1 Wednesday, 18 May 2005
2 [Open session]
3 --- Upon commencing at 9.04 a.m.
4 [The accused entered court]
5 JUDGE AGIUS: Could you call the case, please, Madam Registrar?
6 THE REGISTRAR: Good morning, Your Honours. This is case number
7 IT-03-68-T, the Prosecutor versus Naser Oric.
8 JUDGE AGIUS: Thank you. Mr. Oric, can you follow the proceedings
9 in a language that you can understand?
10 THE ACCUSED: [Interpretation] Good morning, Your Honours. I can
11 follow the proceedings in my own language.
12 JUDGE AGIUS: Thank you. Good morning to you and you may sit
14 Appearances for the Prosecution?
15 MR. WUBBEN: Good morning, Your Honours. My name is Jan Wubben,
16 lead counsel for the Prosecution. I'm here together with co-counsel,
17 Ms. Patricia Sellers and our case manager, Ms. Donnica Henry-Frijlink.
18 And also good morning to the Defence.
19 JUDGE AGIUS: Good morning to you and your team.
20 Appearances for Naser Oric?
21 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. I'm
22 Vasvija Vidovic. Together with Mr. John Jones, I represent Mr. Naser
23 Oric. Together with us are our legal assistant Ms. Adisa Mehic and our
24 case manager, Mr. Geoff Roberts.
25 JUDGE AGIUS: Thank you, Madam Vidovic, and good morning to you
1 and your team.
2 Any preliminaries before we call in -- before we bring in the
3 witness? Yes, Mr. Jones?
4 MR. JONES: Yes, just one, Your Honour.
5 Following the meeting yesterday on Rule 98 bis we said we would
6 revert to you regarding what sort of a time estimate we were considering,
7 and we have considered the position very carefully in light of the
8 discussions with Your Honours about the new oral procedure and precisely
9 how that should unfold, and in light of that we consider that actually we
10 would opt for a more summary presentation of the arguments rather than
11 taking Your Honours through a detailed exegesis of the evidence which has
12 been given which of course is unnecessary because you're well aware of the
13 evidence. So in light of that, we would opt for, as I say, a more
14 expedited presentation of between an hour and a half and two hours, and of
15 course, with the possibility of elaborating on any points or any evidence
16 which Your Honours would wish me to but we could certainly do it that way,
17 enabling, if Your Honours wish, the whole proceedings to be concluded that
18 week. So just to give you that indication. And I informed my learned
19 friend on the Prosecution bench this morning.
20 JUDGE AGIUS: I thank you so much, Mr. Jones. And also I thank
21 you even more for having thoroughly grasped the reasons, the purposes,
22 behind the amendments that we introduced to the rules and for being very
23 cooperative with the Tribunal, with the Trial Chamber.
24 Mr. Wubben.
25 MR. WUBBEN: Yes, Your Honour. Taking this as a start of the
1 proceeding and also the Prosecution abide by the expeditious way to deal
2 with oral pleadings, we will be ready to start the submissions by the 3rd
3 of June, meaning on the Friday and to use that day.
4 JUDGE AGIUS: I thank you. So I thank you also, Mr. Wubben. You
5 have been most cooperative throughout as well, understanding the whole
6 purpose behind these amendments, which moves very much as I tried to
7 explain earlier the burden that it's thrown on the Defence in particular
8 in a party-driven motion or system as regards the motion for acquittal on
9 to the Trial Chamber, which has now got the onus of protecting the rights
10 of the accused in this area, the right not to be compelled to answer
11 charges that we believe he shouldn't be made to answer, and that thrusts a
12 tremendous onus on us to make sure that we reach the correct decision.
13 So I thank you both and we will hand down a scheduling order
14 accordingly in due course.
15 MR. JONES: I'm obliged, Your Honour.
16 JUDGE AGIUS: Madam Usher, the witness, please.
17 You would be able to finish today, Madam Vidovic, won't you?
18 MS. VIDOVIC: [Interpretation] Certainly, Your Honour. I don't
19 think I will need more than two hours, maybe even less. It will all
20 depend on how the witness answers my questions. Thank you very much.
21 JUDGE AGIUS: I ask you because I imagined that would be your
22 answer basically.
23 [The witness entered court]
24 JUDGE AGIUS: Good morning to you, Professor.
25 THE WITNESS: [Interpretation] Good morning.
1 JUDGE AGIUS: Welcome back. I hope you've had time to rest.
2 THE WITNESS: [Interpretation] Thank you, yes.
3 JUDGE AGIUS: We will proceed today with your testimony, and Madam
4 Vidovic, who is lead counsel for Naser Oric in this trial, will
5 cross-examine you. After that, we'll see whether there is any
6 re-examination, any questions from the bench and soon after, you can go
8 Madam Vidovic.
9 MS. VIDOVIC: [Interpretation] Your Honour, could I please ask you
10 to remain -- for me to remain seated during the cross-examination? Thank
12 WITNESS: MUSIR BRKIC [Resumed]
13 [Witness answered through interpreter]
14 Cross-examined by Ms. Vidovic:
15 Q. Good morning, Mr. Brkic.
16 A. Good morning.
17 Q. In order for this part of the proceedings to be as expedited as
18 possible, I'm going to ask you a number of yes-no questions, and if you
19 can only answer with a yes or a no, could you please do that and this will
20 certainly save us some time.
21 A. Very well.
22 Q. Mr. Brkic, you have a lot of military experience and knowledge,
23 don't you?
24 A. Yes.
25 Q. You worked as an infantry officer and then you occupied high
1 positions in the military judiciary system of the former SFRY?
2 A. For six years I was in infantry and the rest of the time I was in
3 the legal services.
4 Q. After that, you drafted a number of military regulations of the
5 Republic of Bosnia-Herzegovina, you supervised their drafting, you didn't
6 author them, you prepared and compiled a number of documents that you
7 spoke of yesterday.
8 A. Yes.
9 Q. It is true, isn't it, that in all that, you used your academic
10 knowledge, your memory and that you did not refer to the JNA manuals
11 because at that time you did not have them at your disposal; isn't that
13 A. Yes, it is.
14 Q. Even when you were in Sarajevo, during the terrible shellings at
15 the beginning of the war, it was not easy to come by professional military
16 literature and regulations; isn't that correct?
17 A. Yes, it is.
18 Q. When withdrawing from the barracks and facilities that they had,
19 the former JNA took their documents with them, and this included
20 regulations, laws, manuals and other things; is that correct?
21 A. I can only assume that this is correct but I can't be sure of
22 that. I don't have any such information.
23 Q. From the Ministry of Defence in Sarajevo, some of the Serbian
24 staff that had worked in this ministry took the manuals and professional
25 literature with them. Are you aware of that?
1 A. Since that kind of literature was missing from the premises, it is
2 to be assumed that the literature had been taken away, at least this is
3 what I can assume.
4 Q. In any case, you did not find any such literature on the premises;
5 is that correct?
6 A. Yes, it is.
7 Q. In your testimony and especially when you gave your statement to
8 the OTP, which you did, don't you remember that?
9 A. Yes, I do.
10 Q. You explained that the army of Bosnia-Herzegovina, or rather the
11 Republic of Bosnia-Herzegovina did not adopt a single law or regulation of
12 the JNA verbatim; is that correct?
13 A. Yes, that is correct.
14 Q. In a certain way, the only exception was the decree law on the
15 adoption of the service in the armed forces and its application in the
16 Republic of Bosnia and Herzegovina as a republican law. This law was
17 passed on the 11th of April, 1992, and it was published in the Official
18 Gazette of the army of Bosnia-Herzegovina, issue number 1?
19 A. Yes, that is correct.
20 MS. VIDOVIC: [Interpretation] I would kindly ask Madam Usher to
21 show the witness P286.
22 Q. This is the decree law that I have just mentioned that was passed
23 on the 11th of April, 1992. Could you please take a look at this decree
24 law, and based on this decree law I'm going to ask you some questions.
25 It is correct, isn't it, that this decree law on the adoption of
1 the law on serving in the armed forces and its application as republican
2 law of the Republic of Bosnia-Herzegovina contained only a small
3 percentage of the provisions that originated from the former regulation of
4 the JNA. Am I right?
5 A. I believe that it was less than 10 per cent of the original law.
6 Q. Thank you very much.
7 MS. VIDOVIC: [Interpretation] And now I would kindly ask the usher
8 to show the witness another document. This is Exhibit P543. For the
9 record, this is a decree law on the armed forces of the Republic of
10 Bosnia-Herzegovina which was published in the Official Gazette, issue
11 number 4/92, in May 1992.
