Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12956

 1                           Tuesday, 20 July 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness takes the stand]

 5                           --- Upon commencing at 9.00 a.m.

 6             JUDGE MOLOTO:  Good morning to everybody in and around the

 7     courtroom.  Mr. Registrar, will you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in and around the courtroom.  This is case number IT-04-81-T,

10     the Prosecutor versus Momcilo Perisic.  Thank you.

11             JUDGE MOLOTO:  Thank you so much.  Could we have appearances for

12     the day, please.

13             MR. THOMAS:  Good morning, Your Honours.  Good morning to

14     everybody in and around the courtroom.  Inger de Ru, April Carter and

15     Barney Thomas for the Prosecution.

16             JUDGE MOLOTO:  Thank you so much, Mr. Thomas.

17             And for the Defence.

18             MR. GUY-SMITH:  Good morning to all.  Tina Drolec,

19     Oonagh O'Connor, Boris Zorko, and Gregor Guy-Smith appearing on behalf of

20     Mr. Perisic.

21             JUDGE MOLOTO:  Thank you very much.

22             Morning to you, Mr. Gojovic.  Just to remind you that you are

23     still bound by the declaration that you made at the beginning of your

24     testimony to tell the truth, the whole truth, and nothing else but the

25     truth.

Page 12957

 1                           WITNESS:  RADOMIR GOJOVIC [Resumed]

 2                           [Witness answered through interpreter]

 3             JUDGE MOLOTO:  Thank you so much.  Mr. Thomas.

 4             MR. THOMAS:  Thank you, Your Honours.  And thank you, sir, for

 5     the opportunity to adjourn early yesterday, that has resulted, I think in

 6     some time savings this morning.

 7             JUDGE MOLOTO:  Thank you, sir.

 8                           Cross-examination by Mr. Thomas:

 9        Q.   Good morning, General.  My name is Barney Thomas.  I am a member

10     of the Prosecution team.  I have the opportunity, sir, as you know, to

11     now ask you some questions about the testimony that you gave yesterday.

12     I ask you, General, please, to listen very carefully to my question, to

13     answer only my question, and if you have any -- if there's anything about

14     my questions that you don't understand or need clarification on, please

15     let me know and I will do that for you.  Do we understand each other,

16     sir?

17        A.   Yes, we do.  Thank you.

18        Q.   I'd like to begin, sir, just with a matter of clarification, just

19     to ensure that I understand your position on the obligations of a senior

20     officer and superior officer when that officer becomes aware of a

21     disciplinary offence or a criminal offence having occurred.

22             First of all, every such officer is duty-bound to act in the

23     following way or in one of the following ways:  First of all, if the

24     crime is committed on the territory of his unit, he must secure the area,

25     safe-guard the evidence, take measures to uncover the perpetrators, and

Page 12958

 1     to prevent them from absconding, and these are effectively the first

 2     steps that are required.  Am I correct in my description, sir?

 3        A.   Yes, you are.  That's the serious obligations of each officer

 4     with regard to members of his unit.

 5        Q.   Once that step has been taken, the officer is then duty-bound to

 6     inform the military prosecution or the military police for them to take

 7     further steps to apprehend the perpetrator, if that is necessary; is that

 8     right?

 9        A.   Yes, that's another of his obligations.

10        Q.   Once that step is taken, he is then duty-bound to report the

11     matter to the military courts; is that right?

12        A.   He reports or informs the military prosecutor, not the court, but

13     it is up to the prosecutor to liaise with the court.

14        Q.   At the point at which he has informed the military prosecutor,

15     effectively the obligations of the officer concerned cease, is that

16     right, or are satisfied is a better term?

17        A.   Once he has informed the military prosecutor or the military

18     police, his obligation with respect to this specific crime no longer

19     exists because these are not his priority tasks to remain seised with the

20     matter.

21        Q.   So any investigation from that point on for the purpose of

22     substantiating charges or for establishing whether or not there is a case

23     with which to proceed, is the responsibility of the military police or

24     the military prosecutor; is that right?

25        A.   Yes.

Page 12959

 1             MR. THOMAS:  Your Honours, can we please have P197 on the screen.

 2        Q.   General, insofar as the obligations relating to disciplinary

 3     offences are concerned, these covered by Articles 180 and 181 of the Law

 4     of the VJ?

 5             MR. THOMAS:  And if you need some assistance, sir, can we please

 6     have page 16 of the B/C/S on the screen and page 45 of the English on the

 7     screen.

 8             THE WITNESS: [Interpretation] In spite of having my glasses on, I

 9     can't read this on the screen.

10             MR. THOMAS:  Can we go to Article 180, please, Mr. Registrar, and

11     just enlarge that.  Thank you.

12        Q.   General, you see Article 180 --

13        A.   Yes, I can see it.

14        Q.   And in that article it describes how the procedure for

15     consideration for a disciplinary offence is initiated with a decision to

16     investigate issued by a senior officer holding the position of a regiment

17     commander equal or higher position.  You will also see, sir, that

18     following a completed investigation, the senior officer who initiated the

19     procedure has a number of options, including forwarding the case to the

20     competent officer who would file charges against the violator before the

21     military disciplinary court.

22             Now, the last line of that article, sir, describes how the

23     authority vested by paragraph 2 of that article is vested in every

24     superior officer of the officer who instigated the proceedings.  This

25     will seem an obvious question, sir, but obviously the Chief of the

Page 12960

 1     General Staff falls into that category, doesn't he?

 2        A.   This provision regulates the procedure for consideration of

 3     disciplinary offences by officers, not criminal offences.  Yesterday we

 4     described and said that the disciplinary offence is under the authority

 5     of the officer, but only if he, himself, assesses that this specific

 6     violation requires such a disciplinary sanction that under the law he is

 7     not entitled to impose, then an officer senior to him shall undertake

 8     that matter.

