Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16200

 1                           Wednesday, 18 February 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.03 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

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

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

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

 9     Prosecutor versus Ante Gotovina et al.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             I was informed that there were some procedural matters to be

12     raised prior to the Prosecution calling its next witness.

13             MR. KEHOE:  Yes, Mr. President there are two issues.  The first

14     issue is the actual exhibit list of the Prosecution that has gone through

15     revisions as late as last night.  The approximate numbers of that are

16     148, possibly 149 documents.  Ninety-three of those documents are not on

17     the 65 ter list nor has there been any motion to add them to that list.

18     So, certainly, given that caveat we would object to the admission of any

19     one of those documents.  I don't know in you want to take them one at a

20     time.  That is the first issue.

21             I have before you the Mr. President, the four binders that

22     represent virtually all of the documents that are here.  I will say that

23     we got the first exhibit list from the Prosecution on the 9th of

24     February, missing 30 outstanding translations.  The next list came the

25     12th February with 29 outstanding translations.  Third list was the 16th,

Page 16201

 1     with 16 outstanding translations, and I do believe we got a few more last

 2     night.

 3             In any event, Judge, the vast majority of these exhibit, some, of

 4     course, have been used before, but a vast majority of them -- there been

 5     no motion to put them on the 65 ter lists.

 6             JUDGE ORIE:  Yes.

 7             Mr. Russo, this calls for an explanation, isn't it.

 8             MR. RUSSO:  Yes, Mr. President.

 9             With respect to documents that are not on the 65 ter list, our

10     intention was to address those at the time that we were either putting

11     them to the witness or moving these across the bar table.  Many of these,

12     in fact, the vast majority are attachments to the four documents drafted

13     by the witness.  And they are appended to his reports by him.  They are

14     cited in his reports, and we believe that, for that reason, also the

15     relevance and probative value of those they should be heard, but I was

16     attempting to address that at the time that they're going to be offered.

17             In terms of when we got them, when we disclosed them, there are a

18     few other documents which we received quite late.  There's, I believe,

19     only two or three of those that came since the motion was filed.  I think

20     with respect to the rest of the documentation there are many of the

21     artillery bar table documents, and I believe the court's specific

22     direction of those was to bring them in through a particular witness; and

23     at the time that the document was brought up we would have the discussion

24     when they were had, when disclosed, and whether or not they should make

25     it on to the 65 ter list.  So my intention was to address those document

Page 16202

 1     by document for the ones that I put to the witness, and for the bar table

 2     ones to simply offer the fact that they have been attached by the witness

 3     to his statements.

 4             And with respect to the outstanding translations, Your Honour, I

 5     believe there are only three left that we have not had translated up till

 6     now.  The iterations of the exhibit list have included as Mr. Kehoe has

 7     pointed out a number of translations as we have continued to get them in

 8     since the time they were submitted.

 9             MR. KEHOE:  May I have a brief response Mr. President.

10             The first issue, of course, is that just two days ago, I believe,

11     maybe three, but I think it was two days ago, the Prosecution filed a

12     motion before the Chamber to add a document to the 65 ter list.  The

13     question, the rhetorical question, is how come no such motion was made

14     with respect to the rest of these documents, the rest of the 93.

15             When the Prosecution filed its motion to add Mr. Rajcic to the

16     witness list in 16 December 2008, the Prosecution was in possession of

17     all of these documents absent two.  And the two that were not in their --

18     absent three, excuse me, the two not in their possession were

19     65 ter 7144, and 65 ter 7145.  The last document that was -- the motion

20     was filed on two days ago, the representation of the Prosecution was that

21     it was not in their possession.

22             The rest of those documents were, in fact, in the possession of

23     the Prosecutor.  Now, when Your Honours -- the Chamber in its decision of

24     6th February, 2008, granted the request of the Prosecutor, A, to allow

25     Mr. Rajcic to testify; and B allowed the Prosecution to add four

Page 16203

 1     documents to its 65 ter list.  Your Honours commented in two different

 2     occasions on paragraph 21 of that document, that -- the documents had

 3     "only recently become available to the Prosecution."

 4             But, two, documents are limited in number and of are relative

 5     brevity.  That's in paragraph 22.  Now, clearly, Your Honours, when

 6     Your Honours were allowing the Prosecution to add these additional four

 7     exhibits, certainly Your Honours were not contemplating the array of

 8     documents that were not in part of the -- not part of the motion, nor

 9     have been put on the exhibit list.

10             The reality of the situation is that as we move through here, we

11     simply don't know what the Prosecution is intending to do.  Let us put

12     aside the fact that they were supposed to get an exhibit list 14 days

13     prior to this witness testifying, but that didn't happen either.

14             Now, this statement by counsel with regard to the bar table,

15     Your Honour was very specific about what Your Honour wanted on that

16     score, and Your Honours' opinion -- as an opinion and commentary,

17     frankly, Judge, it's on 16 December 2008 at page 13789 and 90.  Quite

18     clearly, Your Honours did not want artillery documents put over the bar

19     table.  You wanted -- Your Honours specifically requested that the list

20     of artillery documents be circumscribed, limited in number, and presented

21     to a witness so Your Honours could get full information and be able to

22     digest the documentation before it.  Notwithstanding that, the

23     Prosecution has attempted, once again, put these matters over the bar

24     table.

25             The reality of the situation is, Judge, that the Prosecution

Page 16204

 1     could have made some attempt to address this as early as last December,

 2     and they chose not to.  The rule presumes prejudice to the Defence, and

 3     there is prejudice.  We simply can't defend this case on the fly while we

 4     are trying to figure out what the Prosecution is attempting to do.  I put

 5     before Your Honour the binders because I wanted Your Honours to take a

 6     look at what we have to deal with and scramble through over the past

 7     several days as this rolling disclosure on the part of the Prosecution

 8     comes across our transom literally on a daily basis.

 9             The bottom line of this, Judge, is that the Prosecution has

10     grossly violated the rules, has made no attempt to abide by your Your

11     Honours' instructions that have been previously given, and at this stage

12     of the proceedings, the Prosecution has severely prejudiced the Defence

13     in its preparation of this case in the methodology they close to employ.

14     It's as simple as that.

15             JUDGE ORIE:  Mr. Russo.

16             MR. RUSSO:  I want to address two point, Your Honour.

17             First, with respect to the artillery documents, I didn't indicate

18     at any time that we were going to be offering the artillery documents

19     across the bar table.  I don't know where that has come from.

20             With respect to the number of documents, the Court pointed out

21     there were 93 artillery documents in the first motion.  We can see from

22     my exhibit list now I've cut that number down to 14.  Those of which I

23     intend to show to the witness will be offered.  Those which I do not show

24     to the witness will not be offered.

25             The size of the exhibit list, Your Honour, is merely a reflection

Page 16205

 1     of the fact that I don't know what the witness is going to say, in

 2     response to any of my questions, and I needed to give the Defence

 3     obviously notice of what I would show him, depending on what answers he

 4     gives me.

 5             So it is by no means and indication I will be offering every

 6     single document on this list to the Court in evidence.

 7             The second matter I would like to address is the claim of

 8     prejudice.  I believe it ignores the reality of the situation,

 9     Your Honour, that this witness, not only is a Defence witness, but, in

10     fact, worked on the Defence team.  The Defence had notice at least as

11     late as the filing of our motion, which documents were appended to

12     Mr. Rajcic's statements since he listings them in his reports.

13             I don't believe the Defence has been prejudiced in terms of

14     knowing what documents the witness himself was relying on in drafting

15     those reports.  I don't believe it's accurate that they were unaware that

16     we may seek to use what the witness indicates was the basis for the

17     statements he made in those reports which are the attachments; and I

18     don't believe it's reflective of reality that they were unprepared to

19     deal with the evidence of this witness.  In fact, the Gotovina Defence is

20     the only party in this courtroom to my knowledge that knows what the

21     witness is going to say in response to any questions.  So I don't think

22     the Court should be ignoring the fact that in this case, in these

23     particular circumstances it is the Prosecution that is at an

24     informational disadvantage.

25             Thank you.

Page 16206

 1             MR. KEHOE:  Mr. President, just -- and I don't mean to turn this

 2     into a debating society.  If we go to the most recent exhibit list that

 3     has been provided by the Prosecution.

 4             JUDGE ORIE:  Yes.

 5             MR. KEHOE:  And we can turn -- put it on Sanction, if we can and

 6     maybe I'm misreading this, but I don't think so.  If we could put this on

 7     Sanction with the assistance of the court usher.

 8             Quite clearly there is a designation in there by the Prosecution

 9     that we're talking about HV artillery bar table documents.  That's what I

10     was referring to.  I didn't imagine this when I was talking about their

11     approach for putting bar table documents.  I mean the bottom line for

12     this violation of the rules is that the burden is on the Prosecution to

13     justify their conduct in this regard.  This is it not an exercise where

14     the Defence has to show how or why they were not prejudiced.  The

15     presumption from the rule is that we were prejudiced, and there has

16     simply been no reason offered by the Prosecution as to why they didn't do

17     what they were supposed to do as early as -- well, as early as last

18     December when they made the motion to the Chamber to add the four

19     document to the list as well as Mr. Rajcic.

20             Now with regard to the commentary of Mr. Rajcic being a part of

21     the Defence team, the person that can speak to that most clearly for the

22     Chamber is Mr. Misetic, so I would like to turn the floor over to him.

23             JUDGE ORIE:  Mr. Misetic.

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

25             I'm surprised to hear that comment.  Mr. Rajcic, first, the

Page 16207

 1     representation is that he a Defence witness.  He would have been a

 2     Defence witness had the Prosecution not called him.  He is a Prosecution

 3     witness and that needs to be made clear right now.  We are in the

 4     Prosecution's case in chief and that needs to be again spelled out.  You

 5     call the witness, he is yours.

 6             The second issue is with respect to him being a member of the

 7     Defence.  He was not a member of the Defence.  He was working with the

 8     Defence in the anticipation that he would eventually be a Defence witness

 9     in the case.  If he were a member of the Defence then we would have a

10     Rule 70 (A) issue here, which is whether he can be called by the

11     Prosecution at all because Rule 70 (A), of course, talks about members of

12     the Defence team if he -- if it were as they say, then communications

13     with the Defence, et cetera, would be --

14             JUDGE ORIE:  Communications with the Defence but, of course, I do

15     not understand his testimony to be focussed primarily on his

16     communications with members of the Defence team, but rather than his

17     knowledge of what happened in 1995.

18             MR. MISETIC:  I would have disagree you, Mr. President.  That

19     should be the focus of this.  The pretext under which though he was added

20     to the witness list was knowledge of documents in a reconstruction that

21     he did for the Croatian government.  There are references in his police

22     interview that he was working with the Defence.  Some of the information

23     he may have gotten --

24             JUDGE ORIE:  Let's not discuss that in detail.  But I got that

25     impression from --

Page 16208

 1             MR. MISETIC:  Just one example, Mr. President, you recall that

 2     last Friday we had a debate about whether Mr. Rajcic gave documents to us

 3     or didn't give documents, whether they were returned to him if, in fact,

 4     it turns out the Prosecution now contends that he was a member of the

 5     Defence at that time then Rule 70 (A) would apply to that entire

 6     discussion, which is my point.  I'm saying he was never a member of the

 7     Defence, and that's why we never raised it.

 8             Thank you, Mr. President.

 9             JUDGE ORIE:  Let's leave it to that at this moment.

10             Mr. Kehoe, I did not hear any response in relation to the

11     problems Mr. Russo raised in relation to not knowing what the witness

12     will testify, what his answers will be in question A, B, or C and that,

13     therefore, the list is longer than one would expect, if -- if the witness

14     would have cooperated in preparing for his testimony.

15             MR. KEHOE:  There are two issues there, Judge, that per se, the

16     objection about the length of the list I can understand, or the statement

17     about the length of the list, I certainly can understand, allowing for a

18     full array of documents.

19             My objection precedes that.  Why was this list not brought to the

20     Chamber's attention when the asked to, A, add Mr. Rajcic to the list and

21     also to amend the 65 ter list.  That would have been brought very early

22     on, the list of documents that the Prosecution thought they would have to

23     deal with.  Now I emphasise again that absent three documents, all of

24     those documents were in the possession of the Prosecution.  And that

25     simply no reason, the length, no reason why the Prosecution could not

Page 16209

 1     have brought this to the Chamber's attention.

 2             JUDGE ORIE:  Yes.  What you're do something you're reiterating

 3     your original argument, your not --

 4             MR. KEHOE:  I was just attempting.  No I mean if -- if -- if

 5     you're saying --

 6             JUDGE ORIE:  [Overlapping speakers] ...  but, Mr. Russo, I would

 7     like to hear from you.

 8             Mr. Kehoe says what, no bar table, no determination of what will

 9     be bar tabled, what will not be bar tabled.  I see it on the list.

10             MR. RUSSO:  Your Honour, that was probably simply a

11     miscommunication.  I was just identifying those documents as the ones

12     which had been offered across the bar table -- as a bar table submission,

13     simply that portion of the exhibit list comes from what had been offered

14     as bar table documents.  I indicated in an e-mail to the Defence when I

15     first sent over the first exhibit list what would be offered across the

16     bar table, and those were the attachments to Mr. Rajcic's four documents.

17             So I thought I made that clear.  But if not, it is my fault.

18             JUDGE ORIE:  If you're talking about the four documents you are

19     talking mainly about the items in bold on the list.  That's the second

20     7055, and then a bit later on --

21             MR. RUSSO:  That's correct, Your Honour.  All of the documents in

22     bold are the four which I'm referring to.

23             JUDGE ORIE:  And they were all on the 65 ter list.  You will

24     forgive me for not having the whole list in mind.

25             MR. RUSSO:  Those four documents were admitted to the 65 ter list

Page 16210

 1     pursuant to the Court' decision on our motion to add Mr. Rajcic and his

 2     four documents.

 3             JUDGE ORIE:  Yes.  And you say that all the other documents are

 4     mainly annexes to those reports.

 5             MR. RUSSO:  That's correct, Your Honour.  Several of those

 6     annexes you will notice have actually already been admitted as exhibits.

 7     Some of them are on the 65 ter list.  Many of them are not.

 8             JUDGE ORIE:  Yes.  But still attached to reports that are on the

 9     65 ter list.  Are they --

10             MR. RUSSO:  That's correct, Your Honour.

11             JUDGE ORIE:  -- really attached to it or only a reference made to

12     it.

13             MR. RUSSO:  Well there's -- technically both.  They came to us as

14     actual attachments to the documents but also you will notice when I bring

15     up the documents that they are listed at the end of each document; there

16     is a list of attachments and each of those attachments is referenced in a

17     particular portion of the reports where the witness relies on that

18     document.

19             JUDGE ORIE:  Yes.  And were disclosed as attachments to those

20     reports.

21             MR. RUSSO:  I believe these were all disclosed when the Court

22     made the reports inter partes, so they were disclosed in bulk in terms of

23     what we received through the 54 bis proceedings.