12 Q. Mr. Brkic, could you please take a look at Article 42 of this
13 decree law? First I'm going to quote the end of this provision or this
14 article. On the day when this decree law starts being applied, this will
15 supersede -- I'm quoting paragraph 2 of this article -- "this will
16 supersede the decree law on the takeover of the law of service in the
17 armed forces and its application in the Republic of Bosnia-Herzegovina as
18 a republican law."
19 Mr. Brkic, I'm right in thinking that this document was in force
20 only for 49 days and it was made null and void by the decree law on the
21 armed forces of the Republic of Bosnia-Herzegovina which was published in
22 this Official Gazette, issue number 4/92, in May 1992; is that correct?
23 A. Yes. 49 days and this decree law was made null and void. It was
24 superseded by another document.
25 Q. Yes. This was exactly the purpose of my question and thank you
1 very much.
2 On your testimony yesterday, you were shown Article 2 of this
3 decree law. Could you please take a look at it again?
4 A. Very well then.
5 Q. Let me quote part of it: "Armed forces of the republic are
6 composed of the army. In case of a war, the armed forces, in addition to
7 the army, will also be composed of the police and the such armed forces
8 which will be placed under the sole command of the armed forces of the
10 With this regard, Mr. Brkic, I'm going to ask you to explain
11 something. It is correct, isn't it, that there were proposals for the
12 police to be placed under the command of the army of the Republic of
13 Bosnia-Herzegovina. However, the Presidency of Bosnia-Herzegovina never
14 issued a decision to such an effect. Am I right?
15 A. Yes. There were several attempts for the units of the Ministry of
16 the Interior to be placed under the sole command of the army of
17 Bosnia-Herzegovina. However, for certain personal reasons, or personnel
18 reasons, rather, this never took off the ground, save for one case when
19 the reserve forces of the Ministry of the Interior were placed under the
20 sole command but only pro forma in order to accomplish a certain combat
21 task, and there is a decision of the Presidency to support that.
22 Q. Thank you very much. Just for better understanding, when you say
23 the units of the Ministry of the Interior, you are actually referring to
24 the police. This is what we refer to as the regular police?
25 A. In addition to the regular police units, there were also units of
1 the special police. So that the units of the Ministry of the Interior
2 consist of several specialties, so the uniformed police, the police that
3 patrols the street, are not the only units of the Ministry of the
4 Interior. There are also special units which perform special tasks. This
5 decree law does not specify any units but I suppose that the implication
6 was to place under the sole command all the units of the civilian Ministry
7 of the Interior.
8 Q. Thank you very much for this explanation. Therefore, for certain
9 combat activities, the police had to be resubordinated to units of the
10 army of Bosnia-Herzegovina by certain special orders. Wasn't that the
12 A. Yes, that was the only way. There had to be a special order or a
13 decision by the Presidency as the army Supreme Command.
14 Q. Thank you. Otherwise, the police had its own civilian command,
15 didn't it?
16 A. Yes.
17 Q. Yesterday, during your testimony, you said that the military
18 police, according to our regulations, was within the composition of the
19 armed forces in terms of its organisation, and I have something to ask you
20 about this. It's true, isn't it, that the internal structure, the
21 strength, and in which commands or units of the army the military police
22 units would be was something that was determined by organisation and
24 A. Yes, the organisation formation of the armed forces.
25 Q. Thank you. You explained yesterday the way in which the rules
1 governing the service in the armed forces of the Republic of
2 Bosnia-Herzegovina were drafted.
3 Can the usher now please remove this previous document, and I
4 would like to show the witness a new document. This is Prosecution
5 Exhibit P544. Just for the sake of the transcript, these are the rules
6 governing service in the army of Bosnia and Herzegovina.
7 Witness, can you please have a look at the date --
8 A. Just a minute, please. I don't think this is the right document.
9 You're talking about the rules governing service; right?
10 Q. I asked --
11 THE INTERPRETER: One at a time, please. Could the speakers kindly
12 speak one at a time.
13 MS. VIDOVIC: [Interpretation]
14 Q. Witness, could you please go to the relevant page? I think that
15 must be the last page, or rather the last portion of this document, and
16 please look at the date.
17 A. The 1st of August.
18 Q. Yes, indeed. Thank you very much. So you agree this was passed
19 on the 1st of August, or at least that's what the date appears to
21 In relation to that, let me ask you something. These rules were
22 adopted before the decree law on the ratification of international
23 conventions regarding international law of war and -- which was passed on
24 the 23rd of August, 1992; isn't that correct?
25 A. Based on what I see in the protocol number and all the other
1 evidence that would seem to be correct. But I did explain yesterday that
2 for a time all the regulations of the army of Bosnia-Herzegovina were
3 drafted in parallel. Only the day of the actual passing or adoption
4 differed. There depended on when a meeting of the Presidency took place.
5 But in relation to what you just asked, the answer would be yes.
6 Q. Thank you very much.
7 MS. VIDOVIC: [Interpretation] Could I have the usher's assistance
8 yet again please. I would like to leave there copy of the rules with the
9 witness. We may be requiring it a little longer. And can you please also
10 show the Witness OTP Exhibit P271, P271. This is the decree law on the
11 ratification of international conventions regarding the law of war and
12 other related judicial matters.
13 Q. Witness, can you please have a look to see what this document is
14 about? In your testimony yesterday my understanding was you said you had
15 not personally drafted this document but you had supervised its drafting
16 or in some way supervised the drafting of this document you had been
17 involved, had you not?
18 A. Yes. Through a colleague of mine, a subordinate who was working
19 with the Ministry of Justice at the time.
20 Q. If you look at this list, you will agree, won't you, that the list
21 contains, or rather, if you look at this decree law, you will agree that
22 it contains a list of ratified international conventions regarding the
23 international law of war?
24 A. By the Republic of Bosnia-Herzegovina, you mean.
25 Q. Yes. Thank you. Can you just please have a look? I'll leave the
1 document with you for a minute or two, although I'm sure you're familiar
2 with the list in its entirety. But do you agree with me that The Hague
3 Convention, number 4 from 1907, which relates to the customs and laws of
4 war on the ground is not on this list? Can you please have a look?
5 A. I need to go back to the document and have a look briefly.
6 Q. Please do so.
7 A. To the extent that I've been able to see, I don't notice that it
8 is on the list.
9 Q. Do you know, can you perhaps help us with an answer, why is it
10 that this convention that relates to the laws and customs of war did not
11 come to be included in the body of international law that was adopted by
12 Bosnia-Herzegovina, if you could give us a hand with that, please?
13 A. It is my opinion, as I explained yesterday, that it was because of
14 the absence of precisely these provisions at that very difficult time that
15 most of the international conventions, or rather bilateral treaties from
16 this convention didn't make it into this provision. We simply had no
17 insight. We didn't have these documents available, and we could not
18 submit this to the Presidency for ratification for purely technical
20 Q. To this very day, in fact, Bosnia and Herzegovina has not ratified
21 this particular convention. Is this something you're familiar with?
22 A. No, I'm not.
23 Q. Very well.
24 MS. VIDOVIC: [Interpretation] Can I have the usher's assistance,
25 please? I would like to show the witness -- we can have this document
1 removed, and I would like to show the witness a different document now.
2 The document I'm talking about is OTP Exhibit P319.
3 So for the sake of the transcript, this is a decision of the
4 Presidency on the application of the rules of international law of war in
5 the armed forces of Bosnia-Herzegovina dated the 23rd of August, 1992.
6 Q. During your testimony yesterday, the Prosecutor showed you this
7 order. Can you please now go back to Articles 2 and 3 of this order on
8 the application of the provisions of international law of war? I will
9 quote paragraph 1 of Article 2 and paragraph 1 of Article 3. Paragraph 1
10 of Article 2 says: "The commanders of the units shall be responsible for
11 the application of the international law of war and each member of the
12 armed forces individually."
13 And then paragraph 1 of Article 3 says: "In order to learn the
14 rules of the international military law, the armed forces shall organise
15 training regularly which shall be obligatory for all members of the armed
17 During your testimony yesterday, you confirmed this order placed
18 the responsibility on the shoulder of the commanders of the units, as far
19 as the application of these rules was concerned?
20 A. Yes, that is correct.
21 Q. Do you agree with me that -- or rather, do you agree with me that
22 these commanders should either have the necessary knowledge regarding the
23 international law of war or should have a copy of these rules available to
24 know what they are about and what their obligations would be?
25 A. Yes, you're quite correct, yes.
1 Q. In order to inform their own soldiers about these rules and
2 organise training, they would likewise need the required knowledge or the
3 alternatively the documents that we have just referred to?
4 A. Yes, but I need to add something. As the Criminal Code of the
5 former Yugoslavia had been adopted, which governed the same area in a
6 manner of speaking, as educated and well-trained people they would have
7 been expected to be familiar with this. But in answer to your question,
9 Q. When you say that as generally well-educated people they would be
10 expected to be familiar with this area, you mean the commanders who would
11 have been expected to have a decent level of education?
