091218ED

Page 26427

1 Meanwhile, I put on the record that the Prosecution had asked for

2 another 24 hours to make submissions in relation to a matter raised by

3 the Chamber and related to interviewing witnesses. The Chamber has

4 granted the request for 24 hours, and expects, of course, then the filing

5 to be made today.

6 [The witness entered court]

7 MR. CARRIER: Thank you, Mr. President.

8 JUDGE ORIE: Good morning, Mr. Herman.

9 Before you give evidence in this court, the Rules of Procedure

10 and Evidence requires that you give a solemn declaration, of which the

11 text is now handed out to you by Madam Usher. I would like to invite you

12 to make that solemn declaration.

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

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

15 WITNESS: IVAN HERMAN

16 [The witness answered through interpreter]

17 JUDGE ORIE: Thank you. Please be seated, Mr. Herman.

18 JUDGE ORIE: Mr. Herman, you will first be examined by

19 Mr. Mikulicic. Mr. Mikulicic is counsel for Mr. Markac.

20 Please proceed.

21 THE WITNESS: [Interpretation] Thank you.

22 Examination by Mr. Mikulicic:

23 Q. Good morning, Dr. Herman.

24 A. Good morning.

25 Q. When answering my questions, kindly bear in mind that our

Page 26428

1 conversation is being interpreted into the official languages of this

2 Tribunal and that the interpreters require some additional time than is

3 the duration or pace of our conversation. Hence, I kindly ask you to

4 answer slowly and to pause between questions and answers so as to enable

5 the interpreters to do their work.

6 First of all, for the needs of the transcript, can you state your

7 first and last name?

8 A. My name is Ivan Herman. I am a medical doctor.

9 MR. MIKULICIC: [Interpretation] I would kindly ask for 3D00877 to

10 be put on the screen?

11 Q. Dr. Herman, before you there are two screens. On the

12 right-hand-side screen, you are about to see the document; and on the

13 left-hand-side screen, you have the transcripts of these proceedings

14 which you can use to pace your answers.

15 You recall, Dr. Herman, having given a statement to

16 General Markac's Defence in May this year?

17 A. I do.

18 MR. MIKULICIC: [Interpretation] Could we please see the last page

19 of the statement.

20 Q. Mr. Herman, you will see the last page which was signed. Could

21 you please identify the signature?

22 A. This is fine.

23 Q. Is that your signature?

24 A. Yes.

25 Q. Mr. Herman, at the time of giving this statement, everything you

Page 26429

1 said, as recorded in the statement, was it true and accurate to the best

2 of your recollection?

3 A. It is accurate, according to what I can recall.

4 Q. Did you have occasion to read this document before appearing here

5 as a witness?

6 A. Yes, I had that opportunity, and I re-read the statement.

7 Q. If I asked the same questions of you today that were put to you

8 on the 18th of May this year, would you provide the same answers?

9 A. Yes, I would.

10 MR. MIKULICIC: [Interpretation] Your Honour, Mr. Presiding Judge,

11 I seek to tender this statement into evidence.

12 MR. CARRIER: No objection.

13 JUDGE ORIE: Mr. Registrar.

14 THE REGISTRAR: Your Honours, this document becomes

15 Exhibit D1910. Thank you.

16 JUDGE ORIE: D1910 is admitted into evidence.

17 Please proceed.

18 MR. MIKULICIC: [Interpretation] Thank you.

19 Q. Dr. Herman, in a few sentences can you tell me something about

20 your profession and your role in the first days of the Homeland War in

21 Croatia?

22 A. I am a medical doctor. I worked in the Varazdin General

23 Hospital. I used to be its director for a number of years, and currently

24 I am a deputy director of the hospital.

25 My role at the beginning of the war was to organise the medical

Page 26430

1 support of the Special Police. I was a volunteer in the

2 Police Special Unit in Varazdin.

3 Q. Can you describe your tasks? What did it include, this effort to

4 organise the medical support of the Special Police of the

5 Varazdin Administration?

6 A. To organise that medical support, we followed the examples of

7 certain foreign military medical systems, comprising of mobile surgical

8 teams, comprising a specialist surgeon, a specialist anesthesiologist, an

9 anesthesiologist technician, assistant, a surgical assistant, and, if

10 needed, an ambulance driver.

11 Q. A medical team of such composition for the needs of the

12 Special Police in Varazdin that was put together the way you just

13 explained, can you tell us in what way was the medical team or medical

14 service organised in other police administrations?

15 A. On Mr. Markac's request, we expanded the same type of

16 organisation across all units; that is to say, the teams covered the area

17 affected by war, as needed. The contact person within the organisation

18 was Dr. Mihaljevic, who was in the centre in Zagreb.

19 Q. What was his role?

20 A. He was a co-ordinator. He had all the information about the

21 needs for such mobile medical teams, and he determined which centres were

22 to send out those teams. One must bear in mind that we had to organise

23 wartime medical services in all towns of Croatia, keeping in mind at the

24 same time the regular health system and health-care, which was not

25 supposed to be put in danger in terms of providing assistance to

Page 26431

1 civilians because such mobile teams were put together.

2 Q. Dr. Herman, your teams, therefore, provided medical care to the

3 units of the Special Police. You have already described the composition

4 of such teams. In relation to the members of the Special Police, were

5 there any people there whom you relied on in order to provide such

6 medical care?

7 A. I have already mentioned that I was in frequent contact with

8 Mr. Mihaljevic as well as with all the commanders, and, of course, the

9 main commander, Mr. Mladen Markac, and his deputy, Mr. Sacic. They asked

10 that we perform our work in a quality and professional fashion and to

11 provide assistance to anyone in need, be it a wounded person or someone

12 else who may require any sort of medical assistance.

13 Q. Dr. Herman, briefly, please describe to us your role in the

14 preparation for Operation Storm as well as during the course of its

15 implementation.

16 A. I had a dual role. Firstly, I was a volunteer with my special

17 unit as a physician. My role there was to be at the front-line, where no

18 surgical teams were available, as they had to be in the rear; easily

19 accessible, but in a safe place so that they could play the role assigned

20 to them, which was to assist and perform surgical interventions. I was a

21 point of contact between the front-lines, where the injuries took place,

22 and the mobile surgical teams. Since we had no nurses, I also had to

23 perform that role.

24 Q. Mr. Herman, I'm now referring to item 6 of your statement, which

25 is now D1910, where you say that in Operation Storm you took part from

Page 26432

1 the 23rd of July until the 11th of August, 1995. Can you tell us about

2 these preparations and the very beginning of the operation from your

3 point of view?

4 A. The preparations for Operation Storm were very thorough and

5 professional. I am now referring exclusively to medical preparations,

6 because I'm not an expert when it comes to other things. We knew where

7 the locations were for the mobile surgical teams because the operation

8 was carried out in difficult terrain, so we had to determine the points

9 where these teams would be. We also had to work out possible transport

10 of patients to the surgical teams because of difficult terrain and

11 dangerous terrain which was also mined.

12 Q. This Chamber has heard much evidence about the beginning of

13 Operation Storm on the 4th of August. What I'm about to ask you is the

14 following: Where, exactly, were you on the first day of Operation Storm?

15 A. I want to point out that I was at a place where I have never been

16 before. It was Mount Velebit, an area called Golic or Opaljenik.

17 Q. It's close to Mali Alan, isn't it?

18 A. Yes, it is. Mali Alan was controlled by the enemy, and it was

19 our task to reach Mali Alan.

20 Q. As far as you remember, Dr. Herman, that first day of

21 Operation Storm and the launch of the operations toward Mali Alan, what

22 kind of consequences did it have from the medical point of view?

23 A. We made assessments and we expected the enemy to provide strong

24 resistance, so we were prepared for heavy losses and many injuries. When

25 I had seen the terrain, I concluded that it was possible that soldiers

Page 26433

1 could injure themselves due to difficult terrain, that is, because they

2 could fall and injure themselves. The area was mountainous, there were

3 forests. In a word, it was difficult terrain.

4 Q. A minute ago, you mentioned that the territory in front of the

5 first lines, between you and the enemy, that is, was mined. Were there

6 significant difficulties for your service with regard to that?

7 A. Well, of course, when you can that you're moving through mined

8 terrain, there is the problem of fear, but there was also a big problem

9 for our pioneers to make sure that our unit could move through that mined

10 terrain and get into enemy territory.

11 Q. During the events, you were also injured. Can you briefly

12 describe to us what happened and what kind of injury that was?

13 A. I had an accident because the commander had ordered me to provide

14 services to two units, our unit from Varazdin and another from Split.

