1 Monday, 9 November 2009
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.06 a.m.
6 JUDGE ORIE: Good morning to everyone in and around the
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. Deverell.
14 THE WITNESS: Good morning, Your Honours.
15 JUDGE ORIE: I would like to remind you that you are still bound
16 by the solemn declaration you've given at the beginning of your
18 Mr. Cayley, are you ready to continue your examination-in-chief?
19 MR. CAYLEY: Yes thank you, Your Honour.
20 WITNESS: JACK DEVERELL [Resumed]
21 Examination by Mr. Cayley: [Continued]
22 Q. Good morning, General Deverell, do you have all the binders that
23 you need, and do you have a copy of your report in front of you?
24 A. Mr. Cayley, yes I do. And I have my footnotes, thank you.
25 MR. CAYLEY: First of all, Your Honour, if could apply for
1 admission into evidence of 65 ter 2D00632, which you will recall was the
2 last document that we looked at as we broke on Friday. It was the NATO
3 definition of a military governor.
4 JUDGE ORIE: I see that Mr. Hedaraly has no objection.
5 Mr. Registrar.
6 THE REGISTRAR: Your Honours, that becomes Exhibit D1787.
7 JUDGE ORIE: And is admitted into evidence.
8 Please proceed.
9 MR. CAYLEY: Thank you.
10 If we could, please, is it possible, Mr. Registrar, to look at --
11 it is. It has come up.
12 Q. If we could please move on, General Deverell, in your report, and
13 if you could turn to page 51 of your report.
14 MR. CAYLEY: And if, please, we could have Exhibit D409.
15 Q. And here, General Deverell, I'm interested in lines 22 to 37 of
16 page 51. And, in particular, the reference to D409.
17 Do you recognise this document, General Deverell?
18 A. I have nothing on my screen at the moment.
19 Q. Okay.
20 JUDGE ORIE: Mr. Kehoe.
21 MR. KEHOE: Yes, Mr. President, [Microphone not activated] my
22 computer is all down, nothing's down -- the screen is not working. And
23 so I have no communications at all at this point.
24 JUDGE ORIE: We'll seek the assistance of our technical experts.
25 [Trial Chamber and Registrar confer]
1 JUDGE ORIE: Mr. Kehoe, someone will look at it.
2 MR. KEHOE: Someone is here now.
3 JUDGE ORIE: Yes. Could we continue meanwhile. Mr. Misetic you
4 have -- you could share, perhaps, with Mr. Kehoe.
5 Yes, then we'll continue, because with the witness, I do
6 understand that we're now okay.
7 MR. CAYLEY:
8 Q. General Deverell, do you see that document in front of you?
9 A. Yes, I do.
10 Q. And you refer to this in your report at page 51?
11 A. I do, yes.
12 MR. CAYLEY: If we could please turn to page 5.
13 Q. And you can see, General Deverell, at the bottom there's a
14 meeting at 1730 hours which was a meeting in the minister's office of
15 Mr. Susak, Mr. Jarnjak, and Mr. Moric. Do you recall referring to this
16 and reading this part of the document?
17 A. Yes, I do.
18 Q. Can you give the Court your comments that you made in respect of
19 the document?
20 A. Yes. It struck me that two things: Firstly, that quite clearly
21 in my mind there was no discussion in the -- at the first meeting of --
22 what you might call post-conflict operations and that that was discussed
23 or at least touched upon in this meeting at 1730 in the minister's
25 Q. What do you mean by post-conflict operations?
1 A. Well, the management of the result of the operation you were
2 conducting, you know, what happened, how -- how authority was -- was
3 regained, and how order, civilian order, normal civilian life was
4 re-established, the rule of law, et cetera, after the operation had been
5 successfully conducted.
6 Q. Now you note in your report at page 51 that you were -- I'll read
7 to you exactly what you say. You say that:
8 "Colonel-General Cermak went present at the meeting. This would
9 have been a strange omission if it had intended that
10 Colonel-General Cermak was to oversee on behalf of the president or the
11 chief of the Main
12 A. Yes. The reason I said that is that in order to have any idea
13 how you might conduct --
14 Q. Mr. Deverell, I'm sorry, as I said to you last week, because
15 we're speaking the language we have to make sure that we're going at a
16 deliberate pace and make sure we pause between question and answer.
17 A. I apologise.
18 Q. It's my fault.
19 A. The reason I -- the reason I made that comment was that I don't
20 think that you can be in a position to be responsible for overseeing
21 post-conflict operations unless you understand the plan for the conflict,
22 so to speak, how -- how one side was going do achieve its objective. And
23 therefore I would have expected somebody who was going to do that job,
24 going do oversee post-conflict resolution, or the post-conflict phase,
25 I'm sorry, the post-conflict phase, actually at a meeting which discussed
1 the operation.
2 Q. Thank you.
3 MR. CAYLEY: If we could please move on and slightly changing
4 topics. If we could look at D281.
5 Q. And you refer to this on page 19 of your report.
6 Do you recognise this document in front of you?
7 A. Yes, I do.
8 MR. CAYLEY: And if, please, we could, first of all, go to page 9
9 of this particular document.
10 Q. And here, General, I'm interested in lines 28 to 34 of your
11 report on page 19.
12 MR. CAYLEY: And if we could please move down to paragraphs 5.4
13 and 5.5.
14 Q. Now, if could you just briefly read those over, Mr. Deverell,
15 then I will have a question for you.
16 A. Yes, I have seen those. I'm happy I know what those mean.
17 Thank you.
18 Q. Now, what I'm, in particular, interested in is the fact in -- in
19 paragraph 5.4 it states that the reserve battalion shall be stationed in
20 Knin barracks. And then in 5.5, it states again that the reserve company
21 there of the HV 4th Guards Brigade shall be stationed in Knin southern
23 Now, you were discussing with us last week about the duties of
24 the garrison commander. Now, was this document sent to the
25 Knin garrison?
1 A. No. I think if we look at the distribution list it was not sent
2 to the Knin garrison.
3 Q. And what is your comment about that, based on the fact that these
4 units were being placed within garrison facilities in Knin?
5 A. I was quite surprised that the garrison commander was not made
6 aware, at least made aware that they were going to be there. And indeed
7 in other armies it would have been his responsibility to have allocated
8 the resources, the garrison resources, and not the operational commander
9 to dictate who went where. But that is -- that is a matter of detail.
10 The fact was he was not informed, not warned, that such a deployment was
11 going take place.
12 MR. CAYLEY: If we could go the last page of this particular
13 document. And if -- is it possible to -- it is very very small. If that
14 could be -- yeah, thank you.
15 Q. Now, General, you make some observations about this
16 organisational chart of the Split Military District as of
17 9th August, 1995
18 this document.
19 A. Yes. This is a perfectly normal what we would call an
20 organisation of battle, and ORBAT, which tells everybody who -- what
21 constitutes the force for which those orders have been prepared. It --
22 it is entirely back to the point that the commander must know who he has
23 under his command and those under his command know that they are
24 commanded by him or -- what organisation they lie within. And therefore
25 who has the authority.
1 What didn't surprise me particularly but is clearly not there is
2 Knin garrison. And, therefore, I would deduce that they were not part of
3 the operational order of battle.
4 Q. Thank you.
5 MR. CAYLEY: And lastly if we can look at D774 --
6 MR. HEDARALY: I'm sorry.
7 JUDGE ORIE: Mr. Hedaraly.
8 MR. HEDARALY: If -- if I could just seek clarification. If it
9 is inappropriate, I can do it in cross-examination. I was confused
10 whether the question related to the Split Military District as of
11 9 August; I see this is the Knin forward command post of the Split
12 Military District. I just wanted to clarify, although I'm happy to do it
13 in cross-examination.
14 MR. CAYLEY: Yeah, I think that would be fine in
15 cross-examination, Your Honour. Thank you.
16 JUDGE ORIE: Then we leave it to that.
17 Please proceed.
18 MR. CAYLEY: If we could look at D774.
19 Q. General, do you recognise this document?
20 A. Yes, I do.
21 Q. And can you explain to the Judges what it is.
22 A. This is a communication plan, Your Honour. And all operations
23 will have a communication plan so that people know not only how they
24 communicate, things like radio frequencies, et cetera, but they also know
25 the nicknames and code words such as may be required. And it -- it
1 happens -- it is attached, it is part of -- an integral part of any
3 Q. Now, it's a lengthy document. I'm not going to go through page
4 by page. But in your report you noted that Knin garrison was not part of
5 this communications plan. Can you make your comments about that, please.
6 A. If you're not part of the communications plan, then there's no
7 way that you can receive information. There's no way -- therefore you
8 can analyse, decide, plan, and there's no way can you play any part that
9 that operation, because have you no way of imparting your ideas or such
10 plans as you may have. Without communications, you cannot be seen part
11 of the operation.
12 Q. So what is the significance of the fact that Knin garrison is not
13 within this communications plan?
14 A. They were not part of the operation element of
15 Split Military District.
16 Q. If we could move on, please, to part 12 of your report, which is
17 dealing with the military police.
18 MR. CAYLEY: And if, please, we could have D267 brought up,
20 Q. Now, this is an order, General, of the 2nd of August, from
21 Major-General Lausic to a number of military police battalions that can
22 you see there. Have you -- you've seen this document before?
23 A. Yes, I have.
24 MR. CAYLEY: If, please, we could go to page 4, paragraph 10.
25 Q. And I'm interested, General, in the second paragraph of that
1 particular complete paragraph 10 where it starts:
2 "I appoint Major Ivan Juric ..." and it continues to the end of
3 the paragraph stating that the commanders of the 72nd VP Battalion and
4 73rd VP Battalion should be subordinated to Major Ivan Juric.
5 What were your comments about that part of that document,
7 A. Well, I think -- this is my comments. I think, well, this was
8 very unusual because you had here a group of officers with Major Juric in
9 charge of them placed in command of in that 72 and 73 were subordinated
10 to Major Juric and this is -- this is unusual because the -- it broke the
11 normal chain of command.
12 MR. CAYLEY: And if we could go to the next page.
13 Q. And, again, the last three lines of the first full sentence that
14 can you see on that page:
15 "Commanders of the 72nd Battalion and 73rd VP Battalion to
16 Major Ivan Djuric who shall report to the VP administration until 2000
17 hours every day starting from 4 August 1995."
18 What do you have to say about that?
19 A. Well, it shows that those commanders had an obligation to report
20 to Major Juric who reported direct to General Lausic. I used the -- I
21 have subsequently used the phrase that Major Juric was his - and it's a
22 military phrase - directed telescope. There was some confusion,
23 Your Honour, with -- within the responsibilities for military police
24 operations. The orders, in my opinion, were somewhat ambiguous and,
25 indeed, at one stage had to be clarified. And I think that was an effect
1 the -- the way that General Lausic attempted to ensure that there was
2 proper control of the military police down the line the of military
3 police administration.
4 MR. CAYLEY: If we could have P879, please.
5 Q. Now, this is a document dated the 5th of August. And it's a
6 report by Major Juric. Do you recognise this document?
7 A. Yes, I do.
8 MR. CAYLEY: And if we could please turn to page 2,
9 paragraph 1.4.
10 Q. Now, this is, as can you see, Major Juric reporting that a
11 military police company has been established in Knin with military
12 policemen coming from the 72nd Military Police Battalion and the 66th
13 Military Police Battalion. What comment do you have about this?
14 A. Well, it was a -- quite clearly a combined unit, and it was
15 Major Juric reporting directly that it had been formed, and its tasks,
16 supervising patrol placed at the town entrance and exit, et cetera,
17 et cetera. And this was part of his reporting obligation back to
18 Major-General Lausic.
19 Q. Now, just to remind you before we move on to the next documents
20 of the allegations in the indictment, and you will recall I read it out
21 to you last week, I'm not going to read it out all again, but I will read
22 to you one part of it where it alleges that Mr. Cermak possessed
23 effective control over ... and then it lists a whole series of units.
24 And then it says "a combined military police company consisting of
25 elements or units from the 72nd and 73rd Military Police Battalions."
1 Now, ignoring the 73rd aspect, because I think that is a mistake
2 in the indictment - I don't know if my learned friend can correct me if
3 I'm wrong - but now I want to specifically address that issue with you.
4 MR. CAYLEY: And if, please, we could have D789 on the screen.
5 Q. General, are you ... sorry, did you want to --
6 A. [Overlapping speakers] ... no, I'm -- I'm fine. Thank you.
7 Q. Have you seen this document before?
8 A. Yes, I have.
9 Q. Can you just explain what this document is.
10 A. Yes. This is an instruction to carry out the rotation of the
11 military police forces in Knin and gives details of who is in command,
12 who is -- who are the platoon commanders, et cetera, and when this is to
14 MR. CAYLEY: If we could go to the next page.
15 MR. HEDARALY: If I could just seek my learned friend's
16 assistant, could you please guide me where D789 is referred to in
17 Mr. Deverell' report? I'm sorry, I can't seem to find it.
18 MR. CAYLEY: If we could wait until the break, and then I'll
19 inform you, because I can't find it at this moment.
20 JUDGE ORIE: I take it that Mr. Hedaraly wants to look at the
21 context of where we find the report. Oh, this document addressed, so
22 therefore it would not be.
23 MR. CAYLEY: I can. It is, in fact, it's footnote 174, and it
24 refers to three documents.
25 JUDGE ORIE: Please proceed.
1 MR. HEDARALY: Thank you.
2 MR. CAYLEY:
3 Q. Now, General, you see to whom that document is delivered. Do you
4 have any comments about the addressees on that document?
5 A. Yes. It does not include Knin garrison headquarters, in general,
6 or General Cermak in particular.
7 Q. And what does that indicate to you, if anything?
8 A. It demonstrates two things. Firstly, that he had no authority
9 over it, otherwise he would have been told; and secondly, it also
10 demonstrates that they didn't -- were not particularly interested in
11 telling General Cermak when they were changing over, which does strike me
12 as being, as it were, strange, because you would have thought that if
13 General Cermak had had any responsibility, authority, then he would have
14 needed to know when that change-over was taking place, because
15 change-overs affect the capacity of a unit to conduct their operations.
16 There is quite clearly an administrative pause.
17 So I would have expected, had he had any responsibility at all,
18 for him to be have been informed that it was happening.
19 Q. Thank you.
20 MR. CAYLEY: If we could now, please, look at D791, which is
21 referred to on page 48.
22 Q. General, have you seen this document before?
23 A. Yes, I have.
24 Q. And you can see that it is a report by the commander of the
25 Independent Knin Company about duties that were carried out on the
1 19th of August in Knin. And you can see the addressees in the top
2 right-hand corner, the military police administration, general military
3 police section.
4 A. Yes.
5 Q. Do you have any comments about this document?
6 A. No. I'm sorry, yes, I do. Once again, it demonstrates to me
7 that General Cermak had no responsibility for the military police because
8 it -- it talks about something they did without informing him.
9 MR. CAYLEY: And if, please, we could have D770.
10 Q. And I will give you the reference in a moment, Mr. Hedaraly.
11 It's on page 41.
12 General, if you need to refer to your footnotes, you can put them
13 in front of you.
14 A. I'm fine. I'm very happy there, thank you.
15 If I dive out of the way, Your Honour, it's because I'm looking
16 at my footnotes, I'm afraid.
17 JUDGE ORIE: Yes, that's -- that's all right.
18 MR. CAYLEY:
19 Q. Do you recognise this document? And I will get to the subject
20 matter, but if you just look at the header sheet.
21 A. Yes, yes, I do.
22 MR. CAYLEY: If we could please go to the next page.
23 Q. And this is an order, as you can see, to hand over the protection
24 of the General Cermak to another unit.
25 MR. CAYLEY: And if we go to the next page.
1 Q. It's sent directly to the military police, 66th Battalion. And
2 on the front page, you will have noticed it was sent for information to
3 Mr. Cermak.
4 Can you make some comments about this document?
5 A. Yes. I mean, an information copies is a matter of -- I mean,
6 firstly, in some ways, courtesy, and secondly, to inform him that
7 something will happen that he may have an interest in, but he has to take
8 no action. And it, once again, reflects to me that he is not part of the
9 decision-making process in this.
10 Q. Thank you.
11 MR. CAYLEY: If we could now, please, turn to D788, which is on
12 page 42 of the report.
13 Q. Have you seen this document before?
14 A. I have.
15 Q. What comments do you have about this document?
16 A. Well, given that General Cermak had no authority with the
17 military police, which we've seen demonstrated, because Major Lausic was
18 given the -- was the superior officer to the Knin military police
19 company, because they were subordinated to him --
20 Q. You said Major Lausic there; did you mean Juric?
21 A. I meant -- I do apologise. Major Juric.
22 General Cermak had no authority to issue such an order.
23 Q. Now, you do make some comments on why this order you believe was
24 issued in respect of the preambulary paragraph which talks about
25 establishing order and discipline between the Croatian army and UNCRO
2 A. Yes, I do. I mean, I believe, from reading the -- the -- or
3 looking at the context, that General Cermak, who had been in Knin two
4 days - and we must remember that he had had almost no preparation time
5 for this and had no experience in dealing with these matters - was in
6 fact meeting a demand that had been identified to him through his -- his
7 discussions and -- and what people had been telling him. He clearly
8 thought or somebody had asked him to make sure that there was a control
9 at the entrances to the UNCRO barracks, and he -- as part of his
10 coordination and cooperation requirement as a garrison commander,
11 although I guess he didn't realise he had it, I think he felt that he had
12 to do something. He demonstrated -- he had to demonstrate that he was
13 going do something, and, indeed, he wanted to achieve the -- the control
14 of those entrances to the barracks. And he issued an order, but he no
15 authority so to do.
16 Q. Did you see any evidence as to whether or not this order was ever
17 carried out?
18 A. I saw no evidence that the order was carried out at all.
19 MR. CAYLEY: If we could look, please, at D303 which also on
20 page 42 of the report.
21 Q. Have you seen this document before?
22 A. Yes, I have.
23 Q. What comments can you make about this document?
24 A. A very similar comment. I know that Brigadier-General Forand was
25 pressing General Cermak in his meetings to do something about the
1 equipment that had been stolen. Again, I think this is an example of
2 General Cermak attempting to be helpful and to assist UNCRO who, after
3 all, were then trying to -- to reduce their commitment in line with the
4 agreement. And, again, he issues an order really trying to demonstrate
5 that he was doing something but not being aware that he no authority to
6 give that order and there was no authority to issue that order.
7 JUDGE ORIE: Mr. Cayley, could I seek some clarification on one
8 of the previous answers.
9 Mr. Deverell, I'll just read to you how it was -- how it appears
10 on the transcript.
11 You said:
12 "He clearly thought or somebody had asked him to make sure that
13 there was a control at the entrance of the UNCRO barracks and he, as part
14 of his coordination and cooperation requirement as a garrison commander,
15 although I guess he didn't realise he had it, I think he felt he had to
16 do something."
17 Now, what didn't he realise that he had it, because that, at
18 least, I can't understand that fully from this sentence, what he realised
19 he didn't have.
20 THE WITNESS: Your Honour, I'm sorry. I didn't articulate that
21 very well.
22 One of the problems I think we have here is that General Cermak,
23 who had been put into this job, as I've said we've discussed extensively,
24 without any real time to prepare and without any of the experience that
25 was required and without a substantial staff to give him guidance, would
1 have been, I would suggest - and my deduction is that he would have been
2 lacking in understanding as to exactly what powers he had and what powers
3 he didn't have. There is this element of command and -- I'm sorry,
4 coordination and cooperation which a garrison commander is supposed to
5 conduct with other organisations which we have referred to. I was merely
6 trying to, rather, inarticulately to draw attention to this -- this
8 I do not believe he understood the limits of his authority. And
9 that is the main reason why he wrote that order.
10 JUDGE ORIE: So what you intended to say is that you guessed that
11 he didn't realise that he had no authority, although he was aware of his
12 coordinating role, coordination and cooperation.
13 THE WITNESS: He had a coordination and cooperation role. I do
14 not think -- I would suggest he was not aware of that and he certainly
15 was not aware -- was not aware of the authority that he had, and didn't
16 realise -- I'm sorry, this is rather complicated. He did not realise how
17 little authority he had.
18 JUDGE ORIE: So should I then understand your answer to be that
19 he wasn't aware that his role was limited to coordination and
20 cooperation, rather than having the authority to issue the kind of orders
21 he issued?
22 THE WITNESS: I think that is it a fair assessment, Your Honour.
23 Thank you.
24 JUDGE ORIE: Thank you.
25 Please proceed.
1 MR. CAYLEY: If we could -- if we could please look at D503.
2 Q. General, you've seen this document before. This is on page 42 of
3 the report.
4 A. Yes, I have. I have seen it, yes.
5 Q. And if we could just go to the second page so that you can see
6 all of the document.
7 What do you have to say about this document?
8 A. Exactly the same as I've said about the first two. This is an
9 example of General Cermak responding to a situation that was being
10 explained to him, given to him by UNCRO, attempting to help UNCRO find
11 these vehicles, to get their property back. He actually writes to both
12 commanders of the military police and the civil police and says that they
13 shall be answerable to him, when he no authority so to do.
14 MR. CAYLEY: If we could look at D304.
15 JUDGE ORIE: Mr. Cayley, this all appears in the report, and to
16 say that it should be highlighted because it might fail to have our
17 attention, well, that -- a lot of attention has been given to these
18 orders and the authority to issue these orders. I think at least five,
19 six, or seven witnesses have given their views, and the report is quite
20 clear on that. So I wonder why it has to be highlighted again.
21 MR. CAYLEY: I'm actually coming to the end of this now,
22 Your Honour. I'm -- I'm not going show any more orders. I'm just going
23 to show two letters, and then I'll finish with it and move on to another
24 subject. Thank you.
25 JUDGE ORIE: Yes. Perhaps I should have asked it that way.
1 Please proceed.
2 MR. CAYLEY:
3 Q. Now, General, you have seen this before too?
4 A. Yes, I have.
5 Q. If you could just be allowed to read it onto the second page.
6 Can you explain what deductions you drew from this document?
7 A. Firstly, that, as he clearly says, he's had no -- there has been
8 no success in finding these vehicles. And, secondly, he does what
9 perhaps he should have done from the start, realised that it is the chain
10 of command, it is the operational command, who really has the
11 responsibility down the chain of command through the brigades and to the
12 battalions to find these vehicles. They have the manpower, they also
13 have the military police support, and he is really now beginning to
14 learn, I deduce, that this is the way he should have done things, because
15 it is General Gotovina who is able to issue the proper instructions that
16 these pieces of equipment should be looked for and, if found, handed
18 Q. And without looking at that document, you've actually seen that
19 and referred to in your report --
20 A. Yeah.
21 Q. -- the letter that General Gotovina writes to other units in the
22 Split Military District?
23 A. [Overlapping speakers]... I have, yeah, as a result of this.
24 And I would say that that was the proper way of doing it, the effective
25 way of doing it.
1 Q. And that's D305.
2 If we could now turn to part 13 of your report.
3 And this is the part entitled "Ivan Cermak and the Civilian
4 Authorities in Knin." And, again, these are -- the documents that are
5 referred to here are documents that the Court has seen, so I'm not going
6 to go through all of them. But let's look at a few and then you can
7 certainly give your comments to the Court.
8 MR. CAYLEY: If we could have D298.
9 Q. This is on page 49 of your report.
10 What comments, if any, do you have about this document?
11 A. We know that there was a requirement, and one of the main reasons
12 that General Cermak was sent to this area was to help with the -- as have
13 I referred to it, the urban regeneration of Knin. And this is an example
14 of him doing just that. It demonstrates that he needs the assistance of
15 UNCRO to help him do this, and there is some discussion about this in a
16 series of reports. And this is -- this is a sign of him carrying out
17 that task.
18 Q. And we'll skip the next document but go to D1125, which is also
19 on page 49.
20 You've seen this document before?
21 A. I have.
22 Q. And what comments do you make about this?
23 A. Again, this is an attempt by him to -- a successful attempt, I
24 believe, to ensure that there is the proper access to fuel for both the
25 Croatian army and I would suggest, in general terms, to the civil
1 population and is part of his urban regeneration.
2 Q. And let's -- you've referred to quite a few documents here, but
3 let's look at one more, which is D1120, page 49 of the report.
4 You've seen this document before?
5 A. Yes, I have.
6 Q. Have you ever seen an order to a bank before, General?
7 A. No, I haven't. I haven't actually seen an order to a petrol
8 station either, as it so happens. But I have not seen an order to a
10 Q. And what comments, if any, do you have about this document?
11 A. Well, the first comment is, of course, again, it's a continuation
12 of the urban regeneration. I have no idea why it was written as an
13 order. I have seen nothing in my reading of all the documents that
14 appears to give him the -- the authority to write an order to a bank.
15 But he was a businessman; it may have been this was the final act in a
16 series of conversations which he will. I mean, I deduce that this was so
17 and that he decided to finalise it, to put a stamp of authority on it by
18 calling it an order. But I -- I would doubt whether it had any status as
19 an order.
20 If we could now, lastly, go to part 14 of your report. And here
21 I just really just have a few questions about this.
22 This is Ivan Cermak and international organisations in Knin.
23 Now, you said on Friday that you yourself had had some experience
24 of dealing with international organisations in Bosnia. Can you just
25 remind us very briefly of what you said?
1 A. I think I -- the points I was trying to make was that
2 international organisations had a sort of a dynamic of their own,
3 Your Honour. Having been a member of one, you tend to look for the most
4 senior officer you can find, the most senior person you can find, because
5 he, as far as you are concerned, will the person who can deliver what you
6 want and also be able to coordinate and cooperate with you.
7 One thing you must do as an international organisation is know
8 that you have made the right choice, and you really have to look behind
9 the person to see what network what he has, what network he's using, what
10 staff he has, whether he has a properly constructed staff. And if he
11 hasn't or she hasn't, then possibly you're using -- you're going to the
12 wrong person. And that is -- that is a particular important area.
13 The second area, if this is what Mr. Cayley's referring to, is
14 the choice of a point of contact. A point of contact should really be a
15 facilitator, a person who does not have direct authority, a go-between, a
16 conduit of information who can bring people together in order to reach
17 agreements that have probably been previously decided.
18 In my experience, it's not helpful to have a point of contact who
19 is themselves are themselves commanders because they carry too much
20 responsibility; they're not able to negotiate. Negotiation is a very
21 important part of this. They're not able to negotiate as easily as
22 somebody who does not have that authority.
23 Q. In Bosnia
24 of contact?
25 A. The point of contact that we had, that is, the -- the NATO force,
1 with the entity armed forces the armed forces of the Republika Srpska and
2 the Federation was actually a brigadier. He did not have any command
3 responsibilities at all.
4 Q. Now, you've said at the beginning of part 14 that of the three
5 tasks that he, referring to Mr. Cermak, was given, the most complex and
6 sensitive was to be the point of contact for international organisations.
7 Why do say that?
8 A. The international organisations themselves are very complicated;
9 they have very sensitive agendas. Often you're dealing with
10 organisations that have very different agendas. And you are particularly
11 exposed because they are reporting back to international --
12 international -- sorry, headquarters in international -- I will say that
13 again. They are reporting back to international headquarters in other
15 Also, they -- they have a very close relationship with the press
16 or perhaps the press has a very close relationship with them. And,
17 therefore, what you say is often directly reproduced on the media.
