1 Monday, 19 June 2006

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 12.32 p.m.

6 JUDGE PARKER: Good morning, or good afternoon, even. I wonder,

7 Mr. Theunens, if you would be so good as to take the affirmation card and

8 read the affirmation aloud.

9 THE WITNESS: I solemnly declare that I will speak the truth, the

10 whole truth, and nothing but the truth.

11 JUDGE PARKER: Thank you. Please sit down.

12 Mr. Moore.

13 MR. MOORE: Your Honour, I'm not taking this witness. I want to

14 deal with two preliminary matters if I may, and perhaps it's best if I

15 dealt with them now, but Mr. Theunens was already in the building.

16 Your Honour, the first deals with the expert report of General

17 Pringle. As Your Honour knows, there is reference in that report to -- I

18 think it's four witnesses, I give an example of Panic, Tesic, and two

19 others. There are footnotes with his name, there are conclusions in the

20 body of the report itself. Can I just say and repeat that which I have

21 already said, is that we do not seek to rely upon those witnesses for the

22 substance of the report. It really comes down to the case of the

23 redaction of those areas, and perhaps seeking the Court's guidance in

24 relation to it, because I don't want to come on Thursday and then find

25 it's not agreed by all parties.

1 What I was hoping to do was to, with a red pen, underline the

2 passages that we do not seek to rely upon. Those are passages that are

3 generated by the footnote of Panic or Tesic et al, and clearly by having

4 them delineated in that way it's perfectly clear that we do not seek to

5 rely upon them. We can redact them totally by blacking them out. I would

6 submit that perhaps that might not be the best way and the reason is as

7 follows: If I underline which indicates that I do not seek to rely upon

8 it and the Court should not rely upon it, if however if Panic or Tesic

9 gave evidence, and I was to cross-examine them, it would be, I suspect, my

10 intention, in part at least, to try and cross-examine in part of the

11 statement to which the expert had already referred to. Now, if for

12 example Tesic or Panic accepted that, then the red line will be removed

13 and it goes in as part of a conclusion process, and if it is not accepted,

14 or Panic and Tesic do not give evidence, then they can be completely

15 redacted.

16 Now, I know my learned friends are worried that something may go

17 before the Trial Chamber this week that would be considered to be

18 prejudicial for them and that a red line is not sufficient, that the Court

19 would not be able to clear its mind from this prejudicial material. I for

20 my part submit that by putting a red line under that passage, the Court

21 would be in a position to know that we do not seek to rely upon it,

22 firstly in establishing a prima facie case, and secondly, if it becomes

23 necessary, if those witnesses do not give evidence, it will be redacted in

24 any event. It's a question of practice and I would seek the Court's

25 guidance in relation to that.

1 JUDGE PARKER: Anyone from the Defence wish to be heard.

2 Mr. Lukic.

3 MR. LUKIC: [Interpretation] It's just because I see all of my

4 colleagues seated, perhaps I should be the first to go. We haven't really

5 discussed this, and I can't say that this is a joint position.

6 First of all, good afternoon to you, Your Honours, good afternoon

7 to all. I would like to inform the Chamber that Ivan -- Mr. Petar -- our

8 security expert Mr. Petar Vugel [phoen] is joining the Veselin

9 Sljivancanin Defence team today.

10 I oppose this motion of Mr. Moore. It's not a matter of the

11 Defence fearing that something might reach the Chamber that was said by a

12 witness that is not favourable for any of the Defence teams. I think it's

13 a matter of principle. This is something that you said at the beginning

14 when you set the rules Your Honours. It's about interpreting the

15 statement of someone, or an allegation made by someone who is not a

16 witness in this trial. If any such persons should eventually appear as

17 witnesses and Mr. Moore decides to confront them with their own statements

18 in cross-examination, then one thing he can do in his final argument is to

19 analyse and compare these witnesses' allegations with, for example, Mr.

20 Pringle's position. By doing this, however, allegation I think we would

21 be jumping the gun. The Chamber would have the statements and allegations

22 available at this early stage. I don't think the Chamber would have a

23 useful way of actually looking at these statements, but I think the

24 approach by the OTP is definitely not in keeping with any of rules that we

25 have agreed on.

1 That is the first thing. And secondly, it's much too premature to

2 say this, since we don't know whether these witnesses will be appearing or

3 not. If these witnesses appear and now Mr. Pringle is invoking some of

4 these allegations, so if these allegations are admitted into evidence, in

5 some way it is only then and not before that Mr. Moore can start using and

6 analysing these.

7 I think this is merely a way for the OTP to tender certain

8 statements made by certain witnesses through the back door, as it were. I

9 think the first day when Mr. Moore moved for this it was our belief that

10 certain corrections would be made to Mr. Pringle's expert report, and that

11 other facts would be sought to corroborate the allegations already made.

12 And Mr. Moore definitely said he would be informing us in the course of

13 this week whether any changes had been made to that effect.

14 JUDGE PARKER: Thank you.

15 Mr. Vasic.

16 MR. VASIC: [Interpretation] Thank you, Your Honours. First of

17 all, good afternoon to everyone. I wish to inform you that our expert,

18 Mr. Mile Stojkovic is joining our Defence team today.

19 I fully support my learned friend, Mr. Lukic. There is just one

20 thing that would I like to add, Your Honours. In a situation where my

21 learned friend, Mr. Moore, promised to remove those parts of evidence in

22 relation to expert reports in relation to witnesses who have not appeared

23 before this Chamber, the Defence believes there will be no need to

24 cross-examine the expert on those topics. Should we be facing a situation

25 where my colleague Mr. Moore decided to additionally tender evidence that

1 the witness was not cross-examined on, I think that would be a procedural

2 exception to this case.

3 As for everything else, I am fully in agreement with Mr. Lukic.

4 If Mr. Moore wishes to underline a finding, he might as well want to do it

5 in black. Thank you very much.

6 JUDGE PARKER: Thank you.

7 Mr. Borovic.

8 MR. BOROVIC: [Interpretation] Good afternoon, Your Honours. We

9 have with us today Mr. Bozidar Forcan, our expert witness.

10 JUDGE PARKER: Thank you. The Chamber welcomes the three Defence

11 expert witnesses.

12 In respect of the motion, Mr. Moore, it should not be overlooked

13 that when this matter was debated earlier, the Chamber indicated what is

14 the normal position with an expert report. Which is that the report

15 itself is a document, which should be before the Chamber. If, in that

16 report, reliance is based upon certain factual and other material which is

17 not agreed and which is not proved, then that part of the report loses its

18 value, loses its persuasive strength. That being the view of the Chamber,

19 a red underlining is both a wise precaution and an adequate measure to

20 identify those parts of the report of Mr. Theunens which would, on the --

21 Pringle on the anticipation of the Prosecution is not going to be proved

22 by other evidence led by the Prosecution. The Trial Chamber is entirely

23 capable of putting out of its mind the three -- the underlined red parts.

24 We've had to put out of our mind already quite a substantial body, the red

25 lining cautions us and will constantly remind us as we turn to the report,

1 which parts have not been established by evidence.

2 That course will not require that the Defence cross-examine on the

3 red underlined parts. Should it later occur that any of those red

4 underlined parts comes to be established, then an issue of whether there

5 is need to recall to cross-examine will arise. But we don't need to spend

6 time cross-examining against the possibility that something unknown in the

7 future may occur.

8 Now, is that clear enough, Mr. Moore?

9 MR. MOORE: Yes. Thank you very much for that guidance. There

10 are two other matters. The first -- I am aware of time constraints, but

11 it does assist.

12 The second relates to what I call bar-table exhibits. It is the

13 Prosecution's intention to adduce from the bar table, in part, and I give

14 one example. The indictment that, whilst used for the trial in Belgrade

15 for the individuals who were charged with the killing at Ovcara, we would

16 seek to put that in. And secondly, the findings of guilt in relation to

17 the individuals concerned. Not the sentence in any way at all. We would

18 submit that that is highly relevant evidence, and I do not know if my

19 learned friends have any position in respect of that. I would hope not.

20 It is a judicial finding as a consequence of the trial. I only require

21 names and whether in actual fact there are findings in relation to the

22 individuals concerned. In the indictment the Court will of course

23 remember certain aspects of the particulars themselves, namely, and I use

24 the English terminology here, if I may, the co-conspirators Vujanovic and

25 Vujic, who were in charge of the Leva Supoderica, Petrova Gora et al., and

1 therefore they were on trial at Belgrade, they were found guilty in

2 relation to the killings at that time, and we would seek to establish that

3 evidence under, I think it's under 89(C) as being relevant evidence.

4 JUDGE PARKER: This Court -- this Chamber has constantly

5 received, as it's been tendered, evidence of judicial proceedings by the

6 written record, so that that would appear to be the course to be followed

7 here.

8 Mr. Borovic.

9 MR. MOORE: We have the written record.

10 JUDGE PARKER: Yes.

11 MR. BOROVIC: [Interpretation] Your Honours, I think I might be a

12 little late. But please allow me to give you a joint position of all our

13 Defence teams. If my learned friend wishes to tender into evidence a

14 sentence that has not yet taken effect, I don't think that would be a

15 justified move. In that sentence there might be elements aggravating the

16 position of the accused here. But unless the Chamber has everything that

17 is in that sentence, and if everything that is in that sentence is based

18 on defence by remaining silent, which some of the accused did, and as

19 accused they even had the right to lie - they tried to shift the blame to

20 the JNA - then this is a state of facts I find we can hardly discuss here.

21 Especially since this is not a final ruling by the court, not a final

22 sentence. There is no one we can consult in relation to this document or

23 to this sentence that is simply not final.

24 Regardless of everything they have been showing witnesses here we

25 could have had someone who check about this document with, but things

1 being what they are, I don't think that a sentence that is not final

2 should be used in these proceedings. That would be highly prejudicial to

3 the accused in this trial. Thank you.

4 JUDGE PARKER: Mr. Borovic, may I ask, in what sense do you say

5 the sentence is not final? What do you mean by that?

6 MR. BOROVIC: [Interpretation] Your Honours, under the Law on

7 Criminal Procedure the accused have lodged an appeal. The Supreme Court

8 of Serbia might, for example, overturn that statement. We could tender

9 that into evidence here, but there is no evidence because the sentence is

10 just not there, it is not final, it has not yet been ratified or confirmed

11 by is a higher-level court, by the Supreme Court of Serbia. The destiny

12 of this ruling of this sentence is still unknown, in other words. Thank

13 you.

14 MR. MOORE: Your Honour, could I just indicate, I do not wish to

15 put the sentence in, and I did say that.

16 JUDGE PARKER: I think you're reading "sentence" in an English

17 sense, rather than the sense intended by Mr. Borovic, which I think is the

18 judgement.

19 Mr. Lukic.

20 MR. LUKIC: [Interpretation] We're all mindful of the time,

21 Your Honours. According to our Law on Criminal Procedure, an appeal

22 starts when a written motion is submitted. According to what I know right

23 now, the judgement was drafted these very days and the appeals have not

24 yet been submitted. It's still within the dead-line, as it were. This is

25 the status of the Belgrade trial as we speak. A draft of the first

1 instance judgement has been produced right now.

2 [Trial Chamber confers]

3 JUDGE PARKER: In the view of the Chamber the written record of

4 the court is admissable. What weight can attach to it is affected by the

5 fact that there may be an appeal. By the time we come to consider it, it

6 will be clear whether there is an appeal, and it may be that the appeal

7 has been disposed of, it may be that it is still pending. And we will

8 then have to accord weight to it according to those circumstances.

9 So it will be received, Mr. Moore, but it's in a somewhat

10 contingent state.

11 MR. MOORE: And Your Honour, there is a third point. And we did

12 mention it on Thursday. Ms. Regue would like to seek the Court's

13 indulgence to argue the points on the agreed facts. We have come a long

14 way in time, but there are certain agreed facts that really we must get to

15 grips with if we are to conclude this case. And perhaps that matter can

16 be clarified and then the matter is finished. And we would seek judicial

17 assistance in relation to it.

18 JUDGE PARKER: Ms. Regue.

19 MS. REGUE: Good afternoon, Your Honours. I would like to deal

20 briefly with two issues regarding two agreed facts, I will be very brief

21 to we can start with the next witness. First I would like to address my

22 learned friend's submission last week regarding this matter, because they

23 presented to the Trial Chamber an account of facts which actually doesn't

24 correspond with what we have been experiencing for the last two months.

25 My learned friends were putting to the Trial Chamber why nothing

1 have been filed actually, and the answer is very simple, is because we

2 didn't receive a response from their side, a complete response regarding

3 your clarifications until last week. By mid-April the Trial

4 Chamber requested clarification concerning eight facts. We submitted to

5 the Defence a memorandum, the 27th of April. We also -- we supported our

6 positions with evidence. They respond to us the 10th of May. They agreed

7 to some of these facts and they disagree with other. But they didn't

8 provide with any -- they provide with some alternative dates, but they

9 didn't provide with any supporting evidence that we could rely upon. They

10 literally ended their e-mail with "we do accept suggested versions," and

11 we took that as it sounds. And we submitted to them two more proposals,

12 one by mid-May and another one like 10 days ago.

13 We were informed they were quite busy and it was very difficult

14 for them to get together and to get a common position. We understand that

15 there is quite a lot of work to do, but this cannot be used now against

16 the Prosecution why we have not filed any motion. There was a common

17 understanding that we will file something once the eight facts will be

18 clarified in a positive or in a negative way. And then we will file an

19 addendum or we will file an amended version to the original motion.

20 Also, this next point, the Defence also put it to the Trial

21 Chamber that the -- out of these eight facts in the original mail of the

22 10th of May, we agreed to some of these facts. And now we are trying to

23 modify two of these facts. This statement is not accurate. Just -- I

24 don't want to go into the tales, to details, but just to give you an

25 example we just trying to correct a grammatical point, and we informed my

1 learned friends informally about that by mid-May and they didn't seem to

2 have any problem but they put that the Trial Chamber last week. And when

3 we were not aware of that submission, we actually informed to them that we

4 didn't have any problem to go back to the other word, because it was a

5 simple word that we changed.

6 Just to cut this story short, Your Honours, it is the

7 Prosecution's submission that we have been trying since the very beginning

8 to provide to our learned friends with one -- with versions with

9 actually -- with a proposition which could be agreeable by both parties,

10 but it still could leave some of the conflicted points to be proved in

11 trial. And also we could provide also to the Trial Chamber some sort of

12 understanding. It was -- a good example was the one that Mr. Moore

13 actually gave last week. We have also been providing some evidence that

14 our learned friends could rely upon and that has been not the case from

15 the Defence.

16 And also we actually have been encounter quite difficulties

17 because we have received of their response on the 10th of May and

18 the second time that they have been given us some sort of feedback has

19 been actually last week. And, well, Your Honours, the best solution that

20 at this point we can provide to you is to file an addendum with the facts

21 that we have agreed, and then to leave the not agreed points to be proved

22 in court by the expert witness. And that's the first issue that I would

23 like to deal in respect to the submission that my learned friends made

24 last week.

25 JUDGE PARKER: So there are a number of matters that have been

1 agreed and you are in a position to file now a memorandum of those.

2 MS. REGUE: But we will --

3 JUDGE PARKER: There are some matters that the not yet agreed and

4 you propose, therefore, to deal with those in the course of the expert

5 evidence this week.

6 MS. REGUE: Mm-hmm. Yes, Your Honour.

7 JUDGE PARKER: Very well. Now, when can we have the written

8 record of the agreed facts?

9 MS. REGUE: Well, we provide -- we will provide actually the draft

10 to the -- to our learned friends this afternoon, if a sign or two can be

11 reached this afternoon or early morning tomorrow.