24             JUDGE ORIE:  Mr. Kehoe.

25             MR. KEHOE:  [Microphone not activated] ... talking past each

Page 16211

 1     other, but the documents that I just put on the screen that are the bar

 2     table documents are not attachments.  Attachments to Mr. Rajcic report --

 3             JUDGE ORIE:  No.  Let's one by one.  First of all, would you

 4     agree with Mr. Russo on the documents which do not appear now as bar

 5     table documents.  That is on my list, but I don't know whether there is

 6     any newer list.  I've got a list without a date, as a matter of fact.

 7     But where the first one, two, three, four, five, almost six full pages,

 8     give -- we start with an Official Note.  Then we have 7055, Rajcic

 9     Analysis of Artillery Actions, and then it starts with annexes, annexes,

10     annexes, up to Annex 25.  Then 7064, Rajcic Analysis of Artillery use at

11     the 1st Corps Level.  And then we have attachments, attachments, starting

12     with 6 A -- then 9 A.

13             The next one, 7067, Rajcic, is Storm Reconstruction Analysis of

14     Artillery, and then a list of attachments; and then attachments one, two,

15     three, four, et cetera, et cetera, going up to eight ... up to attachment

16     35.

17             Then we have 7102, list of attachments for 4 Guards Brigade

18     portion of the reconstruction, and that starts with attachment 2; and

19     then a long list of attachments up to where we come to the HV artillery

20     bar table documents.

21             I would first like to know whether you have any comments on what

22     Mr. Russo said in relation to these attachments.  So we stop at 4506.

23             MR. KEHOE:  My comment is that --

24             JUDGE ORIE:  [Overlapping speakers] ... just whether what he says

25     is correct or incorrect.

Page 16212

 1             MR. KEHOE:  That these were listed in Mr. Rajcic's reports, the

 2     answer to that is yes.  They were not listed in the motion to the Chamber

 3     that they filed in December to add them.

 4             JUDGE ORIE:  Were they attached to the Rajcic report.

 5             MR. KEHOE:  No -- not in what was filed with the Chamber.

 6             JUDGE ORIE:  Were they disclosed to you as attachments to those

 7     reports.

 8             MR. KEHOE:  We had some of the attachments already, yes they

 9     were.  But they were not disclosed as exhibits to be used.

10             JUDGE ORIE:  No.  Were they -- you gave two answers first that

11     you had some already --

12             MR. KEHOE:  Yes.

13             JUDGE ORIE:  -- which was not my question.  My question was

14     whether disclosed to you as attachments to the reports, whether you had

15     already some of them is another matter.  Whether they were disclosed as

16     exhibits to be used is also another matter.  My question was whether they

17     were disclosed to you as attachment of -- to the reports that were

18     disclosed to you.

19             MR. KEHOE:  Not initially.  When they --

20             JUDGE ORIE:  When were they.

21             MR. KEHOE:  That -- that -- that would have to go back to the

22     Prosecution as to when they made these disclosures because the disclosure

23     were not made at the time.

24             JUDGE ORIE:  So what remain then to be seen is when these

25     attachments were disclosed, even if not disclose as exhibits to be used,

Page 16213

 1     even you may have had some already in your possession, but we do not know

 2     when they were disclosed.

 3             Mr. Russo do you have an answer to that.

 4             MR. RUSSO:  I do, Your Honour.  As we indicated, some of these

 5     documents were, in fact, used.  You'll notice the ones which are

 6     exhibits, of course, have the exhibit numbers next to them.

 7             JUDGE ORIE:  This again is not an answer to my question because I

 8     was talking about disclosure.

 9             MR. RUSSO:  And they were disclosed not all at the same time

10     because we did have, as Mr. Kehoe indicates, we also had some of these in

11     our possession and those had been disclosed even before we received

12     Mr. Rajcic's reports.

13             However, many of them -- most of them were disclosed in

14     December of 2008, the 11th of December, which was a couple of days before

15     we filed the motion to add the documents and to add Mr. Rajcic.  As a

16     matter of fact, the vast majority of those I see were disclosed on

17     11 December 2008.

18             JUDGE ORIE:  Any comments on that.

19             MR. KEHOE:  I would have to go back to the list with exactly when

20     the disclosures took place.

21             JUDGE ORIE:  You reserve your position on the date of disclosure.

22             MR. KEHOE:  I do believe that I can give you an accounting of

23     that.  Yes, I will disclose that position.  But I still think

24     Mr. President and I --

25             JUDGE ORIE:  Yes.  But you think you're starting argument again

Page 16214

 1     I'm just seeking at this moment to establish facts, nothing else.

 2             MR. KEHOE:  I would have to give you the list of when those

 3     disclosures came our way.

 4             JUDGE ORIE:  Yes.  Of course, what the Chamber would prefer is

 5     that Defence and Prosecution would agree on what was disclosed when.

 6     Yes, that, of course -- otherwise we start hearing 12th of December, no,

 7     15th of December.  Of course, the Chamber, without getting access, full

 8     access, to all of your documentation could not even establish when it was

 9     disclosed, so if the parties would say agree on that --

10             MR. RUSSO:  Your Honour, I can send a spreadsheet to the Defence,

11     which will indicated the dates we believe all of these were disclosed and

12     see where the disagreement is.

13             JUDGE ORIE:  We'll see whether there's any disagreements.  So we

14     have now at least established, apart from what the consequences would be,

15     how the first six pages, how these attachments were disclosed, whether

16     that's late or not is another matter.

17             Now we move on to the six items -- no, we have now - let me just

18     have a look - then we have 14 items of which three apparently are already

19     in evidence, called artillery bar table documents.

20             Mr. Russo, first of all, do you want to bar table them still or

21     is that just a reference to what has been done in the past.

22             MR. RUSSO:  It is a reference to what has been done in the past,

23     Your Honour, it was not my intention to offer these particular documents

24     across the bar table.

25             JUDGE ORIE:  Now disclosure of these documents when and how were

Page 16215

 1     they disclosed.

 2             MR. RUSSO:  They were all disclosed prior to the initial motion

 3     to add them across the bar table.  So my position on that is the

 4     disclosure was made prior to that motion and our intention to offer those

 5     onto the 65 ter list was also obviously made in that motion.  The Court

 6     gave specific direction on denying that motion without prejudice and

 7     indicated that the documents should be put to the witness individually at

 8     that time.

 9             JUDGE ORIE:  Preferably, preferably.  That's a word I missed in

10     the Chamber's ruling -- the Chamber's guidance on that matter.

11             So you say these documents to the extent not yet in evidence, it

12     was clear that we wanted to use them as exhibits on from a certain moment

13     and then you were more or less stopped or discouraged from dealing with

14     them as you intended to do, and you rather deal with them in the way

15     suggested by the Chamber.

16             MR. RUSSO:  Yes, Your Honour.

17             JUDGE ORIE:  Then we move to the Official Notes of movement of

18     use.  61 --

19             MR. RUSSO:  Those I intended to put to the witness, Your Honour.

20     I do understand this is an objection with respect to that, but my

21     intention was to over those individually.

22             JUDGE ORIE:  Individually.  These are documents dating from, if I

23     could say, Autumn 2008.  When were they received, when were they

24     disclosed.

25             MR. RUSSO:  These were received in the -- along with the

Page 16216

 1     submissions from Croatia, in the 54 bis proceedings.  They were disclosed

 2     on the 10th of February of 2009, Your Honour.

 3             JUDGE ORIE:  So very recently.

 4             MR. RUSSO:  Yes.

 5             MR. KEHOE:  If I may, Mr. President I believe that these

 6     documents were disclosed to the Prosecution prior to the filing of the

 7     motion to add Mr. Rajcic to the witness list, if my memory serves me

 8     correctly.

 9             JUDGE ORIE:  Yes.

10             MR. RUSSO:  That is consistent with what I indicated,

11     Your Honour.

12             JUDGE ORIE:  Is that consistent?  You said -- let me just have a

13     look.

14             Yes, you said they were received along with the submissions from

15     Croatia, and they were disclosed on the 10th of February.

16             So you do agree on that, that they were --

17             MR. KEHOE:  I take counsel's word for it that it was disclosed in

18     February.

19             If I may just -- if I can comment on that, just briefly on these,

20     these are notes that are taken pursuant, of course, to Your Honours'

21     instructions to Croatia in the Rule 54 motion.  This issue on these types

22     of notes has been argued.  Your Honour has made a ruling on this

23     previously precluding this particular evidence from coming in.  A ruling

24     going to the -- to Croatia to go out and find these, these particular

25     interviews were done pursuant to that instruction and now that being --

Page 16217

 1     based on your instructions by Your Honours instruction, they are now

 2     being used by the Prosecution as clear hearsay coming in as witness

 3     statements to be put to this witness.  It is clearly improper and

 4     Your Honour has so instructed previously.

 5             I believe Mr. Misetic has argued this issue previously, and he

 6     may want to add some clarity to that point, if I may.

 7             MR. MISETIC:  Yes, Mr. President.

 8             JUDGE ORIE:  We have -- I remember that we have several decisions

 9     on Official Notes.  Sometimes they were admitted into evidence, sometimes

10     not admitted into evidence for various reasons, so if you could focus on

11     these.

12             MR. MISETIC:  The reason is simple.  The ones that have been

13     admitted in the past were admitted because they were not taken for the

14     purposes of these proceedings.  These interviews were specifically taken

15     for purposes of these proceedings.

16             Furthermore in the Chamber's ruling on the Rule 54 bis and the

17     Rule 70 assertions, the Chamber made the explicit finding that the

18     documents did not have Rule 70 protection because they were compelled and

19     as a result once they're compelled, they can come in.  If, in fact, now

20     these statements don't enjoy Rule 70 protection because the Chamber says

21     they were compelled to be taken, then there can be really no dispute that

22     they were taken for the purposes of these proceedings.  And if so, as

23     such, they're inadmissible.  They're not taken for any criminal

24     proceeding in Croatia and if the Prosecution wishes to asserted that

25     these were taken in the context of some other proceeding, then they can

Page 16218

 1     do that.  But these particular statements were taken part of Croatia's

 2     investigation under the eight --

 3             JUDGE ORIE:  That's an interpretation of -- certainly there was a

 4     link with these proceedings because it was the result of a 54 bis

 5     situation, so to say, whether they were taken to serve as evidence,

 6     whether that was the primary purpose or whether they were taken for the

 7     purpose of explaining what was done at the time in order to seek evidence

 8     is a matter still to be considered.  The reason why I'm asking your

 9     explanation is that I find this situation, but I will discuss it with my

10     colleagues, rather specific and not exactly the same as any of the other

11     Official Note issues.  We had the ones -- statements taken by the

12     accused, for example, which was a very specific type.  We had other,

13     whether we taken for clearly Croatian proceedings.  Here we have a -- I

14     would say a new situation which we'll have to consider and it is

15     appreciated that you have given your interpretation of what they were

16     taken for.

17             MR. MISETIC:  Yes.  If I may just add then, Judge, if there's any

18     doubt about that then I think there is a duty to inquire of Croatia as to

19     what their position is because this is again tied to the Rule 70 issue.

20             So rather than us speculate on it and allowing it to come in, you

21     would have to have some confirmation then that, in fact, these were not

22     taken for the purposes of these proceedings, and as I indicated it is my

23     understanding that that is, in fact, the very basis upon which the

24     Rule 70 protection was denied.

25             Thank you, Mr. President.

Page 16219

 1             JUDGE ORIE:  Mr. Russo.

 2             MR. RUSSO:  Just briefly, Your Honour.  I think Mr. Misetic

 3     indicated that these statements were not taken for a purposes of a

 4     criminal proceeding in Croatia.  The documents themselves belie that.

 5     There is a criminal investigation currently ongoing in Croatia for

 6     purpose of which these statements were taken.

 7             Now to attempt to now link that with the Court's 54 bis order is,

 8     I believe, skipping a step.  This Court did not order Croatia to conduct

 9     a criminal investigation.  This Court simply ordered Croatia to broaden

10     and intensify its investigation for certain documents.  It was Croatia's

11     decision how to proceed in doing that, and the decision they chose was to

12     institute a criminal investigation under their domestic laws.  These

13     statements were not taken for the purposes of this proceeding but were

14     taken, I believe Mr. Misetic's attempting arguing were taken for purposes

15     of the 54 bis proceedings which would suggest to the Court is not the

16     same thing.

17             MR. MISETIC:  Mr. President, if it is not the same thing then we

18     go right back to the initial issue that has been litigated now for the

19     past two months.  They are now being brought into this proceeding

20     precisely contrary to everything they argued for two months which was

21     argued specifically that Rule 70 and Rule 54 apply because those

22     statements were taken for the Rule 54 proceeding and not for this

23     proceeding.  They have argued to the contrary.  And you've now allowed it

24     to come in and cross over into this proceeding.

25             The second point is he has now acknowledged that Croatia was

Page 16220

 1     doing this pursuant to the Court's order to broaden the investigation.

 2     Any suggestion, I mean, putting aside now any technical arguments.  Let's

 3     look at this in reality, what really took place here, and if we honestly

 4     look at this and say what took place is that Croatia took these

 5     statements pursuant to the requests of the Office of the Prosecutor and

 6     this Trial Chamber's order.

 7             JUDGE ORIE:  I think, as a matter of fact, let's take in the

 8     reality, you're apparently describing two different realities, and the

 9     Chamber will have to consider which is the reality which guides us.

10             The Chamber is sufficiently informed about that.

11             Then we have other --

12             MR. KEHOE:  If I can have just one last comment on this, Judge.

13             JUDGE ORIE:  Yes.

14             MR. KEHOE:  If, in fact, these were in the possession of

15     Prosecution going back to sometime prior to file motion on 16

16     December 2008, and while they were adding Mr. Rajcic to the witness list

17     it begs the question if they wanted testimony from these individuals that

18     are listed in these in these Official Notes, why their names were not

19     added to the list as well.  They chose not to but now attempt to get some

20     back-door information in through Official Notes without calling those

21     people before the Chamber as is clearly the proper procedure.

22             JUDGE ORIE:  Mr. Russo, exclusively on this last observation.

23             MR. RUSSO:  Yes, Your Honour.

24             These note were put on this list again as I indicated with

25     respect to many of the documents because I don't know what Mr. Rajcic

Page 16221

 1     intends to say.  These witnesses have made indications of what happened

 2     at certain time during the operation or before, and I intend to put those

 3     to him to the extent that he is it giving us a different version of

 4     events.  So I'm not saying I'm going to be offering him wholesale, but I

 5     don't know what he's going to say.  I don't know where he's going to go.

 6     I'm simply trying to provide notice to the Defence that this may be one

 7     of the documents that I confront the witness with.

 8             JUDGE ORIE:  Then we have a last series, other relevant

 9     documents.  Many of them dating from the 1995 -- any issue there, as far

10     as being on the 65 ter list?

11             MR. RUSSO:  Well, as Your Honour can see, I don't know if you

12     have the same version as I have.  The italicised ones the 65 ter numbers

13     which are italicised.