 9             So upwards from the regiment commander, you can't say that the

10     Chief of General Staff has any higher authority or wider authority to do

11     that.  It is pointless to do that if you can finalise the whole procedure

12     at the level of regiment.  So we are talking here about disciplinary

13     responsibility not criminal responsibility.

14        Q.   That is understood, General, but my question was that the term

15     "every superior officer" means that this could go up the chain of command

16     as high as the Chief of the General Staff, at least in theory, could it

17     not?

18        A.   The point and the purpose of this provision as you construe it is

19     formalistic.  The point of this provision is to give authority to each

20     officer and to specify them.  If this authority is given to a low-ranking

21     officer, then it goes without saying that any senior officer has the same

22     authority.  So instead of giving specific provisions for each specific

23     officer, they just lay down the foundations and that means that the

24     authority applies to all officers, but it does not mean he can exercise

25     this to each member.  If you have a 30.000 strong army, you cannot have

Page 12961

 1     the Chief of General Staff imposing disciplinary action on each and every

 2     member.  This is just giving authority to officers.  However, how this is

 3     going to be applied in practice, that depends on the general principle of

 4     subordination.

 5        Q.   Pause, General, and listen, please, to my questions carefully.  I

 6     didn't ask you about the point or the purpose of the provision.  We

 7     understand that.  My question is, that this provision applies equally to

 8     the Chief of the General Staff, doesn't it?

 9        A.   Yes, all his authorities and powers are precisely laid down here.

10        Q.   Article 181 authorises individuals to bring the perpetrator of a

11     disciplinary offence before a military disciplinary court, and we see in

12     paragraph 2 that in the case of the army, the authorised officers are the

13     army commander or a senior officer holding an equal or higher position.

14     And again, sir, my question is that this obviously includes the Chief of

15     the General Staff?

16        A.   I don't quite understand your question, but I can guess at the

17     point of your questions --

18        Q.   Just pause, General.  Just pause.  I don't want you guessing,

19     sir.  Does paragraph 2 of Article 181 include the Chief of the General

20     Staff?

21        A.   Yes, it contains some of his authorities as well.

22             MR. THOMAS:

23        Q.   I am sorry, Your Honours, I missed the beginning of the

24     translation to that answer.

25             JUDGE MOLOTO:  Madam interpreter, the counsel has missed the

Page 12962

 1     beginning of your interpretation.

 2             THE INTERPRETER:  This is what the witness said.  We interpreted

 3     everything he said.

 4             JUDGE MOLOTO:  Just repeat the interpretation, please,

 5     Madam Interpreter.

 6             THE INTERPRETER:  Yes, it contains some of his authorities as

 7     well.

 8             MR. THOMAS:  Thank you, Madam Interpreter.

 9             In the case of war crimes these are dealt with in other

10     regulations.

11             I would like to have, Your Honours, P2304 on the screen, please.

12             THE INTERPRETER:  Microphone, please, for the President.

13             JUDGE MOLOTO:  Sorry, you said P2304, didn't you?

14             MR. THOMAS:  Yes, sir.  Sorry, I see that there's a an error in

15     the transcript.  P2304.

16             JUDGE MOLOTO:  That's fine.

17             MR. THOMAS:  And, Mr. Registrar, could we please have page 14 in

18     the English and page 16 in B/C/S.

19        Q.   Now, General, you will recognise these provisions.  Can you

20     confirm for us this they came -- or that this version of these

21     regulations, at least, came into effect in 1988 and that they operated

22     throughout the war?

23        A.   Yes, these rules pursuant to the order of the president of the

24     Presidency of the SFRY have been incorporated as obligations in 1998 that

25     applied to members of the Yugoslav people's army.

Page 12963

 1        Q.   Just pause, sir.  You said that they came in in 1998.  My

 2     question was whether they came in in 1988, or your answer --

 3        A.   1988.

 4        Q.   Thank you, sir.

 5        A.   Yes, they were incorporated in 1988.

 6        Q.   Can you look at Article 20, please.  And This is the article that

 7     establishes liability for an individual who commits a violation of the

 8     Laws of War; is that right?

 9        A.   Yes, it says very accurately here that each individual is

10     personally responsible for violation of the Laws of War, whether it be a

11     military or civilian person in terms of either committing it himself or

12     being ordered to commit it by his superior.  This is also stipulated by

13     the Criminal Code.

14        Q.   General, you testified yesterday about the notion of command

15     responsibility and the FRY law, and I want to read out what you said

16     about that.

17             MR. THOMAS:  And, Your Honours, I'm reading from page 12901

18     beginning at line 15.

19        Q.   You said this, General:

20             "In the Criminal Code of the Social Federal Republic of

21     Yugoslavia, later on in the criminal judiciary system of the FRY, there

22     is no command responsibility provided as liability with respect to

23     committing a criminal offence, including offences against international

24     criminal law.  There is only -- there's not only direct intent, but a

25     qualified intent which means that there should be a clear intent to

Page 12964

 1     commit a certain crime.  So the only form of liability is direct intent

 2     with additional intention to commit a crime.  Other than that, there was

 3     no mention of the so-called command responsibility, which is based on

 4     objective responsibility."