12 JUDGE PARKER: Well, the sooner the better, because the evidence

13 will be proceeding this week.

14 MS. REGUE: And the second point that actually I would like to

15 deal, is fact 26, which actually is one fact which is not within the facts

16 that Your Honours were asking clarification. Actually, this fact deals

17 with the blockade of the barracks in the [indiscernible] operation. This

18 will – as it reads, these facts -- this fact is in the course of the

19 spring and summer of 1991 blockades of JNA barracks by Croatian forces

20 began in the territory of Croatia. That fact was actually included in the

21 motion of the 16th of March of this year. Upon revision and reflection of

22 our material, we have 65 ter evidence that shows that the blockades

23 started as of summer. We have informed this issue to our learned friends

24 in May, but we didn't receive a response until last week and actually they

25 don't agree to modify this point. And actually, this material is

1 contained in the report of the next witness, Mr. Reynaud Theunens. So as

2 an agreement has not been reached, we would like to remove this fact from

3 the original motion.

4 JUDGE PARKER: So you want leave to withdraw that as a proposed

5 agreed fact.

6 MS. REGUE: Mm-hmm.

7 JUDGE PARKER: Yes, you have leave.

8 MS. REGUE: Thank you, Your Honour.

9 JUDGE PARKER: Very well. We look forward to the papers on what

10 is actually agreed being filed as soon as possible. I think it really

11 should be by tomorrow. Thank you.

12 MS. REGUE: Thank you, Your Honour.

13 JUDGE PARKER: Ms. Tapuskovic. I hadn't turned to any Defence

14 counsel, because it seemed to me that this was not a matter about which

15 there needed to be any debate. You -- there, we are told, has been

16 agreement reached on certain facts. The Chamber is concerned to know what

17 those facts are. It's not concerned what hasn't been agreed because that

18 will have to be proved by the Prosecution. And for that reason we have

19 not taken any particular notice of the course of debate between parties.

20 We just want to know what the end product is, and that will be received in

21 a document signed by counsel for all parties. That being so, it didn't

22 seem to us we needed to spend time this morning hearing an explanation as

23 to what has or has not gone on.

24 Now, with that in your ears, is there anything further you wish to

25 say?

1 MS. TAPUSKOVIC: [Interpretation] Your Honours, I fully understand

2 this instruction. We need to be very brief. I spoke about the agreed

3 facts some days ago. The only thing I would like it say in addition is

4 that we approached the OTP very openly, saying that the agreed facts

5 outside those eight that have been tabled again for discussion will not be

6 challenged. However, we have received an offer, we're not talking about

7 26 facts now, we're talking about more. The OTP are therefore challenging

8 our entire agreement on agreed facts, as it were. One which was filed and

9 submitted to the Chamber some time ago.

10 We shall be submitting a motion on this to the Trial Chamber

11 anyway. Thank you very much, Your Honours.

12 JUDGE PARKER: Thank you. I think the position is clear then.

13 Thank you, Ms. Regue.

14 Mr. Weiner.

15 MR. WEINER: Good afternoon.

16 WITNESS: REYNAUD THEUNENS

17 Examination by Mr. Weiner:

18 Q. Would you state your name, please?

19 A. My name is Reynaud Theunens.

20 Q. And can you tell us where you live?

21 A. At the moment I live in two places. I live in The Hague and I

22 live in Belgium, but ...

23 Q. All right. And where do you work?

24 A. I work in the Office of the Prosecutor at the ICTY, and more

25 specifically in a department known as the military analysis team.

1 Q. Have you ever testified before the International Criminal Tribunal

2 for the former Yugoslavia as a -- as an expert on military experts?

3 A. Indeed, Your Honours. I testified in January, February 2004 in

4 the trial of Slobodan Milosevic, and then in January, February 2006 I

5 testified in the trial of Milan Martic.

6 Q. May the witness please be shown 0600-5684. ERN 0600-5684. Do you

7 have that two-page document in front of you, sir?

8 A. Yes, I do.

9 Q. And what is that?

10 A. Your Honours, this is an overview of my curriculum vitae for court

11 purposes.

12 MR. WEINER: The Prosecution would like to tender that.

13 JUDGE PARKER: Thank you, Mr. Weiner.

14 MR. WEINER: Now, could we move to ERN number 0461-9882.

15 Q. Which is your report, sir.

16 A. Yes, Your Honours.

17 Q. You have it in front of you, sir?

18 A. I do.

19 Q. Now, just for a matter of background, that is a two-part report.

20 The first part is titled, "Structure, command and control and discipline

21 of the SFRY armed forces." And the second section is titled "SFRY armed

22 forces OG South and the operations in SBWS"; is that correct, sir?

23 A. Yes, Your Honours, that is correct, and the SBWS stands for

24 Slavonia, Baranja, and Western Srem, i.e., Eastern Croatia.

25 MR. WEINER: We'd like to offer that.

1 JUDGE PARKER: We will receive first the curriculum vitae.

2 THE REGISTRAR: As Exhibit 577, Your Honour.

3 JUDGE PARKER: Now, I see Mr. Lukic.

4 MR. LUKIC: [Interpretation] Just one procedural question that we

5 have to deal with before we start with this in relation to the report.

6 Mr. Weiner tells us that he wishes to tender about 150 documents with the

7 report. We do have objections to raise in relation to some of the

8 documents. This has nothing to do with the report as such. But

9 Mr. Weiner said he would be raising the issue and tendering these at the

10 end. It is at the outset that I wish to inform the Chamber if indeed the

11 OTP decide to do that at the end, we do have objections to raise in

12 connection with some of these documents.

13 JUDGE PARKER: Thank you. These are documents additional to the

14 report?

15 MR. WEINER: No, Your Honour. I believe he's referring to the

16 documents that were footnoted in the report, that the report refers to in

17 the footnotes. We filed a motion last week --

18 JUDGE PARKER: Very well, yes. The report itself then will be

19 received.

20 THE REGISTRAR: As Exhibit 578, Your Honours.

21 MR. WEINER: And finally may the witness be shown 0600-8203, which

22 is a corrigendum. 0600-8203.

23 Q. Is that your corrigendum, sir? Do you have it in front of you?

24 A. I have a hard copy in front of me, but it's not visible on the

25 monitor yet, Your Honours.

1 Q. Is it visible now, sir?

2 A. Not on mine. I have the B/C/S version of my report, but for me

3 it's fine. I have hard copy.

4 JUDGE PARKER: The Chamber has hard copies if that's going to

5 help.

6 MR. WEINER: That's fine.

7 Q. Sir, did you file a corrigendum, did you prepare a corrigendum?

8 A. Indeed, Your Honours. Last week a corrigendum was prepared to

9 correct certain errors or typographical errors in footnotes as well as

10 typographical errors in the content of the document.

11 Q. And the hard copy is five pages in English and five pages in --

12 three pages in English and five pages in B/C/S?

13 A. The English is three pages, I don't have the B/C/S in front of me,

14 but I would assume it's more or less the same.

15 MR. WEINER: We would like to offer 0600-8203, the three-page

16 corrigendum, Your Honour.

17 JUDGE PARKER: Together with the B/C/S version.

18 MR. WEINER: Yes, please.

19 JUDGE PARKER: Which is finishing 8205. They will be received.

20 THE REGISTRAR: As Exhibit 579, Your Honours.

21 MR. WEINER: Thank you, Your Honour.

22 Q. Now, sir, I'd like to discuss a few concepts with you, which you

23 mentioned in your paper, just briefly. First, command and control, what

24 is it, why is it important?

25 A. Your Honours, the issue or the theoretical background of command

1 and control as it applied to the SFRY armed forces consisting of JNA and

2 TO is explained in the first part of the report. More specifically, in

3 the sections 3 and 4 whereby for the purposes of this report, section 4 is

4 the most important. In that section I provide an overview of the

5 definitions that are given in JNA or SFRY armed forces regulations and

6 manuals pertaining to command and control. In the English version on page

7 38 you can find an excerpt of the 1990 rule corps of ground

8 forces regulation which has already been exhibited in this trial under

9 Exhibit Number 398. And the definition has been taken from paragraph 63

10 of that regulation.

11 On the next page there is a discussion of the definition as it is

12 provided in Exhibit 395, which is the 1984 -- which are the 1984 JNA

13 brigade rules applying to infantry, motorised, mechanised and mountainous

14 brigades. And that comes from paragraph 107 in that regulation. I don't

15 know whether I have to read out the regulation, but the most important in

16 that context are the functions of command and control because they explain

17 of what command and control consists, five functions: Planning,

18 organisation, command, coordination, and control. And they are explained

19 on the pages 41 to 43 of the report, whereby the content is based on

20 Exhibit 398, paragraphs 110, if I'm not wrong, until 112.

21 Q. Now, sir, why is it -- why is it important, sir?

22 A. Command and control is actually -- is a basic aspect of the

23 functioning of armies, and I think the easiest is to look at functions of

24 command and control, which I mentioned start on page on 41. And more

25 specifically the function of command. Command basically consists of the

1 assigning of tasks to subordinates. And that's the basic principles, one

2 of the basic principles of how armies function.

3 Q. Now, is this applicable to all units?

4 A. Yes, Your Honours, it is not only applicable to all units,

5 starting from the lowest level, the squad, which is an infantry,

6 approximately 10 people, to the highest level, the army level, but it also

7 applies to most armies I'm familiar with. I mean, when I compare what I

8 read and studied in JNA regulations with what I've seen in my own -- or

9 the army in which I serve, i.e. the Belgian armed forces, these functions

10 and then also the principles are exactly the same.

11 Q. And do these principles apply to operational groups or operations

12 groups?

13 A. Indeed, Your Honours. There is a definition for operational

14 groups and other ad hoc formations further on in the report, but the fact

15 that operational groups or assault detachments or assault groups are ad

16 hoc formations and that they are only established for a specific operation

17 in a specific area during a specific time period does not change the

18 concept of command and control, including its functions and -- and its

19 three principles, which are single authority, unity of command, and the

20 obligation to implement decisions.

21 Q. Okay. Could you explain single authority and unity of command?

22 A. Your Honours, these are two of the three principles of command and

23 control, which can be found in Article 112 of the 1982 All People's

24 Defence law. And that's Exhibit 392. It's explained in my report, pages

25 43 to 44. Basically, single authority means in simple terms that there is

1 only one commander who can issue orders and to whom the implementation of

2 these orders is reported to.

3 Unity of command has to do with defence doctrine. It means that

4 there is a single concept in the defence, as I found in regulations, in

5 the defence of the country, but in simple terms it means that there needs

6 to be coherence between the orders from the highest command level, i.e.

7 the Supreme Command, and the instructions or the orders received by the

8 lowest level in the chain of command and that would be the squadron

9 leader -- the squad leader, excuse me, so the subunit of a platoon, i.e.

10 there needs to be coherence and one view or unity in these orders

11 throughout the chain of command.

12 Q. Now, you talk about the duties of a commander. Would you please

13 turn to Exhibit 394, page 28, please? May the witness be shown that

14 document? In the middle that document it says, "He," referring to the

15 commander "cannot delegate the responsibility for the situation in the

16 unit and its use." Why can't a commander delegate responsibility?

17 A. Well, the commander as regulations say, can delegate some of his

18 powers, but he cannot delegate his responsibility. This is just based

19 on -- I mean, it's inherent to command and control, i.e. that the

20 commander, because of these three principles, single authority, unity of

21 command and obligation to implement decisions, is responsible. You cannot

22 issue orders without being responsible for the implementation of these

23 orders, and that is visible throughout not only SFRY armed forces

24 regulations I studied for this report, but also it is applicable to other

25 armed forces.

1 Q. Okay. Now, sir, could you look at another document, which is 65

2 ter 968. 65 ter 968, which is "Regulations on the Responsibility of the

3 Land Army Corps' Command in Peacetime." Could you look at Article 6,

4 which is page 4, which is tab 2 in the notebook supplied to the Court.

5 Is this document related, or is Article 6 of this document related

6 or similar to Exhibit 394, which you've just seen?

7 A. I have the B/C/S version in front of me, but I looked at this

8 regulation when putting together this report. Indeed it mentions the

9 same, so that the commander in this particular case, the corps commander

10 can delegate some of his powers, for example the power to command or the

11 power to control, I mean by this that these powers refer to the function

12 of command and control, but he will still remain responsible or he will

13 continue to bear responsibility for the situation in his units and for the

14 work of the officers to whom he transferred some of his right -- rights.

15 And I can explain that these officer, these can be officers from the

16 command, i.e. officers from the staff, and then within -- outside the

17 staff, but still part of the command are other officers who are directly

18 subordinate to the commander instead of members of the staff who are

19 subordinated to the Chief of Staff, but the commander, for example the

20 brigade commander can also delegate certain powers to his battalion

21 commanders.

22 Q. Now, sir, this document says that these regulations apply in

23 peacetime. Would these documents -- I'm sorry, would these principles or

24 regulations also apply in wartime?

25 A. Your Honours, based on the regulations I reviewed to compile part

1 1 of the report, I first looked at general regulations that define command

2 and control in the SFRY armed forces which means they are applicable to

3 all units where command and control units and institutions actually where

4 command and control is being applied. I also looked at battalion,

5 infantry battalion regulations, infantry brigade regulations and corps

6 regulations and obviously because of the principle of unity of command,

7 all these regulations are coherence on this and other aspects of command

8 and control.

9 Q. So would this principle or doctrine also apply with regard to an

10 operation group?

11 A. Yes, Your Honours, they apply to all units, and in all

12 circumstances unless it is specified differently, but I haven't found such

13 a different specification, so both wartime, emergency situation, even in

14 threat of war in peacetime.

15 Q. I would like to offer that document, Your Honour?

16 JUDGE PARKER: It will be received.

17 THE REGISTRAR: As Exhibit 580, Your Honours.

18 MR. WEINER:

19 Q. Let's continue speaking about operational groups. Who was in

20 charge or who has overall responsibility for an operations group?

21 A. Like in -- in Your Honours, like in any military unit or

22 institution, it is the commander who is in charge and will therefore be

23 responsible for the situation in his unit, including the subordinate units

24 and the way how the assignments he has received are implemented.

25 Q. What are some of the different subordinate units, the various

1 units within an operations group?

2 A. Your Honours, operational groups, tactical groups assault

3 detachments and assault groups are discussed, English version, page 96

4 until page 99 in the first part of my report. According to SFRY armed

5 forces documentation as well as orders that apply to the use of SFRY armed

6 forces the in conflict in Croatia during the latter half of 1991, an

7 operational group can consist of tactical groups that was -- I've seen

8 examples of tactical groups in the western part of Croatia. Assault

9 detachments, so instead of tactical groups there can be assault

10 detachments, and assault detachments can consist of assault groups. But I

11 have also seen examples where an operational group just consists of

12 battalions, elements of a brigade. So it's really up to the commander of

13 the operational group to organise his forces in the best way that allows

14 to carry out the assignment he has received from his superior.

15 Q. Now, you said that the commander has -- is in charge. Who else

16 has command powers?

17 A. Well, based on what we discussed earlier about the option or the

18 possibility for the commander to delegate some of his powers, anybody to

19 whom the commander delegates powers, i.e. functions of command and

20 control, the authority to command or to control or to plan or to organise

21 or to coordinate can have, in such circumstances, a command powers.

22 And -- or it can have these powers. And obviously because of how units

23 the corps commander cannot issue orders to the last soldier, so there is a

24 chain of command through which orders are being issued, i.e. there is an

25 instruction or a directive of the Supreme Command, so the civilian

1 leadership, if I can call it like that. And this is then through the

2 chain of command transformed into orders or commands for the soldiers to

3 be carried out.