14             JUDGE ORIE:  I have one there and that's P461 then are you

15     working from a list which is not --

16             MR. RUSSO:  There are actually several.

17             JUDGE ORIE:  But if the list has been updated up till this night

18     I might have missed the last one.

19             MR. RUSSO:  A number of those are on the 65 ter list a number are

20     not, and a number are in fact admitted exhibits.  Again these were placed

21     on here in an attempt to provide as much notice as possible as to what I

22     might be using with the witness depending on what he says with,

23     Your Honour, the exception of several photographs and maps which I've

24     lately provided to the Defence on the new exhibit lists, indicating that

25     I might want the witness to use those maps to indicate certain locations.

Page 16222

 1             JUDGE ORIE:  Yes.  Any response --

 2             MR. KEHOE:  Our position remains the same, Judge.  There is no

 3     indication that these documents were not part of the Prosecution's array

 4     of documents going back months and months, and there's simply been no

 5     good cause shown by the Prosecution why it wasn't added to its motion to

 6     put it before the Chamber as adding to the 65 ter list.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  The Chamber has decided that we'll deal with the

 9     matter on a case-by-case basis.  There is no way of giving a general

10     ruling on the matter.  Apart from that, the Chamber is not aware of what

11     actually will be used and will not be used.  The Chamber has heard the

12     objections.  It may be clear that the Chamber always wanted to know when

13     it was received, when -- whether it was put on the 65 ter list, whether

14     these were attachments to documents that were on the 65 ter list, when it

15     was disclosed.  So if there's any issue, we don't have to repeat the

16     whole story but just pointing at received then, disclosed then,

17     et cetera.  That will then give an opportunity for the Chamber to -- to

18     rule on the individual documents.

19             Any other matter at this moment.  Mr. Kehoe.

20             MR. KEHOE:  Yes, Mr. President, just briefly.

21             As Mr. Misetic informed you, I believe last week during the

22     proceedings that we have taken a 92 ter statement from Mr. Rajcic.  We

23     have filed a motion before the Chamber.

24             JUDGE ORIE:  We have seen that.

25             MR. KEHOE:  And guidance from the Chamber whether or not the

Page 16223

 1     Chamber wants to deal with it at the outset or wait until

 2     cross-examination and my request is simply one of information and

 3     guidance.

 4             JUDGE ORIE:  Mr. Russo, what -- first of all, we have not

 5     received a response to that motion yet, and if you would like to orally

 6     respond to it, then we'd like to hear from you.  And if that response

 7     could include the timing of a decision on admission, whether we should do

 8     that right at this beginning, whether we should do it at the beginning of

 9     the cross-examination, which might cause you some problem because you

10     could prefer to a statement being in evidence, saying you would have to

11     do it all in re-examination when it has become evidence.

12             I've got no idea on how would you like to proceed with that.

13             MR. RUSSO:  Yes thank you, Mr. President.

14             My thinking on this is perhaps a bit different.  First of all, I

15     don't object to the statement itself coming into evidence.  However, I do

16     believe that it should be offered by the Defence during the

17     cross-examination, and I do realise that I can't deal with on my direct.

18     I didn't intend to deal with it on my direct.  My position with respect

19     to that is this is -- it's clearly a statement by the witness, offered by

20     the Defence as part of their positive case.  It does not arise from my

21     direct examination.  It does not attempt to impeach the evidence of the

22     witness, which I will be adducing on direct examination.  So in that

23     sense, they are leading that evidence.

24             I would asking to cross-examine the witness on that statement

25     after the Defence puts it in.

Page 16224

 1             JUDGE ORIE:  Any comment on this suggestive course of proceeding.

 2             MR. KEHOE:  Your Honour will be guided by -- Your Honour dictates

 3     will gladly put it in on cross --

 4             JUDGE ORIE:  [Overlapping speakers] ...  whether you agree with

 5     the cause of action suggested by Mr. Russo or that you have any reasons

 6     to say, No, it should be dealt with immediately at the beginning.

 7             MR. KEHOE:  I think as a practical matter I think it should be

 8     dealt with at the beginning because that is the evidence that he is

 9     bringing before the Chamber and have it before the Chamber, and it's in

10     evidence, and we can take it from there.  He can question based on that

11     document.  He can do what he -- anything he wants to do during the course

12     of his direct examination with that document in evidence.  That's, I

13     believe, is the proper way to handled this.  The document comes before

14     the Chamber, the Chamber admits it, and counsel can use that document

15     with his direct examination in any way he sees fit right now.

16             JUDGE ORIE:  I see that's a very practical suggestion.  At the

17     same time, I think Mr. Russo is focussing more on what the position of

18     this witness is, that the evidence this witness will bring will -- will

19     be known to the Chamber, once we have heard his testimony in-chief.

20             Usually, of course -- no, I would say under Rule 90 (H) there is

21     quite a large latitude to cross-examine witnesses also on matters which

22     have not been raised in-chief.  So, therefore - and I do understand that

23     Mr. Russo doesn't complain about that - but he says the right order is

24     first examination-in-chief, then cross-examination, even if most of it is

25     under Rule 90 (H) and is not in any way -- not directly related to what

Page 16225

 1     the witness will testify in-chief, and then I have an opportunity to

 2     re-examine the witness on matters raised under Rule 90 (H) in

 3     cross-examination.  He says that's the proper procedural order.

 4             Let's just -- no, let me not -- perhaps refrain from any

 5     speculation on what could happen.  Several scenarios could be imagined.

 6             MR. KEHOE:  I submit to the Chamber that the proper way to handle

 7     this is to bring this gentleman's statement before the Chamber at the

 8     earliest opportunity and admit it into evidence.

 9             The Prosecution then has plenty of time through this array of

10     documents to ask questions that they want in conjunction with this

11     statement and dovetailing it with the documents that they are trying to

12     use in their examination.  That is the most efficient and expeditious and

13     certainly the clearest way to bring all of this information to the

14     Chamber as efficiently as possible.  As opposed to going back and forth

15     and back and forth by getting a piece of the story based on this, and

16     then the witness saying, You know there is my statement out there that is

17     saying that, let's just talk about them together.  Let's get it all

18     together at the earliest opportunity to the Chamber and have the

19     Prosecution deal with it now.

20             The reason why we made this motion and brought it to their

21     attention as quickly as possible is so that they could do exactly that.

22             JUDGE ORIE:  The Chamber will consider how to proceed.

23             Any other matters that the Chamber will have to decide before we

24     proceed?

25             Then the Chamber will take not much time but perhaps a couple of

Page 16226

 1     minutes to consider how to proceed.

 2             Everyone should remain standby.

 3                           --- Break taken at 9.51 a.m.

 4                           --- On resuming at 10.02 a.m.

 5             JUDGE ORIE:  The Chamber has given some thorough thought to the

 6     issue Russo proceeding or Kehoe proceeding, to keep it short.

 7             The Chamber is aware of the practical advantages of having

 8     everything in evidence right from the beginning including the statement.

 9     At the same time, for the full transparency of the positions of the

10     parties while examining the witness, whether examination-in-chief,

11     whether cross-examination, whether re- examination, the Chamber has,

12     after thorough deliberation, decided that we will follow the suggestion

13     by Mr. Kehoe.

14             Mr. Kehoe, this suggested course of action also, of course, has

15     some limitations.  I mean, you don't have in evidence the statement of --

16             MR. MISETIC:  Mr. President, I think you meant to say you were

17     taking the position of Mr. Russo.

18             JUDGE ORIE:  Yes.

19             MR. MISETIC:  Okay.

20             JUDGE ORIE:  I'm sorry, yes.  You see how close a finish it must

21     have been in our deliberations.  Yes, I apologise for this -- well, let's

22     say blunder, instead of mistake this time.

23             Mr. Russo, it also puts certain limits on what can you do in

24     examination-in-chief because the statement of the witness, the 92 ter

25     statement is not in evidence.  At the same time, of course, the Chamber

Page 16227

 1     will be better aware what, in this statement, will be in response to your

 2     examination-in-chief, of course.  We don't know yet what you want to

 3     cover in your examination-in-chief and that may have consequences also

 4     for the later stages for the re-examination.

 5             MR. RUSSO:  I understand Mr. President.

 6             JUDGE ORIE:  Yes.

 7             Then Mr. Kehoe.

 8             MR. KEHOE:  Just a couple of issues, Mr. President, certainly the

 9     documents that he tenders at this point over the bar table or through

10     this witness are all going to come into -- as part of the

11     examination-in-chief, and that being the case, the statement that we have

12     before the Chamber is going to meet in large part, the evidence that I

13     suspect is going to be presented by the Prosecution.

14             Now, if there is yet -- Mr. Russo thinks there is something else

15     out there, then I think that should be identified to the Chamber.

16     Because at this point given the fact that Mr. Rajcic is, in fact, being

17     called by the Prosecution there is no latitude in the rules to allow a

18     cross-examination into issues when this particular statement is being

19     presented to meet evidence that is being presented by the Prosecution.

20             JUDGE ORIE:  Yes.  But, of course, the Chamber does not know, and

21     I don't know to what extent you are aware of the subject matter that will

22     be covered in examination-in-chief.  And this, of course, will have

23     consequences later on how to proceed.

24             I mean, if most of the cross-examination, even through 92 ter,

25     will be evidence in support of the -- of the Defence case rather than a

Page 16228

 1     response to the examination-in-chief, this then may have consequences for

 2     the approach taken in re-examination.

 3             The Chamber doesn't know what Mr. Russo is going to do, and we

 4     have to wait and see; and then, of course, we may be in a position that

 5     we have to draw consequences, procedural consequences of what he did but

 6     perhaps also what he did not.

 7             The Chamber, to that extent, is now looking in a huge black hole.

 8     Mr. Russo, of course, knows what is he wants to cover in the

 9     examination-in-chief; and, of course, Mr. Russo also has read the

10     statement, and although he, of course, can't refer to anything which is

11     not in evidence at this moment if he had on his mind already to deal with

12     some of the matters he knows to be in the statement as well, then, of

13     course, the -- those portions of the statement can be considered at a

14     later stage to be a response to what has been raised during

15     examination-in-chief, and that might limit Mr. Russo in his

16     re-examination, to the extent to how he could lead the witness.

17             On the other hand, if there are matters in this statement which

18     Mr. Russo had not on his mind to deal with in examination-in-chief, then,

19     of course, he will consider how to approach the witness in

20     re-examination, if, on these matters, the evidence given by the witness

21     was primarily not as a response to the examination-in-chief but in

22     support of the Defence case, under Rule 90 (H).

23             So we have to carefully move forward and to constantly analyse

24     the position of which party at what moment is.

25             MR. KEHOE:  Yes, Your Honour, and I couldn't agree with your

Page 16229

 1     analysis more.  That is exactly the direction I was heading in, that part

 2     of the examination -- that part of the 92 ter statement that answers the

 3     examination-in-chief and to the extent that the Prosecution says it is

 4     something else and I understand it is something --

 5             JUDGE ORIE:  It is all speculation for the Chamber because if

 6     Mr. Russo is dealing with totally different matters then, of course, it

 7     might come as a surprise to some extent if view of his list.  But ...

 8             Mr. Russo, are you ready to call your next witness, which is

 9     Mr. Rajcic.

10             MR. RUSSO:  Yes, Mr. President.  The Prosecution calls

11     Witness 175.

12                           [Trial Chamber and legal officer confer]

13             JUDGE ORIE:  I used the name of the witness until now.  I didn't

14     refer to Witness 175 because the Chamber - I put this on the record - was

15     informed by the victims and witness section that there would be no

16     request for protective measures.

17                           [The witness entered court]

18             JUDGE ORIE:  Good morning, Mr. Rajcic.

19             THE WITNESS:  [Interpretation] Good morning.

20             JUDGE ORIE:  Mr. Rajcic, before you give evidence, the Rules of

21     Procedure and Evidence require that you make a solemn declaration, that

22     will you speak the truth, the whole truth, and nothing but the truth.

23             The text of this solemn declaration will now be handed out to you

24     by Madam Usher.  Could I invite you to make that solemn declaration.

25             THE WITNESS: [Interpretation] I solemnly declare that I will

Page 16230

 1     speak the truth, the whole truth, and nothing but the truth.

 2                           WITNESS: MARKO RAJCIC

 3                           [Witness answered through interpreter]

 4             JUDGE ORIE:  Thank you, Mr. Rajcic.  Please be seated.

 5             THE WITNESS:  [Interpretation] Thank you.

 6             JUDGE ORIE:  Mr. Rajcic, you will first be examined by Mr. Russo.

 7     Mr. Russo is counsel for the Prosecution.  You find him to your right.

 8             Please proceed, Mr. Russo.

 9             MR. RUSSO:  Thank you, Mr. President.

10                           Examination by Mr. Russo:

11        Q.   Good morning, Mr. Rajcic.

12        A.   Good morning.

13        Q.   Would you please state your full name for the record.

14        A.   My name is Marko Rajcic.

15        Q.   Now, Mr. Rajcic, I just want to take with you at the beginning

16     here very briefly, what steps you've taken, if any, in preparation for

17     your testimony here today.  And please forgive me if I speak a bit

18     slowly; I'm trying to keep up with the translation.

19             Mr. Rajcic, did you review any documents relevant to this case --

20     or, pardon me, related to this case prior to coming to court here today?

21        A.   Yes.

22        Q.   Can you tell us, please, what documents those were, if you can

23     describe them for us?

24        A.   They were documents which relate to Operation Storm, and I was

25     asked to do that by the government of the Republic of Croatia.  They were

Page 16231

 1     documents that had been found in the archives, and they were made

 2     accessible to me.  I was allowed to make a selection, according to the

 3     documents relevant to the period of that particular operation.

 4        Q.   Thank you.  You indicated that these documents were made

 5     available to you by the government of Croatia.  Can you give us the

 6     time-period in which you reviewed that particular set of documents?

 7        A.   My first involvement was in July 2008, and then there was a pause

 8     of two and a half months, and then, once again, I worked on selecting the

 9     documents in October and November of 2008.

10        Q.   Thank you.  And since November of 2008, have you reviewed any

11     other documents provided to you by the government of Croatia?

12        A.   This year, that is to say, towards the end of January.  To the

13     best of my recollection, the date was the 28th, I believe, and the 29th

14     of January.  I was provided with a number of reports which I looked

15     through but nothing else.  I didn't do anything else in that regard.

16        Q.   These reports that you mention reviewed towards the end of

17     January of this year, what did those reports relate to?

18        A.   As far as I remember, there were three reports: One, for

19     artillery and rockets which were involved in Storm -- in Operation Storm,

20     the artillery and rockets group.

21        Q.   You mentioned three reports, and you've told us what one of them

22     was.  Can you recall what the other two reports were in reference to?

23        A.   The other reports were the classical type of report, daily

24     reports, about the activities of the artillery and rocket group; and it

25     stated the quantities of ammunition used per day, and I seem to remember

Page 16232

 1     one thing in particular, and that is that the representative of the

 2     embassy, the American embassy, the military attache in actual fact had

 3     visited the area, and had visited the artillery and rocket group.

 4        Q.   Can you identify for us who that military attache was, where it

 5     was that he visited, and what time-frame?