15 The Split unit was in the direction of the Celavac Relay Station, and

16 they didn't have a surgical team. I was older than they were and not in

17 such physical shape, although I was in good shape. But due to my age, I

18 wasn't at their level, so I was supposed to act on somewhat less

19 forbidding terrain. But the first shell that hit us hit the Split unit,

20 and I suffered from the blast. I fell, and I remember that the members

21 of that unit provided first aid to me. But I came to quickly, although I

22 was in an initial state of shock.

23 Q. Dr. Herman, on that first day of the operation, can you describe

24 to us the dynamics of the advancement of the Special Police forces and

25 your medical teams?

Page 26434

1 A. The dynamics was fascinating. They advanced very fast,

2 unexpectedly so, and it was difficult to keep up with them. As I said,

3 the terrain was very forbidding, and I believe that the pace of

4 advancement was as high as possible for infantry to advance.

5 Q. From the medical point of view, how did the fighters from the

6 Special Police cope with the physical aspect of the operation?

7 A. I must say that three members of our unit were injured. One was

8 shot through the lower leg, and the other two suffered injuries from

9 shrapnel or stones, because you could get wounded not only by the

10 shrapnel, itself, but also from pieces of rock flying around. And we

11 first -- or, rather, I first evacuated those wounded from the front-line,

12 and then in the rear I also asked for assistance, myself.

13 Q. Do you remember, Dr. Herman, whether there were difficulties with

14 regard to logistical support? I'm especially referring to supplying food

15 and drinking water.

16 A. During the first hours of the operation, it was almost impossible

17 to supply our units with water and food. It only became possible on the

18 following day, once the road to Mali Alan was liberated, and I filled my

19 vehicle with as much water as it could carry, and food, too. So this was

20 our logistical support. But as I said, during the first hours it was

21 next to impossible, so they only -- the soldiers -- or, rather, the unit

22 members only had what they could carry themselves.

23 Q. Dr. Herman, after piercing the first line of enemy defence, what

24 was the direction of movement of your unit and your medical team?

25 A. Once we left the forests and the heavy terrain, we reached the

Page 26435

1 first settlements, Sveti Rok, Ricice, and Lovinac. Those villages, I may

2 say freely, were totally devastated. All houses were without roofs, but

3 I remember one house which was in a somewhat better condition, and in it

4 was the enemy staff.

5 Q. Do you know, Dr. Herman, who populated those villages before the

6 commencement of the conflict in 1991?

7 A. Those villages were populated by Croats. They made up over

8 90 per cent of the population, but they were expelled.

9 Q. The damage you saw, was it a consequence of the attacks during

10 Operation Storm or something else?

11 A. On those villages, the damage was inflicted much before

12 Operation Storm.

13 Q. What makes you say that?

14 A. Well, if you saw those houses, you could see bushes growing in

15 the houses or out of them. So I'm not an expert, but that is the

16 consequence I drew -- conclusion I drew.

17 Q. So, Dr. Herman, when you reached the road, where did you head to?

18 A. The men gathered there, and the direction of our subsequent

19 movement was toward Gracac.

20 Q. Moving toward Gracac on that road, can you tell us what you saw

21 on that road?

22 A. I must say that I moved down the main road because I was in a

23 vehicle. Apart from some craters that could be seen on the tarmac, the

24 road was in fair condition, I dare say.

25 Q. While riding toward Gracac, did you see any abandoned equipment

Page 26436

1 or any other facilities?

2 A. There was scattered military equipment, there were abandoned old

3 vehicles, but we had orders not to touch anything because of possible

4 booby-traps. We were especially warned not to touch abandoned radios or

5 any similar equipment.

6 Q. Do you remember, Doctor, whether there really -- whether there

7 actually were some incidents involving booby-traps in the areas where you

8 passed through?

9 A. I only heard of such incidents, but I haven't seen them

10 personally, so I cannot comment.

11 Q. As far as you remember, when did you enter Gracac with your unit?

12 A. It was around about noon on the third day of the operation.

13 Q. What was the situation like in Gracac? And when I'm asking that

14 question, I'm interested in the houses and the infrastructure.

15 A. After the totally devastated villages we had passed through, once

16 we entered Gracac we saw some buildings that had been hit, but not many.

17 They were abandoned. I remember passing by a store with an inscription

18 "No wine, no rakija, no flour." But the buildings were abandoned, yet

19 not heavily damaged.

20 Q. In your statement, you said that upon entering Gracac you found a

21 hospital that had been used by the military and the local population.

22 Can you describe it?

23 A. It was on the right side of the street, and there was an

24 inscription on the building, "Medical Clinic." It was -- it had good

25 supplies and the phones were still working, and I found large quantities

Page 26437

1 of medical drugs that, as opposed to the ones we had, were still rather

2 fresh and usable, and the provenance was France.

3 Q. Dr. Herman, when you entered Gracac, did you see any civilians?

4 A. There were some civilians. And as far as I remember, we had

5 orders to take all civilians out of their buildings. I even spoke to

6 some, asked them whether they needed assistance. But there were no major

7 interventions, and I must say that I established good contact with them.

8 They were mostly elderly people.

9 Q. Did the members of the Special Police enter civilian buildings

10 for any reasons? Do you remember seeing anything like that?

11 A. No, I didn't. I reiterate that we moved fast. We were in a

12 sweep. In some buildings, there may have been some enemy soldiers left

13 behind, but I cannot say for certain.

14 Q. Do you remember, sir, that on that occasion, that is, upon your

15 entry of Gracac, a member of the Special Police was injured or killed?

16 A. I apologise. Upon entering Gracac -- if you mean the explosive

17 device, I think that happened on the following day.

18 Q. What exactly happened?

19 A. A man entered a house and activated an explosive device, the

20 origin of which I can't tell. He was seriously injured and subsequently

21 died of the consequences of that incident.

22 Q. How long did you stay in Gracac?

23 A. We stayed for the rest of the day and spent the night there, and

24 then retreated to the outskirts. I couldn't give you the names -- the

25 exact names of those places because I'm not that familiar with the area.

Page 26438

1 Q. After Gracac, what was the direction of your movement?

2 A. After Gracac, on the third day of the operation, we entered the

3 village of Mazin, which was also abandoned.

4 Q. Did you notice any damage or traces of any fire at Mazin?

5 A. At Mazin, there were no extensive damages or traces of fire. The

6 village was abandoned.

7 Q. In your movement towards Mazin and generally in the movements of

8 your unit, did you have occasion to notice any individuals entering

9 houses, looting, or setting houses on fire, or any other type of criminal

10 conduct?

11 A. I cannot testify to that because I never saw any of it. I

12 believe that was due to the pace of advancement.

13 Q. After Mazin, where did you go?

14 A. After Mazin, we went towards Lapac.

15 Q. What do you recall concerning your arrival just outside and

16 entering the town of Lapac?

17 A. I entered Donji Lapac protected by the military armoured vehicle.

18 I moved behind it in my off-road vehicle. In addition to the medical

19 equipment, I also carried food and water used by the fighters in the

20 quick advancement. We entered the location via a forest road which was

21 constructed by the JNA next to a facility that was on the side of the

22 road. We advanced as fast as an infantry unit could, and I followed them

23 with my vehicle.

24 Upon entering Lapac, we saw civilians pulling out of Lapac. They

25 were joined by some military vehicles and at least two tanks that I could

Page 26439

1 see. One of the tanks fired in the direction of the forest, and it was

2 only our luck that none of us were injured on that occasion.

3 Q. Did members of the Special Police open fire on that column which

4 included the enemy tanks as well?

5 A. They were forbidden to act because they were a part of a civilian

6 column.

7 Q. What was the situation you found in Donji Lapac?

8 A. When we entered Donji Lapac, the situation was satisfactory. We

9 were accommodated in the houses where we intended to spend the night,

10 because we slept out in the open in the course of the previous days in

11 the forest. I didn't move much about. One could see that there had been

12 combat. In my view, the retreating army set certain haystacks on fire,

13 which appeared rather ominously because it creates a lot of smoke and one

14 cannot clearly see what it is that is burning. There were also a few

15 buildings which were damaged.

16 Q. Based on your experience, how would you describe the damage on

17 the buildings in Donji Lapac after the Special Police entered it?

18 A. I would say this was minor damage.

19 Q. Did your unit indeed stay in Lapac and spend the night in those

20 houses, as you just said?

21 A. That day, in the afternoon, from the direction of Udbina, I

22 believe, members of the Croatian armed forces arrived. It is then that

23 the general celebrating began with much noise and shooting. Our

24 commander decided to pull out from that area, as distantly as possible.

25 And as far as I recall, I believe we went to Srb.

Page 26440

1 Q. Once the units from Udbina entered Donji Lapac, could you see any

2 consequences there?

3 A. I have to say that this was a general outbreak of joy, albeit a

4 bit strange with firing. To me, personally, this appears dangerous, and

5 I didn't care to move much in that area.

6 Q. Did you see any houses being set on fire during that time?

7 A. As we were leaving, I could see that some buildings had been set

8 on fire.