4 Q. Now, in addition to those persons who the commander authorises or

5 assigned certain duties to, that then has command and control powers, who

6 else? What about the people in the units, who would have responsibility?

7 A. Your Honours, I should have been more clear, I think, in my

8 previous answer, but it's basically the subordinate units of the unit and

9 in this case an operational group, they will have command responsibility

10 or they will have -- or command powers for their unit. However, again,

11 based on my review of -- of SFRY armed forces regulations, if an

12 operational group, for example, consists of, let's say, four assault

13 detachments, it doesn't mean that the operational group commander can

14 delegate his responsibility to the four assault detachment commanders and

15 that the assault detachment commanders have the full responsibility for

16 this happening in their zone. The doctrine is quite clear, that is that

17 in such a situation assault detachment commands will have a

18 responsibility, but the commander, i.e. the operational group commander

19 will still maintain the overall responsibility for what is happening in

20 the zone of responsibility of the operational group.

21 Q. Now, you said the -- you indicated that the commanders of

22 subordinate units have command responsibility. Would a commander of an

23 assault group or a company be able to issue orders?

24 A. Your Honours, like I mentioned earlier, and it's all based on

25 review of SFRY armed forces doctrine, there are no limitations on command.

1 If you look at the various regulations from the company level to the

2 highest level, you will always find when the responsibilities or the

3 duties of the commander are discussed, that the commander issues orders or

4 that the commander, whatever command level or unit level is responsible

5 for the implementation of the received assignments. Now, you can only

6 ensure the implementation of an assignment that has been received by

7 issuing as it is called in doctrine by issuing other assignments which is

8 done on the company level by orders or commands.

9 Q. Okay. Now, let's move to military operations. Who can be placed

10 in charge of a military operation?

11 A. Your Honours, basically every person who -- the person who issues

12 the assignment to carry out the military operation can be put in charge of

13 such an operation. Now, this is a very theoretical answer. In practice

14 it has to be somebody, most often an officer when we talk about an

15 operation, who is in a position to -- who -- I apologise, in the views of

16 the commander who issues the assignment to carry out the operation is in a

17 position to carry out that assignment in a successful way. So the most

18 obvious offices to do so are the commanders of the units that have been

19 tasked to carry out the assignment, but the commander, based again on this

20 possibility to delegate certain of his powers can also appoint any other

21 officer from the command, from the staff, or any officer he considers to

22 be capable of carrying out the assignment in a successful way.

23 Q. Can a commander of an operational group assign another officer to

24 be in charge of military operations?

25 A. Indeed, Your Honours, this follows from what I mentioned from my

1 reply earlier.

2 Q. Now, the officer who is placed in charge of a military operation,

3 will he have the powers to issue orders?

4 A. Your Honours, the powers of that officer will be determined by the

5 assignment he has received from his commander. It is the commander who

6 decides which powers this officer to whom he delegated certain powers will

7 have. If -- you mentioned that he will be placed in charge of a military

8 operation, well, to be placed in charge implies that one is able to issue

9 orders, i.e. that the person was received -- this delegation has command

10 powers. It should also imply control powers, i.e. that the officer who

11 has been -- to whom these powers have been delegated to can verify the

12 degree of implementation of these orders and take corrective action.

13 Again, I always refer to the functions of command and control as they have

14 been defined in the JNA regulations. The officers to whom these powers

15 have been delegated to can also have powers to coordinate or to plan or to

16 organise.

17 Q. Well, speaking of planning, is planning a function of command and

18 control?

19 A. Indeed, Your Honours. It's actually a very important function of

20 command and control. In the report there is an entire section on the

21 planning and conduct of what is called combat operations, and that's on

22 section 6, which covers the pages 100 to 120 in the English version.

23 Q. And is planning involved in all military operations, some

24 specified military operations, many, a few?

25 A. Planning doesn't only apply to all military operations, but

1 according to the JNA military lexicon, and I have not included this

2 definition in my record, but an operation is actually the highest form

3 of -- of -- well, combat operation is the highest form of combat activity,

4 and action or akcija is the lowest form, for all forms of -- call it

5 military activity, there will be a degree of planning according to common

6 procedures which have been determined for these various types of military

7 activity.

8 MR. WEINER: May the witness be shown Exhibit 395, section 126,

9 and page 39.

10 MR. LUKIC: [Interpretation] Your Honours, I would just like to use

11 this opportunity. We could get DHS on our screens for the benefit of our

12 clients.

13 MR. WEINER: Is there a technical problem, Your Honour?

14 JUDGE PARKER: There is a technical problem. You're wanting it on

15 the screen in English; the Defence wants it on the screen in B/C/S.

16 MR. WEINER: I have a copy in front of me, the witness has a copy

17 in front of him. We could use B/C/S on the screen, and Your Honours also

18 have a copy. So we could refer to the various superior sections and

19 assist the defendants in their language.

20 JUDGE PARKER: Thank you, Mr. Weiner.

21 MR. WEINER:

22 Q. Now, in this discussion of planning they talk about monitoring,

23 constant monitoring. What is the reason for constant monitoring?

24 A. Your Honours, constant monitoring has to do with something that is

25 called in military slang, situational awareness. The commander and those

1 involved in the planning have to know what the situation is and how the

2 situation can develop in order to prepare a plan which is able -- which

3 can be implemented and which is also the best possible reflection or -- I

4 will correct it, the best -- which offers the best possible preparation to

5 continue then with the other steps of the preparation of combat

6 activities.

7 Q. Now, there is also a reference to, in planning, to predicting

8 events and forecasting. What is involved in forecasting and predicting

9 events?

10 A. Forecasting or predicting events is something that I found in,

11 among other things but in Exhibit 394. Which is the 1983 JNA text-book on

12 command and control. It means, or it implies that the commander and those

13 involved in preparing a combat operations within reasonable limits, based

14 on their monitoring of the situation, have to be able to analyse and

15 predict possible developments of the situation, covering all aspects that

16 are considered relevant for the planning. What I mean by this is

17 that, for example, when the commander has received an assignment to carry

18 out an attack, let's call it an infantry attack, he and his staff will

19 have to know not only what the enemy in front of them is -- let's call it

20 in front of them is doing, but how the enemy can react or what the enemy

21 can do. They will also have to know how the weather can develop. An

22 attack in dry weather can be significantly different from an attack in

23 foggy weather, for example, with poor visibility. They will also have to

24 know for example or be able to predict the status of materiel, of their

25 equipment. It could be that some equipment is in poor condition and will

1 affect -- or that some equipment will not be repaired and this will also

2 affect the capabilities of their own unit.

3 Q. Now, sir, is the status or the attitudes, the activities of the

4 local population, is that a factor for analysis, as part of the prediction

5 process of forecasting?

6 A. Indeed, Your Honours. If the -- the situation is as such that

7 there is still local population, and also is -- the assignment that has

8 been received -- I will rephrase that.

9 If the local population can have an influence, whatever influence

10 that may be on the assignment, and how this assignment will be carried

11 out, then obviously the attitude of the local population is one of the

12 factors that has to be taken into account for the planning. And to answer

13 the question, it's not only the attitude as it is now, but also the

14 possible reaction of the population on the assignment that has been given.

15 Q. Now, as part of forecasting, in Exhibit 394 at page 38 it says, "A

16 commander or staff must be able to see in advance if the situation will

17 change in way, and what likely course the forthcoming combat operation may

18 take."

19 The question, sir, is, does that place an obligation on a

20 commander to predict events or forecast, as part of planning?

21 A. Yes, Your Honours, it does.

22 Q. And is this obligation applicable to all military operations, or

23 all military activities?

24 A. Indeed, Your Honours. And of course it's most obvious with combat

25 operations but it applies to all forms of military activity and all levels

1 of units.

2 Q. Now, when you are making your predictions would you -- I assume

3 you consider various factors, but is the discipline of one's troops, is

4 that a factor for consideration?

5 A. Yes, Your Honours. As I mentioned earlier, the commander has to

6 take into account all factors that can have an influence on the

7 implementation of the task, because his task is to -- or his task is to

8 implement the assignment he has received from his superior in a successful

9 manner. So obviously if for example among his units there are units that

10 are less disciplined or maybe there are subunits that have a problem with

11 discipline, then he may be careful to use these units and if he has other

12 units available, he will use these other units, for example. These are

13 just examples, huh.

14 Q. In obtaining information for an operation or for any activity, you

15 have discussed in your report on page 79, you discuss the doctrine of two

16 levels down. What is that, sir?

17 A. Your Honours, the --

18 Q. I'm sorry, page 60 of your report.

19 A. The reference to the two levels down comes from Exhibit 393. More

20 specifically, paragraph 358 in this exhibit, which is -- which are the --

21 which is the 1983 JNA manual for the work of commands and staffs. The

22 heading for this paragraph says -- talks about duties -- if I recall well,

23 duties for the commander in -- during an attack. But actually from my

24 work here, and I mean by that conversations during witness interviews,

25 interviews of senior JNA officers for this case, as well as other cases,

1 it is clear that this obligation applies to all military scenarios. And

2 as it says in this paragraph, 358, the command, i.e. the staff, has to be

3 able to provide the commander at any time during combat with detailed

4 information about the activity and intentions of the enemy. The status

5 activities, capabilities, and decisions of the subordinate units and to

6 submit proposals for decision.

7 Then the paragraph continues stating, "A commander must, at all

8 times, know the status, position and capabilities of his units two levels

9 down."

10 In practical terms it means that a brigade commander has to know

11 the situation of his companies because otherwise the brigade commander

12 cannot issue orders to his battalions. Because it -- it -- in the

13 battalions it will be the companies that will carry out the assignment.

14 Now, if one of the battalions has suffered significant losses and has less

15 forces, less companies available, this will obviously have an impact for

16 the capabilities of that battalion. So therefore, in order to give orders

17 or assignments to battalion, the commander, the brigade has to know how

18 the companies in that battalion are doing. And the same would apply to an

19 operational group and its subordinate units.

20 Q. Could you turn to page 79 in your report, speaking of operational

21 groups? And please tell us -- you have a diagram of Operational Group

22 South. Could you tell us what two levels down is from the commander?

23 A. Is this in the second part of the report?

24 Q. Second part of the report, yes. Page 79.

25 A. Your Honours, this is a graphic representation of Exhibit 410,

1 which was the -- or which is the OG South order number 235-1. I've only

2 put the main units on this diagram, i.e. the combat units, including the

3 staff of the operational group. Some of the information, some of the

4 names originate from other sources but any way, to answer the question, we

5 have the operational group and the first level below the operational group

6 are assault detachments. Two of the assault detachments have been

7 specified here, the 1st Assault Detachment and the second one. And

8 because the brigade order or the OG South order does not specify the

9 detailed organisation of the assault detachment, I've only been able to

10 list forces that are included in this assault detachment and this overview

11 with 1st motorised battalion, the 1st and 2nd company of the military

12 police battalion, Leva Supoderica, Petrova Gora, and other units, this

13 comes from the order 235-1, which is Exhibit 410.

14 Now, depending on how the commander of the 1st Assault Detachment

15 has organised his units, the commander of the operational group will have

16 to be familiar with the capabilities and the situation within the

17 subordinate units of the assault detachment in order to be able to give

18 assignments or issue orders to that assault detachment because if the

19 commander of the operational group does not know the situation within the

20 assault detachment, i.e. the situation of the subordinate units, he cannot

21 give orders to carry out certain activities or operations to the assault

22 detachment.

23 Q. Thank you. Since we're still discussing planning, let's move to

24 the planning of an evacuation operation. Is planning involved in an

25 evacuation operation?

1 A. Because of the definition of an operation, whatever nature the

2 operation has, there will be a planning phase in order to prepare as one

3 of the aspects to prepare such an operation.

4 Q. Just generally, what type of factors are considered?

5 A. Your Honours, I would say first of all it depends of the type of

6 evacuation. There can be evacuations whereby, for example, hostages have

7 to be liberated somewhere and evacuated. It could be that population

8 has -- the civil population has to be evacuated because of natural

9 disaster. It could be that prisoners have to be evacuated, it -- I don't

10 know which -- which type of evacuation operation you specifically want to

11 address.

12 Q. Take one involving prisoners.

13 A. If -- an evacuation operation of prisoners implies that prisoners

14 have to be moved from one location to another location. It's clear

15 from -- I mean at first glance, that first of all one doesn't want

16 prisoners to -- to escape, and on the other hand the aim is to arrive at

17 the same number of prisoners at the end stage as the number that was

18 present at the beginning of the evacuation. In practical terms a lot of

19 factors have to be taken into account. The prisoners have to be collected

20 at the first location, so the location from where they have to be

21 evacuated. They have to be escorted via a certain route, and then they

22 have to be delivered at another location.

23 So all possible factors that can play a role, I mean it's a very

24 general answer, but otherwise I think it's going to be very detailed, will

25 have to be taken into account when the operation is being planned. But I

1 think most obviously in this context is -- would be the nature of the

2 prisoners, their medical condition or other aspects that -- that influence

3 their condition, their situation in the -- in the area through which they

4 have to be escorted, conditions of the road, any risk of -- of ambushes,

5 risk of interference of other people. I -- to liberate certain prisoners

6 or to prevent the prisoners from -- from being evacuated.

7 Circumstances -- excuse me, the distance over which they have to be

8 evacuated and so on and so on.

9 Q. Now, as part of the planning for an evacuation and you just

10 mentioned the various aspects, is security one of the aspects for

11 consideration?

12 A. Your Honours, security organs and their duties are being discussed

13 in the first part of my report, page 76 to page 82. Coming back to the

14 question, obviously the security organs, due to the official tasks, are

15 the best placed to prepare a security assessment. So they will assist in

16 the plan, they will participate in the planning phase to study, analyse,

17 and then provide advice to the commander of the evacuation operation in

18 relation to possible security risks that can interfere with the

19 evacuation. For example, the threat of ambushes, the threat of the risk,

20 I mean risk of -- of people friendly to the prisoners to liberate them.

21 On the opposite side, if the local population or local armed forces

22 consist risk then the security organs will also have to provide an

23 assessment on that level. And the security organs, as we know from the

24 regulations that apply to the security organs, also advise the commander

25 as the -- for the use of the military police, will obviously play an

1 important role in an evacuation operation.

2 Q. In an evacuation operation, is someone usually in charge?

3 A. Indeed, Your Honours, it's like any operation. There needs to be

4 somebody in charge in order to carry out the functions of command and

5 control, and ensure a smooth execution or implementation of the task.

6 Q. If this -- if we're dealing an operational group, who appoints

7 that person in charge of these -- of an evacuation operation?

8 A. It would be the commander of the operational group, Your Honours,

9 unless specified differently. But then if it's done by somebody else,

10 then it has to be done in consultation with the operational group

11 commander or at least he has to be notified.

12 Q. And once a person was named the commander of an evacuation, what

13 powers would they have?

14 A. Your Honours, his powers will be determined by the assignment he

15 has received from his commander. So if a command -- if somebody has been

16 named or appointed commander of an evacuation, then that -- it will have

17 to be done by somebody, most often by his superior, and that superior will

18 determine the -- the -- call it the frame or the contents of this command

19 function, referring again to the functions of command and control.

20 Q. Well, can a person in charge of an -- an evacuation operation

21 issue orders, assign tasks?

22 A. Yes, Your Honours, because that's -- it's an essential aspect of

23 the command function to be able to issue taskings and assignments and

24 normally the control function is immediately will -- connected so that he

25 should also be in the position or will be in the position to verify the

1 implementation of the orders he has given.