 5             I'd like you to look at Article 21, please, General.  You will

 6     see that it is effectively in two parts.  The first part of the paragraph

 7     describes that:

 8             "An officer, without limiting that term, shall be personally

 9     liable for violations of the Laws of War if he knew or could have known

10     that units subordinate to him or other units or individuals were planning

11     the commission of such violations, and, at a time when it was still

12     possible to prevent their commission, failed to take measures to prevent

13     such violations.  That officer shall also be held personally liable who,

14     aware that violations of the Laws of War have been committed, fails to

15     institute disciplinary or criminal proceedings against the offender or if

16     the instituting of proceedings does not fall within his jurisdiction,

17     fails to report the violation to his superior officer."

18             This is command responsibility, is it not?

19        A.   Yes, this is what is contained in this provision, but it does not

20     exist in the Criminal Code.  I was talking about the Criminal Code that

21     applies in such specific cases, but this provision is very accurate and

22     it stipulates very concrete things and I have no objection to that.

23     However, yesterday I was talking about the Criminal Code that was in

24     force in Yugoslavia.

25        Q.   And hence my clarification, sir.  So you and I are agreed that in

Page 12965

 1     respect of war crimes, officers in the Yugoslav Army, that is all

 2     officers in the Yugoslav Army, were subject to command responsibility?

 3        A.   According to this provision if it is applied literally, yes, it

 4     encompasses that criteria.  However, these provisions were not included

 5     in the Criminal Code because the parliament made such a conclusion and

 6     hence the law was not adopted.

 7        Q.   I understand that it did not exist in the Criminal Code, but

 8     applied to officers in the VJ throughout the war, didn't it?

 9        A.   It should have been applied provided it was enshrined in the

10     Criminal Code.

11        Q.   The provision includes the Chief of the General Staff, does it

12     not, since it applies to every officer?

13        A.   It applies to every officer on condition that he is aware of

14     violations and crimes being committed and provided that he has the

15     capacity to undertake measures to prevent such occurrence, that requires

16     knowledge.  If he is not knowledgeable or if he is not aware of these

17     things, you cannot hold him responsible.

18             MR. THOMAS:  Article 36, which is on the next -- sorry, page 20

19     in the English and, I apologise, Mr. Registrar, I don't have a B/C/S

20     reference.

21             THE REGISTRAR:  It is page 21 for the record.

22             MR. THOMAS:  Thank you very much, Mr. Registrar.

23        Q.   Now, Article 36, General, details the mandatory obligations of a

24     Yugoslav officer who learns of the violations of the Laws of War, doesn't

25     it?

Page 12966

 1        A.   Yes, it does.

 2        Q.   And you see from the first paragraph that this requires the

 3     officer concerned, any officer, to order that the circumstances and facts

 4     surrounding the violation be investigated and the necessary evidence

 5     collected, doesn't it?

 6        A.   Yes, that's the regulation and that applies to each and every

 7     crime, so there is nothing exceptional about this, including war crimes.

 8        Q.   Thank you, General.

 9             MR. THOMAS:  Thank you, Your Honours.  We can take that document

10     off the screen, please, Mr. Registrar.

11        Q.   Now, in terms of the powers that are available to the Chief of

12     the General Staff, he is perfectly entitled, should he wish to do so, to

13     set up various investigative commissions to investigate whether crimes

14     have occurred, whether crimes had been reported, and so on, can't he?

15        A.   Each officer operates within the methodology of his work in a

16     certain way with regards to certain occurrence.

17        Q.   Just pause, General.  I'm not asking you about each officer.  The

18     Chief of the General Staff, should he wish to do so, can set up a

19     commission to investigate crimes or investigate the reporting of crimes,

20     can't he?

21        A.   The Chief of General Staff, and I was just about to explain this

22     and I would kindly ask you not to interrupt me, so the Chief of General

23     Staff can set up a commission and request it to submit a report to him

24     about an occurrence.  However, you mentioned investigation, the

25     investigation is carried out by the court.  The Chief of General Staff

Page 12967

 1     can only set up a commission to establish specific circumstances that he

 2     deems important to know about.  Everything else is within the

 3     jurisdiction of the court.  The court conducts an investigation, not the

 4     Chief of General Staff.  That would constitute his stepping over beyond

 5     his scope of responsibility.  As for commission, as I said, he can

 6     establish it to find out certain facts that would be conducive to him

 7     taking some of the further steps.  As I said, investigations carried out

 8     by the court, not by the Chief of the General Staff.  That's the essence

 9     of this.

10        Q.   General, thank you, I accept that distinction.  You testified in

11     the Ojdanic trial.  General Ojdanic was the successor to General Perisic

12     as Chief of the General Staff, wasn't he?

13        A.   Yes, he was.

14        Q.   And General Ojdanic established a commission, or at least sent

15     the head of his security administration to the 3rd Army and

16     Pristina Corps during the Kosovo war because he had heard that the 3rd

17     Army and Pristina Corps were not reporting up the chain instances of

18     killings and rapes that were occurring at the hands of those units or

19     units subordinated to that army, and so General Ojdanic sent his head of

20     security administration to establish the reasons for that non-reporting;

21     is that correct?

22        A.   As far as I am aware of the fact, this was not a commission.

23     That was within the purview of the security administration and

24     General Vasiljevic was deputy chief of security administration and he

25     could have been sent directly down there to explore why the subordinate

Page 12968

 1     organs, the ones subordinate to General Vasiljevic failed to send timely

 2     reports, provided such reports indeed never arrived.  And that happened

 3     within the chain of command and that falls within the jurisdiction of

 4     Aleksandar Vasiljevic in his capacity as the deputy chief of security

 5     administration.  Certain organs failed to send timely reports to him, and

 6     for that reason the Chief of General Staff, General Ojdanic, sent him

 7     down there personally to check out the system of how the security --

 8     administration operated and to restore order in that sense.