9 Q. You said you spent the night somewhere outside Donji Lapac.

10 Where did you go the next day?

11 A. There are two locations, Gornji and Donji Lapac. We went further

12 towards the Bosnian border, where there was certain operations and

13 deployment of our forces, although I'm not an expert to tell you any more

14 detail about that.

15 Q. In the course of the movement of your unit, what was your

16 relationship to the civilians you came upon along that road?

17 A. We treated them fairly. I remember having found an elderly,

18 abandoned, sick lady in a house. I personally provided medical care to

19 her. She didn't recognise me, and she took me for a member of the Serb

20 forces, judging by the characteristic greeting she used. I spoke with

21 her. I introduced myself, and I said that I was a medical doctor. In

22 the course of that conversation, I provided assistance and left some

23 medication with her. I also undertook an obligation upon myself to bring

24 some food to her, which I did. I received -- subsequently, I forwarded

25 that information on, stating that there was an elderly, sick lady in the

Page 26441

1 house which needed assistance.

2 Q. Concerning this topic, which is the relationship towards

3 civilians and towards enemy soldiers, did the members of your unit ever

4 receive any instructions concerning that from their commanders?

5 A. Basically, any order contained a provision in which it was stated

6 that the civilians should be treated fairly and assisted until civilian

7 authorities are established. It would then be the obligation of the

8 police to issue them with Croatian documents. I had many contacts with

9 civilians, and I can tell you that the treatment was very fair.

10 Q. In your statement, you say that the members of your unit received

11 certain written instructions by way of a brochure that was distributed to

12 them. Do you remember that?

13 A. I do. All members of the medical services were particularly

14 cautioned of the need to respect this Geneva Convention. We were also

15 obliged by our medical oath to protect civilians. What I can tell you is

16 that all of my work-mates behaved in a fully professional and responsible

17 manner.

18 MR. MIKULICIC: For ease of reference, I wanted to point out

19 Exhibit D533 for the Chamber's perusal.

20 Q. Having arrived in the proximity of the Bosnian border, what

21 further instruction there was concerning the Varazdin Police

22 Administration unit?

23 A. We found the order to return to Varazdin a bit surprising. We

24 were basically told that we were to go on leave.

25 Q. Why was it surprising to you?

Page 26442

1 A. Personally, I expected that the whole thing would last longer.

2 The assessment must have been that the people were over-tired and that

3 they needed to be replaced by reserve forces.

4 Q. Do you recall on which day you started pulling back towards your

5 base in Varazdin?

6 A. It is difficult for me to say, but I believe it was on the 9th,

7 although I'm not 100 per cent certain.

8 Q. Which route did you take on your return to Varazdin?

9 A. Returning to Varazdin, we went via Udbina. My wish to return via

10 the Plitvice Lakes came true.

11 Q. That means that you did not go through Gracac as you were

12 returning again?

13 A. We went via Udbina, which was the shorter route. I must say,

14 though, that I slept most of the way because I was extremely exhausted.

15 Q. Dr. Herman, after the conclusion of Operation Storm, in the

16 course of which you have already explained your role, did you have any

17 further role with the Special Police units in Varazdin?

18 A. Any further obligations of mine were mostly of civilian nature.

19 Among other things, we had to train the divers of the

20 Special Police Unit, since I'm a specialist in that. We established

21 scuba-diving teams which were assigned different specialty tasks. One of

22 those tasks was to check the bed of the Plitvice Lakes because we had

23 information that it had been mined.

24 Q. Did you participate in any terrain searches in the area of Knin

25 and Gracac once Operation Storm was completed?

Page 26443

1 A. No, I was never in Knin after the operation.

2 Q. Dr. Herman, in the course of your duties, did you have an

3 opportunity to get in touch or share the company of Mr. Markac?

4 A. I attended several meetings where we received our tasks to

5 organise the Medical Service. We were asked to organise it in a

6 professional and responsible manner. I recall my first meeting with

7 General Markac, when we were -- when we met for the first time at

8 Mount Velebit. He asked me if I believed that surgical teams could be

9 introduced into that area, giving the type of terrain. He believed that

10 they could be quite efficient in such circumstances. However, my

11 position was that it was not possible. I tried to dissuade him from

12 doing that. He proved himself right, because finally they were fully

13 effective.

14 Q. What impression did you gain of Mr. Markac?

15 A. I know General Markac as a top athlete before the war, and I

16 believe he is a moral, honourable, and professional person. He is a

17 patriot and a professional in his work.

18 Q. In your conversations with him, did you ever gain an impression

19 or did he ever tell you that he has any sort of bias towards the people

20 of other ethnicities, religions, et cetera? Did you ever notice any

21 discriminatory views of his?

22 A. Quite the contrary. He insisted that we provide medical

23 assistance to one and all, irrespective of their religious, ethnic, or

24 any other affiliation, including gender. He insisted that we provide the

25 same type of assistance.

Page 26444

1 Q. My last question, Dr. Herman: Yesterday, you told me that you

2 recently visited the area where you were during Operation Storm as a

3 tourist?

4 A. For me, it was a shocking visit to Mali Alan. I went there with

5 my family to show them where we waged war, and with my son-in-law, who is

6 French. I was shocked to still see the yellow tapes bearing the sign

7 "Mined." I could not believe that we actually traversed that territory,

8 as it is being de-mined only now. I did know, though, that it was mined

9 at the time, and I went there without the needed professional background.

10 I was also alarmed because I realised that I brought my family into a

11 dangerous area.

12 MR. MIKULICIC: [Interpretation] Thank you, Dr. Herman. This

13 concludes my examination-in-chief.

14 JUDGE ORIE: Thank you, Mr. Mikulicic.

15 Any questions by the Cermak and Gotovina Defence?

16 MR. KAY: No questions from us.

17 MR. KEHOE: No questions, Mr. President.

18 JUDGE ORIE: Mr. Carrier, are you ready to cross-examine

19 Mr. Herman?

20 MR. CARRIER: Yes, Mr. President.

21 JUDGE ORIE: Mr. Herman, you'll now be cross-examined by

22 Mr. Carrier. Mr. Carrier is counsel for the Prosecution.

23 THE WITNESS: [Interpretation] Thank you.

24 Cross-examination by Mr. Carrier:

25 Q. Good morning, Dr. Herman. Just to deal a bit more about your

Page 26445

1 background, you have been a member of the HDZ party since 1991, and

2 previously you ran for political offices as an HDZ candidate; is that

3 correct?

4 A. An MP, you mean?

5 Q. No. The question is: You've been a member of the HDZ since

6 1991, and you actually ran as a candidate on behalf of the HDZ on a

7 previous occasion?

8 A. I'm still a member of the HDZ. I used to be a member of the

9 County Assembly and a part of the City Council of Varazdin. I'm

10 currently the president of the Varazdin Council.

11 Q. Okay. Now, Dr. Herman, just to be clear, I noticed, when

12 Mr. Mikulicic was asking you questions, that you tend to give more

13 information than is required in the question, so if you could please just

14 listen to the question and try to focus in on it.

15 Mr -- or, sorry, Dr. Herman, you were interviewed --

16 A. Thank you.

17 Q. You were interviewed in May 2009. And when you were interviewed,

18 Mr. Djurica Franjo was present. Mr. Franjo was the deputy chief and then

19 later on the chief of the Police Sector within the MUP in the 1990s. Did

20 you know Mr. Franjo or who he was at the time that you were interviewed

21 in May 2009?

22 A. I don't know Djurica -- or, rather, I didn't know him before. As

23 far as I understood, he was the one who brought the other gentleman to my

24 office for the interview. I don't know his other positions or functions.

25 Q. And, Dr. Herman, can you very briefly explain to the Court who

Page 26446

1 initially approached you to become a witness in this case?

2 A. I was called up by Mr. Soljic, who asked me on the phone whether

3 I was willing to testify before this Tribunal.

4 Q. Did you know Mr. Soljic before you gave your interview in

5 May 2009, and did you know what his role was with the MUP during the

6 1990s?

7 A. Yes, I knew him as a member of the special unit from Zagreb or,

8 to be more precise, Lucko, I believe.

9 Q. And when he called you to see if you wanted to be a witness, at

10 the time did you recognise that he, in fact, was a senior member of the

11 Special Police, and did you have any knowledge of his relationship with

12 General Markac?

13 A. I know that the gentleman was his personal driver of

14 General Markac when I met him. I don't know about any other roles of his

15 because I never had direct contacts with him, personal contacts.