2 Q. Now, I'd like you to look --

3 JUDGE PARKER: Is that a convenient time, do you think,

4 Mr. Weiner.

5 MR. WEINER: That's fine, Your Honour.

6 JUDGE PARKER: Can I indicate that we will have a 20-minute break.

7 The following break will be at about 3.25, and that will be the end of

8 your evidence in chief.

9 MR. WEINER: Your Honour, you had given us a section -- a session

10 and a half. However, as you recall, we started about two or three minutes

11 after 1.00, so we lost, because of arguments, 30 -- approximately 32

12 minutes. So I would ask that we be given about approximately an hour 15

13 minutes which would then give us the full session and a half, probably

14 another 15 or 20 minutes for the -- or least the half hour that we have

15 lost.

16 JUDGE PARKER: I have divided the time that remains after the lost

17 half hour and reprogrammed the whole schedule. You may stretch me as far

18 as 3.30, but not beyond that, Mr. Weiner.

19 MR. WEINER: Thank you.

20 --- Recess taken at 1.54 p.m.

21 --- On resuming at 2.17 p.m.

22 JUDGE PARKER: Mr. Moore.

23 MR. MOORE: Your Honour, yes. I just rise out of caution. I have

24 in court with me General Pringle who has arrived today from Britain. He

25 is the next witness.

1 JUDGE PARKER: Next witness but one.

2 MR. MOORE: But one; my apologies. I was hoping that he could

3 remain in Court to listen to the evidence. Out of courtesy to my learned

4 friends, I don't know if there is any objection to that proposed course,

5 bearing in mind they have their experts.

6 JUDGE PARKER: He will be permitted in court as are the other

7 experts.

8 MR. MOORE: Thank you very much.

9 JUDGE PARKER: Yes.

10 Yes, Mr. Weiner.

11 MR. WEINER: Thank you.

12 Q. Now, sir, we were speaking about evacuation operations.

13 MR. WEINER: Would the witness please be shown ERN 0467-5969.

14 That's tab number 3 in your notebooks. It's titled, "Participation of

15 military police in guarding prisoners of war."

16 Q. Are you familiar with this document, sir?

17 A. Indeed, Your Honours, I am familiar with this document.

18 Q. And the information that's contained in this document that

19 established the regulations or principles, does this come from other

20 military sources which were available in November of 1991?

21 A. Indeed, Your Honours. This document actually is a further

22 specification or a further details of what is included partly in the

23 regulations, the JNA regulations that applied to military police, as well

24 as the 1988 regulations on the application of the international laws of

25 war in the armed forces of the SFRY, which is also Exhibit 396 in this

1 case.

2 Q. Now, were the guide-lines that are in this document applicable in

3 November of 1991?

4 A. Indeed, Your Honours, in addition to what I just explained, this

5 particular document which is from 1993, was also advised or presented to

6 us by a JNA witness whom we interviewed on these issues. And this witness

7 was Colonel Radoj Paunovic, who was the commander in the 2nd Military

8 Police Battalion in the Guards Motorised Brigade in 1991. The name is

9 Paunovic, P-a-u-n-o-v-i-c.

10 Q. Now, according to this document, what are the key roles or duties

11 of the military police in guarding prisoners?

12 A. Your Honours, the document gives a detailed description of these

13 duties which consists of guarding the prisoners, escorting the prisoners,

14 as well as transferring them -- to handing them over. At the pages 8, 9,

15 27 and 28, the document highlights the importance or the obligation,

16 actually, to protect prisoners and to treat them humanely. And on the

17 last, I think it's page 45, one of the last pages, there is also reference

18 to lessons learned.

19 MR. WEINER: We would like to offer that document, Your Honour.

20 JUDGE PARKER: It will be received.

21 MR. LUKIC: Your Honour.

22 JUDGE PARKER: Mr. Lukic.

23 MR. LUKIC: [Interpretation] This is one of the few documents that

24 I wish to object to. I do not believe it has any relevance. Firstly,

25 this is not a 65 ter document; this is a document we received later on

1 from the OTP when the trial was already underway. Why am I raising an

2 objection? This is a manual for a military police course, as the witness

3 has pointed out. I will just read one sentence from the introduction.

4 The last war-related events in the former Yugoslav republics that

5 seceded from Yugoslavia point out the importance of the issue of prisoners

6 of war and the need for high-level training of military police units in

7 order to carry out these tasks. For this reason it was necessary to use

8 the available literature from this field as well as previous experiences

9 inside the country in order to draw up special lessons. The accompanying

10 literature to this manual, which was produced in 1993, includes the Geneva

11 Conventions, that is beyond dispute, I believe, as well as certain reports

12 by experts on the treatment of prisoners of war, conditions of detention.

13 But not the regulations, with the exception of one particular law from

14 1973 in relation to military prisons. What Mr. Theunens has just said was

15 precisely the subject of one of our polemics earlier on. He quotes what

16 was supposed to be an OTP witness but eventually wasn't. He said in

17 relation to this 1993 manual that it was used back in 1991. Since this is

18 a 1993 manual, and it was created for that very reason, because no such

19 manuals were available at the time, I cannot think this manual should be

20 used as evidence in relation to anything that occurred in 1991. We could

21 perhaps have it marked for identification, and then if witness Paunovic

22 eventually appears and there is other evidence to indicate that a manual

23 like this was indeed being used back in 1991, then perhaps we could

24 consider its admission into evidence.

25 [Trial Chamber confers]

1 MR. WEINER: Your Honour, may I respond, please?

2 JUDGE PARKER: Mr. Weiner, in the Chamber's view it will be

3 received as a 1993 manual.

4 MR. WEINER: And that's what we're introducing as --

5 JUDGE PARKER: Whether or not it has any relevance to 1991 is an

6 obvious question, as Mr. Lukic has made very clear. Thank you.

7 THE REGISTRAR: Your Honour, this document will become Exhibit

8 581.

9 MR. WEINER:

10 Q. Again, Mr. Theunens, did the information contained in that manual

11 exist in 1991 and earlier?

12 A. There is exact, Your Honours, because the introduction actually

13 mentions only that this is a dedicated lesson, there is nothing new in the

14 lesson, it is just a dedicated one. So the information that has been

15 pointed out in this courtroom is just an application of the Geneva

16 Conventions in 1991, and were also valid in 1991.

17 Q. Let's move on to the security organ. What are the duties of the

18 security organ, Mr. Theunens?

19 A. Your Honours, the duties of security organs and their mandate are

20 explained in part 1 of the report, section 5, on the pages English version

21 77 to -- I apologise, 82. And basically their task consists of two

22 components, counter-intelligence work and expert advice to the commander

23 on the use of the military police.

24 Q. Now, who does the security organ report to in a command -- in

25 operational group, sir?

1 A. As in any unit where a security -- security organ is active,

2 Your Honours, based on the JNA regulations, the security organ is

3 subordinated to the operational commander. And at the same time maintains

4 what is called a management relation with the military police, and has

5 also a particular relation with security organs at the higher level and

6 also at the subordinate level. So there are basically two chains, one

7 subordination to the operational commander and then the security chain of

8 reporting.

9 Q. May the witness be shown 65 ter 395, which is tab 8. Are you

10 familiar with this document, sir?

11 A. Yes, Your Honours. This is the 1986 regulation on the methods and

12 work of the security organs in the JNA.

13 Q. And what are the functions, according to this document.

14 A. This document actually explains how the functions are being

15 implemented. It lists a number of procedures and operational concepts.

16 Security organs can apply in carrying out their duties or functions and

17 these functions are explained in the 1984 regulation, which is 6 -- excuse

18 mu e 107 in this trial, rule of service of the security organs of the

19 SFRY.

20 Q. What are these functions, sir?

21 A. You mean this --

22 Q. The earlier one?

23 A. The earlier one, it can be summarised as counter-intelligence

24 work, expert guidance, or expert advice to the use of the military police,

25 and this includes also a management relation with the military police and

1 also the provision of security reporting to security organs and the

2 security administration. Security organs at the superior command level.

3 Q. And how was this document 65 ter 395 related to that?

4 A. As I mentioned, it explains the methods that can be used it talked

5 about for example the use of collaborators, agents, also what I considered

6 important for the context of this report, that security organs and the

7 security administration can be tasked with propaganda and

8 counter-propaganda.

9 Q. Could we offer that document, Your Honour.

10 JUDGE PARKER: It will be received.

11 THE REGISTRAR: As Exhibit 582, Your Honours.

12 MR. WEINER:

13 Q. Is there anything in Exhibit 107 and this Exhibit 582 which would

14 make you conclude whether the correction of artillery fire is a security

15 organ function?

16 A. No, Your Honours, there are no such entries in these two

17 regulations.

18 Q. May the witness be shown ERN 0600-3049. 0600-3049. Tab 4,

19 please. Could you tell us what this document is?

20 A. Your Honours, this is a report titled, "Security situation in the

21 unit and the AOR," which is area of responsibility or zone of

22 responsibility. Operations report, it has been compiled by the security

23 organ of the Guards Motorised Brigade, which can be seen in the left top

24 heading dated the 6th of November. And at the end of the document it

25 mentions chief, Major Veselin Sljivancanin, and this document was obtained

1 on the 18th of May from the government of Serbia and Montenegro after

2 several attempts to obtain reports by Major Veselin Sljivancanin during

3 the October to November 1991 time period.

4 Q. And this report in front of you, is this the type of report that

5 is normally filed by a security organ?

6 A. Your Honours, in the preparation of this report I've also looked

7 at reports that were compiled by both military commands as well as

8 security organs outside the zone of responsibility of OG South. And for

9 example, in the second part, under the section that discusses volunteers

10 and paramilitaries, English page 34 there are a number of references to

11 reports compiled by security organs of the 1st Military District or

12 subordinate units of the 1st Military District. Most of these reports

13 there are on the activities of an individual known under the nickname

14 Arkan. I've also looked at a number of documents that were compiled by

15 security organs in relation to alleged violations of the laws of war.

16 Some of them have been exhibited in this trial with witness Agotic, I

17 think, for example it's Exhibit 76. And this report actually discusses

18 other issues. This Sljivancanin report, 0600-3049 is rather different

19 from the reports I just described.

20 Q. How is that different, sir?

21 A. Because when we look at the contents of this document, and for

22 example at the bottom of the first page, Sljivancanin mentions weaknesses

23 in the system of command and the impact that has. That's actually at

24 section at the bottom of the English version, so for the B/C/S I think

25 it's a bit more to the top. Anyway, he starts with the discussion of the

1 situation with Muslims and Macedonians in the guards brigade. Then he

2 talks about weaknesses in the system of command, whereby in the English

3 version, the bottom of the second page, Sljivancanin talks about the

4 command situation in the 1st motorised battalion, where he says, I

5 quote, "It is positively affected by groups from Petrova Gora detachment

6 and other value volunteers within the composition of this battalion."

7 Still he adds the situation is bad. And he gives a number of examples

8 which also refer to -- or not examples, but he mention that there's a weak

9 command and control system in the battalions, for example he

10 says, "commands and battalions do not know what their casualties are."

11 Now, this report, one would I'm that a critical review of command

12 and control within the battalions would be sent to the operational group

13 commander, i.e. to the next superior, to the superior of these battalions,

14 but looking at this document it is actually sent, and that that can be

15 seen on the first page. In the heading. It's sent to the security organ

16 of the cabinet of the SSNO, so for the federal ministry for all people's,

17 or national defence. So the report contains mainly operational

18 information, which compared to other reports from the time, i.e., 1991,

19 which were compiled by other security organs, appears to be significantly

20 different by its contents.

21 MR. WEINER: We'd like to offer that, Your Honour.

22 JUDGE PARKER: It will be received.

23 THE REGISTRAR: As Exhibit 583, Your Honours.

24 MR. WEINER:

25 Q. Let's turn now to the powers of a security organ. Is a security

1 organ or assistance commander for security endowed with the powers to

2 command and issue orders?

3 A. When we talk about assistant commander for security, we mean by

4 that the chief of security, or the chief of security organs. According to

5 the regulations he can only issue orders or -- give commands or issue

6 commands to his subordinates, i.e. other officers or personnel within the

7 security organs in his unit.

8 Q. Under what circumstances can the assistance commander of security,

9 the chief of the security organ, issue tasks and orders, outside of his

10 unit?

11 A. Actually, Your Honours, this is under the same circumstances as

12 described earlier, that a commander can delegate some of his powers, i.e.

13 some of his command functions to any officer he desires to and then he

14 this could be done a security officer who would, by such delegation,

15 actually could become a commanding officer in those circumstances.

16 Q. Can an assistant commander for security ever be assigned to

17 command a military operation by a commander of an operational group?

18 A. Yes, Your Honours. If the commander of the operational group

19 delegates the powers to command this specific operation to a security

20 organ, then -- or the assistance commander for security, then this

21 assistant commander for security will become the officer in charge of this

22 operation. And the fact that he is in charge of an operation becomes the

23 most of -- or the only important issue then which -- whereby the fact --

24 whether he is a security officer or maybe a logistics officer or morale

25 officer is -- ceases to be of importance.

1 Q. And would that include evacuation operations, sir?

2 A. Indeed, Your Honours.

3 Q. Let's move to some issues relating to the laws of war. Are you

4 familiar with Exhibit 396, which is regulations on the application of

5 international laws of war and armed forces of the SFRY?

6 A. Yes, Your Honours. And this is discussed in -- in section 7 of

7 the first part of report, together with other regulations that apply to

8 these issues.

9 Q. Now, may the witness be shown Article 20 of Exhibit 396, which is

10 on page 14, then Article 21. First, are you familiar with Article 20,

11 please?

12 A. Yes, Your Honours, I am.

13 Q. And what is that? Or actually, could you look at Article 21 next?

14 A. Article 21 is discussed on page 127, English version, of the first

15 part of my report. And basically it states that -- should I read it out?

16 Q. No, could you just summarise what are in Article 20 and 21?

17 A. Article 20 discusses individual responsibility, individual

18 criminal responsibility. It means that every individual of the armed

19 forces shall be personally accountable for violations of the laws of war

20 if you commit such a violation or orders someone to commit one. 21 deals

21 with -- we would describe here as command responsibility, i.e. the

22 responsibility of the commander for actions of his subordinates.

23 Q. And do these rules apply to all officers?

24 A. Indeed, Your Honours.

25 Q. And that includes commanders of subordinate units?

1 A. That's correct, Your Honours. The regulation speaks about

2 officers, officers without specifying the nature or without adding any

3 limitations to the concept of officer.

4 Q. What about an officer in charge of a military operation, such as

5 an evacuation operation?

6 A. Based on this regulation, the same articles would apply, as they

7 are described here.

8 Q. Now, could we turn to Article 36, which is on page 20. I'm going

9 to read just the first sentence on page 20 of that article. "A Yugoslav

10 officer who learns of violations of the laws of war shall order the

11 circumstances and facts surrounding the violation be investigated and

12 necessary evidence collected."

13 Who does this apply to, sir?

14 A. According to this article from the 1988 regulations, it applies to

15 all officers.

16 Q. Now, if there is an allegation of a war crime, who were the

17 officers most likely to investigate and arrest the perpetrators?

18 A. Your Honours, based on the regulations in the JNA that apply to

19 security organs and military police, security organs and military police

20 would be the most -- would be the best qualified and the most experienced

21 to carry out such activities, and later on, of course, at the later stage

22 in the investigation, also military prosecutors intervene.

23 Q. Now, based on that article, if a commander is advised that a

24 violation of war is occurring at that moment, what is his or her

25 obligation?

1 A. Based on the Article 21, he has to do everything to stop the

2 violation from continuing. And then linked to the other articles he has

3 to act to preserve the evidence and also have the alleged perpetrators

4 secured or arrested.