18 Q. General, I don't have any further questions for you.
19 MR. CAYLEY: Thank you, Mr. President.
20 JUDGE ORIE: Thank you, Mr. Cayley.
21 Mr. Kehoe, are you the next in line?
22 MR. KEHOE: Gladly, Mr. President.
23 JUDGE ORIE: Yes.
24 Mr. Deverell, will you now be cross-examined by Mr. Kehoe.
25 Mr. Kehoe is counsel for Mr. Gotovina.
1 THE WITNESS: Your Honour, thank you.
2 Cross-examination by Mr. Kehoe
3 Q. Good morning, General.
4 A. Good morning, Mr. Kehoe.
5 Q. General, I'm -- if you can bear with me I'm just going to jump
6 around in your report on a few things. And if it seems a bit confusing,
7 I'm certainly not going to go through the recitation that Mr. Cayley went
8 through. So if you can bear with me on that score.
9 Now, in a couple of issues that you referred to and the first I
10 would like to talk to you about is the general receipt of information.
11 Several times during the course of your report, and I believe in
12 discussions with Mr. Cayley you talked about General Cermak as a
13 recipient for information only for which he did not have to take any
14 actions. And, you know, the case in point that I believe you cite is
16 MR. KEHOE: If we could bring that up. It is the Mario Tomasovic
17 document. It will come up on the screen.
18 Q. For ease of reference, I believe this is mentioned on page 39 of
19 your report, General.
20 And it is a document that is well known to the Chamber that comes
21 from the the assistant commander for political affairs for the
22 Split Military District, and it goes to assistant commanders for
23 political affairs. An outlines various items, beware -- make sure
24 looting and burning and theft doesn't take place, that the second
25 paragraph the President Tudjman and the country has condemned such
2 And on the next page is where you note that it is to the
3 Knin garrison for information. And if we go three lines up, it is also
4 for General Gotovina as the commander of the Split Military District for
6 Now, General, based on the research that you have -- you
7 know - do you not? - that this was part of a series of orders and moves
8 by at least General Gotovina to condemn crime and to put his subordinate
9 commanders on notice that they have to go out and stop any undisciplined
10 activity. Isn't that right?
11 A. That's correct.
12 Q. And so when you went through this - and I know you went through,
13 for instance, if we can turn to -- if I can just mention it, it's P71 -
14 where, on the 9th of -- and this is in the Split Military District diary,
15 General Gotovina says that the military police is to take security
16 control, war-booty, and take photographs, and make video recordings at
17 the end of the operation. People will be called before military
18 disciplinary court.
19 And just prior to this -- this order, or this document that you
20 cited by -- in D918, we have D204.
21 MR. KEHOE: If we could bring that up.
22 Q. I just referred you to an oral order, but, I believe, this is the
23 hard copy order that you referenced, D204, General Gotovina's order of
24 the 10th, two days prior to Captain Tomasevic's notice.
25 And there was sequence in pattern to these, was there not,
2 A. Yes, I recall that.
3 Q. Did you assess that the command of the Split Military District
4 was making attempts to stop any ill-disciplined activity?
5 A. Absolutely.
6 Q. And, General, if I pause I'm waiting for the translators to catch
7 up so ...
8 Now, the next issue I would like to -- to address is the military
9 police which Mr. Cayley touched on very briefly. And on pages 20 and 21
10 of your report you note that that the military police have their own
11 chain of command. But I'm more interested in -- in the comments that you
12 make on page 46 and 47.
13 MR. KEHOE: If we can turn to that. And that's in D1084, page 46
14 and 47. I believe that's the exhibit number for the report. My learned
15 friend Mr. Cayley may be able to help me. I believe it is D284 -- excuse
16 me, 1084.
17 Q. Now, I'm interested in this -- this assignment of Major Juric to
18 Knin, and I believe you referred to it as a telescope, that he sent his
19 men to Knin. Is that right, General?
20 A. I used the word "directed telescope," yes.
21 Q. The directed telescope?
22 A. The direct the telescope.
23 Q. And during the course of your discussion with Mr. Cayley, we went
24 through some documents between Mr. Juric and Mr. Lausic, and Mr. --
25 Colonel Budimir and Mr. Lausic and Mr. Juric, and when we looked at that
1 documentation, we saw Juric filing reports directly to Mate Lausic,
2 General Mate Lausic, and also -- you also commented that those reports
3 were not sent to General Cermak. But they were also not sent to
4 General Gotovina either, were they?
5 A. To my knowledge, no.
6 Q. Now, if I may, and you talk about this on page 44 of your report,
7 if we can just discuss the rationale of having the military police
8 independently investigate crime, which I take from your report at 44 is,
9 in fact, the situation not only in the HV but likewise the situation in
10 the -- armed forces of the United Kingdom. Is that right?
11 A. That's correct.
12 Q. Give us the rationale for having a -- an independent military
13 police investigating crime - and when I say "independent," independent of
14 the command structure - that they may be in the same geographical area
16 A. I mean, it's quite simple, really. It's important to have your
17 criminal investigation capability independent of the chain of command
18 because it might at some stage be investigating the chain of command.
19 The chain of command might have -- might feel that they do not want a
20 proper investigation conducted. And, therefore, there is a great
21 advantage in having those two separated.
22 Q. And is it clear from the documentation that you examined,
23 General, that Mate Lausic took very significant steps to ensure that the
24 military police and him personally stayed in control of those
25 investigations by requiring that daily reporting from Major Juric?
1 A. Yes. It was -- very careful separation. And, indeed, the --
2 there were instructions that brigades or the operational chain of command
3 only had a cooperation and coordination relationship with the military
4 police over what were called regular police tasks. And they are
5 relatively limited ones.
6 Q. Now, General, you mentioned during the course of your report that
7 the comment "regular police tasks" isn't defined. But based on your
8 analysis of common police tasks, investigating crime is not one of those
9 common police tasks, and investigating crime is something that was in the
10 individual domain of the -- the sole domain of the military police.
11 Isn't that right?
12 A. That is as I would expect to see it, and that is as I found it
13 when reading the documents.
14 Q. And when I --
15 MR. CAYLEY: I'm not objecting, but I'm just noticing,
16 Mr. President, there's - and I don't think it's anybody's fault - we're
17 talking about regular police tasks then Mr. Kehoe talks about common
18 police tasks.
19 MR. KEHOE: I meant "regular." I stand corrected, Mr. Cayley,
20 thank you.
21 I meant regular police tasks which is, I believe, the correct
22 terminology. I appreciate that, Mr. Cayley.
23 Q. Now, if we could just move to another subject, and this also
24 touches upon a document that Mr. Cayley addressed with you this morning
25 which had to do with the planning for post-conflict operations. And if I
1 could read for you what you said just this morning. And this would be, I
2 believe, page 4, lines 13 to 19. And, General, if I'll read this slowly,
3 and it says:
4 "The reason I -- the reason I made that comment was that I don't
5 think that you can be in a position to be responsible for overseeing
6 post-conflict operations unless you understand the plan for the conflict,
7 so to speak, how one side was going do achieve its objective. And
8 therefore, I would have expected somebody who was going to do that job,
9 going do oversee post-conflict" -- it's -- the terminology is -- I think
10 we have a mistake there, but it says "phase, actually at the meeting."
11 Essential what you were saying was that if General Cermak was
12 going to be responsible for the post-conflict resolution, he would have
13 been at the post-conflict resolution meetings. Is that right, General?
14 A. Yes.
15 Q. Now, the document that we were talking about on that score was
16 D409, I believe, Mr. Cayley discussed that with you.
17 MR. KEHOE: And if we could just bring that up. D409.
18 THE WITNESS: If I, while we're waiting, could clarify something,
19 Mr. Kehoe.
20 Q. Please do.
21 A. Not only do I believe that anybody responsible for post-conflict,
22 the post-conflict phase should have been at the post-conflict phase
23 meeting, they should have also been at the meeting which discussed the
24 plan of how to get to the post-conflict phase. Namely, the operational
25 planning meeting.
1 Q. I understand. And let's just go through that just briefly. And
2 I do believe that in your report, again, at page 51, you discuss this
3 meeting and General Cermak's participation or lack thereof. And in
4 talking about this, you note that this would have been a strange
5 omission. This is page 51, line 26. This would have been a strange
6 omission if it had been intended that General Cermak was to oversee on
7 behalf of the president or the chief of the Main Staff, the
8 post-operational phase.
9 Now, if we look at the document that's before us, this is a
10 multi-page document that has, in fact, two meetings. The 10.00 meeting
11 at which General Gotovina is present is the, as you know, an operational
12 meeting to discuss the plans for Operation Storm.
13 Is that right, sir?
14 A. That's correct, yeah.
15 Q. And I believe we -- if we just turn to, for instance, page 3, we
16 have Admiral Domazet talking about the numbers of possible men. And this
17 is for the entire Operation Storm, not just Sector South. Minister Susak
18 talking about the amount of troops that are mobilised.
19 MR. KEHOE: And then if we can go to page -- two more pages up,
20 page 5 in the English.
21 Q. Now there is this -- there is the meeting at 1730 on the same
22 day, General, where Minister Susak, from the Ministry of Defence,
23 Minister Jarnjak for the Ministry of the Interior, and the assistant
24 minister of the interior, Josko Moric is present, and there is no
25 General Cermak, and there's no General Gotovina either.
1 Now, expanding from your comment in your expert report, if, in
2 fact, someone like General Gotovina was going to be responsible for
3 post-operational resolution, if you will, you would have expected him at
4 this meeting as well, would you not?
5 A. Yes, I would.
6 Q. So when we were talking about a post-operational phase, again, if
7 you're going to responsible for it, you have to be part of the planning
8 ahead of time, right?
9 A. Correct.
10 Q. Now, it was clear - was it not, General? - that this -- and I
11 believe you touched upon this just briefly with Mr. Cayley when talking
12 about the military governor issue and the fact that military governor --
13 only being a term of international -- only is involved in occupied
14 territory, i.e., a different country other than your own?
15 A. Yes.
16 Q. And it was clear on this that the idea from the beginning was
17 that once the HV took the ground in the Krajina that the civilian
18 authorities would say immediately come in and take over and restore
19 constitutional order; is that right?
20 A. That's correct.
21 Q. And I think that -- I do believe that you reviewed D1634, which
22 is a presidential transcript of 4 August 1995.
23 MR. KEHOE: If we can just go to that front sheet, D1634. And if
24 we could turn to page 7 in the English, comments of Minister Jarnjak.
25 If I can just check to see what it is in the Croatian. I think
1 that's at --
2 Q. Minister Jarnjak of the Ministry of Interior notes that:
3 "Mr. Prime Minister, alongside participating in this combat
4 segment, what the defence minister was talking about in agreement with
5 the very -- with the minister of defence, we have prepared 3.500
6 policemen in regular blue uniforms from the north-west and northern part
7 of Croatia
8 of them have already been sent to Zadar, Gospic, and Sibenik because as
9 the army enters the area, the military police follows which secures the
10 line and, immediately after, the regular police enters the area and takes
11 over all those tasks. The regular police is obligated to conduct,
12 according to the constitution and the law, and those are maintaining
13 public peace and order, protection of life and property."
14 Now, consistent with -- that clearly is consistent with the
15 meeting that takes place on the 2nd; is it not, sir?
16 A. Yes.
17 Q. That the army is going to go in, the military police follows,
18 then immediately the civilian police come over and restore constitutional
20 A. Yes.
21 Q. And the idea from your reading of these documents was that the
22 HV -- the army itself would move on to other tasks. Isn't that right?
23 A. That's correct.
24 Q. Now, if we could move back --
25 JUDGE ORIE: Mr. Hedaraly.
1 MR. HEDARALY: I'm sorry, if we may just -- just so that the
2 record is clear, I think that Mr. Kehoe referred to D1634 as a
3 presidential transcript. It's a transcript of an a closed session of the
4 government meeting. Just so there is no confusion later on. There is no
5 issue. I think Mr. Kehoe will see that but ...
6 JUDGE ORIE: Mr. Kehoe, [Overlapping speakers]...
7 MR. KEHOE: Thank you, sir. I do believe you're 100 per cent
9 Q. Now, if we could just flip back to D409.
10 General, this the was the document we were talking about
11 previously, the 2 August 1995
12 Storm. And it's clear, during this, that General Gotovina is an
13 operational commander about to engage in a substantial military operation
14 in the area. And based on your career, General, and your unique
15 position, not only within the United Kingdom, but throughout the western
16 world, I mean, tell us a little bit, General, if you will, about the
17 duties and the responsibilities of an operational commander. I mean,
18 what's on his mind, what's going on when an operational commander is
19 conducting combat operations both before, during, and after?
20 A. Before it is quite clearly the planning phase, and, indeed, the
21 planning phase is possibly demanding -- because it requires the greatest
22 intellectual conceptual effort, that is where the idea is created. It is
23 not half as time-consuming and the coordination phase. Once the orders
24 have been given, are things in the right place, is the -- does the plan
25 stand up to the realities of the logistic -- the logistic requirements
1 and so on and so forth, is the intelligence still supporting the basic
2 thrust of your plan.
3 So the commander is absolutely focussed, depending on how complex
4 the plan is and how large the organisation is, is absolutely focussed on
5 that plan and the implementation of that plan. And once you have gone
6 into your -- you've started conducting your plan, then whatever work you
7 were doing beforehand is doubled. Because you have to monitor, analyse,
8 continue to decide, and we have a thing called planning which is a
9 continuous activity. This may sound obvious, and I apologise if it does,
10 but often people believe that you have plan and you merely go through the
11 steps rather like playing a board game.
12 My experience is that once you actually confront the reality,
13 then your planning activity becoming more frenetic and more demanding.
14 So the commander is absolutely focussed, and he does not have time to
15 deal with other matters, and has to prioritise very profoundly at times
16 on what he is to concentrate on.
17 Q. Now, General, you know based on your overall knowledge of this
18 sequence of events, not only with Operation Storm, but that after
19 Operation Storm -- pardon me, Operation Storm was preceded by several
20 combat actions in Bosnia
21 General Gotovina set up the active defence order that you were looking at
22 this morning, and then you also note that the HV, in conjunction with
23 other armies, the HVO and the Army of Bosnia and Herzegovina, embarked on
24 additional offensive operations against the VRS in
25 Bosnia and Herzegovina.
1 You know that based on --
2 A. Yes.
3 Q. -- your knowledge coming to this Court.
4 Now, General let's take that and talk about the focus of an
5 operational commander moving into Operational Storm; getting read for an
6 active defence; resupplying, replenishing his troops; moving onto the
7 line; and moving forward. I mean, what kind of focus and what kind of
8 energy does and operational commander have to bring to bear to accomplish
9 those tasks?
10 A. Very substantial, physical and mental. And, again, I go back to
11 the -- the idea of prioritisation. And he will wish to ensure that all
12 those things which can be looked after by somebody else are looked after
13 by somebody else. It is -- it is in his interests, therefore, to ensure
14 that he does not have a legacy of either peacetime responsibilities or a
15 legacy of responsibilities that he has -- were created by the ground that
16 he has previously taken.
17 Q. So, General, you have reviewed the -- the video of General
18 Cermak -- excuse me, of General Gotovina speaking to his troops on the
19 morning of the 6th. Have you not, sir?
20 A. I have.
21 Q. And in that vein, sir, you hear General Gotovina saying some
22 rather -- one might say stern things to his subordinate commanders as he
23 is taking them to the map to move to the next phase of the operation, but
24 he is also turning over the urban regeneration plan, as you call it, to
25 General Cermak in that same meeting.
1 Tell me, General, I mean, as an operational commander, is that
2 something that, if you were in General Gotovina's position, you would
3 welcome and you would look upon as a positive thing for your efforts?
4 A. I would have been looking for that support however it might have
5 been presented. I would have been particularly looking for the civil
6 authorities to come and take responsibility for those areas as quickly as
7 they possibly could, to re -- to re-establish normality both within the
8 sort of civil area, including, of course, rule of law. I may have -- I
9 may have shared with General Gotovina, on many occasions, his feelings.
10 I may not quite have expressed it in his way.
11 MR. KEHOE: Mr. President, I'm about to go into another topic.
12 This might be an appropriate time for a break.
13 JUDGE ORIE: It is, Mr. Kehoe.
14 We will take a break and resume at five minutes to 11.00.
15 --- Recess taken at 10.29 a.m.
16 --- On resuming at 11.02 a.m.
17 JUDGE ORIE: Mr. Kehoe, you may proceed.
18 MR. KEHOE: Thank you, Mr. President.
19 Q. General, if we could talk about a couple of matters that were
20 touched upon by Mr. Cayley. The first one being the active defence order
22 MR. KEHOE: If we could bring that up briefly.
23 Q. And this is the active defence order of the 9th of August.
24 MR. KEHOE: And if we could go to paragraph 12 in the English. I
25 believe it's the last page. No -- there it is. And if we could put the
1 B/C/S on the screen.
2 [Defence counsel confer]
3 MR. KEHOE: Mr. President, if I could just highlight one mistake
4 in the translation here that my colleague Mr. Misetic just noticed. The
5 line that I would like to discuss with the General is in the English,
6 paragraph 12, but if we scroll down in the B/C/S -- page 12 in the B/C/S?
7 Page 12 in the B/C/S. As can you see, it's a paragraph 13 that doesn't
8 exist in the English. We will have that corrected. The comment that I
9 would like to address or the line I would like to address to the General
10 is in the last line of the English paragraph 12, but it is also the last
11 line in the B/C/S paragraph 13. We just noticed that in reviewing it
12 this morning, but we will correct it.
13 MR. HEDARALY: But there are actually two paragraphs 12 in the
14 English. It just is a simple problem. I don't think there is any
15 problem to proceed.
16 MR. KEHOE: Thank you.
17 Q. In any event, just, General, looking at that last sentence in
18 paragraph 12 in the English, it notes that:
19 "Units shall be timely informed on organised and planned
20 relocation of the Split Military District Knin forward command post from
21 the village of Sajkovici
22 MR. KEHOE: For the record, here, Sajkovici is in
24 Q. Do you have any idea, General, given that this order is the
25 9th of August, 1995, when the Split Military District forward command
1 post was moved from Sajkovici to Knin and thereafter on to
3 A. I do refer to it in my report. I can't be absolutely certain. I
4 -- I recall it being between the 15th and 18th of August.
5 Q. Okay, sir.
6 A. But I would -- I would have to be able to check that.
7 Q. Okay. If I could just reference you to page 36 of your report,
8 the -- not the carry-over paragraph but the first full paragraph. I
9 would just like to clarify one issue with you on that paragraph.
10 MR. KEHOE: If we could put D1084 on the screen, page 36,
11 beginning on line 13.
12 MR. HEDARALY: I think it's 1784, if that's the report.
13 MR. KEHOE: Yes, 1784, excuse me. Thank you, counsel.
14 Q. Now, General, looking at that first full paragraph, not the
15 carry-over paragraph but the first full paragraph - and I don't question
16 the substance of your statement that the Croatian authorities were
17 concerned about the effect of looting and burning, and other
18 ill-disciplined acts by the army.
19 But I just want to take you through a sequence of these documents
20 that you put together based on, as we look through, it I'm not going to
21 read the whole thing, the 6th August letter from Colonel Zelic, then
22 followed from -- to a 10 August 1995
23 Petar Skoric. And when they talk about these letters, you then follow up
24 with a -- a document which is General Gotovina's order of 20 August 1995.
25 Concerning mop-up operations.
1 And, General, I appreciate that you may not have had the sequence
2 of these documents --
3 MR. KEHOE: But if we could bring that document up, and if we
4 could just take a minute and possibly put this in a sequence. It's D102
5 would be General Gotovina's order. D002 -- excuse me D1002.
6 JUDGE ORIE: Could we, apart from looking at the documents, could
7 I ask you, Mr. Deverell, this paragraph reads:
8 "This was clearly identified on the 6th of August."
9 And then you referred to a letter. And then you say:
10 "This had been preceded on the 10th of August."
11 THE WITNESS: I think that is it my error, Your Honour.
12 JUDGE ORIE: Yes. This was followed --
13 THE WITNESS: I think this was followed.
14 JUDGE ORIE: Thank you.
15 Please proceed, Mr. Kehoe.
16 MR. KEHOE: Yes, Mr. President, I'm just asking for D1002 to come
17 up. That's the document that the General cites at footnote 104.
18 Q. Again, General, I appreciate that all these documents might not
19 have been part of the bundle that you had. But as we see in this
20 document, it's an order signed by General Gotovina, an order on
21 operational deployment of HV units and commands. And it notes an order
22 coming from the HV Main Staff, with the appropriate classification
23 numbers. And if we can keep that number in mind and turn to D559. Would
24 you agree with me, General, this is the outgoing order from the
25 Main Staff that is cited by General Gotovina as the basis for setting up
1 these mop-up operations, this order dated 14 August 1995?
2 A. I think that's true, yes.
3 Q. And just a nuance to that order, if we will, would be D561
4 another order from the Main Staff, a day after General Gotovina's order.
5 And in this order, if we look at the -- the second paragraph, again,
6 coming from the Main Staff it notes that:
7 "With a view to organising, planning, searching, and mopping up
8 the ground and the facilities by special units of the MUP intended for
9 these purposes and the military police, as well as with a view to using
10 the HV units for the basic task of fortifying and guarding state
11 orders [sic]."
12 There is then an order - and if we go down to 1.2, if we scroll
13 down the page - essentially orders the HV to go on the borders; and in
14 1.2, that separate orders will be given to the MUP forces.
15 MR. KEHOE: And if we could then go to 65 ter 902.
16 Q. That same day, this is an order from OG West, Operative Group
17 West on 21 August, if you see from the preamble, as MUP forces will be
18 mopping up the remaining Chetnik forces in the field, deep in the area of
19 responsibility of OG West with the aim of ensuring safety ... then gives
20 orders to his individual commanders or individual units subordinate to
21 Colonel Fuzul, the Operative Group West commander.
22 MR. KEHOE: Your Honour, at this time, if we could offer 65 ter
23 902 into evidence.
24 MR. HEDARALY: I have no objection on principle, but Mr. Kehoe
25 went through three, four, five documents extremely quickly. The
1 Registrar could barely keep up on the screen. And now the document's
2 being offered without any questions. I'm not objecting to its
3 admissibility; I'm just wondering what we're doing exactly.
4 JUDGE ORIE: Mr. Kehoe, I'm not going to invite you to explain in
5 full detail what you are doing. I noticed that, but perhaps I should
6 also address Mr. Hedaraly, but all questions put in relation to the last
7 three or four documents we saw on our screen there seems not to be much
8 dispute about one order with the same number following another one that
9 there is a link. And then we now got a new document, that's the first
10 time we see this one, without any question.
11 MR. KEHOE: Well, but I'm going to go into a question right now.
12 JUDGE ORIE: Well, yes, I'm not -- is there anything which you
13 consider to be in dispute which you would like to -- to raise in relation
14 to this document? Because I would be hesitant to add another document
15 hearing evidence on matters as, for the last three or four document, not
16 in dispute. But if there's anything in dispute, if you'd like to -- or
17 seek something that we don't know already from Mr. Deverell, then we'd
18 like to here those questions.
19 Mr. Registrar, the number of this document would be.
20 THE REGISTRAR: Your Honours, that becomes Exhibit D1788.
21 JUDGE ORIE: And is admitted into evidence.
22 Please proceed, Mr. Kehoe.
23 MR. KEHOE: The last document on this series is the -- two days
24 later from General Markac, P2376.
25 Q. And this is a document, General, that General Markac of the
1 Ministry of the Interior discusses the actual mop-up operations.
2 So going back to the -- putting your citation to the order of
3 General Gotovina in context, it would appear that that citation is a bit
4 out of context, because General Gotovina and Split Military District
5 forces aren't involved in mop-up operations, number one; and number two,
6 this particular citation doesn't necessarily follow from the other two.
7 Appreciating, General, that you didn't have all these exhibits.
8 A. I'm very happy to accept that.
9 My point of listing all those documents was to demonstrate that
10 there was a great deal of activity going on during that period, in terms
11 of planning, planning not only for ongoing operations but also for the
12 normalisation of the area that had been - if I may use the term
13 "liberated" - and General Cermak did not seem part of either the
14 information or action -- there was no requirement for his action because
15 he was sent -- he was not sent the majority of those documents, if any of
17 Q. Thank you, General. Moving back to your report, and I would like
18 to talk a little bit about the subordination issues that you outline both
19 de jure and de facto. And I think in page 35 of your report at line 14
20 and 15, you note that taking the job as a garrison commander was simply a
21 means to an end. Do you recall that, sir? And that's again on line 14
22 through 16 of page 35 of your report, D1784.
23 A. Yes, I do.
24 Q. Now, General, this was not a -- with regard to General Cermak
25 with his unique tasks; it was not a unique garrison commander situation.
1 And, in fact, you note that Major Gojevic was the actual garrison
2 commander doing the normal garrison commander items, right?
3 A. That would be my deduction from what I said.
4 Q. Now taking that -- that --
5 JUDGE ORIE: Mr. Kehoe, you said "it was not a unique
6 garrison ... situation."
7 MR. KEHOE: It should have been -- it was -- it was a unique --
8 it should be "it was a unique garrison position" to the extent I put a
9 "not" in there, I'm mistaken.
10 JUDGE ORIE: Yes, thank you.
11 MR. KEHOE: Thank you, Mr. President.
12 Q. Now, on page 40 -- or, excuse me, 39 of your report, and I'm
13 referring to lines 17 through 23, and also on page 42, lines 18
14 through 19, you note that there is an lack of communication between
15 General Gotovina and General Cermak, but, likewise, a lack of
16 communication between General Cermak and General Gotovina. Is that
17 right, sir?
18 A. That's correct.
19 Q. So when you use the term in page 42 at page 18 -- excuse me,
20 line 18 -- that General Cermak is largely fell out of the loop, that
21 largely falling out of the loop goes both ways, doesn't it?
22 A. Yes.
23 Q. And when we look at -- at -- putting aside the situation where --
24 where General Cermak asked General Gotovina's help in finding the
25 vehicles with the subordinate brigades, I mean, you don't find any
1 letters -- let me back that up.
2 I think we talked about the ORBAT that you had as well as other
3 orders, combat orders by General Gotovina not being sent to the Knin
4 garrison, but we also have, throughout your report, documentation
5 between, for instance, UN entities or ICRC discussing crime, looting,
6 burning, murder, those types of documents. While you see General Cermak
7 giving those other documents concerning crime to other people. You don't
8 see any documents concerning looting, burning, and murder that come to
9 the attention of General Cermak being sent to General Gotovina, do you?
10 A. I can't recall any, no.
11 Q. Well, in that vein, it would -- in the scheme of what was
12 happening in Knin after Operation Storm, you would agree with me that,
13 based on the record, General Cermak wasn't turning to General Gotovina as
14 a person to fight criminal activity. Putting aside the UN vehicle
15 situation, but everything else.
16 A. I would agree. There was none of the normal passage of
17 information, the routine passage of information that I would have
18 expected to see between one headquarters and another.
19 Q. Now, the other matters that you talked about and -- General
20 Cermak being sent down there and having that position as a means to an
21 end, I mean, one of the themes that -- that runs through your report and
22 the documentation as well as much evidence in this -- in this case - I
23 cite the statement of Mr. Radin at D1678, that General Cermak is being
24 sent down there to normalise life. I'm sure you've seen that on numerous
1 Now, on that score, you don't see any reports going from
2 General Cermak to General Gotovina or General Gotovina to General Cermak
3 on this normalisation of life issue, do you?
4 A. No.
5 Q. Likewise, I think you also note in your report that, either by
6 design or by happenstance, General Cermak became the point of contact for
7 the international organisations. Now, likewise, you don't see any
8 reporting from General Cermak to General Gotovina on the issue of contact
9 with international organisations, do you?