 9        Q.   And that was something that was perfectly within the authority of

10     General Ojdanic to do, wasn't it?

11        A.   Yes, it was.  He had the authority to do that, to ask that his

12     subordinates send him reports, and Vasiljevic was his subordinate.  He

13     was his second superior officer.

14        Q.   The Chief of the General Staff -- let me put a suggestion or a

15     situation to you, General.  Let's say that there is an incident between

16     two servicemen at the barracks and one serviceman kills another in a

17     dispute among VJ soldiers.  Even though this unit -- even though the

18     Chief of the General Staff is not the commanding officer of that

19     particular unit, he is perfectly entitled, upon hearing of such an

20     incident, or he is empowered would be a better word, upon hearing of such

21     an incident to set up a commission to investigate whether such an

22     incident occurred, isn't he?

23        A.   Once again I can't agree with the term you are using,

24     "investigation."  Investigation is a process conducted by the court.

25     Other organs of the Chief of the General Staff, yes, can establish a

Page 12969

 1     commission to determine the circumstances surrounding the event, but the

 2     commission of an act is determined by the prosecutor and the court and

 3     they can table reports to the Chief of Staff about that, and he can

 4     establish a commission to see what the circumstances were which led up to

 5     the crime with respect to prevention, not to conduct an investigation

 6     into the event which is considered to be a crime -- the event considered

 7     to be a crime.

 8        Q.   All right.  General, my mistake.  Let me rephrase my question.

 9     The Chief of the General Staff can order that a commission be established

10     to ascertain the circumstances of this particular killing, couldn't he?

11        A.   Yes.

12        Q.   He could set out specific tasks for the commission such as

13     determining the circumstances, establishing individual responsibility,

14     proposing measures to be taken against responsible individuals, and

15     proposing activities to be carry out in order to prevent similar

16     incidents occurring in the army in the future, couldn't he?

17        A.   Yes, he could do that.  That's perfectly fine.

18        Q.   He could order that the commission submits a written report to

19     him of its findings?

20        A.   Certainly reports are sent to the person who established the

21     commission in the first place without ordering anything specific to that

22     commission.

23        Q.   Well, he can direct the commission to provide the report direct

24     to him, couldn't he, if he wanted to?

25        A.   The commission submits the report to the person who established

Page 12970

 1     the commission and issued instructions in the first place, so, by the

 2     same score, to the Chief of the General Staff, if he established the

 3     commission and gave it tasks.

 4        Q.   Upon receiving the report depending on what the report might say,

 5     the Chief of the General Staff has the power to issue orders such as the

 6     taking of disciplinary measures against responsible individuals, such as

 7     the officers in command of that unit, and the perpetrator of the killing

 8     himself, couldn't he?

 9        A.   In that case, yes, he can.  As the superior officer, he can take

10     measures in respect of the senior officer of that unit or somebody who

11     omitted to do something but with respect to the perpetrator or the

12     perpetrators of the act themselves no, because that authority, with

13     respect to them, are minor.  So that comes under the court's purview.

14     For a killing, for example, you can't mete out a 20-day sentence of

15     detention, for example, or if you are dealing with a senior officer that

16     in a -- you can take a disciplinary measure and give him 20 days in

17     prison.  That's the maximum sentence that the military disciplinary court

18     can issue.  Whereas for the crime committed, the minimum sentence is ten

19     years and can be over that period.  So there must be a distinction made,

20     and you must determine which level of responsibility has to be invoked

21     when this perpetrator is concerned.

22             Now, as for omissions by other senior officers, omissions which

23     are violations of discipline, then the chief can take measures within the

24     frameworks of his remit and authority or issue orders to his superior

25     officer to take measures, but to mete out disciplinary measures for

Page 12971

 1     crimes, that would be highly inefficacious and would be taking advantage

 2     of a loop-hole in the law, if I can put it that way, and this is not

 3     commensurate to a situation of this kind.

 4        Q.   So in the case of the perpetrator responsible for the killing,

 5     General, the appropriate course and something which the Chief of the

 6     General Staff is empowered to do in this case is for him to refer the

 7     matter to the military prosecutor's office or the military court for them

 8     to conduct the criminal investigation; is that correct?

 9        A.   The investigation will be launched by the military prosecutor

10     within his purview.  It is his right, duty, and obligation to do so.

11        Q.   All right.  General --

12             MR. THOMAS:  I'm sorry, Your Honours, could we please have

13     document number P2413 on the screen.

14        Q.   Now, of course, General, the chief of the General Staff has the

15     power to set up a commission or an inquiry into circumstances into the

16     full range of offences, if he wishes to do so, doesn't he?

17        A.   I have to give you precise answers and use the terms used in law.

18     Somebody can't express wishes within the frameworks of his duty.  He just

19     moves within his purviews.  So when it comes to criminal prosecution and

20     the prosecution of perpetrators, that comes under the prosecutor and

21     court, not under individuals and not even the Chief of the General Staff.

22     All he can do is if military discipline has been violated and if it has

23     not moved into the sphere of crime, if it's a violation and not a crime.

24     If it is a crime, then there are the proper organs inform the prosecutor.

25     Now, if those organs are not functioning properly and just the

Page 12972

 1     General Staff is functioning properly, then he would have to inform the

 2     prosecutor, if the prosecutor remains unaware of the crime committed.

 3             JUDGE MOLOTO:  Slow down.  Will you please speak slowly,

 4     Mr. Witness.

 5             THE WITNESS: [Interpretation] Yes, thank you.

 6             MR. THOMAS:

 7        Q.   General, if the Chief of the General Staff has reason to know

 8     that disciplinary offences or crimes have been committed, he is

 9     authorised to set up a commission or otherwise inquire into the

10     circumstances no matter how serious or otherwise those offences or crimes

11     might be, doesn't he?

