you find the
24 paragraph. It starts with the word "Markac."
25 Mr. Theunens, I would like you to look at the portion of the
1 paragraph where you state that at 1132 hours Markac reported on the
2 artillery fire against his forces from Medak. In the brackets you state
3 that this was friendly fire.
4 Can you tell us what is your source for the statement that this
5 was friendly fire?
6 A. Could we see the document, please.
7 Q. I would refer to the document P614, please, and page 8.
8 A. Because I'm quoting from D555. The war diary of the HV
9 Main Staff.
10 Q. We will come to it, Mr. Theunens.
11 So it is page 8 of the P614, and I would like to draw your
12 attention to 1215.
13 MR. MIKULICIC: For the English page that will be the previous
14 page, right, and 1215 is a time that I'm interested in. Okay.
15 Q. [Interpretation] Mr. Theunens, look at the relevant portion of
16 the document, which analyses the course of Operation Storm and which was
17 sent to the Main Staff of the Croatian army from the special police.
18 Let us look at the entry for the relevant time, where it says
19 that the enemy opened artillery fire from Medak upon Marasovac. My
20 conclusion, therefore, is that this was not friendly fire; it was enemy
21 fire. [In English] You cited in your report, and this is D555.
22 A. Yes, I mean, you're right, and it also states at 2000 on the same
23 page that Medak is liberated by SJP by.
24 Q. The second day 5th of August, 2000?
25 A. And that is footnote 1122 in my report.
1 Q. Now I would like to see the document D555, and that will be in
2 the English version page 19.
3 [Interpretation] What we are going to see is the war diary kept
4 at the Main Staff where entries were made from the field during Operation
5 Storm. I believe you did have an opportunity to see this war diary, did
6 it you not, Mr. Theunens?
7 A. Yes, I did, and I have quoted from it, the incident of the
8 artillery fire is footnote 1098, in part 2 of the report.
9 Q. Yes. And I would like to draw your attention to the number 139.
10 A. Indeed. I drew the wrong conclusion at the time when I wrote
11 this report, that, at the time of the artillery fire, Medak was already
12 taken by Croatian forces, which we have seen now is incorrect.
13 Q. Thank you for that answer.
14 MR. MIKULICIC: Mr. Registrar, could I have 65 ter 1026, please.
15 Q. [Interpretation] While we're waiting for the document,
16 Mr. Theunens, I wanted to ask you this: You have come across certain
17 documents in which General Cervenko, the chief of the Main Staff,
18 reported the president, Dr. Tudjman on the course of Operation Storm.
19 President Tudjman was also the supreme commander of the armed forces.
20 This is one such report for the 7th of August.
21 A. Indeed, I have come across such reports, and I have included a
22 number of them in section 2 of part 2 of the report.
23 MR. MIKULICIC: [Interpretation] Could we please have page 2 of
24 the document in the Croatian.
25 Q. We are about to see page 2.
1 Mention is made there of the special forces of the MUP after
2 having take Malovan and Bruvno continued their combat and linked up with
3 the forces of the Military District of Gospic in the area of Udbina. The
4 other portion of the special forces with the artillery support of the
5 Military District Gospic took over Gornji and Donji Lapac. The third
6 portion of the forces were at the passes of Malovan and Otric. These
7 facts are known to you from the documents that you saw. Is that correct,
8 Mr. Theunens?
9 A. Indeed. And I believe it's largely coherent with the reports of
10 the special police both the analysis P614 as well as reports by special
11 police units on the events of -- and the operations of the 7th of August.
12 Q. Thank you.
13 MR. MIKULICIC: Your Honour, I have just been reminded from my
14 case manager that I didn't apply for an introducing into the evidence 65
15 ter 00317, which is a news article, so I would like to tender it.
16 MR. WAESPI: No objections.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: Your Honours, that becomes Exhibit D1098.
19 [Trial Chamber confers]
20 JUDGE ORIE: Mr. Mikulicic, the reason why I consulted with my
21 colleagues is because having media stuff into evidence always causes the
22 Chamber to -- to consider that, but in view of the answers of this
23 witness, that this document was attached to a report, and we heard no
24 further questions about it so apparently it is not challenged. The
25 Chamber has no difficulty in those circumstances to immediately decide
1 and to admit into evidence and D1098.
2 MR. MIKULICIC: Thank you, Your Honour.
3 JUDGE ORIE: Please proceed.
4 MR. MIKULICIC: May I tender into the evidence as well 65 ter
5 01026, which is on the screen right now.
6 MR. WAESPI: No objections.
7 JUDGE ORIE: Mr. Registrar.
8 THE REGISTRAR: Exhibit number D1099, Your Honours.
9 JUDGE ORIE: D1099 is admitted into evidence.
10 MR. MIKULICIC: Thank you, Your Honour.
11 Mr. Registrar, could I have on the screen, please, P585, please.
12 Q. [Interpretation] The document we are about to see is a report by
13 Colonel General Mladen Markac. It actually came from the Ministry of
14 Interior and the head of special forces to the chief of Main Staff on the
15 lines reached by the special police joint forces.
16 I'd like to draw your attention to paragraph 3 in which it is
17 stated that the forces of the special police were mopping up the terrain
18 at the foot of Mount Velebit
19 may have been left behind.
20 In the documents of the special police that refer to mopping up
21 such as this one, and we will see some others, the term used is
22 destruction of the leftover enemy or sabotage terrorist groups. Do you
23 agree with me that that term was used in the reports of the special
25 A. It is for sure one of the terms that is being used. And it is
1 most often used, yes.
2 Q. Yes. Now I would like to see a P577, please.
3 [Interpretation] And this document, as we will see, there are
4 tables which were made to complement the MUP special forces reports on
5 the mopping up of the terrain you referred to those in the second part of
6 your report, page 288, I'm referring to the 9th of August. It is the
7 last entry in paragraph 3.
8 In your report, you mentioned the term "liquidated" as the term
9 used to identify those members of the enemy forces that were killed
10 during the mopping up operation.
11 THE INTERPRETER: Interpreter's correction, search operation.
12 MR. MIKULICIC:
13 Q. [Interpretation] Mr. Theunens, if we look at the table in exhibit
14 577 for the 23rd of August, the ERN number is 06092942, we see there in
15 the column liquidated that the special police forces from the
16 Split-Dalmatia county registered three persons that had been liquidated.
17 Do you see that, Mr. Theunens?
18 A. Yes, I see, and this is also --
19 Q. [Overlapping speakers] ...
20 A. It's in my report on page 284 for the other page.
21 Q. I would like to deal with this issue because I take issue with
22 this term, "liquidated," when reviewing the reports sent by
23 General Markac to the Main Staff, I did not come across a term, not once.
24 My question is this: Do you know who made these tables that can be found
25 in Exhibit P577? It is obvious that this some sort of statistics
1 concerning the reports that were submitted by the special police to the
2 Main Staff. Do you know who was the author of those tables? And I would
3 also like to draw your attention to the last page in the stamp. It says
4 that this document came from the Ministry of Defence of the Republic of
6 A. Well, I only see the English in front of me. But if it is a form
7 used, because maybe the stamp is just kind of a stamp for the archives or
8 something that was put on it afterwards as I've seen on many other
9 document. Documents that were provided to OTP and that originated from
10 archives in state archives in Croatia
11 impression the stamp was put on the document at a later stage.
12 Unfortunately, I cannot really read -- I can see 25/04, but then on my
13 screen, I cannot read the year.
14 Any way, it says 2007. Well, sorry I didn't notice that, so it
15 was a stamp probably that was put on the document afterwards, and which
16 has to do with archiving. I was under the understanding this was a form
17 that was used by the special police sector, i.e., that had been prepared
18 by special police sector without any particular author being known.
19 Q. I would like to put the following to you, Mr. Theunens. In the
20 reports of the special police the term "liquidated" or to liquidate was
21 never used. Let us have a look at the reports that refers to the 23rd of
22 April -- of August, in which we have the table stating that three people
23 were liquidated.
24 THE INTERPRETER: Mr. Mikulicic should not overlap and wait for
25 the end of interpretation.
1 JUDGE ORIE: Mr. Mikulicic, you are invited not to overlap and to
2 wait until the translation is finished.
3 MR. MIKULICIC: This is my problem, Your Honour. I try to avoid
5 JUDGE ORIE: Please proceed.
6 MR. MIKULICIC: Thank you.
7 So I was asking for 65 ter 2463, please, Mr. Registrar.
8 Could we go on page 2 in English version, please.
9 Q. [Interpretation] Mr. Theunens, this is a report of the special
10 police on the search of terrain that was sent to General Cervenko at the
11 Main Staff, referring to the 23rd, and that is the date for which the
12 tables state that three people were liquidated.
13 In item 3, we see --
14 MR. MIKULICIC: We have a wrong document on the screen, but I
15 believe previously we have a right one. So I repeat, it is 65 ter 2463,
16 page 2. That's the right one.
17 Q. [Interpretation] Mr. Theunens, I would like to draw your
18 attention to paragraph 3 in the last sentence it says: "[In English]
19 [Previous translation continues] ... terrorist group (three armed
20 military conscripts) was destroyed in Sipkovac."
21 [Interpretation] That was the term used in the report of the
22 special police which is different from the term used in the summary
23 reports, that is to say, the tables. That is obvious, is it not? There
24 is no mention of the term "liquidated," rather, the military term is
25 used, stating that the terrorist group was destroyed?
1 A. Yes, we see that the term "destroyed" is being used here, whereas
2 in other occasion in official form, the term "liquidated" is used.
3 Q. [In the reports of the special police units, could you show me
4 one document of that kind.
5 In the meantime could I tender this document into evidence, Your
7 MR. WAESPI: No objections.
8 JUDGE ORIE: Mr. Registrar.
9 THE REGISTRAR: Exhibit D1100, Your Honours.
10 JUDGE ORIE: D1100 is admitted into evidence.
11 MR. MIKULICIC:
12 Q. But to save some time, Mr. Theunens, it is my statement the
13 wording "liquidated" is never used in the official reports of the special
14 police. In the meantime during the break, if you could find one, I would
15 be happy to see it.
16 A. Your Honours, I don't need more time. As I put it in the report
17 on page 283, I said, A form, and then between quotation marks, "report by
18 the MUP special police sector" uses the expression liquidated to identify
19 members of the enemy force who have been search in [indiscernible]
21 JUDGE ORIE: The point seems to be clear. Mr. Mikulicic finds it
22 important to emphasise that that word is not used in any report that it
23 could be identified as coming from the special police.
24 Please proceed.
25 MR. MIKULICIC: Thank you, Your Honour.
1 Q. [Interpretation] Mr. Theunens, the next question I have has to do
2 with artillery support received by the special police in its advancement
3 during Operation Storm.
4 In the documents you referred to and that I reviewed, the term
5 "artillery support" is used. Can you explain in the military sense of
6 the word, what does it actually mean, artillery support?
7 A. Well, the official term should be fire support, but fire support
8 can consist of artillery, close air support, as well as the use of
9 mortars. I use the concept artillery support, because I only address the
10 use of weapons qualified as artillery, i.e., cannons, Howitzers, and
11 multiple-barrel rocket launchers which are used to provide fire support
12 to the troops that are conducting a manoeuvre. For example, if they
13 carry out an attack, an attack is traditionally described as a
14 combination of fire and movement.
15 The troops that are moving, they can also -- they will also use
16 fire, but, of course, there are certain limitations to their
17 compatibilities. And that's why artillery, which will be static will be
18 called in to provide additional support against the enemy in order to
19 facilitate the attack or the manoeuvre of the manoeuvring forces.
20 Q. This artillery support to the units of special police was
21 provided by HV forces. Is that correct?
22 A. Your Honours, it is a combination. The special police has -- it
23 has its own artillery assets, and at the same time, there is, first of
24 all, artillery support being provided by HV units as well as examples of
25 individual artillery weapons being made available to special police
2 Q. Mr. Theunens, did you come across an example, in which HV forces
3 resubordinated; that is to say, placed certain resources of theirs under
4 the command of the special police forces?
5 A. I'm just trying to locate the artillery section in the part on
6 special police.
7 It's important to note that the provision of artillery support
8 does not necessarily include subordination. It can happen, but it
9 doesn't have to. Of course it includes coordination because the support
10 has to be provided at the right time in the right location and for the
11 correct duration of time because, otherwise, maybe it will be ineffective
12 or even worse, you will -- I mean, the own forces may be exposed to
13 friendly fire.
14 Q. Mr. Theunens, I'm referring to page 310 of the second part of
15 your report, paragraph 5, which talks about the use of artillery by the
16 special police, and I have item 2 in mind, in which you state that --
17 well, you cite an example when the Split Military District handed over an
18 artillery piece to the special police. The piece was a Howitzer.
19 Do you see that in your report, Mr. Theunens?
20 A. Yes. That is on page -- in my version, page 306, and it
21 corresponds with footnote 1279. But I understand that we were talking
22 about a battery of Howitzers which is -- in general, six Howitzers.
23 Q. And there you refer to a 65 ter document. That is 4555 in
24 footnote 1279. [In English] [Previous translation continues] ... 65 ter
1 [Interpretation] What we are going to see, Mr. Theunens, is
2 something you reviewed when drafting your expert report, is a report by
3 the OG commander, Colonel Mladen Fuzul, the OG Zadar. What is mentioned
4 there is the handing over of a Howitzer battery of 122 millimetres from
5 the OG Zadar to the special police forces. Based on that document, you
6 concluded that the OG Zadar handed over this Howitzer battery to the
7 special forces of the MUP.
8 However, Mr. Theunens, I would like to draw your attention to the
9 introductory part of the order which refers to a document that we will
10 see shortly.
