Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20216

 1                           Tuesday, 14 July 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness takes the stand]

 5                           --- Upon commencing at 9.06 a.m.

 6             JUDGE ORIE:  Good morning to everyone.

 7             Madam Registrar, could you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case number

 9     IT-06-90-T, the Prosecutor versus Ante Gotovina, et al.

10             JUDGE ORIE:  I have French on channel four.

11             Good morning, Mr. Barkovic.  I would like to remind that you

12     you're still by the solemn declaration that you gave yesterday at the

13     beginning of your testimony, that is, that you will speak the truth, the

14     whole truth and nothing but the truth.

15                           WITNESS:  MLADEN BARKOVIC [Resumed]

16                           [Witness answered through interpreter]

17             Mr. Russo, are you ready to continue your cross-examination?

18             MR. RUSSO:  Yes, Mr. President.

19             JUDGE ORIE:  Then please proceed.

20             MR. RUSSO:  Thank you.

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

22        Q.   Good morning, Professor.

23        A.   [In English] Good morning.

24        Q.   Professor, we left off at the end of yesterday discussing the

25     reassignment of Major Werner Ilic.  And just to recap, the major was

Page 20217

 1     assigned to take the MPRI courses which were designed to teach him how to

 2     teach other NCOs; is that correct?

 3        A.   [Interpretation] Yes.

 4        Q.   And you gave us some explanations yesterday about why the major

 5     was dissatisfied with his assignment.  One of the reasons indicated in

 6     General Griffiths' letter that we read yesterday was that Major Ilic

 7     didn't see the value of the programme itself; is that correct?

 8        A.   Yes.

 9        Q.   And was Major Ilic eventually permitted to return to his unit?

10        A.   Yes.

11        Q.   And are you aware of whether or not Major Ilic was disciplined

12     for having failed to report to the MPRI classes?

13        A.   I don't know anything about that.

14        Q.   Professor, what message do you think it sends not only to

15     Major Ilic but to the other HV soldiers he may have discussed the MPRI

16     classes, what message do you think it sent to them about the MPRI classes

17     and how valuable they were, given that Major Ilic was simply permitted

18     not to show up?

19        A.   It was definitely not a good message.  But it's clear that if

20     someone does not want to be an instructor, he or she cannot be forced to

21     do so.  And Major Ilic did not join from the very start.  He came later.

22     So I don't know if this is an alleviating circumstance.  He was not

23     familiar with the whole programme in the first place.  He was just

24     included in the first stage of preparatory courses, so he was never able

25     to have insight into the whole of those programmes.  And later, he

Page 20218

 1     attended the Main Staff school and we had never any problems of

 2     intolerance with him, so I don't think he spread any disinformation or

 3     fueled any problems with the democracy assistance transition programme.

 4        Q.   Thank you.  But you would agree with me and with the sentiments

 5     expressed by Major-General Cosic, that Major Ilic's unilateral decision

 6     to simply stop going to the class was not appropriate and, in fact,

 7     warranted discipline?

 8             MR. KEHOE:  Excuse me, if I may, that is not what the Cosic

 9     letter says.

10             MR. RUSSO:  My apologies.  That's correct.  Only the first

11     portion.

12             MR. KEHOE:  [Overlapping speakers] ...

13             MR. RUSSO:  It's my assertion that that warranted discipline.

14             MR. KEHOE:  Can we split that up.  I mean, if we go back to the

15     Cosic letter and read the Cosic letter and ask the question there, it may

16     be more accurate.

17             JUDGE ORIE:  Mr. Russo, will you please rephrase your question in

18     such a way that it accurately reflects what you're referring to, and

19     perhaps take one step by one step.

20             MR. RUSSO:  Certainly, Mr. President.  Thank you.

21        Q.   You would agree with Major-General Cosic that Major Ilic's

22     unilateral decision to stop going to the classes was inappropriate

23     conduct, unbecoming of a HV officer; correct?

24        A.   Yes, definitely.

25        Q.   And would you agree with me that when an officer, or when a NCO,

Page 20219

 1     or a soldier or anyone in the HV army takes such inappropriate unilateral

 2     action that it warrants discipline?

 3        A.   Yes.

 4        Q.   Thank you, Professor.

 5             MR. RUSSO:  Mr. President at this time I would move for the

 6     admission of 65 ter 7276.  That's the Cosic and Griffiths letter.

 7             MR. KEHOE:  No objection, judge.

 8             JUDGE ORIE:  Madam Registrar.

 9             THE REGISTRAR:  Your Honours, the document will become Exhibit

10     P2588.

11             JUDGE ORIE:  And is admitted into evidence.

12             Mr. Russo, would you allow me one additional question.

13             Mr. Barkovic, could you explain your answer that, as you said, it

14     is clear that someone who does not want to be an instructor, he or she

15     cannot be forced to do so.

16             Isn't it true that in a military structure that you have to obey

17     what orders you get and that, if you don't obey them, that you can be

18     forced, or at least measures can be taken such that either do you it or

19     negative consequences will follow?

20             THE WITNESS: [Interpretation] Yes.  I mean, these two things are

21     not mutually contrary.  I know as a teacher that a person who does not

22     really wish to teach others but is forced to do so is not going to do a

23     good job any way.  So if somebody does not want to be a teacher or

24     instructor, it is better to remove them.

25             On the other hand, I agree with you that the person who does not

Page 20220

 1     obey orders in the army should be sanctioned.

 2             However, here again, we have to bear in mind the environment in

 3     which all this was happening.  We had put together teams of American

 4     officers and Croatian officers in November 1994, and within a month, we

 5     sized up the situation, made a baseline assessment, put it in a document;

 6     and then, in January, we prepared an instructor training programme for

 7     NCOs, because we had noticed certain shortcomings before, and at the

 8     beginning of that course, Werner Ilic appeared at the MPRI.  Did he not

 9     really know where he was going and what he would be doing there, and his

10     personal qualities made him blow his stack, in a way.

11             He had come from America to Croatia to defend the country, and

12     when his disciplinary liability was evaluated, I think this circumstance

13     was also taken into account, and, as a result, he was only reprimanded

14     and told that this kind of conduct was not acceptable, and he was given

15     another job that he was able and willing to do.

16             JUDGE ORIE:  Please proceed, Mr. Russo.

17             MR. KUZMANOVIC:  Your Honour, I'm sorry.  Line 5 or page 5.  I

18     lost it.  Line 6 the circumstances under which Mr. Werner Ilic appeared

19     were not -- did not get translated.  He didn't just appear there.

20             THE WITNESS: [Interpretation] Is that a question to me?

21             JUDGE ORIE:  You may clarify it.

22             THE WITNESS: [Interpretation] Your Honours, in the course of

23     preparations, we had received a very short order consisting of only two

24     items, saying that Werner Ilic, Major Werner Ilic was to join, and, on

25     the next day he arrived pursuant to that order.  We found him accommodate

Page 20221

 1     addition at the barracks, and on the third day after this order he

 2     started to work.  That's what I meant by saying he appeared.  Did he not

 3     appear of his own free will.  He been sent pursuant to an order, sent and

 4     signed, I believe, by General Cosic.

 5             MR. RUSSO:

 6        Q.   Thank you, Professor.  I have no further questions.  I do

 7     appreciate your testimony.  Thank you.

 8             MR. KEHOE:  Thank you.

 9             THE WITNESS: [Interpretation] You're welcome.

10             MR. KEHOE:  Yes, Mr. President I have a few matters to cover with

11     the witness.

12             JUDGE ORIE:  Yes, please do so.

13                           Re-examination by Mr. Kehoe:

14        Q.   With regard to Major Ilic, Major Ilic came -- was it your

15     testimony that Major Ilic came to be an instructor, to will learn how to

16     be an instructor at this MPRI school; is that right?

17        A.   At the time, all of our instructors did two jobs.  On the one

18     hand, based on their abilities they already had, they prepared other

19     people to become instructors the best they could, and some who came for

20     the first time to prepare themselves to become instructors attended this

21     instructor training course.  Major Ilic was to join the group of people

22     who already were instructors and who were following an advanced programme

23     to become better instructor, and, at the same time, to prepare new men to

24     become instructors and there were many of those, many NCOs that needed

25     advanced training.

Page 20222

 1             So formally speaking, Major Ilic was sent to us as an instructor,

 2     although he did not have the necessary abilities and training for that.

 3     He had relatively little experience in training -- in the training of

 4     soldiers and NCOs but mainly in practical skills, and not in any academic

 5     skills that would enable him to educate others.

 6             MR. KEHOE:  I believe there is an issue with the transcript that

 7     Mr. Misetic will cover.

 8             MR. MISETIC:  Mr. President, if we could ask for -- at page 6,

 9     line 24 the witness described the purpose for which Mr. Ilic was sent to

10     this MPRI programme which didn't get picked up.

11             JUDGE ORIE:  You've heard the question.  Could you please clarify

12     the purpose for which Mr. Ilic was sent to this programme.

13             THE WITNESS: [Interpretation] Major Ilic was sent to become part

14     of the instructor team that was to prepare, both instructor training

15     courses, and after that, regular courses.  However, all our instructors

16     prepared at the same time to be better instructors and ran courses

17     themselves.  That is difficult to understand perhaps but because we had

18     limited time, that's the way we had to do it.  We prepared very

19     intensively training and then we carried out that training.

20             MR. KEHOE:

21        Q.   Professor, in P2558 [sic], the document from General Cosic and

22     the attached letter from General Griffiths, it notes in paragraph 5 that

23     Major Ilic requested relief from his assignment.

24             Do you recall that, sir?

25        A.   Yes, I recall that.  But he didn't ask that of me or of

Page 20223

 1     General Griffiths, the people who led the programme.  He instead sent a

 2     letter to the Chief of the Main Staff and the minister of defence saying

 3     that he was unwilling to participate.

 4        Q.   And do you recall General Griffiths, in paragraph 5, noting that,

 5     "In my view, Major Ilic is unsuited for assignment," and going down two

 6     sentences, "Major Ilic is a young, immature, unstable ... and overly

 7     impressed with himself."

 8             Do you recall that being as -- the consensus or the view of

 9     Major Griffiths concerning Major Ilic?

10  A.  Yes.  We discussed that, so, in fact, it was our joint opinion.  We all

11  agreed that Major Ilic had strayed into that programme which required more

12  systematic and quiet work than he was suited for, with his energy and level

13  of preparedness.  So that might be the reason why he acted the way he acted.

14             MR. RUSSO:  Apologies I just want to point out, page 7, line 18,

15     the exhibit should read P2588.

16             MR. KEHOE:  You're absolutely right.  I don't know if I misspoke

17     there, counsel, but thank you for the assistance.

18        Q.   And this discuss you had with Major Ilic, you then had a

19     discussion with General Cosic prior to this letter that was sent to the

20     minister of defence, Minister Susak; is that right?

21        A.   I don't remember if we had a discussion or not, but we did write

22     down what we thought.

23        Q.   Well, did everybody -- all of the -- the people that were part of

24     the decision-making agree that Major Ilic was unsuitable for this task

25     and that he should be sent back to his original unit?

Page 20224

 1       A.   Well, given that this was the result, I believe that General Cosic

 2     did as he wrote here, i.e., that he consulted the personnel service,

 3     General Gotovina and brigadier, as he was at the time, Sundov, who was I

 4     think in the 4th Brigade, and they agreed what to do, how, where to send

 5     Major Ilic for his assignment, taking into account our proposal and the

 6     fact that he was not a suitable person for our job in the programme.

 7             He was not happy with us and we didn’t think –- we thought we

 8     were better off without him.

 9        Q.   Sounds like my first marriage.  Just kidding.

10             JUDGE ORIE:  Is the second any better, Mr. Kehoe?

11    MR. KEHOE:  The second was much better, Mr. President, I must say, but ...

12        Q.   I want to change topics and just cover some of the things by

13     Mr. Russo discussed yesterday.

14             MR. KEHOE:  And turning first to P2559, and I believe this is

15     discussed, Mr. President, beginning on page 20197 going on to 20198, if

16     we could bring that up on the screen.

17        Q.   Now, if we could go first to the last page of this document,

18     which is -- maybe the second to last page, paragraph 210 which was the

19     focus of Mr. Russo's inquiries, and we will then come back to the first

20     page, but I would just like to touch on the last page first.

21             In the topic that we were discussing yesterday -- you were

22     discussed yesterday with Mr. Russo is 2.10 turning to proposals for

23     commendations for officers, non-commissioned officers, and lower ranks by

24     segments included in the attack operation will be submitted later.

25             Now, you were asked some questions about these proposals and

Page 20225

 1     recommendations, but I -- and you noted there were no names listed, but I

 2     would like to go back to this chain of this document and if we could back

 3     to the first page.

 4             Now, Professor, in the chain you noticed that there is a -- this

 5     is being executed by General Gotovina pursuant to your order class, and

 6     you see the reference number there as well as the -- the class number and

 7     the reference number of August 8th.

 8             Would it be fair to say that this is a response to an order to

 9     him?  And let us go to 65 ter 5634.

10        A.   Yes.

11        Q.   Now, the document on the screen is 65 ter 5634, and I will tell

12     you that -- Professor, that the class and serial number that are in this

13     document midway through on the left-hand side match that in

14     General Gotovina's order.  And as we noted from P2559, it's dated the

15     15th of August, and this is an order coming from General Cervenko, dated

16     8 August where he notes in 1:

17             "Data should be gathered, also the operation carried out should

18     be analysed, and by 15 August 1995, you should submit to me in written

19     form detailed reports, conclusions, and proposals concerning the

20     following issues."

21             And if we could turn to the next page in the English and the next

22     page in the B/C/S in the section for B it starts with conclusions and

23     proposals for promotion.  And under that paragraph, if we go down to the

24     last bullet, we go conclusions and proposals for promotion, and it notes

25     for the commendation of officer, non-commissioned officers, and soldiers

Page 20226

 1     according to segments and reads on.

 2             So based on your experience in the HV would you conclude looking

 3     at these two documents that General Gotovina was responding to this order

 4     from the Main Staff?

 5             MR. RUSSO:  Objection, Mr. President.  This is highly leading.

 6             MR. KEHOE:  I would ask him -- I withdraw the question.  I'll

 7     just ask him.

 8        Q.   Based on these two documents and based on your experience, sir,

 9     putting these two documents together, the order from the Main Staff and

10     General Gotovina's order, tell the Chamber what your conclusions are.

11        A.   Knowing the function of a military operation and the principle of

12     unified command, I think that these two documents clearly show that on

13     the 8th of August, the Chief of Main Staff ordered an analysis to be

14     done, and in that analysis, he required which items should be included

15     and he also ordered to draw conclusions and draft recommendations for the

16     purpose of the enhancement of a number of issues, which is the -- which

17     concerned the way of the -- how a military organisation functions.

18             We also saw that this is classified as highly urgent, this order.

19     And from the first document in which General Gotovina replied to that, we

20     see that a week later, that within that week, the analysis was conducted

21     and put on paper, and in that analysis, the answers to these questions

22     were given.

23             So we can conclude that he acted in accordance with -- with the

24     order of the Chief of General Staff.  If we were to refer to item 2.10,

25     we could say that he was careful enough.  He wasn't hasty, and he said

Page 20227

 1     that the proposals for commendations would be submitted subsequently.  So

 2     he gave himself enough time to consider with his subordinate officers who

 3     was -- who acted well enough during the Storm operation so as to be

 4     eligible for a commendation.

