Page 20995
1 Tuesday, 1 September 2009
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.03 a.m.
6 JUDGE ORIE: Good morning to everyone in and around this
7 courtroom.
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in the courtroom. This is case number IT-06-90-T, the
11 Prosecutor versus Ante Gotovina, et al.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 Good morning to you, Mr. Jones, as well. Perhaps unnecessary,
14 but I would like to remind you that you're still bound by the solemn
15 declaration you gave yesterday at the beginning of your testimony.
16 WITNESS: ANTHONY JONES [Resumed]
17 JUDGE ORIE: And Mr. Waespi will now continue his
18 cross-examination.
19 Mr. Waespi, please proceed.
20 THE WITNESS: Thank you. Good morning.
21 MR. WAESPI: Thank you, Mr. President.
22 Cross-examination by Mr. Waespi: [Continued]
23 Q. Good morning, General.
24 A. Good morning.
25 Q. You testified yesterday that the Croatian Army had never executed
Page 20996
1 an offensive campaign prior to the series of operations involving
2 Operation Storm, and that was at pages 2902, lines 23 to 25.
3 Now, were you aware that there was an operation called Flash in
4 early May 1995?
5 A. Yes.
6 Q. That was an offensive operation, wasn't it?
7 A. Pardon?
8 Q. That was an offensive operation.
9 A. Yes. What I talked about when I referred to offensive campaign,
10 I included from Summer 94 through Operation Storm and the continuing
11 campaign through -- to -- Operations Maestral and Southern Move.
12 Q. But there was also an offensive campaign in 1993 called Operation
13 Medak Pocket; were you aware that?
14 A. I was not.
15 Q. And you haven't heard that there were war crimes with which the
16 commander was charged which resulted in convictions. You are haven't
17 heard about that?
18 A. In 1993?
19 Q. Yes.
20 A. No, it was not my focus for what I was asked to do.
21 Q. But you would accept that there were operations of offensive
22 character prior to 1994?
23 A. I'm not aware of it, but that's for you to, I think, to submit.
24 I don't know. I did not look at that.
25 Q. Yes, but you testified that there were no operations?
Page 20997
1 A. There was none of which I knew of that General Gotovina had led
2 at this magnitude of this level of scope.
3 Q. Thank you, General.
4 Let's move to the --
5 JUDGE ORIE: Mr. Jones, just to understand your testimony.
6 THE WITNESS: Yes.
7 JUDGE ORIE: Now, you say, "There was none of which I knew of
8 that General Gotovina had led ..."
9 Now was your testimony yesterday about offensive operations under
10 the leadership of General Gotovina; or was it about offensive operations?
11 THE WITNESS: My testimony yesterday covered the leadership of
12 General Gotovina in the offensive campaign which he conducted. However,
13 in my research of what I read, as they built their army since 1991/1992 I
14 did not see any significant offensive campaign which was similar in
15 complexity or magnitude of what they were undertaking at the time.
16 JUDGE ORIE: Please proceed, Mr. Waespi.
17 MR. WAESPI: Thank you, Mr. President.
18 Q. Let's move to paragraph 19 of your expert report, and this is
19 about the issue of command climate. And you discussed that yesterday
20 already. And you mentioned yesterday --
21 MR. KEHOE: Excuse me, counsel. I think we have the binder. I
22 hate to interrupt you, I'm sorry. If we could provide the witness with a
23 hard copy from yesterday.
24 JUDGE ORIE: Yes, that would be a good idea.
25 MR. KEHOE: My apologies [Microphone not activated]
Page 20998
1 THE WITNESS: Thank you. Okay.
2 MR. WAESPI:
3 Q. And yesterday you testified about the importance of a leader not
4 just writing documents but, for instance, showing presence at decisive
5 places. That's at page 20926. Let me develop this subject a little bit
6 further.
7 Now, let me start with this. How important is discipline in an
8 army, in any armed formation?
9 A. Well, I think it's extremely important as well as training.
10 Having people know what's right to do and what's wrong you get through
11 training, and it's through that training you teach them how to -- how to
12 operate, how to take care of their buddies and their teammates and how to
13 execute the mission. It's when they don't know what right looks like
14 indiscipline, and when you don't have a trained force is when
15 indiscipline could be a factor.
16 Q. And what happens if discipline breaks down?
17 A. Well, normally when that happens and you don't have someone to
18 correct it fairly quickly, you don't achieve what you're set out to do
19 and what you are told to do.
20 Q. So that goes to the core of any hierarchy if discipline breaks
21 down. Would you agree with me?
22 A. Yes, I think it's -- you see multiple examples in here, you know,
23 how that paramounts down through the command. If you have an element
24 that's not following the orders, to include on the western flank when the
25 people, the units, there did not launch as they were supposed to at the
Page 20999
1 time and get moving, that is a form of indiscipline when they failed to
2 move when they were supposed to.
3 Q. And as I said, you know, if discipline isn't maintained, that is
4 a disaster for any commander who wants to achieve a mission.
5 A. Well, that depends on the scope and level of the indiscipline,
6 you know, if it is an isolated incident, it can be probably corrected and
7 not impact the total mission; but it certainly reflects on the command,
8 and -- and the perception how well the force is, how trained, if it is
9 professional and so forth.
10 Q. So a breach of discipline wouldn't just be a disappointment as
11 you put it yesterday. It's more than a disappointment?
12 A. Certainly any time that a commander's orders are not fulfilled,
13 he's disappointed with the execution of his subordinates as he trained
14 them to do. However, it could be -- have other implications to the
15 success or lack of success of the mission.
16 Q. Let me put a couple of propositions to you about this subject.
17 Do you agree that any commander by force of his personality,
18 leadership, command style, and general behaviour has considerable
19 influence on the morale, sense of direction, and performance of his staff
20 and subordinate commanders?
21 A. I would say majority of commanders do. I wouldn't say any
22 commander. There's some commanders that have different -- use different
23 tactics of leadership. But for the most part, a commander does influence
24 his staff and his subordinate commanders, those he has direct contact
25 with.
Page 21000
1 Q. And he does it for good or for evil, whatever his command style
2 is?
3 A. Hopefully for good. That's what he is charged with and that's
4 his responsibility.
5 Q. So some commanders will be known for proper conduct and strict
6 adherence to the rules and regulations of their armed forces and, indeed,
7 laws of armed conflict?
8 A. Yes. Generally some units take out -- take up the personality of
9 their commander and their focus on the mission and success and how that
10 is needed.
11 Q. And other commanders might be known for turning a blind eye to
12 indisciplined behaviour and even crimes?
13 A. I would hope not.
14 Q. Have you seen examples of that in your career?
15 A. In my career? The last time I think I had seen that, the
16 commander was relieved.
17 Q. Now, in relation to orders issued by a commander, he has to make
18 sure that he gets information that the subordinates receive these orders
19 and implement them. Do you agree with me?
20 A. Sometimes he personally doesn't make sure, he should have a
21 system set up to make sure that the word gets to his subordinate
22 commanders, especially those in his direct line of supervision. And so
23 there should be set up in the training and communications process a way
24 to either verbally give a command and then follow up with a documented
25 written order, but that should then have a system that permeates all the
Page 21001
1 way down to the lowest level. That would be expected.
2 Q. So it is up to the commander to set up that system either, you
3 know, the addressee, his subordinates report back to him or he or his
4 staff proactively get information about the implementation of these
5 orders.
6 A. Yes, that's correct.
7 Q. Now, at the moment, a commander doesn't know what happens with
8 his orders, he ceases to be a commander because can no longer function.
9 Would you agree?
10 A. Would you say that again?
11 Q. Yes. At the moment, a commander does not know what happens with
12 his orders, he ceased to be a commander because he can't function
13 properly anymore.
14 A. Well, I think that's a hypothetical. I don't know -- there's
15 ways of checking to see if his orders got to the people. But to say that
16 once his order do not get down to his subordinates doesn't mean he is no
17 longer the commander. Then he has to take another action if he sees
18 nothing is happening to make sure whatever his intent was or his orders
19 does get down to that appropriate section and/or commander he is
20 targeting. But he would still be in charge.
21 Q. And yes, I agree with you, at least de jure.
22 And if subordinate commanders or any addressee of an order
23 realises that he can get away with not complying with an order, that's
24 also the beginning of the end of a commander's authority.
25 A. That -- that's what I would call insubordination and failure to
Page 21002
1 follow orders. That would not -- obviously if a commander -- you had a
2 subordinate commander like that, then your trust and confidence of his
3 ability to lead his troops and follow out the missions that you have been
4 given by your country, would be seriously degraded.
5 Q. And these principles we just talked about, about giving orders,
6 apply to all range of topics. It's about logistic, it's about personnel
7 issues, and it's about committing war crimes and trying to stop these
8 crimes.
9 A. You know, remember, at the operational level you're going to be
10 given a mission, and you're going be given an orientation for the
11 manoeuvre units. You are going to set the properties, and then it's the
12 orders developed from your subordinate commanders has the detail of how
13 to execute that. But, yes, there should be a continuity of what you said
14 was your priorities to be executed down at the lowest level to move --
15 for logistics, for examples, to the right place at the right time.
16 Q. And if a soldier or an officer is not disciplined for having
17 disobeyed orders or having committed crimes, it could well encourage him
18 to continue with his cause of action. Do you agree with that?
19 A. In some cases I would agree with that. You know, there is
20 responsibilities at all levels for people to make sure that the orders
21 are carried out.
22 Q. Now, there has been a decision here at the ICTY which you may be
23 familiar with. The Strugar case, which involves the attack, shelling of
24 Dubrovnik
25 Have you heard about that case?
Page 21003
1 A. No, I have not.
2 Q. Now the Appeals Chamber held that, and I quote --
3 JUDGE ORIE: Mr. Kehoe.
4 MR. KEHOE: I think getting into a particular legal issue is a
5 matter that should be addressed to the Court. If there is a particular
6 aspect --
7 JUDGE ORIE: Yes, let's wait what the question is and then see
8 whether we are seeking legal opinion from this witness or not, and then
9 if you do so, Mr. Waespi, then, of course, we would have to address the
10 matter, whether this witness is a legal expert, yes or not.
11 Please proceed.
12 MR. WAESPI: Thank you, Mr. President. I think it is more a
13 factual observation by the Court, but let's see.
14 Q. The quote is:
15 "A superior's failure to punish a crime of which he has actual
16 knowledge is likely to be understood, at least as acceptance if not
17 encouragement of such conduct with the effect of increasing the risk of
18 new crimes being committed."
19 In line of what you responded to my earlier question, would you
20 agree with this?
21 A. Well, I think what you're stating, if a commander knows that a
22 crime has been committed, and that he is taken actions to make sure that
23 it is investigated and, no kidding, there's a crime here. He needs to
24 take action of some sort. You know, I go back to you never walk by a
25 mistake so just by -- that's a way of instilling the discipline within
Page 21004
1 your unit, your organisation. If it comes within your scope to do that
2 or to tell someone to do that, then you should take some action to make
3 sure that it is not condoned.
4 Q. And how important is timing in this respect, if an order is
5 issued and it's not being followed of -- or if undisciplined acts occur,
6 how important is timing in relation to the response by the commander in
7 addressing this failure?
8 A. I think it's relevant. It would have to be with a seriousness of
9 the -- of whatever incidents happened, first of all; and then second of
10 all, how that relates to what the commander's focus was at the time. If,
11 in fact, there was something that happened and he became aware of it, he
12 started the process for someone to investigate it, he moves on to focus
13 on his mission at hand because he is in the fight or he is in, in this
14 case, the offensive operation, he's got to weigh that response to that
15 incident as well as protecting the lives of his soldiers and making sure
16 they're focussed on the mission and the fight.
17 So you have to weigh that, but you should come back to it at some
18 point in time and say, Okay what happened? I told you to fix it. Did
19 you fix it?
20 JUDGE ORIE: Mr. Waespi, I apologise for interrupting.
21 Page 2, line 2, a reference is to pages 2902. That cannot be
22 correct for yesterday's transcript.
23 Do you have the full page number for me?
24 We are in the 20.000s, so therefore ... is it 20902 or is it ...
25 MR. WAESPI: This is 20911 at lines 21, 22.
Page 21005
1 JUDGE ORIE: Thank you, Mr. Waespi.
2 MR. WAESPI:
3 Q. Just a question to clarify.
4 If the operational situation allows a commander to address
5 disciplinary issues, you would agree with me that it's important that
6 indisciplined behaviour needs to be addressed immediately; otherwise, you
7 know, it sends out the message: He doesn't really care. He might come
8 back to me in a few days or later. So if the situation allows a
9 commander to address it immediately, he has to do it immediately.
10 A. If it's in the scope of his responsibility and authority, he
11 should do something with it. If he has time to do that and if it's at
12 his level of execution. For example, if something happened and he was
13 made aware of it through the reports, he would make sure that whoever is
14 responsible for oversight of that either call him and tell him and ask
15 him what they did about it. If he had time to do it. If it was his
16 direct responsibility and it was immediate in direct reports then he
17 should deal with it, you know.
18 Q. You have seen the video with General Gotovina, I understand,
19 prior to testifying. This is the 6th of August video which we saw
20 yesterday.
21 A. Yes.
22 Q. Now do you agree with me that he is a very strong commander who
23 leaves clear foot prints about the command climate he wants to impress
24 upon his subordinates?
25 A. I think you saw in that particular case, and I don't know what he
Page 21006
1 had done in his pattern and how he commanded in the past or spoke with
2 his subordinates, but he certainly had to get their attention during that
3 meeting, because he probably sensed that a -- they were becoming
4 complacent, they had thought they had reached the culminating point, and
5 really they had another fight, and as I testified yesterday, they were
6 very vulnerable at that point in time.
7 I think he was also not only in the -- speaking of Knin, he was
8 concerned --
9 Q. Yes, let me just go back to my question.
10 A. Sure.
11 Q. Just looking at the video, and I think you observed, as you
12 testified yesterday, the body language of the other --
13 A. Subordinates.
14 Q. -- people. What kind of a commander was General Gotovina as it
15 came out during his address to his subordinate commanders? Just describe
16 what you have seen: A weak commander, a strong commander, somebody
17 people would listen to or not listen to. Just give us your appreciation.
18 A. I think you would say he was in charge. I would think you would
19 say he was passionate about the mission and the role that he expected of
20 his commanders. He outwardly talked about the lack of performance of the
21 subordinate leader and what his expectations were. And so at that point
22 in time, he was telling his commanders they were not living up to his
23 expectations as professionals. He subsequently then went to the next
24 video which talked about the next mission.
25 So I think that was a way a commander, the one who is in charge,
Page 21007
1 reinforces that he is in charge and gets the subordinate commanders their
2 heads back into the -- focussed on the mission and then leads them, as a
3 teaching point, back into what he expected them to do next.
4 That in itself was a form of disciplining his subordinates,
5 telling them they are not executing to his expectations.
6 Q. Thank you, General. Let's move to somewhat related but very
7 important topic in your report and, in fact, in this case.
8 Paragraph 21 of your report says that:
9 "During offensive operations, the commander is focussed towards
10 the front and the main effort. For the HV operating on their own
11 national territory, the responsibilities for the rear area of operations
12 were shared by the regular government, law enforcement forces, and local
13 authorities."
14 And then last sentence of this paragraph:
15 "As a result, it was not up to the HV operational commanders to
16 regulate the transition of responsibility for law and order in the rear
17 area."
18 Now, General, you used the term "rear area" a number of times,
19 many times in this report. Can you define what you mean by that? In
20 general but also specifically which territory it compasses and perhaps we
21 could prepare a series of maps you looked at yesterday, which is D728 on
22 electronic page 12.
23 MR. WAESPI: I think he looked at this map yesterday.
24 Q. So please tell the Trial Chamber how you define rear area.
25 A. First of all, the rear area is the area behind the -- the combat
Page 21008
1 forces and their immediate subordinate forces, their immediate trained
2 [indiscernible] so they move through an area. So in that case they would
3 encompass, say, for a brigade, in the advance, his rear area may be up to
4 six to ten
5 were moving through the area with him. Behind that, there would be a
6 rear area which would be subordinated to another command for -- for
7 greater general support of logistics. That is -- that -- that line then
8 is defined generally on boundaries through military graphics of what the
9 boundaries would phase -- would move by phase as you move forward.
10 Now, in this particular case, I noted the order showed and the
11 responsibility showed that the military police would -- would follow the
12 offence and take responsibility immediately as the military forces moved
13 through. To me it didn't delineate what that line was or how close they
14 would follow, so it is kind of hard to determine where the rear area
15 actually began. I would say -- I would assume it began when the military
16 police got into the area, and in a lot of cases as they bypass different
17 cities, they would follow the military and then probably within that area
18 take charge of that city or that community of which was obviously
19 Croatian territory and re-established the rule of law.
20 Q. So you just said, and this is on page 13, line [French on English
21 channel].
22 JUDGE ORIE: I like the French language, but it comes as a
23 surprise on the English channel.
24 Please proceed.
25 MR. WAESPI: Thank you, Mr. President.
Page 21009
1 Q. You talked about his rear area. This is the operational
2 commander's rear area, I take it.
3 A. Well, within each -- each unit would have a rear area. The 4th
4 would have, the 7th would have a trailing area. The logistics for each
5 of those brigade would have a possibility of a rear area but then the
6 larger operations group, when you had four operations group at one point
7 in time and went to three, they would have a rear area of which those
8 subordinate folks -- subordinate commands would then be responsible until
9 the military police moved up through that area and then once those --
10 once you came to the culminating point of the intermediate objectives,
11 you would turn that area over for specifically re-establishing the rule
12 of law in those areas. You still would have trains and logistics
13 movements through those areas to support your front, offensive forces.
14 Q. So in line of what you just said, approximately looking at the
15 map in front of you on the screen, and can you take a pen actually to
16 mark it if you feel comfortable. What's the rear area of
17 General Gotovina's forces that were operating in -- in Bosnia?
18 A. Oh, okay.
19 This is on the 8th of August?
20 Q. Yes, that's correct.
21 A. Well, at this point in time, you had your four groups. It would
22 be hard for me to mark, to define rear area. However, it would be
23 something closer to where the -- the units are than what that dotted line
24 would be.
25 Q. Yes. There are a couple of -- a number of lines already, so I'm
Page 21010
1 not sure whether you're marking something ...
2 A. I'm not. It's got positions for the Storm. Positions ...
3 Q. Just approximately, if you can. I don't want to force you. But
4 if you can approximately define, with a circle or whatever structure you
5 want to use, what you think is on the 8th August, 1995, the rear area of
6 the forces under the command of General Gotovina. And ...
7 A. Obviously ... I would say it would be something like this. Until
8 such time the military police move up and assume control of the former
9 areas, recognised areas of the country of Croatia.
10 Q. Can you put within this circle, almost, the letter A, please.
11 A. The letter A?
12 Q. Yes. Just to identify that we all know which is your marking as
13 opposed to all the other markings. You can pick another letter if you
14 feel more comfortable.
15 A. I put a letter A. Is that what you wanted? Is that okay?
16 Q. Yes, thanks. Now, can you tell me what the rear area was on the
17 5th -- on the 6th of August? Was it different or was it approximately
18 the same?
19 A. No, it would have to be at the -- at the 6th, it would have to
20 be -- whether 4th or 6th, you know, depending on if it was mobile area,
21 would probably on the 6th be something like this, and on the 4th be
22 something like this. So that line in that rear area would advance as the
23 responsibilities were assumed by the military police and the civilian
24 authorities following closely the offensive forces. And that's just a
25 line on the map. I'm not sure exactly where that was portrayed.
Page 21011
1 Q. Yes. The second line -- can you mark that with letter B; and the
2 third one with letter C.
3 A. Okay. Okay.
4 Q. And, again, just for the sake of the record, the letter B would
5 be the rear area on which date?
6 A. You said the 6th, and probably C would be where the rear area was
7 on the 4th.
8 Q. Thank you, General.
9 Now, if this --
10 A. And I would imagine, as I look at it, these lines would probably
11 come more over this way. You know, as it tapers over towards
12 Bosnia-Herzegovina, it probably wouldn't go down as far there. Okay.
13 Q. Thank you, General.
14 MR. WAESPI: I would like to have this document admitted into
15 evidence, Mr. President.
16 MR. KEHOE: No objection, Judge.
17 JUDGE ORIE: Yes. But before we decide on that, I have some
18 difficulties in clearly defining what has been marked.
19 For letter A, there is a red marking which consists of a line
20 between Obrovac and Grahovo, from Grahovo in south-easterly direction;
21 from Obrovac, also in south-easterly direction, although more to the
22 east, the lines meeting just under where, on the map we find FCP
23 Sajkovici. That's for the 8th.
24 For the 6th, line B, although slightly corrected, is a line
25 correcting Benkovac to Drnis and then further in south-easterly
Page 21012
1 direction; or line C, we find a line, starting between Benkovac and
2 Biograd, going also in south-easterly direction.
3 I am describing the lines, because they're not that clear on our
4 screens at this moment.