 6        A.   I don't know what the gentleman's name was.  However, I do

 7     remember having read about it and that he was in the area south of the

 8     town of Glamoc.

 9        Q.   Are you able to give us a time-frame for when he was south of the

10     town of Glamoc?

11             MR. KEHOE:  If I may of assistance, this is in one of the reports

12     that is in the list of documents that are before the Chamber.  I don't

13     know -- if I can just help counsel in that regard.  I certainly can find

14     at the break.

15             JUDGE ORIE:  Would that assist you, Mr. Russo.

16             MR. RUSSO:  Just trying to find out from the witness directly

17     what he recalls, if that's all right.

18             JUDGE ORIE:  Please proceed, as you deem appropriate.

19             MR. RUSSO:

20        Q.   Mr. Rajcic, you prepared a number of reports and analyses which

21     we'll be going through the course of your examination.  What I'd like to

22     know is whether the documents which were provided to you by the

23     government of Croatia, are those which you used to create those several

24     analyses, reconstructions and reports?

25        A.   I have to say that according to the methodology it was just a

Page 16233

 1     reconstruction rather than an analysis, and those documents exclusively

 2     helped me to make that reconstruction.

 3        Q.   Yes, and I'm -- I just want to be clear that -- and find out from

 4     you whether the documents which you are referring to which -- upon which

 5     you made these reconstructions were only the documents provided to you by

 6     Croatia; is that correct?

 7        A.   Yes.  Through the organ of the Ministry of Defence, or, rather,

 8     the military police.  They provided me with documents, and they brought

 9     them to me to the office in which I made my selection of documents.

10        Q.   Thank you.  Other than the government of Croatia, were you ever

11     provided with any documents relating to Operation Storm or this case by

12     anyone else?

13        A.   Yes.

14        Q.   Can you please tell the Chamber who that is?

15        A.   The office of lawyers in Zagreb, Mr. Gotovina's lawyers, and

16     they -- I had insight into some documents there.

17        Q.   Can you tell us what documents those are?  Are you able to

18     identify those documents?

19        A.   There was -- they were daily reports for Artillery Group 4, and

20     then there was the operations log-book of the Military District, as well

21     as an operations log-book for the 4th Artillery Brigade, and we also had

22     a working material of the 4th Artillery Group.

23             MR. MISETIC:  Mr. President, if we could check that page 33, line

24     8, check with the witness, his answer there.

25             JUDGE ORIE:  Yes.

Page 16234

 1             Could you please repeat your answer.  You said -- you told us

 2     that you had the daily reports for Artillery Group 4.  There was an

 3     operations log-book of the Military District, as well as an operations

 4     log-book for the 4th Artillery Brigade and then you said you also had...

 5             And then could you please repeat what you then said.

 6             THE WITNESS: [Interpretation] It was a record of

 7     Artillery Group 3 relating to their daily activities, and that was the

 8     material they used as a work basis and the first information was recorded

 9     there.

10             JUDGE ORIE:  I take it, Mr. Misetic the 3 and the 4 were worrying

11     you.

12             MR. MISETIC:  Yes.

13             JUDGE ORIE:  That's clarified.  Please proceed, Mr. Russo.

14             MR. RUSSO:  Thank you, Mr. President.  And thanks to counsel.

15        Q.   Mr. Rajcic, were there any other documents that you were provided

16     either by the Gotovina Defence or by anyone else in relation to Operation

17     Storm?

18        A.   I personally had contacts with the commander of the artillery and

19     rocket group, and -- Stipe Gotovac, and I asked him personally if he had

20     any notes of his, if he was willing to hand them over to me, which, after

21     some time, he did.  He photocopied them and gave them to me.  So those

22     were the other documents that I used, except for the ones that I

23     previously mentioned.

24        Q.   Have you spoken to anyone other than Mr. Stipe Gotovac, who, to

25     your knowledge, may be a potential witness in this case?

Page 16235

 1        A.   I don't know who could be a potential witness.  It's not up to me

 2     to say.  But at my own initiative in the bygone period, that is to say,

 3     since these proceedings started and the trial started, I talked to quite

 4     a number of commanders and officers who were commanders of different

 5     units at different levels.

 6        Q.   I'd like to talk about these commanders that you have contacted.

 7     However, can you tell me first why you contacted them when these

 8     proceedings started?

 9        A.   Because I wanted to talk to them, and, on the basis of those

10     conversations, to be able to establish what actually happened during

11     Operation Storm and so that I gained an insight into how the artillery

12     was deployed.

13        Q.   I'd like to address a couple of issue there.

14             Number one --

15             MR. MISETIC:  Mr. President, I apologise to counsel.  I think

16     there is something lost in translation on that last answer and I'll just

17     leave it at that.

18             JUDGE ORIE:  Yes, then we'll see.

19             Mr. Rajcic, part of your answer may be lost.  I will read to you

20     what has come to us in translation, and it reads:

21             "Because I wanted to talk to them, and, on the basis of those

22     conversations, to be able to establish what actually happened during

23     Operation Storm and so that I gained an insight into how the artillery

24     was deployed."

25             Are we missing something?

Page 16236

 1             THE WITNESS: [Interpretation] Yes, Your Honour.

 2             I wanted -- well, let me repeat.  With the commanders I wanted to

 3     talk to them, only talk to them, to see what it was that happened with

 4     the use of the artillery and that a qualification and whether the

 5     qualification of it being used to too great a measure was correct or not,

 6     or disproportionate use of the artillery, whether that qualification

 7     stood or not.

 8             JUDGE ORIE:  Mr. Russo, please proceed.

 9             MR. RUSSO:  Thank you, Mr. President.  And again, thanks to

10     counsel.

11        Q.   Mr. Rajcic, what position did you hold with the Croatian forces

12     during Operation Storm?

13        A.   The chief of artillery.

14        Q.   And as the chief of artillery, were you unaware of how the

15     artillery was deployed and used in Operation Storm?

16        A.   No.  I was not unaware.  I was aware.

17        Q.   That leads to my next question then.  If you, in fact, were

18     aware, why then did you need to contact commanders in order to get

19     information about how the artillery was deployed and used?

20        A.   I did not ask confirmation from the commanders or information as

21     to how the artillery was deployed, but what it was that we did that we

22     were being accused of disproportionate shelling.

23        Q.   Two issues there.  First, why did you want to know?  Was this for

24     your own personal edification, or for some other reason?

25        A.   Personal reasons, because I don't think I did anything wrong

Page 16237

 1     anywhere.

 2        Q.   Second issue is in speaking with these commanders, did you learn

 3     anything of which you were not already aware?

 4        A.   No, nothing significant, based on the recollections of those

 5     people.  But finally it became quite clear that my recollections were

 6     better than theirs.

 7        Q.   Thank you --

 8             JUDGE ORIE:  Mr. Russo, I'm looking at the clock.

 9             MR. RUSSO:  This is as good a time as any, Your Honour.

10             JUDGE ORIE:  Then, Mr. Rajcic, we'll have a break.  25 minutes.

11     We resume at five minutes to 11.00.

12                           --- Recess taken at 10.30 a.m.

13                           --- On resuming at 10.58 a.m.

14             JUDGE ORIE:  Mr. Russo, please proceed.

15             MR. RUSSO:  Thank you, Mr. President.

16        Q.   Mr. Rajcic, we left off discussing conversations you had had with

17     HV commanders, in respect of the artillery operations in Storm.  I wonder

18     if you could please provide us with the names of the commanders with whom

19     you spoke.

20        A.   I spoke to the commander of the 3rd Artillery Group, Mr. Mamic;

21     the commander of the 4th Artillery Group, Mr. Milin; the commander of the

22     5th Artillery Group, Mr. Kardum; and the chief of artillery of the Zadar

23     Operations Group, Mr. First; and I have already said that I went to see

24     Mr. Stipe Gotovac at Livno.

25        Q.   Thank you.  Now, have you watched this trial or any of the

Page 16238

 1     proceedings of this trial on the Internet or on television?

 2        A.   On television, I followed it to the extent that my private

 3     commitments allowed me to do so.  I didn't have the chance to follow this

 4     trial on the Internet.

 5        Q.   Can you please tell us, if you can recall, which witnesses you've

 6     seen the testimony of, if any.

 7        A.   The names that come my mind now are Mr. Gojanovic, parts of his

 8     testimony, not the entire testimony.  And Mr. Lausic's testimony,

 9     which -- which took place recently.  And force the last two days, I

10     watched Mr. Puhovski.  All the other information I got by means of

11     teletext for some witnesses, or for others through articles in the daily

12     papers.

13        Q.   I'm not quite certain what teletext is.  Can you explain that to

14     me?

15        A.   On television, you can browse the daily news, and you get

16     summarised versions of the news.

17        Q.   Thank you for clearing that up.

18             Have you seen any of the exhibits which have been admitted in

19     this case?

20        A.   I didn't understand you well.  Could you please repeat.  Have I

21     seen what?

22        Q.   Have you seen any documents which have been admitted into

23     evidence in this trial.

24        A.   Well, the documents related to the artillery.  If that's what you

25     mean.  Yes, I'm familiar with them.  I did see them.

Page 16239

 1        Q.   Just to be clear, when you saw documents related to the

 2     artillery, are you referring there to the documents provided to you by

 3     the government of Croatia or some other source of documents?

 4        A.   Other sources too.  General Gotovina's Defence showed me some

 5     documents when I was giving my statement to them.

 6        Q.   Are you able to recall what documents those were?

 7        A.   They showed me one of my maps that I used in my work, as a -- as

 8     a prop.  I saw a list of officers that attended a meeting on August the

 9     1st, 1995 in Split.

10             I saw a document relating to a staff training session that took

11     place at the Sibenik Operations Group, under the title:  Poskok.  That

12     was a document that I drafted myself.

13        Q.   Now, the map that you first mentioned, you indicated it was a map

14     that you used in your work.  Can you tell us about this map, what's the

15     name of it, what use you make out of it in your work?

16        A.   It was a map that I made for myself to use in my work as an

17     addition to the other documents that I was obliged to use.  And that was

18     the way I proceeded in all operations in which I participated in the

19     homeland war.

20             That map contained the ORBAT of the artillery or artillery and

21     rocket groups, as well as the artillery units of the subordinate units

22     that act brigades and regiments.

23        Q.   My apology, Mr. Rajcic.  I didn't understand what you said at the

24     begin of your sentence.  Let me read it back to you.  It indicates:

25     "That map contained the ORBAT of the artillery or artillery and rocket

Page 16240

 1     groups."

 2             Can you say that sentence again?  I'm not sure what is an ORBAT

 3     is or if that was mistranslated.

 4        A.   I don't think that I used the word ORBAT.  It must have entered

 5     the transcript by mistake.

 6             The map that showed the operations disposition of the units, that

 7     may have been the source of the error.

 8        Q.   That map that they showed you, is that one of the maps which you

 9     attached to the analysis of the corps level artillery that you did for

10     the government of Croatia?

11        A.   Yes.  I handed it over to the military police, and they decided

12     that the map be part of the set of documents that will be handed over to

13     the OTP.

14             MR. RUSSO:  Mr. President -- I'm sorry, Mr. Registrar, if we

15     could please have 65 ter 7058.

16        Q.   Now, Mr. Rajcic, I'm going to pull up a map for you and ask you

17     if this is the map which you're referring to.  Unfortunately, this is a

18     rather large map; and, therefore, has been cut into sections, so I'm

19     going to proceed to the portion of the map that covers the area of Knin

20     and ask you if you recognise it.

21             MR. RUSSO:  If we could, please, Mr. Registrar move to the third

22     page.  If we could just bring that down a bit.  A little bit more.

23        Q.   Mr. Rajcic, looking at the screen, do you recognise this as the

24     map that was shown to you by the Gotovina Defence?

25        A.   Yes.  It's a -- it was compressed when they showed to me, and

Page 16241

 1     this is the map that I made for the Storm operation.  There is a mistake

 2     on the map too.  I knew of it then, but it wasn't relevant, since this

 3     map was only a working material.

 4        Q.   Would you mind letting us know what the mistake was.

 5        A.   You can see these lines that looked like a fan.

 6        Q.   Yes, those are the sectors of fire; is that correct?

 7        A.   Yes, the sectors of fire.

 8             The upper line, the top-most, the upper-most line, relates to the

 9     203-millimetre Howitzers.  And then there's a -- the upper line is

10     extended till the -- to the border of this section; you can't see its end

11     because the end of the line means the range of an artillery weapon.

12             The 203-millimetre Howitzers have a range of 17 kilometres, and I

13     went about it hastily and applied the range of the 130-millimetre cannon,

14     so that the correct range to the left; that is, from the left border, is

15     up to the fourth quadrant.

16        Q.   Thank you for explaining that, Mr. Rajcic.

17             You indicated that this was a working map.  Was this map actually

18     attached to any orders issued during Operation Storm?

19        A.   No.

20        Q.   Thank you.

21             MR. RUSSO:  Mr. President, at this time I would offer into

22     evidence, 65 ter 7058 [Realtime transcript read in error, "7508"].

23             MR. KEHOE:  Mr. President, I'm still preserving our objection

24     concerning non-65 ter at request of the Chamber.

25             JUDGE ORIE:  Your first requested be to have it added to the

Page 16242

 1     65 ter list.  Mr. Russo.

 2             MR. RUSSO:  That's correct Mr. President.

 3             JUDGE ORIE:  And there was an attachment to ...

 4             MR. RUSSO:  This is it Annex 3.

 5             JUDGE ORIE:  Annex 3 working map, yes.  Undated 7058.

 6                           [Trial Chamber confers]

 7             JUDGE ORIE:  Mr. Kehoe, any specifics to be added in relation to

 8     specifically this document.

 9             MR. KEHOE:  Nothing other than has been previously raced.  On the

10     transcript, Mr. Russo, I think it reads 7508, I think you said 7058.

11             MR. RUSSO:  That's correct.  Thank you.

12             JUDGE ORIE:  Yes.  Mr. Registrar, would you please assign a

13     number for this exhibit to be marked for identification.

14             THE REGISTRAR:  Your Honours, this become Exhibit P2322, marked

15     for identification.

16             JUDGE ORIE:  Thank you, Mr. Registrar.

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

18        Q.   Mr. Rajcic, did you --

19             Well, let me ask first, Mr. President, can we go into private

20     session very briefly.

21             JUDGE ORIE:  We move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 16243











11  Pages 16243-16245 redacted. Private session.















Page 16246

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

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

 9             JUDGE ORIE:  Thank you, Mr. Registrar.

10             MR. RUSSO:

11        Q.   Mr. Rajcic, do you recognise the map that is now in front of you?

12        A.   Yes.

13        Q.   Is this the map entitled: Plan of artillery action, which is

14     referenced in the document that we just looked at?

15        A.   No, it doesn't have that title in this handwriting, but this is a

16     usual -- we're talking about a usual cover page.

17        Q.   I'm not certain I understand what you mean by "a usual cover

18     page."

19             Can you explain that?

20        A.   I mean the following.  The map that we have just seen was a

21     printed by means of a computer on a white sheet of paper and glued

22     together.  It was also a plan of artillery action.  That's what it read.