 5        Q.   Thank you, Professor.

 6             MR. KEHOE:  Mr. President, I believe Mr. Misetic had another

 7     note -- okay, I thought there was another mistake in the transcript, and

 8     I trust that is not the case.

 9        Q.   Now, do you recall, Professor, if President Tudjman gave an order

10     to give medals to people who participated in Storm and Flash, independent

11     of commendations?

12        A.   I don't recall.

13        Q.   Let me show you something and see if it refreshes your

14     recollection.

15             MR. KEHOE:  And I would like to show this via Sanction, and this

16     would be 1D2783.

17        Q.   I ask to you take a look at this document, Professor, being a

18     decision from the president and does that refresh your recollection as to

19     this -- the sequence of events by President Tudjman?  And, by the way,

20     this is dated 7 August 1995, concerning giving medals for Flash,

21     Operation Storm, and for others that participated in the liberation in

22     Dalmatia, Lika, Kordun, and Banja, as well as Summer 95, by the way.

23        A.   Yes, now I know what you meant.  It is usual not only in the

24     Croatian army but in all armies of the world to -- to introduce medals

25     for the participation in certain military operations, so that for Storm

Page 20228

 1     and other operations, such medals were introduced, and they were given to

 2     all who took part in them.

 3             As far as I know, those medals were not an acknowledgment for

 4     special undertakings but rather all soldiers, NCOs, and officers received

 5     that medal merely for their participation in those operations.

 6             MR. KEHOE:  Mr. President, at this time, I'd will offer into

 7     evidence 1D2783, and likewise as I'm doing with the prior document which

 8     is 65 ter 5634, which is the 8th of August order by General Cervenko.

 9             MR. RUSSO:  No objection to either document.

10             JUDGE ORIE:  Madam Registrar.

11             THE REGISTRAR:  Your Honours --

12             JUDGE ORIE:  Start with the 8th of August order, 65 ter 5634,

13     which was introduced by --

14             THE REGISTRAR:  That will become Exhibit D1605 and the second

15     document, 1D2783, will become Exhibit D1606.

16             JUDGE ORIE:  Both documents are admitted into evidence.

17             Please proceed.

18             MR. KEHOE:

19        Q.   And, Mr. Barkovic, based on your experience in the HV, would an

20     order such as that then be filtered down to -- through the Main Staff to

21     individual commanders to give a list of people who were eligible for such

22     a -- a medal?

23        A.   Yes.  And due to the relatively large span of command from the

24     level right below the Chief of General Staff down to the level of

25     platoons, certain time was necessary to do all that.

Page 20229

 1        Q.   Let me show you P1184 that's in evidence, which is an order from

 2     General Gotovina dated 16 August 1995 to all units of the Split Military

 3     District.

 4             If you take a look at this document.  In the preamble, it notes:

 5             "Pursuant to item 23 of the rules, rules of the armed forces of

 6     the Republic of Croatia ... in accordance with the order of the chief of

 7     the personnel administration of the Ministry of Defence of the Republic

 8     of Croatia ... of 14 August 1995, and in order to create optimal [sic]

 9     conditions to carry out the decision of the president of the Republic of

10     Croatia establishing a medal for participating in military police [sic]

11     operations, I hereby issue the following for successful completion of

12     military and police operations Summer 95 and Storm, based on this

13     order" --

14             JUDGE ORIE:  Mr. Kehoe you read optimal where the text on my

15     screen reads "operational."

16             MR. KEHOE:  Excuse me, operational.  My apologies.

17             If we can scroll down this on page 1:

18             "... for successful completion of the military and police

19     operations, Summer 95 and Storm, based on this order, all members of the

20     units of the Croatian army who took part in the area of responsibility of

21     the Split Military District are eligible to receive ..." and it has a

22     medal for Storm in 1.2 and a medal for Summer 95.

23             Now, again, do you see any link between these documents and, if

24     so, what is it?

25        A.   You mean the last three documents, from the order given by the

Page 20230

 1     Chief of General Staff, then the order given by General Gotovina, and

 2     this order right here that we have on the screen?

 3        Q.   No, I'm talking about Tudjman -- the President Tudjman directive

 4     and this order by General Gotovina.

 5        A.   [In English] Okay.

 6             [Interpretation] The decision of President Tudjman was to

 7     introduce medals for certain military operations.  General Gotovina's

 8     order for the period of defining the shape, et cetera, of these medals,

 9     was to find out who took part in the operation.  I can see an item here

10     mentioning all those who, for any reason, were not present in a combat

11     zone as excluded from this; and as we see, the medals for participation

12     should be given to the members of all units in operations Summer 95 and

13     Storm which actually followed one another, all those -- all those who

14     took part there were to receive medals.

15        Q.   Now, let me -- by the way, just to clarify the document itself,

16     you were referring to, I believe, paragraph 3 and 4 -- paragraph 3:

17             "All members of units are eligible to receive medal for their

18     participation in the operations from this order regardless of the time

19     spent in the unit during the operations."

20             And paragraph 4:

21             "Members who are absent from their unit for the duration of the

22     operations because of illness or other reasons shall not be eligible."

23             Just for clarity on the record, sir, are those the two paragraphs

24     that you were referring to?

25        A.   Yes.

Page 20231

 1        Q.   Now, I'm going to shift topics just for a moment and cover some

 2     of the discussion that you had yesterday with Mr. Russo concerning work

 3     by the NCOs and --

 4             JUDGE ORIE:  Mr. Kehoe, if you would allow me, I would like to

 5     seek some clarification of a matter which is not entirely clear to me.

 6             MR. KEHOE:  Yes, sir.

 7             JUDGE ORIE:  Mr. Barkovic, what we have seen is an order by

 8     President Tudjman of the 7th of August, which more or less introduces a

 9     kind of -- could I say automatic rewarding all those who participated

10     with a medal; and we see that on this document of the 14th further data

11     are sought to be collected in order to find out who they are.

12             Now --

13             MR. KEHOE:  I believe that's the 16th, Mr. President.  The order

14     by General Gotovina is the 16th, P1184.

15             JUDGE ORIE:  Let me just check.  Yes, that's the 16th, I

16     apologise for this lack of precision.

17             Now, apart from that, we have the order by General Cervenko of

18     the 8th, in which he asks for an analysis; and the response dated the

19     15th of August by General Gotovina in which he says, Well, commendations

20     for -- and I think it covered both medals but also, for example,

21     promotions.  You received that at a later stage.

22             Now, what I'd like to know is whether this is the same exercise.

23     Did the automatic granting medals for those who participated, did that

24     replace the commendation for specific officers, non-commissioned

25     officers, soldiers to receive promotion or to receive medals of whatever

Page 20232

 1     kind?  Are these -- is it the same, or are these two different exercises,

 2     the one being the automatic issuing medals to all participants; and the

 3     second, which appears to me, from what I've seen until now, to be a more

 4     individualised exercise so as to find out who, not just for their

 5     participation, but on the basis of their behaviour, would -- would

 6     deserve to be issued a medal or to be promoted?

 7             Is it the same exercise or are these two different exercises?

 8             THE WITNESS: [Interpretation] I think that these are definitely

 9     two separate exercises.  The one that -- one that starts with the

10     decision to introduce a medal and continues with the finding out who

11     really participated, and the other exercise was to give commendations,

12     et cetera, to those who -- who had outstanding achievements.  That is,

13     who stood out from everybody else.

14             JUDGE ORIE:  Thank you.

15             Please proceed, Mr. Kehoe.

16             MR. KEHOE:  Thank you, Mr. President.

17        Q.   I'd like to shift gears if we can, Professor, and go back to the

18     issue of NCOs, and I would like to take you back in the transcript.

19             MR. KEHOE:  And we are talking, Mr. President, about page 20204,

20     and the question by Mr. Russo that -- concerning NCOs and achievements of

21     objectives:

22             "Q.  He says doesn't this show, Professor, that it is not a

23     problem of lack of training or a problem of insufficient NCOs when the

24     NCOs have a job to do that they're interested in doing, they get it done.

25     Wasn't that the case?

Page 20233

 1             Your answer in line 7:

 2             "In one of my answer, I explained that the NCOs have three types

 3     of tasks.  Some of which they can achieve better and others poorer.  It

 4     is down to their technical and tactical levels of training, the spirit,

 5     morale, and discipline of the unit.  These objectives could have been

 6     achieved if the level of training and tactical activity was good, even if

 7     the morale or discipline was not.  These are two separate issues."

 8             Now, let me, once again, address for you D204, which is

 9     General Gotovina's order that we discussed very briefly yesterday of

10     10 August 1995.  And you can read the preamble, but the subject is order

11     on compliance with military discipline and measures.  And number 1 is:

12             "I prohibit arbitrary movement of HV members in the liberated

13     areas, without the knowledge of their superior commanders."

14             Now I will tell you, sir, that during the course of the evidence

15     received by this Chamber from a member of a Home Guard Regiment, a

16     question was asked by a member of the Chamber, and I'm referring to

17     page 19644, question beginning at line 15 to 20 by Judge Kinis, where a

18     question was posed to this member of the Home Guards who did some control

19     over you, over behaviour of soldiers at that time.  You said you didn't

20     know who your superior -- you didn't know who is your platoon commander,

21     and so -- but who -- was there actually some kind of control over

22     behaviour of soldiers where soldiers were freely to move during -- during

23     the night wherever they want?

24             "A.  No."

25             Now, sir, can you explain that type of issue where a witness

Page 20234

 1     would say there is no control over their behaviour and General Gotovina

 2     has to issue an order on the 10th of August to prohibit arbitrary

 3     movement of HV members?

 4             MR. RUSSO:  Mr. President, I have to object.  This is re-direct

 5     examination, and the witness is being fed information and led to

 6     particular conclusions.

 7             MR. KEHOE:  Mr. President --

 8             JUDGE ORIE:  Mr. Kehoe.

 9             MR. KEHOE:  -- I am taking the questions that were asked by

10     Mr. Russo, where he noted, again on pages 20203 and 4, where he posited

11     the premises that simply because military measures during Operation Storm

12     were completed, that indicated that there was, in fact, no problem at the

13     NCO level.  And that's the point I'm attempting to address, and it also

14     goes back, once again, to the question that Judge Kinis asked --

15             JUDGE ORIE:  The witness may answer the question.  At the same

16     time, I add to this, that when these questions were put by Mr. Russo

17     yesterday, if the result is good, doesn't that mean that the NCOs were

18     functioning well, that on the basis of the apparent lack of firsthand

19     information by this witness, because we are looking at documents whether

20     the -- whether the operation was successful or not, that the most could

21     be said on the basis of those documents, that, at least, a lack of

22     training was not an obstacle to the success.  That's the most you could

23     say about it, trying to -- without further detailed analysis, to see what

24     exactly the causes of the success were -- was an exercise which made no

25     sense.

Page 20235

 1             I add this, that also might limit your interest in trying to do

 2     similar things to -- to try to draw all kind of conclusions from

 3     documents.  Again, I'm not talking about someone who has firsthand

 4     knowledge, but to draw all kind of conclusions on the basis of documents

 5     which allow for many conclusions, for those who have not observed and

 6     have not analysed the exact causes of what happened.

 7             Mr. Kehoe, I had this on my mind yesterday, but I didn't

 8     intervene when Mr. Russo was examining the witness on the subject, but if

 9     this will have a follow-up with a similar relatively meaningless

10     exercise, I would -- I would like to inform you that that came to my mind

11     yesterday and similar things might come to my mind if you continue on

12     this subject.

13             Please proceed.

14             MR. KEHOE:  I understand, Mr. President.  I believe you,

15     Mr. President, when you said with this particular question the witness

16     can answer.

17             JUDGE ORIE:  He can answer the question, but, again, if we draw

18     conclusions which are as debatable as the conclusions that Mr. Russo

19     tried to elicit yesterday, then we do not move forward.

20             MR. KEHOE:  I understand.  We can change subjects, Mr. President

21     and move on.

22             JUDGE ORIE:  Well, I leave it to you.  As I said before, the

23     witness may answer the question, but that's it.

24             MR. KEHOE:  If we can just have the witness answer the question

25     briefly, and we will change subjects.

Page 20236

 1        Q.   And, Professor ...

 2        A.   Well, I -- I can repeat that various tasks can be carried out at

 3     various levels of quality, and I think that issues of discipline are

 4     something specific.  It has to do with combat activity but especially

 5     with what's happening with the army when they are not fighting.  After

 6     the victory, there is some sort of relaxation, probably different kinds

 7     of partying going on, and -- well, the behaviour is then -- they behave

 8     according.

 9             The behaviour of NCOs is very important in that context, and we

10     see here that disciplinary measures are very important to prevent the

11     soldiers from doing what they're not supposed to do.  Among them, the

12     limitation of movement.  That contributes not only to the safety and the

13     combat readiness of soldiers but also -- it can also affect things that

14     soldiers might do if they were to move arbitrarily in the circumstances

15     as they were.

16        Q.   Professor, let us shift to our final topic on this area, and it

17     goes to the issues of discipline in concerning Grahovo and Glamoc that

18     Mr. Russo discussed with you yesterday and matters that were brought to

19     your attention in the diary of the Split Military District, P71.

20             And the first issue that I would like to talk to you about is --

21     and in some decision is on page 20187, 20187, my apologies.  And the

22     question was asked:

23             "Q.  Well, in particular, he," turning to General Gotovina, "was

24     aware of the fact that the soldiers that he was going to use for

25     Operation Storm were inclined to loot and burn Serb property; isn't that

Page 20237

 1     right?"

 2             Your answer:

 3             "I can't say what he thought about that.  He probably had reason

 4     to suspect there might be undisciplined behaviour, but his mission was so

 5     serious and so great that he had to reckon with certain risks in that

 6     area."

 7             Now, your discussion about this mission being so great and so

 8     serious that he had to reckon with certain risks in that area, tell us

 9     what you're talking about there.

10        A.   I meant that he couldn't engage larger forces, or because he

11     probably didn't have enough forces, to maintain security in an area where

12     the first major operations were already completed.  So he had to use the

13     forces to secure the flanks because these things can jeopardise the

14     units, and in that situation, much more can happen than can usually be

15     expected from soldiers and their behaviour, and this is what we said,

16     that a -- in the rear, that some people would behave inadequately and

17     obviously he tried to react to that in such orders in which he -- he

18     pointed out to the lower level commanders what risks they were.  So he

19     could have minimised these risks, but that would have jeopardised the

20     achievement of the greater goals.  This merely has to do with the

21     resources that were at his disposal for these two different kinds of

22     tasks, military resources, I mean, the strength of the forces, et cetera.

23        Q.   Let me turn your attention, if I may, to a question that was

24     asked by Mr. Russo --

25             JUDGE ORIE:  Mr. Kehoe, could we first try to establish the

Page 20238

 1     factual basis on which the last answer is based.

 2             First of all, you started your answer put to you by Mr. Russo by

 3     saying:

 4             "I can't say what he thought about that.  He probably had reason

 5     to suspect that there might be undisciplined behaviour, but his mission

 6     was so great," et cetera.

 7             Now in your answer to Mr. Kehoe's question, you introduced, you

 8     said:

 9             "And obviously he tried to react to that in such orders in which

10     he, he pointed out to the lower level commanders what risks there were."

11             Could you give us an example of such an order in which he pointed

12     out to the lower level commanders what risks there were, because that's a

13     new element in your answer.  Could you tell us about one of these orders?

14     At what moment did he point at these risks, orders to the lower

15     commanders?

16             Could you give us an example of that.

17             THE WITNESS: [Interpretation] I can't.  This whole story is not

18     based on my direct knowledge but on the documents I've seen here, and I

19     believe this order we are looking at now shows such initiatives.  This

20     one is postdated, but I think it's logical that this train of thought

21     yields suggestions of the kind that we see after Operation Storm.