5 Q. Let's move on to 65 ter 95, which is tab 5. Page 28, which is

6 Article 53. And what does this concern?

7 A. Your Honours, this is Article 53 of the 1985 law on the services

8 in the armed forces. The article in its first paragraph states that any

9 member of the armed forces is duty-bound to carry out orders issued by

10 their superiors unless it is clear that carrying out such an order would

11 constitute a criminal offence. In the fourth paragraph of this article it

12 is explained what should be done if the compliance with that order would

13 constitute a criminal offence, stating that a member of the armed forces

14 to engage that order he receives complies with that order would constitute

15 a criminal offence. The member of the armed forces shall immediately

16 notify a higher superior officer or an officer senior to the individual

17 who issued the order.

18 Q. Now, what if he does, in fact, contact a higher officer or a more

19 senior officer and doesn't get a response? What is the officer to do

20 then?

21 A. Well, according to this Article 53, he has to inform his immediate

22 superior and if that doesn't work, he goes to the superior of that

23 superior. And in the case of the guards brigade, this would mean --

24 because during your [indiscernible] in Vukovar they are subordinate to the

25 1st Military District, that first the commander of the 1st Military

1 District would have contacted. I'm giving this example in the assumption

2 that the order to commit the crime would have been received by the

3 commander of the guards brigade of Operational Group South. So first of

4 all, the commander of the 1st military district; and if that doesn't works

5 the federal secretary for All People's Defence.

6 Q. Now, I'd like you to look at a somewhat related regulation in

7 Exhibit 396, Article 22 at page 15.

8 A. It states the same, Your Honours.

9 Q. And that states, "A member of the armed forces shall be liable to

10 criminal punishment also for violations of the laws of war committed by

11 following orders resulting in the commission of a war crime or other grave

12 criminal offence if he knew that the orders were intended to bring about a

13 violation of the laws of war which constitutes a criminal offence."

14 Are these types of regulations found in the regulations of armies

15 other than the former Yugoslavia?

16 A. Your Honours, I only know for the -- the army in which I served,

17 the Belgian armed forces, and we have similar regulations which is quite

18 logical because this is all a reflection of the Geneva Conventions.

19 MR. WEINER: We would like to offer 65 ter 95, Your Honour.

20 JUDGE PARKER: It will be received.

21 THE REGISTRAR: As Exhibit 584, Your Honours. Exhibit 684,

22 Your Honour. No. 584, Your Honour, yeah.

23 MR. WEINER:

24 Q. Now, Mr. Theunens, let's move on to issues relating to

25 investigations. Have you ever performed a search for military documents

1 of Operational Group South or the Guards Motorised Brigade in relation to

2 investigations conducted in relation to the murders at Ovcara?

3 A. Indeed, Your Honours. From -- I arrived at ICTY end of June, 2001

4 and from the moment I was assigned so this case I have both looked within

5 the archives of the OTP for such documents, as well as drafted several

6 requests for assistance to Serbia and Montenegro in order to obtain such

7 documents or other documents that relate to the discipline situation in OG

8 South. I can provide the details for these requests, if necessary. And

9 so far -- I mean the only documents I came across, and the only documents

10 we received are the ones included in the second part of the report,

11 section 3, from the pages 121 to 124, in the English version.

12 Q. Did you ever receive a document from Serbia and Montenegro, any

13 documents, in response to your requests?

14 A. You mean specifically for -- for violations of the laws of war or

15 in general?

16 Q. No, in relation to any investigation which occurred at Ovcara, in

17 relation to Operational Group South or the Guards Motorised Brigade?

18 A. No, what I remember the only -- sorry for the transcript. In the

19 package of documents we received in response to other requests, there was

20 one order, it's the order 471-2 from OG south, which is 424, which

21 mentions the word "investigation," sorry it's an operational report, not

22 an order, 471-2.

23 Q. Now, in Exhibit 424, which is this report you're speaking of, is

24 there any mention of an investigation in relation to the deaths at Ovcara

25 in that exhibit?

1 A. Your Honours, the exhibit mentions the arrival of an investigation

2 team and also discusses its composition, but it doesn't mention anything

3 in relation to Ovcara. I think it also talks about clearing up the

4 battlefields, but that's the farthest it goes.

5 Q. Now, is there any mention of a crime that had occurred at Ovcara

6 in that document?

7 A. No, there isn't, Your Honours.

8 Q. Now, may the witness please be shown 65 ter 611, which is tab

9 number 6 at page 3. Are you familiar with this document, sir?

10 A. Yes, Your Honours. This is an -- I mean, the article I used in my

11 report in English page 122 is an excerpt from the so-called bulletin or

12 Bultin [phoen] which was a publication compiled and distributed by the

13 federal Ministry of Defence or all people -- All People's Defence in SFRY

14 at the time. And this article is a statement by the command of the 1st

15 army or 1st military district, and it -- from the 2nd of December, 1991.

16 Discussing the arrival and activities of the investigation team, which is

17 actually mentioned in Exhibit 424, and also it mentions the focus of its

18 activities.

19 Q. And what is the focus of its activities?

20 A. From the last paragraph, the second paragraph in this article, it

21 can be seen that the focus of the investigation is actually -- are

22 actually what is described as the Croatian paramilitary formations.

23 And -- yes, indeed, that's it.

24 MR. WEINER: We'd like to offer this document, Your Honour.

25 JUDGE PARKER: It will be received.

1 THE REGISTRAR: As Exhibit 585, Your Honours.

2 MR. WEINER:

3 Q. As there is no mention of Ovcara in that exhibit, have you

4 reviewed any 1991 military documents relating to an investigation

5 occurring as to the murders at Ovcara?

6 A. I mean, there are many documents compiled by the Croatian

7 authorities, but because I couldn't verify the reliability of these

8 documents or the credibility of the sources they quoted, I decided not to

9 use them for this report. My -- I preferred to have JNA or SFRY

10 documents. And, as I mentioned, there have been several requests to

11 Serbia and Montenegro, but so far, without many results. I mean results

12 we obtained are included in the report. So to answer the question, I have

13 not been in the position to verify -- to review other 1991 JNA military

14 documents, because we have not managed to obtain them.

15 Q. May the witness please be shown 65 ter 605, which is tab 9 in your

16 notebooks. Could you tell us what this document is and what it concerns?

17 A. Your Honours, this is an unsigned statement in English by the

18 office of the military prosecutor of the VJ, so the structure that

19 succeeded to the JNA, dated the 25th of November, 1992

20 entitled, "Information on crimes against humanity and international law

21 committed in the territory of the former SFRY and processed by military

22 courts." It is discussed on pages 123, 124 on -- in the English version

23 of my report, the second part. And basically it states that prosecution

24 efforts are focused against or on the members of the Croatian armed

25 forces, and it shows, it has a conclusion, and I quote, "Evidence shows

1 that war crimes and the crime of genocide were committed almost

2 exclusively by members of the armed forces of Croatia while members of the

3 armed forces of the SFRY complied with the norms of international

4 humanitarian law, both with respect to parties in the armed conflict and

5 the civilian population."

6 Q. That's on page 2?

7 A. Yes, Your Honours.

8 Q. Now, is there any mention in this document about crimes that

9 occurred in Ovcara?

10 A. No, there isn't, Your Honours.

11 Q. Is there any mention of an investigative team conducting an

12 investigation in Ovcara?

13 A. No, there isn't, Your Honours.

14 Q. Any mention of an investigation team ever conducted an

15 investigation in Ovcara?

16 A. No, Your Honours.

17 MR. WEINER: We'd offer that document, Your Honour.

18 JUDGE PARKER: It will be received.

19 THE REGISTRAR: As Exhibit 586.

20 MR. BULATOVIC: [Interpretation] Your Honours.

21 JUDGE PARKER: Mr. Bulatovic.

22 MR. BULATOVIC: [Interpretation] You got there before I did. I

23 wanted to object to this document being admitted for purely formal

24 reasons. We don't know who produced this document, when it was produced,

25 why it was produced, who it was produced by. There is no seal on it. We

1 have nothing on that. We need to identify the document properly first and

2 see what it's about. Thank you.

3 JUDGE PARKER: His comments that will go to weight. It is

4 received in evidence, Mr. Bulatovic.

5 MR. WEINER: Thank you.

6 Q. May the witness be shown 65 ter 219, which is tab 7. It's a

7 letter to Slobodan Milosevic and General Adzic from Helsinki Watch, a

8 committee of Human Rights Watch.

9 Are you familiar with this document, sir?

10 A. I am, Your Honours.

11 Q. And could you tell us what it is?

12 A. Your Honours, this letter and the annex consists of an overview of

13 what U.S. Helsinki Watch describes as violations of the laws of war and

14 other war crimes committed by -- or allegedly committed by -- actually

15 it's called -- I'm sorry, "Human rights abuses by the Serbian government

16 and Yugoslav army forces."

17 Q. And is there any reference to the murders at Vukovar in this

18 document?

19 A. Indeed, Your Honours. On the page -- the English version ERN

20 0018-7370.

21 Q. That's page 7, sir.

22 A. Indeed. At the top of the page mention is made of alleged crimes

23 that were committed in Vukovar on or after the 18th of November. And I

24 don't know whether you wish me to read it out, or ...

25 Q. Could you read the paragraph out, please. It's only one

1 paragraph.

2 A. "The City of Vukovar was under constant siege by Serbian forces

3 for three months. When the city fell on November 18 --

4 THE INTERPRETER: Would you please slow down.

5 MR. WEINER:

6 Q. Would you slow down for the translators, please.

7 A. So "when the city fell on November 18, 15.000 people who were in

8 the fled from the fighting emerged from the basements in which though

9 lived for 12 weeks. After Vukovar's fall civilians and soldiers of the

10 combat were beaten or arrested by Serbian paramilitary groups and the JNA.

11 On the basis of interviews with displaced persons from Vukovar and foreign

12 journalists and humanitarian workers who visited Vukovar immediately after

13 its fall, Helsinki Watch has reason to believe that many Croatian men,

14 both civilians and combatants who had laid down their arms were summarily

15 executed by Serbian forces after Vukovar's fall.

16 Q. Sir, do you know whether the government of Serbia and Montenegro

17 responded to this?

18 A. Your Honours, in my report, second part, the English page 123,

19 subparagraph 3 between brackets, I mentioned the letter, the chief of

20 cabinet of president of Serbia, Milosevic, sent to human rights -- to

21 Helsinki Watch, acknowledging the reception of the letter and the report

22 attached to it. And this is based on 65 ter number 220.

23 MR. WEINER: We'd like to offer that document, Your Honour.

24 JUDGE PARKER: It will be received.

25 THE REGISTRAR: As Exhibit 587, Your Honours.

1 MR. WEINER:

2 Q. Sir, I'd like to move to an issue of town commanders. What was

3 the purpose of a town commander?

4 A. Your Honours, town commands are discussed in part 2 of my report,

5 English pages 109 to 100 -- I have to look. 119, I apologise. Based on

6 the documents from 1st Military District, OG South, and I mean by this

7 orders and reports dating from the end of September to end of November

8 1991 time period. And also instructions we obtained from the government

9 from Serbia and Montenegro in response to requests for assistance that

10 were drafted for this purpose, [Realtime transcript read in error "."]

11 town commands carried out all duties of administration and authority,

12 which would normally be carried out by civilian authorities.

13 And I apologise, but it's actually a continuation of the sentence,

14 so there should be a comma after "purpose" in the transcript. It's a bit

15 of a long sentence.

16 Q. And why are they needed, sir?

17 A. Because -- they are needed because in the conditions of war, I

18 mean armed conflict, and again I base this only on the documents that I

19 have been able to study, in particular the orders issued by Zivota Panic,

20 commander of the 1st Military District. Because there were no bodies of

21 civil authorities in the area of the zone of responsibility of OG South,

22 or according to Panic, no such bodies which were able to carry out his

23 powers, the military had to fill this gap. And we see for example that,

24 if I'm not wrong, in October, officers, including a security officer of OG

25 South, Vukasinovic, is appointed as a town commander. Vukasinovic, town

1 commander in Negoslavci. Now, after the fall of Vukovar of the 18th of

2 November we see that there is an -- additional orders being issued and for

3 example that Colonel Milorad Vojnovic is appointed commander of the town

4 of Vukovar.

5 MR. WEINER: May the witness please be shown 65 ter 933 and then

6 65 ter 934, which are tab 10 and 11.

7 Q. Are you familiar with these two documents, Mr. Theunens?

8 A. Indeed, Your Honours, I'm familiar with these two documents.

9 Q. And do they describe the duties of a town commander?

10 A. Your Honours, these documents actually describe the duties of the

11 organs for civilian affairs of a JNA command in the crisis areas. The

12 first 65 ter number 933 refers to the SSNO instruction 588-1, which dates

13 from the 27th of November, 1991.

14 And then the second one, 588-3, is actually a clarification of the

15 fourth point of 588-1. And dates, if I'm not wrong, from the 6th of

16 December. And they are discussed on the pages 115 to 119 in my report.

17 Q. And what are these documents discuss, just briefly what each one

18 mentions and discusses?

19 A. They discuss the importance of the establishment of bodies of

20 civilian authority, as well as the cooperation that the JNA has to show

21 towards these bodies, and before cooperation, of course, the assistance to

22 establish them, and that covers all aspects, not only authority but also

23 security; several times mention is made of the requirement to protect the

24 civilian population of abuses. It also mentions the role of town commands

25 in case there are no civilian authorities and related issues.

1 MR. WEINER: We'd like to offer both documents, Your Honour.

2 JUDGE PARKER: They will be received.

3 THE REGISTRAR: As Exhibit 588 and 589, Your Honours.

4 MR. WEINER:

5 Q. Sir, if there is a town commander and there are also military

6 units located within the town, is the town commander in command and

7 control of those units?

8 A. Your Honours, from a review of in particular the orders and

9 reports of the 1st Military District and operation group south, covering

10 the October/November time period, it is clear that there is the -- that

11 these are two separate issues. A town commander has no authority or no

12 command over the units there, unless they are his own units. Because from

13 what I've seen, town command is actually an additional function that an

14 officer will carry out in addition to his normal duties, unless it is

15 specified that he is replaced by somebody else for his normal duties. I

16 haven't seen a document where the fact of being a town commander is the

17 exclusive task of that officer, and I mean by this documents dating from

18 prior to the 23rd of November, 1991.

19 Q. Now, if there is a town commander and within the town an

20 evacuation operation is occurring, does that place the town commander in

21 charge of that operation?

22 A. I will try to be brief, Your Honours. As I mentioned earlier, the

23 orders and documents I have seen from the 1st Military District and OG

24 South in relation to town commanders do not mention any operational

25 responsibilities for these people, for these town commanders, and this

1 also includes evacuation operations. Again, going back to the doctrine,

2 which we discussed earlier, and talking about operations, there is no

3 requirement -- or it would make no sense for a town commander to be

4 involved or to become involved in an evacuation operation or any other

5 operation that is commanded by somebody else. Because this would actually

6 represent a violation of the principle of single authority.

7 Of course, if the commander, i.e. the person who is superior to

8 both the commander of the evacuation and the town commander issues any

9 particular orders, for example, for the evacuation commander to coordinate

10 with the town commander, then of course then there will be an exchange of

11 information or coordination between both. But -- but that doesn't mean --

12 I mean it's certainly not to be confounded with the town commander

13 becoming involved in command aspects of the evacuation operation.

14 Q. Now, sir, when is a town commander's function completed, or when

15 does his role as town commander end?