23        Q.   And when you say that, are you referring to the original of this

24     map that we're now looking at or a different map?

25        A.   I'm comparing the map that we saw earlier, before this one, I

Page 16247

 1     mean my working map, to this map, which was made for the book.

 2        Q.   Now, can you explain why the map was made from the book?  Was it

 3     made from another map?  Was a reproduction made for the book, or was this

 4     map never in existence during Operation Storm?  The content of the map, I

 5     mean.

 6        A.   During Operation Storm, there was such a map in existence, and

 7     there was my handwriting on it.  That map, in accordance with the rules,

 8     was always folded and scrolled to A-4 format.

 9        Q.   And what use was made during operation Storm of that map, which

10     you're referring to?

11        A.   It was used in the following manner.  In addition to my working

12     map, over which there was a transparent foil, and in the operations

13     centre during the operation, I entered certain elements; and the original

14     map was next to it, and I used it on -- as -- as a guideline for

15     directing the artillery.

16        Q.   When you say that you entered certain elements, does that mean

17     information which is contained on this map that we see here in front of

18     us?

19        A.   No.  Those that are made during combat.

20        Q.   What I'm trying to discover, Mr. Rajcic, you indicated that this

21     map, some use of it was made during Operation Storm, or at least the

22     information on this map, there was some use of that made during

23     Operation Storm.  I'm trying to discover --

24        A.   Not this one.  Not this map.  It wasn't the map that we see here.

25     This is a copy of my original, the original that I used.  This one here

Page 16248

 1     was made for the book.

 2        Q.   When you say, "this is a copy of my original, the original that I

 3     used," are you saying that the original of this map that we have in front

 4     of us was used by you?

 5        A.   During the operation, it was in the operations centre.

 6        Q.   Why was the original of this map in the operations centre?

 7        A.   That is normal procedure, because without the original, no

 8     control is possible, when it comes to controlling the implementation of

 9     the combat plan.

10        Q.   Does the information on this copy accurately represent the

11     information on the original map?

12        A.   Yes, if we're speaking about the time when the original was made.

13        Q.   Thank you.

14             MR. RUSSO:  I'd like to ask for the assistance of the court usher

15     because I want to focus on a particular part of this map, and that's the

16     part of the map that covers the area of Knin.

17             JUDGE ORIE:  I think the map should be moved downwards and then

18     be zoomed in.  Is that ...

19             MR. RUSSO:  Yes.  Focussing just a little bit more, if it's

20     possible, on the area underneath where it says "7KK."

21             Thank you, Madam Usher.

22        Q.   Mr. Rajcic, is this the portion of the map which covers Knin and

23     the surrounding area?

24        A.   Yes.

25        Q.   Thank you.  And I'll ask to you take particular note of the

Page 16249

 1     configuration of the target boxes immediately beneath the designation 7KK

 2     which I understand to mean 7th Krajina Corps; is that correct?

 3             You have to answer yes or no for the record, Mr. Rajcic.

 4        A.   Yes, the 7th Krajina Corps.

 5        Q.   Thank you.  And looking at the configuration of these -- and

 6     focussing on the fire target boxes directly beneath the 7th Krajina Corps

 7     sign, the one on the far west side is going north to south.  Immediately

 8     to the south-west of that, we see one that is it also going north/south.

 9     Immediately to the north of that target box, there is one slanted

10     north-west.  Immediately next to that is it a target box aligned

11     east/west.  And immediately next that is a target box aligned

12     north/south.

13             Do you follow me?

14        A.   Yes.

15             JUDGE ORIE:  I do not, Mr. Russo.  I think the second box

16     south-east of the first one, not south-west of the first one.

17             MR. RUSSO:  You are correct, Your Honour.

18             JUDGE ORIE:  Please proceed.

19             MR. RUSSO:  If we could now please have Exhibit D21.

20             We no longer need use of the ELMO, Madam Usher.

21             JUDGE ORIE:  Just for the completeness of the record, Mr. Russo,

22     in order to avoid that people start guessing later what I said, I said

23     that the second box was south-east of the first one, rather than

24     south-west.

25             Please proceed.

Page 16250

 1             MR. RUSSO:  Thank you, Mr. President.

 2             And, Mr. Registrar, if we could please move to page 4 of this

 3     exhibit.  And we can have only one version.  B/C/S is fine.  I only need

 4     it for the pictures.

 5        Q.   Now, looking at this map, Mr. Rajcic, first of all, let me ask

 6     you:  Do you recognise this map?

 7        A.   Not in this form, no.

 8        Q.   Thank you.  Looking at the rectangular target boxes, you can see

 9     that they're in the same configuration.  Would you agree with that?  The

10     same configuration as we saw on the previous map.

11        A.   Yes.  But there are too many rectangles here.

12        Q.   When you too many rectangles, are you referring to the large

13     rectangular boxes or other rectangles?

14        A.   All the other ones round about.

15        Q.   Thank you.  Now looking at the legend on the bottom right-hand

16     corner of this exhibit, it indicates targets according to M. Rajcic's

17     plan.

18             Do you see that?

19        A.   Yes, I can see that it says that, targets according to plan.

20        Q.   And what I'd like to know is the plan that is referred to here,

21     is that the map which we have previously seen?

22        A.   A map like this with all these other things, no, it's not the

23     map.  If you consider this to be a comparison with the other map, no.

24        Q.   Well, I'm asking, Mr. Rajcic, if what is referred to in this

25     map -- in this legend at the bottom right-hand corner, it indicates that

Page 16251

 1     there are -- that the black rectangular box, the larger target boxes are

 2     according to something called M. Rajcic's plan; and what I'm try to

 3     discover is whether or not the plan that is being referred to there, to

 4     your knowledge, is that the plan that we just looked at.

 5        A.   That is in keeping with the map, but it's not the targets.

 6        Q.   Thank you.  And you can see, actually, also below that, in the

 7     legend, there's an indication that says "targets, according to

 8     M. Rajcic's list?"

 9             Do you see?

10        A.   Yes.

11             MR. KEHOE:  If I may, Judge, just by way of foundation if the

12     question could be asked that did this witness, in fact, prepare this.  It

13     might be helpful to the Chamber.

14             MR. RUSSO:  I think the witness has already indicated he's never

15     seen it.

16             JUDGE ORIE:  [Overlapping speakers] ...  from all his answers it

17     appears that did he not.  But if that is misunderstood then you'll

18     correct that, Mr. Russo.

19             MR. RUSSO:  I don't believe it is misunderstood, Mr. President.

20     I'm just going to proceed.

21             JUDGE ORIE:  Let proceed.

22             MR. RUSSO:

23        Q.   Do you know what list is being referred to where it indicates

24     "targets according to M. Rajcic's list"?

25        A.   Targets according to M. Rajcic list, in the plan section, on an

Page 16252

 1     overall list we have the bases and the targets that we had.

 2        Q.   And I think you mentioned that there -- that the smaller

 3     rectangles on this were not correct.  Can you please explain what you

 4     mean by that?

 5        A.   They are unknown to me, these rectangles, 8 and above.  And also

 6     unknown to me are some of these -- well, artistic designs with the

 7     circles and the crosses.  I'm not sure what that is.

 8        Q.   I want to be clear about which of the smaller rectangular boxes

 9     are not known to you.

10        A.   808, 839, 840, 804 and then 300 or 507, whichever it is, 306.

11     Target 131 was never on the list of targets and now the circles within

12     the large rectangles which designate the areas, I never did anything like

13     that.

14        Q.   Thank you.

15             MR. RUSSO:  Can we please have Exhibit P --

16             JUDGE ORIE:  Mr. Russo, just for us to understand the agenda in

17     English, yes, now I have it, got it in English.  Can we move on just a

18     bit so that we ... that we see the upper box as well.

19             Yes, please proceed.

20             MR. RUSSO:  Thank you.  I would like to have Exhibit P1272.

21             THE WITNESS: [Interpretation] Just a moment, please.  May I say

22     something?

23             At the top of this list it says overview of the fired artillery

24     targets, Knin area, in operation Kozjak 95.  This never happened.  It

25     says "fired artillery targets" in the heading.

Page 16253

 1        Q.   Thank you, Mr. Rajcic.  Let me another that for a moment.

 2             First of all, what do you understand it mean where it says "fired

 3     targets."  What do you understand that to mean?

 4        A.   It mean that the targets were fired at.

 5        Q.   Thank you.  And are you saying that where we see the red crosses

 6     with circles at the centre that you don't agree that those targets were

 7     fired at?

 8        A.   That's right, yes.

 9        Q.   Thank you.

10             MR. RUSSO:  If we could now please move to Exhibit P1272.

11        Q.   Mr. Rajcic, looking at this target list, did you prepare this

12     target list?

13        A.   Yes, I did.

14        Q.   And can you tell us, please, when exactly it was that you

15     prepared this list?

16        A.   For the staff training of the headquarters of the Split area, two

17     or three months before Operation Storm.

18        Q.   Thank you.

19             MR. RUSSO:  And if we can now please have Exhibit P1271?

20             MR. MISETIC:  I note that we need an updated translation because

21     we can now see the -- what is behind the shaded --

22             JUDGE ORIE:  Yes.  Where it says redacted, I think we had this

23     already done in the past, isn't it?  That we had identified a more

24     legible copy of this --

25             MR. RUSSO:  Yes, Mr. President, but I believe Mr. Misetic is

Page 16254

 1     indicating and quite correctly that a translation of what is now visible

 2     has not been provided to the Defence, and I believe he is correct.

 3             JUDGE ORIE:  Which comes as a surprise because the text was

 4     already -- had become clear already at an earlier stage.  So you will

 5     upload a complete translation then.

 6             MR. RUSSO:  Yes, Mr. President, we will do so.

 7             JUDGE ORIE:  Please proceed.

 8             MR. RUSSO:

 9        Q.   Looking at this exhibit, P1271, Mr. Rajcic, did you draft this

10     particular list?

11        A.   Yes.

12        Q.   And can you tell us when exactly this list was drafted?

13        A.   In 1993, in the first half of the -- of June.

14        Q.   Thank you.  And are you able to tell us whether the target list

15     we see on the screen now, if this was corrected in any way before the

16     target list which we previously viewed was drafted?

17        A.   No.  You can't say it was corrected.  This is a target list for a

18     certain limited non-executed combat assignment, and the list of targets

19     that we had on our screens before this was used for training of the staff

20     of the Military District two years later.

21        Q.   Were either of the target lists that we've looked at, either this

22     one or the one we looked at previously, were either of those target lists

23     actually used during Operation Storm by any of the artillery units?

24        A.   Only certain targets were used, pursuant to my instructions.

25        Q.   Can you please identify which ones those are on this particular

Page 16255

 1     list.

 2        A.   The Slavko Rodic barracks, KV 250.  Of course, I'm referring to

 3     my recollections 40 years on -- 14 years on.  Then the bridge at the

 4     entrance which is KV 314 if I can see it properly.  It is a little

 5     illegible.  It is not quite clear what the KV number is.  And KV 350 the

 6     Senjak barracks.

 7             MR. KEHOE:  Just by way of clarity, the English has 310.  I just

 8     make sure we're talking about the same thing.

 9             JUDGE ORIE:  Yes.  And that is not very clear on the original,

10     Mr. Russo.  It could well be, but we have to have a closer look at

11     the ...

12             MR. RUSSO:  Yes, Mr. President.

13             JUDGE ORIE:  So the bridge whether 310 or 314 is -- I will

14     enlarge the original a bit, so that we ...

15             Yes, if you strongly enlarge the original, then it comes closer

16     to 310 than to 314, I would say.  But it certainly is not a 4, it could

17     be a zero.

18             MR. RUSSO:  Mr. President, would you like me to refer the witness

19     to the specific coordinates in order to determine whether or not this is

20     the target he is referring to?  I believe it is clear.  I just want to

21     make sure.

22             JUDGE ORIE:  He talked about the bridge and that's ... bridge at

23     the entrance, that's clear.

24             Please proceed.

25             MR. RUSSO:  Thank you.

Page 16256

 1        Q.   Mr. Rajcic, apologies for the technical issues we're having.

 2             You've identified the Slavko Rodic barracks, KV 250.  The bridge

 3     at the entrance, which according to our numbers is KV 310, and you have

 4     also identified, I believe, the Senjak barracks; is that correct?

 5        A.   Yes.  So far.

 6        Q.   Please continue then, if you can, identifying for us the targets

 7     which were actually fired at from this list.

 8        A.   KV 410 the railroad station or railway station; as for KV 510 the

 9     cross-roads, I'm not quite sure about that; KV 550, the old garage;

10     KV 610, the apartment building complex, yes; KV 650, the Padjene

11     warehouse, no; KV 710, the hospital, yes; KV 750, the screw and bolt

12     factory, yes; KV 810, the western bridge, yes.

13        Q.   I want to be clear, but correct me if I'm wrong but I think the

14     only one you said was not fired at was the Padjene warehouse, KV 650; is

15     that correct?

16        A.   No, not only that one.  I think I said no to some more.

17        Q.   Perhaps it might be easier if you simply just identify for us the

18     ones which were not fired at.

19        A.   KV 110, the church in Knin; KV 150, Kosovo warehouse; KV 210,

20     army barracks at the entrance; KV 450, the western warehouse; KV 510, I

21     don't remember; KV 550, old guard house, no; KV 650, Padjene warehouse,

22     no; and that's it.

23             JUDGE ORIE:  Mr. Russo I don't know whether it's a translation

24     issue but I heard when the witness read the old garage in English it

25     became an old guard house.  It is unclear to me.  Could you please try to

Page 16257

 1     find out -- not at this very moment but whether is there a translation

 2     issue there or whether it's just --

 3             MR. RUSSO:  I believe, Your Honour, that is actually a

 4     translation issue.  What we have in English as old garage, I believe, is

 5     a transliteration of the term Stara Straza.  If that's incorrect, I'm

 6     sure colleagues will correct me.  So I don't know that it actually refers

 7     to an old garage.  Nevertheless, that is the translation that we have,

 8     and I do think you're correct that it is not -- as was indicated, I

 9     believe --

10             THE WITNESS: [Interpretation] May I say something?

11             MR. RUSSO:  [Previous translation continues] ...

12             THE WITNESS: [Interpretation] Stara Straza is a toponym of the

13     area in which military depots were located.

14             MR. RUSSO:

15        Q.   And looking at the target list for KV 550 where it indicates

16     Stara Straza is that the location to which you are referring?

17        A.   Yes.  It denotes the area where there were military warehouses or

18     depots, logistics.  Logistical resources?

19        Q.   And I believe you indicated that did you not fire on that; is

20     that right?

21        A.   That is right, I said that we didn't fire on that.  And I have to

22     mention at this point that we're talking about 130-millimetre cannons and

23     a 122-millimetre launcher, so pieces that are listed along the side here.

24     And in Storm, what was targeted was what I said earlier on.

25        Q.   Let me see if I can understand what you're saying.

Page 16258

 1             Are you indicating that some of the targets which you've just

 2     told us were not fired at, are you indicating that those may have been

 3     fired at by weapons other than a 130-millimetre or the 122-millimetre

 4     multiple-barrel rocket launcher system?