22             JUDGE ORIE:  Are you aware -- have you any reason to believe that

23     such orders in which risks were pointed out -- that lower commanders were

24     given at the start or prior to the start of Operation Storm?

25             THE WITNESS: [Interpretation] Well, I have, based on my general

Page 20239

 1     experience, general combat experience, the way soldiers think.  Nothing

 2     more specific than that.

 3             JUDGE ORIE:  Yes.  Mr. Kehoe, let's try to refrain from

 4     assumptions, expectations, and, rather, focus on known facts to the

 5     witness.

 6             MR. KEHOE:  I was taking that as a lead-in to these final

 7     documents.

 8             JUDGE ORIE:  Please proceed.

 9             MR. KEHOE:

10        Q.   Professor, you were shown documents by -- in the war diary of the

11     Split Military District by Mr. Russo from the latter part of July of

12     1991 -- excuse me, 1995.  And in page 20186, where Mr. Russo is talking

13     about particular orders, he notes on page 13 [sic]:

14             "Q.  And you agree with me, wouldn't you, that when an order such

15     as that is issued and it is not effective and it is not followed, that it

16     doesn't behoove the commander to simply reissue the same order and hope

17     it gets obeyed the second time?"

18             Your answer:

19             "No.  Measures of control and inspection must be taken.  Personal

20     control at one's own level and two levels below, see what's happening,

21     why it's happening, learn the lessons and get to the bottom of that and

22     then achieve appropriate conduct."

23             On page 20193 you were -- at line, 6 Mr. Russo asked the

24     question:

25             "Would you also agree with me, wouldn't you, that if measures

Page 20240

 1     weren't taken after Grahovo and Glamoc to address the looting and burning

 2     that had created a further risk of the same conduct continuing in the

 3     aftermath of Operation Storm; isn't that right?"

 4             Your answer is:

 5             "Yes.

 6             Now, let's take the first part of that issue first.  You note

 7     that in line 19 on 20186, that when improper conduct comes to the

 8     attention of a commander, he must get to the bottom of it.  And I want to

 9     turn your attention to a part of the diary that was not shown to you

10     yesterday by Mr. Russo, and that would be P71, page 69 in the English and

11     page 34 in the B/C/S.

12        A.   I keep seeing the same documents on the screen.

13        Q.   We are bringing up another document.

14        A.   [In English] Okay.

15        Q.   Yeah.  Just to take you back, Professor Barkovic, Mr. Russo

16     showed you some excerpts of this yesterday.  I've just shown you another

17     excerpt for 1 August 1995, three days prior to Operation Storm.  And if

18     you read with me about midway down ...

19             And this is a comment by General Gotovina, as you see on the

20     left-hand column -- I'm sorry, I'm being informed this is not the right

21     page.

22             If we can go to the next column, please, in the B/C/S.  Is that

23     right?  There it is.  My apologies.

24        A.   That's it.

25        Q.   This is a comment by General Gotovina.  He notes that the biggest

Page 20241

 1     problem in OG Sjever, Sjever is north, OG North, you can see that

 2     translation a couple of lines above.  The biggest problem in OG Sjever --

 3        A.   I see that.

 4        Q.    -- is the lack of discipline, so we ordered to the commanders of

 5     the units to pay attention and strictly forbid looting and burning.

 6             Now if the commander of OG North, sir, based on your answers to

 7     Mr. Russo, is not sufficiently enforcing discipline to prevent looting

 8     and burning, is there a remedy that General Gotovina can re-employ with

 9     regard to the commander of OG North?

10             MR. RUSSO:  I'm sorry.  I'm going object to the question.  The

11     portion which was read doesn't indicated an order to the commander of

12     OG North.  It indicates orders to the commanders of the units to pay

13     attention.

14             JUDGE ORIE:  Mr. Kehoe.

15             MR. KEHOE:  This -- this says, The biggest problem is the lack of

16     discipline, so we order to the commanders of the units to pay attention

17     and strictly forbid looting and burning.  This is units that are part of

18     OG North, and the OG North commander commands those units.

19             JUDGE ORIE:  Yes, let's try to -- to avoid all kind of exegetic

20     exercises.

21             What Mr. Kehoe apparently wants to know, Mr. Barkovic, is what

22     General Gotovina should have done, if there was such a lack of

23     discipline, what would have been the remedy?

24             MR. KEHOE:  With regard to the commander of OG North.

25             JUDGE ORIE:  Well, or -- I take it that since orders were issued

Page 20242

 1     to the commanders as well, why not include commander of Sector North or

 2     any of his subordinate commanders.

 3             MR. KEHOE:  It's -- OG North, Mr. President.

 4             JUDGE ORIE:  OG -- yes, I'm sorry.

 5             What -- what would have been the appropriate remedy if,

 6     apparently, the discipline was not such as General Gotovina wished it to

 7     be?

 8             THE WITNESS: [Interpretation] I think this is also one of the

 9     ways in which, at the meeting of all commanders at briefings, one

10     specific group and one specific commander are warned that the situation

11     in their unit is not good.  To a good soldier, that is quite enough, to

12     motivate him to take appropriate steps, disciplined building steps.  Of

13     course, if there was not enough time, as there was not enough time on the

14     1st of August, perhaps a meeting one-on-one with the commander, or with a

15     specific unit would be a good beginning in building up discipline in a

16     certain unit.

17             MR. KEHOE:  May I proceed, Mr. President?

18             JUDGE ORIE:  You may proceed.

19             MR. KEHOE:

20        Q.   And when you say "not enough time on the 1st of August," were you

21     aware that Operation Storm began at approximately 5.00 in the morning on

22     the 4th?

23        A.   Yes, that's what I meant.

24        Q.   Now, is an appropriate remedy to curtail improper conduct by

25     people under the command of OG North the removal of that commander?  Is a

Page 20243

 1     possible remedy to attempt to curtail improper conduct by troops under

 2     the command of operation north [sic] the removal of the commander of

 3     operation north?

 4             JUDGE ORIE:  Mr. Kehoe, are you asking for a possible remedy or

 5     the appropriate remedy because when you repeated your question, you

 6     choose different wording.

 7             MR. KEHOE:  I'm saying a possible remedy at this point.

 8             JUDGE ORIE:  At this point.

 9             So you should focus your answer on whether that was a possible

10     remedy.

11             THE WITNESS: [Interpretation] That might have been a possible

12     solution, but it would involve great risks, because that same commander

13     had undergone long preparations for executing the operation.  He had the

14     concept of the entire operation.  He knew the mission of his particular

15     unit better than any other member of the commanding corps.  He, based on

16     all that, issued instructions and orders that were studied by the unit.

17     If you change the commander a few days before the operation, that would

18     perhaps address some disciplinary problems but would cause many more

19     great problems in the whole functioning of that unit.

20             MR. KEHOE:

21        Q.   Let me show you a document, Professor Barkovic.

22             MR. KEHOE:  D793.

23        Q.   Professor, this is an order of 3 August 1995 by General Gotovina:

24             "In keeping with the order for the attack of the commander of the

25     Split Military District ... and with the purpose of having a uniform

Page 20244

 1     command and control of the units:  Order.  Staff Brigadier Rahim Ademi is

 2     temporarily appointed commander of OG North.  He shall perform the said

 3     duty alongside his established [sic] duty.

 4             "The outgoing commander of the OG North, Colonel Slaven Zdilar,"

 5     pardon my pronunciation, "is to resume his duty as acting chief of

 6     infantry of the Split Military District.

 7             "This order shall come into effect immediately."

 8             Going back, Professor Barkovic, to the question asked by

 9     Mr. Russo, do you consider this order at this time, at this juncture, a

10     measure --

11             JUDGE ORIE:  Mr. Kehoe --

12             MR. KEHOE:  Yes, Mr. President.

13             JUDGE ORIE:  -- should we first ask the witness whether he knows

14     what the reasons were that Staff Brigadier Ademi is temporarily

15     appointed.  Let's first ask what he knows about it.

16             Do you know what caused this replacement of the commander of the

17     Operation Group North?  Do you know the background?  Do you know why it

18     wasn't --

19             THE WITNESS: [Interpretation] I don't know.  I don't.

20             JUDGE ORIE:  Mr. Kehoe, where the witness doesn't know, of

21     course, we can start imagining whether this would have been the reason.

22     Apparently the witness doesn't know the reasons why, and I'd like you to

23     accept that as a lack of factual knowledge in this respect by this

24     witness when you proceed with your questions.

25             Please proceed.

Page 20245

 1             MR. KEHOE:  Mr. President, with all due respect when Mr. Russo

 2     asked the hypothetical question, there was no stopping of that question.

 3     If you turn to page 20193, the page -- line 6 to line 10 --

 4             JUDGE ORIE:  Mr. Russo was cross-examining the witness, and where

 5     leading questions, that is, questions which are either suggesting an

 6     answer or in which facts are suggested which have not yet been

 7     established, is permissible; whereas, that's not the case in-chief.

 8     Apart from that, of course, the Chamber would like to have testimony

 9     which assists it, and, therefore, it's of great importance -- I'm not

10     saying that you can't ask any questions about this order.  I just wanted

11     to establish what the witness does know and doesn't know.

12             MR. KEHOE:  Yeah.

13             JUDGE ORIE:  And as I said earlier in respect of a certain matter

14     yesterday, that it was more or less seeking -- well, if you say, Let me

15     go ahead because you didn't stop Mr. Russo, please go ahead but please be

16     also aware that this, of course, is important information for the Chamber

17     to evaluate the evidence the witness will give on the subject.

18             MR. KEHOE:  And I understand the guidance, and if we go through

19     the sequence of the information that Mr. Russo presented to the witness

20     concerning burning and looting and asking that question --

21             JUDGE ORIE:  But my problem is that this witness testifies that

22     he has got no idea why this was happening.  It might be that the mother

23     of the gentleman fell ill or --  we do not know, and we have to keep that

24     in mind, and I let you proceed.  Please keep this in mind that the

25     factual knowledge of the witness is extremely limited, as he just told

Page 20246

 1     us.

 2             MR. KEHOE:  Yes, Mr. President.  Thank you.

 3        Q.   First, Professor Barkovic, this particular change in command less

 4     than 24 hours prior to Storm, or approximately 24 hours, based on your

 5     military experience is that a radical move by professor -- by

 6     General Gotovina?

 7        A.   That certainly is a radical move.  And thinking of what we had

 8     discussed before, if these two things are linked, I would really be

 9     impressed.  If that was linked to the meeting held two days prior.  A

10     mitigating circumstance that you see, it is well thought out, because

11     General Gotovina put in the position of commander a man who had great

12     combat experience and had cooperated with him before, and if he -- the

13     Staff Brigadier Ademi was aware of all that the commander had studied

14     before in preparation, et cetera, then that would have meant an optimal

15     solution to the problem, replacing the commander just before the

16     operation by a man who really knows all about it.

17        Q.   And, sir, would -- based on your military experience, would such

18     a decision on the change of the command at the operative group level,

19     would that reverberate down to the troops in the field?

20        A.   I believe so.  It certainly would.  But adversely, or positively,

21     I wouldn't be able to say, because I did not know what kind of feelings

22     the subordinates had harboured towards the previous commander who was

23     replaced and what they thought of the new commander.

24        Q.   Professor, thank you very much.  I appreciate your time.

25             MR. KEHOE:  Mr. President, I have no further questions.

Page 20247

 1             JUDGE ORIE:  Thank you, Mr. Kehoe.

 2             Cermak Defence or Markac Defence, any questions?

 3             MS. HIGGINS:  Nothing arising, Your Honour.  Thank you.

 4             MR. KUZMANOVIC:  No question, Your Honour.  Thank you.

 5             JUDGE ORIE:  Thank you.

 6                           [Trial Chamber confers]

 7             JUDGE ORIE:  Mr. Barkovic, I have one specific question for you.

 8                           Questioned by the Court:

 9             JUDGE ORIE:  You told us about -- and let me try to find it.  If

10     you give me one second, I will try to find the exact wording.

11             You told us that you had put together teams of American officers

12     and Croatian officers in November 1994.  Could you give us more details

13     about what they did, what was the basis for putting those teams together?

14        A.   Mr. President, the minister of defence had signed a contract with

15     a private company, MPRI, an American company, about carrying out a

16     democratic transition assistance programme in the armed forces.  That

17     programme was based on a technical proposal similar to the one we have in

18     evidence.  We don't have that original document, but I don't think it's

19     so relevant for this process.  That programme was geared towards lending

20     assistance in management and personal management in the armed forces

21     under the circumstances of embargo.  So all elements related to any

22     combat training were excluded from the programme.  That was one

23     limitation.

24             In the month of November, we formed a team to evaluate the

25     situation, consisting of five American officers and five Croatian

Page 20248

 1     officers.

 2             JUDGE ORIE:  I stop you there to seek further clarification.

 3             Were these active US army officers?

 4        A.   No, retired officers.  All of them were retired officers and one

 5     of them was a NCO.

 6             JUDGE ORIE:  Yes.  So they were not, to say so, on the payroll of

 7     the US army at that moment anymore.

 8             Were they all employed by the company which provided this

 9     assistance?  Because there might be some confusion if we're talking about

10     cooperation between American officers, whether they were active-duty

11     officers or not, they were not.  So the teams consisted of former army

12     officers, and you said one non-commissioned officer, which were employed

13     by a private company.  Was there any -- was there any involvement of the

14     United States government in hiring the MPRI, in financing the programme?

15             Could you tell us whether there was any such link or whether

16     there was not?

17        A.   The programme was approved by the US government, but the

18     government did not participate in the funding.  The funding was provided

19     by the Croatian state, and the project and the contents of the project

20     had been approved by the US government, because an embargo was in place

21     at the time, and they had to decide whether the contents of the programme

22     were consistent with the embargo.  That's why we could not include combat

23     training in the programme.

24             May I now continue?

25             JUDGE ORIE:  Yes, well, this was the primary purpose of my

Page 20249

 1     question, to find out exactly -- because I was a bit confused by the term

 2     "officers" where it was unclear it me whether they were active officers

 3     or whether they were retired officers.

 4             If you want to add one or two lines, that's fine with me.  But

 5     the question that I wanted to put in not too much a leading way has been

 6     answered.

 7             So I leave it to you whether you want to add one or two lines.

 8        A.   Very briefly.  Every pair of officers, one American, one Croatian

 9     active-duty officer, made an evaluation for one level of training, NCO

10     officer, commander, and staff level, and the functioning of the staff,

11     those five elements were evaluated.  We made this evaluation in end 1994,

12     and in 1995, after adopting the baseline assessment, we went forward with

13     advanced training for NCOs, officer, commanding officers, and staff

14     officers, providing personnel management training, which is a linkage

15     between what we do in the education system and how these people will be

16     ran in the service.

17             JUDGE ORIE:  Thank you for that answer.  I have no further

18     questions of you.

19             Has the question of the Bench triggered any need for further

20     questions or is there --

21             Mr. Russo.

22             MR. RUSSO:  No, Mr. President.

23             MR. KEHOE:  No, Mr. President.

24             JUDGE ORIE:  Then, Mr. Barkovic, this concludes your testimony.

25     I would like to thank you very much for the answers you've given when

Page 20250

 1     questioned by the parties and also in questions put to you by the Bench,

 2     and I wish you a safe trip home again.

 3             Madam Usher.

 4             THE WITNESS: [Interpretation] Thank you, Your Honour.

 5             JUDGE ORIE:  Madam Usher, could you please escort the witness out

 6     of the courtroom.