12 A. Yes. The commander should certainly be expected to have a decent
13 degree of both military and civilian education which would make it
14 possible for them to exercise their duties as commanders in a proper way.
15 Military commanders who complete military schools during their time at
16 these military schools also study these regulations and do acquire a
17 decent degree of general background.
18 Q. Thank you, Mr. Brkic. Throughout the war, you were in touch with
19 the army of Bosnia-Herzegovina one way or another throughout the war, I
20 say, and you were familiar with the situation in its ranks. Do you agree
21 with me that throughout 1992 and 1993, there were the great number of
22 commanders in the units of the army of Bosnia-Herzegovina who had not
23 received any military training or any training at all, generally we could
24 say that there were a great deal of commanders with little or no education
25 at all. Do you agree with me when I say that?
1 A. I'd say over 90 per cent of them were like that.
2 THE INTERPRETER: Could the speakers please speak one at a time.
3 JUDGE AGIUS: One moment, because I had tried to restrain myself
4 as much as I could but my attention has been drawn as we go along.
5 You both speak the same language and because of that, you're not
6 allowing that very short interval of time between question and answer and
7 between answer and question to allow the interpreters sufficient space and
8 time to be able to interpret completely to us. Please, try to cooperate
9 as much as I -- as you can. I know that this is not easy. Sometimes we
10 do the same thing when the rest of us speak English, and I appeal to you
11 to try and do your best to allow that short interval of time. Thank you.
12 And not to speak too fast also because you both are speaking very, very,
13 very, very fast.
14 MS. VIDOVIC: [Interpretation] Thank you very much, Your Honour.
15 My apologies.
16 Q. I see that your last answer was reflected in the transcript, so
17 now I wish to go back to the international conventions that we discussed.
18 In your testimony yesterday you explained that even when you were
19 in Sarajevo there were no copies available to base the new provisions on.
20 Rather, you had to go to Zagreb to get copies in order to work with these.
21 A. That was something that the Ministry of Justice did, and I'm not
22 sure how they came by these conventions, but I know there is a Zagreb
23 edition that was obtained, and it took about 20 days to track these
24 documents down.
25 Q. In other words, even you, who were in Sarajevo, had no copies
1 available of these international conventions to work with them. You
2 simply did not have any copies available, did you?
3 A. Well, they might have been available somewhere but the defence
4 ministry or the justice ministry simply had no copies available based on
5 which they would have been able to draft these provisions.
6 Q. Thank you very much. I would like to go back to the rules
7 governing service in the armed forces. I think you still have a copy in
8 front of you, don't you? I think the witness still has a copy there.
9 A. Yes. I do.
10 Q. Can you just look through it briefly?
11 A. You want me to look through the whole thing?
12 Q. No. You're familiar with these rules, and there is a question, a
13 very general question, that I'd like to ask you in relation to this.
14 It's true, isn't it, that this law of the army of
15 Bosnia-Herzegovina is to a high degree different from the former law from
16 the former JNA. This law contains 81 articles and the same document of
17 the JNA had over -- contained over 600 provisions. Would I be right in
18 saying that?
19 A. Yes.
20 Q. Speaking about the provisions of the army of Bosnia-Herzegovina
21 governing military discipline, you said that when you were drafting these
22 documents, you were using the JNA laws as a mere blueprint. It was just
23 something you used in order to make sure that the new provisions would
24 encompass all the aspects of this subject matter. Would I be right in
25 saying that?
1 A. Yes.
2 Q. You, therefore, were involved with drafting most of the new
3 provisions and regulations governing the work of the army of
4 Bosnia-Herzegovina. It's true, isn't it, that the regulations of the army
5 of Bosnia and Herzegovina were drafted to serve the purposes of the
6 Republic of Bosnia-Herzegovina, which was a country with a totally system
7 from the one that prevailed in the former Yugoslavia?
8 A. Yes, that's true.
9 Q. Therefore, the military regulations of the army of Bosnia and
10 Herzegovina were created in an entirely different time frame and in the
11 midst of a war, with war conditions prevailing, which was a very different
12 situation from the situation in which the JNA provisions were created?
13 A. These were no military regulations. These were regulations of the
14 civilian authorities which pertained to the army or rather the armed
15 forces. These were passed by a legislative body. These were civilian
16 regulations governing the work of the armed forces. At that time, and
17 given the kind of system that was in place at the time, and given the
18 realities of the international situation, these were laws that were the
19 result of the constitution of the Republic of Bosnia-Herzegovina, also
20 they were inaugurated as such and applied as such by the various bodies
21 and organisations in the Republic of Bosnia-Herzegovina.
22 Q. Thank you, Witness, for this explanation of terms.
23 Let me ask you this: It would be wrong to say, wouldn't it, that
24 the customary practice in the army of Bosnia-Herzegovina was to use
25 different rules and regulations of the former JNA. Am I right in saying
2 A. I did not understand your question well. However, I can say that
3 with a certainty that the regulations of the former Socialist Federal
4 Republic of Yugoslavia that applied in the life and work in the army were
5 not used in the army of the Republic of Bosnia-Herzegovina. They were
6 absolutely not applied unless for maybe the 49 days while the first set of
7 rules was in force. This is the decree law on the adoption of the law
8 governing the service in the army in the Republic of Bosnia-Herzegovina,
9 which was superseded in -- after 49 days.
10 Q. Yesterday you commented upon some provisions of the decree law on
12 A. No, I didn't, not the decree law on defence.
13 Q. Yesterday you looked at the decree law on defence; it's
14 Article 42, if I'm not mistaken. However, I would kindly ask the usher to
15 show the witness P286.
16 A. This will be of some assistance to us.
17 JUDGE AGIUS: This is the same document we saw earlier on in the
18 beginning of your cross-examination this morning, isn't it?
19 MS. VIDOVIC: [Interpretation] Yes, Your Honour. This is something
20 that I spoke of yesterday. On its first page this document has two decree
21 laws. The first one is on service in the armed forces, and the other one
22 is on defence. I'm interested in the second decree law, the decree law on
23 defence. The exhibit -- the exhibit number, however, is the same.
24 JUDGE AGIUS: All right. Thank you.
25 MS. VIDOVIC: [Interpretation]
1 Q. Witness, in any case, I believe that you saw this document
2 yesterday, and I would kindly ask you now to look at another aspect of
3 this law. Could you please look at Articles 35, 36, 37 and 38. After you
4 have found them, I'm going to put some questions to you.
5 A. Before that I would like to say that I did not provide any
6 comments on this decree law yesterday. I didn't work on this decree law.
7 I only attended the session of the ministry when this decree law was
8 adopted by the government. However, I had not participated in its
10 Q. Thank you very much. But you were present?
11 A. Yes. I can provide some comments, but I didn't work on it.
12 Q. Thank you very much. You were present when this decree law was
13 adopted and you are familiar with the contents thereof.
14 Could you please look at Article 35 of this decree law and the
15 other articles that I've mentioned? I'm going to read to you Article 35.
16 On its territory in the frame of its rights and duties determined by
17 constitution and law in the system of defence of the republic,
18 municipality organises defence and protection, civil protection,
19 monitoring and reporting service, communication and cryptographic data
20 protection, and it also conducts other preparations for defence in case of
21 war it organises all people's resistance."
22 Can you then please look at Article 336? It says here: "In
23 organising and implementing of defence, the municipality will carry out
24 organisational material and other measures for the realisation of
25 citizens's rights and duties and defence."
1 After that, items 10 and 11 in this Article 36 states that the
2 municipality will organise preparation for defence and defence training.
3 That it will take care of preparing of territory for defence needs.
4 And now can you please look at Article 37 just briefly. This
5 article says that the municipality is duty-bound to ensure the enforcement
6 of regulations and other enactments of the Republic Presidency, the
7 assembly, the government and ministries.
8 And then can you please look at Article 38, which reads: "In the
9 realisation of rights and responsibilities in the field of defence, the
10 municipal assembly determines on issues of importance for defence,"
11 amongst other things.
12 Let me ask you the following: This decree law was in effect for
13 at least as up to July 1993, and these provisions were never changed, not
14 before the end of the war. Are you aware of that?
15 A. Yes, I am aware of that.
16 Q. In connection with these provisions, I'm going to ask you the
17 following questions.
18 It is true, isn't it, that after the passing of the decree law on
19 defence in May 1992, municipalities were the bodies that were duty-bound
20 to organise the conditions, organise everything that was necessary in
21 order to prepare for defence?
22 A. In keeping with this decree law and decree law on districts.
23 Q. I'm going to come back to the district -- to the decree law on
24 districts a bit later. Thank you very much.