 5        A.   No, I don't know.  I don't know that anybody targeted the

 6     Stara Straza target area.

 7        Q.   How about any of the other areas that you mentioned from this

 8     list were not targeted with these weapons systems?  Do you have any

 9     information that those targets were fired at by any other weapons?

10        A.   I do not, but I don't think they were.

11        Q.   Just to be clear, if they were fired at, is there any reason that

12     you can think of why you would not be aware of that, as chief of

13     artillery for the Split Military District?

14        A.   I would have to have known.  However, if I'm not sure, then I

15     can't say anything for certain.

16        Q.   I believe the only target you indicated you were unsure about was

17     the cross-roads, target KV 510.  Are you unsure about whether artillery

18     was fired at any of the other targets?

19        A.   When we were discussing the targets that were fired at, then I

20     said, in referring to KV 510, the cross-roads, that I wasn't sure.

21        Q.   Yes.  And what I'm attempting to determine is whether or not you

22     are unsure as to whether any piece of artillery was fired at any of the

23     other targets which you indicated were not fired at by the 130-millimetre

24     and 122-millimetre rocket system?

25        A.   I beg your pardon, but could you repeat that question, please,

Page 16259

 1     once again.

 2        Q.   Sure.  As it stands now this is my understanding and please

 3     correct me if I'm wrong.  You are unsure whether targets KV 510 was fired

 4     at with any weapon system; is that right?

 5        A.   Yes.

 6             THE INTERPRETER:  Could the witness kindly move away from the

 7     microphones.  Thank you.  Slightly.

 8             JUDGE ORIE:  Could you move away a little bit away from your

 9     microphone, Mr. Rajcic.

10             MR. RUSSO:

11        Q.   Now, other than target KV 510, you indicated a list of targets

12     that you said were definitely not fired at by the 130-millimetre gun or

13     the 122-millimetre multiple-barrel rocket launcher system; is that

14     correct?

15        A.   Yes.

16        Q.   Now, as to that list of targets, which you are sure was not fired

17     at by either the 130-millimetre gun or 122-millimetre rocket launcher

18     systems, do you know whether those particular targets were fired at by

19     any other type of artillery system by the Croatian forces?

20        A.   I do not know.

21        Q.   And, again, as to that, would you have known if any other

22     artillery weapons of the HV had fired at those targets?

23        A.   Considering the way the control and supervision functioned at the

24     front line, I would have had to know.

25        Q.   Thank you.

Page 16260

 1             Now, I'd like to digress for a bit, because we moved off of the

 2     sort of plan I wanted to follow.  I wanted to discuss with you the

 3     planning of Operation Storm --

 4             JUDGE ORIE:  Mr. Russo, before we do that and I know it comes

 5     perhaps a little bit late.  It seems that the original of the document

 6     that we just discussed there is something visible near to where a date is

 7     expected to appear, which is wiped out.  I do not know it.  Do we have

 8     the original?  Do you have the original?  Is there any way of

 9     reconstructing what the date of this document was.

10             MR. RUSSO:  Your Honour, I can tell the Court that what you see

11     here in B/C/S is the original that we received from a request for

12     assistance to the government of Croatia.

13             JUDGE ORIE:  Original means the very original not a certified

14     copy of the original or ...

15             MR. RUSSO:  I don't believe we actually receive original

16     documents pursuant to our RFA's.  I believe we receive copies.  This is a

17     copy of the original, as far as we know.

18             JUDGE ORIE:  Yes, because from a copy it is usually impossible to

19     reconstruct something that may be on the original but -- well, I see

20     something appears, which is in the translation as become a line by now,

21     which doesn't appear to me as a normal line.  Although the place suggests

22     that it's a line.  But even if you underline something, often you find

23     something above what is underlined.

24             So I wonder whether there is any way of getting more information

25     about -- about this document, perhaps from the original one because the

Page 16261

 1     date seems not to be without relevance.

 2             MR. RUSSO:  We'll certainly investigate further, Mr. President.

 3             Let me, however, ask the witness --

 4        Q.   Did you indicate that you did draft this document, Mr. Rajcic; is

 5     that correct?

 6        A.   Yes, it is.

 7        Q.   And if can you recall, did you actually place a date on the

 8     document?

 9        A.   I think the date was originally entered with a ballpoint pen.

10     This was a template that was used at the time for making target lists.

11        Q.   And when you entered the date in ballpoint pen, can you give the

12     Court an indication of what that date was?

13        A.   I cannot give you a precise indication, but I can remember the

14     event that triggered this generation of targets.

15        Q.   And what time-frame was that event?

16        A.   On the 13th of June, on the day of St. Anthony at Biograd.  On

17     the beach, the enemy opened artillery fire and shelled Biograd.  A number

18     of citizens were killed, including some soldiers.  And one of my

19     neighbours, a soldier, was killed on that occasion; and that is why I

20     remember the date, because that day has been commemorated since.

21        Q.   Forgive my ignorance of this, but that would be 13 June of what

22     year?

23        A.   1993.

24        Q.   Thank you for that information.

25             MR. RUSSO:  If the Chamber is satisfied, Your Honour, I will move

Page 16262

 1     on.

 2             JUDGE ORIE:  Yes.  Of course, the question remains.

 3             MR. RUSSO:  Thank you.

 4        Q.   Mr. Rajcic, I would like to a bit about the planning of

 5     Operation Storm.

 6             Can you tell us when planning for this operation began?

 7        A.   The last planning activity for Operation Storm started on

 8     July the 31st, 1995, as soon as General Gotovina and I flew back from

 9     Brioni to Rujani.

10        Q.   I see that you indicated that the last planning activities for

11     Operation Storm started on July 31st, 1995.  I would like to know when

12     the first planning began.

13        A.   Part of the front line from Dinara to Velebit, that was the zone

14     of responsibility of the Split Military District, and after the

15     separation of forces under the Zagreb Agreement, that's when the first

16     planning activity for a possible attack operation began.  That's why I'm

17     saying that the day indicated was the last activity for planning

18     Operation Storm.

19        Q.   And are you able to give me a day -- a date for when planning

20     began?  You indicate that part of the front line from Dinara to Velebit

21     and the separation of forces under a Zagreb Agreement.  Can you please

22     give me a date, if you recall one, or an approximate date.

23        A.   A date for what?

24        Q.   For when the planning for Operation Storm began.

25        A.   July the 31st, in the evening hours, 1995.

Page 16263

 1             MR. RUSSO:  Mr. Registrar, if we could please have 65 ter 7145.

 2        Q.   Looking at the first paragraph here, Mr. Rajcic, let me read that

 3     to you.  It indicates:

 4             "Analysis of the course of combat actions, action methods and

 5     efficiency of the intelligence security in the preparation for combat,

 6     and monitoring of HD combat action, shows that it was very efficient at

 7     ZP, Military District Split, for the final Operation Oluja, Storm,

 8     especially because of the nine months continuity in preparations for the

 9     operation which is mirrored through intelligence actions during the

10     attack operations Zima 94, that is Winter 94; SKOK, Jump; SKOK-1, Jump 1;

11     SKOK-2, Jump 2; and Ljeto 95, Summer 95 when two 'key' OG operation

12     groups Sjever, north, ex Livno and Sinj were active."

13             Do you agree with this analysis, intelligence analysis?

14        A.   Yes.  In this part regarding the continuous nine months beyond

15     the Dinara, for the operations mentioned here.

16             MR. RUSSO:  I would offer 65 ter 7145 into evidence.

17             MR. KEHOE:  Same objection on a non-65 ter listing.

18             JUDGE ORIE:  It's a non-65 ter listing.

19             MR. RUSSO:  It is, Your Honour.  However, this is one of the --

20             JUDGE ORIE:  [Overlapping speakers] ... annexes.

21             MR. RUSSO:  Is it is not one of the annexes, Your Honour, but it

22     is one that we received this year in January of 2009 pursuant to a RFA.

23             JUDGE ORIE:  So your request is to have it added to the 65 ter

24     list and then to tender it.

25             MR. RUSSO:  That's correct, Your Honour.

Page 16264

 1             JUDGE ORIE:  It will be marked for identification.

 2             Mr. Registrar.

 3             THE REGISTRAR:  This becomes Exhibit P2324, marked for

 4     identification.

 5             JUDGE ORIE:  Thank you, Mr. Registrar.

 6             MR. RUSSO:  Mr. Registrar, may I also have 65 ter 2960, like

 7     that.

 8        Q.   Mr. Rajcic, can you see here there is a document dated

 9     21 February 1995, and it indicates assembly and organisational points for

10     a mobilisation plan.

11             Are you familiar with this?

12        A.   I am not familiar with the document, but I know about the

13     mobilisation activities.  I was familiar with them.

14             MR. RUSSO:  Your Honour, this document is on the 65 ter list.  I

15     would move for its admission into evidence.

16             MR. KEHOE:  No objection, Your Honour.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Exhibit P2325, Your Honours.

19             JUDGE ORIE:  Is admitted into evidence.

20             MR. RUSSO:  Thank you.

21        Q.   Now, Mr. Rajcic, who decided to use artillery against targets in

22     Knin, Benkovac, Obrovac, and Gracac?

23        A.   Talking about military targets in Knin, Benkovac, and Gracac, I

24     made -- I drafted the plan and submitted it to General Gotovina.

25        Q.   And when exactly did you submit that --

Page 16265

 1             JUDGE ORIE:  Mr. Russo, there was a limitation in the answer.

 2             Mr. Rajcic, Mr. Russo referred to the use of artillery in general

 3     terms, not against specific targets.  Of course, this Chamber does not

 4     know what was targeted, but the question was put in a very general way,

 5     who decided on the use of artillery, and even you are convinced that only

 6     military targets - that may be the case - were targeted, could you please

 7     answer the question, in general terms.

 8             THE WITNESS: [Interpretation] Your Honours, if I understood the

 9     question, the Prosecutor wanted to know who planned and ordered the

10     shelling of targets in Knin, Benkovac, and Obrovac.  If that is -- is --

11     if I understood the question correctly.

12             JUDGE ORIE:  Yes.  I see that the -- apparently the Gotovina

13     Defence has difficulties in -- I -- the question was, as I read it on the

14     transcript:

15             "Mr. Rajcic, who decided to use artillery against targets in

16     Knin, Benkovac, Obrovac, and Gracac."

17             The answer was talking about military targets which is more

18     limited than the question was.  The question did not specify what type of

19     targets and was just focussing on the use of artillery.

20             So, therefore, the -- Mr. Misetic you're --

21             MR. MISETIC:  Mr. President, with fairness to the witness, I

22     think the question as phrased was who it decided to use artillery against

23     targets in those towns.

24             JUDGE ORIE:  Whatever.  Whether these were civilian targets,

25     military targets, whatever.

Page 16266

 1             MR. MISETIC:  He can put that to him [Overlapping speakers] ...

 2             JUDGE ORIE:  No, but that was the question.  Yes, but the witness

 3     narrowed the but let's -- let's not make -- spend a lot of time on it.

 4             Mr. Rajcic, use of artillery, in general, whatever may have been

 5     targeted, was done in the way as you described?  You made the plan --

 6             THE WITNESS: [Interpretation] That's correct.

 7             JUDGE ORIE:  [Previous translation continues] ... to

 8     Mr. Gotovina.

 9             THE WITNESS: [Interpretation] That's correct.

10             JUDGE ORIE:  Yes, thank you.

11             Please proceed, Mr. Russo.

12             MR. RUSSO:

13        Q.   Can you please tell us when you submitted that plan to

14     General Gotovina?

15        A.   As far as I remember, it was on the 1st of August, after a

16     meeting with the commanders of the units, which was held in Split.

17             We started drafting combat documents, in accordance with

18     General Gotovina's vision of the combat operation.

19        Q.   And just to be clear, are you saying that that was

20     1st August 1995?

21        A.   Yes, it was 1995.

22        Q.   Does that mean that you had not planned to fire artillery at

23     anything, in Knin, Benkovac, Obrovac, and Gracac prior to 1 August 1995?

24        A.   No.

25        Q.   So that leaves open the possibility, if I'm not mistaken, that

Page 16267

 1     you had planned to fire artillery at some things in Knin, Benkovac,

 2     Obrovac, and Gracac prior to 1 August 1995; is that right?

 3        A.   If I understood you properly, you mean the list of targets from

 4     1993.

 5        Q.   I'm not attempting to get to a particular document or reach a

 6     particular document in time.  I'm just trying to figure out when the idea

 7     to use artillery against targets in any of those towns began.  And let me

 8     further clarify:  Not as a matter of training exercise, but as a genuine

 9     effort to plan a potential use of artillery against things inside those

10     towns.

11        A.   I repeat, that the list of targets from 1993, which is a result

12     of some people bathing on the beach of Biograd getting killed, and at the

13     time, the late General Bobetko was in Zadar.

14             As far as I remember, he gave orders to start preparations for

15     the case anything of -- like that should be repeated, for us to retaliate

16     against Knin, not Benkovac, Obrovac, or other towns, even though, in

17     terms of distance, it would have been -- or, rather, it was possible to

18     target these towns even earlier.  But it never happened, not before

19     Operation Storm, as far as I remember.

20        Q.   Can you please tell us what preparations you made, pursuant to

21     General Bobetko's order, to plan for a retaliation against Knin?  What

22     exactly did you do?

23        A.   The usual activities; namely, selecting the type of weapon, the

24     tactical and technical processing of the target, the collection of

25     information from the intelligence services, and from communications,

Page 16268

 1     electronic communications.  We also had a drone which had flown over

 2     Knin.  The selection of firing positions which would allow two -- to

 3     shell targets in Knin due to their range.

 4        Q.   And what was the result of those preparations, in terms of the

 5     targets that you had selected at that time, as targets for a retaliation

 6     with artillery?

 7        A.   What do you mean?  What as a result?

 8        Q.   What targets in Knin had you selected at that time.

 9        A.   We only produced this list, nothing more.

10        Q.   And when you say "this list," was that the last artillery target

11     list that we looked at here in court?

12        A.   Yes.  The list where the date is missing.

13        Q.   Thank you.

14             JUDGE ORIE:  Mr. Russo, I'm looking at the clock.  Either now or

15     within five minutes, I would like to start a break.

16             MR. RUSSO:  I believe now is better, Your Honour.

17             JUDGE ORIE:  Yes.

18             Then we'll have a break, and we'll resume at a quarter to 1.00.

19                           --- Recess taken at 12.25 p.m.

20                           --- On resuming at 12.47 p.m.

21             JUDGE ORIE:  Mr. Russo, please proceed.

22             MR. RUSSO:  Thank you, Mr. President.

23        Q.   Mr. Rajcic, I'd like to ask you a couple of more questions about

24     your indication that you began planning the operation for the use of

25     artillery on 1 August 1995.

Page 16269

 1             MR. RUSSO:  Mr. Registrar, if we could please have 65 ter 5710.

 2             MR. KEHOE:  Just by point of clarification noted by me colleague.

 3     I think he said the final planning as opposed to the planning, if I'm not

 4     mistaken, Mr. President.