11 MR. MIKULICIC: [Previous translation continues] ... Your Honour,
12 I would like to tender this document into the evidence.
13 MR. WAESPI: No objections.
14 JUDGE ORIE: Mr. Registrar.
15 THE REGISTRAR: Exhibit number D1101, Your Honours.
16 JUDGE ORIE: D1101 is admitted into evidence.
17 MR. MIKULICIC: Mr. Registrar, could we please have 65 ter 5633.
18 Q. [Interpretation] What I'm going show you, Mr. Theunens, is a
19 document referred to in this order. That is the agreement of the 6th of
20 August, 1995, number 8001/95-02/08.
21 It is clear from this document, Mr. Theunens, that on
22 Mr. Markac's request and in agreement with OG Zadar, the Chief of Staff,
23 General Zvonimir Cervenko, agreed that a 122-millimetre Howitzer battery
24 with ammunition as war booty of the special police should be handed over
25 for use to the command of OG Zadar. Therefore, this is precisely
1 contrary to the situation that you described.
2 THE INTERPRETER: Could counsel please slow down.
3 MR. MIKULICIC: Could I tender this into the evidence, Your
5 JUDGE ORIE: Yes. But, first of all, you were invited to slow
6 down for the interpreters.
7 MR. MIKULICIC: I'm trying to catch time, Your Honour.
8 JUDGE ORIE: Second, I take it that the question mark on the
9 transcript means that you'd like to hear the comment of the expert.
10 MR. MIKULICIC: Yes, Your Honour. What I was intending to hear
11 from the expert is whether this is a completely opposite situation of
12 that one that he describes in his report, and he admitted it is, so we
13 can go on.
14 THE WITNESS: It is, Your Honours, and I apologise for the error.
15 JUDGE ORIE: Thank you. Then Mr. Waespi.
16 MR. WAESPI: No objections for the document.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: Exhibit number D1112, Your Honours.
19 JUDGE ORIE: D1112 is admitted into evidence.
20 MR. MIKULICIC: Thank you, Your Honour.
21 Mr. Mikulicic, the reason why I was waiting for the answer of the
22 witness is that we exactly at the same time got the invitation for you to
23 slow down, so I missed his answer. But from what he says now, I must
24 take it that he had answered the question.
25 Please proceed.
1 THE WITNESS: And just to add, I must have missed this second
2 document, because the second document explains the situation.
3 MR. MIKULICIC: Mr. Registrar, I would like to pull up on the
4 screen P505 MFI
5 Q. [Interpretation] Mr. Theunens, in your report - in my version, it
6 is page 321 the fifth chapter - where you mention military discipline and
7 alleged serious crimes committed in the area of responsibility during
8 Operation Storm. I would like to assist you to locate that. It is the
9 Roman -- it is item aa, in small letters. I believe it is page 321 in
11 Have you found it, Mr. Theunens?
12 THE INTERPRETER: We cannot hear Mr. Mikulicic, Your Honour, he
13 is inaudible.
14 JUDGE ORIE: Mr. Mikulicic, I hear that it is difficult for the
15 interpreters to hear you.
16 MR. MIKULICIC: I must pay more attention, Your Honour.
17 JUDGE ORIE: Yes. It is difficult for all of us.
18 MR. MIKULICIC: Yes, I apologise.
19 JUDGE ORIE: Please proceed.
20 MR. MIKULICIC: Thank you.
21 Q. Mr. Theunens, it's section five of your report which is titled
22 enforcement of the military discipline and so on.
23 A. Mm-hm.
24 Q. And I'm referring to the paragraph 1. Signed as double small a,
25 aa, which starts with the words: "On 26th August ..."
1 Have you found it?
2 A. No, but I think we're talking about a different thing.
3 Q. In my report, it's page 321. And 320, so it has to be minor
4 difference in your version.
5 A. Yeah.
6 Q. So ... labelled as aa. Never mind. What I intend to do is the
8 [Interpretation] Mr. Theunens, you referenced a document which
9 the Prosecution tried to tender into evidence on a couple of occasions,
10 and it was marked 505, and we still haven't heard from Their Honours
11 whether the document will be admitted or not because the Defence
12 challenged its authenticity. Purportedly this is a letter from
13 General Markac to the minister of the interior, Mr. Jarnjak, about the
14 letter from Madam Elisabeth Rehn and the reaction to that letter. I
15 would like to tell you, Mr. Theunens, that the Defence does not consider
16 this document to be authentic because of the absence of signature, stamp,
17 or a reference number, such as is normally assigned to every letter.
18 That's why I'm referring to that part of your report, where you mention
19 the disputed document, and I have to challenge that portion of the report
20 because of that.
21 MR. MIKULICIC: [Previous translation continues] ... regarding
22 this particulars portion of the report.
23 THE WITNESS: It is on page 411 in the English version. I mean,
24 I'm not familiar with the background. I didn't know it was disputed and
25 whether it was MFI
1 you look at the Croatian version, it says Boj, above Zagreb, and Boj, in
2 my view, stands --
3 MR. MIKULICIC: The portion of the official number is missing.
4 A. Oh.
5 Q. But it is not up to your expertise. I'm just trying to show that
6 you that this document is in dispute.
7 A. Okay.
8 Q. So we could go on.
9 [Interpretation] Mr. Theunens, I'd like us to talk about an
10 operation undertaken by special MUP forces and the HV after Operation
11 Storm was concluded. What I have in mind are search operations.
12 First of all, going through the documents when drafting your
13 report, and in order to try and save some time, can we agree without
14 going through all of the documents that the operation of search or
15 mopping up of terrain was conducted by the units of the special police as
16 well as HV units, then military police units, as well as the special
17 units of the police called anti-terrorist platoons.
18 Do you go with this assertion of mine?
19 A. I agree, and I would like to add that based on the documents that
20 I saw I came to the conclusions that these operations were predominantly
21 conducted by special police units, but as you mentioned also other types
22 of units participated in these clearing operations.
23 Q. Thank you for that answer.
24 MR. MIKULICIC: Mr. Registrar, may we have document 65 ter 2298
25 on the screen, please.
1 Q. [Interpretation] We will now be looking at a document which came
2 from the HV Main Staff from General Zvonimir Cervenko, who, in this
3 document, orders the forces of MUP to carry out mop-up and fully take out
4 area of Petrova Gora. This document also bears the date of the 10th of
6 Do you know, Mr. Theunens, where Petrova Gora is?
7 A. Based on the fact that you asked the question, and I have also
8 checked in the atlas the position Petrova Gora is. My understanding of
9 the use of Petrova Gora in this context was that we were talking about
10 the area known as Petrova Gora in the zone of Kordun, which is north of
11 Bihac, but I realize that there are different Petrova Goras. However,
12 when I see the document, I see Topusko, Glina, and so on, and that
13 corresponds with that area.
14 Q. That is correct, Mr. Theunens. My question is whether you can
15 confirm that that location is outside of borders of former Sector South
16 where Operation Storm took place and it is charged in the indictment?
17 MR. MIKULICIC: [Previous translation continues] ... for the
18 record, Mr. Mikulicic.
19 THE WITNESS: The Petrova Gora as included in this order, if it
20 is the one in the Kordun, is outside former Sector South. Kordun was
21 located in former UN Sector North, and this is page 284 in my report.
22 MR. MIKULICIC: May I tender this documented into evidence, Your
24 MR. WAESPI: No objections.
25 JUDGE ORIE: Mr. Registrar.
1 THE REGISTRAR: Your Honours, this becomes exhibit number D1103.
2 JUDGE ORIE: D1103 is admitted into evidence.
3 MR. MIKULICIC: Thank you.
4 Q. [Interpretation] If you recall, Mr. Theunens, I showed you a
5 document yesterday from 1993 by General Markac in which it is stated what
6 sort of operations the special police was supposed to undertake.
7 In the document, those operations and activities are specified as
8 those which need to be executed during search operations. And it also
9 serves as a definition of the measures undertaken by the special police.
10 Those are searching of the terrain in search of the leftover sabotage
11 terrorist groups, locating the warehouses with ammunition, locating any
12 minefields, and similar activities which form part of a search operation.
13 Do you agree with this assertion?
14 A. Yes. And it is also confirmed in D528, i.e., the 1996 brochure
15 which can be found in footnote 381 in part 1 of the report, English page
17 Q. Thank you for that answer.
18 [Interpretation] My next question, though it may seem odd, I will
19 put it any way. Do you believe that the search and clean-up or mop-up
20 operations are quite legitimate operations normally carried out under
21 such circumstances?
22 A. As a concept they are part of a military operations, and there
23 are rules and procedures how they conducted, so, indeed, I would consider
24 them by concept legitimate and kind of normal operations. Everything
25 depends, of course, on the manner in which they are conducted, i.e., the
2 Q. Thank you.
3 MR. MIKULICIC: Mr. Registrar, could I have 65 ter, please, 1386.
4 Q. [Interpretation] In the mop-up operations carried out by the
5 special police, the joint forces of the special policemen took place, the
6 ones we referred to yesterday. They were, to remind you, formed from
7 elements of the units of the special police attached to police
9 MR. MIKULICIC: [In English] [Previous translation continues] ...
10 65 ter 1386, please. 1386.
11 Q. [Interpretation] Certain police administrations set aside a
12 number of their special policemen to take part in search operations.
13 That's beyond any doubt.
14 What I would like to clarify with the help of the document that
15 is show up on our screens a moment ago is in what way was the
16 participation of elements of special policemen from police
17 administrations technically organised, whereas that when they were part
18 of these joint forces?
19 MR. MIKULICIC: The hard copy of this document it is a -- maybe
20 we could go over the ERN numbers. It's a 0605-3079. On my copy, on my
21 hard copy is stamped like it is a ter that I cited but obviously there is
22 some mistake in it.
23 Could we try, then, over the number 0605-3079.
24 THE WITNESS: Maybe this is an error in the ERN in my report.
25 MR. MIKULICIC: No, I'm not referring to the document in your
1 report. Obviously, this is a wrong number.
2 JUDGE ORIE: Mr. Mikulicic, the number on the screen bears the
3 number you just gave, 0605-3079. So, therefore ...
4 MR. MIKULICIC: I'm a little bit surprised at this.
5 MR. WAESPI: I think if you go to the last two pages, there is, I
6 think, a different document. Maybe that is it what you are looking for.
7 So pages 2, 3, and 4, if you move on, so it might be --
8 MR. MIKULICIC: Yes, thank you for your help, Mr. Waespi. That's
9 the one. So we find it. It's okay.
10 Q. [Interpretation] Mr. Theunens, while we're waiting for the
11 English version of the document, I will tell you what it is all about.
12 It has to do with the request of the commander of a special
13 police unit, or, rather, of the unit from the Split-Dalmatia police
14 administration to the accounting service of that administration about the
15 payment of per diems.
16 Do you agree with me that it follows from this document that the
17 units which took part in the mop-up operation, namely, Operation
18 Oluja/Obruc which is mentioned in this document and we discussed it
19 before, were, in fact, financed by their respective police
20 administrations, and in this way they were reliant upon or tied to their
21 respective administrations?
22 A. This document, indeed, indicates that members of the special
23 police unit Split-Dalmatia are paid daily allowances for their field
24 service by the police administration Split-Dalmatia. I have not looked
25 into the aspect of the paying of daily allowances, because when I was
1 reviewing documents that covered the aspects of command, control
2 coordination, and, I didn't see any references or any -- yeah, references
3 to the payment of daily allowances. What I mean by that is that the fact
4 that daily allowances are paid by organisation X, Y,or Z, does not have
5 an implication for command, control, coordination, and reporting
7 Q. Thank you for your answer.
8 MR. MIKULICIC: Can this document be admitted into evidence,
10 MR. WAESPI: No objections. Obviously, the first page appears to
11 be out of sequence, but I'm sure we can remove that.
12 JUDGE ORIE: The first page apparently being page 35 of something
13 and then the second page.
14 THE WITNESS: Is also different.
15 JUDGE ORIE: Also -- so I take it, Mr. Mikulicic, what you're
16 seeking to be admitted into evidence is the third and the fourth page of
17 -- is there any way that you could upload these two pages and get rid of
18 the other two? So that we can with focus on what makes sense to look at.
19 MR. MIKULICIC: [Interpretation] Yes, Your Honour. This is a
20 document from the Prosecution's 65 ter list. I'm not sure that we, as
21 the Defence, may intervene into documents presented by the Prosecution.
22 JUDGE ORIE: I see no problem, that if you longer document in
23 which you're interested in a portion of it, that you upload that portion,
24 perhaps not under that same 65 ter number, but under another number, and
25 that we then admit into evidence the relevant portion of that document.
1 Mr. Registrar, pages 3 and 4, of this document, once separately
2 uploaded by the Markac Defence, will receive number.
3 THE REGISTRAR: Exhibit number D1104, Your Honours.
4 JUDGE ORIE: D1104, once uploaded, will be admitted into
6 MR. MIKULICIC:
7 Q. [Interpretation] Mr. Theunens, I would like to direct your
8 attention to the following document, 65 ter 01085.
9 This is an order by the chief of the Main Staff, General Zvonimir
10 Cervenko, dated the 11th of September, 1995, sent to General Markac,
11 where in it is ordered that by 20 September - I'm referring to item 1 -
12 the Special Forces of the MUP at the strength of some 2.000 men be sent
13 to the southern front, and we can see that what is referred to is
14 Metkovic in that part of the front line. Mr. Theunens, it is indubitable
15 that a 2.000 strong contingent is taken out of their area in which they
16 were engaged up to that point and sent far to the south which is a very
17 long way away from Sector South. Is it not?
18 A. Your Honours, the southern, as it is translated, the southern
19 theatre of operations in the Metkovic area is the area which is -- I
20 would have to read a map, but I guess it is like 50 kilometres south of
22 what the order states. Now, I don't know to what extent this order was
24 I remember from my activities in UNPROFOR that there was, indeed,
25 an increased intention in that area, and that there were redeployments of
1 Croatian forces noticed by UNPROFOR members in the wider Dubrovnik area,
2 but then after a couple of days, it seemed that various units that had
3 been sent were withdrawn, and that, yes, there were no significant
4 operational developments.