25 Military commanders, pursuant to the law on defence were not the
1 ones to create preconditions for the functioning of the army; is that
3 A. That is correct. They were not duty-bound to do that.
4 Q. In your testimony yesterday, you mentioned the fact that during
5 the war the republic was divided into ten counties or districts, and a
6 while ago you mentioned -- a little while ago you mentioned this decree
7 law on districts. It is true, isn't it, that the decree law on the
8 establishment and work of districts, which was published on the 13th of
9 August and that I'm going to show to you in a minute, courtesy of the
10 usher, regulated the same matters.
11 Now I would kindly ask the usher to show you this decree law.
12 I'm referring to an excerpt from the decree law on the
13 establishment and work of districts which was published on the 13th of
14 August, 1992 in the Official Gazette, number 12/92.
15 Witness, could you please look at page with ERN number 01194713,
16 and can you please look at Article 3 of the decree law on the
17 establishment and work of districts. Article 3, I'm going to quote it to
18 you: "The district shall ensure that the basic material and other means
19 of the armed forces and population are met, as well as the efficient and
20 uninterrupted functioning of the political system."
21 And now let me put a question to you. It is true, isn't it, that
22 the districts and the municipalities by law were duty-bound to provide
23 material and other requirements that were necessary for defence, and that
24 by regulations they were the ones that were duty-bound to provide for the
25 functioning of the state organs on the ground?
1 A. Yes, that is correct. This is a general provision, Article 3.
2 And Article 8 is the article that elaborates on those obligations in more
4 Q. Thank you. Could you please turn to a different page and look at
5 Article 8. The ERN number is 01194714, Article 8, that is, and this
6 article refers to the rights and obligations of districts. Could you
7 please look at item 6 of Article 8? It reads -- it is very brief. It
8 reads: "Through its bodies, within the scope of its rights and duties,
9 the districts will organise armed combat on the territory of the district
10 and leading this combat."
11 In other words, districts and municipalities, pursuant to the
12 regulations that were in effect in 1992 and in 1993, I'm talking about the
13 period between 1992 and 1993, districts and municipalities were duty-bound
14 to organise armed combat in their respective territories, to lead this
15 combat and to create preconditions for such combat. Am I right?
16 A. Yes, you're right, because at the time there were still a
17 Territorial Defence and there was no army as a special system.
18 Q. The districts had their defence secretariats that were in charge
19 of organising defence and combat. Am I right in saying that?
20 A. Yes, you are.
21 Q. In other words, the districts were duty-bound to create a
22 prerequisites for the army that would enable the army to function
23 according to rules and regulations?
24 A. Yes. Judging by this decree law and the decree law on defence.
25 Q. You will agree with me, won't you, that it would be absolutely
1 wrong to consider that this was something that commanders were duty-bound
2 to do?
3 A. No. Commanders were not duty-bound to do anything to that effect.
4 Q. These provisions were in effect for at least up to mid-1993?
5 A. I'm not sure. I don't have all the amendments that were
6 introduced at different times, and I cannot confirm the exact date when
7 the first amendment was introduced. So I cannot be sure of that.
8 Q. Yes, yes.
9 MS. VIDOVIC: [Interpretation] Could we have an exhibit number for
10 this document, please?
11 Q. Witness, since you have told us that you don't --
12 JUDGE AGIUS: One moment.
13 MS. VIDOVIC: [Interpretation] I apologise, Your Honour, I
14 apologise. This document already has an exhibit number, or maybe not. I
15 don't have any information about this document having an exhibit number at
17 JUDGE AGIUS: So what's the next exhibit number, please.
18 THE REGISTRAR: D282.
19 JUDGE AGIUS: This document which is being tendered by the Defence
20 is being marked as Defence Exhibit D282.
21 MS. VIDOVIC: [Interpretation]
22 Q. Did I understand you well? Did you say that you had those
23 amendments before you? Could you please look at the first amendment that
24 was introduced in 1993, if you have it before you, and could you tell us
25 whether there were any amendments to the provisions that we have just
2 A. I don't have any amendments in 1993. I have three in 1992. The
3 first one on the 13th of August, 1992, the second one on the 7th of
4 October, 1992, and the third one was on the 9th of November, 1992.
5 Q. Do you agree with me if I say that these provisions that I quoted
6 to you were never amended by any of these amendments?
7 A. I agree. They were never amended.
8 Q. Now I'm going to ask the usher to show the witness another
9 document. This is the decree law on amending the decree law on the
10 establishment and work of districts. It was issued on the 18th of August
11 1992. I believe that you already have the document before you, Witness.
12 A. 13th of August. I emphasise that.
13 Q. Yes, you're right. 13th of August, thank you. I'm going to quote
14 to you from this decree law on amendments to the decree law on the
15 formation and operation of districts. I'm going to quote Article 1: "The
16 decree law on the formation and operation of districts after Article 60
17 shall be changed and it shall read as follows: In municipalities in which
18 the president of the municipality was not elected pursuant to Article 273
19 of the constitution of the Republic of Bosnia-Herzegovina, the Presidency
20 of the Republic of Bosnia and Herzegovina shall appoint the Presidency of
21 the municipality who shall serve in office until there are conditions for
22 the election of the president by the legal organs of the municipality."
23 And with this regard let me put the following question to you.
24 This question is very important in this case. This amendment to the
25 decree law established the procedure to organise the so-called War
1 Presidencies of municipalities. Am I right?
2 A. I can only assume this because I don't know what the author's
3 intention was when he drafted the law and its amendments. I was not
4 familiar with this area. However, in congruence with the constitution,
5 and you have it here in the collection, the appointment of commissions and
6 War Presidencies, this was published in the Official Gazette and I believe
7 that this is what we are talking about.
8 Q. Thank you very much. Article 273 of the constitution regulated
9 the duties and rights of the municipalities, didn't it? I can quote it to
11 A. I can only assume. I don't know.
12 Q. Very well then. I'm going to show it to you very soon. Thank you
13 very much.
14 MS. VIDOVIC: [Interpretation] I would kindly ask for this decree
15 law on amending the decree law to be given an exhibit number.
16 JUDGE AGIUS: Yes. And this will become Defence Exhibit D283.
17 Thank you.
18 MS. VIDOVIC: [Interpretation]
19 Q. Now, if I can have the usher's assistance, please, I would like to
20 show the witness the following document. It's a document that we have.
21 This is the decision of the Presidency of the Republic of Bosnia and
22 Herzegovina on the appointment of the members of the War Presidency of the
23 Municipal Assembly of Srebrenica dated the 2nd of September, 1992.
24 Witness, I would like to draw your attention as well as the
25 attention of the Chamber that the defence has included Article 273 of the
1 constitution that applied at the time, so please, if you could first go
2 back to Article 273 of the constitution that applied, it's the one I asked
3 you about a while ago, as soon as you receive it, of course.
4 Article 273 is, I believe, on the last page of this set of pages.
5 A. What I can say is that I was not involved in the drafting of this
6 decision. I'm not familiar with it. I can also say that the signature is
7 authentic. The signature indeed belongs to the president of the
8 Presidency. As for the substance --
9 Q. Mr. Brkic, but I'm about to ask you a different question with
10 regard to this. We mentioned Article 273 of the constitution a moment
11 ago. Its substance was included in -- or rather attached to this
12 decision. It's on page 3. You have a total of 3 pages. If you could
13 please look at Article 273 of the constitution?
14 A. Yes, I've seen it.
15 Q. Very well. In relation to this, I would like to quote a portion
16 of the decision and ask you a general question, not something about the
17 very -- the functioning. You may be able to help us or you may not be
18 able to help us but here you go. I'll ask you the question anyway. I'm
19 quoting paragraph 2. Paragraph 1 appoints the member of the War
20 Presidency, Murat Efendic, and I'm drawing your attention to Article 2
21 which says: "The Presidency of the Municipal Assembly of Srebrenica will
22 work as decided by Article 273 of the constitution of Bosnia-Herzegovina
23 for so long as conditions are created to elect the members of the
24 Presidency by the legal authorities of the municipality of Srebrenica.
25 The Presidency shall exercise its functions as soon as possible in the
1 free part of the municipal territory and make sure that all the other
2 state bodies and organisations are functioning properly."
3 Witness, I have a general question to ask with regard to this.
4 War Presidencies, to the extent that you were aware, or in as far as you
5 can confirm, had the responsibility to decide on issues within the
6 jurisdiction of municipalities, including any situations in wartime
8 A. Yes. That was pursuant to the decree law on the formation of
9 districts and Article 273 of the constitution.
10 Q. Thank you very much. It was the War Presidencies also that had
11 the responsibility to ensure the conditions were in place for the work of
12 other state bodies, organisations and institutions across the
13 municipalities; is that correct?