 5             JUDGE ORIE:  Was your question -- you began final planning or ...

 6             MR. RUSSO:  My question was more geared towards the date.  I'm

 7     not going to quibble with counsel about the last planning activity.

 8             JUDGE ORIE:  Yes.  Immediately prior to Operation Storm.  Is that

 9     what you want to refer to.

10             MR. RUSSO:  Yes, Your Honour.

11             JUDGE ORIE:  Please proceed.

12             MR. RUSSO:

13        Q.   Mr. Rajcic, looking at this report on the screen, you can see it

14     indicates -- it's dated 7th of May, 1995, and it indicates -- I believe

15     it is from Brigadier-General Ademi to General Gotovina.  It indicates:

16     "Pursuant to your command we are ready to open fire on Knin within four

17     hours."

18             Let me ask you first, are you familiar with this report?

19        A.   This is the first time that I see it.

20        Q.   And do you know what Brigadier Ademi was prepared to fire at in

21     Knin on the 7th of May, 1995?

22        A.   Mr. Russo, I assume.  I can only assume.

23        Q.   I take that as you don't know?

24             MR. KEHOE:  Excuse me, Judge, he said can only assume.  That is

25     his answer.

Page 16270

 1             JUDGE ORIE:  If you say you can only assume, often people have

 2     reasons to assume something or not.  Could you give us any fact known to

 3     you which might be relevant for making any assumptions?  I'm not inviting

 4     to you make assumptions, but was there anything comes to your mind which

 5     might assist in understanding this document?

 6             THE WITNESS: [Interpretation] Your Honour, I would have to look

 7     at the time when the operation SKOK-2 was terminated.

 8             JUDGE ORIE:  I can't give you any answer to that.  I don't know

 9     whether there's any -- but could you indicated why that would be

10     relevant?

11             THE WITNESS: [Interpretation] Your Honour, because after

12     operation SKOK-2, which came before Ljeto 95 or Summer 95, we took

13     control of the dominant elevations on mount Dinara and at that time we

14     had 130-millimetre cannons in the area of Veliki Cilj, which is a peak, a

15     dominant elevation on mount Dinara, a dominant feature there; and that

16     was the first time where from those positions we were able to fire on the

17     settlement of Knin.

18             JUDGE ORIE:  You say that at a certain moment in time Knin came

19     within the reach of your artillery from the position you had recently.

20             THE WITNESS: [Interpretation] [Previous translation

21     continues] ... yes.  Already then.  Yes, already then after operation

22     SKOK-2, we were in a position to target Knin.

23             JUDGE ORIE:  Mr. Russo, please proceed.

24             MR. KEHOE:  I raise yet another issue with regard to this

25     document.  It is not on the 65 ter list.  It is on to the proposed list.

Page 16271

 1     It is not on any list that I have had.

 2             JUDGE ORIE:  Mr. Russo.

 3             MR. RUSSO:  That is correct, Your Honour, I was going advise the

 4     Court that this is it a document that appears as a -- cited by Reynaud in

 5     his report that is Exhibit P113.  This document appears at footnote 769.

 6     I did not put it on the exhibit list.  I, had in fact, not come across

 7     this document.  It's only come to my attention after the witness gave the

 8     answer he gave about when he started the plan for drafting artillery.

 9             JUDGE ORIE:  Well, the witness says he doesn't know anything.  He

10     sees the document for the first time.  So I don't know what the probative

11     value is of this document.

12             MR. RUSSO:  Not sure if Your Honour wants me to answer that in

13     the presence of the witness.

14             JUDGE ORIE:  Not necessarily at this very moment.

15             Mr. Kehoe.

16             MR. KEHOE:  The larger question is the methodology that we seem

17     to be employing here about not giving notice, as the Prosecution is

18     required to do concerning this document.  We've had numerous lists of

19     exhibits and this is has not appeared at any time.

20             JUDGE ORIE:  The Chamber will have it marked for identification,

21     only at this moment and decide on admission at a later stage.

22             Mr. Kehoe, if any new document comes up where you say it should

23     not even be put to the witness I would not mind that you object already

24     before Mr. Russo tenders it.  Because Mr. Russo is in that respect

25     sometimes he immediately starts tendering a document as soon as it is on

Page 16272

 1     the screen.  Whereas in other positions, other moment, he first puts

 2     questions to the witness and if there is a -- especially here where it is

 3     neither on the 65 ter list not recently received, then I would not mind

 4     if you immediately say that, We'll then decide whether Mr. Russo can use

 5     it at all.

 6             MR. KEHOE:  Judge, if if can I offer a procedure if a document is

 7     not on the 65 ter number list, and if it's not on the exhibit list that

 8     the Chamber can ask the Prosecution to tell the Chamber first as the

 9     exhibit comes up, as opposed to I go and scramble around for these lists

10     to see if I somehow missed this document as I was doing my pre-trial

11     prep.

12             JUDGE ORIE:  The problem may be that we might -- we get a

13     document on the screen.  Often 65 ter number is provisionally assigned to

14     it.  So I do not have the 65 ter list completely on my mind to

15     immediately say, This one is not on the list, that one is on the list.

16     If are you not able either then we would have to invite Mr. Russo to tell

17     us right at the beginning.

18             MR. RUSSO:  Mr. President I'm happy to do that.  In fact, I agree

19     I should have done that with this document.  If it is not on the exhibit

20     list which I provided I will advise counsel and Chamber prior to calling

21     the document.

22             JUDGE ORIE:  Yes, if it is on the exhibit list but not 65 ter

23     list you should notifies us as well.

24             MR. RUSSO:  I want to be clear about that, Your Honour, if it's

25     on the exhibit list and still not on the 65 ter list.

Page 16273

 1             JUDGE ORIE:  One of the complaints was that many of the documents

 2     we see here are not admitted yet to the 65 ter list so if you say if it

 3     is on the exhibit list, then if you refer to the exhibit list we received

 4     recently, then you should also make clear whether it is admitted --

 5     whether it is on the 65 ter list.

 6             MR. RUSSO:  I will do so, Your Honour.

 7             JUDGE ORIE:  Because we have sometimes two problems.

 8     Mr. Kuzmanovic.

 9             MR. KUZMANOVIC: Your Honour, I was going say something but the

10     point has been made so ...

11             JUDGE ORIE:  Thank you.

12             Mr. Russo, please proceed, but I think we invited Mr. Registrar

13     to assign a number for this document to be marked for identification.

14             THE REGISTRAR:  This becomes Exhibit P2326, marked for

15     identification.

16             JUDGE ORIE:  Thank you, Mr. Registrar.

17             Please proceed, Mr. Russo.

18             MR. RUSSO:  Thank you, Mr. President.

19        Q.   Again, Mr. Rajcic, Can you tell us what Brigadier Ademi was

20     prepared to fire at on July 5th, 1995?

21             JUDGE ORIE:  Mr. Kehoe.

22             MR. KEHOE:  Mr. President, I think, again.  I mean --

23             MR. RUSSO:  Your Honour, we never got an answer to the question.

24             MR. KEHOE:  Excuse me, I think Your Honour addressed this issue.

25             JUDGE ORIE:  That is to some extent true and to some extent not

Page 16274

 1     true.  It's true that you didn't receive an answer.  But what the witness

 2     told us is that he could assume something.  Then you said, So you don't

 3     know.  And then I think I intervened and said, Well, sometimes there are

 4     facts known to a person on which he might base an assumption and he asked

 5     him for those facts.  And he gave those facts.  Although he said, I would

 6     have to check the time frame exactly to know whether there would -- could

 7     explain the situation.  But to some extent you're right, when you said,

 8     So you don't know.

 9             I take it that not having looked at it, and telling us that you

10     could assume something, that -- and also on the basis of the explanation

11     that you then gave, may I take it that you have no specific knowledge on

12     what Brigadier-General Ademi was specifically talking about when he

13     said -- not that he was prepared but that he was ready to fire on Knin.

14             THE WITNESS: [Interpretation] For me to be able to define the

15     text and the possibilities of targeting Knin, I would have to have

16     information because of the area, the region.

17             JUDGE ORIE:  [Previous translation continues] ... you are

18     offering more or less a reconstruction on the basis of more information.

19     What I'd like it know is did Mr. Ademi ever tell you what he meant by

20     that.  Was it ever explained to you by anyone what may have been the

21     meaning of -- thank you.  Please proceed.

22             THE WITNESS: [Interpretation] No.  No.  No.

23             MR. RUSSO:

24        Q.   Mr. Rajcic, do you know why -- well, let me ask you this; were

25     you consulted at all during this time-period of May 1995 by

Page 16275

 1     General Gotovina or by anyone else, as to targets to be fired at with

 2     artillery in Knin?

 3        A.   No.

 4        Q.   Were you the chief of artillery for the Split Military District

 5     at that time?

 6        A.   Yes.

 7        Q.   Can you offer any reason why you would not have been consulted,

 8     had plans been made to fire on Knin at that time?

 9             MR. KEHOE:  If I may, Judge, that is pure speculation at this

10     point.  If plans had been made that -- first, that is the one premise,

11     speculation and why he wasn't --

12             JUDGE ORIE:  Mr. Kehoe, not this question may lead to speculation

13     but the question is not such that the answer could only be speculative

14     and that's the test.

15             Could you answer the question, please.

16             You remember the question?

17             THE WITNESS: [Interpretation] Yes.  Whether I was the chief of

18     artillery for the Split Military District, and my answer to that was yes.

19             Now, it says Operative Group Livno, and at that time the chief of

20     artillery for the Operative Group of Livno was another officer, or

21     Operations Group Livno.

22        Q.   Can you tell us who that operations officer -- I'm sorry, can you

23     tell us who the officer was who was the chief of artillery for Operation

24     Group Livno at that time?

25        A.   Not with certainty, no.

Page 16276

 1        Q.   Can you tell us a name without 100 percent certainty?

 2        A.   In Operation Group Livno, the chiefs of artillery changed.

 3     Mr. Bruno Milin; then there was Mr. Mamic, the two of them.  I don't know

 4     when which one of the two took over duty during this particular period.

 5        Q.   The two officers that you have named, Mr. Bruno Milin and

 6     Mr. Mamic, these were the commanders of the corps artillery groups TS-4

 7     and TS-3 during Operation Storm; is that right?

 8        A.   Yes.

 9        Q.   Thank you.

10             Now, going back to when the planning for artillery in

11     Operation Storm began, can you explain to the Chamber a bit about how the

12     process worked.  You have already indicated that you prepared an

13     artillery plan and submitted it to General Gotovina.  Can you enlighten

14     us as to any discussions you had with him with whether to use artillery,

15     what the considerations were that went into the decision on whether or

16     not to use it?

17        A.   At the level of my discussions with the Commander-in-Chief and at

18     a meeting of the 1st of August, 1995 in Split, General Gotovina expressly

19     ordered to everyone present at that meeting -- or, rather, gave orders to

20     everyone present, and after providing the first information and the order

21     that preparations start for Operation Storm, a special caution, he

22     stressed, should be taken, because of the fact that we did not have

23     enough artillery ammunition and ammunition for tanks, that we should bear

24     that in mind, the deficiencies there and what must be done was to conduct

25     a special analysis into the selection and preparation of artillery pieces

Page 16277

 1     to be used in the most sensitive targets along enemy lines.

 2        Q.   Did he discuss with you any special considerations or in fact any

 3     considerations at all about the use of artillery in the populated towns

 4     of Knin, Benkovac, Obrovac, or Gracac?

 5             MR. KEHOE:  Excuse me, Mr. President.  If we could have add,

 6     Drvar, which is in Bosnia-Herzegovina to the list, that is in the list of

 7     towns that were in the order that I might note as being left out

 8     consistently by the Prosecution.

 9             JUDGE ORIE:  Mr. Russo, if I would say, I overlooked that, that's

10     fine.  On the other hand, of course, Mr. Kehoe is not --

11             MR. RUSSO:  I'm a bit confused, Your Honour.  We have been

12     constantly facing objections about the relevance of material happening in

13     Bosnia, at this point.  I'm not saying it is irrelevant, I simply don't

14     want to focus on it.

15             JUDGE ORIE:  There is a suggestion.  If you want to follow that

16     yes or no, I leave it entirely to you.

17             MR. RUSSO:

18        Q.   Mr. Rajcic, let me ask you the question again.

19             Did you have any discussions with General Gotovina about the

20     considerations of using artillery in the civilian-populated areas of

21     Knin, Benkovac, Obrovac, and Gracac?

22        A.   Yes.

23        Q.   And can you explain to us what those considerations were.

24        A.   The responsibility on the part of the superior command of the

25     Main Staff of the Croatian army, which makes it incumbent on the fact

Page 16278

 1     that the Main Staff of the Army of the Republika Srpska and the command

 2     posts in depth should be placed under artillery supervision.

 3        Q.   I'm not certain I understand what you mean by "should be placed

 4     under artillery supervision."

 5             Can you explain what that means?

 6        A.   That means in the tactics applied and the deployment of the

 7     artillery, that looking at those targets, at a certain point in time with

 8     the development of combat, that when going into action all the rules of

 9     deployment and going into action should be observed.

10        Q.   Let be a little bit more specific.

11             First of all, in working with General Gotovina, do you know

12     whether he was aware of the ballistic characteristics of use of artillery

13     weapons?

14        A.   Yes.

15        Q.   Do you know whether he was aware of the relative inaccuracy of

16     artillery weapons?

17        A.   Well, yes.

18        Q.   Did he ever express to you any concerns about the use of that

19     kind of weaponry in a civilian-populated area?

20        A.   He expressed it in the way that he asked for maximum precision

21     and that a proportionality be respected.

22        Q.   And what did you understand maximum precision to mean?

23        A.   As an artillery man myself, or an officer in the artillery, I

24     understand that one sentence as meaning and implying all the actions that

25     must necessarily be undertaken, in order to ensure that an artillery

Page 16279

 1     shell or rocket reach its target as precisely as possible.  To hit the

 2     target as precisely as possible.

 3        Q.   As an artillery officer, I take it you're aware that there is a

 4     range of error for every artillery weapon; is that right?

 5        A.   Yes, both objective and subjective.

 6        Q.   And was General Gotovina, to your knowledge, aware that there was

 7     a range of error inherent in artillery weapons?

 8        A.   Yes.  And that is why he asked it to be reduced to the least

 9     possible measure.

10        Q.   And what were the ranges of error of the weapons used to fire on

11     Knin, or targets in Knin?

12        A.   That depended on the distance from which the target was being

13     targeted.

14        Q.   Let me be a little more specific then.  The weaponry which you,

15     in fact, used against targets in Knin, can you tell us, first of all,

16     what that weaponry was, and what the ranges of error for each one of

17     those weapons were, given where they were located.