 7                           [The witness withdrew]

 8             JUDGE ORIE:  We'll first have a break.  The next witness is

 9     available.  The parties will have received last Friday, because it was a

10     matter which seemed to be urgent to the extent that for preparation of

11     the testimony of the next witness, that at least the parties would have

12     some guidance as where the thoughts of the Chamber, in which direction

13     the thoughts of the Chamber provisionally went.  I take it that message

14     is received, and that whether that leads to any adaptation of your way of

15     questioning the witness, that is to what extent, 92 ter and to what

16     extent viva voce, I do not know.  But are there any questions about this

17     or is it clear to everyone.

18             MS. GUSTAFSON:  Yes, Your Honour, the remark you just made

19     triggered a question on my part.  The basis for the objection that we

20     made was that the portions of the statement were expert opinion and

21     hadn't been tendered through the proper procedure, and I understood the

22     e-mail from the Chamber to indicate that those paragraphs -- that the

23     Chamber was hesitant to admit those paragraphs on that basis.  I'm now

24     understanding that that may not be the case, and that Mr. Misetic might

25     be permitted to lead that evidence in a viva voce manner which --

Page 20251

 1             JUDGE ORIE:  Well, let's be clear on that matter.

 2             If you -- if portions of a 92 ter statement are not admitted into

 3     evidence and I can reveal to the parties that your first objection, so

 4     I'm not talk about disclosure but about what is opinion and where the

 5     element of opinion becomes the prevailing element of the testimony, that

 6     that was on the mind of the Chamber.  Then, of course, if you call a

 7     witness of fact and then to put exactly the same questions would, I take

 8     it, result in similar objections.  That is, that expert testimony is

 9     sought from a witness of fact.

10             At the same time, we do not know how Mr. Misetic will phrase his

11     questions.  I mainly wanted to express that he's not prevented from

12     touching upon these subjects, but what was on the back of the mind of the

13     Chamber would certainly result in urging Mr. Misetic to primarily elicit

14     from what the witness knows as far as the facts are concerned.

15             MS. GUSTAFSON:  Your Honour, that does raise some concerns on our

16     part.  For example even with respect to the sections of paragraph 7 that

17     the Chamber was inclined to admit, we were disclosed the English article

18     that underlies that paragraph less than 24 hours ago.  It's eight pages,

19     single spaces analysis containing literally dozens of figures of various

20     population movements, of various ethnic groups, at various times.  We are

21     in no position to assess this information, determine its accuracy.  Most

22     of it is totally unsourced.  It's based largely on the witness's own

23     analysis as a demographer.  And we simply cannot assess it and cannot

24     challenge it, not without, at least, the underlying sources and a

25     significant period of time to assess those sources, consult with our own

Page 20252

 1     experts, and produce our only analysis and our own documents in order to

 2     challenge the witness's conclusions.

 3             JUDGE ORIE:  Yes.  Which might lead to several procedural

 4     approaches.  One is Mr. Misetic should not start the examination of the

 5     witness; that's -- the other one would be we'd need more time to prepare

 6     for cross-examination of the witness.  Therefore, we can't proceed to

 7     cross-examination immediately after the examination-in-chief has been

 8     finished.  There are several options in this respect, and it's clear that

 9     you have concerns, and I do understand that this is primarily in relation

10     to the demographic courses and consequences of the war against Croatia.

11             MS. GUSTAFSON:  As well as the analysis.

12             JUDGE ORIE:  The journal of social and humanist studies, Pila

13     [phoen].

14             MS. GUSTAFSON:  It's -- yes, and the analysis referred to in

15     paragraph 7 which is the one I just described to the Chamber.  Which is

16     Croatia between immigration and emigration.

17             JUDGE ORIE:  Yes.  Now, is it your view that examination should

18     not even start in this respect or that you would need more time to

19     consult with experts in order to be able to cross-examine the witness on

20     those matters.

21             MS. GUSTAFSON:  Your Honours, with respect to anything in

22     paragraphs 3, 5 and 7, it's our position that examination could not even

23     begin.  This is expert analysis.  We would need a significant period of

24     time to assess this information and it would be -- it would need to be

25     provided to us with the underlying sources of the witness's analysis

Page 20253

 1     which have not been provided and in the form where we can assess the

 2     methodology and the manner in which the sources were selected, et cetera,

 3     et cetera.

 4             MR. MISETIC:  Mr. President, if I can respond.

 5             JUDGE ORIE:  Mr. Misetic.

 6             MR. MISETIC:  Mr. President, if I can respond.

 7             I strenuously object to the classification of the "Globus"

 8     article as an expert opinion.  It's not being tendered as an expert

 9     opinion.  It was published in a magazine in 1998 "Globus."  He was the

10     assistant minister.  These figures and statistics were part of his job in

11     knowing the demographic statistics.  He is not being called in his

12     capacity as a professor at the University of Zagreb, but, rather, in the

13     factual capacity of assistant minister for reconstruction and

14     development.  These statistics he was dealing with on a daily basis and,

15     as the witness will testify, were the subject of weekly conversations

16     with members of the international community with whom he participated on

17     a joint working group for refugee returns.

18             So for us to have to provide source information, et cetera, is

19     completely unnecessary and not accurate.  It is a factual submission of

20     what he was indicating at the time were the statistics and what he was

21     telling the international community at the time were the statistics,

22     within the scope of his portfolio as an assistant minister.

23             If it will simplify matters, I believe I have indicated that I

24     will not go into paragraph 3 of the statement, and if -- assuming - this

25     is what I indicated to the Prosecution - that there is no dispute that

Page 20254

 1     Mr. -- that the witness has knowledge and has a background on these

 2     topics and has some basis for -- of knowledge on the area of the

 3     demographics in the war.  We don't need to get into the specific figures

 4     as reported in the report in paragraph 3.

 5             So if that will lighten the burden, that's fine.  The national

 6     programme in paragraph --

 7             JUDGE ORIE:  Mr. Misetic, apparently it does not because this was

 8     already discussed on Friday.  But I'm not --

 9             MR. MISETIC:  I'm saying, Mr. President, we're removing the

10     entire paragraph, so I don't know how that wouldn't alleviate the problem

11     with respect to paragraph 3.

12             JUDGE ORIE:  Alleviate, but --

13             MR. MISETIC:  I am going through one by one.

14             JUDGE ORIE:  Yes.

15             MR. MISETIC:  That takes care of paragraph 3.

16             Paragraph 5, we are not actually tendering the national

17     programme, and perhaps there was some confusion.  This is not -- this

18     national programme was not a scientific study.  It was actually a

19     programme approved by the Croatian parliament in 1996 and implemented by

20     this witness in his capacity as assistant minister.  If the

21     Prosecution -- other than what's on the page, we're not tendering

22     anything, the underlying document itself, into evidence and so other

23     than -- I mean, for what it is worth, it is mentioned there in

24     paragraph 5, but we're not tendering, nor do we have a copy of the

25     underlying national programme.

Page 20255

 1             So I don't want to draw the distinction there between a

 2     scientific study and an actual governmental programme that was passed by

 3     Parliament.

 4             With respect to number 7, again I think I already commented on

 5     it.  The "Globus" article was published at the time.  It has been in his

 6     statement as turned over to the -- as uploaded into e-court on the 4th of

 7     June -- of this year.  It has come to my understanding that the

 8     Prosecution was unaware that it was in e-court, and that's what I have

 9     been told; however, our position on that has been that we had no notice

10     of the Prosecution had any complaints that all statements hadn't been

11     disclosed that were identified on the 65 ter witness list, so all of this

12     has arisen essentially in the last -- since last Thursday when the

13     Prosecution filed its opposition to the 92 ter statement.  And so, in

14     effect, we've had late notice of underlying problems and issues and quite

15     frankly the "Globus" article is because it was turned over to CLSS.

16     Everything else that we had in our control, we turned over on Friday,

17     and, again, just for the sake of consistency, I would recall that it was

18     not not once -- only one time in the Prosecution's case in-chief where we

19     received documents sometimes the night before the witness would come.

20     Mr. Rajcic comes to mind, which was the volume of documents that had no

21     translations for them and we, nevertheless, proceeded and worked our way

22     around it.

23             Thank you.

24             MS. GUSTAFSON:  Your Honour, it's not the issue that a document

25     was received yesterday.  I received numerous documents yesterday.  I'm

Page 20256

 1     objecting to this eight-page analysis by the witness, which I would like

 2     to distribute to the Chamber because the Chamber will see that it's an

 3     analysis, demographic analysis, by the witness largely unsourced, with

 4     the methodology unclear, and it is impossible for us to challenge the

 5     conclusions he draws on paragraph 7.

 6             JUDGE ORIE:  Ms. Gustafson, you offered us something I was about

 7     to ask from Mr. Misetic.  We would like to spend our break on having a

 8     glance on the "Globus" article, and we'll consider whether and what

 9     procedural consequences should be attached to the matters you have

10     raised.

11             We'll have a break, and we will resume -- we resume most likely

12     at ten minutes past 11.00.

13                           --- Recess taken at 10.45 a.m.

14                           --- On resuming at 11.18 a.m.

15             JUDGE ORIE:  Before we decide on how to proceed, the Chamber

16     would like to know a little bit more about the disclosure issue.

17             Mr. Misetic, you say the "Globus" article was disclosed on the

18     4th of June; is that --

19             MR. MISETIC:  No, Mr. President.  The --

20             JUDGE ORIE:  Or uploaded in e-court or ...

21             MR. MISETIC:  No, no, no.  The B/C/S of the "Globus" article, I

22     believe was disclosed on the 4th of May.  The translation of the "Globus"

23     article only arrived yesterday from CLSS.  The --

24             JUDGE ORIE:  Could I ask you first:  It was disclosed in what

25     context exactly, as in direct relation with this witness?

Page 20257

 1             MR. MISETIC:  Well, there's two points on that.  The exhibit list

 2     was disclosed early last week, and did have that exhibit on it.  The

 3     statement itself which was -- the witness statement was uploaded into

 4     e-court in English on the 4th of June, and I believe the statement makes

 5     reference here in paragraph 7 --

 6             JUDGE ORIE:  Yes, there's -- it's mentioned as --

 7             MR. MISETIC:  The "Globus" article, 1998, April, which is the

 8     article that was translated and received from CLSS last night -- or

 9     yesterday morning.

10             JUDGE ORIE:  Yes.

11                           [Trial Chamber confers]

12             JUDGE ORIE:  The Chamber allows the Gotovina Defence to examine

13     the witness in-chief.  At the same time, the Gotovina Defence is urged

14     where there is a dispute about whether this witness presents expert

15     opinion or factual information, Mr. Misetic, you're urged through your

16     questions to demonstrate that your position is the right one.  Because

17     this is a witness of fact.  It's not an expert witness.  That means he

18     shouldn't give expert opinion.  He also should not give personal opinion.

19     I mean, where it's perhaps a bit more sensitive in this context, because

20     what is personal opinion from someone who apparently has had a

21     demographic career, there we have to be more cautious, as usual, to take

22     care that no personal opinion comes into play.

23             MR. MISETIC:  Mr. President, it wasn't my intention and it isn't

24     my intention to ask him to start drawing conclusions on causes of

25     departure and such issues.  I'm mainly interested in, in 1998 what did he

Page 20258

 1     say were the numbers of, for example, Serbs that left, Serbs that were

 2     coming back, Croats that had been expelled.

 3             JUDGE ORIE:  So what we then know is what he said without any --

 4     of course, I could have -- I could give a statement at this moment on

 5     numbers of Belgians leaving the Netherlands after 1831.  I mean, it's

 6     worth what it is worth.  I mean --

 7             MR. MISETIC:  That's my point, Mr. President, is that I'm not

 8     tendering this as:  This is a scientific study and, therefore, the

 9     Chamber should accept as gospel truth that this is the numbers.  What I'm

10     saying is the Croatian government's position in 1998 was this.  It can be

11     taken for whatever it is worth by the Chamber, but in looking at the

12     overall context of the issue of refugee returns --

13             JUDGE ORIE:  If the Croatian government expressed in 1858 that

14     there were 32 Serbs in a certain village, then that doesn't mean that

15     there were 32 Serbs in a certain village.  But it demonstrate what the

16     government at that moment in time said.

17             MR. MISETIC:  Correct.

18             JUDGE ORIE:  And that's fact.  Then, of course, the second

19     question is relevance, probative value.

20             MR. MISETIC:  What we're going to go into, Mr. President, is

21     simply to -- in assessing the issue of refugee returns, what was the

22     Croatian' government of the scope of the problem from both the Serb and

23     Croat side.

24             JUDGE ORIE:  You would say right or wrong.

25             MR. MISETIC:  Correct.  It may that be Ms. Gustafson comes

Page 20259

 1     forward and says it is wasn't, hypothetically speaking, 100.000 Croats,

 2     it was 50.000 Croats -- yes.

 3             JUDGE ORIE:  No, as a matter of fact, Mr. Misetic, what I would

 4     expect Ms. Gustafson to come back with is that is what the position of

 5     the Croatian government was, because you're not not presenting these

 6     numbers for the accuracy of the numbers, so, therefore, Ms. Gustafson is

 7     not -- she doesn't have to respond in that way.  Because the thing you're

 8     presenting is what the Croatian government, right or wrong, said if, of

 9     course, on the basis of other evidence we would finally combining sources

10     that the Croatian government was right or was wrong, of course, then if

11     it is in dispute, then Ms. Gustafson would be wise to challenge the

12     numbers as well.  But on the basis of this evidence, but we'll see how it

13     develops, and again, you're urged to put the questions in such a way and

14     the Chamber might even stop the witness if he goes beyond what his

15     factual knowledge is.

16             MR. MISETIC:  I have worked very hard with the witness to try to

17     get him -- I'm just giving advance warning that we're dealing with -- in

18     no disrespect to professors, but he's a professor, I've tried to get him

19     to concentrate on answering my specific question.  He understands all my

20     hand signals, Mr. President --

21             JUDGE ORIE:  Yes, as long as they are just slow down then it's --

22     then it's fine, yes.

23             MR. MISETIC:  Stop, slow down, yes.

24             JUDGE ORIE:  Yes, if there are no other signals to be sent to the

25     witness.

Page 20260

 1             Ms. Gustafson.

 2             MS. GUSTAFSON:  Thank you, Your Honour.  I --

 3             JUDGE ORIE:  May I add one thing.  Whether or not you should be

 4     given more time to prepare for cross-examination is a matter that the

 5     Chamber will consider at a later stage.

 6             MS. GUSTAFSON:  Thank you, Your Honour.  I just -- I need to

 7     express my concerns with what Mr. Misetic just said, because it was based

 8     on an assumption that, for example, the number of Serbs who left was fact

 9     and not opinion.  But the figure that the witness gives in his statement

10     comes from his article, and that figure of 130.000 is clearly based on

11     his analysis in that article of various underlying sources.  If those

12     sources are then explored - and I appreciate what Your Honour said about

13     whether something is presented as fact of what the Croatian government

14     represented or not - but if it goes beyond that, then it's our position

15     that this is then -- into the area of witness's expertise in his

16     demographic analyst.  That's my concern.

17             My second question really is not -- it's not clear from

18     Your Honours' ruling what the ruling is specifically on the paragraphs of

19     the 92 ter statement which are to be admitted or not.  Thank you.

20             JUDGE ORIE:  They have not been tendered yet.  We have not heard

21     the attestation of the witness.  I can tell you one thing that most

22     likely if it will be tendered, if the attestation is received, that it

23     will be MFI'd and that the main reason for not admitting it would be in

24     paragraphs 3, 5, and 7.