5 Mr. Registrar, this marked map would be ...
6 THE REGISTRAR: Your Honours, that becomes Exhibit P2617.
7 JUDGE ORIE: Exhibit P2617 is admitted into evidence.
8 Please proceed.
9 MR. WAESPI: Thank you, Mr. President.
10 Q. Now, General, were you aware or made aware that there were
11 substantial Split Military District forces staying behind and operating
12 in the Knin area at the end of Operation Storm?
13 A. What do you mean by sufficient forces?
14 Q. Substantial forces.
15 A. Substantial forces.
16 Q. Units --
17 A. Logistics units. Were these not part of the military police. I
18 think when -- on the evening of the 6th when the designated commander of
19 the rear area came in, he assumed responsibility for that area at 1700 on
20 the evening of the 6th?
21 Q. And who was that commander that?
22 A. Was Mr. Sernak [phoen].
23 Q. General Cermak?
24 A. General Cermak.
25 Q. And what was his role?
Page 21013
1 A. His role was to take responsibility and to re-establish the civil
2 authority in the rear area. So at that point in time, that's why I
3 adjusted that other line at 1700 on the 6th August, he came in and
4 assumed responsibility of Knin and the forces thereof.
5 Now there could be other forces in there doing -- as we went into
6 the defence in that area doing some rest as they got ready and/or the
7 following -- preparing for the counter-attack.
8 Q. And what's the basis for your testimony that General Cermak came
9 and assumed responsibility of Knin and the forces thereof?
10 A. I think that was in the comments made, even in the video, that
11 General Gotovina said that at -- effective that day, that at 1700, 1730,
12 he was going to arrive and assume control. So I assumed by that that he
13 had -- by his presence, was there to take control of that sector.
14 Now, that, I think, would be -- with the significance of Knin
15 putting leadership at a point of which you have to show control, and
16 somebody in charge of that would be a good thing. It also allowed
17 General Gotovina to focus back forward again and then turn that area back
18 over to the military police and the civilian police and whatever support
19 they needed.
20 Q. And just a very quick word on military police.
21 This -- you know what the correct denomination of that unit was?
22 How was it called?
23 A. The military police unit, the number of the unit?
24 Q. Yes.
25 A. No, I don't, not off the top of my head.
Page 21014
1 Q. Have you heard of the 72nd Military Police Battalion?
2 A. Yes, I have seen it in the task organisation.
3 Q. And to which unit did it belong?
4 A. Originally I think it belonged to General Gotovina, his task
5 organisation.
6 Q. And why do you say originally did that change over time?
7 A. I think it was in his original task organisations.
8 Q. And did that change over time that he lost control over it?
9 A. It appeared to me that at subsequent -- in the meeting with the
10 ministers, it said that the military police and civilian police would
11 then work for -- under the minister of interior and subordinate to him.
12 Q. Did you see any documents later during August that would indicate
13 that General Gotovina was no --
14 A. No longer had control over the military police. The only
15 documents I saw was the fact that related to the military police being
16 subordinated to the minister of the interior. I did not see a further
17 task organisation that General Gotovina had that included the military
18 police. So the absence of that meant they were probably working for
19 somebody else.
20 Q. Do you remember the order for active defence --
21 JUDGE ORIE: Mr. Waespi, apparently you're moving to another
22 subject.
23 You started your question about the presence of Split Military
24 District forces staying behind, and then the witness answered by asking
25 you what you meant by substantial forces.
Page 21015
1 Then the witness continued to say that responsibility for that
2 area was taken over and, as he told us, under the command of
3 General Cermak.
4 We started with forces. Then we moved to command over those
5 forces. Could you tell us approximately the forces General Cermak had
6 under his command when he took over responsibility?
7 THE WITNESS: You asking me?
8 JUDGE ORIE: Yes.
9 THE WITNESS: The -- I could not list them for you. Obviously --
10 JUDGE ORIE: I didn't ask you to list them but to say how much
11 approximately.
12 THE WITNESS: I would say that he had the military police and the
13 civilian police that would move through the area that were following the
14 operation. My estimate that would be three to 500 people.
15 JUDGE ORIE: And they were under the command much General Cermak.
16 THE WITNESS: They should have, as they -- and -- and the
17 responsibility was transferred to him. They should have came under
18 his -- his leadership and his authority.
19 JUDGE ORIE: I used the word command. Apparently you are
20 hesitant to use that same word. Leadership, authority, which is not very
21 much a military --
22 THE WITNESS: It should have came under his command and control.
23 I did not see him designate other than being a -- a colonel-general what
24 forces were designated to him for command and control. I saw him given
25 responsibilities and authority for the area and being subordinate to
Page 21016
1 civilian police and military police operating and to re-establish the
2 communities and -- and the police stations and so forth, but I did not
3 see his -- his exact task organisation for command and control.
4 JUDGE ORIE: Yes. Now, there are quite a lot of tasks you're
5 referring to --
6 THE WITNESS: Right.
7 JUDGE ORIE: -- which are, to some extent, of a civilian nature.
8 At least that's how I understand them; whereas, another element seems to
9 of a military nature.
10 Could you tell us what -- how do we have to understand the task
11 of General Cermak? Was he -- was he a military man? Was he in command
12 over troops, although, as you said, perhaps of a limited number of 3 to
13 500? Could you explain a bit more about what your understanding was of
14 his role.
15 THE WITNESS: Yes, sir.
16 My understanding was, as I read the documents, that he was -- he
17 was -- had specific responsibility for re-establishing security and the
18 rule of law, the police authority within the rural areas; also designated
19 the court structure and re-establishing what was in the former area of
20 Croatia
21 laws, police stations and so forth.
22 So his perspective, or my perspective, of his responsibilities
23 was to re-establish that structure within the Croatian territory.
24 JUDGE ORIE: Yes. Setting up the court system, would that
25 include civilian courts and military courts.
Page 21017
1 THE WITNESS: It would only be civilian courts.
2 JUDGE ORIE: Only be civil courts. Do you have any -- found any
3 example of how General Cermak was establishing --
4 THE WITNESS: How he was going executed that?
5 JUDGE ORIE: How he did execute that.
6 THE WITNESS: No, I don't.
7 JUDGE ORIE: Where specifically did you find his responsibility
8 for setting up the court system.
9 THE WITNESS: I think if you go back to original documents we
10 talked about yesterday, it talked about -- and I said court systems. It
11 is re-establishing the constitution -- constitutional authority over the
12 liberated Croatian territory. So to me, that meant rule of law, court
13 systems, legal authorities, police, and all those things which comprise
14 the normal situation within a community.
15 JUDGE ORIE: And that would then include the whole administrative
16 system as well because you're talking about constitutional --
17 constitutional authority which includes everything you find in the
18 constitution, isn't it?
19 THE WITNESS: That's right.
20 JUDGE ORIE: That is municipal government, everything.
21 THE WITNESS: Yes, re-establishing the hierarchy within a
22 community of a -- you know, the mayors, the chief of police, those kind
23 of things which you need to also secure the area and/or to execute and --
24 civil authority over those areas.
25 JUDGE ORIE: Yes. Now, he held a military rank. Could you tell
Page 21018
1 us how the military authority would enable him to -- well, as you tell
2 us, more or less take over responsibility for re-establishment of the
3 whole constitutional order; whereas, normally a military person is
4 limited in his authority.
5 Could you explain to us how that worked?
6 THE WITNESS: Well, to be truthful, Your Honour, I'm not sure why
7 he was given the position of colonel-general, unless President Tudjman
8 saw that he needed that level of authority in recognition amongst his
9 peers to operate in or amongst the total Croatian sector as he was
10 working together with other military commanders.
11 So that would have given him a level, comparable level of
12 authority, as he moved through that area as he re-established the
13 civilian authority.
14 JUDGE ORIE: Do you know what his official position was?
15 THE WITNESS: No, sir, I don't know his title right off the top
16 of my head. I would have to look it up.
17 JUDGE ORIE: Could you do that during the next break so that
18 we --
19 THE WITNESS: Sure.
20 JUDGE ORIE: So that we know what you find about this in the
21 papers.
22 Mr. Waespi, please proceed.
23 MR. WAESPI: Thank you, Mr. President.
24 Q. Let me tidy up the issue of the military police.
25 Let's go back to a document you have seen yesterday, I believe.
Page 21019
1 D281.
2 MR. WAESPI: If that could be pulled up. That's the order for
3 active defence dated 9th of August, 1995, by General Gotovina. Now, if
4 we go to -- I think it's English page 10 on paragraph 5.11.
5 And perhaps if Mr. Kehoe could assist me what tab number that is
6 in the witness's binder. D218.
7 MR. KEHOE: It's tab 15.
8 MR. WAESPI: Thank you, counsel.
9 Q. Now, here, we see on page 10, General -- but take your time to
10 sift through it. It's paragraph 5.11.
11 You see in paragraph 5, he gives all kinds of orders to his
12 subordinate units, including the Croatian Guards or 5.9 that is the
13 2nd Battalion of the 9th Guards Brigade.
14 And then 5.11 he talks about the 72nd Military Police Battalion
15 "that shall protect and monitor the territory, and shall be responsible
16 for any other military and police tasks [sic] at hand."
17 And on the last page, you see that this order --
18 MR. KEHOE: Excuse me, Mr. President, I was noted something by my
19 colleague about the reading of that. It notes that the 72nd Military
20 Police Battalion along with the MUP bodies. That was left out by
21 counsel.
22 MR. WAESPI: Yes, that is my omission; I apologise.
23 Q. If you go to the last page of this document you see that the
24 72nd Military Police Battalion was also among the recipients of this
25 order.
Page 21020
1 Now, does that indicate to you that, on the 9th of August, 1995
2 the military police battalion was still a general asset that could be
3 ordered by General Gotovina?
4 A. I'll be right with you, counsellor.
5 Q. Just take your time.
6 A. Okay. And your -- I get what you said.
7 So you're telling me that -- your question is could the military
8 police be ordered by -- by General Gotovina to do things?
9 Q. Yes. The issue -- the reason I brought this document up is
10 because you said that at one time General Gotovina might have lost
11 command --
12 A. [Overlapping speakers] ... military police.
13 Q. -- over his genuine military police, and my question here is: At
14 this point in time, 9th of August, 1995, is he still in charge of his own
15 military police or has he lost that ability? That's my question.
16 A. It appears by this -- I don't know if they were still attached or
17 detached with the effective date, but he could still provide them
18 direction. And he did so in this order.
19 Q. Thank you, General. Let me move back and we can -- you can
20 return this document.
21 Let me move back to my original issue of the -- as I call them
22 substantial forces that were operating in the rear, whatever --
23 A. Mm-hmm.
24 Q. -- that's defined of the Split Military District. And I wanted
25 to ask you now specifically were you aware that the Split Military
Page 21021
1 District had, by order in this document that you just looked at, his
2 forward command post in Knin.
3 Were you aware of that?
4 A. No, I was not aware that the Split Military District moved a
5 forward command post into Knin.
6 Q. Wouldn't that be an important piece of information for you to
7 know when assessing the roles and the responsibility, presence of
8 leadership as you indicated yesterday how important that was, wouldn't
9 that be a key issue for you to know where the forward command post of the
10 commander is?
11 A. It depends on who manned this command post. I would -- I find it
12 interesting to find that a Military District command post versus an
13 operational command post would be forward. If, in fact, this command
14 post was going to be utilised by General Cermak, well, then it makes
15 sense. If it was going to be used by General Gotovina, I would say that
16 probably does not make sense and that's where I think he kept his command
17 post over in Bosnia-Herzegovina and then moved forward.
18 Q. Looking at the first page --
19 JUDGE ORIE: Mr. Waespi, could I ask one clarifying question.
20 You gave two options; that is, it be used by General Gotovina, or
21 being used by General Cermak.
22 THE WITNESS: Yes.
23 JUDGE ORIE: Were these the realistic and the only realistic
24 options you would consider under the circumstances and in view of your
25 knowledge of the situation at the time?
Page 21022
1 THE WITNESS: Well, Your Honour, if you think about it, the
2 former Split Military District is also back where they tried to establish
3 the non-commissioned officer academy. It was at district headquarters.
4 It had the standard communications probably necessary to run a community
5 and/or peacetime operation.
6 An operational command headquarters, which had to be very mobile,
7 had to be certainly protected and be able to move forward and command its
8 other elements is not as fixed-based.
9 So to move forward elements of the Split district out of Split
10 the communications and so forth, to support General Cermak would make
11 sense. But for General Gotovina, I would think he would find -- he would
12 have a command post much more mobile, much more focussed forward.
13 So I'm a little confused by moving the Split district up there,
14 and I did not -- I apologise, but I did not research the movement of
15 command post.
16 JUDGE ORIE: Thank you.
17 MR. KEHOE: Judge, maybe I should have interspersed with this
18 earlier as opposed to the article "the forward command post," as to the
19 article "a forward command post."
20 JUDGE ORIE: You can deal with that in --
21 Mr. Waespi, at the same time, of course, it would be if you put
22 something to the witness if do you that as specific as possible, so that
23 including the source of the information to the extent possible.
24 Please proceed.
25 MR. WAESPI: Mr. President, that's a document we have in front of
Page 21023
1 us. That's D281, which is -- is issued from the Knin command post by
2 General Gotovina --
3 MR. KEHOE: If I may, Mr. President, the documents are replete in
4 this case, and I'm sure that the Prosecution is not going to debate this
5 that there were multiple forward command post at this juncture.
6 JUDGE ORIE: Let's not discuss what happened in the presence of
7 the witness.
8 Mr. Waespi, under those circumstances, it would have been
9 appropriate to draw attention of the witness to the fact what the heading
10 of this order was and to ask him how he would consider that. Then he
11 could have told us what he knew about it. But, apparently, and to that
12 extent, he wasn't aware of the forward command post being there at that
13 moment. But that would also, perhaps, have been clue to who was actually
14 using the heading forward command post in a command position.
15 You understand what I mean?
16 MR. WAESPI: Yes.
17 JUDGE ORIE: The witness said it could have been used by
18 General Gotovina, could have been used by General Cermak.
19 But it seems that the confusion becomes almost complete. Let's
20 move on and see whether we can --
21 THE WITNESS: Your Honour, if I may help clarify that. If you
22 look back at -- on page 16, it talks about the logistic base branch of
23 establishing Knin with the following elements. So obviously this was
24 also a logistic base he was establishing and had to have some forward
25 supervision of those logistics elements. So that to me that would make
Page 21024
1 sense to get a command base in Knin to support the logistics hub that he
2 was creating.
3 JUDGE ORIE: Yes. And earlier you said, could have been used by
4 General Cermak or by General Gotovina.
5 THE WITNESS: Yes.
6 JUDGE ORIE: Was General Cermak in any way involved in logistics?
7 THE WITNESS: No, not in support of the operation.
8 JUDGE ORIE: So where you were talking about the forward command
9 post used by General Cermak, that would then exclude for the logistical
10 aspects?
11 THE WITNESS: It would probably be mutually supportive of which
12 he could use the communications to talk to his civil police and/or his
13 people in different communities and perform a hub of which he could then
14 direct and monitor their success or -- or their progress.
15 JUDGE ORIE: Yes, please proceed.
16 MR. KEHOE: Mr. President, if I can just -- with regard to this
17 document, and I'm sure counsel would agree with me, if we can turn to the
18 first page of this document which is the cover page, it clearly shows
19 that it is, in fact, Sajkovici the name and the date of Sajkovici which
20 is, of course, the forward command post that we have talked about
21 routinely in this case.
22 JUDGE ORIE: What, of course, is or is not is still established.
23 Let's not discuss in the presence of the witness what it is.
24 First of all, it could have dealt with the matter in re-examination.
25 Apart from that, if there was any matter you could have agree on with
Page 21025
1 Mr. Waespi, then I would expect you to seek such agreement not in the
2 presence of the witness.
3 Please proceed.
4 MR. WAESPI: Thank you, Mr. President.
5 Q. Let's stick on -- on this issue and actually the document which
6 is in tab 15, the one you're looking at.
7 Please go to page 4 in the English, paragraph 2, the last
8 sentence in -- on this page. And in B/C/S should be around page 2 or 3.
9 Now, it says here, and this is obviously an order for active
10 defence by General Gotovina:
11 "Split Military District forward command post shall be in Knin."
12 Now, does it indicate to you whether there are any other forward
13 command posts or is it just one, in your assessment?
14 A. Well, the other command post or obviously the operational
15 groups -- and I'm not sure that -- I don't know the transition with
16 General Knin -- or General Gotovina has moved his command post which was
17 in Bosnia-Herzegovina over to Knin or he has retained it where it was.
18 Q. Thank you for your answer.
19 Were you also aware that there were several reserve battalions
20 that were stationed in Knin from early September onwards? Were you aware
21 of that?
22 A. I know that there were several conscript organisations which were
23 logistic-oriented and move forward, yes.
24 Q. Well, let's then go back to this document and look on page 9. In
25 English paragraph 5.4, it talks about the 4th Guards Brigade. And then
Page 21026
1 that it shall be withdrawn from the front line.
2 And then in the middle of that paragraph it says: "The reserve
3 battalion shall be stationed in the Knin Barracks," and gives some basic
4 tasks.
5 So that's the 4th Guards Brigade, no logistics units. Do you
6 agree?
7 A. That's the reserve of the 4th Guards Brigade, not a reserve units
8 per se, as I read there. So the 4th Guards Brigade probably kept a
9 battalion in reserve to support their fight and that's the reserve
10 telling them to go to the barracks to get rest.
11 Q. That's correct. They are staying in Knin.
12 A. Yes.
13 Q. And that's not the logistics units, because --
14 A. No.
15 Q. -- you said earlier --
16 A. No. But I think concurrently there is logistics units moving
17 forward because Knin has been established as a logistics hub to support
18 the fight.
19 Q. Yes, this is correct. That was my next question. The 40th
20 Engineering Battalion command post was also in Knin. Do you agree with
21 me? This is paragraph 9.1.
22 A. I think, yes, there were engineers up there. Yes.
23 Q. Thank you, General. And going back to something you said
24 yesterday. General Gotovina, of course, had to watch his rear, because,
25 as you pointed out he was vulnerable there?
Page 21027
1 A. Mm-hmm.
2 Q. And it's -- it's an issue of securing your back, he had to deal
3 with.
4 A. Yes. What I was referring to was when he made it an envelopment
5 move and attacked Knin from the north-east. He has exposed flank on
6 right side which would have been the northern side. Certainly this whole
7 area was probably heavily laden with mines and other things, and that's
8 another reason why you would move the engineer battalion forward.
9 So not particularly the rear area watching your back but your
10 flanks and the area from which the enemy is, you had to be concerned with
11 whether, you know, when he turned, that expose would be to his rear.
12 Q. Do you agree with me that for all these units and any other
13 Military District of Split units, irrespective of whether they were
14 participating in offences at the front, or whether there were reserve
15 units in -- in the back, or resting, or whatever, for all these units,
16 the commander of the Military District bears ultimate responsibility.
17 Would you agree with me?
18 A. He -- he bears responsibility for those units that -- in his
19 previous hat, which he was charged and then those which were assigned to
20 him in a task organisation. It goes back to my statement: A commander
21 is responsible for -- for everything which is in his area of operations
22 and then that direct responsibility is sub-organised based on subordinate
23 commanders.
24 So he has a responsibility up until such time he -- he frees that
25 area and turns it over to General Cermak and the others to re-establish
Page 21028
1 Croatian law.
2 Q. Thanks for your answer. And just so I understand you, and I'm
3 not that much talking about territory. I'm talking about units or
4 members.
5 A. Yes.
6 Q. General Gotovina retains command and responsibility over all the
7 units and members of these units that are attached to the Military
8 District at any given time, whether they are fighting offences or staying
9 in the back being reserve or resting or whatever.
10 Do you agree?
11 A. He would have some responsibility of those units, yes, that are
12 assigned to the Split Military District.
13 Q. And what do you mean by some responsible?
14 A. Well, you know, when you talk about those in the Military
15 District, they have to be assigned to him, and then by virtue of being
16 assigned to the Military District, then he has the authority over the
17 units, command and control and so forth. As you mobilise some of the
18 conscript units for different purposes that may be in the Military
19 District, he may or may not have control over those. They may be
20 assigned to somebody else. So those of which he had assigned to him, he
21 should have responsible and oversight for.
22 Q. Thank you, General.
23 Let's move on to a different subject, although they are all kind
24 of related. Paragraph 22 in your report.
25 It says:
Page 21029
1 "Also critical for the commander is where he places himself on
2 the battlefield. Normally this is a well-forward command post to ensure
3 that he remains in communications with lead elements. When the commander
4 is well-forward in the battlefield, he must trust that his subordinate
5 leaders are executing their responsibilities as planned and as designated
6 in the written orders process."
7 And you talked about this trust that has to develop between the
8 commander and the subordinates yesterday.
9 Now, you seem to place a lot of emphasise on the written process
10 of commanders, obviously higher echelon commanders. But as we talked
11 about earlier this morning, at the end it's the commander's duty to
12 ensure that these written orders are implemented?