12        A.   We agreed a moment ago that he could do that, so that's not

13     contentious.

14        Q.   If you look at the document that is on the screen, sir, you will

15     see that it is an order issued by the Chief of the General Staff.

16             MR. THOMAS:  If we go to the bottom of the B/C/S and the bottom

17     of page 2, please in the English, Mr. Registrar.  Page 2 in the English?

18        Q.   You will see, General, that it is signed by General Perisic.

19             MR. THOMAS:  And if we go back to the first paragraph of the

20     document.

21        Q.   You will see, sir, that it is an order, from the first paragraph

22     we can see that:

23             "With the aim of establishing responsibility and solving status

24     and service for professional soldiers of the Yugoslav Army who served in

25     the 40th Personnel Centre."

Page 12973

 1             A number of orders or this order is issued.

 2             And if you look at the preamble to the order or the paragraph

 3     that exists under the word "Order," you will see that it says:

 4             "The assistant chiefs of the General Staff of the VJ will study

 5     official assessment, statements, and other material regarding all the

 6     officers of the 40th Personnel Centre that fall within their

 7     responsibility and based on that they will propose:"

 8             And then it is listed a number of measures.  And those measures

 9     are related to whether or not the individuals concerned are found to have

10     been involved in any violation of discipline or crime.  Do you see that?

11        A.   Yes, I do see that.

12        Q.   Before we leave this document, please just take a note of the

13     order number, which you see up at the top in the B/C/S.

14             MR. THOMAS:  And we will need to scroll up in the English.

15        Q.   We will see that it is order number 1022-4.  Do you see that?

16        A.   Yes.

17             MR. THOMAS:  Can we please go to document P2414.

18        Q.   Now, this, General, is a decision issued by the deputy Chief of

19     the General Staff of the VJ, and we see that -- you can see that on your

20     document.

21             MR. THOMAS:  We will need to go to page 2 in the English,

22     Mr. Registrar.  Thank you, Mr. Registrar.  Can we go back to page 1

23     again, please.

24        Q.   And you will see that this is a decision, General, to initiate a

25     disciplinary investigation against Mr. Babic.  And we see that in the

Page 12974

 1     paragraph immediately under the word "Decision."  Do you see that, sir?

 2        A.   Yes.

 3        Q.   If you go down to the paragraph below that you will see the

 4     grounds for suspicion where it is stated that being a commander of the

 5     18th Corps which was a unit of the SVK, in the period between 23 March

 6     1994 and 2 May 1995, he was involved in criminal activities of charging

 7     commission at check-points for the transport of goods in the territory of

 8     the Republic of Serbian Krajina by which he committed a violation of

 9     discipline.

10             Now, first of all, is the document correct when it says that

11     charging a commission in that way is a violation of discipline?

12        A.   This can be treated as a disciplinary violation, but this would

13     indicate that it was, in fact, a crime and should be dealt with in

14     criminal proceedings because, well, we can't see from this document how

15     much the commission was, what the actual sum of money was during that

16     period.  If it is a disciplinary violation, then there was a statute of

17     limitations on many of these.  So this document has a lot of legal

18     shortcomings.

19        Q.   Just dealing with the question of it being a disciplinary

20     offence, as oppose today a criminal offence.  I think we all understand

21     the distinction, General, but can a crime be both?  Can it be both a

22     disciplinary offence and a criminal offence?

23        A.   No, it can't.  Proceedings can be taken simultaneously for a

24     disciplinary offences and a criminal act in terms of liability, but

25     otherwise not, and when I said that there were legal inconsistencies and

Page 12975

 1     shortcomings, the Chief of the General Staff can't deal with military

 2     discipline which this person committed when he was in the Army of the

 3     Republika Srpska Krajina, as far as I can see here, and this

 4     lieutenant-colonel, so that violation can be dealt with by the superior

 5     officer in whose unit he was.  And possibly criminal proceedings can be

 6     taken and the military prosecutor can prosecute if there are elements

 7     here of a criminal act.  So that would have been the proper road to

 8     follow and not doing it this way.

 9        Q.   In order to make that decision, in other words, whether to deal

10     with the matter as a disciplinary offence or refer it to the military

11     prosecutor for a criminal investigation, isn't a superior officer

12     required to establish the circumstances of the offending so that that

13     decision can be made?

14        A.   Yes, he can gather information, check everything out, and collect

15     the evidence.  That's true.

16             MR. THOMAS:  Can we go to P2415, please.

17        Q.   And, General, while this is coming up on the screen, you

18     mentioned that this was a disciplinary or an inquiry into the

19     circumstances of what might be a disciplinary offence of someone serving

20     in the SVK.  If you look at -- we'll just wait for the English to come on

21     the screen, sir.

22             If you look at the document that now appears on the screen, you

23     will see that it is signed by the deputy chief of the VJ General Staff

24     for the land army.  It is in the form of information submitted to

25     Colonel Stankovic.  If you look at the very last paragraph of the

Page 12976

 1     document, you will see that it is a direction to Colonel Stankovic that

 2     he view a certain statement given by a third party, Colonel Peric, which

 3     contains a lot of information on the subject of the investigation

 4     Colonel Babic.

 5             The paragraph I'm interested is the first paragraph of the

 6     document where you will see that this investigation into the a member of

 7     the SVK -- sorry, this inquiry that is being conducted into a member of

 8     the SVK is being conducted on the basis of the order by the Chief of the

 9     General Staff of the Yugoslav Army confidential number 1022-4, which is

10     the order we looked at two documents ago; is that correct?