25             MR. MISETIC:  Mr. President, if I could just ask as procedural

Page 20261

 1     matter, do you wish for me to go into the factual foundation of

 2     paragraph 5 before tendering it or since it is going to be MFI'd anyway

 3     should I just do it after tendering it?

 4             JUDGE ORIE:  It is a rather practical matter, it seems.  The

 5     Chamber will not decide on whether you do it after or before.  Of course,

 6     we'll consider, if it is MFI'd, we will consider everything that follows

 7     when deciding on admission or not.

 8             Then, could we ask Madam Usher to escort the witness into the

 9     courtroom.

10                           [The witness entered court]

11             JUDGE ORIE:  Good morning, Mr. Sterc.

12             THE WITNESS: [Interpretation] Good morning.

13             JUDGE ORIE:  Before you give evidence in this Court, the Rules

14     require that you make a solemn declaration of which the text will now be

15     handed out to you, and I would like to invite you to make that solemn

16     declaration.

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

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

19                           WITNESS:  STJEPAN STERC

20                           [Witness answered though interpreter]

21             JUDGE ORIE:  Thank you, Mr. Sterc.  Please be seated.

22             THE WITNESS: [Interpretation] Thank you.

23             JUDGE ORIE:  You will first be examined by Mr. Misetic.

24     Mr. Misetic is counsel for Mr. Gotovina.

25             Mr. Misetic, you may proceed.

Page 20262

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

 2                           Examination by Mr. Misetic:

 3        Q.   Good morning.

 4        A.   Good morning to you and everyone else here.

 5        Q.   Sir, could you please state your full name for the transcript.

 6        A.   Stjepan Sterc.

 7        Q.   Now, Mr. Sterc, do you recall meeting with members of the

 8     Gotovina Defence on 17 April 2009, 7 May 2009, and 20 May 2009?

 9        A.   Yes.

10        Q.   And do you recall providing a statement to members of the

11     Gotovina Defence on those dates?

12        A.   Yes.

13        Q.   And do you recall signing a statement on the 20th of May, 2009?

14        A.   Yes.

15             MR. MISETIC:  Madam Registrar, if could I please have on the

16     screen 65 ter 1D2702, please.

17             And with the assistance of Madam Usher, if could I give a hard

18     copy of the statement in Croatian to the witness, please.

19        Q.   Mr. Sterc, have you had a chance to review that statement before

20     coming to court today?

21        A.   Yes.

22        Q.   And is that the statement that you signed on the 20th of May,

23     2009?

24        A.   Yes.

25        Q.   And if you look on the screen, please, I know you're looking at

Page 20263

 1     the hard copy, but if you could also look at the Croatian copy on the

 2     screen in front of you, is that your signature in the bottom right-hand

 3     corner?

 4        A.   Yes.

 5        Q.   In reviewing the statement before coming to court, did the

 6     statement accurately reflect what you told members of the Gotovina

 7     Defence during your interviews?

 8        A.   Yes.

 9        Q.   Are there any corrections or clarifications that you believe need

10     to be made to the statement?

11        A.   No.

12        Q.   At the time you gave the statement to members of the Gotovina

13     Defence, did you give it to the best of your knowledge and in accordance

14     with the truth?

15        A.   Yes.

16        Q.   If I asked you the same questions today that you were asked by

17     member of the Gotovina Defence during your interviews, would you provide

18     the same answers in court today that you provided to members of the

19     Gotovina Defence?

20        A.   I think so, in view of the complexity of this text.

21             MR. MISETIC:  Mr. President, I asked that the exhibit be marked,

22     and I tender it into evidence or ask that it be MFI'd, pursuant to your

23     instructions.

24             JUDGE ORIE:  Yes, Madam Registrar, could you please assign a

25     number to this exhibit.

Page 20264

 1             THE REGISTRAR:  Your Honours, that will be Exhibit D1607, marked

 2     for identification.

 3             JUDGE ORIE:  Thank you, Madam Registrar.

 4             MR. MISETIC:  Mr. President, I have explained to the witness the

 5     procedure of reading a summary.  He is aware of it, and with your leave,

 6     I would like to read out a summary.

 7             JUDGE ORIE:  Would that include 3, 5 and 7.

 8             MR. MISETIC:  I don't believe so but I will certainly try to

 9     avoid those three paragraphs.

10             JUDGE ORIE:  Yes.  Or would it be better, under those

11     circumstances, to delay the reading of the statement until the end of the

12     testimony?  I don't know to what extent the public will still be able to

13     understand the testimony if it has not been read in advance.

14             MR. MISETIC:  Mr. President, the only issue that would arise is

15     whether some of the statistics that you said, in terms of the "Globus"

16     article, if that is allowed to be explored, then there's no problem with

17     paragraphs 3 and 5.  They're not in the summary.

18             MS. GUSTAFSON:  Your Honour, the basis upon which Mr. Misetic

19     represented those figures would be elicited is not the same basis that

20     they appear in the statement, so I'm not sure they could be summarised in

21     a manner that would reflect Mr. Misetic's intention as he just stated to

22     the Chamber in reciting those figures.

23             MR. MISETIC:  Mr. President, I think I'm fully capable of knowing

24     the distinction.

25             MS. GUSTAFSON:  It's not whether Mr. Misetic understands the

Page 20265

 1     distinction.  It is whether he can summarise the statement in a way that

 2     reflects the manner in which he intends to elicit this evidence.

 3             JUDGE ORIE:  The Chamber prefers, exception, the summary to be

 4     read at the end of the witness's testimony so as to complete the

 5     knowledge of the public rather than to give them already the basis for

 6     understanding the testimony.

 7             MR. MISETIC:  Very well, Mr. President.

 8             JUDGE ORIE:  Please proceed.

 9             MR. MISETIC:

10        Q.   Mr. Sterc, before we start, I need to remind you again, I am

11     familiar that you have a very high rate of speech, and so I need you to

12     slow down for the purposes of the interpreters and the court reporter in

13     providing your answers, and I will note that I will sometimes try to slow

14     you down because we don't want to miss anything that you're saying.

15             Do you understand?

16        A.   I do.

17        Q.   Okay.  Mr. Sterc, by way of background, what is your current

18     position?

19        A.   I'm senior lecturer at the geographical department of the Faculty

20     of Sciences and Mathematics at the University of Zagreb.

21        Q.   Okay.  And just, again, by way of background, you were assistant

22     minister for reconstruction and development from the 11th of October,

23     1995, until what time?

24        A.   Until the end of 1999.  Until the changes in the government of

25     Croatia.

Page 20266

 1        Q.   After the change of government in Croatia, did you -- what

 2     position did you hold?

 3        A.   After the change in authorities in Croatia, the new government

 4     invited me into the government, on to the cabinet, and I was assistant

 5     minister for defence.

 6        Q.   As assistant minister for reconstruction and development from

 7     11 October 1995 until the change in government, you were directly

 8     involved on the issue of refugee returns; is that accurate?

 9        A.   Yes.

10        Q.   Within the structure of the Croatian government, was there anyone

11     who held a higher position in the Croatian government, in terms of

12     operationally on the issue of implementing programmes of refugee returns?

13        A.   On the operative level, no.

14        Q.   So you, as assistant minister, would -- was it fair to say that

15     you would run the day-to-day tasks on the issue of refugee returns?

16        A.   That and other affairs.

17        Q.   And who did you report to?

18        A.   To the minister of reconstruction and development.

19        Q.   What was his name?

20        A.   Mr. Jure Radic.

21        Q.   Within your portfolio, did you have to study demographic

22     statistics and trends?

23        A.   Yes.

24        Q.   Can you explain to the Court why demographics, statistics and

25     trends were part of your portfolio?

Page 20267

 1        A.   Because the entire demographic situation in Croatia, especially

 2     as linked to the war and after the war, was extremely complex, and a

 3     whole series of plans needed to be developed in the area.

 4        Q.   And did you, in fact, develop plans after studying demographics,

 5     statistics, and trends?

 6        A.   After that, since I also led the department for scientific

 7     research within the ministry and a huge problem arose with refugees, we

 8     had to gear a great part of our efforts to that problem, because we had

 9     large problems on a day-to-day basis with the refugees of whom there

10     were, at one point, 750.000 in Croatia.  I said 750.000.

11        Q.   Okay.  Did you have to study statistics of the ethnic break downs

12     of the occupied parts of Croatia, beginning in 1991 and going through

13     1995, as part of your portfolio as assistant minister?

14        A.   It was part of my work, because very intensive talks had already

15     started when I arrived at the ministry with the representatives of the

16     international community about this whole issue.

17        Q.   And can you explain why the issue of statistics of ethnic

18     breakdowns of the occupied parts of Croatia from 1991 to 1995 were

19     related to your talks with representatives of the international

20     community?

21        A.   Because, together, we wanted to define this whole complex of

22     issues, and before any serious talks started, had to agree about the

23     numbers.  The total number of refugees and their structure, the

24     breakdown.

25             MR. MISETIC:  Mr. President, with your leave, I would explore

Page 20268

 1     some of those numbers.  I don't know if you would wish additional

 2     foundation.

 3             JUDGE ORIE:  Depends on the way in which you will do it.

 4             MS. GUSTAFSON:  I'm a little confused.  I presumed that the

 5     Chamber's ruling still stands and that the exploration of the witness's

 6     portfolio -- I'm sorry, I just don't understand where we're going with

 7     this.

 8             JUDGE ORIE:  I do understand that until now it has been

 9     established that he studied statistics in that position.  If you want to

10     explore them, then it depends in the way in which do you it, Mr. Misetic,

11     whether you will --

12             MR. MISETIC:

13        Q.   Mr. Sterc, while you were assistant minister for reconstruction

14     and development, what was your position as assistant minister as to what

15     percentage of Croatia's territory as of 3 January 1992 was outside the

16     control of the Croatian government?

17        A.   In our estimates, it was around 15.000 square kilometres and

18     around 26.5 per cent of the whole territory of Croatia.  However, that's

19     not all.  Our estimate was that almost one third of that territory of the

20     Republic of Croatia was out of the control of the authorities, because we

21     also have to take into account the directly -- the area direct next to

22     the front line that was under no one's control, and in the statistics, we

23     recorded it as being under the control of the Croatian government.

24        Q.   Okay.  Now, while you were assistant minister for reconstruction

25     and development, what was your position as to the ethnic breakdown of the

Page 20269

 1     occupied parts of Croatia, according -- in -- in, let's say, 1991?

 2        A.   We made our analyses based on the census of 1991 and estimates

 3     were not possible at that time.  The results of that analysis were as

 4     follows:

 5             In the occupied, area at the time of the 1991 census, there were

 6     about 50.5 per cent Serbs and 49 -- or, rather, 48.5 per cent of other

 7     population, including 37.5 per cent of Croats.

 8             MS. GUSTAFSON:  Your Honour, the witness's answer has --

 9             JUDGE ORIE:  Ambiguous, it seems to me.

10             Mr. Sterc, you said we made our analysis based on the census of

11     1991 and estimates were not possible at the time.  Do I have to

12     understand it as follows:  That the numbers you just told us are numbers

13     which are taken from the 1991 census but whether they reflected the

14     actual situation in the territories which were not under your control is

15     uncertain?

16             THE WITNESS: [Interpretation] Of course, these are not the same

17     numbers.  We just wanted to show at the beginning of the talks with the

18     international community what the ratios were, based on the 1991 census.

19     In later analyses, we estimated these numbers in specific situations, in

20     specific times.

21             JUDGE ORIE:  Ms. Gustafson, does this meet your concern?

22             MS. GUSTAFSON:  I'm just concerned as to how we're expected to

23     parse out the -- based on the witness's last answer, what the official

24     position was versus what the analysis was --

25             JUDGE ORIE:  Well, what happened later, he has given -- he told

Page 20270

 1     us that they used different numbers, we do not know about, we have no

 2     possibility at this moment to look into the background.  One thing that

 3     the witness has now answered is that numbers he just gave are based on

 4     census figures which do not necessarily reflect the actual situation.

 5     Then you could wonder what the probative value of that is, but we'll have

 6     to consider that at a later stage.

 7             MS. GUSTAFSON:  Thank you.  If I could just -- and I apologise

 8     for interrupting, if I could just ask Mr. Misetic to refer to the

 9     official position of the Croatian government pursuant to Your Honours'

10     ruling.

11             MR. MISETIC:  Pose the questions [Overlapping speakers] ...

12             JUDGE ORIE:  Whether he took that position as an assistant

13     minister or whether that was shared by the Croatian government, we could

14     ask the witness always to indicate whether the position he took as an

15     assistant minister, whether that was -- at least to indicate if that

16     position was not shared by the Croatian government as a whole.

17             MR. MISETIC:  That's fine, Mr. President.  I would just note that

18     all of these are issues that could be explored in cross-examination, but,

19     you know, getting up and not understanding and those types of objections

20     aren't real objections; but I will do my best to ask him generally if he

21     has any distinction to make between his own position as assistant

22     minister and the overall position of the Croatian government to state

23     that, but I'm not going to ask him after every single question.

24             JUDGE ORIE:  No, no, not after every single question, but we

25     could ask the witness to indicate whenever any subject is dealt with

Page 20271

 1     where he is aware that his position as an assistant minister was not the

 2     same as the position of the Croatian government.

 3             MS. GUSTAFSON:  I apologise, Your Honour, but my understanding of

 4     Your Honour's ruling was that the figures were permitted to be elicited

 5     as -- on the basis that they were official positions of the Croatian

 6     government, and I would like to insist in regard to that ruling.

 7             JUDGE ORIE:  Ms. Gustafson, I think the ruling said it should be

 8     factual.  Now it could be that some of the numbers were not discussed

 9     with the government.  What the position of a government or an assistant

10     minister is, is a matter of fact.  Whether these are the numbers are

11     accurate is something that could be further explored but it should always

12     be clear whether it is a position taken by a person, which, again, is a

13     factual matter, which requires nothing more than that person or a member

14     of the government saying, This was our position, and then it can be

15     challenged on the basis of documentary evidence; whereas, when we're

16     talking about the accuracy of the numbers themselves, that can be

17     challenged by totally different means.  That is, other statistical date,

18     for example.

19             Please proceed.

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

21             And if I may just note, Mr. President, I will again tell him, as

22     you instructed, but I'm asking the question as assistant minister so the

23     question becomes what is the position of -- but I --

24             JUDGE ORIE:  Keep matters very short.

25             Mr. Sterc, a couple of questions have been asked by Mr. Misetic

Page 20272

 1     about what your position was as an assistant minister, and I'm talking

 2     about the position you held since 1995, not the position you held at a

 3     later stage, in a different ministry.

 4             Now, if there was ever any dispute about the position you took as

 5     an assistant minister with other members of the government, I would like

 6     you to always clearly indicate that that was the case.  If we do not

 7     receive such an indication, the Chamber will understand your answer as

 8     being that you, as a member of the Croatian government, and in line with

 9     the official position of the Croatian government, took a certain

10     position.

11             Is that clear to you?

12             THE WITNESS: [Interpretation] It's clear.  Although I feel the

13     need to clarify further.  I hope you will give me leave when such

14     situations arise because we are talking about analytical and technical

15     scientific procedures.  We, who entered into the talks with the

16     international community, felt the need - and they required it of us - to

17     arrange statistical data and break them down by source and then only

18     proceed with the process of repatriation, return.

19             JUDGE ORIE:  You may proceed, Mr. Misetic.

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

21        Q.   Mr. Sterc, what was your position as assistant minister

22     concerning what percentage of the -- let me rephrase it.

23             Of the overall Serb population in Croatia, what percentage lived

24     in unoccupied parts of Croatia and what percentage of that Serb

25     population lived in occupied parts of Croatia in 1991?