10 A. Not apart from those issues you have already identified, the
11 UNCRO vehicles and -- and the like, no.
12 Q. Well, there is certainly no orders going from General Gotovina to
13 General Cermak saying, Do X, Y, and Z with regard to international
15 A. No.
16 Q. And I take it that is also true there are no orders coming from
17 General Gotovina with regard to normalisation life of issues directed to
18 General Cermak?
19 A. There appears to be little interest in this subject.
20 Q. And based on -- on the -- what you cited in your report, that you
21 believe it was justified for General Gotovina to let General Cermak get
22 on with his business, while he, General Gotovina, as an operational
23 commander got on with his.
24 A. I'm not sure the word "justified" was necessarily used. I can
25 understand it. As I have said before, I think I would have done the same
1 thing. I would have been very happy that there was somebody else who had
2 a -- a particular rank who could answer some of the problems,
3 particularly opposed by the international community, that might distract
4 me from what I felt quite properly was my primary objective.
5 Q. So it would be accurate to say that both gentlemen,
6 General Gotovina, in his area of responsibility, and General Cermak, in
7 his area of responsibility, were doing essential their own things and
8 conducting what they thought they needed to do, basically leaving each
9 other alone.
10 A. I think that was the situation that turned -- that was the
11 situation which it turned into, yes.
12 Q. Now, one last thing, and, General I do this by clarification, if
13 I may, and I address the issue of -- of the confusion concerning
14 General Cermak's role. I believe, that we -- you had the -- definition
15 of military governor put on the screen with Mr. Cayley. And in your
16 statement, you talk a bit, if I may, page 50, going over to the top of
17 page 51, that General Gotovina may have added to the confusion concerning
18 the responsibilities or the title of General Cermak. And you cite the
19 meeting of the 8th of August, 1995, and that would be P359. And that's
20 cited at your report at page 51, footnote 201. And this is a recounting
21 meeting --
22 MR. KEHOE: Let me just bring it up on the screen quickly. If we
23 can go to the next page.
24 Q. And, in the first paragraph, the commander's assessment at 1A, we
25 talk about the meeting both with General Cermak and there was also a
1 meeting with General Gotovina.
2 MR. KEHOE: If we can turn to the next page in the English, 3A1.
3 Q. And this is just basically when General Gotovina directs
4 General Forand to General Cermak for any efforts. And you -- it says for
5 lines down:
6 "He," being General Gotovina, "noted that commander Sector South
7 had already met with Colonel General Cermak, military governor, and
8 stated that all problems should be able to be resolve with the military
9 governor who will remain in Knin until the civil authority can be
11 And, General, I just want to address with you just for one moment
12 the source of that confusion, because we -- we have this terminology
13 being used on the 8th. And I want to refer you back to the first meeting
14 with -- with General Cermak and -- and General Forand that took place on
15 the 7th. And that would be P356. And, General, this is -- the record is
16 clear, this is before General Forand even met with General Gotovina.
17 And at P356, General, is a sitrep that's dated 8 August 1995
18 0730 hours. But it recounts a meeting that took place on 7th of August.
19 MR. KEHOE: And if we could go do the next page.
20 Q. At the bottom of the page, General Forand is talking about a
21 meeting with General Cermak where it notes at paragraph 8 at the bottom:
22 "Report of meeting, commander Sector South, military governor
23 region. Commander Sector South met with General Cermak in the military
24 governor headquarters."
25 Now, without going into the substance of this, it appears that
1 even prior to -- or prior to any meeting with General Gotovina,
2 General Forand has some -- has latched on to this ill-grounded
3 description of the military governor. So it's Forand who carries it on
4 and not General Gotovina, wouldn't you agree?
5 A. From what I read, it appeared to me that General Gotovina had
6 used that phrase. If further study of the documents demonstrates that
7 that phrase was in common use beforehand, certainly by
8 Brigadier-General Forand, I'm very prepared to review it. It doesn't
9 change my essential point that this whole thing was an unwitting
10 misunderstanding which I believe probably General Forand was responsible
11 for, for reasons that I touched on before, and not a deliberate attempt
12 to mislead by anybody.
13 JUDGE ORIE: Mr. Deverell, isn't it true that on page 51 of your
14 report you already explained this. To say, Well, it was perhaps
15 mistranslated or misinterpreted, but whatever the reason was, that's how
16 it is.
17 THE WITNESS: Yeah, that is my -- that's my belief.
18 JUDGE ORIE: That was quite clear from your report.
19 Thank you.
20 MR. KEHOE: Mr. President, I have no further questions.
21 Q. General, thank you very much.
22 JUDGE ORIE: Thank you, Mr. Kehoe.
23 Mr. Kuzmanovic, you are the one who will cross-examine
24 Mr. Deverell?
25 MR. KUZMANOVIC: Yes, Your Honour, thank you.
1 JUDGE ORIE: Mr. Deverell, Mr. Kuzmanovic is counsel for
2 Mr. Markac, and he will now cross-examined you.
3 THE WITNESS: Thank you, Your Honour.
4 JUDGE ORIE: Please proceed.
5 Cross-examination by Mr. Kuzmanovic:
6 MR. KUZMANOVIC:
7 Q. Good morning, General.
8 A. Good morning, Mr. Kuzmanovic.
9 Q. I just wanted to follow up on the first theme that Mr. Kehoe
10 discussed relating to two exhibits. The first exhibit being D409.
11 MR. KUZMANOVIC: If that could be pulled up, please.
12 Q. D409 was a 2nd of August meeting in the Republic of Croatia
13 Defence Ministry. Part of that meeting dealt with operational concerns
14 in which both General Gotovina and General Markac were present. As you
15 stated, General, the minutes note that General Cermak was not present.
16 On page 5 of that document --
17 MR. KUZMANOVIC: If we could go to page 5, please.
18 Q. Mr. Kehoe had discussed with you through this document and you
19 had discussed it yourself, General, that at 1730, in the minister's
20 office, there was meeting discussing basically post-conflict security
21 issues. And neither General Gotovina nor General Cermak nor
22 General Markac are in on this particular meeting; correct?
23 A. Correct.
24 Q. Would you agree with me, sir, that if General Markac was
25 responsible for any post-conflict security, he would have been present at
1 this meeting?
2 A. I couldn't necessarily draw that conclusion, because I hadn't
3 looked at it from that point of view. The fact that he was not there
4 clearly indicates that he was not party to the discussion. What role he
5 might have played, subsequently, I think is a matter for further
6 investigation with the police.
7 To me, it's a mark of lack of preparation. But he was not there.
8 Therefore, he could not have been party to those discussions.
9 Q. Okay. It's fair to state, General, that nothing in terms of what
10 anything that you have read could lead you to the conclusion that
11 General Markac had any role in post-conflict security after
12 Operation Storm.
13 A. Nothing I've read directs me to that, no.
14 Q. Okay. Similarly, if we look at D45. If we look at D45, this is
15 an August 4th 1995
16 Ministry of Interior and, basically, the Ministry of Police
17 Administration, Military Police Administration. Again, preparation
18 during the post-offensive operations is discussed. Is this a document
19 that you had seen before, General?
20 A. Yes.
21 Q. Okay. If you look at the first page, there's a list of people
22 there from the Ministry of Interior, including Mr. Moric, who was at the
23 previous meeting.
24 A. Yes.
25 Q. And if we go to the next page.
1 THE INTERPRETER: Kindly pause between questions and answers.
2 Thank you.
3 MR. KUZMANOVIC: My apologies.
4 If we go to the next page, General Lausic is there from the
5 military police; correct?
6 A. Yes.
7 Q. Among others. There is no General Cermak, General Markac, or
8 General Gotovina present at this particular meeting; correct?
9 A. Correct.
10 Q. Okay.
11 JUDGE ORIE: Mr. Kuzmanovic, could I seek some clarification.
12 In one of your previous questions referring to the 1730, the half
13 past 5.00 in the afternoon meeting.
14 MR. KUZMANOVIC: Yes.
15 JUDGE ORIE: You said this was about post-conflict security. I
16 see there are two matters specifically dealt with in this meeting, the
17 one is the check-points.
18 MR. KUZMANOVIC: Correct.
19 JUDGE ORIE: And the other one is refugees.
20 Now, I'm inclined to agree with you that these are post-conflict
21 matters. But I would like to -- post-conflict security matters.
22 Mr. Deverell, you said that Mr. Markac did not -- well, was not
23 involved in post-conflict security. First of all, when did you consider
24 the conflict to have ended, approximately?
25 THE WITNESS: Well, that is a very difficult question, and I
1 really am not sure I could give a definitive answer, Your Honour. There
2 was much confusion as there always will in this, for example, the civil
3 authority -- one sign the civil authority was re-establishing Knin was by
4 the opening of the police station on the 6th of August.
5 JUDGE ORIE: Let me be -- let me try to make the question more
6 simple for you.
7 At the 10th of August, was the conflict -- had the conflict
8 ended, as far as you were concerned?
9 THE WITNESS: The -- the initial operational part of the conflict
10 had ended. But --
11 JUDGE ORIE: It means that if we are talking about post-conflict,
12 that we have to know what you mean by that. And that might not
13 necessarily be exactly the same as what Mr. Kuzmanovic has on his mind.
14 THE WITNESS: Yes.
15 JUDGE ORIE: [Overlapping speakers]... This -- Mr. Kuzmanovic --
16 MR. KUZMANOVIC: [Overlapping speakers]...
17 JUDGE ORIE: Let's try to be as clear as possible.
18 Second, do you, apart from the two items mentioned in this half
19 past 5.00 meeting, would you consider mop-up operations later on in
20 August post-conflict security matters, or would you say, No, that's not
21 what I refer to in my answer when I said that Mr. Markac --
22 THE WITNESS: Your Honour, I would consider those to be part of
23 the post-conflict phase because it is part of the reestablishment of law
24 and order and the reestablishment of the rule of law, rather than what I
25 might describe as the conventional operational stage against -- phase
1 against formed bodies of -- of troops.
2 JUDGE ORIE: Yes. Now, in my question, I addressed the issue of
3 post-conflict or not, and another matter was security. Did you consider
4 mopping-up operations to be part of this post-conflict security?
5 THE WITNESS: I would -- I would do. I have to say that I was --
6 was not asked to look at the civil police issue, and -- and the
7 associated parts of the civil police. So I only -- I only looked at it
8 in terms of how it impinged upon General Cermak. And, therefore, I think
9 it is a very difficult area. But I would see operations as part of -
10 those operations, mop-up operations - as part of the post-conflict phase.
11 Now when it started --
12 JUDGE ORIE: Yes --
13 THE WITNESS: -- I have difficulty being clear.
14 JUDGE ORIE: And it was part -- it was a security matter as well,
15 you said earlier. Is that correctly understood?
16 THE WITNESS: I think that is it true.
17 JUDGE ORIE: Now, I take you back to your answer and to the
18 question put to you by Mr. Kuzmanovic. He asked you:
19 "It fair to say, General, that nothing in terms of what anything
20 that you have read could lead you to the conclusion that General Markac
21 had any role in post-conflict security after Operation Storm?"
22 And you said:
23 "Nothing I have read directs me to that, no."
24 That would then include, in view of the answers to my previous
25 questions, that it is your testimony - and it's just for a matter of
1 clarity that I'm asking you these questions - that you would say that
2 nothing could lead you to the conclusion that General Markac had any role
3 in mop-up operations after Operation Storm.
4 THE WITNESS: Your Honour --
5 JUDGE ORIE: -- be included in your answer.
6 THE WITNESS: Can I go back, Your Honour, please, because I need
7 to clarify this.
8 JUDGE ORIE: Yes.
9 THE WITNESS: I was addressing the precise question that I was
10 posed from the point of view of that meeting which dealt with only
11 refugees and check-points and the absence of General Markac, because it
12 was clear that he had no role to play in that.
13 I think I would have to say that mop-up operations, in my
14 judgement, would be part of the post-conflict operations. And,
15 therefore, General Markac would have had an interest in those because he
16 was commanding a capability which -- which -- had a role to play.
17 JUDGE ORIE: Yes. I'm seeking this clarification because words
18 are pronounced very quickly and it is of great importance that both the
19 one who puts the question and the one who answers the question is fully
20 aware of what the language means.
21 And just briefly making an observation in relation to the last
22 part of your answer, the question was that "nothing in terms of what
23 anything that you have read could lead you to the conclusion that ..."
24 which is a very broad approach. And I now do understand that you
25 focussed primarily on what you read in relation to this meeting that was
1 brought to your attention just the minutes before.
2 THE WITNESS: Yeah.
3 JUDGE ORIE: Thank you.
4 Please proceed, Mr. Kuzmanovic.
5 MR. KUZMANOVIC: Thank you, Your Honour.
6 If we could pull up D1788 again, please.
7 Q. General, this is -- Mr. Kehoe mentioned this document earlier,
8 and this is specifically related to mop-up operations. This is the
9 21st of August, 1995, order from the Main Staff of the Croatian army,
10 requesting that and ordering the Special Police forces to mop-up the
11 remaining forces. It says Chetnik forces in the field.
12 Now, from the standpoint of military operations, this is an order
13 from the military to the Special Police; correct?
14 A. Can I have a look at who signed it, please?
15 Q. Certainly.
16 MR. KUZMANOVIC: If we could scroll down, please.
17 THE WITNESS: Yes, he was the commander of OG West.
18 MR. KUZMANOVIC:
19 Q. If we could go back to D561, 121788 [sic] is the order directed
20 to the Special Police, but D561 is the Main Staff order.
21 MR. KUZMANOVIC: If we could pull that up, please.
22 Q. You can see that there are elements it notes in this order of
23 enemy renegade groups remaining in the liberated areas and with a view to
24 organising, planning, searching, and mopping up the ground. I'll slow
1 And the facilities by special units of the Ministry of Interior.
2 And it's signed by the chief of the Main Staff on the second page,
3 General Cervenko.
4 A. Yeah.
5 Q. Now this is an order essentially from the Main Staff to the
6 Special Police, among others, for conduct of mop-up operations; correct?
7 A. Yes.
8 Q. And in your estimation, this is a military issue, not a civilian
9 police issue; correct?
10 A. In that it's been signed by the Chief of Staff, yes.
11 Q. If we could go, please, to your report, General, page 52.
12 MR. HEDARALY: I'm sorry, Your Honour.
13 JUDGE ORIE: Mr. Hedaraly.
14 MR. HEDARALY: I think this issue has come up before with this
15 particular document. I had thought it had been resolved. The
16 translation of the -- of the recipients says Knin ZP in the translation.
17 We've looked at this before; it is ZM, it is the Knin garrison. I think
18 that has been discussed at length before, and I thought a revised
19 translation was being done.
20 I don't know what happened, but just so that the witness is aware
21 of that. If -- I don't know if that has anything to do with the question
22 but just in case. So that -- just for the benefit of the witness that he
23 has the correct translation.
24 JUDGE ORIE: Mr. Kuzmanovic, the original, at least, states ZM.
25 MR. KUZMANOVIC: I think for purposes of my question -- I
1 understand that. I will go to 2376, because I think it will make it
3 JUDGE ORIE: Yes.
4 MR. KUZMANOVIC: If we can go to P2376, please.
5 Q. Irrespective of the issue concerning the previous document,
6 General, you can see with this document on the 22nd August, 1995, the
7 mop-up operation report, from General Markac, goes directly to the
8 Main Staff; correct?
9 A. Yes. Can I see the signature just --
10 Q. Certainly.
11 A. Not sure I --
12 Q. It's page 3.
13 A. Page 3. Yeah, thank you.
14 Q. Now, at least as far as the mop-up operations are concerned,
15 those are essentially being controlled, at least according to the
16 documents, from the Main Staff to the special units of the
17 Special Police; correct?
18 A. That would appear so, yes. I don't think I've ever seen that
19 document. I don't recognise it. I don't think this is in my report.
20 Q. Thank you, General.
21 MR. KUZMANOVIC: I guess we can go back to page 52 of the report,
22 lines 12 to 14.
23 Q. General, in this section of your report, you're discussing a
24 freedom of movement generally, and you cite a document which is P359, for
25 General Forand's comment, that the Special Police were supplanting the
1 HV, basically the working military, and being abrasive, arrogant, and
3 Now, other than -- what was the purpose for citing this
4 particular document, General?
5 A. It was part of a -- a group of documents that I looked at in
6 terms of the freedom of movement and whether freedom of movement was
7 effectively allocated to UNCRO and who was responsible for it and whether
8 they had met that responsibility. It was really to give a flavour of the
9 atmosphere to give some sort of context to this.
10 Q. Now, as far as the representation made in this particular
11 exhibit, whether it was the military police or the Special Police that
12 were identified at that particular time, you have no information, do you,
13 whether that is accurate?
14 A. I took the comment from the Sector South report as my primary
15 source. I did not check as to whether that comment itself was accurate.
16 As I say, it was a matter of giving a context, rather than the actual
17 fact that I felt was important.
18 Q. And --
19 A. It was the -- sorry, if I can just finish.
20 Q. Sure.
21 A. It showed the way General Forand's mind was working.
22 Q. The specific date of this report, P ...
23 A. 359.
24 Q. -- 359 is the 8th of August of 1995, I'll represent that to you
25 without pulling it up.
1 A. Okay.
2 Q. Were you aware that the Special Police were essentially through
3 with their axis of operation by the 8th of August, 1995?
4 A. No, not specifically. I didn't look for that sort of information
6 Q. Do you have any information that the Special Police were ever in
7 Knin at any time?
8 A. No.
9 MR. KUZMANOVIC: If we could go do -- the second portion of your
10 report on page 52, lines 22 through 27.
11 A. I'm sorry, which page?
12 Q. Yeah, page 52, I'm sorry. The same page.
13 A. 20 -- I'm sorry. I'm confused now.
14 Q. Sorry --
15 A. Lines?
16 Q. Lines 22 through 27.
17 A. Yes. Thank you.
18 Q. General, again, there is a citation for your report, P362, in
19 which General Forand again states that various malfeasance was being
20 conducted by agencies of the Croatian government, usually behind the
21 restriction of movement enforced by Croatian Special Police.
22 Now, again the purpose of citing that document was just for
23 contextual reasons?
24 A. Absolutely.
25 Q. And whether or not the Croatian Special Police were the ones
1 involved as Forand asserts, you have no knowledge?
2 A. I have no knowledge. And, again, I was trying to show how
3 General Forand was thinking about this issue and his response to these
5 Q. What about -- is there anything about that -- you have twice now
6 mentioned General Forand's thinking and his reactions. Is there anything
7 about that that you're critical of?
8 A. No, I don't think so. I mean, he -- he only thought what -- I
9 mean, he based his -- I will start that again.
10 He would have based his thoughts, his ideas, on what he was being
12 Q. And whether that was accurate or not was a function of the
13 information he was getting?
14 A. Absolutely. And, of course, part of his responsibility would
15 have been to judge how accurate that information was. But, my experience
16 in these areas is that is it extraordinarily difficult to know what is
17 true. You know what have you been told, but to know what is true is very
19 Q. And at least from the documents that you have seen, was there any
20 follow-up by General Forand to determine whether the information he was
21 receiving was accurate?
22 A. I'm sure he did. But I have seen no documents where he checked
23 the accuracy of that information.
24 Q. Thank you, General. I don't have any further questions.
25 THE WITNESS: Thank you.
1 JUDGE ORIE: Thank you, Mr. Kuzmanovic.
2 Before I give an opportunity to Mr. Hedaraly to cross-examine the
3 witness, could I take you back to D561.
4 Could that be brought on the screen.
5 You were asked, Mr. Deverell, and I repeat literally what
6 Mr. Kuzmanovic said:
7 "Now, this is an order essentially from the Main Staff to the
8 Special Police, among others, for conduct of mop-up operations; correct?"
9 And you said: "Yes."
10 Could you perhaps elaborate on -- Mr. Kuzmanovic, I was correct
11 in understanding that your question was about D561?
12 MR. KUZMANOVIC: Yes, Your Honour.
13 JUDGE ORIE: Yes, could you tell me exactly where we find the
14 Special Police to be addressed in this order and given orders for the
15 conduct of mop-up operations.
16 THE WITNESS: Yes, Your Honour. I took my view, if I read the
17 document correctly, that that paragraph, with a view to organising,
18 planning, searching, and mopping up the ground in the facilities by
19 special units of the Ministry of Interior intended for the purposes,
20 et cetera, et cetera, as well as using the HV units for the basic task
21 of -- of guarding the state borders, I hereby issue the following order.
22 JUDGE ORIE: Yes. I see that the context is mop-up operations to
23 be conducted with the assistance of others by MUP units. I see that
25 THE WITNESS: Mm-hm.
1 JUDGE ORIE: But the question was not whether this was an order
2 which related to MUP operations. The question was whether this order,
3 essentially, was from the Main Staff to the Special Police, orders for
4 conduct of mop-up operations. Which I understand to be, is that the
5 Main Staff would have ordered the MUP to conduct mop-up operations.
6 And, therefore, I looked at -- also at what is then exactly
7 ordered. And I would invite you to do the same and then to point at
8 where orders are given to the MUP.
9 THE WITNESS: Could I -- could I just ask for it be scrolled
11 JUDGE ORIE: Yes, you can look at it page by page.
12 THE WITNESS: Thank you. Well, 1.2 says that, of course,
13 separate orders shall be issued. And this was, of course, also requiring
14 which resulted in some other correspondence. This was asking - if can I
15 scroll up slightly, please - it says the commanders -- the commanders of
16 Knin garrison shall prepare reports and submit them to the General Staff
17 in a descriptive form et cetera, giving details of areas of contact with
18 remaining or infiltrated enemy groups, and so on and so forth. And it
19 then goes on, at one point, to -- that separate orders shall be issued.
20 If I could use a military term, if the Court will allow me, this would,
21 to me, be a warning order for a future operation. That is, it begins the
22 process of analysis and deciding and planning that would lead to a future
24 So from my point of view, the order is that this work is to
25 start. It is not a specific order. And therefore, Your Honour, I would
1 agree, I think, with the question you're trying to ask me, It is not a
2 specific order to the Special Police to conduct an operation. This is a
3 warning order which generates the work before that order is -- is -- is
4 written and issued.
5 JUDGE ORIE: Yes. Now, often the attention of this Chamber was
6 drawn to the way in which the addressees were mentioned. If we look at
7 the very end of this order - in English - I think it was you who told us
8 that for information means a kind of a courtesy rather than -- could you
9 perhaps look at to whom this order is sent or to whom it is addressed,
10 because the top say to the commander.
11 THE WITNESS: Yes. It is addressed, in particular, to - and
12 there, Knin ZP, I believe, should be Knin ZM, and I think that was the
13 nature of the previous intervention from the Prosecution - and right at
14 the bottom, handwritten, the assistant MUP for special units for
15 information only. Now that, in a sense, is part and parcel of the
16 warning order process. It -- it wouldn't have been in the British Army,
17 it would have been an action addressee, because the warning order is an
18 order. But the information of this order was passed to the headquarters,
19 the MUP headquarters, for passage to the special units. That is the way
20 I would interpret that, Your Honour.
21 JUDGE ORIE: Yes. I asked you these questions because there was
22 quick question taking three lines, the answer was even shorter, just a
23 yes, whereas, now going through this document, it seems that the matter
24 has more details and the matter has more aspects than were dealt with in
25 your answer.
1 Mr. Hedaraly, are you ready to cross-examine Mr. Deverell?
2 Mr. Hedaraly is counsel for the Prosecution, Mr. Deverell, and he
3 is about to start his cross-examination.
4 Please proceed, Mr. Hedaraly.
5 MR. HEDARALY: Thank you, Mr. President.
6 Cross-examination by Mr. Hedaraly:
7 Q. Good afternoon, General.
8 A. Good afternoon Mr. Hedaraly.
9 Q. Just before I start, while we have this document on the screen,
10 perhaps we don't have it anymore. Just very quickly, that was an order
11 from General Cervenko to, among others, General Cermak. Correct?
12 A. Yes it was.
13 Q. And it asked him to report -- to perform a certain task; correct?
14 A. It did.
15 Q. Thank you. I first want to ask you briefly a few questions
16 regarding the additional note that you prepared.
17 A. Yes.
18 Q. Which is D1786.
19 MR. HEDARALY: Actually, perhaps at the outset, Mr. President, I
20 should state that I have reviewed the revised report which is D1784,
21 which we MFI
22 that the corrigendum, D1758, which are the changes in the report, the
23 pages listed in the additional note do not match. There is a three-page
24 difference. So if it says page 10 in the addendum, it's page 13. I have
25 discussed the issue with Mr. Cayley last week. I'm wondering, for the
1 sake of the record, although I put that on the record today, I think it
2 may be wiser to have a revised corrigendum so that for the future anyone
3 looking at the report will note precisely which changes were made in
4 which page.
5 JUDGE ORIE: Yes. Now the corrigendum, let me see, was not a
6 document which was signed by the witness, was it? It's mainly -- if it
7 was, then, of course, it is a difficult to --
8 MR. CAYLEY: Actually, Your Honour, in fact -- sorry,
9 Mr. Hedaraly -- maybe was not updated about this, and that may be my
10 fault. But, in fact, the corrigendum has been updated so it matches the
11 report. Because what Mr. Hedaraly kindly pointed out before is that the
12 numbering sequence in the updated report didn't match the old report. So
13 what the witness did was to change it to the old report. If you
14 understand what I mean, so, in essence, the corrigendum and the report
15 now match each other in terms of numbering.
16 JUDGE ORIE: Yes. Let me see --
17 MR. HEDARALY: I'm sure that's a matter I can resolve with
18 Mr. Cayley at the break, Your Honour, there's no need to spend time on it
19 this second. And we will report back to the Chamber.
20 JUDGE ORIE: I think, as a matter of fact, that the Chamber
21 received information of which the original was:
22 "This is to let you know that the corrigendum, 2D00791,
23 additional note, 2D00729, and corrected version of Sir Jack Deverell's
24 report, 2D00790, are all available on e-court. The previous versions of
25 the corrigendum and report page numbers did not match up."
1 And then that was a message which was sent --
2 MR. HEDARALY: [Overlapping speakers]... I did receive --
3 JUDGE ORIE: Yes. And that seems to be the answer to the issues.
4 MR. HEDARALY: It's not actually, Mr. President, and that's why
5 I -- perhaps I was not clear in my intervention earlier. Maybe if we
6 just look at D1758 now in the record we will see that that -- the page
7 numbers listed in that corrigendum do not match the pages in the report
8 that I was looking at. As I said, I'm more than happy to discuss the
9 matter with Mr. Cayley and resolve it at the break.
10 JUDGE ORIE: Yes. Please discuss with Mr. Cayley whether
11 consolidated versions of all these documents are now available in e-court
12 so as to avoid that those who will read it later are puzzled by it.
13 Please proceed.
14 MR. HEDARALY: Thank you, Mr. President.
15 Q. Sorry, General, for the little interruption.
16 I wanted to discuss with you the additional note you prepared
17 briefly at the outset. That is D1786. We can bring it on the screen, if
19 You first state that you were contacted by the Cermak Defence
20 team on 27 January 2008
21 General Markac -- General Cermak or anyone on General Cermak's team?
22 A. No.
23 Q. Do you know how you came to be selected or contacted to be an
24 expert in this case?
25 A. I do. In fact, I apparently had met Mr. Cayley who remembered me
1 when he was in the British army. So, yes, there had been some contact.
2 Sadly, I don't think I quite remembered him.
3 MR. KEHOE: Your Honour, I try to forget him too.
4 JUDGE ORIE: Yes. Well, we give a few words of confidence to
5 Mr. Cayley in a later stage.
6 MR. CAYLEY: Not that I'm a witness, I was a very junior officer
7 at the time, Mr. President. And General Deverell was a General at the
8 time. So I wasn't exactly on friendly terms with him.
9 MR. HEDARALY: Thank you.
10 JUDGE ORIE: Let me just -- and Mr. Kehoe will apologise after
11 this court session for his words.