13 Do you agree with me?
14 A. Yes.
15 Q. And despite his trust in his subordinates, if a commander has
16 knowledge that his orders aren't implemented, that his trust, you know,
17 is not justified, he has to take action.
18 A. Yes.
19 Q. Let's move to paragraph 26.
20 A. And, counsellor, of course, you're talking about commanders at
21 all levels?
22 Q. Absolutely. And I think that is also my main point.
23 A. Yes.
24 Q. Paragraph 26, and I quote:
25 "The source of personnel that comprise units may impact at the
Page 21030
1 level of discipline a unit -- in a unit in an unstructured environment if
2 soldiers have not had the level of training and been subject to the
3 discipline that is required in a very uncertain environment, then the
4 potential for undisciplined behaviour is increased."
5 Now, you mentioned yesterday at page 20907, lines 17 to 19, that
6 General Gotovina knew that he had elements that he could count on but
7 also elements he could not count on.
8 So what's a commander's duty under these circumstances? He has
9 to pay specific attention to these units of whom he knows that they have
10 a problem with discipline.
11 Would you agree with me?
12 A. He has to be very careful of the mission he assigns those units.
13 And what I was referring to back in this paragraph, he had units that
14 were formed very rapidly and not afforded the opportunity to establish
15 within their chain of command the training, the authority to discipline,
16 the training to show them what right looks like, and to instill in them
17 what a military organisation, professional military organisation, should
18 act like. He that mix of units. He also had some of his units at which
19 he had been able to spend more time with, and obviously through the
20 offensive campaign, to be able see firsthand their compatibilities.
21 So when have you have that as an operational commander, you must
22 weigh with that with who can -- you think -- are -- have achieved the
23 level of readiness to execute the mission you're going to give them.
24 And, therefore, the care you use is by assigning them, in some cases, a
25 limited objective which would be very -- or more simpler, that they may
Page 21031
1 be able to achieve versus something to be more complex and something
2 which would require more physical stamina and/or a better prepared unit
3 to execute, such as going through the minefields and further achieving
4 the objective.
5 So that is where you weigh that as the operational commander and
6 where you give guidance and priorities to who is in charge of those
7 subordinate units and how you task organise them and make sure there is
8 oversight down to the lowest level.
9 Q. But it's not just the operational requirement --
10 A. Mm-hmm.
11 Q. -- of putting them on the right task, in terms of your overall
12 objective. An easy task for an undisciplined unit, key task for
13 disciplined unit. It's not just that. It's also the commander has to
14 watch undisciplined units, if he has knowledge about that, very
15 carefully, so that they don't become undisciplined again in the future.
16 And I'm talking about committing crimes.
17 Would you agree with that?
18 A. I would agree -- I mean, no doubt you can't let undisciplined
19 behaviour continue. Now, you need to do something about it.
20 However, you know, as I looked at this very -- what I would say
21 immature professional army, he didn't have a lot of sources of putting
22 people in charge of these units. As you assimilated different units and
23 gave them a title and a mission, that's no way to create an army without
24 training them and showing them what was right. So -- what I saw in a lot
25 of the indisciplined behaviour which happened when you did not have the
Page 21032
1 strength of good supervision in those units probably not totally
2 unpredictable.
3 Q. But the main issue is: If a commander recognises there is a
4 problem, he has to address it and he has to address it in an effective
5 manner.
6 A. Yes, he must address it in the effected level -- level of
7 effectiveness obviously must play out. He may have to re-address it, if,
8 in fact, it continues.
9 JUDGE ORIE: Mr. Waespi, let me try to get -- it's -- it's -- the
10 questions are much in an abstract, on an abstract level.
11 What, Mr. Jones, I think, Mr. Waespi, would like to hear is that
12 if you know that some units of have a reputation or are found to be
13 inclined to undisciplinary and even criminal conduct, would you use those
14 units in a normal way or would you pay specific attention on what tasks
15 you would assign to them?
16 THE WITNESS: Obviously, Your Honour, the latter part, I would --
17 I'd -- based on the compatibility and the type of unit, I would pay
18 particular attention to what I assigned them to do, and then I would also
19 play close attention on who I put in charge of the units to execute my
20 intent, to make sure they had adequate supervision of qualified leaders,
21 to be able to ensure that, one, something -- undisciplined behaviour does
22 not continue; but, secondly, that they can executed the mission I gave
23 them.
24 JUDGE ORIE: Yes. Now did you come across in your research any
25 such situation where units, perhaps in earlier operations, had shown
Page 21033
1 unruly behaviour or members of those units showing unruly behaviour and
2 that specific action was taken; or are we just talking in the abstract,
3 what if -- I mean, did you find any such thing --
4 THE WITNESS: Well --
5 JUDGE ORIE: -- in the documentation?
6 THE WITNESS: Yes, Your Honour, I have been sitting here waiting
7 for the counsel to ask me about the 4th and the 7th because I know those
8 were discussed yesterday, the incidents of Grahovo and so forth and prior
9 to Operation Storm, so why did General Gotovina continue to use them --
10 JUDGE ORIE: Okay.
11 THE WITNESS: -- I thought that was the point we were getting at.
12 Well, obviously he only had some number of forces of which he knew could
13 executed the offensive mission. And those were obviously part of the 4th
14 and 7th and [indiscernible] Battalion. That was at a critical point in
15 time, and moving to the winter of 1994 to position those units was
16 absolutely critical and to replace them in the line would have been
17 probably a very risky manoeuvre.
18 So as you look that in the string of events starting about
19 30 July all the way up through 8th or 9th of August, he started
20 reiterating the importance of discipline and he also relieved the
21 OG North commander to reinforce the point that he expected discipline in
22 his ranks.
23 JUDGE ORIE: Yes. I think we discussed this yesterday, whether
24 the replacement of the -- commander replacement where --
25 THE WITNESS: Yes.
Page 21034
1 JUDGE ORIE: -- General Ademi was -- you consider that as a
2 response to apparently unruly behaviour and that's one --
3 THE WITNESS: Your Honour, I would think, sir, there is probably
4 war-related things that were not evident. Obviously some of the things
5 that happened in Grahovo, and the defence minister noting that there was
6 houses and looting and so forth and him walking into Knin probably did
7 not help his opinion of his OG North commander.
8 So there was a series of events which obviously led him to
9 relieve that commander, because he was not effective with his subordinate
10 commanders in ensuring that their focus of the mission and discipline.
11 You know, also the thing he did was restrict movement,
12 involuntary movement, of the forces to get them away and out of the town
13 so that the police could execute their security mission and re-establish
14 the rule of law. It appeared to me in his sector and these other units,
15 he had -- I would call it indiscipline, but he had people in these other
16 units moving throughout in their own vehicles or somebody else's vehicles
17 during the day, and he restricted movement with the units, that could
18 have helped significantly the others to do their job in the rear, and I
19 thought that was a pretty good thing to do. If you keep units together,
20 you restrict their movement and you keep them focussed on the mission you
21 gave them, then you have a better chance of controlling them.
22 JUDGE ORIE: Yes. Now we are back at a concrete level again. I
23 now understand how you -- how you interpret these -- this documentary
24 evidence. Part of your answer was that, apart from paying attention to
25 adequate supervision by qualified leaders; the other one was what tasks
Page 21035
1 to be assigned.
2 Could you give us - apart from that, they should not move around
3 freely - any specific information about perhaps limits or special
4 attention paid to the tasks that would be assigned to units which were
5 known for prior unruly behaviour?
6 THE WITNESS: Yes. I think would you see, first of all, in the
7 scheme and knew of the big plan, of which obviously Operation Storm was
8 objective in that plan. He knew that the units on his left flank, or his
9 south-western flank, did not have sufficient training and probably did
10 not have the discipline. I know we used the word "discipline" very
11 loosely here, but in my perspective as a military person they were not
12 ready to prosecute the fight, because they didn't have the training and
13 they probably didn't have the control of their fires, they did not have
14 the leadership down through the non-commissioned officer corps to really
15 kick off, cross the line, and -- and, you know, in a controlled manner on
16 the axis of advance that he wanted to.
17 So he gave them what we call an economy of force mission, which
18 had limited objectives. They want to do an advance to show the enemy
19 forces that they were also attacking, they were attack -- so they could
20 have been perceived of as an attack against all fronts. However, he
21 probably knew because of the composition of that unit they were not
22 capable of achieving a larger objective.
23 So it was also during the course of events, I believe, that he --
24 he displaced -- as I talk about being at a point on the battlefield where
25 it makes a difference, he flew back there because, after Knin had fell,
Page 21036
1 he saw that the movement of that line was not making any progress, and he
2 went back there and talked to those commanders about picking up and
3 executing the mission. So that, in itself, is where he took risk, he saw
4 the risk, and then he had to go and do something about it, even though
5 those units were not probably very capable.
6 JUDGE ORIE: Yes. You said that he saw that the movement of that
7 line was not making progress and went back and talked to those
8 commanders.
9 Could tell us when did he talk to those commanders? Where did he
10 talk to those commanders?
11 THE WITNESS: I think he flew back on the -- if I remember,
12 somewhere about the 5th. You know, he was delayed going into Knin.
13 During that period, he displaced and went over there because his
14 assessment, not only of Knin as he looked at the total battlefield, was
15 how is the movement of my other units working. And if they did not move
16 then, of course --
17 JUDGE ORIE: Let's -- I was asking you where and when he met.
18 THE WITNESS: Okay.
19 JUDGE ORIE: The subject of the discussion, where do we find
20 that?
21 THE WITNESS: I would -- where did I read that?
22 JUDGE ORIE: Well, perhaps you take your time in the -- during
23 the --
24 THE WITNESS: Yes, I would have to find it and go back. I don't
25 have the documents with me. But he left and flew back --
Page 21037
1 JUDGE ORIE: [Overlapping speakers] ...
2 THE WITNESS: [Overlapping speakers] ...
3 JUDGE ORIE: My question was where you found documented
4 [Overlapping speakers] ... of the discussion.
5 THE WITNESS: I understand.
6 JUDGE ORIE: If you can find it or if you have any recollection,
7 I'd like to know.
8 Mr. Waespi.
9 Yes, Mr. Misetic.
10 MR. MISETIC: If you wish, Mr. President, outside the presence of
11 the witness, we can give you a citation for that.
12 JUDGE ORIE: Yes, because I have to combine all the information
13 and to verify where it comes from.
14 Mr. Waespi, then I take it, Mr. Misetic, that you would assist
15 Mr. Waespi as well, to trace that information.
16 MR. KEHOE: We can go through that and show exactly where it is,
17 judge. Well, we'll talk about it.
18 JUDGE ORIE: Mr. Waespi, we're close to 10.30. I don't know
19 whether you want to -- we have to some questions to fill the next two
20 minutes.
21 MR. WAESPI: I think it appropriate moment to take the break.
22 JUDGE ORIE: To take a break. Could you let me first -- we'll
23 have a break, Mr. Jones, and I will ask Madam Usher to escort you out of
24 the courtroom. We will resume at approximately five minutes to 11.00.
25 THE WITNESS: Can I take this?
Page 21038
1 JUDGE ORIE: Let me see, the witness asked whether he could take
2 something. What would you like to take, Mr. Jones?
3 THE WITNESS: I'm sorry?
4 JUDGE ORIE: What would you like to take with you?
5 THE WITNESS: You asked me to find the --
6 JUDGE ORIE: The binder.
7 THE WITNESS: -- position and title of General Cermak. I don't
8 have anything with me to look that up unless I take the book.
9 JUDGE ORIE: Can you take the book, if you want to.
10 THE WITNESS: Okay. Thank you.
11 [The witness stands down]
12 JUDGE ORIE: Mr. Waespi, could you give us an indication as to
13 how much time you would need?
14 MR. WAESPI: I hope to finish within next session but perhaps it
15 spills a little bit over into the next one, the last one.
16 JUDGE ORIE: Yes.
17 Could I already inquire whether some of the questions would
18 trigger any need to further ...
19 MR. CAYLEY: Yes, Your Honour, I will now have re-examination for
20 this witness, at least half an hour, I would estimate.
21 JUDGE ORIE: Yes. In order to make matters clear, and
22 Mr. Cayley, some of the questions I put to the witness were not primarily
23 aiming at seeking additional information about matters which we have gone
24 over for quite some time. But that I was also intending to see what
25 knowledge the witness had on certain matters.
Page 21039
1 MR. CAYLEY: I fully understand what you're saying to me,
2 Your Honour. But I do feel I have an obligation to go back in on some
3 matters, and I'm obviously well aware you don't wanted me re-educating
4 the witness before he goes home, but I really do need to find the basis
5 for some of his conclusions because, like you, I think perhaps there may
6 be a problem there. Thank you.
7 JUDGE ORIE: From your answer I take it that you have understood
8 what, more or less, is of concern and what is not of any concern at this
9 moment.
10 We will have a break and we resume at five minutes to 11.00.
11 --- Recess taken at 10.31 a.m.
12 [The witness takes the stand]
13 --- On resuming at 11.13 a.m.
14 JUDGE ORIE: The Chamber apologises to the parties and to you,
15 Mr. Jones, as well, for the late start. We had an urgent matter to deal
16 with. That's the reason why we have this late start.
17 Mr. Waespi, please proceed.
18 MR. WAESPI: Thank you, Mr. President.
19 Q. General, let me briefly go back to an issue we discussed just
20 prior to the break.
21 You testified that a commander should take care about the tasks
22 he assigns to undisciplined units, and you have acknowledged that the 4th
23 and 7th Guards Brigades demonstrated undisciplined behaviour in Grahovo.
24 Now, what's your explanation, then, for why General Gotovina was
25 justified to use these two units in taking Knin, which was, as you
Page 21040
1 testified yesterday, the key effort of -- of Operation Storm?
2 A. Well, from my opinion, and obviously I can't speak for
3 General Gotovina, but my opinion, these were the best forces he had in --
4 in spite of the incidents that he had -- that had been reported to him
5 that had taken place in the ranks. And he needed them, he had trained
6 them, he had infused what junior leadership that he had that had been
7 trained in these two units, and he felt that they could execute the
8 mission. Replacing them on the front line at the time was probably too
9 high risk to achieve his mission and his focus.
10 Q. We have to make an occasional break between --
11 A. Yes, sir.
12 Q. -- us because we speak the same language.
13 Are you saying that the Guards Brigades were the -- these two
14 ones I named were the only units capable of taking Knin?
15 A. I'm saying at the time to continue the operation and the focus of
16 his mission, they were -- I don't say they were the only two that could
17 execute the mission, but there are certainly ones which he knew because
18 he had witnessed their performance, irregardless of the isolated
19 incidents there in Grahovo and other places of some of the soldiers, but
20 he knew the leadership could execute what he intended to do in the next
21 phase of the operation, where, of course, he was focussed.
22 Q. Do you call these isolate the incidents when the deputy
23 commander, Ademi, says that, you know, all units participated in these
24 acts except for just two?
25 A. I don't know the scope of the incidents and the magnitude of
Page 21041
1 them. I know they happened, obviously they were reported. Taking those
2 into the context of 15, 18 months of operation, I think -- I don't have
3 the answer to the question to you [sic] whether those were isolated or
4 whether they were routine. It appeared to be when they were reported,
5 they did happen and now his next mission afoot was taking Knin and
6 continue the offence and that had to be his focus, replacing the units on
7 line at the time probably would have resulted in either delay of the
8 operation or possibly even putting his -- the rest of his forces at risk,
9 as he replaced them in line.
10 Q. And that's an option a commander could have taken to ask that the
11 operation be postponed, from his perspective?
12 A. He could have, yes. Probably unlikely.
13 Q. Unlikely that his superior, including Tudjman, President Tudjman,
14 would have accepted his proposition.
15 A. Well, you got to understand, that even in Operation Storm, he was
16 given four days to complete the operation. That obviously said that time
17 was of essence, and to move forward, the operation was -- was the intent
18 of President Tudjman, the Main Staff, and the minister of defence.
19 By the way, Your Honour, if I may, I could not find the official
20 title, Mr. Cermak in these documents, so if somebody could assist me that
21 would be fine.
22 JUDGE ORIE: Well --
23 THE WITNESS: Whether it's important to the case or not, I could
24 not find it in the excerpts I have.
25 JUDGE ORIE: The Chamber has some information about his official
Page 21042
1 title and since, apparently, have you no knowledge of it, we'll not -- at
2 least the Chamber will not pursue the matter at this moment any further.
3 THE WITNESS: Okay. Thank you.
4 JUDGE ORIE: Please proceed, Mr. Waespi.
5 MR. WAESPI: Thank you, Mr. President.
6 Q. And back to these incidents in Grahovo, you were aware that there
7 were units that were present but did not participate in those activities,
8 undisciplined behaviour. You were aware of that?
9 A. You mean over units in Grahovo?
10 Q. Yes.
11 A. I would assume there was.
12 Q. And they could have been used for the main effort to go to Knin.
13 A. I'm not sure you had another regiment. You had two regiments in
14 the sector, the 4th, and 7th. Were you able to mobilise of create
15 another regiment of that size to do that operation, I'd have to look at
16 the composition of units to do determine that.
17 [Prosecution counsel confer]
18 MR. WAESPI:
19 Q. Do you know what other units were there, except for the 4th and
20 the 7th Guards Brigade? And I'm talking about the operation around
21 Grahovo and Glamoc?
22 A. I know had you a battalion there which was along those lines, and
23 further to the east you had HVO units.
24 Q. And these --
25 A. I don't know what the relationship with General Gotovina and
Page 21043
1 their leadership was.
2 Q. But they could have been used for the attack on Knin, if they
3 were under the command of General Gotovina.
4 A. They could have been used if he thought they could have executed
5 the mission.
6 Q. Thank you, General. Let's go to a couple of other topics.
7 Paragraph 46 in your report talks about the leadership--
8 General Gotovina that it was present at the decisive points of the
9 operation, providing inspiration and support to the units and soldiers.
10 That's the second -- the third sentence in paragraph 46.
11 A. Yes.
12 Q. Now, what kind of presence are you talking about?
13 A. I would, first of all, I cited several things. First of all,
14 earlier on, when he was witnessing the training of his units, he was
15 present to the witnessed that training, look at the curriculum and see
16 how they were trained. As he went through the operation, various
17 instances of him engaging with the commanders. The video was obviously a
18 good reference where, not only was he talking to his commanders in the
19 way at the time at that point to show his displeasure with the success of
20 what he told them and the execution of his intents, but then carried on
21 with them and talked to them about the next mission and how he envision
22 they do that. His flying back to those other units and talking to the
23 commanders is important.
24 I think his -- his basic operation from a forward command post
25 showed that he positioned himself so he could see the battlefield,
Page 21044
1 communicate with commanders, and prepare them for any further change to
2 the mission or change to the operation.
3 Q. Let me move to paragraph 48, which touches on a related,
4 connected topic. And you -- you say that General Gotovina's role has to
5 be looked at in a wider context. And you mentioned that approximately 30
6 days after the conclusion of Operation Storm, General Gotovina had to
7 lead another major operation in Bosnia
8 "The time between Storm and Maestral was short, and
9 General Gotovina's time and efforts would have been dominated by
10 preparations for this next offensive."
11 Now, I think earlier this morning you said you didn't really know
12 in any detail where Gotovina was, you know, during the period, except for
13 a couple of appearances like the video on the 6th of August; is that
14 correct?
15 A. No, I knew that he was in his forward command post, and I knew
16 that he also flew back to -- to influence the units on the south-western
17 flank to get them moving. I would have -- my assumption, as I said,
18 this -- was General Gotovina, as he was given the next mission, his
19 sector, his line he was responsible for, condensed from about 250
20 kilometres to 100 kilometres, but added in this next mission was the --
21 the poor -- the more complex issue now working with another army, the 5th
22 Bosnian Corps, and then continued HVO forces on his right flank and/or
23 Bosnian forces on the other side of them. He now has had added
24 responsibility to coordinate his flanks, coordinate the movement with
25 another army in other sector. So the complexity of the operation where
Page 21045
1 he was fighting for his homeland with people that probably knew very
2 accurately the terrain he is now moving in a 100-kilometre wide sector
3 towards Banja Luka and/or objectives.
4 So the complexity of the strategic and/or operational environment
5 has changed. What I'm referring to here, that period would have focussed
6 him totally to do that coordination, to go talk with the commander of the
7 5th Corps, the adjacent units to make sure, you know, each -- each unit
8 and their rate of advance and ensure their communication with adjacent
9 units with their fires, with the use of air power so they don't have any
10 fratricide. All those things now have to be considered when you start
11 moving into another phase of your offensive campaign. And still, what I
12 envision is very well time but that momentum they had already achieved
13 had to be sustained.
14 Q. But you were aware that during this period of time between
15 Operation Storm and Maestral, he was often in Knin?
16 A. I was not aware the days or how much time he spent in Knin.
17 Q. And perhaps you're aware or made aware that one of the members of
18 his staff testify that he was actually on honeymoon following
19 Operation Storm, in August, were you aware after that?
20 A. No I was not.
21 Q. Pretty relaxed commander under these circumstances; would you
22 agree?