Page 20273

 1        A.   In the unoccupied part of Croatia, there was a population of a

 2     little over 50 per cent of all Serbs in Croatia; and in the occupied

 3     areas, .5 or one per cent below 50 of the total population of Serbs in

 4     Croatia.

 5             So it was almost half/half.

 6             JUDGE ORIE:  Mr. Misetic, I would like to explore.

 7             Was this a figure you concluded on the basis of the 1991 census,

 8     or would it be or before --

 9             THE WITNESS: [Interpretation] 1991 census.

10             JUDGE ORIE:  Thank you.

11             Please proceed.

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

13        Q.   Now, as assistant minister, did you take a position as to what

14     happened to the Serb population after 1991?

15             MS. GUSTAFSON:  Your Honour, that's calling for an opinion.

16             MR. MISETIC:  I'm asking for a factual --

17             JUDGE ORIE:  You may finish your question, and the witness may

18     answer the question.

19             MR. MISETIC:

20        Q.   What happened to the Serb population that lived in unoccupied

21     parts of Croatia after the war started?

22        A.   The Serb population that lived in other parts of Croatia, mainly

23     urban areas and the literal area, participated in all the other

24     situations, the economy and the war effort in Croatia together with the

25     rest of the Croatian population.  In our estimate, around 70.000 of them

Page 20274

 1     left the free part of Croatia and moved to the occupied part of Croatia,

 2     or to Serbia, or to Bosnia and Herzegovina.

 3        Q.   As assistant minister, did you evaluate how many Croats in 1991

 4     lived in occupied parts of Croatia, according to the 1991 census?

 5        A.   Yes, we did.

 6        Q.   And can you tell the Court what position you took?

 7        A.   Out of the total population in the occupied areas of Croatia,

 8     according to the 1991 census, there were just over 70 per cent of Croats

 9     in the total population of the occupied part of Croatia, which was --

10     that total was around 200.000.

11        Q.   And between 1991 and 1995, what position did you take as

12     assistant minister as to how many Croats were left on that -- on the

13     occupied territory of Croatia before Operation Flash began?

14        A.   In our estimate, around five per cent.

15             JUDGE ORIE:  Mr. Sterc, you have, in answer to two questions,

16     told us what your estimates were.  The first one was that around 70.000

17     of the Serbs moved to the parts of Croatia which were not under your

18     control or to Serbia.  On what is that estimate based?  And, same

19     question, in relation to the estimate -- let me see, the other estimate

20     was about ... one second, please.

21             The five per cent estimate of Croats that remained on the

22     territories which were not under your control.

23             THE WITNESS: [Interpretation] As I said, those were estimates.

24     Those were not official numbers from the census.

25             We had partial sources of information given to us by the

Page 20275

 1     international community that we were able to read from Serbian press, and

 2     information that we could find in some of their bulletins.

 3             JUDGE ORIE:  "Their" is whose?

 4             THE WITNESS: [Interpretation] The bulletins of the international

 5     community, UNHCR, OSCE, and others.  They regularly published bulletins

 6     and estimated the population there.

 7             JUDGE ORIE:  So you combined data from various sources, including

 8     newspapers, and that led you to take a certain position.

 9             Please proceed, Mr. Misetic.

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

11        Q.   Mr. Sterc, your statement, at paragraph 7, discusses an article

12     in "Globus," and before I show that you article, I want it ask you some

13     questions about it.

14             Why did you publish that article in "Globus" in 1998?

15        A.   In 1998, we had already advanced in our talks with the

16     international community, and the need was felt for the estimated data

17     that we exchanged in our talks to be published somewhere.  The estimate

18     was that this should not be published as a -- in the form of a scientific

19     paper because few people read those papers; but, rather, to publish that

20     in -- in something that, in Croatia, was considered an opposition,

21     opposition magazine, which was published in 100.000 copies, roughly.

22             Apart from that, that was also the interest of the editors of

23     that magazine.

24        Q.   In your answer you say that the need was felt for the estimates

25     that we exchanged in our talks to be published somewhere.

Page 20276

 1             What estimates are you talking about that were exchanged in your

 2     talks?

 3        A.   Since we had a grid problem with regard to the alignment of the

 4     data, the data that stemmed from our side, the international community,

 5     or the Serbian side.  So there was the need to give a final estimate with

 6     regard to the migrations of population within the former community.

 7             JUDGE ORIE:  Mr. Misetic, could I seek clarification of one of

 8     the earlier answers?

 9             MR. MISETIC:  Yes.

10             JUDGE ORIE:  Mr. Sterc, you explained to us that the estimate was

11     not to be published in the form of a scientific paper, because that would

12     not reach a large public.

13             Now, that is the form on where to publish.

14             THE WITNESS: [Interpretation] Correct.

15             JUDGE ORIE:  Did you consider the content of the article, the way

16     in which you deal with the data and the conclusions you drew?  Did you

17     consider that to be the result of scientific analysis?

18             THE WITNESS: [Interpretation] Partly, yes.

19             JUDGE ORIE:  Would that mean that, if not for reaching a larger

20     public, for which reason you published in "Globus," that the content and

21     the character of this article could have been published in a scientific

22     journal as well?

23             THE WITNESS: [Interpretation] I apologise.

24             [In English] Can I?

25             JUDGE ORIE:  Yes.

Page 20277

 1             THE WITNESS: [Interpretation] It could have been published as a

 2     scientific paper, but writing a scientific paper requires much more time,

 3     and since the general -- in the public, at the diplomatic level and at

 4     other levels, different data were being put forward very often, and the

 5     actual figures were often multiplied.  So we felt the need, especially

 6     me, because that was within my purview, to publish that to the general

 7     public.

 8             JUDGE ORIE:  Yes.  But still the result of scientific analysis or

 9     anything else?

10             THE WITNESS: [Interpretation] Well, in scientific analyses you

11     cannot quote information from newspapers as relevant scientific evidence,

12     which, of course, does not mean that the information is not correct, but

13     scientific methodology is different.

14             JUDGE ORIE:  Yes.  You say you couldn't rely on newspaper

15     articles, although the content, the data, may be correct, which I

16     understand is that you used such sources as newspapers.  And what method

17     did you use to verify whether the data in those newspaper articles were

18     or were not correct?

19             THE WITNESS: [Interpretation] Well, you see, when such data is

20     published in magazines or bulletins, they are never completely correct.

21     Scientific methodology is such that some deeper-going research is

22     conducted, in order to corroborate that or disprove it.

23             We wanted our final estimates to be put in writing for everyone

24     to be able to read them and comment or give remarks, and then the

25     individual piece of information can either be harmonised or verified

Page 20278

 1     anew.

 2             JUDGE ORIE:  Yes, you have not answered my question.

 3             I asked you when you used newspapers as sources, which you said

 4     could not be used in, I would say, normal scientific analysis, but

 5     apparently you did use, how you were able to verify the accuracy of what

 6     was published in those newspapers.

 7             THE WITNESS: [Interpretation] We couldn't verify.  We compared

 8     data from the newspapers and the bulletins of the international

 9     community, and, based on that comparison, and based on the official data

10     from the census, we were able to estimate what went on in those

11     processes.

12             Apart from that, the Serbs in the occupied areas had something

13     that was called a partial census.  Among other things, they often put

14     forward information about their military forces.

15              With regard to the age composition and the gender composition of

16     the average population, and also considering the trends of the natural

17     growth of population, we were able to make such estimates.  In some

18     cases, newspaper articles can be verified through official data sources,

19     and they can be enclosed with an authentic scientific paper ; others that

20     cannot.

21             JUDGE ORIE:  Do I understand you well that the publication and

22     the figures published in this "Globus" article were the result of a -- of

23     the use of various scientifical -- scientific analytical techniques?

24             THE WITNESS: [Interpretation] They were possible with regard to

25     the existing data, yes.

Page 20279

 1             JUDGE ORIE:  Yes, I consider this a confirmative answer to my

 2     question.

 3             Mr. Misetic, you may proceed.

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

 5             JUDGE ORIE:  Also, you, I don't have to explain to you that this

 6     sheds some light on what kind of an article this really is.

 7             MR. MISETIC:  It does.  I'm still not sure whether I'm now

 8     allowed to show it him or not so ...

 9             JUDGE ORIE:  As long as -- I mean, this Chamber prefers to be

10     transparent in these kind of matters, and it's not our primary

11     purposes -- purpose to stop someone from doing something, but the Chamber

12     expects the parties to show awareness of what the previous testimony was

13     and specifically in relation to this article.

14             Please proceed.

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

16             Madam Registrar, if I could have on the screen 65 ter 1D1559,

17     please.

18        Q.   Mr. Sterc, you see on your screen an article.  Is that the

19     article in "Globus" which we have been talking about now?

20        A.   Yes.

21        Q.   And you are the author of the text?

22        A.   Yes.  I'm the author of the text and it -- the text was edited

23     and things were added.

24        Q.   Well, the graphics, are the graphics yours as well?

25        A.   The titles on the graphics were added by the editors.

Page 20280

 1        Q.   Now, can you tell the Court first, in terms of the refugee issue,

 2     did Croatia have any refugees from Serbia -- or I should say from the

 3     Federal Republic of Yugoslavia in Croatia at the time that you wrote this

 4     article?

 5        A.   Yes.

 6        Q.   Can you tell the Court, based on your recollection, how many

 7     refugees from the Federal Republic of Yugoslavia were in Croatia in 1998?

 8             MS. GUSTAFSON:  Could I just ask Mr. Misetic to lay a foundation

 9     for that question.

10             JUDGE ORIE:  Recollection of what?  I don't take it that the

11     witness has counted them personally.  So if the witness recollects

12     anything, I would like to know what he recollects, whether that's the

13     statistics used in the government or the outcome of the statistical

14     analysis or scientific analysis of figures.  I'd like to know what he's

15     supposed to recollect.

16             MR. MISETIC:  Okay.

17             Can we turn the page then in the article then since a foundation

18     has been laid for the article.

19             JUDGE ORIE:  We had only a short time to go through the article,

20     Mr. Misetic.

21             English page?

22             MR. MISETIC:  English page ... English page 4.

23        Q.   And, Mr. Sterc, this would be page 3 in the Croatian version.

24             Under the section in the original in the left-hand column, bottom

25     paragraph, written paragraph, and in the English under the section titled

Page 20281

 1     "Structure of migration," you wrote:

 2             "Up to now, nearly 40.000 Croats left Vojvodina ... about 5.000

 3     Croats left Kosovo and about 4.000 Croats left Serbia and Montenegro

 4     making up a total of 49.000.  Most of them found accommodation in

 5     Croatia."

 6             First, can you tell the Court where those numbers came from in

 7     your article?

 8        A.   Those numbers were received from the Croatian office for refugees

 9     and displaced persons.

10        Q.   Okay.  The next paragraph says:  "By" --

11             JUDGE ORIE:  Mr. Misetic, could we ask the witness where they got

12     those figures from, if he knows.

13             THE WITNESS: [Interpretation] They received the data, based on

14     the registration of those persons in Croatia.

15             JUDGE ORIE:  Which included where they came from?  I mean, if I

16     register somewhere, would that registration also indicate where that

17     person came from?

18             THE WITNESS: [Interpretation] Yes.

19             JUDGE ORIE:  By nationality or by former place of residence?

20     [Overlapping speakers] ...

21             THE WITNESS: [Interpretation] By -- there were also data about

22     the birth of the person, the religious affiliations, all data.

23             JUDGE ORIE:  And you used those data to come to conclusions as

24     where they came from or -- because where someone is born is not

25     necessarily the place where he lived before he came to Croatia.

Page 20282

 1             THE WITNESS: [Interpretation] Yes, that is correct.

 2             JUDGE ORIE:  What that a --

 3             THE WITNESS: [Interpretation] The place of residence.

 4             JUDGE ORIE:  Was registered, upon new registration in Croatia.

 5             THE WITNESS: [Interpretation] Yes.

 6             JUDGE ORIE:  Please proceed.

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

 8        Q.   The next paragraph says:

 9             "By the end of 1992, accommodation was provided in Croatia for

10     nearly 500.000 people from Bosnia and Herzegovina, of whom nearly 400.000

11     were Croats and a little over 100.000 were Muslims."

12             Can you tell us where you got that information from?

13        A.   From the same office, the Office for Refugees and Displaced

14     Persons.

15        Q.   And along the lines of what the Presiding Judge just asked you,

16     was that the same basis on how you determined where they actually came

17     from as how you determined how many Croats came from Vojvodina and the

18     Federal Republic of Yugoslavia.

19        A.   Yes, those were the procedures in place at the Office for

20     Refugees and Displaced Persons of the Republic of Croatia.

21        Q.   The next paragraph refers to:  "At one point in Croatia

22     accommodation" --

23             JUDGE ORIE:  Could we finish the present paragraph which reads:

24             "Bosnia-Herzegovina was left with 60 per cent of its 1991

25     population."

Page 20283

 1             What is the basis for that figure?

 2             THE WITNESS: [Interpretation] That was my estimate.

 3             JUDGE ORIE:  Based on what?

 4             THE WITNESS: [Interpretation] Based on the data received from the

 5     Office for Refugees and Displaced Persons, UNHCR reports, and data

 6     published in scientific journals, or, indeed, in daily newspapers.

 7             JUDGE ORIE:  Did you consider, that at the end of 1992 reliable

 8     data were available as far as the actual situation in Bosnia was

 9     concerned?

10             THE WITNESS: [Interpretation] No.

11             JUDGE ORIE:  Please proceed, Mr. Misetic.

12             MR. MISETIC:  Thank you.

13        Q.   The next paragraph says:

14             "At one point in Croatia, accommodation was being provided for

15     about 750.000 people."

16             Where does that figure come from?

17        A.   The Croatian office for refugees and displaced persons, 750.

18        Q.   Okay.  If we could go to the -- in the Croatian to the second

19     column at the top.

20             The next -- skipping that next paragraph and going to the UNHCR

21     initial data and their 1991 and 1992 bulletins:

22             "About 90.000 Serbs left the occupied territory and by the

23     liberation in 1995, their number grew to approximately 140.000."

24             Could you tell the Court, first, where you got the number of

25     90.000 Serbs; and, second, where you got the number of 140.000 before

Page 20284

 1     Operations Flash and Storm.

 2        A.   Those were not my estimates.  Those were the estimates of the

 3     UNHCR.

 4        Q.   And where did you get these estimates from, from UNHCR?  In what

 5     form?

 6        A.   Partly from pair bulletins and partly from conversations with

 7     them.  We talked almost daily.

 8        Q.   Okay.  Now, the next paragraph says:

 9             "During the liberation in 1995, about 130.000 people left the

10     former occupied territory, and it is estimated that around 10.000 people

11     remained after Operations Flash and Storm."

12             First, can you tell the Court where the number of 130.000 people

13     comes from?

14        A.   When you compare all the data that we spoke about earlier, when

15     you take into consideration the partial census in the occupied area, if

16     you estimate how the military forces, about which they wrote in their

17     bulletins, it was possible to estimate this number of 130.000.  In the

18     formerly occupied areas, we supposed that about 10.000 Croats remained

19     there, but we assumed so based on -- on the information that we got after

20     the operation.

21        Q.   Is it 10.000 Croats that you thought?

22        A.   Ten thousand, 10.000 persons of non-Serb ethnicity.

23        Q.   So did you ever form an estimate as to how many Serbs had

24     remained in the formerly occupied territory?

25        A.   Yes.  But I would have to think now.  I think this information

Page 20285

 1     can be found in this work.  I believe that the number is around 13.000.