14 A. Yes. Much like the Presidency on behalf of the republican
16 Q. So the same applied to these other people on the ground, didn't
18 A. Yes. The district presidencies, as far as subordination was
19 concerned, the Presidency -- on behalf of the assembly, the Presidency,
20 and the Presidency of the district on behalf of the district, and the War
21 Presidency of the municipality on behalf of the municipality as the
22 governing body of the municipality, until such time as conditions were
23 created to go back to every day normal work.
24 Q. Thank you very much.
25 MS. VIDOVIC: [Interpretation] Can this document please be assigned
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 a number?
2 JUDGE AGIUS: Yes, by all means, Ms. Vidovic. I see that it is
3 composed or it consists in three documents. The first one is precisely
4 the decision of the president of -- of President Izetbegovic appointing or
5 electing the members of the War Presidency of the Srebrenica. Then there
6 is an extract from the Official Gazette of the Socialist Republic of
7 Bosnia and Herzegovina dating back to February the 25th of 1974, and it
8 relates to a decision on proclaiming the constitution of the Socialist
9 Republic of Bosnia and Herzegovina. And finally, there is an extract from
10 the constitution of 1974, being Article 273. Do you plan to present them
11 all together as one document or separately?
12 MS. VIDOVIC: [Interpretation] Yes, Your Honours. But may I just
13 clarify this? We have an established practice when we tender exhibits to
14 put on the first page of each document so that we know which document we
15 are dealing with, and I want these two documents to have just one exhibit
16 number, not two separate numbers.
17 JUDGE AGIUS: I never meant to tell you or to suggest to you that
18 they need to be two or three different numbers. I just, for the record,
19 said what the document itself or the exhibit consists of. And this is
20 going to be marked as Defence Exhibit D284.
21 MS. VIDOVIC: [Interpretation] Thank you very much, Your Honours.
22 Q. Witness, please, it's true, isn't it, that the decision to
23 establish district military courts, according to the regulations that
24 apply where we come from, could only have been adopted by the highest
25 organ, the Presidency of the Republic of Bosnia-Herzegovina?
1 A. There should have been a law on district military courts which
2 could only have been passed by the Presidency of the Republic of
3 Bosnia-Herzegovina acting on behalf of the assembly and no one else.
4 THE INTERPRETER: Could the witness please be asked to speak
5 closer to the microphone.
6 MS. VIDOVIC: [Interpretation]
7 Q. The court itself could not have been established by any of the
8 local authorities and military commands, rather, they could only have been
9 established by the Presidency of the Republic of Bosnia-Herzegovina by
10 their own decision?
11 A. Yes. But there were exceptions that were envisaged by law.
12 Q. Thank you very much. The commander of the municipal staff of the
13 TO under the rules was not responsible for setting up a military
14 disciplinary court; isn't that correct?
15 A. A military disciplinary court? There were the rules issued by the
16 defence ministry saying that units between the level of squad and brigade
17 should have first-instance courts and a higher court with the staff of the
18 military forces.
19 Q. Thank you.
20 MS. VIDOVIC: [Interpretation] We can show the witness another
21 document, please. If the witness can please be shown the document bearing
22 the ERN number 01858075.
23 Q. This is a document produced by the defence ministry based in
24 Sarajevo. The date is the 19th of January, 1993. The document was signed
25 by the deputy Defence Minister, Mr. Munib Bisic.
1 Can you please have a look, Witness? I want you to look at
2 paragraph 1 of this document. It reads: "The rules and military
3 discipline regulate the organisation of military disciplinary courts,
4 using a two-stage system."
5 Second paragraph reads: "First instance military disciplinary
6 courts shall be founded at district headquarters, attached to district
7 defence staffs on the order of the commander of the district defence
9 And then we go on to the third paragraph, I quote: "The high
10 military disciplinary court was formed by order of the Minister of Defence
11 dated the 3rd of October, 1992."
12 And paragraph 4, if you could please look at the last part, it
13 says: Those who commit disciplinary violations shall be brought, or
14 rather the corps commander was the only officer who had the authority and
15 the responsibility to adopt a decision to have someone who committed a
16 crime tried by a military disciplinary court. Up there you have
17 Article 52 which says that those who committed a criminal offence should
18 be placed before a court by the commander of the district defence staff.
19 Do you agree with me that after the corps were established during
20 this period of time the corps commander, and I'm talking about 1992 and
21 the beginning of 1993, the corps commander was the only officer who had
22 the authority and the duty to bring all those who committed crimes before
23 a military disciplinary court?
24 A. It's obvious that there is a certain amount of confusion in this
25 document. On the 18th of August -- I was not aware of this up to now, by
1 the way. The 18th of August 1992, as the date of the establishment of the
2 BH army, the -- Article 41 of the law governing the armed forces of
3 Bosnia-Herzegovina was transformed, and on that very day the work of the
4 Territorial Defence of the Republic of Bosnia-Herzegovina ceased to apply,
5 and what started being applied at that time was the provisions as they
6 were drafted in relation to the armed forces of the Republic of
8 In relation to what you just asked, what that means is that from
9 that day on, district staffs and municipal staffs of the TO lose their
10 authority, the authority that they had, pursuant to certain regulations.
11 And as far as criminal prosecution was concerned, this was something that
12 was taken over by the commands, or rather the corps commanders as this
13 order clearly states.
14 Q. This was in fact applied throughout 1992 and part of 1993?
15 A. I'm not sure what you're referring to. What was applied?
16 Q. What you just confirmed, that the corps commanders took over the
17 role --
18 A. As of the 18th of August, 1992 onwards.
19 Q. Thank you very much.
20 JUDGE AGIUS: One moment, before we move on to the next question.
21 I noticed that on this document, in the left-hand top corner,
22 third part, that refers to the 3rd Corps command in Zenica. Would the
23 same situation described in the rest of the document obtain also to the
24 2nd Corps command, or was this something that is applicable only to the
25 3rd Corps command? I'm putting the question to you.
1 THE WITNESS: [Interpretation] Certainly, yes. This applied to all
2 units of the armed forces of Bosnia and Herzegovina. The 1st, the 2nd,
3 the 3rd, the 4th, and the 5th Corps of the army of Bosnia and Herzegovina,
4 all alike.
5 MS. VIDOVIC: [Interpretation] Thank you for this clarification,
6 Your Honour. Can this document please be assigned a number?
7 JUDGE AGIUS: Yes. This will become Defence Exhibit D285.
8 MS. VIDOVIC: [Interpretation]
9 Q. Mr. Brkic, sir, I'm about to ask you a different question now.
10 For some reasons that I'm about to present you with, it was in the very
11 nature of your job, if I ask the question from the viewpoint of this
12 Defence team of course, in the first half of 1993, you were rather well
13 informed on the situation that prevailed in Srebrenica. You were a member
14 of a working group that was working on the agreement for
15 demilitarisation. Am I correct?
16 A. Well, we need to rephrase this. I went to the airport three
17 times, together with a team of military officers, in order to conduct
18 negotiations with the Serbian side, under the aegis of UNPROFOR. And the
19 person in charge was the English general named Hayes. I attended these
20 meetings three times, in a bid to establish a protected zone. But that
21 was the extent of my involvement.
22 Q. Be that as it may, you are familiar with these negotiations
23 surrounding the demilitarisation agreement, aren't you?
24 A. To the extent that I've just described and no more.
25 Q. You did see the agreement itself, didn't you?
1 A. No. I wasn't there for the final meeting when the agreement was
2 reached and signed. I wasn't there. If I remember correctly, there were
3 about five such meetings and I only attended three.
4 Q. Thank you very much, Mr. Brkic. I will still ask you to please
5 have a look. It's Defence Exhibit D276, and this is the demilitarisation
6 agreement. I will be asking you a couple of general questions about this
7 document, nothing very specific.
8 When considering the demilitarisation agreement, can you please
9 have a look. This is a document signed by General Sefer Halilovic and by
10 General Ratko Mladic. What I wish to draw your attention is item 4, the
11 last two sentences, please, of item 4. In order to save time, I will
12 quote what the agreement says: "No armed persons or units except UNPROFOR
13 will remain within the city once the demilitarisation process is complete.
14 Responsibility for the demilitarisation process remains with UNPROFOR."
15 I'd like to ask you a question about this. You attended those
16 meetings, didn't you?
17 A. Yes.
18 Q. It's true, isn't it, that requests were being made and eventually
19 granted that each and every armed soldier should leave the territory of
20 Srebrenica after the 18th of April, 1993. This is something you're
21 familiar with?
22 A. Yes. That is something that was said at the meetings that I
24 Q. This applied to the military police and the military security
25 organ in as far as there was any such thing, didn't it?
1 A. The military police, the military security, well, we are talking
2 about the armed forces. That's all they are, aren't they?
3 Q. So this applied to them equally, didn't it?
4 A. Well, it's only logical. They were part of the armed forces, so
5 the same thing applied to them.