23 A. I cannot speak for him why he did that, why he chose that time.
24 I would expect after fighting for 15 months or so he -- a couple of day
25 he probably was wanted, whether that as a honeymoon or not, I don't know.
Page 21046
1 Q. Let me continue in paragraph 48. You say:
2 "A noted above, the Croatian military leadership accomplished
3 their mission by providing inspiration and support to their units ..."
4 Now, what do you know about the support of the Croatian
5 leadership? What are you referring to here?
6 A. We're talking about all the way from the main support staff down.
7 You know, they were obviously involved. They had the resource to support
8 the subordinate commanders. They had to take into account the sectors
9 they were given and who had responsibility and then resource those
10 accordingly. It appeared to me that this was a total focus of the
11 country of Croatia
12 they had chosen to do and their vision of the strategic impact of not
13 being successful in these fights, everybody knew that. I think they took
14 a significant risk because of the status and readiness of their young
15 army, and they had to support that decision.
16 Q. When you talk about Croatian military leadership, would you
17 include the Commander-in-Chief of the Croatian Army, President Tudjman.
18 A. Well, I would -- I would say he is the Commander-in-Chief, yes,
19 in title. He was more of a civil leadership, but I would also include
20 the minister of defence and the other ministers as part of the leadership
21 of the country. Specifically military leadership obviously has to do
22 with each sector, so the Croatian Army -- and how they orchestrated all
23 the way from the -- from the east all the way down to the south.
24 Q. Let me tell you what kind of inspiration came down from
25 President Tudjman --
Page 21047
1 MR. KEHOE: Objection to form, Mr. President. It's not a
2 question. It's a speech.
3 JUDGE ORIE: The question is still to come, I take it.
4 MR. WAESPI: I can rephrase, Mr. President.
5 JUDGE ORIE: Yes, please do.
6 MR. WAESPI:
7 Q. Were you aware that there is evidence in this case that members
8 of the Croatian leadership, expressis verbis, some publicly considered
9 the Serbs a cancer in Croatia
10 A. No, I was not.
11 Q. Would there be the kind of support --
12 A. Considered the Serbs in Croatia
13 Q. A cancer in the body of Croatia
14 A. No, I was not.
15 Q. What kind of inspiration would that be for the troops fighting,
16 according to these support and guidelines in your assessment?
17 MR. KEHOE: Judge, first of all --
18 JUDGE ORIE: Mr. Kehoe.
19 MR. KEHOE: -- this is an argumentative question concerning these
20 issues, I mean, if we want to put the full context of all these comments,
21 and I think if the Chamber has seen quite a bit of the contextualisation
22 of this and it's certainly not the context being put forth by the
23 counsel.
24 JUDGE ORIE: Well, I do not know, Mr. Waespi, whether this expert
25 is better placed to tell us how inspiring certain comments are for
Page 21048
1 troops. Perhaps we would need a psychologist or a sociologist for that.
2 Apart from some common sense, perhaps, might assist in what; but, of
3 course, to give one quote. At the same time, there's nothing wrong with
4 asking what this expert knew at the time he formed his opinions, because
5 this will give an opportunity for the Chamber and for the parties to
6 assess what he has taken into account, what he has considered, when he
7 drew his conclusions.
8 So, therefore, there is nothing wrong with asking whether the
9 witness knew this or knew that. But to ask for the obvious, I must say,
10 a matter which was not uncommon in the whole of the testimony of this
11 witness might not be something to encourage.
12 Please proceed.
13 MR. WAESPI: Thank you, Mr. President.
14 The reason I was asking is because the witness in his report
15 really ventures out and talks about inspiration and support by the
16 highest leadership, and I wanted to ask him whether he was aware of other
17 comments. That's the reason. And Mr. Kehoe can, in re-examination, put
18 that into a wider context.
19 JUDGE ORIE: Mr. Kehoe.
20 MR. KEHOE: Your Honour, if in fact we're going contextualise the
21 comments by counsel, then read the question and answer of
22 Ambassador Zuzul that the Prosecution asked. They asked that question
23 and Ambassador Zuzul answered that question, and if that's what we're
24 going to talk about concerning that evidence, let's give the full context
25 of it.
Page 21049
1 JUDGE ORIE: Yes, I think, as a matter of fact, that would take
2 us another three weeks from now to give the full context and just as the
3 Defence -- if not, perhaps, in every respect give the full context to
4 this witness, whereas the expert had limited material available to form
5 his opinions on. Mr. Waespi, Chamber will consider those matters, and
6 most important is not the view of this witness on whether a certain
7 public speech would be inspiring and what direction, but, rather, whether
8 he knew that this speech was held.
9 And that is a matter which you can certainly explore.
10 Please proceed.
11 MR. WAESPI: Thank you, Mr. President.
12 Q. Let me move on to the last topic, and this is paragraph 43. In
13 paragraph 43, the beginning, you start by saying that:
14 "I cannot refute the fact that undisciplined behaviour occurred
15 in the area of operations," which is a fairly defensive way to put it.
16 You certainly accept that the HV members committed crimes in that area at
17 that time?
18 MR. KEHOE: Excuse me, I object to the form. I let it go till he
19 fished, "which is a fairly defensive way to put it," is the Prosecution's
20 characterisation, and I move to strike. If there's a question, that's
21 fine. I object to the speech.
22 JUDGE ORIE: Whether -- Mr. Waespi, whether matters are put in a
23 defensive way or not, is -- it's the way in which you use language.
24 Sometimes I say I cannot ignore, but I want to say I know fairly well.
25 That's a way of using language and let's not focus too much on the
Page 21050
1 language and let's focus rather on the substance of what is behind this
2 language.
3 MR. WAESPI: Thank you, Mr. President.
4 Q. You accept that the HV committed crimes during the relevant
5 period and the Krajina in 1995. Do you accept that?
6 A. I accept the fact that there were crimes committed. Some of them
7 attributed to the HV, the others could have been attributed to either
8 non-combatants, illegal crime, or displaced persons.
9 Q. Let's look at an exhibit. This is P918. It comes out of the
10 command staff of General Gotovina, Split Military District.
11 I want to ask you first whether have you seen this document
12 before.
13 It's dated 12th of August, 1995. And it's written by the
14 assistant commander for political affairs, Captain Mario Tomasovic.
15 And I quote from the middle of the first paragraph:
16 "However, because of the irresponsibility of individual soldiers,
17 non-commissioned officers and officers who comprise the Croatian Army and
18 State through their inappropriate conduct and acts, this success has been
19 partly brought into question."
20 And then it goes on to say:
21 "It is necessary to immediately prevent the following. The
22 continued torching and destruction of facilities and property throughout
23 the entire liberated territory. The killing of live stock; the
24 confiscation of property; inappropriate conduct toward remaining
25 civilians and prisoners of war, and especially towards members and
Page 21051
1 soldiers of the Peace Forces."
2 Now, in your assessment --
3 MR. KEHOE: Mr. President, again, I hate to bring up the
4 contextualisation of something, but if we could read the full paragraph,
5 I think that --
6 JUDGE ORIE: Mr. Waespi, any problem in reading the whole of the
7 paragraph.
8 MR. WAESPI: Not at all. Perhaps the witness is also comfortable
9 to read the document himself.
10 JUDGE ORIE: Please do so.
11 MR. KEHOE: Seing as we have it on the record at this point, if
12 counsel can read the full paragraph so he can give that full paragraph,
13 so if anybody is looking at this record down the line, they will see
14 everything, as opposed to the excerpt.
15 MR. WAESPI: I take it it's the second full paragraph starting
16 from, "for this reasons."
17 MR. KEHOE: "For this reason and following the policy of the
18 Supreme Command commander, Dr. Franjo Tudjman."
19 MR. WAESPI:
20 Q. "... as well as the instructions by the defence minister and the
21 political administration of the defence ministry of the Republic of
22 Croatia
23 And then we have the four orders. Continues:
24 "In order to implement the above political workers bear special
25 responsibility and are required to inform the unit commanders of the
Page 21052
1 above and take measures to prevent crimes.
2 "In cooperation with the information and security service and
3 the military police, take repressive measures and launch disciplinary
4 procedures against those who do not abide by the instructions.
5 "In conformity with the situation on the ground in your area of
6 responsibility, you are required to follow the guidelines of this warning
7 and, in the realm of political activity, to acquaint all unit members
8 with it.
9 "You're required to submit a report on what has been accomplished
10 by 18 August 1995."
11 And you see to whom all these -- to whom the order or the warning
12 has been addressed.
13 Now, if you were a commander of one of these subordinate units,
14 would you be concerned if you received such a warning?
15 A. I -- I don't think this was a surprise to them. I mean,
16 obviously if you would -- this is coming from the commander of political
17 affairs trying to paint the political picture, strategic picture, I would
18 think these commanders would be also concerned about the same thing. If,
19 in fact, that they thought this was a issue in their area, basically the
20 political advisor to the government is saying, Don't let indisciplined
21 actions overcome the -- you know, the achievements of your units and the
22 reputation which may follow because of indisciplined action. I think
23 that's a good heads up. It is not unlike what the orders had been
24 camming [sic] out by General Gotovina, and, in fact, it re-enforces that.
25 As you see, it is sent directly to the three OPs groups and information
Page 21053
1 sent to him.
2 So I think it is a reiteration of the fact that, Hey, guys, pay
3 attention, and this could have a long --
4 JUDGE ORIE: Mr. Jones, let me stop you here.
5 Why not answer the question? I mean, you're telling us whether
6 it came as a surprise; you're telling us about what you would do. The
7 question simply was: If you were a commander of one of these subordinate
8 units, would you be concerned if you received such a warning?
9 Mr. Waespi clearly wants to know whether this is a worrying
10 message [Overlapping speakers] ...
11 THE WITNESS: [Overlapping speakers] ... I don't do -- consider
12 this a warning. I consider this a -- you know, a heads up that say, you
13 know, pay attention. This is -- we're not -- it's not something as a
14 surprise to these commanders.
15 JUDGE ORIE: Well, it's called a warning. So you would say you
16 interpret this as an encouraging measure rather than an alarm.
17 THE WITNESS: Right. It is reinforcing the fact of the
18 importance of continuing to -- to -- to execute and not allow
19 indisciplined behaviour within your ranks caused outside international
20 perspective of the value of Croatian military.
21 JUDGE ORIE: What Mr. Waespi apparently wants to know is whether
22 the situation, which, apparently, called for such a reinforcements,
23 whether that was a worrying situation, yes or no. That's, I think, the
24 core of his question.
25 Mr. Waespi, please correct me when I'm wrong.
Page 21054
1 MR. WAESPI: Yes, that's correct. And I believe on line 18, you
2 did say, "I do not consider this a warning."
3 Is that what you said? Because you were overlapping.
4 A. I think it may be semantics. I don't think it's a warning from
5 to the commanders. This is coming from a political advisor. You know,
6 he has -- is simply stating a fact.
7 Q. I think you testified yesterday that you were commanding units up
8 to the brigade level?
9 A. I commanded that and I also commanded the Aviation Warfighting
10 Center at Fort Rucker
11 Q. How many warnings like that you have received as a commander in
12 your command functions?
13 A. Of course, we don't have a political advisor, political affairs.
14 A message would have come down through command channels reinforcing the
15 fact about the incidents we were talking about. It would not have come
16 from a political advisor in the US Army.
17 Q. So you have never received a warning or encouragement like that
18 addressing these topics here, that actions of your unit compromise the --
19 your army and your state through inappropriate conduct on acts.
20 Have you received a warning like that in your career?
21 A. I personally have not.
22 Q. By the way, is it the first time you see this document?
23 A. Yeah, I have not seen this document before.
24 Q. Let me move to a second example, and I think you have seen this
25 one.
Page 21055
1 MR. WAESPI: This is P1140.
2 Q. A document dated 19th August. Let me quote it as full as I can.
3 It's authored by Colonel Mladen Fuzul.
4 MR. KEHOE: Counsel, if I can be of assistance, it is in tab 17
5 of the General's binder.
6 MR. WAESPI: I'm very grateful, counsel.
7 Q. It's a very short document.
8 A. Okay, I have it.
9 Q. Colonel Fuzul writes, and he is an OG commander:
10 "Due to the observed breakdown of order and discipline and for
11 the international reputation of the Republic of Croatia
12 1, establish supervision in all units and immediately take measures
13 against the torching of buildings and the killing of animals. 2, take
14 disciplinary and criminal measures against irresponsible individuals. 3,
15 the commanders of OG West units are responsible to me for the
16 implementation of this order."
17 Now, how alarming for you as a commander is it to receive
18 information about a breakdown of order and discipline. Do you see that
19 again as an encouragement?
20 A. No. I think this is what you see is a chain of events and this
21 is in Colonel Fuzul reinforcing some of the things you just showed and
22 emphasising as we come into a -- a -- a point in this operation that this
23 will not be tolerated. I think this -- and he specifically as a
24 commander is giving this to his specific elements to make sure that they
25 understand that, so this is passing that information further down in a
Page 21056
1 subsequent order to make sure they understand.
2 Q. Now, this order comes a week, seven days, after the warning from
3 Colonel Tomasovic. And it almost repeats the language of what happened,
4 you know, the killing of animals, the torching of buildings. Would you
5 consider that the first order, or the first warning, 12th August, was
6 ineffective, if a week later, just another order has to be issued?
7 Would you agree with me?
8 A. I don't see this as a separate order. I see it -- a
9 reinforcements in the orders in the chain. If you also go back to the
10 10th of August, General Gotovina also issued a similar order to his
11 subordinate units to stop indisciplined behaviour. Then you had from the
12 political staff the issue of talking about the potential reputation of
13 the Croatian Army and that, and now you see at the brigade level this
14 commander coming out, albeit, I think, several days later, reiterating
15 the fact that it could be reputation but even more important take
16 disciplinary measures against -- I know what a criminal measure may be,
17 but take disciplinary measures about indiscipline and actions and events.
18 I think that is necessary to reinforce the chain of orders here to get
19 focus by these troops all the way down.
20 If you look at it in the big picture at this time what is
21 happening after Storm and you have had a lot of troop movements and now
22 you've got a lot of people moving on battlefield and probably the risk of
23 anything indisciplined happen was you -- these soldiers envisioned
24 freedom of movement is probably peaking at this time.
25 Q. Look what we have. We have the video --
Page 21057
1 A. Mm-hmm.
2 Q. -- of the 6th of August, of the commander turning to his
3 subordinate commanders. We have a couple of written orders. We have a
4 warning of a political person, who is also concerned about the reputation
5 to the state, addresses the shortcomings.
6 A. Mm-hm.
7 Q. And we may have an order of the 10th of August. And then on 19th
8 of August, another order. Apparently nothing happens. The commanders
9 don't discipline soldiers, activity continues.
10 Isn't that what we have to read from the sequence of these orders
11 and, indeed, this last document, P1140?
12 A. I think you could interpret it that way, but I do not interpret
13 it that way. I see a sequence of orders, and I think following this
14 particular date, you'll see an increase in the number of -- of -- of
15 arrests, investigations, and finding people culpable for all offences.
16 So I think this series, from approximately the 4th of August on, or,
17 actually, the 30th July on to this period, now is really getting the
18 commanders at all levels to focus and people in -- not only in the
19 forward forces but also in the rear areas, focussed on getting control of
20 indisciplined conduct.
21 Now, I can't tell you what the scope of all that is by reading
22 the documents here, but certainly there is things that -- happening that
23 need to re-establish law and order in the rear and re-establish the
24 country as was once known under the constitutional authority.
25 At the same time this was happening, obviously General Gotovina
Page 21058
1 and some of his forces were also continuing the fight. So this is a --
2 a -- a point of emphasis to get control of indisciplined measures that
3 simultaneously what was happening, his focus on the fight forward, and
4 that agreement with Bosnia
5 Here to get this under control but continue the fight. And you see
6 General Gotovina and his staff also kind of caught in the middle of this
7 and his commanders. So somebody has got to pick up and pay attention.
8 JUDGE ORIE: Mr. Waespi, could I seek one further specification.
9 You said -- you'll see an increase in the number of addresses,
10 investigations, and finding people culpable and you said following this
11 particular date.
12 THE WITNESS: Following this period of enforcing the need to take
13 disciplinary action.
14 JUDGE ORIE: Yes. And what's the source exactly of this
15 observation about --
16 THE WITNESS: That is a report from military police commander
17 backed up, I believe, Mr. Lausic, stating the number of arrests, the
18 number of conviction, and what they have been able to accomplish based on
19 all the things that happened here to show control of the area and
20 reinforcement of the rule of law.
21 JUDGE ORIE: Yes. Any other sources or just this one, then we
22 can check it --
23 THE WITNESS: That's the one I read.
24 JUDGE ORIE: That's the one you read.
25 THE WITNESS: Yes, my question and obviously as how I saw that:
Page 21059
1 How come the field commanders didn't see that same report because it went
2 up through Mr. Lausic and minister of the interior's channels not through
3 the commanders.
4 JUDGE ORIE: Thank you.
5 MR. KEHOE: As an officer of the court, Judge, I also have to
6 tell you that we provided the General in our discussions with the
7 substance of Mr. Theunens' testimony, and without reading that testimony
8 I'll just give the reference points. It's mainly on page --
9 JUDGE ORIE: Yes, but did you give the report to the witness or
10 did you -- you just --
11 MR. KEHOE: [Overlapping speakers] ...
12 JUDGE ORIE: [Overlapping speakers] ... read the -- what you
13 consider to be the relevant portions [Overlapping speakers].
14 MR. KEHOE: Read these portions of the testimony, which I'll tell
15 Your Honour what the reading of it was.
16 JUDGE ORIE: Yes.
17 MR. KEHOE: Which is --
18 JUDGE ORIE: I think as a matter of fact -- I think that it has
19 been expressed several times that transparency in sources and facts
20 assumed was of vital importance comes as a bit of a surprise that it's
21 nowhere said, I think here, that selection of -- selection made by
22 counsel was read to me and that -- but that's fine.
23 MR. KEHOE: Frankly, Judge, this is cross-examination, of course,
24 I didn't bring out this number during the course of my direct examination
25 concerning what Mr. Theunens said concerning the increase in discipline.
Page 21060
1 And I believe he says the page --
2 JUDGE ORIE: Well, we don't have to repeat it. I asked the
3 witness what his source was.
4 MR. KEHOE: And I'm just trying to be as transparent as possible.
5 JUDGE ORIE: You want to more or less [Overlapping speakers] ...
6 MR. KEHOE: I'm telling you what I read by giving you the page
7 without reading the information.
8 JUDGE ORIE: So say the answer of the witness is not correct.
9 MR. KEHOE: No, I'm not saying it's incorrect at all. I'm not
10 saying that it is incorrect at all. All I'm saying in the spirit of
11 candor with the Chamber, the issue of the number of disciplinary
12 proceedings came up in the source of our discussion, and I will tell you
13 as an officer of the court I relayed to the witness during our
14 discussions what Mr. Theunens said about that increase, which is in the
15 transcript, which I will provide, Your Honour, without going into the
16 particular number.
17 Now, I did not elicit that during the course of my direct
18 examination. But I will -- I will say over the course of the several
19 days that we were talking prior to Monday that subject did, in fact, come
20 up and he mentions that number on page 12576.
21 JUDGE ORIE: Well, I --
22 Mr. Waespi, you may proceed.
23 MR. WAESPI: Thank you, Mr. President.
24 Q. So we have seen this document on the 19th of August, 1995.
25 A. Yes, I have seen this one.
Page 21061
1 Q. Apparently, you know, the same situation after seven days,
2 despite whatever efforts other people might have done on the ground,
3 whether you were correctly informed or not.
4 Let's go to another document, which is D654?
5 MR. KEHOE: Excuse me, I would object to that comment going from
6 "apparently" or to "you were correctly informed" or not as, again, a
7 speech and not a question and move to strike.
8 JUDGE ORIE: This objection is denied.
9 Please proceed, Mr. Waespi.
10 THE WITNESS: If could I say something -- one thing, Mr. Counsel,
11 this one order you are referring to only goes to a select number of units
12 not -- it's not an OG. It's just a brigade and elements.
13 So to me that's why I saw it was reinforcing the importance of
14 the string of orders from the highest level now down to the brigade
15 level.
16 Thank you.
17 MR. WAESPI:
18 Q. But it's -- I'm not sure I understand you. But this is the OG
19 commander issuing an order to all -- appears to me of his subordinate
20 units, which includes the 112th Brigade, 113th Brigade, the 7th Home
21 Guard Regiment and a couple of other units.
22 A. Yes. Coming down now you see the OG is another subordinate of
23 the other elements. I know that the -- the political advisor had advised
24 him, but also going back, he had also been told several times. And so
25 now he is reiterating the fact in writing. It doesn't say he had not
Page 21062
1 already verbally told them to do this days earlier so now in the
2 follow-up written order obviously you have a documented case where he has
3 told his subordinates in writing to -- to correct the indisciplined
4 behaviour.