12 Mr. Cayley, let's proceed.
13 THE WITNESS: I'm sorry, I've distracted myself now. I forgot
14 what your question was. Could you repeat it, please?
15 MR. HEDARALY:
16 Q. I had asked you whether you knew how you came to --
17 A. [Overlapping speakers]... ah, yes.
18 Q. I think you answered it that Mr. Cayley contacted you because he
19 knew you from before.
20 A. Well, that may have been so. But, in fact, I also met a senior
21 British officer who been previously involved in various
22 International Criminal Court and ICTY cases, and he asked me, because he
23 knew there was some coming that required expert witness, and he asked me
24 if I was interested. And I said yes. And, in fact, I believe my name
25 was passed to whoever by what means and then the connection was made.
1 Q. Thank you. Prior to this case, have you testified before as an
3 A. No, I haven't.
4 Q. And once you were formally retained as an expert by the
5 Cermak Defence, what were your precis terms of reference?
6 A. I was sent some terms of reference. I can't recall them. I
7 mean, I'm not quite sure what question you're asking.
8 Q. What were you asked to do as an expert?
9 A. I was asked do look at the case with particular attention to
10 quite clearly Mr. Cermak, General Cermak, and concentrate really on the
11 command and control issues, and relate all that to the -- the military
12 and also the military police.
13 Q. Were you hired to -- were you retained to prepare an expert
14 report, to consult with the Cermak Defence, or both?
15 A. I was -- I was retained to produce -- to produce an expert
16 report. I'm not quite sure what you mean by "consult." There was quite
17 clearly a very important link between me and the Defence team, because
18 they -- they understood the background to the case, and, of course, they
19 had the documents which they fed me.
20 Q. I'm sorry, perhaps my -- my question was not clear. And if that
21 is the case, I apologise.
22 I was asking whether, as part of your tasks, one of them was to
23 provide advice or expertise to the Cermak Defence team, separate from
24 preparing the expert report. So whether they would ask you questions and
25 you would advise them generally on various issues of command and control.
1 A. That's what I have done, as well as write the report.
2 Q. And at that initial meeting with the Cermak Defence team, were
3 you told what was the position of -- of the Cermak Defence with respect
4 to General Cermak's authority, as they viewed it?
5 A. Again, I'm not sure of the -- I don't really understand the
6 question. Can you ...
7 Q. Of course. When you were -- when you met with the Cermak Defence
8 team and they told you that they were interested in this case and
9 General Cermak and the issues of his authority, did they tell you what
10 their position was with respect to these issues?
11 A. No. I was -- at all stages, I said in my additional note, at
12 everyone stage I was -- right the start it was made absolutely clear that
13 it was my -- my business to make judgements from the documents I was
14 given and -- and quite obviously from the conversations that were had
15 because that is the nature of the -- the dynamic of being part of -- you
16 know, working for that team.
17 JUDGE ORIE: Mr. Deverell, could I seek clarification. The one
18 doesn't exclude the other, and, therefore, even if someone tells you that
19 you should form your opinion on the basis of the documents you have
20 received, that doesn't exclude for the possibility that someone, at the
21 same time, tells you what his view on certain matters are.
22 So, therefore, I'm a bit puzzled by your answer.
23 Could you be clearer in that respect.
24 THE WITNESS: Well, perhaps my answer was confusing because I am
25 particularly keen to emphasise that I was given a complete, as it were,
1 blank sheet. I discussed matters. Of course, I heard their views,
2 because that is an inevitable way you discuss matter. But, whenever
3 there was a view issued or at a particular time, I have to emphasise that
4 I was instructed that it had to be my judgement and my view.
5 JUDGE ORIE: Yes. Your previous answer, you said:
6 "And quite obviously from the conversations that were had because
7 that is the nature of the -- the dynamic of being part of -- you know,
8 working for that team."
9 So I do understand that you wanted to end that sentence by saying
10 that you became familiar with their views.
11 THE WITNESS: Absolutely.
12 JUDGE ORIE: Please proceed, Mr. Hedaraly.
13 MR. HEDARALY: Thank you, Mr. President.
14 Q. General, I have matched up the dates of your present in The Hague
15 when you said you came and listened to court proceedings with the
16 witnesses that testified, and I just want to confirm that those are the
17 testimonies that you attended in person. That was General Leslie?
18 A. Yes.
19 Q. Mr. Theunens?
20 A. Yes.
21 Q. Mr. Feldi?
22 A. Yes.
23 Q. And Mr. Kovacevic?
24 A. No. I was not here -- I did not see Mr. Kovacevic.
25 Q. You did not see his testimony?
1 A. No.
2 Q. Did you see any other testimonies of any other witnesses in
3 The Hague
4 A. I don't believe so, no. I think those are the only three.
5 Q. Did you watch the testimony of any other witnesses, either over
6 the Internet, through a DVD
8 A. Yes. I mean -- yes I did. I switched on the -- I went on to the
9 Internet every so often. To be honest, I can't remember whose testimony
10 I saw, because I was -- I was looking at it out of general interest
11 rather than specific interest.
12 Q. So nothing you would have seen in those proceedings were a
13 significant --
14 A. No.
15 Q. -- portion --
16 A. No.
17 Q. -- that you relied on for your report?
18 A. No.
19 Q. Did you review transcripts of testimony of any witnesses?
20 A. Yes, I did.
21 Q. Could you tell us which ones, please.
22 A. I can't be absolutely specific. But I was given the transcripts
23 of witnesses such as Flynn, Elleby, Botteri, Feldi, Leslie and, of
24 course, I had Theunens's report and listened to much of that
1 Q. And were these transcripts of testimony provided to you because
2 you asked for them, or were you given to you as material you should
4 A. They were given to me as material that I should review.
5 Q. And did you review any witness statements from any of the
6 witnesses -- any of the witness statements in this case?
7 A. Did I see some, but I frankly can't recall the ones that I did
9 Q. So if you had seen those statements, once again, that's not
10 something that you have relied in any significant manner for your report?
11 A. I mean, it's been the background to my report.
12 Q. You mentioned some names. Let me just mention a few others. I
13 won't go through all the witnesses for obvious reasons, but just a few
14 ones to see if it jogs your memory.
15 Did you view the statement or transcript testimony of
16 General Forand?
17 A. No.
18 Q. General Lausic?
19 A. I think I was sent Lausic. I'd have to check, actually, I'm
21 Q. But the fact that you don't remember, it means you didn't pay
22 particular attention to it?
23 A. No.
24 Q. Ambassador Galbraith?
25 A. No.
1 Q. Eric Hendriks?
2 A. No.
3 Q. Stjepan Buhin?
4 A. No.
5 Q. Bosko Dzolic?
6 A. No. I don't think so. The trouble is, I -- I read so much that
7 was produced by him that I have difficulty remembering exactly where I
8 saw it. Mostly they were the documents. But I don't think I saw a
9 transcript from Dzolic, but I might have done -- and I could check. If
10 it is important for the Court, I could go back to my records and check.
11 JUDGE ORIE: Well, we leave that for Mr. Hedaraly. If he --
12 MR. HEDARALY: That's fine, Your Honour.
13 JUDGE ORIE: If he thinks that we should be informed about it,
14 then he'll invite you to check or --
15 THE WITNESS: Thank you.
16 JUDGE ORIE: -- or he will refrain from doing so.
17 Please proceed.
18 MR. HEDARALY: I do appreciate the offer. I mean, all I'm trying
19 to assess is what you relied on and how much significance you gave to it.
20 So if you had reviewed the evidence of Mr. Dzolic, you did not rely on it
21 in any significant manner for your report. So is that fair?
22 A. I think so, yes.
23 Q. Did consult with Mr. Feldi or Mr. Kovacevic?
24 A. I consulted on a couple of technical details with General Feldi,
25 yes, in terms of, right at the beginning, to get a view of -- of the
1 nature of the -- of the Croatian army and armed forces and how they did
2 their business, particularly in terms of -- of training and promotion --
3 selection for promotion and the like.
4 Q. Is that the meeting you had with him or was it a telephone
6 A. No, I met him face-to-face in Zagreb.
7 Q. How many meetings did you have with him?
8 A. Oh, a couple. I don't know -- they were not formal meetings so
9 much as he was in the office, and I remember speaking to him on one
10 occasion for perhaps an hour, and then I might pop in to his office or he
11 might come into mine and I might have a conversation with him.
12 Q. What about Mr. Kovacevic?
13 A. I don't recall ever talking to him about anything in particular.
14 But I might have -- again, I might have, in passing, I might have asked
15 him a question. But it would not have been a substantial one. It would
16 have been about background.
17 Q. So you did not discuss with either Mr. Feldi or Mr. Kovacevic the
18 substance of what you have put in your report?
19 A. I don't think -- I don't think I ever discussed with them the --
20 my -- my views, my -- the observations I -- I ended up, my judgements,
21 no. It was -- it was a matter of discussing, putting in context some of
22 the information that I had so that I was given confidence I was making
23 the right judgement or a reasonable judgement, not so much the right one,
24 but a reasonable judgement from that which I have seen.
25 Q. A reasonable judgement as to what?
1 A. A reasonable judgement as to whether I had drawn the right
2 conclusions from my reading of something against what the Croatian armed
3 forces actually did. Again, it was mostly about command and control.
4 Q. So if you looked at a certain document, an order, or a report,
5 and you drew some conclusions from that, you, at times, sought
6 Mr. Feldi's assistance to confirm that your interpretation was correct?
7 A. Absolutely. That I -- that I had understood the facts and drawn
8 the correct conclusions. But, again, it was specifically about things
9 like command and control, about structures, about the nature of -- of how
10 the Croatian Army did its business.
11 Q. Did you review Mr. Feldi's expert report or any draft thereof?
12 A. I looked at most of Mr. Feldi's expert report.
13 Q. Did you provide any comments to either Mr. Feldi or the
14 Cermak Defence team with respect to that report?
15 A. No.
16 Q. Did you review the expert report of Mr. Albiston?
17 A. No.
18 Q. Did you consult with Mr. Albiston on any issues?
19 A. When we were together, we talked about the case. We had mutual
20 interest because both our experiences were very similar in our lives,
21 particularly focussed on Northern Ireland. And where there was a cross
22 over between police operations and military operations, undoubtedly I
23 discussed things with him, yes.
24 Q. And how many discussions had you had with him on these issues?
25 A. I couldn't possibly say. We were together for four or five days
1 in Zagreb
2 to various testimonies. And rather like my conversations with Mr. Feldi,
3 it was not a formal meeting where we sat down with an agenda; it was
4 discussions in passing.
5 Q. But you discussed with him the substance of the case; correct?
6 A. Yes.
7 Q. Did you exchange views and opinions with respect to the issues
8 that you addressed in your report and that he addressed in his?
9 A. I'm sure we did. Again, if you're together and have a mutual
10 interest, you would wish to express that interest to see if the
11 judgements you were coming to were -- were supportable, were they
12 understandable, how had you expressed it? I mean, very often we were
13 looking at, How do we express this? This is very complex issues; there
14 are some very complex issues here. How do we get people to understand
15 the nature of it.
16 Q. Could you give us an example of two of these very complex issues
17 that you discussed and grappled with together?
18 A. Command and control of the military police. The reality of it,
19 not what is written down, the reality of that complexity. And that is
20 very important. Because what happens on the ground is sometimes rather
21 different under the pressure of events than what is written down in the
22 paper. And that is something we have both experienced in our police and
23 military careers and, I mean, that is one example I know of a
24 conversation we did have.
25 Q. So the section in your --
1 A. Sorry. It's my fault, Your Honour. I'm talking too fast.
2 Q. General, it's usually my fault. I get scolded repeatedly by the
3 transcribers, the interpreters, and the Presiding Judge. If I can seek
4 your assistance in pausing, that will hopefully help me not to get
5 scolded as much.
6 Just to go back to your previous answer, so, for example, the
7 issue of command and control of the military police, which you have
8 addressed in your report, would, in part, be informed by conversations
9 you had with Mr. Albiston. Correct?
10 A. No. I don't think that is correct. I think you're trying to
11 draw a different conclusion from -- from my words. Everything you do is
12 in informed by -- by the conversations you have around you, by things you
13 hear. If you're saying - and you may not be saying - but I included
14 quite consciously some of Mr. Albiston's thoughts, that is not true. If
15 you're saying that all my report is the -- is the focus of all of
16 conversations I had with a wide -- with a very substantial number of
17 people, then, of course, that's true.
18 Q. And just so you know, I was not inferring any impropriety. I was
19 referring to the latter of the examples, just so that you know.
20 You also state in your report that you were sent over 4.000
21 separate documents by the Cermak Defence team. Did you review them all?
22 A. No, I certainly didn't. And the figure 4.000 was -- was a --
23 something of a throw-away line. There were many hundreds of them, and I
24 guess it was into the thousands, some of which, of course, as yet not
1 JUDGE ORIE: Mr. Hedaraly, before we start with the 4.000 or the
2 couple of hundred, perhaps it's -- would this be an appropriate time for
3 the break?
4 MR. HEDARALY: I think it probably would be, Mr. President.
5 JUDGE ORIE: Because, you know, if you have one or two questions
6 to finish a certain subject, I will let you do.
7 MR. HEDARALY: I have a suspicion, based on the last answer, that
8 it may be a little more lengthy than that.
9 JUDGE ORIE: Under those circumstances, we will first take the
10 break. We will have a break and resume at a quarter to 1.00.
11 --- Recess taken at 12.26 p.m.
12 --- On resuming at 12.53 p.m.
13 JUDGE ORIE: Mr. Hedaraly, please proceed.
14 MR. HEDARALY: Thank you, Mr. President.
15 Q. General, before the break, we were discussing the documents that
16 you had received and reviewed, and I asked you about the 4.000 figure and
17 you stated that that figure was probably just a general, a throw-away
18 line, and not the accurate number of documents and that you have probably
19 reviewed several hundreds and went into the thousands.
20 Is that an accurate --
21 A. Yeah.
22 Q. I just want to clarify the timing of these documents.
23 So you were initially provided with a collection of documents.
24 A. Yes.
25 Q. Can you estimate how many that collection comprised?
1 A. No, I can't, I'm afraid. I mean, I got the documents,
2 Your Honour, over a period of time, and, indeed, up until -- some up
3 until just before I received -- I wrote the report. And I would suggest
4 it was a steady flow of documents. The first package was quite large,
5 probably a thousand or some sort, but I have no clear -- I can't give you
6 any clear identification of exactly how they arrived.
7 Q. When you received -- would it be fair to say that you had not
8 completed the review of the initial documents you received when you
9 received new ones. It was a rolling basis?
10 A. Yes, absolutely.
11 Q. So it wasn't a sequential review of the number of documents, then
12 you got more documents, and then so on; it was a steady production of
14 A. A steady, flow, yes.
15 Q. And in your additional note you state that on 12 and
16 13 March of this year, Mr. Cayley identified and grouped documents for
17 you relevant to each heading of your report. Were these documents
18 additional documents, or were they subsets of documents that had you
19 already been provided?
20 A. The majority were subsets of documents I'd already been provided.
21 Q. And can you estimate, if possible for us, the size of the
22 collection of documents you were provided by categories, but headings?
23 A. Oh, I think -- I think that which Mr. Cayley gave me were -- were
24 hundreds of documents rather than thousands, which were related --
25 specific ones which were related to the subject headings that he wished
1 me to address.
2 Q. Would I be correct in stating that a number of these documents
3 you had already reviewed?
4 A. Yes.
5 Q. And a number of documents were new to you?
6 A. Some were new. But the majority, I think, I had reviewed. I
7 think I can -- yes, I think the majority I had reviewed. There might
8 have been the odd one or two, a dozen or so, that were perhaps new to me.
9 Q. Were these documents, the ones that Mr. Cayley provided to you in
10 separate groupings for each of the headings, were they primarily the
11 documents that you referenced in your report?
12 A. Yes. But, of course, there are other ones I reference in my
14 Q. But the majority of them are in that --
15 A. I would think so.
16 Q. Did you, at any time, ask the Cermak Defence team for any
17 specific documentation that you felt was lacking?
18 A. I don't recall specifically asking them. In our conversations,
19 documents would be discussed and I would say, Well, can you please send
20 me that one. If you ask me which one I talked about, I can't give it to
21 you, I'm afraid.
22 Q. Did you review the interviews General Cermak provided to the
23 Office of the Prosecutor?
24 A. I saw -- I had -- I had access to them, and I remember reading
25 parts of them, yes.
1 Q. But that's not something that you relied on significantly in the
2 preparation of your report?
3 A. I didn't -- I didn't quote it in my report. It was, again,
4 background information as far as I was concerned.
5 Q. I was going to come to that, but perhaps we can address it now
6 while we're at the topic.
7 The documents that you have not referenced in your report, did
8 you consider them to be background material?
9 A. Partly. And also partly I felt, on occasions, that I had
10 sufficient -- let me use the word "evidence" in a loose sense.
11 I had sufficient information to make the point I was trying to
12 make. I could support my -- my view in a way which I felt would allow
13 people to see that it was a reasonable view to take, given the evidence
14 that I had produced. There were certainly have been more evidence or
15 more information that I would have been looking at but decided not
16 reference it.
17 Q. Can you explain to us what was the process by which you
18 specifically selected -- I haven't counted them but roughly 100 or so
19 documents in your report from the hundreds and maybe thousands of
20 documents that you have reviewed?
21 A. Well, it goes back to my -- my methodology. I was particularly
22 keen to, first of all, understand the nature of the problem that I was --
23 that I had been asked to deal with. I then read what I thought would be
24 the key documents to give me that understanding. And when I had got to
25 that stage --
1 MR. CAYLEY: Your Honour, I'm sorry to interrupt the witness, but
2 the transcript has actually stopped recording.
3 MR. HEDARALY: The one on the main screen is functioning, so
4 perhaps we can refer to that while the problem gets fixed.
5 JUDGE ORIE: Mr. Cayley, could we continue to work on that basis
6 and see whether ...
7 Please proceed, Mr. Hedaraly.
8 MR. HEDARALY: Thank you, Mr. President. If there is a need to
9 refer to earlier testimony, we'll see how we can do it. But for now, I
10 think we will be fine for the next few questions.
11 Q. You said in your last answer -- just trying to find it exactly.
12 You said:
13 "I then read what I thought would be the key documents to give me
14 that understanding."
15 How did you -- was that your determination that these were key
16 documents, or were they part of the ones provided to you and said, These
17 are the key documents?
18 A. It was my determination as to what were the key documents, and
19 they were essentially -- because I wished to focus initially on what the
20 exact -- what was Croatian military doctrine, military law, Code of
21 Discipline, laws of the regulations of service, and so on and so forth,
22 to give me a background in -- in understanding the nature of the force
23 and the way it was structured.
24 I then wanted to see what responsibilities and authorities a
25 garrison commander and therefore General Cermak might have had. And then
1 I looked for evidence as to whether he actually had that authority and
2 how he had exercised it. So there was a sort of process of understanding
3 the nature of -- of the Croatian armed forces, the specific nature of
4 General Cermak's responsibilities, and then how did he manage those
5 responsibilities, in the rather confused situation he found himself and
6 in the unusual situation he found himself, as we will no doubt discuss,
7 as a Colonel General, as a garrison commander, doing other things as
9 And so, therefore, I looked at the documents from this point of
10 view. I went in to find out the answers to those particular questions.
11 As best I could.
12 Q. Would it be fair to say that the documents that you referenced in
13 the footnotes in your report are the key documents that you relied on to
14 reach your conclusions?
15 A. Yes, I think so -- I think that would be fair to say.
16 Q. And these would be the documents that you feel are the most
17 important and that the Chamber should rely on as well in making its
18 determination, regarding General Cermak's authority?
19 A. I -- I -- I can't speak for the Chamber, but I can only say that,
20 as far as I am concerned, they were the key documents that enabled me to
21 come to the judgements I came to.
22 Q. Was there anything in the other documents that you reviewed that
23 are not referenced in your report that contradicted your conclusions?
24 A. No. No, I -- I think if they had done, then I may have altered
25 my conclusions. And -- and if there are documents which are produced
1 which I didn't see or misinterpreted that have an impact upon my
2 conclusions then, of course, I'm happy to review my conclusions.
3 Q. You also stated in your report that you were able to talk to
4 General Cermak. How often did you talk to him?
5 A. I saw him once, and, really, that was a very informal contact.
6 And it was, really, talking in generalities. I did not pose him any
7 particular questions.
8 Q. Just so that I am clear, you did not ask any specific questions
9 to General Cermak regarding information you were looking for to prepare
10 your report?
11 A. No. I asked him one question: Why have they decided to make a
12 garrison commander a Colonel-General? And he answered it. And that was
13 the way Croatia
14 Q. In terms of your report, we talked briefly about the headings.
15 You said you were given a series of headings to address and that you were
16 invited to add any headings that you thought were relevant. Did you, in
17 fact, add any such headings other that the ones provided to by
18 Mr. Cayley, I believe.
19 A. No, I didn't, because I felt that those headings covered the
20 essential nature of what I was generally asked to do.
21 Q. The last meeting in your additional note that you described with
22 the Cermak Defence team is dated 19 and 20 October that you met with
23 Mr. Cayley. Did you meet with anyone from the Cermak Defence team
24 between the 20th of October and the time you began your testimony here on
1 A. Yes, I did. I met with Mr. Cayley and briefly Mr. Kay in -- in
2 The Hague
3 Q. Did you meet with members of the Defence team of General Gotovina
4 or General Markac?
5 A. Prior to Friday?
6 Q. Yes, prior to Friday.
7 A. Yes, I met both Mr. Kehoe and - I'm terribly sorry I'm going
8 destroy your name - Mr. Kuzmanovic. It's not, but...
9 Q. It's Kuzmanovic. We all know who he is.
10 A. Yes, thank you. Him over there. I'm very sorry about that.
11 I apologise.
12 Yes, I did.
13 Q. And the purpose of these meetings were simply to go through the
14 questions that you were going to be posed?
15 A. Yes, it was really to identify some of the issues that my
16 report -- they saw in my report.
17 Q. I'm simply asking because the additional note only covered the
18 period until 20th October.
19 A. Yes.
20 Q. Which is fine.
21 A. I understand.
22 Q. And while you were in The Hague last week, did you meet with
23 Mr. Albiston?
24 A. Yes, I did. We were staying in the same hotel. I -- but he was,
25 at that stage, giving evidence and therefore avoided me. Quite properly.
1 Q. Before he gave evidence, did you meet with him in The Hague
2 A. No. He arrived late one night, and I -- I believe went straight
3 in to give evidence the next day.
4 JUDGE ORIE: Mr. Hedaraly, sorry to interrupt you. The server
5 has been restarted. If you open the transcript again and then push the
6 "connect" button, then the whole of the transcript is available to the
7 parties again.
8 Please proceed, Mr. Hedaraly.
9 MR. HEDARALY: I'm grateful, Your Honour, as I'm sure my
10 colleagues are as well.
11 Q. Thank you --
12 JUDGE ORIE: Mr. Kay, if you need any attention, please -- I see
13 you're --
14 MR. KAY: I seem to be stuck, but that's not unusual in my case
15 with these things.
16 JUDGE ORIE: If you open the 9th of November, open the folder,
17 then you select transcript, then you get the transcript, but in order to
18 make it moving, you should connect at the top.
19 MR. KAY: I'm being ...
20 JUDGE ORIE: Yes.
21 Please proceed, Mr. Hedaraly.
22 MR. HEDARALY: Thank you. If there's any urgent need to stop, we
23 can do so obviously.
24 Q. Thank you, General, for those background questions.
25 The next topic I'd like to discuss with you briefly is just
1 general principles of command and control which you discussed in your
2 report. And I just want you to bear in mind this first series of
3 questions is really general in nature, so I'm not asking anything about
4 General Cermak or General Gotovina but just wanting to look at some of
5 your statements and ask you for further information.
6 A. Of course.
7 Q. If we start at page 10 of your report. You probably don't even
8 need to refer to these, because they're probably quite well known to you.
9 But you state:
10 "Both these commissions documents require officers to respond to
11 breaches of military discipline which by some means are brought to their
12 attention, whether committed by soldiers under their command or not. The
13 form of response will vary."
14 I just want to stop here for a second, and we will go to the next
15 sentence for my next question so that I'm clear on that sentence. If a
16 commander - and I'm talking generally here - if a commander learns about
17 a breach of a military by a soldier, he must - and I understand there a
18 limitation to what he can do - but he must do something; correct? He
19 must respond in some manner. Is that right?
20 A. Yes.
21 Q. And in the next sentence you say:
22 "This" -- the duty to act or to do something "does not mean that
23 officers can be held responsible for the particular behaviour or actions
24 of soldiers or not under their direct command and over whom they have no
25 direct influence."
1 So if I understood that correctly - and tell me if I have - all
2 the commanders have a duty to act or do something if they are aware of a
3 breach of discipline by someone who is not within their own unit; you're
4 saying they're not responsible for that specific behaviour?
5 A. That's true. I can give an example if you like or ...
6 Q. [Overlapping speakers]... can just --
7 A. I can just say that's true. That is what I meant.
8 Q. It's clear to me, but if the Chamber wants you to go further,
9 I'll give them an opportunity to do so. But to me it's clear.
10 A. Thank you.
11 Q. And now so -- and the commander that has a duty to do something
12 regarding a breach of discipline by someone who is not in their unit,
13 although they are not responsible for that behaviour, can they be held
14 responsible if they did not take any action with respect to that breach?
15 A. You used the word "commander," and, really, this is a --
16 something that every officer has to be aware of.
17 Now, you will say to me quite rightly, all officers are
18 commanders. In fact, they're not, because some officers are doing staff
19 jobs; they commands nothing. But all officer have a responsible --
20 responsibility if they see or hear of - and this is -- this is almost
21 inevitably after the fact - if they see of or hear of a breach of
22 discipline in terms of behaviour normally - and normally these are
23 trivial issues - then they have a responsibility to do whatever they can
24 to enable that offender, the alleged offender to be brought to book.
25 Now, whether that is stopping the offence, will you not do that,
1 or whether that is reporting it to the superior, that person's superior,
2 or whether it is merely passing it on, I saw this happen, can you please
3 make sure that somebody knows about this, will depend upon all sorts of
5 Q. When I make pauses that might seem unusually long to you, it's
6 simply for the translations.
7 A. I understand.
8 Q. Not because I'm questioning any of your answer.
9 So -- and you said that typically are trivial issues -- trivial
10 breaches if they were more serious breach, the same obligation on - and I
11 accept your correction - on all officers would say be the same; right?
12 A. Yes, correct, I'm sorry.
13 Q. Just for the record you need to --
14 A. Yes, of course, I'm -- yes.
15 Q. Now, when you talk about the officers - and I'll try to use the
16 correct term because that is the one you used in your report as well -
17 you talked about officers being responsible for the behaviour of their
18 subordinates for any breaches of discipline, you used the term "and"
19 meaning that to be responsible, in your view, they must both be under,
20 first, the command of the superior, and, secondly, the commander, or the
21 officer must be able to excerpt direct influence over that subordinate.
22 Only one of the two would not be sufficient. Is that your view
23 characterised accurately? I'm reading from page 10 in your --
24 A. Yes, I'm sorry. I'm just reading it again.
25 "And over whom they have no direct..."
1 I mean, command gives you authority, enables you one -- there
2 is -- there is no authority without the -- the -- the capacity to
3 sanction. Authority is about essentially making people do things,
4 imposing your will upon people. And that can be done in many ways, but
5 the final way of doing it is by the threat of sanction.
6 Q. And when you say that that is limited by those two factors, that
7 is based on your experience of the United Kingdom and NATO, general rules
8 of discipline; right?