 2        Q.   Okay.

 3             JUDGE ORIE:  Mr. Sterc, you earlier give us the number of about

 4     130.000 people that left the -- as you said the former occupied

 5     territory.  And then you explained when asked where this number comes

 6     from, you said:

 7             "When you compare all the data that we spoke about earlier, when

 8     you take into consideration the partial census in the occupied area, if

 9     you estimate the military forces ..."

10             So there are a lot of various sources of information which needed

11     to be interpreted and analysed to come to the figure of 130.000; is that

12     correct?

13             THE WITNESS: [Interpretation] Yes.

14             JUDGE ORIE:  Do you have a -- I mean, the conclusion, then, is

15     the number of 130.000 which means that you have -- add numbers, you would

16     add other, perhaps, percentages, you apply an analysis, perhaps a

17     statistic analysis.  Do you still have a full list of all the data you

18     used and the methodology you used to reach at this 130.000?

19             THE WITNESS: [Interpretation] May I answer?

20             We arrive -- I arrived at the number of 130.000 not exclusively

21     relying on these sources, but even earlier, we estimated the number of

22     the Serbs in the free parts of Croatia.  We also estimated how many had

23     left the free territory.  We also used UNHCR as a -- data to estimate the

24     number of Serb who had left for Bosnia-Herzegovina and other -- and third

25     countries.  And adding up all those figures, we estimated the demographic

Page 20286

 1     potential in the occupied territories before Operation Storm.  That was

 2     our procedure.

 3             JUDGE ORIE:  Now, you said that part of the purpose of this

 4     exercise was because a lot of numbers were circulating which you didn't

 5     agree with.

 6             Now, what gave you an opportunity to -- for example, to verify

 7     the accuracy of UNHCR numbers, whereas you had doubts as to certain

 8     numbers that were circulating?

 9             THE WITNESS: [Interpretation] The information that was published

10     practically after the operation was about 300.000 persons.  This was

11     accepted at the diplomatic level, by journalists, and, generally

12     speaking, publicly, without anyone having -- even tried to apply simple

13     maths, and add up the numbers from various parts of Croatia.

14             And, so to avoid erroneous perception, we wanted to make an

15     official estimate and any scientists, politician, diplomat, journalist

16     was in a position to react to that, but they never did.  Why?  Because

17     the procedures involved are very complex and whoever analyses a part of

18     Croatia or any other part of the former community must have a very clear

19     picture of the population, the reproduction, the natural growth,

20     emigration, the age of the population.  These are demographic parameters

21     which determine the total population.

22             JUDGE ORIE:  Do you intend to say that because the demographic

23     parameters were rightly applied in your analysis that, therefore, those

24     who had published wrong figures were not in a position to challenge your

25     findings?

Page 20287

 1             THE WITNESS: [Interpretation] No, I'm not claiming that.  Since I

 2     come from science, our procedures are such that, when something is

 3     publicly announced, or made public, it can be responded to in writing and

 4     in a substantiated way with arguments, so this should be understood as --

 5     an impetus with a scientific approach.

 6             JUDGE ORIE:  Yes.  But you earlier asked yourself, Why?  I find

 7     that on page 69, line 22.  You said:

 8             "Because the procedures involved are very complex," is it that

 9     you wanted to say that they were not on top of these complex issues and,

10     therefore, were not able to respond to your analysis?

11             THE WITNESS: [Interpretation] I don't know what the reason was.

12     I attended many meetings where I was criticised for these estimates in

13     public.

14             In scientific discussions, not in political discussions, that is

15     allowed, but what should follow is a personal analysis producing results

16     and public announcement.  Nobody did that.

17             JUDGE ORIE:  I'm looking at the clock, Mr. Misetic.  It's time

18     for a break.

19                           [Trial Chamber confers]

20             JUDGE ORIE:  We'll have a break, Mr. Sterc.  I already ask

21     Madam Usher to escort you out of the courtroom.

22                           [The witness stands down]

23             JUDGE ORIE:  The Chamber would like to start after the break

24     without the witness, perhaps to briefly discuss how to proceed, in view

25     of the -- where we are on the balance between a witness of fact and an

Page 20288

 1     expert testimony.

 2             We'll have a break and resume at five minutes to 1.00.

 3                           --- Recess taken at 12.36 p.m.

 4                           --- On resuming at 1.02 p.m.

 5             JUDGE ORIE:  Mr. Misetic, the Chamber has considered how to

 6     proceed, and the following may be of guidance to you.

 7             It became, for the Chamber, apparent, from the testimony of the

 8     witness, until now, that the figures in the "Globus" article are mainly

 9     the result of scientific analysis of all kinds of sources which are not

10     precisely identified, where we do not know exactly what methods were used

11     to finally reach the figures that are mentioned in there.

12             So, to that extent, this witness, who is a witness of fact,

13     apparently published an article which is primarily the result of

14     scientific analysis, rather than statement of facts.

15             Now, therefore, that doesn't mean that these figures cannot play

16     any role at all, but the facts will then - and I just give an example -

17     will be how were they used.  For example let take the figure of 130.000.

18     Was it put forward in any negotiations, was it used as a base of a

19     programme.  We don't even have to specify, I would say, about the

20     numbers, can be, for example, a specific number was introduced in

21     negotiations with whomever, then, of course, it may be of importance to

22     further specify.  But if, for example, you say, The result of these

23     analysis, we used that as the basis for developing our plans, then we

24     don't have to pay further attention to the figures as such, because the

25     figures reached here, are, as matters stand now in the testimony of the

Page 20289

 1     witness, are the result of expert analysis of data available.

 2             MR. MISETIC:  Mr. President, two points, if I may.

 3             JUDGE ORIE:  Yes.

 4             MR. MISETIC:  One, I guess I would respectively disagree with

 5     that conclusion because there's a mixed issue there, which is the witness

 6     is, by profession, an expert or at least he perceives himself to be an

 7     expert on the issue; so the question would be could the witness have ever

 8     gathered these types of statistics and not approached them in a

 9     scientific way given his background.  So I'm not sure that that answer

10     has been clarified with the witness.

11             An expert in the field, otherwise dealing with the matter of

12     fact, I would assume, would rely on his own knowledge and expertise in

13     gathering information --

14             JUDGE ORIE:  I do not mind if he relied on it in his work as

15     minister.

16             MR. MISETIC:  I believe by way of background he stated that the

17     whole purpose of it was because of negotiations with the international

18     community --

19             JUDGE ORIE:  Okay, then say, Whenever I worked in that field, we

20     used those figures in our negotiations, that's then taken for a fact.

21             MR. MISETIC:  I believe -- if I can look in the transcript, I

22     believe that was in the introduction to this.

23             JUDGE ORIE:  Yes, but it doesn't need -- of course, you could ask

24     him about further details about that, Which figures did you use in

25     preparing a programme, what figures did you use in negotiations with A,

Page 20290

 1     B, or C organisation?  But the problem is that -- now, let me first give

 2     you an opportunity to raise your second point.

 3             MR. MISETIC:  I guess two more points because one now is brought

 4     up by this last issue raised by you, Mr. President.

 5             The issue is simply by way of factual background.  An issue has

 6     been raised by the Prosecution in its case about return of refugees.

 7     What we're trying to establish is this person who is the highest ranking

 8     person operationally on that question thought how many Serbs had to come

 9     back or could theatrically come back to Croatia, how many were coming

10     back as part of his job, how many Croats as of 1998 still had not

11     returned to their homes in the occupied territories which is in the

12     article and which intend to address with him next.  That is the purpose

13     of exploring with him what is the actual factual situation on the ground

14     in terms of return of refugees --

15             JUDGE ORIE:  Now, what is your perception of the actual situation

16     on the ground.

17             MR. MISETIC:  Correct.  Their perception, their position, et

18     cetera, because what we're talking about here is the Croatian

19     government's or the assistant minister in charge of the issue his

20     perception of the scope of the problem, the dimensions of the problem;

21     thus far, we have only looked at it in this case through the prism of

22     Serb returnees.  What we want to show is that it's a much more complex

23     issue than has been presented thus far, and for that purpose, the numbers

24     as he perceived them are relevant.  Whether it turns out it was 170.000

25     Serbs that had left after Operation Storm or 90.000, is a question that

Page 20291

 1     can be debated back and forth.  We didn't feel it's an issue for expert

 2     testimony because he is not being called here as an independent outside

 3     observer to evaluate the -- but rather as a participant who made, then,

 4     certain decisions.  We are going to get into right now a 100-page plan

 5     that was drafted with the statistics in mind, and that plan was

 6     implemented on the return of refugees.  It is our position you can't

 7     understand the plan if you don't understand first the scope of the

 8     problem which is multi-faceted.

 9             Finally, as a procedural issue, we would just ask that the

10     Chamber keep in mind that we were notified of an issue only on Thursday.

11     These issues had -- had we had more time, and this was such a big problem

12     for the Prosecution, we could have simply postponed this witness for a

13     later date and tried to bring next week's witness in now so that they

14     would have time.  So we ask that we not now be penalised because we got

15     late notice that there was issue regarding what this witness was going to

16     testify about.

17             JUDGE ORIE:  Yes, that's clear.

18             Ms. Gustafson.

19             MS. GUSTAFSON:  Just on the last point, Your Honour.  The Defence

20     chose to put forward this witness as a fact witness.  They clearly took a

21     chance with that.  It is quite clear on the face of the statement that

22     the evidence of the witness is at least on the border-line, and as Your

23     Honours have ruled, fall in parts within the realm of expertise.  They

24     took that chance.  Now they have an adverse ruling, and there is no

25     question of being unfairly penalised.  We responded the same day they

Page 20292

 1     tendered the 92 ter exhibit of this witness and I'll repeat I received

 2     the underlying material for these paragraphs yesterday.

 3             MR. MISETIC:  Mr. President, if I --

 4             JUDGE ORIE:  Yes.

 5             MR. MISETIC:  There's a factual issue here.

 6             JUDGE ORIE:  If there's any new element to be introduced in this

 7     discussion, I would like to hear.  Otherwise, I'm quite confident that we

 8     could continue it for an hour on the existing controversial, and I'd

 9     rather not do that.

10             Anything new, please.

11             MR. MISETIC:  First, I don't consider it to be an adverse ruling;

12     secondly, I don't perceive it to be a game of we're taking chances.  What

13     we're trying to do is produce evidence to the Chamber.  I think the

14     Prosecution had a certain responsibility to raise issues particularly

15     when a witness list was circulated two or three weeks ago that this

16     witness was coming; third, it is my understanding that Ms. Gustafson was

17     out of the country for two weeks and so some of these issues, it is my

18     understanding, were pushed back until last week when she returned.  I

19     have no problem in assisting her with coming back --

20             JUDGE ORIE:  Mr. Misetic, we then enter into private dealings and

21     whether or not you can be reached when we are abroad, even if I'm on the

22     south pole then I would still deal with matters.

23             Let's -- let's try to keep this a limited debate on the matter.

24     There may be some merit in the positions of both parties in this respect,

25     and the Chamber is more interested in how to proceed fairly to -- or --

Page 20293

 1             Ms. Gustafson, you're not going to tell us where Mr. Misetic went

 2     on his last holiday?

 3             MS. GUSTAFSON:  No, Your Honour.  I apologise for rising, but I

 4     do think there is some confusion because I did understand Your Honours to

 5     have made a rule about the -- the evidence of this witness being expert

 6     analysis.  Mr. Misetic doesn't think there is a ruling.  If we could get

 7     some clarification from the Bench.

 8             JUDGE ORIE:  What I said is that the "Globus" article as a basis

 9     presents the outcome of scientific analysis which -- where it is

10     difficult at this moment to identify exactly the sources and methodology

11     used, and I urged Mr. Misetic, then, to proceed in how the figures, right

12     or wrong, on what basis, whether invented, copied from "New York Times,"

13     "Le Soir," or the local newspaper of The Hague to proceed and see how

14     this material was used as a factual thing for plans, for negotiations,

15     whatever, that's what the Chamber invited Mr. Misetic to do, and I'm sure

16     he will do it.

17             Mr. Misetic.

18             MR. MISETIC:  Thank you, Mr. President.  And with respect to what

19     I was referencing earlier in the transcript in the witness's testimony,

20     this is at page 58, beginning at line 20, and I'll explore it further if

21     the Chamber wishes, but it's where he talks about, We were advanced in

22     our talks with the international community and the need was felt --

23             JUDGE ORIE:  Yes.  No, that is not -- but I'd like to say -- to

24     hear from the witness, In September we negotiated with this and this

25     organisation, and we used those and those figures, or we did not use

Page 20294

 1     these ones, or the others were not relevant, or we waited until after

 2     1995 or -- whatever, but I'd like to make that as factual as possible,

 3     because if you say, These figures were used in our discussions, and if

 4     then more time is spent on the figures than on the way in which they were

 5     used, then I think we are falling back into at least a risk of relying on

 6     these data as objectively established.

 7             MR. MISETIC:  Yes.  As I indicated to you, Mr. President, that

 8     was ultimately where I'm getting to once we complete the "Globus"

 9     article.

10             JUDGE ORIE:  Yes, let's get the witness in so we see how you do

11     that.

12                           [The witness takes the stand]

13             JUDGE ORIE:  Mr. Sterc, please be seated.

14             We had a bit of a longer break than we expected, but I hope

15     you'll forgive us.

16             Mr. Misetic will now continue his examination-in-chief.

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

18             Madam Registrar, if we could have page 6 in English on the

19     screen, please, and the last page in the Croatian.

20        Q.   Now, the far left-hand column.  There we go.

21             Mr. Sterc, in this article in the first paragraph underneath

22     "tragic balance," about the fourth sentence in you write:

23             "And so there are almost 100.000 Croats in Croatia today who were

24     expelled and who are not in their homes in the former occupied areas."

25             Let's stop with that.  First of all, where does that figure come

Page 20295

 1     from?

 2        A.   That number is from the Office for Refugees and Displaced

 3     Persons.  These are person who is did not return at that time to their

 4     homes.

 5        Q.   Why weren't these people in their homes almost three years after

 6     Operation Storm?

 7        A.   Because, for the most part, their homes had been destroyed.

 8        Q.   Now, did you discuss with members of the international community

 9     the figures concerning how many Croats, as of the publication of this

10     article, still had not managed to be returned to their homes in the

11     occupied territories?

12        A.   We did.

13        Q.   With whom did you discuss that figure?

14        A.   With all the representatives of the UNHCR, OTSS, UTS, the Troika,

15     various diplomatic and other missions in Croatia from the top leaderships

16     to their operative officials, and they claimed that Croatia could not

17     return those 120.000 Croats to the occupied territories for the reasons

18     that I have stated.  But that was not perceived as a particular problem.

19        Q.   Well, first let me get the acronyms straight.

20             In line 18 where it says OTSS, can you repeat again what

21     organisation that is?

22        A.   I meant the OSCE.

23        Q.   And then the third acronym, it was interpreted as UTS.  Can you

24     recall exactly --

25        A.   UNTAES, U-N-T-A-S.  The provisional administration in the

Page 20296

 1     transitional administration in Podunavlje, in Eastern Slavonia.

 2        Q.   Where would you meet with these representatives?

 3        A.   Everyone where.  Almost everywhere in Croatia and almost every

 4     week we met in the occupied -- Vukovar as guests of the UNTAES.  We had

 5     negotiations in the occupied Vukovar, in Banja Luka, in Topusko, in

 6     Plasko, and most of all in Zagreb, of course.

 7        Q.   And in those meetings was the figure of 100.000 Croats still not

 8     returned to their homes discussed?