5 Q. But why would he issue a written order on the 19th of August,
6 1995, which is a serious one, if the situation, you know, doesn't warrant
7 it anymore, because it's okay on the ground or because he has told his
8 commanders already orally? Why would he sit down and draft an order like
9 that?
10 A. I'm not sure. I don't know what he was doing between the 12th
11 and the 10th and the 19th. Or even if he was not even present and had
12 them to approve this, so I don't know what led up or why the lateness in
13 now publishing a written order on the 19th. So I'm not sure I could
14 understand that either.
15 Q. But the obvious reading of this document is there is a serious
16 issue happening which needs to be corrected on the 19th of August, 1995
17 A. You could interpret it that way. You could also interpret that
18 the orders previously on 10th and 12th also stated the same thing and he
19 is just now following under his command getting the written directive
20 out. So whatever delay that was, you know, you could interpret it
21 whether you see there is still a problem, but I see it in a course --
22 it's a delay in him publishing an order to his command.
23 Q. Frankly that is an interesting interpretation. Why do you choose
24 that over my interpretation?
25 A. Because I don't know. I wasn't there. I don't know what delayed
Page 21063
1 him, you know -- I have seen orders come out by subordinates a week later
2 or so because they weren't there to approve the order. His staff may
3 have written the order, and it didn't get published by the 19th. He may
4 have verbally stated the order earlier but just now on the 19th it gets
5 published. I don't know.
6 JUDGE ORIE: Mr. Jones, may I just try to understand your
7 testimony.
8 Mr. Waespi puts to you that the order had to be repeated because
9 it was ineffective; that's apparently his position.
10 You say, No, I interpret it as being a delay in writing down the
11 order and further sending into the chain of command. That's -- if I well
12 understood your different interpretations.
13 THE WITNESS: I cannot solely --
14 JUDGE ORIE: No, no --
15 THE WITNESS: Go ahead.
16 JUDGE ORIE: Now Mr. Waespi asks you, Why is your interpretation
17 better than mine? And then you answer that question that you do not know
18 because you do not know what caused the delay.
19 Now what you say is, The reason why mine is better is because
20 it's mine. Because if you say, I do not know what caused the delay, that
21 suggests, clearly, that it was a delayed putting on paper of the order
22 that it was not, as Mr. Waespi's position is, it wasn't a repeated order
23 because the earlier one to be ineffective.
24 So by invoking, not knowing the reasons for the delay, you
25 exclude for the possibility that it was anything else than a delay.
Page 21064
1 Therefore, when you are explaining why your interpretation is better than
2 Mr. Waespi's, you're invoking that your interpretation is the right one;
3 it was a delay.
4 I'm putting this to you because I want to find out exactly the
5 methods, methodology of interpretation of these kind of things, and,
6 therefore, I think it's fair that I put this to you so that can you
7 respond and tell me why this is not, as I suggested to you, a logical
8 flaw in your answer.
9 THE WITNESS: Your Honour, let me give you this analogy. If I'm
10 one your subordinate commanders and I published an order on the 10th of
11 August telling that you indisciplined behaviour must stop, on the 12th
12 and I have that in writing. On 12th of August, I get the note from the
13 general council talking about reputational impact of indisciplined
14 behaviour, which reinforces the order I just got from my boss saying to
15 stop this.
16 For me to wait a week to take action by publishing a subsequent
17 order after you just told me that in writing or even not only a week,
18 nine days, would be irresponsible behaviour on my part. That's why I --
19 I can't fathom why a person would wait to the 19th to publish an order
20 nor can I conclude that the -- that the indisciplined behaviour got worse
21 and that as the counsel had said that this says that the -- a conclusive
22 piece of evidence that we still had to do something else. You've already
23 told me it's bad and fix it on 10th of August. Now whatever I've done
24 between that date and publish an order to document I did something, I
25 don't know what that time, you know, because I wasn't there. That was my
Page 21065
1 logic but you, as my boss, I would have done something very quickly if
2 you gave me a written order.
3 JUDGE ORIE: Yes. Now, carefully listening to your answer, your
4 actual answer to Mr. Waespi's question was, therefore, I don't know why
5 my interpretation is any better than yours. However, your answer was
6 explaining why your interpretation was better.
7 THE WITNESS: I understand.
8 JUDGE ORIE: I'm just trying to analyse carefully the way of
9 thinking and the logic involved in the conclusions you draw.
10 Please proceed, Mr. Waespi.
11 THE WITNESS: Thank you.
12 MR. WAESPI: Thank you, Mr. President.
13 Q. Let's move to another order issue by, I believe, the same
14 commander. This is D654. And it dates the 31st of August, 1995. And as
15 you -- yes, we see on the document --
16 MR. WAESPI: If we can go to the English on the second page.
17 Q. You will see that somebody signs for the OG West commander,
18 Colonel Fuzul. But let's go to the contents again on page 1.
19 So here, on the 31st of August, we have the OG West commander,
20 again, issuing an order, and I quote:
21 "1, commanders of Split Military District units in their zones of
22 responsibility in newly liberated territory of the RH shall take all
23 necessary measures to ensure that all military infrastructure facilities
24 are placed under full supervision and protection.
25 "Stop all devastation, regardless of what the facility's purpose
Page 21066
1 is (barracks, depot, training ground, residential building, and so
2 forth)."
3 Second paragraph:
4 "Before putting into operation the new facilities in the newly
5 liberated territory, conduct planned and organised explosives and
6 demolition inspections, and use the skilled and authorised persons to the
7 units [sic] to dispose of explosives."
8 And for the sake of completion, paragraph 3:
9 "The Split Military District Command has initiated a proposal to
10 the HV Main
11 owners for protection and guarding, such as the pontoon bridge, the
12 Obrovac hydroelectric power, the Muskovci water pumping station, and the
13 Promina radio and TV transmitter.
14 "The HV will continue to guard these facilities until this matter
15 is resolved at the level of the superior commander and with the relevant
16 state bodies."
17 Now --
18 MR. KEHOE: Excuse me, Counsel, if I may. Insistent with
19 Mr. Waespi's comment on 123 [sic] in the spirit of completion if we could
20 read the preamble that sets forth the purpose of this order.
21 MR. WAESPI: Certainly.
22 Q. "Pursuant to the order of the Split Military District
23 commander," classification number, file number, "of 29 August 1995 and
24 for the purposes of protecting military property, I hereby order ..."
25 So now, again, over a week later to the previous document, we
Page 21067
1 have the same person, or somebody signing for him, ordering his
2 subordinate units, Stop all devastation. And it goes on to say that it
3 includes residential buildings.
4 Again, the insubordination or indisciplined behaviour or the
5 crimes or whatever you want to call it continues, despite issuing written
6 orders or whatever actions might have taken place.
7 Do you agree with the interpretation I put to you in relation to
8 this document?
9 A. Can I see the document once again?
10 Q. Certainly.
11 A. Can you spin that up --
12 Q. You can also have my copy, if you want.
13 MR. WAESPI: My hard copy, I'm happy to provide it to the
14 witness.
15 JUDGE ORIE: Madam Usher, can you put --
16 THE WITNESS: Can you move down, I can't see the --
17 JUDGE ORIE: The problem is that you can't look at two pages at
18 the same time. Therefore, you're provided with the hard copy.
19 THE WITNESS: And you asked me for my interpretation of this?
20 MR. WAESPI:
21 Q. Whether my interpretation was correct, that all these efforts,
22 mainly the written efforts, as we see from these orders, were ineffective
23 because the indisciplined behaviour goes on, requiring the commander, at
24 the end of August, I believe, to issue a very, very strong order, Stop
25 all devastation.
Page 21068
1 Do you agree with me?
2 A. I agree with you only in part.
3 Q. I -- can you elaborate?
4 A. I can. No doubt, you know, when we talk about the liberated
5 areas, now we've reached a phase which they must reclaim some of the
6 structure to include military barracks, depots and so forth. My
7 interpretation of this looting and actions such as that continue in all
8 the areas because the military had evacuated these or moved forward. Now
9 they must reclaim those facilities.
10 I -- I come to that conclusion because -- because before putting
11 in new facilities, as stated in paragraph 2, conduct planned and
12 organised explosives and demolition, so they must clear the buildings.
13 At some risk there may have been explosives in those buildings either
14 because of occupancy of someone else before -- you know, before they
15 moved throughout the area or now as they regained those, or somebody
16 else's indiscriminate use of -- so they've got to clear the building and
17 take precautions. So that doesn't necessarily correspond to me that
18 military people are looting or doing those actions. It could be a
19 combination of other people, but it's a matter of reclaiming those and
20 then protecting them so they would have the infrastructure to have a
21 military in the future.
22 So I think it is a pretty good order. I think it's good thing to
23 do and probably comes at the right time. It also says, in the end, some
24 of the facilities must be returned over, such as civilian facilities to
25 the rightful owners.
Page 21069
1 That's my interpretation.
2 Q. So you would -- or do you agree with me that, until this point at
3 least, devastation goes on?
4 A. I agree with you that there is indiscriminate or indisciplined
5 behaviour, and probably looting continued in the rear areas at this time.
6 Q. And this is done by members of the HV?
7 A. I don't agree with that comment.
8 Q. So why would Colonel Fuzul tell his subordinates to stop all
9 devastation, if it was done by somebody else?
10 MR. KEHOE: Judge, I mean, I would like to address this outside
11 the presence of the witness, and it might -- my question goes to the good
12 faith basis for that question.
13 JUDGE ORIE: We'll ask the witness to leave the courtroom for a
14 second. Since everyone speaks English, Mr. Jones, including you, we
15 can't just do with taking off your earphones.
16 THE WITNESS: But, Your Honour, I'm not so sure I speak English.
17 I've been [indiscernible] through counsel a couple of times.
18 Yes, sir, I will be right back.
19 [The witness stands down]
20 MR. KEHOE: Your Honour, this order, and I was going to get into
21 this as opposed to on redirect examination, but I felt it incumbent to
22 bring this to the Court's attention outside of the presence of the
23 witness when we get into this. This order, as can you see in D964, has a
24 line there that -- excuse me, D654, has a line that goes back to the
25 Split Military District commander order.
Page 21070
1 If the Prosecution checked their own system, the Split Military
2 District order is written in exactly verbatim the same fashion and it
3 comes from an order from the HV Main Staff which is exactly the same as
4 set forth in Colonel Fuzul's order. So comes from Cervenko, verbatim
5 it's given back out by Gotovina, and verbatim it's given back out by
6 Fuzul. That is what the chain of command is here. As opposed to this
7 line coming from a question, So why would Colonel Fuzul tell his
8 subordinates to stop all the devastation?
9 Colonel Fuzul is following orders coming down the chain of
10 command and I submit to Your Honour that this -- this information is in
11 the possession of the Prosecutor. Ergo, the -- I challenge the good
12 faith basis for that question.
13 JUDGE ORIE: Yes. It seems to me there are several possible
14 explanations of how this happened, and, therefore, the Prosecution may
15 ask the witness why this was done this way. I mean, if, over a certain
16 period of time the devastation would have stopped immediately, you would
17 have expected some other action rather than sipping through -- but let's
18 not -- let's not at this moment discuss the -- how we would evaluate and
19 interpret this evidence. Let's focus exclusively on what is admissible
20 to ask to the witness and the question, as such, which -- and that may be
21 clear, Mr. Waespi, seems not to pay a lot of attention to the verbatim
22 repetition of words. In whatever way we would have to interpret that,
23 there are many ways of interpreting that, is admissible, but I take it
24 that you're aware that if you ignore that element that it might come back
25 as a boomerang at a later stage.
Page 21071
1 There is no -- no reason at this moment to --
2 MR. KEHOE: I just want to advise in the true spirit this order
3 that comes from General Cervenko goes to the Military Districts in
4 Zagreb
5 the air defence system, plus the archive. It goes to everybody that is
6 in the military system and filtered down, and the only thing that
7 General Gotovina, I submit to Your Honour, is doing is ordering, giving
8 an order out that Cervenko, General Cervenko, has given to everybody.
9 Now, the question that I can object that I can object to this was
10 the contextualisation of that, as if this is an isolated the incident
11 that Colonel Fuzul is doing by himself, without providing the context to
12 the witness. Now I know that you can't provide the context to
13 everything, Judge, or we would be here for a month. I understand that.
14 JUDGE ORIE: Well, make it three months.
15 MR. KEHOE: That's right.
16 JUDGE ORIE: Mr. Waespi, the intervention by Mr. Kehoe at least
17 puts you on notice and does not -- let me just ...
18 MR. WAESPI: I can ask him a couple of questions actually along
19 the lines of what is suggested by Mr. Kehoe.
20 [Trial Chamber confers]
21 JUDGE ORIE: I consulted with my colleagues, Mr. Waespi. We'd
22 like to hear from you, if I use my own words, which -- why you risk the
23 boomerang.
24 What's your response to what Mr. Kehoe tells us?
25 MR. WAESPI: I believe that the issue is whether a commander
Page 21072
1 would issue an order if he knew that in his area of responsibility there
2 was no issue about devastation, there was absolutely no issue. Why would
3 in order -- issue such a serious thing if he knows, you know, his area,
4 his command is free from that.
5 So he is certainly not -- not a puppet, not a machine. Mr. Fuzul
6 would certainly check first with his subordinate people. He knows what
7 is happening in his area, and if there is no issue in relation it that,
8 I'm sure he would resist from issuing this order.
9 So it's just repeating what is coming down to the bottom of the
10 hierarchy.
11 JUDGE ORIE: You would say, verbatim or not, to further put an
12 order down the hierarchical lines if the situation on the ground would
13 not justify such an order to be further sent down the chain of command,
14 that you would expect a strong protest against an order to issue a
15 totally unjustified order for your area of responsibility.
16 Is that --
17 MR. WAESPI: Of course, he has to be sure that there was no
18 devastation in his area. Otherwise he has a problem. Because then he
19 doesn't follow directions from his superior people. But if he knows,
20 There is no devastation in my area, I'm sure a responsible commander
21 wouldn't issue an order like that.
22 [Trial Chamber confers]
23 JUDGE ORIE: The Chamber denies the objection. Mr. Waespi is
24 allowed to proceed as he did. At the same time, Mr. Waespi, it -- you're
25 now put on notice of what the concerns of Mr. Kehoe are.
Page 21073
1 Could the witness be brought into the courtroom again.
2 [The witness takes the stand]
3 JUDGE ORIE: Please proceed, Mr. Waespi.
4 MR. WAESPI: Thank you, Mr. President.
5 Q. General, to provide you with a larger background or context to
6 this document which I had to take back, unfortunately -- actually, I can
7 give it to you again.
8 Apparently the reference to the order of the Split Military
9 District, above the word "order," it says "pursuant to order," this
10 relates to an -- apparently an identical order which, in fact, was issued
11 a level above the Military District by the main commander,
12 Commander-in-Chief, General Cervenko, addressing, issuing this order to
13 all Military Districts who, in turn, then, you know, order their
14 subordinate units.
15 So take it in the context of this is a verbatim order from higher
16 commanders.
17 Now, under what circumstances would you issue this order to your
18 subordinate units, tell them to stop devastation?
19 A. Well, obviously, that -- I would do this to -- to ensure that
20 whatever state at the time our facility are that we stop any further
21 degradation of those facilities by whatever is happening. If in fact
22 barracks, depots, training areas and so forth had suffered some or
23 continued to suffer some deterioration, I'd like that stopped
24 immediately, to offset the cost of re-establishing those in the future.
25 So the point here being, stop all devastation. Now you're asking
Page 21074
1 your military units to stop that, not particularly to me implying that
2 they are the ones doing it, but whoever is doing it to protect those
3 facilities so that we can re-establish them in the future. But as you
4 take on and look at those facilities, make sure clear them of any
5 ordnance that may be in there.
6 So, you know, obviously throughout the country at this time there
7 is a concern of any continued deterioration of government facilities.
8 That's the way I understand it.
9 Q. Now when you say that the point here is to stop all devastation,
10 do you have any information that the military was authorised to
11 intervene, you know, if other people would -- would devastate these
12 buildings?
13 A. Obviously they have by the virtue of this order, you know, this
14 is on government -- if they're talking about barracks, if they're talking
15 about training facilities, residential buildings that belong to the
16 military, they have the authority - that's federal property - to
17 intervene to protect those buildings.
18 Q. It -- actually doesn't say for military purposes here, at least
19 not in -- in that sentence we look at; stop all devastation. It just
20 talks about regardless of what the facility's purpose is, barracks,
21 depot, training ground, residential buildings, and so forth.
22 MR. WAESPI: The context might be wider and can be explored in
23 re-examination, but --
24 MR. KEHOE: Well, I object to the -- I object to the premise.
25 JUDGE ORIE: I try not to speak at the same time. If others
Page 21075
1 would do that as well. Then at least the transcript could be complete.
2 Mr. Kehoe, it was clear to you from my eye contact that once
3 Mr. Waespi would have finished his question I would have allowed you to
4 make an objection.
5 MR. KEHOE: My apologies, Mr. President, and to the court
6 reporter.
7 JUDGE ORIE: You, Mr. Waespi, you already ruled on an objection
8 you expected before even the Chamber could hear it.
9 Well, a lot was said today about undisciplinary behaviour. It
10 was suggested that undisciplinary behaviour raises some concerns. It
11 does. Would you please finish your question. Then Mr. Kehoe will have
12 an opportunity to object to it. And then the proper authority to rule on
13 it will do so.
14 Please proceed.
15 MR. WAESPI: Thank you, Mr. President.
16 Q. My question to you, General, was that in that sentence I want you
17 to focus on, but you could look at it in a context, it only talks about
18 stopping all devastation, regardless of what the facility's purpose is,
19 barracks, depot, training ground, residential building, and so forth.
20 So when you interject that residential buildings are buildings
21 used or owned by the military, that's your interpretation. Is that
22 correct?
23 JUDGE ORIE: Mr. Kehoe.
24 MR. KEHOE: [Microphone not activated] -- contextualisation again
25 is it goes back to the preamble.
Page 21076
1 JUDGE ORIE: Yes, I -- I don't even --
2 Mr. Waespi, paragraph 1 of this order refers to all military
3 infrastructure facilities are placed under supervision and protection.
4 Second paragraph orders to stop all devastation, regardless of
5 what the facility's purpose is.
6 Now, please tell me what the reference to facility in paragraph 2
7 could be, other than a reference to the facilities mentioned in the order
8 under number 1?
9 If you want to spend a lot of time on it, we'll have to ask
10 Mr. Jones to leave the courtroom. But --
11 MR. WAESPI: I accept your point, Mr. President.
12 JUDGE ORIE: Thank you.
13 Please proceed.
14 MR. WAESPI:
15 Q. I have one last issue, and this is the Ademi appointment on the
16 3rd of August, 1995.
17 MR. WAESPI: It will take about ten minutes, Mr. President. I
18 don't know whether we want to have a break now.
19 JUDGE ORIE: As a matter of fact, I would like to discuss
20 scheduling before we have the break, in view of the wish expressed by
21 Mr. Cayley to examine the witness also for 30 minutes.
22 If you can guarantee with the assistance of Mr. Kehoe that you
23 will need not more than ten minutes, we'll now finish your
24 cross-examination and then have a break.
25 MR. WAESPI: Even with the assistance and perhaps because of the
Page 21077
1 assistance of Mr. Kehoe, I cannot guarantee that.
2 JUDGE ORIE: Well, can you finish your -- in ten minutes?
3 MR. WAESPI: I'll try to do it, Mr. President.
4 JUDGE ORIE: Yes.
5 MR. WAESPI: I'd like to call D793, please.
6 THE WITNESS: Counsel, would you like this back.
7 MR. WAESPI:
8 Q. Yes, please.
9 Thank you General.
10 Now, this is the -- now I think almost famous order of the
11 3rd of August which plays, apparently, a central role in your argument
12 that General Gotovina acted properly and reasonably. And you remember,
13 it's the removal of Colonel Slaven Zdilar.
14 You certainly remember the document from yesterday?
15 A. Yes.
16 Q. Now, let's have a look at this document again.
17 Now, first of all, it's -- the first time you have seen this
18 document was on -- on Sunday, because I understand it's not quoted or
19 cited by you in your report. Is that correct? Footnote 47 is the key
20 footnote where this document that suggests you should have been quoted.
21 A. 47 in my report?
22 Q. Yes. I can tell you it's not quoted there.
23 A. Okay.
24 Q. Now, would you agree with me, and you have given your explanation
25 yesterday and I think today as well, that in this order replacing the
Page 21078
1 commander of OG North there is no indication that it was done in response
2 to undisciplined behaviour in -- in end of July. There's no reference
3 here to that effect. I know you interpret the purpose of having a
4 uniform command and control of the units in a certain way but there is no
5 reference to -- to, you know, some indisciplined units.