5 Q. Thank you for your answer, Mr. Theunens. However, what I wanted
6 to demonstrate through this document is that from the area liberated in
7 the course of Operation Storm, pursuant to an order by the Main Staff,
8 2.000 special policemen were redeployed to area of Croatia that was quite
9 a way away from that area. Do you agree on that score?
10 A. The order states that they have to be redeployed. However, when
11 you look at English page 294, part 2 of the report, we see that the
12 clearing operations are still conducted, for example, between the 21st
13 and the 29th of September.
14 So it is not clear to what extent this order by General Markac
15 was implemented.
16 Q. Mr. Theunens, I'm drawing your attention to the fact that this is
17 not General Markac order, rather, this is an order that comes from the
18 chief of the Main Staff, General Cervenko.
19 A. Indeed. And it's coherent with what I have explained earlier,
20 that is that the units of the special police prior to, during, and after
21 Operation Storm, are subordinated to the chief of the HV Main Staff, who
22 issues orders along the chain of command through the assistant minister
23 of the interior, Mladen Markac, or Colonel General Mladen Markac, and
24 then further on, to the special police units via the special police
25 sector. So it is coherent with what we discussed earlier.
1 Q. Thank you.
2 MR. MIKULICIC: [Interpretation] Can this document be admitted
3 into evidence.
4 MR. WAESPI: No objections.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: Exhibit number D1105, Your Honours.
7 JUDGE ORIE: D1105 is admitted into evidence.
8 MR. MIKULICIC: [Interpretation] For your reference is, Your
9 Honours, in document P621, which is already an exhibit, the exact number
10 of members of the special police is mentioned, the number of those who
11 took part in Operation Storm. For the record, I will state that the
12 number ranges from 1790, that was the head count on the last day of
13 Operation Storm, to 2450, which was their strength on the first day of
14 the operation.
15 Q. Mr. Theunens, I still have a couple of questions left and only on
16 one topic.
17 While preparing your expertise that we've been dealing with for a
18 while now, which material did you study concerning the structure,
19 organisation, purpose, and role of the special police? Did you have an
20 opportunity to come across scientific papers on the issue, or the
21 curricula of the training at the police academy, which had to be taken by
22 the special policemen? Did you have occasion to read scientific papers
23 or articles on the matter?
24 A. I have read articles on the special police. Some of these
25 articles originate from a magazine known as, I think, it was Jane's
1 intelligence review, where there were a number of articles, for example,
2 one by somebody I knew, I mean, from my time in UNPROFOR, and he wrote --
3 he published under the name Norman Eric, even though it's not his real
5 I must say I was also familiar with the special police from my
6 stay in UNTAES mission where we had access to -- okay, these were not
7 scientific articles, but these were military magazines. I was -- I
8 personally discussed with some members of the special police at that time
9 because they were located in a zone -- at least that was in summer 1996
10 where they were not allowed to be present.
11 Then I have also, of course, the material that is included in my
12 report. There is, for example, P588, which is I agree or admit, a
13 brochure. I have requested during the preparation of my report for more
14 complete documents or more specific documents in relation to the
15 organisation, role, and -- yeah, structure of the special police. One of
16 the documents we obtained was, I believe, it is 65 ter 5031. It has been
17 tendered now, but it's a document with the job descriptions. For
18 example, we had a job description under title 280 of the chief of special
19 police unit. I was very surprised by that document because it was
20 incomplete. There should also have been a job description of the
21 assistant minister of the interior for example --
22 Q. Thank you for your answer, Mr. Theunens. We are quite short on
24 Let me complete this topic, if I understand you correctly, you
25 read several newspaper -- several articles in specialized journals. You
1 spoke to some members of the special police, but you did not conduct
2 specific research at the police academy in Zagreb or read any Ph.D.
3 papers in order to gain specialized knowledge and an insight into the
4 training required in accordance with the jurisprudence of the Tribunal,
5 when it comes to the role of an expert witness.
6 Mr. Theunens, it is true, is it not, that if one were to apply
7 scientific criteria and the requirements of this Tribunal that when it
8 comes to the structure, legislation, and the doctrine of use of the units
9 of the special police in times of peace and in combat, you, in fact, do
10 not have specialized knowledge which is required by the ICTY of an expert
11 witness. That's right, is it not, you do not have that specialist
12 knowledge? This is your first case where you appear as an expert witness
13 to testify on the issues of the special police. Is that right?
14 A. Your Honours, there are a lot of questions included, but I will
15 just answer the last component.
16 I mean for the time being, unless I'm requested to also answer or
17 address other components.
18 It is correct that this is the first case where I have been
19 requested to write a report on the use and activities of special police.
20 However, I consider that, based on my education, training, and
21 experience, I am indeed qualified to address the topics I have addressed
22 in my report.
23 Q. Thank you for that answer, Mr. Theunens.
24 MR. MIKULICIC: That concludes my cross-examination, Your
1 Q. Thank you for answering my questions, Mr. Theunens.
2 A. You're welcome, Mr. Mikulicic.
3 JUDGE ORIE: We will have a break. We will resume at five
4 minutes to 11.00, but could I have a forecast.
5 MR. WAESPI: I have no redirect.
6 MR. MISETIC: I will stick within 15 minutes, Mr. President.
7 JUDGE ORIE: Mr. Kay.
8 MR. KAY: No, Your Honour.
9 JUDGE ORIE: Yes, which means that the next witness should remain
10 stand by.
11 We resume at five minutes to 11.00.
12 --- Recess taken at 10.31 a.m.
13 --- On resuming at 11.03 a.m.
14 JUDGE ORIE: Mr. Misetic, you never know who is hiding from whom,
15 isn't it?
16 MR. MISETIC: To your benefit or your -- I notice that you can't
17 see me now, Mr. President, but ...
18 JUDGE ORIE: That is the factual description, who can see who.
19 The other was a bit more psychological.
20 Mr. Theunens, Mr. Misetic has some questions for you.
21 If there's any way of moving a tiny little bit, that would ...
22 MR. MISETIC: Sure.
23 JUDGE ORIE: I will also try to move a bit.
24 Further Cross-examination by Mr. Misetic:
25 MR. MISETIC: I think that's better. Hopefully the interpreters
1 in the booth can hear me from here.
2 JUDGE ORIE: If there's any problem, we will hear from the
3 interpreters or the transcriber.
4 Please proceed.
5 MR. MISETIC: Thank you, Mr. President.
6 Q. Good morning again, Mr. Theunens.
7 A. Good morning Mr. Misetic.
8 Q. I would like to just address one matter, which came up in one of
9 your answers on Tuesday. It is at transcript page 13309, beginning at
10 line 16 and going on to the next page, through line 2.
11 In that line -- or in that paragraph, you say:
12 "However, keeping in mind, I'm sorry, that military discipline is
13 one of the, I will call it, core duties of the operational commander. He
14 is the first one who is responsible, and it's only when there are
15 significant incidents or when the operational commander fails to fulfil
16 his duties that it's only then, that the military police, as well as the
17 military justice system, and military discipline system, of course, I
18 mean, the further steps intervene."
19 And so I'd like to ask you a few questions that are related to
20 this issue.
21 First, I think we've already seen that -- and I won't cover old
22 ground again. I think we have already seen that in the meetings on the
23 2nd and 3rd of August about providing security in the area. This was
24 done at the level of the MUP and the military police, and General
25 Gotovina was not present nor invited to be present for those meetings.
1 My next question is if you can show me a document that is sent by
2 the MUP to General Gotovina at any time in August or September alerting
3 him or telling him that there is an issue of crime being committed by
4 members of his units in the field. It's a simple -- either there are
5 letters, or there aren't letters. And let me just tell you in advance, I
6 will give you an opportunity at the end to provide any opinion or
7 argument that you wish on what I'm about to do, but if you can just give
8 me factual answers, and then at the end, I will give you an opportunity
9 to provide your opinion.
10 Did you find any such letters from the MUP to General Gotovina?
11 A. I don't remember seeing such letters from the MUP to
12 General Gotovina.
13 Q. Okay. Now, with respect to correspondence from Mr. Lausic to
14 General Gotovina, excluding any documents where the Split Military
15 District or any other Military District is copied on the correspondence,
16 I'm not asking you for documents where Mr. Lausic copies the Split
17 Military District. I'm asking you: Is there any direct correspondence
18 from Mr. Lausic to General Gotovina as the addressee, where Mr. Lausic
19 advises General Gotovina, that he as the operational commander, for
20 example, is failing in his duties which is causing the military police to
21 have to intervene, or something to that effect?
22 A. Again, excluding the documents that are included in my report,
23 where General Gotovina as well as the other Military District Commanders
24 are copied, I have not seen such a specific letter or complaint from
25 General Lausic to General Gotovina personally.
1 Q. Okay. With respect to correspondence from members of the
2 international community and organisations, after General Gotovina's
3 meeting with General Forand on the 8th of August, between 8 August and
4 20 September, is there any correspondence between any international
5 organisation that goes to General Gotovina to advise him of crimes being
6 committed by HV soldiers in his area of responsibility? By crimes, I
7 mean, not -- excluding the issue of the UN vehicles. We're talking about
8 burning, murder, looting, et cetera.
9 A. My answer is the same as to the previous question. I don't
10 remember seeing any complaints by members of the international community
11 or organisations to General Gotovina personally after the 8th of August,
13 Q. Okay.
14 A. Excuse me, I just would like to make one correction there. There
15 is, of course, the ECMM report, which is not a direct letter of
16 complaint, but the ECMM report which I still have under 65 ter 3419, I
17 believe it has been tendered. It can be found on page 323, part 2,
18 English version. That report suggests that the ECMM monitors who had the
19 meeting with General Gotovina raised the matters of ongoing looting,
20 arson, and harassment.
21 Q. I could go into that with you, but rather than getting into an
22 argument with you, that is why I limited the scope to the 20th of
23 September, 1995.
24 A. Okay.
25 Q. Okay. Now, you, obviously, in your report reviewed many
1 presidential transcripts, and in his cross-examination, Mr. Kay pointed
2 out some of the transcripts, where people such as Dr. Radic are telling
3 the president that the civilian authority in Knin is not functioning and,
4 as a result, the burdens, and I'm paraphrasing now, that the burdens on
5 General Cermak are increased as a result of the failures of civilian
7 There are other presidential transcripts, some of which are cited
8 in your own report. Did you find a presidential transcript beginning
9 4 August 1995
10 1999, where President Tudjman himself or someone speaking to
11 President Tudjman, mentions General Gotovina failing to take necessary
12 measures regarding the security situation in the Split Military District?
13 A. I have not reviewed all of the presidential transcripts. I
14 reviewed a number of transcripts for 1994 and 1995. Maybe some later
15 ones like the one that covers the meeting between late President Tudjman
16 and General Cermak, but I have not seen in the transcript I have
17 reviewed, which again is not a complete review, any references by
18 President Tudjman or someone speaking to President Tudjman mentioning
19 that General Gotovina failed to take necessary measures regarding the
20 security situation in the Split Military District.
21 Q. Okay. Now, you touched upon a bit the relationship between
22 General Cermak and General Gotovina. You have also mentioned in the
23 cross-examination that General Cermak had meetings with representatives
24 of the international community. Did you find any reports from
25 General Cermak to General Gotovina about his discussions with the members
1 of the international community?
2 A. I have not seen such reports, and I found that unusual, because I
3 would expect that General Cermak and General Gotovina would have a lot --
4 I mean, almost daily or at least regular communication, taking into
5 account the specific nature of the situation in Knin.
6 Q. Well, why would you expect them to have daily communication?
7 A. Well, because, first of all, the regulations state that the
8 Military District Commander is responsible for the work of the garrison
9 commander. We have discussed at length that military discipline is --
10 as, I call it, a core duty of the commander and is of key importance in
11 order to maintain the combat readiness of the armed forces and, in
12 addition, there is the element of the complaints of the international
13 community, and as we have seen, there are several orders to enforce
14 discipline from the various command levels which explicitly refer to the
15 reputation of Croatia
16 and burning.
17 Q. Okay. That answer, though, presupposes, does it not that this is
18 the typical situation, for example, you cite in your document the fact
19 that General Gotovina appointed Ashley Minak to be the garrison commander
20 in Benkovac in September. There is a distinction here though with the
21 relationship between General Gotovina and General Cermak, on the one
22 hand, and General Gotovina and the typical garrison commander who is of a
23 much lower rank than a Colonel General, correct?
24 A. That is correct. But again, taking into account the seriousness
25 of the situation, not only in Knin but in the surrounding area, even if
1 the subordination relation between Generals Cermak and Gotovina is, at
2 least based on the material I reviewed, not as cheer as what would one
3 expect in the doctrine, it would still be at least from the military
4 point of view logical that the two of them would meet as often as
5 possible and coordinate their activities and also try to -- to use all
6 the means they have available to them, in order to -- yeah, to solve the
7 situation and end the ongoing crimes.
8 Q. Do you have -- did you see any evidence, for example, in the
9 Split Military District log-book or any other evidence noting such daily
10 meetings between General Gotovina and General Cermak?
11 A. No, Your Honours, I did a search in P71, for example, on the name
12 "Cermak" or "garrison commander," and I believe there was only one
13 reference at somewhere very far to the end, which, again, I consider
14 unusual. I remember seeing General Cermak on the video you showed which
15 allegedly depicts or transmits the -- a meeting held on the 5th or the
16 6th of August. Otherwise, no references to General Cermak in P71.
17 Q. Let's close this issue.
18 MR. MISETIC: Mr. Registrar, if I could call up Exhibit D818 on
19 the screen, please.
20 Q. While I'm bringing it up. This is a request. You cited it in
21 your report. It's a request from General Gotovina to General Cermak.
22 Now, I understand that there are some documents titled "Order," but I
23 believe most of those documents that go to the garrison in Knin are also
24 copied to other garrisons, correct?