9 A. Yes.
10 JUDGE ORIE: Mr. Hedaraly, could I seek one point of
12 On page 10, you're referring to behaviour as breaches of military
13 discipline. Was it your intention to limit it to the -- well, let's say,
14 disciplinary breaches or also more serious misbehaviour, such as crimes
15 committed in the course of ...
16 I'm just trying to find out, because sometimes you say that this
17 does not mean that officers can be held responsible for the particular
18 behaviour or actions of soldiers, where you do not make any distinction
19 between what kind of ill behaviour. Whereas sometimes you refer to
20 undisciplinary behaviour and - I would say crimes is certainly not
21 disciplinary behaviour. So -- but I did not -- I do not know whether you
22 wanted to include that in this section which is under the general heading
23 of authority and responsibility of a commander, or whether you would
24 exclude that from what you wrote here?
25 THE WITNESS: I mean, breaches of military discipline, of course,
1 can be very serious, as you well understand, Your Honour. I think if you
2 use the word crime in general in terms of civil crime, not being a
3 lawyer, I would have difficulty saying that -- that my -- my overall view
4 that officers have a responsibility to deal with crime, I don't think
5 that is true, because I think there are elements of the criminal law
6 which firstly they do not have a responsibility for are immediately
7 matters pertaining to the civil police. And in some cases they will have
8 no understanding that a crime has been committed. I mean, it could be
9 something like fraud, for example.
10 JUDGE ORIE: Yes. If you don't know, of course, you can't
11 respond to it.
12 THE WITNESS: [Overlapping speakers] ... I'm trying to --
13 JUDGE ORIE: At least or unless there is a situation where you
14 should have known. But I'm just trying to figure out whether -- I do
15 understand the -- the reservations you make. But if, in the course of
16 the exercise of military duty, a crime, which could be, just
17 theoretically speaking, could be a war crime or attacking a civilian
18 person or -- would that fall outside the scope of what you describe here,
19 or would it be part of it?
20 THE WITNESS: It would form -- it would fall inside that scope.
21 Attacking a civilian person is a military crime as well as a civil one.
22 JUDGE ORIE: Please proceed, Mr. Hedaraly.
23 THE WITNESS: In my judgement.
24 JUDGE ORIE: Yes, I was just seeking clarification of the --
25 THE WITNESS: Thank you.
1 JUDGE ORIE: -- scope of what you describe on page 10 under
2 subparagraph (c).
3 Please proceed, Mr. Hedaraly.
4 MR. HEDARALY: Thank you, Mr. President.
5 Q. And just in line with that clarification, would the -- a crime as
6 well fall under the scope of the duty of an officer to do something if he
7 was aware of it happening if that soldier is not under his direct
9 A. If it is reported to an officer it becomes apparent, through
10 whatever means, that something has been done wrong, whether it is a
11 trivial -- relatively trivial disciplinary incident or whether it is a
12 more serious crime, he actually has to take some action to ensure that
13 the alleged incident is dealt with, is investigated, is -- yeah. Is
15 Q. Thank you for that clarification.
16 And just staying -- or going back to what we were discussing
17 before based on -- this is it based on your experience and knowledge --
18 A. That's correct.
19 Q. -- as a very senior officer. I take it, sir - and I don't mean
20 to -- I just have to ask you this question - but I take it you were not
21 aware of this Tribunal's jurisprudence under Article 7(3) of its Statute
22 dealing with command responsibility and the liable -- and the criminal
23 responsibility of superior officers for their acts of their subordinates?
24 A. I have actually heard it quoted, but I wouldn't be familiar with
1 Q. And similarly, I take it, you would not know the specific
2 requirements in this Tribunal's jurisprudence on that -- on that issue;
4 A. No. Again, I've heard it talked about, but ...
5 Q. Now, similarly, on Friday, Mr. Cayley showed you some portions --
6 or, read out some portion of the indictment to you and asked you for your
7 comments on those. In those passages, the words "effective control" were
8 mentioned. Were you aware that those words have a very specific meaning,
9 legal meaning, given to them by the jurisprudence of this Tribunal?
10 A. I am aware there is a specific legal meaning in those word, yes.
11 Q. But when you were providing your answers or comments to the
12 questions from Mr. Cayley, you were not referring to those specific words
13 as a -- as -- as their legal meaning. We were talking about generally
14 about your understanding of General Cermak's authority?
15 A. Yes. And I'm sure we shall get on to the other point at some
17 Q. We most definitely will.
18 You also note at page 11 of your report this time, the last
20 "For there is a substantial part played by non-commissioned
21 officers, ultimately, it is officers who are responsible for creating and
22 sustaining good order and, as such, they must, at all times, maintain
23 good order and military discipline, however personally difficult it may
25 Could you please just elaborate on that briefly for the Court.
1 A. Yes. Your Honours, it -- the only reason you have officers with
2 their particular constitutional position is to -- we use the phrase "they
3 are the morale guardians of -- of the service." They are responsible for
4 setting the example. The example officers set is the example seen by
5 soldiers and, of course, this is picked up very clearly and very -- I
6 think, in a very positive way by the old JNA doctrine, in terms of
8 So officers do bear a responsibility in -- in -- in all the
9 armies I have ever been involved in. And they are supported by
10 non-commissioned officers. But the non-commissioned officers, take their
11 lead from the commissioned officers. It is the commissioned officer who
12 is are responsible for setting -- as General Pringle very interestingly
13 uses the phrase, "command climate."
14 Q. And we will get to command climate in --
15 JUDGE ORIE: One moment.
16 MR. HEDARALY: I thought it was over, but it was not.
17 Q. And just, at page 12 lines 18 to 20, I think you address, at
18 least in part, the Presiding Judge's clarification, and you say:
19 "It is the duty of all officers to ensure that breaches of
20 discipline, whether major or minor, are properly reported to the relevant
22 That's correct, right?
23 A. Yes, it is.
24 Q. Let's -- let's turn now to - which we seem to be on the same
25 page - to command climate, which is the a page 13 of your report, where
1 you discussed the importance for a commander to establish a strong
2 command climate. And that's at lines 28 and following.
3 You state:
4 "It is the prime responsibility of officers and entirely
5 dependant upon the examples they set, the clarity with which they explain
6 and justify the standards that must be met and their determination to
7 compel, when necessary, adherence to those standards."
8 General, if a -- if an officer or a commander does not discipline
9 his subordinates for breaches of military discipline, whether minor or
10 major, what impact would that have on the command climate?
11 A. Well, the failure to discipline breaches of military discipline
12 will normally lead, normally lead to a reduction from standards of
13 discipline. It doesn't inevitably do so. And, indeed, I have to say
14 that, at times, not disciplining some -- somebody, there may be a
15 justification for it. But that is unusual. And that is part of the very
16 very complex relationship that exists between officers and men and the
17 rest. But, in general term, you're right. It will lead to a reduction
18 in the standard of military discipline.
19 Q. And what impact would failure to discipline or take action
20 against crimes committed by soldiers, what impact would that have on the
21 command climate?
22 A. Well, it could encourage other soldiers to believe that they do
23 not have to obey orders themselves. And I think we need to be careful
24 here also, that there is a -- a sense that a soldier does nothing unless
25 he is given an order to do something. This is not what we're talking
1 about. This is the acceptance of -- this is the -- the I'm sorry -- this
2 is the carrying out of -- of those essential duties of a soldier which
3 are -- should be well known and should be done without anybody having to
4 give an order. This is the -- the daily standards of -- of discipline,
5 care for your equipment, treating people decently, doing that which you
6 know to be right without anybody supervising you.
7 Q. I think that I follow you. Would it be fair to say that failing
8 to punish crime or failing to discipline troops who committed crimes is
9 likely to create a climate that would encourage others to commit crimes
10 as well?
11 A. I'm not sure I would use the word "encourage." It depends how
12 you use it.
13 It will certainly -- it may certainly reduce the -- the innate
14 obedience to regulation and discipline in other people. Now, whether
15 that is encouragement or not is another issue. But it does lead to a
16 decline in the efficiency and effectiveness of force, because can you not
17 trust the people are do things they should be doing without being
19 Q. I accept your clarification.
20 Could the same be said about officers who fail to take action
21 with respect to the failure -- sorry, let me restate that. Could the
22 same be said about officer who failed to respond in some manner to either
23 breaches of discipline or crimes which you've mentioned earlier they are
24 required to do in some way. Would that also likely affect the command
1 A. These offences that affect the command climate are more likely to
2 be the -- the -- the essentially trivial ones, the ones about behaviour,
3 ones about maintaining standards, cleaning weapons, ensure vehicles are
4 properly serviced. It is that which starts to eat away at the
5 effectiveness of the unit. It doesn't lead to breakdowns in discipline,
6 in terms of increasing violence or -- necessarily. And that is
7 specifically what I'm talking to in terms the commands climate. It is --
8 command climate is all about the attitude soldiers have to their
9 soldiering and their willingness, their willingness, to do that which
10 they should do without being supervised.
11 Q. Perhaps it was my mistake in the question, and I do accept that.
12 Leaving command climate as a specific term aside, would the fact
13 that a soldier committed a crime and that he was not disciplined in any
14 manner, would that make it more likely that others will also commit
16 A. You use the word "crime." And I would prefer to use the word
17 "breaches" of discipline because I think crime has a -- we already
18 discussed with the Chamber the --
19 Q. Maybe, just for the purposes of these questions, we can just find
20 a -- find way -- I'm talking about -- well, you said, attacking a civil
21 for example would be both a crime and a --
22 A. Yeah.
23 Q. And -- and a breach of military discipline?
24 A. Yes.
25 Q. Destroying civilian property or disregarding civilian property
1 would be both a breach of discipline and a crime; correct?
2 A. Yes. And if you --
3 Q. Those are the ones that I'm talking about. I'm talking about
4 crimes, you know, like fraud or -- like -- those are the crimes I'm
6 A. If we're talking about that sort of crime, violence against
7 somebody, then the absence of legal action against one soldier may not
8 have any effect. But if it's a common trend that commanders do not
9 impose sanctions upon those soldiers that commit these offences, as a
10 matter of course, then those soldiers who are subordinated to them, as a
11 matter of course, then, of course, it can lead to a -- a further
13 Q. And, similarly, would it be the same if those breaches of
14 discipline/crimes, when they're not people under their -- under their
15 direct command but for whom they have an obligation to respond in some
16 way -- be it reporting to the authorised person or whatever, would that
17 also have the same possible effect, if it kept on happening?
18 A. I don't think, in the way that we are painting. Remember, the
19 command climate is the responsibility of the officer who has soldiers
20 subordinated to him. If you take somebody who observes an incident and
21 fails to report it because he is travelling in a car and -- and can't do
22 anything and then forgets it, that, in itself, I don't think, would be --
23 create the sort of situation that you have -- have you suggested.
24 So the -- the -- the most important element in this is the
25 element of a superior officer and a subordinated soldier, soldiers, that
1 is the relation -- that is where the relationship really exists. The
2 rest are very much more peripheral, the impact of the rest is very much
3 more peripheral.
4 Q. And drawing on your experience, if a commander or an officer has
5 troops directly subordinated to him this time, so in the direct chain,
6 that have committed crimes in a prior operation and those crimes have not
7 been addressed in any way, would it make it more likely that the same
8 soldiers or others in that unit would go on to another operation shortly
9 after would also commit similar crimes?
10 A. I think that's a reasonable position to take. Whether it's
11 backed up in fact is another issue.
12 Q. Based on your experience commanding a large number of officers,
13 it would be likely - would it not? - that failing to take action against
14 someone who committed something that was a crime, and then sending him
15 out the next day or two days later without telling him that he should not
16 do that, that he will -- he is more likely to do it again than if he was
17 told not to, right?
18 A. That's the -- that's the reasonable assumption to make from
19 there, mm-hm.
20 Q. Now let's go one step further. If a commander, prior to an
21 operation, issues a specific order to his soldiers not to commit certain
22 actions, if, despite these order, these soldiers in fact commit these
23 actions, if they are not disciplined and that these same soldiers that
24 are used in an operation shortly thereafter, what would you, as a
25 commander, do, to make sure that those same actions would not take place?
1 Would you issue the same orders or simply say something else?
2 A. We're talking generally here are we?
3 Q. At this stage, yes.
4 A. Yes, I mean, it goes back to the essential point that I made. If
5 in any particular unit it is seen that orders can be disobeyed without
6 sanction, then there will be a sense that this is fair enough and we will
7 continue to do that. That is a general principle which I think falls out
8 of everything that we have been talking about.
9 Q. I'm sorry if my questions sometimes may seem obvious to you. I
10 don't have the same expertise as you have on these matters.
11 A. I hope my answers are clarifying.
12 JUDGE ORIE: I was asking myself, Mr. Hedaraly, to what extent
13 this expert witness has knowledge on how troops would behave in the
14 future, if crime or undisciplined behaviour occurred and if nothing was
15 done, I do not know whether the expert witness ever experienced such a
16 situation or not, not on, perhaps, on a mass scale but on a large scale,
17 undisciplined behaviour was not responded to in any way, and --
18 THE WITNESS: I am very fortunate I have never experienced that.
19 JUDGE ORIE: Yes, well, that doesn't come fully as surprise to
21 And, Mr. Hedaraly, you are certainly aware that the effect of
22 imposing sanctions and what would happen if you do not impose sanctions
23 and what the effect is if you do impose sanctions, is -- is a matter
24 which, I take it from the previous answer of this expert witness, is only
25 to a limited extent a field in which he has experienced or whether he
1 is -- has some specific expertise. And I think for all the lawyers in
2 this courtroom, it's clear that the effect of imposing sanctions is a
3 matter over which we have hot debates already for, well, one century or
4 two centuries. So, therefore, I would invite you to remain as focussed
5 as possible. Please proceed.
6 MR. HEDARALY: Thank you, Mr. President.
7 If we can have on the screen 65 ter 2D00567.
8 General, this is one of the documents you've referenced in your
9 report. It is the report of General Pringle. And at page 15 line 15 of
10 your report, when you are discussing the command climate, you said that
11 it was well described by General Pringle.
12 I just wanted to ask you if the sections that you reviewed are
13 the appropriate paragraphs that I want to show you which are at page --
14 page 10 starting at paragraph 38. But before I ask you my question, I
15 notice that my learned friend is on his feet.
16 JUDGE ORIE: Yes. I wanted to give you an opportunity to finish
17 your question before --
18 Mr. Kehoe.
19 MR. KEHOE: My apologies for interrupting. Obviously this is a
20 report for an expert that the Prosecution did not call. There are a
21 number of facets to this report, and reading the report I understand why
22 he was not called. That being said, before we get too far down the road
23 with this report, with some attempt on the part of the Prosecution to
24 admit it, I'd like some order of proof coming from the Prosecution as to
25 what they intend to do. If there's going to be some type of addressing
1 or putting a portion of this report into evidence, frankly it's a
2 violation of Rule 94 bis.
3 So the reason I rise at this point, Mr. President, because I do
4 believe that -- well, I should say that I suspect that we will be going
5 down that road and we will have an objection because the Prosecution
6 chose not call General Pringle.
7 JUDGE ORIE: Mr. Hedaraly.
8 MR. HEDARALY: Thank you, Your Honour.
9 Just to make clear, I do appreciate the issue and I do appreciate
10 that is an expert who the Prosecution has not called and therefore was
11 not cross-examined by -- by the Defence.
12 However, it is a report that is specifically referred to by this
13 expert. It is a report that he therefore concludes is one of the key
14 documents that helped him reach the conclusions in his report. He
15 essentially says that he has adopted at least one portion of it, so --
16 [Trial Chamber confers]
17 MR. HEDARALY: So the situation is the following. The report
18 says, I read X and it is well described. And I'm now repeating it here.
19 Whereas X itself is nowhere on the record.
20 Now, the only alternative is for me to read out that portion on
21 the record and ask the expert if that's what he was with referring to.
22 And, although I do appreciate the situation about the fact that he was
23 not called by the Prosecution, the fact of the matter remains that that
24 report was relied on by this expert. And I'm happy to ask him which
25 portions he relied, did he review the whole report, what did he think of
1 it. But, otherwise, we don't have anywhere, in terms of transparency,
2 which portions were relied on. We have a footnote generally describing
3 the report. And even in his testimony today, the witness referred to
4 General Pringle.
5 MR. KEHOE: May I respond, Mr. President?
6 JUDGE ORIE: You made an objection. Mr. Hedaraly has responded.
7 Your objection is denied, Mr. Kehoe.
8 What follows in the following questions is still to be seen.
9 This expert witness apparently has been provided with a report, which he
10 considered, I take it from his point of expertise, relevant. He quoted
11 it. Under those circumstances, Mr. Hedaraly is at least entitled to put
12 questions to him. Whatever the follow-up may be, we do not know yet, all
13 of the questions.
14 So, therefore, the objection against putting this question to the
15 witness is denied.
16 Please proceed.
17 MR. HEDARALY: Thank you, Mr. President.
18 Q. General, when you were describing the -- in your report, the
19 description of the command climate, and when you said it was
20 well-described by Major-General Pringle, if you look on your screen, and
21 if we can go page by page until page 13 until the end of that section.
22 Can you just confirm for us that that was the section that you relied
23 upon when you made that statement in your report?
24 A. The section that starts with question 5.
25 Q. Yes, that's correct.
1 A. Yes, that's correct. I did. I mean, I read the whole of the
2 Pringle report, but I looked particularly at question 5 and used the
3 answers to that question to inform my -- my report.
4 Q. And you essentially agreed with Major-General Pringle's
5 conclusions in that section?
6 A. I agreed with what he said, yes. I -- there was one conclusion
7 which we may come to which I felt he overstated, but we might discuss
8 that. I ought to say, for transparency, that General Pringle is a
9 personal friend of mine, and that we were at Sandhurst together and
10 worked together on one or two occasions. And he knows that I'm doing
11 what I'm doing, and I know that he obviously -- and he knows that I know
12 that he wrote this report.
13 Q. Just to -- just do maybe cut matters short, can you tell us which
14 one was the conclusion that you disagreed with? Is it at the end?
15 JUDGE ORIE: Mr. Hedaraly, this document is not yet in evidence.
16 So, therefore, to put the question to the witness whether he agrees with
17 what General Pringle said doesn't give any evidentiary value. I allowed
18 you to put questions to this expert witness in relation to
19 General Pringle's report, but if it is not in not in evidence, then any
20 comparison is totally useless.
21 MR. HEDARALY: I understand, Mr. President.
22 JUDGE ORIE: But if you say, You have written down this.
23 MR. HEDARALY: I --
24 JUDGE ORIE: And apart from -- of course, you can ask the witness
25 whether he ever experienced any disagreement with what he read as
1 conclusions of General Pringle. Then what we would then known is, first
2 of all, what General Pringle, apparently, on that item, said and that
3 this expert witness disagreed with him in this respect.
4 Now, for the others, whether or not anything more should be in
5 evidence or not, apparently you're not seek this report to be admitted
6 into evidence?
7 MR. HEDARALY: Well, I mean, that was the guidance I was seeking,
8 Mr. President. The witness now has explicitly stated that he relied on
9 four pages of those. And I understand they're not on the record. So it
10 seems the only option is either that it gets an exhibit number so that we
11 know what the witness is referring to, or I read those four pages which
12 is going to take quite a long time so that we have it on the record. And
13 that was -- that's the guidance that I was seeking earlier. I can put a
14 few other questions to the witness, but then how do we deal with the
15 matter so that everyone does have the right information on the record?
16 JUDGE ORIE: Mr. Hedaraly, but, of course, what I see is
17 Major-General Pringle in his report. I then see 65 ter and then the
18 number. That's everything we know.
19 Then you know, of course, the case law, that if documents are
20 produced for the purposes of this proceedings, I do not know whether
21 that's the case or not, because I have got no information whatsoever
22 about it. The only thing I see now, Q 5 on the screen, but could you
23 tell us more, then, about the report. Apparently it has been -- I don't
24 know been provided by who. Perhaps by Mr. Cayley to the expert witness.
25 Mr. Cayley may have considered it to be relevant for the witness
1 to learn about.
2 MR. CAYLEY: Very briefly, Your Honour.
3 The report was provided to the witness at a time when the Defence
4 believed that Major-General Pringle was going to be a witness in the
5 case. Subsequently, for whatever reason, the Prosecution decided not to
6 call Major-General Pringle. But, of course, General Deverell had written
7 his report and had considered the matters that General Pringle had set
8 out in his report.
9 But I think, you know, you've already pointed out - you've
10 referred to the case law - to now use that as a vehicle to somehow get in
11 through the back door -- Major-General Pringle's report, well he never
12 gave evidence before this Chamber, I think would be improper. And the
13 better way to do it would simply be to cross-examine on the basis of the
14 report and asked about the principles reflected there. Otherwise, what's
15 happening in essence is that the expert report is going in without the
16 expert witness ever having given evidence here.
17 JUDGE ORIE: Make I take it that you join Mr. Cayley' position,
18 Mr. Kehoe?
19 MR. KEHOE: Yes, Mr. President.
20 JUDGE ORIE: Mr. Hedaraly, you have got approximately one hour's
21 time to consider the present situation because we will have a lunch
22 break. Of course, you can further discuss it. But, procedurally, now
23 knowing that this was an expert report which was prepared for the
24 purposes of this proceedings, from what I understand, an expert report of
25 a witness who finally was not called by the Prosecution may create some
2 I would like you to consider that.
3 We'll have a break, and we will resume at a quarter to 3.00.
4 --- Luncheon recess taken at 1.49 p.m.
5 --- On resuming at 2.47 p.m.
6 JUDGE ORIE: Mr. Hedaraly, first of all, we'll -- this
7 afternoon's session, we'll first go on until quarter past 4.00 and then
8 resume at 25 minutes to 5.00, and then continue until 6.00. If that's
10 Then I gave you an hour to consider certain matters. Have you
11 made up your mind? Does it change anything in your position?
12 MR. HEDARALY: It does, Mr. President, I will follow my learned
13 friend Mr. Cayley's suggestion and simply go through a few of the matters
14 in the report and examine the witness and not seek to tender it into
16 JUDGE ORIE: Then please proceed.
17 MR. HEDARALY: Thank you, Mr. President.
18 Q. General, you -- you stated you had reviewed General Pringle's
20 A. Yes, I did.
21 Q. It's already on the screen. I will just go through a few
22 portions, a few paragraphs, and simply ask you whether you agree with him
23 or not and if there are any additional comments that you wish to make.
24 MR. HEDARALY: If we can first go to page 5 at paragraph 17.
25 Q. This is under the heading: List and discuss the main principles
1 that universally apply to command and control in armed forces in the
2 world, including the HV.
3 Now there will be some overlap between your report and this one,
4 but I just want to make sure that the discussion is the same.
5 So paragraph 17 says:
6 "Command refers to the authority vested in an individual for the
7 direction, coordination, and control of military forces. It therefore
8 encompasses the authority, responsibility, and duty to act. Leadership
9 and decision making describe the commander's primary responsibilities.
10 Command also involves accountability and control."
11 General, do you agree with that assessment?
12 A. Yes, I do.
13 JUDGE ORIE: Mr. Hedaraly, the Chamber would prefer if you would
14 first try to explore where this witness disagrees with yet an unknown
15 portion of a report which is not in evidence and then you can elicit
16 whatever you want where apparently the witness is in agreement with
17 Mr. Pringle. And then you just ask him about it. And you know that it's
18 consistent with Mr. Pringle's position, and we do not know but we do not
19 have to know because it is not in evidence.
20 MR. HEDARALY: Okay.
21 Q. General, do you remember which conclusion of Mr. Pringle you
22 disagreed with?
23 A. If you could scroll down the -- the page, please. I think it's
24 over the next page. I'm sorry, I haven't got General Pringle's report to
25 hand, only the --
1 Q. Do you remember what section it was in?
2 A. No, frankly. It was end -- if you look at the end of question 5,
4 MR. HEDARALY: Let's go to the end of question 5, which is
5 paragraph 13, I believe -- page 13. If you can go to the top of that
6 page, right there.
7 THE WITNESS: In fact, it's the end, I think, of question 6.
8 MR. HEDARALY: Okay. And that would be paragraph 53. Or 52,
9 perhaps if we can scroll down the screen from the beginning so that the
10 General can read it.
11 THE WITNESS: No. It's not there. Please keep going down. Keep
12 going down. Hmm.
13 Perhaps you can try the next page. I'm sorry I'm not being able
14 to find. I know precisely what I'm looking for; I just can't remember --
15 MR. HEDARALY:
16 Q. General, let me suggest the following. At the next break we will
17 provide with you a hard copy --
18 A. [Overlapping speakers]... I think that would be much better,
19 yeah. Thank you.
20 Q. And you can look at it and let us know if you --
21 A. It's a -- it's a very small issue, and it is a -- it's not a
22 disagreement of the statement; it's an interpretation which -- a
23 different interpretation that I would put upon it.
24 JUDGE ORIE: Yes. Because, Mr. Hedaraly, this witness appears as
25 an expert witness before us, to what extent he disagrees with others
1 is -- well, if it's like, I read this in literature and I disagree with
2 this author is, of course, for an expert, appropriate to tell us. But
3 this seems to be very much focussed on this case and therefore to what
4 extent he agrees or disagrees is not -- we do understand that it's only
5 on one point that the witness disagrees whatever he wants to tell us is
6 in the report. Whatever you'd like to add to that and whether or not to
7 be found in a report authored by Mr. Pringle seems not to be a relevant
8 issue for us at this moment.
9 MR. HEDARALY: I do understand the guidance, Mr. President. It's
10 simply because the witness has relied on this -- on this specific
11 document to come to his conclusions. He -- it's one of the key documents
12 he relied on, and that was the basis --
13 JUDGE ORIE: Well, what I see is command climate well described
14 by Major-General Pringle. So the only thing I find here, but -- is that
15 he says, Well, that person, what I considered to be right, is
16 well-described by him. Which, of course, whether that's relying on
17 someone else or just saying, Well, someone else who has a similar
18 position described it well. That's -- if we -- yes, of course, there are
19 other portions where more is described. But he then describes that again
20 in a certain way, and let's -- let's try to avoid that this witness is
21 telling us what General Pringle wrote in his report. Even if he relies
22 on it to some extent, then ask him similar questions or to the extent
23 relevant and not appearing in this report, but let's try not to -- to
24 make it a kind of a twin report.
25 MR. HEDARALY: I understand, Mr. President.
1 JUDGE ORIE: Mr. Kehoe.
2 MR. KEHOE: Mr. President, under this score, going into issues
3 even that Mr. -- that General Deverell disagreed with is indirectly
4 putting this report in when he is not relying on that aspect of the
6 Now, if the cross-examination wants to explore those citations in
7 General Deverell's brief that cites General Pringle, I think that we can
8 go through that through the exercise of pointing out that portion of the
9 report or General Pringle's report upon which General Deverell relies.
10 But to go into what he disagrees with is outside that which
11 General Deverell relied upon in order to formulate his report. And what
12 we have in evidence is the report, not those portions upon which there
13 may have been a departure of opinion.
14 So we would disagree that getting into some exercise where we
15 went into facets that upon which these two Generals disagreed is
16 appropriate. I submit to you, Mr. President, it's not appropriate and
17 that our focus should be on those portions cited by General Deverell.
18 [Trial Chamber confers]
19 JUDGE ORIE: Mr. Kehoe, I have consulted my colleagues. The
20 Chamber does not agree with you. Where the witness said that it's only
21 one point that he disagreed with what Mr. Pringle has written, again,
22 which is not in evidence, that means that it could be a matter - and I do
23 understand it's not a major thing; it's just interpretation of a certain
24 matter - the Chamber would like to know then also what the other
25 interpretation would have been so that we are better able to assess the
1 value of what this expert witness tells us.