6 Do you agree with me?
7 A. I agree on the base document. And could I expand on that, if you
8 like, why I agree.
9 Q. Not at this moment.
10 Now, were you shown by the Defence, Mr. Kehoe and his colleagues,
11 any information why, more specific information than what is contained in
12 the document, of why Colonel Zdilar had to be removed?
13 A. Only from the standpoint of my examination of the document in
14 discussing with them the series of events of which units underneath
15 OG North had -- had demonstrated indisciplined behaviour.
16 Q. And you have no information that any disciplinary or other
17 proceedings were initiated against Colonel Zdilar for not having control
18 of his units?
19 A. Not at this time. At this time, on the eve of the
20 Operation Storm he was removed, and that in itself is a form of
21 disciplinary action from my perspective.
22 Q. But he's, at the same time, appointed to a fairly senior staff
23 position as chief of infantry. You accept that?
24 A. I -- yeah, and that to me, from a military perspective, is moved
25 to the rear and into a support or an institutional job not an operational
Page 21079
1 job.
2 Q. So are you saying General Gotovina doesn't trust this commander
3 anymore?
4 A. My interpretation of this is he doesn't have the confidence that
5 he can command and control his units or his subordinate units which put
6 the operation at risk and the fact that there was probably a series of
7 events leading up to this which caused him to take that action.
8 Q. Let's look at 65 ter 7389, an order by General Gotovina dated
9 22nd September 1995
10 And you see here that it's General Gotovina reappointing
11 Colonel Zdilar as an OG commander. If you go down in the English to the
12 bottom, you see the OG West command is formed in the following structure,
13 OG West commander Slaven Zdilar, brigadier.
14 Number 1, General Gotovina reappoints a person he allegedly had
15 to remove because he couldn't control his units. This person is even
16 promoted as a higher rank than before. And, as you can see from (b),
17 just above the appointment, he now controls one OG which is a combination
18 of OG South and West, so clearly an important position.
19 Now --
20 MR. KEHOE: Excuse me, I object to the last characterization of
21 important position.
22 MR. WAESPI: I can take that back. No problem with that.
23 JUDGE ORIE: Okay, a position.
24 Please proceed.
25 MR. WAESPI:
Page 21080
1 Q. Now, General, from the perspective of your report's key topics,
2 command climate and condoning undisciplined behaviour of subordinates,
3 what message would that send to his subordinates if, first,
4 General Gotovina removes the commander because of disciplinary
5 shortcomings, and then the next month he reappoints this commander, even
6 in a promoted fashion, and installs him basically into the same function.
7 MR. KEHOE: I object to the -- I don't know if there's a --
8 JUDGE ORIE: Mr. Kehoe, let's -- yes, briefly say what your
9 objection is.
10 MR. KEHOE: I'm not sure if -- if counsel is aware of what
11 happened in between or he's just left that out.
12 JUDGE ORIE: We can explore that --
13 MR. KEHOE: Yes.
14 JUDGE ORIE: You can that at a later stage, if you think that the
15 matter is -- but, again, from my next question to the witness it may
16 appear that the reasons to explore that might be not that big.
17 First of all, Mr. Jones, from you aware of this appointment in
18 September of Mr. Zdilar.
19 THE WITNESS: No, I was not.
20 JUDGE ORIE: He was not.
21 Mr. Waespi.
22 MR. WAESPI: Thank you.
23 Q. Can you answer my question? What message does that send to -- to
24 his subordinate troops, to remove somebody first, accepting your
25 explanation that it was done because he wasn't trusted anymore, couldn't
Page 21081
1 do his job, and then to reappoint him, even in a promoted fashion?
2 A. Well, I'd -- obviously when he's cited for the unity of command
3 and control, as the case may be at that time, my -- my interpretation of
4 that was -- was that he had -- he did not see the -- the sequence of his
5 orders and his intent being carried out in his subordinate commanders and
6 he replaced him.
7 Now for whatever reason he elected to give him another
8 opportunity is stated here later on. I would have to have the
9 background. I do not know. I'm not sure it's a promotion. I would have
10 to look back and see if he's at the same grade, but, however, this looks
11 like a reorganising, restructuring of the forces and giving him OG West
12 command once again, with a supporting structure of someone who has also
13 been an OG commander in Fuzul, it looks like.
14 Q. I suggest to that you there are two options here. Either the
15 first removal on the 3rd of August --
16 A. Mm-hm.
17 Q. -- had nothing to do with disciplinary issues. And then your
18 central document, which is this D793, does not support your theory that
19 these disciplinary issues were correctly assessed by General Gotovina.
20 Or we have here General Gotovina rewarding undisciplined behaviour.
21 Do you agree that these are the two options we have?
22 A. I -- the latter part about rewarding undisciplined behaviour, I
23 don't think is why he relieved him. The undisciplined behaviour was the
24 insubordinate units, but the ability for him to carry out his orders and
25 his intent would be more in line why he would have been relieved.
Page 21082
1 Now, the incidents of indisciplined behaviour in his unit were
2 indicative of him being able to command and control his units. Now -- so
3 I don't know if I can correlate to rewarding undisciplined behaviour by
4 doing this. However, it's not uncommon, from my perspective, sometimes
5 to see if someone did have a leadership flaw and you didn't have a lot of
6 resources to draw from in the past, and you had to form another command
7 to potentially giving that person another chance because he just, at the
8 point in time, may have been mentally fatigued; and so you try to
9 re-energise him, give him some supporting cast to make him successful.
10 We don't want to tear a leadership down forever, but if he warrants
11 another opportunity, maybe that's what happened. I don't know. I don't
12 know the circumstances.
13 Q. You don't know the circumstances so you actually don't know what
14 the reasons were for relieving Colonel Zdilar in the first place?
15 A. No, I was referring -- I don't why he gave him another command.
16 Q. Yes. But you also don't know why he was relieved in the first
17 place?
18 A. Other than what he stated of an effective unity of command which
19 implies his ability to carry out his orders as either written or his
20 intent the commander had given him.
21 Q. And that's your interpretation?
22 A. Yes.
23 MR. WAESPI: No further questions, Mr. President.
24 JUDGE ORIE: Thank you, Mr. Waespi.
25 We will have a break but we will already invite to you be
Page 21083
1 escorted out the courtroom, Mr. Jones. I do understand that you have
2 plans to travel tomorrow morning. Is that correct?
3 THE WITNESS: That's correct.
4 JUDGE ORIE: We -- we'll try to see whether matters can be
5 scheduled in such a way that it would not prevent you from travelling
6 tomorrow.
7 How disastrous would it be if we would not be able to --
8 THE WITNESS: To depart tomorrow?
9 JUDGE ORIE: Yes.
10 THE WITNESS: Obviously I'm at your, you know, disposal. I would
11 have to change some things back in the United States.
12 JUDGE ORIE: But it's not -- you're missing the marriage of your
13 daughter or a reception by the president of the United States.
14 THE WITNESS: No.
15 JUDGE ORIE: Thank you for this information.
16 THE WITNESS: Thank you.
17 JUDGE ORIE: Madam Usher, could you please ...
18 MR. WAESPI: Mr. President, I omitted to tender 65 ter 7389.
19 That's the last document I have shown to the witness.
20 JUDGE ORIE: Reappointment document.
21 MR. KEHOE: No objection, Judge.
22 JUDGE ORIE: Mr. Registrar.
23 THE REGISTRAR: Your Honours, that will become Exhibit P2618.
24 JUDGE ORIE: And is admitted into evidence.
25 I'm looking at Mr. Cayley. You said you would need 30 minutes.
Page 21084
1 Would that be the best, Mr. Kehoe, that Mr. Cayley would go first in this
2 respect as a kind of a delayed cross-examination.
3 MR. CAYLEY: We've actually agreed, Mr. President, that Mr. Kehoe
4 is going to go first, because it may actually abbreviate what I have to
5 do.
6 JUDGE ORIE: Okay. It's good to hear that you have considered
7 the practical consequences of the order in which you examine the witness.
8 Mr. Kehoe, could you give us an indication as to how much time
9 would you need.
10 MR. KEHOE: I would say, Mr. President, about half an hour.
11 JUDGE ORIE: Half an hour.
12 Mr. Cayley, would it still be half an hour?
13 MR. CAYLEY: Can we see what Mr. Kehoe does and then I can
14 certainly let you know. I'll do my best. I understand the point you're
15 making.
16 JUDGE ORIE: Yes. Well, the Chamber may have questions as well.
17 I'm just considering at this moment what possibilities there are to have
18 an extended session and to continue this afternoon. Now, half an hour
19 plus half an hour would bring us beyond a quarter to 2.00. That's clear.
20 Let me ask the Registrar about the results of his inquiries.
21 [Trial Chamber and Registrar confer]
22 JUDGE ORIE: The parties are, as always, invited to be as
23 efficient as possible in the use of their time.
24 We'll resume at ten minutes past 1.00. Then we would have left
25 35 minutes, which would not cover the time requested. There is not yet a
Page 21085
1 definitive green light for a session this afternoon, a session which, I
2 suggest, would start ...
3 [Trial Chamber and Registrar confer]
4 JUDGE ORIE: We now have green light for one session this
5 afternoon, which means that after the break we'll see how far we come.
6 We'll stop at a quarter to 2.00, have a one-hour lunch break and have one
7 session on from a quarter to 3.00 onwards.
8 The danger of having time available is that it will be used.
9 We ...
10 [Trial Chamber confers]
11 JUDGE ORIE: We'll resume at quarter past 1.00.
12 --- Recess taken at 12.52 p.m.
13 --- On resuming at 1.17 p.m.
14 JUDGE ORIE: Mr. Jones, you will now be re-examined by Mr. Kehoe.
15 You may proceed Mr. Kehoe.
16 Re-examination by Mr. Kehoe:
17 Q. General, good afternoon. I would like to -- I would like to go
18 through a series of topics, not everything that was covered on cross, but
19 I'd like to cross-examination -- I would like to discuss the last topic
20 first concerning Colonel Zdilar.
21 And we have on the screen, as can see is P2618, which is putting
22 now Brigadier Zdilar in as the commander in OG West on 22nd
23 September, 1995.
24 Now, you noted two things in your testimony yesterday. Number
25 one, this is on page 20933, line 5 to 6, that General Gotovina didn't
Page 21086
1 have a lot of resources to replace commanders with.
2 And today, on page 85, on line 9 and 10, you said that:
3 "We don't want to tear a leadership down forever and if he
4 warrants another opportunity, maybe that's what happened."
5 Now, General, bringing a person back by General Gotovina would
6 be -- would it be an attempt by a commander to rehabilitate that person?
7 A. Yes, it could be.
8 Q. Let me show you a couple of documents that pre-date the
9 appointment of Zdilar on 22 of September, and I want to show you two
10 documents that you have not seen before.
11 MR. KEHOE: And one is 65 ter -- excuse me, 1D2945.
12 Q. I'd like to show you these two documents, General, before we go
13 into this.
14 General, this is a document that is the 21st of August, 1995
15 it comes from General Gotovina. Notes that:
16 "Due to the demonstrated need and for the continuity of command
17 and control of units in the Split Military District ... I hereby ... all
18 appointments to the position of commander of OG West are hereby
19 suspended; and 2, I hereby temporarily appoint the commander of the 113th
20 Infantry Brigade, Colonel Danijel Kotlar as acting commander of OG West."
21 It says the order takes effect the next day.
22 And before we go into the next document, I'd like to offer this
23 document into evidence.
24 MR. WAESPI: No objections.
25 JUDGE ORIE: Mr. Registrar.
Page 21087
1 THE REGISTRAR: Your Honours, that will become Exhibit D1636.
2 JUDGE ORIE: And is admitted into evidence.
3 MR. KEHOE: If can we can put on the screen -- thank you,
4 Mr. President. If we can put on the screen 1D2946.
5 Q. Now, General, this is an order three days, again signed by
6 General Gotovina on the 24th of August, 1995. Talking about the
7 temporary command of OG West:
8 "Due to the demonstrated need to acquire insight, regulate the
9 situation, and ensure continuity in commanding OG West, I hereby order,
10 the temporary command of OG West shall be formed with the following
11 composition. Colonel Danijel Kotlar," the individual we looked at in
12 previous exhibit, "representative of the commander of OG West. Brigadier
13 Slaven Zdilar as the Chief of Staff."
14 Now, General, if you were going to bring somebody back in to give
15 them a second chance, would you put them in a primary position or would
16 you put them in a Chief of Staff position to see how that person performs
17 when you do bring them back.
18 A. Well, obviously you have the option to that. You would want to
19 see if he can perform, but you also may be doing this to get his head
20 back into the game of the operation. You wouldn't just want to put him
21 back in cold, so the Chief of Staff position is obviously one which he
22 would be able to -- to regain his knowledge of the operation, probably
23 the quickest.
24 MR. KEHOE: Mr. President, at this time, we'd like to offer into
25 evidence 1D2946.
Page 21088
1 JUDGE ORIE: Mr. Waespi.
2 MR. WAESPI: No objection.
3 JUDGE ORIE: Mr. Registrar.
4 THE REGISTRAR: Your Honours, that becomes Exhibit D1637.
5 JUDGE ORIE: And is admitted into evidence.
6 MR. KEHOE:
7 Q. Now, General, the order that we saw previously, the P2618 and
8 that was the 22nd of September, 1995, which puts Brigadier Zdilar in
9 command of OG West command and this is, of course, based on the testimony
10 you talked about previously as prior to Operation Southern Move.
11 As further trying to give this person a chance, sir, would you
12 put that person in a role that was not the most difficult role in the
13 world or would you throw him right in and put him in the most difficult
14 role possible?
15 JUDGE ORIE: Mr. Waespi.
16 MR. WAESPI: [Indiscernible] ... all leading questions. Could be
17 probably asked, What role would you give him?
18 MR. KEHOE: The role -- that question, I believe, is in the
19 disjunctive.
20 JUDGE ORIE: The objection is denied. It is to some extent
21 leading, of course, the showing of the documents, of course, assists
22 greatly as well. I have a bigger concern, that is, looking at the
23 document and asking whether you would expect this document to be
24 delivered on a sunny day or on a rainy day, well, of course, you would
25 look at whether the paper is wet and then conclude that it must have been
Page 21089
1 a rainy day. It is the speculative and that's true for the testimony
2 itself, to some extent, to the questions put by Mr. Waespi, and your
3 questions as well, Mr. Kehoe, is the level of -- of coming close to
4 speculation is -- is worrying me a bit.
5 Could you please keep that in mind when you proceed.
6 MR. KEHOE: Yes, Mr. President.
7 Q. General, I'd like to move to the actual order for the operation
8 in Southern Move, and that would be 65 ter 5531.
9 And it has a variety of pieces of information but if we can go to
10 page 9 in the English, and it's 9 in the B/C/S as well, I'm informed.
11 And I realise that you don't have a hard copy of this, General,
12 but if can you take a look at this document -- excuse me, it's page 4 in
13 the English, I'm informed. I'm sorry.
14 A. And you're referring to tasks for units?
15 Q. Tasks for individual units. It gives a task for the 7th Guards
16 Brigade on page 9. And if we go to page 10, that continues on, these
17 being combat tasks. I'm not going to read it because obviously you can
18 see there, combat tasks.
19 Page 11, paragraph 5.42, other information given to the
20 4th Guards Brigade.
21 And then there were a series of units that get combat activities.
22 And if we could turn to page 16 of the English, when we talk about the
23 tasks of Operative Group West over which Brigadier Zdilar is in command.
24 MR. KEHOE: And that's in 7 in the -- page 7 in the B/C/S.
25 Q. Now, General, you see the role given to Operative Group West for
Page 21090
1 Operation Southern Move and this is the order signed by General Gotovina.
2 And, actually, signed by General Ademi on behalf of General Gotovina.
3 Would you consider this particular role, based on your knowledge
4 of Operation Southern Move, a minor role for someone who was being
5 brought back into -- to prove himself?
6 A. Well, at this point in time, if I remember, it was now three
7 operational groups versus four?
8 Q. That's right sir.
9 A. So Operations Group North is leading the main effort; west is
10 obviously on the flank and going into a defensive assignment. Of the
11 three areas where you've got east, which is doing a defence in zone and
12 obviously a passage of lines to introduce forces for the attack. I
13 interpreted this: You've had two OP groups forward and the north will
14 past through east and continue the attack. So obviously the three
15 operational groups west has the lesser complexity of assignments, just my
16 interpretation of what I have seen. So -- I looked at the previous order
17 and also the words in there about correcting the current situation of
18 assignments, to me that must have been something to the effect of
19 re-setting and reorganising the forces and task organisation under the
20 group. That was ongoing when -- the General Zdilar, or Brigadier Zdilar
21 was appointed the Chief of Staff so he could orchestrate that and
22 formulate that plan, then he was appointed as commander. So he had
23 become part of the plan and so forth.
24 Now, his experience previous -- probably earlier on, prior to his
25 relief, showed some -- some probably talent and capability of doing it,
Page 21091
1 and that's probably why he got this command and that responsibility. I
2 don't know why the previous commander of Operation Group West was then
3 delineated as the deputy. That is my interpretation of this.
4 Q. Thank you, General.
5 MR. KEHOE: Your Honour, at this time, we'd like to offer
6 65 ter 5531 into evidence.
7 MR. WAESPI: No objections.
8 JUDGE ORIE: Mr. Registrar.
9 THE REGISTRAR: Your Honours, that will become Exhibit D1638.
10 JUDGE ORIE: And is admitted into evidence.
11 MR. KEHOE:
12 Q. Now, General, I'm going shift topics, and I just want to ask you
13 a few comments about some of your testimony about General Cermak, and you
14 noted on page 46, lines 12 to 21, that you had no knowledge of
15 General Cermak's title.
16 Do you recall that, sir?
17 A. That's correct.
18 Q. And when we go to D1632, which is the tasking order that it was
19 given -- tasking letter that was given to you.
20 MR. KEHOE: If we could put that up on the screen. And if we can
21 go to the next -- looking that page and the next page.
22 Q. In the tasking letter as well as the appendix with the facts,
23 there was no request of you to analyse the duties and responsibilities of
24 the role of General Cermak, was there?
25 A. No.
Page 21092
1 Q. And you were not provided any orders or other documents signed
2 and drafted by General Cermak, were you?
3 A. No, I was not.
4 Q. Now if we can go to your book and look at the tabs. And we look
5 at tab 3, 4, and 5. And under tabs 3, 4, 5, we have the order by
6 General -- D409, which is 2nd August 1995
7 the 3 August 1995
8 minister -- the military police and the Ministry of the Interior. And
9 lastly, D1634, which were the minutes of the closed session of the
10 Croatian government.
11 Would it be fair to say, General, those were the three documents
12 that you relied upon to take the position that you did in your -- in your
13 report where this law enforcement was going to be transited back to the
14 institutional order of the Republic of Croatia
15 Is that right?
16 JUDGE ORIE: Which paragraph are we talking about, Mr. Kehoe?
17 MR. KEHOE: I will give you the exact paragraph, Mr. President.
18 It is actually mentioned in several locations. One is paragraph 8.
19 Another is -- excuse me, paragraph 21, where the -- the last sentence,
20 for instance, in paragraph 21 says:
21 "As a result, it was not up to the HV operational commanders to
22 regulate the transition of responsibility for law and order in that
23 area."
24 MR. WAESPI: Yes, just --
25 JUDGE ORIE: Mr. Waespi.
Page 21093
1 MR. WAESPI: Yes, it is obvious what the purpose is, but I think
2 it is an important, potentially important area if the witness could be
3 asked, you know, what did you rely upon when you expressed those
4 opinions, rather than pointing him to what, you know, he might have
5 relied upon.
6 MR. KEHOE: Well, I think --
7 JUDGE ORIE: Mr. Kehoe, I think it would be apparently the issue
8 of sources and factual basis is important, so to the extent you could
9 refrain from leading --
10 MR. KEHOE: Yes, Mr. President.
11 JUDGE ORIE: -- it would be appreciated.
12 THE WITNESS: To answer your question counsel, yes, these are
13 three -- but it seems to me there was one other document which specified
14 in the -- in the order from the Main Staff, re-emphasising the minister
15 of the interior and/or the ability to discuss the reestablishment of
16 civilian territories from, and I don't know exactly what, but that's --
17 this is the genesis of what that also said.
18 Q. And would you be referring to, if we can turn to -- excuse me.
19 That would be tab 5, D1634, which on page 7 is General Jarnjak talking
20 about when the army enters the area, the military police follows, et
21 cetera. Do you recall that? It's about three lines --
22 A. Yes.
23 Q. Is that what you are referring to?
24 A. Yes. It also shows by their -- the numbers of which were
25 available and which he discusses diverting to the south.
Page 21094
1 Q. General, to get a full assessment of General Cermak's duties and
2 responsibilities, would you have to review a series of documents in which
3 he was involved as well as all his orders in that regard?
4 A. Yes. Plus his task organisation, how he planned to execute the
5 responsibilities given to him which I didn't look at in this particular
6 case.