16 Q. Dr. Herman, you said that you entered Donji Lapac on the

17 7th of August, 1995. And I think it's more clear now, after your

18 testimony, but you said that your participation in Operation Storm ended

19 on the 11th of August, 1995. I take it that from the 9th, there remained

20 two days, the 9th, 10th, and 11th, you were travelling back towards

21 Varazdin, during which time you said you slept most of the time; is that

22 right?

23 A. No, you misunderstood me. The operation was supposed to last

24 until the 11th. I only slept for a couple of hours in the vehicle when

25 we headed for Udbina, which I believe isn't strange because I was totally

Page 26447

1 exhausted. And we returned on the 9th, although previously we were

2 informed that we would have to act until the 11th.

3 Q. Okay. So at paragraph 6 of your statement, when you said that

4 you were engaged from the 23rd of July to the 11th of August, 1995, you

5 meant the 9th of August, it ended? Okay.

6 A. No, no. Don't nail me down on the date because it's been many

7 years, so I don't remember the exact dates. But in preparing for

8 Operation Storm, we came in early, and I stayed at Sepurine.

9 Q. Just following up on your last answer, Dr. Herman, in terms of

10 not wanting to be nailed down on the dates, it's true, isn't it, that

11 you're not really sure of the precise dates in which you were in

12 different places; for instance, Mazin, or Gracac, or Donji Lapac? And

13 just so you're clear, the reason I'm suggesting that is because during

14 your testimony today, you've changed a bit from the statement you gave

15 before. So is that fair, you're not really sure about the dates?

16 A. Well, as for my statement, you must understand that I'm in this

17 kind of situation for the first time. When I said "the second day," I'm

18 not sure how you -- what you understood that to mean, but I stand by my

19 statement in which the dates stated are accurate.

20 Q. So to go through it a little bit, then, are you not standing by

21 your words in court today; you're standing by the statement?

22 Again, I'll give you an example: Today, you said that you

23 entered Gracac, you thought, was on the third day of Operation Storm.

24 A. That was a mistake.

25 Q. So now I'm confused. Are you --

Page 26448

1 A. I apologise.

2 Q. -- standing by your statement, or are you standing by your

3 testimony, or is it fair that you're really not sure?

4 A. I stand by my statement.

5 Q. Okay. Dr. Herman, you were asked a little bit about the injury

6 you suffered when you were in the Velebit, and that was on the

7 5th of August, 1995. You said, at page 12 today, that you -- when you

8 were injured, you came to and that you were in a state of shock. Did you

9 actually lose consciousness at the time you suffered this injury on the

10 5th of August?

11 A. No, I didn't lose consciousness, but the blast hurled me away,

12 and I was shocked by being so close to an explosion. I believe that

13 anybody in my position would have been shocked. But shocked doesn't

14 necessarily imply loss of consciousness.

15 Q. I understand that. I just was curious about your description

16 that you came to, and that was part of the reason why I asked whether you

17 lost consciousness.

18 Did this -- other than being in a state of shock, did you suffer

19 any other injuries at the time?

20 A. I suffered contusions because I fell on the ground. The lumbar

21 part of my spine was injured, and my right arm.

22 Q. Now, Dr. Herman, in your statement, at paragraph 9, you mentioned

23 that as soon as you entered Donji Lapac on the 7th of August -- now you

24 were informed that a Special Police member had sustained injuries as a

25 result of an explosive device planted inside of a building, and although

Page 26449

1 you attended the scene, this person had already died. Is that fair?

2 A. I was informed that there was a lethal injury. And when I

3 arrived at the spot, I didn't find the person involved anymore.

4 Q. Can you explain paragraph 9 of your statement? And I'll read it

5 to you verbatim. These are your words:

6 "We entered Donji Lapac. As soon as I entered the place, I was

7 informed that a member of the Special Police had been a victim of an

8 explosive device planted in a building. And when I arrived there, he

9 had, unfortunately, died from his wounds."

10 What you're saying now is that you never actually went there and

11 you never actually saw anybody injured; is that -- am I correct in that?

12 A. You're trying to confuse me. I said that the person had died

13 from the injury.

14 Q. Okay. So you did go, and you saw him, and he was dead?

15 A. Yes, I found him dead. I was elsewhere, and then I returned to

16 my tasks.

17 Q. Thank you. I think I'm clear on that now.

18 Now, in terms of the timing of this, initially it was suggested

19 to you that this happened in Gracac by Mr. Mikulicic, and then you

20 thought it was the next day after Gracac, which would be -- would have

21 been the 6th of August, 1995. But in your statement, you said you didn't

22 enter Donji Lapac until the 7th of 1995 [sic], so I'm trying to figure

23 out if you actually know where and when this happened.

24 A. It happened as described in my initial statement.

25 Q. The person that was killed, was he a member of the

Page 26450

1 Varazdin Special Police Unit?

2 A. No. I don't remember to which unit he belonged, though. I think

3 he was from someplace in Dalmatia.

4 Q. And you obviously reported the death of this Special Police

5 member on the 7th of August, 1995, in Donji Lapac; is that right?

6 A. I personally didn't report it because it was outside the area of

7 my activity. I was only involved as a consultant. They consulted me.

8 MR. CARRIER: Mr. Registrar, could we please have Exhibit P614 up

9 on the screen, please.

10 Q. Dr. Herman, this is a document dated 26 November 2001, which is

11 an analysis of the Special Police concerning the progress made during

12 Operation Storm. It was sent to the Chief of the Main Staff of the HV,

13 General Cervenko, from the minister of the interior.

14 MR. CARRIER: And, Mr. Registrar, if we could please turn to

15 page 24 in the English and 31 in the B/C/S.

16 Q. Dr. Herman, you'll see, at the top of the page in the B/C/S,

17 there's a section headed "Medical Support in Operation Storm."

18 MR. CARRIER: And, Mr. Registrar, if we could turn the page in

19 English, please, to page 25.

20 Q. And there, Dr. Herman, at the bottom of the page 31 in B/C/S,

21 there's a list of the number of Special Police members killed, wounded,

22 or injured during the first five days of Operation Storm. And on the

23 4th of August, there were 32 wounded, 6 injured, and 5 deaths. On the

24 5th of August, there were 12 wounded, 5 injured, and 1 death. On the

25 6th of August, there was 2 wounded, 3 injured, no registered deaths. The

Page 26451

1 7th of August, 7 injured, no registered deaths. 8th of August,

2 2 wounded, 6 injured, no registered deaths. And then it goes on, in the

3 next page in B/C/S, to give totals.

4 Dr. Herman, I'm just wondering if you can explain why there are

5 no reported deaths of Special Police members on the 7th of August, 1995,

6 in this report, despite your testimony to the contrary about you

7 attending to somebody and finding them dead in Donji Lapac on the

8 7th of August.

9 A. I did not write this report, so I don't know how it was compiled.

10 I don't know under which heading this killed policeman can be found.

11 Possibly due to the combat activities, somebody made a mistake. But I

12 repeat that I didn't write this report.

13 Q. Just following up on that, reports from the Special Police

14 concerning the taking of Donji Lapac on the 7th of August, 1995, sent to

15 Deputy Sacic - and for reference that's D556 and P586 - those don't

16 mention any reported deaths in Donji Lapac either. You didn't write

17 those reports either, but I take it you have no explanation for why

18 that's not reported there either?

19 A. I cannot explain that. I don't know.

20 MR. CARRIER: Mr. President, I note the time now. It's 10.30.

21 This would be an appropriate time to stop before I move to the next

22 section.

23 JUDGE ORIE: Yes. One second, please.

24 Would you give us an indication as to how much time you would

25 still need after the break?

Page 26454

1 JUDGE ORIE: Mr. Herman, these are matters which are not of

2 specific interest for you. We'll now further focus on your testimony,

3 and Mr. Carrier will continue his cross-examination.

4 Please proceed.

5 MR. CARRIER: Thank you, Mr. President.

6 Q. Dr. Herman, today you described, in a bit more detail, your role

7 in making medical preparations for Operation Storm, and you said that you

8 had a dual role. Is it fair to say, Dr. Herman, that you were not

9 involved in planning the overall Special Police military operation that

10 was conducted during Storm? And I'm talking about in terms of deployment

11 of Special Police forces, method of artillery support, axis of attack,

12 method of clearing the terrain, those types of things. You weren't

13 involved in that; is that fair?

14 A. Yes, that's correct. These are professional issues in which I

15 took no part.