25 A. Yes.
1 Q. But in their personal dealings, between the two men, I'm pulling
2 up this exhibit, because when General Gotovina has to address
3 General Cermak personally, is it typical -- or isn't it unusual if, in
4 fact, there's a superior/subordinate relationship that the superior
5 commander sends a request and gives his military greetings at the end as
6 opposed to issuing an order, and then the typical last sentence would
7 say: I hereby make ... in this case it would say, I hereby make
8 Ivan Cermak for executing this order. Wouldn't that be the typical
9 formulation that General Gotovina would usu when addressing a
10 subordinate, based on your review of all of documents of the Split
11 Military District?
12 A. Yes. And actually I would see less of a problem in the use of
13 the word "request." Again, when looking at the word "request" in the
14 context of the contents of the document, but I was -- I found the use of
15 -- when you look at the first sentence, in future please do not ...
16 Q. Let me just interrupt you, because I found that too, and there
17 may be in an additional translation issue there. Because in the Croatian
18 it actually says [B/C/S spoken], which is not quite the same way -- it
19 doesn't give the same sense in the English. You have raised the issue
20 now. I wasn't going to raise it with the translation service. I am
21 fully aware that it is improper to ask the interpreters to do this,
22 Mr. President, but I will leave it in your hands.
23 JUDGE ORIE: Three words only, isn't it?
24 MR. MISETIC: Four words. [B/C/S spoken] [Interpretation]
25 General, sir, please.
1 Q. General, sir, please?
2 JUDGE ORIE: Yes, the words are put to you, but I heard them
3 being spoken by the interpreters.
4 MR. MISETIC: Yes.
5 JUDGE ORIE: And, although against the rules, I appreciate the
7 MR. MISETIC:
8 Q. Now, you have reviewed General Gotovina documents. When he is
9 addressing the OG commanders; when he is addressing other garrison
10 commanders, he doesn't say, Sir, please, right? He doesn't have to say
11 please to anyone that is it subordinated to him?
12 A. That is correct.
13 Q. He doesn't address them as sir. That's not typical in any
14 military, is it, that a superior addresses a subordinate as sir?
15 A. I know that in some armies people love to use the word, sir, but
16 I mean, it is not a usual practice.
17 Q. Now, you'll call from our meeting in January that I raised the
18 issue with you based on your experience in the Belgian army. The
19 situation here is that General Gotovina and General Cermak both were of
20 the same rank at that time, Colonel Generals, correct?
21 A. Yes.
22 Q. Okay. And can you tell us a little bit from a military
23 perspective, is it usual to put two soldiers of the same rank at the
24 level of Colonel Generals and have one in command of the other?
25 A. It can happen. And then in case there is a problem that may
1 arise, I mean, the situation should be clear from the position they hold
2 because one position should be higher or superior to the other one.
3 Now, if you have two people with the same rank in a position at
4 the same level but still a requirement for one having authority over the
5 other in my army, but I don't know exactly for the Croatian army, the
6 seniority in the rank, i.e., how many years does that person have that
7 rank will determine then who has authority over whom. But that is a very
8 specific case where have you two people with the same rank holding the
9 same position. For example, two Brigadier commanders who are part of the
10 same corps.
11 Q. I'm not going to say one had authority over the other. But I
12 would agree with you that there is an -- in the collegiality between
13 officers of the same rank -- I'm not talking about command here. I'm
14 just saying in terms of the respect between the two, the person who has
15 held the rank longer enjoys a certain level of deference or respect
16 because he has held the rank longer, in military culture I'm talking
18 A. Yes, but, I mean, the rank is a starting point. And if they have
19 the same rank, then you lock at the position. As I said well, one
20 position should be superior to the other.
21 Q. Right. Sorry to interrupt you, but I agree with you. That is
22 how, typically, you would look at things. But I think you in your own
23 report say the situation is not clear. So what I'm trying to do is in
24 this type of situation where it is it not clear.
25 A. Mm-hm.
1 Q. Okay, then what I'm saying is let's look to other factors. And
2 one of the things that I'd like you to tell us is in military culture,
3 would you agree that the -- if there are two persons of equal rank in
4 terms of the culture not in terms of now, you know, command issues, but
5 just in terms of culture. The culture is the person who has held the
6 rank longer enjoys a certain deference, correct?
7 A. Yes, and even if he's at a higher age just as a matter of
8 courtesy, without having any operational implications, the person with a
9 higher age may be addressed in a more -- probably be addressed in a more
10 respectful manner but the person in the younger age, even if they have
11 the same rank and hold a position which is at the same level.
12 Q. So as between these two men who held the rank longer of Colonel
14 A. I think Ivan Cermak was promoted to General -- Colonel General at
15 an early stage, but it was a reserve rank, but I have not seen any
16 distinction being made between reserve and active duty ranks.
17 Q. Well, are you aware of the fact that General Gotovina was only
18 promoted to the rank of Colonel General a few days before Operation
20 A. Indeed, and I have referred to that in the report.
21 Q. Okay. So does the fact -- does this indicate to you why the
22 relationship between the two men wasn't as clear as you would expect
23 typically a Military District Commander and a garrison commander, the
24 typical relationship that they would have?
25 A. It is obviously one of the aspects that should be taken into
1 account when one tries to establish the relationship between the two.
2 Another aspect as I addressed earlier would be --
3 JUDGE ORIE: Someone creates some noise. And is invited not to
4 do it.
5 THE WITNESS: Your Honours, another very important aspect would
6 be the communication between the two of them to see what is the nature of
7 the communication, do we see orders being issued from one to the other,
8 reports being provided by one to the other, other documents, what kind of
9 wording is used in these documents.
10 Now, I must say what I really missed was, in addition to reports
11 of -- of communications between the General Gotovina and Cermak, was also
12 an order specifying the duties of General Cermak, because, as I have
13 tried to show in the report, based on his activities, I came to the
14 conclusion that his duties were much further ranging than the duties one
15 would expect from a, call it, traditional garrison commander as it is
16 stipulated in the doctrine. And obviously the duties -- the fact that
17 General Cermak was exercising much wider duties and powers than a
18 traditional garrison commander should also be taken into account, when
19 analysing the relationship between General Cermak and General Gotovina.
20 I have an entry in the report where General Cermak states -- this
21 is 65 ter 751. This is a report to the HV Main Staff dated 25th August.
22 General Cermak states that the Split
23 Knin garrison command are constant coordination.
24 Again when we compare that with the doctrine, that is a --
25 unusual description because a garrison commander should, at least
1 according to doctrine, be subordinated to the district commander, and
2 coordination does not necessarily imply subordination.
3 Q. Okay. My concern is basically with the issue of reporting, and
4 so let me sum this up.
5 There are no letters written by MUP to General Gotovina in this
6 time-period, no letters written --
7 MR. WAESPI: I think these questions have been asked.
8 MR. MARGETTS: I know. It's leading to a question.
9 JUDGE ORIE: Leading to, yes.
10 MR. MISETIC: Yes.
11 Q. Let me give you the background and then pose the question to you.
12 You agree with me that MUP doesn't write any letters to
13 General Gotovina in August and September, that General Lausic doesn't
14 write any letters to General Gotovina personally in August or September,
15 the international representatives of organisations don't write to General
16 Gotovina certainly between 8 August and 20 September, 1995. You agree me
17 that you haven't seen any reports from General Cermak on his meetings
18 with the international representatives that go to General Gotovina. I
19 think we covered the last time I questioned you the fact that this
20 meeting in Plitvice on the 15th of September is between the MUP and the
21 military police with no representatives of the Split Military District
23 My question to you is: Based on all of those facts, isn't it
24 logical to conclude that if, in fact, you were right that all of these
25 people had to act only because the operational commander "failed to
1 fulfil his duties," that somebody over this six-week to two-month period
2 would have thought it appropriate to make write General Gotovina a
4 A. I would first like to clarify your interpretation of my answer.
5 That is that my answer is based on the documents I have reviewed. I do
6 not know what is put in documents I have not seen.
7 Q. Well, we're not interested -- we're only interested in what you
8 know based on what you reviewed, and obviously we could always in any
9 case say there might be something out there that we don't know. Let's
10 talk about what we do know.
11 A. Indeed, but just for the accuracy, I wanted to mention that now.
12 I think the fundamental problem is that a military commander does
13 not have to wait for --
14 Q. That's not my question, Mr. Theunens. I'm just asking you based
15 on common sense and your knowledge of this -- the military and how things
16 work, isn't it extremely unlikely that if you were right that all of
17 these people had to act only because the operational commander failed to
18 fulfil his duties, isn't it extremely unlikely that no one would have
19 thought to write General Gotovina a letter in this time-period and say,
20 Hey, we're having a problem because you're failing to do your job? Isn't
21 it extremely unlikely that someone wouldn't have gone to the president
22 and said, We're having all these problems because the operational
23 commander is failing to fulfil his duties. You agree with me that that
24 is extremely unlikely?
25 A. I think you take the answer I gave to a question, I think, it was
1 by Mr. Kay. You take that answer out of context because I provided a
2 similar but more comprehensive reply to a similar question you asked me
3 while you were cross-examining me.
4 The doctrine is very clear on the duties of the commander, the
5 commander has to maintain discipline. He must keep abreast with the
6 situation in his units, he must consider all aspects of the situation and
7 assess it rapidly, i.e., it is husband duty to maintain discipline in
8 thinks units, and this is done through the chain of command.
9 During one of the breaks, I made a list of orders
10 General Gotovina --
11 Q. Mr. Theunens, we've covered this ground --
12 JUDGE ORIE: Mr. Theunens, you are entering another area, what
13 should be done, and what should be -- what should trigger any activity,
14 et cetera.
15 Mr. Misetic is asking you, apparently, an assessment, he asks you
16 whether it would be logical to assume that someone would have stood up
17 and would is have said, General Gotovina, what's happening here?
18 Nothing ...
19 THE WITNESS: Yes. But when we look again at P71, for example,
20 so the operational diary, and the things being said at the meetings, the
21 daily command meetings, during operation Ljeto, for example, as well as
22 during Operation Storm, the people present are indeed complaining about
23 crimes committed, there is looting, there is burning.
24 MR. MISETIC:
25 Q. Mr. Theunens, this is all stuff that you're now going back to
1 what is being discussed internally in the Split Military District. And,
2 of course, every segment of the Croatian system has a certain role to
4 But the issue is, you said that these other organs, the military
5 police, the military justice system, et cetera, it's only when the
6 operational commander fails to fulfil his duties that they have to
7 intervene. So let's take it out of the context of what's being discussed
8 internally within the Split Military District, and I'm putting it to you
9 that if, in fact, these other organs of the Croatian system, the military
10 police, the military disciplinary system, and others, the civilian
11 police, the civilian system, the international organisations on the
12 ground, and references in the presidential transcripts, let me just put
13 it to you, if, in fact, all of these people had to act because as you say
14 the operational commander was failing to fulfil his duties, isn't it
15 logical to conclude that someone, anyone, in those organisations, would
16 have alerted General Gotovina to the problem, if, in fact, they were
17 having to act only because he was failing to fulfil his duties?
18 A. Indeed, but I wouldn't expect, for example, the civilian police
19 to do so. We see the civilian police complains to the military police,
20 and that the military police administration issues orders via the
21 professional chain to the military police battalions, as well as the
22 document you asked me it exclude where General Lausic makes certain
23 suggestions in order to improve the situation which is sent for info to
24 the Military District Commanders.
25 More importantly, I would like to address -- to draw your
1 attention to the orders issued by General Cervenko who is the best placed
2 individual in this system of command and control because he is the chief
3 of the --
4 JUDGE ORIE: Mr. Theunens, I'm going stop you.
5 You what you are doing, is you are explaining how it all should
6 have functioned. Now -- and what actually happened.
7 Now, Mr. Misetic is putting, however, a different question to
8 you. The question being that if due to the failure to take action, the
9 various units, but they're not in a military sense, but the various
10 bodies would have to act on their own behave would it be logical to
11 expect that one of these bodies would have said, Why do we not get
12 instructions? Why do we have to act on our own? Why is there no
13 effective command in this respect, to the extent that there was
14 subordination? That's the question.
15 THE WITNESS: I don't think I understand the question. We
16 have --
17 JUDGE ORIE: Let me then try to -- for you, perhaps start
18 answering another question.
19 The issue is if General Gotovina did not take the proper action
20 and that he left it to all the others to figure out by themselves what to
21 do and what not to do, would it be logical to expect that one of these
22 elements, whatever you call it, would have sent him a letter or given him
23 a phone call, or address him and say, Why do we have to figure out for
24 ourselves? Why don't you take the lead?
25 That's Mr. Misetic, how I understood your question more or less.
1 MR. MISETIC: Yes. Yes, Mr. President.
2 THE WITNESS: Your Honours, I am confused, because I tried to
3 answer the question based on my military background. And I -- I mean,
4 the most logical would be that the superior of General Gotovina, i.e.,
5 the chief of the Main Staff, speaks to him and says, Look, I have
6 receiving these reports from the military police, and it's not going
7 well. What are you doing? What's happening? I have so say, I have not
8 seen such instructions or reports or -- or other forms of communication
9 by General Cervenko to General Gotovina specifically.
10 What I have seen and that is included in the report are orders by
11 General Gotovina -- excuse me, General Cervenko to the Military District
12 Commanders to enforce discipline to take all necessary measures and so on
13 and so on, and we see that these orders are being forwarded through the
14 chain of command.
15 Again, from a military point of view, it would be unusual for the
16 civilian police to address General Gotovina directly. What we have is
17 that --
18 JUDGE ORIE: I think that Mr. Misetic focussed his question on
19 internal military.
20 MR. MISETIC: Yes.
21 MR. WAESPI: [Overlapping speakers] ...
22 MR. MISETIC: [Overlapping speakers] ...
23 JUDGE ORIE: [Overlapping speakers] ...
24 THE WITNESS: Well, we know that General Forand wrote him a
25 letter on the 5th of August.