6 Q. Thank you. Thank you for this. I won't be asking you any further
7 questions on the demilitarisation agreement since you appear to not be
8 familiar with the agreement itself or its implementation.
9 Let me ask you a different question. You testified that you had
10 drafted regulations and that there were certain rules according to which
11 these regulations were eventually published. Isn't that the case?
12 A. Yes.
13 Q. In fact, you do not know, do you, whether the regulations that you
14 testified about yesterday were eventually forwarded and delivered to all
15 the units of the army of Bosnia-Herzegovina?
16 A. No. I don't know, and it wasn't part of my remit.
17 Q. Can you please now look at a document, the document I'm talking
18 about is Prosecution Exhibit P162. OTP Exhibit P162.
19 For the record, this is information that the Presidency of
20 Srebrenica municipality sent to the Tuzla district Presidency. It was
21 signed by the president of the municipality of Srebrenica, Hajrudin Abdic,
22 and its secretary, Esed Nukic, on the 25th of May, 1993.
23 Mr. Brkic, could you please take a look at the page with ERN
24 number 01840618. I'm going to quote to you -- you know what the situation
25 was in Srebrenica in the past, we did not receive any Official Gazettes,
1 we did not receive any regulations, so the decree laws that you're
2 referring to are not known to us. The Official Gazettes, number 1
3 and 2/93, that were sent to us were the first sets of regulations that we
4 received from the beginning of the war.
5 Can you please turn to the next page of this document.
6 On page 3, which is paragraph 4 in the English translation, it
7 says: "We also kindly ask you to send us all the necessary sets of
8 regulations and particularly the regulations that were adopted in the
9 course of 1992 and 1993."
10 With this regard, Mr. Brkic, let me ask you this: Judging by this
11 information, the most important sets of regulations that you had worked on
12 and those that were passed throughout 1992 and even some that were passed
13 in 1993, because the document mentions two acts, never reached Srebrenica
14 or so it seems.
15 A. In this information they are talking about the Official Gazette of
16 the Republic of Bosnia and Herzegovina, issue number 1, which mentioned
17 the appointment of the Territorial Defence command; and number 2, which
18 carried the adoption of the laws of the former Republic of Yugoslavia as
19 the republican laws. These are the two sets of regulations that they are
20 referring to. They are not referring to the Official Gazettes of the army
21 of Bosnia-Herzegovina as a compilation of the regulations published in the
22 Official Gazette of the state Official Gazette. And if you will allow me
23 a comment, it can be concluded based on this, I can not claim with
24 certainty, that they did not have any Official Gazettes but the two and
25 they wanted all the Official Gazettes to be delivered to them, but this
1 was delivered by the publishing house, not the army or the government.
2 There was special delivery envisaged but the situation was what it was and
3 what happened happened.
4 Q. Thank you very much. Do you agree with me that in 1992 the most
5 important decree laws were passed and published, those that were relative
6 to the application of the international humanitarian law and those that
7 were relative to the service in the BiH army, the military discipline, the
8 district military courts, the district military prosecutor's office and so
9 on and so forth?
10 A. Yes. Up to the 23rd August 1992, we passed all the regulations
11 that regulated the normal life and work in the army of Bosnia-Herzegovina.
12 Q. Thank you very much. With this regard, let me ask you this: You
13 cannot provide us with a confirmation that any of these sets of
14 regulations that you testified about and that you have just mentioned ever
15 reach Srebrenica during that period of time. You never heard that this
16 had been done?
17 A. Not only to Srebrenica but to any unit of the BiH army. The only
18 compilation that I had was this one that I have before me.
19 Q. Thank you very much.
20 A. This is something that I printed, that I was authorised to do.
21 Q. Thank you very much.
22 MS. VIDOVIC: [Interpretation] Your Honour, I'm going to have a
23 very short group of questions, and maybe this is a good moment to take our
24 first break.
25 JUDGE AGIUS: All right. So we'll have a 25-minute break starting
1 from now. Thank you.
2 --- Recess taken at 10.25 a.m.
3 --- On resuming at 11.00 a.m.
4 JUDGE AGIUS: Yes, Ms. Vidovic.
5 MS. VIDOVIC: [Interpretation] I would kindly ask the usher to show
6 the witness a document immediately. This is P544, and this is the
7 regulations governing service in the BiH army signed by the Presidency of
8 the Republic of Bosnia and Herzegovina on the 1st of August, 1992 and
9 published in the Official Gazette of the army of Bosnia and Herzegovina,
10 issue number 2/92.
11 Q. Mr. Brkic, I would like to draw your attention to Article 29 of
12 the regulations. Yesterday the Prosecutor showed you some other
13 provisions but I would like to turn to another aspect of these
15 A. Are we talking about the accommodation of units?
16 Q. Yes. I'm going to quote one part of Article 29, which refers to
17 the accommodation and keeping order in the units. And I quote: "The
18 units and institutions of armed forces may be billeted in the barracks in
19 a camp, in a military airport, on a naval ship, and in other military
20 facilities of that sort. As the units are deployed, the most importance
21 has to be paid to providing for combat readiness and security of units and
22 institutions and the formation groups must not be broken."
23 With this regard, I would like to ask you the following: The rule
24 envisaged, didn't it, that units should be billeted in barracks, camps and
25 military facilities; isn't that correct?
1 A. Not in military institutions, but in barracks, camps, military
2 airports and so on and so forth.
3 Q. Thank you very much. This is how it was provided for combat
4 readiness of units as well as for the control of behaviour of the troops.
5 Am I right?
6 A. Yes.
7 Q. You will agree with me, won't you, that if this rule could not
8 have been honoured and the units were not billeted in barracks or camps
9 because there were no such things, and if troops stayed at home, the
10 possibility to control the troops was either minimum or non-existent?
11 Would you agree with me?
12 MS. SELLERS: Your Honour, I would ask at this point that that is
13 a question more of speculation, certainly not related to the regulations
14 that he has in front of him. Now we are asking for his opinion.
15 JUDGE AGIUS: Let us draw the conclusion, Ms. Vidovic. I don't
16 think it's fair on the witness to put that question to him. Yes,
17 objection sustained, in other words. Or you can rephrase the question.
18 MS. VIDOVIC: [Interpretation] Your Honour, I will rephrase the
20 Q. In order to control the troops, they would have to be accommodated
21 in barracks, camps, in keeping with this rule?
22 A. Yes.
23 Q. Thank you very much. When adopting these provisions, you
24 confirmed to the fact that members of the BiH army, in order to enjoy the
25 protection under the rules of war, had to be provided with appropriate
1 uniforms. Before that, Mr. Brkic, let me ask you this, in order to
2 clarify things. Yesterday you told us that it was indispensable to pass
3 laws and create a legal framework within which the units of the BiH army
4 could participate in an armed conflict and put up forces against the
5 aggression that came from both Serbia and Montenegro?
6 A. I never said that.
7 Q. I apologise. Is it true, then, that it was necessary to pass
8 certain laws and regulations and to create a legal framework in which the
9 units of the BiH army could operate and participate in an armed conflict?
10 A. Absolutely, yes.
11 Q. When these provisions were being passed, you accepted the fact
12 that members of the BiH army, in order to enjoy the protection under the
13 rules of war, had to be provided with appropriate uniforms?
14 A. According to the standards of the Geneva Conventions, those
15 parties which are party to the war did not have to have uniform to be
16 considered members in the war. Not all the members of the army had
17 uniforms. They had some markings and some insignia.
18 Q. Let me ask you this: They had to have recognisable insignia
19 showing that they belonged to the BiH army?
20 A. Yes. And conditions were prescribed for uniforms, markings,
21 ranks, insignia and other things that show that the person was attached to
22 the BiH army.
23 Q. Thank you very much. Without these insignia, the lily as the
24 symbols of the army, they could not have been recognised by the enemy as
25 members of the BiH army; would you agree with that?
1 A. As far as I know, at the beginning of the armed conflicts in
2 Bosnia-Herzegovina, members of the then Territorial Defence had IDs
3 measuring two by two centimetres in size with the coat of arm of
4 Bosnia-Herzegovina, which is a shield with a line and three or six lilies
5 on the coat of arms, and they would put that marking on the most prominent
6 part of their uniform, not uniform but clothes, either on their chest or
7 their arm or their cap, and this was a symbol that they belonged to a
8 certain state, the state of Bosnia-Herzegovina, and its Territorial
10 Q. And without those insignia, they could not be identified as
11 members of the army by the enemy?
12 A. Yes, it would be logical, but I said that the Geneva Conventions
13 standards prescribe what elements a certain party had to -- has to comply
14 with in order to be considered a party to the conflict. What you're
15 asking me is something that I can confirm, somebody cannot be recognised
16 without an insignia, and it makes sense.