16 A. Your Honours, based on the documents of Operational Group South

17 and the 1st Military District, and I mean by this orders and reports, I am

18 not in a position to answer this question. However, Eastern Slavonia,

19 Baranja, Western Srem were not the only areas where town commanders were

20 established, and in my report there is a document included from -- that

21 applies to Western Slavonia, the town of Okucani, and this is an order by

22 General Talic, Momir Talic was the commander.

23 Q. Are you referring to 65 ter 937?

24 A. Yes, Your Honours.

25 Q. And that's tab 12, please. Tab 12 in your notebooks.

1 And what does that document indicate?

2 A. So this Momir Ordavir [phoen], and I see that there is an error in

3 the report. It says Furir Rekman [phoen], Krajina Corps, but it didn't

4 exist then yet. It should be the 5th JNA Corps. I apologise. Talic

5 states that "because the civilian authorities are operating and able to

6 carry out their duties, the town command can be disbanded.

7 MR. WEINER: Could we offer this document, Your Honour.

8 JUDGE PARKER: It will be received.

9 THE REGISTRAR: This document will become Exhibit 590,

10 Your Honours.

11 MR. VASIC: [Interpretation] Your Honours.

12 JUDGE PARKER: Mr. Vasic.

13 MR. VASIC: [Interpretation] I may be slightly late with this, but

14 I'm not sure what this document has to do with the territory covered by

15 the indictment. The document --

16 JUDGE PARKER: [Previous translation continues] ... it's not

17 tendered as a geographically relevant document, but I would understand is

18 an indication of what does happen.

19 Yes, Mr. Weiner.

20 MR. WEINER:

21 Q. Now, let's just get back to that document for a moment. That

22 order says, "The civil authorities of Okucani municipality, having been

23 fully established in discharging all their governing functions, thus

24 overriding the need for any further existence of the Okucani town command,

25 and they disband the town command."

1 Now, sir, what does that indicate to you?

2 A. Your Honours, it indicates, as I explained, that at least in

3 Okucani, which was from the purely conceptual point of view, if I could

4 explain it like that, quite similar to other areas in Croatia where an

5 armed conflict had taken place, that the order to disband, or that the

6 town command continues to exist, or it exists as long as there are no

7 civilian bodies who are able of carrying out the tasks of civilian

8 authority and administration in that area.

9 Q. Thank you. Can we move to our final issue. Personnel records.

10 In 1991 do you know whether the JNA maintained personnel records for its

11 soldiers?

12 A. Yes, Your Honours, like any armed force I'm familiar, the JNA

13 maintained personnel records for its personnel. So not only soldiers, but

14 also non-commissioned officers and offices.

15 Q. We're going to be dealing with the next three tabs. And let's

16 start with tab 13, which is 65 ter 455.

17 Can you tell us what this is?

18 A. Your Honours, this is an except of the personnel file or personnel

19 records of Mile Mrksic. And this one, this excerpt or this section deals

20 with the assignments he held as an officer in the JNA and subsequently the

21 VJ.

22 Q. Could you please tell us about his assignments in relation to the

23 Guards Motorised Brigade as indicated on this document?

24 A. From page 2, actually, the second page, it is obvious that Mile

25 Mrksic served already from 1968 in the -- in what was called then the

1 guards brigade, and he continued to be assigned to the guards brigade

2 until the 30th of June, carrying out different duties.

3 Q. What positions did he hold between July 1999, 2000 and June 30th,

4 1992?

5 A. Your Honours, according to the entries on page 5 on the English

6 translation, Mile Mrksic with a rank of colonel was commander of the

7 Guards Motorised Brigade. The A stands for the level of -- I would call

8 professionalisation. There were three levels of unit, A, B, C, whereby A

9 has the most professional, C the least as to mobilisation, on the 11th of

10 December, 1991, Mile Mrksic is promoted major-general but remains

11 according to his records commander of the Guards Motorised Brigade. On

12 the 30th of June, 1992, Major-General Mile Mrksic is command -- is

13 appointed commander to the corps special units, [B/C/S spoken], KSJ, which

14 was a newly-established -- I wouldn't call unit, but corps, established

15 in -- sometimes in -- I think in June or July 1992. Consisting of a

16 number of, call it, elite units like the 63rd airborne brigade or

17 parachute brigades, the 72nd, I think, assault and strike brigade, if I'm

18 not wrong. There was also a particular protection regiment, as well as

19 the guards brigade. So the guards brigade is included in this special

20 forces corps, KSJ, and Major-General Mile Mrksic remains commander of the

21 special forces corps, according to this entry in his records, until the 16

22 of September 1993.

23 Q. There doesn't appear to be any mention of Operational Group South.

24 Why is that, if you know?

25 A. Your Honours, I wouldn't know so. All I can say is that when I

1 looked through these records, on another page which is further on,

2 actually, it's -- it bears the number 5, but I don't -- I'm not sure you

3 will find it. It's actually 0422-2854. It says that it's a descriptive

4 assessment of the way how Major-General Mrksic accomplished his duties. I

5 don't know whether it's visible for all of you, but in the second

6 paragraph it says that the, "In the Vukovar operation 1991 he" -- i.e.

7 Mrksic, "commanded the Operative Group South." So my understanding is

8 that these temporary assignments are not included in the first section of

9 the document we discussed, but will be included in other locations.

10 MR. WEINER: Could we offer that document, Your Honour.

11 JUDGE PARKER: It will be received.

12 THE REGISTRAR: As Exhibit 591, Your Honours.

13 MR. WEINER: Could we look at 65 ter 456 which is tab 14.

14 Q. And what are these records, sir?

15 A. Your Honours, these are the -- this is an excerpt of the personnel

16 records for Veselin Sljivancanin.

17 Q. And when does it indicate he was a member of the guards brigade,

18 Guards Motorised Brigade?

19 A. When we go to the page 0361-8848. It mentions the guards brigade,

20 and the earliest date I can find there is 1972. But I think more relevant

21 in the context of my report is that Sljivancanin, or Veselin Sljivancanin

22 as a major was commander of the 1st military police battalion of the

23 Guards Motorised Brigade from 1988 or 1989, and there are other duties.

24 And then he is head of the security organs from the 12th of August 1991.

25 In the record it says PPK, which stands for [B/C/S spoken],

1 lieutenant-colonel. But my understanding is that he was only appointed

2 end of November lieutenant-colonel. And this is on the page 0361-8849.

3 He -- he stays in the guards brigade until the -- at least the

4 18th of October, 1993. No, excuse me, until the 5th of October, 1993, I

5 apologise. 5th of October, 1993. Whereby, after having been chief of the

6 security organs or assistant commander for security, he is appointed

7 Deputy Commander or Chief of Staff of the guards brigade and as it

8 mentions at the bottom of the page, guards brigade being a unit of the

9 corps for special units of the VJ. And the date for this start of this

10 assignment is the 2nd of September, 1992.

11 MR. WEINER: May we offer that, Your Honour.

12 JUDGE PARKER: It will be received.

13 THE REGISTRAR: As Exhibit 592, Your Honours.

14 MR. WEINER:

15 Q. And finally, sir, 65 ter 457, tab 15. Could you tell us what this

16 document is?

17 A. Your Honours, this is -- again this is an excerpt from the

18 personnel record of Miroslav Radic. But I don't think it's the right one

19 to be able to draw conclusions as to the duties he accomplished in 1991.

20 We should have another section for that.

21 [Prosecution counsel confer]

22 MR. WEINER: One moment, please.

23 MR. BOROVIC: [No interpretation].

24 JUDGE PARKER: Mr. Borovic.

25 MR. BOROVIC: [Interpretation] I'll try to react in a timely manner

1 this time around. The document that we have on our screens now, 03618369

2 was one of the documents on the 65 ter list. The other document that the

3 expert has referred to, is probably the document that ends with the

4 following two digits: 90. This was served on us this morning. It's a

5 military document, but it was not on the 65 ter list. And no additional

6 explanations were offered. We have not had sufficient time to familiarise

7 ourselves with this. But we do not wish to nitpick all the same. Can

8 this be just evidence, please, and not actually evidence [as interpreted]?

9 The dead-line should have been a lot of earlier, but it is not my

10 intention to object anyway. Anyway, the 65 ter list, this other document

11 that the witness has spoken about was never there.

12 MR. WEINER: Your Honour, it was the wrong pages within the Radic

13 personnel file. The correction pages were disclosed on June 15th, 2006.

14 And the correct number is ERN is 0361-8390.

15 JUDGE PARKER: Are you saying these are the correct pages, the

16 earlier ones were the wrong ones, but both come from the same source

17 document?

18 MR. WEINER: That's correct, Your Honour.

19 JUDGE PARKER: Which is the personnel record.

20 MR. WEINER: Yes.

21 JUDGE PARKER: In those circumstances, Mr. Borovic, this will be

22 received.

23 THE REGISTRAR: As Exhibit 593, Your Honours.

24 MR. BOROVIC: [Interpretation] Your Honours, this was disclosed to

25 us some hours ago. The dead-line for all military documents is normally

1 48 hours, and the same thing should apply to this one, too, this is an

2 entirely different document and an entirely different photograph and an

3 entirely different personnel file. But if the Chamber is pleased ...

4 JUDGE PARKER: Mr. Borovic, if you think the photograph is of

5 another officer, when you cross-examine tomorrow we can discover that.

6 The other information in there ought to be known to your client in a

7 flash, if it's his personal record. So I do not imagine that you would be

8 embarrassed by the document if it really is his record. If it's not, that

9 can emerge from cross-examination.

10 MR. WEINER:

11 Q. Sir, can you tell us when the defendant Radic was a member of the

12 guards brigade, according to his personnel records?

13 A. I don't have the document in front of me. It's difficult for me

14 to read from the monitor, but at least I know on the page 0361-8393 --

15 MR. WEINER: One moment. One moment. Thank you.

16 THE WITNESS: [Interpretation] So at the page 8393 this gives an

17 overview of the military career and the assignments held by Miroslav

18 Radic, and according to the top entry he joined the Guards Motorised

19 Brigade in 1985. In any event, according to this document in -- on the

20 24th of May, 1990, and this is the -- the fifth line, Radic became

21 commander of the 3rd motorised company in the 1st motorised battalion of

22 the Guards Motorised Brigade. And he held that post until the 15th of

23 July, 1992. Whereupon, on the 16th he became Deputy Commander of the 1st

24 Military Police Battalion of the Guards Motorised Brigade. And then the

25 next entry, which refers to the 25th of August, 1992, Radic still Deputy

1 Commander of a military police battalion, but this time in the 46th

2 regiment for security in the corps for -- for special units of the VJ, so

3 the unit which is under the command or the corps which is under the

4 command of Major-General Mrksic until summer 1993, but it's not clear from

5 the record here how long Radic [as interpreted] stays in the 46th regiment

6 or protection regiment -- excuse me, the 46th protection regiment in the

7 corps for special units.

8 MR. WEINER: We'd like to offer that, Your Honour.

9 JUDGE PARKER: It has already been received, Mr. Weiner. Exhibit

10 593.

11 MR. WEINER: Thank you. [Microphone not activated].

12 THE INTERPRETER: Microphone for Mr. Weiner, please.

13 JUDGE PARKER: Hold on, Mr. Weiner. Thank you very much. You're

14 3.31.

15 We'll now [Microphone not activated].

16 --- Recess taken at 3.31 p.m.

17 --- On resuming at 3.50 p.m.

18 JUDGE PARKER: Mr. Vasic, we'd better wait for your clients and a

19 witness. So I won't start the clock running now.

20 [The accused entered court]

21 [The witness entered court]

22 JUDGE PARKER: Mr. Vasic.

23 MR. VASIC: [Interpretation] Thank you, Your Honour.

24 Cross-examination by Mr. Vasic:

25 Q. Good afternoon, Mr. Theunens. I hope the interpreters can hear me

1 well. It seems that the mic is a bit too far away, but I'll try to

2 proceed carefully.

3 Mr. Theunens, based on your CV, I can see that you are commander,

4 third class [as interpreted], in Belgium. Could you describe it to us in

5 terms of the JNA system, could you give us the equivalent in the JNA

6 system?

7 MR. VASIC: [Interpretation] Mistake in the transcript. I said

8 that Mr. Theunens was commander OE 3. OF 3.

9 A. Your Honours, the rank is commandant which a rank between captain

10 and major. The OF 3 stands for the NATO equivalent because I understand

11 in most western militaries there is not such a rank as commandant, except

12 maybe in the navy, but then you're talking about somebody who is much more

13 senior.

14 Now, I wouldn't dare to draw an equivalent to the JNA, because I'm

15 well aware that there were captains first class in the JNA. But my

16 understanding of comparing the JNA to any other -- any NATO military would

17 be that the JNA was very much of a top-down system, whereby lower ranking

18 officers, like lieutenant, captain or maybe a captain first class, would

19 certainly not be encouraged to make as such initiative as is the case in

20 NATO militaries. But to come back to the Belgian system, even though it

21 is equivalent to a NATO major, I mean the rank of commandant, it is still

22 a junior officer rank whereby -- in Belgium at least whereby the next rank

23 major is considered a senior officer rank. So I don't know whether this

24 clarifies enough for you.

25 Q. Yes, thank you, Mr. Theunens. Based on your CV, I can see that at

1 one point you started working for the intelligence and Security Service of

2 the Belgian army; is that right?

3 A. That is correct, Your Honours. I was actually appointed to start

4 to work there. It was not my own choice.

5 Q. I didn't say it was by your own choice, but I'd like to know what

6 tasks you had within that service from 1992 onwards when you stayed in the

7 territory of the former Yugoslavia?

8 A. I don't understand the question, because according to the

9 transcript it seems that I stayed in the former Yugoslavia since 1992,

10 which is not correct. So could you please clarify.

11 Q. Thank you. Perhaps I made a mistake. Did you perhaps stay in the

12 former Yugoslavia from 1994 on? Is that correct?

13 A. Okay, thank you for the clarification now. I started to work in

14 the Belgium intelligence security service in 1992 as an intelligence

15 analyst. When I was sent to the UNPROFOR headquarters in Zagreb in 1994,

16 I started to work there as a military information officer, and it is

17 obvious that while working for the United Nations, I did not maintain any

18 contacts except for administrative purposes with my previous office. I

19 was in Zagreb as a UN officer, and not as a Belgian officer. And the same

20 applies to my mission with UNTAES in Vukovar from July 1996 to April 1997.

21 Q. Thank you for this clarification, Mr. Theunens. Please tell me,

22 throughout this period of time, did you also send reports to your

23 intelligence service back in Belgium?

24 A. Your Honours, there is a law on secrecy in Belgium, and I mean my

25 CV, I think, is very brief on what I did in Belgium. I don't mind

1 answering the question, but I'm not supposed to provide these answers to

2 people who are not the right to have these answers, so it puts me in a

3 problematic situation.

4 JUDGE PARKER: Will you be able to answer yes --

5 THE INTERPRETER: Microphone, please.

6 JUDGE PARKER: -- to that question.

7 THE WITNESS: [Interpretation] The answer would be yes.

8 JUDGE PARKER: Thank you. I think that's enough for your

9 purposes, Mr. Vasic.

10 MR. VASIC: [Interpretation] Certainly, Your Honours. Thank you.

11 Q. Based on CV I can see that at one point in 1998 and 1999 you were

12 also head of an intelligence cell within the Belgian service covering the

13 territory of Bosnia and Herzegovina and Serbia.

14 A. I think, Your Honours, the information in my CV is clear, it was a

15 national intelligence cell with the SFOR headquarters, and I can mention

16 what is there. If there -- I don't -- I mean, if there is a good -- a

17 requirement for more information, I would prefer to have that in closed

18 session. But I feel -- I mean, the formulation of the question is not

19 exactly a reflection of what I did. I think what is in my CV is a more

20 correct reflection.