11        A.   Yes, but precisely this document confirms what I said, that the

12     previous document had a series of shortcomings.  There the chief of the

13     General Staff without sufficient information launched a disciplinary

14     inquiry, and when information was sought, it turns out that they are

15     contained in some statement by Peric, Slobodan, some information provided

16     by the security organ and Lieutenant Ljubosafljevic.

17             JUDGE MOLOTO:  Slow down, slow down.

18             MR. THOMAS:

19        Q.   General, don't these documents demonstrate that steps are being

20     taken to ascertain the circumstances, to get the information, and that is

21     being done on the order of the Chief of the General Staff?

22        A.   It is true into certain measures are being take and they should

23     be taken, but they should be taken gradually, step by step, and not

24     skipping over certain stages.  So prior to this all the information

25     needed to be checked out, documents provided, and then put all those

Page 12977

 1     document toss the Chief of the General Staff for him to be able to make

 2     the right legal decision, not to make his decision on some

 3     semi-information, and we see here that an investigation into what is to

 4     support the case is found in this document where it should have been done

 5     previously.  And finally, it is the senior officer, he says we have no

 6     information, that's what he says there's some statement by someone so now

 7     you have to look for this statement.  So without material evidence and

 8     without knowing the facts, firm facts, you can't undertake proceedings.

 9     That's what I'm saying.  I mean, you can, but the ultimate conclusion

10     must be legal and lawful.

11        Q.   Sir, if I understand your position, General, the information

12     gathering exercise that is being undertaken here is proper, but the early

13     classification of this as a disciplinary offence or a disciplinary

14     investigation is premature; is that -- do I understand your position?

15        A.   Yes, early classification is premature, not only premature, but

16     wrong.  What needed to be established was the elements of a crime,

17     whether elements of a crime existed, so disciplinary responsibility by

18     the Chief of the General Staff of the Army of Yugoslavia cannot deal with

19     matters against and officer committing a disciplinary offence in some

20     other army.

21        Q.   Okay.

22        A.   In the service of another army.  The Army of the Republika Srpska

23     Krajina in this case.  That's the crux of the matter.  They should have

24     moved to the prosecutor directly so that the whole matter could be dealt

25     with properly.

Page 12978

 1        Q.   All right.  Thank you, General, I think we understand.

 2             MR. THOMAS:  Can we remove that document from the screen, please,

 3     Your Honours.

 4        Q.   Just moving to a different matter, General.  What does it mean to

 5     secure the FRY state border?  This is a technical term we understand.

 6     What is the meaning of that term?

 7        A.   I didn't deal in matters of security for the state border, but in

 8     practice, both as a prosecutor and working in the courts, I did have

 9     instance to deal with violations of the border service committed by those

10     providing security at the borders.  The state border in previously was

11     secured by the Army of Yugoslavia with other countries, the SFRY and

12     afterwards the Army of Yugoslavia, and it entails a series of actions and

13     procedures which are geared towards securing the border.  That is to say,

14     that no unauthorised border crossings take place from one territory into

15     another and vice-versa.

16        Q.   In the context of legal proceedings, does the term "securing the

17     state border of the FRY" have any particular meaning, or is it limited to

18     what you have just described effectively?

19        A.   To secure the state borders is a complex process and incorporates

20     a series of actions and steps, and this term says it all.  Now, within

21     that term you have a series of steps to provide security.  You patrol the

22     borders, you have check-points at the borders, you have various ambushes,

23     observation posts, and so on, to secure -- to provide -- to secure the

24     borders, to see that the borders are maintained secure.

25        Q.   Were you aware, General, that during the war VJ units, and one

Page 12979

 1     example we've heard about is units of the VJ Special Forces, were sent on

 2     the orders of superior officers in the VJ to combat operations outside of

 3     the FRY, specifically into Bosnia and Herzegovina in the example that I

 4     have cited?  Were you aware of that occurring during the war?

 5        A.   I'm not aware of that because my duties during that period of

 6     time were -- I was the deputy military prosecutor and president of the

 7     court, so that didn't come within the purview of the courts, so

 8     information like that is not something that would have reached me.

 9        Q.   At least not in your official capacity?

10        A.   That's right, not in my official capacity.

11             MR. THOMAS:  Can we have document P363 on the screen, please.

12        Q.   Now, General, this is medical certificate dated June 1994 in

13     respect of a VJ serviceman, Milan Popovic.  And if you look at the second

14     paragraph under the word "Certificate" you will see that it refers to his

15     wounding or being wounded rather, on the 2nd of January, 1994, while

16     carrying out combat activities, in other words, securing the FRY state

17     border.  Do you see that, sir?

18        A.   Yes, I do.  This is not a medical certificate.  It is a

19     certificate issued by his unit in compliance with the law concerning the

20     circumstances of his wounding describing when and how it happened.  So

21     formerly speaking, this is a proper certificate, however, it's not a

22     medical certificate.  Every unit is obliged to issue such certificate

23     describing the circumstances under which a serviceman got wounded or

24     injured in the course of performing his duties and this is perfectly all

25     right.

Page 12980

 1        Q.   General, thank you, that's understood.

 2             MR. THOMAS:  For the next document, Your Honours, we'll need to

 3     move into private session.

 4             JUDGE MOLOTO:  May the Chamber please move into private session.

 5                           [Private session]

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 12981











11 Pages 12981-12982 redacted. Private session.















Page 12983

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12                           [Open session]

13             THE REGISTRAR:  We are back in open session, Your Honours.

14             JUDGE MOLOTO:  Thank you so much.  We'll take a break and come

15     back at quarter to 11.00.  Court adjourned.