17 Q. And that is the reason why you passed, amongst other things, the
18 rules of recognition and the insignia on uniforms?
19 A. Yes. The logistics service of the Territorial Defence or the
20 armed forces drafted a special regulation on uniforms and insignia and
21 other external markings of members of the armed forces of the Republic of
22 Bosnia and Herzegovina, and this was published in the Official Gazette.
23 Q. Fighters who did not wear the BiH army uniforms, who did not
24 openly carry weapons and who did not have recognisable insignia would not
25 necessarily enjoy protection under the rules of war if they became
1 prisoners of war?
2 A. This is a legal question which I cannot and won't answer.
3 Q. Thank you very much.
4 MS. VIDOVIC: [Interpretation] Your Honours, I don't have any
5 further questions for this witness.
6 JUDGE AGIUS: Madam Vidovic, I thank you.
7 Is there re-examination?
8 MS. SELLERS: Your Honour, there will just be a brief
9 re-examination, and I would ask if the Court would just allow me three
10 minutes, I need to check some information that --
11 JUDGE AGIUS: Do we need to stay in the courtroom or do you --
12 MS. SELLERS: Do you mind if we take a five- or ten-minute break?
13 JUDGE AGIUS: Yeah, this is what I am suggesting because we will
14 be -- in view of everyone in the meantime. I suggest we take a
15 five-minute break, and we will resume and finish and conclude soon after
16 all right?
17 We will be staying outside the courtroom. As soon as you're
18 ready, please let us know.
19 MS. SELLERS: Certainly.
20 --- Break taken at 11.12 a.m.
21 --- On resuming at 11.20 a.m.
22 JUDGE AGIUS: Ms. Sellers, re-examination?
23 MS. SELLERS: Yes, Your Honours. My re-examination will be fairly
25 Re-examined by Ms. Sellers:
1 Q. Mr. Brkic, I would ask that you be shown Prosecution Exhibit 271
2 again. We have discussed it. It's the ratification of certain treaties.
3 A. Yes.
4 Q. You were asked on cross-examination as to whether the 1907 Hague
5 Convention was included in this decree law that Bosnia-Herzegovina acceded
6 to in terms of ratification of treaties, and if I am correct you answered
7 no, it was not part of the treaties that were ratified or acceded to by
8 this decree law. Is that correct, Mr. Brkic?
9 A. To the extent that I've been able to go through the list quickly,
10 this list containing 30 different conventions, I simply didn't observe
11 this particular convention on the list, or as being included in the decree
12 law. It may be an erroneous conclusion. All I'm saying is that I don't
13 see it here.
14 Q. Well, Mr. Brkic, it's been brought out on cross-examination that
15 you have experience not only as a military attorney and certainly in
16 drafting many of the laws that we've reviewed, and also someone who
17 teaches humanitarian law; is that correct?
18 A. Yes.
19 Q. Are you familiar with the 1907 Hague Convention that regulates the
20 war of armed conflict?
21 A. In principle, yes.
22 Q. Could you tell the Trial Chamber, if possible, what its status is
23 under international law?
24 MR. JONES: That sounds like the sort of legal question which the
25 witness said he wouldn't answer and he's not here as an expert on those
1 matters. It's a matter for Your Honours, really.
2 JUDGE AGIUS: Yes, exactly. Objection sustained. If you want to
3 make a submission on the current status under international law of that
4 convention you're free to do, so but the witness is here not as a legal
5 expert, but I mean --
6 MS. SELLERS: Certainly, Your Honour, yes. Then I'll withdraw
7 that question and ask another question.
8 Q. Mr. Brkic, when Bosnia was ratifying various international
9 conventions on law of war, do you know whether it was necessary for Bosnia
10 to ratify the 1907 Hague Convention in order to be bound by it?
11 A. It was the beginning of the war in Bosnia and Herzegovina. It
12 would have been necessary for that convention to be ratified too by the
13 Presidency of Bosnia-Herzegovina. I explained that due to the fact that
14 there were no copies of these conventions to be had, and that was the
15 reason why most of the conventions were not adopted or ratified by the
16 Presidency of Bosnia-Herzegovina at that time.
17 Q. Would it be your testimony that after this decree law was
18 published in the gazette on the 15th November 1992, or before that, that
19 Bosnia as an independent country was not bound by the 1907 Hague
21 A. If we first ascertain that on the 6th of April 1992, or rather on
22 the 1st of March, Bosnia and Herzegovina acquired independence, that it
23 had not previously as an independent state ratified any of the
24 conventions, the answer that follows is no. However, as up until that
25 date, Bosnia and Herzegovina had been part of the former Yugoslavia, which
1 had been ratifying all the conventions successively from a wide range of
2 different areas, then it would have been quite logical to expect. It's
3 just that I can't confirm now whether the decree law on the adoption of
4 regulations and provisions from the former Yugoslavia, whether that indeed
5 comprised the conventions or not. But it only would have been to be
6 expected that this continuity issue should exist and that the transition
7 from the former Yugoslavia to all the new states that were created in the
8 area should be a logical one. As I said yesterday, the Criminal Code of
9 the former Socialist Federative Republic of Yugoslavia was adopted by
10 Bosnia-Herzegovina as its own. And Article 16 comprises virtually all of
11 the international crimes against the international -- against
12 international law which also includes most of the war crimes. And it
13 would follow that on the 2nd, 3rd or 5th of April whenever Official
14 Gazette number 2 was published, Bosnia-Herzegovina indirectly, perhaps at
15 a stretch, adopted these conventions as its own and what follows is that
16 these crimes against international law were, in fact, embodied in the
17 constitution of the Republic of Bosnia-Herzegovina.
18 JUDGE AGIUS: If I may interrupt you, Madam Sellers, please.
19 Was succession under international law specifically dealt with
20 when the new state of Bosnia and Herzegovina came into existence, or was
21 it left completely out to apply under the strict rule of international
23 THE WITNESS: [Interpretation] By your leave, Your Honour, for a
24 state to be internationally recognised, it must have its own unique legal
25 system and the armed forces to protect it. At the moment of its
1 recognition, Bosnia-Herzegovina had no legal system in place, nor did it
2 have any armed forces, nor had it been recognised by the United Nations.
3 In order to build a legal system of its own, in a way, since it was own a
4 republic with specific laws governing the republican provisions, at the
5 very outset Bosnia-Herzegovina adopted this decree law prescribing the
6 specific areas of life of the economy, of defence, of mining, if you like,
7 would be adopting the -- all the Yugoslav provisions as their own. From
8 that day, these provisions are considered provisions of
9 Bosnia-Herzegovina. Of course you couldn't give it the name of the
10 Criminal Code of Bosnia-Herzegovina because that sort of thing had already
11 existed and these provisions regulate the general area of law and also the
12 specific parts that were not regulated by the constitution of
13 Bosnia-Herzegovina. Likewise, the same law on the same day prescribed
14 which laws would not be applied as Bosnia-Herzegovina's. So that in a
15 certain way, by adopting the regulations in a formal and legal sense, by a
16 legislative body, a certain legal system was inaugurated. In parallel to
17 setting up of the staff of the Territorial Defence, in a bid to establish
18 an armed force they would protect this legal system, thereby bestowing on
19 Bosnia-Herzegovina the status of an internationally recognised state. Or
20 at least that is my understanding of the matter.
21 So the answer is, it wasn't an automatic thing. It was adopted at
22 the time, but there was a succession of other laws and regulations that
23 were adopted over time to be superseded by new domestic provisions at some
24 point in the future, as was the case with the provisions governing the
25 work of the armed forces.
1 JUDGE AGIUS: Yes, Ms. Sellers.
2 THE INTERPRETER: Microphone for counsel, please.
3 MS. SELLERS: Pardon me.
4 Q. Mr. Brkic, you also testified on redirect that in order to be a
5 recognised member of the army of Bosnia-Herzegovina, that one had to have
6 insignias on their clothes if they didn't have uniforms.
7 Now, in terms of insignias, would an insignia just have to be some
8 type of identifying element so that units could recognise each other and
9 be distinguished from the enemy?
10 MR. JONES: Well, it needs to be an open question or would it have
11 to be the official lily emblem, since that is what we were asking about.
12 MS. SELLERS: No, that does not have to be the question, Your
13 Honour, excuse me. I believe that's --
14 JUDGE AGIUS: Let him answer the question, Mr. Jones, please.
15 MS. SELLERS:
16 Q. Mr. Brkic, if you could answer --
17 JUDGE AGIUS: Perhaps you could repeat your question, Ms. Sellers,
18 or I can read it out for you.
19 MS. SELLERS:
20 Q. The question is in the transcript, Mr. Brkic, you testified on
21 redirect that in order to be a recognised member of the army of
22 Bosnia-Herzegovina, that one had to have insignia on their clothes if they
23 didn't have uniforms. Now, in terms of insignia, would an insignia have
24 to be some type of identifying element so the units could recognise each
25 other and be distinguished from the enemy?