1 Q. I think you know, Mr. Theunens, that I said between 8 August and
2 20 September after General Forand finally got a chance to meet
3 General Gotovina on the 8th, right, he never writes him another letter
4 asking him to intervene on issues of crimes, right?
5 A. Well, I would say it's something have you to address with
6 General Forand. I cannot explain why he didn't do that. He must have
7 will his reasons.
8 Q. Okay. Let me ask you one final point -- sorry.
9 A. No. But I wanted to say, like, it is rather unusual for an army
10 that, unless you have really serious problems, that you expect the
11 representatives of the international community to assist you in -- in
12 actually notifying the commander that there is a problem in that army.
13 Q. No, no, I'm not saying they were asking them to assist him.
14 Although obviously if the international community representatives or
15 persons on the ground see crimes, they should report it. But what I'm
16 telling you is, there, in fact, was reporting being done and meetings
17 being held at various levels between the international agencies and
18 organs of the Croatian government. Those weren't taking place concerning
19 crime between General Gotovina and those agencies -- and those
20 international agencies, correct?
21 A. Correct. But again, we don't know whether General Gotovina was
22 meeting --
23 Q. What we don't know, we don't know, Mr. Theunens.
24 A. No, no, exactly. If there is it no meeting whatsoever between
25 General Gotovina and these representatives of the internation community,
1 it is quite obvious that they cannot raise the issue of lack of
2 discipline or crimes with him.
3 JUDGE ORIE: Mr. Theunens, I think that the question included the
4 possibility, did you ask for a meeting for that purpose?
5 MR. MISETIC: Right.
6 A. Indeed. I have not systemically reviewed requests by
7 representatives of the international community, be it UNCRO, ECMM, ICRC,
8 other organisations in the area for meetings with General Gotovina.
9 Q. Now you have raised the issue of General Cervenko. Let me say
10 this: General Cervenko on specific issues that he has with
11 General Gotovina, you have put in your report, that he did send very
12 specific orders to General Gotovina to report to him, one being this
13 alleged threat to Alun Roberts, right?
14 A. Yes.
15 Q. And demanded that General Gotovina explain the situation.
16 JUDGE ORIE: Mr. Waespi.
17 MR. WAESPI: How does that arise out of the original comment?
18 This all much of it could have been raised in the original
19 cross-examination in -- between General Cermak and General Gotovina, and
20 we are, by the way, far beyond 15 minutes.
21 MR. MISETIC: I understand. Mr. President, the issue is I only
22 raised it because, I believe, the witness now in his answer said --
23 mentioned General Cervenko as being one of the persons who would address
24 with them, but if that's not in dispute with the Prosecution, that's fine
25 with me. I'm just trying to point out that General Cervenko did raise
1 specific issues that he had with General Gotovina, one of them being this
2 alleged threat to Alun Roberts which is in evidence now. And I was going
3 ask Mr. Theunens if there is an similar warning or report or order from
4 General Cervenko to General Gotovina saying, I hear that you are failing
5 in your duties to maintain discipline. Please report to me as to why
6 this is.
7 A. In the documents I have reviewed, I have not seen a specific
8 warning from General Cervenko to General Gotovina except for the Roberts'
10 Q. Okay. Mr. Theunens, I thank you very much for your time. You
11 have been with us for so long that I'm already nostalgic, and you haven't
12 left yet, but thank you very much.
13 A. The feeling is mutual, Mr. Misetic.
14 MR. MISETIC: Thank you.
15 [Trial Chamber confers]
16 JUDGE ORIE: Mr. Theunens, Judge Gwaunza has a question for you.
17 Questioned by the Court:
18 JUDGE GWAUNZA: So, Mr. Theunens, during cross-examination, you
19 were shown some documents that you stated you had not seen before, and I
20 think you even said some of them were important and that had you seen
21 them, you would have made reference to them or used them in your
23 My question is: Do you think that the information contained in
24 those documents might have affected some of your conclusions, and, if so,
25 to what extent? And perhaps it's a general question, but perhaps in your
1 response you can be more specific in your answers, if you so wish.
2 A. Indeed, Your Honours. It is correct that there are documents
3 which I would like to have included even if it was just to be more
4 complete in the report. However, I do not remember that have I been
5 shown any documents during cross-examination which would lead me to
6 review any of, what I would call, significant conclusions drawn in the
7 report. It is obvious, for example, that I would have included a
8 conclusion on, for example, the documents Mr. Kay showed, that the
9 military police reports discussing or mentioning crimes and incidents in
10 the zone of responsibility of the Knin garrison, that they were not sent
11 to General Cermak. This would certainly be something I would have
12 included because I consider it significant, even though in the context of
13 General Cermak, in my view, it does not affect the conclusion I drew that
14 he was the most senior military/civilian authority in Knin. Because I
15 drew that conclusion based on the activities of General Cermak. But it
16 would have been useful, as I said, to have these documents and then to
17 add a sentence in relation to the enforcement of military discipline;
18 however, General Cermak was not receiving reports compiled by the
19 military police, even though they were sent to his counterpart in the
20 Split garrison. Than is the main example I remember now.
21 JUDGE GWAUNZA: Thank you.
22 [Trial Chamber confers]
23 JUDGE ORIE: Mr. Theunens, I have got a question for you as well.
24 And for the parties. It is relates to page 13234 at the end.
25 You were asked about Mr. Zidovec who is asking for the submission
1 of information from the police administration, because they're necessary
2 for compiling reports. He wants information about the clearing up of
4 The question was whether if Mr. Cermak was part of the operation
5 for dealing with this matter, whether he would not have been requested to
6 provide this information as well.
7 Now, in your answer, you said -- you said: "Not from the
8 military point of view."
9 And then I think it was Mr. Kay continued by saying:
10 "We're not looking at a military document. We're looking at the
11 -- at a Ministry of Interior document."
12 My question to you is the following: Is it usual if military and
13 civilian organisations, units, are participating in the same operation,
14 coordinated operation, cooperation between the various segments, is it
15 usual that the -- well, let's say, the civilian authorities would include
16 the military counterpart taking part in such an operation to report to
17 them on the matter as well?
18 So it's like cross-reporting from one system, military system, to
19 the other system, the civilian system, although working together and
20 being involved in -- in joint operations, perhaps even under the command
21 of one or at least -- where the one authority takes the lead and is in
22 charge of the operation, is it usual that you then would seek across the
23 division lines information for the purposes of reporting within your own
25 THE WITNESS: I think there are several aspects, Your Honour, or
1 several aspects.
2 The military component and the civilian component will report for
3 sure through their own chains. However -- and it will depend on the
4 nature of the cooperation or the situation we're looking at, there must
5 be a system whereby they can exchange the information. And one would
6 also except there would be a consolidated report then, whereby the
7 information that is reported through the military chain which is
8 considered relevant for the civilians and vice versa is exchanged and
9 available to all. But such a consolidated report will include
10 information that is included also in the separate reports, but the
11 information that is included in the separate reports, all of it does not
12 necessarily have to be included in the consolidated report.
13 JUDGE ORIE: And who would ask for the consolidated report?
14 A. It would depend of who is in charge and what has been agreed.
15 And it depends -- I mean, the civilians and the military are conducting a
16 particular activity. Somebody or a body must have given instructions for
17 that activity and that body should then also be informed about the level
18 of implementation of the activity, i.e., to see whether the instructions
19 it has given are being implemented, and a consolidated report that --
20 that includes both civilian and military information would be an
21 appropriate manner to ensure this information of the body that has issued
22 the task, or that is in charge of the task.
23 JUDGE ORIE: Now, Mr. Kay did apparently put some weight on
24 Mr. Cermak not being included in the persons or organs asked for
25 information. Would you, from your experience, would you give a similar
1 significance to Mr. Cermak not being included in those who were asked to
2 report, in view of -- as an indicator for the role he played in the
3 operation of clearing up bodies?
4 A. I believe I -- I stated that I was not aware of the existence or
5 the activities of civilian defence clearing teams, which could well have
6 operated outside the authority of General Cermak.
7 The information I included in my report on the clearing of bodies
8 was based on the reports provided by the Brigadier there, I don't
9 remember his exact name, but Biskovic, or something to that effect.
10 MR. KAY: Brkic.
11 THE WITNESS: Brkic, thank you. And did he not explicitly
12 mention the activities of civilian teams. It is logical that the
13 civilian defence teams will send reports on their activities to --
14 through their civilian chain, the MUP chain. It is also logical that if
15 General Cermak was in charge of the overall clearing of bodies that he
16 should have been informed, one way or the other, of the activities of the
17 civilian teams, and I don't remember seeing documents, specific
18 documents, sent by these civilian defence teams to General Cermak.
19 So the fact that the civilian defence teams sent reports through
20 the civilian chain - I think those were the reports Mr. Kay show - does
21 not allow to conclude or to draw conclusions whether or not they share
22 this information or similar information with Mr. Cermak, or General
23 Cermak. Because what I have seen again, based on the documents, these
24 report chains are kept separate, even though there may be consolidated
25 reports whereby a document is sent -- is addressed to both chains to both
1 the military as well as the civilian. It's -- I mean, we're three-weeks
2 into this exercise, but I don't remember a specific civilian document
3 being also addressed -- I mean, not only through the civilian chain but
4 also to the military addressees, except for military police reporting
5 where we are talking about the orders -- and, no, and even there I
6 believe it is still different or separate because, for example, when
7 Mr. Moric complained to General Lausic about the ineffectiveness of the
8 military police, and we see then that the General Lausic may forward the
9 letter of Mr. Moric or takes out the relevant components for the military
10 police in a specific document he compiled or the military police compiled
11 themselves which is addressed to the military police units.
12 JUDGE ORIE: Thank you for that answer. I have no further
13 questions for you.
14 MR. KAY: Just one matter.
15 Q. You mentioned civilian Defence, you mean civilian protection,
16 don't you?
17 A. Yes, I'm sorry.
18 Q. I have a correction, rather than a question.
19 JUDGE ORIE: That being clarified.
20 This means that this concludes your rather lengthy testimony in
21 this court. Mr. Theunens, usually I would excuse you at this moment, but
22 perhaps we have to deal with quite a number of documents. And
23 exceptionally I would ask to you stay with us when we're dealing with
24 that. It might be that we need your help at any given moment, so if you
25 would be so kind to stay for another, perhaps, ten minutes.
1 Because I would like to deal with -- especially the bar table
2 documents at this moment.
3 We have -- let's start with the Cermak bar table lists. We have
4 six submissions, Mr. Waespi. The first one, on the task and job of the
5 Knin garrison; second, passage of journalists at -- and other matters;
6 various topics, and I gave the date, the 4th of December; the 5th is the
7 daily reports of the 72nd Battalion. That's number 5 of the 9th of
8 December 2008; and, finally, the 6th one, criminal reports filed by the
9 72nd Battalion of the military police directly to the military
10 prosecutor, also the 9th of December.
11 Now, I think we know that there are no objections against the
12 first and the third, which means that we have not heard the position of
13 the Prosecution on the second bar table submission, passage of
14 journalists and other matters, 3rd of December.
15 MR. WAESPI: We have no objections to the second one either.
16 JUDGE ORIE: No objections.
17 The fourth, military police rotation of Knin Independent Company
18 members and other orders and reports by the Knin company, 5th
19 December 2008.
20 Any objections against those documents?
21 MR. WAESPI: I think I responded last night to the Defence. I
22 don't think there are objections to the fourth bar table motions either.
23 MR. KAY: You did.
24 MR. WAESPI: Can you --
25 JUDGE ORIE: You did object, or you did --
1 MR. KAY: It was agreed last night.
2 JUDGE ORIE: It was agreed. That's --
3 Then we move to the fifth, daily reports, 72nd Battalion, 9th of
5 MR. WAESPI: Yes, I believe that's the stipulation part. We
6 don't have an objection to -- as we said, to it coming in as a
7 stipulation, that all these documents refer to the same issue and were
8 sent to these ten addressees, and the Knin garrison isn't part it.
9 That's -- we can agree on the stipulation.
10 JUDGE ORIE: Stipulation is the character of the documents, and
11 the documents as such are admissible. Do I understand? Or would we
12 refrain from admission at all?
13 MR. WAESPI: The issue is just if we stipulate to that, you know,
14 the documents don't need to come in. If the documents come in as well,
15 we need translations according to standard practice.
16 JUDGE ORIE: But then if you have stipulations on the matter, Of
17 course, the Chamber would like to have it -- even if one -- if only in
18 one or two lines to have this stipulation clearly on the record.
19 MR. KAY: Your Honour, we've drafted the stipulation in
20 uncontroversial terms. We have listed the documents because those
21 documents will be committed to translation, there will be Defence experts
22 referring to them, if we get to that stage, and so they are material. We
23 understand the problems of the translation department. It's going to
24 take many weeks for them to deal with that, than is a way of dealing with
25 the issue now in a satisfactory way.
1 JUDGE ORIE: Yes. So there is no urgency at this moment in the
2 translation, the stipulation, and the list of documents can be put on the
4 MR. KAY: Yes.
5 JUDGE ORIE: Now, you said uncontroversially you have formulated
6 the stipulation. How to have this on the record?
7 MR. WAESPI: I think during the next break, we'll just figure out
8 these one or two sentences. I see them before me, but perhaps we can
9 just finalize them.
10 JUDGE ORIE: What the Chamber, then, at this moment expects you
11 to do is to read the exact formulation of the stipulation into the record
12 and to make a joint filing of the list, not the documents, the list of
13 documents that stipulation relates to.