7 Q. And you did not do any of those items in this case because were
8 not asked to do so?
9 A. That's correct.
10 Q. Now let me shift topics once again, and if I can go back and just
11 show you D654, which is the Fuzul order concerning the military property
12 dated 31 August 1995
13 JUDGE ORIE: Mr. Kehoe, you just took the witness to D1634.
14 Could you --
15 MR. KEHOE: I'm sorry, 654. I'm sorry.
16 JUDGE ORIE: No, no, no, the previous one I was talking about.
17 MR. KEHOE: I believe that's 16 -- D1634, Mr. President --
18 JUDGE ORIE: Yes. And what page did you take him to, because it
19 goes over --
20 MR. KEHOE: I took him to page -- if I may, Mr. President, it's
21 page 7 in English.
22 JUDGE ORIE: Page 7 in English. Thank you.
23 MR. KEHOE: The item that we've referenced is about four lines
24 from the top that begins mid sentence: "But ..."
25 JUDGE ORIE: So page 7.
Page 21095
1 MR. KEHOE: In the English.
2 JUDGE ORIE: Thank you. Please proceed.
3 MR. KEHOE:
4 Q. General, I'd just like to address you to this particular
5 document, dated 31 August, by Colonel Fuzul, and refer to the preamble
6 when it notes that: "Pursuant to the order of the Split Military
7 District commander" -- and it gives a number and a file number
8 1080-01-95-74 of 29 August 1995
9 A. Yes, I have that in front of me. Are you waiting for me?
10 Q. I'm just waiting for the translation, sir --
11 A. I'm sorry.
12 Q. -- to try and catch up. I would like to refer you back to that
13 document with the 1080-01-94-174 document, which is 1D2947. [Microphone
14 not activated] This is an order from the 29th of August --
15 THE INTERPRETER: Microphone, please.
16 MR. KEHOE:
17 Q. 29th of August. And that document refers to another order from
18 the Chief of Staff. And this is signed by General Gotovina. As we can
19 see, this is a -- taking a look at that it is an exact copy of
20 Colonel Fuzul's order.
21 And then if we could go to the beginning order from the
22 Main Staff from the 25th -- excuse me, the 25th of August, 1995; that
23 would be 1D2948. And note this is a -- the 25th of August, 1995, signed
24 by General Cervenko, I will note for you that this order, as we see in
25 the first paragraph, goes to the Military Districts, the navy, the air
Page 21096
1 force, the air defence. But as can you see, General, it is the number
2 that is listed in General Gotovina's orders.
3 Now, based on your military experience, General, is this the
4 actual -- the chain of what were you talking about during your testimony
5 earlier, that an order comes out at the Main Staff and goes down to a
6 lower subordinate level and then goes down to a more subordinate level.
7 Is that how it generally flows?
8 A. That's correct. And it also goes -- as you see, it gets narrower
9 in scope as it goes down, because this is a multi-service order effective
10 the 25th, and then obviously it goes on down as -- as you see, in -- in
11 the subsequent levels of command.
12 MR. KEHOE: Your Honour, at this time, we will offer 1D2948 into
13 evidence 1D2948 into evidence, which is General Cervenko's order of the
14 25th of August. And then 1D2947, which is General Gotovina's order of
15 29th of August, 1995.
16 MR. WAESPI: No objections.
17 JUDGE ORIE: Mr. Registrar.
18 THE REGISTRAR: Your Honours, 1D2947 becomes Exhibit D1639. And
19 1D2948 becomes Exhibit D1640.
20 JUDGE ORIE: D1639 and D1640 are admitted into evidence.
21 MR. KEHOE:
22 Q. General, just one last question before the break. You were shown
23 some documents by counsel during cross-examination and I have shown you
24 some as well that you hadn't seen previously. Has anything happened
25 during cross-examination or since you took the stand here yesterday that
Page 21097
1 caused you to change your opinions with respect to any of the actions
2 taken by General Gotovina?
3 A. No. But what I do see is -- on this issue of unity of command,
4 these orders now, as we've gone through the course we see a maturing
5 professional force and the effectiveness of the command. Now you have
6 got commands and orders that could come out very readily out of the main
7 support staff and be disseminated all the way down to the lowest level.
8 It appears that the level of normalcy within the military is starting to
9 build, so that was -- that could be good news and the results of a lot of
10 hard work by a lot of people.
11 Q. Thank you, General, I have no further questions.
12 MR. KEHOE: Thank you, Mr. President.
13 JUDGE ORIE: What is the news, what is good about the news?
14 THE WITNESS: The good news is now you're starting to create
15 unity of command all the way -- because if you remember, Your Honour, we
16 started forming this army and we didn't even have doctrine back in 1992.
17 Now you see a maturation of the orders process of the command and control
18 and a doctrine develop and on how you operate as a professional force,
19 and that is probably, to me, evident in the ability now as they're
20 starting to take control of their own destiny, and it appears that the
21 orders process follows fairly smoothly.
22 JUDGE ORIE: You consider the copying of orders, addressing them
23 to lower subordinates, as a major development during the month of
24 August 1995, which is an indication of maturing of the professional
25 organisation.
Page 21098
1 Is that your testimony?
2 THE WITNESS: Yes. My interpretation is that the sequence of
3 which this happened and the substance of these where each command at each
4 level is re-emphasising and you've got unity of substance in each of
5 these orders going down, I did not see the smooth flow when I first
6 started looking at this. And it seems like we had a little bit as -- as
7 the army was maturing, a little bit of probably additional work to be
8 done in a communications aspect with the unity of command and maturing of
9 the doctrine of which now people understand how to -- how to disseminate
10 and to follow orders. And this to me, if the results of what happened
11 right here reduced ineffective actions by the units, that's a good thing
12 for a military trying to go develop, and that was my point.
13 JUDGE ORIE: Yes. This part of your answer, introducing quite a
14 lot of new elements in --
15 THE WITNESS: Yes.
16 JUDGE ORIE: -- because what you were talking about was seeing
17 orders which almost verbatim are repeated lower down the line.
18 Now you earlier told us that you had received some 30 documents
19 to review for your expert opinion. Now did you ever investigate, well,
20 let's say, mid-July or early August, whether similar production of almost
21 verbatim orders down the line happened or not?
22 THE WITNESS: No, I didn't see any. I saw the mission -- the
23 continuity of the mission, as you started the offensive OPs from main
24 support staff down to General Gotovina and his dissemination of that
25 order, you know, at least down to his commanders, that it was in the
Page 21099
1 operational perspective. Now see a different facet here of really a
2 fairly smooth although, albeit a reiteration of the same words, that the
3 flow of communications being very much a lot quicker and a lot more
4 understood, that they understood what was going and they passed that
5 information quite readily. The test would be what happened after these
6 orders were disseminated.
7 JUDGE ORIE: I think you earlier testified that the delay of
8 seven days in passing an order through down the line was not what you
9 considered to be a timely way of dealing with such a matter. Now --
10 THE WITNESS: That's correct.
11 JUDGE ORIE: -- in your last answer, you expressed your -- your
12 views on professionality of what happened late August. Now the delay you
13 earlier talked I think was mid-August, was 12th to 19th of August.
14 THE WITNESS: Yes, th to 19th, yes, sir.
15 JUDGE ORIE: And how many documents did you study to analyse what
16 is at the basis of your conclusion? Apart from the ones shown to you in
17 court, did you analyse any other series of issues which were dealt with
18 in orders which then passed down the line?
19 THE WITNESS: I did not analyse the orders for time and
20 sequential type of analysis and how that communication flowed. I
21 analysed the orders in the past of what they said, what the task
22 organisation and what the mission was given. That was my focus as we got
23 ready to do the operational campaign. I just noted, having watched this
24 sequence here, based on what the counsel have provided and, Your Honour,
25 you just brought up the delay of -- of 12 or one week before the
Page 21100
1 subordinate commander reiterated the importance of protecting the
2 equipment and so forth, and indisciplined behaviour. Here is a case when
3 in a matter of four days you have gone from the highest level of the
4 Croatian authorities all the way down to the operations group very
5 quickly.
6 JUDGE ORIE: And this demonstrates the growth in professionality
7 in that one week time? Is that --
8 THE WITNESS: I think it shows a growth and an understanding and
9 an increase in the communications in the flow unity of command.
10 JUDGE ORIE: Yes. Let me put to you an alternative
11 interpretation of this and see whether -- do the same exercise we have
12 done before.
13 Let's -- I'm not saying it is my assumption, but for argument's
14 sake, let's say that avoiding devastation of -- or burning and looting
15 was not of a primary concern and therefore everyone took its time;
16 whereas, saving military facilities for future use would be a high
17 priority, and therefore no one would take his time.
18 That is, well, a -- I'm not saying it is the explanation. I
19 don't know. But it is at least a potential explanation, that is, the
20 difference of subject between 12 to 19 August or between the 20th and the
21 30th of August. Is there any method by which you could establish whether
22 your interpretation would be better than the one - perhaps one out of
23 many - would be -- that your interpretation would be the better one and
24 the more valid one?
25 I'm now thinking in terms of methods and logic of drawing
Page 21101
1 conclusions.
2 THE WITNESS: I think you have to look at each of these incidents
3 in a different way, because it's a little bit of apples and oranges.
4 Your first instance where you want to take control and establish the
5 authority into the re-captured free Croatian land, you want the civil
6 authorities to step up and enforce the rule of law.
7 Now, that goes through in the responsibilities to minister of the
8 interior and Mr. -- and the civilian and military police. Normally when
9 things go through a civilian type of organisation, and no offence to
10 anyone here, it maybe here, they are not organised to disseminate and/or
11 do things that quickly.
12 Now, the other perspective that you saw in this order's process
13 is to make sure that when what was previously military infrastructure now
14 becomes cleared and secured for future use. So it's a little bit
15 different where you talk about the control and authority throughout the
16 land and re-establishing that civil authority and this piece where he's
17 talking about protecting particularly the military infrastructure so you
18 can regain the use of it later. It appears to me that -- that this
19 latter part is talking specifically on military infrastructure that had
20 been occupied by another force because they talk about in clearing the
21 area previously occupied, make sure you clear the area from mines, booby
22 traps or any demolition. So that would also be -- that's one
23 paragraph in there, I think, is very important to catch because, if when
24 somebody vacated a military facility they would try to render it unusable
25 to future occupancy, it should be cleared. So I --
Page 21102
1 JUDGE ORIE: May I ask you --
2 THE WITNESS: Yes, go ahead.
3 JUDGE ORIE: Aren't you at this moment strongly supporting what I
4 suggested as a possible explanation, that the subject matter may be an
5 important element in how quickly orders were passed down the road?
6 THE WITNESS: Subject matter, yes, sir. And level of importance.
7 JUDGE ORIE: Yes. So, therefore, the growth of professionalism
8 which was your previous explanation for the difference between mid-August
9 and end August might be competing with difference in subject matter as an
10 explanation.
11 THE WITNESS: It could. It could. It's my observation.
12 JUDGE ORIE: Yes, thank you.
13 Now we will have a break. We managed to, Mr. Jones, to schedule
14 our hearings today in such a way that you will be able to travel, which
15 means that we'll have one other session which will start at 3.00.
16 THE WITNESS: Okay.
17 JUDGE ORIE: And we'll adjourn until 3.00.
18 --- Lunch break taken at 1.54 p.m.
19 --- On resuming at 3.03 p.m.
20 THE WITNESS: Thank you.
21 JUDGE ORIE: Mr. Cayley, are you ready?
22 MR. CAYLEY: Yes, Your Honour.
23 JUDGE ORIE: Mr. Jones, you will now be examined by Mr. Cayley.
24 Mr. Cayley is counsel for Mr. Cermak.
25 MR. CAYLEY: Your Honour, just for planning purposes, I think I
Page 21103
1 will be considerably less than 30 minutes. I know Your Honours have
2 questions for the witness too.
3 JUDGE ORIE: Perhaps, yes.
4 Cross-examination by Mr. Cayley:
5 Q. General Jones, I have a few questions for you and at the outset
6 what I wanted to say to you is I'm not actually interested specifically
7 in your opinions, I'm more interested in -- the information you based
8 your opinions upon.
9 Do you follow?
10 A. Yes.
11 Q. Now, I'm right in saying, just to reiterate where we left off at
12 the end of the last session, you were not asked by the Gotovina Defence
13 team to analyse Mr. Cermak's role in this case; correct?
14 A. That's correct.
15 Q. And you were not provided with any documents that were signed or
16 drafted by Mr. Cermak, were you?
17 A. No, I was not.
18 Q. And it would be right to say, to emphasise, I think, what you,
19 yourself said, you do you not know anything about the tasks that he
20 performed because you didn't see, I think, what you called his task
21 organisation; is that right?
22 A. Yes. I didn't see his -- what he was tasked with or his task
23 organisation.
24 Q. And I'm also right in saying that have you not seen any documents
25 signed by Mr. Cermak addressed to HV units which, you know from your
Page 21104
1 research, were under the command of General Gotovina within the Split
2 Military District; correct?
3 A. Correct. I don't remember any of those.
4 Q. Now you, yourself, said quite early on in your evidence, and this
5 is actually at page 33, line 25, that a commander can only have
6 responsibility and oversights for units assigned to him.
7 Do you recall stating that?
8 A. That's correct.
9 Q. Now, I want to take you to a part of your evidence where you were
10 referring to the subordination of the military police and the civilian
11 police. And I'll read it back carefully to you what you said.
12 And this is at page 19, lines 21 to 23. And you said the
13 following:
14 "It appeared to me in the subsequent -- with the meeting with the
15 minister it is said that the military police and civilian police would
16 then work under the minister of the interior and subordinate to him."
17 Do you recall stating that?
18 A. Yes, I think that's true. I think the minister of the interior
19 is correct. I may be wrong, but just the military and civilian police
20 would work subordinate to whoever was responsible for restoring the
21 constitutional authority of the country.
22 Q. Let me just interrupt you there.
23 Now, I'm not going to produce exhibits because the Judges have
24 already seen them, but I can inform you, I don't think there is any
25 dispute about this fact in the case is that the military police -- there
Page 21105
1 is no evidence at all to show that the military police were subordinated
2 to the minister of the interior in this case.
3 Do you accept that you could be wrong on that point?
4 A. To the minister of the interior, yes.
5 Q. That the military police --
6 A. I could be, yes.
7 Q. You accept that are you wrong on that point. Do you know the
8 name of the minister of the interior?
9 A. Mr. --
10 Q. No matter. It doesn't matter.
11 Now, on page 20 at lines 22 to 23, His Honour Judge Orie was
12 asking you a number of questions, and he said to you, "I did not ask you
13 to list them but to say how much approximately," and here he was talking
14 about units that were subordinated to Mr. Cermak. Okay? That's the
15 reference point.
16 Than's at again page 20, line -- lines 22 to 23. And you said:
17 "I would say that he had the military police and the civilian
18 police that would move through the area that was following the operation.
19 My estimate is that there would be three to 500 people."
20 Now, first of all, in terms of the numbers, I'm right in saying
21 that you have seen absolutely no operational orders, reports, or other
22 documents showing that General Cermak had three to 500 people
23 subordinated to him, have you?
24 A. No. I was referring to Mr. Lausic.
25 Q. Yes.
Page 21106
1 A. So --
2 Q. So that was incorrect, wasn't it, too?
3 A. Right.
4 Q. Now, I'm also right in saying that you have not seen any
5 operational orders or documents or reports demonstrating that Mr. Cermak
6 had operational command of the military police or civilian police. You
7 haven't seen any documents to that effect either, have you, General?
8 A. No.
9 MR. CAYLEY: Your Honour, I don't have any further questions.
10 Thank you.
11 JUDGE ORIE: Thank you.
12 [Trial Chamber confers]
13 JUDGE ORIE: Mr. Jones, I would like to ask you a few questions,
14 again, on the genesis of your report.
15 Questioned by the Court:
16 JUDGE ORIE: You told us that you were approached by the Defence,
17 that you discussed whether you would be the right person for the job they
18 had in mind, whether you had the experience needed to do that job, and
19 then that you were assigned with the task to prepare the reports.
20 Now, you also told us that you received some documents from the
21 Gotovina Defence. Can you tell us how did you receive them and when did
22 you receive them?
23 A. If I may, Your Honour, the sequence went like this: I was
24 contacted by them. I had to work with my company to see that I did not
25 have a conflict of interest. Subsequent to that, then I was given the
Page 21107
1 letter, I think you saw, of May 20th.
2 JUDGE ORIE: Yes.
3 A. I then proposed to them an outline, what I thought that they
4 wanted me to talk about. And we agreed that the scope of the paper -- at
5 that time then --
6 JUDGE ORIE: Could we take it step by step.
7 A. Sure.
8 JUDGE ORIE: You did present an outline on the basis of the 20th
9 of May letter or ...
10 A. Yes. What I did was handwrite an outline and ask them if this
11 is, in fact, the scope of what you were looking for, in terms of my
12 military experience.
13 JUDGE ORIE: And that outline, could you give us some more
14 details, how many pages approximately?
15 A. It was approximately two pages handwritten.
16 JUDGE ORIE: Yes. And at that moment you had not yet received
17 the documents you were -- you would use for the report.
18 A. No, that's correct. I was trying to get the scope of the paper
19 and what exactly the areas they wanted me to address, as I understood
20 their tasking memo.
21 JUDGE ORIE: Yes.
22 A. Basically outlined the logic I would use to write the paper.
23 JUDGE ORIE: Yes. And you say -- when you received the 20th of
24 May letter, you had already the list of facts, attachment A to that
25 letter, on which -- on the basis of which you would work.
Page 21108
1 A. I'm sorry? The lists that were attached to the letter?
2 JUDGE ORIE: 20th of May letter.
3 A. Yes, had the attachment with it.
4 JUDGE ORIE: Yes, providing the facts.
5 A. Right.
6 JUDGE ORIE: So you had that --
7 A. It was provided with it.
8 JUDGE ORIE: And you had no documents yet.
9 A. Not yet.
10 JUDGE ORIE: Okay. Then what then happened next.
11 A. I discussed with them the scope of the letter, then they provided
12 me documentation to review.
13 JUDGE ORIE: So let's take it again step by step.
14 So you sent them the outline.
15 A. Actually I met with them and discussed it with them.
16 JUDGE ORIE: You discussed it with them.
17 A. Yes, I showed it to them and how I was going to do this.
18 JUDGE ORIE: Do you remember how long that conversation took and
19 where it took place?
20 A. Approximately an hour.
21 JUDGE ORIE: And it was where?
22 A. At that time we met in, I believe, Washington DC
23 for other business.
24 JUDGE ORIE: So you discussed the outline with members of the
25 team. One member, more members?
Page 21109
1 A. Actually, two members.
2 JUDGE ORIE: Two members.
3 Now, then you -- at that moment, did you receive the
4 documentation?
5 A. No. Subsequent to that, they mailed them to me.
6 JUDGE ORIE: Yes, had you asked for specific documents or was it
7 their selection that they provided to you?
8 A. It was a combination of things which were germane to the case,
9 the documentation and things additionally I asked for.
10 JUDGE ORIE: But the first selection?
11 A. The first selection was exactly that, it was a combination I
12 asked to make sure I had the orders, the task organisation, the
13 background, and they provided that for me.
14 JUDGE ORIE: Yes. So you asked for a specific type of document
15 and they provided you with those types of documents.
16 A. Yes.
17 JUDGE ORIE: Yes.
18 A. They also provided a few extra documents which supported the
19 outline I had given for me to read.
20 JUDGE ORIE: Yes. And then you started drafting or did you first
21 ask for more documentation.
22 A. No. I -- the next thing I did was read and do the research, and
23 then I -- I re-wrote my outline, and then once I was satisfied with the
24 logic of which I was going to address the questions of the 20 May letter,
25 I sat down and wrote the document.
Page 21110
1 JUDGE ORIE: You said the next thing you did was to read and do
2 the research.
3 A. Mm-hmm.
4 JUDGE ORIE: Now, the research went beyond reading the
5 documentation that was given to you?
6 A. Yes.
7 JUDGE ORIE: And what did you -- beyond what was provided to you?
8 A. The other thing I did was go back in my own documentation, the
9 things I had from my military service and my time in Bosnia
10 such things as the maps I had and exactly where things were. I also went
11 back to my military documents and US doctrine on specific things and
12 looked at the concept of an operational commander and commander's
13 responsibilities. Those were things I personally had.
14 JUDGE ORIE: Yes. Now, not knowing what you were actually
15 provided with, do we find all the sources you used in either the report
16 or the footnotes or is there material which cannot be traced on the basis
17 of your report and the footnotes?
18 A. Everything that is footnoted was documents provided, or reference
19 out of documents provided. Things that were my opinion and my assessment
20 were largely my experience.
21 JUDGE ORIE: Yes. But let's try to -- you make now a distinction
22 between documents provided to you and opinion and assessment. Now there
23 seems to be a third category, that is documents not being provided to you
24 but in your possession or at least available to you.