2 But it may be clear to you as well that the Chamber is certainly
3 trying to avoid that we have two for the price of one.
4 Please proceed, Mr. Hedaraly.
5 MR. HEDARALY: Thank you, Mr. President.
6 Q. General, if local troops drawn from an area where they were
7 racial tension or ethnic conflict previously who were involved in an
8 operation, that would be something that a commander would take into
9 account; correct?
10 A. Yes, it -- I'm sorry. Yes, he should be taking it into account.
11 Q. And if such troops had to be involved in an operation, the
12 commander would have a special responsibility to ensure that they
13 conducted themselves properly?
14 A. Technically, yes, he does. Realistically, it's very much more
16 Q. What do you mean by that?
17 A. Well, I say in my report that actually sometimes you find,
18 particularly in the sort of environment we're talking about,
19 locally-raised forces' loyalty is greater to their local commanders than
20 to their more senior commanders who maybe do not come from that local
21 area. And I experienced this myself in -- in Northern Ireland.
22 So there is -- there is a realistic issue here about exactly how
23 that level of command and control is achieved.
24 Q. That's fair enough. What I'm trying to get at is that the
25 commander would be conscious of that and would make or should make more
1 efforts than usual to at least try to control his soldiers.
2 A. Well, he should make every effort he needs to make to ensure that
3 his soldiers behave properly. How much effort that requires will depend
4 upon the standard of training of the soldiers he has under his command.
5 Q. Thank you.
6 Let me turn to -- actually, I forgot to ask you before when we
7 were discussing the general process by which you prepared your report.
8 You told us on Friday that you had prepared a draft initially and that
9 that draft had been modified, that you eliminated some duplication, and
10 that you eliminated portions dealing with Grubori. Is that right?
11 A. It was not a draft. It was a report.
12 Q. And as such --
13 A. Sorry, to finish off, to answer your question, yes, I did make
14 certain changes, one of which involved Grubori.
15 Q. But that was a report -- so that was a report that you were happy
16 to have submitted before you were told that it could be presented more
17 efficiently, right?
18 A. Yes.
19 Q. Would you be willing to provide a copy of that report to the
20 Court, to the Prosecution?
21 A. I don't think I've got a particular copy. It's on -- it was
22 brought together as a -- you know, a group of separate elements, and I
23 think the only -- the only copy may well be, you know, within the
24 Cermak Defence team.
25 Q. And would you be willing to look for it electronically?
1 MR. CAYLEY: Your Honour, I'm going object to this point because
2 this matter has already been addressed by the Court. I can't recall the
3 exact day, but I recall your words, which were, Drafts are not to be
4 provided and that these matters can be explored in cross-examination.
5 MR. HEDARALY: That was a disclosure obligation of the Defence
6 team. I'm asking the witness directly if he's willing to provide us a --
7 JUDGE ORIE: Well, Mr. Cayley, I'm -- I must say that one of the
8 previous answers was:
9 "It was not a draft. It was a report."
10 Therefore, if you're referring to what should be done with
11 drafts, then that answer would not fully support your argument.
12 MR. CAYLEY: Well, what I'm -- the point I'm making is that
13 Mr. Hedaraly know's what the legal position is, and I think to be asking
14 the witness that question is improper in light of the Court's ruling.
15 MR. HEDARALY: I would simply refer also that the Court did ask
16 Mr. Theunens directly, without asking the Prosecution whether they had
17 any objections. And then when the witness agreed, it was on an
18 invitation of the Court. I'm simply making a similarly invitation to the
19 witness, and if he is happy with that report, I see no reason why I
20 cannot ask the witness directly if he is willing to provide it.
21 [Trial Chamber confers]
22 JUDGE ORIE: Mr. Hedaraly, the Chamber understood that you wanted
23 to invite Mr. Deverell to express his opinion on whether he would -- had
24 any problems in making available to the Chamber the -- what I then
25 understand is a Grubori part of the report which was finalised but then
1 taken out because the report would be too extensive.
2 Is that -- or not really the matter you wanted to deal with?
3 THE WITNESS: Your Honour, I am -- I am to state the obvious, I'm
4 the Court's servant here. I have nothing hide by trying to prevent
5 people seeing what I had previously written in my report. It is up to
6 the Court to decide. I would have difficulty -- I may have some
7 difficulty being absolutely certain from my point of view, within my own
8 system, exactly the report I sent because I have several copies of my
9 draft, my drafts, which I put together. And it may be that if I put
10 together that -- those drafts into what I thought was the report I sent
11 in, there could be other issues which -- other -- other mistakes and
12 things that I had rejected.
13 So there is, from my point of view, a technical, a physical
14 problem, from the point of view of the evidence -- I'm sorry the report,
15 there is nothing in that report that I would not be able to, personally,
16 to defend.
17 JUDGE ORIE: Yes. The Chamber will consider whether it will
18 invite whomever that would be at the moment to -- to be provided with the
19 Grubori chapter of the report.
20 Is that how I could say it? Because you said it was a report, it
21 was part of the report you submitted which was finalised and then it
22 was -- that portion was taken out for very practical reasons.
23 We will consider it, whether we will do that.
24 And, at this moment, Mr. Hedaraly, you may move on.
25 MR. HEDARALY: Thank you, Mr. President.
1 Q. General, I want to now move to a -- the appointment of
2 General Cermak.
3 A. Yep.
4 Q. And at page 8 of your report, I'm referring to lines 12 to 15,
5 you state that there were three elements of Cermak's appointment to Knin.
6 First, as a garrison commander; second, as an administrator to facilitate
7 the normalisation of Knin; and, third, a point of contact for
8 international organisations.
9 Now, General, he was appointed to Knin for these three tasks by
10 President Tudjman. Correct?
11 A. That's correct.
12 Q. And President Tudjman was the head of state and Supreme Commander
13 of the army. Correct?
14 A. And under the rules, he to appoint generals, yes.
15 Q. Thank you. I take it you don't dispute President Tudjman's
16 authority to make that appointment?
17 A. No.
18 Q. And will you agree with me that assisting with the normalisation
19 of Knin did not come strictly within the tradition responsibilities of a
20 garrison commander?
21 A. I agree.
22 Q. In your report, in fact, you refer to that role with respect to
23 normalisation at page 35 of your report where you discuss P1144, a
24 transcript of a meeting between President Tudjman and General Cermak,
25 where these tasks were described. And they included, among other things,
1 keeping order, preventing disorders, infrastructure, and so on?
2 A. Sorry, could you remind me of the page? I --
3 Q. Absolutely. 35.
4 A. 35, thank you.
5 Q. That's where you --
6 A. Yes, I have it.
7 Q. And that's where you describe the tasks associated with the
8 normalisation, right?
9 A. Yes.
10 Q. And similarly being the point of contact of international
11 organisation does not fall within the tradition roles of a garrison
12 commander. I think you said --
13 A. [Overlapping speakers]... that's correct.
14 Q. [Overlapping speakers]...
15 A. That's correct, yes, it does not.
16 Q. That was also a tasking that he received directly from
17 President Tudjman, right?
18 A. I don't believe, to be semantic about this, that presidents give
19 tasks. They give direction, strategic direction, I mean, the classic
20 source, Supreme Commander and chief gives direction to the operational
21 commander from which tasks are devolved. It's part of the planning
23 So to say that was given a task by the president is -- is
24 incorrect. He was certainly given direction as to what he should do.
25 But that is not, I would suggest, a task in the accepted meeting --
1 meaning of a task not least because a task should have resources attached
2 to it.
3 Q. Maybe it's just semantics, but President Tudjman as the
4 Supreme Commander, told General Cermak to deal with international
6 A. He directed him to do so. I -- I merely wanted to identify that
7 we didn't uses the word "task" in a loose and general sense only to come
8 back to it to refer to it in a very specific sense.
9 Q. Okay. That's fair enough.
10 And those -- and two of those functions, or however we call it,
11 appointments of President Tudjman with respect to General Cermak, the
12 normalisation of Knin and being the point of contact, did not fall within
13 the tradition responsibilities of a garrison commander, right?
14 A. That's correct.
15 Q. Now, since those responsibilities fell outside the traditional
16 roles of a garrison commander and yet General Cermak was appointed to
17 perform those tasks or responsibilities not to -- it would follow that
18 his authority with respect to these issues would also come from sources
19 outside the traditional sources of authority of a garrison commander?
20 A. Well, it does presuppose that there was any authority for him to
21 carry out those tasks. I saw nothing in writing which gave him any
22 authority to carry out those tasks. The only authority he had came from
23 his -- his appointment as garrison commander. As far as could I see, I
24 saw nothing which said, Here is this General who is officially employed
25 to do these other two tasks. It was entirely a general direction from
1 the Supreme Commander, President Tudjman, who used the position of a
2 garrison commander in order to put him in place, in order to do, in my
3 judgement, primarily the task of urban regeneration.
4 Q. Are you disputing President Tudjman's ability to -- or authority
5 to appoint General Cermak to carry out functions with respect to
6 normalisation of Knin and being the point of contact with international
8 A. No, I'm not disputing his authority to say, I wish there to be a
9 point of contact and I wish there to be somebody who goes to conduct
10 urban regeneration; neither am I disputing his authority say, And,
11 General Cermak, It should be you.
12 But what I didn't see was anything which said, Here are the
13 precise authorities you have. Here are the sanctions can you impose upon
14 those who fail to comply with you in terms of fish farms, et cetera,
15 et cetera. I didn't see anything which gave him any power to do what he
16 actually did. Now, if there are documents that -- that do this, then --
17 or I have misinterpreted documents, then I would be very grateful to be
18 shown them.
19 Q. Whether there are documents or not, all I'm trying to establish
20 is that President Tudjman had that authority. Now, whether there is a
21 document that we have here or not is not really my question. My question
22 is: Did he have the authority to assign General Cermak to carry out
23 those responsibilities. Right?
24 A. Yes. I believe that to be true. He did have the authority to do
1 Q. Thank you. So when you say that General Cermak's actual
2 authority and responsibility were limited by his appointment, that of a
3 garrison commander, that would mean that his authority and responsibility
4 with respect to his appointment as garrison commander were limited by
5 that, but we just don't know what the authority -- what the limitations,
6 if any, were for the two other functions; correct?
7 A. I know of no limitations for his authority for the other two
8 functions because I know of no authority he ever had to do the other two
10 Q. So your position is that President Tudjman did not give him the
11 authority to carry out the two other portions of his responsibilities?
12 A. I don't think he -- if we agree that authority consists of power
13 to -- to -- to act, that people have to obey your instructions, I saw
14 nothing which gave President Cermak [sic] the authority to start issuing
15 instructions to banks or fish farms or -- or whatever. I saw nothing
16 which gave him the authority to actually deal with the international
17 communities. All he got was a general direction from President Tudjman
18 to go and do it, and they placed him, as garrison commander, to give him
19 what they thought was the wherewithal to do that job. Because there was
20 no other appointment they could give him.
21 Q. Now, you mentioned "general direction" a few times.
22 Did you know that Mr. Cermak considered the task that he received
23 from President Tudjman to amount to an oral order? That's how he
24 referred to it.
25 A. I'm -- sorry, General Cermak may well have done. But I saw no
1 evidence that he had, from that instruction, any authority. It is one
2 thing to order somebody to -- to perceive somebody as ordered you to do
3 something; it is another thing, I believe, then to take upon yourself the
4 authority you need to comply with that order.
5 Q. Well, General, if the Supreme Commander told Cermak to do
6 something, and if Cermak thought that that was an order, wouldn't you
7 agree with me that that's what he had to do?
8 A. I absolutely agree that that's what he had to do. I think we're
9 mixing up my view of President Tudjman's authority to tell General Cermak
10 to do something. I want you to go and sort out Knin and help the
11 Canadians, I think, is a rough translation, a sort of contemporaneous
12 translation of what he was told. That is what, I think, General Feldi
13 said, if I remember correctly.
14 That is very different from then giving the person you have given
15 that instruction or getting your staff to find for that person the actual
16 authority which enables you to do it. The legal basis upon which you
17 issue instructions. And he only gave him the authority that came through
18 the appointment of a garrison commander. And your authority comes from
19 your appointment and not your rank.
20 Q. So if we accept --
21 JUDGE ORIE: One second.
22 MR. HEDARALY: Thank you, Mr. President.
23 Q. So if we accept General Cermak's view that he received an oral
24 order, are you saying that President Tudjman gave him an order without
25 giving him any means to carry it out?
1 A. Yes. Yes, I am. I am.
2 Q. Now, you don't know - do you? - what President Tudjman
3 specifically told General Cermak as to what he could and what he could
4 not do; correct?
5 A. I don't. I wasn't in the room at the time.
6 Q. And the fact that General Cermak was appointed by
7 President Tudjman gave him a status that was different than those of
8 other garrison commanders; correct?
9 A. Status can be used in two senses: legal status, or social
10 status. I don't believe he gave him any legal status any more than that
11 which the appointment of garrison commander afforded him.
12 Q. Because he was appointed by the Supreme Commander, the
13 Main Staff, for example, were limited with respect to what they could or
14 could not do with respect to that appointment; right?
15 A. Well, all Generals were appointed by the Supreme Commander under
16 the constitution. So, I mean, I'm not quite sure the point you're making
18 Q. Let me show --
19 JUDGE ORIE: Mr. Hedaraly, the way in which you dealt with the
20 matter until now, if you want to show the witness is any document is
21 fine, then we'll move on.
22 But the Chamber takes the position that, without any specifics in
23 the way it was done, that the matter had be sufficiently explored. But
24 if you want to go into any further details, then, of course, that would
25 be a different matter.
1 [Prosecution counsel confer]
2 MR. HEDARALY: Just waiting for a number that I didn't write
4 A. Yes, absolutely.
5 Q. Obviously my mistake.
6 MR. HEDARALY: If we can have 65 ter 7466, please.
7 Q. And, General, there will be an order from the Main Staff coming
8 up. You see it's dated 9 November, 1995
10 A. I don't recall seeing that before.
11 Q. If we look under item one, it's an order from the Main Staff to
12 eliminate the commands of garrisons.
13 A. Yeah.
14 MR. HEDARALY: If we go to the next page in the English.
15 Q. We'll see -- we see under item four who essentially is now
16 supposed to perform the duties of the garrison commanders. And various
17 Military Districts are listed.
18 MR. HEDARALY: If we go to page 4, we will see the list for the
19 Split Military District.
20 Q. And you will see here that all the other garrisons within the
21 Split Military District are listed: Split, Zadar, Sinj, Vrgorac,
22 Imotski, Dubrovnik
23 But that Knin is not listed; correct?
24 A. Yeah.
25 MR. HEDARALY: If we can now go to 65 ter 7467.
1 Q. And this will be a December 1995 clarification of this order that
2 you will see. Just go to the bottom and you see it says:
3 "Acting commanding officer for the Knin garrison was not
4 designated in the order," and there is a description in the order which
5 we have just seen, "because the Supreme Commander of the Croatian armed
6 forces appointed General Cermak to the duty of the Knin garrison
7 commanding officer, as per his order. The acting Knin garrison
8 commanding officer will be appointed after the Supreme Commander's
9 decision becomes invalid."
10 Now, General, these two documents show that, because
11 General Cermak was appointed directly by President Tudjman, that he had
12 to be -- in some respects treated differently from other garrison
13 commanders; correct?
14 A. I think he was treated differently because he was a General.
15 Therefore, you are right that if other garrison commanders were not
16 Generals, then General Cermak is being treated differently. But he had
17 to be appointed by the Supreme Commander, and, I guess, I would presume,
18 that therefore he would have to be -- his appointment would have to be
19 annulled at some stage by the Supreme Commander.
20 Q. And that's what this document says?
21 A. Yes.
22 Q. That it's because President Tudjman appointed him directly?
23 A. Correct.
24 Q. Thank you.
25 MR. HEDARALY: If I can tender 65 ter 7466 and 64 7467 into
2 MR. CAYLEY: No objection, Your Honour.
3 JUDGE ORIE: Mr. Registrar.
4 THE REGISTRAR: Your Honour, those documents become Exhibit P2656
5 and P2657, respectively.
6 JUDGE ORIE: P2656 and P2657 are admitted into evidence.
7 MR. HEDARALY: Thank you, Mr. President.
8 Q. General, were you aware that General Cermak's appointment
9 received media coverage both on television and in the printed media?
10 A. I think I was, yes.
11 Q. And you also state in your report that the garrison commanders
12 are normally middle-ranking officer, major-colonels?
13 A. Yes.
14 Q. And you also refer to General Cermak as being over-ranked for the
16 A. Yes.
17 Q. Would you agree, General, that the appointment of such a
18 high-ranking person by the president could indicate that he wanted to
19 make sure that his appointment got some attention among the military?
20 A. I -- I would say that it was clear that the -- the President
21 wished to draw attention to the fact that he had put a senior officer
22 down there, but I'm not sure it was your last couple of words, draw the
23 attention of the military. I'm not sure I would agree with that. It
24 don't think necessarily it follows. It may be -- it may that be you have
25 a perfectly reasonable point. I would suggest that there is a perfectly
1 reasonable alternatively that he was not seeking to impress the military;
2 he was seeking to impress the wider Croatian public and the international
3 community, perhaps.
4 Q. My question was that it could be a sign of this. We don't know,
5 obviously, but it could --
6 A. Yeah, I think it's perfectly reasonable to assume that. Its
7 also, I would suggest, reasonable to assume that it was not.
8 Q. That's fair enough. And this -- this an appointment was also
9 special as we've discussed because it encompassed elements not
10 traditionally associated with a garrison commander, and it was,
11 therefore, a special appointment given to General Cermak at a very
12 special time, right after Knin was liberated; correct?
13 A. Yes.
14 Q. And Knin had a significant symbolic importance to Croatia
15 A. It did.
16 Q. Did you know that after his appointment General Cermak continued
17 to communicate with the office of the president and even with the
18 president himself?
19 A. I believe to be so, although there is little evidence of it.
20 Q. Were you aware that in his interview General Cermak stated that,
21 in fact, he would deal directly with the office of the president on the
22 issues of normalisation and contact with international organisations?
23 A. I'm sorry, which interview was this?
24 Q. I believe he said it in the 1998 and the 2001 interview. But I
25 can get specific reference and show them to you --
1 A. So this was an after-the-fact interview?
2 Q. I'm sorry. An interview with the Office of the Prosecutor.
3 A. I'm sorry. I misheard that. Yes, yes. I was aware of that.
4 I'm sorry. I thought it was a media interview.
5 Q. My question was open to confusion.
6 A. Yeah.
7 Q. So you are aware that he had said that?
8 A. I am aware that he said it, yeah.
9 Q. Did you know that this Chamber has received evidence that, as far
10 back as 1992, some people in the Main Staff thought that General Cermak
11 was untouchable because he was believed to have immense power, given his
12 close relationship with the president and the minister of defence?
13 A. I've heard that, but I've seen no evidence of it. And, from my
14 point of view, that was -- as it were, gossip. And I took no notice of
15 it. I haven't heard that specific phrase, but I knew there were people
16 who were saying such things.
17 Q. You have also indicated that General Cermak was, I think you
18 said, uniquely to be a garrison commander, correct?
19 A. Correct.
20 Q. Now, regardless of General Cermak's qualifications, he was still
21 appointed as garrison commander and, therefore, had to carry out all the
22 duties and responsibilities of a garrison commander; correct?
23 A. I was supposed to, yes.
24 Q. And if he failed in doing so, he would be responsible just as any
25 other officer would have been?
1 A. You could take that point of view.
2 Q. Let me discuss briefly this issue of a military governor that has
3 come up a few times.
4 Now, you provided us with a definition, and it's also in your
5 report. And if I understand correctly, and it was discussed again this
6 morning, a military governor would be normally appointed in a country
7 whose forces were operating in another country and there would be no
8 civilian authority head in place. Correct?
9 A. That's correct.
10 Q. And in such a situation, the military governor would be the
11 highest authority in the area?
12 A. That's correct.
13 Q. It would be a transitional period between the military operations
14 that concluded and the establishment of civilian authority in the area;
16 A. Yep. Sorry, yes.
17 Q. Now, were you aware, sir, that General Cermak himself stated on
18 11 August that there was no civil authority in Knin?
19 A. Did he state that? I can't remember that specifically. Is that
20 part of my report?
21 Q. I don't know if it's part of your report, but we can look at it.
22 It's D38.
23 A. It will be then.
24 Q. I guess you're better with numbers than I am.
25 It's an interview he gave to a media outlet. And we can see at
1 the middle of the page, at the bottom of the screen now, right after the
2 bolded portion, his response of what his task was. And then there is a
3 sentence that said:
4 "Currently, there is no civilian authority in Knin."
5 That was according to General Cermak on the 11th of August.
6 Do you see that?
7 A. I do.
8 Q. And were you aware that Mr. Pasic, who you mentioned, was highly
9 ineffective, and therefore General Cermak was considered to have do
10 everything and deal with all the problems?
11 A. I am aware that Mr. Pasic was removed in the early part of
12 1995 -- 1996. Whether he -- his ineffectiveness was apparent during
13 this, on the -- is this the 11th August? I'm sorry.
14 Q. Yes, what we have on the screen is 11th of August, but I'm --
15 A. If his ineffectiveness was -- people were aware of his
16 ineffectiveness, then I'm, you know, I'm not entirely certain.
17 JUDGE ORIE: Mr. Hedaraly, may I take it that what you are doing
18 at this moment is to -- after you had asked the expert again about what
19 he understood to be a military governor, to put together factual elements
20 which would justify, or at least in the opinion of the Prosecution would
21 justify, the two -- come to the conclusion that, referring to
22 General Cermak as a military governor was not as wrong as many people
23 said it was.
24 Is that ...
25 MR. HEDARALY: That was what I was thinking, Mr. President.
1 JUDGE ORIE: Yes. The Chamber is -- is not much assisted by
3 The Chamber is aware of the terminology used. The Chamber is
4 aware what the formal authority of a garrison commander was. The Chamber
5 is aware of how this expert witness views the position of a -- of a
6 military governor. And now, whether all the factual elements do fit or
7 do not fit in or what caused the confusion, is not something that greatly
8 assists the Chamber.
9 Therefore, you're invited, if you have one more question, fine.
10 But then please move on.
11 MR. HEDARALY: I understand the guidance to be that the
12 Prosecution's position that it may have been reasonable for others in the
13 area to think that General Cermak had -- had powers similar to a military
14 governor is sufficiently on the record.
15 Have I understood the guidance of the Chamber correctly? Because
16 otherwise I would --
17 JUDGE ORIE: Or unreasonable. But all the factual elements are
18 there. We know the formal positions. We know the definition of what a
19 military governor is. And then, finally, what the importance is of this
20 terminology. What -- that's -- because I feel that you more or less
21 moved the witness into a direction that he, as an expert, would say,
22 Well, it corresponds quite a bit with what I consider do be a military
24 That's -- to what extent it does fit or does not fit is -- the
25 Chamber can explore that without further questioning on this matter.
1 Please proceed.
2 MR. HEDARALY: Thank you, Mr. President. Just for the record and
3 the Chamber, I was simply doing that because that was an opinion given by
4 the expert on that matter. It wasn't to unduly waste the Court's time.
5 JUDGE ORIE: No, no, I'm not -- I'm just giving the guidance.
6 MR. HEDARALY: I'm very grateful, Your Honour.
7 If we can move now to the authority of a garrison commander.
8 Q. And you refer in your report more than once to the role of a
9 garrison commander in maintaining good order and military discipline.
10 For example, page 22, line 31:
11 "The establishment and maintenance of good order and military
12 discipline within a garrison is the principle task of a garrison
13 commander and is more than just enforcing military discipline."
14 You also say that at page 23, line 32:
15 "A garrison commander is required to establish climate of good
16 order and military discipline within a garrison."
17 And I want to discuss the service regulations which are -- which
18 is D34, which I know for a fact you're familiar with, because it is
19 referenced in your report. And we'll go to Article 52.
20 THE REGISTRAR: D34?
21 MR. HEDARALY: Yes, please.
22 Q. I'm sure that you have memorised Article 52 probably by now so we
23 probably could start, but just so that everyone can follow --
24 A. I think it would be better if we had it on the screen, even
25 though it's printed on my mind.
1 MR. HEDARALY: I'm sorry, D32. My mistake. I apologise,
2 Mr. Registrar. It's D32. Mr. Registrar knows better than me what the
3 exhibits are.
4 If can you go to Article 52, please. Thank you, Mr. Registrar.
5 Q. And it states:
6 "The garrison commander is responsible for placement, order,
7 discipline, and service in the garrison. All units and institutions
8 within the garrison are subordinate to the garrison commander in matters
9 of order, discipline, and service."
10 These are the service regulations. Now, I understand from your
11 report that you seem to agree with the first sentence of Article 52 but
12 not the second.
13 Is that -- have I understood that correctly?
14 A. What I have tried to do is interpret the second, which I believe
15 to be very ambiguous, and, if read literally, runs counter to Croatian
16 doctrine, in terms of unity of command.
17 The garrison commander can only be responsible for the discipline
18 of those who are subordinated to him. But being a garrison commander and
19 running a garrison whose task is to support the other parts of the army,
20 he will have soldiers or units who are placed in his garrison. And what
21 this is trying to do is to find a way through this apparent conflict
22 between unity of command and good order.
23 So his responsibility is only for those people who are
24 subordinated to him and those who are making actual use of the -- what I
25 would term garrison facilities and resources; plus, the other elements of
1 good order, which might be as simple as speed limits which are laid down
2 for the safety of other soldiers or for the safety of civilians in the
3 garrison, which other soldiers who are not subordinated to him who may be
4 transiting through the garrison, must obey.
5 Q. And that is your -- so you don't -- although the text of
6 Article 52 suggests that all units within the garrison, that is,
7 geographically within the garrison, are subordinate to the garrison
8 commander in matters of order, discipline, and service. To you, that is
9 not -- that is not a correct interpretation?
10 A. I would suggest that -- my interpretation would be that they
11 cannot be because that means that somebody who is driving a vehicle
12 through the garrison from one point to another whilst he is in the
13 garrison is somehow subordinated to the garrison commander and then is
14 unsubordinated as he leaves the garrison. And I think that, in most
15 armies, that would seem to be impractical. It revolves around the
16 element of subordination which involves tasking. What this attempts to
17 do, and if properly interpreted does do, and there are other -- there are
18 other ways -- there are other methods they use to ensure this is so, what
19 this attempts to do is prevent the garrison commander from having the
20 authority to re-task soldiers or units, to re-task soldiers or units, who
21 happen to be within the -- within the garrison boundaries.
22 Q. General, you said in your report that it would run afoul with the
23 organisational order in that garrison commands do not have operational
24 functions. You said that as well to Mr. Cayley, either this morning or
25 Friday, that that's the problem, that the garrison commander does not
1 have any operational tasks. And you just said that again today.
2 General, nothing in Article 52 subordinates those units for
3 operational purposes. It simply says they are subordinate to the
4 garrison commander in matters of order, discipline, and service. There
5 is nothing about operational subordination there, is there?
6 A. That's true. But I have to focus on the order and discipline
7 element because that is only pertaining to precise garrison issues, which
8 could be, quite simply, ensuring that people obey the orders for when the
9 fuel station is open, or when the eating facilities are open. It is --
10 it is simply to ensure good order within the garrison, so the garrison
11 runs effectively.
12 Q. I have just been told there may be a problem in the transcript at
13 page 110, line 21. I asked you, General:
14 "You will agree with me that assisting with the normalisation of
15 Knin did not come strictly within the traditional responsibilities of a
16 garrison commander."
17 And the transcript is unclear. Could you please repeat your
18 answer, whether you agreed or disagreed with that statement?