16 Q. And, Dr. Herman, today, at page 11 in the draft transcript,

17 lines 13 and 14, you mentioned that at the beginning of Operation Storm

18 you found yourself in a place where you had never been before, and you

19 said that was Mount Velebit. Is that fair; you'd never been to

20 Mount Velebit before the 4th of August, 1995?

21 A. I was on Velebit, but Velebit is a very large mountain. I have

22 never before been at our starting position. And let me explain about the

23 axis of attack. We had been at the starting position, but I was not on

24 the axis of our action --

25 Q. I'm sorry to cut you off. I just want to be clear. I just want

Page 26455

1 to know if you had been there before. So if you're saying that specific

2 spot, let me just follow up. Were you ever in the Velebit area before

3 August 1995?

4 A. Yes, yes.

5 Q. And on page 22 of the draft transcript today, you mentioned that

6 you had met General Markac for the first time on Mount Velebit. I just

7 want to be clear when that was. Did you meet him for the first time in

8 August 1995, when you were preparing to start Storm?

9 A. We are again speaking about two things, about knowing somebody

10 and meeting him in the war. We were also in Operation Maslenica. I took

11 part in that, too. And the area -- or, rather, that area was very close

12 to our starting point. I couldn't go any further because the mountain

13 was held by the enemy, and the front-line was there. I hope we

14 understand each other.

15 Q. Yes, thank you very much. So specifically about Operation Storm,

16 I'd like you to tell the Court, how much direct contact did you actually

17 have with General Markac in the weeks leading up to Operation Storm?

18 A. I'm not sure I understand your question.

19 Q. I'll be more clear. So Operation Storm started on the

20 4th of August, 1995. During the two or three weeks leading up to that

21 point, did you have any direct contact with General Markac during that

22 period?

23 A. I don't remember. I probably did.

24 Q. And what about during Operation Storm and following; did you have

25 any direct contact with General Markac during that period? And if you

Page 26456

1 could just give us the instances.

2 A. I saw him once in or around Mazin, but not later.

3 Q. When you say you saw him once, you mean physically you saw him

4 with your eyes? You didn't sit down and talk with him or anything like

5 that?

6 A. We were all there, the entire command, on that position, and we

7 proceeded from there to the subsequent activities. So I saw him there

8 and was in contact with him.

9 Q. My question was whether you talked to him, sat down with him, had

10 direct communication with him.

11 A. Yes. At Mazin, we contacted because he pointed out the tasks of

12 the Medical Service to us often, but we didn't go into any other details

13 of the military operations. We were constantly reminded to go about our

14 tasks in a professional and responsible manner, though.

15 Q. Dr. Herman, is it fair to say that you were not an operative

16 commander of the Special Police during Operation Storm?

17 A. I was not an operative commander. I was a volunteer in the

18 Medical Service. That's the rank of an assistant commander, but I was

19 not a commander.

20 Q. I take it during Operation Storm, itself, you were never

21 specifically or officially tasked by anyone with monitoring the movements

22 or discipline of the Special Police units deployed in the field?

23 A. Those are military tasks. My tasks pertained exclusively to my

24 profession and the Medical Service. I was familiar with certain tasks,

25 but only for purposes of assessment.

Page 26457

1 Q. And generally with respect to your going through places like

2 Mazin and travelling between Gracac and Donji Lapac, you mentioned today

3 that -- at page 16 that the pace of events was fast. And then on page 17

4 of the draft transcript today, you were also asked about whether you had

5 noticed individuals entering houses, looting, setting house on fire,

6 criminal conduct, and that was with respect to when you moved towards

7 Mazin. And your answer was that you can't testify to that because you

8 never saw any of it, and you believed that was due to the pace of the

9 movement of the advance. Is that fair?

10 A. Yes. You have to know, though, that there were breaks in

11 between. I was only mentioning the advancement of the unit whose member

12 I was.

13 Q. I take it that your answer, in terms of not being able to testify

14 to specifics when you were advancing, holds true for the entirety of the

15 fast pace advance. So when you're moving from Gracac to Lapac, or you're

16 moving from Gracac to Mazin and then through to Donji Lapac, that answer

17 is true for all of those movements; is that fair?

18 A. If I had seen anything of the sort, I would have told you. Since

19 I had not seen any of it, there's nothing I have to say.

20 Q. And to be clear, your answer is that -- you're not saying it

21 didn't happen; you're just saying that you didn't see it. Is that --

22 that's fair, isn't it?

23 A. With my unit, I didn't see or experience any of it. Had I, I

24 would have shared it with you.

25 Q. Now, in your statement you said that you arrived in Gracac on the

Page 26458

1 5th of August. Do you know exactly when it was that you arrived in

2 Gracac, like the time?

3 A. It is difficult to recall which day exactly, but I do seem to

4 recall that it was sometime in the afternoon. It may have been 1.00 or

5 2.00 p.m., although I cannot be certain.

6 Q. And how long did you actually spend in Gracac, total?

7 A. I was in Gracac briefly only, because we withdrew towards a place

8 called Stikada, I believe. We stayed there. I only went through Gracac

9 on the main road. I was in the Health Centre for a short while,

10 assessing whether our medical teams could be housed there. That's it. I

11 saw, on the other side of the street, that there was a police station,

12 and I saw several civilians there. I think I was there for only a brief

13 period of time before we withdrew to the periphery of Gracac, I believe.

14 It is in the outskirts, and I believe it is called Stikada. We were

15 close to the lake there and the hydro-electric plant.

16 Q. And, similarly - I assume it's the same difficulty - do you know

17 exactly when you arrived in Donji Lapac on the 7th of August?

18 A. I can recall that it was -- excuse me, apologies. The dates are

19 as stated in the statement, but I think I may have made an error.

20 I think the operation started on the 4th rather than the 5th. On the

21 4th, we were at positions, so I may have made a mistake in terms of that

22 one day. I don't know if you understand me.

23 Q. I just want to make sure that we're clear. Is it that you're

24 saying you could have arrived in Donji Lapac a day afterwards, or a day

25 before, or you're not sure if it was the 7th or not?

Page 26459

1 A. As you can find it in the statement, that is what I stand by.

2 Q. Dr. Herman, you gave your statement six months ago. Did you

3 remember then or did you have something in front of you to help you

4 remember? How did -- I'm just wondering why it is you can't remember

5 today, but six months ago you were giving dates.

6 A. Of course, it is more difficult to think straight in this

7 situation because I'm on the stand for the first time in my life. Now

8 you're asking me to tell you something that I am supposed to stand by.

9 The giving of the statement took place under different circumstances than

10 those of today. This is the first time I ever appeared as a witness.

11 Q. Did you not have anything in front of you at the time to help you

12 remember dates, or was anybody helping you with timing or dates when you

13 were being interviewed, anything of that sort?

14 A. No, no, I had no aids. I was trying to recall things and to be

15 as precise as possible. I didn't think it was all that important,

16 though. Your memories fade after a number of years, but you try to place

17 it within a certain context or date.

18 I was doing my utmost to basically forget about the war, since it

19 was an ugly episode in my life. Whenever I tried to recall it, I

20 experienced stress.

21 Q. Okay. So with respect to Donji Lapac, irrespective of the time

22 you arrived, do you know or do you have a sense of how long it was you

23 actually stayed in Donji Lapac itself?

24 A. In Donji Lapac itself, we also spent a brief period of time. It

25 was my belief that each of the operations were to take longer than the

Page 26460

1 few days they did. I remember that we spent the night in the outskirts

2 and another night immediately close by.

3 Q. And, Dr. Herman, when you say "a brief period," are you talking

4 perhaps one or two hours before you left; is that fair?

5 A. A day. It was my belief that the operation would take days.

6 Q. Okay. So I'm trying to understand that. If you arrived in

7 Donji Lapac, my understanding is that Donji Lapac wasn't freed until the

8 afternoon on the 7th. So if you're saying you stayed a day, does that

9 mean that you stayed overnight there, or you -- because you just said

10 that you didn't stay overnight in the town, so it's clearly less than a

11 day?

12 A. We spent the night on the outskirts.

13 Q. So when you say "a brief period in Donji Lapac," you're talking

14 about less than a day, perhaps a few hours; is that fair?

15 A. In the center of Donji Lapac, yes.

16 Q. You've indicated today, at pages 18 to 19, that during the time

17 that the HV entered the town, there was firing of weapons, which you

18 considered dangerous, and you said you didn't really move about the area.

19 So can you explain how much time elapsed between your entry into

20 Donji Lapac and when you recall the HV coming into town and starting to

21 fire weapons?

22 A. It was a matter of a few hours.

23 Q. And how long after the HV entered did you leave Donji Lapac?

24 A. We withdrew as quickly as we could to the outskirts.

25 Q. So within one hour; is that fair?

Page 26461

1 A. Yes, yes. I did with my group, that is. My task was to examine

2 people and give them advice, because they were exhausted. I had some

3 peace and quiet to do that. I don't know the area very well, but I do

4 know that we were in a house where I had conversations with the members

5 of my team. There were some problems they were experiencing, but they

6 were minor and due to exhaustion.