16                           --- Recess taken at 10.12 a.m.

17                           --- On resuming at 10.47 a.m.

18             JUDGE MOLOTO:  Mr. Thomas.

19             MR. THOMAS:  Thank you, Your Honours.

20        Q.   General, we are nearly done.  Yesterday at the beginning of your

21     testimony, you were properly asked by my learned friend to let the

22     Trial Chamber know which trials you had previously testified in, and just

23     so the record is complete on that matter, in the Milosevic trial did you

24     testify for the Prosecution or for the Defence?

25        A.   For the Defence.

Page 12984

 1        Q.   And in the trial of Mr. Ojdanic et al, did you appear for the

 2     Prosecution or the Defence?

 3        A.   Defence.  In all cases so far I have always appeared on behalf of

 4     Defence.

 5             MR. THOMAS:  General thank you.  Your Honours, that concludes my

 6     cross-examination.

 7             JUDGE MOLOTO:  Thank you so much, Mr. Thomas.

 8             Mr. Zorko.

 9             MR. ZORKO: [Interpretation] Thank you, Your Honours.  I will just

10     need a couple of moments to organise myself.

11                           Re-examination by Mr. Zorko:

12        Q.   [Interpretation] Good morning, General.  My learned friend asked

13     you today on page 11, line 19, about the commission during the period

14     when General Dragoljub Ojdanic was General of Chief Staff

15     [as interpreted] that was tasked with confirming certain facts.  Also on

16     page 12, line 13, the 3rd Army and the Pristina Corps were mentioned.

17     General, the Pristina Corps was part of which entity when this commission

18     was working?

19        A.   It was part of the 3rd Army.

20        Q.   And the 3rd Army was a constituent part of what?

21        A.   Of the Yugoslav Army.

22        Q.   Thank you, General.  When was the state of war introduced in the

23     Federal Republic of Yugoslavia?

24        A.   It was done on the 23rd or 24th of February - I am not quite

25     sure - 1999.  Sorry, 23rd or 24th of March, 1999.

Page 12985

 1        Q.   Speaking about the commission asked of you by my learned friend,

 2     was the remit of this commission limited, and if so, can you tell us what

 3     restrictions applied to it with regard to territory?  Can you tell us

 4     something more about it?

 5        A.   I apologise, there must be some misunderstanding.  As I

 6     understood the Prosecutor's questions when he discussed the commission,

 7     he talked about the departure of General Vasiljevic to the Pristina Corps

 8     with the view to checking certain information.  I stated that this was

 9     not commission work, that he went there within the scope of his

10     responsibilities.

11        Q.   I am sorry, General, if I was inaccurate.  Speaking about the

12     measures, these measures had to do with the events that took place in

13     Kosovo and Metohija, am I right?

14        A.   Yes, particularly relating to that area and that period.

15        Q.   General, can you please give us clarification, on page 14,

16     line 11, you said that it was up to commission to establish some kind of

17     responsibility.  Can you please explain whether that had to do with

18     gathering information or whether it had to do with establishing

19     responsibility and subsequent measures that were taken?

20        A.   Whenever something happens in which army calls extraordinary or

21     unexpected events, most often if it relates to serious injures of

22     servicemen or their death or some other technical disaster, a unit

23     commander may set up a commission in addition to the fact that

24     investigating judge and prosecutor do their part of work, in order to

25     establish the circumstances surrounding this event, meaning broader

Page 12986

 1     circumstances that led to it, whether anything was omitted to be done

 2     beforehand and whether anyone was responsible within the chain of command

 3     and whether a particular officer was responsible.  That was the remit of

 4     the commission and after it completes its work, it will submit a report

 5     to the officer that sets up the commission and it is up to this officer

 6     whether he was going to undertake certain measures.  So this had a more

 7     preventative function and it had do with the responsibility of someone

 8     who is not to be criminally responsible because it didn't exist as such.

 9        Q.   Since my learned friend asked you about the commission, I would

10     like to ask you about the mandate of the commission relating to

11     prosecution and military judiciary.  Could they have any influence at all

12     on military judicial or disciplinary organs, and what was the

13     relationship between them?

14        A.   The commission set up by an officer cannot and does not have any

15     influence on the work of the military investigative organs, and in that

16     respect they are completely separate.  Their procedures are completely

17     separate.  There is no interaction.  However, this commission is entitled

18     to use the information gathered by the military investigative organs.

19     That can happen.

20        Q.   Thank you, General.

21             MR. ZORKO: [Interpretation] Can we please now have in e-court

22     Prosecution Exhibit P2413.

23        Q.   General, you have been shown this document by my learned friend.

24     I'm going to ask you to look at the date of this document.  Can you see

25     when this document was issued?

Page 12987

 1        A.   One can see that it was issued on the 9th of November, 1995.

 2        Q.   General, do you know when the Republic of Serbian Krajina fell?

 3     I'm talking about the time-line.

 4        A.   As far as I can remember, it happened sometime in July 1995.  I

 5     am not sure but I think that is the case.

 6        Q.   Thank you, General.

 7             MR. ZORKO: [Interpretation] I have no further questions.  Thank

 8     you, Your Honours.

 9             JUDGE MOLOTO:  Thank you, Mr. Zorko.

10                           Questioned by the Court:

11             JUDGE PICARD: [Interpretation] Mr. Gojovic, I would like to ask

12     you one or maybe two questions.  While you were involved in military

13     Tribunals in Belgrade, were there any trials or were there any procedures

14     for war crimes that were -- that took place?