14 If that would be filed, then we have, for the time being, a
15 complete record, and, Mr. Kay, further translations and how to use these
16 documents in any further stages of these proceedings when it comes to
17 that. We'll wait and see, but we have resolved the issue as it stands
19 MR. KAY: Yes.
20 JUDGE ORIE: Thank you for that.
21 So five receives a special treatment.
22 The sixth category, is that --
23 MR. WAESPI: We have reviewed it last night. We have no
25 JUDGE ORIE: No objections.
1 Then, Mr. Registrar, you are invited on the basis of the first,
2 the second, the third, the fourth, and the sixth bar table submissions to
3 assign exhibit numbers to them. No exhibit numbers will yet be assigned
4 to the documents listed and to be filed as we find it in the fifth
6 MR. WAESPI: I'm not sure you have addressed the third one, and
7 maybe it's been dealt with. We added a few comments in a separate
8 Prosecution comment section, and I think that should be fine as well.
9 MR. KAY: That's been included, yes.
10 JUDGE ORIE: Yes, I received the Cermak Defence report saying
11 additionally the Defence and the Prosecution agreed on contents and
12 comments of the third bar table submission. That is the description.
13 It's not about admissibility. It is about how they are described and how
14 they will find their way in the list of exhibits.
15 May I take it, Mr. Kay, that the agreement is reflected in the
16 list as sent to Mr. Registrar to assign numbers to them?
17 MR. KAY: Absolutely. There have been several exchanges on this.
18 JUDGE ORIE: Yes. And, Mr. Registrar, who will have to finally
19 assign numbers to these documents, is provided with the final
21 MR. KAY: Number 5 which still has to be formulated into a
23 JUDGE ORIE: No, 3.
24 MR. KAY: Yeah.
25 JUDGE ORIE: I'm talking about 3, because that was the third
1 submission which Mr. Waespi raised.
2 Then the registrar, and I repeat that, is invited to the assign
3 numbers to the exhibits we find in the first, second, third, fourth, and
4 sixth bar table submissions. And the Chamber will then, once numbers
5 have been assigned, decide on admission.
6 These were the Defence bar table submissions.
7 I suggest that we first go to the Prosecution bar table
8 submissions - let me find it ...
9 MR. WAESPI: Mr. President, I'm not sure that we have submitted
10 it to -- to Your Honours. We did to the Defence last night. This is a
11 fairly different to, you know, the 200 or so exhibits we wanted to have
12 admitted, you know, four, five weeks ago. What we have at this point in
13 time are two separate submissions, one is a normal bar table motion. I
14 think it is 12 documents that are referenced in Mr. Theunens's report.
15 Not discussed in court. We would like to have these admitted, and I can
16 -- as soon as we have time shortly, can submit it to you. And the second
17 document is a list of, I think, 29 documents. These are all the
18 documents that have been referred to by Mr. Theunens in the course of his
19 examination but have not been entered, and a couple were added today. So
20 we will submit this list. We did already to the Defence.
21 JUDGE ORIE: You'll prepare lists for that so that we can deal
22 with those lists in a similar way as we dealt with the bar table
23 submissions, Although they are not really bar table submissions because
24 the list of 29 are documents that were dealt with during the testimony of
25 Mr. Theunens.
1 MR. WAESPI: This is correct. The first one is more akin to a
2 normal bar table motion.
3 JUDGE ORIE: Then we'll deal with them. Then we have a few other
4 documents which were MFIed and are not part of lists.
5 The first one would be D01079. I think, Mr. Mikulicic, it was
6 you who tendered this document. Yes.
7 The issue for the Chamber was that you presented it,
8 Mr. Mikulicic, as more or less a -- it was a document dated the 30th of
9 December, 2005, a document -- a letter sent by the Ministry of Justice of
11 document. It states to some extent, the legislation, laws as applicable.
12 I think on that basis, you sought admission.
13 Mr. Waespi did not object, but the Chamber said we'd like to have
14 a closer look at this document. Looking at this document, apart from
15 reflecting what we also heard during the testimony, that is, how the
16 structure was of the various judicial or semi-judicial organs and who was
17 appointed at what time, recruited from where, et cetera, it also contains
18 a factual section, and I ask you to read with me the very end of this
19 document, where it says:
20 "In conclusion, in the period your letter is regarding to, and
21 pursuant to the ZOUP decrees in force at the time, MUP disciplinary
22 courts were established, which conducted disciplinary proceedings, in
23 cases of disciplinary violations committed by the MUP officials on duty,
24 or regarding their duty. In their proceedings a high number of various
25 types of penalties were dispensed."
1 This is a statement, not of the law, but of facts; that is, how
2 they functioned. What the high number exactly would come down to, the
3 various types of penalties in relation to what kind of violations of
4 discipline, that's all rather factual. Of course, the Chamber would have
5 to digest that. And to give it any sense, of course, you would want to
6 know what the various types of penalties would be and what a high number
7 would be, well, Mr. Waespi has not objected to it. At the same time, the
8 Chamber is, of course, concerned how to deal with it. I mean, how to
9 introduce this in the evaluation of the totality of the evidence.
10 It's not primarily the legal matters, what decrees were there,
11 who was -- because we heard about that a bit in the testimony as well.
12 But it's especially the -- this portion which I read to you, which
13 bothers us a bit, and if it does not bother Mr. Waespi, then, of course,
14 we would have to consider how to proceed, but I just put to you so that
15 we can finally decide on admission, or if you say, That is not really the
16 part which is of importance for us. It was mainly the legal part and how
17 the structure was, then there might even be a possibility to come to a
18 commonly redacted the document.
19 But the factual part is without any -- at this moment without
20 sufficient support, factual support.
21 MR. WAESPI: Yes. A point I made yesterday, I would like to
22 receive that initial request from the Defence. I think it was --
23 JUDGE ORIE: That's another matter that was on the record, and
24 Mr. Mikulicic agreed that he would give that to you.
25 Has this been done already, or ...
1 MR. MIKULICIC: Yes, Your Honour this has been done in the way
2 that we enter it, the request for the Defence into the system, and we're
3 asking for the translation of the initial document, upon which was issued
4 the documents from the ministry.
5 On the other side, I can see clearly your point, Your Honour, and
6 I would like to stress is that the only concern of the Defence as its
7 regards to this document is a legal matter, so we are not paying much
8 attention on the very bottom of the documents that have you just read.
9 So, if it is possible to have this document entered into evidence
10 under these circumstances, it is okay with the Defence. We will not be
11 asking more of it.
12 On the other side, we could explore the fact portions, so-called,
13 in the documents with another witness in due course.
14 JUDGE ORIE: Yes. Mr. Waespi.
15 MR. WAESPI: Yes, I just would like to have a look at the
16 translated request, and then we can come to you with it.
17 JUDGE ORIE: I leave it for the time being to the parties for
18 whether the appropriate action to take would be, for example, to take out
19 the last three lines that deals with facts and have a -- have a redacted
20 version tendered into evidence and admitted into evidence or whether the
21 parties agree that at this moment no factual support for rather blunt
22 factual statements are there, so that the parties agree that the Chamber,
23 on the basis of this alone, could ignore this information.
24 MR. MIKULICIC: Your Honour, if that could be of any assistance,
25 we are prepared to withdraw the request for entering this document into
1 the evidence until we would have a final translation of the Defence
2 request for the documents, plus the tables that are attached to these
3 documents that concerns to the sanctions that has been put upon the
4 violation of the disciplinary.
5 So maybe it will be the most practical solution that in this very
6 moment, we will withdraw request for tendering this documents, and we
7 will put it in front of the witness which we -- who we estimate it as a
8 proper one in a due course.
9 MR. WAESPI: I think as a practical matter, it is probably safer
10 to keep it as MFIed because it has been referred to in the transcript.
11 JUDGE ORIE: Now, Mr. Mikulicic, if you say the tables attached
12 to this document. I, however, see that it is uploaded now as a two-page
13 document without any tables, so the reference to the tables in relation
14 to D1079 is unclear it me.
15 MR. MIKULICIC: Yes, Your Honour, maybe I wasn't clear enough.
16 The last reference in the documents is referring to the tables
17 which are originally attached to this document, and these tables we have
18 in our documentary evidence, prepared for Defence.
19 So we didn't ask for tendering those tables in a time when I was
20 requesting to tender two pages document into the evidence, but we believe
21 that the whole document could be show up to the proper witness in the due
22 course, together with the attached tables, which are basically referring
23 to the last portion of the documents that you have just been reading
24 aloud in the --
25 JUDGE ORIE: Yes. I note that no reference is made in this part
1 of the letter to any attachment. Therefore, I leave it up to you. We
2 keep it MFIed, and we further discuss, perhaps including the attachments
3 with Mr. Waespi. You see how it could be introduced. For the time being
4 it's clear to the Chamber that you're seeking to introduce the
5 information of a primarily legal character and not about how --
6 MR. MIKULICIC: Precisely, Your Honour. And I think is a more
7 practical solution just to solve the problem in a conversation with
8 Mr. Waespi, and I'm sure we could solve it.
9 JUDGE ORIE: Then the Chamber waits for a report on that.
10 Then we have D01083 is still pending for translation.
11 Finally, we have the expert report by Mr. Theunens, P1113. We
12 have the addendum to the report, P1114. And we have the corrigenda to
13 the expert report, P115.
14 The Chamber at the time said that it would decide on admission
15 once we would have heard the testimony of Mr. Theunens. Are there any
16 submissions to be made in addition to the many submissions already made
17 in respect of the admissibility of the report, its addendum, and the
19 No need. Then the Chamber will decide on admission.
20 Finally, I still have to find out further about P1118. Can't
21 deal with at this moment.
22 Then we have P1138. That is the Lausic report concerning
23 inspection. It's a document dated -- it's about an inspection between
24 the 17th and the 20th of October, 1995.
25 When it was tendered, I think it was you, Mr. Misetic, you said,
1 Well, we'll introduce the document or the full -- the broader, entire
2 document. That's what you said you do.
3 Have we seen this document in that other broader?
4 MR. MISETIC: We have. There is an technical issue, and I -- I
5 let the Chamber decide how to deal with it.
6 I don't have the number in front of me right now, and I trust
7 that my case manager will assist me. We introduced a document which was
8 the overall inspection conducted by the Main Staff of the Split
9 inspection of the Split Military District. I think that report is dated
10 30 October -- I'm sorry, it's the 25th of October, 1995 -- actually, no.
11 One moment, Your Honour.
12 [Defence counsel confer]
13 MR. MISETIC: We'll find the date, Your Honour, but there is an
14 inspection. I believe, it is the 30th of October. This report is an
15 attachment to that inspection. We've tendered the inspection, and it is
16 now in evidence. As a technical matter, the inspection was one 65 ter
17 exhibit, this attachment was a separate 65 ter. So I don't know if the
18 Chamber wishes that we on the Defence add this report to the original
19 document so that it is all in one place, or if the Chamber doesn't have
20 any problem admitting the Prosecution's exhibit and our exhibit and then
21 somehow keeping track of the fact that they are, in fact, part of the
22 same report.
23 JUDGE ORIE: Yes. If it ever comes to that, the Appeals Chamber
24 might struggle with it or the Chamber when preparing the determinations
25 we'll have to make.
1 I would be inclined to prefer an all-inclusive approach that
2 diminishes that risks of overlooking something.
3 The next question is, of course, would you add that to your
5 MR. MISETIC: Yes, Your Honour.
6 JUDGE ORIE: That would -- uploaded again. But now including the
7 document which was MFIed as P1138.
8 MR. MISETIC: Correct.
9 JUDGE ORIE: And then P1138 would be vacated. Is that --
10 Mr. Waespi.
11 MR. WAESPI: That's correct.
12 JUDGE ORIE: That being resolved, is there any other matter in
13 relation to the exhibits as far as we can deal with them now?
14 MR. MISETIC: Mr. President, just for the record, what we were
15 discussing is Exhibit D987, and the Defence will then take -- sorry.
16 Exhibit P1138 MFI
18 JUDGE ORIE: Yes. It is now clear on the record.
19 MR. MISETIC: Thank you, Mr. President.
20 JUDGE ORIE: Mr. Theunens, often we had to ask your assistance.
21 Now we asked to you wait, and we didn't further rely on you.
22 Nevertheless, thank you for that. Usually I thank witnesses and experts
23 for coming a long way to The Hague
24 does not in any way affect our thanks for your coming and having answered
25 many, many, many questions of the parties and of the Bench.
1 You are excused.
2 THE WITNESS: Thank you, Your Honours.
3 [The witness stands down]
4 JUDGE ORIE: I wonder whether it would be a good idea to deal
5 with a matter in relation to the next witness before the break. There
6 was a -- let me just find it.
7 Yes. There was a Prosecution motion to add 11 documents to the
8 65 ter list to be used with Witness 90. The -- I think two Defence teams
9 -- I think it was Gotovina Defence and the Cermak Defence did not object
10 to adding to them, but we received this morning a courtesy copy of a
11 response to be filed by the Markac Defence, which objects against
12 admission of these documents to the 65 ter list.
13 Does this trigger -- of course, the Chamber will have to decide.
14 We have received the submissions. Is there anything else we would have
15 to deal with? If not, we most likely will decide the matter during the
17 MR. KUZMANOVIC: Your Honour, I guess from our standpoint, it
18 sort of also dovetails into the potential bar table submission matter
19 that is going to be made relating to this witness, again, using many of
20 the documents or some of the documents that are going to be proposed to
21 added to the 65 ter list. I don't know if the Court wants to hear any
22 argument on the matter or not. We have put our objections down with
23 respect to the specific -- the real issue is relevance. It's really not
24 necessarily that the -- putting it on the list at this late stage is a
25 problem, but the real issue is the relevance of the document.
1 JUDGE ORIE: Which, of course, affects both adding them to the 65
2 ter list and at later stage admission into evidence.
3 MR. KUZMANOVIC: I think our submission really expresses our
4 specific objections to the relevance of the documents, and it will go
5 along way to expressing our submission on the bar table submission for
6 some, if not all of the documents that were included on this list and
8 So I guess I will not add anything more than what I have said and
9 what's in our written submission are.