18        A.   The targets in Knin on the first day of the attack were targeted

19     by a 130-millimetre cannon and the multi-barrel rocker launchers of

20     122-millimetre, BM 21.  And on the second day during the attack, in the

21     operation itself, there were a number of projectiles that were fired from

22     Howitzers.  The 122-millimetre D30-type Howitzer.

23        Q.   Let's focus first on the 4th of August.

24             First of all, were there any other kinds of weapons used to fire

25     on targets in Knin on 4 August, other than the 130-millimetre gun which

Page 16280

 1     you mentioned and the 122-millimetre multiple-barrel rocket launcher

 2     system.

 3        A.   No.

 4        Q.   Can you tell us what the ranges of error were for each one of the

 5     guns that fired into Knin on that date.  I'm sorry, I should also add

 6     rockets.

 7        A.   For the 130-millimetre cannon, I can say that at a distance of

 8     26 kilometres, I would -- or for that distance, I would have to consult

 9     the -- the firing tables because it is difficult to keep all that on

10     one's mind.

11             This is a range of probably error of about 14 or 15 metres for --

12     along the axis, but -- and as for distance, the errors is about 70 to 75

13     metres.  But -- but to give you precise data, I would have to consult the

14     firing tables, because these values change.

15             As for MLRs, without consulting firing tables, I cannot say what

16     the probable deviation would be, if they -- if they fire at targets that

17     are at the -- at their -- the end of their range.

18        Q.   Let me first start with the 130-millimetre guns.

19             You indicated for the 130-millimetre cannon a range of 26

20     kilometres.  There were two positions from which 130-millimetre guns were

21     being fired on Knin; right?

22        A.   Yes, that's correct.

23        Q.   There was TS-3 commanded by Mr. Mamic, which was in Operational

24     Group North, correct, or in the area of Operational Group North, I should

25     say; is that right?

Page 16281

 1        A.   Yes, it is.

 2        Q.   And then there was TS-4 of OG Sibenik commanded by Mr. Milin;

 3     correct?

 4        A.   That's correct.

 5        Q.   What was the distance from where the 130-millimetre guns and TS-3

 6     were situated and their targets in Knin, approximately?

 7        A.   The distance topographically measured and at the end of their

 8     range was 27 kilometres.  I'm referring to TS-3 now.

 9        Q.   And how about for TS-4, if you can recall?

10        A.   I'm sorry, I would like to provide explanation.

11        Q.   [Previous translation continues] ...

12        A.   Not -- this doesn't apply to all the targets in Knin but only to

13     the extreme target.

14             For TS-4 the first or closest target was about 25 kilometres away

15     from them.

16        Q.   And when you're giving these distances to targets, are you

17     talking about targets within the town of Knin?

18        A.   In the settlement of Knin from the bridge to the north-east exit

19     from the settlement toward the Dinara mountain.

20        Q.   Okay.  Now, the 122-millimetre BM 21 multiple-barrel rocket

21     launcher systems, can you tell us the distance between those weapon

22     systems and the targets in Knin which they fired on, on 4 August?

23        A.   The closer target, the one closer to the positions of the BM 21

24     launchers in the north-east, in the direction of Mount Dinara, was

25     18 kilometres away and the farthest target about 20 kilometres.

Page 16282

 1        Q.   Thank you.  Now, I understand you may not know the probable

 2     ranges of error of those weapons at that distance at this time.  However,

 3     was the probable range of error of those weapons discussed with

 4     General Gotovina by you or anyone else, to your knowledge, prior to the

 5     decision to actually fire?

 6        A.   Yes, it was.

 7        Q.   And did he express any concerns to you regarding the probable

 8     ranges of error of those weapons?

 9        A.   Yes, he did.

10        Q.   If you can recall, what exactly were his concerns?

11        A.   He was concerned about the likely deviation of a missile or a

12     shell to exceed the size of the target.

13        Q.   Were there any targets in particular that raised this concern, in

14     Knin?

15        A.   For strategic level targets, there was such concern.  I'm

16     referring to the Main Staff of the so-called Army of the Republika Srpska

17     Krajina and the system of the communications centre for the -- for the

18     area of the so-called Republika Srpska Krajina.

19        Q.   And for those two targets, were either of these weapon systems,

20     the 130-millimetre cannon or the 122-millimetre multiple-barrel rocket

21     launcher system, were they capable of being fired at these targets and

22     hitting only those targets and nothing else around them.  Was that a

23     possibility.

24        A.   If we consider the whereabouts of the two targets, the

25     location -- or, rather, with respect to the location of the targets it

Page 16283

 1     was only possible to target the railroad station.  If we're speaking

 2     about the BM 21 MLR.

 3        Q.   I want to make certain that I understand your answer, Mr. Rajcic.

 4             Are you indicating that the railway -- the railroad station is

 5     the only target in Knin which you could fire at with these weapons and

 6     not have the projectiles go beyond the limits of the target?

 7        A.   No, I didn't say that, sir.  I said around the targets that were

 8     the Main Staff of the army of the so-called Republika Srpska Krajina.

 9        Q.   You indicated that General Gotovina had expressed a concern

10     about --

11             JUDGE ORIE:  Mr. Russo, I still do not fully grab the answer of

12     the witness.

13             Could you perhaps further explore what he exactly means.

14             MR. RUSSO:  I'm attempting to do that, Your Honour.

15        Q.   You indicated that General Gotovina expressed a concern about the

16     range of error, that the weapons might go beyond the actual targets.  Did

17     I understand that correctly?

18        A.   Yes.

19        Q.   And I asked you to identify which targets in particular he had

20     that concern about, about the projectiles landing beyond the target, and

21     you indicated the Main Staff of the RSK and the communications centre of

22     the RSK.  And then when I asked about that, you added the railroad

23     station.

24             So I just want to be clear:  What targets did General Gotovina

25     indicate to you were a concern that shells would fall outside of the

Page 16284

 1     target?

 2        A.   Before I answer your last question, I must add a comment.

 3             You asked me whether there were other targets in the area that it

 4     was possible to shell with launchers and cannon, and then I said that the

 5     railroad station was such a target.

 6             And now coming to your last question.  General Gotovina expressed

 7     concern about a possible or probable deviations of the projectiles

 8     outside the extent of the targets, and with regard to the Main Staff of

 9     the Army of Republika Srpska Krajina and the communications centre, which

10     was in immediate proximity.

11        Q.   And with respect to those two targets, the Main Staff of the RSK,

12     and the communications centre, were the 130-millimetre guns and

13     122-millimetre rocket systems, were they capable being fired at those

14     targets and only hitting those targets and nothing else around them?

15        A.   No.

16        Q.   And did you inform General Gotovina of that fact?

17        A.   Yes.  That information was present.

18        Q.   Are you certain that he understood what you were telling him

19     about that?

20        A.   It isn't for me to judge whether the commander has understood.

21     I apologise, but -- I apologise for replying to your question with

22     another question.

23        Q.   Fair enough.

24             Did he indicate to you why he nevertheless decided to go ahead

25     and fire at those targets, knowing that the shells -- some shells which

Page 16285

 1     were fired at them would not hit those targets but would, in fact, hit

 2     the area around them?

 3        A.   Yes.

 4        Q.   Can you tell us what he said?

 5        A.   That there was the risk of some projectiles missing the targets,

 6     that the Main Staff of the Army of Republika Srpska Krajina was a highly

 7     interesting target, or the target, par excellence, in combat.  And that

 8     we should analyse the possible collateral damage, due to that handicap.

 9        Q.   And did you analyse the possible collateral damage to be caused

10     by firing artillery at targets in Knin?

11        A.   Yes.

12        Q.   And what was the result of your analysis of possible collateral

13     damage?

14        A.   The analysis showed that it is possible that citizens come to

15     harm to a lesser extent at Knin and that lesser material damage to the

16     surrounding buildings is also possible.

17        Q.   When you say "harm to a lesser extent," lesser than -- lesser as

18     compared to what?

19        A.   Well, a lesser extent if we take into consideration the effect of

20     contact-fuse shells.  Those shells have the characteristics that they

21     cannot pierce concrete buildings, and the projectiles cannot enter the

22     inside of the building.

23        Q.   I'd like to come back to that point a bit later, but I want to

24     stick for now with the analysis of possible collateral damage.

25             You compared -- or what did you compare the use of artillery to,

Page 16286

 1     in deciding what the relative amount of collateral damage would be?

 2        A.   The input for that analysis was, firstly, the tactical and

 3     technical characteristics of the target itself, the area of the target,

 4     the surface area, the surrounding buildings, the quality of construction;

 5     and we made your analysis, based on intelligence information, saying that

 6     at Knin, at the time when the shelling was to be effected, a curfew was

 7     in place.

 8             And as early as June, according to our intelligence, there had

 9     been substantial emigration of citizens from Knin, and at the given time,

10     that is 5.00 a.m., the presence of civilians on the streets and in

11     buildings, too, will be at the level of the -- the orders of the Army of

12     Republika Srpska Krajina and their plans to provide for the civilians.

13        Q.   Let me ask you, Mr. Rajcic:  130-millimetre guns are more

14     accurate than multiple-barrel rocket launcher systems.  Would you agree

15     with me?

16        A.   No.

17        Q.   Can you tell me in what circumstances a 130-millimetre gun would

18     be more accurate than a rocket system?

19        A.   The purpose of both types of artillery pieces is different.  The

20     130-millimetre cannon can be used for targeting point targets; whereas,

21     the BM 21 launcher, 122-millimetre calibre, can cover a certain area,

22     taking into consideration all procedures and actions necessary for the

23     concentration of projectiles upon their contact with the target be

24     reduced to the least possible extent.

25        Q.   Now when you say that 130-millimetre cannon can be used for

Page 16287

 1     targeting point targets, can you tell me how you define a point target,

 2     in terms of size?

 3        A.   A point target can be defined as follows:  A place, the

 4     coordinates of which; that is, X, Y, and Z are precisely defined.  Which

 5     certainly implies a precise implementation of all operational procedures

 6     for the artillery piece to be positioned in the most accurate manner.

 7             Then a point target can also be an area which for the

 8     130-millimetre cannon can be the size of the normal scattering of -- of

 9     shrapnel on the target.

10        Q.   I understand your explanation.  I'm wondering if can you give us

11     an area size; for example, 50 metres squared, or 25 metres squared.  What

12     you consider to be a point target that artillery system like a

13     130-millimetre gun is effective at firing at?

14        A.   I can give you a rough explanation.  50 metres by 50, but that

15     requires additional explanation.

16             The normal scattering or dispersion of a 130-millimetre shell is

17     an area with a diameter of 35 metres.

18        Q.   And how does that compare with a 122-millimetre rocket system, in

19     terms of being able to effectively hit an area that size?

20        A.   It can be compared in different ways.  Let me explain.

21             The technical capabilities of the BM 21 MLR enable it to fire

22     individual missiles, which means that you needn't always fire the entire

23     set of missiles.

24        Q.   And that's what I'm attempting to determine.  If you fire just

25     one 122-millimetre rocket, is that going to be more accurate or less

Page 16288

 1     accurate than if you fired one 130-millimetre cannon?

 2        A.   It can be just as accurate because the procedures and actions of

 3     preparation for firing are the same as in the 130-millimetre gun.

 4        Q.   Now, a 130-millimetre cannon is essentially a very big gun.  It

 5     fires one large shell under a charge; correct?

 6        A.   Yes, it is relatively large.  It weighs 34 kilograms.

 7        Q.   And a rocket system is a projectile which leaves the system and

 8     arrives at the target under its own propulsion system; correct?

 9        A.   Yes.  It has a -- it has rocket propulsion, rocket fuel.

10        Q.   And --

11             JUDGE ORIE:  Mr. Russo, I'm looking at the clock.  I have a

12     matter to deal with for two minutes.  I don't know whether you are

13     exploring in full depth the two systems.  That certainly would take quite

14     some time.

15             MR. RUSSO:  I've got one or two more questions on this area, Your

16     Honour.

17             JUDGE ORIE:  If you would please put them.

18             MR. RUSSO:

19        Q.   Now, does a rocket which is self-propelling propulsion system

20     versus a shell, which has been fired out of a charge, do they have the

21     same ballistic characteristics in terms of moving with the wind, in terms

22     of -- can you tell me whether or not they are subject to the same

23     ballistic characteristics and whether those characteristics affect the

24     projectiles in the same way?

25        A.   There can be ballistic difference, with regard to the active part

Page 16289

 1     of the trajectory while the rocket fuel is burning in the propulsion

 2     system.  Whereas in the second part of the trajectory, both projectiles

 3     behave in the same way, given the same ballistic conditions.  That is, in

 4     the stage when the shell or the rocket are flying freely toward the

 5     target.

 6        Q.   Thank you.

 7             MR. RUSSO:  I'm finished with this topic, Your Honour.

 8             JUDGE ORIE:  Thank you, Mr. Russo.

 9             Mr. Rajcic, we would like to see you back tomorrow morning at

10     9.00, but I would first like to instruct you that you should not speak

11     with anyone, anyone, whoever it is, about your testimony, the testimony

12     already given, or testimony still to be given.  We'd like to see you back

13     tomorrow morning, although we will be in another courtroom, courtroom 1.

14             Madam Usher, could you please escort Mr. Rajcic out of the

15     courtroom.

16                           [The witness stands down]

17             JUDGE ORIE:  Then I'd like to deliver the decision of the Chamber

18     on the motion to hear the testimony of Witness 13 via video-conference

19     link.

20             On the 11th of February, the Prosecution filed a motion

21     requesting to hear the testimony of Witness 13 via video-conference link

22     on the 24th of February, 2009.

23             On the 13th of February, all three Defence teams informed the

24     Chamber that they did not object to the Prosecution's request.  On the

25     same day, the Chamber decided to grant the request for a video-conference

Page 16290

 1     link and informed the parties accordingly through an informal

 2     communication.

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

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

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

 6             As the Chamber has set out in numerous decisions in this case,

 7     the test of Rule 81 bis is met if a witness is unable to come to the

 8     Tribunal, if the testimony of this witness is sufficiently important to

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

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

11     confront the witness.

12             Medical documentation, attached to the Prosecution's motion,

13     describes that Witness 13 suffers from angina pectoris, and indicates

14     that the witness, because of her condition, cannot travel.  On the basis

15     of this, the Chamber is satisfied that Witness 13 is unable to travel to

16     Tribunal to testify.

17             Witness 13 is expected to testify about scheduled killing

18     incident number 1 in the indictment.  The Chamber is, therefore,

19     satisfied that her prospective testimony is sufficiently important to

20     make it unfair to the Prosecution to proceed without it.

21             Finally, the Defence has not argued, and the Chamber does not

22     find that the accused would be prejudiced in the exercise of their right

23     to confront the witness.

24             Consequently, the Chamber finds that it is consistent with the

25     interests of justice to grant the Prosecution's request to hear

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 1     Witness 13's testimony via video-conference link, and the Prosecution

 2     motion is, therefore, granted.

 3             This concludes the Chamber's decision on the matter.

 4             We adjourn for the day, and we will resume tomorrow, Thursday,

 5     the 19th of February, 9.00, Courtroom I.

 6                            --- Whereupon the hearing adjourned at 1.48 p.m.,

 7                           to be reconvened on Thursday, the 19th day of

 8                           February, 2009, at 9.00 a.m.