15        A.   While I was the president of the military court in Belgrade, no

16     criminal proceedings were conducted for war crimes.  But before that, a

17     number of such proceedings had been conducted regarding the areas that

18     happened in the former SFRY because they were initiated while this was

19     still the SFRY and they particularly referred to the territory of

20     Slavonia.  Some of these proceedings have been finalised though.  I

21     became judge in January 1994 and all these proceedings took place before

22     my time.

23             JUDGE PICARD: [Interpretation] And those procedures were

24     conducted against whom, can you tell us?

25        A.   As far as I can remember, they were conducted against two JNA

Page 12988

 1     officers, and a number of members of the Croatian Armed Forces.

 2             JUDGE PICARD: [Interpretation] And then there were no other

 3     procedures that were conducted for crimes that would have been committed

 4     during the war in Bosnia, for instance?

 5        A.   During the war in Bosnia-Herzegovina, no, because the war was

 6     outside the territory of the Federal Republic of Yugoslavia so there was

 7     no possibility of any military prosecutor or prosecutor, in general, in

 8     the Federal Republic of Yugoslavia prosecuting and trying people in that

 9     area for those cases.

10             JUDGE PICARD: [Interpretation] Can you please remind me when did

11     the FRY recognise Bosnia and Herzegovina as a state?

12        A.   I don't know exactly when it was recognised.  I think it was

13     considerably later after the Dayton Accords, in fact.  But it did not

14     recognise it when the United Nations recognised it.  On the 6th of April

15     Bosnia-Herzegovina was recognised, 1992 that is, at the time when the

16     authorities in Bosnia-Herzegovina did not have effective power over even

17     15 per cent of their territory.

18             JUDGE PICARD: [Interpretation] So this means that throughout the

19     war in Bosnia, for instance, Bosnia was still part and parcel of

20     Yugoslavia in the FRY's view, it remained one in the same territory or

21     not?  Legally speaking.

22        A.   No, it was not the same territory.  With the proclamation of the

23     Federal Republic of Yugoslavia as an independent and autonomous state and

24     the passing of the constitution and that was on the 19th of April, 1992,

25     from that time on, Bosnia-Herzegovina was not a component part of the

Page 12989

 1     Federal Republic of Yugoslavia, but an entity, it was an entity which was

 2     not registered by the Federal Republic of Yugoslavia but which was

 3     recognised by the international community and it became a member of the

 4     United Nations on the 6th of April, 1992.  And Bosnia-Herzegovina was

 5     considered, therefore, a sovereign state regardless of the fact that the

 6     Muslim authorities controlled only 15 per cent of the territory.  That's

 7     another matter.  That's another question.  It's for theoretical

 8     consideration within international law rather than criminal law.

 9             JUDGE PICARD: [Interpretation] So in other words in terms of the

10     military jurisdiction of Belgrade, it may have been -- have jurisdiction

11     with regard to crimes that had been committed before April 1992, it was

12     still one in the same territory?

13        A.    During the existence of the Socialist Federal Republic of

14     Yugoslavia.

15             JUDGE PICARD: [Interpretation] I see.  Thank you.

16             JUDGE MOLOTO:  Mr. Zorko, do you have any questions arising from

17     the questions by the Judge?

18             MR. ZORKO: [Interpretation] No, Your Honour, thank you.

19             JUDGE MOLOTO:  Mr. Thomas.

20             MR. THOMAS:  No, Your Honours, thank you.

21             JUDGE MOLOTO:  Thank you so much.  Mr. Gojovic, thank you so

22     much.  This brings us to the end of your testimony before the Tribunal.

23     The Chamber wants to thank you for taking the time to come and testify,

24     you are now excused, you may stand down.  Please travel well back home.

25             THE WITNESS: [Interpretation] Thank you.

Page 12990

 1                           [The witness withdrew]

 2             JUDGE MOLOTO:  Just one little -- yes, Mr. Guy-Smith?  No, go

 3     ahead.

 4             MR. GUY-SMITH:  I was going to tell you what the status of

 5     proceedings were in terms of the Defence having any more witnesses for

 6     this week, but I think the Chamber already knows, but I'm happy to sit

 7     down because you obviously had some matter the to deal with.  We've

 8     concluded with all the witnesses for this week, but I didn't know whether

 9     or not there was something you wish today attend to prior to that.

10             JUDGE MOLOTO:  I was just going to attend to some housekeeping

11     matters.  I did hear Mr. Thomas yesterday saying that this was the last

12     witness for the week, and I think on the list that I had that was so too.

13             MR. GUY-SMITH:  That's correct.

14             JUDGE MOLOTO:  And you confirm.

15             MR. GUY-SMITH:  I do.

16             JUDGE MOLOTO:  Thank you so much.  Just one little administrative

17     point, housekeeping.  The Registry has brought the attention of the

18     Trial Chamber that it has placed Exhibit P33 and --

19                           [Trial Chamber and Registrar confer]

20             JUDGE MOLOTO:  You are very right.  May the Chamber please move

21     into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 12991

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

22             THE REGISTRAR:  We are back in open session, Your Honours.

23             JUDGE MOLOTO:  Thank you very much.  Before we then adjourn, may

24     I just say to everybody, thank you so much for what we have done for this

25     first half of the year.  I hope everybody will make -- have a good rest

Page 12992

 1     during the recess and come back well refreshed to do hard work when we

 2     come back.  Court stands adjourned to 23rd of August, 2010, at 9.00 in

 3     Courtroom III.  Court adjourned.

 4                           --- Whereupon the hearing adjourned at 11.09 a.m.

 5                           to be reconvened on Monday, the 23rd day of August,

 6                           2010, at 9.00 a.m.