10 Thank you.
11 JUDGE ORIE: Thank you for that.
12 Ms. Mahindaratne.
13 MS. MAHINDARATNE: Mr. President, if I could just in response to
14 the courtesy copy of the motion I received this morning, just point out
15 at paragraph 2, the Defence says that - the Defence for Mr. Markac - says
16 that it does not oppose the addition of the 11 documents to the Rule 65
17 ter exhibit list, and that is the only application the Prosecution has
18 made with the motion to add. So if we take it with the two-step process,
19 if the Defence for Mr. Markac does not oppose the addition of the
20 documents to the 65 ter list, then I believe there is no objection for
21 the motion to add before Court.
22 JUDGE ORIE: Yes. But I then take it -- that's how I understood
23 the observation just made is that even if you add them to the 65 ter
24 list, it says passe, then it opposes very much the arguments used and
25 that this will have an effect on admission which is the next step. I
1 mean, to be on the 65 ter list as such, doesn't hurt, if I could say so.
2 If it is mainly on the basis of relevance. Of course, relevance is also
3 an important aspect of admission because, as we all know, it's relevance
4 and probative value that are the key elements for a decision to admit
6 MS. MAHINDARATNE: Mr. President, I don't have anything much to
7 add to the motion where we have demonstrated clearly relevance and
8 probative value, but if, of course, in the motion we do not go into
9 detail, but if we go through the testimony of this witness, the
10 additional relevance and the additional probative value will be clear to
11 the Chambers. But I believe we have clearly demonstrated relevance and
12 probative value in the motion to add.
13 MR. KUZMANOVIC: Your Honour, I think it is a backward approach
14 to say we'll demonstrate how they're relevant when the witness testifies.
15 They need to be demonstrated now before witness comes on the stand.
16 Because to say that they are relevant without any real explanation for
17 why they're relevant without having the witness testify is the wrong way
18 to go with it. Tell us the specific reasons why they're relevant for the
19 proposition they stand for in their 65 ter motion to add them to their
20 list, other than saying that they're relevant. Just saying that they're
21 relevant means nothing. The specific reasons for why they're relevant is
22 what we need to know. Because they're not stated, and I won't go any
23 further, Your Honour.
24 Thank you.
25 MS. MAHINDARATNE: We have stated very clearly why they're
1 relevant. If it is necessary, I could do it even in court.
2 JUDGE ORIE: The Chamber will consider the matter and decide.
3 We will have a break, and we will resume at ten minutes to 1.00.
4 --- Recess taken at 12.30 p.m.
5 --- On resuming at 12.56 p.m.
6 JUDGE ORIE: There is an Latin saying litis finire oportet, which
7 means at a certain we have to stop argument, and there should be an end
8 to that. Nevertheless, the Chamber decided to grant two minutes, and I
9 will look at the clock, two minutes this time is 120 seconds to further
10 deal with the matter of the artillery documents, and the primary reason
11 why the Chamber grants a request to make further submissions on it is
12 that the Chamber, first of all, would like to know how disclosure
13 actually took place. Whether it is appropriate or inappropriate the way
14 it was done, but we, of course, uploading in e-court is one thing,
15 releasing documents, not everything that's uploaded in e-court is
16 available to everyone. That may be of some relevance. So we would like
17 to know what actually happened, if the parties are agreement on that. It
18 could be that just one of the parties says what is done. Perhaps,
19 Mr. Russo, you would be the most appropriate person to do that. And if
20 that's not challenged, then we do not have to spend time on that.
21 Therefore, it's -- Mr. Russo, you have 120 seconds starts in two
22 seconds from now. They have started.
23 MR. RUSSO: Thank you, Mr. President. Let me say first that
24 disclosure was made, we believe, on 20th May this year. However, we were
25 unable to confirm what was actually contained on the CD that was
1 disclosed on the 20th of May. Out of an over abundance of caution, we
2 re-disclosed the documents via e-mail on 9th December, and then uploaded
3 into e-court. So the disclosure was made at the very latest on the 9th
4 December, via e-mail.
5 JUDGE ORIE: Well, that's 40 seconds.
6 Mr. Misetic, your 120 seconds start now.
7 MR. MISETIC: Mr. President, I believe we filed our response on
8 the 2nd of December so that would mean at the time we filed our response,
9 it was before this most recent disclosure.
10 The second issue is I'm not sure I understand Mr. Russo's
11 position because based on their position at footnote 7 of their reply
12 which was filed yesterday, it says that the translations of the eight
13 documents referred to in footnote 13 of the response were uploaded into
14 e-court in May 2008.
15 A. And have been re-disclosed to the Defence. So I don't know -- if
16 I understood Mr. Russo correctly, he is now saying that he believes there
17 was a that CD disclosed, but they can't show it. The reply says that it
18 was disclosed by uploading into e-court which is why we had asked for a
19 very sort amount of time to so reply, which is that our position is that
20 uploading documents into e-court is not proper disclose under the rules.
21 That should be done under Rule 66 and 68, and the Defence does not have
22 an obligation to constantly monitor e-court to see if there's something
23 new in there and then to approach Prosecution to see if they intend to
24 disclose this, use it, et cetera. So that's our position, Your Honour,
25 and if I'm mistaken on this, I will certainly work with the Prosecution
1 to see how this disclosure was done in May.
2 Thank you.
3 JUDGE ORIE: Yes. Then I take it that the inappropriateness --
4 the Chamber just looked at your submission in which you are seeking leave
5 to -- to make further submissions, and that's then part of what we've
6 heard now in the 240 seconds.
7 MR. MISETIC: Well --
8 JUDGE ORIE: Even less, but 240 seconds reserved for you.
9 Mr. Russo, you reserved 40 seconds, I don't think you want to add
10 anything, would you?
11 MR. RUSSO: I do not, Your Honour, other than to request leave to
12 be excused.
13 JUDGE ORIE: The remaining seconds certainly will assist
14 interpreters and transcribers to take a breath.
15 This -- the Chamber will, of course, decide the matter.
16 Mr. Russo, or do I have to address you for the next witness?
17 MR. RUSSO: No, Your Honour.
18 JUDGE ORIE: No. Yes, Mr. Witness.
19 MS. MAHINDARATNE: [Overlapping speakers] ...
20 JUDGE ORIE: You were not visible for me at the moment.
21 First of all, the Chamber has considered the objections against
22 adding the 11 documents to the 65 ter list, where I would say 95 per cent
23 of argument was relevance, and only a small portion of the -- of the
24 objection made by the Markac Defence, only, was the fair trial issue as
25 we find it in paragraph 18 of the response. The Chamber denies the
1 objection. If the late adding to the 65 ter list would cause
2 considerable problems in preparing for the examination of this witness,
3 or if investigation -- further investigations would be needed, of course,
4 the Chamber expects the Markac Defence to address the Chamber on that
5 specific issue.
6 Ms. Mahindaratne, are you ready to call your next witness? No
7 protective measures, if I'm well-informed.
8 MS. MAHINDARATNE: Mr. President, in fact, we have not had any
9 communication this witness at all. Therefore, I do not know, and in an
10 abundance of caution, perhaps he could be brought it in a closed session.
11 JUDGE ORIE: Yes, but then we have to go into closed session,
12 which means curtains down, although there is a fair chance that they will
13 be back up again in two or three minutes.
14 We turn into closed session.
15 [Closed session]
11 Page 13540 redacted. Closed session.
2 [Open session]
3 THE REGISTRAR: Your Honours, we're back in open session.
4 JUDGE ORIE: Thank you, Mr. Registrar.
5 Mr. Turkalj, you'll first be examined by Ms. Mahindaratne.
6 Ms. Mahindaratne is counsel for the Prosecution.
7 Ms. Mahindaratne, are you ready to examine Mr. Turkalj?
8 MS. MAHINDARATNE: Yes, Mr. President.
9 JUDGE ORIE: Then please proceed.
10 MS. MAHINDARATNE: Thank you, Mr. President.
11 Examination by Ms. Mahindaratne:
12 Q. Good afternoon, Mr. Turkalj.
13 A. Good afternoon.
14 Q. Could be please state your full name for the record.
15 A. My name is Josip Turkalj.
16 Q. What is your current occupation?
17 A. Currently I am employed in the Ministry of the Interior in the
18 police administration.
19 Q. During 1995, what was your position within the special police
21 A. In 1995, I was at the post of the commander of the anti-terrorist
22 unit, Lucko.
23 Q. On 3rd and 4th February, 2004, were you interviewed by members of
24 the Office of the Prosecutor of this Tribunal?
25 A. Yes.
1 Q. In the course of that interview when questions were asked from
2 you, did you respond truthfully?
3 A. To the best of my recollection, as far as I was able to remember
4 facts and details, yes.
5 Q. At that time, did you provide a signed statement to the Office of
6 the Prosecutor?
7 A. I signed a statement that was read back to me from the English
9 Q. Was it read back to you in the Croatian language to you?
10 A. Yes. It was read out to me in Croatian.
11 Q. After that, on 11th March, 2005
12 members of the Office of the Prosecutor?
13 A. Yes. Another interview was conducted with me. I'm not sure
14 about the date, though.
15 Q. And on that occasion, when you were asked questions, did you
16 respond truthfully?
17 A. Yes. I tried to tell the truth at all times, to the best of my
19 Q. And was that interview video-recorded?
20 A. It was video-recorded, but I did not view the recording.
21 MS. MAHINDARATNE: Mr. Registrar, may I have document number
22 6160, please.
23 Q. Now, Mr. Turkalj, were you provided with copies of your statement
24 of 3rd and 4th February, 2004, and the transcripts of your interview of
25 2005, about a few weeks back by the Croatian authorities with a request
1 to review them in anticipation of your testimony here?
2 A. The statements were sent to me, yes.
3 Q. And did you examine your statement made in 2004? Did you read
5 A. Yes, I did. I reviewed the statement.
6 Q. Did the contents of that statement accurately reflect what you
7 stated to the investigators and the members of the Office of the
8 Prosecutor on 3rd and 4th February, 2004?
9 A. Essentially the contents are correct, though I would have certain
10 corrections to make in relation to four portions of that statement.
11 Q. And can you -- we will bring up that statement on the screen,
12 Mr. Turkalj, and would you please then identify to us what these
13 corrections are.
14 Do you see the document on the screen? That the statement you
15 made in 2004? If you could perhaps --
16 MR. MIKULICIC: Sorry to interrupt, if we could provide a hard
17 copy to the witness.
18 JUDGE ORIE: We could ask him. I take it that if he has
19 identified four portions which are in need of correction. Did you bring
20 your own copy where you made have made notes as to what to correct,
21 Mr. Turkalj?
22 THE WITNESS: [Interpretation] I don't have my copy of the
23 statement with me at the moment.
24 MS. MAHINDARATNE: We can --
25 JUDGE ORIE: Then a hard copy, if that could be provided to
1 Mr. Turkalj. It is easier than to read from the screen.
2 MS. MAHINDARATNE: The binder also has a transcript.
3 Q. Mr. Turkalj, the statement is right at the top, under the
4 tab number 1.
5 And could you please tell Court -- refer to the paragraph numbers
6 and tell us what the correction is.
7 A. I would like to make a correction in paragraph 50.
8 Q. And can you tell what the correction is.
9 A. I would like to correct the last sentence, where I said that we
10 were at a meeting in Knin, since this was not a formal meeting but an
11 informal conversation in relation to certain events where information was
12 exchanged on the life and circumstances in Knin prevailing at the time.
13 JUDGE ORIE: Would it meet your concern if we would make it: I
14 left the room whilst the other persons present continued their
16 THE WITNESS: [Interpretation] That would be correct, had I left
17 the room ahead of the others. But I noticed since I spent some five
18 minutes lingering in the corridor, that the others followed suit soon
19 after me.
20 JUDGE ORIE: That is not part of your testimony you give at this
22 So we then change: I left the room whilst the other persons
23 present continued their conversation. And we take out: The meeting was
24 still going on.
25 Ms. Mahindaratne.
1 MS. MAHINDARATNE:
2 Q. You indicated, Mr. Turkalj, that you had four. What are the
3 other three corrections?
4 A. I read the statement and would like to correct a statement under
5 paragraph 61.
6 Q. Yes, please. Go ahead, and let us know what the correction is.
7 A. In this part of statement, I highlighted the fact that with my
8 associates, I asked from General Markac that Mr. Drljo be thrown out of
9 the Lucko Unit, which was, I believe, translated differently.
10 We had informal conversations when we would happen upon
11 General Cermak that Mr. Drljo should be transferred to a different post
12 within the sector of the special police. The reason behind that request
13 was the fact that Mr. Drljo did not fully respect the authority of the
14 superior. It was difficult to work with him because of that fact, and
15 because of these minor difficulties, we believed it better for him to be
16 transferred to a new post, to a different post.
17 Q. Mr. Turkalj, I --
18 MR. KAY: Sorry to interrupt. Can we just have clarification on
19 the last paragraph there, because General Cermak's --
20 MS. MAHINDARATNE: That what I was on about.
21 MR. KAY: Oh, thank you very much.
22 MS. MAHINDARATNE:
23 Q. Mr. Turkalj, you referred to General Cermak, or I think it has
24 been noted as General Cermak. Did you mean to say General Cermak, or did
25 you mean to say General Markac?
1 Let me read back to you what you have said. You said:
2 "We had informal conversations when we would happen upon General
3 Cermak, that Mr. Drljo should be transferred."
4 In relation to that sentence, did you mean to say, We had
5 informal conversation when we would happen upon General Markac, or did
6 you mean to say General Cermak?
7 A. My apologies. It was a slip. I was -- meant to refer to
8 General Markac.
9 Q. So you informed us what you meant by paragraph 61. Is there
10 anything there in paragraph 61 right now that you want to change? What
11 you have stated is on record.
12 A. Essentially that would be the extent of my correction and should
13 anything else arise, I will correct that during your examination.