1 A. What I said was that according to the standards envisaged by the
2 Geneva Conventions, for someone to be considered a warring party, they
3 must meet all these conditions to have an organisational structure, to be
4 led by a commander and to have insignia. These were cumulative conditions
5 that needed to be met in order to be considered a warring party and as
6 such, subject to international conventions. An absence of insignia might
7 be just a matter of a given point in time, what marks of distinction
8 certain people decided to use. But there needed to be an existing
9 provision in order to satisfy these cumulative criteria, to be considered
10 as a warring party. And that's why the presidency tasked someone to have
11 this provision written so that once an armed force was set up, all the
12 troops had the same uniform, the same system of ranks, and the same
13 insignia that would distinguish them as members of a certain army.
14 I can't say for sure but I know that at the outset, there were
15 6.000 plastic badges with the coat of arms that were produced in Sarajevo.
16 I'm not sure if they were delivered to other areas too, and I can't say
17 which insignia were worn by any other units. This is really not something
18 that in all honesty I can testify about.
19 Q. Thank you, Mr. Brkic. And then final question in this area,
20 Mr. Brkic. You've mentioned that there were certain criteria, five
21 criteria, in addition to insignia. Would you just tell the Trial
22 Chamber -- would you clarify your evidence there? What other criteria
23 would you look for to see if someone would come under -- I believe your
24 testimony was under the law of the Geneva Conventions?
25 A. Those who would have been considered a warring party and subject
1 to international conventions, this body should have an organisational
2 structure, it should be armed, it should be led by a commander, and it
3 should have marks of distinction or insignia, distinguishing features.
4 Q. Could distinguishing features be armbands or ribbons or different
5 colour top? Would that be distinguishing features?
6 A. Certainly. You needed to be able to draw a distinction based on
7 something. Now, whether this could be considered a legal feature and to
8 be included in the definition of those cumulative criteria, I'm not sure
9 about that, but you needed to be able to tell the warring parties apart.
10 At one point certainly there would be a great deal of confusion on the
11 ground, and insignia would cease to matter, and therefore a commander
12 would order for purposes of identification that his own units wear
13 insignia that were different from some of his other units and particularly
14 from the enemy, especially in cases where the enemy happened to be wearing
15 similar clothes or insignia. When I was a member of the infantry in the
16 JNA, we wore different kinds of insignia and we played out a conflict
18 Q. Thank you. I would now like to ask a couple of questions about an
19 area that was covered in redirect, and it concerned the former JNA
20 regulations and then the rules on service that you drafted or supervised.
21 You testified that originally in the JNA regulations there were about 694
22 articles, but in the new rules on service, the army of the Republic of
23 Bosnia-Herzegovina, they only had about 81 items. Now, among those 81
24 items, there are items that talk about respect for international law and
25 other issues. Now, the respect for international law, was that something
1 that is a new article that only came about with your drafting of the rules
2 on service, or is that an article that carried over from the JNA
4 A. I can answer -- I can't answer the latter part of the question for
5 the simple reason that I don't remember.
6 The former part of the question I can answer in this way. We
7 wanted to make the life of soldiers and military units completely
8 organised from the time they got up in the morning until the time they
9 went to sleep, including the guards' night shift or various peculiar
10 situations when someone was killed when there was a funeral to be
11 attended, that sort of thing. I assume - and that's as much as I can do
12 at this point in time - that the same principle was enshrined in the old
13 rules, in the old manual for the JNA, but that's just an assumption.
14 Q. And would that principle from your drafting of the new rules, that
15 principle that relates to international law and international military
16 law, was that important enough to carry over into the rules of service of
17 the army of the Republic of Bosnia-Herzegovina?
18 A. This was very important in my opinion for the simple reason that
19 within a 24-hour period, because that's how long a day lasts, you could
20 have a combat situation. In addition to sleeping, in addition to
21 training, there could be combat situation occurring, regardless of the
22 time of day. Any member of the armed forces when facing a combat
23 situation is responsible in a particular way to apply the order issued on
24 the 20th of June, or rather the 23rd of August, the order to apply the
25 international rules of war. We hereby wished also to have covered this
1 particular section of internal life, if you like, the internal life of a
3 Q. Thank you. Now on redirect, you were asked to remember the
4 statement that was taken by the Office of the Prosecutor, and in
5 particular, that section of the statement that spoke of the JNA
6 regulations on service and then the subsequent rules on service in the
7 army of the Republic of Bosnia-Herzegovina. I go back to that same part
8 of the statement because it appears in the statement, and I quote, that in
9 relationship to the rules and the service in the army of the Republic of
10 Bosnia-Herzegovina that you edited after consultation with Republic of
11 Bosnia-Herzegovina TO or Territorial Defence.
12 Now, you consulted with the Territorial Defence, and could you
13 tell the Trial Chamber in your consultation with the Territorial Defence,
14 did they approve of the inclusion of all of those 81 articles?
15 A. Yes.
16 Q. Now, could you just tell us at what time period, if you remember,
17 what month did you hold the consultation with Territorial Defence of
18 Republic of Bosnia-Herzegovina in regard to these rules on service?
19 A. I emphasised several times that all the drafts were made at the
20 same time, and this includes the rules governing the work of the armed
21 forces of Bosnia-Herzegovina. These provisions were then delivered to the
22 defence ministry and the justice ministry, and they all made certain
23 remarks. I can't give you a set date, but I can say that consultations
24 were done before the date that was set as the date of the adoption of the
25 relevant law. So if we are talking about the 1st of August, all
1 consultations plus the final draft must have been delivered to a
2 legislative body for approval as a law of the Republic of
3 Bosnia-Herzegovina just before. The consultations among the various
4 ministries, the defence ministry, the Main Staff of the TO, the justice
5 ministry, the ministry of health and all the other ministries each for
6 their own area, so these consultations might have taken between seven and
7 10 days at the very most.
8 Q. Would those consultations have taken place in the month of May
9 1992 or June 1992 or July 1992 or August 1992? If you could just clarify
10 a bit for the Trial Chamber.
11 A. All I can say is that it could have been August or July rather
12 than May, because it was back in May that we sort of started out drafting
13 these provisions and regulations. I don't believe that it was done at
14 that time.
15 The process of drafting these laws climaxed in a manner of
16 speaking in July, rather late June and early July. July was a critical
17 month to round the whole thing off, the whole legislation, as it related
18 to the armed forces. I can't say for sure -- I can't even give you a
19 ballpark figure when exactly all these provisions were adopted. I know it
20 was summer. It was a hot day. I brought the rules back to my clerk to
21 have them revised, for errors. It might have been late July or
22 mid-August. No, not even mid-August. It must have been late July. It
23 was still summertime.
24 MS. SELLERS: Your Honour, thank you. I have no further
1 JUDGE AGIUS: I thank you, Ms. Sellers. There are no questions
2 from the Bench, Professor Brkic, which means that we have come to the end
3 of your testimony. You are free to go. You will very soon be escorted
4 out of the courtroom by Madam Usher and you will receive, of course, all
5 the assistance you require by our staff to facilitate your return back
6 home at the earliest opportunity. On behalf of Judge Brydensholt and
7 Judge Eser, who couldn't be with us these two days, and of course on my
8 own behalf I wish to thank you for having accepted to come forward -- come
9 here and give evidence as a witness for the Prosecution, and on behalf of
10 everyone present here, I wish you a safe journey back home.
11 THE WITNESS: [Interpretation] Thank you very much, Your Honours.
12 Likewise, I wish to thank the Trial Chamber. I wish to thank both the OTP
13 and the Defence as well as the accused. I wish to thank you for giving me
14 this honour, 13 or 14 years later, to remember exactly what it was that I
15 did at the time. To remember the effort that I made to contribute to some
16 extent to establishing some sort of legal system and continuity in
17 Bosnia-Herzegovina the way it was at the time. So once again, thank you.
18 JUDGE AGIUS: Thank you.
19 [The witness withdrew]
20 JUDGE AGIUS: So we'll reconvene on Monday.
21 THE WITNESS: [Interpretation] Thank you very much.
22 JUDGE AGIUS: We will reconvene on Monday, all right? Next week
23 we'll issue a scheduling order indicating when you are expected to rest
24 your case. That will be the 1st of June, right? And allocating the 2nd
25 of June for submissions by the Defence and the 3rd of June by submissions
1 from the Prosecution for the purpose of the Rule 98 bis exercise which is
2 our responsibility.
3 I thank you. I will see you again on Monday.
4 --- Whereupon the hearing adjourned at 11.46 a.m.,
5 to be reconvened on Monday, 23 May 2005, at 9.00