7 Q. In your statement, you noted that not a single member of the

8 Special Police participated in activities that you're attributing to the

9 HV when they entered Donji Lapac. I just want to know, are you referring

10 to the celebration and the firing of weapons or are you referring to the

11 burning and looting that occurred in Donji Lapac in the aftermath of

12 Operation Storm?

13 A. We have to be on the same page here. I am referring to my own

14 Varazdin unit. There's nothing else I can tell you about any other

15 members. We withdrew to the outskirts once the celebration began. As

16 for any burning, I didn't see any of our members do that, and I mean

17 specifically the members of the Varazdin unit.

18 Q. At page 19 in today's draft transcript, you said that when you

19 were withdrawing from Donji Lapac there were houses that had been set on

20 fire. Did you see who set those houses on fire as you were leaving?

21 A. No, no. I saw that from a distance. I could see that some

22 houses were in flames, although I can't tell you anything about who may

23 have set them on fire. I didn't see that. I must say that I tried to

24 influence the -- my members to the extent possible. I tried to explain

25 to them why properties should not be burned, since it was the property of

Page 26462

1 Croatian citizens. I tried to exercise my influence over the members of

2 my unit. That was in my best interest, since I am fully aware of the

3 importance of such things, and I placed great importance to the notion of

4 a home, as such, as I do today.

5 Q. And during the brief period you were in Donji Lapac, did you

6 notice any houses marked with the letters "HV" or houses marked with the

7 letters "MUP," MUP?

8 A. I don't recall that. I was in the field often, and I did see

9 some similar things. However, I didn't see that in Lapac. It is

10 difficult for me to tell you where I saw that. I went from Vukovar all

11 the way to Dubrovnik, and I did see some signs like that. As far as I

12 know, care was taken of houses in such a way because many places were

13 mixed, in terms of population, and perhaps some Croats were trying to

14 protect their own homes, although I'm not completely clear as to their

15 motivation. To me, these are all Croatian homes and houses. A house is

16 a house, no matter how you look at it.

17 Q. Doctor, I just want to return to one point here about how well

18 you know General Markac. Could you give us a number, in terms of the

19 total times you and General Markac have sat down together and had a

20 meeting, a personal meeting between the two of you?

21 A. It is difficult for me to tell you any figure that would be close

22 to the truth. I can tell you, though, that we had several conversations,

23 and we covered different topics, such as sports, et cetera. He

24 influenced me very positively, since I was a volunteer, because he placed

25 great emphasis on equal treatment, irrespective of one's colour of skin,

Page 26463

1 religious affiliation, or ethnic background. I particularly appreciated

2 him for that because my life's vocation is to assist people, and I see

3 myself as a humanitarian, valuing a human life.

4 Q. Dr. Herman, you were asked by Mr. Mikulicic today to comment on

5 your impressions of General Markac, and you've offered the opinion that

6 he was moral, honourable, a patriot, and you described him as

7 professional in his work. Moreover, in your statement you mention at a

8 number of different points that General Markac insisted that, in essence,

9 the Rules of War were to be complied with during Special Police

10 operations, and you've said the same again today in court. Is that --

11 that's all accurate; correct?

12 A. Yes, that is correct. If he were in command today, I believe he

13 would still be insisting on the same issues.

14 Q. And, Dr. Herman, can you imagine General Markac to be the type of

15 commander that would consider falsely accusing the opposing military

16 forces of having launched a sabotage attack or some other unjustified

17 attack as a pretext in order to give the false impression that Croatian

18 forces were provoked and, therefore, justified in launching a military

19 action?

20 A. Definitely not.

21 Q. I take it, then, it would surprise you if General Markac

22 considered creating such a pretext on one -- more than one occasion as

23 the commander of the Special Police?

24 A. That would surprise me very unpleasantly.

25 Q. And, finally, Dr. Herman, in terms of your evidence on

Page 26466

1 the Bench?

2 Then this concludes your testimony, Mr. Herman, in this court. I

3 would like to thank you very much for coming and for answering questions

4 that were put to you by the parties and by the Bench. And I wish you a

5 safe return home again.

6 THE WITNESS: [Interpretation] Your Honour, I thank you.

7 JUDGE ORIE: Madam Usher, could you please escort Mr. Herman out

8 of the courtroom.

9 [The witness withdrew]

10 JUDGE ORIE: We have some time left for procedural matters. I

11 would like to start with the guidance for the presentation of agreed

12 facts.

13 The Chamber will now delivery its guidance on the presentation of

14 agreed facts between the parties.

15 On the 2nd of October, 2009, the Cermak Defence filed six motions

16 requesting the Chamber to admit evidence under Rule 92 bis of the

17 Rules and one motion to admit evidence under Rule 92 quater of the Rules,

18 totalling nearly 1.400 pages in combined length.

19 On the 9th of October, the Chamber, considering the nature and

20 the scope of the matters that the Cermak Defence apparently wished to

21 demonstrate with the extensive 92 bis and quater material tendered,

22 indicated that the Cermak Defence should seek other avenues for the

23 material's admission. The Chamber indicated that in the circumstances at

24 hand, the most appropriate manner for the material to be presented would

25 be through agreed facts, and subsequently invited the parties to come to

Page 26467

1 an agreement. All of this can be found at transcript pages 22.866 to

2 22.870.

3 On the 10th of November, the Cermak Defence informed the Chamber

4 that, together with the Prosecution, it was producing a single document

5 with agreed facts between the parties covering both the Rule 92 bis and

6 92 quater material. This can be found at transcript pages 24.461 to

7 24.464.

8 Subsequently, on the 18th of November, the parties informed the

9 Chamber that in spite of having come to an agreement on the facts, the

10 manner in which these facts should be presented to the Chamber remained

11 in dispute. The Cermak Defence and the Gotovina Defence argued that the

12 agreed facts should be formally admitted into evidence, while the

13 Prosecution took the position that the agreed facts should only be taken

14 notice of by the Chamber, without such formal admission into evidence.

15 This can be found on transcript pages 24.729 through 24.741.

16 Rule 65 ter (H) states:

17 "The Pre-Trial Judge shall record the points of agreement and

18 disagreement on matters of law and fact. In this connection, he or she

19 may order the parties to file written submissions with either the

20 Pre-Trial Judge or the Trial Chamber."

21 Rule 65 ter (M) allows a Trial Chamber to exercise proprio motu

22 any of the functions of the Pre-Trial Judge.

23 Regarding points of agreement, material presented through a joint

24 filing of the parties will be part of the trial record on which the

25 parties can rely in future submissions. An agreement on matters of fact

Page 26468

1 removes these facts from the area of dispute between the parties and will

2 make it highly unlikely that any of them will present evidence to the

3 contrary of what was agreed upon.

4 Similarly, reasons for not excepting the agreed facts for the

5 truth of their content are unlikely to be found by a Chamber when making

6 its final findings. The Chamber may rely on these facts for the truth of

7 their content without any additional evidence presented in relation to

8 them. However, the Chamber is not bound by any point of fact or law

9 agreed upon between the parties and recorded in a filing under

10 Rule 65 ter (H) of the Rules. The ultimate weight of these agreed facts

11 will be determined by the totality of the evidence.

12 As to the question of whether agreed facts have to be formally

13 admitted, the parties refer to a number of decisions in support of their

14 respective positions. In the case of Prosecutor versus Blagojevic and

15 Jokic, the Trial Chamber, on the 19th of December, 2003, clarified that

16 the recording of points of agreement during the trial phase results in

17 the acceptance of those agreed points as evidence under Rule 89(C) of the

18 Rules. This holding was confirmed by the Trial Chambers in the cases of

19 Prosecutor versus Halilovic on the 25th of July, 2005, and

20 Prosecutor versus Dragomir Milosevic on the 10th of April, 2007.

21 This Chamber then considers that whether or not a separate

22 decision on admission is taken, the status of the agreed facts which are

23 recorded is not any less than evidence formally tendered and admitted

24 under Rule 89(C) of the Rules.

25 Considering this case law, the Chamber finds that formal

Page 26469

1 admission of the agreed facts and assigning these facts an exhibit number

2 would constitute an unnecessary procedural step. The Chamber does not,

3 in adjudicating the cases before it, distinguish between the status of

4 points of fact the parties have agreed upon which were recorded in a

5 joint filing and points of fact agreed upon by the parties which were

6 submitted for a decision on admission under Rule 89(C) of the Rules.

7 Based on the foregoing, the Chamber requests that the parties

8 submit their table of agreed facts in the form of a joint filing.

9 Further, the Chamber requests the Cermak Defence to withdraw the

10 outstanding Rule 92 bis and quater motions covered by the joint filing.

11 And this concludes the Chamber's guidance on the presentation of

12 agreed facts.

13 Are there any other procedural matters the parties would like to

14 address at this moment, apart from the one I mentioned earlier, because

15 this Friday is the last Friday before the recess, and while a clean table

16 is perhaps too much to be wished, but at least as clean as possible.