 9        A.   Yes, it was.  Because we insisted, in those negotiations, on the

10     principle of everyone returning to their homes, because we thought that

11     was the only right solution for the refugee and displaced persons crisis

12     in Croatia, but most of their actions were, however, focussed on

13     returning the Serbs.

14        Q.   Mr. Sterc, you've touched on an issue that I intended to get to

15     later, but it may be relevant here so maybe you can explain it.

16             You talk about the principle of everyone returning to their

17     homes, and then you also talk about "... most of their actions, were,

18     however focussed on returning the Serbs."  And I'd ask to you please

19     explain to the Chamber what is, or what was the principle of everyone

20     returning to their homes, and how was it related to the issue of Serbs

21     returning to their homes?

22        A.   Well, that is a fundamental principle in resolving the crisis of

23     refugees and displaced persons.  That's one.

24             Second, since homes were occupied in Croatia and in Podunavlje

25     and in Bosnia-Herzegovina by all sorts of people, we had start moving the

Page 20297

 1     whole complex of these issues by raising it to the highest level and that

 2     required financial, logistical, and organisational support, because that

 3     would help resolve the entire complex situation in Croatia.

 4        Q.   Let me be more specific.  Was the issue of the return of Croats

 5     to their homes relate to the issue of the return of Serbs to their homes?

 6        A.   Yes.

 7        Q.   Can you explain to the Chamber why these issues are related.

 8        A.   Because everything was so interwoven and that refugees came to

 9     Croatia and Bosnia and Herzegovina and Serbia from all over the place,

10     and the numbers were so large and the directions of their movement could

11     not be controlled by anyone.  They took the line of least resistance, and

12     they just occupied whatever buildings were vacant or were on their way

13     and happened to be intact.

14        Q.   Okay.  As part of this issue of the interwoven-ness of the

15     problem, did you gather -- did you conduct statistical analyses to

16     determine the extent of the problem?

17        A.   We made weekly estimates at meetings of the Working Group, with

18     representatives of the international community.  Our numbers did not

19     always match, but we tried in all our actions and discusses to harmonise

20     them.

21        Q.   When you say "weekly estimates."  Weekly estimates of what types

22     of statistics?

23        A.   Those were estimates primarily from the UNHCR, Croatia, Serbia,

24     and Bosnia and Herzegovina.

25        Q.   But what were you estimating?

Page 20298

 1        A.   We estimated the number of persons in Croatia, Serbia,

 2     Bosnia-Herzegovina, respectively; where they had come from and where they

 3     should return.

 4        Q.   Okay.  Going back to the "Globus" article, these statistics, were

 5     they discussed at these weekly meetings of the joint Working Group?

 6        A.   Yes.

 7        Q.   If we continue on, we talked about the 100.000 Croats in Croatia.

 8     The next sentence says:

 9             "About 120.000 Croats from Bosnia-Herzegovina are all over

10     Croatia in various kinds of accommodation; 80.000 Croats from Bosnia and

11     Herzegovina in Germany are waiting to return to Bosnia-Herzegovina ...

12     40.000 Croats from Vojvodina have been provided accommodation in various

13     ways in the Republic of Croatia and ... 5.000 Croats from Kosovo were

14     also provided accommodate addition in various ways in the Republic of

15     Croatia.

16             "And so in all, about 395.000 Croats are not in their homes."

17             So the statistics that I have read right now, were any of these

18     statistics discussed at the meetings of the joint Working Group?

19        A.   Yes.

20        Q.   Which of these statistics were discussed at the meetings of the

21     joint Working Group?

22        A.   I can give you an example.  Say, the Croats from Kosovo, our

23     estimate was, and that of the Office of Refugees and Displaced Persons,

24     that they were about 5.000.  In accordance with the policy of everyone

25     returning to their homes, I also asked for these people to return -- or,

Page 20299

 1     rather, put forward a proposal for these people to return to their homes

 2     at the meeting of the joint Working Group.

 3        Q.   Go ahead.

 4        A.   Moreover, we wanted Croats -- the Croats to return to

 5     Bosnia-Herzegovina to their homes from Croatia; of course, under the

 6     assumption that they wanted to return.

 7        Q.   Okay.  But of the statistics that we have read out, in other

 8     words, how many Croats from Bosnia-Herzegovina were in Croatia, how many

 9     Croats were from Bosnia were in Germany, how many Croats from Vojvodina

10     were in Croatia, were those statistics discussed at meetings of the joint

11     Working Group?

12        A.   Yes, they were.  But the positions were along the following

13     lines.  That is a matter for Croatia to deal with.

14        Q.   And what was your position when you would be told that this was a

15     matter for Croatia to deal with?

16        A.   My position was that, among others, it is the interest of Croatia

17     that Croats, among others, should return to their homes in Bosnia and

18     Herzegovina and Kosovo, and that the international community should take

19     part in that, as we're speaking about the return to other countries.

20        Q.   Was there any relationship between you raising these issues of

21     Croats returning to their homes and the international community's

22     insistence on Serbs returning to their homes?

23        A.   Both were illogical.  All of us doing that job were to accept

24     that general principle and work to enable both groups to return to their

25     homes.  Because that was the basic principle, repatriation, return to

Page 20300

 1     their homes.  We knew, of course, that some of those people for various

 2     reasons didn't want to return, but we should enable everybody who is

 3     willing to return to indeed return.

 4        Q.   Before the break, we spoke about statistics before the war

 5     period, how many of various ethnic groups were where in 1991 and how many

 6     members of which ethnic groups were where in 1995.  Were those statistics

 7     discussed at meetings of the joint Working Group and why, if so?

 8        A.   Of course, they were discussed.  All of these articles I

 9     published were used by the international community, once they had them

10     translated, and at our meetings which tried to harmonise them because

11     sometimes they would express their doubts about some data.

12        Q.   This article in "Globus," you mention:

13             "Articles I published were used by the international community."

14             Was this article in "Globus" used by the international community,

15     to your knowledge?

16        A.   I suppose so.

17        Q.   Do you know so?  Do you have any knowledge that they did?

18        A.   I don't know for sure; I can only suppose.  Because we spoke

19     about those figures, so it's logical to assume that they did.

20        Q.   What was your motivation, what was your purpose in publishing

21     this work in "Globus"?  And was it related to your work on -- if at all,

22     on the joint Working Group?

23        A.   Yes, there was a link.  It was our wish to have that published

24     to -- to launch discussion about that, and, if necessary, have data

25     corrected; and, finally, agree on the number of people to be returned to

Page 20301

 1     their homes, in accordance with the principle of everybody returning to

 2     their homes.

 3        Q.   My question is even more specific, which is:  Why was it your

 4     wish to have it published; and why was it important to you to launch a

 5     discussion about the number of people to be returned to their homes?

 6        A.   You mean me personally as the chairman of the joint Working

 7     Group?

 8        Q.   First let's start with you personally.  So, yes.

 9        A.   It mattered to me personally because we were unable to harmonise

10     figures in many -- on many occasions.  Because many things have to be

11     harmonised, such as finances, and the entire logistics, and the great

12     pressures that we have spoken about often should be reduced to normal.

13        Q.   Your answer is:  "We were unable to harmonise the figures."

14             Who is we?

15        A.   Yes.  Well, I mean primarily the representatives of the

16     international community who, at the outset, were saying that 300 [as

17     interpreted] persons left Croatia during and after Operation Storm.

18        Q.   300 persons or 300.000 persons?

19        A.   300.000.

20        Q.   Okay.  And --

21             JUDGE ORIE:  Persons?  Or just in general?

22             THE WITNESS: [Interpretation] Persons, yes.

23             JUDGE ORIE:  Yes.

24             THE WITNESS: [Interpretation] Of course, among those persons the

25     Serbs were the majority.

Page 20302

 1             MR. MISETIC:

 2        Q.   Did this article, this publication in "Globus," have any effect

 3     on harmonising the figures of persons that needed to return to their

 4     homes?

 5        A.   It certainly did.  Because we had a basis for discussion and

 6     harmonisation.

 7             I can also add that there were also -- there was also criticism

 8     to what I published, because some people claimed that what I had

 9     published was unfounded.  There was even a discussion about that at

10     public meetings or conferences, one such instance being the conference

11     the Serbs in Croatia organised by the Croatian Helsinki Committee, where

12     I also took part and discussed, et cetera, but never did anyone put

13     forward other data in an analytical fashion.

14             JUDGE ORIE:  Mr. Misetic, could I seek clarification of one of

15     the answers.

16             MR. MISETIC:  Yes, if I can just tell you, Mr. President, I don't

17     have any other foundational questions to put to him, so if the Chamber

18     does --

19             JUDGE ORIE:  No, it's not about --

20             MR. MISETIC:  I just wanted to invite you, if you have other

21     questions on foundation, I'm finished with that.

22             JUDGE ORIE:  You told us that the publication in "Globus" had

23     certainly an effect on harmonising the figures of persons that needed to

24     return because, as you said, "... we had a basis for discussion and

25     harmonisation."

Page 20303

 1             Was ever any agreement reached on what would be the basis on

 2     which to further proceed in the -- with the international organisations?

 3     I mean, did you finally say, Okay, let's work on the basis of this and

 4     this.

 5             THE WITNESS: [Interpretation] Well, eventually, we were able to

 6     harmonise that, and the final figures resulted in the programme of return

 7     and providing care for all persons.  That programme was adopted by the

 8     Croatian government and this is an outcome of all these -- this process

 9     of harmonisation and negotiations and that programme has been in use

10     until this day, with minor changes.  And I believe that it is also used

11     in other countries.

12             JUDGE ORIE:  And was that accepted then by the Working Group?

13     I'm trying to understand what harmonising exactly means.  That apparently

14     there was a dispute [Overlapping speakers] ...

15             THE WITNESS: [Interpretation] Primarily in the Working Group.

16     All these talks and negotiations in the Working Groups was not

17     confrontation.  Nobody accused anyone, nobody tried to force anyone to do

18     anything or insist on anything.  We were simply trying to find a solution

19     and to get the -- this complex process going in various directions and

20     come up with one document that would be applicable.  And this whole story

21     that had to do with displaced persons and refugees should be transferred

22     from the political to the humanitarian level.

23             JUDGE ORIE:  Yes.  It is still not an answer to my question.

24             Apparently there was disagreement about the figures between the

25     Croatian government, I take it, and the international organisations which

Page 20304

 1     would be involved in -- in return issues.

 2             You said this article being published certainly had an effect on

 3     harmonising.  Then I asked you, What was the result of that?  Was

 4     finally -- was there agreement on the -- in the joint Working Group on

 5     these matters?  And then you said, Well, finally, we -- we had this

 6     programme, which seems to be a Croatian government programme.  While I

 7     did understand that there was no problem within the Croatian government,

 8     but it was the Croatian government and the international organisations

 9     and institutions.

10             What I'm asking, quite simply, is:  Was there ever any agreement

11     where the international organisations and institutions agreed with the

12     Republic of Croatia on, this is the number of people that migrated in

13     this direction; we accept that as the basis for plans, and if so -

14     because I'd like to know what then the agreement was - was there such an

15     agreement, and, if so, is there any documentation about it?

16             THE WITNESS: [Interpretation] Yes, the figures were harmonised.

17     And after that harmonisation in the Working Group what followed were the

18     other documents.  And not only them, but also our public talks on

19     Croatian television about all the issues that we're discussing now.

20             JUDGE ORIE:  Now I would expect if there is a harmonisation of

21     the figures, if there's any agreement on that, that at least it would

22     have been written down somewhere because you might easily forget about

23     that numbers.  Is there any document in which it said, Well, we

24     discussed --

25             THE WITNESS: [Interpretation] Yes, there is the very programme

Page 20305

 1     that I mention where the figures or numbers are explicitly mentioned.

 2             JUDGE ORIE:  Yes.  But you said that was a Croatian programme.

 3     Is it anywhere apparent in that document that this was not just the

 4     Croatian view but also accepted, meanwhile, by other institutions or

 5     organisations?

 6             THE WITNESS: [Interpretation] Yes, that's right.

 7             The negotiations about the adoption of the programme we're

 8     talking about, I conducted personally with Tim Guldimann, the chief of

 9     the OSCE mission to Croatia, and with Mr. Robertson, the representative

10     of UNTAES, and other organisations.  And we agreed on all that in the

11     Working Group, about the basics.  Of course, the programme is much more

12     complex.  We're speaking about a 100-page document.

13             JUDGE ORIE:  Yes, I leave it further in the hands of Mr. Misetic.

14     Mr. Misetic, yes, I know that we're close to ...

15             MR. MISETIC:  As I indicated, Mr. President, I don't have any

16     additional foundational questions to ask, unless you wish me to ask

17     something else.  But at this point, I would ask that the "Globus" article

18     be MFI'd.

19             JUDGE ORIE:  Yes, it will be MFI'd.

20             Ms. Gustafson.

21             MS. GUSTAFSON:  Your Honour --

22             JUDGE ORIE:  You will have a further opportunity to argue whether

23     it should be admitted, yes or no.  We will do that at a later stage.

24             Mr. Misetic, we'll adjourn for the day.  But you understand that

25     it might be a difficult question to answer, how much time would you need

Page 20306

 1     for the examination-in-chief, because I'm well aware that the Chamber may

 2     have confused what you on your mind at that time.

 3             MR. MISETIC:  You never confuse me, Mr. President.  It just took

 4     a little longer than I anticipated, but I would hope to finish in the

 5     first session tomorrow.  Hopefully.

 6                           [Trial Chamber and Registrar confer]

 7             JUDGE ORIE:  Ms. Gustafson, I am aware that I'm putting a similar

 8     difficult question to you.  Could you give us any indication as to how

 9     much time would you need, assuming that you could start, which is not yet

10     determined.

11             MS. GUSTAFSON:  Your Honour, could I certainly start on certain

12     parts of the statement.  That's not a problem.  And for the rest of it,

13     it depends what happens.

14             At this point, I anticipate three to four hours on the basis of

15     the paragraphs of the statement that are not contested.

16             JUDGE ORIE:  Yes.

17             I inappropriately had not asked the Cermak and Markac Defence on

18     whether and how much time -- whether they have any questions and how much

19     time they would.

20             MS. HIGGINS:  Your Honour, at the moment there are no questions

21     arising, and I will keep that position under review.

22             JUDGE ORIE:  Yes, Mr. Kuzmanovic.

23             MR. KUZMANOVIC:  At this point, no questions, Your Honour.

24             JUDGE ORIE:  Thank you.

25             Mr. Sterc, we adjourn for the day, and I would like to instruct

Page 20307

 1     you that you should not speak with anyone about your testimony whether

 2     already given or still to be given.  I already invite Madam Usher to

 3     escort you out of the courtroom because we have to assign a MFI number to

 4     the "Globus" article.

 5             And we would like to see you back, just for your information,

 6     Mr. Sterc, we will have our hearing tomorrow in the morning.  We start at

 7     9.00 in the morning in this same courtroom.

 8             THE WITNESS: [Interpretation] Thank you.

 9             JUDGE ORIE:  You may follow Madam Usher.

10                           [The witness stands down]

11             THE REGISTRAR:  Your Honours, 65 ter 1D1559 will become

12     Exhibit D1608, marked for identification.

13             JUDGE ORIE:  And it keeps that status for the time being.

14             We'll adjourn and we will resume tomorrow, Wednesday, 15th of

15     July, 9.00 in the morning, Courtroom III.

16                            --- Whereupon the hearing adjourned at 1.48 p.m.,

17                           to be reconvened on Wednesday, the 15th day of

18                           July, 2009, at 9.00 a.m.