21 Q. Thank you. You said that in 2001 you became a full-time employee

22 of the OTP here in The Hague; is that correct?

23 A. That is correct, Your Honours, but I'm still a member of the

24 Belgian armed forces, i.e. I have been seconded to the ICTY.

25 Q. Thank you, Mr. Theunens. However, when you came here, when you

1 were hired by the OTP, you had to sign a contract stating that in

2 consideration for certain remuneration you were to provide services within

3 the military analysis team; is that right?

4 A. Your Honours, the way how this question is formulated depicts -- I

5 mean, depicts me as some kind of a mercenary or so. I have been hired by

6 the ICTY, by the OTP, to do a certain job, which is in accordance with the

7 job description I have received. And this consider -- this covers mainly

8 military analysis. I -- "provide services", for me, has a negative

9 connotation.

10 Q. Mr. Theunens, none of us here are mercenaries, naturally all of us

11 work for money. I just wanted to establish whether you are on the payroll

12 of the OTP or whether you are being paid by the Belgian army.

13 A. I'm paid by the OTP, but how naive it may look, money is not my --

14 the only motive in my life, and certainly not the only motive to be here.

15 Q. Thank you. By coming to the OTP you also accepted to support the

16 activities of the OTP aimed at prosecuting individuals who had committed

17 war crimes which feel within -- which fall within the jurisdiction of the

18 Tribunal?

19 A. I mean you -- aimed at prosecuting individuals who had committed

20 war crimes. I mean, I'm not a lawyer, but it first has to be proven

21 whether they have committed war crimes or not, and of course I'm requested

22 to -- to collect and analyse information, but I see it more as a job in

23 the assistance of justice than merely the prosecution of individuals. Of

24 course I work for the OTP, but as you will see from this report, and also

25 from the requests that were sent to Serbia and Montenegro, the main

1 purpose of the report is to describe a particular aspect, in this case the

2 activities or the operations of Operations Group South, and it's up to the

3 people who use this report, be it in the Prosecution, the Defence or the

4 Honourable Judges, to see what they will do with it.

5 Q. Thank you, Mr. Theunens. When signing the contract to work with

6 the OTP, you also accepted a duty not to reveal any secrets that you learn

7 of when working for the OTP, especially not those secrets that could

8 compromise the basic line of work of the OTP; is that correct?

9 A. I think there is -- I mean two aspects to this question. What

10 kind of secrets are you talking about? It's obvious that I'm not -- I

11 will not discuss certain -- I mean, the procedures of our work with people

12 who have no need to know, but on the other hand, looking at the other

13 aspect, what I understand is your question, if, for example, I come across

14 material known as Rule 68, it is my duty to not only -- not only inform

15 the legal staff in my team about it, or in the case team I'm working in,

16 but also make sure that this material is made available to -- yeah, to

17 those interested, including the Defence. So I'm not so clear what you

18 mean by "secrets."

19 Q. Thank you, Mr. Theunens. Does this mean that in a situation where

20 you learn of some material which falls under Rule 68, if somebody were to

21 put a question to you pertaining to that, you would be able to disclose

22 that information even though such material had not yet been closed to the

23 Defence by the OTP?

24 A. I'm not sure I understand your question. I mean when I -- let's

25 take the request for assistance that was sent -- that have been sent to

1 Serbia and Montenegro since 2002. Whenever we get a reply, it first has

2 to be put in the system that takes maximum a week, then it is disclosed, I

3 don't have to wait for question from somebody, I inform, I notify the

4 legal team, the lawyers on my team that this and this material has

5 arrived, I need to look at the material with a language assistant, but

6 independent of the context -- of the contents, it will be disclosed, and

7 certainly, if it's Rule 68. So I don't understand your reference that I

8 have to wait for a question.

9 Q. Let me clarify it for you. If I were to ask you, what would you

10 do in a situation where here, under oath, you were supposed to state in

11 front of the Trial Chamber what you know about exculpatory material in a

12 situation where such material has not yet been disclosed to the Defence by

13 the OTP. That's my question.

14 A. And do you mean by this material discovered by me or related to me

15 or what is the purpose?

16 Q. Material about which you, as an employee of the OTP and an expert,

17 know something?

18 A. I must say I -- I mean material I'm familiar with which could be

19 considered Rule 68 will be disclosed. I -- there would be no alternative.

20 And I mean by material, documents, because I mainly deal with documentary

21 evidence, whereby it's in my responsibility to, based on the taskings I

22 have received from my team leader or the senior trial attorney, to

23 identify such material within the evidence that is available at the OTP,

24 or by writing request to, in most cases for this particular situation,

25 Serbia and Montenegro, or any other country or organisation that may have

1 the information we are interested in.

2 Q. Thank you. I wanted to ask you this: Within the scope of your

3 work, you work as an analyst within a service within the OTP. So

4 therefore, within that framework, is your work guided by the findings you

5 receive from a prosecutor on your team, or are you independent in your

6 research?

7 A. Actually, I mean I would -- I would hope to be entirely

8 independent, and I mean by that, that I would have access to all

9 information that was available in 1991 and that was produced in relation

10 to these events, and I mean by this, mainly military documents. But the

11 main handicap I have had since starting this report and that was sometime

12 in 2003, there have been interruptions, was the lack of assistance, or the

13 lack of response from Serbia and Montenegro to requests we sent, requests

14 for documents, both orders as well as reports by the 1st Military District

15 and Operational Group South. And again, if you want, I can give you

16 detailed overview of the material we requested, which clearly covered Rule

17 68 aspects, but where we were -- said it doesn't exist, even though it had

18 been present at other times by other parties in the trial. Now, coming

19 back to the Prosecutor, the Prosecutor asks me questions, he can give me

20 taskings, but he will not -- or he cannot order me what to write. Because

21 that's -- I mean, maybe I can explain the analysis -- the intelligence

22 cycle and also describe how analysts work, but in a nutshell, an analyst

23 looks at information, collects information, analyses it, and then comes

24 with conclusions. It's not the opposite, it's not that there is a

25 conclusion and then there is a task or methodology, I wouldn't call it

1 methodology, but kind of manipulation to select the information that suits

2 the conclusion. I think it would be very unprofessional to work like

3 that, and since having worked -- I have worked as an analyst since 1992,

4 I've never received such a tasking, i.e. to come with information that

5 supports certain pre-conceived ideas, and I haven't received such a

6 tasking here either; on the contrary.

7 And I would invite you to, if you really -- I mean, looking at

8 your question, to look at the report and to look at sections which are not

9 supported by official documentation, be it from the JNA or the SFRY or

10 other documentation from parties that were involved on the JNA side in the

11 conflict in Vukovar in 1991.

12 Q. Thank you, Mr. Theunens. Before compiling your expert report,

13 Mr. Theunens, were you actively included in giving advice, were you

14 actively involved in giving advice to the Prosecutor when the indictment

15 in this case was drafted? And amended.

16 A. Your Honours, the initial indictment, I think, dates from 1996. I

17 arrived in 2001, but it is correct that I was involved in the drafting of

18 amendments to the indictment whereby my involvement was limited to giving

19 military advice, which consisted of making sure that the terminology,

20 military terminology that was used was correct and accurate reflection of

21 the evidence we had. It is obvious, because I am not a lawyer or a

22 jurist, I did not get involved in legal aspects.

23 Q. Mr. Theunens, can you tell us whether, within your research, while

24 preparing this expert report, you came across some relevant material that

25 could be used under Rule 68, but you chose not to include it in your

1 expert report?

2 A. Your Honours, the report was closed in August or was finished in

3 August 2005. The material -- Rule 68 material that was discovered before

4 was disclosed and/or included in the report. It could well be that Rule

5 68 material that was discovered then was just disclosed but not included

6 in the report. That's possible, because there are certain limitations to

7 the report. For what material is concerned that was obtained after August

8 2005, obviously the report was closed, it was not included in the report,

9 but as far as I know it was disclosed. When I say "as far as I know," I

10 mean by that that I informed senior trial attorney and the case manager

11 about the contents of the material, i.e. that it was Rule 68 and the

12 requirement to disclose it. I admit that I have not verified that it was

13 disclosed, but there's only so much one can do.

14 Q. Thank you, Mr. Theunens. You mentioned certain limitations. Can

15 you tell us what they entail, what kinds of limitations existed when this

16 material was included in your expert report. I'm now referring to the

17 material you mentioned dating from August 2005.

18 A. The biggest limitation I noticed, and that's actually included in

19 the last page of the section, "Scope and overview" of the report is that a

20 number of documents that we considered relevant for the preparation of

21 this study, and were therefore requests from Serbia and Montenegro and I

22 mentioned reports from the previous years, the requests were from 2002,

23 they were not available at the time of the filing of this report. I want

24 to emphasise is among these documents is what I would assume are Rule 68

25 material because we requested for example, reports by then Colonel Mrksic

1 about the disciplinary situation with the volunteers. We requested

2 reports by the security organs of the Guards Motorised Brigade

3 including -- so, OG South, not only Major Sljivancanin, but also

4 Major Vukasinovic, Captain Karanfilov, other officers of the security

5 organs. And we were said such reports do not exist. We requested the

6 personal notebooks of Colonel Mrksic, Major Sljivancanin and Captain

7 Radic, we receive as reply these documents do not exist in the archives of

8 Serbia and Montenegro, nor in the archives of the guards brigade. Whereas

9 based on the information obtained from other JNA officers or former JNA

10 officers, we know that such documents should be in the archives.

11 Now that, I must admit, was a frustrating thing because I believe

12 that the work of the ICTY is about justice, it's not about winning trials

13 at any price, because otherwise I wouldn't be here. I mean, an

14 intelligence analyst looks at information, and the more information he or

15 she has, the better job he or she can do. It's as simple as that.

16 Q. Thank you, Mr. Theunens. Tell me, please, what kind of

17 limitations existed in relation to this material that you received in

18 August but did not include in your expert report?

19 A. There is no specific limitation to -- I mean whether we received

20 it in August or not, as an analyst you're making a selection of material,

21 not a selection to arrive just at stuff that is handy to have because it

22 would have been disclosed to you anyway. So if I would have been

23 extremely selective, in a sense that I would only include, between

24 brackets, incriminating information, I'm pretty sure that you would

25 highlight it during your cross-examination, so I think when you go through

1 the report there is no indication whatsoever of such a selection. It is

2 true, but I wouldn't consider the limitation that this report does not

3 talk about the activities of the Croatian side, because - why? - well,

4 it's not a conflict analysis; it is a study of Operational Group South.

5 I mean, the information that was obtained after August 2005, it

6 was envisaged to prepare some kind of an addendum, but because of the

7 unpredictable nature of the timing of receiving this material, normally

8 request for assistance, there are 30 days to reply. There are documents

9 you obtain with two years delay. Some -- we still obtain documents like

10 the 18th of May. The first ever document we received which is drafted by

11 Major Sljivancanin, even though the first requests dates from the 6th of

12 December, 2002, therefore, for those reasons, it was decided not prepare

13 an addendum, but to disclose these documents upon their arrival, and also

14 to tender them during my examination. So I'm not aware of any other

15 limitations.

16 Q. Thank you very much, Mr. Theunens. Just to wrap up this

17 particular set of questions. Who do you answer to for the quality and

18 effectiveness of your work with the OTP?

19 A. Within the military analysis team there is a team leader, and

20 obviously he is kept aware of the quality or the lack of quality of my

21 work through his contacts with the senior trial attorneys I work for.

22 Since my -- since the start of my work at the ICTY or at the OTP, I've

23 worked for several cases, and so I understand or I assume that the team

24 leader has contacts with the senior trial attorneys that are responsible

25 for those cases. Now, I'm just -- to continue, I'm not very clear what

1 you mean by the word "effectiveness." What do you mean by the

2 word "effectiveness" of my work?

3 Q. Thank you for asking this. I'm glad to clarify. Every job

4 requires certain qualifications to do well. Another thing is, to put

5 these qualifications to some good use in the most effective way in the

6 shortest possible time for the greatest possible effect.

7 A. I mean such a definition would, in my view, apply to a salesman or

8 something -- somebody, who at the end of the month has to come with his

9 sales figures. I think it's very hard to measure the effectiveness of the

10 work of -- of people who are not in an economic or another sector or in a

11 trade sector or something. Yeah, I mean there's not much more I can add

12 to this.

13 Q. Thank you very much, Mr. Theunens. Everybody keeps reminding us

14 here in this courtroom of the importance of being effective, especially

15 time effective. Starting with the Chamber and then on to the registrar.

16 That is why I wanted to ask you about being effective.

17 Let's move on to something different now. I now want to move on

18 to your report. In the introduction to your report, you state the

19 methodology that you used in producing this report. That is on page 1,

20 right? You had the opportunity, when creating this expert opinion, to

21 attend witness interviews, to talk to some of the witnesses, and during

22 these interviewing and proofings to be actively involved. In some cases

23 you saw statements that were given to OTP investigators. Would that seem

24 to be a fair assessment?

25 A. It's correct, Your Honour. But maybe it's a translation issue,

1 but I don't think this is an expert opinion. I don't express opinions in

2 this report. This report is an overview of documentation and analysis of

3 documentation, whereby the nature of the documentation has been explained

4 in the introductory section of the report, i.e. SFRY legislation, military

5 orders and document -- and reports from the SSNO, 1st Military District

6 and OG South. And also some open-source material, both from official

7 sources like the SSNO, as well as from other parties that were involved in

8 the conflict on the side of the JNA, if I could describe it like that. I

9 may be not very effective with these long answers but I wanted to clarify

10 that. It is correct that I have been involved in witness interviews in

11 proofing sessions, I have also sat here in court when military witnesses

12 testified. But there is not one entry in this report that is based on

13 witness statement. And that's also clearly indicated in the introductory

14 section.

15 Q. I fully agree with you, Mr. Theunens. As far as this is

16 concerned, as far as the fact is concerned that you do not invoke any

17 witness statements or anything that you heard during interviews that you

18 may have attended. However, while producing this report you did use

19 information that you learned at trials, and thus perhaps indirectly you

20 included such information in your report.

21 A. Your Honours, the only information in relation to trials I include

22 in this report is a reference to the Belgrade special court Ovcara trial,

23 whereby I -- I think I mentioned a reference to the indictment there, but

24 just to list names of the people who were indicted and that's somewhere at

25 the end of my report, the second part, on the pages 100 -- on page 128 of

1 my report, but unless I have forgotten something, I'm not aware of any

2 other reference to a trial in my report.

3 Q. Thank you. Just to be crystal clear about this, can you please go

4 to page 3 of your analysis, the heading is, "Overview." The first

5 sentence of the last paragraph on that page, page 3, under the

6 heading, "Overview." This is at the beginning of your report. Have you

7 got that, sir? This is -- it starts on page 2, the heading "overview,"

8 and then if you could please turn the page, go to page 3, and then the

9 last paragraph, the first sentence, you give us the basis for your

10 analysis here. Could you please read the relevant portion out to us, sir.

11 Thank you.

12 For the interpreters, again page 3 of the introduction in the

13 B/C/S, last paragraph, first sentence.

14 A. I hope I have the right sentence, but it reads as follows: "This

15 analysis is based on a study of documents in possession of the OTP with

16 the exception of witness/suspect statements and court testimony." So the

17 exception covers both witness and suspect statements, as well as court

18 testimony. Do you want me to continue or ...

19 Q. No, thank you. That was precisely the reason I asked you the

20 question. You said that no witness statements were used for your report.

21 But you do not exclude the possibility of using the substance of what you

22 learned at various trials or witness proofings or interviews. You do not

23 rule out the possibility that you used the substance of what you may have

24 heard for your report. Would that seem to be a fair assessment?