17 Mr. Kay.

18 MR. KAY: I've never been very good at washing up after being at

19 the table, Your Honour, but we do ask indulgence in relation to this

20 agreed facts matter because the parties will have to meet to sign it.

21 And we ask that that be done after the recess, for logistical reasons.

22 JUDGE ORIE: Yes. The Chamber will miss it over the recess, but

23 we know approximately what it is about. And, of course, the Chamber has

24 earlier looked at the 92 bis and 92 quater motions, so the Chamber has at

25 least a slight idea of what it may expect.

Page 26470

1 MR. KAY: Something to look forward to.

2 JUDGE ORIE: Mr. Kehoe, you were on your feet?

3 MR. KEHOE: Yes. Just briefly, Mr. President.

4 I believe in past recesses, the Chamber has expanded the time in

5 which to either file or respond to motions should any party file them

6 during this period of time. We haven't discussed that with the

7 Prosecution, but we have done that both in the summer recess, I believe,

8 and last Christmas's recess. So I do think we can come to some

9 resolution, and -- so come to a resolution on timing so no one feels they

10 have to come back from vacation to file any responses. But I think we

11 can agree to that outside of court and just provide Chambers with what

12 our agreement is for ultimate determination. And I think that the

13 Chambers -- Mr. President has given us the Chamber's conclusion

14 informally. I don't think anybody would object to that.

15 JUDGE ORIE: Yes. At the same time, we are a bit in a different

16 position. We are coming closer and closer to the end of the case

17 presentation. And before committing the Chamber to an agreement reached

18 by the parties, the Chamber would like to review what pending motions

19 there are and whether they would all allow for such a delay. Not to say

20 that the Chamber will not support and adopt any suggestion by the

21 parties, but at this stage of the proceedings I'd like to be a bit more

22 cautious in already granting definitive effect to such an agreement.

23 MR. KEHOE: I understand, Mr. President.

24 JUDGE ORIE: Yes.

25 Then, Mr. Mikulicic, the other issue. Would you prefer to have a

Page 26471

1 break before you respond? Because let me tell you what apparently seems

2 to be the situation.

3 I leave aside for this moment issues like responses filed late,

4 or I also leave aside for the time being, not to say that it is totally

5 irrelevant, but the timing of the motion or whether good cause has been

6 shown to introduce this matter at this moment. I would like you

7 primarily to focus on some of the objections raised by the Prosecution,

8 once the Prosecution -- once you had filed the expert report of

9 Mr. Watts. By the way, it was not filed as an expert report, but it was

10 filed as a report in your second filing explaining and giving information

11 to the Prosecution on what they could expect as far as relevance is

12 concerned.

13 It seems to be a -- there are a few matters apparently raised by

14 the Prosecution, the first being that most -- at least half of the expert

15 report of Mr. Watts is purely of a legal nature, that is, to explain the

16 law. Mr. Watts, in the report, as we've seen, analyses what the case law

17 of this Tribunal tells us. Not to say that legal expertise is, under all

18 circumstances, excluded, but you may remember that the Chamber has ruled

19 on, for example, the expert report of Mr. Corn and has said something

20 about legal expertise.

21 The second part of the report analyses the liability of

22 Mr. Markac under the theory of superior responsibility. One of the

23 concerns expressed by the Prosecution is that Mr. Watts relies

24 considerably on statements to which the Chamber has no access.

25 The Sacic statement, I think, is footnoted at 10 instances. I

Page 26472

1 refer you to paragraph 54 of the report. And we see in the following

2 parts of the report that the knowledge of Mr. Markac plays an important

3 role. For example, in paragraph 69 of the report we find the knowledge

4 of Mr. Markac to be of importance for drawing further conclusions.

5 The Chamber has no statement of Mr. Sacic, and it was argued by

6 the Prosecution that it would be inadmissible evidence because it was a

7 statement taken for the purposes of this Tribunal which would not be

8 admissible under Rule 92 ter -- 92 bis, 92 ter, or 92 quater. As far as

9 access to a statement and even potential testimony, the Chamber has no

10 access to it. And the situation certainly would not have been improved

11 over the last one day and a half.

12 The report gives rather far-reaching conclusions. On the basis

13 of this material, the expert reaches conclusions such as: Based on the

14 rules under which Markac operated, and according to the expert's

15 knowledge and expertise, in the doctrine of superior responsibility, it

16 is his opinion that Markac did not commit sufficiently culpable omissions

17 to impose criminal liability for events at Grubori, which is at least a

18 statement which is at risk to do what the Chamber has to do. And then

19 again apparently Mr. Watts bases his opinion, among other matters, but

20 certainly in a rather important aspect, on material which is not

21 accessible for the Chamber.

22 The Chamber would like you to specifically address these matters,

23 not excluding you from any other matters, in 10 minutes. And whether

24 you'd like to do it now or to do it after the break, I leave that to you.

25 I would -- of course, the matter came up only in the second round of

Page 26473

1 exchange of views, and that's the reason why the Chamber exceptionally

2 would like to hear brief oral submissions on specifically these matters.

3 The Chamber is also aware that, of course, we have two stages.

4 The first is to add a witness to the 65 ter list; and, of course, the

5 second issue, but not totally unrelated, the admission of evidence as an

6 expert report as presented as an annex to your submissions seeking to

7 have the 65 ter list amended and Mr. Watts being added.

8 Would you like to do it before the break or after the break? As

9 I said before, the Chamber has in mind certainly not more than 10 minutes

10 at this stage, and the Chamber would allow a brief response then for the

11 Prosecution - you were the moving party - but also certainly not more

12 than six, seven, eight minutes.

13 Mr. Mikulicic.

14 MR. MIKULICIC: Your Honour, I would very much prefer to do it

15 after the break. I found myself in a rather peculiar position because

16 this is the matter dealt with by my co-counsel, Mr. Kuzmanovic, and legal

17 assistant, Mr. David Gault. They both are absent now, and I'm not quite

18 familiar with the matters that -- in such details that you just

19 introduced. So I will consult with my colleagues during the break, and I

20 will try to give you a satisfactory answer afterwards.

21 JUDGE ORIE: Yes. You will understand that, I think, the

22 original motion was filed the 11th of November. The Prosecution

23 responded on the 26th of November. Then the Defence replied on the

24 4th of December. And the Prosecution then sur-replied the

25 11th of December. So, therefore, the Chamber doesn't want to -- I think

Page 26474

1 it would not be good to wait until after the recess, because that would

2 disturb substantially your scheduling of witnesses; at least it may have

3 an impact on that. And, therefore, the Chamber would rather already

4 decide the matter, even if there's not yet a full written decision,

5 preferably today or in the few days to come so that you have practical

6 guidance. And that's the reason why we asked you to make further

7 submissions. We'll do that after the break.

8 If you need a bit of a longer break in order to be better able to

9 consult with -- I don't know where Mr. Kuzmanovic is. I hope he's not

10 back in the States, because --

11 MR. MIKULICIC: Yes, he is. He's somewhere over the ocean.

12 JUDGE ORIE: That would be early in the morning for him.

13 MR. MIKULICIC: Your Honour, what I would suggest, with your

14 permission and your guidance, I would suggest that until Monday, so over

15 the weekend, we could produce written answers to your remarks, and we

16 could file it on Monday. So within three days, counting the weekend

17 between.

18 [Trial Chamber confers]

19 JUDGE ORIE: We have considered your request, and the Chamber

20 will not allow you to wait until after the weekend. That causes all kind

21 of huge logistical problems. You more or less triggered the difficulty

22 by a relatively late filing. I'm not anticipating on a decision on

23 whether the filing was too late or not, but at least it was on the

24 11th of November, and then the report became available only as an annex

25 to your filing on the 4th of December.

Page 26475

1 The Chamber, nevertheless, wants to accommodate you in some

2 respect; that is, that if you'd prefer to make a written filing, you

3 would have until 5.00 today to do that, even if it's not formally filed,

4 but if a courtesy copy is given to the Chamber, that will do, which

5 allows the Chamber to deal with this matter in a meeting to take place

6 later today. And the Judges are not able to meet after the weekend,

7 because we'll all be at different locations, and these are matters which

8 are in need of a thorough discussion, rather than a phone call of five or

9 ten minutes, apart from whether that could be organised.

10 Further, the Chamber also considers it important that you receive

11 the guidance you need. Therefore, the Chamber leaves it to you,

12 Mr. Mikulicic. You also could do both. If you say, Let me consult

13 with -- I don't know, you said is he above the ocean or at the other side

14 of the ocean already?