25 Do we find anywhere in the report or in its footnotes those
Page 21111
1 documents or that information which was not provided to you by the
2 Gotovina Defence but which you had available, as you said, notes, maps,
3 [Overlapping speakers] ...
4 A. No, there was not specific reference in my report to any of those
5 documents.
6 JUDGE ORIE: No. So we can't verify those sources. Have you
7 listed them anywhere for yourself?
8 A. No. Because when I reviewed them like one was FM 3.0 US Army
9 military doctrine or operations doctrine. There was nothing specific
10 enough in there that I would use in my report after I went back and
11 reviewed it.
12 JUDGE ORIE: So you read this material. You did additional
13 research on the basis of what was available to you, of which we do not
14 know exactly what it is. Then you said you started drafting.
15 Did you, at that point in time, or at an earlier point in time or
16 at a later point in time ask for additional documents to the Gotovina
17 Defence?
18 A. At a later point in time, after I thought through, I -- what I
19 had written, I asked for additional information. That's where it came
20 into being the issue on numbers of non-combatants in the area. Those
21 kind of questions as I was trying to formulate in my mind exactly what
22 was happening.
23 I also was provided some of the additional testimonies as counsel
24 had spoken to about people who had already testified about non-combatants
25 in the area and how they controlled those, and I just looked at those. I
Page 21112
1 didn't use them in my report.
2 JUDGE ORIE: Yes. You said you asked for additional information
3 when you thought through what you had written. A draft report,
4 therefore, was already in existence when you asked for this additional
5 information?
6 A. Yes, I had the draft in my computer.
7 JUDGE ORIE: Yes. Then this additional information, did you send
8 a letter asking for it or how did that happen?
9 A. No, I verbally asked for it.
10 JUDGE ORIE: Verbally. Was that in a meeting?
11 A. It was on the phone.
12 JUDGE ORIE: It was on the phone. And then you received that
13 additional information how?
14 A. They sent me the document and/or passed me -- or told me the
15 answer.
16 JUDGE ORIE: The answer to what?
17 A. The relative number of, for example, non-combatants that were in
18 the area. Another question I asked was the law when -- Law of Land
19 Warfare synonymous with the rule of law, or principles of
20 Geneva Convention. Those are some of the clarification questions I
21 asked.
22 JUDGE ORIE: I'll try to understand. You said another question
23 you asked was the Law on Land Warfare synonymous with the rule of law, or
24 principles of the Geneva Convention.
25 It is not entirely clear to me what question you specifically
Page 21113
1 asked.
2 A. Well, you asked me what questions I asked, Your Honour.
3 JUDGE ORIE: Yes.
4 A. That was a question I asked. Because if you remember when they
5 were trying to create their doctrine and their training base back in
6 1992, 1993, 1994, period I saw where the Law of Land Warfare was referred
7 to as being taught or at least criteria had been taught.
8 So in my experiences, the rule of law, Geneva Convention, are
9 very similar, and I wanted to know what that term was used synonymous
10 with the US
11 JUDGE ORIE: Was it about how they used it or were you interested
12 in whether the Law on Land warfare was synonymous or was the same as
13 the --
14 A. I wanted to know --
15 JUDGE ORIE: The Law on Geneva Convention.
16 A. Yes. I wanted to understand basically if they attempted to treat
17 people how to take care of civilians and non-combatants when they were
18 structuring their training.
19 JUDGE ORIE: Yes. And you got an answer to that.
20 A. Yes. The answer was: It is synonymous with what the US doctrine
21 considers handling non-combatants.
22 JUDGE ORIE: Yes. So you asked for some additional information.
23 A. Yes.
24 JUDGE ORIE: You got this information. Then you finalised your
25 draft or what was the next step.
Page 21114
1 A. The next question I had for them was what was the format for the
2 paper such that you could reference it quickly because I had provided a
3 paper like this before and then they gave me an example of another paper
4 submitted and so I followed that format. I re-did my paper and then as I
5 was waiting to review it once again for myself, then obviously it needed
6 to be submitted. And I provided it so they could get it to the Court in
7 time.
8 JUDGE ORIE: Yes, and not any draft had been submitted at any
9 earlier stage. It was only the final draft that you submitted to the
10 Defence.
11 A. No. It was reiterated that the work would be mine, and I think
12 if you see my paper, I don't think that someone could have -- else could
13 have written that other than a person who had my experience.
14 JUDGE ORIE: That's not exactly an answer. I was not asking
15 whether someone else had written it. But I asked you whether that was
16 the first time that a draft, apart from the outline of two pages you had
17 discussed with them at an earlier stage, whether there was any draft in
18 between through the two pages outlined and the final version you sent to
19 the Gotovina Defence which was sent to them or available to them.
20 A. They had -- the answer to your question is: I provided them the
21 final paper.
22 JUDGE ORIE: Yes. And no intermediate version of it.
23 A. Other than discussing the format. I did not provide him -- I
24 discussed a format with him.
25 JUDGE ORIE: Yes. Now you said you were provided with testimony
Page 21115
1 of other witnesses. At what occasion was this done and how was it done?
2 A. I was provided the -- I was mailed the actual copy of the
3 testimony, so I could review what that person had testified, for my
4 information.
5 JUDGE ORIE: Yes. Do you remember testimony of how many
6 witnesses you received?
7 A. Specifically, I think, two. One was the British officer had
8 experience in peacekeeping. Another was the attache to Croatia at the
9 time, I believe a lieutenant-colonel.
10 JUDGE ORIE: Yes. Were you provided with these testimonies in
11 their entirety or a selection of that?
12 A. I was provided the court narrative, I believe, the document of
13 what was testified.
14 JUDGE ORIE: That's what we call the transcript of --
15 A. Yes.
16 JUDGE ORIE: -- what you see on your screen, if that is the
17 verbatim ...
18 A. It wasn't quite in this format, but I'm sure it was pretty close.
19 JUDGE ORIE: Yes, it was a verbatim report of the testimony of
20 those --
21 A. Yes, I believe so, yes.
22 JUDGE ORIE: Earlier you would have heard that Mr. Kehoe told us
23 that portions were read to you.
24 Do you remember that?
25 A. Portions of the testimony?
Page 21116
1 JUDGE ORIE: Of -- of other evidence --
2 A. Yes.
3 JUDGE ORIE: And -- from what I understood, Mr. Kehoe, whether I
4 would have to check that you were referring to the transcript of
5 testimony of Mr. Theunens.
6 MR. KEHOE: One of them was Theunens, Judge, and I just need to
7 clarify with regard to some of the statistics that we were talking about.
8 JUDGE ORIE: At this moment -- let me --
9 MR. KEHOE: They were also in the facts as given in Appendix A.
10 JUDGE ORIE: Yes. Let's ... you were referring to the transcript
11 of Theunens' testimony.
12 MR. KEHOE: Yes.
13 JUDGE ORIE: Yes.
14 So Mr. Kehoe told us that a selection of the transcript was read
15 to you, whereas you tell us that you received the testimony in transcript
16 format. Now, I was -- I asked you when this was read to you, but you
17 have not confirmed that, Portions of this material were read to me.
18 A. My understanding, sir, we're talking about two different
19 testimonies.
20 JUDGE ORIE: What I'm talking about at this moment is what was,
21 as Mr. Kehoe told us, what was read to you --
22 Is that -- Mr. Kehoe.
23 MR. KEHOE: During the course of the discussions last weekend,
24 and we got into the discipline, I went back to the transcript and said
25 that the Prosecutor's expert said 151 per cent and that's the page that I
Page 21117
1 gave to you. And that happened in our discussions over the weekend.
2 JUDGE ORIE: Okay.
3 MR. KEHOE: He had the other letter at another time.
4 JUDGE ORIE: Yes. Well, then I would have expected the witness
5 to tell us that the only time anything was read to him was last weekend.
6 MR. KEHOE: Well, Judge, I said that earlier ... [Microphone not
7 activated]
8 JUDGE ORIE: Let's --
9 MR. KEHOE: [Microphone not activated]
10 JUDGE ORIE: I will check the transcript in this respect.
11 One second.
12 MR. KEHOE: Page 118, Judge, line 8. During the course of the
13 discussions last weekend, and the transcript, I said to him that
14 151 per cent, and that -- I was giving you the reference thereafter.
15 JUDGE ORIE: I was referring to page 63, Mr. Kehoe, where you
16 told us that, for transparency purposes, you had read portions of the
17 testimony of Mr. Theunens.
18 MR. KEHOE: Yes, I believe I referred to Mr. Misetic's question
19 and Mr. Theunens' answer in the context of the discussion of what kind of
20 disciplinary proceedings were going on, and that was just in the course
21 of a discussion over the weekend while we were going through this matter.
22 JUDGE ORIE: Mr. Kehoe, it was not clear to me in what
23 circumstances any portion of the evidence was read to the witness. I
24 asked him that. That's the only thing I did.
25 MR. KEHOE: Well, I understand, judge, well, I mean, you
Page 21118
1 understand the circumstance of it at this juncture.
2 JUDGE ORIE: Yes. Because it was unclear at that moment whether
3 it was when he was still preparing his report or whether it was at any
4 other moment.
5 MR. KEHOE: I understand.
6 JUDGE ORIE: And it's clear to me now.
7 MR. KEHOE: Okay.
8 JUDGE ORIE: And --
9 So you -- let me try to get back to where we were.
10 You had asked for additional documents. Now, the total of
11 approximately 30 documents would that include the additional documents
12 you asked for or would they be in addition to that, and, if so, how many
13 there were, approximately?
14 A. The 30 documents should -- should include everything to include
15 one document being the excerpts from the Balkans report the CIA had. I
16 consider that one document although quite large.
17 JUDGE ORIE: Yes. Then you drafted the report. There was no
18 further feedback, and that's the report that we received.
19 A. I drafted a report and submitted it. And I told them I would
20 like to have a chance to elaborate further because obviously I thought I
21 could do more. However, given the time, I said, That should answer the
22 questions you gave me. Can you submit that, if that is satisfactory.
23 JUDGE ORIE: Yes. Now, apparently during briefing, additional
24 information was provided to you. And for the Chamber, it's important to
25 know what information you exactly had.
Page 21119
1 Could you briefly describe what additional information was given
2 to you in whatever form, orally or in writing, at a later stage, after
3 you had given the report?
4 A. The only additional documents I received was a series of three or
5 four documents which were further clarifying orders of subordinates. I
6 can't reference -- they're in this book. I have seen them. And that was
7 in the preparation I asked for. I have never been here, and I asked for
8 a session with the counsel, their representatives to tell me what goes on
9 in the court, and they provided that information so I wouldn't be
10 surprised when I got here.
11 Now, subsequent to that, I did not bring documents with me,
12 obviously. I did bring my paper and this weekend, we talked and that's
13 where the counsel was telling me -- he read me some things in answering
14 my questions. That's the preparation I went through to -- there's
15 nothing I used as reference -- the information here that I don't think
16 that is not already admitted in the court.
17 JUDGE ORIE: Thank you for those answers.
18 A final topic I would briefly deal with.
19 Were you ever informed about discussions in which the political
20 leadership would take part? I'm talking about the political leadership
21 of Croatia
22 demographic situation, as far as the presence of Serbs in the Krajina
23 area was discussed?
24 A. No. The only information I have on that, Your Honour, is the
25 orders initially put out which was to re-claim the -- the internationally
Page 21120
1 recognised territory of Croatia
2 force considered at the time.
3 JUDGE ORIE: Yes. But what would be, apart from the military
4 objectives, what may have been objectives or not objectives of some
5 matters not to be desired is how many Croats, how many Serbs would
6 finally populate that area was -- have you any knowledge about any such
7 discussions in which the political leadership was involved?
8 A. No, I did not.
9 JUDGE ORIE: May I, therefore, take it that awareness of
10 Mr. Gotovina of such discussions, or presence during such discussions,
11 that you have no information about that either?
12 A. No, sir, I have not seen anything on that.
13 JUDGE ORIE: Thank you for those answers.
14 Mr. Jones, you may have noticed from my last question that I was
15 referring to Mr. Gotovina. I addressed you as Mr. Jones during your
16 presence here in court. This has got nothing to do with disrespect for
17 ranks or titles. It is my habit to address whoever comes to this court,
18 unless there's a specific reason to do otherwise, just by mister. I hope
19 you will understand that.
20 THE WITNESS: No problem, sir, I can appreciate that.
21 [Trial Chamber confers]
22 JUDGE ORIE: I have no further questions.
23 Mr. Waespi, any further questions for the witness? Have the
24 questions of the Bench triggered any need to put further questions to the
25 witness?
Page 21121
1 Mr. Kehoe.
2 MR. KEHOE: If I can discuss a matter outside the presence of the
3 witness given the fact that he speaks English, but I will tell --
4 JUDGE ORIE: Yes. If there is any matter which should be
5 appropriately addressed in the absence of the witness, Mr. Jones, you are
6 the victim, because it's easier to ask you to leave the courtroom than
7 for all of us to leave the courtroom.
8 THE WITNESS: Okay.
9 JUDGE ORIE: Could you please follow the usher.
10 [The witness stands down]
11 JUDGE ORIE: Mr. Kehoe.
12 MR. KEHOE: Again, Judge, when I answered this question and do it
13 by asking a question with going back, Judge, to the basis of
14 Your Honour's questions, in a sense of, was he privy to any conversation
15 or go through any conversation where the political leadership talked
16 about the level of Serbs. I mean, is Your Honour talking about a
17 specific meeting?
18 JUDGE ORIE: Well, we -- first of all, this Chamber received
19 evidence and don't ask me to summarise all of it, but that matters were
20 discussed, for example, I remember that -- I think it was a discussion
21 that Mr. Galbraith said something about it, about whether or not one
22 wished Serbs who would have left to return, and I remember percentages
23 were used there. I think as a matter of fact, but again I'm just seeking
24 information, I know there are some sources. If my recollection is right,
25 that -- that it appeared in one way or another in the Brioni meeting as
Page 21122
1 well. But I hope you're not testing my accurate knowledge at this moment
2 of where exactly to find it --
3 MR. KEHOE: [Overlapping speakers]
4 JUDGE ORIE: But there is in the evidence, there are a few --
5 there are a few instances where these matters do appear, and I just
6 wanted to know whether this witness was, again, whether he was privy to
7 any such information, whether right or wrong --
8 MR. KEHOE: Yes.
9 JUDGE ORIE: -- so that, at least we can assess whether such
10 information would have had any impact on forming an opinion about a lot
11 of matters, and I'm fully aware that the opinions are not primarily about
12 these kind of matters. At the same time, the witness gave a rather broad
13 opinion about the performance of Mr. Gotovina, especially at the end of
14 his testimony in-chief, there was a rather broad appreciation of -- of
15 how Mr. Gotovina had performed. And I was seeking to -- to find out what
16 kind - just as I did before on documentary evidence - what kind of
17 information may have played a role in forming an opinion because it may
18 not come as a surprise but portions of the sources he apparently has
19 consulted are in a grey area for the Chamber at this moment.
20 MR. KEHOE: My question was actually more specific in trying to
21 be as responsive as I can to the Chamber and not on my client, but
22 primarily as an officer of the court is, you know, the question
23 concerning a political meeting or -- that General Gotovina was present
24 at, I mean, the frame of reference of what political leadership meeting
25 was General Gotovina at, and that's -- that's the source of my dilemma in
Page 21123
1 -- and the reason why, in the main, I raise to my feet because I'm
2 somewhat perplexed by that question by the Chamber. Because I have no --
3 no such political leadership meeting that my client attended.
4 JUDGE ORIE: Yes, I'm just asking the witness whether he knows
5 anything about it, yes or no. And since his sources are unclear, I put
6 it in a very open way, and I was talking about awareness, for example, of
7 such -- I put it would say specifically in a rather broad perspective and
8 context.
9 MR. KEHOE: Yes, Your Honour.
10 JUDGE ORIE: Any reason to -- for further questions to the ...
11 MR. KEHOE: No, Your Honour. Then we could ask the witness to be
12 escorted into the courtroom again.
13 [The witness takes the stand]
14 JUDGE ORIE: Mr. Jones, it appears that there are no further
15 questions for you, which means that we have concluded your -- concluded
16 hearing your evidence in this Court. I would like to thank you very much
17 for coming to The Hague
18 glad that we were able to accommodate you as far as your travelling
19 schedule was concerned.
20 Thank you for coming.
21 THE WITNESS: Thank you. I trust that I have helped. Good look
22 to you.
23 [The witness withdrew]
24 JUDGE ORIE: Since we had this additional session just to finish
25 the testimony of Mr. Jones, there's no reason, I think, to continue and
Page 21124
1 ask whether the next witness is ready. I take it that the next witness
2 will be called tomorrow.
3 There's one small procedural issue I would like to deal with;
4 that is, a decision in relation to the statement of Mr. Sterc, the 92 ter
5 statement of Mr. Sterc, and more specifically on the heading of
6 paragraph 5 of his statement.
7 The Chamber would like to correct on the record its ruling in
8 relation to the 92 ter statement of Witness Sterc, which states on
9 transcript pages 20343 to 20344 that the heading of paragraph 5 of his
10 statement was not admitted into evidence. The Chamber noted that, in the
11 version of the statement that has now been uploaded in e-court, the
12 heading of paragraph 5 has remained, and the Chamber is of the view this
13 need not to be taken out. The version of the statement as now uploaded
14 in e-court can thus remain unchanged and the heading of paragraph 5 is
15 admitted into evidence, as part of the portion of the statement that is
16 admitted into evidence.
17 And this concludes the Chamber's decision on this matter.
18 Is there any procedural issue to be raised at this moment?
19 MR. MISETIC: Yes, Mr. President.
20 With respect to the issue yesterday concerning the,
21 quote/unquote, 92 bis witnesses, Mr. Russo and I have communicated. It's
22 my understanding that the Prosecution may go into other matters that are
23 not directly related to the immediate substance of the witness
24 statements. So we would ask that we be allowed to proof for two reasons;
25 one is that, in essence, these are now 92 ter statements, and so I
Page 21125
1 believe, and I'm sure the Chamber will correct me if I am wrong, that I
2 will have to take the witnesses through the 92 ter attestations prior to
3 admission of the statements into evidence so, to that extent, there may
4 be -- there may be changes in the statements. I don't know that unless I
5 am able to communicate with them or corrections to the statements.
6 Second is, again, I believe we're entitled to try and test the
7 credibility of our own witnesses, and I will tell the Court that I have
8 no intention of - and I've told Mr. Russo this - leading any evidence
9 that is not already in the statement. However, I would just like to
10 proof them just for my own knowledge concerning credibility. But there
11 will be no additional testimony other than what's in the witness
12 statements themselves.
13 JUDGE ORIE: Mr. Russo.
14 MR. RUSSO: Just one point, Mr. President. I didn't mean to
15 communicate to Mr. Misetic that we would be going into matters not
16 directly covered by the witness statements. That's not to say that we
17 may not present evidence or put questions to the witness in order to test
18 the credibility of the assertions they make in their witness statements.
19 So this is a bit of a border-line issue. I'm not sure where the line is
20 to be drawn. Of course, we don't take a position on whether or not the
21 Defence should be permitted to proof the witnesses. That's for the
22 Chamber to determine.
23 [Trial Chamber confers]
24 JUDGE ORIE: Mr. Misetic, did you intend to go through the
25 statements or did you also intend to give an opportunity to the witness
Page 21126
1 to read the statement of the witness which apparently contradicts the
2 evidence?
3 MR. MISETIC: No. I just wanted to meet the -- meet or
4 communicate with them so they could review their own statements, make any
5 corrections, changes, that needs to be made so that the 92 ter
6 attestation can be made under oath. If there are any changes, I will
7 send a supplemental information sheet around, otherwise I will take them
8 through the 92 ter process and then --
9 JUDGE ORIE: Your intention just is to ask them whether there are
10 any corrections to be made --
11 MR. MISETIC: Yes, correct.
12 JUDGE ORIE: -- and whether -- just to prepare the attestation
13 rather than to inform the witness about possible contradictions, et
14 cetera.
15 MR. MISETIC: No. No.
16 JUDGE ORIE: That's --
17 Mr. Russo, under those circumstances, do you have any objections
18 if Mr. Misetic would be allowed, for this limited purposes, to proof the
19 witness.
20 MR. RUSSO: Under those circumstances, Mr. President, we do have
21 no objection.
22 JUDGE ORIE: Yes.
23 [Trial Chamber confers]
24 JUDGE ORIE: Mr. Misetic, within the limits you explained to the
25 Court, set out to us, you may proof the 92 bis/then 92 ter witnesses.
Page 21127
1 MR. MISETIC: Thank you, Your Honour.
2 JUDGE ORIE: Any other procedural matter?
3 If not, then we'll adjourn and we will resume tomorrow,
4 Wednesday, the 2nd of September, quarter past 2.00 in Courtroom III.
5 --- Whereupon the hearing adjourned at 3.53 p.m.
6 to be reconvened on Wednesday, the 2nd day of
7 September, 2009, at 2.15 p.m.
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