25 A. Your Honours, that's an incorrect assessment, because the

1 reference is the footnote in the report all refer to -- to documents, and

2 I've described the -- the type of documents. Discussing witness

3 statements, I think it has been very useful for me to be present at

4 interviews of witnesses, because you know as well as I do that this

5 included also Defence witnesses, and I don't think that these people had

6 any particular interest in coming up with a version that would be

7 particularly favourable to the OTP or express any other bias. I think it

8 really assisted me in -- in understanding the functioning of the JNA, SFRY

9 armed forces and OG South in a better way. And it also guided me in

10 identifying material that was useful for the report. But again, these

11 were -- most of these witnesses were actually Defence witnesses, so I

12 don't think that there is a problem with that.

13 Q. Just one clarification, please. You say these were Defence

14 witnesses. Does that mean that you spoke to them as Defence witnesses?

15 A. Your Honours, I have said it included Defence witnesses, and these

16 Defence witnesses were interviewed as any other witness is being -- is

17 interviewed. So there were no particular, as far as I know, conditions.

18 I do remember that when some of these witnesses were interviewed that I

19 think it was in 2003 it happened in the VJ Dom, there was also an observer

20 of the VJ present, but she left after two days. So that's the only

21 particularity, I mean -- I mean, I can mention about these interviews.

22 Q. Thank you. I would now like to ask you to look at page 2. The

23 same reference in the B/C/S. This is the page under the

24 heading, "Overview." Fourth paragraph. You talk about the application of

25 the rules in the armed forces of the SFRY in connection with the

1 international laws of war. Do you mean about the rules that actually

2 existed in writing, or which rules are you referring to here? Were there

3 any rules or regulations that applied to a situation of armed conflict,

4 regulation that is were actually being used back in 1991 that applied?

5 A. Your Honours, as you will see in section 7 of part 1 of the report

6 starting on page 122 until I think it's 128, excuse me, 147, actually.

7 There were several regulations within -- that applied to the SFRY armed

8 forces in 1991 which established the obligations of the SFRY armed forces

9 to abide by the laws of armed conflict and the customs of armed conflict.

10 First of all, there are articles in the 1982 All People's Defence law

11 which make it mandatory for any member of the SFRY armed forces to abide

12 by these regulations. We discussed earlier in examination Article 53 of

13 the 1985 law on the service in the armed forces. There is also Exhibit

14 396, the 1988 regulations on the application of international laws of war

15 in the armed forces of the SFRY. There may be other regulations, but at

16 least those are the ones I used, together with the laws on military courts

17 and military prosecutors, I used to draft this report, in particular

18 section 7 of the first part.

19 Q. Thank you. We'll return to some of these laws at a later stage,

20 but now I understand what is at stage. In the next chapter of your report

21 you say that you were given the task to compare the situation that

22 preceded the armed clashes in Croatia in order to show the evolution of

23 tasks pertaining to the armed forces of the SFRY during the conflict in

24 Croatia, the intention being to show that the operations to take Vukovar

25 were part of a more general framework of JNA operations in the summer and

1 autumn of 1991. Is that true, sir?

2 A. It may be a translation issue, but I was not given the task to

3 compare the situation. I actually decided that myself, and I will express

4 myself in a better way. I believe that the regulations that have been

5 discussed in part 1 of the report, which describe the theoretical

6 framework, assist in understanding what the SFRY armed forces are, what

7 they were doing, what they were not doing, and to which regulations, or

8 which regulations they were bound to follow, in particular when it comes

9 to the application of the laws and customs of war. Part 1 should also

10 assist in understanding how command and control were exercised in the SFRY

11 armed forces.

12 Part 2 then tries to analyse how all these regulations were

13 implemented, and it is correct that the first section in part 2 discusses

14 the evolution of the mission and objectives of the SFRY armed forces

15 during the conflict in Croatia. Because I had the understanding or I came

16 to the understanding as an analyst when looking at all the material, that

17 based on the sources I reviewed, the SFRY armed forces did not implement

18 the mission as it had been defined, for example, in the 1974 constitution

19 and the 1982 All People's Defence law. During the conflict in Croatia,

20 more specifically or in particular during the latter half of 1991.

21 Q. Thank you, Mr. Theunens. We'll come that later about the

22 commission and the constitutional powers of the JNA. In order to carry

23 out such a comprehensive analysis and in order to carry out this task,

24 which you explained a moment ago, you had to have an overview across the

25 whole territory that your report was to refer to. This would have been a

1 prerequisite for any conclusions that you may have drawn, right?

2 A. That's correct, Your Honours. I mean I -- as you -- as I

3 mentioned earlier, I testified in the Milosevic case in 2004, and the

4 tasking I had received for the report I had to compile for that case

5 obviously looked at the entire territory of -- of the Republic of Croatia,

6 but also to Bosnia and Herzegovina. So I had knowledge about the aspects

7 of the conflict relevant for this report from my work for that case.

8 Q. Thank you very much, Mr. Theunens. When did the armed clashes

9 first erupt in the Republic of Croatia then, and which precise parties

10 were involved? Who started this?

11 A. Your Honours, maybe I should have explained that when I discussed

12 my report for the Milosevic case, I have never been tasked to put together

13 a conflict analysis whereby origin and causes and similar aspects would be

14 investigated and analysed. My task for -- in the Milosevic case consisted

15 of identifying the forces that were involved on the JNA side in certain

16 geographic areas in Croatia, as well as the relations between the forces

17 that were involved in the geographic areas and the JNA, both from the

18 command and control aspect, as well as from logistical and other aspects

19 covering the time period from 1991 until May 1992. I've come across

20 information on -- on origins and cause of the conflict, but that was not

21 subject of my analysis and it's not part of my report.

22 Q. Thank you. A while ago you said that in your opinion the JNA did

23 not act in compliance with the powers granted it by the constitution, and

24 the relevant laws. My question to you is, how could you have drawn a

25 conclusion like that on the role and position of the armed forces without

1 first familiarising yourself with the chronology of the events in the

2 territory where these armed forces were operating, you don't know who was

3 fighting who. You didn't know who the aggressor was, you didn't know how

4 the conflict first started. In the absence of all these facts and all --

5 and this particular knowledge, how can you be in a position to assess the

6 intentions of a party to this conflict?

7 A. Your Honours, I think it's -- it's slightly misleading to describe

8 this as being my opinion. As you see in section 1 of the -- the second

9 part of the report, evolution of the mission and objectives of the SFRY

10 armed forces, an important part of that section discusses the book of

11 Veljko Kadijevic. Of course, from an analytical point of view it would be

12 preferable to have the authentic documents instead of a book, but I wish

13 to remind the Trial Chamber that Veljko Kadijevic was the then, through

14 1991, federal secretary for people's defence, which can be compared to a

15 minister of defence whereby he had much wider competencies than a minister

16 of defence -- it's -- maybe even would have. And it is exactly Kadijevic

17 who describes the change in the mission and all the other aspects that

18 Mr. Vasic has attributed to me.

19 So what I -- I only quoted Kadijevic and tried to find JNA

20 documentation that corroborated or first of all JNA documentation on those

21 events to find out who was right. And this is then reflected in the first

22 section of my report. So it is just a reflection of official

23 documentation and Kadijevic's book. It's not my opinion.

24 And I wish to add - sorry - also statements Kadijevic and Adzic

25 made during that time period, public statements, which were published

1 as -- as official points of view of, in this case, Kadijevic, the Chief of

2 Staff of the Supreme Command.

3 Q. When talking about Mr. Veljko Kadijevic's book, or any statements

4 that he made, my belief is precisely that his book was not tantamount to

5 evidence under oath. This was, after all, a man who was never called to

6 testify anywhere, wasn't it?

7 A. Your Honours, I'm not aware whether Kadijevic or Adzic ever

8 testified about what happened or didn't happen, but if a minister of

9 defence publishes a book which is a clear reflection of his

10 professional -- by the contents of the books is a reflection of his own

11 activities and knowledge of 1991, together with the statements Kadijevic

12 made during that period -- time period, and there is for example in my

13 report a statement which is from the 3rd of October, 65 ter number 506,

14 which is quoted on page 16 in the English version. These are official

15 points of view of a senior official who was extremely well-placed to have

16 such views. So in the official statements, I think that they have quite

17 some weight, when one has to analyse the events of the time.

18 Q. Yes, but will you agree with me that Mr. Kadijevic wrote the book

19 at a time when he was no longer defence minister or federal secretary for

20 All People's Defence? The statement that you have just referred to does

21 not say that the objectives of the armed forces of the SFRY were ever

22 changed in relation to what was envisioned in the constitution.

23 A. It is correct, Your Honours, that the book dates from 1993, but I

24 would assume that, judging by the contents of the book, that

25 Kadijevic had an authorisation to publish all -- or to publish it,

1 including the contents, and in relation to the statement, but it's obvious

2 that it's not openly mentioned that -- the goals I've mentioned that have

3 changed, but when I look at how the mission of the armed forces is defined

4 in this statement from the 3rd of October, and when I compare it to the

5 constitutional mission, one has the impression, the strong impression

6 there has been a change in the mission of the SFRY armed forces. And

7 I can also add that the statement by General Adzic, who was then the chief

8 of General Staff, 12th of October, 1991, which has been exhibited as

9 Exhibit 89, which is mentioned on page 17 to page 19 on my report. Second

10 part.

11 Q. Yes, Mr. Theunens, but Mr. Kadijevic's statement of the 3rd of

12 October does not say anything about any such changes. It is your opinion

13 that changes occurred, in relation to the objectives of the army under the

14 powers granted the arm by the constitution, but this isn't something that

15 Mr. Kadijevic actually stated, is it?

16 A. Your Honours, I can read out a paragraph that is relevant in the

17 context of the question of Mr. Vasic. It's on the bottom of English page

18 16. "The army now wants nothing more but to restore control in the crisis

19 areas to protect the Serbian population from persecution and annihilations

20 and to liberate the army personnel and members of their families, the

21 conditions for this is to defeat Ustashi forces."

22 Now, it is obvious that the wording is -- is like -- it's much

23 shorter and it's only one statement I have quoted now from there, other

24 official statements, included my report, but when you compare this here

25 with the constitutional mission, I think one would conclude that there are

1 some differences.

2 Q. Mr. Theunens, I understand that you have a need to explain and to

3 answer the question, but I asked you very specifically about the statement

4 of the 3rd of October, whereas you gave us a reply now confirming that

5 this is your opinion that the objectives had been changed. It's not

6 contained in the statement. I would like to know whether you came across

7 a fact stemming from this statement that you just read out. What is it

8 that threatened the Serb residents in the territory of Croatia? Are you

9 aware of this? Do you know this?

10 A. I mean, there are at least two or three questions in your state --

11 in your question now. What I read out comes from the statement from

12 Kadijevic on the 3rd of October. Now, based on what he writes, the

13 Serbian population needed to be protected from -- by the JNA from

14 persecution and annihilation, and the army personnel and members of their

15 families had to be liberated.

16 Q. They should have been protected from whom, these Serbs? And also,

17 who imprisoned the officers and their families? Do you know anything

18 about that?

19 A. Based on Kadijevic's statement, as well as Adzic's -- so General

20 Adzic's statement, which is -- actually follows Kadijevic's statement in

21 my report, Adzic -- excuse me, in the letter 6-83, speaks about the

22 requirement to defend parts of the Serbian people from genocide and

23 biological extermination at the hands of Ustasha forces. Now, it is not

24 part of my report to analyse what happened or did not happen with Serbs in

25 Croatia. This information -- information in this section here, section 1

1 of the second part, is intended to explain whether or not there was a

2 change in the mission of the JNA during the armed conflict in Croatia.

3 And I leave it up to the reader to draw his or her conclusions. I can

4 only quote from sources, and indeed have the reader then conclude what he

5 or she thinks happened or didn't happened with the mission -- to the

6 mission of the JNA and the SFRY armed forces.

7 Q. Mr. Theunens, can we agree that you believe that your assessment

8 of the evolution of the tasks and the role of the JNA in the armed

9 conflict in Croatia, that you reached that assessment by analysing the

10 conduct of only one party to the conflict. However, a conflict is

11 unavoidably an interaction between two parties to a conflict.

12 A. It is indeed correct, Your Honours, that a conflict involves two

13 or even more parties, but I believe that the information provided by

14 Generals Kadijevic and Adzic, because of their senior position and their

15 role at the time of the events, is very useful to understand the mission

16 of the JNA and what remained of the SFRY armed forces during the time

17 period that is of interest for us, i.e. the latter half of 1991.

18 Q. Thank you, Mr. Theunens. You are right, I should have said that

19 an armed conflict is an interaction of at least two warring parties. Now

20 let us turn to page 6 in B/C/S, in English it's page 5. And then under

21 paragraph 8 you speak of documents that are kept in some units, and then

22 you also mention a war log or a war diary that is normally kept for the

23 duration of the war. Tell me, please, in addition to this war log, was

24 there also an operations diary in the JNA units, and in addition to that,

25 was there also a book of reporting? Are you familiar with that?

1 A. I am familiar with that, Your Honours, but I'm not sure about the

2 reference -- I mean I speak in my report in section 1 about a war diary,

3 and that's on page 60, which is an -- which comes from -- for example, in

4 the 1988 JNA battalion manual, which is Exhibit 397, a war log-book is

5 mentioned. I am familiar with the fact that units can also have an

6 operational diary. The OTP has requested the operations diary of the

7 Guards Motorised Brigade, and that's already some time ago, but we haven't

8 requested [sic] It yet, so ... And, I'm sorry, the book of reporting

9 I'm -- I learned through a witness interview that such a book exists.

10 There is a actually a kind of register of incoming and outgoing orders,

11 which we have requested from Serbia and Montenegro, I mean the one for the

12 Guards Motorised Brigade covering time period the Guards Motorised Brigade

13 was involved in the operations in Vukovar. It was obtained after the

14 filing of this report, so it was not included in the report, it was

15 disclosed to the Defence. We also requested an -- a register of orders

16 and reports that have been received by telephone, and so far we have no

17 answer to that request.

18 Q. Thank you. You gave me an answer to the question that I was about

19 to put to you. Tell me, please, is there a book of reporting, a book

20 where all reports of subordinate units are compiled, those given at daily

21 briefings, and all orders that are then issued by commanders based on

22 those reports, and this is all done during regular daily briefings?

23 A. Your Honours, I'm -- I'm not familiar with -- with such a book.

24 In relation to the regular daily briefings, we have requested, actually,

25 the minutes, I'm just trying to -- whether I can find it here on the spot.

1 Yes, request 892 from -- I apologise. From the 5th of August, 2005, we

2 requested from Serbia and Montenegro the minutes and lists of participants

3 of the daily command meetings that took place at the headquarters of OG

4 South (Guards Motorised Brigade) in Negoslavci, between 30 September and

5 23rd of November, 1991. We received a reply on the 15th of November, 2005

6 from the competent authorities in Serbia and Montenegro at the time

7 stating, "There are no minutes of the daily command briefings at the

8 command post or headquarters of OG South." On the 30th of November, 2005,

9 we received a similar reply, confirming, basically, the reply of the 15th

10 of November. So that's all I can answer to this question.

11 Q. Thank you, Mr. Theunens.

12 MR. VASIC: [Interpretation] Your Honours, I believe it's time.

13 JUDGE PARKER: Thank you very much, Mr. Vasic.

14 We must adjourn now for the day, resuming at 9.30 in the morning.

15 And I think, Mr. Vasic, you have 50 minutes remaining. Five zero minutes

16 remaining.

17 --- Whereupon the hearing adjourned at 5.00 p.m.,

18 to be reconvened on Tuesday, the 20th day of June,

19 2006, at 9.30 a.m.

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