19 A. Sorry, could you -- I wasn't really concentrating, I am afraid.
20 Could you just repeat the question?
21 Q. I don't think it's an issue in dispute, but I will read it to you
22 again just so that the transcript is clearer.
23 You will agree with me that assisting with the normalisation of
24 Knin did not come strictly within the traditional responsibilities of a
25 garrison commander.
1 A. I agree that it did not come within the normal responsibilities
2 of the garrison commander.
3 Q. Thank you.
4 Let's go back to Article 52. And I believe you -- yes, you just
5 ran out the transcript, but you agree that there was nothing about
6 operational subordination in Article 52; correct?
7 A. No, because it's dealt with earlier.
8 Q. At page 33 of your report, I have a few questions regarding lines
9 16 to 23, if you want to read that paragraph.
10 And -- have you had a chance to review it?
11 A. Yes, I have. Thank you.
12 Q. Thank you. You say the allegations of murder, looting, burning,
13 and rape, et cetera, which were widely reported by UNCRO and other
14 international organisations, and you go on. Can you tell this Chamber
15 where you saw widely reported allegations of rape?
16 A. I saw them in the UNCRO reports, the Sector South reports. Did I
17 say rape? I'm sorry. Well, I'm not sure. I did see one, and I recall,
18 I did see one case of rape that was being actually dealt with. But
19 certainly murder, looting -- murder, looting, and burning was the
20 constant theme of the UNCRO reports.
21 Q. So there were no wide allegations of rape in those reports?
22 A. I'm sorry, I think that's my, rather loose, use of English there.
23 Q. That's fine. Because if they have, I would have I would have
24 liked to see them?
25 A. Yes, now I'm -- I think I was warming to my task, I'm afraid, in
1 describing things. That was incorrect.
2 Q. And you also stated that crimes such as burning and looting are
3 of such a seriousness that the punishments available under Article 10
4 and 11 of the Code would clearly be inappropriate and inadequate, right?
5 A. That's true.
6 Q. And you --
7 A. Sorry, that is my -- that is my -- that is my view.
8 Q. I was just pausing for the translation.
9 A. Sorry.
10 Q. And you also hold it as self evident that such claims like
11 looting and burning constitute major violations of discipline; right?
12 A. Yes.
13 Q. Now, do you know - I'm not asking about your views on the
14 matter - but do you know whether burning and looting were considered as
15 minor or major violations of the disciplinary code in 1995 in the
16 aftermath of Operation Storm?
17 A. There was no that I found when I looked through the military law
18 documents. I found no specific reference to those two crimes. I -- I
19 maid a presumption, which I would have -- would suggest was a reasonable
20 presumption, that they were so serious that they would have been a major
21 violation in that all the minor violations that were detailed in the --
22 the disciplinary code were what I would understand as minor violations.
23 Within my own army, burning and looting would be a major criminal
25 Q. We'll get into the Code of Military Discipline in more detail in
1 a few minutes. But just to foreshadow that discussion, minor breaches of
2 military discipline, according to the Code of Military Discipline of the
3 HV, would be dealt with disciplinary measures and serious violation would
4 say be dealt with disciplinary sentences. Correct?
5 A. That is correct.
6 Q. If we look at -- let me pull up for you P1008. That is not in
7 your report. I don't know whether have you seen it or not, but we can
8 take a look.
9 And will you see here, General, a series of disciplinary measures
10 that were reported by Major-General Krsticevic. Can you tell us if you
11 remember seeing this document before?
12 A. No, I didn't.
13 Q. So it may have been in the collections provided to you; it may
14 not have been, you just can't tell?
15 A. It may have been I looked at the date and thought that's quite
16 later on and it may have been covering things that I felt had been
17 covered before.
18 MR. HEDARALY: If we go to page 9 in the English. And it's page
19 10 in the B/C/S.
20 Q. You will see here in the -- you will see that this gentleman has
21 a disciplinary measure for failing to prevent a soldier of his platoon
22 from setting haystacks on fire.
23 Do you see that?
24 A. I do.
25 Q. If we go to the next page. There is another disciplinary measure
1 for setting fires on -- fire on haystacks.
2 So these -- these offences were considered at the time as minor
3 breaches of military discipline; correct?
4 A. Yes, it would have been a minor breach.
5 Q. Now, if we go to P1007, which is the Code of Military Discipline,
6 Article 26 of that Code gives garrison commanders the authority to issue
7 such disciplinary measures. Correct?
8 A. Yes.
9 Q. You can wait for it come up on the screen, if you want; although
10 you may know it from your report.
11 So it says, let me just read it for the record:
12 "Commanders of units, institutions, and garrisons ... shall issue
13 disciplinary measures to offenders who are not members of their organic
14 unit if such measures are necessary and required for maintaining order
15 and discipline."
16 I'm sorry I don't know if have you answered.
17 A. I'm sorry.
18 Q. You said yes already, so ...
19 A. I've got it.
20 Q. At page 24 of your report, you state:
21 "The garrison commander had the authority to deal with soldiers
22 from non-organic units who were accused of minor violations relating
23 specifically to the use and behaviour within garrison facilitates."
24 A. Yep.
25 Q. Now, looking at Article 26 which is still on the screen, there is
1 nothing there limiting the application of Article 26 for garrison
2 commanders to the "use of and behaviour within garrison facilities."
3 Is there?
4 A. I mean, the whole point of Article 26 is that it allows him to
5 impose disciplinary measures on those who commit -- offences, mild -- or
6 mild violations of the military code whilst using garrison facilities.
7 And if we could go back --
8 Could we go back to the previous document because --
9 Q. Actually, I just first want to --
10 A. [Overlapping speakers]... fine. Okay. I'd like to go back and
11 comment, if I may, if I'm allowed to, I'd like to go back and comment on
12 that document because there is a point that I think needs to be made.
13 Q. That's no problem at all. If you don't have a chance to do it
14 now, you can always ask at the end of your examination if you feel
15 something has been left out or that you want to --
16 MR. CAYLEY: Your Honour, I really think, if the witness is
17 asking him to comment on a prior document, he has a comment to make now,
18 then he should be allowed to do so now, as opposed to directed questions.
19 JUDGE ORIE: Mr. Hedaraly, within limited -- do a limited extent,
20 witnesses, if they want to add something, they should not be referred to
21 the end of their testimony.
22 MR. HEDARALY: I would just like to finish on this document
23 first, and then we can go back.
24 JUDGE ORIE: Well, that's fair. If the comment is not
25 specifically on the last question, and on this document ...
1 THE WITNESS: It's a more general one, Your Honour, and I'm very
2 happy to -- [Overlapping speakers] ...
3 JUDGE ORIE: Then we'll finish with the document and then you
4 have an opportunity to give your further comments.
5 THE WITNESS: Thank you, Your Honour.
6 Please proceed.
7 MR. HEDARALY: Thank you.
8 Q. Now, all I am pointing out to you, General, is that there nothing
9 in the language of Article 26, as it appears in front of you now, that
10 talks about the use of facilities; correct?
11 A. That is true.
12 Q. We can go back to the last document. Was it the series of
13 disciplinary measures that you wanted to comment on, or was it service
15 A. No. It was the details of -- of the two soldiers who had been
16 charged with offences.
17 Q. Would you like to see it again or just comment?
18 A. Could I see it again.
19 Q. Sure. It was P1008. And it was page -- pages 9 and 10.
20 Just say when you are done with the first page, go to the second,
21 and then, when you are done, let us know.
22 A. Firstly, of course, what we see here is a disciplinary measure
23 having been awarded by the chain of command, which is entirely proper.
24 That's what should have happened, because they were part of the
25 4th Guards Brigade, part of an operational unit. And, therefore, it is
1 for the chain of command to investigate and deal with that, because there
2 has to be, in a crime, I would suggest, a time and a place and the sort
3 of crime, rather than just a general view that crimes had been committed.
4 And quite clearly, here is somebody was accused and found guilty of doing
6 My second point, if I may, is that you gave the impression,
7 understandably, that setting haystacks on fire was burning. Well, it is.
8 But if you look -- I think it's the second page, the second charge
9 sheet -- sorry, not charge sheet, the second page of this, it says, Set
10 three haystacks on fire, located in the vicinity of the house where
11 members of the engineering company were accommodated. What we don't know
12 is the context of this. You and I probably know that these haystacks
13 that you find in Yugoslavia
14 And it could well have been, I don't know, and I guess nor do
15 you, that this was done either by negligence or accident. And what he's
16 done, actually, he's being charged with endangering the lives of his own
17 soldiers, rather than burning haystacks in order to deprive the farmer of
18 that hay. I don't know that to be true, but I think it is -- I would
19 suggest it is a reasonable assumption on the basis that had it been
20 anything else, it probably would not have been seen as a minor violation.
21 And the deduction -- I'm sorry, the punishment would probably have been
22 greater than that.
23 Now, I'm merely saying, Mr. Hedaraly, that there is another
24 interpretation that you could make of that particular document. And
25 finally, the final point, is that although Article 26 does not specify
1 the use of facilities, it flows from Article 52 which does specify the
2 use of facilities.
3 So I believe there is a consistency there between 26 and 52 even
4 though 26 doesn't actually specify it.
5 Thank you, Your Honour.
6 Q. General, I hope I did not give the impression that I was
7 unwilling to hear any of your explanations.
8 A. Not at all.
9 Q. So don't feel you have to race through everything. You know, we
10 can address the --
11 A. I --
12 Q. -- matters that come up.
13 A. I just wish to make -- make sure I have had the opportunity to
14 make the point. Thank you for allowing me to make it.
15 Q. Of course. And I want to take some of the things you mentioned
16 in turn because you said a lot of things and I want to make sure they
17 dont get lost in the transcript.
18 You provided some potential rationale for why those disciplinary
19 measures occurred. And if we -- let's just look at the document on the
20 screen, it says rationale. And you suggested that it was endangering own
21 soldiers. But there it says the aforementioned person breached the
22 military discipline by acting against the order and thus he damaged the
23 reputation of the Croatian army.
24 So you're right, I don't know the full context, but that's what
25 the document says.
1 Now, you -- then you went to Article 26 and Article 52 of the
2 service regulations, and -- well let's -- you said that Article 52 talked
3 about the uses of garrison facilities. It does not. That's your
4 interpretation of Article 52 that reads in the use of the facilities.
6 A. That's absolutely true. That is my interpretation of it.
7 Q. So let's go back to Article 26 now, because I want to make sure
8 we don't get confused here between what the regulations say and what your
9 interpretation of them are.
10 MR. HEDARALY: If we can have P1007 again on the screen.
11 Article 26 again, which is page 9 of the English.
12 Q. And, in fact, General, Article 26 does not refer to uses -- to --
13 to the uses of garrison facilities as we've just discussed. That's
14 something that you have read into Article 26.
15 In fact, Article 26 is a:
16 "General disciplinary power given to the commander of any unit,
17 institutions, or garrison to discipline anyone if such measures are
18 necessary and required for maintaining order and discipline."
20 A. I mean, you can -- you can read it, Article 26, in isolation.
21 But it is interesting, I would suggest, as to why you have to have -- why
22 there is an Article 26. And I would suggest you have to read back to
23 Article 52 because you have this complex relationship between the support
24 of by the garrison -- I'm sorry, I'll rephrase that.
25 The -- the required support of the operational army by garrisons,
1 in terms of the provision of facilities, whether it be accommodation,
2 whether it be laundry, whether it be fuel. And the -- the commander of
3 that garrison has to have the authority to ensure that soldiers from
4 non-organic units that are not formally -- formally subordinated to him,
5 obey the simple rules which may be the opening times of fuel stations.
6 And that is -- that is it my connection between the -- that is my view of
8 Q. You've said that before, and I understood you the first time.
9 All I am pointing out is that Article 52 does not say "use of garrison
10 facilities." Your interpretation of Article 52 say it. We can have it
11 on the screen if you want.
12 A. It doesn't use the word facilities, but it uses placement, order,
13 discipline, and services.
14 Q. And Article 26 here talks as well about order and discipline.
15 And all I am telling you is that Article 26, in fact, is the disciplinary
16 power given to any commander. As it says:
17 "Any unit, institution, and garrison to issue disciplinary
18 measures to offenders who are not members of the organic unit."
20 And in that sense, I would suggest to you that it does not
21 violate the principle of unity of command because it does not concern an
22 operational matter but, rather, underscores the importance of maintaining
23 order and discipline.
24 A. Well, on one hand, you said it -- it gives him the chance to
25 impose disciplinary measures on anybody. And then you said it doesn't
1 influence operational matters. But, of course, it would do, because
2 the -- one of the importance of a unity of command is precisely that,
3 that the chain of command shall be entirely responsible for the
4 discipline of those soldiers subordinated do it. And, therefore, I think
5 that is -- this is a support measure. This does not -- this is an
6 article which supports rather than cuts across. It enables people in
7 particular situations to deal with this complex area where you have
8 soldiers subordinated to other units, working, doing things within your
9 own facilities, properly for a temporary period, down to a few minutes.
10 Q. General, I understand the balance between ensuring proper
11 discipline and the unity of command within, for example, a garrison. But
12 if we look at Article 26, the second sentence, there is a mechanism there
13 where the disciplinary measure issued to someone not from the same
14 organic unit must be passed on to the offender's superior officer.
16 A. Absolutely. And Article 26 does -- does two other things.
17 Firstly, it implies that the garrison commander or the institutional
18 commander must know that an offence has been committed, and that he is
19 able to actually deal with the offenders, because he has no investigative
20 powers for investigating somebody who has -- is not part of his unit, as
21 I understand it; and secondly, it implies that he has the discretion not
22 to take such measures but has to inform the offender's superior officer
23 in the event of an offence being committed.
24 So, in fact, he is -- he is dealing with his responsibility to
25 ensure that offence is reported or dealt with.
1 Q. And the whole point of Article 26 is to deal with disciplinary
2 matters of members that are not under the direct chain of command of the
3 person, whether it be the unit, institution, or garrison. Correct?
4 A. Yes.
5 Q. If we turn the page, to go over to the second paragraph of
6 Article 26. If a garrison commander - and I'm just using an example; it
7 could be any unit commander - decides that it is not necessary for
8 someone that is not in his unit to be punished immediately, he may
9 instead forward the matter to the offender's immediate superior.
10 A. Correct.
11 Q. Now, surely that is not a violation of the principle of unity of
12 command; right?
13 A. No, it's not --
14 THE INTERPRETER: Would you mind slowing down, thank you.
15 THE WITNESS: It is not a violation of the principle of unity of
16 command. In fact, it underscore it is. Because it is it the -- the
17 unit's commander, the commander of the soldier who is subordinated to
18 that unit, who deals with that incident, rather than somebody from
19 outside his chain of command. It is merely -- it is purely reported to
20 him the incident and the details of the incident, the evidence that is
21 required to see the offence dealt with, it's merely reported to the
22 superior officer by the person who has identified the incident.
23 MR. HEDARALY:
24 Q. And this, in fact, is a illustration of what we discussed earlier
25 about the duty of any officer, if he witnesses a breach of military
1 discipline, that he must take some action either if he is allowed to
2 discipline -- deal with the matter himself, or report it to his -- the
3 offender's superior officer; correct?
4 A. And he has that discretion.
5 MR. HEDARALY: Mr. President, it's not an ideal time to pause,
6 but there will not be one in the next few minutes. So I think we might
7 as well take the break now.
8 JUDGE ORIE: Then we will take the break first, and we will
9 resume at 25 minutes to 5.00.
10 --- Recess taken at 4.13 p.m.
11 --- On resuming at 4.41 p.m.
12 JUDGE ORIE: Mr. Hedaraly, you may continue.
13 MR. HEDARALY: Thank you, Mr. President.
14 Q. General, I have been advised very gently by the interpreters that
15 I am not making a pause and that I am speaking too quickly. If I could
16 please have your assistance in helping me by making a pause yourself, I
17 will be grateful, and the interpreters, surely, will be as well.
18 A. I will it my best. I am aware of my own failings of talking too
19 fast, I'm afraid.
20 Q. Before the break, we were discussing Article 26 of the
21 Code of Military Discipline, you will recall.
22 A. Yes, I do.
23 Q. I want to stay -- actually, before that, in your review of the
24 evidence or of all the documents you have reviewed, did you see any
25 disciplinary issued by General Cermak to anyone or him referring any
1 breaches of military discipline to anyone?
2 A. No, I can't recall I did.
3 Q. If we stay with Article 26 but now look at the next paragraph, it
4 states that the officers under paragraph 1, which you will remember
5 included garrison commanders, shall issue disciplinary measures within
6 the powers prescribed by Article 22.
7 If we now go to Article 22, which starts --
8 A. 23 it says here.
9 Q. Thank you. 23. Which is two pages prior. And I will go through
10 a number of Articles and then ask you a question at the end. So if I am
11 moving too fast at any stage, just let me know and we will take it in
13 MR. HEDARALY: So we start at the bottom of the page, Article 23.
14 Just focus on that a little bit for everyone else. Thank you.
15 Q. And we see the powers described in Articles 21 and 22, which
16 we'll get to next.
17 MR. HEDARALY: And if we turn the page to item 4 in the English,
18 to the next page.
19 Q. We see that the powers of a major-general or higher is given the
20 authority of a corps commander.
21 A. I do.
22 Q. Okay. Now, just to know what that mean, let's go to the page
23 before again, to Article 22. And this states:
24 "The commander of a brigade or corps or more senior commanders
25 shall be empowered to pronounce all disciplinary measures prescribed
1 under this Code."
2 And now these measures are listed in Article 10, which this time
3 now we have to go to page 5 to look at Article 10. And we see that those
4 measures include -- go up to detention for up to 30 days. And this
5 applies to all servicemen. Correct?
6 A. As I understand it, yes.
7 MR. HEDARALY: If we could just briefly go back to Article 22,
8 which was on page 8, the second sentence of Article 22:
9 Q. "These officers shall decide the responsibility of soldiers,
10 guardsmen, reserve soldiers, and cadets for the offences specified in
11 paragraph 1, Article 12, of this Code."
12 And just to be completely clear, this refers to commanders of a
13 brigade, corps, or more senior; right?
14 A. Yes.
15 Q. And finally, hopefully the last time we jump around, if we do go
16 to the Article that is referenced, paragraph -- Article 12, paragraph 1,
17 which details specifically with soldiers, guardsmen, reserve soldiers,
18 and cadets, and they may be able to get up to a sentence of up to 60 days
19 in custody if no other disciplinary measures under Article 10 corresponds
20 to the gravity of the offence."
21 Now, General, I know we've gone through these very quick now, so
22 if you want to look back at any of them, just let me know and we will do
24 But if we put all these Articles together, 10, 12, 22, 23, and
25 26, we have a situation where a garrison commander with the rank of a
1 colonel-general could issue disciplinary measures of up to 30 days'
2 detention to all servicemen. And with respect to soldiers, if the
3 gravity of the offence was such that it was not sufficient, he could
4 issue a disciplinary measure of up to 60 days' detention.
5 Is that an accurate summary of the provision we just looked at?
6 A. Yes. And the emphasis on a disciplinary measure which has to be
7 for a minor violation.
8 Q. Thank you. Now, one of the changes you made in your corrigendum,
9 it was change number 10, and it referred to -- I'll just find it for you,
10 the exact page reference. It is page 31, line 14. It's actually 34,
11 line 14. I was misled by the corrigendum which was still a matter to
12 resolve with the page differences. And I've talked to Mr. Cayley and
13 it's -- the wrong version was uploaded which was the problem. And I have
14 been assured that the right one will be uploaded, then there will be no
16 You've changed -- so you were saying here that his powers,
17 talking about General Cermak, of punishment were determined by his rank.
18 And under Articles 22 and 23, he was authorised to award a range of
19 punishments from a caution to 30 days' detention. And you initially had
20 60 days which we just saw would apply to soldiers if Article 10 was not
22 Can you tell us what made you change that 60 days, which I think
23 is correct, to the 30 which is only within Article 10?
24 A. Firstly, I was advised that I was wrong in law in my
25 interpretation of the military law to say 60 days, and I'm, you know, I'm
1 not a lawyer. I'm not a military lawyer. I'm a practitioner of military
2 law; and I'm not even a practitioner of Croatian military law. And in
3 order to ensure that I did not put something in the report which was not
4 in line with the law, I changed it. But I also felt that the difference
5 between 30 and 60, particularly when dealing with minor violations, was
6 of no great importance because, in fact, what we see in terms of the sort
7 of generic crimes that were being committed, in this particular case,
8 then, in my judgement, they were not minor violations, they were actually
9 major violations.
10 So to me it was a technical issue. It didn't really change -- it
11 certainly change my -- my view, my judgement of -- of -- of how I saw the
12 law affecting -- the law being effected.
13 Q. Who advised you that you were wrong in law and caused you to make
14 that change?
15 A. The -- the Cermak Defence team. As a result of, you know, the --
16 when I sent my report in, it was one of the comments that I had made an
17 error in my -- my view of the law.
18 Q. I thought you had stated earlier that everything you had in your
19 report was your own conclusions. Your own conclusion seemed to be
20 60 days. And I appreciate it's not a major matter, but your own
21 conclusion was 60 days. Then you were told that was wrong and to change
22 it to 30 days, and you did so.
23 A. I -- when I was giving you my -- my statement that everything in
24 the -- in the -- my report was my own view, I was talking about my
25 opinion, my judgement. Quite clearly, if I -- if I made a mistake, a
1 factual mistake, there was little point in me maintaining that factual
2 mistake because it was my, you know, that is what I had decided. If it
3 was, indeed, a factual mistake. And I was unable to, you know, I did not
4 debate it very strongly. Deferred to those who knew the law better than
5 I did, and I changed it.
6 As I say, it didn't seem to me to be a very important issue,
7 because it was dealing with minor violations. When, in fact, the focus
8 of the case is on very -- on -- on major violations and serious criminal
10 Q. And just to be clear, that -- that change was between that first
11 report that you sent that we discussed and this version of the report?
12 A. Yes, I think this's true, yes. Yeah.
13 Q. Were you advised of any other mistakes or inaccuracies that you
14 should change in your report?
15 A. In between my -- my report and my -- the report that has been
16 tabled, yes, and they're largely covered in the corrigendum. Those are
17 the mistakes and inaccuracies which were identified, some of them -- most
18 of them in terms of footnotes, because I'm a computer illiterate, I'm
19 afraid, and I failed to master the system particularly well.
20 Q. So does that mean that all the changes in your corrigendum came
21 from the Cermak Defence team, who asked you to make those changes and
22 then you -- those are the ones that are reflected?
23 A. Yes they were. Apart from one, which I will -- I'm happy to talk
24 about. Which is on -- which is number 7 and 8. But all the rest came
25 from comments which had been made when my report had been looked at,
1 because there were errors in it.
2 I mean, now -- if I may, Your Honour, talk about number 7 and 8.
3 Page 30, line 3 and 4, reads or should now read:
4 "Equipment to meet the pressing demands that existed,
5 Particular," et cetera, et cetera.
6 And then at line 8 should read:
7 "Vehicles to assist in the normalisation of the Knin area."
8 I had used the word "task" in there. And when I was reading the
9 report myself, I realised that it was a rather casual use of the word.
10 It's a term of speech that I use myself. A task is something I give
11 myself; a task is something I have to do. But I realised that I used it
12 in a context there which implied that this was task given to General
13 Cermak by somebody else. And that was not what I meant. And, therefore,
14 I changed it to the words you have there.
15 That was done entirely by my own accord. That was not a comment
16 made by the Cermak Defence team. It was a change that I made, in order,
17 I hope, to clarify what I meant.
18 Q. Are you done with your comment on --
19 A. Yes, I am.
20 Q. -- number 7 and 8?
21 A. Sorry. That is the end of my comment. That is merely for
22 transparency and clarification.
23 Q. I just wanted to give you an opportunity to say what you wanted
24 to say.
25 There's another -- well, maybe we'll deal with it later and go
1 back to the Code of Military Discipline. And you said, before we got
2 sidetracked, but it was largely my fault. Let me just find it so that I
3 quote your exact words.
4 I asked you, and that's at page 142, lines 13 to 20. I asked
6 "If we put all these Articles together, 10, 12, 22, 23, and 26,
7 we have a situation where a garrison commander with the rank of a
8 colonel-general could issue up to 30 days' detention to all servicemen.
9 And with respect to soldiers, if the gravity of the offence was not
10 sufficient, he could issue a disciplinary measure of up to 60 days'
12 And I asked you:
13 "Is that an accurate summary of the provisions we looked at?"
14 And your answer was:
15 "Yes. And the emphasise on a disciplinary measure which has to
16 be for minor violation."
17 Now, Article 12 expressly deals with criminal offences; correct?
18 I think you have it on the screen.
19 A. Yes.
20 Q. And those would not be a minor violation, right?
21 A. Those, in my view, are not a minor violation.
22 Q. In your report, I'm talking about page 33, lines 38, and spilling
23 over to the next page, you state that:
24 "It is the authorised prosecutor who has the responsibility and
25 authority to initiate disciplinary proceedings."
1 If we look at Article 31 - that is at page 10 in the English, at
2 the bottom - now, this deals with a situation where an offence is both
3 against military discipline and also a criminal offence. Correct?
4 A. That's correct.
5 Q. And it says:
6 "In situations where the authorised officer finds that the
7 offence against military discipline is also a criminal offence, the case
8 shall be sent via regular channels to the authorised prosecutor. If he
9 thinks that it is in the interest of the service, he shall also initiate
10 disciplinary procedures."
11 Now, you interpret the "he" in the second part of the sentence to
12 be the authorised prosecutor, not the authorised officer. Correct?
13 A. Excuse me, I'm just reading it.
14 Q. Read the whole thing, yeah, of course.
15 A. Well, of course, I think that is actually quite
16 ambiguous - isn't it? - because it could refer to either the authorised
17 officer or the authorised prosecutor, and I, frankly, from that small
18 paragraph, I couldn't tell which it was.
19 Q. Just as a matter of military doctrine, since we're referring to
20 something that is both a criminal offence and a disciplinary offence,
21 would it make sense that the disciplinary procedure would be initiated by
22 the authorised officer and the criminal proceeding by the authorise the
24 A. Well, it -- in -- in most -- in most systems, certainly the one
25 that I'm in, if there is a serious criminal offence, this becomes
1 immediately a matter for the civil police. If the military police are
2 involved at all, it is in -- it is to assist them.
3 If you're talking about here, which you are, an offence against
4 military discipline, and we see this with the military police sending
5 through Major Juric to the Split
6 of crimes committed which were being investigated. And they went
7 straight through up the criminal chain of the military police, which was
8 part of the military police administration responsibility, that went
9 straight through the criminal chain to the Split Military District
11 Who, then, decides to initiate disciplinary procedures, which,
12 after all, is a discretion, because it only has to be done if people
13 believe it is in the interests of the service. And it is my judgement
14 and my experience that this is normally administrative action to remove
15 somebody from the army who is -- who is -- committed an a criminal
16 offence. So that instead of the person receiving his criminal punishment
17 or her criminal punishment and then coming back into army, because you
18 may not wish them to serve on, you make administrative action against
19 them. And that my -- that is one interpretation of this particular
21 So I don't think it -- to me it doesn't particularly matter who
22 that "he" refers to, because both of those he's, so to speak, can
23 exercise their judgement in the interests of the service and actually,
24 therefore, initiate disciplinary procedures, whatever they may be. Of
25 course, we -- we should -- I should repeat that the authorised officer is
1 only authorised to deal with those soldiers under his command who are
2 subordinated, and with Mr. Cermak, that was very few.
3 Q. Now, I will not start the argument with you over again on
4 Article 26. I think our position is clear and your position is clear,
5 and I don't want to repeat it over and over again about who an authorised
6 officer was.