15 MR. MIKULICIC: Above the ocean, Your Honour.

16 JUDGE ORIE: Above the ocean, yes.

17 MR. MIKULICIC: I think his flight started at 10.30 this morning.

18 JUDGE ORIE: Which means that you -- I don't know whether you can

19 reach him. I know that there is some communication possible sometimes

20 from planes as well, but I leave it in your hands. If -- do you know

21 what the arrival time of the plane is?

22 MR. MIKULICIC: Well, let's say eight hours from starting.

23 JUDGE ORIE: Yes. Sometimes it's six, seven, eight.

24 MR. MIKULICIC: So I believe it's -- let me count. I'm not very

25 good in mathematics, Your Honour. So it will be ten and six. It will be

Page 26476

1 like 4.00 in the afternoon, something like this, our time counting.

2 JUDGE ORIE: Yes.

3 [Trial Chamber confers]

4 MR. MISETIC: Mr. President.

5 JUDGE ORIE: Yes, Mr. --

6 MR. MISETIC: As someone who also takes the Amsterdam to Chicago

7 flight quite frequently, I think 4.00 is a bit hopeful. I would suspect

8 it's past 6.00 our time here that he would arrive.

9 JUDGE ORIE: Thank you -- I wouldn't say "flight attendant" for

10 this information, but at least thank you for this information. One

11 second.

12 I'm just checking my e-mail at this moment on the proposed

13 practicalities of further meetings with the Republic of Croatia.

14 The Prosecution has asked for a third person to be present. So

15 has the Gotovina Defence. We'll look at what is possible. We have to

16 find an accommodation which provides for everything. We need this

17 interpretation, possibly transcript.

18 One final matter which I would like to ask the parties about. If

19 we would meet with the Republic of Croatia, it would not be part of a

20 court hearing; it would be a preparatory meeting. The Prosecution has

21 suggested that a transcript be made.

22 Now, one of the issues brought to our attention by the Registry

23 was that it might be difficult to have French translation available which

24 is, of course, needed, if a transcript in French would have to be

25 prepared as well. I'm seeking the position of the parties as to limiting

Page 26477

1 this non-formal court hearing if the Chamber would decide that

2 immediately, simultaneously, a transcript would be made, that we would

3 not insist on a French interpreter being there. So that also dis-enables

4 to have a French transcript made at any later stage.

5 MR. KEHOE: Mr. President, the view of the Gotovina Defence team

6 is we don't need a transcript at all.

7 JUDGE ORIE: Yes. We'll consider it. The Chamber suggested, I

8 think, an audio recording, so that if need be, a transcript could be made

9 at a later stage.

10 Mr. Waespi, would you explain why you find it of such importance

11 already to have immediately a transcript being made?

12 MR. WAESPI: I think that's for the benefit of all the

13 participants at that meeting. As you know, it's usually good to see what

14 people have said previously. But I can go back to Mr. Tieger and then

15 ask for his specific reason. I'm sure that the transcript in French is

16 not an issue at this point in time.

17 JUDGE ORIE: Yes. Thank you for that.

18 I suggest the following: The Chamber would like to consider how

19 to proceed with -- whether we should first inquire as to whether

20 Mr. Kuzmanovic has a tail wind or head wind, and what is still possible

21 for the Chamber. As I said before, these are matters the Judges want to

22 discuss and not to exchange brief e-mails on these matters. I suggest

23 that we have a break, that you further inquire as to at what moment

24 Mr. Kuzmanovic will switch his mobile phone on again, how much time you'd

25 need. We'll also need to have a look at, perhaps, what the possibilities

Page 26478

1 are for the Chamber to meet. But the urgency of the matter is something

2 that was not triggered by the Chamber.

3 I suggest that we -- since we might not need to discuss any other

4 matter, that perhaps we take a bit of a longer break.

5 Mr. Mikulicic, if you would see no possibilities at all to make

6 further submissions in writing today, you might want to prepare for brief

7 oral submissions. In view of the time-limits the Chamber sets, we'll

8 have a break, and we'll resume at a quarter past 1.00.

9 --- Recess taken at 12.33 p.m.

10 --- On resuming at 1.22 p.m.

11 JUDGE ORIE: Mr. Mikulicic.

12 MR. MIKULICIC: [Interpretation] Your Honour, this is the state of

13 affairs, more or less: When we take into account Mr. Watts' expertise,

14 without going into the details that you pointed out, but bearing those in

15 mind nonetheless, when we put it in the context of these new

16 developments, so to say, in Croatia, which will most likely result in a

17 number of new facts specifically related to the Grubori events, being one

18 of the central parts of the indictment, then I believe that submitting an

19 expert report in the absence of information to be obtained by virtue of

20 these new developments would, in any case, be premature. That is why,

21 Your Honour, this Defence is in favour of withdrawing putting Mr. Watts,

22 the expert witness, on the 65 ter list, and to exclude his expert

23 testimony from our Defence case. In other words, we withdraw all our

24 requests pertaining to that.

25 As I have already stated in the morning, in view of the new

Page 26479

1 developments, we reserve the right to react to any new developments of

2 what may ensue in Croatia and the procedure that is underway there.

3 JUDGE ORIE: May I take it that the other Defence teams have no

4 submissions to make on this matter?

5 Mr. Waespi.

6 MR. WAESPI: Nothing, Mr. President.

7 JUDGE ORIE: Thank you.

8 [Trial Chamber confers]

9 JUDGE ORIE: Irrespective of whether the Chamber can adopt the

10 reasons why, it is on the record that the request to amend the

11 65 ter list has been withdrawn, and that is where it stands now. It's

12 put on the record. That is clear.

13 A final matter. Have the parties discussed the extension of time

14 for any pending motions, and what would be their suggestions?

15 MR. KEHOE: Mr. President, I spoke to Mr. Waespi, and we're just

16 going to go back and look at our e-mail traffic from last Christmas, and

17 I was going to consult with him and then forward that to the Chamber. We

18 have not done a specific time-frame or haven't given a specific

19 time-frame.

20 JUDGE ORIE: Yes. The Chamber, of course, will have to decide

21 rather quickly.

22 MR. KEHOE: Yes.

23 JUDGE ORIE: If there will be any e-mails which express any joint

24 position, we'll, of course, consider them, which is not the same as to

25 accept any joint position by the two parties. But we will consider that.

Page 26480

1 If you would like to have a fair chance that the Chamber will have a look

2 at it, then it's advised to wait not longer than until 3.00 this

3 afternoon.

4 MR. KEHOE: Mr. President, may I have just one minute to talk to

5 Mr. Waespi across the divide?

6 JUDGE ORIE: Yes.

7 [The Prosecution and Defence counsel confer]

8 JUDGE ORIE: Mr. Kehoe.

9 MR. KEHOE: Mr. President, the agreement of the parties was, as

10 opposed to the two weeks that is in the Rules, three weeks from the date

11 of any filing. I understand Your Honour has timing concerns, but in

12 order to accommodate everybody's schedule, that's what the parties agreed

13 to. And we make that proposal jointly to the Chamber.

14 JUDGE ORIE: Yes. Mr. Waespi.

15 MR. WAESPI: Yes, just a couple of points.

16 The only filing -- the two filings we will obviously comply with

17 is the dead-line of today. I think there is one on Tuesday, our response

18 to the request for certification to the Appeals Chamber. And that, of

19 course, isn't affected by any agreement.

20 And just another additional point to what we were discussing

21 before the break in relation to this preparatory meeting.

22 The record the Prosecution suggests to have is not a simultaneous

23 record, as we have it now, but just any record like it's usually done

24 after the 65 ter meetings, which is usually available, I think, the day

25 after the meeting. That would be sufficient from the Prosecution's

Page 26481

1 perspective.

2 Thank you.

3 JUDGE ORIE: Yes. We'll consider that matter. There may be

4 technical possibilities to do that. Otherwise, we have to find another

5 way of recording, because most important would be where there is

6 agreement and where there is no agreement. And we'll certainly -- if not

7 through a verbatim transcript, there will certainly be ways found to

8 avoid whatever confusion or mal-communication. The Chamber will further

9 consider the matter.

10 Any other matter on the table?

11 If not, we will then adjourn, but we'll not do so without having

12 wished everyone -- whether Christmas is in December or whether Christmas

13 is in early January, we wish everyone the very best for those -- for

14 Christmas and for the new year to come.

15 The Chamber is aware that we are not all in the same position.

16 The Chamber is aware that it is -- especially in detention, it's harder

17 to enjoy these days. Nevertheless, the Chamber wants to wish -- to give

18 the best wishes for these days to everyone in this courtroom and those

19 just outside the courtroom assisting us.

20 We adjourn, and we resume on Monday, the 11th of January, 2010,

21 9.00 in the morning, Courtroom III.

22 --- Whereupon the hearing adjourned at 1.31 p.m.,

23 to be reconvened on Monday, the 11th day of

24 January, 2010, at 9.00 a.m.