14 Q. You also said there were two others. Are there any more
15 corrections, or is this it?
16 A. I would like to make a correction under paragraph 65. Give me a
17 moment, please.
18 In paragraph 65 of the statement, I said that Mr. Markac was
19 there, and I was referring to the general area, specifically somewhere in
20 the area of the village of Ramljane
21 could be understood as at the scene of the event. I heard that
22 General Markac was somewhere in the vicinity of that place at the time
23 when the units were supposed to arrive there, but this general area I was
24 referring to was some ten kilometres away from that location.
25 Q. That is on record, Mr. Turkalj.
1 What is your last correction?
2 A. At paragraph 65, I would like to add that following these
3 assignments - and this is something that isn't in the statement - I spoke
4 to the commander of the action at the time, Mr. Janic, who told me that
5 he had sent -- or, rather, that the unit had completed its assignment and
6 that he had sent it to its base.
7 Q. Is that all, Mr. Turkalj?
8 A. There's another one at paragraph 69.
9 In paragraph 69, I believe I was a bit at cross-purposes with the
10 investigators when it comes to the internal control department. I would
11 like to make a correction in that regard.
12 Within the sector of the special police, there existed the
13 internal control department. However, at the level of the minister,
14 there existed also the office for internal control which dealt with
15 matters of discipline and disciplinary procedure in relation to members
16 of the MUP and special police. Therefore, this department for internal
17 control which was organised within the sector of the special police dealt
18 with the issue of discipline only at the level of statistics that they
19 received regularly from commanders of units or administrations in
20 relation to disciplinary procedures; whereas, the office for internal
21 control dealt more with security issues concerning terrorist groups,
22 matters concerning the manpower and materiel and technical equipment for
23 the special police, and so on and so forth.
24 Q. Is that it, Mr. Turkalj, or are there any further clarifications
25 you would wish to make?
1 A. Those would roughly be all my corrections of the statement for
2 the time being.
3 Q. Now subject to those clarifications, if you were asked the same
4 questions that were asked of you by the members of the Office of the
5 Prosecutor in 2004 and again in 2005 today in court, would your answers
6 be the same, subject to the clarifications that you just provided? And
7 when I say same not verbatim but in terms of substance?
8 MR. KUZMANOVIC: Your Honour, I think, just for clarification,
9 are you specifically only speaking of this statement?
10 JUDGE ORIE: We're talking about this statement at this moment.
11 MR. KUZMANOVIC: Not any other statement, beyond the one that we
12 see on the screen?
13 MS. MAHINDARATNE: No, Mr. President, I asked in 2004 and 2005,
14 because 2005 is a video recorded.
15 JUDGE ORIE: Oh. Let me see, but you did not ask the witness
16 whether he received the transcript and that he has reviewed that. I
17 think the earlier portion was only about the 2004 statement.
18 MS. MAHINDARATNE: Let me ask that again, Mr. President. I was
19 under the impression that I did. I will ask him again.
20 JUDGE ORIE: Yes.
21 MS. MAHINDARATNE:
22 Q. Let me first ask you with regard to this statement, Mr. Turkalj.
23 Subject to the clarifications that you provided today, would your
24 responses, if you were asked the same questions that were asked of you in
25 2004, would your responses be the same substance-wise as reflected in the
1 statement which is in front of you on the screen?
2 A. I believe that the answers will be, if not the same, then very
3 similar. I will probably have to be recounting many of these issues from
4 my memory, despite the fact that they are in the statement, and since I
5 have taken the oath, I will, of course, be telling the truth.
6 MS. MAHINDARATNE: Mr. President, with regard to the transcripts,
7 the witness has testified here that he spoke the truth and the interview
8 was video recorded, so generally we don't go along the same way as we do
9 with a typed written statement. But I could ask him if he has reviewed
10 the transcripts and --
11 JUDGE ORIE: Yes, perhaps we could ask him.
12 MS. MAHINDARATNE:
13 Q. Mr. Turkalj, now you were also provided with the transcripts of
14 your videotaped interview along with the statement; were you not?
15 A. I have reviewed the transcripts.
16 Q. And is it is, in fact, a videotaped conversation between you and
17 members of the Office of the Prosecutor. Do have you any clarifications
18 to add to that, that can you recall?
19 A. I have reviewed the transcripts, and I don't think that there is
20 any need to clarify that.
21 Q. Thank you. So if you were asked the questions that were asked of
22 you in 2005 by the members of the Office of the Prosecutor, would you --
23 would your responses be the same as those reflected in those transcripts?
24 A. I believe that my answers will be the same.
25 Q. Thank you, Mr. Turkalj?
1 MS. MAHINDARATNE: Mr. President, I wish to move the statement
2 and the transcripts into evidence. The statement is already on the
3 screen. If it may be given an exhibit number.
4 JUDGE ORIE: Yes.
5 MR. MIKULICIC: No objections, Your Honour.
6 JUDGE ORIE: No objections from any of the Defence teams.
7 Mr. Registrar, the witness statement dated 3rd and 4th
8 February 2004 would be ...
9 THE REGISTRAR: Exhibit P1149, Your Honours.
10 JUDGE ORIE: Exhibit P1149 is admitted into evidence.
11 The witness statement dated the 11th March of 2005, which --
12 MS. MAHINDARATNE: There are three 65 ter numbers, Mr. President,
13 between three sections.
14 JUDGE ORIE: Three sections. They could be taken together, I
15 take it.
16 MS. MAHINDARATNE: Yes, Mr. President.
17 JUDGE ORIE: And that is transcript and video recording attached.
18 MS. MAHINDARATNE: That's correct, Mr. President. Shall I for
19 the Court give the 65 ter numbers?
20 JUDGE ORIE: Yes, please.
21 MS. MAHINDARATNE: 6161, 6162, and 6163.
22 JUDGE ORIE: They would receive together, Mr. Registrar, which
24 THE REGISTRAR: Exhibit P1150, Your Honours.
25 JUDGE ORIE: P1150 is admitted into evidence.
1 Please proceed.
2 MS. MAHINDARATNE: Thank you, Mr. President.
3 Q. Mr. Turkalj, your testimony is that you were in charge of the
4 artillery operations of the special police sector in the course of
5 Operation Storm.
6 Now, when you say you were in charge, were you directing all the
7 artillery groups and the batteries attached to all the special police
8 units in the course of the operation?
9 A. I directed the artillery along the axis of attack of the special
10 police, and in one particular battery out of the number you have
12 Q. When you say "in one particular battery," that is what my
13 question was. Were you directing in one particular battery, or when you
14 say you directed artillery operations to the special police, did you
15 direct the other groups and batteries attached to the other special
16 police units too?
17 A. I'd like to make a correction. I directed the artillery of the
18 special police with an addition of a -- an attached artillery battery
19 that was in the course of that day attached to the special police forces.
20 Q. And when you say an additional artillery battery that was
21 attached, you're referring to the HV battery that was attached for the
22 purpose of the operation to the special police, isn't it?
23 A. There was platoon from the HV. There was a gun platoon that was
24 attached to us, a Howitzer platoon as well as a multi-barrel rocket
1 Q. Yes. So we have -- now prior to the commencement of the
2 operation, did you receive a list of targets which were to be engaged in
3 the course of the operation either from Mr. Markac or Mr. Sacic?
4 A. A list of targets and potential targets is what I received from
5 the employees of the internal control department.
6 Q. And what were those targets, if you could recall?
7 A. The targets were along the front line of the enemy defence as
8 well as certain targets in depth behind their lines, command points,
9 railroad junctions, warehouses of equipment and pieces, communications
10 centre. That would be it more or less.
11 Q. Now, were those instructions given in writing?
12 A. They were clearly designated by the department.
13 Q. Where would those lists be archived now, do you know, since
14 you're still in the Ministry of Interior?
15 A. I can't provide an answer to that. I don't know whether such
16 lists exist.
17 Q. Now, at any stage as the person in charge of artillery, did you
18 send this list to either Mr. Markac or the chief of the sector,
19 Mr. Sacic, for their approval, or did they get involved in the planning
20 of the artillery operations with you?
21 A. The artillery operation and the targets we engaged fell under my
22 authority. Since Mr. Sacic was at the head of the staff of the special
23 police forces, I advised him of the targets, but that did not mean that
24 he necessarily needed to know where each particular target was.
25 Q. Now, along with this list of targets that you received, did you
1 receive any information from the inner control branch or any other
2 department regarding the presence or absence of civilians close to those
3 targets that you were supposed to engaged [sic]?
4 A. Once we received the targets, we still had no information as to
5 any civilians in that area.
6 Q. Mr. Turkalj, you say: We still had no information as to the
7 civilians in that area. Is that your information were that there were --
8 when civilians or that you did not receive any information regarding
9 civilians? It's not very clear. Can you clarify what you just said.
10 A. I had information on the military targets in that area, given the
11 tasks which had been assigned to us in the course of an attack during
12 Operation Storm.
13 Q. That's correct. Now, my question was: Did you have the any
14 information of the proximity of civilians or civilian settlements to
15 those targets?
16 A. To a certain extent I could see how close the civilian
17 settlements were to the targets themselves.
18 Q. Can you clarify that answer. What do you mean you could see?
19 You knew that there were civilian settlements close to the targets. Is
20 that what you said?
21 MR. KEHOE: It's going to be --
22 JUDGE ORIE: Ms. Mahindaratne, you are misrepresenting the answer
23 of the witness.
24 The witness said to a certain extent, I could see how close the
25 civilian settlements were to the targets themselves.
1 Your question gave a different version, although using the same
3 MS. MAHINDARATNE: I'm sorry, Mr. President, I did not intend to
4 misrepresent, I read it --
5 JUDGE ORIE: Perhaps I -- you put the question to the witness
7 Although is it by visual observation that you saw that,
8 Mr. Turkalj?
9 THE WITNESS: [Interpretation] No, not by visual observation. I
10 could see it on the map. I could see clearly where each and every target
11 in the area was.
12 JUDGE ORIE: Yes. Now perhaps just to -- you received maps. The
13 targets were indicated on the map?
14 THE WITNESS: [Interpretation] We received a map of the area that
15 had been charted by the internal control department with certain
16 information. I was the one to determine which targets were to be
18 MS. MAHINDARATNE:
19 Q. And the map that was provided to you by internal control
20 department, did that map -- what were the military targets
21 [indiscernible] in that map?
22 A. It is a topographic map of the area.
23 Q. And my question was were the -- the military targets indicated
24 depicted in that map that was given to you by the inner control branch?
25 A. I can repeat, that it was a topographic map of that area, with
1 all roads and facilities marked.
2 As for the targets, that is to say the information received from
3 the internal control department as to the exact lotion of the targets, we
4 used that to plot the targets. Perhaps I can clarify.
5 If a target was a cross-roads, and if it was presumed that new
6 fresh forces were being brought in through that juncture, then I
7 designated that as a target.
8 Q. Now, when you received -- when you listed out the targets, about
9 -- approximately how many targets did you end up with as targets to be
10 engaged in the course of the operation?
11 MR. KUZMANOVIC: Your Honour, that is a really broad question.
12 Targets where and at a what point in time. It is so expansive. If it
13 could be more specific, it would be appreciated.
14 JUDGE ORIE: We certainly will have to come to more specifics,
15 Ms. Mahindaratne. If you have already in your mind where to go then --
16 MS. MAHINDARATNE: [Overlapping speakers] ...
17 JUDGE ORIE: [Overlapping speakers] ... perhaps there's a
18 quicker way of going there.
19 Please proceed.
20 MS. MAHINDARATNE:
21 Q. Are you able to answer my question?
22 A. Yes, I am. But I can't tell you what the exact number of targets
23 was. There were many of them along the front line and then in the back.
24 There may have been over 100 targets.
25 Q. Now, well, I'll come to this later on, Mr. Turkalj, I think we'll
1 go area an area, and I'm no more interested in the targets in the area
2 behind the front lines, in the depth.
3 But can you tell me before we close for the day what were the
4 rules of engagement that you received in planning your artillery
5 operation, particularly with regard to engaging targets in the proximity
6 of civilian areas?
7 A. It is a very comprehensive question. It would probably take a
8 while for me to answer it.
9 Q. Let me ask you: Did you receive such instructions, either from
10 Mr. Markac or Mr. Sacic?
11 A. We received instructions from Mr. Sacic in the sense that
12 artillery support was to be provided to the special police forces along
13 our axis of attack. We all knew what the axis of movement were, that is
14 to say the main axis of attack and auxiliary lines of attack of the
15 special police forces in that area.
16 Q. [Previous translation continues] ... You misunderstood me. My
17 question is what were the rules of engagement as in were you informed as
18 to what you could target, what you could not, and in selecting particular
19 targets, what kind of precautionary methods you should take, that's what
20 I mean. Rules of engagement. Did you have rules of engagement in
21 considering artillery operations, within the special police?
22 A. There were no rules of engagement for artillery per se. What we
23 had in place was the tactics of artillery, based on which we acted upon
24 in the course of the operation.
25 MS. MAHINDARATNE: Mr. President, I note the --
1 JUDGE ORIE: Yes, you note the clock.
2 MS. MAHINDARATNE: Yes, Mr. President.
3 JUDGE ORIE: Yes.
4 Mr. Turkalj, we will adjourn for the day. We'd like to see you
5 back tomorrow morning in Courtroom I, and I instruct you that you should
6 not speak with anyone about your testimony, whether it is the testimony
7 you gave already, or whether it is testimony still to be given. And may
8 I further invite you during your examination to refrain from seeking eye
9 contact with others and focus on Ms. Mahindaratne or, at a later stage,
10 the one who examines you, to focus on that.
11 We stand adjourned, and we'll resume tomorrow, Friday, the 12th
12 of December, 9.00, Courtroom I.
13 --- Whereupon the hearing adjourned at 1.46 p.m.
14 to be reconvened on Friday, the 12th of December,
15 2008, at 9.00 a.m.