7 But I'm interested in -- there is nothing that excludes both a
8 criminal proceeding and a parallel disciplinary procedure in the case of
9 a violation of military discipline. Correct?
10 A. Only a view as to whether it is in the interests of the service
11 so to do.
12 Q. Both can proceed at the same time?
13 A. Yes, as I understand it.
14 MR. HEDARALY: Mr. President, I'm seeking the Court's guidance
15 here, and I can say that in front of the witness, Article 31, I was told
16 that there may be a -- not a -- translation issue as to the
17 interpretation of that word "he" in that some words may be in the
18 Croatian language and, of course, I don't speak Croatian, but some words
19 in the Croatian language, if they would refer to the -- to the last
20 reference, would include some other words.
21 Since it is an admitted exhibit, I don't know how to proceed. We
22 can send a request for clarification. But I am seeking the Court's
23 guidance just so that we can have the right -- I think the witness has
24 answered to the best of his ability, and that's what I was told.
25 JUDGE ORIE: Yes. To what the "he" refers seems not to be
1 resolved in the English language clearly. Some ambiguity remains.
2 Now, whether that's different in the original language can be
3 explored. But then I think that a very precise question has to be put to
4 CLSS, that is, that whether, from a linguistic point of view, that there
5 is a preference for to whom the "he" refers. And if, linguistically,
6 there would be a preference, what then exactly defines that preference?
7 That may be a question that can be submitted to CLSS, but I'm
8 looking at the parties to see whether any better suggestion --
9 MR. HEDARALY: The only reason I'm asking, I know there have been
10 some changes in the procedure for admitted exhibits, and I don't know if
11 it has to go through the Registrar or from the parties. And that's
12 simply in terms of a focussed question on an exhibit that is already
13 admitted --
14 JUDGE ORIE: [Overlapping speakers]... yes, and, of course, only
15 the linguistical aspect could be covered by such a question.
16 Well, how to do it exactly, to whom to send it, and who to give
17 approval of such an exercise is -- I have no answer to you right away.
18 But I'm seeking the assistance of the parties on the type of question
19 that could be put to CLSS and whether the way in which I phrased it would
20 be appropriate.
21 MR. MISETIC: Mr. President, I -- it might be helpful to know
22 what the Prosecution thinks is missing or not correct and then we could
23 determine whether -- how to phrase the specific question, but at this
24 point, we're not sure what the exact issue is.
25 JUDGE ORIE: I think the exact issue is - but please correct me
1 when I'm wrong, Mr. Hedaraly - whether in the original language the same
2 ambiguity would be there. That is, ambiguity as to whom the "he" refers.
3 That seems to be the issue. And sometimes it may not be possible to
4 translate it but to give some further explanation as to the linguistic
5 context of this translation.
6 MR. MISETIC: Your Honour, maybe it would help if Mr. Hedaraly
7 and I talked at the end of the session, because I'm not sure if we're
8 just simply asking for an updated translation or are we asking CLSS to
9 provide an opinion on -- on the text, in which case I would like to, at
10 least, know specifically the Prosecution is positing as the issue.
11 JUDGE ORIE: I tried to formulate it, but apparently you -- let
12 me keep it short.
13 MR. MISETIC: Well, let me --
14 JUDGE ORIE: If you discuss the matter with Mr. Hedaraly before
15 any request will be sent to anyone, this Chamber is still confident that
16 it certainly would assist, whatever the result will be.
17 MR. MISETIC: Thank you, Mr. President.
18 JUDGE ORIE: But talking never harms.
19 MR. MISETIC: Thank you, Mr. President.
20 JUDGE ORIE: Please proceed.
21 MR. HEDARALY:
22 Q. And just so that we're absolutely clear, General, you don't speak
23 Croatian, do you?
24 A. Sadly, no.
25 Q. You have already referred in your report to Article 69 of the
1 Code which is at page 19. I won't go through it in detail but simply
2 pointing out that General Cermak did not have the authority to bring
3 charges to a military disciplinary court, as this is limited to the
4 commanders of an operation -- of operational zones. Correct?
5 A. Yes. That's correct.
6 Q. We're in agreement on that. I wanted to draw your attention to
7 Article 66, which is on the previous page, which says that:
8 "An officer who initiated an investigation can send the case to
9 an officer authorised to bring charges before a military disciplinary
10 court if he himself is not authorised to do so."
11 Now, I know and I think it is clear to everyone that your
12 position is that a garrison commander is not authorised to initiate such
13 an investigation for people that are not his direct subordinates. But
14 you will agree with me that officers unable to bring these charges can
15 send the case to an officer who is able to bring those charges. Correct?
16 A. That appears to me to be what that Article means.
17 Q. Thank you. On page 33 -- if we return to page 33 of your
18 report --
19 A. I'm sorry, which page?
20 Q. 33.
21 A. 33.
22 Q. Pardon me. You state that the allegation reported by the
23 internationals were clearly criminal offences, and, as such, are matters
24 for the civil police over which Cermak had no authority.
25 And when you say General Cermak had no authority over the
1 civilian police, you are referring to the fact that garrison commanders
2 typically don't have authority over the civilian police. Correct?
3 A. They do not, according to the regulations.
4 Q. And in your report, at page 36 this time, line 33, when
5 discussing these crimes, you stated that:
6 "These acts were thought by the Croatian authorities to be
7 carried out by members of the Home Guard and HV who originally came from
8 the area. Some were also thought to be civilians wearing military
10 When criminal offences are perpetrated or appear to be
11 perpetrated by military persons, then it's not the civilian police but
12 the military police who would deal with the matter; right?
13 A. Not in my experience. When serious criminal offences are
14 committed by soldiers, and everything I read in there inclined me to
15 believe that the same principle applied, not least because the level of
16 punishment would have been quite clearly inadequate and not least because
17 we keep going back to issue that General Cermak in particular could only
18 deal with a -- minor violations. This would have immediately, in my
19 judgement, and I think it's reasonable to suppose, would have been a
20 police, a civil police matter.
21 Now, it may be that the military reported it to the civil police
22 and identified the nature of the crime, the place, and the time, because,
23 I would suggest that for any investigation to -- to be instigated, at
24 least all those factors have to be -- have some sort of -- of content.
25 It may be a rather general content or may be very specific, you know, it
1 happened at, where, and what.
2 But there has to be some -- some specifics there. Otherwise, it
3 is very difficult to see how somebody can investigate a general statement
4 that crimes were occurring.
5 Q. I'm sorry. I may have been unclear in my question.
6 In a specific example of a soldier being -- being seen committing
7 a criminal offence, if it is established that that person is a soldier,
8 would it still be a matter for the civilian police to deal with or would
9 it be a matter for the military police to deal with?
10 A. What -- can you, please, define what you mean by "deal with."
12 Q. Yes, let's start with investigate.
13 A. Investigate. Well, I believe that if the crime is serious
14 enough - and you've used the word "criminal offence" - I believe that
15 that immediately becomes something which the civilian police should be
16 responsible for, would be responsible for. Maybe it is reported to them
17 by the military police, but they then conduct the investigation.
18 Q. Okay. Let's move to a slightly different topic yet not entirely.
19 MR. HEDARALY: And if we can have D1667 on the screen.
20 Q. And this just goes back to the issue of the authority of
21 General Cermak, just so you know. Or, rather, as you will see the --
22 A. Yeah.
23 Q. -- the authority that he may have suggested he had. I know you
24 dealt with this briefly earlier today, and I just want to ask you a few
25 more questions on that.
1 These are the notes, the notebook of a man who was at that
2 initial meeting with General Cermak on the 7th of August.
3 MR. HEDARALY: And if we can go to page 40 of those notes.
4 Q. I just want to show you a portion which is -- you saw the sitrep
5 from the following day. This is the actual minutes.
6 You see at the middle of the page, there, it says -- the
7 handwriting is sometimes messy, though. I will read out what I
8 understand this to mean, and my learned friends will -- if they take
9 issue with it, they will surely intervene. But we've been through it
10 before, so it should be okay.
11 You see in the middle, there, it says:
12 "Brigadier General Forand want freedom of movement total and not
13 have it disappear after Special Representative of Secretary-General
15 And General Cermak responds:
16 "... what," -- I think the parties will agree is Gotovina,
17 "... to see what areas are safe for freedom of movement from tomorrow,
18 should be able to move in most of my area of responsibility, including in
19 Knin town. If you have any problems ... see me personally."
20 And there's a similar --
21 MR. MISETIC: I'm sorry, if we could just get the right page and
22 the B/C/S so the clients can follow.
23 MR. HEDARALY: I'm sorry.
24 JUDGE ORIE: Mr. Hedaraly.
25 MR. HEDARALY: I didn't know whether the translation might check,
1 so I didn't look at it. I apologise.
2 But it should be a few pages, because the -- it should be the
3 next page because we see the ERN on the top with 6917. In the bottom of
4 the B/C/S, now, is 6915, so to the next page in the B/C/S. In the middle
5 there, 6917, should be the right portion in the middle, Forand and then
6 Cermak. And I will just pause for a few seconds so that everyone in the
7 courtroom can read it.
8 Q. Now, in your report at page 53, you refer to another similar
9 report from the UN. This one was dated 24th of August. It's P374.
10 There's no need to bring it up on the screen, unless you want to. You
11 will see from my question to be -- not be necessary. Where, essentially,
12 once again, General Cermak referred to his area of responsibility. And
13 you commented that:
14 "It is difficult to ascertain whether this was a general
15 statement of the difficulties of preventing such events in a large and
16 rugged area or whether General Cermak genuinely felt it was his area of
17 responsibilities. If he did, then he misunderstood his actual authority,
18 and in doing so, misled probably unwittingly UNCRO?"
19 MR. CAYLEY: Sorry, Your Honour, just for clarity, my learned
20 friend missed out the word responsibility from that sentence, just for
22 MR. HEDARALY: I apologise if I did. I wasn't -- it wasn't meant
24 Q. Now, General --
25 A. Sorry could you just give me the lines again. I have lost my --
1 Q. It was page 53 --
2 A. 53.
3 Q. -- of your report, at the very top. It's just this issue of
4 General Cermak perhaps saying this was an issue -- his area of
5 responsibility. And then you suggested that he perhaps unwittingly made
6 those comments. That's the general issue that I want to ask you a
7 question about.
8 A. Yes.
9 Q. Now, if we accept that General Cermak made those statements on
10 the 7th of August, on the 24th of August, that that was his area of
11 responsibility, and if we also accept your opinion that General Cermak
12 did not actually have this authority that he claimed, that leaves two
13 options, right? Either General Cermak was unaware that he did not have
14 this authority; or he was aware of it and deliberately misrepresented his
15 authority; correct? Those are the two options?
16 A. Those are the two options, yes.
17 Q. And if it's the former, if it's that General Cermak was unaware
18 that he had this authority, he was acting as if he did have it; correct?
19 A. Yes.
20 Q. Let me now move to the issue of the appointment of Major Jonjic
21 which is a series of documents addressed in your report. And as soon as
22 I locate the right page, I will direct you to it.
23 It's page 40 of your report, lines 20 to 27. And there is a
24 series of three documents. And, just very briefly, that was the order by
25 General Cermak to assign Major Jonjic to the Knin garrison. And you
1 remember that issue?
2 A. Yes, I do.
3 Q. I want to go through these documents in a little more detail than
4 you have in your report. So if we start with the first one
5 chronologically which is D759. This is General Cermak's order of the
6 9th of August.
7 Here it is. And at item one of the order, he orders Major Jonjic
8 to be assign temporarily to the garrison, the Knin garrison.
9 A. Yes, he does.
10 Q. And item two, he orders the logistics base of the Sibenik sector
11 commander to issue an order appointing his temporary replacement, right?
12 A. Yes.
13 Q. In your opinion, in your report, about this order, was that by
14 General Cermak, and I'll quote "overstepped the mark" with this order,
15 right? That was your conclusion?
16 A. That's correct.
17 Q. And as support for this, you referred to the response of the
18 logistics base commander?
19 A. That's correct.
20 Q. Okay.
21 MR. HEDARALY: So let's have that on screen, which is going to be
22 D758. Thank you.
23 Q. And it says that:
24 "Due to Major Jonjic leaving the duty of his own will and making
25 himself available to the Knin garrison and that the order of the Knin
1 garrison commander" -- and there's a reference to the orders which is
2 seen, "... the system of command ... has been seriously affected [sic]."
3 Now, obviously, from this language, we can see that Major Pavic
4 iis not to pleased with loosing Major Jonjic; correct?
5 A. That's correct.
6 Q. Now, despite this, he still orders a replacement as he was
7 ordered to do by General Cermak in D759; correct?
8 A. He does.
9 Q. And it is also clear from Major Pavic's order that he is
10 complaining more about Major Jonjic's behaviour, as we can see from
11 item two in a possible disciplinary procedure, and nowhere in this order
12 is there a suggestion that General Cermak could not issue this order to
13 him, is there?
14 A. Oh. I think you're -- you're reading an enormous amount into
15 this order, I'm afraid. I would regard, I mean, can I see why you should
16 do so, but I think this order very clearly identifies that General Cermak
17 had no authority to issue that order. We know he had no authority to
18 issue that order because the logistic base was not under his command.
19 Q. Please, sir -- I understand your position. I want to focus on
20 this document you've said that I'm reading a lot into it. So are you.
21 And I'm asking you, in this order, you said, This order -- not talking
22 about his authority that we know or don't know that he has. You say,
23 This order very clearly identifies that General Cermak had no authority
24 to issue that order.
25 What I am putting to you is that it does not say that. I mean,
1 in fact, the person who received it did what General Cermak told him to
2 do which is appoint a replacement.
3 A. Of course, he did, because he to appoint a replacement legally.
4 I would suggest -- when I use the word "legally," I would suggest that if
5 you have a commander who absents himself, as he technically did, because
6 he was not given permission to go to work for General Cermak, then the
7 overall commander has a responsibility to place in that particular absent
8 post, that empty post, somebody with the legal authority to continue the
9 work of the base. Otherwise, the base has no command structure.
10 I don't think he was -- I would suggest that he was not -- as it
11 were, obeying an order, but obeying a necessity.
12 Q. I accept that as being your position.
13 Can you identify for me where it very clearly indicates that
14 Major Pavic is of the view that General Cermak did not have the authority
15 to issue him that order?
16 A. Well, it doesn't state it in there. And the word "indication"
17 I'm using because I get from the -- this letter that Major Pavic is
18 saying to General Cermak, You shouldn't have done that.
19 Is quite difficult, as a major, to write an angry letter to a
20 General, even though that general may not have the military background or
21 indeed the authority of other generals. So there is a dynamic here
22 between very substantially different ranks. And he also sends, you will
23 notice, to General Gotovina. So it's quite clear that Major Pavic is
24 happy to raise this as a complaint with General Gotovina. And I think
25 that's what he has done.
1 Q. And what I'm suggesting to you that in item two, he was also
2 upset at Major Jonjic's behaviour; correct?
3 A. I would agree, absolutely.
4 Q. Let's look at the final document of that series, which is D760,
5 which is General Cermak's response.
6 And this is a General Cermak's response which you've described in
7 your report as being an angry response.
8 And if you look at that, I will suggest to you that
9 General Cermak's anger, as you have described it, is directed at the
10 unnecessary insinuations that is stated, or perhaps threatened,
11 disciplinary procedures against Major Jonjic. And I will further suggest
12 to you, sir, that contrary to what you conclude, this, in fact, shows the
13 authority of General Cermak to issue orders to at least the
14 306th Logistics Base.
15 A. You may make that judgement which I can understand how you draw
16 those conclusions. I think it is reasonable to draw the conclusion from
17 the clearly stated authority, as laid down in the regulations, as to what
18 General Cermak's authority was, in terms of who he -- who was
19 subordinated to him, and his -- his authority to subordinate other people
20 to him or other units to him and that was extremely limited.
21 What he does here is get cross with Major Pavic for coming back
22 to him in the way he did. And I think what we see here is an argument
23 between two men, two commanders, over an order which was given, in my
24 judgement, and I think I'm trying to be -- to look at this in a
25 reasonable way, and I think it was clear that -- in my reading of the
1 regulations, that General Cermak did not have the authority to do it.
2 And I think we, there, see an example of what happens, the sort
3 of breakdown in communications, when people fail to appreciate the limits
4 of their authority. And I believe that this was about General Cermak not
5 understanding the system. He had only been in the garrison a few days.
6 He had no -- none of the previous experience that a soldier would have
7 had. How was he to know how these things were done? And I believe you
8 will see from documents in the future that he begins to learn after a
9 time there are ways of doing things in the military, in terms of asking
10 your superior commander if he will authorise a transfer of soldiers from
11 A to B in order to support you.
12 Q. And we will get to those.
13 Let me ask you this: In the documents that you reviewed, did you
14 see any disciplinary procedures against Major Jonjic?
15 A. No.
16 MR. HEDARALY: Can we go to P2525, at page 67, which is the
17 interview that General Cermak gave in 2001 to the Office of the
19 [Prosecution counsel confer]
20 MR. HEDARALY: For some reason, there is not a translation link
21 to that document. I will try to look into it. I apologise in the
22 meantime. I will try to read slowly the short portion I'm referring to
23 for the benefit of those listening in B/C/S.
24 If we go to the bottom of that page, General Cermak says:
25 "We arrived in the morning in Sibenik, and we went to the
1 logistics base. We got in touch with Major Jonjic."
2 This is on the 6th of August.
3 A. Yes.
4 Q. "I told him, I needed the right men and right team of logistics
5 people for Knin and that I needed his help to see what men we can have in
6 the beginning of [sic] the afternoon I boarded the helicopter and left
7 for Knin."
8 MR. HEDARALY: If we can turn the page.
9 JUDGE ORIE: Mr. Hedaraly, I read "what men we can have in the
10 beginning and in the afternoon." So not the beginning "of" the
11 afternoon, but in the afternoon he boarded the helicopter.
12 MR. HEDARALY: I must have written it down wrong, I was going
13 through my notes.
14 JUDGE ORIE: It's almost the same but not entirely.
15 Please proceed.
16 MR. HEDARALY:
17 Q. And then there's a further exchange from line 1 to 7 which
18 relates, more or less, similar issues.
19 And line 8 is what I want to focus on. The question is:
20 "No. So yourself and Major Jonjic decided between you, what you
21 needed, and you set in train a system to arrange for these people to be
22 made available?"
23 General Cermak responds:
24 "We didn't decide what to do. I told him what I needed, I needed
25 some people for Knin, to set off for Knin and do all of that."
1 Q. You had not seen that when discussing the orders regarding
2 Major Jonjic, had you?
3 A. No, I hadn't.
4 Q. Now, I will ask you a similar question to what I asked you
6 If General Cermak was unaware of his authority, he was acting as
7 if he did have that authority - right? - by issuing these orders and
8 telling people what to do?
9 A. He was meeting a demand which he had been given. I get concerned
10 when you represent it by saying he acted "as if he had the authority."
11 We go back to the direction from the President, Go down and sort out Knin
12 and help the Canadians.
13 General Cermak, essentially, is a patriot. He is a man who
14 wished to serve his country, and I think it's important that we
15 understand that. Furthermore, he was businessman. And businessmen are
16 not supported by staff. Unlike the military, they are not so bound in
17 hierarchy and process and procedure, because business is very different
18 from conducting complex operations where you have to have these very, at
19 times, as I have said in my report, at times, Bizantine rules, and
20 regulations. And I think what we see here - and, again, this is my
21 judgement, my interpretation, which is all I can do, and I hope it is a
22 reasonable interpretation.
23 All we see here is major -- I'm sorry, General Cermak attempting
24 to solve the problem he believes he has. Unfortunately, he does so in a
25 way which actually runs across, runs counter to the process and
1 procedures of -- of subordination and superiority, and he finds that it
2 is very difficult, until he learns later on how to do it. And then it
3 becomes, actually, really very simple for him.
4 And I believe that's what you're seeing here. That is my
5 judgement. That is how I read the evidence that I both saw myself and
6 that I now see here.
7 Q. So that's on the 6th. If you look at line 4 on the top of the
9 "When I arrived in Sibenik, I told Major Jonjic and later we got
10 the paperwork in order regarding the transfer."
11 And we know the orders was issued on the 9th of August; correct?
12 And what I'm suggesting to you is that when General Cermak issued that
13 order to Major Jonjic, he thought that was something that he could do,
15 A. I -- I would agree that he thought he could do it. Otherwise, he
16 wouldn't have done it.
17 Q. That was my question.
18 A. Yes.
19 Q. In the following paragraph of your report, it's page 40, starting
20 at line 28.
21 JUDGE ORIE: Have you dealt with this subject or -- Mr. Hedaraly,
22 or are you still --
23 MR. HEDARALY: I have dealt with the issue of Major Jonjic. I'm
24 going to go on to the orders regarding other members to be transferred.
25 JUDGE ORIE: Yes, if you would not mind, I would ask one or two
1 questions in relation to this. And that is in order, since we are
2 talking about it now, it is better done immediately.
3 I noticed that in the three documents we saw, the first one,
4 9th of August, second one, 11th of August, third one, 16th of August.
5 Now, in the first one, General Cermak appoints Mr. Jonjic and orders his
6 replacement in the Sibenik Logistics Base.
7 Now, in the second document - and I'm specifically asking your
8 attention for that - apparently Mr. Pavic is unhappy. He says, Jonjic
9 voluntarily left. And then he says, Due to this, and at the order of.
10 So he gives two reasons. The first one being that well, that he left and
11 he apparently takes the position that wherever he may have been
12 appointed, he was never discharged of his duties here. But he adds,
13 then, as a second reason, And at the order of. And then, among other
14 matters, he replaces.
15 When asked about this matter by Mr. Hedaraly, you said, Well, of
16 course, what could he else do than to replace this vacancy -- this person
17 who had left?
18 Now, my question to you is - and we are interpreting, to some
19 extent, text as well - could he have said, Well, due to the situation
20 that Jonjic is gone, I have to replace because there's no one there in
21 his place anymore. But he specifically uses the language "at the order
23 Now, does that mean anything as far as acceptance of such an
24 order, because we've said quite a bit about whether Mr. Cermak was
25 unaware of his authority, but the language "at the order of," suggests
1 that Mr. Pavic, at least, had that impression or didn't want to deny such
2 an authority.
3 Could you help me out how to understand exactly this "at the
4 order of," in addition to the actual situation that existed since Jonjic
5 had left?
6 THE WITNESS: Sir, I will try.
7 Could I have it on my screen, please, so I can --
8 MR. HEDARALY: It's D758.
9 THE WITNESS: Sorry, it's the -- oh, thank you.
10 I've just got the B/C/S version.
11 JUDGE ORIE: Yes, it takes a moment to have the --
12 THE WITNESS: Yeah.
13 JUDGE ORIE: And I was primarily focussing on the first
14 paragraph: "Due to ..." up to the word "order."
15 THE WITNESS: Yeah.
16 Your Honour, this is extremely complicated and very nuanced, and,
17 you see, I think I could read that -- that because he says - and I hope
18 we don't get into detailed argument about -- about the use of words here.
19 JUDGE ORIE: I won't be in argument with you, Mr. --
20 THE WITNESS: No, no, sir, I know that.
21 JUDGE ORIE: [Overlapping speakers]... never are, in fact.
22 THE WITNESS: And I don't intend to get in argument with you,
23 Your Honour, either. I think I might know who comes off worst.
24 He says at the order of -- well, I'll read -- if I may, I'll read
25 it from the top.
1 JUDGE ORIE: If you can do it slowly for our interpreters.
2 THE WITNESS: Yes.
3 "Due to the commander of Sibenik Department 306th Logistics Base
4 Split," I'll -- "Major ... Jonjic, leaving of the duty on his own will
5 and making himself available to the Knin garrison commander, and at the
6 order of the Knin garrison commander ..." and then a string of letters
7 "... by which the system of command has been seriously disrupted."
8 I believe that that refers not to "at the order of the Knin
9 garrison commander, I hereby order ..." I believe that is his way of
10 saying that he left duty of his own will and at the order of the Knin
11 garrison commander. That is it the way I would interpret it.
12 I would also suggest that -- that there is an another issue here,
13 the -- the Croatian Army was, like many armies, very procedural. And we
14 see that all the orders, many -- most of the orders, follow a very
15 particular pattern. And -- and I think we may be seeing part of that
16 here, that it is written as an order, because that is the only way he
17 could write it, even though he might have said, I appoint, merely rather
18 than saying, I order.
19 Now would that have been different? I don't know. But it would
20 not have used the word "order."
21 But I -- to go back to the main point, I read that that the
22 phrase "at the order of Knin garrison commander" is linked to Jonjic's
23 leaving his duty of his own will, on his own will, rather than at the
24 order of the Knin garrison commander, "I hereby order."
25 Now, whether that is a correct interpretation, sir, or not, you
1 must decide.
2 JUDGE ORIE: Yes. We will. If there's need to do so.
3 But just -- my question, linguistically, reading due to this
4 circumstance and at the order of the Knin garrison commander I hereby
5 order, could that be - and I'm not a native speaking person - could that
6 also mean that the order is given at the order previously mentioned.
7 Whether that's the correct interpretation, but I'm purely asking you
9 THE WITNESS: It could mean -- to me, it could mean both.
10 JUDGE ORIE: Both. Thank you for that answer.
11 Mr. Hedaraly.
12 MR. HEDARALY: Thank you, Mr. President. I note the time. There
13 is an series of two or three documents that I wanted to address in the
14 same way. I, therefore, don't want to start and have it interrupted, if
15 we need the series of documents. And I think the 6.00 time was quite a
16 firm one, so I think, in these circumstances, maybe it's time to adjourn.
17 JUDGE ORIE: Yes, it depends on -- and that's the last thing I
18 wanted to inquire about where you are. Tomorrow, as you know, we start
19 at 11.00 only, and we would have Wednesday. Are you confident or would
20 be your assessment as to the moment in which you think could you conclude
21 your cross-examination?
22 MR. HEDARALY: It's hard to say, Mr. President.
23 A. I have skipped around a little bit. I am definitely sure that we
24 don't need the Chamber to consider 15 bis tomorrow. That's already been
25 stated and that -- nothing can change that.
1 JUDGE ORIE: [Overlapping speakers]... yes, but that depends
2 Mr. Hedaraly, also, of the Defence. So could you give us an indication
3 as to when you think you would -- would that be tomorrow?
4 MR. HEDARALY: I think --
5 JUDGE ORIE: First session, second session, third session?
6 MR. HEDARALY: I think I will be able to complete tomorrow. It's
7 very difficult to give an exact estimate, but I'm hopeful that, at the
8 very least, by the end of tomorrow, I will be completed.
9 JUDGE ORIE: Yes. We would then have Wednesday morning, and one
10 session in the afternoon available. I'm addressing the Defence.
11 Mr. Cayley, would that ...
12 MR. CAYLEY: Yes, Your Honour, I think that would be plenty of
14 JUDGE ORIE: And Mr. Misetic and -- Mr. Kehoe and Mr. Kuzmanovic.
15 MR. KEHOE: Yes, Mr. President, that would be enough time.
16 MR. KUZMANOVIC: Yes, Your Honour, thank you.
17 JUDGE ORIE: Yes.
18 Then, under those circumstances, we will adjourn for the day.
19 Mr. Deverell, I would like to instruct you, as I did before, not
20 to speak with anyone about your testimony, either already given or still
21 to be given, and we'd like to see you back tomorrow, Tuesday, the
22 10th of November, at 11.00 in this same courtroom, I.
23 --- Whereupon the hearing adjourned at 5.54 p.m.
24 to be reconvened on Tuesday, the 10th day of
25 November, 2009, at 11.00 a.m.